BCS and Antitrust

USA Today's Steve Wieberg reports this morning that the Mountain West Conference yesterday "unveiled a plan that would recast the BCS' four current bowls — FedEx Orange, Allstate Sugar, Tostitos Fiesta and Rose — as quarterfinals in an eight-team playoff, quadrupling the number of teams that get a shot at the national title." [The complete proposal (pdf) is linked in the article.] Wieberg notes that the proposal would alter the way teams are placed for the BCS bowls, setting up a 12-member selection committee that would rank the top 25 at the end of the regular season and slot eight teams into a playoff format, and those slots would still take into account automatically qualifying conference champions.

I raised the question whether the BCS system constitutes an illegal restraint on trade under Section 1 in a post back in 2005 (which, ironically, was one year after Utah's 2004 undefeated season). Here is what I wrote four years ago: "So in other words ladies and gentlemen of the jury: The six largest athletic conferences got together and agreed that the teams in their conferences have the toughest schedules and should, therefore, have a greater opportunity to compete for a national title to the exclusion of an undefeated team that simply does not compete at their level according to them (such as a Tulane in 1998 or a Utah in 2004), and they devised a system to accomplish those ends." And now you can add, "a Utah in 2008".

In antitrust speak, Mountain West's proposal could be viewed under a rule of reason analysis as "a less restrictive alternative" that serves the same procompetitive justifications as the current BCS system in crowning a legitimate college football champion, but which does so in a manner that does not produce the same anticompetitive effects.

Harvard Law School conference on Free Market Ideology

Not sports law related, but possibly of interest to some of our readers:

This Saturday, the Project on Law and Mind Sciences of Harvard Law School will be hosting its third annual conference. The topic is "The Free Market Mindset: History, Psychology, and Consequences." Given all that is going on in today's economy and the government's efforts to prevent a more severe recession or even a depression, the free market mindset couldn't be a more timely topic.

This event will be open to the public.

Speakers will include Jon Hanson (Harvard Law prof), Douglas Kysar (Yale Law prof), Christine Desan (Harvard Law prof), Bernard Harcourt (UChicago Law prof), along with a number of prominent economists and other academics, including Stephen Marglin (Harvard Businsess School prof) and Juliet Schor (Boston College sociology prof)

I will also be speaking at this event. I'll be speaking on the last panel (5:30 p.m.), after I speak at MIT Sloan's Sports Analytics Conference. It will be a busy day.

Update: Judge Richard Posner will also be speaking at the event.

MIT Sloan Sports Analytics Conference This Saturday

I'm honored to be speaking at this year's MIT Sloan Sports Analytics Conference, which will be held this Saturday (March 7th) in Cambridge, Mass.

It should be an amazing event, with some of the biggest names in sports, including Mavericks owner Mark Cuban, Rockets GM Daryl Morey, and ESPN columnist Bill Simmons, as speakers.

Here is the agenda:

Careers in Sports
This panel explores the various roles that individuals with business and analytical backgrounds can fulfill within team, league, and related sports organizations. In addition, the panel will discuss various paths individuals took to identify and obtain these positions.

Panelists
Chris Wallace -- General Manager, Memphis Grizzlies
Dan Zimmer -- Vice President of Business Operations, Boston Bruins
Buffy Gordon Filippell -- President, TeamWork Consulting
Bill Allard -- CEO, Athlete's Performance

Moderator
Kristin Lane -- Partner, Forty Forty


Evolution of the Fan Experience
Evolution of the Fan Experience will look at how new technology, stadium design, game innovations, and customer initiatives are taking the fan experience to the next level.

Panelists
Brian Burke -- President and General Manager, Toronto Maple Leafs
Jeff Van Gundy -- ESPN Analyst and Former NBA Coach
Mark Donovan -- Senior Vice President of Business Operations, Philadelphia Eagles

Moderator
Bill Simmons -- ESPN Columnist


Globalization of Sports
Two years ago, the NFL played its first regular season game in London. In September, the NBA announced a joint venture to build and run sports arenas in China. Leagues and teams are taking different approaches to reach the global market. League and team partners are closely monitoring and defining success. This panel will look at the business opportunities that international markets offer to the sports industry. Top industry executives will share their insights on what is currently being done to grow business, specifically in areas such as merchandising, media, and partnership/sponsorship.

Panelists
Tim Romani -- President & CEO, ICON Venue Group, LLC
David Baxter -- President, Adidas Sports Licensed Division
Steve Pagliuca -- Managing Partner, Boston Celtics

Moderator
Mike Gorman -- Play-by-Play Announcer, Boston Celtics


Talent Identification
Long before there are professional or collegiate performances to analyze, scouting professionals scour the globe to find the next Michael Jordan or Peyton Manning. Developing the talent pipeline is a critical function for any sports team. This panel will discuss some of the existing, as well as new innovations in discovering the new talents of tomorrow.

Panelists

Michael Forde -- Performance Director, Chelsea Football Club
Kris Homsi -- Science Director, SPARQ
Phil de Picciotto -- President of Athletes & Personalities, Octagon
Aaron Schatz -- Founder, Football Outsiders
Jack Mula -- General Counsel, ScoutAdvisor

Moderator
Kate Fagan -- Reporter, The Philadelphia Inquirer


Sports in a Recession
With the current economic downturn, leagues, teams and sponsors are facing a new set of challenges. This panel will discuss the effects teams and sponsors are seeing across ticketing, player salaries and advertising. In addition, the executives will discuss what steps and strategies they are undertaking to adjust to the current situation and what changes they are making to prepare for the future.

Panelists
Jonathan Kraft -- President and COO, The Kraft Group
Rich Gotham -- President, Boston Celtics
Tim McDermott -- SVP and CMO, Washington Capitals
Lou DePaoli -- EVP and CMO, Pittsburgh Pirates
Kathy Goodman -- Co-Owner, Los Angeles Sparks

Moderator
Dr. Roger Brinner -- Partner and Chief Economist, The Parthenon Group


Business of College Sports - Implications for Student Athletes
This panel looks at the business of college sports with a special emphasis on the rights of student-athletes. In particular we hope to explore such issues as pay-for-play, and new revenue sources.

Panelists
Sonny Vaccaro -- Director, Vaccaro Sports Partnerships and Founding Chairman, The Roundball Classic and ABCD Camp
Michael McCann -- Associate Professor of Law, Vermont Law School and Legal Analyst, Sports Illustrated
Chris Wallace -- General Manager, Memphis Grizzlies
Bob Scalise -- Director of Athletics, Harvard University

Moderator
Bob Ryan -- Sports Columnist, The Boston Globe


Baseball Analytics
The idea of using advanced analytics to measure athletes’ performance and value originated in baseball and has probably had more impact on the sport than on any other. This panel, returning now for its third year, will explore how the use of analytics in baseball has evolved, looking at how teams measure their own players and evaluate potential draft, trade and free agent acquisitions. The panelists are all industry thought leaders in the use of analytics for personnel management and they bring perspectives ranging from external consultants and authors to internal baseball operations personnel.

Panelists
Shiraz Rehman -- Director of Baseball Operations, Arizona Diamondbacks
Tim Purpura -- Executive Vice President and COO, Minor League Baseball
Christina Kahrl -- Co-Founder & Managing Editor, Baseball Prospectus
David Pinto -- Owner and Author, Baseball Musings

Moderator
John Dewan -- Owner, Baseball Info Solutions


Basketball Analytics
This panel examines the importance of analytical methods in basketball. With APBRmetrics gaining acceptance and respect around the NBA, teams are increasingly using statistical analysis to gain a competitive edge over their opponents. Panelists from ESPN and NBA teams will weigh in on topics revolving around player and team evaluative techniques, including the evolution of analytics in player evaluation and other research related to the development of optimal team performance.

Panelists
Mark Cuban -- Owner, Dallas Mavericks and Co-Founder & Chairman, HDNet
Michael Zarren -- Asst. Exec. Director of Basketball Operations & Associate Counsel, Boston Celtics
John Hollinger -- Columnist, ESPN
Dean Oliver -- Director of Quantitative Analysis, Denver Nuggets

Moderator
Marc Stein -- Columnist, ESPN


Sport 2.0 - The Evolution of Technology and Sports
Over the past two decades technology has completely reshaped the sports industry. Equipment companies are spending millions of dollars to improve athletic performance and safety while leagues try to maintain an even playing field. In addition, the fan experience has been transformed through huge leaps in media. This panel will be an open discussion on these topics and more with industry leaders in equipment design, media technology, and performance oversight.

Panelists
Dick Rugge -- Senior Technical Director, US Golf Association
Steve Solomon -- President & COO, Accrue Sports and Entertainment Ventures
Dr. Mike Caine -- Director, Loughborough University Sports Technology Institute
Paul Litchfield -- VP of Advanced Concepts, Reebok
Mike Leigh -- Leader of Projects and Technical Development, US Olympic Committee

Moderator
Dr. Kim Blair -- Founder & President, Sports Innovation Group LLC and Founder, MIT Sports Innovation


The Media and the Fanatic: the evolving value of new media and sports
There is growing concern that newspapers and other traditional media are becoming irrelevant as an avenue for keeping up-to-date on sports. However, new media (e.g. Blogs, Social Media, Social Networking sites) are challenging the established revenue channels provided by traditional media and impacting how fans follow their favorite teams. What does the future hold for media outlets and sports organizations? In this panel, we will explore recent avenues of growth (e.g. NBA-TNT partnership), local sports networks and other media growth on the horizon.

Panelists
Adam Silver -- Deputy Commissioner and COO, NBA
John Walsh -- EVP and Executive Editor, ESPN
David Levy -- President, Turner Broadcasting Sales, Inc. & President, Turner Sports
John Collins -- COO, NHL

Moderator
Shira Springer -- Sports Reporter, The Boston Globe


Team Chemistry: Real Value or Urban Legend?
Boston has emerged as a championship town with the “team-first” Patriots, a Celtics team with three hall of fame hopefuls, and a Red Sox team whose biggest bat overstayed his welcome. It begs the question, how much is team chemistry worth and can it be taught or even measured? This panel will offer perspectives from professionals who deal with these issues every day.

Panelists
Andre Tippett -- Hall of Fame Linebacker and Executive Director of Community Affairs, New England Patriots
David Griffin -- Senior Vice President of Basketball Operations, Phoenix Suns
Dr. Steve Julius -- Team Psychologist, Chicago Bulls and Founder, Human Resource Consulting Group
Armond Hill -- Assistant Coach, Boston Celtics

Moderator
Henry Abbott -- Founder, TrueHoop and Senior Writer, ESPN


Value of Icon Players
Description From the Babe to Michael Jordan to Montana and Gretzky, icon players don't just leave a mark on their team: they leave their mark on the sport and on the history of an era. Can you quantify the value they bring to a team or a city? Our panelists will discuss their experiences with icon players, starting with Casey Wasserman, CEO of the Wasserman Group, one of the world's leading global sports agencies, and Carla Christofferson, co-owner of the WNBA's LA Sparks.

Panelists
Ray Allen -- All Star Guard, Boston Celtics
Carla Christofferson -- Co-Owner, Los Angeles Sparks
Greg Via -- Global Director of Sports Marketing, The Gillette Company
Brian Jennings -- EVP of Marketing, NHL

Moderator
Ric Bucher -- NBA Reporter, ESPN and Senior Writer, ESPN The Magazine

The NFL Scored an Antitrust Touchdown in American Needle. Why are they asking the Supreme Court for a Review?

As has been narrowly reported, the Supreme Court has asked the Solicitor General for an amicus brief in the American Needle case. Marc Edelman has an excellent new post discussing this development on Above the Law. As I discussed in a post here a few months ago, the Seventh Circuit’s conclusion in American Needle that the NFL and its teams act as single entity when promoting NFL football through licensing teams’ intellectual property marked the rebirth of the single entity argument in sports antitrust litigation.

Given that the Seventh Circuit’s decision conflicted with nearly every other court’s determination that sports leagues are not single entities, it is unsurprising that American Needle filed a petition for certiorari with the Supreme Court. As American Needle’s petition notes, “In the 50 years since Radovitch [the Supreme Court case holding that the antitrust laws apply to the NFL], every appellate decision to have considered the question has held that the NFL and other professional sports leagues are subject to rule of reason scrutiny under Section 1 of the Sherman Act….[It} is untenable that the NFL should be exempt from the antitrust laws only in the Seventh Circuit.”

What is surprising, however, is that the NFL also filed a petition for certiorari(and they were joined by the NBA, NBA Properties, and the NHL). Why would the NFL want the Supreme Court to review a case that they won? Well, the NFL wants the Supreme Court to expand on the Seventh Circuit’s ruling and hold that sports leagues are single entities—and this immune from Section 1 attack—for all purposes, or at least with respect to “core [league] functions.” Here is an excerpt from the NFL’s petition:

The NFL Respondents are taking the unusual step of supporting certiorari in an effort to secure a uniform rule that (i) recognizes the single-entity nature of highly integrated joint ventures and (ii) obviates the uncertainty, chilling effects, and forum shopping that inevitably result from the current conflict among the circuits. If the petition is granted, the NFL will argue that professional sports leagues, which produce a product that no member club could produce on its own, and other joint ventures that involve a similarly high degree of economic integration, should be deemed single entities for Section 1 purposes, at least with respect to core venture functions, notwithstanding that the venture participants are separately owned and may not have a complete unity of interests.

More on this to come…

New York County Lawyers Association Sports Law Forum: March 11, 2009

Location: NYCLA Building, 14 Vesey Street, New York, New York

Time: 6:30 P.M.

The forum is about the representation of athletes in individualized (as opposed to team) sports in negotiations and the maintenance of endorsement and sponsorship deals. Among the topics to be covered are the recent Michael Phelps and Alex Rodriguez scandals and how to handle such matters as they pertain to endorsements and sponsorships, as their attorneys. The panel is made up of experienced sports law practitioners whose clients come from such sports as tennis, boxing, mixed martial arts, show jumping, golf, and bodybuilding.

Speakers:

Keven Davis, Esq., Partner, Garvey, Schubert & Barer;

Elizabeth Durkin, Esq., Partner, Durkin & Durkin, LLP;

Michael DiMaggio, Esq., Associate, Collins, McDonald & Gann, P.C.;

Christopher R. Chase, Esq., Associate, Frankfurt, Kurnit, Klein & Selz, P.C.;

Scott Shaffer, Esq., Member, The Lustigman Firm, P.C.


Moderator: Paul Stuart Haberman, Associate, Heidell, Pittoni, Murphy & Bach, L.L.P. and Chairman of the Sports Law Committee of the New York County Lawyers Association.

Sponsor: NYCLA's Entertainment, Media, Intellectual Property and Sports Law Section

RSVP: dlamb@nycla.org and write 'March 11 forum' in the Subject line.

This forum is open to the public.

A Re-Examination of Jeff Novitsky

Jon Pessah of ESPN Magazine and Stony Brook University has a very provocative piece up today on ABC News that re-assesses the decisions of IRS agent Jeff Novitsky in the BALCO investigation, particularly as his decisions pertain to the Barry Bonds investigation. Jon examines the different perspectives on Novitsky, who some critics say overstepped appropriate bounds for someone in his role but who has also earned the praise of many supporters for helping to clean up sports from steroids.

Vanderbilt Symposium

On Friday, March 13, the Vanderbilt Journal of Entertainment and Technology Law is hosting a symposium at the law school entitled, "Lights, Labor, Action: Labor Controversy in the Sports and Entertainment Industries." CLE credit is available for practitioners and registration information can be obtained at the above link. Here is the schedule of events:

9-9:50 a.m. Registration and Continental Breakfast

9:50-10:00 a.m. Welcome

10-11:30 a.m. Student-Athlete or Student-Employee? The Relationship Between the NCAA, Universities, and Student Athletes

David Cohen, Kasowitz, Benson, Torres & Friedman LLP

William King, III, Lightfoot, Franklin & White

Gene Marsh, Professor of Law, University of Alabama Law School

Naima Stevenson, Assistant General Counsel, NCAA

David Williams, Vice Chancellor for University Affairs, General Counsel and Secretary, Vanderbilt University


12-1:00 p.m. Keynote Speaker: Jonathan Handel, Attorney, Troy Gould
Keynote Address: Like Scorpions in a Silicon Cage: How Hollywood Management and Labor Fought While Content’s Kingdom was Slipping Away


1:30-2:45 p.m. Sweat Equity: Contracting with Players and Coaches in the NFL

Anthony Agnone, Eastern Athletic Services

Dennis Cordell, Founder of Coaches, Inc.; Former Staff Counsel for the NFLPA and Asst. Exec. Dir. of NFL Coaches Association

Rick Karcher, Assoc. Prof. of Law and Dir., Ctr. for Law and Sports, Florida Coastal School of Law

Steve Underwood, General Counsel, Tennessee Titans


3:15-4:30 p.m. Maintaining the Musician: Protecting Music, Image, and Technology Today

Joseph F. Brazil, Loeb & Loeb; Former Vice President of Business Affairs for EMI Music

Elizabeth Gregory, The Law Offices of Elizabeth V. Gregory, P.C.

Ken Sanney, Day & Blair, PC, and Adjunct Prof. in the Department of Recording Industry, College of Mass Communication at Middle Tennessee State University

Cheryl Slay, Solo Practitioner and Asst. Prof. of Music Business at Belmont University in the Mike Curb College of Entertainment and Music Business


4:30-5:30 p.m. Closing Remarks and Reception

Please contact Emily Creditt (emily.c.creditt@vanderbilt.edu) if you have any questions.