Constitutional law in unexpected places

For example, in George Clooney cinematic homages to His Girl Friday, every Cary Grant-Katherine Hepburn comedy, and movies depicting the minor-league backwaters of professional sports.


One of my colleagues was approached by a student in his Con Law I class, who had just seen the movie. According to the student (I have not seen the movie and probably will not until it comes out on video), one issue that arises is an attempt by Congress to regulate the new professional football league, including by requiring the teams to appoint a commissioner. (Can anyone who has seen the film confirm this?)

The ever-vigilant new law student (I always tell my 1Ls that a legal education changes the way you look at everything, even nostalgic slapstick comedy) wanted to know where Congress could get the power to tell a professional sports league how to run its business. The answer, of course, is the Commerce Clause.

But the interesting thing about that answer is that the story takes place in the 1920s, during the wild-west early days of professional football. And the prevailing view of the time was reflected in Justice Holmes' now-infamous decision in Federal Baseball Club v. National League, holding that professional baseball was not interstate commerce for purposes of the Sherman Act. And that decision at least intimates Holmes' (and the Court's) view at the time that professional sports were not interstate commerce for constitutional purposes, thus Congress lacked any power to regulate pro sports in the way apparently depicted in the movie.

Oh well. By now, we should be used to popular culture getting law mostly wrong.

Another victim of sports mascot violence

In a previous post, I discussed the interesting role of sports mascots in spectator injury cases. Assumption of risk usually bars spectators injured by batted balls at baseball games from suing the team or arena. However, there is a split on whether a spectator distracted by a mascot should be able to get around this ordinary bar.

The Tort Law Professor blog picks up the following interesting variant from the Chicago Tribune via Yahoo Sports:

A Naperville dentist called a flagrant foul on Chicago Bulls' mascot Benny the Bull on Monday, suing the team over a high-five gone awry. [The plaintiff] alleged he was sitting near courtside on Feb. 12 when he raised his arm to get a high-five from . . . the exuberant mascot in a bright red fuzzy costume. But [the plaintiff], an oral surgeon, may now wish he had settled for a fist-bump instead.

Instead of merely slapping [plaintiff's] palm, [Benny] grabbed his arm as he fell forward, hyperextending [plaintiff]'s arm and rupturing his biceps muscle . . . . "Benny's flying down the aisle, giving everybody high-fives," [plaintiff's] attorney, Shawn Kasserman, said . . . . "When he gets to [my client], he either inadvertently trips or, as part of the shtick, trips. . . . He grabbed [my client]'s arm and fell forward."

[The plaintiff] could miss as much as four months of work . . . The lawsuit claims [Benny the Bully] was negligent in either "falling forward while grabbing a fan's hand" or "running out of control" through the crowd.

Does one assume a certain risk of injury when willingly seeking to "high-five" a large fuzzy bull?

U. of Hawaii Enforces Contract Against Breaching Coach

In the first week of January, Hawaii football coach June Jones terminated his 5-year contract that expires on June 30 of this year and accepted a job worth about $2 million per year at Southern Methodist. Hawaii claims it is entitled to damages for his early termination in the amount of $400,008 (which amount represents half of his annual salary). Section 10.4 of the agreement clearly provides, "If Coach terminates this Agreement prior to June 30, 2008,...Coach shall pay to the University as liquidated damages the sum of $400,008."

Jones is now trying to get out of paying Hawaii. According to Jones' agent, Leigh Steinberg, there was an agreement with former athletics director Herman Frazier that "after three years, there would be no penalty if coach Jones were to leave the university. If that were not the case, coach Jones would always honor a contractual obligation." However, this alleged agreement with Frazier directly contradicts Section 10.2, which provides:

Coach therefore agrees, and specifically promises, not to accept employment, under any circumstances, as a men's football coach at any institution of higher education which is a member of the NCAA...requiring performance of duties prior to the expiration date of the term of this Agreement or any extension thereof, without first obtaining a written release of this Agreement or a negotiated settlement thereof in writing accepted by Coach and the University. In the event that the University releases Coach of his obligations under this Agreement, Coach shall be responsible for paying to the University liquidated damages, as set forth in Section 10.4.

Despite Sections 10.2 and 10.4, Steinberg says the matter is in the initial stages of being submitted to an arbitrator. Section 10.3 of the contract provides that disputes shall be decided in a final and binding arbitration by a mutually agreed upon arbitrator.

Jones breached his contract with Hawaii, and the contract is crystal clear that he owes $400,008. His refusal to pay Hawaii is the result of a culture that currently exists within collegiate athletics that schools won't, or shouldn't, enforce a contract against a coach who leaves for a more lucrative situation. Jones should feel fortunate that Hawaii released him from his contract, thus triggering the liquidated damages clause. Hawaii could have elected not to release him and pursue a negative injunction to prevent Jones from signing with SMU, because Jones acknowledged in his contract that the university would be irreparably harmed if he terminated early:

Coach represents to have special, exceptional and unique knowledge, skill and ability as a men's football coach, which, in addition to the future development of coaching experience at University, as well as University's special need for continuity in its men's football program, will render Coach's services unique. Coach recognizes that the loss of Coach's services to University, without University approval and release, prior to the expiration of the term of this Agreement or any renewal thereof, would cause an inherent loss to University which cannot be estimated with certainty, or fairly or adequately.

Sonny Vaccaro to Speak at Columbia University Tomorrow Night

For those of you in the New York City area, Columbia University will be hosting its second annual Sports Ethics Symposium tomorrow night from 6:30 p.m. to 10:00 p.m.. The keynote speaker will be basketball legend Sonny Vaccaro, who has recently delivered talks at Harvard Law School, Yale Law School, the University of Memphis, and the University of Maryland. Sonny's talk tomorrow will focus on the NBA's desire to raise the age limit and various issues in college sports.

Other speakers include

Chris Bevilacqua, Co-Founder, CSTV Networks/Partner, SCP Worldwide
Adolpho Birch, Vice President of Law and Labor Policy, National Football League
Gary Charles, New York Panthers/AAU Coaching Legend
Robert Lipsyte, Award-winning sports journalist
Chris Monasch, Athletic Director, St. John's University

For more details, click here.

Sports Leagues and the New Media

Good story in The New York Times (free subscription required) on the way that sports leagues are attempting to deal with changing sports media. The piece touches on some issues that we have discussed here in the past: credentialing independent bloggers and allowing them access to the locker room and other places; restricting audio and video clips on media web sites and blogs; and live blogging the games. Apparently, some members of the press have floated the idea that the First Amendment has a role to play in publicly funded stadiums, a point on which I have written and spoken a great deal.

The upshot is that leagues and the media are butting heads over the future of sports coverage. Everyone is staking out a position and the Media Law Resource Center is researching the issues for possible future litigation, including the First Amendment/state actor issues and more targeting of anti-trust exemptions. But no one quite knows where this is going to come out.

New Sports Law Scholarship

Recently published scholarship includes:

Jon Boswell, Note, Fantasy sports: a game of skill that is implicitly legal under state law, and now explicitly legal under federal law, 25 CARDOZO ARTS & ENTERTAINMENT LAW JOURNAL 1257 (2008)

Jesse Crew, Note, In Irabu’s footsteps: baseball’s posting system and the non-statutory antitrust exemption, 7 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 127 (2007)

Christian Dennie, White out full grant-in-aid: an antitrust action the NCAA cannot afford to lose, 7 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 97-125 (2007)

Robyn R. Goldstein, Note, An American in Paris: the legal framework of international sport and the implications of the World Anti-Doping Code on accused atheletes, 7 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 149 (2007)

Russell Landy, Do the Washington Redskins hate deaf people? ADA claims for the captioning of football stadiums, 15 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW 47 (2007)

Bennett Liebman, The trainer responsibility rule in horse racing, 7 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 1 (2007)

Those who don't learn from history . . .

(H/T: Andrew Sullivan)

Twice actually--history has forgotten that the 1936 Winter Games also were in Nazi Germany, in Garmisch-Partinkirchen. We also let a brutally repressive totalitarian Communist regimes host: the Soviet Union (Moscow) in 1980 (my mistake as to Munich), plus a "less repressive" Communist regime in Yugoslavia in 1984.

Historically, in fact, the goal simply was to avoid offending the host nation. Thus, in part, did U.S. Olympic Committee officials, namely head Avery Brundage, replace Marty Glickman and Sam Stoller (two Jews) with Jesse Owens and Ralph Metcalfe (two African-Americans) on the 400-yard (these were pre-metric days) team (Jews being more offensive to Hitler than blacks). And we remember Owens in part for the political context of his on-field achievements--in a sense, his greatness embarrassed the host country. This also is why the U.S. boycott of rhe Moscow games in 1980 (and the U.S.S.R.'s responsive boycott of the Los Angeles Summer Games in 1984) was such a big deal politically--it infused politics in a way that embarrassed the host country.

I have not been surprised by the ever-increasing uproar over China hosting the Games and I hope the International Olympic Committee, which made the decision, is not surprised. We are more aware of, and concerned with, human rights issues than we were even 25 years ago. There are more people, organizations, and nations talking about human rights. And, with technology, more ways to talk and hear about it. The protests and calls for boycotts that have arisen around the Torch relay, the Opening Ceremonies, and the Games themselves were inevitable. The IOC historically either had a tin ear or was too arrogant to care. That cannot be the case any longer.

Congrats to Florida Coastal and UVA Law School Softball Teams

Via TaxProf: For the second year in a row, Florida Coastal School of Law and the University of Virginia have won the annual and only mildly corrupt UVA law school softball tournament in the co-rec and men's divisions, respectively. One suspects that a certain Sports Law blogger may have contributed to the Florida Coastal victory.

Long-Term Contracts and the Coaching Carousel

Rick is right that the college coaching carousel flies in the face of everything we think we know about contract law. On the other hand, job mobility is an element of many white-collar professions, including within a university setting. If another law school needs someone to teach civil procedure, the administration might contact me about moving or visiting there and I might at least consider leaving my current school and making that move. See here for a sense of how much law faculty move around, including out own Michael McCann. There is an expectation that a faculty member will leave School A for School B and that School A will replace her with someone recruited from School Z. This is how job markets work.

The difference, it seems to me, is that coaches sign long-term contracts and the carousel renders these contracts farcical. As Rick notes, Travis Ford signed a seven-year contract extension, then left for a new school one week later--in other words, he performed one week of a 364-week contract. This movement arguably would be less troubling, at a visceral level, if we drop the pretense that either coach or school truly is making a long-term commitment and put coaches on one-year renewable contracts. Bring the legal landscape in line with reality--Coach Smith will be the coach at Enormous State University this year; whether he will be the coach at ESU next year depends on how the team does on the court and whether a better coaching offer comes along.

Legal Fallout from Sonics Move to Oklahoma City

I was interviewed by NPR to discuss the legal and economic implications of the Sonics upcoming move from Seattle to Oklahoma City. By a vote of 28-2 (with Dallas' Mark Cuban and Portland's Paul Allen voting no), the NBA owners voted to approve the move. Hope you have a chance to listen to the interview.

Breaching Contracts: It's Just Part of the College Coaching Biz

One week ago, Travis Ford signed a contract extension to remain at UMass for the next seven years and said, "I am excited to know that UMass is committed to building the men's basketball program back to one of the best in the East and that I will have the chance to be at the helm for many years to come." Today, one week later, Ford breached that contract and signed with Oklahoma State. UMass athletic director John McCutcheon's reaction: "It's part of the business we're in. That's just something we have to deal with is professionalism. When you have an individual as talented as coach Ford was, that represents an institution like he did, you'd be naive to think you're not going to have these situations."

I'm confused by McCutcheon's statements. Is he suggesting that it would be "unprofessional" of him if he tried to hold Ford to his contractual obligation? In other words, that it wouldn't be professional for him to say to Ford that they just agreed to a seven year deal and that he expects Ford to be bound by his promise? Why is that? And why is it "naive" to think that you can't keep another school from interfering with an existing contract?

Nothing will change so long as athletic directors continue to take the position that "it's just part of the business we're in".......

David Ortiz's Curious Start to the 2008 Season

On Monday, Geoff wrote a great piece about the legal issues of the Red Sox fan who buried a jersey of David Ortiz under the new Yankees stadium

Over on The Situationist, Jon Hanson and I take a stab at trying to explain David Ortiz's hard-to-fathom early season struggles.

We hope you check out both posts.

David Throws Two Punches at Goliath

A year ago last April, it was reported that Houston Baptist University (HBU), an NAIA school, made an application to rejoin the NCAA at the division one level, on a provisional basis. At that time, it was also reported that, because HBU was an NCAA division one school previously from 1973 to 1990, HBU would be required to wait only three years instead of the normal seven to become a full-fledged member of the NCAA. But according to HBU, after it became a provisional member last year, the NCAA notified HBU that the rule setting forth the provisional period for returning members was changed from three to seven years by an "editorial revision...(that) does not require a vote of Division 1 membership and is not a substantive change."

Last month, HBU threw its first punch by filing a lawsuit against the NCAA in state court alleging that the NCAA violated its own constitution when it informed HBU that it would have to wait the full seven years before becoming a full-fledged member. In its lawsuit, HBU asserts "such an amendment (to the constitution) would have to be voted on by the full membership and passed by a two-thirds vote" and that "the change was arbitrary, capricious, and in total disregard of its own rules and regulations."

Last week, HBU threw its second punch by filing an antitrust lawsuit against the NCAA in federal court alleging that the seven-year provisional period amounts to "an unreasonable restraint of trade" in violation of the Sherman Antitrust Act. HBU alleges that the seven-year wait has deprived it and other schools of the opportunities to compete in "highly successful and lucrative" postseason tournaments, specifically the NCAA men's basketball tournament, and that the NCAA has recently "established and sought to enforce policies that have had the intent and effect of restricting colleges from competing at all."

Whether David actually ends up defeating Goliath here remains to be seen. In the state lawsuit, one of the first issues that most likely needs to be resolved is whether HBU has standing to assert a violation of the NCAA constitution when it is not a member of the NCAA. There is a factual issue regarding when the rule was revised from three years to seven. According to the press release, an NCAA spokesman said that "information on the change was provided in writing to Houston Baptist before the school applied for membership." If the rule was revised before HBU filed its application, it might bolster a defense by the NCAA that HBU has no right to complain about the manner in which NCAA member schools conduct their business, even when it violates their own constitution and bylaws. But if the rule was revised after HBU filed its application, the standing issue becomes more problematic for the NCAA because then it can be argued that the NCAA has an obligation to all applicants to follow its rules and to not act unfairly nor arbitrarily, which would necessarily include following its rules pertaining to the procedures for amendments to the Constitution. HBU would then need to prove that the amendment to the rule regarding the provisional period for returning members was not made in accordance with the requisite procedures for amendments as set forth in its Constitution (another factual issue).

In the antitrust lawsuit, I don't think it's pertinent when the rule was revised by the NCAA. HBU is asserting that a seven year provisional period is an unreasonable restraint on HBU's ability to compete with other member schools in NCAA post-season basketball tournaments. A rule providing a provisional period before an applicant can become a full-fledged member of the NCAA constitutes a restraint on trade because the applicant is prohibited from competing in Division I athletics with all NCAA member schools. But the key question is what period of time constitutes a "reasonable" period of time, or to put it another way, whether seven years is an "unreasonable" period of time. The NCAA essentially needs to show a legitimate business reason for adopting a seven-year provisional period. Under a rule of reason analysis, the NCAA needs to demonstrate that the procompetitive effects of the rule outweigh its anticompetitive effects -- Of course, focusing on how the consumer is affected by this rule, which I have no idea how to assess. Let the jury try to figure out who the consumer is and how he, she or it is affected. You gotta love antitrust in sports....

Trespassing to Lay a Curse

An amusing story from the new Yankee stadium, where construction crews jackhammered through concrete to retrieve a David Ortiz Red Sox jersey buried there in an effort to hex the bronx bombers by Red Sox fan (and one-day stadium construction worker) Gino Castignoli.

Not amused (it seems), the Yankees will apparently seek criminal charges against Castignoli, presumably for some sort of building code violation or criminal trespass. Unfortunately for Castignoli, I think there's also an open and shut case against him for trespass to land: Any person who commits an act of entry with intent to the land of another without permission is liable to the other for trespass. Leaving a thing on land without permission can constitute the "act of entry" needed for the trespass claim. And trespass, like other intentional torts, doesn't have much of a sense of humor -- as long as there was intent, that the effort may have been a good-natured practical joke would not provide a defense.

Recoverable damages? It would seem like the Yankees could recover the expense associated with removing the jersey. Castignoli has argued that no structural damage was done, but I don't think a landowner is limited recovering removal costs / remediation expenses to situations where the removal or remediation is a structural necessity.

Would this construction worker have to pay punitive damages as well? Yankees president Randy Levine described Castignoli as someone who "had really bad motives and was trying to do a really bad thing" and the act as "a very, very bad act." Most Red Sox fans likely have actual malice when it comes to the Yankees, or at least did until the past few years, no? Does that kind of malice suffice for the "aggravation" needed to state a claim for punitive relief?

Of course, Castignoli could presumably request return of the jersey (although the Yankees intend to donate it to charity), and sell it on ebay to pay for his legal fees and damages. And maybe Red Sox nation will be kind enough to start a legal defense fund.

Florida Coastal School of Law Skills Practicum

On Friday, April 18th, the Sports Law Society at Florida Coastal School of Law will be hosting a "Skills Practicum for the In-House Counsel". The practicum will consist of three separate seminars focusing on the every day legal issues faced by in-house counsel working for professional sports organizations, and the seminars will be taught by the very people who face them. The practicum will be held in Jacksonville, Florida, in Room 465 of the law school. The event is free of charge and has been approved for a total of 3.5 general CLE credits. Registration begins at 8:45 a.m. Here is the schedule for the day:

Seminar 1 (9:00 - 10:30 a.m.): Working Through an Acquisition or Sale of Property. Len Brown, Assistant General Counsel of the PGA Tour, will discuss issues to be aware of as legal counsel working through various stages of a transaction, including the letter of intent, the due diligence process, the negotiation and execution of a purchase agreement, and the closing.

Seminar 2 (10:45 a.m. - 12:15 p.m.): Legal Issues in Sports Sponsorship and Marketing Contracts. Jeff Reel, Vice President and Assistant General Counsel for ATP Tour, Inc., will discuss the nuts and bolts of negotiating and entering sports sponsorship and marketing deals, including the product/service category and the trademark license within the sponsorship agreement, the scope of promotional rights, representations and warranties, rights of first negotiations and refusal, and nontraditional termination rights.

Seminar 3 (1:30 - 3:30 p.m.): Corporate Legal Issues Working for a Professional Sports Team. Sashi Brown, Assistant General Counsel with the Jacksonville Jaguars, will focus on corporate issues working for the Jaguars, which may include stadium leases, risk management insurance, vendor contracts, and employment matters.

For additional information, or if you plan on attending the event, please contact me at rkarcher@fcsl.edu

Harvard Law School Panel on Acquiring a Sports Franchise

The Harvard Law School Committee on Sports and Entertainment Law will be hosting a panel tomorrow (Monday, April 14) at 7:30 p.m. in Hauser 102 entitled "Acquiring a Sports Franchise." (directions to Harvard Law School/campus map).

Panelists include three transacation attorneys:

Adam Klein from Katten Muchin Rosenman

Larry Silverstein from Bingham McCutchen

Jon Bernstein from Bingham McCutchen.

Additionally, Bradley Rangell from Citibank and Tony Tavares, CEO of Sports Properties Acquisition Corp., will be speaking.

The event is open to the public. For additional information, please contact the Committee's president, Mike Menitove.

Did Clay Bennett Lie About His "Good Faith" Intent to Keep Sonics in Seattle?

Jim Brunner and Jonathan Martin of the Seattle Times have an interesting piece today on new e-mail evidence suggesting that Oklahoma City businessman Clay Bennett and other members of his SuperSonics ownership group violated the "good faith" contractual pledge to keep the franchise in Seattle. The city of Seattle has sued to keep the franchise in Seattle, while the Bennett group, which purchased the franchise in 2006 with expectations that the city would provide substantial tax dollars for a new statidum or a renovated KeyArena, intends to relocate the franchise to Oklahoma City no later than when the team's lease with the KeyArena expires in 2010. New e-mails have surfaced that appear to confirm suspicions that the Bennett group never intended to keep the franchise in Seattle.

I was interviewed for the story and hope you have a chance to check it out.

Newly Posted Paper on Racist Sports Fans

Dr. Lawrence McNamara, a Professor at England's University of Reading School of Law, has posted Sport, Spectator and Traditions of Hatred: Responding to Racist Abuse on SSRN (the article was published in 2001 in the Griffith Law Review). Here's an abstract:

This article is primarily concerned with racist abuse by spectators that is targeted at indigenous Australian footballers. My core objective is to explore some possible options for combating and eliminating racist abuse at sporting events, keeping in mind the relationships between such aims in football and racism within the community more generally. It is argued that the positive anti-racism strategies and images that have underscored the Australian Football League's (AFL) approach to on-field racist abuse need to be subjected to careful scrutiny. It is clear that currently there is simply not enough information about racist abuse by spectators at either elite or lower levels of football (or any sports) and there is no meaningful avenue of redress for players who are subjected to it. Importantly, if the community is serious about combating the traditions of racism that have characterised Australian sport, there are significant questions that need to be asked about participants' experiences of racism and racist abuse in sports and in competitions which are not conducted at the elite or professional levels.

For (Howard's) previous Sport Law Blogging on the issue, see:

Welcome Back: Mutombo, Richards, and Racist Cheering Speech

Hate Speech as Cheering Speech

Tacky or Fun?

Via ESPN, play Torch Run. No explanation necessary.

Is dousing the Olympic torch a crime (or a tort)?

On the Olympic torch's path around the world to the site of the 2008 summer Olympics, the torch has been a target of protests directed at the repressive actions of the competition's host government. China's recent crackdown on Tibetan monks has been a subject of particular concern for demonstrators, but one suspects that even without recent events, China's history (and continuing practice) of human rights violations would have spurred demonstrations.

Protesters' efforts to douse the Olympic flame -- successful several times over -- led to the amusing scene of the torch being transferred along its route inside a bus (surrounded by a phalanx of motorcycle rollerblade police) (pictured at right).

"Using the torch this way is almost a crime," said the Vice President of the International Olympics Committee, Gunilla Lindberg. I'm curious why the IOC doesn't think it is a crime. Why "almost"? I think it's also safe to say that it's a tort -- assault -- in that the person carrying the torch certainly has reason to be apprehensive of imminent offensive contact when a protestor tosses a bucket of water or a burlap bag or sprays a fire extinguisher in the torch's direction.

False/Positives: The Current State of Performance Enhancing Drugs in Sports

The West Virginia University College of Law is proud to present its Spring 2008 Forum entitled "False/Positives: The Current State of Performance Enhancing Drugs in Sports." The event will take place Wednesday, April 16, 2008 at 2:00 p.m. at the WVU Law Center in Morgantown, West Virginia.

As indicated, panelists include:

Jay K. Reisinger, Dreier LLP, Counsel to Andy Pettitte and Sammy Sosa

Larry Silverman, General Counsel, Pittsburgh Pirates

andré douglas pond cummings, Associate Professor of Law, West Virginia University College of Law

All are invited. Attendance is free and open to the general public.

Kansas, You Need to Play Hardball Now

It hasn't even been 24 hours since Kansas won the national championship and Bill Self is already talking about his contract situation -- and one that still has four years remaining on it! In an interview after the game last night, Self told ESPN that he wouldn't rule out listening to an offer from Oklahoma State: "That's my alma mater. I know people down there. But they haven't contacted me." Although Self signed a five-year contract extension last season that increased his annual compensation to more than $1.3 million with a chance to make another $350,000 each year if he meets incentives, Self told ESPN after the game that he needs to talk to KU athletic director Lew Perkins: "I want to visit with my athletic director. To be real honest with you, I love Kansas. I love my job here, and hopefully it will be a situation where I can spend a long time here. I'm certainly not looking to leave, but Lew and I got to visit. I'm sure that'll happen in the next couple days."

Enough is enough! It's time to play hardball, Lew. Tell Self that you're going to hold him to his 5 year commitment he signed last year. Tell him that if he leaves for OSU, a lawsuit will be immediately filed against both Self (for breach) and OSU (for interference with contractual relations) seeking a negative injunction preventing Self from signing with OSU. Having just won a national championship bolsters a claim of irreparable harm to KU necessary for injunctive relief, in other words, that money damages are inadequate and not ascertainable. Self may be feeling like he has a leg up on you because his contract doesn't contain a buyout provision. But ironically, the fact that Self's contract does not have a liquidated damages clause if he terminates would support a claim for injunctive relief. Moreover, courts are most likely not going to be sympathetic to Self who is already handsomely compensated. The timing is right, and KU is ideally situated, for an eager court to throw a wrench into this rapidly moving carousel of college coaches.

Rock chalk, Law Talk: Finality, Accuracy, and Appellate Review

I am against the recent over-emphasis on video evidence in court, for reasons that I and others have discussed. For me, that objection has carried over (for reasons both similar and different) into a general dislike for instant replay in sports.



Well, the difference in last night's NCAA Basketball Championship, besides Memphis' horrid free-throw shooting down the stretch, was the use of instant replay and, in essence, appellate review of a single decision. With about four minutes left in the game, Memphis guard Derrick Rose launched a fade-away jumper from right around the three-point line, with two men in his face, that banked-in and initially was called a three-pointer. But during the next timeout, the officials went to the videotape and determined (correctly, I think, based on my perception of the video) that Rose's left foot was inside the three-point-line when he left the ground (although he released the shot and landed behind the line), making it a two-pointer and taking one point from Memphis. But for that changed call, Memphis would have lead by 4 with ten seconds left and the dramatic 3-pointer by Kansas' Mario (Superintendent) Chalmers that sent the game into overtime would have been meaningless. Memphis Coach John Calipari, while not necessarily disagreeing with the officials' conclusion as to what the video showed, said after the game he would argue that this use of video should be eliminated.

The instant-replay debate implicates the long-standing policy balance among accuracy, finality, the efhttp://www.blogger.com/img/gl.link.gifficient flow of "the game," and avoidance of piecemeal review that characterizes the law of appealability. At trial, we typically draw that balance in favor of keeping things moving along, making (relatively) few decisions subject to immediate review and deferring heavily to on-the-fly decisions about singular issues, such as evidentiary and discovery ruling. That does mean some legal decisions, even legal errors, escape effective review. Had video review not been available, it would have been cold comfort to KU to announce afterwards that the game should have been one-point closer.

But the loss of accuracy is thought to be outweighed by interests in efficiency and some deference to the competence of trial judges, a view I typically share. Even more so in sports. Instant replay in football--where we have to wait 10 minutes to celebrate a touchdown while the ref stares into a hooded camera--has, I think, badly disrupted the rhythm of the sport. We did not have as blatant an interruption last, but I still would rather let the refs make their decisions and have them stand, any human error simply being part of the game.

And, by the way, I was rooting for Kansas. So pelase consider this principled, rather than results-oriented, jurisprudence.

New SI.com Column on Implications of Tammy Thomas Guilty Verdict for Barry Bonds

I have a new column on SI.com relating to the guilty verdict last Friday in the trial of former U.S. Olympic cyclist Tammy Thomas, who was convicted on perjury charges stemming from the government's investigation into BALCO. I discuss the verdict in the context of the likely trial of Barry Bonds for perjury.

Both Thomas and Bonds allegedly obtained steroids through BALCO, and both, according to the government, lied under oath when denying they used steroids. Whether the evidence against Bonds is as strong as it was against Thomas is another matter, and I take that up in the column.

Hope you have a chance to check it out.

David Katz on Effects of the NFL's CBA on Young Reserves and Veteran Journeymen

David E. Katz, a 3L at Harvard Law School, has posted an excellent article on SSRN on the NFL-NFLPA collective bargaining agreement and how it economically disadvantages young reserves and veteran journeymen. He examines why the league and players' association would pursue such a framework and what it may suggest about their next CBA, which could expire as early as 2010.

Here is an abstract from his piece, "The Veteran Premium Problem and the Effects of the NFL Collective Bargaining Agreement on the League's Reserves," which can be downloaded for free at SSRN.

NFL franchises are extremely profitable and rank as the highest valued teams in all of sports. The Collective Bargaining Agreement (CBA) attempts to maximize the league's value and profitability and share the wealth equitably between players and management by creating, among other things, free agency, a salary cap, and mandatory retirement benefits. However, the main CBA provisions along with a tradition of not guaranteeing yearly salary disadvantage young players and veteran reserves. Players are not eligible for true free agency until their fourth year in the league, dead money from signing bonus cap charges attributed to players no longer on the team limits what organizations can spend on reserves, and rising minimum salaries and retirement benefit contributions make many veterans too expensive for teams to sign. Although teams should prefer having experienced players as backups and on special teams, the NFL regulatory structure gives teams the incentive to sign young and inexperienced players to those roles.

NFL Backtracks on Debt Reduction Plan

Back in February, I discussed the NFLPA's collusion claim in response to a vote by NFL owners to lower the debt ceiling (how much money a team can borrow) by $30 million and to cut $1 billion of league and team debt over the next three years. Street & Smith's SportsBusiness Journal (subscription only) reports today that the NFL has surprisingly agreed to suspend its controversial initiative to reduce team debt, and in return the NFLPA has withdrawn its collusion complaint. According to the agreement, the union will receive 45 days notice to file a motion to stop the league if the NFL later decides to carry out the plan. The NFL's decision to now suspend the debt plan is an interesting development when the NFL had been vigorously defending the debt reduction plan as a necessary and prudent business decision in light of the existing global credit turmoil. A key piece of evidence for the union in its collusion claim was a statement made to SportsBusiness Journal by NFL finance committee chairman and New Orleans Saints owner Tom Benson shortly after the owners approved the debt reduction plan that “The union forced this, not us.”

slavery and liquidated damages clauses

Marvin A. Robon, one of University of Michigan head football coach Richard Rodriguez’s attorneys, made an astonishing claim in Morgantown, WV, during hearings being held there in connection with West Virginia University’s lawsuit against its former head coach. Robon, complaining the Rodriguez’s $4 million dollar buyout clause is “outrageous” and “just not fair” stated:

“It’s like back before the Civil War when slaves had the right to buy their freedom. A penalty of $4 million is almost like a slave from Africa trying to buy his freedom in America.”

Robon (pictured above) continued:

“I think it’s an outrageous amount. It’s just not fair and it’s not related to any damages the university is suffering.”

Robon has badly miscalculated on several fronts here. First, as Prof. Karcher discussed on this blog yesterday, buyout clauses in head coach contracts are now common place. It is the rare instance in this day and age that a new football or basketball head coach at a NCAA member institution does not sign a contract that includes a very stiff liquidated damages clause. Tom Crean just agreed to a laddered $3 million dollar buyout clause with the University of Indiana. $4 million may be outrageous to Robon, and to him “just not fair,” but it is market and the amount is not uncommon. Rodriguez agreed, upon leaving WVU, to a $4 million laddered buyout clause with the University of Michigan.

Second, in the United States of America, contractual terms agreed between parties at arm’s length remain a fundamental precept of our law. We hallow contracts in the United States. An American can contract away his or her constitutionally protected due process rights. We support, encourage and enforce contract terms that parties enter into fairly between one another. Rodriguez signed a contract that included a $4 million dollar liquidated buyout clause. West Virginia University committed in that same contract to a damages clause, where it would pay Rodriguez several million dollars if it terminated Rodriguez prior to the completion of the contract.

Last, and most egregious, Robon desecrates the memory of those who have battled against slavery and its remaining vestiges in our nation. Think Martin Luther King, Jr., Frederick Douglass and Harriett Tubman to name three. Robon trivializes the dark period of slavery in United States history and the memory of those who fought so valiantly for equality under the law. Think Thurgood Marshall, Charles Hamilton Houston and Constance Baker Motley to name three. Robon, apparently in an earnest moment, compares Rodriguez’s lucrative contract ($2 million per year) entered into with West Virginia University and its attendant buyout clause, freely negotiated at arm’s length between attorneys for both parties, to SLAVERY. Seriously?

Our United States of America continues to struggle with racial conflict and inequality. A white lawyer, representing a well paid head coach of a college game, compares an arms-length negotiated contract term and that coaches attempt to circumvent that clearly negotiated term, to buying his freedom like a slave.

The sordid Rodriguez saga has grown even nastier.

Can Large Buyouts Keep College Coaches from Jumping Ship?

How many millions does it take to keep a college coach from leaving? A $1.... A $2.... A $3.... (crunch) -- A $3. I don't know what made me think of that owl in the Tootsie Pop commercial, but that's how much new Indiana University basketball coach Tom Crean must pay IU if he leaves within the first three years. Conversely, if IU fires Crean without cause, IU's liability to him is capped at $3M. So it ends up being a two-way street. In yesterday's edition of The Indianapolis Star, Terry Hutchens and Mark Alesia provide all the details of Crean's new eight year, $18.24 million contract as well as IU's reasons for demanding such a large buyout obligation.

While it used to be that liquidated damages obligations on the part of the coach for leaving early were rarely seen in college coaches contracts, these provisions are now fairly common. And much larger buyout amounts appear to be a rapidly growing trend. For example, Rich Rodriquez had a $4M buyout with WVU, and reportedly now has the same buyout in his new contract with Michigan. Xavier basketball coach Sean Miller has a $2M buyout. Auburn football coach Tommy Tuberville's five year contract has a buyout starting at $7M if he leaves during the first year of the contract term, which then gets reduced a million each year thereafter. Former Kentucky basketball coach Tubby Smith had no buyout obligation in his contract with Kentucky when he recently left for Minnesota, but his new contract with Minnesota contains a $3M buyout in year one, $2M in year two, $1M in year three, and $500K in year four. Some coaches contracts contain liquidated damages provisions that are the same on both sides; meaning that the breaching party owes the non-breaching party an amount equal to the coach's annual salary owing through the remainder of the contract term, which could be extremely costly depending upon the amount of the coach's annual salary and the number of years left on the term of the contract.

According to IU athletics director Rick Greenspan: "I've done about a 180 on this. I used to not believe in buyouts. But I believe there are now deterrents that are important to have.'' Greenspan also knows that nowadays it's going to take more than a $500k - $1M buyout to deter a coach from leaving, because IU is paying Tom Crean's $650K buyout that Crean owes Marquette for breaking his contract there. Eventually, these much larger buyout obligations will help contain the "coaches carousel" in collegiate athletics. Les Miles has a $1.25M buyout obligation in his contract if he bolts for Michigan, and only he knows how much of a deterrent it served when he decided to stay at LSU. At some point, the economics are such that leaving early can become virtually impossible for the individual coach to afford, and it doesn't make good business sense for the new school to pay the coach's buyout obligation on his behalf either.

When animals attack...are baseball stadiums liable?

In a sign that a new curse may have descended on Fenway Park, a raptor attacked a 13-year old fan at Fenway park yesterday. The hawk descended upon the fan, who was on a tour of the park, and drew blood from her scalp.

Birds of prey have harmed fans at games before (and been sued for doing so), but those birds have generally been of the fluffy costume variety. And it is certainly true that one "who attends a baseball game as a spectator can properly be charged with anticipating as inherent to baseball the risk of being struck by a foulball while sitting in the stands during the course of a game." But is being attacked by a hawk an inherent part of watching a baseball game live? That would hardly seem to be the case.

As a result, were the fan to sue a baseball stadium it seems unlikely that the special "primary assumption of risk" notion would bar a lawsuit. Instead, the case would likely turn on whether a stadium owner has (1) any responsibility to protect fans from raptors and (2) whether the Red Sox failed to take steps that a reasonable stadium operator would take with respect to such birds.

Although I am far from an expert in hawk studies, I wonder whether the Red Sox do bear some responsibility here. A baseball park consists of grass manicured and tweaked to a level hardly found in nature. From the high perch provided atop the "monster" walls of the stadium, a bird of prey can see the smallest (in)field mouse and swoop in for attack. It seems to me perfectly logically that these artificially altered landscapes are a perfect hunting ground for hawks squeezed out of their natural habitats by McMansion expansion. If a stadium owner has created a sort of "hawk-attracting nuisance", should it not take some hawk repelling steps as well? This particular hawk was nesting in the rafters at Fenway, where it had laid an egg. How hard is that to spot, and to do something about?

Facilities, Merchandising and NCAA Issues To Be Discussed at Fordham Law School Symposium

Fordham Law School's Sports Law Forum, in association with the New York State Bar Association's Section on Entertainment, Arts and Sports Law will host its 12th annual sports law symposium on Friday April 11th.

The panel topics are:

Financing and Structuring Acquisitions of Sports Teams and Stadiums (I'll serve as moderator)
Sports Merchandising and Memorabilia
Amateurism and the NCAA (Sports Law Blog contributor Marc Edelman is a panelist)

Keynote speaker: New York Giants CEO John K. Mara

MEETING TIME: The Symposium will take place from 8:45 a.m.
to 4:30 p.m. in the Fordham Law School McNally Amphitheatre, located at 140
West 62nd Street, New York, NY 10023.

FEE: This Symposium is free and open to the public unless CLE credit is sought, in
which case the following fee structure applies: $85 for practicing attorneys; $65 for
NYSBA Entertainment, Arts and Sports Law Section members, academics, public-
interest attorneys, and Fordham Law alumni. The fee includes CLE credit, course
materials, and lunch. For a copy of our hardship application please visit http://law.fordham.edu/cle

CLE CREDIT IS AVAILABLE: This Symposium has been approved in accordance with
the requirements of the New York State Continuing Legal Education Board for a
maximum of six non-transitional professional practice credit hours.

8:45 AM
Registration

9:15 AM
Welcome & Opening Remarks

PATRICK F.X. FITZPATRICK, JR.
Co-Symposium Editor,
Fordham Sports Law Forum

BRYAN LIPSKY
Co-Editor-in-Chief,
Fordham Sports Law Forum

KENNETH N. SWEZEY, ESQ.
Chairman, NYSBA Entertainment, Arts and Sports Law Section

9:30 AM
Panel I
Financing & Structuring Acquisitions of Sports Teams & Stadiums

This panel will focus on legal and financial aspects appurtenant to acquiring sports franchises and building sports arenas and stadiums. Panelists will explain the range of assorted hurdles that arise such as negotiating with their respective leagues, hiring contractors, and lobbying neighborhood and community groups.

Moderator:
MARK CONRAD
Associate Professor, Legal and Ethical Studies,
Fordham University Schools of Business

Panelists:
JEFFREY S. BAKER, ESQ.
Partner, Young Sommer LLC

DAVID P. COHEN, ESQ.
Executive Vice President and General Counsel, New York Mets

ANDREW L. LEE, ESQ. ’97
General Counsel, New York Jets

MARK TUOHEY, ESQ. ’73
Partner, Vinson & Elkins

11:15 AM
Panel II
Sports Merchandising & Memorabilia

This panel will concentrate on legal issues of the memorabilia industry, specifically: tax issues, the
auction house process, property rights for souvenirs, right of publicity issues, celebrity endorsements and the intricacies of running and contracting with memorabilia businesses.

Moderator:
DAREN M. ORZECHOWSKI, ESQ. ’99
Partner, White & Case LLP

Panelists:
JOHN P. BARRIE, ESQ.
Partner, Bryan Cave LLP

KENNY GOODMAN
President, Goodmanagement

MARTIN F. TRIANO, ESQ.
Partner, Triano & Byrne

PATRICK TULLY
Sports Memorabilia Executive

12:50 PM
Lunch

1:45 PM
Keynote Address

Introductory Remarks:
JON KOTLER
Co-Editor-in-Chief,
Fordham Sports Law Forum
Keynote Speaker:

JOHN K. MARA, ESQ. ’79
President and CEO,
New York Football Giants


2:45 PM
Panel III
Amateurism & the NCAA

This panel will spotlight the NCAA and the legal complexities concerning the amateur status of its
student-athletes. Panelists will address the arguments of whether the NCAA should retain its non
profit status as well as its antitrust and tax exemptions, especially in light of tremendous revenues
paired with the lack of any student compensation.

Moderator:
JOHN M. VORPERIAN, ESQ.
Professor of Sports Law/Sports Mgmt.,
Concordia College (NY);
Host, BEYOND THE GAME

Panelists:
JASON CHAYUT, ESQ. ’00
Agent,
SportStars, Inc.

ELSA COLE, ESQ.
General Counsel,
NCAA

MARC EDELMAN, ESQ.
Professor of Sports Law,
New York Law School & Seton Hall University

JACK HAYES
Director of Athletics,
Hofstra University

The list of participating panelists as well as other information regarding the Symposium is
subject to change. For more information please contact Pat Fitzpatrick atThe Fordham University Sports Law Forum. P: 201.893.6714 E: pfitzpatrick@law.fordham.edu


For Registration Form please visit:
http://law.fordham.edu/publicprogramming.htm
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March Madness Gambling Reaches a Different Level

Michael McCarthy of USA Today reports that Las Vegas sports books are now offering "prop bets" on the Final Four game performances of individual players such as Tyler Hansbrough, Ty Lawson and Wayne Ellington of UNC, Derrick Rose and Joey Dorsey of Memphis, Brandon Rush and Mario Chalmers of Kansas, and Kevin Love and Josh Shipp of UCLA (Las Vegas' Slate of Final Four Wagers Grows, 4/2/08). The prop bets consist primarily of over-under wagers on points scored or points-rebounds-assists totals, and McCarthy noted that gamblers can even wager on whether a particular clutch free throw shooter will miss one from the line.

March Madness betting, in general, is huge -- the article mentions that, in March 2007, betting on college and pro basketball in Nevada more than doubled to $228 million from $107 million the previous month. Prop betting, in particular, raises serious concerns about the integrity of the game in light of the alarming statistics regarding the influence of gambling on amateur athletes. The NCAA's 2003 National Study on Collegiate Sports Wagering found that 2.3 percent of football players and 2.1 percent of men's basketball players admitted in questionnaires that they had been asked to affect the outcome of a game because of gambling debts. In addition, 1.1 percent of football players and 0.5 percent of basketball players reported that they had taken money for playing poorly in a game. And 17.2 percent of male Division-I student athletes reported that they had bet on collegiate sports. Indeed, it would be naive to think that those percentages are not actually much higher because they are based on responses to surveys conducted by the NCAA, creating an inherent disincentive to respond truthfully in light of the prospect of being implicated in gambling activity.

The NCAA and its member schools acknowledge the concern generated by prop bets. But when it comes to responsibility addressing the problem, everybody is pointing the finger at each other. A spokeswoman for the NCAA told McCarthy that the NCAA lets schools decide how to handle prop bets on their student athletes, and that some schools have asked casinos to take those prop bets off the board. However, a spokesman for UNC told McCarthy that it looks to the NCAA "to lead the way" on gambling issues. In all fairness to the NCAA and its member schools, this problem is much bigger than them -- they can't control Vegas. In a 2004 press release regarding the results of the 2003 study, NCAA President Myles Brand said: "The scope of sports wagering among intercollegiate student-athletes is startling and disturbing. Sports wagering is a double-threat because it harms the well-being of student-athletes and the integrity of college sports."

Congress, and not the NCAA nor its member schools, is capable of doing something now about prop betting this weekend. Banning prop betting would be a step in the right direction in tackling the problem of gambling in collegiate athletics in general.

A Coach's Liability for On-Ice Violence

After our discussion of the appropriate standards for criminal sanction of on-ice/court/field violence in class this week (which included a discussion of Regina v. Bertuzzi, which Greg discussed here and here), several students brought to my attention the latest developments in Steve Moore's civil action against Todd Bertuzzi (discussed in earlier posts here and here). ESPN reports Bertuzzi has filed a third party complaint, bringing his former coach Marc Crawford into the case as a defendant (apparently with Moore's approval). According to Bertuzzi, Crawford directed him to "to make [Moore] 'pay the price'" for an earlier hit against one of Bertuzzi's teammates.

The liability of a coach for a player's on-ice misconduct is an unsettled area in the application of tort law to sporting injuries (something Greg speculated about when Temple basketball coach John Chaney sent a little used "enforcer" on the court to "send a message" to an opposing player). A coach could be liable in one of two ways -- either for his own direct misconduct (amounting to recklessness or intentional tort), or indirectly by was of respondeat superior liability based on his player's actions.

When a coach directs a player to make an opponent "pay the price", and the opponent is subsequently injured, has the coach committed a direct tort amounting to recklessness or intentional misconduct? To be sure, "pay the price" is not quite as direct as this memorable set of instructions:

John Kreese: Bobby, I want him out of commission.
Bobby: But, Sensei, I can beat this guy.
John Kreese: I don't want him beaten.
Bobby: But I'll be disqualified.
John Kreese: Out of commission.

Is it possible to argue that the coach's words were meant to capture only paying a "foreseeable" price (in the form of a "consensual fight", something as to which consent might bar a tort claim)?

State Government Jumps into the Steroid Mess

A legislator in Missouri plans to introduce a bill that would deny state tax credits to professional sports teams that fail to suspend players found using steroids for at least one year. Jeff Roords, a Democrat, explains that:

This bill attempts to send a message to Major League Baseball and to all other professional sports leagues that if they want to continue to ignore the problem that they have with steroids, that we're not going to continue to underwrite their activities with tax dollars.

Putting aside whether steroids in sports is any business of the government (a subject much discussed here), who gets tax credits certainly is. So I have slightly less problem with a legislator jumping into steroids through this link, by saying, in essence, if you want government benefits, you have to operate your business in a certain way. Obviously, the problem of treating sports differently than all other industry remains. No one is proposing that McDonnell-Douglas or Monsanto or Ralston-Purina (major St. Louis companies) drug test employees as a condition of receiving state tax credits.

In any event, this proposal will go nowhere. At a minimum, it seems fundamentally unfair to deprive particular teams of state benefits for something the teams cannot control. The rules governing testing and punishment for steroid use is a subject of the Collective Bargaining Agreement between the various players' unions and the leagues; individual teams have no control and probably little influence over what those rules will look like. The St. Louis Cardinals or Kansas City Chiefs could not unilaterally punish players for one year for a positive test if the CBA only provides for four games (NFL) or 50 games (MLB). So this bill would put teams to a Hobson's Choice: Violate the CBA (an act that will be overturned in arbitration) or forfeit state benefits.

Beyond that, the bill may be actionable as a violation of the National Labor Relations Act, which governs the rules and processes for collective bargaining between management and certified labor unions. The NLRA prohibits state and local governments from interfering with the collective bargaining process, which is what this bill clearly would do. It would have the effect of commanding management to put particular rules into the CBA. From the other side, it would force the union to accept new obligations (stricter punishments) in the CBA because individual teams would be compelled to try to get stricter punishment as part of the agreement. And all this in order to comply with a state law. But the purpose of the NLRA is to nationalize labor bargaining for national industries and to prevent state/local governments from influencing that process.

I will give Rep. Roords the benefit of the doubt and say he is a smart guy (or at least has smart aides) and knows all of this. In which case, this bill is nothing more than another example of meaningless political grandstanding by elected officials who believe they can get attention for themselves by looking as if they are trying to clean up our great American games. And it got him one day's worth of mention on the local NPR station.