Judge Rules in Jockey Case: A federal district court judge ruled this morning that jockeys cannot be prevented from wearing patches while riding in this weekend's Kentucky Derby. In two separate cases, the judge upheld the right to wear advertising patches and the right to wear the patch of the Jockey's Guild, their union. The former decision applies only to the litigants in the case, but the latter applies to all jockeys in the Guild. The ruling forestalls any talk of a jockey boycott of this weekend's Derby.



You can read more on the case here. For more on the issue of advertising and logos detracting from a sport, please see this earlier post.

Who Says There is a Problem? The NBA play-offs on Saturday (1.3 rating) were definitively trumped in the ratings by the NFL Draft (3.8 rating). As a reminder, the NFL has an age-limit on its draft, and the NBA does not. And just so you don't think the NFL is alone in whipping the NBA, three regular season baseball games all received a national rating of 1.3 or higher, including the always popular Giants-Padres match-up. The NCAA play-in game between UNC-Asheville and Texas Southern got a 1.0.



My point is this. A number of people have made compelling economic and legal arguments against an age-limit (freedom of contract, private rights of choice), but the fact is that the NBA has suffered, both in the quality of play and the television ratings. The NBA Finals ratings have dropped significantly since 1998, achieving an all-time low of 6.5 last summer. In comparison, the low World Series rating in history is a 12. People just don't want to watch the ugly basketball being played.



You may not agree with me that the play is ugly, but the numbers indicate a strong negative trend. If the NBA wants to do something about this (say, put an age-limit into the CBA) and this is a legal labor exemption to anti-trust law, as the Second Circuit claims, then I see no problem. The NBA is a business and it produces a product. It has a right to pass rules that will protect this product, and ultimately, allow the league to remain a profitable business. General managers are not concerned about the "product" of the NBA - they are concerned first about keeping their jobs and second about winning. Passing on a high schooler that turns out to be a superstar in three years helps neither. Thus, the argument that "a player won't be drafted if he is not ready" does not really work.



But this may not be good for the league as a whole, which is where the union comes in. A number of unions in other industries have age-limits, either to protect their older workers or ensure that the work product of union members remains consistent and dependable. If the NFL or the NBA union agrees to adopt a similar limitation, even if at the league's request, then there is really no difference.



Yes, there are exceptions (see Lebron and Carmelo). Yes, it's paternalistic. Yes, it goes against many ideas of a free market. But yes, it might just be necessary to protect the NBA.



Thanks to the Sports Business Daily for the numbers.

Article on Twist and the Right of Publicity: A while back, I noted that the Supreme Court chose not to review a right of publicity case involving former NHL player Tony Twist and a comic book character based on him. A friend of mine at this esteemed institution has written a case commentary on the issue, which I recommend to everyone. The cite is 117 Harv. L. Rev. 1275 and it is available for those with Lexis or WestLaw. It begins:

The extent to which the First Amendment protects a defendant in a right of publicity case is an issue that has vexed courts and commentators: whereas some authorities have adopted tests that tend to favor speechmakers, the Missouri Supreme Court in Doe v. TCI Cablevision recently created a test that tends to protect celebrities. The Missouri test is vague and unworkable, however, and the court should have held that publicity rights are subject to the "actual malice" standard of traditional First Amendment scrutiny.

While I agree with the author that the test is difficult to administer, I am not certain that the "actual malice" standard is where the line should be drawn. A celebrity's image is a valuable property right that should be protected, even against 1st Amendment expression. While the California standard draws the line at whether or not anything was added to the copy of the figure's image, a more intricate test should be used to determine the value to the creator of using the image of the public figure. Creators should be allowed to use public figures in creative works, but they should have to compensate the figure for a portion of the benefit gained from using the famous likeness. Through this rule, the right to free expression can be protected, as can a celebrity's right to be compensated for the use of his or her image.



I recommend the entire article.

Update on Chargers Lawsuit: The San Diego Tribune reports that the San Diego City council voted to approve a new Chargers lease at Qualcomm Stadium, thus paving the way for the team to drop its lawsuit against the city. The team has stated that the new lease is much more favorable. The Chargers have 45 days to accept the proposal from the city, and if it does so, it will also drop the lawsuit.



You can read more on the suit here.

Update in Jockey Case: A federal district judge heard arguments yesterday in the case of the jockeys suing to be allowed to wear patches while riding. The patches include both advertising and Jockey Guild patches, which have been forbidden because they are "not in keeping with the traditions of the turf." The judge, though, was skeptical of this argument:

"The regulation doesn't seem to be designed for that reason," Heyburn said at the end of the 5 1/2-hour hearing. "If that reason was on anybody's mind when they wrote the rule, I'd like to know. But all you've shown me today is that you put the rule on the books and intend to enforce it. Unless you can show me something else, that won't cut it."

A ruling is expected later today or tomorrow after closing arguments are heard. You can read more here.

Extreme Skiing and Assumption of Risk: The increase in extreme and out-of-bounds skiing has prompted a group of Colorado resorts to ask the state legislature for a bill limiting their legal liability.

The bill would include "cliffs and extremely steep slopes" in the list of the inherent risks of the sport, letting resorts off the hook for injuries people suffer while skiing them. The list already includes everything from trees and rocks to hydrants and lift towers. It would also protect resorts from being sued for injuries suffered on equipment in freestyle terrain parks such as rails, half-pipes, quarter-pipes and fun boxes - which didn't exist when the ski safety act was first passed in 1979.

Appeals Court Rules Against Price: The 11th Circuit court of appeals upheld a ruling that former Alabama football coach Mike Price was not entitled to a hearing before or after being fired last year. The court ruled that Price had no right to such a hearing because he had not yet signed an employment contract. Thus, the decision of the lower court to dismiss Price's lawsuit was affirmed. Price had sued for $20 million, claiming defamation and wrongful termination.



His lawsuits against the University President and Sports Illustrated are ongoing. You can read more on that case here.