Do You Believe He Can Fly? Royce White and Reasonable Accommodations Under the Americans with Disabilities Act for NBA Players with Phobias

I have posted on SSRN an early draft of my forthcoming article in the Pepperdine Law Review: Do You Believe He Can Fly? Royce White and Reasonable Accommodations Under the Americans with Disabilities Act for NBA Players with Phobias.

The article is about Royce White, who is expected to be selected in the first round of tonight's NBA draft (rumors are the Celtics will pick him, though other teams are interested), and what impact his severe fear of flying will have on his NBA career. The article also considers the legal mechanisms that may be available to White under the Americans with Disabilities Act.

Here's an excerpt:

If fear of flying constitutes a disability for White under the ADA, he could argue that the NBA or his team should accept any reasonable request for accommodation. They may disagree about what constitutes "reasonable". Allowing White to take a train from Boston to New York City, or even a ship to Europe, would probably be reasonable so long as White does not miss meetings, practices or games. Then again, White as a rookie traveling alone, might not gain valuable insight from conversations with coaches and teammates or develop camaraderie with them.

Seemingly less reasonable would be allowing White to miss a road trip. Unless he is injured, suspended or assigned to the D-League (the NBA's minor league), White will be contractually obligated to play 82 regular season games, along with four to six pre-season games, up to 28 postseason games, and possibly a handful of summer league games. No player signs a standard contract to play in "some games." Consider the impact of such an arrangement on White's coach: if White's only an occasional player, his coach might struggle to set his rotation. On the other hand, professional leagues have carved out exceptions for players to miss road games. This has been true of NBA players recovering from injury. Gilbert Arenas, returning from a knee injury in 2009, was allowed a flexible schedule whereby he would play in all home games but only some road games. Other circumstances have led to similar arrangements. Last year the Central Hockey League allowed Rapid City Rush forward Brett Nylander, a second lieutenant in the Air Force, to only play home games because his military service limited travel.

Hope you have a chance to read this early draft and email me thoughts.

Age of Entry and NBA Success

Jun Woo Kim and I recently published a (non-legal) statistical article in the Journal of Quantitative Analysis in Sports that looks at age and NBA success. A link to the article can be found here. The abstract is below:

The NBA’s age eligibility rule is controversial. To examine the on-court efficacy of the NBA’s age eligibility rule, we test the effect of age of entry on NBA career performance. Our data set comprises the 332players selected in the first round of the NBA draft from 1989 and 2000. Using censored normal regression models, we found that players drafted at a relatively younger age have more successful NBA careers across three different metrics. To explore a beneficial effect of one year in college, group selection bias tests were conducted by comparing differences in career success between quasi-“one-and-done” players and players who entered the NBA straight out of high school. The results were consistent with our main analyses – players who moved into the NBA directly from high school generally perform better than players with a single year of college experience. We find no systematic evidence in support of the on-court efficacy of the NBA’s age eligibility rule.

Will The NBA's One-and-Done Rule Face Legal Challenge?

Myron Medcalf of ESPN.com has an extensive article on the NBA's minimum age requirement, which requires that U.S. players be 19-years-old plus one year removed from high school. He interviews several people for it, including such notable persons as Mike Krzyzewski, Mark Emmert, Rick Pitino, and Spencer Haywood, and far less notable persons, including me.

Here are my thoughts in the article:

Michael McCann, director of the Sports Law Institute at Vermont Law School, helped Maurice Clarett in his unsuccessful bid to enter the 2004 NFL draft after his freshman season at Ohio State.

He's an opponent of the current age requirement for NBA draft picks and conducted a study 10 years ago that revealed four-year players and high school athletes faced similar struggles as they transitioned to the NBA.

"A lot of players, relatively high draft picks who played four years of college, have struggled," McCann said. "I think that's because the college game is so much different."

If the NBA moves toward a two-year rule for players coming out of high school, more players might consider challenging the NBA's minimum age requirement on legal grounds. Although Haywood challenged the NBA alone, today's climate and the union protection attached to the rule might require a class-action lawsuit to gain any traction in the courts, McCann said.

"In terms of the NBA, if it were two years, maybe we would see more players come forward, feeling like it's worth challenging the age limit," he said. "The fact that it's only one year, a lot of players probably calculate that it's not enough to file a lawsuit against the league."

To read the rest, click here.

MLB's Paternity Leave List

MLB's new CBA has an interesting provision: a three-day paternity leave list. It allows a team to replace a player on its active roster for up to three days after having a child. MSNBC's Jacoba Urist has an excellent piece on the social and legal significance of this new policy.

Here's an excerpt:

By placing paternity leave squarely in the news (especially on sports sites that don’t usually cover pregnancy and parenting), and allowing players to take a bit of time from their grueling schedule to be with their new babies, Major League Baseball might be helping to pave the way for all the normal guys out there to ask for a week or two when their wives give birth.

To read the rest, click here.

Choosing your own decisionmaking process

At Sunday's Olympic Trials in the women's 100m, there was a tie for third place (the final spot on the team). And now the question is how to break the tie, with the options being a coin flip or a run-off between the two women, Allyson Felix and Jeneba Tarmoh. But it gets more complicated, because the choice is delegated to the runners: If they agree on a process, they use that. If they disagree on their preferences, they use a run-off. And if no one expresses a preference, they use a coin flip.

This raises a couple of interesting issues:

1) As discussed here, Olympic officials have avoided making a decision (and having to provide reasons for the decision) by delegating the choice to the participants, something judges typically are unable to do.

2) Is there any doubt that world-class athletes will choose the run-off? And, if so, why? Is it fear of randomness? Is there something unique about professional athletes?

3) Note the game theory element to this. If they state a preference and disagree, it's a run-off; if one or both decline to state a preference, it's a coin flip.

New Sports Law Scholarship

Recently published scholarship includes:

Douglas E. Abrams, Player safety in youth sports: sportsmanship and respect as an injury-prevention strategy, 22 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 1 (2012)

Roger I. Abrams, Early baseball and the urban political machine, 5 ALBANY GOVERNMENT LAW REVIEW 1 (2012)

Gene W. Allen, Negotiating, drafting, and implementing naming rights agreements, 86 NORTH DAKOTA LAW REVIEW 789 (2010)

Thomas A. Baker III et al., Football v. Football: A Comparison of Agent Regulation in France’s Ligue 1 and the National Football League, 2 PACE INTELLECTUAL PROPERTY, SPORTS & ENTERTAINMENT LAW FORUM 1 (2012)

Emily Battersby & Wolfgang G. Robinson, Paradise lost: media in injustice and injustice in media, 22 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 29 (2012)

Raymond Belliotti, Billy Martin and jurisprudence: revisiting the Pine Tar Case, 5 ALBANY GOVERNMENT LAW REVIEW. 210 (2012)

Christian H. & Howard W. Brill, Take me out to the hearing: Major League Baseball players before Congress, 5 ALBANY GOVERNMENT LAW REVIEW 90 (2012)

Winston J. Busby, Comment, Playing for love: why the NCAA rules must require a knowledge-intent element to affect the eligibility of student-athletes, 42 CUMBERLAND LAW REVIEW 135 (2011-2012)

Michele Colucci, & Arnout Geeraert, The “social dialogue” in European professional football, 33 COMPARATIVE LABOR LAW & POLICY JOURNAL 203 (2012)

Marc Edelman, Upon further review: will the NFL’s trademark licensing practices survive full antitrust scrutiny? The remand of American Needle, 16 STANFORD JOURNAL OF LAW, BUSINESS & FINANCE 183 (2011)

Ed Edmonds, Arthur Soden’s legacy: the origins and early history of baseball’s reserve system, 5 ALBANY GOVERNMENT LAW REVIEW 38 (2012)

Gabe Feldman, Brady v. NFL and Anthony v. NBA: The shifting dynamics in labor-management relations in professional sports, 86 TULANE LAW REVIEW 831 (2012)

Michael J. Fabrega, Comment, The California Supreme Court’s insertion of a no-duty rule into the field of sports torts: a futile exercise achieving inequitable results, 33 WHITTIER LAW REVIEW 181 (2011)

David Fagundes, Talk derby to me: intellectual property norms governing roller derby pseudonyms, 90 TEXAS LAW REVIEW 1093 (2012)

Henry D. Fetter, From flood to free agency: the Messersmith-McNally arbitration reconsidered, 5 ALBANY GOVERNMENT LAW REVIEW 156 (2012)

Joseph Z. Fleming, “Just like umpires”: why Chief Justice Roberts correctly relied on baseball to describe the Supreme Court of the United States, 5 ALBANY GOVERNMENT LAW REVIEW 286 (2012)

Matthew J. Frankel, Secret sabermetrics: trade secret protection in the baseball analytics field, 5 ALBANY GOVERNMENT LAW REVIEW 240 (2012)

Daniel Gandert & Fabian Ronisky, American professional sports is a doper’s paradise: it’s time we make a change, 86 NORTH DAKOTA LAW REVIEW 813 (2010)

Elisia J.P. Gatman, Academic exploitation: the adverse impact of college athletics on the educational success of minority student-athletes, 10 SEATTLE JOURNAL FOR SOCIAL JUSTICE 509 (2011)

Neil Gibson, Note, NCAA scholarship restrictions as anticompetitive measures: the one-year rule and scholarship caps as avenues for antitrust scrutiny, 3 WILLIAM & MARY BUSINESS LAW REVIEW 203 (2012)

James R. Hoy, Constitutional law—separation of powers: the North Dakota Supreme Court balances the constitutional authority of the State Board of Higher Education, the State Legislature, and the judiciary, 86 NORTH DAKOTA LAW REVIEW 905 (2010)

J. Gordon Hylton, Before Redskins were the Redskins: the use of Native American team names in the formative era of American sports, 1857-1933, 86 NORTH DAKOTA LAW REVIEW 879 (2010)

Christopher Immormino, Note, I’m gonna knock you out: why physical force is a legitimate form of dispute resolution, 27 OHIO STATE JOURNAL ON DISPUTE RESOLUTION 207 (2012)

Suzanne Janusz, Comment, The NFL’s strict enforcement of its personal conduct policy for crimes against women: a useful tool for combating violence or an attempt to punish morality?, 22 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW. 93 (2012)

Eric E. Johnson, The NFL, intellectual property, and the conquest of sports media, 86 NORTH DAKOTA LAW REVIEW 759 (2010)

Allison A. Kotula, Note, A win-win scenario: using the gold standard to improve the World Cup’s Green Goal Initiative, 36 WILLIAM & MARY ENVIRONMENTAL LAW & POLICY REVIEW 565 (2012)

Michael H. LeRoy, The narcotic effect of antitrust law in professional sports: how the Sherman Act subverts collective bargaining, 86 TULANE LAW REVIEW 859 (2012)

Martin L. Levy, High school baseball, the NCAA, and Major League Baseball: “a reality show”, 5 ALBANY GOVERNMENT LAW REVIEW 332 (2012)

Morgan Marcus, Comment, A delayed penalty: the implications of the Ilya Kovalchuk arbitration decision on the National Hockey League, 45 JOHN MARSHALL LAW REVIEW 145 (2011)

John R. Maney, Train wreck (of the I-AA), 14 VANDERBILT JOURNAL OF ENTERTAINMENT AND TECHNOLOGY LAW 279 (2012)

Patrick J. McAndrews, Keeping score: how universities can comply with Title IX without eliminating men’s collegiate athletic programs, 2012 BRIGHAM YOUNG UNIVERSITY EDUCATION & LAW JOURNAL 111.

Christopher McNair, Note, Edward C. v. City of Albuquerque: the New Mexico Supreme Court balks on the baseball rule, 41 NEW MEXICO LAW REVIEW 539 (2011)

Charles S. Michels, Note, Major League Baseball and the National Collegiate Athletic Association: private lotteries and enforceable contracts, 14 VANDERBILT JOURNAL OF ENTERTAINMENT AND TECHNOLOGY LAW 395 (2012)

Matthew J. Mitten, From Dallas Cap to American Needle and beyond: antitrust law’s limited capacity to stitch consumer harm from professional sports club trademark monopolies, 86 TULANE LAW REVIEW 901 (2012)

Jeffrey Mongiello, Student article, Title II and high school athletics age limits: individualized assessments for student-athletes with disabilities after Martin, 89 UNIVERSITY OF DETROIT MERCY LAW REVIEW 35 (2011)

Jason Navia, Comment, Sitting on the bench: the failure of youth football helmet regulation and the necessity of government intervention, 64 ADMINISTRATIVE LAW REVIEW 265 (2012)

Timothy G. Nelson, Comment, Flag on the play: the ineffectiveness of athlete-agent laws and regulations—and how North Carolina can take advantage of a scandal to be a model for reform, 90 NORTH CAROLINA LAW REVIEW 800 (2012)

Jerry R. Parkinson, Scoundrels: an inside look at the NCAA infractions and enforcement processes, 12 WYOMING LAW REVIEW 215 (2012)

Brett H. Pavony & Jaia Thomas, For the Love of the Name: Professional Athletes Seek Trademark Protection, 2 PACE INTELLECTUAL PROPERTY, SPORTS & ENTERTAINMENT LAW FORUM 153 (2012)

Mary Margaret Penrose, Tattoos, tickets, and other tawdry behavior: how universities use federal law to hide their scandals, 33 CARDOZO LAW REVIEW 1555 (2012)

Jason J. Ranjo, Note, Game over?: the potential demise of the Professional and Amateur Sports Protection Act, 42 RUTGERS LAW JOURNAL 213 (2010)

Michael Rosen, Constitutional implications of Title IX compliance in colleges and universities, 18 CARDOZO JOURNAL OF LAW & GENDER 503 (2012)

Stephen F. Ross, Radical reform of intercollegiate athletics: antitrust and public policy implications, 86 TULANE LAW REVIEW 933 (2012)

Arline F. Schubert, A taxpayer’s and a politician’s dilemma: use of eminent domain to acquire private property for sport facilities, 86 NORTH DAKOTA LAW REVIEW 845 (2010)

Grant H. Shaft, Implementing the settlement of State of North Dakota v. National Collegiate Athletic Association, 86 NORTH DAKOTA LAW REVIEW 747 (2010)

David L. Snyder, The Cobra’s contract: revisiting Dave Parker’s 1979 contract with the Pittsburg Pirates, 5 ALBANY GOVERNMENT LAW REVIEW, 188 (2012)

Wayne Stenehjem, & Matthew Sagsveen, Let’s go sue: the Attorney General’s historical perspective on State of North Dakota v. National Collegiate Athletic Association, 86 NORTH DAKOTA LAW REVIEW 711 (2010)

John Thorn, 2011 Edward C. Sobota Memorial Lecture. It’s a wise child that knows its father: a search for baseball’s origin, 5 ALBANY GOVERNMENT LAW REVIEW 27 (2012)

Anthony Torrente, The dark side of professional baseball: the fall of Barry Bonds, 5 ALBANY GOVERNMENT LAW REVIEW 352 (2012)

Davis Walsh, Note, All a Twitter: social networking, college athletes, and the First Amendment, 20 WILLIAM & MARY BILL OF RIGHTS JOURNAL 619 (2011)

Brant Webb, Unsportsmanlike conduct: curbing the trend of domestic violence in the National Football League and Major League Baseball, 20 AMERICAN UNIVERSITY JOURNAL OF GENDER, SOCIAL POLICY & LAW 741 (2012)

Jack F. Williams et al., Public financing of green cathedrals, 5 ALBANY GOVERNMENT LAW REVIEW 123 (2012)

Ray Yasser, The case for reviving the four-year deal, 86 TULANE LAW REVIEW 987 (2012)

The sports world marked today's 40th anniversary of Title IX by showing a lot of women's sports on TV, including Olympic trials in a number of sports (such as diving and track) and a marathon of WNBA games.

I also caught a new Nike ad, titled Voices. It features close-up shots of basketball players Diana Taurasi and Lisa Leslie, boxer Marlen Esperaza, and marathoner Joan Benoit Samuelson (who I still remember winning the first Olympic women's marathon in Los Angeles in 1984, wearing a white painter's cap) talking about the obstacles and challenges they faced growing up and starting to play sports (notably, each at different ages and stages of Title IX's 40-year history). Those head shots are interspersed with shots of young girls in uniform lip-synching their comments. This ad can be seen as the successor to Nike's famous 1995 If You Let Me Play (regarded by many as one of the all-time best ads). Both can be seen after the jump.

In watching them, note the new rhetoric and narrative. The earlier ad is trying to convince the viewer to let women and girls play by citing all the instrumental benefits that come with participation in sports (better grades, self-confidence, health, etc.). The new ad says that women and girls do and should play simply because they want to. Oh, and because they're really freaking good. This strikes me as progress.

Voices:

If You Let Me Play: