Saturday Links

* I have a new column on SI.com concerning a "last second" appeal brought by the prosecution in the Barry Bonds trial, which was set to begin on Monday and now likely won't start for weeks, if not months. The prosecution wants the Ninth Circuit to reverse Judge Susan Illston's evidence rulings concerning the exclusion of various BALCO related materials. I don't think the appeal will work and because of the delay it is poised to cause, it may backfire on the prosecution. Hope you can check out the column.

* Ian Fischer of Florida Law Online has a great write-up of the recent University of Florida sports law symposium that I had the good fortune of being a part-of. The event had some star panelists, including ESPN founder Bill Rasmussen and Kevin Sullivan, who was White House Communications Director under President George W. Bush.

* Kirk LeCureux, the Managing Editor for the University of Florida Entertainment Law Review, tells me that his journal is interested in sports law article submissions. If you have written a sports law paper that is good, consider e-mailing it to Kirk at kirk.lecureux[at]ufl.edu

* The National Sports & Entertainment Law Society Blog has some good posts up, including on how the bad economy impacts on sports law and posts on Tejada and A-Rod.

* Howard and I were interviewed by Paul Elias of the Associated Press on pre-trial evidence rulings in the Bonds case.

The Implications of Kevin Durant's Jersey Retiring

Congratulations to Kevin Durant, whose No. 35 was just retired by his alma mater, the University of Texas. Durant's time at UT was admittedly brief; he played just one season before turning pro. But it was quite the season: he averaged 26 points and 11 rebounds per game, leading his team to the second round of the NCAA tournament and earning the honor of 2006-07 National Player of the Year.

Still, it was just one season.

Should a player receive such distinction by a university when his commitment to the school would seem to have been mainly about satisfying the NBA's age limit, which requires that a player be 19 years of age plus one year removed from high school? I wonder, how often did Durant attend classes in the spring semester? What was his involvement in the university, other than his exceptional basketball play -- did he participate in any student clubs or perform any community work ? Did he at least follow the rules for living in his freshmen dorm, if in fact he lived in one? What does all of this say, if anything, about the student-athlete mission of the NCAA?

Maybe those questions don't matter. Their relevance would seem to depend on the criteria for jersey retiring. If it's all about basketball production, and if one season of play is enough, then Durant certainly deserves to have his number retired. Also, as my Vermont Law School colleague and friend Jason Czarnezki (of Empirical Legal Studies blog fame) wonders, Durant's earning of the National Player of Year might, like at UNC, automatically mean jersey retirement. Should these be the tests for an institute of higher education?

Let's think about Durant's contributions. In addition to his excellent play, Durant generated a lot of money for UT, with his jerseys selling well and with improved attendance to UT basketball games. I imagine his presence also helped with recruiting, and perhaps also in attracting alumni donations and maybe even in generating more applications from high school students (aka, "The Flutie Effect").

But for an institute of higher education like UT, which has a preeminent academic reputation in various fields, there's an argument to be had that jersey retiring should at least acknowledge the student-athlete's contributions as a student. It's not clear that happened here. In fact, for what it's worth, the official story on the University's website is entirely about Durant's basketball achievements.

As several of us have argued, these would be avoidable situations if there was no restriction on supremely talented high school basketball players being eligible for the NBA Draft. There is plenty of empirical support for letting high schoolers turn pro, be it on-court perfromance, off-court performance, or related points (see e.g., Alan Milstein's "Kobe" and "Reggie Bush Sweepstakes"). Plus, if no restriction existed, then a player like Durant who chose to attend college, and to presumably also attend college classes, would have done so without people questioning why he is there.

Sonny Vaccaro in the Hoosier State

For those of you near Indiana University-Bloomington, Sonny Vaccaro will present there on Monday, March 2nd from 7:30 to 9:00 p.m. He will discuss the NCAA's treatment of student-athletes, particularly male basketball players, and the relationship between those players contributions to their universities and the income generated by those universities from sports TV contracts and related revenue sources. He will also address the NBA's age limit and the possible trend of teenage star basketball players who are ineligible for the NBA due to age going to play pro hoops abroad (like Brandon Jennings is doing in Italy).

For more information about Sonny's talk at Indiana University-Bloomington, click here. My thanks to Ryan Rodenberg, who teaches at Indiana University-Bloomington and runs Sports Law Professor blog, for the information.

For those of you near Indiana University-Indianapolis, Sonny will be speaking there on March 4th from 5:00 to 7:00 p.m. Details of that event are available here.

2009 Tulane Law School Moot Court Mardi Gras Invitational Sports Law Competition

Last week, Tulane Law School hosted the 2009 Tulane Law School Moot Court Mardi Gras Invitational Sports Law Competition. This year’s problem was based on hybrid of the single entity issue raised in the American Needle case and the release issue raised in the MSG-NHL case .

I want to take this opportunity to thank the students at Tulane Law School—in particular Susan Jaffer, Paul Lund, Demelza Baer, and Taryn Brown—for all of their hard work in putting this event together. I also want to thank our “celebrity” guest judges for joining me on the panel to judge the finals of the competition. The guest judges were: Don Fehr, Executive Director of the Major League Baseball Players Association; Gary Roberts, Dean and Gerald L. Bepko Professor of Law Indiana University School of Law – Indianapolis; and Richard House, General Counsel of the New Orleans Hornets. And, of course, thanks to the students from the 37 different law schools from around the country for competing in this year’s event. All of the judges were impressed with the quality of the teams from the first round through the finals. I hope you enjoyed the competition and were able to find some time to take advantage of all that New Orleans has to offer (well, maybe not all of it) during Mardi Gras.

Finally, congratulations to the winners of this year’s competition. As always, the winning brief will be published in The Sports Lawyers Journal. Here are the results:

The winner of the 2009 Competition was: William & Mary Law School.

Semi-Finalists were: William & Mary Law School, Western State University Law School (second place), University of Virginia and Capital University.

The best brief was submitted by: Florida Coastal School of Law.

The top 5 Oralists were: 1) Sarah Grimm (Ohio State University Moritz School of Law), 2) Arpan Sura (William & Mary), 3) Mathew Spriggs (Ohio State University Moritz School of Law), 4) John J. O'Kane (William & Mary) and 5) Adam Milasincie (University of Virginia School of Law).

Here are the schools that competed in this year’s competition.
1) Florida Coastal School of Law Team
2) University of Detroit Mercy School of Law
3) Indiana University School of Law
4) University of Connecticut School of Law
5) UC Hastings College of Law
6) Florida State College of Law
7) Drexel University Earl Mack School of law
8) University of North Dakota School of Law
9) Charlotte School of Law
10) Western State University College of Law (Second Place)
11) Brooklyn Law School
12) The George Washington School of Law
13) Marquette University Law School
14) Capital University Law School
15) William & Mary Law School (Winner)
16) Temple Law School
17) Cornell University Law School
18) Benjamin N. Cardozo School of Law
19) Nova Southeastern University Law Center
20) Loyola University New Orleans College of Law
21) West Virginia University College of Law
22) Wayne State University Law School
23) Howard University School of Law
24) University of Maryland School of Law
25) Harvard Law School
26) DePaul University College of Law
27) Wake Forest University School of Law
28) University of Wisconsin School of Law
39) Thomas Jefferson School of Law
30) University of North Carolina School of Law
31) Emory University School of Law
32) Ohio State University Moritz School of Law
33) University of Michigan Law School
34) Villanova School of Law
35) University of Virginia School of Law
36) The John Marshall School of Law
37) The University of Toledo College of Law

The 22nd Sports and Recreation Law Association Conference

The 22nd Annual Sports and Recreation Law Association takes place from March 4 - 7 in San Antonio, with presentations and speakers covering a number of issues. SRLA's s conferences focus on issues of school and amateur sports, particularly questions of personal injury and risk management. The subjects may be of interest to those interested in teaching, writing and practicing in those areas of law that do not get the media publicity as legal issues of professional sports do.

Professional sports issues will be covered as well. The keynote speaker is Greg Kondritz, corporate counsel of the Houston Texans who will discuss "Life as an In-House Counsel with an NFL Franchise" on March 5th at 11:00 AM. For more information about the conference, check the organization's website srlaweb.org.

Law Professor's New Book Argues for Unionization of Minor League Baseball

Via the Workplace Law Prof blog and my colleague Joseph Slater, McGeorge Law Professor and labor arbitrator Don Wollett has released a new book, Getting on Base: Unionism in Baseball. The book argues that minor league baseball players should be organized into a union. Among the responses so far:

Great! …[I] agree … not affording collective-bargaining to minor leaguers is self-serving and outrageous. Chuck Mack, Vice President of the International Brotherhood of Teamsters.

Great contribution to baseball history…invaluable insights. Judge Alan Hancock.

After you’ve read Getting On Base…, you, the silent partner, may want to stand up and be heard, Duane Beeson, Esq., senior partner Beeson, Tayer and Bodine.

Don’s ideas about “members-only” bargaining for minor league players in, for example, the independent minor league teams in the U.S., and a different kind of “full services union” (complete with hiring halls) in the foreign player market, are very creative, Charles Askin, arbitrator.

New Sports Law Scholarship

Recently published scholarship includes:

Ian C.B. Davis, Note, An analysis of horse racing jockeys riding under Kentucky’s workers’ compensation laws, 97 KENTUCKY LAW JOURNAL 173 (2008-2009)

Dionne L. Koller, How the United States government sacrifices athletes’ constitutional rights in the pursuit of national prestige, 2008 BYU LAW REVIEW 1465

Raymond Shih Ray Ku, Is nominal use an answer to the free speech and right of publicity quandary?: lessons from America’s national pastime, 11 CHAPMAN LAW REVIEW 435 (2008)

Michael A. Mahone, Jr., Note, Sentencing guidelines for the court of public opinion: an analysis of the National Football League’s revised personal conduct policy, 11 VANDERBILT JOURNAL OF ENTERTAINMENT & TECHNOLOGY LAW 181 (2008)

Matthew J. Mitten, A triple play for the public domain: Delaware Lottery to Motorola to C.B.C., 11 CHAPMAN LAW REVIEW 569 (2008)

Anthony Vecchione, Comment, Fantasy sports--has recent anti-gambling legislation ‘dropped the ball’ by providing a statutory carve-out for the fantasy sport industry? 61 SOUTHERN METHODIST UNIVERSITY LAW REVIEW 1689 (2008)

Maureen C. Weston, The fantasy of athlete publicity rights: public fascination and fantasy sports’ assertion of free use place athlete publicity rights on an uncertain playing field, 11 CHAPMAN LAW REVIEW 581 (2008)

Evidence excluded in Bonds case

Judge Illston's order is here Download USAvsBondsOpinion021909. Straightforward, but a good review for my Evidence class of a number of concepts--real evidence requires a chain of custody, the chain of custody requires admissible evidence, the search for hearsay exceptions, and the unreviewable discretion that district court judges have on procedure and evidence.

Only one part of the opinion gave me a pause: She excluded one of three audio transcripts of conversations--the one in which Bonds' trainer, Greg Anderson (the guy whose refusal to testify is the cause of all this) speaks with Bonds' personal assistant about random drug testing for the upcoming (2003) season and seems to suggest that he knows someone at the testing lab and he will be tipped in advance to when, if ever, Bonds will be tested. Judge Illston rejected the government's argument that this is admissible as a statement against interest, because "the government has not established that it was a criminal or civil offense in 2003 to help athletes evade
detection by professional sports associations."

But this seems a bit too quick. If a lab employee were tipping off players (or members of their posses) about upcoming tests, wouldn't MLB have some claim against the lab and the employee (fraud, interference with business expectation, something else (help me out, tort people))? And wouldn't MLB also have a claim against the posse member (in this case, Anderson) who received the tip and passed it along, also frustrating MLB's business expectations? Maybe this just was a matter of what the government brought forward on the motion. But it seems Anderson could have gotten into some trouble by receiving and passing along these tips, such that his admission of it would be against his interest.

WTA Fines Dubai Tournament for Ban on Israeli Player

It is a truism that sports and politics should not mix. It is an equal truism that they do. The question is in the justification. Nations have boycotted the Olympics and the Olympics have boycotted nations, such as Apartheid-era South Africa. Numerous debates as to the wisdom of boycotts and their effect on sports have gone on for years.

But sometimes there comes a political act that is so wrongheaded that it is difficult to come up any justification for it -- except obvious discrimination. Such a decision came last week when Israeli tennis professional Shahar Peer was barred from competing at a WTA-sanctioned event in Dubai, United Arab Emirates. The Dubai Championship, with millions in prize money, is an attempt by the country and its rulers to create an attractive venue for premier sporting events. Touting itself as a welcoming place for people all of the world, the UAE's rulers wish to create a friendly, tolerant place for sports to flourish. Friendly and tolerant to all, except, apparently Israeli citizens.

The recent war in Gaza was the pretext for the government's actions. The organizers said that they feared fan anger over Israel's actions because the anger would spill into riots if Peer were to play. In fact, these have been tough times for Israeli athletes. An Israeli basketball team was chased off the court during a game in Turkey and the players were attacked with bottles thrown from some "Pro-Gaza" demonstrators. (Incidentally, Turkey was given credit for a "victory"). An upcoming Davis Cup match in Sweden will be played without fans because of threats.

The Sony Ericsson WTA sanctions the Dubai event and the organization initially criticized the action, but did not take any action until today. In a statement posted on their website, the Tour's board, after criticizing the UAE's action as "unjust discrimination," announced the following actions:

• Fined of the Dubai tournament $300,000
• Awarded $44,250 to Peer – an amount equal to the average prize money that she earned per tournament (singles and doubles) in 2008
• Awarded $7,950 to Anna Lena Groenefeld, who was to be Shahar Peer’s doubles partner in Dubai and who was unable to compete in doubles with Ms. Peer. The amount is equal to the average prize money that she earned per tournament in doubles in 2008
• The posting by the Dubai tournament of a $2 million financial performance guarantee
• Shahar Peer Ranking Points - The awarding of 130 ranking points to Shahar Peer – an amount equal to the points that she earned during the same week in 2008 (week of Memphis) that she was unable to defend this past week in Dubai as a result of the denial of her entry visa by UAE. Such points will remain on Ms. Peer’s ranking until such time as she has had an opportunity to earn equivalent points at the next tournament offering ranking points equal to the Dubai tournament.
• Most importantly, the Dubai organizers also must confirm that qualifying Israeli players will get visas at least eight weeks in advance to remain on the tour schedule for 2010.

According to the WTA, the $300,000 fine represents the highest fine ever levied against a Tour member and proceeds will be used to compensate Peer and Groenefeld.

In the wake of this criticism, the UAE decided to grant a visa to Israeli men's player Andy Ram for an upcoming tournament after the men's counterpart, the ATP had warned that future events could be in jeopardy if Ram wasn't allowed to enter.

The WTA's actions are a justified moral response to the UAE's actions and also a good example of governance control. The organization -- like the ATP -- is not a sports league in the traditional sense, but an organization representing individual players which sanctions tournaments and set forth conditions for their players. It has a detailed structure -- with more than 400 pages of organizational materials, rules and regulations.

Some would argue that the actions do not go far enough. The fine may be a drop in the bucket for the UAE and this year's tournament took place without Peer. Although some wanted the WTA to stop its sponsorship of this year's event, that would have been impractical because of the last-minute nature of the visa rejection. After being assured of a visa, Peer was about to leave to Dubai from Thailand, when she was denied entry to the country. The other players were already there, so the tournament went on. That makes their action more egregious, and the WTA at the very least put the tournament's organizers on notice.

2009 Arbitration Season Ends with Settlement

The Washington Nationals and Ryan Zimmerman settled early this morning prior to their scheduled hearing at the midpoint figure of $3,325,000. So, the players prevailed in 2 of the 3 hearings this season and that marks the first time since 1996, when the players won 7 of the 10 hearings, that the players defeated the teams in arbitration. For the record, there have now been 487 hearings, and the teams have won 280 and the players 207. Teams are ahead in percentage, 57% to 43%. That is a 1 percentage point change from last year (58%-42%).

I went 0-3 in predictions. I was just as poor at this as I was with my 2 fantasy football teams this past season.

The final tally on the 43 settled cases:

Multiyear deals - 11
Above the midpoint - 5
Midpoint - 11
Below the midpoint - 16

Harvard Law School Sports Law Symposium: Sports Law in an Economic Downturn

I'm pleased to be joining Rick as a participant in this year's Harvard Law School Sports Law Symposium, which will be held on Friday March 13th and Saturday, March 14th at the law school.

The symposium, which is hosted by the Harvard Law School Committee on Sports and Entertainment Law, is in honor of Harvard Law School Professor Paul Weiler, one of the founders of U.S. sports law and the person who may deserve more credit for the growth of sports law than any other legal scholar.

The symposium's subject matter is "Resiting the Recession: Growth Opportunities for Sports in an Economic Downturn."

The event is open to the public, and details can be read at this link. In addition, Harvard Law School 3L Megha Parekh -- the sports co-chair of the Committee -- can be contacted with questions at mparekh[at]jd09.law.harvard.edu.

Here are some of the detiails:

New Stadiums
Friday, March 13, 2009 – 5 pm
Harvard Law School, Langdell North

The “New Stadiums” panel, moderated by Professor Peter Carfagna, will focus on the new stadiums that have been built recently, the difficulties teams face in financing stadiums, the use of public monies, and other issues associated with the development and leasing of sports venues.

Moderator:

Peter Carfagna
Partner, Calfee, Halter & Griswold LLP (Cleveland, OH)
Lecturer on Law, Harvard Law School

Panelists:

Derek Jackson
Vice President & General Counsel
Florida Marlins

Damon Jones
Vice President / Club Counsel
Washington Nationals

Andy Lee
Former General Counsel
New York Jets

Mike Lufrano
Senior Vice President, Community Affairs/General Counsel
Chicago Cubs

Allan G. Mutchnik
Partner
Skadden, Arps (Los Angeles)

New Media

Saturday, March 14, 2009 – 10:30 am
Harvard Law School, Langdell North

The “New Media” panel, moderated by Professor Rick Karcher, will cover how sports leagues and teams exploit new media and fantasy sports to generate revenues.

Moderator:

Rick Karcher
Florida Coastal School of Law

Panelists:

Bob Bowman
President and Chief Executive Officer
Major League Baseball Advanced Media LP

Frank Hawkins
Partner
Scalar Media

Mike Mellis
Senior Vice President & General Counsel
Major League Baseball Advanced Media LP

Bryan Perez
Senior Vice President and General Manager
NBA Digital

Michael Zarren
Assistant Executive Director of Basketball Operations/Associate Counsel
Boston Celtics

New Markets
Saturday, March 14, 2009 – 2 pm
Harvard Law School, Langdell North

The “New Markets” panel, moderated by Professor Mike McCann, will cover how sports leagues choose which markets to reach, the legal challenges associated with expansion into new markets, and how leagues approach branding and marketing their sport domestically and abroad.

Moderator:

Michael McCann
Associate Professor of Law, Vermont Law School
Legal Analyst and Si.com Columnist, Sports Illustrated
Co-Founder, Harvard Law School Project on Law and Mind Sciences

Panelists:

Rob Friedrich
NBA China

Eric Nyquist
Vice President, Strategic Operations
NASCAR

Jon Oram
Partner
Proskauer Rose

Jim Renacci
Vice Chairman of the Executive Committee
Arena Football League


Keynote speakers include Andrew Zimbalist (economics professor at Smith College and rewnowed sports business expert) and Jeff Pash (NFL's Executive VP and General Counsell)

It should be a great event.

Catching Up with Some Links

* Oliver v. NCAA: Last week, Alan Milstein blogged on an Ohio state court's ruling in favor of Oklahoma State University star pitcher Andrew Oliver, who had been suspended by the NCAA. The NCAA had suspended Oliver after learning that, years earlier, Oliver had met with Minnesota Twins representatives with his attorneys while contemplating whether to retain his amateur status and attend college or turn pro after high school. A few days ago, Southern Illinois University Professor Tassos Kaburakis blogged on the same subject on the National Sports and Entertainment Law Society's blog. Alan supports the decision, while Tassos disagrees with it. I'd check out both posts (though I'd read the decision in its entirety first).

* Darren Rovell's Sports Biz on CNBC: Always a great website to check out, Darren has had some particualrly interesting posts of late, including on commissioners' salaries and the NCAA's efforts to ban certain vitaminwaters.

* National Sports and Entertainment Law Society Blog: has some excellent posts up, including on age limits in pro sports -- this blog has been generating very good content. And the Society's main website is also worth checking out.

* Free Miguel Tejada?: Aaron Zelinsky of Yale Law School and The Huffington Post makes the case that the prosecution construction's of 2 U.S.C. 192 was over-broad and should not include congressional staffers on off-site investigations.

* Crowd Noise and Refereeing: Are referees unknowingly biased by crowd reaction? Even if they try to be fair and tune out hostile and unruly crowds who are yelling at them, does statistical data suggest they often fail? The Situationist has some links on the topic.

* Training Athletes to Safely Use Guns: On Sports Agent Blog, Darren Heitner wonders if it makes sense to train athletes on how to use a gun.

* Sonny Vaccaro to speak at Indiana (Indianapolis) Law School: On Wednesday, March 4th, Sonny Vaccaro will present at Indiana University School of Law - Indianapolis on the NCAA's treatment of student-athletes, particularly male basketball players, and the relationship between those players contributions to their universities and the income generated by those universities from sports TV contracts and related revenue sources. He will also address the NBA's age limit and the possible trend of teenage star basketball players who are ineligible for the NBA due to age going to play pro hoops abroad (like Brandon Jennings is doing in Italy). For more information about Sonny's talk, click here.

* Sports Law Review Article Submissions: If you have written a sports law paper that may be worthy of publication in a law review, keep in mind that there are many sports law reviews and journals seeking submissions. Just consider those listed in our "Sports Law Resources" link section on the left-hand side of our blog (and yes, we know we have to update our links). One law review that has emailed us of their interest in subsmissions is the Virginia Sports and Entertainment Law Journal. For more information, contact Lauren Paull, Articles Development Editor, at lpaull[at]virginia.edu

Not a Problem or Not Enough Money to Fund the Program: Florida Ends HS Anabolic Steroids Testing Program

The Florida High School Athletic Association’s anaboloic steroid testing program, which began in July 2007 for athletes participating in football, baseball and weightlifting, has been put on the back burner, at least for now, due to the economy and the rationale that the money must go elsewhere. In a deteriorating economy, state officials apparently cannot justify spending the $100,000 needed to do the testing (or a cost of $166 a piece). Cristina Alvarez, spokeswoman for the Florida High School Athletic Association, states that in this economy the money must go to the classroom and textbooks. Moreover, of the 600 teens tested randomly at 53 schools, only one steroid user was found.

Testing was only performed on one percent of Florida HS student-athletes. Testing was administered by the National Center for Drug Free Sport, Inc, with samples analyzed at UCLA's Olympic laboratory. Testing was limited to tackle and flag football, boys and girls weightlifting, softball, and baseball, and was random (school randomly picked, thereafter, student-athlete randomly picked). Unlike Illinois' voluntary program, which I discussed on this Blog last January, submitting to this random testing was a prerequisite for membership in the FHSAA under Florida law (2007-192). A student-athlete could opt out of the testing program (no consent given), but then could not participate (practice or competition) in the aforementioned sports. Said student-athlete would be permitted to participate in non-tested sports.

Outside of the cost, reasons given for dropping the testing program is there is no problem at the high school level in Florida ("only one positive test"), it was not comprehensive enough (max out at 1% of student-athletes in grades 9-12), and the recent A-Rod scandal. While I believe the last reason is a throw-away, it certainly does not bode well for additional states to pick-up testing for anabolic steroids or other performance enhancing drugs at the high school level when in the midst of one of baseball's superstars admitting using performance enhancing drugs, his home state (starred at Westminster Christian High School in Miami and signed a national letter of intent to play baseball at "the U") drops testing.

For discussions of legality of such testing, see Board of Ed. v. Earls and Vernonia School Dist. v. Acton.

Salary Arbitration Update

There were four hearings set for today, and all proved to be unnecessary as settlements were finalized between Corey Hart and the Brewers, Conor Jackson and the Diamondbacks, Mike Jacobs and the Royals, and Josh Willingham and the Nationals. That leaves only the Atlanta Braves and both Jeff Francoeur and Kelly Johnson and Washington and Ryan Zimmerman left for this year. Of the 40 settled cases this year, we have the following results:

Multiyear deals - 11
Above the midpoint - 5
At the midpoint - 8
Below the midpoint - 16

The 11 multiyear deals are the most for the six year period of 2004-2009. There were 10 in both 2007 and 2008. There were 5 in 2004, 8 in 2005, and 7 in 2006. This is an interesting trend, and I will comment more about this at the end of the week. This really reduces the number of comparables that can be considered.

Yale Law School Sports Litigation Panel

Next Wednesday, February 25th, Yale Law School will be hosting a panel discussion on sports litigation.

I am honored to be moderating the event, which has some phenomenal speakers.

The panel will take place from 4:10 to 6 p.m. and is open to the public.

Here are the details:

Yale Law School

Yale Entertainment and Sports Law Association hosts a Panel Discussion on Sports Litigation

February 25 2009 4:10 to 6:00 p.m.

Moderator:

MICHAEL MCCANN (Professor at Vermont Law School; Legal Analyst at Sports Illustrated)

Panelists:

HAL BIAGAS (Deputy Counsel, National Basketball Players Association; plays a lead role in collective bargaining for players and has advised Stephon Marbury in his on-going dispute with the New York Knicks)

BILLY MARTIN (has litigated on behalf of Michael Vick, Allen Iverson, Jayson Williams, and other athletes; has represented other notable clients, including U.S. Senator Larry Craig and the parents of former White House intern Monica Lewinsky)

ALAN MILSTEIN (has litigated on behalf of Maurice Clarett, Allen Iverson, Eddy Curry, jockey Eddie King, and other athletes, and also a nationally-recognized expert on bioethics and clinical trials litigation)

JEFFREY MISHKIN (has litigated on behalf of the National Basketball Association in all of the league's key litigations over the last 20 years, including in NBA v. Williams and NBA v. Motorola; formerly served as Executive Vice President and Chief Legal Officer of the NBA)

JAY REISINGER (legal adivser to Andy Pettitte and Sammy Sosa during Mitchell Report and Congressional hearings on steroids; also represents MLB players in salary arbitrations)

MICHAEL ZARREN (Assistant Executive Director of Basketball Operations and Associate Counsel of Boston Celtics; directs Celtics in legal matters, including those concerning player contracts and endorsement and licensing deals; also plays a key role in the evaluation of players)

Special thanks to Michael Bloom, a 3L at Yale Law School and Co-Chair of the Yale Sports and Entertainment Law Association, for putting this event together. For information on attending, please contact Michael at michael.bloom[at]yale.edu

Update: My thanks to ESPN's Henry Abbott for telling his readers about the panel. Also, related point to the panel: William Rothstein of the National Sports and Entertainment Law Society and Vermont Law School has a terrific post up today on the NBA's age limit and O.J. Mayo.

Can Barry Bonds Receive a Fair Trial?

I address that question and some others in a new SI.com column. Here's an excerpt:

* * *

In addition to avoiding Bonds-haters, counsel for Bonds will seek jurors who are skeptical about the government's decision to prosecute Bonds. A libertarian-leaning person, for instance, might object to the expenditure of millions of tax dollars to prosecute baseball players who used substances to help hit home runs. While Bonds is not on trial for steroids per se, as his case concerns lying under oath, the charges against him would have never occurred but for the government's extensive investigation into BALCO and the interstate sale and distribution of steroids. Bonds' attorneys also figure to seek jurors who could believe that Bonds has been singled out among the many MLB players who used steroids (hence the desire to ask about Rodriguez).

The prosecution, in contrast, will probably try to identify jurors who are inclined to focus on the legal intricacies of the case: the arguably compelling evidence that Bonds knowingly lied under oath, as detailed in each of the 10 perjury counts. Such jurors might be particularly beneficial if prosecutors are only able to prove Count 10, which alleges that Bonds knowingly lied about being injected by personal trainer Greg Anderson. Indeed, Kathy Hoskins, the sister of Bonds' longtime friend/business manager Steve Hoskins, is expected to testify that she saw Anderson inject Bonds. Bonds could thus be found guilty for committing perjury without the government proving that he knowingly took steroids, since the lie would involve the injection itself, rather than its contents. If that is all the prosecution could prove, prosecutors would want jurors who would be willing to find Bonds guilty on that one and only count, as opposed to jurors would be tempted to let an otherwise-exonerated Bonds walk free.

* * *

For the rest of the column, please click here.

When they say they don't want to politicize sports, . . .

Shahar Peer of Israel, the # 48-ranked women's singles player, was denied an entry visa to the United Arab Emirates to play in this week's Barclays Dubai Tournament, citing security fears of having an Israeli playing in Dubai in the wake of the recent military conflict in Gaza. The denial, by the way, came on Saturday night, with Peer's first match scheduled for Monday. The Tennis Channel refused to broadcast the tournament following the UAE's decision.

The tournament organizer, Dubai Duty Free, said Peer's "presence would have antagonized our fans." The statement then added "We do not wish to politicize sports, but we have to be sensitive to recent events in the region and not alienate or put at risk the players and the many tennis fans of different nationalities that we have here in the UAE."

Sorry, folks; you cannot have it both ways. Shahar Peer is neither an Israeli political official nor a member of the Israeli military; she played no role in the events in Gaza and those events have nothing to do with her--and certainly nothing to do with her as a tennis player. You have banned an Israeli player from the tournament (the country, actually) explicitly on the ground that her mere presence as an Israeli (playing for herself, not even on behalf of her country) would "antagonize" and "alienate" people and be insensitive of recent (political) events. By definition, you are politicizing sports; you are incorporating socio- and geo-political considerations having nothing to do with sport into decisions decisions about who gets to participate in a sporting event. And it is insulting and dishonest to claim otherwise.

This is not necessarily to criticize politicizing sport. If you believe that the actions of Israel are such that its citizens should not be permitted to participate in international competitions, make that argument; but acknowledge that you are being explicitly political--and take the hit when others respond to those political positions, as by (perhaps) pulling the event off the WTA schedule.

Interestingly, this whole thing might be repeated at next week's men's tournament. Andy Ram, an Israeli doubles specialist, still is waiting for his visa.

ABA Teleseminar this Thursday

This Thursday, the ABA Section of Antitrust Law Trade, Sports & Professional Associations Committee, Section of Intellectual Property Law, The Forum on the Entertainment and Sports Industries and the ABA Center for Continuing Legal Education are sponsoring a 90-minute teleseminar and live audio webcast titled, Whose Home Run is it Anyway? Practical Advice on Intellectual Property Issues in Sports.

The teleseminar will explore the ownership and use of intellectual property by sports leagues, their member teams, player associations, and other entities. The panel will focus on the efforts of professional sports leagues and player associations to control the intellectual property activities of both teams and third-parties, including:

• The burgeoning fantasy sports industry
• The efforts of individual teams to gain increasing control of their own intellectual property

Fantasy leagues have existed for decades, but prior to the internet age participants in those leagues typically cobbled together statistics from the sports section of local newspapers. Most leagues however consisted of small groups of friends. The growth of the internet spawned an explosion of interest in fantasy leagues, making participation more efficient and allowing firms to monetize what had once been a private system. In recent years, attempts to profit from the use of players' statistics have caused disputes between player associations, sports leagues, and third-party fantasy sports purveyors.

Panelists will also discuss disputes that have also arisen regarding intellectual property among some professional teams and the leagues of which they are members. Some teams have sought to manage and profit from their intellectual property in ways not sanctioned by the leagues, leading to legal disputes, including--most prominently--the New York Rangers' recent lawsuit against the National Hockey League.

Program Time
1:00 PM - 2:30 PM Eastern
12:00 PM- 1:30 PM Central
11:00 AM - 12:30 PM Mountain
10:00 AM - 11:30 AM Pacific
6:00 PM - 7:30 PM London
7:00 PM - 8:30 PM Brussels

Panelists
Program Moderator: Scott Walker, Counsel, Lowenstein Sandler PC
Glenn Colton, Partner, Wilson Sonsini Goodrich & Rosati
Annette L. Hurst, Partner, Orrick, Herrington & Sutcliffe LLP
Rick Karcher, Director, Center for Law and Sports, Florida Coastal School of Law
James Keyte, Partner, Skadden, Arps, Slate, Meagher & Flom LLP
Andrew Lee, General Counsel, New York Jets

This is a great way to pick up CLE credit because you can listen to the seminar right at your desk. To register, click here.

The Michael Phelps Saga

We've somehow ignored the much discussed Michael Phelps situation concerning a certain photo, for which he has apologized. I was recently interviewed by Ed Berliner on Stone Cold Sports to discuss it. Here are my comments can be heard at this link.

Two Arbitration Hearings Postponed

The Associated Press reported yesterday that the arbitration hearings for Los Angeles Angels of Anaheim pitcher Ervin Santana and Tampa Bay Rays infielder Willy Aybar were postponed. I cannot remember a postponement of a hearing in recent years, but the general consensus is that the Angels and Rays are close to a settlement with Santana and Aybar. That leaves 11 players and teams scheduled for hearings next week as salary arbitration will come to an end for 2009.

New Article: The Truth about Collusion in Baseball

For those interested in the history of baseball collusion and its implications on the game today, here is a link to my newest article -- "Moving Past Collusion in Major League Baseball: Healing Old Wounds and Preventing New Ones."

This article discusses the history of collusion in Baseball, as well as explains how Baseball collusion in the 1980s led to more recent allegations of collusion (A-Rod, Bonds) and other troubling aspects of Baseball's labor-management relationship (for example, drug testing disagreements).

Here are a few highlights from the piece:

(1) Selig's Documented Role in Collusion: Although MLB Commissioner Bud Selig continues to deny any role in collusion, Arbitrator George Nicolau in his Collusion II ruling cited testimony from Philadelphia Phillies president William Giles that Selig -- in the capacity of Milwaukee Brewers owner -- called him to discourage the Phillies' signing of catcher Lance Parrish (p. 619-20).

(2) George is the Good Guy: Although often maligned for other reasons, Yankees owner George Steinbrenner was probably Baseball's least culpable owner during the Collusion Era. In Arbitrator Thomas Roberts' Collusion I ruling, he cites an offer Steinbrenner made for catcher Carlton Fisk as the only bona fide free agent offering during the 1985-86 season. (p. 615).

(3) The Smallwood Plan: Major League Baseball continues to criticize Barry Bonds's collusion allegations as being unrealistic and fanciful. However, the idea really can't be that off-the-wall. On September 1, 2006 -- long before Bonds was out of baseball -- Philadelphia Daily News reporter John Smallwood wrote an editorial piece explicitly suggesting that clubs collude against his services (p. 630).

(4) The Solution: Want to keep future allegations of collusion out of Baseball? The answer involves four steps: (i) returning the game's oversight to a neutral, outside commissioner; (ii) separating the role of Baseball CEO from Baseball Commissioner; (iii) allowing union lawyer oversight of Major League Baseball's off-season meetings; and (iv) providing full disclosure to players and fans about past collusion (p. 635-639).

(This article is cross-posted at SportsJudge Blog).

Diversity and Sports CLE Conference

Next month, Widener Law will be hosting "Diversity and Sports: The History, The Challenges, and The Future." The event is part of the school's Dean’s Leadership Forum On Diversity and will take place on March 16, 2009, at the school's Harrisburg, PA campus.

The brochure for the event can be found here.

Jon Pessah of ESPN Magazine has an interesting investigatory report on the BALCO investigation in the latest online edition of the magazine (Who's on Trial in the Bonds Case? Not Just Barry). Jon is not only a journalist, but he also teaches sports journalism at Stony Brook University and has a unique perspective.

Salary Arbitration Update

The Tampa Bay Rays and Willy Aybar are reportedly close to a 2-year deal. According to my hearing dates chart, they need to get this done today prior to their hearing. Here are the dates that I have for hearings next week:

Edwin Encarnacion (Reds) - Tuesday, February 17
Andre Ethier (Dodgers) - Tuesday, February 17
Jeff Francoeur (Braves) - Friday, February 20
Corey Hart (Brewers) - Wednesday, February 18
Conor Jackson (Diamondbacks) - Wednesday, February 18
Kelly Johnson (Braves) - Thursday, February 19
Ryan Ludwick (Cardinals) - Tuesday, February 17
Nate McLouth (Pirates) - Tuesday, February 17
Josh Willingham (Nationals) - Wednesday, February 18

I have not yet located the hearing dates for Mike Jacobs (Royals), Ervin Santana (Angels), or Ryan Zimmerman (Nationals)

The victory by the Rays over Dioner Navarro lifts the Rays hearing record to 4-0. They are the only unbeaten team left in arbitration hearings history. The Nationals now have a record of 3-2 after their loss to Shawn Hill, and the Marlins are 3-4 after losing to Dan Uggla.

Court Blows Fastball Down NCAA Pipe

In a long awaited decision, an Ohio state court has ruled in favor of Oklahoma State University star pitcher Andrew Oliver. You might recall, Oliver was suspended by OSU before a critical college tournament game after news emerged that years before he had met with Minnesota Twins representatives with his attorneys while contemplating whether to retain his amateur status and attend college or turn pro after high school. NCAA Bylaw 12.3.2 allows amateurs to retain attorneys or advisors while considering such options as long as such professionals are not present at any meetings with professional clubs.

Oliver challenged his suspension in the Court of Common Pleas of Erie County, Ohio, arguing among other things, that such a rule interfered with his attorney client relationship and was against public policy, kind words for a rule that is emblematic of NCAA hypocrisy and arrogance. The NCAA presumably wanted 18 year olds and their families to have to deal with professional clubs without professional help, thus limiting the ability to choose the best option between turning pro and remaining ineligible until the athlete’s junior year. Oliver also challenged his suspension under Bylaw 19.7, which essentially allows the NCAA to punish member schools if they do not immediately suspend an athlete the NCAA finds has violated one of its sacred By Laws.

Judge Tygh M. Tone’s Opinion is remarkable on several fronts. First, the Judge held that student athletes are third party beneficiaries to the agreements between the NCAA and its member schools and that the NCAA thus owes a duty of good faith and fair dealing towards student athletes. Those are concepts long missing from the manner in which the NCAA treats the kids on the playing fields and in the gyms on college campuses across this country. Second, the Judge declared NCAA By Law 12.3.2 “unreliable . . . capricious…illogical . . . and arbitrary” and declared it void and unenforceable. The Judge made a similar finding with respect to By Law 19.7, also declaring it void.

The Court then enjoined the NCAA from issuing any disciplinary action with respect to Mr. Oliver and announced the case would proceed to the next step of establishing damages Oliver suffered by the tawdry treatment he received from an institution thought to be impervious to the standards that govern the rest of us.

I'm leaving (Texas) today . . . New York, New York (Updated)

Updated and Moved to Top

Portions of Roger Clemens' defamation action against Brian McNamee was dismissed for lack of personal jurisdiction, in what sounds (according to the ESPN report) like a very unusual split-the-difference approach. The claims involving the statements to Bud Selig and Jon Heyman of Sports Illustrated both occurred in New York, so those claims do not belong in Texas. But the claims involving statements McNamee made to Andy Pettitte, which occurred in Texas, can remain. As I said, this sounds like an unusual approach, since the SI story was published in Texas and the "effects" of the defamation were felt in Texas, where Clemens resides and was working at the time.

Ironically, the dismissal comes a year and a day after McNamee removed the action to federal court.


The order is here: Download Clemens_v._McNamee. A few thoughts after a quick read:

1) The personal jurisdiction analysis as to the claims arising from statements to the Mitchell Commission and Sports Illustrated takes a very narrow approach to Calder v. Jones, which is not necessarily a bad thing. The court took the requirement that the defendant's contacts be directed towards the forum to be about more than the plaintiff's home state and whether the story was published in the state; much depended on the locus of the comments and the events described in the comments, which meant New York. I do wonder about the decision as to the statements made to SI. This is a national magazine with a substantial circulation in Texas, so McNamee surely knew that his statements about a Texan would be heard and would sting in Texas.

2) I wonder if Clemens is going to stick with his claim based on the statements to Pettitte. It is properly in Texas and it survived summary judgment on a statute of limitations defense, but the court held that the claim as stated is not libel per se, thus Clemens had to plead actual damages, which he was granted leave to do. But given that he is going to bring the big claims (the statements to Mitchell and SI) in New York, he probably will bring the whole thing there.

3) For my civ pro teaching purposes, a nice explanation of converting motions to dismiss into motions for summary judgment.

Guest Post: How A-Rod Can Still Get to Cooperstown (And Save Baseball)

The following is a guest post co-authored by Aaron Zelinsky and Benjamin Johnson of Yale Law School

* * *

Americans love heroes, and we love to see them fall. Alex Rodriguez was a hero, and now he’s falling fast. Batting clean-up behind Roger Clemens, Barry Bonds, and Mark McGuire, A-Rod joins the All-Star Team of the players who shot themselves in the foot – or the arm, or the thigh. The accolades and records of these disgraced players will find no place in Cooperstown.

But there’s hope for A-Rod. There’s still time to save himself and baseball.

We Americans also like a story of redemption. There can be second acts in American life after all. At 33, A-Rod still has good playing years left and much work to do on the field. However, it is off the field where he might find the road to deliverance and, with a little luck and a lot of contrition, maybe even the road to Cooperstown.

A-Rod’s comeback needs three things: First, he has to become the public face of baseball purists. He must ask for asterisks on his baseball cards for the years he was doping. He must disavow any claim to any records built even in part on banned substances. In particular, he must make it clear that he will never accept any accolades if he breaks Hank Aaron’s home run record due to those enhanced years in Texas. It will remain Aaron’s record.

Second, A-Rod must devote himself to cleaning up baseball. He needs to pressure the players’ union and the players individually to demand real, regular, and reliable testing. No more heads ups from the union. Everybody gets tested regularly. If you want to play major league ball, you will get tested.

Fans have been clamoring for this program for years, but don’t have the clout to budge the union. A-Rod does. He should follow Lance Armstrong’s example, and have himself tested publicly and regularly. A-Rod should thereby prove himself to be clean and pressure others to follow. If he can’t convince them into action, he can shame them.

Finally, A-Rod needs to stay healthy and play as long as he can play well. He must put up Hall of Fame numbers for the next five years to make the case that he is a Hall of Famer without the juice.

Baseball is an unforgiving game. Shoeless Joe was a great player who will never have his Hall of Fame plaque. Nobody played with more hustle than Pete Rose, but, to see Cooperstown, he will always have to buy a ticket. McGuire hit the ball out of the park, but the sportswriters still won’t let him into the Hall.

But for A-Rod, there is still hope. He can still earn his way to Cooperstown by saving the game he helped destroy.

Benjamin Johnson and Aaron Zelinsky are members of the Yale Law School Class of 2010.

Ankiel Settles Before Hearing at Midpoint - 13 Still Unresolved

Rick Ankiel settled with the St. Louis Cardinals just before his hearing was set to proceed today. Ankiel accepted a salary of $2,825,000, a figure right at the midpoint. Thirty of the exchanged numbers group have now settled with three proceeding to hearings. The players currently lead 2-1. Thirteen of the 46 exchanged numbers cases are still unresolved. So far this is the scorecard for the 30 settled cases:

Multiyear deals - 7
Above the midpoint - 4
At the midpoint - 5
Below the midpoint - 14

I'm leaving (Texas) today . . . New York, New York

Roger Clemens' portions of defamation action against Brian McNamee was dismissed for lack of personal jurisdiction, in what sounds (according to the ESPN report) like a very unusual split-the-difference approach. The claims involving the statements to Bud Selig and Jon Heyman of Sports Illustrated both occurred in New York, so those claims do not belong in Texas. But the claims involving statements McNamee made to Andy Pettitte, which occurred in Texas, can remain. As I said, this sounds like an unusual approach, since the SI story was published in Texas and the "effects" of the defamation were felt in Texas, where Clemens resides and was working at the time.

Ironically, the dismissal comes a year and a day after McNamee removed the action to federal court.

I am trying to find a copy of the opinion; more later.

Uggla Wins in Arbitration - Ankiel at Bat Today

Dan Uggla’s arbitration hearing was held yesterday in Phoenix, and I just read that he won. The Marlins offered $4,400,000, and Uggla countered with a request for $5,350,000. The midpoint is $4,875,000, and the difference between the two exchanged figures is $950,000. Uggla was paid $417,000 for the 2008 season. Uggla was eligible for arbitration for the first time this year, and he has 3.0 years of credited service.

The panel consisted of Richard Bloch, Frederic Horowitz, and Stephen Wolf. According to my research Richard Bloch, an experienced and veteran baseball salary arbitrator, has a 19-5 record in favor of teams. Fredric Horowitz has a 1-1 record based on his finding in favor of Shawn Hill this year and as a member of the Mark Loretta panel last year that was decided in favor of the Astros. Stephen Wolf has a 4-3 record in favor of teams after his panel voted in favor of the Rays against Dioner Navarro recently. So now that makes Bloch 19-6 for teams, Horowitz 2-1 for teams, and Wolf is even at 4-4.

Uggla has averaged 30 home runs and 90 RBIs in his three years in the National League, and he has been the topic of trade talks most of this off-season. The Marlins have Emilio Bonifacio, who came to Florida with pitcher P.J. Dean and infielder Jake Smolinski in a deal with Washington for pitcher Scott Olsen and outfielder Josh Willingham, who put in significant time in the minors at catcher. Olsen just settled this week with the Nationals and Willingham is slated for a hearing next Wednesday. I would suggest that Uggla will not be with the Marlins next year based upon the trade rumors and the general history of players going to arbitration often being moved to another team by the next year. I have not conducted much analysis of my data about the actual empirical work to support or disprove that basic question. That is work for another day, I guess. However, of the eight hearings last year, it was an even split with Brian Fuentas, Felipe Lopez, Mark Loretta, and Francisco Rodriguez changing teams. Ryan Howard, Oliver Perez, Jose Valverde, and Chien-Ming Wang are still with their same clubs heading into spring training.

Let’s look for a second at the middle infielders of the Phillies. Chase Utley avoided his first year of arbitration eligibility as well as a number of free agency years by signing a 7-year, $85,000,000 deal covering 2007-2013. Therefore, the multiyear deal number of $7,500,000 for 2008 and $11,000,000 for 2009 is not a good comparable data set. A few years ago, Jimmy Rollins moved from $450,000 in 2003 to $2,425,000 in 2004, his first year of arbitration eligibility. The following year he moved to $3,850,000 in base salary before finally landing a multiyear deal in 2006. Rollins hit 30 home runs and drove in 94 runs in his MVP season of 2007.

Would you want to consider Kelly Johnson in this discussion. He has not reached an agreement on his request for $3,300,000 against a Braves offer of $2,350,000. Brandon Phillips has more service time than Uggla. He signed a 4-year, $27,000,000 deal with the Reds covering 2008-2011. Rickie Weeks just agreed to a 1-year deal at $2,450,000. He does not have the power numbers of Uggla, but he is in the same service group as Uggla. I was leaning against Uggla winning his number, so you can mark me down as 0-3. With the Marlins losing this case, I will predict a quicker departure from Florida. But my predictive capability this year puts me in the cellar.

Rick Ankiel of the Cardinals should be conducting his hearing today. He wants $3,300,000 and the Cards offered $2,350,000. The midpoint is $2,825,000, and the difference is the same amount as Uggla's - $950,000. I have also been leaning toward the Cardinals, but maybe I should regroup on this one.

The Evolution of Street Knowledge

Webstreaming Live, Today and Tomorrow, Thursday and Friday, February 12-13th:
The West Virginia University College of Law Sports and Entertainment Law Society is proud to present "The Evolution of Street Knowledge: Hip Hop's Influence on Law and Culture." Prominent panelists will explore cutting edge topics in connection with hip hop's impact on many areas of the law, including sports law. Talib Kweli and Cornel West anchor the event as keynotes.


To watch the webstream live, go to:

www.law.wvu.edu/streetknowledge
click on the "webstream" link to the right on the homepage.

OR at 3:00 p.m. Thursday, February 12, 2009, you can go directly to:

http://lawmediasite.wvu.edu/mediasite/catalog/

The symposium schedule, including panelists, is reproduced below:

The Evolution of Street Knowledge:
Hip Hop’s Influence on Law and Culture

West Virginia University College of Law

WVU Law Center
Marlyn E. Lugar Courtroom
February 12-13, 2009

Thursday, February 12th:

3:00 p.m. Welcome
Dean Joyce McConnell, West Virginia University College of Law
Marjorie Fuller, Director, Center for Black Culture and Research
Emily Chatterjee, American Constitution Society

3:30 p.m. Panel I—When MCs Meet JDs: Hip-Hop’s Complex Relationship with Intellectual Property
Panelists: Horace Anderson, Associate Professor of Law, Pace Law School
Olufunmilayo Arewa, Associate Professor of Law, Northwestern University Law School

Akilah Folami, Associate Professor of Law, Hofstra Law School
Tonya M. Evans-Walls, Assistant Professor of Law, Widener Law School
Moderator: Will Rhee, Associate Professor of Law, West Virginia University College of Law

6:00 p.m. Keynote Address: by Talib Kweli, Hip Hop Artist and Activist, Lugar Courtroom

7:00 p.m. Reception: College of Law Lobby

Friday, February 13th:

9:00 a.m. Welcome
Anne Lofaso, Associate Professor of Law, West Virginia University College of Law

9:15 a.m. Panel II—Arrested Development: The Almighty Pursuit of Street Cred
Panelists: Reginald Robinson, Professor of Law, Howard University School of Law
andré douglas pond cummings, Professor of Law, West Virginia University College of Law
D. Aaron Lacy, Associate Professor of Law, Southern Methodist University Dedman School of Law
Moderator: Atiba Ellis, Legal Writing Instructor, Howard University School of Law

10:30 a.m. Panel III—From The Corner to the Corner Office: Hip Hop’s Impact on Corporate Culture and Law
Panelists: Carla Pratt, Professor of Law, Texas Wesleyan School of Law
Nick J. Sciullo, State Director, Growth Options for the 21^st Century
Kamille Wolff, Assistant Professor of Law, Thurgood Marshall School of Law
Moderator: Jena Martin, Legal Writing Instructor, Howard University School of Law

12 Noon—Luncheon, Davis Gallery

1:15 p.m. Panel IV—Stepping to the Mic: Hip Hop’s Expanding Voice in Social and Political Discourse
Panelists: Pamela Bridgewater, Professor of Law, American University Washington School of Law
Anthony Farley, James C. Matthews Distinguished Professor of Jurisprudence, Albany Law School
Robin Magee, Associate Professor of Law, Hamline University School of Law
Camille Nelson, Visiting Professor of Law, Washington University Law School
Moderator: Caprice Roberts, Associate Dean and Professor of Law, West Virginia University College of Law

4:00 p.m. Keynote Address: by Dr. Cornel West, West Virginia University Mountainlair

5:00 p.m. Book Signing with Dr. West

All are welcome. The event is free and open to the public. The webstreaming is live, but will be immediately archived after the event and available for viewing on the conference website.

Baseball, steroids, and jurisprudence

Here is a question for the jurisprudes and the crim law types out there (or just anyone else with an opinion):

In 1991, baseball established by rule that it was against the rules of the game to use a range of drugs, including steroids. There was no testing, no enforcement mechanism, and no determinate punishments for using steroids. That was the state of affairs until the start of the 2006 season, thus it was the state of affairs from 2001-03, when Alex Rodriguez has admitted to using steroids and when he tested positive. Of course, the commissioner did have catch-all "best interests of baseball" powers, so punishment was possible through that power. But absent testing, there arguably was no way ever to find out that someone was using steroids.

So, my question: Has Rodriguez "cheated" or "broken the rules" of baseball (put aside societal laws against steroid distribution, possession, or use) given the legal state as described. Is a stated legal prohibition that is not, as a matter of law, enforceable or punishable, a legal prohibition that can be violated?

A-Rod Aftermath: What about the 103 Other Names?

I have a new SI.com column on how the legal process intersects with possible disclosure of the names of the 103 Major League Baseball players (plus Alex Rodriguez) who tested positive for steroids. Here is an excerpt:

* * *

Through various means, player agents may likewise be aware of at least some of those names, and they could publicly reveal those names over time. Rival agents or agents for rival players might, for instance, leak damaging information about the other's clients. Legal and ethical responsibilities for agents remain a murky area of law, particularly since while agents who are attorneys are normally bound by provisions in the American Bar Association Model Code of Responsibility, non-attorney agents are not. Agents of MLB players must be certified by the MLBPA and are expected to follow the MLBPA's rules for agents. Still, leaks by agents do occur and are difficult to police.

* * *

One party not mentioned above may be the one with the greatest interest in the 103 names: Bud Selig, the commissioner of MLB. As commissioner, Selig possesses the "best interests of the game" authority, a purposefully vague concept, found in baseball's constitution (the Major League Agreement, originally drafted in 1921) and one that has been interpreted in various ways over the years by different commissioners. Selig might conclude that the 103 unknown names will hang over baseball like a black cloud, damaging the game and endangering its credibility with fans, many of whom, due to the economy, may already be inclined to attend fewer games and buy less merchandise. Although it would likely lead to legal objection by the MLBPA, Selig could release the 103 names (if he is aware of them) or demand that the MLBPA does so. Such moves would likely trigger a dramatic showdown between the league and the players, a provocative, though ultimately sad situation that could only exist in this Steroid Era of baseball.

* * *

For the rest, click here. My thanks to Brian Packney of Bleacher Report for his kind words about this column. I also discussed the A-Rod situation on The Fox News Channel and with Lou Dobbs.

Dioner Navarro's Arbitration Hearing Today

Dioner Navarro’s arbitration hearing was today. The Rays offered $2,100,000, and Navarro requested $2,500,000. The midpoint is $2,300,000, and Navarro’s service time is just over three years. He is eligible for the first time this year. There are a couple of good articles on Navarro that are worth looking at, see Tommy Rancel, “More on Arbitration and Dioner Navarro,” Draysbay.com, January 23, 2009, and Mark Topkin, St. Petersburg Times, “Sides Hope to Battle Without Bitterness,” February 8, 2009.

Both articles discuss John Buck, the Kansas City catcher, who settled for $2,200,000 with the Royals in 2008 when he was arbitration eligible for the first year. Buck will get $2,900,000 for this season after settling with the Royals in January. I think that Navarro gets the nod in this comparison, but it is a worthwhile comparable. Rancel also discussed Yadier Molina, but Molina signed a 4- year, $15,500, 000 multiyear deal covering 2008-2011. Multiyear deals are usually avoided in comparable data analysis in arbitration hearings.

Mark Topkin provides a quote from Kendall Almerico, Navarro’s agent, who went up against Rays’ general counsel John Higgins and the Proskauer Rose law firm at the hearing today: "I feel that Navi's arbitration number is very reasonable, especially given that he is offering the Rays a significant hometown discount over what the other All-Star catchers like Mauer and McCann were paid," Almerico said. Joe Mauer signed a 4-year, $33,000,000 deal covering 2007-2010. So, again, this a multiyear deal and generally not a useful comparison. Furthermore, Mauer grew up and attended high school in St. Paul, Minnesota. If we are discussing a “hometown discount,” you have to consider that when talking about Mauer. Mauer was also coming off of a strong 2006 year as the AL batting champion when he signed his current deal. Topkin noted that Navarro’s side would argue that “L.A.'s Russell Martin is getting $3.9 million” and All Stars Mauer ($3,750,000) and Atlanta's Brian McCann received $3,500,000 in his first year of eligibility. However, McCann also signed a multiyear deal - 6-years, $26,800,000 covering 2007-2012.

On the other side of the ledger, Topkin pointed out that the “Rays can cite others, such as John Buck ($2.2 million), Ryan Doumit ($2.05 million), Johnny Estrada and Mike Napoli ($2 million) and Kelly Shoppach ($1.95 million).” Doumit’s number is also year one of a 3-year deal.

Neither Napoli (Angels), who did sign this January with the Los Angeles Angels of Anaheim in his first year of eligibility, nor Shoppach (Indians), who also signed with Cleveland in January in his first year of eligibility, compare well against Navarro in my opinion.

The Rays certainly had to argue uphill today to discount Navi’s accomplishments during the 2008 campaign because he improved his batting average, made the All Star team, improved his statistics in throwing out runners, caught 117 games, and hit .293 in the postseason.

According to the articles posted this evening by AP, the arbitration panel was Elizabeth Neumeier, James Oldham, and Steven Wolf. Elizabeth Neumeier was part of the Hill panel last Friday that ruled in favor of the Nationals’ pitcher. According to my research, her record as a panelist is now 12-9 in favor of teams. Wolf is 3-3. Neumeier and Wolf were together as panelists last year when they split two of the eight 2008 hearings. They sided with Oliver Perez against the Mets, but they held for the Angels against Francisco Rodriguez. If I have the correct biographically data on James Oldham, he is currently the St. Thomas More Professor of Law and Legal History at Georgetown University Law Center. He is serving as the Grievance Arbitrator for the National Hockey League and the National Hockey League Players' Association. He is also the Permanent Umpire for Alcoa and the United Steelworkers of America. Professor Oldham has considerable experience as an arbitrator. According to my research, this is his first baseball case. Alden Gonzalez of MLB.com reported the Neumeier-Oldham-Wolf panel as Hill’s panel last Friday. However, the AP stories that I read covering Hill’s victory listed the panel as Robert Bailey, Fredric Horowitz, and Elizabeth Neumeier. If that information is correct, Bailey now has a 4-2 record favoring players, and Horowitz has a 1-1 record. Bailey was also a member of the Perez panel last year with Neumeier and Wolf. He was also on both the Ryan Howard and Brian Fuentas panels last year.

My analysis provides enough of a push for Navarro to get the nod tomorrow over the Rays. However, I am 0-1 this year, and anyone who tries to predict these outcomes does so at his own peril.

AM Law Daily Sports Law

Zach Lowe of the American Law Daily has a weekly sports law column that is definitely worth checking out -- this week he discusses the growing marijuana epidemic in Japan's sumo wrestling ranks, among other topics. Here's his take on pot-loving sumo wrestlers:

* * *

By now, you've surely heard about Michael Phelps's marijuana use and all the sponsorship money it's going to cost him. What you may have missed is the growing marijuana epidemic in Japan's sumo wrestling ranks.

The sport's governing body recently banned four wrestlers for life after they tested positive for marijuana, according to this AP story. Some fans are apparently upset that one of the expelled wrestlers may get severance pay. Apparently, Japanese sports enthusiasts have less tolerance for athletes who fail drug tests than we do over here, where pro basketball and football players get a few chances to clean up their acts before full-on expulsion.

* * *

Be sure to check out the rest.