Jerry Sandusky: Guilty

Here's my column for SI.com on the guilty verdict and what it means going forward.

Supreme Court Punts on Broadcast Indecency

Yesterday, the high court issued its long-awaited opinion in FCC v. Fox Broadcasting, 567 U.S. ____ (2012). In its unanimous opinion, the panel gave broadcasters a temporary victory by invalidating the present indecency standards as constitutionally vague based on lack of adequate notice, but failed to consider whether there is a rationale for instituting them in the first place. I have written about the effect that the latest interpretation of the rules, which were expanded to prohibit "fleeting expletives," can cause undue harm to over the air broadcasts of sports events where single instances of the f-word or other such language may be picked up and broadcast.

The litigation saga of the case covers two Supreme Court rulings and several appeals court rulings. In Fox I, 556 U.S. 502 (2009), the court only addressed administration law claims, concluding that the new rules -- which significantly changed enforcement of the standards from the "7 dirty words" and contextual applications of profane speech over the years to a one-word wonder, was not arbitrary and capricious, but reserved the First Amendment questions for another day. On remand, Second Circuit concluded that the standards were unconstitutional, 613 F. 3d 317 (2010) and this appeal ensured.

The court, in what could be called Fox II, focused on the more narrow question of the constitutionality of the promulgation of the regulations, but not the free speech implications of the fleeting expletive standard. Ideally, the question of the due process of the manner in which the policy was enacted could have been addressed in the earlier opinion because it is so dovetailed with the administrative law issues. But it was not, since the Second Circuit did not address those questions at that time when it ruled on the administrative law issues in 2007.

This time around, Justice Kennedy, writing for the court, focused on the void for vagueness and lack of notice issues. At the time of the violations in question -- which did not involve a sports broadcast, but rather a show of nudity on an episode of ABC's "NYPD Blue" and the use of one-time f-words by Cher and Nicole Ritchie on two separate Billboard Music Awards show broadcast by Fox -- no notice of the change of policy was made. While the restrictions on "obscene and indecent" broadcasts are based on statute -- 18 USC 1464 -- the interpretation of the scope of that statute has been the province of the FCC for six decades. The commission essentially backpedaled its way into the new rules, since in 2001 it was FCC policy that the single use of a profanity was not enough to show indecency, while in 2004, after these incidents, the commission changed course in a 2004 order.

The court stopped there, however, noting that the First Amendment questions need not be addressed at this time -- much to the consternation of Justice Ginsburg, who argued in concurrence that they should have been determined. That means that the Pacifica ruling upholding the FCC's right to regulate indecency stands and the commission has the power to issue new indecency rules and it is likely that yet another round of challenges will occur. Sports broadcasters should not get rid of their time-delay machinery just yet.

Jerry Sandusky: Closing Arguments and Jury Deliberations

I have a new column for SI.com on the Jerry Sandusky trial coming to a close and what to expect.

Commercial Speech in Sports Advertising

One of the most important revenue streams in the sports industry is from advertising. The concept is simple -- an advertisement is created and placed, generally in exchange for a fee. But commercial speech rules and restrictions can influence what goes into an advertisement, whether an advertisement can be placed at all, and what the potential liability is for the advertiser.

Two recent cases demonstrate the impact of commercial speech in sports.

The first involves Michael Jordan and the Jewel-Osco grocery store chain, which was asked to place an advertisement in a special issue of Sports Illustrated honoring Jordan. The ad contained a Jewel-Osco logo and congratulated Jordan from a "fellow Chicagoan." Jordan sued, claiming that the ad explored his name and likeness for commercial gain without his permission. The court, however, found that the ad was in fact not an ad because it did not promote Jewel products or services. The "ad" therefore was not commercial speech and thus entitled to the full protections of the First Amendment. Jewel was thus not liable to Jordan, but it took a litigation to confirm its rights.

The second case involves the Family Smoking Prevention and Tobacco Control Act, passed in 2009. The statute bars tobacco manufacturers from promoting their brands through sponsorship of athletic, social and cultural events in the brand name of a tobacco product. On March 2012, the Sixth Circuit Court of Appeals upheld the sports sponsorship ban, finding that the statute directly advanced the Government's interest in reducing tobacco use by youth.

Advertising is simple, but, as these cases demonstrate, advertisers need to consider the possible impact of commercial speech principles while planning some advertising campaigns.

Roger Clemens: Not Guilty

Here's my column for SI.com on the verdict. Should he even have been prosecuted?

WEAI Conference - Sports Economics on Trial

The 87th Annual WEAI conference takes place June 29 to July 3 in San Francisco. There are 21 sports-related sessions with over 70 individual papers being presented. Two sports law-related panels are also included. The complete program can be found here. I will be moderating a panel entitled "Sports Economics on Trial." The panelists and abstract can be found below.

SportsEconomics on Trial

Ryan Rodenberg (moderator)

FloridaState University

Dennis Coates (panelist)

Universityof Maryland, Baltimore County

John Solow (panelist)

Universityof Iowa

Jeffrey Standen (panelist)

WillametteUniversity College of Law

Jonathan Walker (panelist)

EconomistsInternational

ABSTRACT

The sports industry has firmly embraced the use of economic analysis in various decision-making processes. Such methods have similarly been adopted in the sports law field. Moderator Rodenberg will open with a discussion of Federal Rule of Evidence 702 and an anecdotal story about the expert testimony offered in Kentucky Speedway v. NASCAR, a prominent antitrust case. Individual panelists will then move todiscuss how sports economics is used in the courtroom. First, panelist Coates will explain how expert testimony shaped the Seattle Sonics economic impact lawsuit and provide an overview of the amicus brief filed by economists in support of petitioner in the American Needle v. NFL case when it was before the U.S. Supreme Court in 2010. Second,panelist Standen will discuss the American Needle arguments outlined in an amicus brief filed by economists in support of the respondent. More generally, Standen will posit on expert testimony that has been persuasive in sports litigation and what attorneys look for when retaining economists as expert witnesses. Third, panelist Walker will generally outline how the law and economics movement has impacted antitrust cases affecting the sports industry. More specifically, Walker will discuss his role as an expert in several high-profile sports lawsuits, including the recently-resolved Deutscher Tennis Bundv. ATP World Tour case. Fourth, panelist Solow will discuss Daubert v. Merrill Dow,the seminal U.S. Supreme Court opinion pertaining to the admissibility of expert testimony, with a particular emphasis on antitrust litigation. Each panelist will conclude by opining on how the American Needle v. NFL case will likely be resolved if it goes to trial in 2012 or2013.

All politics is local, some of it is microscopic

Primary voters in North Dakota yesterday voted in favor of legislation that will allow the state Board of Education to retire the controversial Fighting Sioux nickname of the University of North Dakota.
The NCAA has been pressing UND to get rid of its logo and nickname for several years because it deems it offensive to American Indians; schools that continue to use offensive nicknames are barred from hosting NCAA tournament events and cannot use the name and logo in NCAA tournament play.

The state was unable to get approval for continued use of the name from the two area nations, Standing Rock and Spirit Lake Sioux; the latter passed a resolution supporting the nickname but the latter never held a vote. In 2011, the North Dakota legislature passed a law requiring the school to continue using the nickname, but that law was repealed in a special session. A group supporting the nickname then gathered the signatures necessary to challenge the repeal law on the ballot. This now sends the matter back to the Board of Ed., which is expected to change the name.

That is, unless nickname supporters succeed in making the Fighting Sioux nickname a constitutional requirement. Yep, the next move, which supporters say they are going to pursue, is a popular constitutional amendment to amend the state's structural charter to require a university to use a particular nickname and logo. Needless to say, I don't expect to see this particular proposla in Slate's discussion of How to Fix the Constitution. I do not have skin in this nickname dispute; I do not believe that using Indian tribe names and titles (as opposed to, for example, "Redskins")  is inherently offensive and perhaps the NCAA is overreacting (shocking, I know). But this cannot be the sort of even symbolic issue that has any place in a state constitution.

One other touch to this report, also reflective of every political dispute: Sean Johnson, spokesman for the group supporting the ballot measure, pointed out that they were outspent by the other side. It is now virtually guaranteed that the loser in any election, particularly on issue refenda and initiatives, will point out how badly it was outspent. This has become the electoral equivalent of calling the judge in a case "activist": If I lose, it must be because someone (the judge, the other side) did something wrong or untoward.