New SI.com Columns

Over the last day, I have written three new columns on SI.com -- I hope you have a chance to check them out:

• Testimony by Bobby Estalella, Giambis Brothers could spell trouble for Barry Bonds

• Yankees' Potential Silence Clauses could have Broad Effects on Players

• Latest Barry Bonds Development may not be as Damming as you think

Hope you all enjoy the weekend.

University of Baltimore Law School Sports Law Symposium: "From Rookie to Retirement"

The University of Baltimore School of Law has schedules what looks to be an excellent sports law symposium on February 26, 2009. Congrats to Professor Dionne Koller and others for putting the event together. Below are the details.

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The University of Baltimore School of Law invites you to attend its first annual Sports Law Symposium. This year's event will focus on the effect of economic realities on the NFL player – from his rookie year through retirement. Baltimore Ravens President Richard Cass will be the keynote speaker for the event. Panelists include in-house legal counsel for the NFL and NFL Players' Association, top agents, and active NFL players.

The symposium will take place on Thursday, February 26 from 10 a.m. - 5:30 p.m. at the School of Law. There is no charge to attend the event. Online registration is now available here: Sports Law registration. For more information about the symposium, please contact the Office of External Relations.

10:30 a.m. Opening Remarks: Dean Phillip J. Closius, University of Baltimore School of Law

10:30 – 11:45 a.m. PANELS ON NFL ROOKIES

Preparing the Rookie: Pre-Draft Prep: Trace Armstrong, CAA Sports

Negotiating the Contract and Salary Cap, Now and in the Future: Pat Moriarty, Baltimore Ravens & Tom Condon, J.D. '81, CAA Sports

11:45 a.m. – 1 p.m. Luncheon Keynote Speaker: Richard Cass President, Baltimore Ravens
Assistant Professor of Law Dionne Koller will introduce Mr. Cass.

1:00 – 1:50 Collective Rights and Benefits – The Future of the NFL Collective Bargaining Agreement: Harold Henderson, NFL Legal Counsel & Richard Berthleson, NFLPA Legal Counsel

2:00 – 4:00: PANELS ON NFL VETERANS

Negotiating the Second and Third Deals Andrew Brandy, nationalfootballpost.com & Tony Agnone, J.D. '78, EAS

NFL Player Benefits: What's Next?: Sarah Gaunt, NFLPA Pension Plan & Doug Ell, the Groom Law Group

Player Marketing in the New Economic Reality: Howard Skall, CAA Sports & Kristen Kuliga, Agent for Doug Flutie

Private/Public Partnerships: Ira Rainess, J.D. '92

For more information, click here.

Quick Update on Retired NFL Players vs. NFLPA

The Sports Business Daily reports that U.S. District Judge William Alsup upheld the jury’s verdict awarding a class of NFL retired players $28.1 million in its suit against the NFLPA We discussed the case back in November here (as is often the case, the meat of the discussion is contained in the comments).

A Clarification of My Last Post on Salary Arbitration

The two anonymous comments to my January 23 posting offered good observations and questions, and they point out my need to be more precise about my last sentence -“One of my arguments has been that salary arbitration usually works because most of the time the parties agree to a figure at the midpoint or slightly below the midpoint.” Thank you for forcing me to apply more rigor to my statement. This reply to the first anonymous response became so long that I decided to move it up to the main page because I wanted more readers to see it. Plus, the response deserves a wider audience on the main page.

I will offer some thoughts about how the Astros, Marlins, and Rays methods are pushing the balance towards management in a follow-up to this reply.

My argument that the salary arbitration system actually works is that it usually produces a settlement instead of forcing a hearing. Furthermore, there are strong incentives for both parties to submit a reasonable figure if numbers are exchanged. So I would have been more accurate concerning my position if I had said - “One of my arguments is that the salary arbitration process usually works because most of the time the parties agree to a figure without the need for a hearing.”

Many observers of the process focus on the teams and players that proceed to a hearing first and the group that exchanges numbers second. This ignores all of the cases that are settled either before the exchange of figures or prior to a hearing. Look at some of these recent figures -

Year - Cases Filed - Cases Settled - Number of Hearings

2005 - 89 - 86 - 3 (Teams won 2 out of the 3)
2006 - 100 - 94 - 6 (Teams won 4 out of the 6)
2007 - 106 - 99 - 7 (Teams won 4 out of the 7)
2008 - 110 - 102 - 8 (Teams won 6 out of the 8)

Since the beginning of the process in 1974, my research lists the total number of cases filed at 3,043 (all of the lists that I have seen concerning salary arbitration differ as to some of the numbers in the 1970s and early 1980s). Of that number, 2,554 were settled, 484 proceeded to a hearing, and 5 were released (neither settled nor a hearing). That is a ratio of 83.9% settled cases and 15.9% hearings (the additional 5 cases account for the 0.2%).

So, my evidence for the revised statement is that 84% of the cases are settled, and that is, I think, the point of single-offer or final-offer arbitration. Now, the system is supposed to produce reasonable figures from both camps. If one of the figures is not plausible or defensible, you have created every incentive for the other side to go to a hearing because the chance of winning has increased significantly. Over the years, the teams have won 58% of the cases (279-205). The last time that the players exceeded .500 was 1996 (players won 7 of 10 hearings).

I am including a listing below showing the results of players and teams who exchanged numbers but settled before a hearing during the past five years. Note that during that five year period, 68% of the cases were settled at the midpoint or below the midpoint. This was part of the source for my original last sentence because that is what has happened in a strong majority of the recent cases. However, as I was properly taken to task, that is evidence for a different conclusion. My argument is that these statistics support the conclusion that the majority of cases are framed by the two exchanged numbers at an agreeable point for both parties. The general thought of hearing decision-making is that you determine the midpoint between the two figures. If the player is worth $1 or more above the midpoint, the arbitrator chooses the player’s figure. If the player is worth $1 or more below the midpoint, the arbitrator chooses the team’s figure. The decisions at hearings are supposed to be made within 24 hours by a panel of three. For many years a single arbitrator made the decision. An article last year at the end of the hearing season quoted veteran arbitrator Stephen Goldberg as follows: “Each arbitrator casts a vote but my impression is that 99 percent of the decisions are unanimous.” Ameet Sachdev, “Former NU Professor Says Multimillion Dollar Salary Hearings Have Grown Less Contentious,” Chicago Tribune, February 26, 2008. If Mr. Goldberg is correct as to the voting, he is arguing that the presentations are quite strong for one side or the other.

Notice that the next largest percentage (22%) are the 40 multiyear deals. This year there are already five multiyear deals between teams and players who filed numbers (Prince Fielder, Milwaukee Brewers; Zack Greinke, Kansas City Royals; Jason Kubel, Minnesota Twins (pending a physical); Nick Markakis, Baltimore Orioles; Jayson Werth, Phillies). The multiyear deals portion of the data merits its own posting and discussion.

Major League Baseball Salary Arbitration
Players and Teams Who Exchanged Numbers But Settled Before a Hearing
Results - 2004-2008

Year - Multiyear Deals - Above Midpoint - At Midpoint - Below Midpoint - Total
2004 - 5 multiyear - 1 above - 6 at midpoint - 8 below - 20 total
2005 - 8 multiyear - 3 above - 5 at midpoint - 21 below - 37 total
2006 - 7 multiyear - 8 above - 9 at midpoint - 14 below - 38 total
2007 - 10 multiyear - 4 above - 12 at midpoint - 22 below - 48 total
2008 - 10 mulityear - 2 above - 7 at midpoint - 21 below - 40 total

Multiyear Deals - 40 (22%)
Above Midpoint - 18 (10%)
At Midpoint - 39 (21%)
Below Midpoint - 86 (47%)
Total - 183 (100%)

I apologize if this posting is too long or not in your area of interest. I appreciate the comments because, as I stated above, they force me to be more rigorous in my work on this topic. Also, I think one of the purposes of the blog is to get feedback.

Media ethics and law prof blogging

I am quoted today in an op-ed in the Daily Tar Heel. (H/T: My former colleague Joel Goldstein). The op-ed discusses the motion filed by former Durham District Attorney Mike Nifong, the main culprit in the Duke lacrosse mess, seeking to dismiss the § 1983 actions against him on absolute prosecutorial immunity grounds (and without seeing the motion, I have argued previously that he has a pretty strong argument). The op-ed, clearly not coming close to understanding what prosecutorial immunity is all about, argues that Nifong should not have immunity because by "withholding DNA evidence, Nifong clearly deprived the defendants of their right to due process." Um, yeah, but the point of immunity is that does not matter, because other policy concerns trump. AndI did not read the piece as arguing that prosecutors should not have immunity (an arguable point), only that Nifong should not.

Anyway, I am identified as a Saint Louis University law professor and described as saying that Nifong only has immunity for those things he did as an advocate for the state. One problem--I never spoke with anyone at the Daily Tar Heel at any point. (Actually, I suppose a second problem is that I no longer teach at SLU, so there is a pretty glaring factual error there that would get them nailed in a newswriting course). The "comment" attributed to me was something I wrote in one of several posts, here and at Sports Law Blog, analyzing the players' lawsuits against Nifong, Duke, and others.

So, my question--Did the authors of the piece act appropriately (as a matter of journalistic practice) in attributing a comment to me without identifying it as something I wrote on a blog and attributing the blog? Is it OK for reporters to make it sound instead as if we had had a conversation? I am not suggesting that journalists should not read blogs as part of their reporting or that they should not report what they see written here. Indeed, one purpose of blogging is to be part of the broader public conversation beyond the academy, so having newspapers report on what we write here goes a long way to making us part of that conversation. My question is strictly how journalists should describe the source of a comment when they get it not from an interview, but from something the source has written.

"Flyer" Goes Down: Wisconsin Supreme Court Finds Cheerleading to be a Contact Sport

Today, the Wisconsin Supreme Court issued its opinion in Brittany L. Noffke v. Kevin Bakke. Howard Wasserman discussed this matter on this Blog last month. Also, check my post on the Sports Law Blog for cheerleader injuries from 2006, and discussions on sports injuries from myself and Geoffrey Rapp here, here, and here. Also, see Geoffrey's recent law review piece on the reckless standard for injuries on the playing field.

The basic facts: Noffke, a "flyer" (the elevated cheerleader during stunting), fell while practicing a "post to hands" stunt in an area without mats. Bakke, the "post" (the one who elevates the cheerleader onto the shoulders of the "base"), lifted Noffke onto the "base," and let go. Instead of moving to the rear to spot Noffke, Bakke moved to the front. Noffke fell to the rear of the "base" and struck her head. This was the first time this stunting group practiced this particular stunt. At the time, her coach (also a middle school teacher from this district), was supervising another group of cheerleaders approximately ten feet away.

Procedural history: Noffke sued Bakke for negligence (failure to spot Noffke), and sued the school district (Holmen) for negligence (failure to provide a second spotter and failure to provide appropriate surfacing/mats). Both Bakke and the school district were granted summary judgment; Bakke succeeded as the circuit court found cheerleading to be a "contact sport" requiring a finding of recklessness to impose civil liability. The school district succeeded on summary judgment as no known and compelling danger arose that gave rise to a ministerial duty on the coach's part. On appeal, the appellate court found that Bakke was not immune from suit since cheerleading is not a "contact sport" as defined by Wis. Stat. 895.525(4m)(a), but affirmed the school district's immunity. The Supreme Court of Wisconsin today affirmed the circuit court's ruling.

For Bakke to achieve immunity under the statute, cheerleading would have to be found by the Court to be a contact sport in this setting (amateur, high school sport). The Court found cheerleading to fit within the plain language of the statute ("physical contact between persons in a sport involving amateur teams"). The Supreme Court goes on to cite to those "recreational activities" that do not enjoy immunity, such as hunting, bowling, horseback riding, and skiing.

The Supreme Court found cheerleading to be a sport because it involves "physical exertion and skill that is governed by a set of rules or customs," and it is a team sport because "a group is organized to work together" to lead fan participation. Utilizing a dictionary and the spirit rules of the National Federation of State High School Associations, the Wisconsin Supreme Court found that cheerleading is a contact sport as it involves physical contact (at times "forceful") between cheerleaders during participation.

Noffke argues that the physical contact between cheerleaders is not of the type contemplated by the Wisconsin legislature (football, hockey, etc.), but rather cheerleader contact in incidental. The Wisconsin Supreme Court, however, responded that the legislature did not intend to just give immunity to participants in "aggressive" sports (side-note: in the Karas decision in Illinois, Justice Burke added an enhanced exception for "full-contact sports"). Noffke then argues that immunity should not apply in this case because cheerleading is not "competitive," but competition is not a requirement in the plain language of the statute, and a "competition" requirement would result in inconsistent results (cheering a team vs. cheerleading competition; practice vs. game).
Interestingly, the Court concludes its opinion relative to Bakke by encouraging the legislature to examine the Supreme Court's opinion and address how the statute would apply to other sports like "golf, swimming, or tennis."

To defeat this immunity, Noffke would have to show that Bakke was reckless, but the facts here did not support such a high standard, so the Wisconsin Supreme Court affirmed that Bakke was immune under the contact sport recreational immunity statute. Contrast this with the Karas case in Illinois, which made its way to the Illinois Supreme Court for review of a Motion to Dismiss based on the pleadings, and as such, evidence was not in the record for determination of whether the "Illinois contact sports exception" applied to the facts outside of the complaint.

With regard to the school district, Noffke argued that the coach (as an employee of the school district) violated a ministerial duty by not providing a second spotter and mats as required by the spirit rules, and that the coach, himself, should have known there was a compelling danger as appropriate safety precautions were not taken for these cheerleaders performing this stunt for the first time. However, the Wisconsin Supreme Court found that the school district was not bound to the spirit rules because it did not adopt the same, and as such, the coach had discretion on whether to provide a second spotter and mats. Further, looking to the actual spirit rules, there are no additional spotters or mats "required", but rather, the same are "suggested".

Of note here factually: the cheerleaders had performed more difficult stunts together before, both Noffke and Bakke thought they could perform this stunt, Bakke was a trained spotter, the stunt could be accomplished safely without Bakke's spot (Bakke was not the "base"), and the coach knew the level of difficulty of this stunting group to be "much higher". These same facts were essential to the Wisconsin Supreme Court in finding there to be no known or compelling danger that would remove the coach from immunity.

This decision continues to shed light on the fact that cheerleading is a dangerous sport, and as such, proper coach training (both technique and safety) is imperative. Cheerleading has evolved along with the sports that it supports (i.e. football), but while advances in safety equipment (helmets, pads, etc.), training, and playing/practicing surfaces has advanced in sports like football to go along with the faster, bigger, and stronger athletes, cheerleaders are exponentially advancing the physical difficulties of their sport with no real change in safety since football players were wearing leather helmets. It is a good step for the courts to acknowledge the athleticism and physical contact involved in cheerleading, but continued participation in cheerleading may suffer if safety policies are not adopted as rules rather than mere suggestions to coaches and teams.

New SI.com Sports Law Column on Kirk Radomski's New Book

I have a new column on SI.com on potential legal implications for Roger Clemens relating to Kirk Radomski's new book, Bases Loaded: The Inside Story of the Steroid Era in Baseball by the Central Figure in the Mitchell Report. Here is an excerpt from the column:

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The inconsistency over specific information shared by McNamee to Radomski may seem to be on the periphery of the central question of whether Clemens used steroids and knowingly lied to Congress, but it offers Clemens' legal team a valuable card in a potential trial in which McNamee would be subject to cross-examination: Why should a jury believe McNamee's recollections over those of Clemens when McNamee's account is, at least in part, contradicted by the published words of his friend Radomski?

Then again, jurors might dismiss potential inconsistencies in dates and other historical facts as relatively immaterial. After all, the inconsistencies seem several steps removed from the legal question of whether Clemens knowingly lied under oath, and jurors recognize that all humans occasionally err while recalling details and minutiae.

Clemens' legal team would likely disagree. Remember, to convict Clemens of perjury, the government would need to leave a jury without any reasonable doubt as to whether Clemens knowingly lied under oath; although jurors might ultimately believe that Clemens more likely than not knowingly lied under oath, any reservations triggered by questions of McNamee's memory and veracity could instill the requisite "reasonable doubt" in those jurors' minds. Such an outcome would lead to Clemens being found not guilty, which in turn would bolster his chances for rehabilitating his reputation in baseball and the public at large.

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Hope you have a chance to check out the rest.

Cubs Suing Former Sponsor Underarmour

The Wall Street Journal Law Blog reports a suit filed on Thursday by the Chicago Cubs for breach of contract and promissory estoppel against Underarmour. Driven to abandon the sponsorship due to the effect of the economic climate on overpriced polyester sports clothing, the company now faces this $10 million suit. As more sponsors abandon pricey sports team deals in the face of economic tumult and public criticism, such lawsuits may multiply.

The Tampa Bay Rays and the "File-and-go Strategy"

Bill Chastain, an MLB.com reporter covering the Tampa Bay Rays, wrote an informative piece on January 20 about Willy Aybar and Dioner Navarro’s salary arbitration negotiations with the Rays. (“Aybar, Navarro will go to arbitration; Pair of players unable to come to terms with Rays before deadline). The article outlines the Rays’ “file-and-go strategy,” and it contains a number of quotations about the team’s philosophy from Gerry Hunsicker, Senior Vice President, Baseball Operations. It is worth reading if you are interested in baseball labor relations. This has been the club’s policy for some time under Andrew Friedman, Executive Vice President of Baseball Operations.

As Bill Chastain points out in the article, “Josh Paul is the only player to go to arbitration during Friedman's tenure and the backup catcher lost on both occasions.” Those two hearings were in 2006 and 2007. In 2007, Paul requested $940,000, and the team offer was $625,000. The arbitration panel of Robert Bailey, Richard Bloch and Christine Knowlton sided with Tampa Bay. In 2006, Paul wanted an increase from $450,000 to $750,000 and Tampa Bay countered with a modest increase to $475,000. The arbitration panel for that hearing was Dan Brent, Margaret Brogan, and Elliott Shriftman.

In 2002, the team went to a hearing with Esteban Yan. Yan was seeking an increase from $743,000 to $2,400,000, and Tampa Bay felt that $1,500,000 was the appropriate figure. The arbitration panel of Dan Brent, Roger Kaplan, and Carol Whittenberg agreed with the team. After the Phillies lost to Ryan Howard last year for their first setback at a hearing (the Phillies are now 7-1 in their 8 hearings), the Rays became the only team with a perfect winning record in arbitration hearings.

After reviewing the exchanged numbers between the two parties, I thought I spotted an interesting point. The differences between the two figures are amongst the closest of all of the 46 exchanged figures this year.

Willy Aybar
2008 salary = $401,200
Team offer = $900,000
Player request = $1,050,000
Difference = $150,000
Midpoint = $975,000

Dioner Navarro
2008 salary = $412,500 (base salary) - $10,000 for making the All-Star team
Team offer = $2,100,000
Player request = $2,500,000
Difference = $400,000
Midpoint = $2,300,000

I have at least two thoughts about this. If the parties were that close, why couldn’t they get a deal done before the deadline? Second, does the “early deadline” prompted by the “file-and-go strategy” help push the two parties closer to each other? One of my arguments has been that salary arbitration usually works because most of the time the parties agree to a figure at the midpoint or slightly below the midpoint.

Bailed-out AIG to drop pricey sports team sponsorships

One of the reasons I've been blogging relatively lightly in the past few weeks is that I've discovered the Fox Soccer Channel is part of my digital cable package. Although I've been enjoying a number of great soccer games, it is always a bit jarring to see a team of millionaire soccer players running around in jerseys that proudly display the name of a corporation that has recently come begging for money to the U.S. taxpayers.

Today, Reuters broke the story that insurance giant and bailout recipient AIG will not be renewing its $100 million sponsorship of Manchester United, a top English soccer team. AIG is also seeking to renegotiate its current sponsorship -- likely in an effort to escape from the contract's remaining years.

At the time of the bailout, AIG and other corporate sports sponsors receiving federal funds, like Citi, insisted they had no plans to discontinue such sponsorships even in the face of public criticism and the common "Taxpayer field" jokes.

Expect AIG's lead to be followed by other recipients of bailout funds.

Baseball Salary Arbitration - Players and Teams Exchange Figures

Over the past few days there has been a flurry of activity between baseball teams and player agents negotiating contracts for players eligible for salary arbitration. On Thursday, January 15, 111 players filed for arbitration. Between last Thursday and yesterday’s deadline for exchanging numbers, 65 deals were finalized leaving 46 players and teams involved in exchanging numbers yesterday.

The big buzz is about Ryan Howard who went to a hearing with the Phillies last year and beat his team. Of course, most of you are aware of his effort last year for the World Series Champions. Howard is seeking $18 million and the Phils offered $14 million. Howard’s request is the third highest figure sought since the process began in 1974. The next largest request this year is from Prince Fielder. Fielder requested $8 million, and the Brewers countered with $6 million. I am still digesting all of the deals reached before the deadline yesterday and looking over the exchanged numbers figures. I will be posting some of my insights shortly on this blog.

Endowed college coaching positions

Something I just discovered this week: The head coaching positions for Stanford's football and men's basketball teams are endowed. Football coach Jim Harbaugh is the Bradford M. Freeman Director of Football; Basketball coach Johnny Dawkins is the Anne and Tony Joseph Director of Men's Basketball.

It seems like a good idea for everyone involved. The endowment presumably pays or helps pay salaries that probably are in the mid- or high-six figures. It seems like the type of naming opportunity a sports-minded donor would jump at--after all, the donor's name will be announced over the PA system during pre-game intros in front of 10,000 or 60,000 fans. Has anyone heard of other schools doing this? Does anyone know why Stanford alone seems to have gone this route?

The Salary Cap, a Rookie Pay Scale and the NFLPA

The week leading up to the Conference Championships, with all of its corresponding movement of coaches and executives, is a good time to take stock of two important bargaining points for the new NFL Collective Bargaining Agreement (CBA): 1) a rookie salary cap and 2) the traditional salary cap. Both of these issues relate to a more fundamental question—who are the union’s constituents when negotiating the CBA? Does the NFLPA represent each individual member, or “the players” as a group, and how does the group it represents affect the NFLPA’s negotiating strategy?

First, the current CBA provides a limited amount of cap space with which to sign first-year players (the “Entering Player Pool”). The Entering Player Pool is allocated to each team based on the number and position of their draft picks. The size of the pool varies yearly, increasing in proportion with the salary cap, but it will never be greater than 5% of the salary cap. Therefore, on average, a team will spend no more than 5% of player costs on rookies. In fact, Andrew Brandt of the National Football Post reported that the average team spends less than 4% of its cap space on rookies. Therefore, rookie contracts, on average, do not pose a large burden on team cap spaces, except for a few picks at the top of the first round; however, those few picks are driving the current debate over rookie salary reform.

Second, the traditional salary cap performs two main functions, the first well known and the second a bit surprising. It creates a maximum amount of money a team can spend on its roster in a given year. It also guarantees players a large percentage of all revenue earned by the teams for their football operations. The salary cap has long been touted in the public as a way for owners to control costs and prevent “excess” spending by wealthy teams like the New York Yankees in baseball, while having the pleasant effect of increasing parity in the league. The other, often unnoticed, effect is guaranteeing players least 50% and up to 58% of all NFL revenue. The players have received an enormous piece of the proverbial pie. It is thus unsurprising to find out that the players were the group to demand the salary cap in the 1993 negotiations. One reason the public often overlooks this purpose of the cap leads to the final, and I believe unanswered issue—who does the NFLPA represent in CBA negotiations?

We tend to view professional sports unions as representing the individual athlete (the individual model) and not the group of members as a whole (the group model), and in a way this is true. For instance, the NFLPA represents individual athletes in grievances against teams or the league. However, the NFLPA’s constituent group becomes less clear when one looks at CBA negotiations. What is viewed as a “win” by one group of players is a “loss” for another; higher minimum salaries for veterans increases certain players’ wages while simultaneously putting others out of work (if teams do not value them at the minimum salary) and decreases the wages of certain other players (since more cap space is eaten up by older players). I contend that the public misses the idea of the salary cap increasing the pay for players precisely because we only see the NFLPA’s relationship to the players in the individual model, and not the group model. This is why people often cynically viewed Gene Upshaw as an agent for the league and not the players—the players do not individually have guaranteed contracts, so Upshaw must have failed. However, he did obtain a large amount of guaranteed money for the players as a group—up to 60% of all money earned by teams must be paid to players in the form of salary, benefits, and bonuses each year. Similarly, we view rookie contracts as too rich because of the prominence of contracts such as Jake Long’s and Matt Ryan’s deals, yet we do not view the entirety of rookie contracts taken together as a very small percentage of total player wages.


As the NFLPA searches for a new director to lead it through the next round of CBA negotiations, a rookie pay scale or salary cap and revisions to the traditional salary cap will be two of the most hotly debated issues. Whether the union subscribes to the individual or group model will greatly affect its positions. The salary cap currently guarantees a large amount of revenue to the players, but prevents certain superstars from earning A-Rod type contracts—an individually focused union may try to lift the cap and get huge paydays for the top earners. A group-centered union, on the other hand, will continue to demand high revenue guarantees, regardless of the form they take. Similarly, any changes to the rookie pay system will depend on whether the union looks out for each individual rookie (and its right to as high a salary as possible) or the rookies as a group (and its right to higher guaranteed revenue percentages).

New SI.com Sports Law Column on Roger Clemens' Grand Jury

I have a new column on SI.com on grand jury proceedings into whether Roger Clemens committed perjury. Here's an excerpt:

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It is important to not get ahead of ourselves. Clemens has not yet been indicted, let alone convicted. In fact, there are several reasons to believe Clemens would prevail in a trial.

First, Clemens would be able to afford a top legal team, with high-profile expert witnesses. While statistics confirm that prosecutors enjoy tremendous success, those statistics are general ones and not based on prosecutions of remarkably wealthy and famous persons. Along those lines, there is anecdotal evidence suggesting that jurors are often "star-struck" by celebrity defendants, a phenomenon which, if true, would likely bode well for Clemens.

Second, perjury and obstruction of justice are usually difficult crimes to prove. In order to convict Clemens on perjury, prosecutors would not only need to establish that he lied under oath, but also that he knowingly lied. Clemens' counsel could borrow from the playbook of Barry Bonds' counsel and contend that Clemens did not fully understand the questions asked of him, or that he even if he used steroids and human growth hormone, he was never told by McNamee that they were banned substances. All Clemens' counsel would need to plant is reasonable doubt in the mind of jurors.

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Hope you have a chance to check out the rest.

Introducing the National Sports and Entertainment Law Society

Two of my students at Vermont Law School -- Andrew Delaney and William Rothstein -- have embarked on creating the National Sports and Entertainment Law Society. It is a national organization for sports law societies across the country.

I encourage you to check out the NSELS website and also check out Sports Agent Blog's Darren Heitner's story on the NSELS (and my thanks to Darren for his kind words):

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From the small northeastern state of Vermont, a couple of law students are determined to start an organization that will unite sports & entertainment law societies in law schools around the country. Andrew Delaney and Will Rothstein have recently created the National Sports & Entertainment Law Society. Their stated goal is to create a national network of sports and entertainment law societies. If you are a current law school student and are interested in sports and/or entertainment law, I suggest you check out the site and reach out to one of the two founders. My communication thus far has been with Mr. Delaney. I guarantee he will get back to you about any questions you may have.

Some law schools have extensive sports and entertainment programs. Marquette, Tulane, and UCLA are institutions that offer a variety of classes in both areas. Would you be surprised if I told you that University of Florida offers no sports nor entertainment law classes? Occasionally, UF offers a Sports Law Seminar, capped at fifteen students (real nice when your school has about 1,200 students all interested in the subject). Oftentimes, the only way for a law student to get involved in entertainment and/or sports law is through a sports & entertainment law society. If your law school does not have one, the National Sports & Entertainment Law Society would like to help you get one started. If one already exists, but there is a need to expand its programs and infrastructure, NSELS will lend a hand as well.

I plan to get involved in NSELS, especially after my term as President of the UF Entertainment & Sports Law Society has expired. Delaney and Rothstein have the guidance of one of the best sports law scholars in the country, Michael McCann, who will be a panelist at the UF Sports Law Symposium on January 23.

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New Board for AALS Section on Sports and the Law

This past year, I had the honor of serving as Chair of the Association of American Law Schools' Section on Sports and the Law.

The AALS is a non-profit association of over 170 U.S. law schools and is legal education's principal representative to the federal government and to other national higher education organizations. The Section on Sports and the Law is composed of sports law professors from those schools.

The AALS held its annual meeting this past week in San Diego and on Thursday our section hosted a forum entitled, "The Emerging Nexus between Sports and immigration law." It was a dynamic event, featuring three terrific panelists: Kevin Johnson (the Dean of UC Davis Law School and also its Mabie-Apallas Professor of Public Interest Law and Chicana/o Studies), Katie Pothier (Executive Vice President and General Counsel of the San Diego Padres), and Robert Colosia (President and Founder of Group C Sports Law agency, which primarily represents soccer players). The panelists examined the various visas required for players to play in the U.S. and also discussed possible changes to relevant immigration law in President Obama's administration.

During the meeting we also elected a new group of section officers and executive officers for 2009. I congratulate the following new section leaders:

Chair: David Caudill (Villanova University School of Law)
Chair-Elect: Edmund Edmonds (Notre Dame Law School and Sports Law Blog)
Secretary: Erin Buzvuis (Western New England College of Law and Title IX Blog)
Treasuer: Tshaka Randall (Florida A&M University College of Law)

I enjoyed my time as Chair in 2008 and look forward to helping out the new leaders in any way. I would also like to especially thank Patricia Cervanka, Gordon Hylton, and Matt Mitten of Marquette University Law School and Geoff Rapp for all of their great advice and assistance this past year.

New SI.com Sports Law Column on Exemptions in Baseball for Amphetamines

I have a new column on SI.com concerning Major League Baseball authorizing nearly 8 percent of its players to use drugs to treat Attention Deficit Hyperactive Disorder.

Here's an excerpt:

While the clinical link between amphetamines and baseball performance is less established than links between steroids, human growth hormone and performance, it is thought that amphetamines and similar substances improve the focus and concentration of players and also enhance their reaction time. Although coffee and energy drinks offer similar types of advantages, amphetamines, which are available through prescriptions, are more potent, more addictive, and more likely to trigger threatening side effects.

In defense of baseball and its players, it is unclear how many requests were rejected, either formally or informally, by team physicians or by Dr. Smith (who received approval power last year) between '06 and '08. Indeed, if the number of requests increased by a higher percentage than the number of approvals, then the increase in approvals would be far less notable. The only available information is that the number of new requests to Smith for TUE exemptions for ADHD drugs declined from 72 to 56 last year.

In addition, there may be viable clinical explanations that at least partially account for the precipitous rise in TUEs granted by baseball. Diagnostic challenges for physicians who treat persons claiming to have attention disorders may, for example, prove relevant: it may be scientifically difficult for physicians to separate legitimate from illegitimate cases of attention disorders, thus making it difficult for physicians to reject prescription requests.

It is also possible the increase connects to decreased stigma in acknowledging that one has an attention disorder and needs treatment for it. There is a long history of mental illnesses receiving less sympathy by the public and less protection by courts than physical illnesses, though as neuroscience has increasingly shown that mental illnesses are as much "physical" as physical illnesses, that gap has narrowed. Consequently, as more players apply for TUEs, less stigma may be attached to doing so, thus encouraging more players to apply.

It is also possible that the increase reflects mere coincidence, in that more and more players are simply suffering from attention disorders. Likewise, it could represent a rush to not miss out on a competitive advantage, in that some players may feel disadvantaged by not taking amphetamines while their teammates and competitors do.

Absent a viable explanation, however, suspicions will remain that some players are circumventing the policy to obtain otherwise prohibited amphetamines and that baseball has acquiesced to those players.

I hope you have a chance to check out the rest.

University of Florida Levin College of Law Sports Law Symposium

On Friday, January 23, the Entertainment and Sports Law Society at the University of Florida Levin College of Law will be hosting what should be an excellent sports law symposium. I'm honored to be speaking at it. Here are some more details:

Speakers

Marc Edelman - Sports law attorney, author, and professor
Max Eppel - Founder, Max Eppel Soccer Agency LLC (MESA)
Joshua Golka - Sports Attorney and Consultant at Law Office of Joshua P. Golka
Jeffrey Harrison - Antitrust, Contracts Law, Copyright, & Economics Professor at UF Law
David Higdon - Sports business management consultant and communications specialist/member U.S. Tennis Association National Committee on Collegiate Tennis
Thomas Hurst - Agency and Partnership, Contracts, Corporations, Securities Regulation, Sports Law Professor at UF Law
Marc Isenberg - Author of "Money Players: A Guide to Success in Sports, Business & Life for Current and Future Pro Athletes"
Michael McCann - Professor at Vermont Law School. Legal Expert and SI.com Columnist at Sports Illustrated
John Meindl - Founder & President of SPORTSBRANDEDMEDIA, INC.
Roger Mussa - Wealth Advisor & Retirement Planner at Morgan Stanley Investment Management
Nick Ohanesian - Resident Officer for the Jacksonville Resident Office of the National Labor Relations Board. UF law professor.
David Peart - Founder & CEO at Spike Consulting Group
Kelly Perdew - CEO Rotohog, Winner of Season 2 “The Apprentice”, Author “Take Command”
Jeff Reel - Vice President & Assistant General Counsel for ATP Tour, Inc
David Snyder - Co-Founder at Search & Social, LLC
Glenn Toby - Owner at Team Management and Founder at The Book Bank Foundation Inc
Matthew Watkins - NFLPA Certified Advisor and Football Division Director at Dynasty Athlete Representation
Gary Wimsett Jr. - UF law alum. Practices health and corporate law with Flanagan & Marchewka, LLP
Adam Zimmerman - Executive Vice President Marketing Services at Career Sports & Entertainment. UF Alum.

Discussion Topics/Speakers

Recruiting

Moderator: Thomas Hurst

Panelists: Joshua Golka, Marc Isenberg, Max Eppel

• The future of athletes leaving to play overseas (the Brandon Jennings experiment).
• Recruiting baseball players from Japan, South Korea, Dominican Republic, etc. New countries in the future?
• Illegal contact with collegiate athletes. How to recruit legally according to the UAAA and SPARTA.
• Registering with state boards. Is it necessary and/or worth it?
• Highschool baseball players on the top of their game. Go to college or straight to the pros?
• AAU basketball. The prevalence of runners.
• The difference between being an agent and an advisor.
• How tools like YouTube and Facebook have changed the game of recruiting.

Negotiation

Moderator: Gary Wimsett Jr.

Panelists: David Peart, Glenn Toby, Jeff Reel

• Will the struggling economy affect free-agent signings in the future?
• How to properly value your clients in a negotiation.
• Tactics in a negotiation setting.
• Will the NFL ever turn to a slotting system a la the NBA?
• The value of holding out.
• Marketing deals, promotion, sponsorship and licensing agreements.
• Should a player ever negotiate his own contract (i.e. Daunte Culpepper)?

Labor Issues

Moderator: Nick Ohanesian

Panelists: Marc Edelman, Michael McCann, Matthew Watkins

• Arbitration strategies for team/player.
• Collusion issues (i.e. - Barry Bonds).
• The tough job for the next NFLPA Executive Director.
• Will we ever see a salary cap in baseball?
• Positives and negatives of the NFL Franchise Tag.

Future of Sports Business

Moderator: Jeffrey Harrison

Panelists: David Snyder, Roger Mussa, Adam Zimmerman, John Meindl, David Higdon, Kelly Perdew

• Convergence of sports and entertainment.
• Agencies offering a multitude of services including legal related services, thus binding them to the Model Rules of Professional Conduct.
• New kinds of endorsements and marketing opportunities in a digital world.
• Will more women enter this male-dominated field?
• How will the internet affect the sports business landscape?
• Is wealth management becoming a necessary service for sports agents to provide?
• Blogs, social networking, YouTube. How can somebody in the sports business world use these tools to get ahead of the pack?
• More conglomeration? What will become of CAA, IMG, Blue Equity, Octagon?

For more information on attending, click here. Additional information can be found on Sports Agent Blog, which is run by Society President Darren Heitner and others.

Pepperdine University School of Law Symposium on Arbitrating Sports

On Friday, February 27, Pepperdine University School of Law (which is located in gorgeous Malibu, California) will be hosting what should be a terrific symposium entitled, "Arbitrating Sports: Reflections on USADA/Landis, the Olympic Games, and the Future of Sports Dispute Resolution."

Here are some of the details:

Arbitrating Sports: Reflections on USADA/Landis, the Olympic Games, and the Future of Sports Dispute Resolution

Sessions

• Reflections on USADA v. Floyd Landis
• The Olympic Games
• The Future of Sports Dispute Resolution
• The Perspective of the Press and Public Arbitration

Panelists
Matt Barnett - USADA Lawyer/Barnett & Barnett P.C.
Jeffrey Benz - Arbitrator/AVP
Michael Hiltzik - LA Times
Howard Jacobs - Law Offices of Howard Jacobs
Michael Lenard - International Court of Arbitration for Sport
Richard McLaren - CAS Arbitrator/University of Western Ontario
Matt Mitten - Marquette University School of Law
Maidie Oliveau - CAS Arbitrator/Law Sports
John Ruger - United States Olympic Committee
Mike Straubel - Valparaiso School of Law
Maurice Suh - Gibson Dunn & Crutcher
Maureen Weston - Pepperdine School of Law

For more information call Lori Rushford at 310.506.6342 or email lori.rushford@pepperdine.edu. Approved for 6 hours of MCLE Credit.

For additional information, click here.

University of Oregon Sports Business and the Law Conference

On Friday, January 23, the University of Oregon will be hosting its first "Sports Business and the Law Conference." Here's the press release for it:

EUGENE, Ore. -- (Jan. 9, 2009) -- Sports industry professionals will meet in downtown Portland on Friday, Jan. 23, for the University of Oregon’s “Sports Business and the Law” conference. The event is scheduled from 9 a.m. to 4 p.m. at the UO in Portland’s White Stag Block, 70 NW Couch St.

In a series of panel discussions moderated by faculty members from UO and Willamette University, graduate students and sports business professionals will discuss a variety of topics about legal issues of the sports industry. Scheduled panels will include: The Law of Sports Leagues; Sports Business In-House Counsel; The NCAA and Legal Compliance; and Agents, Contracts and Negotiation.

The conference will feature representatives from the Portland Trail Blazers, Nike, adidas, Columbia Sportswear, Professional Bowlers Association, BDA Sports Management and Sports Management Worldwide.

According to UO’s Jumane Redway, law and business student and conference organizer, this conference is the first of its kind for the university and is a celebration of the richness and depth of the local sports business community.

“The Portland metro area's beautiful settings and easy access to the outdoors have made it a hub for sporting goods companies,” said Redway. “Portland's position in the sports world presents questions for business professionals and legal experts alike, which make this conference a great opportunity for professionals, students and the general public.”

General admission to the event is $40, and student admission is $15. Participants must register by Wednesday, Jan. 21. For more information about the event and to register, visit http://bizlaw.uoregon.edu/lesa/sports08/. Lunch will be provided. CLE credit is pending.

The conference is sponsored by the UO Center for Law and Entrepreneurship, the James Warsaw Sports Marketing Center and the Sports and the Entertainment Law Forum.

Losers by AKO: Round 2

As a New Commissioner of the New York State Athletic Commission Begins Her Tenure, The Question is Begged as to Whether Two Former World Champions That Were Placed on Administrative Suspension by Her Predecessor Could Have Done Anything to Reclaim Their Boxing Licenses (Continued)

by Paul Stuart Haberman, Esq.

The Arguments Not Made on Behalf of Holyfield and Jones

What arguments could Evander Holyfield or Junior Jones have offered in support of a lawsuit against the Commission? While it would be difficult to show an “error of law” with regard to the Commission’s administrative suspensions, given the wide latitude that it has in administering them, one argument that could have been made was that their suspensions were “arbitrary and capricious.” With Holyfield and Jones, it appears that their early blessings, in terms of ability and talent, became their curses. An argument could be made that they were arbitrarily and with caprice held to a higher standard than the average opponent that is brought in to lose, a local ticket seller of limited capability to begin with, or a more lightly regarded world class contender or titleholder. Perhaps a statistical analysis could have been done of those who were not suspended in New York despite a number of particularly brutal or telling losses over the later portion of their careers. Indeed, Muhammad Ali had success in his lawsuit against the Commission by demonstrating that the basis provided for the denial of his license, his criminal conviction for evading the draft, was arbitrary and capricious after he was able to show that there were scores of individuals with criminal convictions that were granted licenses by the Commission prior to the denial of his application. Similarly, Holyfield or Jones could have attempted to document the losses taken in the later portion of the careers of other boxers that fought in New York around the same time that they were suspended. If a statistically remarkable amount of boxers showed an appreciable decline in their skill levels, but were granted licenses, perhaps a successful argument could have been made that the Commission acted in an arbitrary and capricious manner when it handed down their administrative suspensions.

Alternately, Holyfield and Jones could have also argued that their respective administrative suspensions lacked rational bases. Holyfield could have made the argument that he simply had a bad night against Larry Donald, himself a former Olympian and top 25 boxer at that time, and that the losses that he suffered prior to the Donald fight were to top flight competition and not to the heavyweight division’s peasant class. Jones, who had not fought in three years prior to his suspension, could have argued that his suspension lacked a rational basis, as it came about without as much as a single comeback fight to demonstrate what abilities he may have had left following his three-year hiatus from the ring.

Each of the above arguments could have been rebutted by the Commission by virtue of the fact that it is bestowed with the ability, under Section 1812 of the Unconsolidated Laws of New York, to “exercise its discretion” in determining whether a boxer has the “general fitness” to be given a license. With regard to a claim that it acted arbitrarily and capriciously with regard to Holyfield, the Commission could have argued that Holyfield, in showing porous defense, minimal offense, and marked lethargy in his loss to Donald, appeared wholly unable to compete any longer on a world class level in boxing and was a threat to his own well-being for as long as he continued to take on the caliber of boxer that he been facing for so many years. In short, the Commission could have stated that Holyfield no longer had the “general fitness” to continue boxing in New York State. Jones, the Commission could have argued, had lost to a boxer that was not on his level in his last match three years earlier, was only three years older at the time he was suspended, and generally appeared more vulnerable to a lesser caliber of boxers that had been the case earlier in his career. Thus, the Commission could have argued Jones was also a threat to his own well-being and that he too did not have the “general fitness” to continue boxing in New York State.

The rational basis arguments could have been rebutted on substantially similar grounds as the arbitrary and capricious arguments. Briefly, the Commission could have argued that it rationally exercised its discretion in finding, through its subjective observations, that Holyfield and Jones did not demonstrate the “general fitness” to box in New York State anymore. In support of their claims, the Commission could have submitted affidavits and sworn testimony on what its members, licensees, and other boxing insiders had observed with regard to each boxer in the months and years preceding their suspensions.

Even Winners Can Be Losers

Whether or not Holyfield and Jones could have succeeded in court on the merits of the above- proffered arguments, or others not advanced herein, a bigger nemesis faced each of them in the event that they lost their initial appeals to the Commission: Father Time. Lawsuits, barring early resolutions, take an appreciable amount of time to make their way through the New York State court system. At the time of their suspensions, Holyfield was already 43-years-old and Jones was 35. In boxing years, time was of the essence to each of their careers. Even if they had fought the decisions to administratively suspend them and won, they would have already lost additional months and years off of the tail end of their careers.

Conclusion

Whatever someone’s personal opinion is of whether or not Evander Holyfield or Junior Jones should have been cleared to continue boxing by the Commission, their administrative suspensions raise some intriguing questions about the powerful sway that the Commission can have over a boxer’s career. Taken to its logical extreme, if the Commission observes a single sparring session in which a formerly untouchable boxer takes an unusual beating, or someone overhears a single conversation during a night of boxing at the Roseland Ballroom where a once capable boxer sounds a little more garbled than he used to, the AKO can be scored against them with little chance of their winning a successful appeal of it. As Melvina Lathan, a long-time professional boxing judge, ventures deeper into her new position as the Chairwoman of the New York State Athletic Commission after replacing Ron Scott Stevens, the man who was ultimately responsible for suspending Holyfield and Jones, one has to wonder if she too will be inclined to take such powerful measures to hasten the end of the careers of other professional boxers. If so, who will be next on the chopping block? Perhaps it will be another aging legend or two. Or perhaps it will be a boxer that you manage or promote if he does not give Lathan and the Commission the right signals while fighting, sparring, or conversing in New York State’s gyms and fight venues. The moral of the story: Even if a veteran boxer protects himself at all times in New York, the administrative suspension can split his guard and end his career in a flash.

[This article will be published in the Spring 2009 issue of the New York State Bar Association's Entertainment and Sports Law Journal]

Paul Stuart Haberman, Esq. is an attorney at the New York law firm of Heidell, Pittoni, Murphy & Bach, L.L.P. He is also a New York State licensed boxing manager and the Chairman of the Sports Law Committee of the New York County Lawyers Association. Mr. Haberman represented Junior Jones’s manager back in 2006. Also available at http://www.8countnews.com (with footnotes). ©

Losers by AKO: Round 1

As a New Commissioner of the New York State Athletic Commission Begins Her Tenure, The Question is Begged as to Whether Two Former World Champions That Were Placed on Administrative Suspension by Her Predecessor Could Have Done Anything to Reclaim Their Boxing Licenses

by Paul Stuart Haberman, Esq.

Throughout the 1990s, Evander Holyfield and Junior Jones were among the boxing elite. Holyfield, a 1984 Olympic bronze medallist, former undisputed cruiserweight champion, and one-time undisputed heavyweight champion of the world punched his way into boxing immortality through a series of exciting fights, including his epic trilogy with fellow heavyweight champion Riddick Bowe and his crushing knockout of Mike Tyson. Jones, a former two-time New York Golden Gloves champion as an amateur, rose to prominence with a hard-fought unanimous decision win over Jorge Eliecer Julio for the WBA bantamweight title, and sealed his place in boxing history with back-to-back victories over the previously undefeated Mexican legend-in-the-making Marco Antonio Barrera for a portion of the super bantamweight crown. Like many top boxers before them though, both Holyfield and Jones took their share of losses against their younger peers as they got older and inched towards veteran status. Perhaps the most devastating blows they ever received, however, came not from any of their opponents in the ring, but rather from the New York State Athletic Commission (hereinafter the “Commission”) and its former Commissioner, Ron Scott Stevens. The punch thrown: an administrative suspension.

Holyfield was placed on administrative suspension in 2005 following a lopsided points loss to fringe heavyweight contender Larry Donald at Madison Square Garden. His loss convinced the Commission that his skills had eroded to such a degree that he should not be boxing in New York anymore. Jones, who was planning a comeback, was given his suspension around the same time after the Commission decided he had “diminished skills,” despite not having fought in three years. In an instant, Holyfield became a marginalized, but still lucrative boxer fighting both overseas and under the auspices of some of America’s weakest boxing commissions, while Jones was effectively retired by the athletic commission of the very state where he fought his way into amateur boxing greatness. Neither appealed their suspension. While many boxing cognoscenti felt that Holyfield and Jones were being saved from themselves by their respective suspensions, the laws governing the use of the administrative suspension beg the question: How would Holyfield and Jones have successfully contested their suspensions? Or, to put it another way, how could they have avoided being losers by administrative knockout?


The Definition of Administrative Suspension and Its Implications

Under Section 1812 of the Unconsolidated Laws of New York, the New York State Athletic Commission is given the power to exercise its discretion when issuing boxing licenses so that it may determine whether the “financial responsibility, experience, character, and general fitness of an applicant…are such that participation of such applicant will be consistent with the public interest, convenience or necessity of the safety of boxing and wrestling participants and with the best interests of boxing or wrestling generally[.]” In its exercise of this discretion, the Commission is empowered to issue both medical suspensions, which are based on objective medical findings of a fighter’s temporary or permanent unfitness to box, and administrative suspensions, which are subjective and based on any number of factors, including personal observations of members of the Commission and anecdotal evidence from people around boxing.

The differences between the two types of suspensions are significant. Under a medical suspension, a professional boxer is not permitted to receive a license to box for a fixed or indefinite period of time in any member commission of the Association of Boxing Commissions, the organization that promotes uniformity in boxing throughout the United States, the Native American Tribal Nations, and Canada. If a boxer is administratively suspended by an individual commission, however, another state, tribal nation, or provincial commission may use its discretion in determining whether or not to license a suspended boxer to fight. Notations regarding both types of suspension are made in a compendium put together by Fight Fax, Inc., the official record keeper of professional boxing. Each commission has access to the suspension information contained in Fight Fax, Inc.’s database and can base their decisions on whether or not to issue licenses based upon the information within.


The Appeals Process for a New York State Athletic Commission Suspension

The New York State Athletic Commission is mandated to deliver all bulletins and notices to its licensees to the licensee’s registered address. Once a boxer is suspended by the New York State Athletic Commission and receives notice of same at his registered address, he is entitled to submit a written request for a hearing “to determine whether such suspension should be rescinded” within 30 days after “the date of notice of suspension.” At the hearing, “licensees and other witnesses shall testify under oath or affirmation, which may be administered by any commissioner or authorized representative of the commission actually present.” The New York State Athletic Commission is the “sole judge of the relevancy and competency of testimony and other evidence, the credibility of witnesses, and the sufficiency of the evidence” presented at the hearing. After the hearing, “the commission representatives conducting the hearing shall submit findings of fact and recommendations to the commission, which shall not be binding on the commission.”


In the case of administrative suspensions, the above-referenced procedure may seem absurd when its application is contemplated. That is because, in essence, the boxer must petition the New York State Athletic Commission within a month of his administrative suspension to argue that he does not have, for example, “diminished skills” and that the Commission’s subjective observations and conclusions are flawed. Further, the onus falls entirely on the boxer to disprove the basis of the administrative suspension and not at all on the Commission, which must simply furnish a rational basis for their decision to suspend the boxer and does not need to assign any probative value to the evidence presented. In short, the boxer-petitioner is telling the same administrative body that just deemed him unfit to fight anymore that he is fit to continue fighting through the presentation of evidence that the Commission need not consider. Even if the appeals process sounds like an exercise in futility, however, an attempt to bypass the initial appeal can be fatal to a boxer’s chance to get his suspension lifted. This will be discussed more below.


Taking The New York State Athletic Commission to Court

Under Article 78 of New York State’s Civil Practice Law and Rules, an individual that is aggrieved by the action of an administrative agency may file a lawsuit against that agency to challenge the basis of its determination. Among the issues that may be raised in an Article 78 proceeding “is ‘whether a determination was made in error of law or was arbitrary and capricious or an abuse of discretion[]’” or “lacking a rational basis[.]” An Article 78 proceeding “must be commenced within four months after the administrative determination to be reviewed becomes ‘final and binding upon the petitioner.’” Only when the individual seeking review has been harmed by the administrative determination does it become “final and binding.” Necessarily then, when an agency creates the impression that a determination was intended to be non-conclusive, the statute of limitations does not start to run.

Generally, an individual seeking to file an Article 78 proceeding must first exhaust all of his administrative remedies, meaning that if the government agency that suspended them had an in-house appeals process, the individual would first have to go through that appeals process before he could seek relief from the courts. A court may dismiss an Article 78 proceeding for not utilizing said appeals processes. An exception to the general rule arises if an aggrieved party can establish that it would have been futile to exhaust all of their administrative remedies prior to filing an Article 78 proceeding. This can be demonstrated by showing that the appeals process set up by a particular agency has an air of futility, either because those reviewing the appeal are the exact same people that issued the suspension in the first instance, that employees of the agency displayed an animus unique to the individual prior to his suspension, or otherwise.

The New York State Athletic Commission is a New York State administrative agency and, as such, is subject to judicial review through an Article 78 proceeding. Prior to filing an Article 78 proceeding against the Commission, a boxer placed on administrative suspension must first go through the initial hearing detailed above. If a boxer were to bypass the hearing and simply file an Article 78 lawsuit, a court would be well within its discretion to dismiss the lawsuit for failure to exhaust his administrative remedies. That is, of course, unless they can demonstrate to the court that it would have been futile based upon the rationale provided by the Commission for their administrative suspension.

Round 2: Tomorrow.

[This article will be published in the Spring 2009 issue of the New York State Bar Association's Entertainment and Sports Law Journal]


Paul Stuart Haberman, Esq. is an attorney at the New York law firm of Heidell, Pittoni, Murphy & Bach, L.L.P. He is also a New York State licensed boxing manager and the Chairman of the Sports Law Committee of the New York County Lawyers Association. Mr. Haberman represented Junior Jones’s manager back in 2006. ©

New Sports Law Scholarship

Recently published scholarship includes:

E. Jason Burke, Note, “Quasi-property” rights: fantasy or reality? An examination of [CBC v. MLBAM] and fantasy sports providers’ use of professional athlete statistics, 27 WASHINGTON UNIVERSITY JOURNAL OF LAW & POLICY 161 (2008)

Timothy D. Cedrone, Comment, A critical analysis of sport organization bankruptcies in the United States and England: does bankruptcy law explain the disparity in number of cases?, 18 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 297 (2008)

Walter T. Champion, Jr., Looking back to Mackey v. NFL to revive the non-statutory labor exemption in professional sports, 18 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 85 (2008)

Doriane Lambelet Coleman & James E. Coleman, Jr., The problem of doping, 57 DUKE LAW JOURNAL 1743 (2008)

Jennifer Ann Heiner, Comment, Concussions in the National Football League Jani v. Bert Bell/Pete Rozelle NFL Player Ret. Plan and a legal analysis of the NFL’s 2007 concussion management guidelines , 18 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 255 (2008)

Amy Christian McCormick & Robert A. McCormick, The emperor’s new clothes: lifting the NCAA’s veil of amateurism, 45 SAN DIEGO LAW REVIEW 495 (2008)

Duncan McHardy, Reconciling soccer authorities and European Union institutions: who is best placed to administer governance within the European soccer market? 18 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 105 (2008)

Diana Moss, Regional sports networks, competition, and the consumer, 21 LOYOLA CONSUMER LAW REVIEW 56 (2008).

Richard A. Posner, In defense of Prometheus: some ethical, economic, and regulatory issues of sports doping, 57 DUKE LAW JOURNAL 1725 (2008)

Alison E. Price, Comment, Understanding the free speech rights of public school coaches, 18 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 209 (2008)

Clifford Stott, et al., Tackling football hooliganism: a quantitative study of public order, policing and crowd psychology, 14 PSYCHOLOGY, PUBLIC POLICY & LAW 115 (2008)

Edmund Ursin & John N. Carter, Clarifying duty: California’s no-duty-for-sports regime, 45 SAN DIEGO LAW REVIEW 383 (2008)

Ray Yasser, Warren Spahn’s legal legacy: the right to be free from false praise, 18 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 49 (2008)