NASCAR Continues to Go its own Way

Just as the NHL and the other big 3 professional sports leagues continue to crack down on athlete misconduct on and off the field, NASCAR seems to be headed in the opposite direction. The NHL now forbids blindside hits to the head, and the NFL forbids almost any hit to the quarterback, but NASCAR has decided that it is permissible for one driver to intentionally crash his car into another driver during a race. I have a new column up on the Huffington Post that compares NASCAR's new (or reborn) "have it and have a good time" policy with the safety/image-first policies of the big 4 pro sports leagues.

Here's an excerpt:

Of course, not everything is off limits. While it may soon be a fineable offense to cough on or near a quarterback in the NFL (we don't want Tom Brady getting a cold, do we?) the NHL still tolerates (if not embraces) fighting. We can quibble with the NHL's decision to allow the fights, but we can understood why they made it--hockey fans love to see fights, and it's not so bad if the players beat on each other every now and then....But, it is a little hard to understand the latest ruling by NASCAR.

You can find the full column here. You can also follow me on twitter here.

New Sports Law Scholarship

Recently published scholarship includes:

Douglas E. Abrams, Sports in the courts: the role of sports references in judicial opinions, 17 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 1 (2010)

Roger I. Abrams, Sports arbitration and enforcing promises: Brian Shaw and labor arbitration, 20 MARQUETTE SPORTS LAW REVIEW 223 (2009)

Timothy S. Bolen, Note, Singled out: application and defense of antitrust law and single entity status to non-team sports, 15 SUFFOLK JOURNAL OF TRIAL & APPELLATE ADVOCACY 80 (2010)

Christopher B. Carbot, Comment, The odd couple: stadium naming rights mitigating the public-private stadium finance debate, 4 FLORIDA INTERNATIONAL UNIVERSITY LAW REVIEW 515 (2009)

Walter T. Champion, Jr., “Mixed metaphors,” revisionist history and post-hypnotic suggestions on the interpretation of sports antitrust exemptions: the Second Circuit’s use in Clarett of a Piazza-like “innovative reinterpretation of Supreme Court dogma,” 20 MARQUETTE SPORTS LAW REVIEW 55 (2009)

Josh Chetwynd, Play ball? An analysis of final-offer arbitration, its use in Major League Baseball and its potential applicability to European football wage and transfer disputes, 20 MARQUETTE SPORTS LAW REVIEW 109 (2009)

John D. Colombo, The NCAA, tax exemption, and college athletics, 2010 UNIVERSITY OF ILLINOIS LAW REVIEW 109

Ed Edmonds, A most interesting part of baseball’s monetary structure - salary arbitration in its thirty-fifth year, 20 MARQUETTE SPORTS LAW REVIEW 1 (2009)

Stacey B. Evans, Sports agents: ethical representatives or overly aggressive adversaries?, 17 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 91 (2010)

Mathieu Fournier & Dominic Roux, Labor relations in the National Hockey League: a model of transnational collective bargaining?, 20 MARQUETTE SPORTS LAW REVIEW 147 (2009)

Lloyd Freeburn, European football’s home-grown players rules and nationality discrimination under the European Community Treaty, 20 MARQUETTE SPORTS LAW REVIEW 177 (2009)

James Halt, Comment, Where is the privacy in WADA’s “whereabouts” rule?, 20 MARQUETTE SPORTS LAW REVIEW 267 (2009)

Ron S. Hochbaum, Comment, “And it only took them 307 years”: ruminations on legal and non-legal approaches to diversifying head coaching in college football, 17 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 161 (2010)

Kristen E. Knauf, Sports law in law reviews and journals (index), 20 MARQUETTE SPORTS LAW REVIEW 299 (2009)

Erick S. Lee, A perception of impropriety: the use of package deals in college basketball recruiting, 17 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL59 (2010)

Michael A. McCann, American Needle v. NFL: an opportunity to reshape sports law, 119 YALE LAW JOURNAL 726 (2010)

Alex B. Porteshawver, Comment, Green sports facilities: why adopting new green-building policies will improve the environment and the community, 20 MARQUETTE SPORTS LAW REVIEW 241 (2009)

Michael J. Redding & Daniel R. Peterson, Third and long: the issues facing the NFL collective bargaining agreement negotiations and the effects of an uncapped year, 20 MARQUETTE SPORTS LAW REVIEW 95 (2009)

Nicholas J. Rieder, Book note, reviewing Don Wollett, Getting on Base: Unionism in Baseball, 20 MARQUETTE SPORTS LAW REVIEW 291 (2009)

David L. Snyder, Automatic outs: salary arbitration in Nippon Professional Baseball, 20 MARQUETTE SPORTS LAW REVIEW. 79 (2009)

Jonathan Stensvaag, Note, English-only rules: Title VII, Title II, and the Ladies Professional Golf Association’s proposed English-only rule, 13 JOURNAL OF GENDER, RACE & JUSTICE 241 (2009)

Maureen A. Weston, Simply a dress rehearsal? U.S. Olympic sports arbitration and de novo review at the Court of Arbitration for Sport, 38 GEORGIA JOURNAL OF
INTERNATIONAL AND COMPARATIVE LAW 97 (2009)

The Scope of MLB's Antitrust Exemption

With Major League Baseball's Opening Day less than a week away, I thought now would be an appropriate time to mention my new article considering the scope of MLB's antitrust exemption, Defining the 'Business of Baseball': A Proposed Framework for Determining the Scope of Professional Baseball's Antitrust Exemption, slated for publication later this year in the U.C. Davis Law Review.

While baseball's exemption from antitrust law is generally well established, lower courts have struggled to define the boundaries of the exemption following the Supreme Court's 1972 decision in Flood v. Kuhn. As detailed in my article, the majority of courts considering the exemption's scope post-Flood have simply held that the "business of baseball" is exempt from antitrust law without providing any further guidance regarding which specific activities are within the exempted business. In contrast, some courts -- most notably the court in Piazza v. Major League Baseball, 831 F. Supp. 420, 436 (E.D. Pa. 1993) -- have adopted an extremely narrow view of the exemption, limiting it simply to MLB's historic reserve clause, the only restraint at issue in Flood. Finally, two courts -- Postema v. National League of Professional Baseball Clubs, 799 F.Supp. 1475 (S.D.N.Y.1992) and Henderson Broadcasting Corp. v. Houston Sports Assoc., Inc., 541 F.Supp. 263 (S.D.Tex. 1982) -- have taken a different approach by limiting the baseball exemption to only the sport's "unique characteristic and needs," based on a passage in the Flood majority opinion.

In my article, I set aside the general policy arguments supporting or (more commonly) opposing the baseball exemption, and instead examine the scope of the exemption from a purely doctrinal perspective. My article rejects all three of the existing judicial demarcations as being either too broad and vague (in the case of the majority rule), or inconsistent with the Supreme Court's precedent (in the case of the two minority approaches). Instead, I argue that the often overlooked focus of the Supreme Court's majority opinions in Federal Baseball Club of Baltimore and Toolson -- namely the specific business of providing baseball entertainment to the public -- provides a more appropriate standard for future courts to apply. My article concludes by applying this proposed standard to a variety of baseball-related commercial activities, differentiating between those activities which are and are not properly exempt from antitrust law under my interpretation of the baseball exemption.

The article is available here. Any comments or suggestions would be appreciated.

Taxing professional athletes

The state of Tennessee last year enacted a Professional Privilege Tax on Professional Athletes, taxing home and visiting NBA and NHL players $ 2500 per game, up to three games. (H/T: Deadspin, via FIU student Wes Plympton). Detroit Red Wings Captain Brian Rafalski has objected to the tax, noting that seventeen teammates who make in the $ 500,000 range (minimum NHL salary) end up losing money on the days they play in Tennessee. Proceeds from the tax apparently go to the municipality to fund various public parks/recreation projects. Interestingly, the NFL is exempted from the tax because the league had an existing rule that would penalize any state that attempted to impose such a tax. Minor league players are exempted as well (the original proposal covered only players making $ 50,000 or more).

It is easy to criticize this, as one commentator does, as a money grab targeting a vulnerable group. After all, no one is going to have sympathy for the group Rafalski is trying to protect--players making half-a-million dollars and having to pay $ 7500.

But dig deeper. The tax is expected to raise more than $ 1.1 million a year for municipal programs. The players are potentially playing in a publicly financed arena on which the state and local governments will not recoup their financial investments, so it is hard to blame the city for trying to get something.

I do wonder whether there is an Equal Protection problem here--not in singling out professional athletes, but in exempting the NFL. Is there a rational basis for taxing two leagues and not the third? Is avoiding a penalty from the NFL a rational basis?

Institutional symbolic counter-speech

Sport represents the only occasion in which adults regularly participate in patriotic symbolic rituals and ceremonies, such as the singing of the national anthem. I have written a great deal about the free-speech liberty to engage in patriotic symbolic counter-speech--declining to participate or engage with the symbol or its associated rituals or otherwise using (or not using) the ritual to protest the symbol and its message.

An interesting twist on symbolic speech and counter-speech is playing out at the institutional level at Goshen College, an Anabaptist-Mennonite liberal arts college that plays in NAIA. For years, Goshen has not played the national anthem before home sporting events, believing that the song conflicts with the Mennonite traditions of pacifism and anti-militarism (the lyrics celebrate a war and a military battle) and objections to excessive nationalism or pledging allegiance to anything other than God.

But the school has spent more than two years rethinking and debating that policy, ultimately which has drawn criticism from some visitors to the school. The school finally decided to play an instrumental version before home games, beginning with a baseball and softball game played last week. The decision continues to provoke discussion, disagreement, and debate among college administration, alumni, and faculty.

This is an interesting resolution--in part because no one is quite happy. It seems to address the pacifism concerns, excluding the militaristic lyrics, but not necessarily the nationalism concerns, which would seem to reject any song honoring country, regardless of lyrics. I presume this is why playing an alternative song--America, the Beautiful (Ray Charles version)would be my preference--never has been an option and was not the chosen option now.

By agreeing to play the song at sporting events that it sponsors and hosts, Goshen as an institution is engaging in symbolic speech--promoting the symbol and its meaning through the pre-game ceremony. Goshen's message is slightly altered by using only the instrumental version and not associating itself with the lyrics. Now we see what (if any) symbolic counter-speech follows in response. Interestingly, in this case, it could come from both directions. Those who disagree with the new policy may refuse to participate in the symbolic ritual by refusing to stand during the song or by turning away from the flag. Those who believe the new policy does not go far enough may take it on themselves to sing the lyrics as a way of both giving a fuller endorsement to the complete patriotic message (whatever additional meaning comes from the lyrics) and of protesting Goshen's decision not to go farther with the anthem.

Tomorrow is Sports Law Symposium Day

Like we blogged about before, tomorrow has a number of great sports law-related events scheduled, all of which are free and open to the public:

Harvard Law School: “Operating in the Shadow of Upcoming Collective Bargaining Negotiations”

Fordham Law School: Annual sports law symposium

Florida International: "Whither the Board? The National Labor Relations Board at 75"

2010 Scholarly Conference on College Sport at the University of North Carolina-Chapel Hill

I look forward to being a panelist at the 2010 Scholarly Conference on College Sport at UNC Chapel Hill. It will be a three-day event held from April 21 to 23 and is being hosted by the College Sport Research Institute and the UNC Exercise and Sport Science Department. This student-run conference features a one-day Issues in College Sport Symposium followed by two full days of academic research presentations by sport management faculty from across the nation. This annual conference is the creation of UNC Professor Richard Southall, the founder and director of the College Sports Research Institute.

I'll be on the NBA age limit panel and will be joined by Maryland basketball coach Gary Williams, Darryl Dawkins--the first player who jumped from high school to the NBA (drafted in the first round, 5th overall, in the 1975 NBA Draft by the 76ers out of Maynard Evans High School in Florida), ESPN's Doug Gottlieb, and Shane Lyons of the ACC. I'm looking forward to it.

Here are some details on the program:

Ethics of Elimination: Will Broad-Based Athletic Departments Survive

* Mr. Jeff Bourne -- Athletic Director, James Madison University
* Mr. Mike Moyer -- Executive Director, Wrestling Coaches Association
* Ms. Amy Perko -- Executive Director, Knight Commission
* Dr. John Cheslock -- Professor, Penn State University
* Mr. David Akinniyi -- Defensive End, NC State University

One and Done: What is the Effect of the NBA's Age Limit Rule on the College Game?

* Mr. Gary Williams -- Men's basketball coach, University of Maryland
* Mr. Doug Gottlieb -- College basketball analyst, ESPN
* Mr. Michael McCann -- Professor, Vermont Law School
* Mr. Shane Lyons -- Associate Commissioner Compliance, Atlantic Coast Conference
* Mr. Darryl Dawkins -- Former NBA player

Thou Shalt Not Tweet: Athletes' Social Networking Legal Rights vs. Institutional Control

* Ms. Kathleen Hessert -- President, Sports Media Challenge
* Mr. Lester Munson -- Legal Analyst, ESPN
* Mr. Steve Kirschner -- Associate athletics director for athletic communications, University of North Carolina at Chapel Hill
* Mr. Marvin Austin -- Defensive Tackle, University of North Carolina at Chapel Hill
* Mr. Ronnie Ramos -- Director of New Media Strategies, NCAA

Keynote Speakers

* David Williams -- Vice Chancellor for University Affairs and Athletics, Vanderbilt University
* Bernadette McGlade -- Commissioner, Atlantic 10 Conference

Academic keynote

* Michael Oriard -- Professor, Oregon State University

Banquet keynote

* Anson Dorrance -- Women's soccer coach, University of North Carolina

Bridging the Gap

* Craig Thompson -- Commissioner, Mountain West Conference

For information on registering, click here. For information on media, contact conference co-director Jack Daly.