New Sports Law Program at FCSL & Breaking Into the Sports Law Industry

Nice piece by Mark Hyman in this week's Street and Smith's Sports Business Journal on Florida Coastal School of Law's new sports law certificate program (Hyman, "School aims to make its name in sports," 7/24/05). The article appears on page 19, and it quotes the program's director, Professor Rick Karcher, who has regularly contributed to Sports Law Blog. The article discusses Rick's responsibilities as the director, his colleagues Dean Peter Goplerud and Professor Nancy Hogshead-Makar, and also how he is a former pro athlete: before attending law school, Rick played in the Atlanta Braves' organization and was a teammate of Chipper Jones. The article also discusses how it can be difficult to land a sports law job even with a certificate. Along those lines, Gary Roberts--director of Tulane's Sports Law Program and also a regular contributor to Sports Law Blog--notes that of 30 students earning certificates at Tulane each year, only between five to 10 find sports law jobs. On the other hand, notes Rick, "[a certificate] could give a student a leg up."

This article brings to mind a question that both Greg and I frequently get e-mailed about: What is the best way to break into sports law? Aside from the more obvious methods (sending letters to all the teams/sports agencies; networking at sports lawyers' conferences; and be willing to earn very little while your classmates earn a lot more), one other avenue to consider is writing and publishing legal scholarship (especially on topics that have not already been written about), and obtaining advice from law professors who are interested in your writing and who are willing to be active sources of advice and advocacy on your behalf. From my own experience, publishing can be a great avenue into a sports law career, as my law review article on the law and economics of high school players in the NBA Draft landed me a spot on Maurice Clarett's legal team. Not coincidentally, I had the good fortune of receiving invaluable writing and professional advice from my two sports law professors, Paul Weiler of Harvard Law School and Donald Dell of the University of Virginia. Along those lines, as a soon-to-be law professor at Mississippi College School of Law, I look forward to actively helping my students break into the industry.

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NHL Raises Draft Entry Age from 18 Years to 19 Years: Will Litigation Follow?

Update 7/28/05: The new CBA between the NHL and NHLPA will not include a 19-year old age floor, despite the claim of the 7/21/05 TSN Canada report that I discuss below. Nevertheless, I hope you find this post to be an interesting read of how an amateur hockey player might have challenged that age floor. Without further adieu . . .

According to The Sports Network (TSN Canada), the new six-year collective bargaining agreement between the NHL and the NHLPA includes a provision that raises the age for draft eligibility from 18 to 19, apparently effective for the 2006 or the 2007 NHL Draft, although that is not entirely clear from the article.

Why would the NHLPA agree to ban 18-year-olds from the NHL Draft? So far, we don't know, since neither the league nor the players' association has commented, but one strong possibility for their acquiescence is that a higher age floor will extend the careers of mediocre NHL players who would otherwise lose their jobs with a continued influx of premiere 18-year-old players. Other league-oriented reasons may be the relative maturity (or lack-there-of) of those 18-year-old NHL players, or that this group of players hasn't performed well, yet teams nevertheless still play--and pay--them (I am not endorsing those reasons, but merely mentioning them as possibilities).

It is curious as to why this new NHL age floor does not appear to be in effect for the upcoming 2005 NHL Draft, whereas most of the new CBA's other provisions are immediately in effect. I suspect the one-or-two year delay might be to thwart off a lawsuit from Sidney Crosby, the presumptive number one overall pick in the upcoming 2005 NHL Draft and the supposed "next great one," and perhaps other top amateur players who would otherwise seek an injunction against the new age floor. Indeed, after an embarrassing 301-day labor impasse, the last thing the NHL would want is a high-profile lawsuit that might jeopardize the new CBA.

Still, it will be interesting to monitor if an amateur player or group of amateur players eventually challenges this new NHL age floor. Although the holding by the U.S. Court of Appeals for the Second Circuit in Clarett v. NFL has been bandied about as the "definitive" case on the issue of age floors in pro sports leagues, remember:

1) there are 11 other U.S. Courts of Appeal that might have held differently in Clarett, and might hold differently if presented with a similar fact pattern in hockey or basketball;

2) Canadian courts may be a forum in this lawsuit since, among other reasons, the NHLPA's main office is in Toronto and the likely plaintiff(s) would be Canadian citizens, and Canadian courts typically embrace a more skeptical view of management and unions excluding members of the labor force than does the U.S. Court of Appeals for the Second Circuit; and

3) while Maurice Clarett had to argue a hypothetical and show what might happen in the NFL with no age floor or with a lower age floor, hockey players, just like basketball players, have a wealth of data regarding how well 18-year old players have already performed in the league.

For these reasons, a promising amateur player, such as Phil Kessell--who, until this new age floor, had been projected as the number one overall pick in the 2006 NHL Draft and, like Sidney Crosby, is often described as "the next great one"--or a group of promising amateur players might seek legal recourse before the 2006 NHL Draft, assuming the ban is in effect at that time.

As to the track-record of 18-year-olds in the NHL, anecdotal evidence suggests that some do quite well. For instance, during the 2003-04 season, an 18-year-old Patrice Bergeron of the Boston Bruins was fifth among all NHL rookies in both goals and points and was fourth in assists. Even more impressive, during the 1981-82 season, an 18-year-old Dale Hawerchuck broke 17 Winnipeg Jets' records and became the youngest NHL player in history to reach the 100-point plateau, finishing with 103 points, the second best total by a rookie in NHL history. For his efforts, Hawerchuck was awarded the Calder Memorial Trophy as Rookie-of-the-Year—the youngest to win that award—and played in his first All-Star Game. Moreover, perhaps the most heralded hockey player in the last thirty years, Wayne Gretzky, was an 18-year-old NHL rookie.

As to the natural comparison between the recent agreement by the NBA and the NBPA to ban 18-year-old players and this agreement, remember that while analogous in that they will be banned, 18-year-old amateur hockey players and 18-year-old amateur basketball players seek employment in what might be considered leagues of different structure. Namely, while the NHL has a well-developed minor league system, the NBA does not. Granted, as part of the new CBA between the NBA and the NBPA, a "revamped" NBDL will be established that will allow NBA teams to send players to the minors for more seasoning. But NBA teams can only send two of their players to their NBDL affiliate and, more constricting, NBA teams will share individual NBDL teams--meaning that the NBDL coach will not be affiliated with the NBA team, and he may thus have his own coaching philosophy that is distinct from that of the NBA team (for example, how can Boston Celtics' GM Danny Ainge and coach Doc Rivers be sure that their NBDL coach will embrace their philosophy of fast-break basketball? And how will playing time be divided -- how can the NBA team be sure that their young players are actually going to receive sufficient playing time? -- for these reasons, the new and improved NBDL may end up looking a lot like the old NBDL). In contrast, the NHL has the ECHL and the AHL to develop premiere young players, and this system has seemingly worked well.

Moreover, the "economic harm" suffered by a banned 18-year-old basketball player might be greater than that suffered by a banned 18-year-old hockey player. This appears especially true since while the NHL has "two-way" contracts that enable teams to pay players differently depending on whether they are in the NHL or in the minors, the NBA does not. Also, consider that while the average first round pick in the 2005 NBA Draft will earn $1.6 million next season, he would only be able to earn approximately $25,000 to $35,000 playing minor league basketball in the United States. Although he would likely do a little bit better playing in Europe, he would earn nowhere near what he would have earned in the NBA (especially when considering lost endorsement opportunities). In contrast, while the hockey player playing in Europe might earn less than the basketball player playing in Europe, the disparity between what he earns there and he would have earned in the NHL--especially considering the presence of two-way contracts in the NHL--appears likely to be considerably smaller.

We'll keep you posted, and we invite any feedback in our comments section. For related coverage, check out my law review article entitled "Illegal Defense: The Irrational Economics of Banning High School Players from the NBA Draft" and my recent post entitled "The Red Herring of Age in the NBA Draft" and the corresponding readers' comments.

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2005 NBA Draft High School Players Impressive So Far

In what may prove to be the last group of high school players to skip college and directly enter the NBA, early reports suggest that it is a very impressive group of players, many of whom will immediately contribute to NBA teams. Marty Burns of Sports Illustrated has the story. Most notable appears to be the Celtics' Gerald Green, who has wowed scouts and NBA personnel with an explosive game that resembles that of Tracy McGrady, and the Trailblazers' Martell Webster, who has shown an uncannily mature game (for any draft pick, of any age). These early reports are not terribly surprising, since players who have skipped college have proven to be the best group of players in the NBA, a phenomenon that I argue is the result of economic incentives and deterrences that foster a small, self-selected group to bypass college all-together. Nevertheless, the NBA and the National Basketball Players' Association recently agreed to institute an age floor of 19 (or one year out of high school)--a move that will likely trigger litigation in the not-to-distant future.

Update: On the well-worth-the-$5-a-month ESPN Insider, Chad Ford has a similar piece praising this year's group of high schoolers. Here is an excerpt:

David Stern and the NBPA shut the door on high school players making the jump straight to the NBA in the new collective bargaining agreement.

And once again, the high school kids are showing Stern and Co. that the NBA may be making a big mistake . . .

Let's start with the Lakers' [Andrew] Bynum . . . While no one is predicting he's fighting his way into the starting lineup anytime soon, every scout Insider talked to conceded he's further along than they thought . . . [according to one scout], "This kid seems to have his act together both on and off the court. He's got the chance to be really good. On draft night, I thought they really reached. Now I'm not so sure. Maybe he should've gone higher." . . .

The Blazers have a trifecta of former prep stars making some noise at the Las Vegas Summer League. The Blazers have selected a high school player in the last three drafts, and all of them look promising . . . No wonder Nate McMillan bolted Seattle for Portland.

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Legality of Fantasy Sports Leagues

Professor Christine Hurt of Marquette University Law School has an excellent post concerning the legality of fantasy sports leagues on her blog Conglomerate. Christine, who teaches corporate law, is conducting research on gambling and the stock market, and has included fantasy sports leagues in her research model. Here is an excerpt from her post:

But Fantasy Sports are impervious to regulation and completely out in the open where any one can play. ESPN, NFL, Sports Illustrated, Yahoo, the television networks, just about everybody has a fantasy sports site where you and your friends can create a fantasy sports league and be provided various levels of statistics and analysis for various fees. No one in Congress seems to care, and the "league managers," or site sponsors, seem not to know that within these sports leagues, gambling takes place. They would be shocked, shocked to realize that people were not playing for the mere love of the game . . .

In all three bills introduced in the 108th Congress seeking to prohibit Internet gambling (H.R. 21, H.R. 2143, and S. 627, the definition of "bets and wagers" excluded two types of activities. The first exclusion applies to stocks, commodities, derivatives, and insurance products. (Interesting that we would have to sort that out.) The second exclusion was: Fantasy Sports!!!

For more, check out the post. It is very interesting, and we look forward to discussing this topic in future posts. For past coverage, check out Greg's excellent post on the ownership of sports statistics (3/21/05).

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My Interest in Books and Law Review Articles

Greg and I were tagged by Skip over at The Sports Economist with several questions about our interest in books. I've modified some of the questions/answers to include law review articles.

1. How many books do you own?

At least 50 sports books, and several hundred other types of books (and, for some, their CliffsNotes too!). To be honest, most of my reading is now comprised of reading law review articles, typically pertaining to sports law, food and drug law, or behavioral law and economics. Some of my favorite legal scholars include (and in no particular order): Paul Weiler, Kim Forde-Mazrui, Kip Viscusi, Barry Cushman, John Norton Moore, Jon Hanson, Richard Merrill, Peter Barton Hutt, Daniel Halperin, and Morton Horwitz. I also find myself increasingly interested in government and economic studies, as well as recent judicial opinions. Pretty exciting life indeed.

2. Most recent purchase or download?

I. Armen Keteyian, Money Players Inside the New NBA (1998). I just picked this up. It is supposed to be an outstanding and objective account of what really goes on in the NBA, including discussion of what actually gave rise to Michael Jordan's sojourn into baseball, circa 1994. I'm looking forward to reading this book.

II. Todd Zywicki, The Economics of Credit Cards, 3 Chapman Law Review 79 (2000). I'll be teaching consumer law in the spring, so I'm interested in well-regarded related literature. This is one such piece.

3a. Five (or six) books or law review articles that "meant the most":

I. Paul Weiler, Leveling the Playing Field: How the Law Can Make Sports Better for Fans (2000). Professor Weiler, my former sports law professor and arguably the most distinguished professor of sports law, has written a fascinating book on how the law can improve sports, and it discusses--in readily understandable terms--a variety of sports law topics, including free agency, tax-subsidies for sports teams, salary caps, and performance-enhancing drugs. This is a great book for those who want a readable overview of sports law, as well as insight on how the law and sports mix together. It's often said, "there is no such thing as sports law," but after reading Leveling the Playing Field, you might think otherwise.

II. Paul Weiler and Gary Roberts, Sports and the Law: Text, Cases and Problems (4th ed. 2005). A must read for anyone interested in sports law.

III. Peter Barton Hutt and Richard Merrill, Food and Drug Law (2nd ed. 1991). A must read for anyone interested in food and drug law.

IV. Jon Hanson & Doug Kysar, Taking Behavioralism Seriously: Some Evidence of Market Manipulation, 112 Harvard Law Review 1420 (1999). A great read for anyone interested in how consumer perceptions can be manipulated. This article will also teach you a great deal about cognitive biases, an increasingly popular topic in legal scholarship.

V. Kip Viscusi, Jurors, Judges, and the Mistreatment of Risk by the Courts, 30 Journal of Legal Studies 107 (2001). Fascinating analysis of how cognitive biases affect decisions by jurors and courts, and implications on how attorneys should try cases (and, correspondingly, manipulate these biases). A must-read for current and prospective law students, as it will likely change the way they view their first-year torts and civil procedure courses.

VI. Kim Forde Mazrui, Jural Districting: Selecting Impartial Juries Through Community Representation, 52 Vanderbilt Law Review 353 (2000). Fascinating piece on how juries are selected, and how the jury selection system can be improved.

4. Who gets next?

Bruce Allen at Boston Sports Media Watch, Professor Christine Corcos at the Media Law Prof Blog, Darren Rovell at his ESPN blog, William Li at To Fuss is Human, to Rant is Divine, and Ralph Hickock at Hickock Sports.

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ESPN The Magazine Story on NBA Draft Age Floor

ESPN's Morty Ain interviewed me for an article appearing in the current issue of ESPN The Magazine (July 18 issue). The article is entitled "The Spin: Teenage Wasteland," and it appears on page 38. Here is an excerpt:

But where the NBA sees a move that protects young players and the game, others see voodoo economics.

"High school players have done uniquely well in the NBA," says Michael McCann, a visiting scholar at Harvard Law School [actually, now a law professor at Mississippi College School of Law] and author of a recent article in the Virginia Sports and Entertainment Law Journal, "Illegal Defense: The Irrational Economics of Banning High School Players from the NBA Draft." According to McCann, prep-to-pro players averaged 12.6 ppg, 5.2 rpg and 2.1 apg in 2004-05, "dramatically outperfomring the average NBA player." (The league average: 9.4 ppg, 4.0 rpg and 2.1 apg.) McCann also notes that 27 of the 30 high schoolers drafted in the past decade are still in the league. "Simply put," says the prof, "for every Korleone Young, there are two or three Kevin Garnetts."

Okay, maybe not. But it's just as hard for McCann to buy David Stern's argument--served up to reporters last month--that "a player coming in later will be the same player; he will just be more skilled and more schooled." Less wealthy is more like it. McCann says a player could lose out on more than $10 million in salary and endorsements later in his career because of even a one-year deferral at the start. "The difference between the six-year deal you get at 28 and the six-year deal you get at 29," says McCann, "is material."

Thanks to Henry Abbot of True Hoop for discussing both the ESPN The Magazine story and my law review article, and to Scott of H-Town Sports for discussing my law review article.

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Legal Issues of NBA Draft Age Floor

Blair Clarkson of the Los Angeles Daily Journal had an excellent piece yesterday on the legal issues concerning the new age floor in the NBA. He interviews a number of people, including Joe Rosen, Gary Roberts, and me. Here are some excerpts:

More important, some say, it's illegal.

"I definitely think we'll see at least one lawsuit challenge it," said Michael McCann, a law professor at Mississippi College School of Law. "It can be construed as a group boycott. These players can't go anywhere else to earn that kind of income."

McCann was part of the legal team for Ohio State sophomore running back Maurice Clarett, who two years ago sued the National Football League for keeping him out of the 2003 draft.

Like the NFL's policy, McCann says, the NBA's new age floor violates antitrust laws that prohibit policies that restrain trade.

"There's really only one employer [they] can work for to reap the rewards of their unique talents," he said. "The NBA has an economic monopoly on pro basketball."

But Gary Roberts, director of the sports law program at Tulane Law School and a former president of the Sports Lawyers Association, says that, because the age limit was agreed to by the players' union in bargaining sessions, the issue is exempted from labor laws.

"There is not one snowball's chance in hell of getting the age limit declared illegal," Roberts said. "Labor laws supersede antitrust laws when the matter at issue is the subject of mandatory collective bargaining."

In this case, because the league and union agreed on the age limit, the courts will view it as a collective-bargaining issue to be dealt with through that process, foiling any antitrust challenges, Roberts said.

"I don't see how you get around that," he said.

But that ignores the fact that the would-be players most affected by the decision weren't a party to the collective bargaining agreement, according to Joe Rosen, an adjunct professor of sports law at Boston College Law School.

"This should not be covered by the labor exemption because these [high-school] players are not covered by the collective bargaining agreement," said Rosen, who is starting a law firm and sports agency in Boston later this year. "The union doesn't represent the players who would bring this suit."

Roberts contended that collective-bargaining agreements apply as much to future members as current ones. He said that the appellate court's ruling against Clarett bears that out.

"Mike [McCann] has already argued that perspective and lost," Roberts said.

Prominent Los Angeles business and antitrust litigator Charles Stern, however, isn't so sure.

Stern said that the issue "raises some very troublesome questions." The Katten Muchin Rosenman partner believes the age limit boycotts an entire class of players capable of playing at the highest level. He says Roberts' contention that nonunion players are bound by union decisions is "probably an oversimplification."

Besides, McCann said, the decision to uphold the NFL's age limit was made only in the 2nd Circuit, leaving 11 other circuits to disagree if presented with a similar case, and the trial court initially agreed with Clarett.

"If labor laws always supersede antitrust laws when the matter is the subject of collective bargaining, then Clarett's case would never have made it out of pleadings," he said. "The fact that it did, and then won the first round, is pretty compelling evidence that the deference is not absolute, especially when management represents a monopoly like the NBA."

Here is another excerpt that discusses the distinctions between a hypothetical lawsuit by a banned teenager player and that brought by Maurice Clarett:

And a high-school basketballer challenging the NBA would have a much better case than did Clarett, McCann said.

Clarett had to argue a hypothetical point that he'd succeed in the NFL, but a proven 10-year track record in the NBA shows that players who skipped college are among the league's elite.

While researching statistics for a paper published in the Virginia Sports and Entertainment Law Journal in 2004, McCann found that players entering the NBA from high school average more points, more rebounds and more assists than other players.

Although some of the highly touted teenagers turned into draft-day busts, stars like Bryant, James, Tracy McGrady and Jermaine O'Neal have become franchise players who dominate games and reap millions in marketing for the league.

Additionally, McCann argues, the players excluded by an age limit suffer significant economic harm, making legal challenges more viable.

While the average NBA lottery pick will make $1.6 million a year in guaranteed contracts, plus countless more in endorsements, a player relegated to the NBA's developmental league or a European league until he comes of age may make only between $20,000 and $75,000 in his first year, McCann said.

And if that player is forced to play college ball for a couple years, he also runs the risk of sustaining a serious injury that could cost him millions, if not his entire career.

"If the Clarett decision had been straight down the line against him, the likelihood of an NBA case might be tough," Rosen said. "But the trial court ruled in his favor, so I think it's inevitable that an antitrust lawsuit will be brought."

For more, check out our recent discussion on this topic: Greg (arguing that the NBA and NBPA can legally ban teenagers) and me (arguing that a legal challenge to the age floor may prove viable; also check out my law review article Illegal Defense: The Irrational Economics of Banning High School Players from the NBA Draft). Also, be sure to read the comments section to the posts, as a number of Sports Law Blog readers have provided great insight and perspective (and I thank each of them -- those comments are much appreciated).

See Update 7/28/2005: NBA Player Arrest Study and Age/Education

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