U.S. v. Comprehensive Drug Testing and The List of 97

Last week, I had a column on SI.com on United States v. Comprehensive Drug Testing, where the United States Court of Appeals for the Ninth Circuit held that the federal government's seizure of computer files which implicated 104 major league players as steroids users violated those players' Forth Amendment rights (Howard discussed this case as well). The names of 97 of those players remain unknown, while through leaks, we now know that Alex Rodriguez, Sammy Sosa, David Ortiz, Manny Ramriez and a few others are on it.

Here is an excerpt from my column.

* * *

MLBPA could eventually seek a court order that would enable it to divulge the remaining names. The MLBPA could reason that while disclosure might harm the interests of 97 players, it would serve the best interests of the far more numerous number of other MLB players, who would be cleared from suspicion. MLBPA, however, would pursue such a strategy under the peril of being sued by the 97 named players for breach of fiduciary duties. As a labor union, the MLBPA and its officials owe duties of trust and competence to each of the players. Releasing the names would undoubtedly harm the reputations of the named players and possibly jeopardize their player contracts and endorsement deals. Named players could also file a grievance with the National Labor Relations Board.

Unlike the MLBPA, Major League Baseball is not a party to the litigation. If MLB has the list, it could theoretically release it, but doing so would likely trigger a legal action commenced by the MLPBA. As part of the 2003 testing, MLB agreed to an arrangement whereby the players' names would be kept confidential and any records containing their names would be destroyed. MLB's willingness to partake in such an arrangement is significant because the collective bargaining agreement between MLB and the MLBPA imposes duties of confidentially. Although commissioner Bud Selig has not expressed a desire to release the list, the MLBPA would, in all likelihood, immediately file a grievance with the National Labor Relations Board should he do so. It may also argue that the court sealing of the names should effectively extend to MLB, since it co-coordinated the survey testing.

Commissioner Selig could nonetheless argue that the "best interests of the game" authority, as vaguely contained in MLB's constitution (a document originally drafted in 1921 and not one collectively bargained with the MLBPA), accords him sufficient authority to release the remaining names. In Selig's defense, the list has embarrassed baseball and prompted unwanted speculation as to who might be on it. Even worse for Selig, the list returns to the public spotlight every time a name or two is leaked. Selig might understandably feel that the only way the game can move on from the Steroid Era in Baseball would be to release the entire list, a move recently endorsed by Hall of Famer Hank Aaron.

In releasing the names, Selig would encounter a problem: the collectively-bargained CBA likely trumps baseball's constitution in this context. Expect the NLRB or possibly a court to dimly view any use of the best interests of the game clause to justify releasing the names, particularly since the list remains otherwise sealed and also because, according to the Ninth Circuit, the list should never have been obtained by federal agents.

The remaining 97 names may nonetheless become known through leaks. It appears that attorneys familiar with the list, or former law clerks or staff of those attorneys, are selectively divulging names to the media. By doing so, they violate both a court order and their professional and ethical duties. If caught, the leakers would be subject criminal charges for contempt of a court order and the loss of their license to practice law (or, if they are law clerks, the likely loss of the chance of being certified to practice law in any state). While the 104 players who purportedly tested positive damaged the game of baseball, attorneys and law clerks who leak names inflict the same, if not more, damage upon the practice of law and our system of justice.

* * *

To read the rest, click here. For additional commentary, see Garey Reiss' piece in the Wall Street's Journal's Daily Fix.

How Top-Ranked Law Schools Got That Way, Pt. 3

Part one and part two of this series focused on the top law schools in U.S. News and World Report's 2010 rankings, offering graphs and analysis to explain why those schools did so well. This part rounds out the series by way of contrast. Here, we focus on the law schools that ranked 41-51 in the most recent USN&WR rankings, those that ranked 94-100, and the eight schools that filled out the bottom of the rankings.



The above chart shows the weighted and itemized z-scores of law schools about 1/3rd of the way from the top of the 2010 USN&WR rankings. Note the sharp downward jog at Over$/Stu—a residual effect, perhaps, of the stupendously large Over$/Stu numbers we earlier saw among the very top schools. Note, too, that three schools here—GMU, BYU, and American U.—buck the prevailing trend by earning lower scores under PeerRep than under BarRep (GMU's line hides behind BYU's). As you work down from the top of the rankings, GMU offers the first instance of that sort of inversion; all of the more highly ranked schools have larger itemized z-scores for PeerRep than for BarRep. It raises an interesting question; Why did lawyers and judges rank those schools so much more highly than fellow academics did?




The above chart shows the weighted, itemized z-scores of the law schools ranked 94-100 in the 2010 USN&WR rankings—about the middle of all of the 182 schools in the rankings. As we might have expected, the lines bounce around more wildly on the left, where they trace the impact of the more heavily weighted z-scores, than on the right, where z-scores matter relatively little, pro or con. Beyond that, however, no one pattern characterizes schools in this range.




The above chart shows the weighted and itemized z-scores of law schools that probably did the worst in the 2010 USN&WR rankings. I say, "probably," because USN&WR does not reveal the scores of schools in the bottom two tiers of its rankings; these eight schools did the worst in my model of the rankings. Given that uncertainty, as well as for reasons explained elsewhere, I decline to name these schools.

Here, as with the schools at the very top of the rankings, we see a relatively uniform set of lines. All of the lines trend upward, of course. These schools did badly in the rankings exactly because they earned strongly negative z-scores in the most heavily weighted categories, displayed to the left. Several of these schools did very badly on the Emp9 measure, and one had a materially poor BarPass score. Another of them did surprisingly well on Over$/Stu, perhaps demonstrating that, while the very top schools boasted very high Over$/Stu scores, no amount of expenditures-per-student can salvage otherwise dismal z-scores.

[Crossposted at Agoraphilia, MoneyLaw.]

No Deterrence? NCAA Rules and the Men's Basketball and Football Players who Don't Follow them

San Diego Union-Tribune columnist Tim Sullivan has a piece on star NCAA athletes who accept gifts from would-be agents (e.g., Reggie Bush; O.J. Mayo) or who otherwise break other NCAA rules (e.g., Derrick Rose/SAT exam) and how, practically, little can be done to stop that from happening. He interviews me for the column, which is excerpted below..

* * *

[Derrick] Rose has adopted the Reggie Bush defense, which is to take the money and run from accountability. Having made his fortune with the Chicago Bulls, Rose has A) declined to cooperate with NCAA investigators and B) failed to account for the discrepancies that caused his SAT test to be invalidated.

* * *

This is the same evasive and suspicious strategy [Reggie] Bush employed — and continues to employ — when confronted with questions about his cash flow and his parents' living arrangements during his last year at USC.

“I would love to talk about it, but now is not the time,” Bush said on April 27, 2006, two days before the NFL Draft. “There's a time and a place for everything and this isn't one of them.”

Bush said that day he had done nothing wrong and promised to address the allegations, but 40 months later that time and place have yet to be identified. Though the inability to question Bush directly has frustrated the NCAA, more recent allegations involving one-and-done basketball star O.J. Mayo have broadened the scope of the investigation and increased the likelihood that the Trojans will ultimately be sanctioned for a “lack of institutional control.”

* * *

Likewise, any penalties USC may receive as a result of Bush's and Mayo's alleged improprieties will be administered long after they have left campus. Unless the Internal Revenue Service decides to start auditing the tax returns of professional athletes in search of undeclared undergraduate income, there's every reason to believe that crime does pay on campus.

* * *

Michael McCann, an associate professor at Vermont Law School, says the age limits enacted by the NBA and the NFL “create incentives” for short-term students without providing an adequate disincentive to rules-breaking.

“By the time allegations come to the surface,” McCann says, “the player will have already left and there's no way of holding him accountable.”

* * *

“If the allegations against him are true, I think O.J. Mayo took the money because maybe he thought he should have been in the NBA,” McCann says. “Had he pursued any profession other than basketball or football, he would have been able to be a professional.”

* * *

To read the rest, click here. For a related post, see Alan Milstein's "Reggie Bush Sweepstakes" in which Alan argued that the NFL's college draft is a monopsony (the NFL controls the buying of talent not the selling: they are the only source to which eligible players may sell their services).

Commonwealth of Kentucky v. David Jason Stinson: Should Coaches be held Criminally Liable for Athletes' Deaths?

I have a column on SI.com concerning the first case in which a high school coach has been criminally charged with a player's death. The trial will begin on Monday. Here's an excerpt of the column:

* * *

Former Pleasure Ridge High School (Louisville, Ky.) football coach Jason Stinson faces charges for reckless homicide and wanton endangerment, felonies which each carry maximum five-year prison sentences, for the August 2008 death of sophomore offensive lineman Max Gilpin. Gilpin collapsed at the end of a series of wind sprints held in allegedly 94-degree temperatures. When taken to the emergency room, Gilpin's body temperature was reportedly 107 degrees. Gilpin died three days later.

Other facts remain in dispute and will be contested during Stinson's trial, which is scheduled to begin on Monday. According to prosecutors, Stinson, despite having been trained on the dangers of heat-related illnesses, subjected Gilpin to "barbaric conditioning" in the form of the sprints, which Stinson allegedly used to punish and motivate underperforming players. There are also conflicting reports as to whether, and to what extent, Stinson allowed players to drink water during certain moments of practice.

* * *

. . . [I]f Stinson is convicted or pleads guilty to a lesser offense that carries a prison sentence, his case could produce major changes in high school football and high school sports in general. It could, for instance, compel high school coaches and school districts to treat players with much more care, and to provide them with added safeguards, such as ensuring that trainers are on-hand at all times, that coaches have undergone extensive sensitivity training, and that purportedly harsh practice conditions (e.g., denying a player water at any time; ordering sprints in hot and humid conditions) be eliminated. Practices could thus become more safe though also more regulated and potentially more costly, including for the taxpayers who fund local sports.

Stinson's case may also force coaches and school districts to condition the playing of sports on players' passage of rigorous, possibly invasive health tests. While players are already subject to physicals, the prospect of criminal sanction and prison time accompanying the death of a player may spur coaches to demand greater certainty of players' physical health. In that same vein, the profession of high school football coaching may take a hit. If a player's death on the practice field can lead to a coach facing criminal prosecution, the profession suddenly becomes a much less attractive one. The added possibility of tort liability under a wrongful death civil claim only amplifies that point.

* * *

To read the rest, click here.

Back from hols

Back from family holiday so postings will now resume.

There are some black and white photos of climbing trip to Alps in July here.

I have to finish the OUP Very Short Introduction To Humanism by end November so shall be posting bits here for comment over next couple of months.

After that I am writing a book on religious and other varieties of "intellectual black hole" for Prometheus Books in the US.

Ninth Circuit strikes down seizure of BALCO names

The en banc Ninth Circuit today held that government investigators violated the Fourth Amendment when, during a raid on BALCO, they seized the names of 104 MLB players who tested positive for steroids, while acting on a warrant targeted at only ten players. (H/T: Jon Pessah).

The opinion is 63 pages long (I have not had a chance to read it yet); the majority is by Chief Judge Alex Kozinski, one of the sharpest judicial minds on the federal bench and someone on the libertarian/conservative side. There are two partial concurrences/dissents and one full dissent. I would predict Supreme Court review, just because of the high-profile nature of the case.

Update:

Orin Kerr has a series of posts on the case at the Volokh Conspiracy. Orin knows the Fourth Amendment better than most people, so it is worth a read.

Instant Replay and Appellate Review

Chad Oldfather (Marquette) and Matthew Fernholz (J.D. Candidate at Marquette) have posted Comparative Procedure on a Sunday Afternoon: Instant Replay in the NFL as a Process of Appellate Review to SSRN. The paper considers analogies and distinctions between replay review (for which I have expressed my distaste) and judicial appeals. Here is the abstract:

During his confirmation hearings, Chief Justice John Roberts famously likened the judicial role to that of a baseball umpire. The increased prevalence of video evidence makes it likely that judges will find another sporting analogue for their role – that of the instant replay official in the NFL. (Indeed, many have already done so.) This Essay explores the analogy. In so doing it seeks not only to consider its appropriateness in a narrow sense (much as many commentators considered the appropriateness of the Chief Justice’s analogy), but also to conduct something of a comparative analysis and thereby to use it as a vehicle for illustrating some general characteristics of a process of decisional review.

Dryer v. NFL: Retired NFL Players Sue for Use of Identities

As detailed by Nooman Merchant of the Associated Press, a group of retired NFL players are suing the NFL under the Lanham Act over the NFL's use (and particularly NFL Film's use) of their identities. Merchant interviewed me for the story. Here is an excerpt and my comments:

* * *

NFL Hall of Famer Elvin Bethea [#65 above, a defensive lineman who played for the Houston Oilers and recorded a lot of sacks while doing so] and five other players sued the league for using their names and images for profit without their permission.

The players filed a class-action lawsuit Thursday in federal court in Minneapolis. The lawsuit accuses the NFL of exploiting retired players' identities in films, highlight reels and memorabilia to market the league's "glory days" without compensating the players.

"It's really turned into a big property," said Bob Stein, a lawyer for the players.

* * *

Michael McCann, a sports law expert and professor at Vermont Law School, said the lawsuit was similar to a complaint filed last month by former UCLA basketball player Ed O'Bannon against the NCAA. O'Bannon is seeking unspecified damages for the use of former players' likenesses in video games and other material. [O'Bannon v. NCAA]

In this case, McCann said, the NFL would likely refer to its collective bargaining agreement with the NFLPA. The player contract in that agreement gives publicity rights to the league.

"Whether there's sufficient language in there affecting retired players remains to be seen," McCann said.

In June, a group of more than 2,000 retirees won a $26.25 million settlement with the NFLPA over the use of their likenesses in video games, trading cards and other sports products. The retirees sued in 2007, accusing the union of failing to actively pursue marketing deals for such products.

* * *

To read the complaint for Dryer v. NFL, click here.

More Commercialization of the Student-Athlete

Sports Business Daily, citing timteblog.com, reports that the Fort Myers Miracle minor-league baseball team is holding a "What Would Tim Tebow Do?" promotion on Wednesday night during its game against the St. Lucie Mets (See Tebow: The Minor-League Baseball Gimmick). According to timteblog.com, the park is going to use Tim Tebow's name and/or indentity in the following events:

• Free promise rings for everyone entering the stadium.
• First pitch will be a "jump pass."
• Team manager and gameday staff will deal with problems by asking themselves "What Would Tebow Do?"
• Guy named "Tim Tebow" (not THAT Tim Tebow) will try to walk on some water.
• Faith healer on premises (bonus: if a Miracle fielder makes an error during the game all fans in attendance get a ticket to the regular-season finale next weekend -- really?)
• Plenty of jumbotron replaying of "The Promise."
• If you're wearing college gear at the game -- presumably Florida stuff -- you could win tickets to the Florida-Arkansas game.

3rd Circuit Rejects Delaware Sports Lottery Proposal

Gabe has previously discussed the lawsuit filed by the NFL, NBA, MLB, NHL, and NCAA seeking to prevent Delaware from effectively implementing legalized sports gambling as part of the state's lottery program. Earlier this month, the federal district court denied the leagues' and the NCAA's request for a preliminary injunction which would have prevented Delaware from offering single-game betting beginning next month. Today the Third Circuit Court of Appeals held an oral argument in the leagues' and NCAA's appeal from the district court's decision, and ruled that Delaware's proposal, as currently envisioned, violates the federal Professional and Amateur Sports Protection Act. A written opinion is expected at a later date.

On first impression, this appears to be a big win for the professional sports leagues and the NCAA, and a substantial set-back for the State of Delaware. Indeed, rather than limiting itself to the injunction issue that was before it, the appeals court went ahead and issued a ruling on the ultimate merits of the dispute. Delaware must now decide whether to seek an en banc rehearing before the entire Third Circuit, or possibly petition the Supreme Court for a writ of certiorari. In the meantime, however, despite today's ruling, Delaware may nevertheless proceed next month with a lottery game offering parlay bets on NFL contests, which the leagues conceded would be legal under Delaware's prior, limited exemption to the PASPA.

Alan Dershowitz: MLB Needs Much Tougher Penalties on Beanballs

Harvard Law School Professor Alan Dershowitz (of many sources of fame, including being a member of O.J. Simpson's successful legal team in People of California v. Simpson and successfully representing Claus von Bulow in his murder trial), has an interesting op-ed in the Boston Globe on what he considers to be inadequate penalties for big league pitchers who throw at and hit batters, as well as the managers of those pitchers. Dershowitz proposes dramatic increases in punishment.

Here's an excerpt:

* * *

It has become routine in baseball to throw at a batter. Being beaned is part of the risk of playing baseball . . .

Such was the case with Kevin Youkilis, back in the Red Sox lineup last night after a five-day suspension. The throw that prompted Youkilis to rush the mound was, according the Major League Baseball, deliberate. He was hit on the back.

Youkilis and pitcher Rick Porcello were both suspended for five days even though the decision to throw at Youkilis was premeditated and deliberate whereas Youkilis’s response was unpremeditated and provoked. Death, serious injury, and the end to careers can result from being struck by a ball, particularly in the head; it is rare for anybody to be seriously hurt when a batter charges the mound with his bare hands. Accordingly, an equal penalty for these two very different offenses was outrageous.

Moreover, the penalties were anything but equal in impact. Youkilis, one of the most consistent hitters and fielders in Major League Baseball, and one of its most difficult outs, missed approximately 25 at bats and numerous fielding chances. During his five game suspension, the Red Sox lost 4 games and won only 1. The five day suspension of Porcello, on the other hand, barely affected his team. Normally a starting pitcher gets to the mound only once in five days, so Porcello didn’t even miss one full rotation . . .

The message conveyed by Major League Baseball, even if unintended, is that it pays for a pitcher to throw at a superstar. Since human nature will often cause a batter to respond impulsively to being struck, a pitcher can trade a meaningless suspension for a meaningful one against the opposing team.

Moreover, had Youkilis not charged the mound, it is extremely unlikely that Porcello would have been suspended at all. But even if he were to have received a slap on the wrist, managers will now have an incentive to continue to encourage pitchers to throw at valuable batters, since their team can derive a benefit.

* * *
The minimum penalty for a manager must be suspension for an entire season, perhaps even for life. For the pitcher, suspension for the season should be mitigated only if the pitcher turned in the manager. There should also be penalties for any baseball player who hears the manager or coach order the beaning of a player without reporting it.

* * *

To read the rest, click here.

Freedom of Information Act & UConn's Self Reported Violations

Dave Altimari of the Hartford Courant recently made a Freedom of Information Request to discover UConn's self-reported violations for its big three sports teams: men's basketball, women's basketball, and football. Interestingly, despite the various scandals of the school -- most notably the scandal involving recruit basketball recruit Nate Miles and UConn student-manager-turned agent Josh Nochimson -- UConn only reported 17 minor infractions involving those teams over the last five years.

Altimari interviewed me for the story and here is an excerpt with my comments:

* * *

The self-reported cases, known as secondary violations, normally don't end up putting schools on probation or costing athletes eligibility. But the 61 pages of documents obtained by The Courant through a Freedom of Information request provide a window into how a big-time athletic department polices itself.

At UConn, the women's basketball program has had the most self-reported violations in the past five years with seven. The men's basketball program has six violations and football three, records show. There was one violation involving overpayment of meal money to both football and women's basketball players.

"That strikes me as not a high number of cases," Vermont Law School professor and sports law analyst Michael McCann said. "On one level it makes UConn look good because it shows they are handling and recording everything, including things that a typical person wouldn't think are a big deal."

* * *
UConn has been conducting an internal investigation into allegations that some of the contacts were illegal and that UConn coaches knew that Nochimson was representing Miles when they contacted him. Miles never played for UConn.

McCann said the fact that the school reported nothing about interactions with Nochimson is puzzling.

"How could they report all this other stuff and not report anything involving Nochimson and Miles? It's almost like they are ignoring the elephant in the room," McCann said.

* * *

To read the rest, click here. For a terrific Sports Law Blog post on the Freedom of Information Act from 2007 by Rick Karcher and terrific comments by Howard Wasserman, Jimmy H, and Rick, click here.

Burress Pleads Guilty

For those following the Plaxico Burress saga, Burress pleaded guilty this morning to one count of criminal possession of a weapon. Under his plea agreement, Burress will receive a two-year prison sentence, along with two years of post-release supervision. With good behavior, however, he will be eligible for parole after approximately 20 months in jail. Had Burress not reached a plea agreement, he was potentially facing up to 15 years in prison.

The plea agreement is still pending the approval of a state court judge, with sentencing set for September 22.

Maple Bats and Antitrust Law

Professor Christopher Robinette of Widener University School of Law and TortsProf Blog passes along a provocative student note written by Steve Matzura, who will be graduating from Widener Law next May. Matzura's note, which is being published by the Widener Law Journal, is titled, "Will Maple Bats Splinter Baseball's Antitrust Exemptions?: The Rule of Reason Steps to the Plate."

Here's an excerpt:

* * *

Maple baseball bats have become extremely popular among players throughout Major League Baseball (MLB). But maple bats continue to be a safety hazard because they break, injuring players, fans, and umpires. This comment explains the antitrust implications of an MLB rule that may restrict or qualify the use of maple bats to address the recent safety concerns. Any such restriction of the popular sports equipment may cause bat manufacturers, and perhaps players, to initiate an antitrust suit against MLB for an unfair restraint of trade. The comment’s analysis contemplates two judicially-created antitrust exemptions – the baseball exemption and the nonstatutory labor exemption – that almost entirely absolve MLB of liability for instituting a league rule even if the rule affects economic competition. The comment proposes that courts can interpret the exemptions narrowly to render them inapplicable, thereby reaching the merits to conduct a "rule of reason" analysis. The comment concludes that, even if a court finds the two antitrust exemptions inapplicable, the rule of reason and judicial deference to sports leagues will allow MLB to freely promulgate an equipment restriction instituted primarily for safety reasons–regardless of the effect on economic competition.

* * *

To download the note from SSRN, click here.

Glen "Big Baby" Davis and The $500,000 Diet

Sports contracts include all sorts of bonuses in order to incentivize behavior, but this one caught my attention:

The Boston Celtics are bringing back Glen "Big Baby" Davis, who agreed to a two-year deal that could pay $6 million . . . Davis will receive $5 million in base salary and can earn an additional 500,000 per season for meeting certain weight clauses, a source told ESPN.com's Chad Ford.

Davis, of course, has a history of weight problems, which may partly explain why he fell out of the first round in the 2007 NBA Draft and also why he struggled to attract much interest as a free agent this off-season (another reason is his height relative to position -- 6'6 power forwards usually aren't coveted).

The incentives in his contract suggest that Davis believes his weight woes are his own fault, or at least primarily his fault, rather than the fault of unusual metabolism or something else that would be beyond his control. After-all, if he thought his weight problems were beyond his control, then he presumably wouldn't ascribe much value to the incentive.

With obesity rates soaring in the U.S., it will be interesting to see if more athletes encounter weight woes and if, correspondingly, teams turn to $$ as a way of discouraging players from putting on the pounds.

Alito on the Baseball Antitrust "Exemption"

In 2008, Justice Alito gave a speech to the Supreme Court Historical Society on Major League Baseball's antitrust status, as Howard and Ed Edmonds discussed here and here. Justice Alito's remarks have now been published in the Journal of Supreme Court History, and are available on-line.

What if Rick Pitino Had Been a Woman?

Professor Joseph Kohm, who teaches sports law at Regent University School of Law and is a certified MLB agent (and former member of the Syracuse men's basketball team), checks in with an interesting question:

* * *

My wife [Professor Lynne Marie Kohn] teaches Family Law and Gender in the Law at Regent University and she asked me a very interesting question today. She wondered what would be the reaction if Rick Pitino was a woman. What if she was a prominent Division 1 head women’s basketball coach and it came to light that she had engaged in sexual intercourse on a table with a man (not her husband) she just met that evening in a restaurant? Some news reports in the Pitino matter say that one of his assistants was called to the restaurant and that the assistant was able to hear what was going on inside. Not to mention the abortion issue.

I looked at Coach Pitino’s employment contract and he can be dismissed for conduct that, “could objectively be anticipated to bring Employee into public disrepute or scandal” or his actions tend, “to greatly offend the public.” Similarly, he can be terminated if his actions sink to a level of “moral depravity.” Maybe it’s just me but I sense kind of a boys-will-be-boys attitude by the Athletic Director, whereas if a Coach who was a woman engaged in this type of behavior, she would have to wear The Scarlet Letter.

* * *

Has Pitino's gender helped him?

Alan Milstein on Clarett v. NFL and Prospect of Similar Challenge to NBA Eligibility Restriction

Alan Milstein, who litigated on behalf of Maurice Clarett in Clarett v. NFL (I was also part of Clarett's legal team), was interviewed over on Hoop Teens about the prospect of a player challenging the NBA's eligibility rule, which requires that U.S. players be at least 19-years-old by December 31 of the year of the draft and that they be one year removed from high school (In contrast, international players, defined as those who maintain a permanent residence outside of the United States for at least three years preceding the draft, need only be 19-years-old by December 31 of the year of the draft.).

Here are some excerpts from Alan's interview:

* * *

“He was precluded from playing at Ohio State because of supposed NCAA violations,” says Alan Milstein, Clarett’s lawyer in the case. “He had no other place to go. He was ready to play football. They were ready to hire him. And he just needed to get into the draft.”

* * *

“The 2nd circuit was wrong in the way that they ruled on the case,” says Milstein with conviction. “We won at the district court level, lost at the 2nd circuit. We shouldn’t have lost, we should have won.”

Milstein disagrees with skeptics that say football is a different beast than the other pro sports. Surely the physicality of the sport gives the NFL legitimacy in requiring players to be at least three years removed from high school. Right?

“The best hockey player in the world [Sidney Crosby] came out of high school,” says Milstein. “I think the NFL is a kid’s game compared to the NHL as far as the level of violence. If the players are ready to play, they will get drafted. If they’re not ready to play, they won’t make the team.”

Milstein is a staunch proponent of no age limits in professional sports and thinks the policies that professional leagues set run deeper than just meeting their own interests. “I think it’s an outrageous policy [setting age limits], perpetuated by an agreement by the … pro teams to help the NCAA,” says Milstein.

Asked if he would have any interest in challenging the NBA’s policy if he was approached by a client, Milstein replies, “Absolutely.” Spencer Haywood did challenge the NBA — and won — but that was back in 1971. Since the NBA’s new age policy took effect with the 2006 draft, nobody has bothered to contest it in court. Just last year, Brandon Jennings chose to play in Italy for one season instead of trying his luck in the judicial system.

* * *

I discuss the prospect of a legal challenge to the NBA's eligibility restriction in my forthcoming law review article Judge Sonia Sotomayor and the Relationship Between Leagues and Players, which Henry Abbot recently discussed on ESPN.com and Darren Heitner discussed on Sports Agent Blog. Yes, the article title will soon change to "Justice Sonia Sotomayor . . ."

New Sports Law Scholarship

Recently published scholarship includes:

Lindsey M. Baldwin, Note, When a goon’s goal is a green card: NHL players and the alien of extraordinary ability immigrant visa category, 22 GEORGETOWN IMMIGRATION LAW JOURNAL 715 (2008)

Erin DeNatale, Comment, FORE: the problem with the LPGA’s proposed language policy, 30 WHITTIER LAW REVIEW 623 (2009)
Marc Edelman, The house that taxpayers built: exploring the rise in publicly funded baseball stadiums from 1953 through the present, 16 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 257 (2009)

Matthew Epps, Comment, Full court press: how collective bargaining weakened the NBA’s competitive edge in a globalized sport, 16 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 343 (2009)

Victor Matheson and Brad R. Humphreys, PILOTs and public policy: steering through the economic ramifications, 16 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 273 (2009)

Stephen J. Matzura, Comment, Will maple bats splinter baseball’s antitrust exemptions?: the rule of reason steps to the plate, 18 WIDENER LAW JOURNAL 975 (2009)

Michael L. Meyer, Note, If nobody picks up the ball is it really a fumble, or is it a forfeit? The NFL Players Association request for legislative changes to the Labor-Management Relations Act of 1947, 43 VALPARAISO UNIVERSITY LAW REVIEW 1375 (2009)

Brianna J. Schroeder, Note, Power imbalances in college athletics and an exploited standard: is Title IX dead?, 43 VALPARAISO UNIVERSITY LAW REVIEW 1483 (2009)

Jeffrey Standen, The monopoly myth: a comment on the public funding of sports stadiums, 16 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 267 (2009)

Bryan Steinkohl, Comment, Now taking the field, the state government: landmark status of baseball stadiums as regulatory takings, 29 LOYOLA L.A. ENTERTAINMENT LAW REVIEW 233 (2009)

Jeffrey S. Storms, El montículo (“the mound”): the disparate treatment of Latin American baseball players in Major League Baseball, 11 UNIVERSITY OF ST. THOMAS JOURNAL OF LAW & PUBLIC POLICY 81 (2009)

Stephen Taylor, Comment, “Are you not entertained? Is this not why you are here?” U.S. taxation of foreign athletes and entertainers, 16 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 375 (2009)

Using Social Psychology to Evaluate Race and Law in Sports

I have posted on SSRN a draft of a forthcoming chapter I've written for "Reversing Field: Examining Commercialization, Labor, Gender and Race in 21st Century Sports Law" (andré douglas pond cummings and Anne Marie Lofaso eds, forthcoming).

Here is the abstract:

This chapter will examine the connection between social psychology and the larger topic of race, sports, and the law. It will begin by discussing human attitudes and cognitive biases and then turn to what could be the most clearly detectable, or at least the most controversial, connection between social psychology, race, and sports law: the alleged nexus between implicit attitudes and patterns of referees and umpires when officiating games. In particular, the chapter will discuss recent research on the supposed propensity of National Basketball Association referees to call fouls on African-American players with greater frequency than objective data would predict. The chapter will also consider new research on Major League Baseball umpires and a possible relationship between pitchers’ race and umpires’ called balls and strikes. It will then raise the possibility that the Wonderlic Personal Test for the National Football League Draft and similar tests may corroborate findings on stereotype threat. The chapter will conclude by noting the importance of law and collective-bargaining in rectifying related concerns.

To download the chapter, click here.

Taxi Cab Convictions?

Early Sunday morning, Chicago Blackhawks star winger, Patrick Kane, was arrested (along with his cousin) in Buffalo for allegedly beating a cab driver (Jan Radecki) and taking back the fare that they paid ($15). The charges against the Kane's are for Second Degree Robbery (per the NY Penal Code, punishment must be at least 3.5 years and not to exceed 15 years in jail, and a fine of up to $5,000), and Class A misdemeanor counts for Criminal Mischief and Theft of Services (punishable by up to 1 year in jail and a $1,000 fine). The police report (a Felony Complaint and a Misdemeanor/Violation Information Sheet) states that the Kane's paid the $13.80 meter with $15, for which $1 in change was given. When the driver did not produce the additional 20 cents in change, the Kane's took the $15 back and repeatedly punched the driver.

Since the police report was drafted, a few more facts have come to light: (1) the driver admits in an interview that he kept the doors of his minivan cab locked upon arrival at the Kane's destination, and (2) the driver may not have held a valid license. Why do we care? If you are an attorney for the Kane's, you want to paint this picture: the cab driver unlawfully restrained us in his cab by keeping the doors locked, a reasonable person would fear for his safety at 4am being restrained in a cab, and add to that the fact that my client is a star athlete who has an even greater reason to fear being put in danger. Would this defense fly? It likely will not matter. Patrick Kane is a hometown hero in Buffalo who days earlier appeared with Buffalo's mayor for a ceremony related to a financial commitment from Kane to an ice hockey rink for the City. The taxi driver does not paint the picture of an entirely innocent victim as initially reported. Attorneys for the driver and Kane have since played down this incident as well. A preliminary hearing is set for Monday, but Kane's attorney (Paul J. Cambria Jr.) has stated he is seeking to have said hearing rescheduled for later next week (Kane is due back in the Chicago suburbs on Monday for a 34-man tryout/mini-camp for the US Hockey Team's trip to the 2010 Winter Olympics in Vancouver). Look for an agreement to be reached with the prosecution for a fine and some community service, and the driver receiving some cash.

A concern for Kane could be his appearing on the cover of EA Sports' NHL 2010 for Sony and Nintendo. The game is set to hit stores on September 15, 2009. While at this stage, changing the cover is likely too late if EA Sports wished to do so, but there is precedent for a change. NHL 2004 was to feature Joe Thornton on the cover, but Thornton was dropped after an assault charge. Thornton's replacement, Dany Heatley was also removed after his involvement in a motor vehicle accident that killed his teammate, Dan Snyder. While the first shipments of NHL 2004 were released with Heatley on the cover, subsequent covers featured Joe Sakic.

I was interviewed on Fox this morning regarding this matter. Go to the link for "What's Next for Kane, Blackhawks?"

Coming Soon: The Harvard Journal of Sports and Entertainment Law

Congrats are in order for a group of Harvard Law School students for receiving their law school's approval for an official new online law journal: the Harvard Journal of Sports and Entertainment Law. The editors of HJSEL are still putting everything together, but a website should soon be up and it is anticipated that HJSEL will publish one issue in its first year, likely next spring.

While HJSEL is not yet formally accepting article submissions, you can contact one of its editors, Ashwin Krishnan, for more information about submissions. There will be also additional information on Sports Law Blog.

HJSEL has been in the works for several years. For instance, while he was a student at Harvard Law School between 2002 and 2005, Mike Zarren, who served as Editor-in-Chief of the Harvard Journal of Law and Technology and who is now the Boston Celtics Assistant Executive Director of Basketball Operations and Associate Counsel, worked on a proposal for HJSEL and also wrote an early version of the constitution and bylaws. Our blog's founder, Greg Skidmore, also was involved with efforts to start a sports law journal while he was an HLS student from 2002 to 2005. There are many other folks who deserve credit as well. Kudos to all of them and to Ashwin and the current group of students for their persistence and creativity.

It is fitting that Harvard Law School add a sports and entertainment law review, as Professor Paul Weiler is considered by many to be the founder of U.S. sports law and entertainment law. Through the Committee on Sports and Entertainment Law, HLS has also an impressive history hosting terrific sports law symposia and speakers series. The law school has also produced a number of distinguished sports attorneys, including the aforementioned Mike Zarren, Jeffrey Pash (NFL's Executive VP & General Counsel), and Derrick Jackson (Florida Marlins' VP & General Counsel), among many others.

Speaking of Harvard Law grads in sports law, congrats are also in order for Peter Carfagna, a lecturer on law at Harvard Law School (where he teaches sports law) and Partner at Calfee, Halter & Griswold. Peter, who previously served as Chief Legal Officer and General Counsel of IMG, helped the students organize their efforts to obtain approval.

Comment on Crespin v. Albuquerque Baseball Club and the Sentencing of Minor League Pitcher Julio Castillo

I think that the Crespin court is correct in its assertion in paragraph 13 that “the question before us concerns the concept of breach of duty.” New Mexico is one of the many states to adopt a form of comparative negligence, yet courts still draw on assumption of risk in baseball foul ball (or in this case a fair ball hit into a picnic area during batting practice) cases. The court looked at “the baseball rule” that basically immunizes a defendant if a screened area behind home plate is properly maintained and fans are provided access to such seating. In my class I ask students what they think about requesting that they be allowed to purchase a ticket for a protected screen area. Most of them laugh at the idea that these choice seats must be provided by the team if a fan says that it is the team’s responsibility in discharging this duty to allow the fan to purchase a ticket for an area often allocated to season ticket holders.

The majority concluded that “[w]hile the baseball rule may have made sense during the era of the all-or-nothing contributory negligence doctrine, it no longer does. Under our present tort system, we discern no public policy reason to justify bestowing immunity on the business of baseball.” (Paragraph 24). The court rejected summary judgment for the Albuquerque Isotopes and the City of Albuquerque, but they did grant summary judgment for the Houston Astros and Dave Matranga, the New Orleans Zephyrs’ player who hit the ball into the picnic area. The Zephyrs are the Astros’ AAA farm team. In holding that summary judgment is appropriate for Matranga, the court did write that an intentional act toward a spectator might change the outcome.

Judge Roderick Kennedy in his dissent argued that “the issue of whether a party owes a duty of care to another is a matter of law, not fact, and such conclusions are clearly left in the hands of New Mexico’s courts.” (Paragraph 44) Kennedy marshals a substantial list of sources to support his position that “the baseball rule” should remain the law of New Mexico.

Newspaper articles covering the decision noted an appeal by the Isotopes and the City of Albuquerque to the New Mexico Supreme Court.

Prior to reading the opinion, I was inclined toward the dissent’s position. Now I want to think through the idea of a complete bar to recovery in all cases where fans are injured outside of the screened area behind home plate. The majority opinion covers a good deal of precedent so this case might be quite useful in a class covering tort issues. I applaud the court for properly, in my opinion, looking at the case as one focused on duty and breach of duty. This is the appropriate analysis under a comparative negligence scheme that should not keep some type of assumption of risk doctrine alive. The real issue in this factual scenario seems to be the level of duty owed toward fans sitting in a picnic area in left field prior to the beginning of the game.

Last year in a game between the Dayton Dragons and the Peoria Chiefs, Chiefs pitcher Julio Castillo tried to fire a ball into the dugout during an on-field fight. The throw went high and hit 45-year-old Chris McCarthy in the head causing a concussion. Castillo was arrested and charged with felonious assault. Earlier this week, Castillo was found guilty of the assault and sentenced to 30 days in jail by Montgomery County Common Pleas Court Judge Connie Price. Castillo, from the Dominican Republic, could face an immigration problem with his work visa. Castillo is pitching for Boise this year.

Take Me Out to the Ball Game, to be Injured, in New Mexico

Via How Appealing, a New Mexico appellate court has rejected the "baseball rule" which shields stadium operators from liability for injuries to spectators. The opinion in Crespin v. Albequerque Isotopes provides an excellent discussion of the legal issues involved, including the implications of the abolition of "Assumption of Risk" suggested by the authors of the Restatement of Torts (Third) for the long-sacred rule that baseball arenas need only screen the most dangerous areas of the park to protect fans from injury. A must-read opinion for anyone interested in the intersection of torts and sports law.

Justice Sotomayor Confirmed 68 - 31

The Sports Law Blog has followed the nomination, hearings and now confirmation of Justice Sonia Sotomayor for the past several months. Today, the United States Senate confirmed Justice Sotomayor as the first Hispanic member of the United States Supreme Court and the third woman.

Justice Sotomayor received affirmative votes from 59 of the 60 Senate Democrats (Edward Kennedy did not vote due to illness) and affirmative votes from only 9 of the 40 Senate Repubicans.

Justice Sotomayor has a long history of being intimately involved in cases and decisions that impact significantly on sports and the law.

Topps and Major League Baseball To Announce Exclusive Deal Starting in 2010

Topps and Major League Baseball are ready to announce today an exclusive deal starting next year to make Topps the sole licensed producer of baseball cards according to an article by Richard Sandomir in The New York Times. The deal will return baseball cards to the era of exclusivity enjoyed by Topps for many years before Fleer was successful in opening up the market to other companies. Although Upper Deck still has a deal with the Players Association, it will lose access to the trademarks and logos of Major League Baseball. Sandomir specifically mentions in his article that Tim Brosnan, MLB’s Executive Vice President for Business, believes that the American Needle decision supports MLB’s exclusive deals with Chevrolet, MasterCard, New Era, Pepsi, and now with Topps.

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Corporate Executive Compensation and the NFL

Bank Bonus Tab: $33 Billion
Nine Lenders That Got U.S. Aid Paid at Least $1 Million Each to 5,000 Employees

Splashed across the the front page of the Wall Street Journal Friday (7.31.09) was the news that nearly $33 billion in executive and employee performance bonuses were paid out in 2008 by nine Wall Street banks that had accepted government bailout money through the TARP program. Despite near collapse and a necessary rescue from the government, nine investment banks still paid the executives and employees that presided over the catastrophic declines $32.6 billion in bonuses.

This news comes on the heels of reports on Thursday (7.23.09) that Goldman Sachs, Morgan Stanley and JPMorgan Chase had set aside dozens of billions of dollars to pay their executives and other employees for 2009 performance. On the same day that Goldman Sachs announced that it would likely (if the pace of set asides continues this year) pay its executives an average of $775,000 in 2009, more than double that of 2008 and more than bonuses paid in 2007, a report on unemployment indicated that jobless claims increased more than expected, and the Federal Reserve expects the unemployment rate to top 10 percent by year-end.

As unemployment increases on Main Street, over on Wall Street, the song seems to remain the same. Executives and employees will receive significant performance bonuses in 2009 despite receiving government bailout funds and in many instances presiding over a near collapse of the banking industry. More shocking than the plans to compensate for 2009 is the New York Attorney General Andrew Cuomo report that $32.6 billion in bonuses were paid out in the wretched economic performance year of 2008. What gives?

Common sense seems to dictate that if performance is dismal, then bonuses should match that performance (meaning, very little should be paid in bonuses). Remember, that bonuses are paid to executives and employees in addition to salary. In the the National Football League, performance bonuses are negotiated in advance between an athlete and a professional club, and those bonuses are simply not paid if the negotiated performance is not met. Many bonuses in professional sports are team based, indicating that if a team reaches a certain level of success, then bonuses will be paid to a particular player. The NFL collective bargaining agreement even breaks bonuses down for purposes of the salary cap, into "likely to be earned" bonuses and "not likely to be earned" and those bonuses count differently toward a team's overall budget and cap number. In the NFL, bonuses are paid for successful performance and are in excess to an athlete's base salary.

Apparently on Wall Street, a much different conceptualization attaches to performance bonuses than in the world of professional sports. Nine investment banks received bailout funds rather than face collapse, and then turned around in that environment of "failure," and paid bonuses to its executives and employees that presided over that dismal performance, above and beyond salary, to the tune of $33 billion. In some ways, one could interpret this payout as taxpayers (through the TARP bailout) subsidizing the performance bonuses that were paid to executives that engaged in breathtaking risk and lost badly. As would be expected, Congress is inflamed. Edolphus Towns, the chairperson of the U.S. House of Representatives investigative panel called the payouts "shocking and appalling" and announced hearings.

Those that defend paying significant bonuses in the face of failed performance typically claim the following: (1) Wall Street must pay to keep talent at their firms; (2) that only a small group of executives or employees are typically responsible for losses and it is unfair to punish employees or executives in other areas of the business.

AG Cuomo stated: "The banks say they pay for performance. . . . Yet in 2008 there was no performance and they still continued to pay out huge sums of money."

I get the argument that individuals that were not responsible for the damning losses and egregious decision making should not be held responsible or "punished" for the "sins" of the few. Still, that argument fails to appreciate the broken executive compensation system in place on Wall Street. Over and over again, Wall Street executives have shown that they exist in a much different space than the rest of America. From the AIG "retreat" to a posh resort moments after receiving bailout funds to the $33 billion in bonus payouts for 2008 performance, those that run Wall Street seem incapable of recognizing Main Street and the human suffering that continues unabated for many based almost wholly on reckless and irresponsible leadership by Wall Street executives.

What to do about executive compensation?


** Cross posted on the "Corporate Justice Blog" **
See: http://corporatejusticeblog.blogspot.com/

Plaxio Burress Indicted: Will he now turn to D.C. v. Heller?

I have a new column up on SI.com on a Manhattan grand jury indicting Plaxico Burress. Here is an excerpt:

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Today's indictment is a victory for Manhattan district attorney Robert Morgenthau and New York City Mayor Michael Bloomberg, who has repeatedly advocated that Burress be prosecuted to the fullest extent of the law. It is similarly a victory for gun control advocates and for those who believe that athletes and celebrities should not receive preferential treatment.

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Although unlikely, the trial version of a Hail Mary could come in the form of a constitutional challenge to New York law. Last year, in District of Columbia v. Heller, the U.S. Supreme Court held that the Second Amendment guarantees the right of individual U.S. citizens to keep and bear arms while at home. On the surface, it seems unlikely that Burress' legal team could use Heller to argue that New York's law also violates the Second Amendment. Heller concerned a Washington D.C. prohibition on owning certain firearms -- including in one's home -- whereas New York's law concerns possession of certain firearms outside of one's home (or place of business). Still, Burress may contend that his situation is not so dissimilar from the legal challenge brought in 2003 by D.C. resident Dick Heller. Burress could assert that both he and Heller were merely exercising their right to bear arms under the Second Amendment.

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To read the rest, click here.

Alps '09 - back again

Back again. Will be away for further two weeks but here is an update on Alps trip, slides to follow.

Saas Fee, Switzerland

Sport climb (Take it Easy) and then traverse of Dri Hornli
Ascent of Weissmeiss from Almageller hut
Traverse of Portjengrat (fabulous, but fast cos of storm approaching - 6hrs 50min hut-to-hut)

Chamonix, France

Rock climbing day
Cosmique Arete, from Midi telepherique
Ascent of Dent du Geant (in company of Kenton Cool)
Gervasutti couloir, Tour Ronde
Rock climbing Aiguille Rouge (new route - name escapes me)
Contamine Grisolle route Mont Blanc du Tacul, then up to summit of Tacul.

Videos (not mine) of Geant and Contamine routes

Contamine Grisolle
Uploaded by ezechiel11. - Discover the latest sports and extreme videos.

My guide was the excellent Chris Ensoll.

Marist University v. Matt Brady: The Legality of Non-Recruit Clauses

Over on Sienna Saints Blog, Ryan Restivo has been closely covering a lawsuit recently brought by Marist University against its former men's basektball coach, Matt Brady. Marist claims that Brady violated a contractual obligation to refrain from recruiting Sienna recruits if he were to leave Marist (which he did -- he's now coaching at James Madison University). Gabe was recently interviewed about this dispute, and Ryan interviews me for my thoughts. Here's an excerpt:

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Sienna Saints Blog: So what claims can Marist bring against Brady?

Prof. McCann: At this point, the only legal claim Marist would have is the potential breach of contract claim against Matt Brady over the clause which allegedly prevented him from recruiting players. If litigated, the claim would be examined under New York contract law. Depending on how the clause is worded, however, it may be very difficult to enforce. For instance, how does the contract define “recruiting” — does that mean any communication or does that mean certain kinds of communication? Does it mean a formal offer to play at another school? Does it mean putting a potential recruit in touch with an admissions office? If the phrase is too vague, a court would be unlikely to enforce it, particularly if the court is unable to find any other case on-point (and I’m unaware of such a coaching clause being litigated before).

A court might also void the clause on grounds of public policy, particularly since it would seem to interfere with educational opportunities for student-athletes who, because of the clause, might not be recruited by Brady’s new employer, James Madison University.

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To read the rest, click here.