A Dangerous Precedent? The story of Raul Mondesi has become very intriguing and has many (including myself) wondering if baseball should step in to prevent players from taking this sort of action. To recap the past month, Mondesi formerly played for the Pirates. In early May, he left the team to return to the Dominican Republic, citing a need to defend himself in a lawsuit filed by a former colleague. The Pirates, dismayed at their player's sudden departure, placed him on the inactive list on May 11 and ordered him to return on May 18. He did not return, saying that he would not play the rest of the season because of the need to defend himself and his assets. In response, the Pirates placed him on waivers and released him.



Now, less than two weeks later, Mondesi has signed with the Anaheim Angels, a team in first place (the Pirates are in last). Before signing with Anaheim, he negotiated with six other teams, all of which are in contention. Thus, it is becoming more apparent that he was less concerned about this lawsuit, and more concerned about wasting away the summer on a last place team. As soon as a contender came calling, Mondesi's troubles suddenly seemed less dire.



Now, this could all be a coincidence, but even so, it sets a dangerous precedent for major league baseball. A player refuses to play for a last-place team, they release him and he signs with a contender. Without action from baseball, players could begin mid-season hold-outs, demanding a trade or forcing a type of in-season free agency.



Baseball does have something in place to prevent this. The Pirates did not have to release Mondesi -- the team could have kept him on the inactive list, which does not require the team to pay his salary. But this does open the team up to a union grievance, and arbitrators are anything but predictable. The solution seems easy: if the player wants his money, he plays. For the team he is under contract with. If the player refuses to play, he does not get paid and he cannot play for any other team. Players that want to avoid potential problems can sign one-year contracts and take the risks that come with them. But to say that a player can refuse to play in order to finagle a move to a winning team only raises more problems for a sport desperately looking for solutions.

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Quick Hits: Here are a couple of interesting items that are not worth an entire post:



FindLaw offers a book review of Alan Shipnuck's The Battle For Augusta National. The verdict: well-written, but perhaps not enough material to warrant a 300+ page book.



Former Carolina Panthers player Anthony Bright has sued the team and wide receiver Steve Smith, claiming his NFL career was ruined after a film-room fight in 2002.



The New York Times ran an interesting article over the weekend analyzing the value of naming rights deals to the company's that spend millions to put their names on ballparks. ESPN has a nice summary of naming rights deals in sports.



The Pittsburgh Steelers have filed a motion to dismiss in the case alleging that NFL antitrust violations have enabled teams to extract big public subsidies from cities for new stadiums. You can read more on this type of case in this earlier post.

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More on Colorado and Title IX: Erik Brady of USA Today has an article on the impact the Colorado recruiting scandal could have on other schools.

Title IX, the law that bans sex discrimination at schools receiving federal funds, is best known in its sports context for a three-part formula that determines if schools are fairly apportioning opportunities to play. Less well known is that schools can be sued for monetary damages under Title IX for knowingly allowing sexual harassment to take place in any setting, including athletic ones.



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"We are watching the case closely," says Tom Hutton, an attorney for the National School Boards Association in Alexandria, Va. "It depends on how narrowly or how broadly the case is interpreted. But if the overall environment at a school can serve as actual notice (of sexual harassment), that would be new."

This would indeed be a radical shift from the conventional views on Title IX. It might also stray from the original intent of the legislation, which was to ensure equal opportunities for men and women. Few, if any legislators envisioned Title IX as a backdoor for sexual harassment claims. The legal arguments in this case could get very interesting.

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Law Protects Youth Sports Officials and Coaches: As a youth baseball umpire, I am especially interested in this story out of Alabama. A concerned legislator helped pass a law two years ago that increases the punishment for any fans, parents or others that harass, menace, threaten or batter an umpire or coach. Thus far, the law has not had to be used, but it should make the men in blue feel a little safer.

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NHL Labor News: As the NHL season comes to a finish with the Stanley Cup Finals, the labor stoppage looms on the horizon. The two sides seem diametrically opposed and Commissioner Gary Bettman says the owners will stop at nothing short of a radically different labor agreement. This has all of the markings of a huge struggle, and one that can only be bad for the game of hockey. More updates will come as the negotiations commence.



More from the Sports Business News.

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Clarett Not Giving Up: As expected, the legal team for Maurice Clarett will continue the struggle in the wake of Monday's unfavorable decision. Clarett will file a motion to have the case heard en banc, or by the entire 2nd Circuit. If that motion is denied, then the team will appeal the case to the Supreme Court.



Meanwhile, the player lost in the shuffle is Southern California's Mike Williams. Williams awaits the final outcome of the Clarett case, but has begun the process of seeking reinstatement of the NCAA. Unlike Clarett, Williams has the full support of his former team, who would welcome him back with open arms. Williams may also file an individual lawsuit against the NFL, claiming the league fed him misinformation that led to his decision to turn pro.



Meanwhile, the NFL and the NFLPA appear to have learned a lesson from this legal struggle and are making plans to make the draft rule more explicit. Both sides hope to write the rule into the next Collective Bargaining Agreement, rather than just leaving it in the bylaws. Many legal writers (including myself) believe that this would not even be a close case if the rule was actually in the CBA.

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Appeals Court Rules Against Clarett: Following its preliminary ruling against Maurice Clarett, a panel of the 2nd Circuit Court of Appeals issued its formal ruling against the prospective NFL prospect today.



The court rejected both the reasoning and the holding of the District Court opinion and focused its opinion on the fact that antitrust rules could not be used to relations better left to labor law.

This lawsuit reflects simply a prospective employee's disagreement with the criteria, established by the employer and the labor union, that he must meet in order to be considered for employment. Any remedies for such a claim are the province of labor law.

The unanimous opinion focused on several key issues. One, even though the "three year rule" does not appear in the text of the Collective Bargaining Agreement (CBA), it nonetheless formed an important part of the collective bargaining process, and thus, should be afforded the same weight.



In his post, Visible Hand focuses largely on the absence of the agreement from the CBA. But I think the court got this one right. The agreement appears prominently in the NFL Bylaws, which are explicitly referenced in the CBA as being provided for in the agreement. It would be a bad policy to require that every rule be included in the actual CBA for the exemption to apply. Then, negotiating parties would have to re-copy the entire Bylaws and other rules into the CBA, creating a wasteful doubling effect. This cross-reference placed the players union on notice that the bylaws were part of the deal, and the NFLPA acknowledged this in debating some aspects of the "three year rule" in the early 1990s.



The court also took a more holistic approach in applying the non-statutory labor exemption to antitrust law. The panel specifically rejected the three-prong Mackey test used by the District Court, saying that the test was not appropriate in the wake of the Supreme Court's decision in Brown v. NFL. Relying on that decision, the court stated that this was not a case of an employer using a union relationship to disadvantage competitors (i.e., another professional football league), but rather a multi-employer bargaining unit. As a result, the non-statutory exemption could be used, even if the limitation was imposed unilaterally after negotiations had broken down. To hold otherwise, the Court reasoned, would "call into question a great deal of conduct, such as multi-employer bargaining, that federal labor policy promotes and for which labor law provides an array of rules and remedies."



Thus, the rule only needed to concern a "mandatory bargaining subject" in order to fall within the non-statutory exemption. Despite Clarett's arguments to the contrary, the court found this easily satisfied:

Contrary to the district court, however, we find that the eligibility rules are mandatory bargaining subjects. Though tailored to the unique circumstance of a professional sports league, the eligibility rules for the draft represent a quite literal condition for initial employment and for that reason alone might constitute a mandatory bargaining subject.



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But moreover, the eligibility rules constitute a mandatory bargaining subject because they have tangible effects on the wages and working conditions of current NFL players. Because the unusual economic imperatives of professional sports raise "numerous problems with little or no precedent in standard industrial relations," we have recognized that many of the arrangements in professional sports that, at first glance, might not appear to deal with wages or working conditions are indeed mandatory bargaining subjects....

Thus, in order to prevent "antitrust courts from usurping" established practices of labor law, the court found the rule to fall within the nonstatutory labor exemption.



Finally, the court dismissed Clarett's policy argument that the eligibility rule represents merely an arbitrary line, without any real justification.

Clarett, however, stresses that the eligibility rules are arbitrary and that requiring him to wait another football season has nothing to do with whether he is in fact qualified for professional play. But Clarett is in this respect no different from the typical worker who is confident that he or she has the skills to fill a job vacancy but does not possess the qualifications or meet the requisite criteria that have been set. In the context of this collective bargaining relationship, the NFL and its players union can agree that an employee will not be hired or considered for employment for nearly any reason whatsoever so long as they do not violate federal laws such as those prohibiting unfair labor practices or discrimination.

As readers of this blog know, I feel the court got this one correct, for many of the reasons stated above. The NFL has a product, and it has a right to protect that product in reasonable ways that it sees fit. If the NFLPA does not like the "three year rule," then I am sure it can be exchanged in the next bargaining process. If, however, the union likes it, then Clarett and others must abide by it, because they too will benefit as future union members.



You can read the court's opinion here.

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