New Sports Illustrated Piece on Roger Clemens and his Legal Strategy

I have a new SI.com piece tonight on Roger Clemens. It examines how the House Oversight Committee regarded Clemens' legal strategy for the proceedings. Hope you have a chance to read it.

Baseball and Union Ask Supreme Court to Review Eighth Circuit's Fantasy League Ruling

Eric Fisher of Street & Smith's SportsBusiness Daily reported today that MLBAM and the MLBPA have filed a petition for a writ of certiorari to the U.S. Supreme Court, arguing that a series of prior lower court rulings involving First Amendment and right of publicity issues have created an inconsistent mess, and that "the appropriate legal test for balancing state-law publicity rights and First Amendment interest is a recurring and important question on which this Court's instruction is needed. ... The same use of a famous person's identity will be unlawful or constitutionally protected depending upon which jurisdiction first addresses that use an outcome that is fundamentally unfair, particularly to national businesses." Fisher notes that "[t]he vast majority of petitions for a writ of certiorari are denied, particularly for civil cases such as this, and MLBAM and the union are seeking to improve their chances by arguing to the broader need of a uniform standard for right of publicity disputes." As I have argued before, the Eighth Circuit's public domain standard is simply not a workable standard for determining whether the First Amendment trumps a right of publicity claim.

In my Penn State Law Review article, which can be downloaded from here, I propose that right of publicity claims can be assessed utilizing a "commercial advantage spectrum" that incorporates First Amendment considerations. At the purely "non-commercial" end of the spectrum, the primary purpose for the defendant's use of a celebrity's identity is not to gain any commercial advantage, e.g. news reporting uses, entertainment (i.e. movies, films) and literary works, which are privileged under the First Amendment based upon either the public's right to know or the public interest in free expression. At the other end, the purely "commercial end," the celebrity's identity is being used to demonstrate to consumers that the individual is associated with, or approves of, the user or the user's product or service, e.g. advertisements, endorsements and marketing efforts, which clearly violates the right of publicity.

The confusion arises with respect to those uses that fall somewhere in between the two ends of the spectrum, which can be referred to as "quasi-commercial" uses, i.e. video game use, trading card use and fantasy league use. In my article, I propose a standard that entails a two-part inquiry:

(1) Is the celebrity's name or likeness being used for a purpose other than news reporting, entertainment (i.e. movie, film), or literary?

(2) If so, is the celebrity's name or likeness the "essence" of the product or service being produced such that the product or service is dependent upon such use for its existence?

When the content for a product or service is based almost exclusively on the celebrity's name or likeness, it is unfair and not good policy to allow the producer to reap the full commercial value of the celebrity's identity. The most efficient allocation of resources is obtained in a free market by which producers of products and services compete for the right to use celebrities' identities, and the celebrities and producers are incentivized to negotiate licensing fees based upon what the market will bear for such use.

UPDATE (2/29/08): USA Today's press release on the filing of the petition for writ of cert. states: "Using First Amendment and right of publicity arguments, MLBAM and the union have argued that players should be paid when their names are used for fantasy baseball leagues, in the same way players are paid when their names are used to endorse products. But the lower courts found that fantasy leagues' broad use of statistics isn't the same as faking an endorsement from a player and not paying him." However, USA Today's statement misconstrues both MLBAM's and the union's position as well as the lower courts' determinations, and implies that the right of publicity is only violated by fake endorsements -- which is simply false. Contrary to what is stated in this press release, neither the district court nor the court of appeals ruled as such, and MLBAM and the union are not comparing fantasy league use to endorsement use. USA Today conveniently omits that the holdings of the lower courts are inconsistent with the fact that players are paid for use of their names in non-endorsement contexts as well, such as trading cards and video games.

Second Annual National Sports and Entertainment Law Symposium

I am honored to be speaking at the Second Annual National Sports and Entertainment Law Symposium, to be held at the University of Virginia School of Law next Thursday and Friday, March 6-7. The event is sponsored by the Virginia Continuing Legal Education and the Virginia Sports and Entertainment Law Journal. Other speakers include Sports Law Blog's Chris Callanan and Gary Roberts.

The event offers 9 MCLE credit hours and 2 Ethics credit hours. If you are interested in attending, click here.

Here are more details about the event:

* * *

The best national experts in the fields of sports, entertainment, music, publishing, art, and marketing converge at the University of Virginia for a multi-track program perfect for beginners and experienced lawyers and agents alike.

An expanded day-and-a-half program, following the tremendous success of the inaugural symposium, featuring:
• A faculty of more than 25 prominent national experts, agents, academicians, professionals, and celebrities from New York, Los Angeles, and around the country
• 1½ days consisting of general topics as well as breakout sessions, including: (1) the basics of sports and entertainment representation; (2) advanced issues in sports law regulation; and (3) the latest in entertainment issues, including panels on literary publishing, issues of relevance to the music industry, making a TV deal, and challenges to artists over appropriation art
• Special panels providing complete legal updates on sports and entertainment issues
• Plenary session on merchandising deals
• Breakout session on how to represent your client in the Internet/digital age
• Lunch on March 6 and a networking cocktail party, all included
• All of the above for a bargain price of only $350 because of our partnership with the University of Virginia

WHY ATTEND?

Simply, this is quickly becoming a must-attend gathering for aspiring to experienced lawyers and agents, as well as students and academicians who focus their attention or practice in the sports/entertainment fields. This year we combine “basic knowledge” course offerings with course offerings for more sophisticated entertainment and sports law practitioners. Virginia CLE (a non-profit) combines its significant resources with those of the prestigious University of Virginia School of Law to offer this diverse and cutting-edge program in a spectacular setting (we have the entire law school to ourselves during spring break) — for only $350. No matter your goals or your current niche in practice or academia, you will leave this symposium armed with the most current information and a new set of friends and professional contacts.

COURSE SCHEDULE

THURSDAY, MARCH 6

7:30 Registration Begins

7:45 Plenary Session. The Basics of Starting an Entertainment and Sports Law Practice (Optional — NO CLE CREDIT)

Entering the field of Entertainment and Sports Law can be very exciting but also very challenging for newcomers. This panel will discuss various strategies for entering into this field, as well as how to gain important knowledge and how to attract clients and build a successful practice.

Moderator: Kirk T. Schroder
Panelists: Keven J. Davis, Michael D. Steger, Stephanie Vardavas 8:45 Opening Remarks 9:00

Breakout I. The Basics: The Fundamentals of Representing and Marketing Athletes

Moderator: Pamela R. Lester
Panelists: Anthony J. Agnone, Keven J. Davis, George K.H. Schell, Stephanie Vardavas

Breakout II. Update on Current Issues in Entertainment Law

Few experts in the field keep up with the latest trends and developments in entertainment law like Stan Soocher, Editor-in-Chief of Entertainment Law & Finance. Stan is joined by Stewart Levy, a prominent New York–based entertainment litigator for this interesting and informative panel.

Moderator: Stan Soocher
Panelist: Stewart Levy

10:45 Breakout I. The Music Industry at a Crossroads: The Topics Concerning Music Lawyers in Today’s Marketplace

What do you get when you put one of the top music lawyers from Los Angeles and one of the top music lawyers from New York together on a panel with the general counsel to the Dave Matthews Band? A rare opportunity to see music law legends get to the bottom of what the future holds for today’s music industry.

Moderator: Philip H. Goodpasture
Panelists: Jay L. Cooper, Elliot J. Groffman

Breakout II. The Art of the Television Production Deal

With the advent of reality television and more outlets to exhibit television programming, television production deals are more complicated and have more issues. This distinguished panel will discuss television production from the perspective of the producer and television network and will give entertainment lawyers important insights in the deals in today’s market.

Moderator: Bennett J. Fidlow
Panelists: Lee Bartlett, Jonathan Moonves

Breakout III. Sports: Disciplinary Rules and Procedures in Professional Sports

From off-the-field misbehavior to performance-enhancing drugs, disciplinary issues in sports have never been more at the forefront. This panel of representatives from major team and individual sports will explore the parameters of such discipline, the rationale underlying it, the legal basis supporting it, and what the future portends.

Moderator: Jill Pilgrim
Panelist: Ron Klempner

1:30 Plenary Session: Merchandising Deals — What Every Attorney Must Know

The creation of brands around celebrities associated with entertainment and sports is an important source of revenue, especially in the merchandising of such brands. This panel will discuss the basics of merchandising deals and how these deals are structured in today’s global economy. Issues regarding cross-branding, marketing, streaming media, and downloadable content also will be discussed.

Moderator: Jay L. Cooper
Panelists: Michael Krassner, Pamela R. Lester

3:15 Breakout I. The Challenges of Appropriation Art and Its Impact on the Entertainment Industry

In the visual arts, the term appropriation often refers to the use of borrowed elements in the creation of new work. When appropriation art is used in connection with the entertainment industry, it raises many gray areas in copyright law interpretation and enforcement of agreements. One of the leading lawyers in the field of the Visual Arts and former Secretary and General Counsel to the J. Paul Getty Trust, Christine Steiner of Beverly Hills will moderate a lively discussion on this hot topic. Her panel will present competing views from both the artist’s perspective and the end user’s perspective.

Moderator: Christine Steiner
Panelists: Simon Frankel, Victor Perlman

Breakout II. Sports Law Update

A concise and essential update on the latest judicial and administrative rulings during a year in which controversy surrounded nearly every sport.

Moderator: Gary R. Roberts

FRIDAY, MARCH 7

8:30 Breakout I. Practice Considerations for Lawyers Representing Clients in the Digital Age

This panel will apprise attorneys of the legal developments and approaches in the digital age. Topics will include the approach to negotiating agreements related to new technologies and how to properly identify and address important issues on behalf of clients.

Moderator: Bobby Rosenbloum

Breakout II: A Current View of Literary Publishing and the Relationship Among Authors, Publishers, Attorneys, and Agents

The negotiation of an agreement between an author and a literary publisher often is complex, especially in an era of high-profile authors and large advances. In a panel discussion moderated by Symposium Director Kirk T. Schroder, Michael Rudell, a leading literary publishing attorney, and David Black, a prominent agent, both of whom represent well-known authors, will discuss these complexities and the relationships among authors, publishers, and agents.

Moderator: Kirk T. Schroder
Panelists: David Black, Michael Rudell

Breakout III. Morals Clauses in Sports Contracts — A 2008 Primer

A leading expert in the United States — Mike McCann — leads a discussion of the most heavily negotiated aspect of any sports or entertainment contract: the morals clause, including the cutting-edge reverse morals clause. There is no single subject of greater import for the sports lawyer or agent in today’s brightly lit sports environment.

Moderator: Michael McCann
Panelists: Christopher L. Brown, Christopher Callahan, George K.H. Schell, Stephanie Vardavas

10:15 Ethical Issues: Considerations for Entertainment and Sports Lawyers

The changing nature of the entertainment and sports industries always presents important ethical and professional considerations for attorneys. This panel will discuss key considerations for attorneys when addressing ethical issues and will discuss current potential ethical matters arising from current opinions and practices.

Moderator: Martin E. Silfen 12:15 Adjourn

FACULTY

Anthony J. Agnone, Eastern Athletic Services / Hunt Valley, MD
Lee Bartlett, Executive Vice-President, Business & Legal Affairs, Fox Broadcasting / Los Angeles, CA
David Black, David Black Literary Agency / New York, NY
Christopher L. Brown, Orpheus Sports and Entertainment Consulting Company / Boston, MA
Christopher Callanan, Campbell Trial Attorneys / Boston, MA
Jay L. Cooper, Greenberg Traurig, LLP / Santa Monica, CA
Keven J. Davis, Garvey Schubert Barer / New York, NY
Bennett J. Fidlow, Schroder Fidlow, PLC / Richmond, VA
Simon Frankel, Covington & Burling / San Francisco, CA
Philip H. Goodpasture, Williams Mullen / Richmond, VA
Elliot J. Groffman, Carroll, Guido & Groffman / New York, NY
Ron Klempner, Associate General Counsel, NBA Players Association / New York, NY
Michael Krassner, Sony Signatures
Pamela R. Lester, Lester Sports and Entertainment, Inc. / Skillman, NJ
Stewart Levy, Eisenberg Tanchum & Levy / New York, NY
Michael McCann, Mississippi College School of Law; Sports Illustrated / Jackson, MS
Jonathan Moonves, Del, Shaw, Moonves, Tanaka, Finkelstein & Lezcano / Santa Monica, CA
Victor Perlman, General Counsel and Managing Director, American Society of Media Photographers, Inc. / Philadelphia, PA
Jill Pilgrim, General Counsel and Drug Testing Program Administrator, Ladies Professional Golf Association / Daytona Beach, FL
Gary R. Roberts, Dean and Gerald L. Bepko Professor of Law, Indiana University School of Law / Bloomington, IN
Bobby Rosenbloum, Greenberg Traurig, LLP / Atlanta, GA
Michael Rudell, Franklin, Weinrib, Rudell & Vassallo, P.C. / New York, NY
George K.H. Schell, Assistant General Counsel, Marketing, Trademarks and Licensing, The Coca-Cola Company / Atlanta, GA
Kirk T. Schroder, Schroder Fidlow, PLC / Richmond, VA
Martin E. Silfen, Law Office of Martin E. Silfen, P.C. / Virginia Beach, VA
Stan Soocher, Editor-in-Chief, Entertainment Law & Finance / Denver, CO
Michael D. Steger, Law Offices of Michael D. Steger, PC / New York, NY
Christine Steiner, Law Office of Christine Steiner / Los Angeles, CA
Stephanie Vardavas, Assistant General Counsel, Nike, Inc. / Beaverton, OR

Directions to Seminar Site

REGISTRATION FEES

$350.00 regular registration.
$199.00 regular registration — Thursday, March 6 only.
$159.00 regular registration — Friday, March 7 only.
$99.00 law student registration.

Alan Milstein to Speak at Syracuse University College of Law

The folks at the Entertainment and Sports Law Society at Syracuse University College of Law have let us know about a couple of upcoming speaking events: one with our friend and colleague Alan Milstein, the other with ESPN college basketball analyst Len Elmore, who is also an attorney. If you would like to attend either event, please contact Steven Saperstein, president of the society, at sbsapers@syr.edu.

Here are the details:

February 29, 2008 1 p.m.
Len Elmore, ESPN broadcaster and Attorney
Syracuse University College of Law room 275

March 5, 2008 12 p.m.
Alan Milstein, Top Sports Ligator and Sports Law Blog writer
Syracuse University College of Law room 275

Rusty Hardin Needs to Stop Talking

The latest from Rusty Hardin, Roger Clemens' lead attorney and possibly the worst example of the grandstanding lawyer we have seen in a while. Upon learning that the House Committee on Oversight and Government Reform had requested that DOJ open an investigation into possibly perjury or obstruction by his client, Hardin said:

Now we are done with the circus of public opinion, and we are moving to the courtroom, . . . Thankfully, we are now about to enter an arena where there are rules and people can be held properly accountable for outrageous statements.

Please spare me the righteous indignation. Hardin almost single-handedly created any "circus of public opinion" that he now decries. Hardin sent Clemens (or at least acquiesced in Clemens going) to the "60 Minutes" interview--specifically to win over the court of public opinion. It failed because most people who saw the interview did not believe Clemens. Then Hardin (allegedly) pushed for the congressional hearing to be held when both the chair and ranking member wanted to cancel--specifically to win over the court of public opinion by taking an oath and forcefully denying the allegations. Hardin also managed to get half the House Committee to meet privately with Clemens, hoping they would go easier on him in the hearing--thus making Clemens look better for the court of public opinion that would be watching. Both of these failed because most people who saw/heard the hearing still did not believe Clemens. And let's not forget that Hardin has basically dared DOJ to investigate Clemens by saying of the likely lead investigator that Clemens "would eat his lunch."

Everything Hardin has done for the past three months has been designed to win i the court of the public opinion. He does not mind the circus. The problem is the court of public opinion that Hardin has tried so hard to win over simply does not believe his client.

Student Fans Acting Badly

Grant Wahl at si.com decries this basketball season as the "ugliest in years" and calls on schools and conferences to take some action to get fans and fan speech under control. I have written enough about fan speech in this and other spaces that my views are pretty obvious. Jump over and read the piece to get a sense of the laundry list of incidents.

One problem is the way Wahl lumps too many dissimilar incidents together into an overall picture of bad fan behavior. Without question, threatening messages on the cell phones of players and families are out of line. So is throwing stuff at players' families--throwing stuff is not protected speech. Homophobic chants are troubling, if only for the continued (although constitutionally protected) disrespect is shows for a portion of the community. Of course, the fact that directing a homosexual epithet at an athlete is viewed by the speaker and the listener as a great insult raises some interesting sociological issues.

But I think Wahl undercuts his point by including too many examples that actually are pretty funny or clever and that certainly contain at least some level of social and political commentary. Calling attention to Maryland's low graduation rate, fans at Duke (which the mainstream media, including SI, lauds ad nauseum for their creativity) wore graduation caps and gowns and held signs reading "Fear the Classroom" and "A Mind is a Terrapin Thing to Waste." Even my wife, a Maryland fan when she pays attention, thought that was funny. Students at UNC waved "WANTED" posters with a picture of Duke's Gerald Henderson, a reference to Henderson's hard (and arguably flagrant?) foul on a UNC player last year. Fans at UAB targeted Memphis player Robert Dozier's allegedly hitting his girlfriend, with signs reading "We Beat Memphis, Not Our Girls." Some of this is offensive, sure--but offensiveness is not a ground for restricting speech.

Michigan State Coach Tom Izzo almost gets it: "I hate to say this because freedom of speech is at issue, but this isn't what freedom of speech is ­intended for." Actually, it is. But too often, we recoil when we see what freedom of speech looks (or sounds) like.

Would Legislation Providing for Mandatory Drug Testing of Professional Athletes Pass Constitutional Muster?

The answer to that question could be, and has been, the subject of an entire law review article. But I want to touch upon it today because the timing is right in light of today's hearing in front of the House Subcommittee on Commerce, Trade and Consumer Protection. In his opening statement, Chairman Bobby Rush said: "If Congress can play a role in shaping public policy to eradicate all sports at every level of these substances, then this subcommittee is prepared to act. I resent all the elitists and cultural critics who dismiss this as an issue of populist spectacle. I believe that we can move forward in a measured, deliberative and partisan manner with the legislation that seriously tackles drugs in sports." MLBPA executive director Don Fehr later said, "It should be noted that any legislation governing drug testing in private industry surely raises troubling constitutional questions."

In Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (1995), the Supreme Court addressed whether it was constitutional for a school district to adopt a policy implementing random urinalysis drug testing of student-athletes, the expressed purpose of which is "to prevent student athletes from using drugs, to protect their health and safety, and to provide drug users with assistance programs." The Supreme Court noted that "state-compelled collection and testing of urine, such as that required by the Policy, constitutes a 'search' subject to the demands of the Fourth Amendment" and that "[w]arrants cannot be issued, of course, without the showing of probable cause required by the Warrant Clause." But "[a] search unsupported by probable cause can be constitutional, we have said, 'when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.'" In upholding the constitutionality of the school district's drug testing policy, the Supreme Court also noted:

We caution against the assumption that suspicionless drug testing will readily pass constitutional muster in other contexts. The most significant element in this case is the first we discussed: that the Policy was undertaken in furtherance of the government's responsibilities, under a public school system, as guardian and tutor of children entrusted to its care.

The in loco parentis rationale -- the fact that "the subjects of the policy are (1) children, who (2) have been committed to the temporary custody of the State as schoolmaster" -- was central to the Supreme Court's determination that it met the "special needs" requirement. In other cases, the Supreme Court has found special needs in upholding suspicionless searches and seizures (1) to conduct drug testing of railroad personnel involved in train accidents, (2) to conduct random drug testing of federal customs officers who carry arms or are involved in drug interdiction, and (3) to maintain automobile checkpoints looking for illegal immigrants and contraband. Does mandatory drug testing of professional athletes satisfy the "special needs" requirement?

And from a privacy standpoint, the Supreme Court noted that "the results of the tests are disclosed only to a limited class of school personnel who have a need to know; and they are not turned over to law enforcement authorities or used for any internal disciplinary function." Well, that would obviously be a legitimate concern with federal legislation imposing mandatory testing of professional athletes.

Duke Lacrosse II: Some First Amendment Issues

Continuing my thoughts on the latest Duke lacrosse lawsuit.

One interesting feature is the role that the First Amendment might play for the defendants. Much of the conduct described in the complaint, and much of the conduct that presumably forms the basis for the players' claims against Duke and Duke officials (and to law-enforcement officials to a lesser degree), centers on all sorts of public statements that stated or suggested that some or all the players had done something wrong. Consider several categories.

1) Statements by Duke and its officials, particularly President Richard Brodhead, that implied that the players had done something wrong (including possible sexual assault and use of racist epithets) and that they were not cooperating with the investigation by hiding behind a "blue wall of silence." These statements "malign[ed] the Duke lacrosse team as a gang of hooligans that included 'two or three really bad actors.'"

2) Statements by various faculty members, most notoriously the Group of 88's editorial advertisement in April 2006 and various statements by individual professors to the media and to the public. These statements expressly stated a belief in the players guilt and the need for the players to be punished, criminally and by the university. Many of these statements were charged with overtones of race, gender, class, and privilege, the implication being that a group of privileged white males had to be punished for racist and misogynist actions. Many statements used hyperbolic, charged language, including statements likening the team party to the murder of Emmett Till--a lynching of an African-American by privileged whites. Some statements called for judgments to be imposed beyond the walls of the courtroom. Some statements referred to the lacrosse players as "white supremacists." Faculty members also called for the university immediately to condemn the team and its players. There also were some instances of in-class speech, but I will leave those for another day.

3) Several protests against the team and its members. This included a candlelight vigil outside the house in which the party occurred and another Duke-owned house in which some players lived, where the crowd chanted, among other things, "shame" and "you can't run, you can't hide" (protesters also banged on windows and doors at the latter house). There was a "pot-banging" protest outside some player residences early on a Sunday morning, with protesters wielding signs and chanting--all reflecting a belief in the guilt of at least some of the players, the collective guilt of the team as a whole for some misconduct, and a real hostility to the players. There also was a boycott planned for an upcoming (but ultimately canceled) home game, with fans holding signs reading "Don't Be a Fan of Rapists." According to the complaint, these protests were explicitly encouraged by various faculty members.

4) "WANTED" posters went up around campus, featuring photos (taken from the school web site) of 43 of the 46 white team members.

These various expressive incidents seem to form the core of four counts and Duke and its officials: 1) Intentional Infliction of Emotional Distress; 2) Breach of Duty to Protect Students from Known Dangers and Harassment; 3) Negligent Supervision of Duke Professors and Employees; and 4) Intrusion upon Seclusion.

The problem is that much of what is described in the complaint sounds and looks like constitutionally protected speech. Although much of it certainly is "hostile" (to quote the Complaint), the speech described does not look like it crosses the line into unprotected categories of true threats or incitement to violence. There is no temporal imminence necessary for incitement. The one well-known case involving "WANTED" posters, which upheld a jury award against the speakers, occurred in the context of an anti-abortion group, more explicit hints at violence, and the unique history of violence over that issue--none of which is present here. All the rhetorical hyperbole and exaggeration, racially and ethnically charged though it might be, also is protected. So is all the hostility, as long as it does not become a direct, targeted threat.

Most of this is speech on a matter of public concern: an alleged crime and misconduct by a high-profile group in the campus community, an ongoing police investigation into that crime, all of it touching on issues of race, gender, class, and privilege; this sounds like social or political speech. Most of the protesters stayed in public spaces and there is nothing per se unprotected about protesting in front of a residence. True, many faculty members and students seized on the case as a chance to further a particular political agenda--but that is what the freedom of speech is about. Finally, some of what was said or implied turned out to be false, perhaps recklessly so. For example, there are allegations that Brodhead continued to criticize the players despite having information suggesting that no rape had occurred, no racial slurs had been uttered, and that the players were cooperating with the early stages of the investigation.

Notably, however, there is no defamation claim against the university. Two reasons for this. First, there are few, if any, direct assertions of verifiably false fact; second, in any event, none of these plaintiffs could satisfy the "of and concerning" requirement for defamation. To the extent there were knowingly false assertions of fact about the players' guilt or moral culpability, these were targeted at the team as a whole; a member of even a small group typically cannot sue over false statements about that group. Calling the team a "gang of hooligans" with two or three unnamed bad actors is not actionable defamation. Moreover, defamation is not the only tort that has built-in limitations in its application to protected speech. Torts such as I/I/E/D or privacy cannot be utilized against protected speech as an end-run around the First Amendment and the limits of the actual malice requirement of New York Times v. Sullivan. Brodhead, school officials, and Duke as an entity all enjoy First Amendment liberties to speak on these matters of public concern, free from civil liability if that expression does not fall into some narrow category of unprotected speech.

Also notably, the individual professors who spoke out against the team are not named as defendants; only Duke and university officials. The theory of civil liability is that Duke is liable for the harm caused by this expression because Brodhead, et al., failed to stop these faculty members and students from engaging in this expression. If I am right that much of the speech at issue is protected, that theory of vicarious liability cannot work. If civil liability could not be imposed on a speaker for protected expression, how can it be imposed on the speaker's employee for failing to stop the speaker from engaging in that speech? That seems constitutionally perverse.

None of this is to suggest that the case as a whole fails. Just that there is a lot of stuff in this complaint and it requires serious parsing by the parties and the court. One bit of parsing must take into account the limits on civil liability imposed by the First Amendment.

WSJ Law Blog Interview of Lawyer with NCAA Enforcement Practice

The Wall Street Journal Law Blog features an interview with attorney (and former IU quarterback) Mike Glazier. Glazier took his law degree and sports background and joined the NCAA enforcement team for several years. He's subsequently built a practice representing colleges involved in NCAA investigations. HT to Above-the-Law.

Yale Law School Panel on "The Mitchell Report and Beyond: Steroids, HGH, and the Future of Baseball"

I am honored to be speaking at Yale Law School next Tuesday as part of a panel on "The Mitchell Report and Beyond: Steroids, HGH, and the Future of Baseball." The panel was put together largely through the work of Aaron Zelinsky, a 1L at Yale Law School who wrote a terrific guest entry here last month entitled "Three Strikes for the National Labor Relations Act." If you are interested in attending, please contact Aaron at aaron.zelinsky[at]gmail.com. The panel is open to the public.

Here is the official write up of the panel:

* * *

The Mitchell Report and Beyond: Steroids, HGH, and the Future of Baseball

The recently released Mitchell Report has brought national attention to the role of performance enhancing substances in baseball. From Capitol Hill to the sports pages, the conversation has focused on who did what, where, and when. This interdisciplinary panel seeks to move beyond questions about individual users and examine the Mitchell Report from a broader perspective. What did the Mitchell Report actually say? What are its implications for baseball and for other sports? How should professional sports address the issue of performance enhancing substances in the future? The panelists will tackle these issues from medical, legal, business, and media perspectives.

Tuesday March 4, 5pm

Sterling Law Building, Room 122

Dean Harold Koh (Moderator) (M.A. Oxford '96, J.D. Harvard '80). Dean Koh is the Dean of Yale Law School and Gerard C. and Bernice Latrobe Smith Professor of International Law. He is also a longtime Red Sox fan.

Jim Golen (MSL '99) Jimmy Golen has been a reporter for The Associated Press for almost 20 years, covering sports in Boston for the world's largest newsgathering organization since 1995. He has covered five Super Bowls, three Olympics and three World Series, including the Red Sox victories in 2004 and '07. Previously, he worked for the AP in New York, Minneapolis, Baton Rouge, La., and Buffalo, N.Y.

Dr. Peter Jokl (YSM '68, Yale College '64) Dr. Jokl is Professor and Vice-Chairman of the Yale Department of Orthopaedics and Rehabilitation and the Section Chief of Yale Sports Medicine. He is the former President of the American Academy of Sports Physicians

Joe Ravitch (YLS '88) managing director in the Investment Banking Division of Goldman Sachs with responsibility for the media and entertainment sector within the firm's Telecom, Media and Technology (TMT) Group. Ravitch works with many of the large diversified entertainment companies around the world.

Prof. Michael McCann (J.D. UVA '02, LL.M. Harvard '05). Assistant Professor of Law, Mississippi College School of Law; Visiting Professor of Law, Boston College Law School (Fall 2008); Associate Professor of Law, Vermont Law School (Spring 2008 and beyond). Author of "Sports and the Law" column on SI.com. Legal expert for Sports Illustrated and SI.com stories. Chair, AALS Section on Sports and the Law. Contributor, Sports Law Blog.

Another Duke Lacrosse Suit

Back in October, I wrote about the § 1983 lawsuit filed by the three Duke lacrosse players who were indicted in 2006 on charges of gang-raping an exotic dancer, then exonerated when it became clear the woman had fabricated the story and the district attorney (subsequently disbarred and convicted of criminal contempt) had repeatedly lied to the court and attempted to conceal exculpatory evidence. Last week, other members of the team (none of whom were indicted) filed their own civil action in federal court, against Duke University and several members of the university administration, most prominently president Richard Brodhead; Duke University Health Services, owner of Duke University Medical Center, where the complainant had been treated following the alleged attack, and two medical staffers who examined the woman and allegedly provided false information about the results of the exam; and a variety of Durham County law enforcement officials. There are 27 counts, involving constitutional and state tort claims. The three indicted players reached a settlement with the university last year before any lawsuit was filed.

I have a particular interest in this lawsuit, and the Duke lacrosse mess as a whole. I have organized and am moderating a panel at this summer's Southeastern Association of Law Schools Annual Meeting in Palm Beach called "The Phases and Faces of the Duke Lacrosse Controversy," which will examine the wide range of legal issues arising from this controversy.

Anyway, some initial thoughts. I will write more on the complaint later this week.

1) The complaint is 237 pages and 747 paragraphs. So much for a short and plain statement of the claim showing that the pleader is entitled to relief. Actually, this is a good example of litigation as press release that Beth Thornburg describes in writing about another hot sports lawsuit--West Virginia University against former football coach Rich Rodriguez. A pleading becomes as much about telling a story to the public and trying to win the community over as about giving notice to the court and to the defendants about the nature of the claims and the surrounding circumstances. This complaint recounts the full story of the Duke lacrosse mess in exacting detail, highlighting all the wrongdoing by various defendants--without necessarily linking that conduct to any legal right or duty to a particular plaintiff.

2) Former DA Mike Nifong is not a named defendant, despite being at the heart of all of this. Nifong filed for bankruptcy recently, imposing an automatic stay on any litigation naming him as a defendant. These plaintiffs thus did not include him as a defendant. But they argue that his misconduct is attributable to the City of Durham, which is a named defendant. This, by the way, could have a major effect on the action filed by the three indicted players, since their case is all about Nifong and his actions as the person who took (apparently unprecedented) control over the entire investigation.

3) There is an interesting version of cause-and-effect presented in the Complaint. The plaintiffs allege that Nifong (and implicitly the other defendants, especially the university) did not cause the media frenzy that surrounded the case. Rather, they all reacted to it and that media frenzy somewhat explains the subsequent Nifong's behavior--he needed to press the case to look good for the press and to satisfy the public aroused by the story. Implicit in the complaint is a similar argument that the Duke administration also reacted against the players when pressure from the media and from faculty and student activists reached a fever pitch.

4) Plaintiffs assert constitutional claims against Duke and its administrators and employees. But I do not see how these defendants are state actors. The basic notion is that the hospital staff and university officials cooperated with government in its investigation by: providing information to law enforcement, some of which was either false or unlawfully released; withholding or speaking out to discredit exculpatory information; or making or failing to correct false statements about the case by law enforcement and others. The complaint refers to the university "acting in concert" with law enforcement and to an "agreement and meeting of the minds" as to this course of conduct--seemingly looking to establish state action via a public/private conspiracy. But based on the allegations, I do not see the necessary meeting of the minds that this test requires. Certainly the university helped law enforcement and certainly the university played a role in creating and fostering the resulting circus. But I do not see the allegations alleging anything approaching an explicit agreement to engage in obviously and blatantly unlawful conduct. Cooperation with law enforcement typically is not enough.

5) It will be potentially difficult, but also necessary, for the parties and the court to sort out precisely which plaintiffs suffered what harm from what conduct. The complaint speaks about the plaintiffs as a group suffering a deprivation of rights. But the only harm suffered in common was the cancellation of the lacrosse season (which forms the basis of one breach of contract claim against the university) and everyone being tagged with the infamy, criticism, and potential harassment that came with being part of "the lacrosse team." But I think some more direct and concrete individualized harm is going to be necessary for individual players to recover. For example, which individual players were called in and questioned by police? Which individual players were subject to improper searches or improper questioning? Which players had confidential information disclosed to law enforcement in violation of federal law? Which individual players were subject to direct threats or harassment or physical assaults or taunts at the hands of professors, classmates, and the public? Unlike the three indicted players who ultimately were forced to leave the university, the individualized harm here is not as obvious and it certainly is not clear from the complaint. Perhaps it is not necessary to break that down at the pleading stage (hey--notice pleading lives!). But it will be as the case moves forward.

The Mets in Salary Arbitration

Marty Noble, the Mets beat reporter for MLB.com, posted an interesting story, "Perez wins arbitration case: Hearing was first for Mets since Cone’s 16 years ago" on Friday analyzing the Perez decision. Noble provided a chart with all of the Mets’ hearings while noting that the team had not participated in an arbitration hearing since 1992. Cleveland (7 team victories, 6 player victories) is the only team to have a longer streak avoiding arbitration. The Indians lost to Greg Swindell and defeated Jerry Browne in 1991. Stephen Goldberg decided the Swindell arbitration, and Gil Vernon handled the Browne arbitration.

Noble offered a glimpse inside the hearing room while also commenting on the efforts of agent Scott Boras on behalf of his clients. Boras squared off against Mets general counsel David Cohen. Noble also discussed both presentations, and I quote: "Boras, who now has prevailed in 19 of 45 cases, used Erik Bedard, recently traded from the Orioles to the Mariners, as a Perez comparable in his presentation. Bedard's salary at a corresponding career point, was $7 million. The Mets presented Tomo Ohka, Jason Marquis and, primarily, Brad Penny ($5.125 million) as Perez comparables." The comparable players chosen for the presentations are rarely presented in the newspaper/web articles covering the hearings. Convincing the arbitrators that you have selected the appropriate comparable players is a key factor in winning of losing. The panel of Robert Bailey, Elizabeth Neumeier, and Steven Wolf accepted the Boras presentation as better than Cohen’s list of pitchers and his overall argument.

So, according to Noble’s tally, Boras is now 19-26 in arbitration hearings. His winning percentage of .422 is only slightly lower than the overall players’ percentage of .423 (205 arbitrations won and 279 arbitrations lost since 1974). I knew from my research that Boras once had a lengthy losing streak so I was interested to see his record because I had not yet been able to compile that information. Given the critic’s position that he often overvalues the worth of his clients, I was somewhat surprised that his record is nearly identical to the 33-year record of the players (remember there were no hearings in 1976 and 1977).

I have added the names of the arbitrators from my research to the list of Mets players who have endured arbitration with the New York National League team.

Player - Year - Player Request - Team Offer - Win - Arbitrator

Dale Murray - 1979 - $100,000 - $72,000 - Team - Herbert Northrup
Joel Youngblood - 1979 - $91,000 - $78,000 - Team - Quinn Mills
Mookie Wilson - 1983 - $325,000 - $215,000 - Player - Robert Stutz
Jesse Orosco - 1985 - $850,000 - $650,000 - Team - Raymond Goetz
Doug Sisk - 1985 - $470,000 - $275,000 - Team - Arvid Anderson
Wally Backman - 1986 - $425,000 - $325,000 - Team - Richard Bloch
Ron Darling - 1986 - $615,000 - $440,000 - Team - Roger Abrams
Ed Lynch - 1986 - $530,000 - $400,000 - Player - Thomas Christenson
Tim Teufel - 1986 - $350,000 - $200,000 - Team - Frederick Reel
Ron Darling - 1987 - $1,050,000 - $800,000 - Player - John Sands
Kevin McReynolds- 1987 - $825,000 - $625,000 - Team - Thomas Christenson
Dwight Gooden - 1988 - $1,650,000 - $1,400,000 - Team - Richard Bloch
Len Dykstra - 1989 - $575,000 - $455,000 - Player - Frederick Reel
Tim Teufel - 1989 - $590,000 - $470,000 - Player - Richard Bloch
David Cone - 1990 - $1,300,0000 - $815,000 - Player - Raymond Goetz
Jeff Musselman - 1990 - $315,000 $220,000 - Player - Thomas Roberts
David Cone - 1992 - $4,250,000 - $3,000,000 - Player - Nicholas Zumas
Kevin Elster - 1992 - $1,350,000 - $760,000 - Team - Robert Creo
Jeff Innis - 1992 - $650,000 - $355,000 - Team - Richard Kasher
Oliver Perez - 2008 - $6,500,000 - $4,725,000 - Player - Robert Bailey, Elizabeth Neumeier, Steven Wolf

David Cone, Ron Darling, and Tim Teufel all went back for a second round with the Mets. Cone won twice while Darling and Teufel split their hearings with the team. Arbitrators with multiple Mets hearings include Richard Bloch (2-1 in favor of the Mets), Thomas Christenson (1-1), Raymond Goetz (1-1), and Frederick Reel (1-1).

Full Contact: The Illinois Supreme Court Elaborates on the Contact Sports Exception in Karas

On February 22, 2008, the Illinois Supreme Court delivered an opinion found here in Karas v. Strevell, et al. Karas was injured during an ice hockey game after he was body checked from behind by two opposing players Strevell and Zimmerman (my client). Thereafter, Karas' father brought suit on behalf of his minor son against the two players, the opposing team, the referee association, and the league. The lawsuit claimed that the opposing players' conduct was willful and wanton, and the team, referees and the league had negligently and willfully and wantonly caused Karas' injury. I will not delve too far into the underlying details as Geoffrey Rapp wrote an insightful piece on this blog following the appellate court's decision, which can be found here, and also because I may have further work on this matter representing Zimmerman.

This matter was before the Illinois Supreme Court on interlocutory appeal following motions to dismiss based on the pleadings (Illinois is a fact-pleading state). In other words, we (the defendants) argued that the complaint did not sufficiently state a cause of action. The Illinois Supreme Court agreed with all defendants, but gave the plaintiff leave to amend his complaint (if he is able to do so) under the new pleading standard to survive the Contact Sports Exception.

The Contact Sports Exception in Illinois holds that if a plaintiff is injured by a co-participant while engaged in a contact sport, the same may only recover if the injury was the result of intentional or willful and wanton conduct (see Pfister v. Shusta, 167 Ill. 2d 417 (1995)).

Important holdings from this opinion by Justice Burke:

• The Contact Sports Exception is not an affirmative defense, nor does the exception require a court to explore the plaintiff's subjective awareness of the risks associated with a particular sport. Rather, the Exception defines the scope of a defendant's duty.
• In deciding if a sport qualifies under the Exception, a court must consider the nature of the sport, specifically looking at the inherent risks in said sport. If physical contact among co-participants is inherent in the game, a player owes no duty to a co-participant to avoid ordinary negligence. Again, the court will look to the objective factors of the game, not the subjective expectation of the parties.
• Ice hockey and tackle football are not only contact sports under the Exception, but are considered by the Court to be full-contact sports. The Court defines full-contact sports as sports where "physical contact between players is not simply an unavoidable byproduct of vigorous play, but is a fundamental part of the way the game is played," and as such, "[i]n these sports, holding participants liable for consciously disregarding the safety of coparticipants is problematic."
• In full contact sports, "conscious disregard for the safety of the opposing player is an inherent part of the game." Therefore, holding a player in a full-contact sport liable for violating this standard violates the underlying rationale of the Exception, and would have a chilling effect on full-contact sport participation.
• As the willful and wanton standard is both unworkable and contrary to the rationale in Pfister, a new standard is required.
• Looking to Knight v. Jewett, 3 Cal. 4th 296 (1992), the Illinois Supreme Court stated the new standard for full-contact sport liability: "a participant breaches a duty of care to a coparticipant only if the participant intentionally injures the coparticipant or engages in conduct 'totally outside the range of the ordinary activity involved in the sport.'"
• Nothing currently plead against Strevell and Zimmerman meets this standard.
• The contact sports exception also applies to organizational defendants (coaches, officials, teams, and leagues).
• To successfully plead a valid cause of action for "failing to adequately enforce the rules in an organized full-contact sport, plaintiff must allege that the defendant acted with intent to cause the injury or that the defendant engaged in conduct 'totally outside the range of ordinary activity (internal citations to Knight)' involved with coaching or officiating a sport."
• The application of the Exception to organizational defendants is not whether the organizational defendant's conduct causes a 3rd party to violate a standard of care.
• Nothing currently plead against the organizational defendants meets the new standard to overcome the Exception.

I have not yet heard if Karas plans to re-file this matter under the new standard.

Covington & Burling's Representation of both Major League Baseball and Roger Clemens

Andrew Longstreth of The American Lawyer has a very interesting piece on concerns by Major League Baseball that one of its lawfirms, Covington & Burling, has represented Roger Clemens in his current matter with the Mitchell Report and Congress. Lanny Breuer, one of the Covington's litigation partners and former special counsel to President Bill Clinton in his impeachment proceedings, has led his firm's efforts in representing Clemens. Here are a couple excerpts from the piece:

* * *

Earlier this year Covington & Burling decided to add pitcher Roger Clemens to its roster of high-profile clients. But perhaps it should have received approval from another client, Major League Baseball, first. Covington agreed to represent Clemens in the congressional steroids inquiry without getting the league’s sign-off—a potential blunder in the high-stakes world of sports league representation. According to a source familiar with the matter, Covington’s decision to represent Clemens annoyed the league. The official relationship between Major League Baseball and the firm has not changed but, according to the same source, a meeting between the two is imminent. . . .

[T]he Clemens assignment would potentially put Covington at odds with one its clients, MLB. Covington has a long history of representing professional sports leagues. Although the firm is known mostly for its work on behalf of the National Football League, it has also done some work for baseball, according to its Web site. Last year, for example, it represented baseball in connection with the launch of an MLB channel. However, Clemens’s interests appeared to be aligned against baseball. Breuer, like Hardin, would likely have to attack the Mitchell Report. Breuer apparently didn’t accept the Clemens assignment right away. In January, Hardin told The New York Times that Breuer said he had to get clearance first. “We’d talked to him, and we’d just been waiting a day or two to check out conflicts,” said Hardin. “He had no conflicts.”

* * *

For the rest of the story, click here.

Update: a reader e-mails me a good point about a separate occasion where Covington's interests may not have coincided with Major League Baseball's: "It might be worth noting also that Covington and Burling partner Andrew Jack was lead counsel for the D.C. Sports and Entertainment Commission during its negotiations with MLB over the Nationals new stadium. That stadium deal, as you probably know, was one of the most generous in sports history."

Analyzing Kelvin Sampson's Settlement: A Good Business Decision for IU

Last week on the blog, I discussed Kelvin Sampson's contract situation in the wake of Indiana's receipt of a Notice of Allegations two weeks ago from the NCAA's enforcement staff. Yesterday's $750,000 settlement between IU and Sampson, of which $550,000 is coming from an anonymous donor, is a really good business decision for IU.

First, there is the risk of losing a wrongful termination lawsuit. According to Mark Alesia of the Indianapolis Star: "IU spokesman Larry MacIntyre said the risk of losing a wrongful-termination lawsuit was the biggest reason for offering Sampson a buyout instead of firing him. MacIntyre said the school thought it could have been liable for $2 million to $3 million in a lawsuit." MacIntyre further commented, "The university is basically avoiding that for $200,000." As I mentioned in the comments to my previous post, and I also said it to Alesia, the for cause termination language in Sampson's contract with IU is much more favorable to IU than it was for OSU in Jim O'Brien's contract. That being said, just as OSU did not prevail in O'Brien's wrongful termination suit, there is always a risk that IU would not prevail either; not to mention the time, the inconvenience, the attorneys fees and the bad PR associated with ongoing litigation -- even if IU were to prevail!

There's also another risk element that may have been eliminated by a settlement. IU has until May 8 to respond to the NCAA's allegations. The case is expected to be heard on June 14 by the NCAA Committee on Infractions, and a decision regarding possible penalties against IU's basketball program would come four to eight weeks later. IU could also appeal that decision to the Infractions Appeals Committee. Sampson is most likely going to be a witness in the case. A wrongful termination lawsuit could be very contentious and ugly, and IU doesn't want an adversarial witness at the NCAA hearing who has an axe to grind. Also, the NCAA would have access to all the pleadings and testimony from a lawsuit, which might not be in IU's best interest. I'm not suggesting that IU administration and/or compliance staff were involved in any wrongdoing, but in a lawsuit you just never know what might be alleged or what information could be revealed through discovery.

UPDATE (2/25): Today, IU released the Settlement Agreement entered into between Sampson and IU, which can be accessed here. Interestingly, Section 4(a) of the agreement obligates Sampson to fully cooperate with IU with respect to any NCAA investigation, proceeding or hearing. That provision alone might be worth more than $200K.

Thoughts on the IU Player Boycott

What should we make of the almost-boycott by six senior members of the IU Basketball team? The six, including star forward D.J. White, did not show at practice Friday, to protest both the dismissal/buyout/force resignation of Head Coach Kelvin Sampson in the wake of allegations of major NCAA rules violations and the hiring of Assistant Dan Dakich, rather than assistant Ray McCallum, as interim head coach. Ultimately, it fizzled and all six traveled with the team for today's game against Northwestern (of course).

I am of several minds here. On one hand, we rightly applaud players who speak out in support of their coaches. And I have criticized judicial opinions that allowed players to be punished for speaking out for or against a coach. And I mentioned Hoosiers, where Jimmy Chitwood is depicted as a hero for standing up for Coach Dale against an entire town that wanted him fired. And I also have suggested that players should be given greater freedom when the coach who recruited them departs (at least when it is the coach skipping town on his own).

On the other hand, a school must have the ability to fire or discipline a coach whose willful (and repeated) misconduct has doomed the program to major NCAA sanctions. Perhaps the seniors, who will not be around when the hammer comes down on the program, are not concerned with that. So they were defending their coach--but in a way that inhibits any effort to make and enforce NCAA rules. Should they be applauded in the same way we applaud Jimmy Chitwood? How much say should players have in this type of situation?

Split Decision on the Final Day of Salary Arbitration

Oliver Perez won his arbitration decision today when panel members Robert Bailey, Elizabeth Neumeier, and Steven Wolf selected his figure of $6,500,000 over the Mets offer of $4,725,000.
Neumeier and Wolf were also busy yesterday with Stephen Goldberg hearing the Francisco Rodriguez case. The three arbitrators sided with the Angels in that case. Rodriguez will receive $10,000,000 for this year tying the highest awards in arbitration history with Ryan Howard and Alfonso Soriano.

Management ended up taking the title versus the players again this year. The final tally for the 8 hearings was 6 wins for management and 2 wins for the players. The two hearings move Robert Bailey’s panel decisions to 3-2 in favor of the player with Steven Wolf at an even 3-3. Stephen Goldberg is now at 25-17 in favor of the team by my count and Elizabeth Neumeier is 12-8 in favor of the team.

According to my information, there have now been 3,043 cases filed since arbitration began in 1974. This number is subject to challenge because I have been trying to reconcile different numbers in different sources for the early years. Of the 484 hearings, teams have won 279 or 58% and players have won 205 or 42%.

Francisco Rodriguez Case - Arbitrator Stephen Goldberg

The case for and against Francisco Rodriguez of the Angels was presented yesterday to the panel of Stephen Goldberg, Elizabeth Neumeier, and Steven Wolf. Prior to this hearing, Goldberg’s panel and individual record was 24-17 in favor of the team.

Goldberg’s decisions prior to three-arbitrator panels included the cases of:

Dann Billardello (1992-Padres-team won)
Jose Lind (1992-Pirates-player won)
Barry Bonds (1991-Pirates-team won)
Paul Gibson (1991-Tigers-player won)
Greg Swindell (1991-Indians-player won)
Shawon Dunston (1990-Cubs-player won)
Billy Hatcher (1990-Pirates-player won)
Bo Jackson (1990-Royals-team won)
Steve Balboni (1989-Mariners-player won)
Glenn Davis (1989-Astros-player won)
Andre Dawson (1988-Cubs-team won)
Greg Harris (1987-Rangers-player won)
Charlie Leibrandt (1987-Royals-player won)
Bill Dawley (1986-Astros-team won)
Julio Franco (1986-Indians-team won)
Leon Durham (1985-Cubs-team won)
Juan Bonilla (1984-Padres-player won)

The record of these 17 cases is 7 for the team and 10 for the players.

I still continue to check and re-check my sources because of the many data elements. My spreadsheets and individual player templates for over 3,000 players who have filed for arbitration since the process began in 1974 are drawn from newspaper reports available on Westlaw and LexisNexis. So, for instance, I have Elizabeth Neumeier’s panel record from 1999 to 2007 as 11-7 in favor of the team. The New York Times reported that the panel of Richard Bloch, Roger Kaplan, and Jerome Ross heard the 1999 Midre Cummings case instead of the Shane Andrews case. Numerous reports listed Elizabeth Neumeier as hearing her first case on the Cummings panel. However, I was unable to locate another article that corrected this listing with respect to the Andrews panel. My sources included Murray Chass, "Baseball - Arbitration Hearings; Owners Win In New Format," New York Times, February 10, 1999 (1999 WLNR 3029431). This is an important historical note because Elizabeth Neumeier was the first female baseball salary arbitrator in 1999. My complete record of newspaper sources for arbitrators stops with the 1984 season. My information for the first decade is incomplete. I hope that I will someday be able to complete and verify everything that I have. I do not expect, however, that MLB or MLBPA will want to assist me in this. It would be great for Stephen Goldberg to write about some the cases that he has handled because it would be interesting to read his reflections on some of the really interesting cases that he has heard and decided.

Steven Wolf’s panel record (2005-2008) was 2-2 after he sided with the Nationals in the Lopez decision earlier this month.

Mike DiGiovanna of the Los Angeles Times offered an interesting analysis in an article entitled "Moreno Still Hopes to Sign Rodriguez." He quoted owner Arte Moreno as wanting to reach a multiyear deal with Rodriguez. Rodriquez and the Angels are $2,500,000 apart in their figures of $10,000,000 and $12,500,000. Francisco Cordero’s 4-year, $46,000,000 deal and Mariano Rivera’s 3-year, $45,000,000 deal are factors in an analysis of the Rodriguez case. DiGiovanna offers a number of comments about the 2007 second half performance that I am sure the arbitrators heard about yesterday. I still think the Angels will win this case when the announcement comes out today.

New Sports Illustrated Piece on Roger Clemens

I have a new column on SI.com: The Road From Here: What's Next for Clemens? Probably an Indictment. I hope you have a chance to read it.

NFLPA Says NFL is Colluding

Last November, the NFLPA launched an investigation into whether the NFL’s decision to lower the debt ceiling of its 32 clubs constitutes collusion to reduce competition for players or players’ salaries (which I previously posted on the blog). In October, NFL owners voted to lower the debt ceiling (how much money a team can borrow) by $30 million, which reduces the debt ceiling to $120 million from $150 million, and to cut $1 billion of league and team debt over the next three years. This morning, Street & Smith's SportsBusiness Daily reports that the NFLPA plans to announce later today that it is has asked Special Master Stephen Burbank to overturn the NFL’s decision last fall to lower teams’ debt cap, which the the union contends is designed to dry up the cash teams need to spend on players' salaries, charging that the league violated the anti-collusion provisions of the CBA.

The league takes the position that reducing the debt cap was essentially a "business decision" in light of the current turmoil in the economy. As I noted in my November post, the NFLPA takes the position that lowering the debt ceiling could have a chilling effect on team spending for players because clubs frequently finance player compensation and signing bonuses with debt. Essentially, the union views the debt limitation as a restriction on free agency.

The NFLPA has two very strong claims in support of its position. First, the union can argue that imposing the debt limitation constitutes a breach of the anti-collusion provision in the CBA. The anti-collusion provision, which essentially prohibits the teams from acting in concert with each other with respect to the players' exercise of their free agency rights, is a necessary prerequisite in order for free agency to work properly (i.e. player salaries determined by an uninhibited free market). There is precedent that collusion does not require a "common agreement" among teams to suppress player salaries. Therefore, if, as a result of the agreement among the teams to lower the debt ceiling, teams are not able or willing to spend as much on salaries as they otherwise would in the absence of such an agreement, then the agreement violates the anti-collusion provision.

The second argument the union can make here is what I mentioned in the comments within my November post. It can be argued that lowering the debt cap constitutes a mandatory subject of collective bargaining that must be negotiated with the union and can't be unilaterally implemented by the league. Based on precedent interpreting what constitutes "wages" for purposes of mandatory subjects of collective bargaining, I don't see how the NLRB or any court could conclude that lowering the debt cap does not impact players' wages. But even if it's a permissive subject, then the league could be exposed to an antitrust lawsuit here. As a side note, MLB negotiated, and agreed to, its debt service rules with the MLBPA.

Howard Wins in Arbitration

Ryan Howard won his request for $10,000,000 from the Phillies. This represents the first hearing loss ever for the Phillies. The arbitration panel was Stephen Goldberg, Robert Bailey and Jack Clarke. According to my research, Goldberg’s panel record is 24-17 in favor of teams, and Bailey’s panels are 2-2. Clarke, who also sat on the Chien-Ming Wang panel this year, has a panel record of 9-8 in favor of players. This decision ties the record for the highest award. Previously, Alfonso Soriano was given a $10,000,000 award. However, he lost his case against the Washington Nationals in 2006 when he asked for $12,000,000.

NFL Reverses Position on Church Super Bowl Parties

According to my colleague Howard Friedman's Religion Clause blog, the NFL has reversed its position on whether churches could host "family friendly" Super Bowl parties without infringing on the league's IP rights. I blogged about the underlying dispute here. According to Howard's post,

in a Feb. 19 letter to Sen. Orrin Hatch, NFL Commissioner Roger Goodell said that starting next year, the league will not object to "live showings -- regardless of screen size -- of the Super Bowl" by religious organizations as long as the showings are free and are on premises that the church uses on a "routine and customary" basis.

Howard Decision Today - Perez and Rodriguez

Yesterday at the Renaissance Vinoy Resort and Golf Club in St. Petersburg, Florida, Ryan Howard, his father Ron, and agent Casey Close squared off against Astros president Tal Smith to see which side could convince a majority of three arbitrators that Howard either deserves the highest figure ever awarded to a first-year arbitration-eligible player ($10,000,000) or a modest raise from $900,000 to the Phillies offer of $7,000,000.

The Phillies have never lost a salary arbitration hearing. The $3,000,000 gap is considerable, and the largest in this arbitration cycle. Because Howard is a Super-2 player, Tal Smith argued that the $7,000,000 figure is more appropriate. Furthermore, with management winning all five hearings this year, I expect the Phillies and Smith will be happier today when the decision is announced. Service time, Howard’s 199 strikeouts, the drop in on-base percentage, batting average, and slugging percentage last year should also tip the scale towards the Phillies. Arbitrators have often been reluctant to award a huge increase, and that is exactly what they were asked to do in Howard’s case. There is no denying the great offensive production of the young slugger who was Rookie of the Year in 2005 and Most Valuable Player in 2006.

There were a number of fine articles posted yesterday including ones by Philadephia Inquirer columnist Jim Salisbury ("A Window on How Arbitration Works"), Bill Conlin of the Philadelphia Daily News ("Why Howard Will Win, Why He’ll Lose"), and MLB.com’s Ken Mandel, who posted a number of articles on MLB.com. Jon Heyman of si.com had some interesting inside information on the Chien-Ming Wang presentation ("Chien-Ming Wang) that underscores why it is difficult to predict outcomes when you have not heard the presentation. It is the same difficulty that one encounters when looking at appellate court decisions without consulting the briefs of counsel or, to a lesser extent, the oral arguments.

Oliver Perez of the Mets and Francisco Rodriguez of the Los Angeles Angels of Anaheim take their shots at management today. If the Howard decision goes to management as I think it will, the Mets and the Angels could produce the first-ever clean sweep of the hearings. It should be an interesting final few days.

Ohio Supreme Court Won't Hear Former Coach O'Brien's Case

The Ohio Supreme Court declined to hear the Ohio State University's appeal of a verdict in favor of former coach Jim O'Brien. For previous coverage of this dispute, see Rick's posts here and here.

State Law Barrier to the Marlins New Stadium?

Marc Edelman, a guest here and now the perma-sports-blogger at the always-entertaining Above the Law, yesterday wrote that the new deal among the Florida Marlins, the City of Miami, and Miami-Dade County to build a ballpark for the Marlins might violate the Florida Constitution. (H/T: My FIU colleague Thomas Baker).

Marc focuses on two provisions: one of which prohibits state and local governments from becoming a joint owner or from using the tax power to aid any person or private entity, the other which requires that local governments may levy taxes only for "municipal purposes" (and a 1966 Supreme Court of Florida decision holds that building a sports stadium is not a municipal purpose). This rule generally is ignored, as evidence by the many municipalities that build facilities--permanent and spring training--for teams. As Marc notes, Miami fans (and non-fans) do not like Jeffrey Loria, so if there is anyone who might prompt anti-stadium litigation, it would be him.

The more interesting question will be whether Field of Dreams holds true for Miami. Will a domed stadium and hopefully an owner now willing to spend some money once the park is in place, enable the team to draw fans? Even if a World Championship just five years ago did not? Stay tuned. And real the whole of Marc's post--a very good read.

'Tis the Weekend: University of Miami Entertainment and Sports Law Symposium

If you are not in Philadelphia or Tallahassee (coincidentally, the two cities in which I lived before I hit Miami), come to Miami (Coral Gables, actually) for the University of Miami Entertainment and Sports Law Symposium, also on Saturday.

I will be on a panel titled "Balancing Justice within Anti-Doping Regulation: Equality of Competition v. Protection of Individual Rights," along with Dennis Curran, General Counsel of the NFL; Anthony J. Agnone of Eastern Athletic Services; and Matthew S. Barnett, outside counsel to USADA. There also is a panel on the Rooney Rule, which should be interesting in light of the NCAA's recent adoption of a similar rule for football.

Villanova Sports Law Symposium This Weekend

If you aren't in sunny Florida to hear Mike this weekend, I will be participating in the Villanova Sports and Entertainment Law Journal's Symposium, "Sports and Technology: Internet Subs Out Traditional Media." I'll be sitting on a panel alongside The Sports Law Professor Jeff Standen and Professor Matt Parlow (soon to be of Marquette Law School). We'll be sharing perspectives on Major League Baseball's recent partnership with StubHub. I plan to publish a version of my contribution at some point, and will make that available on line when it is ready.

FSU College of Law Entertainment, Arts, and Sports Society 5th Annual Conference

I look forward to speaking at the Florida State University College of Law Entertainment, Arts, & Sports Law Society's (EASL) 5th Annual Conference this Saturday, February 23, 2008. The conference will commence at 11:00 a.m. in the Florida State College of Law Rotunda. It will consist of discussions comprised of entertainment, sports, and arts lawyers, managers record label owners, industry professionals, professors, and agents.

I'll serve on a panel with former Baltimore Ravens pro bowl linebacker Peter Boulware (the 4th overall pick in the 1997 NFL draft), former Liberty University athletic director Thom Park, and current FSU compliance director and former Notre Dame running back Bob Minnix to discuss the topic of "criminal and league resolutions to athletes on the stand." We'll examine athletes getting in trouble with the law, both on the college and pro levels, and examine how pro leagues and the NCAA have tended to react to their troubles.

One specific topic I suspect will be raised is how differently the NFL treated the respective legal problems of Ray Lewis, a former teammate of Boulware, and Michael Vick. Lewis was indicted for two murders in 2000, and yet was not suspended by the NFL, nor was he suspended when he pled guilty to obstruction of justice relating to those charges. In contrast, Vick was told he would be suspended even before he pled guilty to the dog fighting charges. We took up that topic and its connection to the new NFL player conduct policy in a post last August.

Congrats to the EASL's 2007-08 Executive Board for putting this conference together. For a list of other speakers, click here. It should be a great event and if you are in the Tallahassee area, I hope that you can attend.

Management Moves to 5-0 in Hearings With Houston Win Over Loretta

The Houston Astros won their second hearing in five days by defeating Mark Loretta in salary arbitration today. The owners now hold a spotless 5-0 record against the players this year, and they could easily win the final three cases. Regardless of those results, the win against Loretta means that management now has a twelve year winning streak. In 1996, the players won 7 of the 10 hearings. With the total of all hearings since 1974 moving up to 481, management has a 58% winning percentage (278 management victories, 203 player victories).

Loretta will be paid $2,750,000 rather than the $4,900,000 he requested.

His case was heard Monday by arbitrators Margaret Brogan, Stephen Goldberg, and Fredric Horowitz. Brogan’s panel record is now 3-2 in favor of the team. Goldberg’s third hearing this year pushes his panel and individual record to 24-16 in favor of the team. Horowitz was a first-time baseball salary arbitrator according to my spreadsheet.

My prediction record this year has dropped to 3-2. Loretta’s case with the Astros was challenging because of the large gap. The panel might have been bothered by Loretta’s number plus his projection as a back-up player. His highest previous salary was $5,000,000 in 2002 for the Brewers. If the arbitrators felt that Loretta was really going to be a utility infielder this year, I can see how the Houston number made sense to them. However, with his incentives last year pushing his salary to $3,500,000, the decision amounts to a pay cut. In fact, the Houston offer matches his 2005 salary with the Padres.

More on the Death of Thomas T. Roberts

As noted earlier today in a post by Geoff Rapp, Thomas T. Roberts died Wednesday, February 13, at his home in Palos Verdes Peninsula, California. Roberts was 84. Roberts was the first baseball salary arbitrator to choose a $1,000,000 request when he sided with Los Angeles Dodgers pitcher Fernando Valenzuela in 1983. The Dodgers offered $750,000.

He was probably better known for his 1988 collusion award. Of particular importance to the subject of my blogging for the past few weeks was a quotation from a 1989 presentation at a Stetson University conference on labor and employment that appeared in the Associated Press obituary. Bruce Lowitt started his article with the following quotation:

"There is a feeling ... that arbitrators have a tendency to split things, to give one to the club and the next one to the player in the hope of not offending either party so he'll be hired again. That's an illusion. A successful arbitrator doesn't pay attention to his box score, in baseball or anywhere else. The worst thing you can do as an arbitrator is get a reputation that you're trying to please people."

You can find the complete article on one of the two major legal databases: Bruce Lowitt, "Salary Umpire: Tales of an Arbitrator," St. Petersburg Times, March 4, 1989, 1C. You should really go look at the entire article because the discussion of the Valenzuela and Raines hearings are priceless.

Roberts comments at Stetson were made while he was serving as president of the National Academy of Arbitrators.

Roberts also awarded Tim Raines a record-breaking $1,200,000 salary in 1985 instead of the Montreal Expos offer of $1,000,000. However, one year earlier, he had accepted Oakland’s figure of $950,000 instead of Rickey Henderson’s request for $1,200,000.

Roberts was a native of Chicago with a bachelor’s and a law degree from Loyola University of Los Angeles.

Did Derek Jeter Receive Preferential Treatment from the NY Department of Taxation and Finance?

Professor Edward Zelinsky, a distinguished tax law expert at Cardozo Law School, has a terrific post on the Oxford University Press Blog questioning why Derek Jeter's tax settlement has not been made public.

Jeter recently entered into a deal with the NY Department of Taxation and Finance on income taxes he owed the state. No details have been revealed, and Professor Zelinsky examines potentially troubling implications of this non-disclosure. Here is an excerpt from his post:

I am nevertheless troubled by the possibility that the Department may be implementing a double standard favoring this millionaire celebrity-athlete. The Department takes a persistently hard line toward nonresidents, like me, who are not celebrities. Most notably, New York, under its so-called “convenience of the employer” rule, routinely imposes its state income tax on nonresidents for days when such nonresidents work at their out-of-state homes. While we do not know the terms of Mr. Jeter’s settlement with the New York Department of Taxation and Finance, it seems possible, perhaps likely, that the final tax treatment he negotiated is more favorable than the treatment we less famous nonresidents routinely receive from the New York tax collector. The mere fact of this settlement suggests the possibility that Mr. Jeter received more reasonable treatment from New York’s tax commissioner than the harsh treatment the New York commissioner routinely dispenses to other nonresidents.

For the rest of the post, click here. It's a fascinating read.

Baseball Arbitrator Roberts Obituary

The New York Times published the obituary today of Thomas T. Roberts, a famed baseball arbitrator. According to the obit:

In August 1986, Mr. Roberts was fired by the baseball owners’ labor arm after he ruled that teams could not negotiate drug-testing clauses with players individually; they had to deal with the players union on that issue, under a collective arrangement, he said.

At the time, Mr. Roberts was holding a hearing into players’ accusations that owners had conspired to restrict the movement of free agents after the 1985 season. The players union charged that Mr. Roberts had been dismissed to sabotage the free-agent conspiracy case, but management denied it.

Mr. Roberts was reinstated by another arbitrator, and in September 1987 he issued his finding in the conspiracy case.

Ruling on a complaint brought by the Major League Baseball Players Association, Mr. Roberts noted that after the 1985 season, no teams had sought to sign free agents unless their old clubs had lost interest in them. He termed that “a strong indication of concerted action,” something prohibited by baseball’s collective bargaining agreement.

Mr. Roberts was fired again by management after that ruling. Another arbitrator, George Nicolau, later ruled that baseball management had continued its collusion against free agents after the 1986 and 1987 seasons.

HT to the WSJ Law Blog.

Sports Law Blog vs. Other "Law Professor" Blogs

Cincy Law's Paul Caron has posted a ranking of "top" law professor blogs by traffic over the past twelve months. Only those blogs around for one year were considered, and only those with public sitemeters. Since our blog doesn't have a public sitemeter feature, we didn't make the list, but based on our traffic statistics over the past year (around 350,000 visits), we would have finished 17th on the list of law professor blogs (just behind the business law blog Conglomerate, and ahead of blogs like Opino Juris, the University of Chicago Law School Faculty Blog, and the Workplace Professor Blog). Although traffic isn't a reliable indicator of the quality of a blog, or its impact, thanks to everyone who visits our site regularly!

Astros and Loretta Today in a Hearing - Three More Slated for This Week

Representatives for Mark Loretta will argue his case before a panel of arbitrators today in the fifth hearing for this year. The teams hold a 4-0 edge, and I predicted last week that Loretta will win this one. My predictions so far are 3-1. I did not pick the Yankees-Chien-Ming Wang correctly.

Loretta is seeking $4,900,000 while the Astros countered with $2,750,000. Last year, Loretta’s base salary was $2,500,000, and he apparently earned all $1 million of the incentives when he played 133 games for Houston after Adam Everett went down with an injury after colliding with Carlos Lee. Everett is now in Minnesota. Loretta’s batting average last year was .287 with 132 hits and 52 runs scored. His on-base percentage of .352 is just 10 points below his lifetime average. He is two hits shy of 1,600 for his career. Loretta made $2,500,000 in 2004 and $2,750,000 in 2005 while playing for the Padres. During 2006, he earned $3,250,000 for the Red Sox. He also enjoyed a 3-year, $11,000,000 from the Milwaukee Brewers for 2000-2002.

The Astros will argue that he is a back-up now and should not get $4,900,000. However, he turned in 72 games at shortstop, 49 at second base, 24 at first base, and 23 at third base last year. He played 138 games at second base for the Red Sox in 2006 and over 150 games at second base twice for the Padres (2003-2004). The Astros have really revamped their infield for this year, but Loretta is still a valuable player. I would find it hard to essentially cut his salary after last year although the $4,900,000 is probably a reach. The gap here is significant, and one side is going to feel really vindicated when this one is finished. I am still leaning towards the player in this one.

There are three hearings set for this week - Ryan Howard and the Phillies (Wednesday, 2-20), Oliver Perez and the Mets (Thursday, 2-21), and Francisco Rodriguez and the Angels (Thursday, 2-21).

After reading the articles on the Chien-Ming Wang hearing, I might have discounted too much the impact of Wang being a "Super Two" and the salaries of his peers in years of service. Yankees General Manager Brian Cashman was quoted as saying "[b]ased on where the market is there is no room to go higher. The mid-point made no sense. We filed and we defended it." The panel was apparently persuaded by this position and/or other aspects of the New York presentation.

Speaking of the panels, the panel for Wang included Jack Clarke, Stephen Goldberg,
and Christine Knowlton. Goldberg is an extremely experienced baseball salary arbitrator. According to my research, Stephen Goldberg’s two decisions last week were his 38th and 39th hearings. He is now 23-16 in favor of the teams after siding with the Yankees and the Astros (versus Valverde). Jack Clarke is an even 8-8 in his 16 panel decisions. Knowlton voted for the Nationals in the Felipe Lopez case, the Yankees in the Wang case, and the Astros in the Valverde case. Her panels have voted 7-1 in favor of the teams.

The other panels and the arbitrators records are as follows:

Felipe Lopez - Team (Knowlton - 5-1 for the team, Elliot Shriftman - 10-5 for the team, Steven Wolf - 2-2)

Jose Valverde - Team (Knowlton - 7-1 for the team, Goldberg - 23-16 for the team, and newcomer Sylvia Skratek - 1-0 for the team)

Brian Fuentes - Team (Robert Bailey - 2-1 for the team, Dan Brent - 11-4 for the team, and Shriftman - 11-5 for the team)

Of the 48 players who exchange numbers, 40 have settled, 4 have completed hearings with decisions, and 4 are still waiting for a hearing or to reach an agreement. There is a strong chance that Howard, Perez, and Rodriguez will all go proceed to hearings. Ten of the 40 who have settled were rewarded with multiyear deals. Two players and teams settled above the midpoint, 7 at the midpoint, and 21 below the midpoint.