National Sports Law Student Writing Competition

Marquette University Law School has announced a new writing competition open to students from any law school. Winners get published in the Marquette Sports Law Review and get to attend the National Sports Law Institute fall conference for free. The deadline for submission is July 17, 2009. The announcement is here.

"Tort Law and Journalism Ethics"

That's the title of my new law review article that will be published in Loyola University Chicago Law Journal. It can be downloaded from SSRN. You'll appreciate this paper if you're tired of a 21st Century press that disregards individual privacy, infiltrates the news with sensationalized stories, and blames their inaccurate reporting on "getting the story out there first" (in particular with respect to participants in the sports and entertainment industries).

I advocate that the justification for the First Amendment privilege becomes less compelling as the press continues to lose credibility and journalists fail to adhere to ethics principles they were taught in journalism school. The paper provides an in-depth analysis of Supreme Court precedent and explains how journalism ethics codes can be incorporated into tort defamation and privacy law standards without compromising the First Amendment. Journalism ethics and the First Amendment go hand in hand; they must co-exist in order to serve the social policies and objectives that support the First Amendment privilege.

Jeremy Tyler: High School Junior Basketball Phenom to Play Professionally in Europe

The NBA's one-and-done rule requires that a player be 19 years of age plus one year removed from high school (with "from high school" meaning having graduated from high school or one's class having graduated) in order to be eligible for the NBA draft. It's presumed that a player will attend college in that "one year removed" and save for Brandon Jennings, it's held true. Jennings, in contrast, has opted to play professionally in Italy while waiting to become eligible for the 2009 NBA Draft (he's likely going to be a top 10 pick). In addition to living in a rent-free luxury apartment in downtown Rome, among enjoying many other perks, Jennings is reportedly earning around $1 million this year, after tax, between basketball and endorsement income (in fact, he stands to earn more in endorsement income this year than any pick from the 2008 NBA Draft, save for the top three players selected, Michael Beasely, Derrick Rose, and O.J. Mayo).

Pete Thamel of the New York Times reports that high school junior Jeremy Tyler, thought to be the best young big man since Greg Oden, has also decided to play professionally in Europe. But Tyler plans to play in Europe a year earlier than his "one year removed." Indeed, he intends to spend what would be his senior year in high school playing professionally in Europe, most likely in Spain. Tyler's decision is consistent with the NBA's age limit, as his high school graduating class will graduate in June 2010 and thus Tyler will be eligible for the 2011 NBA Draft, where he's projected by some to be the top pick.

Tyler has apparently decided that he'd like to earn income off of his talents as soon as the market lets him, rather than waiting for an artificial two-year delay, during which time he could get hurt. Some may worry about whether Tyler's emotionally "ready" to turn pro, though I hope those same folks worried about Freddy Adu and Michelle Wie turning pro at younger ages, and I hope they are equally worried that many European pro players are younger than Tyler -- Danilo Gallinari, the Knicks' first round pick last year, was a pro in Europe at 15; fellow Celtics fans may remember Jiri Welsch, he too was a pro at 15 in Europe. Similarly, we don't hear people too concerned about Dakota Fanning and the Olson Twins and the many other child stars earning income off of their talents.

Here are a couple of excerpts from Thamel's story:

* * *

Tyler, 17, would become the first United States-born player to leave high school early to play professionally overseas. He is expected to return in two years, when he is projected to be a top pick, if not the No. 1 pick, in the 2011 NBA draft.

Tyler, who had orally committed to play for Rick Pitino at Louisville, has yet to sign with an agent or a professional team. His likely destination is Spain, though teams from other European leagues have shown interest. A spokesman for Louisville said the university could not comment about Tyler.

“Nowadays people look to college for more off-the-court stuff versus being in the gym and getting better,” Tyler said. “If you’re really focused on getting better, you go play pro somewhere. Pro guys will get you way better than playing against college guys.”

His decision is perhaps the most important one since Kevin Garnett jumped straight to the N.B.A. from high school in 1995.

* * *

But Brandon Jennings, a point guard from Los Angeles, became the first player to graduate from high school, skip college and play professionally in Europe. (Whether Jennings would have qualified academically to play at Arizona, where he had signed a letter of intent, is unknown.) He is in his first season with Lottomatica Virtus Roma in Italy and is projected as a high pick in the N.B.A. draft in June.

Tyler took Jennings’s path and added a compelling twist, perhaps opening the door for other elite high school basketball players to follow.

Sonny Vaccaro, a former sneaker company executive, orchestrated Jennings’s move and has guided Tyler and his family through the process.

“It’s significant because it shows the curiosity for the American player just refusing to accept what he’s told he has to do,” Vaccaro said. “We’re getting closer to the European reality of a professional at a young age. Basically, Jeremy Tyler is saying, ‘Why do I have to go to high school?’ ”

Vaccaro said he was unsure how much money Tyler would make, though it will most likely be less than the $1.2 million Jennings made in a combination of salary and endorsements this season. Vaccaro said Tyler would make a six-figure salary, noting that the economic crisis in Europe could hurt his earnings.

Vaccaro made his name by signing Michael Jordan to Nike in the mid-1980s and has advised numerous elite players over the years. “I believe he’ll be a 10-time All-Star with his ability,” Vaccaro said of Tyler.

* * *

For the rest of Thamel's story, click here. For additional perspectives see The Week and Money Players.

For empirical research on high school players and the NBA Draft, see my law review article Illegal Defense: The Irrational Economics of Banning High School Players from the NBA Draft and my study NBA Players That Get in Trouble with the Law: Do Age and Education Level Matter? and my research on points/boards/assists as featured in ESPN The Magazine. Also be sure to see Alan Milstein's comments from a New York Law School sports law symposium a month ago about a Taylor-like situation happening and the legal fallout.

Catching Up with Links

* Joshua Knipp and Michael Miller -- two students at Wake Forest University School of Law -- have posted on SSRN a draft of their interesting paper Finding a Balance: Advocating a Long-Term Solution to the NCAA's Battle with Technology in Recruiting.

* The annual Sports Lawyers Association Conference is coming up on May 14 in Chicago. For more information, click here.

* Max Eppel of Sports Agent Blog has a good feature piece on soccer agents and transfer windows.

* Jason Peck of Sports Agent Blog reports on the recently-held College Sport Research Institute conference (Day 1, Day 2).

* National Sports and Entertainment Law Society Blog has a number of good posts up.

* Marc Isenberg at Money Players writes about the NCAA reducing the time period underclassmen basketball players can test their NBA market value.

* I'll be at the NFL Draft this weekend -- if any Sports Law Blog readers are there, please let me know, it would be good to meet you in person.

Local News "Seeks the Truth"

I want to commend the Louisville Fox affiliate, WDRB-41, for its decision not to air, or even report on, its interview with Karen Sypher, the woman Louisville coach Rick Pitino asserts has attempted to extort him. According to an ESPN report late last night:

Karen Sypher recently did a lengthy interview with the Louisville Fox affiliate, WDRB-41, but the station reported Saturday night that it "has decided not to relate details of her claims at this time."

WDRB news anchor Candyce Clifft, who conducted the interview with Karen Sypher, said the station has chosen not to air it because "we couldn't substantiate the claims she was making." Clifft said the claims against Pitino were "of a personal nature, not related to his recruiting or coaching. That's all I'm at liberty to say."

Clifft said Sypher approached WDRB with the information.

Clifft said she interviewed Sypher for nearly two hours on-camera, in the presence of WDRB's general manager and news director. Afterward, the station had an independent polygraph expert administer a lie-detector test to Sypher -- a test she agreed to do before the interview.

Clifft said that the polygraph test could have any of three results: pass, fail or inconclusive. She said Sypher's test fell into the inconclusive range. Clifft said there were some questions she asked that Sypher did not answer conclusively or convincingly, which heightened the station's concerns about the veracity of her information.

Coupled with the fact that there were no criminal complaints filed or charges
levied, the station decided not to air the interview.

"I don't know if we'll ever air all or any of the interview," Clifft said. "Right now there
are no plans to do that."

The local Fox affiliate, and the reporter who conducted the interview, made journalism ethics a priority over national publicity in being the first source to reveal questionable allegations involving Rick Pitino that are unrelated to his coaching responsibilities. Since Pitino is a public figure, the Fox affiliate could have easily hid behind the First Amendment, which certainly would have protected them from a defamation lawsuit.

Another news source will gladly put journalism ethics aside in favor of profiting from tabloid journalism and feed the public with a sensationalized story, probably even before the day is over....

State action and the Yankees Lawsuit

In writing and speaking about fans' speech rights, the speech part always has seemed, to me, easy--of course someone can wear a t-shirt reading "Yankees Suck" and of course someone can jeer a player for making an error. And of course someone cannot be compelled to participate in a patriotic ritual such as singing "God Bless America." The harder part (at least at professional sporting events) has been whether the First Amendment is even in play when the controlling actor--the teams--are not obviously state actors. The lawsuit by the fan who was kicked out of Yankee Stadium in 2008 spends a lot of time in the Complaint trying to deal with, and overcome, that problem.

Two preliminary issues make this case both easier and more difficult than others. First, old Yankee Stadium was owned by the City of New York (the Complaint alleges the City bought it in the early 1970s) and rented to the Yankees, on (as usual) fairly favorable terms. This does not resolve the issue, but it makes for less gray area than if the stadium were privately owned but publicly funded or owned by hybrid entity. Second, this case involves three groups of defendants, each subject to different rules of state action and liability: a) the Yankees, who promulgated the forced-patriotism policy); b) the officers who removed the plaintiff from the park; and c) New York and Police Commissioner Kelly, who obviously acted under color of law, although the theory of liability is not entirely clear from the complaint.

Let's consider each in turn:


The Yankees:

Eight paragraphs are devoted to the connections among the City, the Yankees, and the Stadium. It describes the costs that the City has incurred in operating the old Stadium and building the new Stadium, the benefits the City has received (in terms of either rent or percentage of revenues), the favorable terms of the lease to the Yankees, and the close involvement of the City in managing the stadium, including (relevant here, although not mentioned in the Complaint) providing the security that enforced the policy, and in helping procure funds for the new stadium. All of this goes towards establishing the Yankees as a state actor under two theories: symbiotic relationship or entwinement.

Under the former test, a private entity may become a state actor when it shares a "symbiotic," mutually beneficial relationship--where the government incurs some costs and obligations, the government and private entity both benefit, and the "integral connection" suggest a degree of state involvement in the private entity's unconstitutional conduct. The key here is whether Burton and symbiotic relationship has any vitality left (Mike Dorf has suggested it doesn't, I remain somewhat optimistic). Burton famously involved a privately owned whites-only restaurant operating in a city parking facility. In those pre-Civil Rights Act days, the Court used this test to hold that the restaurant was was violating the Fourteenth Amendment, because, essentially, the city was benefiting from private discrimination (because rents were tied to profits and the restaurant was profitable because it discriminated) and the restaurant was benefiting from using public property to discriminate. Here, those mutual benefits come about not because of race discrimination, but because of rules that arguably violate the First Amendment--but the same idea applies. Rents are tied to attendance and attendance depends (at least somewhat) on keeping most fans happy by not forcing them to be confronted by counter-speech that offends them, thus the team's decision to limit some fan speech by making fans remain in place during GBA

Under the second test (which is new, but created in the First Amendment context), courts look to entwinement between government and private entity in carrying out the conduct. So it may be relevant, for example, that uniformed police officers (who appear to be on duty) are enforcing the Yankees' rules in this public space (more on that below).

The Officers

The two Doe officers were in uniform, although their precise duty status is unclear. According to the Complaint, they were hired through the NYPD's "Paid Detail Program," through which private entities (and several other New York sports teams have used this program) are able to hire NYPD officers to provide security at events. Such officers are in uniform and carrying their service firearms, and subject to NYPD regulations, although there apparently are no specific guidelines about officer conduct while working under the program. The officers also are subject to control by the private entity and are deemed to be "working directly for the vendor." So there seems to be public/private entwinement in the supervision and control of the officers assigned to work the game.

The Complaint also alleges that the officers at least "appear" to be on duty and thus clothed with the authority that comes with being police officers, perhaps a greater authority (and thus a greater ability to enforce Stadium rules) than an off-duty, non-uniformed officer or a private security officer. In fact, the Complaint alleges that the purpose of the Paid Detail Program is to provide a "highly visible police presence" at such events--presumably with the goal of ensuring greater control; in other words, to make it appear that the authority of the NYPD was behind the enforcement of the team's speech-restrictive policies. That suggests the officers were working at the game in their roles as police officers and thus did act under color of law in removing the plaintiff from the park.

New York City and Commissioner Kelly

State action is easy here--New York City always acts under color of law and Kelly is being sued for establishing (or at least signing off on) the Paid Detail Program that put the officers in place to enforce this speech-violative Stadium policy, an official act as the policymaker for the NYPD. The Complaint is a bit under-developed in alleging conduct by the City or Kelly (as a supervisor) that could establish liability, but a knowledgeable reader (the court and opposing counsel) will understand that, because the officers were present at the Stadium and acting pursuant to a policy, that pulls the policymaker and the City into the case.

Reaction to Thomas among FIU factulty

Not surprised this is happening: The director of women's studies at FIU is organizing protests against the hiring of Isiah Thomas as men's basketball coach, relating to Thomas having been found liable (along with the Knicks and the team owner) for the sexual harassment of a Knicks employee.

I was surprised we did not hear more from these faculty members early in the week, from when the rumors of the hiring began on Sunday until the press conference on Wednesday. But it all happened so quickly, no one had time to get a statement or protest organized. But this is a legitimate objection to the hiring, one I mentioned initially and one that I hope gave the administration genuine pause before making this move. This is the one element of risk (more than Thomas' ability as a basketball coach and recruiter, where he cannot be much worse than recent past coaches) that could come back to bite the university.

Women's studies is planning to hand-deliver a copy of the FIU Sexual Harassment Policy to Thomas at the men's basketball office--a cute, but somewhat in-your-face, publicity stunt if the goal is genuinely to engage Thomas on this issue. They also want to organize a teach-in on sexual harassment and discrimination, with the hope that Thomas, athletics department administrators, and the new FIU president (who will be announced in a couple of weeks) will participate.

Two Sports Law Talks at Mississippi College School of Law

If any of you are in the Jackson area, I'lll be giving a talk today at Mississippi College School of Law from 11:30 a.m. to 1:00 p.m. on recent sports law issues and careers in sports law. It will be in Room 251 and directions to the law school can be found here. There is also a Facebook page on today's event. My thanks to Madeline Hankins and the rest of the law school's Sports and Entertainment Law Society for putting this together.

Tomorrow I'll be giving the key note address at the law school's alumni and reunion weekend from 7:00 to 7:30 p.m. at the TelCom Center in downtown Jackson. My topic will be "What Recent Sports Law Developments Can Teach Us About Legal Professionalism." The event costs $35 to attend. For more information, click here.

Hip Hop Law Blog

The West Virginia University College of Law Sports and Entertainment Law Society is proud to announce the launch of a new blog that will add texture and content to the entertainment law and interconnected sports law space: HipHopLaw.com. Go to:

http://hiphoplaw.com


A recent post by Professor D. Aaron Lacy suggests that the NBA Dress Code, adopted back in 2005, might constitute race discrimination in the workplace. See:

http://hiphoplaw.blogspot.com/2009/04/is-nba-dress-policy-pretext-for-racial.html



Comments, commentary and reasoned disagreements are welcomed.

Finally! Fan challenges speech restrictions at publicly owned ballpark

A lawsuit was filed in the Southern District of New York yesterday by a baseball fan named Bradford Campeau-Laurion, who alleges that he was kicked out of Yankee Stadium last summer by two uniformed NYPD officers for trying to go the men's room during the Seventh Inning Stretch and the playing of God Bless America. (H/T: One of my civ pro students). He thus violated a Yankee/Yankee Stadium policy, enacted explicitly because the Yankees and others purportedly found people stretching during the Stretch "disrespectful."

Named defendants include New York City, Police Commissioner Raymond Kelly, three Doe officers, and the Yankees. The complaint is loaded with allegations designed to establish that the Yankees are a state actor, primarily through the symbiotic relationship test and the exchange of benefits between the team and the city in ownership and usage of both the old Yankee Stadium and the new one. Campeau-Laurion alleges violations of the First and Fourth Amendments and their state constitutional equivalents, federal and state public-accommodations laws, and various state torts. Interestingly, the plaintiff is represented by the NYCLU and two students at NYU's Civil Rights Clinic (I might have done a clinic in law school if I could have gotten a case this interesting).

You all know that I have argued ad nauseum that such a claim should succeed and that restrictions or regulations of fan speech, including forced participation in rituals such as GBA, violate the First Amendment. So I buy everything the complaint is putting forward. The Yankees should be deemed a state actor, at least for purposes of operating a publicly owned ballpark over which they have near-exclusive use and control; in any event, here you have the NYPD (through an official program that provides uniformed officers for stadium security) directly involved in enforcing the policy, so state action is pretty obvious. As for the First Amendment argument, people in a public forum cannot be forced to participate in patriotic and symbolic rituals by having to remain in place during that ritual; they necessarily have the right to "symbolically counter-speak" against that ritual by getting up and walking out.

This could be fun to watch.

Michigan's Contractual Liability if Paulus "Transfers" to Play QB

It certainly has been a rough year for Michigan football. The team was simply handled by a then-underrated Utah, embarrassed by mid-major Toledo, all the while beset by its coach's messy divorce from his former school. The latest news from Ann Arbor is that, in spite of its recruitment of heralded quarterback Tate Forcier, the team may be led next year by Greg Paulus.

Paulus is well known as a three-year starting point guard (and fourth year bench player) for the Duke Blue Devils. While considering a move to Michigan, he is also reportedly being evaluated for an NFL contract by the Green Bay Packers. That a player's choice is between playing college football for a new school or NFL football for a pro team certainly seems to undercut the NCAA's much ballyhooed notion of amateurism. That said, were Paulus to enroll at Michigan as a "graduate student", say in the one-year M.S. in Kinesiology, NCAA rules might allow him to play one season of football.

Under the NCAA's "five-year rule," an athlete may compete in college athletics for no more than four seasons in a single sport for the first five years after graduating from high school. Paulus has no remaining basketball eligibility, but could compete in another sport for one more year. And under Rule 14.1.9.1, the "One-Time Transfer Exception," a graduate student may under some conditions use any remaining eligibility at a new institution without sitting out the year ordinarily required for college transfers.

A liberalized version of Rule 14.1.9.1 was at one point overridden in part by Division I schools. The one-time transfer rule is limited by Rule 14.5.2.2.10(a), under which a player can only compete in bowl subdivision football, if transferring from an institution that offers that level of football, when the player has at least two years of football eligibility remaining.

Does Paulus meet that test? Although he has four years of football eligibility remaining, the five-year rule would cut off three of those years (even if he remained at Duke), so under the five-year rule it would seem like he has only one actual year remaining and would thus not qualify for the one-time transfer exception. However, if the 5-year rule were ignored or viewed separately from the four-years-of-eligibility rule, then I suppose he would have four years remaining.

Let's assume that, as most media coverage suggests, Paulus would in fact qualify to play for the Wolverines next year (or that he received a waiver from the NCAA). Though possibly permissible under NCAA bylaws, allowing his transfer would certainly be cynical. In addition it could potentially expose the Michigan Wolverines to a (perhaps challenging) breach of contract or fraud claim. The "mission statement" of the Michigan Athletics department contains the following provision under the theme "integrity":

We follow the intent and the letter of each rule by which we have agreed to abide. We are honest in our dealings with student–athletes, coaches, staff, opponents, and governing bodies.

While the team might be complying with the letter of the rule, could it be said that it would be following the rule's intent? No school has an obligation under NCAA rules to comply with the intent of an eligibility mandate; but UM may have voluntarily assumed such an obligation.

If the NCAA's basic purpose is to maintain athletics as an integral part of the educational mission of universities, the intent behind any of its rules has to be interpreted in that light. For a player to select a new school after participating in top-tier athletics for four straight seasons seems contrary to the intent of the NCAA's amateurism ideal. Players at Michigan who have competed to play quarterback -- including new recruits -- might have a legitimate claim to having been the victims of fraud or breach of a representation made as part of the student-athlete contract.

Isiah Thomas, FIU Basketball Coach?

Beginning when I was around 16, I wanted to be a college basketball coach. I was a student manager in college, worked as a coach at summer basketball camps throughout college, and my first job after college was as assistant coach at a D-III school in Chicago. Basically, I was trying to set up the career trajectory that Nets Coach Lawrence Frank followed about 10 years later--short Jewish kid from NJ becomes manager at Big Ten school, parlays it into coaching career. It seems to have worked out slightly different for him than it did for me.

This biographical detour is to say that, 15-20 years ago, I was perfectly happy with the notion that D-I basketball coaches made (at a minimum) five times as that of the ordinary humanities professor--in fact, I was hoping to have one of those paying-five-times-as-much jobs. I noted how out-of-whack coaches' salaries were, but bought the now-largely-challenged economic arguments about the real financial value college sports brings to the university. Of course, I never envisioned an economic downturn this severe that would affect universities (particularly mine) this severely. Nor did I envision my life at a small, underfunded public university in a state with no income tax and no significant commitment to higher education.

All of which is to express genuine bafflement and uncertainty at the news that FIU has hired Isiah Thomas to be its men's basketball coach, with a press conference to announce the hiring today. In no particular order, a jumble of thoughts:

1) It certainly is putting FIU on the college-sports map, at least for now. We lead PTI last night. The last time FIU was part of a national college-sports story was after the brawl with Miami during a football game.

2) I do not know right now how much Thomas is making, but I imagine there was a premium to get him and his name down here--not U-Conn/Jim Calhoun territory, but certainly more than Thomas' predecessor and probably more than the average coach at this level. This seems troubling at a university that just eliminated entire departments and has spent the past several years (and likely will spend the next few years) slashing its budget, including the budget of the College of Law. True, if we are serious about college sports, we have to spend money--but is this the right time.

3) More important is the question of whether this is worth the money, no matter how much Thomas is making. Thomas has not been a good coach (with the Knicks and Indiana Pacers) and his record as GM/Owner suggests that he is not a particularly good judge of talent, although he did make some good draft moves. He also ran the old CBA out of business, so his management skills are questionable. The school has hired his name. But the 17-year-olds he will be recruiting know him only as the guy who ran the New York Knicks into the ground, not as a Hall-of-Fame, championship-winning college and NBA player. So what are we getting for this money? No one knows for sure.

4) Then there is the fact that in 2007 Thomas and the Knicks were hit with an $ 11 million punitive-damages verdict for Thomas' sexual harassment of a female Knicks employee (the case settled before compensatory damages were determined). FIU AD Peter Garcia's response to that (in the ESPN link above) was, basically: I know Thomas and he is a wonderful husband and father, it's in the past, and everyone makes mistakes (although some mistakes are larger than others). This seems like an awful lot of baggage to carry into the job. And it calls into question how well he can or will control his program and his players, especially on the always-dicey issue of relations between student-athletes and the rest of the student body.

If it sounds as if I am rooting against this, not at all. I hope Thomas turns FIU into a mid-major power--the Gonzaga of the South; it would be psychically, if not financially, good for us. I am not optimistic right now, but I can be convinced. And I certainly will go to some games to check it out. But this is a tremendous financial--and legal--risk for the school to take and a bad time to be financially risky.

A Few Good Links

* Darren Heitner at Sports Agent Blog has a good breakdown of how sports bloggers might be impacted by the Associated Press' new strategy to crack down on lengthy excerpts of AP stories on blogs.

* William Rothstein of National Sports and Entertainment Blog has a good write-up on Professor Erin Buzuvis' recent talk at Vermont Law School on Title IX. Professor Buzuvis is the author of Title IX Blog and we're grateful to her for her time at our law school.

* Kyle Veazey of the Jackson Clarion-Ledger interviews me on former Mississippi State football coach Jackie Sherrill's defamation lawsuit against the NCAA.

Edwin Valero: Would an Exception Knock Out the Rule?

Whether it Would be Smart for New York State to Lift Its Medical Suspension of Lightweight Champion & Knockout Artist Edwin Valero



In 2004, undefeated Venezuelan junior lightweight prospect Edwin (El Inca) Valero applied for a license to box in New York State after scoring 12 first round knockouts in his first 12 professional fights. On the strength of his knockout streak, Valero was then becoming one of the hottest prospects in boxing. Valero, however, had a skeleton in his closet: a head injury sustained in a 2001 motorcycle accident. Evidence of Valero’s head injury went undiscovered, or was otherwise ignored, before three bouts in California and nine in his native Venezuela, but was revealed during a MRI that he underwent for his New York State license. Valero was subsequently denied a license to box in New York and, until April 4, 2009, had not fought again in the United States. Undeterred, Valero continued his boxing career in both Japan and South America, becoming an international sensation in the process.

At the end of March, Valero, now 25-0 (25 KOs) and a junior lightweight and lightweight world champion, was granted a license to box in Texas in advance of his April 4, 2009 bout with Antonio Pitalua for the vacant World Boxing Council lightweight title. That Texas granted Valero a license was not entirely surprising to boxing cognoscenti as Texas has a history of thumbing its nose at the suspensions of other states’ commissions. Indeed, Texas was the same state that granted former undisputed heavyweight and cruiserweight champion Evander Holyfield a license to box after New York State placed him on administrative suspension in 2005. However, in light of Texas’ decision to license Valero, the question is begged as to whether a boxer such as Valero, who at age 27 is an undefeated two division world champion and seemingly entering into the prime of his career following a second round stoppage of Pitalua, should have the denial of his license reversed by the New York State Athletic Commission (hereinafter the “Commission”) or otherwise be permitted to box in the United States by other influential commissions...

See full article at: http://www.8countnews.com/news/125/ARTICLE/1535/2009-04-13.html


Paul Stuart Haberman, Esq. is an attorney at the New York law firm of Heidell, Pittoni, Murphy & Bach, LLP. 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. ©

Florida Coastal Symposium

This Friday, we are hosting our annual sports law symposium titled, “NCAA Coaches’ Contracts: Diversity and Negotiating Value in the 21st Century”:

FRIDAY, APRIL 17, 2009
10:30 am - 2:30 pm
Room 405

Opening Remarks: Stuart Herman, President of Sports Law Society at Florida Coastal School of Law

10:30 a.m. - noon: Maximizing Value for the Coach

Panelists will discuss the various issues that arise in negotiating and structuring college coaches contracts from the perspective of both the university and coach, including compensation and the various types of compensation, for cause termination, tax ramifications, and liquidated damages/buyout clauses.

Moderator, Rick Karcher - Assoc. Professor of Law and Dir., Florida Coastal School of Law Center for Law and Sports
Robert H. Lattinville - Partner, Stinson Morrison Hecker LLP
Terry Don Phillips - Athletic Director, Clemson University
Randall W. Spetman - Athletic Director, Florida State University
Bennett H. Speyer - Member, Eastman & Smith LTD

Noon - 1:00: Lunch provided

1:00 - 2:30 p.m.: Ethnic and Gender Issues in NCAA Hiring

Panelists will discuss the topic of diversity in the hiring of college coaches, including the following issues: (1) Does the Rooney Rule have application in college to increase minority football head coaches at NCAA's highest level? (2) How does the NCAA view the challenges and solutions regarding minority and gender equity? (3) Are boosters unduly influential in hiring and firing coaches to the disproportionate detriment of minority coaches? and (4) Is Title VII a viable remedy?

Moderator, Roger Groves - Associate Professor of Law, Florida Coastal School of Law
N. Jeremi Duru - Associate Professor of Law, Temple University, Beasley School of Law
Kristen Galles - Civil rights attorney and Title IX expert
Floyd A. Keith - Executive Director, Black Coaches and Administrators

For speaker bios click here.
The event is free and open to the public.
To register, please email rkarcher@fcsl.edu.
CLE credits approved.

2009 Scholarly Conference on College Sport

Robert Hayden and Che Mock of the University of North Carolina pass along the following message. We wish Richard Southall and everyone else at the College Sports Research Institute the best for this year's conference, which looks to be a great event.

* * *

The College Sport Research Institute, with support from the University of North Carolina Sport and Entertainment Law Association will be hosting the 2009 Scholarly Conference on College Sport at the William and Ida Friday Center for Continuing Education at UNC-CH, this Thursday through Saturday.

The Scholarly Conference will provide an open forum for independent, organized and focused cross-disciplinary research on college sport in the United States. Attendees will be presented with completely unique information and experiences through prominent keynote speakers, panel discussions, and two days of juried academic presentations.

The Issues in College Sport Symposium will be held on Thursday, April 16th from 8:30 a.m. to 4:30 p.m., and will feature three panel discussions and a keynote speech about relevant issues in college sport. In addition to the chance to hear the panels, attendees will have the opportunity to talk with lawyers and panelists such as Jay Bilas, Of Counsel at Moore & Van Allen Law Firm of Charlotte, NC and Jeremy Bloom, who famously pursued an injunction against the NCAA to allow him to continue his college football career while receiving endorsements for freestyle skiing (Bloom v. National Collegiate Athletic Association, No. 02CA2302, 2004 WL 964322 [Colo. App., May 6, 2004]).

There are multiple legal presentations that will be taking place on Friday and Saturday, including "The Tax Exempt Status of the NCAA," "Title IX and Sexual Harassment," and "Recognition on a College Athlete's Right of Publicity."

Details about scheduled presentations and information about the conference can be found on the conference website at www.csriconference.org. The conference program can be found in its entirety at http://www.csriconference.org/docs/Program.pdf.

For those unable to attend this year's event, next year's edition of the conference is scheduled for April 14-17, 2010, at the Friday Center.

Colts Redux? Can the Preakness be Seized?

Many remember the ill-fated attempt in the mid-1980s by the city of Baltimore to utilize eminent domain to seize the Colts under a law passed by the Maryland Legislature. Colts' then-owner Robert Irsay moved the team in the dead of night to take a deal offered by Indianapolis. In an eerie echo of this, the Governor of Maryland is seeking legislature to seize the Preakness, the second jewel of horse racing's triple crown. An excellent blog by the Wall Street Journal's law blog outlines the difficulties of the case in detail and links to a number of newspaper articles giving background on this dispute.

The issue is not a relocation. Rather, it is the effect of a bankruptcy filing by the race's owner, Magna Entertainment Corp. and potential of a sale of its assets, including the race track and the intangible property of the race itself. Assuming that the legislation is passed and eminent domain is utilized, the question is what effect the action would have in the Chapter 11 filing in the bankruptcy court. That is a more complicated matter than the attempt to seize the Colts as pre-emption issues could be paramount (assuming that the seizure is constitutional).

Virginia Law Softball Tourny

The 26th Annual Virginia Law Softball Invitational tournament was held last weekend. The series of softball games, featuring both men’s and co-rec divisions, raised $20,000 for Children, Youth and Family Services, a Charlottesville-based nonprofit. Out of the 112 teams that participated in the tournament from 46 law schools across the country, Florida Coastal won the championship in the men's division and Appalachian School of Law won the co-rec division. Congratulations to the members of the winning teams and to all of the law students who participated in the tournament and raised that money for such a worthy cause.

New Sports Law Scholarship

Recently published scholarship includes:

Mark R. Bandsuch, The NBA Dress Code and other fashion faux pas under Title VII, 16 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 1 (2009)

Kimberli Gasparon, Comment, The dark horse of drug abuse: legal issues of administering performance-enhancing drugs to racehorses, 16 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 199 (2009)

Scott Hollander, Note, Super Bowl hero to bank account zero, 26 CARDOZO ARTS & ENTERTAINMENT LAW JOURNAL 899 (2009)

Michael Huntowski, Casenote, Blades of steal? The fight for control of sports clubs’ websites and media rights in Madison Square Garden, L.P. v. NHL, 16 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 123 (2009)

Andrew Imbriglio, Trading future health concerns for a cortisone shot today: informed consent and the need for regulation of cortisone in professional sports, 12 QUINNIPIAC HEALTH LAW JOURNAL 141 (2008)

Gene A. Marsh, A call for dissent and further independence in the NCAA infractions process, 26 CARDOZO ARTS & ENTERTAINMENT LAW JOURNAL 695 (2009)

Mitchell Nathanson, The sovereign nation of baseball: why federal law does not apply to “America’s game” and how it got that way, 16 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 49 (2009)

Hayden Opie, Survey: a global perspective on the most important cases affecting the sports industry, 16 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 99 (2009)

Gustavo A. Otalvora, Note, Alfonso Soriano is getting robbed: why the Eighth Circuit Court of Appeals made a bad call in [C.B.C. Distrib.], 2008 UNIVERSITY OF ILLINOIS JOURNAL OF LAW, TECHNOLOGY & POLICY 383

Jennifer M. Recht, Note, Performance enhancement: what the Israel Baseball League can learn from the agreement between Major League Baseball and Japan, 32 SUFFOLK TRANSNATIONAL LAW REVIEW 191 (2008)

Michael Ryan, The European Union and fan racism in European soccer stadiums: the time has come for action, 20 FLORIDA JOURNAL INTERNATIONAL LAW 245 (2008)

Professor Alfred Yen on UConn Scandal

Boston College Law School Professor Alfred Yen has a terrific piece on Madisonian.Net concerning the alleged recruiting violations at UConn. Here's an excerpt.

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Instead, Connecticut appears to have completely flouted important rules in a way suggesting that such behavior was routine. How else could those involved have failed to stop and consider the wrongfulness and consequences of their behavior? Could they have done something like this only once, and “by accident”? It is only too easy to suspect that Calhoun and his staff knew exactly what they were doing, that it was wrong, and that is was necessary to maintain Connecticut’s long record of competitive success. Perhaps even more disturbing is the notion that Connecticut presumably did not have to do this to succeed. Its basketball program is one the most successful in the entire country, one to which top recruits would presumably flock in exchange for a valuable college degree. Did Connecticut correctly think that it would take “something extra” to get the best young basketball players to enroll?

For years, baseball treated allegations about steroids as a problem of individual miscreants. Baseball officials maintained that the sport was generally clean, and that drastic action wasn’t necessary to clean things up. Even after baseball declared steroids illegal, the sport did not take systemic, forceful action until prominent players made fools of themselves in front of Congress unsuccessfully denying their use of steroids. The public now generally believes that steroid use was the widespread, tarnishing the competitive integrity of the entire sport and devaluing the achievements of players who did not break the rules. Indeed, nothing has confirmed this suspicion more than the recent revelation that Alex Rodriguez, who (like Connecticut) did not have to cheat, somehow felt it necessary to do so.

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For the rest of the piece, click here.

Examining Josh Nochimson's Role in Alleged UConn Scandal

I wrote about the alleged UConn scandal involving Nate Miles last week, a scandal that has raised serious questions about UConn men's basketball coach Jim Calhoun's possible knowledge and involvement in recruiting violations.

Today, Michael Rosenberg of the Free Press writes a provocative column and interviews Alan Milstein, who, in addition to writing excellent pieces for Sports Law Blog and speaking at great sports law panels, is representing Detroit Pistons star (and former UConn star) Rip Hamilton in his lawsuit against former UConn student manager-turned NBA agent Josh Nochimson. Here are some excerpts:

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[Calhoun] hasn't refuted any of the facts in Yahoo! Sports' investigative report. He hasn't denied that Josh Nochimson, a professional sports agent and former UConn student manager, provided all sorts of extra benefits to recruit Nate Miles of Toledo -- which constitute major NCAA violations.

He hasn't denied that he and his assistant coaches were in constant contact with Nochimson. And he can't deny that because Yahoo has a paper trail that includes 1,565 calls and text messages between UConn coaches and Nochimson.

Calhoun is mostly setting off smoke bombs and looking for a place to disappear. He says the NCAA rule book is "508 pages" and "someone could've made a mistake." But these are not obscure rules, and it is simply not credible to say it was one big unhappy accident.

Calhoun called the Yahoo! report "a blog story, I guess" -- an obvious attempt to make it seem like some know-nothing wrote the story in his basement. Calhoun neglected to mention that he knows the two Yahoo! journalists who wrote the story, Adrian Wojnarowski and Dan Wetzel, quite well, and has for more than 15 years.

Yahoo!, by all appearances, caught UConn cheating.

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And that's not even the worst of it.

Nochimson, the agent/booster/illegal recruiter, has been accused of stealing more than $1 million from Pistons star Rip Hamilton, a former UConn star. Nochimson was Hamilton's business manager.

Yet Calhoun still won't distance himself from Nochimson. There is ample evidence to suggest UConn continued using Nochimson even after Hamilton accused him of stealing all that money.

"It certainly bothers Rip," Alan Milstein, Hamilton's attorney, told me. "I'll say that."

Calhoun says Nochimson is "a good kid, worked hard."

Why does he say this? Why is Jim Calhoun still sitting in a boat with a man who is accused of stealing a million bucks from one of Calhoun's favorite players?

Maybe it's because Calhoun knows if he has a falling-out with Nochimson, then Nochimson might flip on him and talk to the NCAA.

Maybe Josh Nochimson knows too much.

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To read the rest of the piece, click here.

Some of the Parts, But Not the Sum of the Parts

A Quick Look at the State of Boxing, Wrestling, and Martial Arts in New York State in the Absence of the Legalization of Mixed Martial Arts and Whether Mixed Martial Arts Fits in With These Disciplines Under Existing or Proposed Law

By Paul Stuart Haberman, Esq.

Boxing. Wrestling. Judo. Tae Kwon Do. Karate. Kenpo. The practitioners of the aforementioned disciplines are permitted to participate in matches or exhibitions in New York State under the guidance of either a licensed promoter or a specific organization. What these six disciplines also have in common are that each of them are among the core disciplines that make up the sport known as mixed martial arts (hereinafter “MMA”). MMA is also made up of such other disciplines as Sambo, Muay Thai, Shoot Fighting, and Brazilian Jiu-Jitsu, each of which are widely taught at gyms and martial arts academies throughout New York. Unlike its component parts, however, MMA is currently outlawed in New York. That is because, like an increasing minority of its brethren across the United States, the New York State Assembly continues to hold firm in its position that MMA is little more than “human cockfighting.” The question is whether, under the existing laws concerning the aforementioned disciplines in New York State or their proposed amendments, the “human cockfighting” claim is anything more than an outmoded misnomer for a largely reformed and increasingly popular sport.

MMA Under Existing New York Law

Pursuant to Section 8905-a of the Unconsolidated Laws of the State of New York (hereinafter “Section 8905-a”), MMA is currently regarded as a “combative sport.” A “combative sport” is defined as “any professional match or exhibition other than boxing, sparring, wrestling or martial arts wherein the contestants deliver, or are not forbidden by the applicable laws thereof from delivering kicks, punches or blows of any kind to the body of an opponent or opponents.” Despite the exception seemingly carved out for martial arts in the explicit text of the above provision, only specific organizations that promote judo, tae kwon do, karate, and kenpo are actually permitted to stage martial arts events in New York. The New York State Athletic Commission (hereinafter the “Commission”), however, “is authorized to promulgate regulations which would establish a process to allow for the inclusion or removal of martial arts organizations” from its list of approved martial arts organizations. When deciding whether or not to include or remove such an organization, the Commission is mandated to consider, among others, the following factors:

“(a) is the organization’s primary purpose to provide instruction in self defense techniques;

(b) does the organization require the use of hand feet and groin protection during any competition or bout; and

(c) does the organization have an established set of rules that require the immediate termination of any competition or bout when any participate has received severe punishment or is in danger of suffering serious physical injury.”

If a given discipline and its organization fail to satisfy the above factors and other criteria that may be utilized on a case-by-case analysis, it is deemed a “combative sport,” shall not “be conducted, held or given within the state of New York[,]” and may not “be approved by the commission for such matches or exhibitions.” Employing the above factors, an analysis of MMA, using the Ultimate Fighting Championship (hereinafter the “UFC”) as the sample organization, follows. It should be noted, however, as will be discussed more below, that MMA should not necessarily be subjected to the existing restrictions of Section 8905-a in the first instance...

See full article at: this link.

Paul Stuart Haberman, Esq. is an attorney at the New York law firm of Heidell, Pittoni, Murphy & Bach, LLP. 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. ©

Michael Vick's Lawyer Tells Bankruptcy Court His Client Will Become a Construction Worker

News broke this afternoon that Michael Vick's attorney in bankruptcy proceedings explained to the court his client's plan to work as a $10/hour construction worker after his release from prison. Interestingly, just a few days ago, an attorney for a group of Vick's creditors, praising the jailed athlete's bankruptcy plan, stated:

“We think it’s a good plan... It comes down to this: Your options really are: keeping the debtor in Chapter 11, which will require him to contribute future income, or a liquidation, which is taking his stuff and selling it. Obviously, if he goes out and becomes a construction worker, we’re not going to get anything out of it."

Fordham Sports Law Symposium

On April 17th, Fordham Law School is hosting its "13th Annual Symposium on Current Legal Issues in Sports." There will be three panels: (1) Pharmaceutical Liability and Sports, (2) Sports Journalism Ethics, and (3) Gambling in Sports. CLE credit is available. For complete program agenda, speakers and registration information, click here.

Dallas Cowboys are America's Team for trademark purposes

Via, Colin Miller at EvidenceProf Blog, a federal district court in Texas has held that the Cowboys have trademark priority over the term "America's Team," as against a sports-apparel company called "America's Team Property."

Donte Stallworth Facing DUI Manslaughter Charges and Uncertain NFL Future

I have a new column on SI.com on Donte Stallworth being charged with DUI manslaughter and what it might mean for his NFL career. Here's an excerpt of the column.

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Stallworth, who will turn 29 in November, would likely struggle to resume an NFL career after serving several years in prison. In addition, he would not earn income while in prison, even if the Browns elected to hold onto his contract for salary cap purposes (as the Falcons did with Michael Vick after his conviction): pursuant to the NFL's personnel conduct policy, commissioner Roger Goodell would be poised to suspend Stallworth indefinitely following a conviction.

Stallworth's legal woes won't end with criminal law. Expect Reyes' family to consider bringing a wrongful death lawsuit against him under Florida tort law. As Florida employs a comparative negligence system, Reyes' responsibility for his own death -- e.g., failing to use the crosswalk -- would reduce any monetary judgment for Reyes' relatives.

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To read the rest of the column, click here.

Will Plaxico Burress Avoid Prison and NFL suspension?

I have a new column on SI.com on the adjournment of the Plaxico Burress trial to June, with the expectation that he will reach a plea deal. Even if avoids prison, expect him to receive a suspension from the NFL. Here's an excerpt of the column.

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The desire of some politicians to turn Burress into a poster-child for the law may also dissuade prosecutors from letting Burress avoid jail time. Although statistics indicate that more than 80 percent of persons arrested on the same Class C felony receive plea deals -- many of which, particularly for first-time offenders such as Burress, do not include jail time -- those persons did not grace the front pages of the city's newspapers nor attract stern commentary from its mayor and other political leaders. Burress pleading his way out of jail time would clearly repudiate those politicians' wishes and perhaps also undermine the law going forward. Indeed, even Bloomberg opined that Burress' receiving less than three and half years in prison would constitute "a sham, a mockery of the law."

Burress' future in the NFL rests in the backdrop of his plea discussions. The Giants suspended him without pay following the incident and refused to pay him a $1 million signing bonus. A grievance hearing is scheduled for Wednesday, with the NFL Players' Association arguing on behalf of Burress. The outcome of that hearing should indicate whether the Giants will reinstate him or release him.

Getting an NFL team to employ Burress won't get him back on the field, however. Any plea deal would require Burress to acknowledge responsibility for breaking a law. Even if he avoids prison, he would almost certainly be suspended by NFL commissioner Roger Goodell for violating the league's personal conduct policy. The policy empowers the commissioner to sanction any player whose conduct is "detrimental" to the league, with "detrimental" determined by the commissioner. Pleading guilty to a crime would unquestionably justify a suspension.

The length of the league's suspension would rest entirely in the hands of Goodell, who has tried to change public perception that NFL players act "above the law." While Goodell is not bound by his own precedent in issuing suspensions, consider the case of former Chicago Bears' defensive tackle Tank Johnson. After he pled guilty to misdemeanor weapon charges, which led to 45 days in jail, Johnson received a half-season suspension in 2007, with Goodell offering to lower the suspension to six games if Johnson attended counseling.

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To read the rest of the column, click here.