Sports Law Blog

Sports Law Blog

All things legal relating
to the sports world...

Sunday, September 30, 2007

Did Eric Mangini Break an Unwritten Covenant Not to Compete?

Over on Madisonian.net, Boston College Law School professor Alfred Yen has an engaging examination on whether New York Jets head coach and former New England Patriots defensive coordinator Eric Mangini (who can't be too happy after his now 1-3 Jets lost to the 1-3 Buffalo Bills earlier today) breached an unwritten covenant among NFL assistant coaches that includes not divulging certain information about their employers should they later become head coaches in other organizations.

Fred's piece relates to Sports Illustrated's Peter King recent column entitled "The NFL's Mob Mentality," which raises a number of provocative contextual points about Mangini's decision to tell on Bill Belichick.

Here is an excerpt from Fred's piece:

* * *

King’s column identifies two code violations by Mangini. First, he lured away a Patriots free agent whom the Patriots were trying to retain. Second, he exposed his former boss breaking the rules. This demonstrated his lack of loyalty, loyalty that head coaches (and by implication teams and the league) understandably and properly require. Indeed, the argument might go, without such loyalty, why would a coach invest in his assistants, sharing his knowledge and the team’s secrets, if he knew that his methods and knowledge might be used against him in the future? Thus, in a sense, the coaches’ code forms an unwritten covenant not to compete that all assistants must honor.
Characterizing the coaches’ code as a covenant not to compete creates an interesting perspective from which to evaluate Mangini’s behavior. As an initial matter, covenants not to compete are not uniformly enforced. Courts evaluate them for reasonableness. Indeed, courts often regard promises not to hire a former employer’s key staff reasonable on the theory that employers have legitimate interests in retaining staff crucial to the operation of their businesses. This interest gets balanced against the right of employees to find new employment. In the context of the NFL, clubs have always wanted to restrict the movement of key players, but players have limited that impulse through free agency obtained through collective bargaining and litigation. Coaches have fewer protections.

The same probably cannot be said for whistleblowing. Convenants not to divulge trade secrets are, of course, generally enforceable. However, the Patriots’ taping of signals in direct violation of league rules is not the kind of confidential information courts will allow a company to suppress. Thus, from a covenant not to compete perspective, Mangini did nothing wrong in informing the league of the Patriots’ infraction.

For the rest of the piece, click here.

-- Posted by Michael McCann @ 9/30/2007 07:53:00 PM -- Comments (0) -- Post a Comment

Saturday, September 29, 2007

Recap of Sonny Vaccaro's talk at the University of Maryland

Earlier this week, Sonny Vaccaro spoke at the Robert H. Smith School of Business on the University of Maryland’s College Park campus. Tim Lemke of the Washington Times has all of the details on his excellent blog, Tim Lemke's $ports Biz Blog.

Here is an excerpt:

* * *

Vaccaro spoke for about 75 minutes before about 200 students of the Robert H. Smith School of Business at the University of Maryland. Many of the students are enrolled in a new sports management program tied to the school's Undergraduate Fellows Program.

Vaccaro's speech basically had two parts: a summation of his professional life and a harsh criticism of the NCAA and NBA.
Some highlights:

- Vaccaro reiterated his arguments against the NBA's new age limit, calling it "arbitrary and unlawful. ... It's pathetic that we would deprive an individual from earning a living."

- Vaccaro called the NCAA "the most fraudulent organization that ever lived." He got particularly animated when speaking about the NCAA's broadcasting of old game footage without compensating players for using their likeness. "What gives them the to use my image forever?" he asked.

- He says that when working for Nike in 1984, he convinced company executives to throw all of their money at Michael Jordan, rather than spread it around to three or more players who were turning pro. (The 1984 draft also featured Hakeem Olajuwon and Charles Barkley, among others.) "I said, 'you're missing it. You're supposed to give it all to Jordan."

- Early on in his Nike career, Vaccaro came up with the idea of outfitting coaches and teams. Nike executives told him to give it a try, but to "try it out with someone he trusted." He quickly signed a deal with Jerry Tarkanian.

- Vaccaro called Kobe Bryant "the most dedicated, most gifted athlete I've ever seen" and "the most driven sucker I've ever seen."

- Vaccaro was with Adidas when LeBron James turned pro, and knew that Nike would offer an enormous amount to the much-hyped star. Adidas, he said, didn't believe James was worth that much. "Adidas didn't want to push the envelope," he said. Vaccaro quit Adidas after James signed with Nike for $90 million.

I had the chance to meet Vaccaro briefly after his speech and conducted this Q&A:

Q: So how come you're here in this lecture hall instead of over at Comcast Center talking to Gary Williams and his team? I imagine you wouldn't be here if you were still working for Nike.

A: No, I wouldn't. That's why I quit. Because I wanted to be in this position. I went to Harvard and I went to Yale before this, and I'm going to other business schools and law schools. And I did that because I wanted to do this. Because I wanted to tell the students and the public that this is the world, and these kids have to know about it. Because they are the ones that will be making the decisions. I wanted to show them the big business of sports, college sports. Athletes, they just participate in it. It wouldn't mean anything and they couldn't make change anyway. These kids (pointing to the students in the room) are going to have a different perspective. If I'm going to get after the league on the age thing, or get after the NCAA and their right to keep selling these game forever and ever. These kids can best get my message out. You wouldn't have come if I was talking to the basketball team, and I knew that.

Q: There are two high-profile guys drafted this year that spent one year in college last year though they probably could have been drafted out of high school, Kevin Durant and Greg Oden. They've been drafted and got big money. Some might ask, what was the harm in them going to school, since everything worked out okay for them?

A: Only because you can say everything worked out okay for them. What if it hadn't worked out ok for them? Now, I'm not saying that isn't true, but I'm saying no one else had the right to make that decision.

Q: Is it tough to argue against the age limit when the union actually agreed to it?

A: Sure, they did. I can't fight it, so what I'm trying to get done is that at the next collective bargaining agreement they give second though to it. I'm talking about the future, I'm talking about the kid that doesn't even know we're talking about it.

Q: You talked a lot about how much money these schools are pulling in from athletics while the athletes aren't seeing any of it. What would you advocate..some sort of compensation program for these players? Would you eliminate the concept of amateur athletics altogether?
A: My basic premise is that at the top level, it's not amateurism. Take the BCS...it's basically a lottery for playing for $14 million in the National Championship game. When they made it a lottery, I said to them "it's nothing more than a business." Why don't they have 50 schools playing and give them all $25? And the very fact that they spread it out over 14 games, and then saying 'we can't have a tournament because of the academic schedule,' that's bull****. And it's fraudulent, because six people from six schools basically control the BCS. Morgan State can't make it. Appalachian State, even they went undefeated, would have been precluded from even having a chance to win the lottery. And that's not fair."

For the rest of Tim's piece (which includes some more great questions/answers), click here. For Sports Law Blog coverage of Sonny's other talks, see our posts on his Harvard Law School and Yale Law School talks.

-- Posted by Michael McCann @ 9/29/2007 09:19:00 PM -- Comments (0) -- Post a Comment

Friday, September 28, 2007

Reversing Field

The West Virginia University College of Law is proud to present "Reversing Field: Examining Commercialization, Labor and Race in 21st Century Sports Law." The two day symposium is next week, October 4-5, 2007. WVU Law has assembled a dynamic and diverse group of academics, practitioners and thinkers to debate the hard issues in sports law, including the commercialization of the college athlete, racism in collegiate athletics, "The Rooney Rule" in the NFL, gender equity and Title IX, the utility of drug testing and economic weapons.

www.law.wvu.edu/reversingfield

Keynote and Featured speakers include:

Len Elmore, former NCAA and NBA basketball player and current college basketball analyst for ESPN, CBS, and ABC. Elmore is also senior counsel at the law firm of Leboeuf, Lamb, Greene and MacRae, LLP.

Sherri Burr, law professor at the University of New Mexico School of Law and dynamic author, producer and entertainment lawyer. Burr will be speaking about the "modern athlete as a television celebrity."

William B. Gould IV, Professor Emeritus at Stanford Law School and leading labor law expert. Gould has been a member of the National Academy of Arbitrators since 1970 and has arbitrated and mediated more than 200 labor disputes, including the 1992 and 1993 salary disputes between the Major League Baseball Players Association and the Major League Baseball Player Relations Committee.

Kenneth Shropshire, Professor at the Wharton School at Penn. and author of numerous books, including "Being Sugar Ray: America's Greatest Boxer and First Celebrity Athlete." Shropshire will keynote the October 4, 2007 dinner banquet where he will discuss Sugar Ray Robinson and sign books following the address.

For a full conference schedule and to register, please log on to:
www.law.wvu.edu/reversingfield/program.html

Reversing Field promises to be an exciting and cutting edge event. Many contributors and guests of the Sports Law Blog will participate as panelists, including Michael McCann and Andre Smith. Attendance is free.

-- Posted by dré cummings @ 9/28/2007 08:46:00 PM -- Comments (0) -- Post a Comment

Banks v. NCAA Cert Pool Memo: Seventh Circuit "Dead Wrong"

Thanks to Northwestern Law Professor Lee Epstein's marvelous digital database of Cert Pool Memos from the Blackmun papers (covering the years 1986-1993), we can now explore a bit of what the Supreme Court was thinking when it denied cert in some famous sports law cases. (HT to Orin Kerr).

One case that appears in many sports law casebooks is Banks v. NCAA, 977 F.2d 1081 (7th Cir.), cert. denied, 508 U.S. 908 (1992), in which Notre Dame fullback Braxston Banks challenged the NCAA's "no agent" and "no draft" eligibility rules as a violation of Section 1 of the Sherman Antitrust Act. The case contained the majority's assertion that it would be "absurd" to characterize college athletics as a labor "market". More memorable, certainly, is Judge Flaum's dissent, which the majority dubbed "cynical". Judge Flaum characterized the player-school relationship as a labor market, and suggested that the NCAA

continues to purvey, even in this case, an outmoded image of intercollegiate sports that no longer jibes with reality. The times have changed. College football is a terrific American institution that generates abundant nonpecuniary benefits for players and fans, but it is also a vast commercial venture that yields substantial profits for colleges.

The Supreme Court denied cert in the case. Now, you can take a look at the memo written by a clerk of the Court analyzing whether or not the Court should take the case. The clerk's recommendation comes at the end of the case. The clerk describes the majority's opinion as "rather muddled." The majority "seems to have erred." However, the petitioner conceded the issue was "splitless."

The clerk notes that the "case would be well briefed."

At the bottom of the memo, Justice Blackmun has written (by hand) "I think CA7 got this one dead wrong." Neat!

Can anyone think of any other interesting sports cases as to which the Court denied cert during that period?

-- Posted by Geoffrey Rapp @ 9/28/2007 01:04:00 PM -- Comments (0) -- Post a Comment

My name is Stepney. Nigel Stepney.

The last months in the World of Formula 1 could have been taken out of a Bond flick. The "Circus" has been hit by what is arguably the greatest scandal in the world of motorsports, caused by the antics of two long-time servants of the sport, which in a way relate to Geoffrey's recent post on Sign-stealing, Trade Secrets, and Corporate Espionage. To cut a long story short (for a complete review of facts and opinions see here) Nigel Stepney, Ferrari's Director of Performance up until the start of what is now dubbed the "StepneyGate", was apparently aggravated at being snubbed for a promotion within the legendary racing team. He then thought the best course of action would be to firstly tell McLaren about potential irregularities in Ferrari's cars and subsequently make Ferrari's intellectual property (namely designs) available to McLaren, an outfit who had struggled to put out a competitive car the previous season. Mike Coughlan, designer at the Woking-based team and allegedly an old friend of Stepney was the recipient of the information and was handed extensive documentation containing some of Ferrari's most prized trade secrets.

At the beginning of the season, in the Australian GP, McLaren were astonishingly effective (much more than the FIA in fact) in detecting certain irregularities in Ferrari's cars, namely the controversial floor attachment mechanism. We now know that Stepney's "whistleblowing" was decisive in this. The whole scandal began with an apparent blunder by Coughlan, who had the documents copied at a store. The store's employee - all the more commendable because he was actually paying attention to what he was doing - eventually informed Ferrari and so the StepneyGate came to light.

In reaction, McLaren maintained this was a rogue action by Coughlan of which they had no knowledge of, in an attempt to stay clear of sporting sanctions and criminal action. But they forgot Fernando Alonso, reigning World-Champion and a man deeply dissatisfied with the equal treatment given to him and rookie Lewis Hamilton, who tops the points table at the moment. It seems Alonso has a vengeful side to him and all facts indicate that he leaked inside information to the FIA. The latest developments were a series of e-mails and text messages swapped between Alonso, Pedro de la Rosa (test driver) and team-members, in which Ferrari's set-up and weight distribution, for instance, appear to be common knowledge amongst McLaren staff.

In the end and after a first decision which basically amounted to a slap in the wrist, the FIA decided to take away McLaren's points in the Championship, to preclude the team from registering any further points in GP's still to come this season, to allow their racers to compete for the Driver's championship and to impose a $100m fine. The decision has come in for a lot of criticism, most of it probably deserved. The FIA excludes the team but not the drivers. The seemingly akward decision is justified since it has not been proven that McLaren used Ferrari's intellectual property in its cars. On the other hand it is fairly obvious that McLaren used Ferrari information to obtain a competitive advantage, in breach of Article 151 c) of the FIA's International Sporting Code and hence the exclusion and the fine. But one has to wonder: if the cars do not employ any of Ferrari's intellectual property, the only information used in competitive conditions was the one relating to set-ups and other data resulting from experience, which ultimately was beneficial to McLaren's drivers.

Should Alonso and Lewis have been excluded from the Championship? Probably yes, but this would have destroyed the thrill of one of the most competitive championships in the past two decades. As for the fine, touted to be equal to one fifth of McLaren's yearly budget, it's hard to imagine the Mercedes powered team suffering any setbacks due to lack of funding... as for the exclusion from the Constructors Championship, no one outside the paddock pays any attention to that. I'd say McLaren are very, very lucky to have escaped with the punishment eventually handed down by the FIA. Coughlan and Stepney however, shall not be as lucky. The criminal courts in England and Italy (where Ferrari lodged criminal charges against both) will not take into account any sporting considerations. They will probably face Industrial Espionage (so called in the Continental jurisdictions, very similar to the American Economic Espionage) charges and the prospect of time in jail. Which just serves to underline that McLaren seem to have been dealt fairly leniently by the FIA.

-- Posted by LCN @ 9/28/2007 05:29:00 AM -- Comments (0) -- Post a Comment

Thursday, September 27, 2007

The Structure of Sports Government

Closely related to all things "legal relating to the sports world" is the political and governmental structures of the sports world. How do sports and leagues organize and structure themselves and what are the consequences of those structural decisions--on the field, in the clubhouse, and in the balance sheets? Obviously, the governmental and social structure affects the resulting political society; every choice reflects certain values and incentivizes certain behavior while de-emphasizing other values and behavior. That is true in sports.

One example of this is Major League Baseball's choice to have a play-off wild card team. I disagreed with this decision when it happened in 1995 and I continue to disagree with it (putting me in yet another minority, although this time a minority of two--Bob Costas and me). MLB's choice reflects structural values and emphasizes some concerns and goals over others. But I continue to argue that it is focusing on the wrong goals.

ESPN.com has published an essay by Robert Weintraub called The Last Real Race, a chronicle of the 1993 National League West race between the Atlanta Braves and the San Francisco Giants. In the last year of the two-division/no-wild-card format, the Braves overcame a 9-game defecit on July 20, won 104 games, and won the division by one game on the final day. Put differently, the Giants (in Barry Bonds' MVP-winning first year in San Francisco) won 103 games--and stayed home.

The title of the article is appropriate because, with MLB's structural choice to add a wild-card, a race such as the 1993 NL West will not occur again. And that is a value-lade decision. As Weintraub correctly puts it:

The drama of late-season baseball has been transferred from occasional but memorable all-or-nothing contests between great teams, to annual lower-stakes games between the good-to-mediocre. Could be an apt metaphor for the culture at large.

Today, neither the Giants nor the Braves would have any strong, do-or-die incentive to catch the other and win the division. Both were so far ahead of the Montreal Expos (yes, you read that right), the second-place team in the NL East, that the loser of the division still was guaranteed a playoff spot. So the wise strategy entering the final weekend would be to relax, keep people healthy, and set up the starting rotation for the Division Series. And we see that with the Yankees this year--they trail the Red Sox by 3 in the AL East with four to play, but already have clinced the AL Wild Card. There is no real play-off pressure this weekend for two of the teams with the best records in baseball.

On the other hand, the play-off race is among five NL teams vying for two division titles and one wild card. But all five teams will finish with anywhere from 86 to 92 wins. And there is a do-or-die race for the NL Central title between two teams (including my Cubs) that will win, at most, 87 games (and that assumes the Cubs win their final four games, an unlikely proposition since, well, they are the Cubs).

A wild-card system values having lot of teams in the play-off hunt and more times with post-season hopes later in the season, with a lot of win-or-else games. But it achieves that at the expense of having the best teams playing those win-or-else games. This is sound as a business decision--more fans in more cities will come out or watch in that final weekend, knowing their teams still are alive. But as a baseball matter, I would prefer to watch the Red Sox be forced to win 98 games in order to make the post-season by a desperate Yankees team trying to make-up three games in the standings.

The wild card also de-values division races. Looking at Thursday morning's standings: The Padres (87 wins) trail the Diamonbacks (88 wins) in the NL West, but lead the Phillies (86 wins) for the Wild Card. So the Padres spend the final four games not really caring what the Diamondbacks do, so long as the Pads stay ahead of the Phillies.

The argument that there still is an incentive to win the division is that the wild-card gets a less-favorable NLDS match-up and gets fewer home games in NLDS and NLCS. The problem is that neither of those is a really meaningful incentive, since baseball is unique among all sports in the unpredictability of short series (as opposed to 162-game marathon seasons). The 1993 Braves that came all that way to win the division lost in the LCS to the Phillies. And in the twelve years since the Wild Card was established, a wild card team has made the World Series six of those years, including at least one in each of the last four years. Being the Wild Card simply is not a meaningful hurdle to overcome. Again, the goal simply is to make the play-offs. The "pennant race"--the race to win the division--truly is secondary for the best teams and an issue for the next tier of teams.

It is all about values--quality of baseball and quality of the teams in the competition or simply more money from more teams being involved. MLB made its choice. I believe it made the wrong one.

-- Posted by Howard Wasserman @ 9/27/2007 12:23:00 PM -- Comments (1) -- Post a Comment

The Language of the Isiah Thomas Trial

David Segal of the Washington Post has an excellent piece today on the Isiah Thomas sexual harassment trial ("Knicks Coach Isiah Thomas Takes Center Stage," Sept. 27, 2007; Page C01).

I was interviewed by Segal for the story, which examines the nature and styles of language found in the trial.

Here is an excerpt from Segal's piece:

With Zen-like serenity and a choirboy's smile, former basketball star and current New York Knicks coach and President Isiah Thomas took the stand Wednesday in a sexual harassment suit filed by a former employee, giving him the chance to share a few thoughts on some choice words. For instance: "I don't think it's appropriate for any man -- black, white, green or purple -- to call a woman a bitch."
As for the blunt four-letter verb often used for sexual congress, by all means, that's in his vocabulary, he testified. But the 46-year-old Thomas said he never swears at employees, and he certainly never swore at Anucha Browne Sanders, the Knicks' onetime senior vice president for marketing, who filed a $9.6 million suit against Thomas and was fired last year by the team's owner. She has alleged that, in addition to hurling these vulgarities her way, Thomas made unwanted advances, including a profession of love and an invitation to "go off-site." She seeks reinstatement to her job, which paid as much as $260,000 annually.

This is the third week of the civil trial, which has been so bleeping full of bleep words, not to mention tawdry behavior -- including that tired old chestnut of corporate misdeeds, sex with an intern -- that the transcript ought to come with a parental warning sticker. For the NBA, which is still coping with the scandal of a referee who bet on games, the timing is lousy. Commissioner David Stern has diplomatically refused to comment, but with the case producing tabloid headlines such as "Oh, Those Slithery Snakes in the Garden," it's surely adding to his agita.

Segal asked me what I thought David Stern's reaction would be to Thomas being found civilly liable:

Stern will "be outraged if we end up with a finding of sexual harassment," says Michael McCann, a sports law professor at Mississippi College School of Law. "He's been trying in recent years to regulate the maturity level of the league -- with a dress code, with an age eligibility requirement for the draft -- and maybe that maturity level will have to extend beyond the locker room."

For the rest of the story, click here.

-- Posted by Michael McCann @ 9/27/2007 09:12:00 AM -- Comments (2) -- Post a Comment

Wednesday, September 26, 2007

SI.com Column on Michael Vick's Failed Drug Test and New Criminal Charges Against Him

I have a new Sports Illustrated.com piece up: Michael Vick's Woes: Failed Drug Test, Indictment Lead to New Questions.

Hope you have a chance to check it out.

-- Posted by Michael McCann @ 9/26/2007 08:33:00 PM -- Comments (1) -- Post a Comment

Marquette Sports Law Scholarship and Teaching Colloquium

I am pleased to be joining Rick Karcher and several current or former guests on our blog, including dre cummings, Gabe Feldman, Jeffrey Standen, and Tim Epstein in Milwaukee on Thursday at the 2007 Sports Law Scholarship and Teaching Colloquium, hosted by the National Sports Law Institute and Marquette University Law School.

Matt Mitten and Paul Anderson, director and associate director, respectively, of the National Sports Law Institute, have done an excellent job putting this event together. For information on attending, please contact Paul.

Here is the roster of speakers and their topics:

Sports Law Scholarship and Teaching Colloquium
Marquette University Law School, Eisenberg Hall
Thursday, September 27th, 10am-6pm

10:00am Welcome (Matthew Mitten)

10:05 - 11:20 am Scholarship Presentations (each 25 minutes including Q &A)

Paul Rogers (SMU)—“The Quest for Number One in College Football: Should the Antitrust Laws Sack the Bowl Championship Series?”

James McCurdy (Gonzaga)—Economic Principles That Underlie a League’s Choice of Devices to Ensure All Costs and Benefits Are Taken Into Account in League Decision-Making and Other Matters

Jeffrey Standen (Willamette)—"Market Failures in Professional Sports"

11:20 - 11:25 am Break

11:25 am - 12:15 pm Scholarship Presentations (each 25 minutes including Q &A)

Gabriel Feldman (Tulane)—“The Misuse of the Less Restrictive Alternative in Sports Antitrust Litigation”

Josephine Potuto (Nebraska)—1st Amendment Issues in Athletics (crowd control rules at games and/or the Brentwood Academy case)

12:15 - 1 pm Buffet Lunch

1:00 - 2:15 pm Scholarship Presentations (each 25 minutes including Q &A)

Christo Lassiter (Cincinnati)—“Lex Sportiva: Thoughts Toward Developing a Criminal Law Jurisprudence for Competitive Contact Sports”

Rick Karcher (Florida Coastal)—"Fundamental Fairness in Union Regulation of Sports Agents"

Ed Edmonds (Notre Dame)—“Baseball Salary Arbitration – A Twenty Year Analysis.”

2:15 - 2:20 pm Break

2:20 - 3:10 pm Scholarship Presentations (each 25 minutes including Q &A)

Michael McCann (Mississippi College)—“Connecting Social Psychology to Sports Law”

Maureen Weston (Pepperdine)—Legal Issues Arising Out of Floyd Landis Arbitration

3:10 - 3:15 pm Break

3:15 - 4:35 pm Teaching Panel (15 minutes per panelist)

Robert Berry (Boston College emeritus)—Simulated negotiations, brief writing, oral arguments, and drafting

andre douglas pound cummings (West Virginia)—American Indian mascot debate

Alfred Mathewson (New Mexico)—Free agent market exercise

John Sahl (Akron)—Incorporating professional responsibility and guest speakers

Paul Anderson (Marquette)—Developing an advanced, practical sports law course (e.g., Amateur Sports Law Workshop); using sports law as a means of teaching legal research

4:35 - 4:40 pm Break

4:40 - 6 pm Teaching Panel (15 minutes per panelist)

Allan Erbsen (Minnesota)—Seminar about the arbitration of international and domestic sports disputes

Richard McLaren (Western Ontario)—The use of live arbitration proceedings (e.g., Floyd Landis CAS arbitration) to teach a sports law or ADR course

James Nafziger (Willamette)—Developing an interdisciplinary sports law course

Michael Straubel (Valparaiso)—Sports Law Clinic

Matthew Mitten (Marquette)—Incorporating an international and/or comparative law component into a sports law course; LL.M. in Sports Law for foreign lawyers

7:00 pm Reception and Dinner at Hilton Hotel

On Friday, the National Sports Law Institute and Marquette University Law School will host a conference on "The Increasing Globalization of Sports: Olympic, International and Comparative Law & Business Issues." Rick blogged about the conference in August and its official website is available at this link.

It should be a great next couple of days in Milwaukee.

-- Posted by Michael McCann @ 9/26/2007 12:25:00 AM -- Comments (0) -- Post a Comment

Update on Sonny Vaccaro's East Coast Speaking Tour

A couple of notes on Sonny Vaccaro:

At 6:30 p.m tonight, Sonny will deliver a lecture at the Robert H. Smith School of Business on the University of Maryland’s College Park campus. The event is open to the public. Here are some additional details:

Sonny Vaccaro to Speak at University of Maryland Business School

Sports marketing legend Sonny Vaccaro will speak at the University of Maryland’s Robert H. Smith School of Business on Sept. 26 at 6:30 p.m. Vaccaro — who is to be portrayed by Emmy-winner James Gandolfini of “Sopranos” fame in the upcoming HBO original movie, “ABCD Camp,” — will speak to students about his years negotiating lucrative shoe deals and multimillion-dollar promotional partnerships for top athletes, including signing Michael Jordon to his first major endorsement package. Vaccaro also created top basketball camps and tournaments for amateur players. His Roundball Classic, founded 43 years ago, is the original high-school all-star game for the top 22 high school players in the country with many being drafted to the NBA or recruited by leading colleges. The event is part of the Smith School’s Undergraduate Fellows Program, which offers students participation in one of several small-scale specialized academic concentrations that provide hands-on experiences and close interaction with faculty, alumni, peers and industry professionals. Smith will launch a Sport Management Fellows program next spring.

WHO: Sports marketing legend Sonny Vaccaro addresses Robert H. Smith School of Business students. More information about Vaccaro and his basketball camps and tournaments is available at this link and on his Web site, Next Factors.

WHAT: Vaccaro will share his marketing insights from more than four decades in the sports business. He’ll talk about controversial celebrity endorsements, how endorsements have impacted the industry, his views and what the critics say, and he’ll forecast what’s next in sports marketing.

WHEN: Wednesday, September 26, 2007
6:30-7:30 p.m. – Vaccaro’s presentation to students
7:30-8:30 p.m. – Reception

WHERE:
Robert H. Smith School of Business
Frank Auditorium, Room 1524
Van Munching Hall
University of Maryland, College Park 20742

*Vaccaro will be available for media interviews following his presentation to students. To attend the event and request an interview, please contact:
Carrie Handwerker, 301-405-5833, chand@rhsmith.umd.edu

I attended Sonny's talk at Yale Law School last week. Great work by Ashlee Lynn and Michael Bloom, president and vice-president, respectively, of the Yale Sports and Entertainment Law Association, in putting the event together. Whether you agree or disagree with him, Sonny knows how to deliver a mesmerizing talk. Just great stuff and I hope those of you near the University Maryland get over to see him tomorrow night.

Nick Infante, who runs the excellent College Athletics Clips, also attended the event at Yale Law and offers a thoughtful perspective on Sonny's talk. Here are a couple of excerpts from Nick's great article:

Some of the events that Sonny was describing occurred before many in the predominantly under-25 audience were born – or they were just kids – but he skillfully made that history relevant to today’s challenges. He kept coming back to the validation of actions based on what’s right, what’s good for the kids, what the norm is in any situation (i.e.-What’re the other guys doing?), etc.

This was not a guy describing an absolute black and white delineation of right and wrong. This was a seasoned business pro describing real-world relativism. After all, what might be considered a kickback nowadays was probably considered a finder’s fee a few years ago. Similarly, what was once considered a gift might now be considered a bribe.
* * *
After about an hour and a quarter of nostalgic narrative, Sonny up-shifted into the advocacy part of his monologue. He lit into the NBA (over the 19–plus–1 rule) and the NCAA (for seemingly everything else under the sun).
This is where Sonny pulled out all the stops. As if we hadn’t already been exposed to an engaging, passionate speaker, now there was an even more supercharged dynamo in front of us.

Sonny was especially agitated over the NBA’s 19–plus-1 rule, remarking that “white America was not ready for these black kids.” He then mocked the end result of the rule, that there were eight players who jumped to the NBA after an “and-1.” Said Sonny, “They weren’t student-athletes. They were rent-a-players.”

-- Posted by Michael McCann @ 9/26/2007 12:10:00 AM -- Comments (0) -- Post a Comment

Tuesday, September 25, 2007

New Sports Law Scholarship

New over the past few weeks:

Roger I. Abrams, Blackmun’s list, 6 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 181 (2007)

Hannah Gordon, In the replay booth: looking at appeals of arbitration decisions in sports through Miami Dolphins v. Williams, 12 HARVARD NEGOTIATION LAW REVIEW 503 (2007)

Robert Forbes, Note, Call on the field reversed: how the NFL Players Association won big on salary forfeiture at the bargaining table, 6 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 333 (2007)

S. Christopher Szczerban, Tackling instant replay: a proposal to protect the competitive judgments of sports officials, 6 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 277 (2007)

-- Posted by Geoffrey Rapp @ 9/25/2007 01:13:00 PM -- Comments (1) -- Post a Comment

Athletics Directors are Demanding an Answer to New York's Fishing Investigation of Illegal Kickbacks

Two months ago, it was splashed all over the front page headlines that the New York Attorney General's office had issued subpoenas and records requests to 41 Division I college athletic programs, questioning whether athletics personnel got kickbacks or promises of cash or other perks for steering students to a particular lender. Earlier this year, Florida-based student loan provider University Financial Services (UFS) was found to have offered kickbacks to the athletics director at Division II Dowling in New York. This prompted the NY AG's office to investigate all of the larger athletics programs across the country that have an advertising/sponsorship relationship with UFS.

USA Today's Steve Wieberg reported yesterday that the targets of the investigation have not heard anything from the AG's office. The athletics directors are demanding answers (and rightfully so):

"There was a big media splash. It was a big push by the attorney general. And then, you get nothing else," says Central Florida athletics director Keith Tribble, who insists his department has done nothing wrong and wants public confirmation of that. "We would like to have some closure to it, to (have them) say basically there's nothing to this."

At Louisville, "There's no doubt we're sitting on an island," AD Tom Jurich says. "… I'm not speaking for 41 schools, but I would imagine everyone would like some clarification on this."

It's not surprising that nothing showed up from this investigation. It was highly questionable right from the start. First, the basis for investigating all of these programs across the country is simply that the athletics director at Dowling in New York was receiving illegal kickbacks from a student loan provider that also served as a sponsor for the Dowling athletics program. That one instance does not provide any reasonable basis whatsoever to believe that the athletics director at any of these programs is or has been receiving unlawful kickbacks. Second, even if a correlation did exist, what legitimate purpose is served by issuing these subpoenas? If the athletics director of one of these programs was in fact receiving unlawful kickbacks, is it reasonable to think that he would actually produce a "smoking gun" document evidencing an unlawful kickback arrangement?

-- Posted by Rick Karcher @ 9/25/2007 08:00:00 AM -- Comments (6) -- Post a Comment

Monday, September 24, 2007

SI.com column on Isiah Thomas Sexual Harassment Lawsuit

I have a new Sports Illustrated.com column up: Breaking Down the Isiah Thomas Trial.

In it, I examine issues relating to the parties settling and also possible sanctions of Thomas by the NBA, among other topics related to this litigation.

I also interview Alan Milstein, who has litigated on behalf of
Allen Iverson, Maurice Clarett, and Eddy Curry, among other professional athletes, for the piece.

Hope you have a chance to check it out.

Update: Henry Abbott of ESPN's TrueHoop writes about my column. I appreciate Henry's thoughtful analysis.

-- Posted by Michael McCann @ 9/24/2007 09:13:00 PM -- Comments (5) -- Post a Comment

Sunday, September 23, 2007

Sealed Records in "Fighting Sioux" Case

At last, an issue in which all my varied interests converge over one sports-related controversy--a little bit of free speech, a little bit of civil procedure and civil litigation theory, and a little bit of political controversy.

The court presiding over the University of North Dakota's lawsuit against the NCAA over UND's "Fighting Sioux" nickname has issued an order sealing all future documents filed in the case. The court explained the move as a way to encourage and facilitate settlement discussions. The court promised to rescind the order if and when settlement talks break down and the case resumes moving towards trial. UND sued the NCAA last year when the NCAA refused to grant UND a waiver to continue using the nickname at NCAA championship events (as it had done with most larger schools, including University of Utah and Florida State). The suit alleges breach of contract and state-law restraint of trade.

News stories have not gone into detail about the court's reasoning or about the arguments the NCAA made in support of its motion to seal. Some thoughts and questions:

1) I am trying to figure out what sort of sensitive or confidential information might be contained in future filings in a case such as this one such that the NCAA would want this. Maybe information about NCAA internal deliberations or processes or practices? I cannot imagine what personal privacy or business interests would be implicated in documents filed in this type of case.

2) In any event, note the unusual breadth of the court's order--all future filings, without the requirement that the NCAA show, and the court find, a specific need for confidentiality as to specific documents. But there may be some countervailing public interest in knowing how the NCAA, a uniquely powerful private entity, operates.

3) There is an ongoing controversy about how "open" pretrial records and processes should be. We discussed a similar case here. But our discussion there was about an effort to unseal a preliminary search warrant that potentially implicated the privacy rights of specific, potentially innocent individuals. The order at issue here is much broader and the privacy concerns (at least from what I am surmising from stories) are not as obvious.

4) The court's specific justification for the sealing--enabling further settlement talks--implicates a further controversy about the purpose of civil litigation. Is the purpose simply to resolve civil disputes by the most efficient means? Or is it a broader purpose to explicate public legal values? If the latter, an order sealing all documents becomes even more troubling.

5) The story included a quotation from the attorney for the state newspaper association expressing concern about the order, although not indicating whether the association would take any action on the matter. Ironically, it is the state (representing UND) that is arguing for open courts and the private entity trying to keep matters closed--a switch on the usual position, at least in civil litigation.

-- Posted by Howard Wasserman @ 9/23/2007 06:56:00 AM -- Comments (0) -- Post a Comment

Thursday, September 20, 2007

Ohio State Loses O'Brien Appeal

The 10th District Court of Appeals in Ohio today affirmed a decision of the Ohio Court of Claims back in February, 2006 in favor of former Ohio State men's basketball coach Jim O'Brien. In the months following the Court of Claims ruling, a jury awarded O'Brien $2.2 million plus interest, which I discussed back in August of 2006 here. As a result of the Court of Appeals decision today, OSU must now pay O'Brien more than $2.4 million for his wrongful firing back in 2004. OSU has 45 days to appeal to the Ohio Supreme Court, which can elect not to hear the appeal.

-- Posted by Rick Karcher @ 9/20/2007 09:40:00 PM -- Comments (4) -- Post a Comment

Reactions to Sonny Vaccaro's Talk at Harvard Law School

Just passing along some great news coverage and on-site observations from Sonny Vaccaro's speech at Harvard Law School last night.

First off, Rob Roberts, a first-year law student at Harvard Law School and perhaps our first Sports Law Blog reporter, checks in with a great piece of reporting:

Sonny Vaccaro gave an excellent talk last night. Some highlights from the evening:

- Watching him interact with people before his talk, I could absolutely see why so many kids in the basketball world looked up to and trusted him. Sonny seemed genuinely interested in meeting everyone in the room. I actually tried to sneak past him to not interrupt his conversation at one point, only to be stopped with a friendly, "Hello young man, Sonny Vaccaro. Whats your name?"

- He is an amazing storyteller. Hearing him weave his way from growing up in post-WWII Pittsburgh, to the beginning of his all-star games and camps, representing George Gervin, and finally his experiences in the shoe business was engaging from start to finish. He managed to go for a full 90 minutes without referring to the notes his lovely wife Pam had prepared for him.

- My favorite part of his talk was definitely his candor and honesty. The man is certainly not afraid to speak his mind, especially on subjects he is passionate about. Good or bad, Sonny told the crowd exactly how he felt on every subject he addressed -- especially the NCAA. His big 'hot button' issues: the fairness of the NBA and NFL draft processes, the profits schools make from (and do not share with) their football and basketball players, and the apparent hypocrisy of the standards "student athletes" are held to compared to the institutions they attend.

Anyone who can get to one of his upcoming talks should definitely take the opportunity to do so. It's a worthwhile experience for anyone who has cared about basketball at any level over the past 30 years.

Thanks to Rob for that excellent report. Some other great coverage comes from Pete Thamel of the New York Times and Eric Prisbell of the Washington Post, who interviews Harvard Law 2L Jihad Beauchman and 3L Mike Menitove (who is also president of the Committee on Sports and Entertainment Law):

Jihad Beauchman, a second-year law student, said: "Sonny and I don't necessary agree on the issues, but I like that he is so passionate about it. It's amazing that he has accomplished so much, but he still sees that his greatest goal is forthcoming."

Michael Menitove, a third-year law student, is the president of Harvard's Committee on Sports and Entertainment Law, which invited Vaccaro to speak. Menitove said: "We wanted someone who was controversial. We wanted someone who was opinionated. Agree or disagree, the NCAA is an issue that has certainly been at the forefront of conversation."

Also, Sonny spoke at Duke Law School earlier this year, an event organized by Duke 3L Michael Sopko. Sonny's speech can be viewed at this link.

Last but not least, be sure to check out Money Player's Marc Isenberg's excellent post entitled Sonny Vaccaro goes Ivy League. Marc, as many of you know, is the author of The Student-Athlete Survival Guide and The Truth about Gambling, and will soon be publishing Money Players: A Guide to Success in Sports, Business & Life for Current and Future Pro Athletes.

I look forward to attending Sonny's speech tomorrow at Yale Law School.

-- Posted by Michael McCann @ 9/20/2007 08:46:00 PM -- Comments (0) -- Post a Comment

Wednesday, September 19, 2007

Sonny Vaccaro to Speak at Harvard Law School and Yale Law School

Sonny Vaccaro, widely-regarded as the most influential person in amateur basketball and sometimes called "The Godfather of Basketball," will be speaking at Harvard Law School tonight at 7:00 p.m. and at Yale Law School at 2:00 p.m. on Friday. Next week I will blog about his upcoming talk at the Robert H. Smith School of Business on the University of Maryland’s College Park campus on Wednesday, Sept. 26 at 6:30 p.m.

Sonny is perhaps best known for signing Michael Jordan (Nike) and Kobe Bryant and Tracy McGrady (Adidas) to endorsement contracts and for running the nation's most prestigious high school all-star camps and tournaments, most notably the ABCD camp. His talks will center on the NCAA's treatment of college basketball players in relation to the NCAA's mission and also on the NBA's age restriction, which requires that an amateur American player be at least 19 years old on December 31 of the year of the NBA draft and that at least one NBA season has passed from when he graduated from high school, or when he would have graduated from high school, and the NBA draft.

Harvard Law School Lecturer on Law Peter Carfagna and the law school's Committee on Sports and Entertainment Law (CSEL) will be hosting Sonny, who will be speaking in Langdell Hall North (directions to Harvard Law School/campus map). The event is open to the public. For additional information, please contact CSEL President and Harvard 2L Mike Menitove by e-mail or phone (914-582-9238). For information on attendin

g the Yale event, please contact Ashlee Lynn by e-mail; for the same on attending the Maryland event, which, like the Harvard event, is open to the public, please contact Carrie Handwerker by e-mail.

I regret that I won't be able to attend Sonny's talk at Harvard Law tonight, as I am in Mississippi, but I will be attending his talk at Yale Law School on Friday. Full disclosure: Sonny is a good friend of mine. Having spoken with him at length just a couple of days ago, I can confirm his genuine enthusiasm and excitement over these talks. He is going to offer some comments and insight that will definitely make the headlines and wow people.

So for those of you near Harvard tonight, I strongly encourage you to get over there and see Sonny. He is truly a legend--so much so, in fact, that James Gandolfini (Tony Soprano) will be playing him in the upcoming HBO movie, "ABCD camp," which will be based on Sonny's life.

-- Posted by Michael McCann @ 9/19/2007 09:38:00 AM -- Comments (1) -- Post a Comment

Tuesday, September 18, 2007

SI.com column on The NFL's Retirement System

I have an SI.com column on the NFL's retirement system, how it determines and distributes pension and disability benefits, and how the federal government may compel the NFL and NFLPA to rectify what appear to be system defects. Earlier today, NFL commissioner Roger Goodell, NFLPA executive director Gene Upshaw, Hall of Fame player Mike Ditka and others testified before the Senate Committee on Commerce, Science, and Transportation.

My column examines the various legal, economic, and psychological issues at stake, including the structural obstacles faced by ex-NFL players in qualifying for disability benefits, as well as how ERISA largely insulates the NFL's retirement board from judicial scrutiny.

At 3,000 words, I hope my column covers these complex issues in sufficient depth.

Update: thanks to Jonathan Tasini, who is president of the Economic Future Group and who writes for Daily Kos and the Working Life blog, for writing about my column and for providing some great perspective on the issues at play.

-- Posted by Michael McCann @ 9/18/2007 09:39:00 PM -- Comments (4) -- Post a Comment

Sunday, September 16, 2007

A Life Well Lived or Fathers, Daughters, and Baseball

Please allow me to get personal for a few moments.

Dr. Martin D. Abeloff died last week, at the age of 65. Marty was a nationally prominent oncologist, director of the Sidney Kimmel Comprehensive Cancer Center at Johns Hopkins University Medical School, long-time faculty member at Hopkins, and former president of the American Society of Clinical Oncology. He leaves behind his wife of 40 years; two beautiful, brilliant, and successful daughters (one of whom somehow consented to marry the author); two sons-in-law; three amazing grandchildren (I have a special affection for the youngest of the three); and a big sister. I only had the fortune to know Marty for about seven years, but I am a better person for having entered his orbit even for such a short time. I never heard anyone speak an unkind word of him and the outpouring of emotion since his passing has been overwhelming. He was the most impressive person I have had the pleasure to know. And through it all, he remained the nicest, friendliest, humblest man I ever encountered. If I can be the type of person who makes half as much of an impact on those around me, personally and professionally, I will consider my life a success.

So what’s it got to do with baseball? Well, for starters, Marty was a huge sports fan. He grew up taking day trips from his small Pennsylvania coal-mining town to Philadelphia to watch the Phillies play at Shibe Park/Connie Mack Stadium. He played on his high school basketball team (he liked to say he earned his spot because you cannot teach 6’4”). He played a regular weekly tennis game for many years—although his wife always was a better player. He became an Orioles fan when he moved to Baltimore for medical school and lived there for all three of the team’s World Series victories. He got to see Hopkins win one last national championship in men's lacrosse last spring. He lost interest in football when the Colts skipped town on that snowy winter’s night, although he came back to it when the Ravens moved in (occasional luxury-box tickets will do that for you). He recently had given up on the Orioles, as Peter Angelos systematically dismantled one of the great organizations in sports. But to the end, he could sit and watch baseball and tennis on television. I think he was glad his daughter brought me onto the scene just so he had someone else with whom to talk sports.

More importantly for my purposes, Marty raised a genuine sports fan. Since I am a certified sports nut, this is one of the things that first attracted me to my future wife. She grew up watching baseball. She knew how to keep score. She learned how to watch and talk about the game. She learned that sometimes you root not for the superstar, but for the schlepper—her favorite player on the 1983 World Series Champion Orioles was not future Hall-of-Famers Cal Ripken, Jim Palmer, or Eddie Murray, but catcher Rick Dempsey. She could watch the 2007 Wimbledon Finals and explain to our otherwise-disinterested six-year-old niece why she should root for the “guy with short hair” over the “guy with long hair.” Perhaps Marty did not push hard enough when my wife wanted to play little league, but things were just different enough in 1981. But she learned to play tennis well enough to be a Baltimore City high school doubles champion (which, unfortunately, sounds more impressive than it actually was) and Marty never missed a match.

I think one story captures the point of this homage. When my wife was in high school, she went with her boyfriend and one of his friends to an Orioles game at old Memorial Stadium (conveniently located across the street from their high school—students used to get half the day off on Opening Day). Her boyfriend was being kind of jerk—he and his buddy were ignoring her, talking between them and not including her, and being generally rude and obnoxious (he was, after all, a teen-age boy, although he was at our wedding and remains a friend to this day). So she left. When she got home and told her dad what happened, Marty picked up his car keys and they drove back to the Stadium. He bought two tickets from a scalper and Dad and daughter watched the game together from infield box seats. A dad can protect, or try to protect, his little girl from a lot of things. And, sometimes, baseball can be the means by which he does it.

Someday I will need to protect my daughter in a similar way, since it is inevitable that her high school boyfriend will be mean to her at some point. If I can do so well when my time comes, and if my solution involves baseball, then I will have done right by Marty’s granddaughter.

-- Posted by Howard Wasserman @ 9/16/2007 11:17:00 PM -- Comments (3) -- Post a Comment

Saturday, September 15, 2007

A Situationist Account of the NFL, Bill Belichick, and Videotapes

Reactions over Bill Belichick and the New England Patriots videotaping the Jets have finally brought some humor: last night, New Mexico Governor and Presidential candidate Bill Richardson mused, "You know something is wrong when the New England Patriots face stiffer penalties for spying on innocent Americans than Dick Cheney and George Bush."

Most reactions remain sober and serious, however, and very critical of the Patriots' engagement in a practice that is apparently neither new to the NFL nor unique to the Patriots, but still against league rules and embarrassing for a franchise that had been so revered.

Over on The Situationist, Goutam Jois takes a different approach and examines the role played by the NFL in creating a situation in which wrongdoing could occur. Here is an excerpt from his piece:

Perhaps part of the explanation is situational. In an environment where competitive pressures and expectations are very high, incentives to push the envelope, cut corners and, yes, cheat outright are quite strong. Bad choices, to be sure. But powerful situations too. Consider the recent debacles in corporate America. Surely, none of the now-disgraced executives set out years ago on a quest to defraud shareholders. Instead, they faced pressures to meet analysts estimates quarter after quarter. When a division or department reported figures that didn’t quite seem right, they looked the other way. When accountants concocted unusual transactions and entities to hide debt and inflate revenues, they assumed “everyone was doing it.”

So, too, in football. Perhaps the surprising thing is not that Belichick was cheating; it’s that he got caught for doing it so obviously. And the pressure in this case comes not from investment bankers or shareholders but from sportswriters and fans. Sure, the cheating may not have made a difference in this game — but Belichick was looking for an edge in the next game and the next, and perhaps a playoffs rematch with the Jets. Indeed, Belichick implied as much in his “statement,” saying that the Pats “have never used sideline video to obtain a competitive advantage while the game was in progress.” Of course, as a commentator pointed out on CNN this morning, if it didn’t make a difference, they wouldn’t have done it. The risks may have been sky-high, and the benefits marginal, but in the minds of Belichick and the pats, every little bit could be the difference maker in their quest for a fourth Super Bowl ring.
* * *

Given the power of situation to compel choices, eliminating the possibility of certain choices may prove advantageous. The NFL could, for instance, provide for additional security in games to monitor for potential cheating, assess “unsportsmanlike conduct” penalties if it came to light during the game, and in extreme situations, require teams to forfeit tainted games. After-all, it appears that the NFL only responded to the Patriots’ videotaping upon being notified by other teams’ personnel. If the issue were so crucial to the NFL, as the league now alleges, why did the league allow for a situation in which it may exist until detected by opposing teams?
Belichick needs to be punished, no doubt. And a stiff punishment and public outrcry will influence the situation of all coaches who contemplate such options. Still, if we care about honesty and integrity, in sports as in business, we would do better than to rely on “the better angels of our nature.” Instead, we should be sensitive to shaping our institutions and our laws with a view to changing the incentives that our coaches, players, and CEOs face. Even without laws and rules that condone advantage-seeking, there are plenty of incentives, for corporations and for sports teams, to be and to remain highly competitive. A more accurate understanding of human nature just might change some of the incentives to cheat.

For the rest of Goutman's article, click here. For comments by BC Law Professor Alfred Yen, click here.

-- Posted by Michael McCann @ 9/15/2007 09:38:00 AM -- Comments (5) -- Post a Comment

Friday, September 14, 2007

Professor Alfred Yen on the NFL's Punishment of the Patriots and Bill Belichick

Professor Alfred Yen of Boston College Law School, a nationally recognized expert on sports law and copyright law, has authored a thoughtful and engaging reaction on Madisonian.net to the NFL's punishment of the New England Patriots for having a video assistant tape the Jets coaches and players on the sidelines. The NFL has fined Bill Belichick $500,000 and the Patriots $250,000 and also confiscated the team's 2008 first round pick (assuming they make the playoffs; in the improbable event that they do not, the Pats will instead relinquish their second and third round picks--but note that their possession of San Francisco's 2008 first round pick, which was obtained in a draft day deal last April, is unaffected by this ruling). Here is Professor Yen's reaction:

Now people will begin debating the appropriateness of the penalties paid by Belichick and the Patriots. One argument will be that deciphering signs is part of sports and perfectly legal, so Belichick’s objective was not a terrible thing. And, if deciphering signs is ok, why make such a big deal of using a video camera to accomplish it?
There’s a curious parallel between this argument and one about circumvention of DRM in copyright. Both the Patriots and some circumventers have a “legal” objective. The Patriots want to decipher the opponent’s defensive signals, and some circumventers want to make fair use of a copyrighted work. The only “offense” is using technology to accomplish otherwise legal ends. So, if we think (as some do) that penalties for circumvention should be lenient or nonexistent when fair use is the purpose, shouldn’t the Patriots and Belichick get off with less severe punishment?

I admit this argument has some appeal, and it made me reconsider my initial reaction that the Patriots and Belichick got what they deserved. However, there’s a difference between the two scenarios. The Patriots and Belichick are not relatively innocent first time offenders. The Packers caught them at it last year. More important, this fall the NFL specifically reminded coaches not to do the very thing the Patriots did. Thus, it seems that the NFL did not punish the Patriots and Belichick simply for breaking a rule. Rather, the NFL punished them for thumbing their noses at the league’s authority to regulate competition. It’s as if a circumventer had deliberately violated a preliminary injunction against circumvention. A court’s severe response in such a situation would be for flouting the court’s authority, not simply the illegality of circumvention.

With this in mind, I think the league has treated the Patriots and Belichick quite fairly. They have been taught that disobeying the commissioner is painful. Although I might have suspended Belichick if I were the commissioner, I can understand that Goodell didn’t want to upset competitive balance on the field in such a direct way when the Patriots themselves did not actually alter a competitive outcome (they were caught in the first quarter and the videotape was confiscated, so they never got the benefits of their misbehavior).

I agree with Professor Yen that what makes the Patriots behavior particularly reprehensible is not the underlying action (covert videotaping), since many other teams apparently do the same thing and it's unclear to what extent the videotapes are beneficial to the culprits; what makes it reprehensible is to disregard league warnings, perhaps repeated warnings, to stop doing it. That's why this issue really isn't about the Patriots "cheating," but rather about them being arrogant/disrespectful toward the league.

Still, I agree with Geoff Rapp's excellent post and subsequent comments, and particularly his wonderment as to why the videotaping rule never made its way into the official rulebook, but instead into the (arguably) less authoritative "Game Operations Manual," which also regulates such momentous events as how many towels and soft drinks to provide visiting teams.

-- Posted by Michael McCann @ 9/14/2007 08:05:00 AM -- Comments (7) -- Post a Comment

Thursday, September 13, 2007

More on instant replay

My earlier post about instant replay triggered some excellent comments. Professor Jessica Silbey, whose work on filmic evidence I cited in that post, sent an e-mail commenting on the issue. She has a PhD in comparative literature, along with her J.D., and is a leading academic authority on the use and limits of filmic evidence in the judicial system. She agreed to let me post her comments:

This led to an argument with my husband, who, as your post predicts, is in the majority really liking the instant replay. None of this answers your question.

The difference (as I understand how instant replay works) between cop cams and instant replay in sports is the number of cameras on the event that can be accessed afterward. In football (I am told), there are at least four different official video views, not to mention all the other unofficial but competing broadcasters to whom one could go for multiple angles. One of the limitations of filmic evidence is the perception of omniscience from a singular view. If instant replay works as I am told -- with multiple perspectives -- the sense of omniscience and singularilty in interpretation should evaporate as it becomes clear that from different angles the play can be read differently.
"His knee looks down from this shot but from the other angle it looks like it hadn't yet touched the ground" -- something like that. Also, with multiple cameras we get multiple brightness and darkness; different focuses, etc. Certainly, people can glob on to one of the camera angles and images that seem the "clearest" but that doesn't mean they aren't also going to borrow from other angles to piece the story together. This gets to be much more like what normal evidentiary processes are supposed to do (piece oral, documentary, photographic, forensic evidence together to tell a persuasive story). Instead of relying on a singular source, the fact finder is relying on many. They may all be filmic in this case, and that suggests that they think the film is better than these others, but at least no singular film is better. I consider that a step in the right direction.

Also, with instant replay I wonder how far beyond the discrete play the video will extend. When will players begin to ask for "context" (will they ever?) to judge the call. Justice Stevens certainly calls for that in Scott when he criticizes the majority regarding its interpretation of the sound issues with the video and the 2 or 4 lane highway. "My knee may have been down but if the camera had been focused on the guy 2 yards back, you would be calling a penalty." I don't know if I have all the sports talk down, but I gather you get my drift. Once we introduce the power of film into our judgment mechanism, we can't help but ask for it to shed light on all sorts of things. And because it can't without making this more complex (which is what the event that is to be adjudicated is anyway!) I'm not sure film helps at all.

Good comments and more fodder as more sports begin to use replay and/or expand the uses of replay. Her point about "context" is interesting, although not in the situation she describes. But consider an NBA ref using replay to figure out whether a foul was flagrant. Does context--something that happened just before, out of the camera's view--affect whether it was a flagrant?

-- Posted by Howard Wasserman @ 9/13/2007 08:23:00 PM -- Comments (1) -- Post a Comment

Tuesday, September 11, 2007

Sign-stealing, Trade Secrets, and Corporate Espionage

As most readers have likely heard, the New York Jets have filed a complaint with the NFL alleging that the Patriots used a video camera as part of a sign-stealing effort at this weekend's "demolition". Touchdown.org purports to have the goods on the Patriots: the posted photo (HT to Deadspin) seems to indicate a green shirted cameraman filming something happening on the Jets sideline, rather than on the field. (I'm not so sure about the site's claim, in that the green shirt worn by this particular cameraman would seem to suggest he is a Jets, rather than a Patriots, employee).

For the moment, assume the Patriots are guilty of the alleged act. Supposedly, this violates an NFL rule. I say supposedly because none of the coverage gives the language of the rule or its number: instead, we are simply told that there is a rule forbidding camera use during games, and specifically in any area in which there are coaches. The NFL official rule book is notoriously difficult to locate on line. The NFL's official site offers only a "digest" of rules, which includes assertions of commissioner authority to investigate "unfair acts" but, based on my review, says nothing about video-recording or sign-stealing. I did find what seems to be the 2006 Official Rulebook in PDF form here, but it contains no references to "camera" or "video" (other than specifying that the commissioner can review video evidence in his investigation of unfair acts). Regardless of whether there is a formal rule about this practice, some would say that it is a "dirty trick" and perhaps a violation of the standards of fair play and sportsmanship to which one expects NFL teams to conform their behavior. Others, however, disagree, arguing that sign-stealing is fine so long as there is no formal rule.

I want to mention two potential sports law implications of this dispute. Some coverage has suggested that the bad-actor Patriots might be punished by way of a loss of a draft pick. The NFL rules do give the Commissioner broad powers to sanction unfair acts, but only where those acts have a "major effect on the outcome of the game." Can it be said that sign-stealing has such an effect? In this particular game? Generally? If the Commissioner drops the hammer on the Patriots, we could see a legal challenge. At least in the context of other leagues, (hometown) courts have not always looked favorably on sanctions involving stripped draft picks. See [Braves] v. Kuhn, 432 F. Supp. 1213 (N.D. Ga. 1977).

The other thing that comes to mind is the parralel between sign-stealing and corporate espionage. Suppose that the Patriots and Jets weren't bound by league rules to have the commissioner resolve disputes amongst and between the teams, but could resort instead to courts of law. Have the Patriots run afoul of the Economic Espionage Act of 1996? Is a football sign (or, more precisely, the correlation between a particular sign and a play on the field) a "trade secret"? The statute contemplates a pretty broad understanding of "trade secret": any "business information," tangible or intangible, that has independent value by virtue of "not being generally known" and with respect to which the owner has "taken reasonable measures to keep such information secret." On the one hand, it might be hard to argue that a team which uses signs has a real expectation of privacy, since such signs are certainly regularly visible not just to other teams, but also to the public at large. On the other hand, so long as a coach attempts to "shield" his signs, wouldn't that amount to reasonable efforts aimed at secrecy?

I should add that the Act includes criminal penalties. Perhaps the U.S. Attorney for the District of New Jersey is interested?

-- Posted by Geoffrey Rapp @ 9/11/2007 04:36:00 PM -- Comments (26) -- Post a Comment

Monday, September 10, 2007

Against Instant Replay

I always have been opposed to instant replay. This, of course, puts me in a distinct minority (maybe even minority of one) among sports fans and commentators. And it certainly puts me against the flow of history, as replay is becoming a part, and an increasingly greater part, of most sports. The NFL has raised replay use to an art form and college football is following suit. The NBA recently announced increased use of replay to review fights and flagrant fouls. And it probably will be only a few years before it finds its way into Major League Baseball.

But I stand by my opposition to replay for a number of reasons. I do not like taking the human element out of the game--if we accept inevitable mistakes by players trying their best, why not also accept inevitable mistakes by officials trying their best? I do not like the way it breaks the flow of the game for the ref to spend 10 minutes staring at a TV. How many times do we now have to wait to celebrate a touchdown while officials try to re-figure whether it was, indeed, a touchdown. I do not like the way challenges, at least in football, can be used simply for strategic purposes, to get the equivalent of a long time out and a chance to rest players late in the game. I do not like the effect it has on game officials--at least in the NFL, many refs seem hesitant to make firm calls one way or another, knowing that they basically can guess, then rely on replay to have the final word. I fear the same thing will happen in basketball on, for example, buzzer-beating shots. I do not like the inherent inconsistency in determining which plays or calls should be subject to review and which should not.

Replay supporters (which is to say just about everyone) insist that any of these drawbacks are outweighed by the increased accuracy that replay provides. All the drawbacks are worth it because, by going to the videotape, we get the calls "right" because the video shows the "right" answer.

But do we? And does it? My current writing project is an essay on the Supreme Court's 2007 decision in Scott v. Harris, where the Court found that a video of a high-speed chase was such an omniscient, unquestionably accurate, and entirely objective (i.e., not dependent on any inferences, perception, or interpretation) depiction of events that the Court could ignore eyewitness testimony that differed from the video, because such testimony obviously was wrong, without the need to submit the case to a jury for factfinding.

In thinking through the question, I drifted to instant replay. Replay rests on similar assumptions about the objectivity and accuracy of what Professor Jessica Silbey of Suffolk Law School calls "filmic evidence." The video replay will reveal the "truth" to the referee, showing, plainly and objectively, what happened on the play--he controlled the pass or not, his knee was down or not. No interpretation or inference is required, no perspective or perception comes into play. The ref can play a clip multiple times, slow it down, even look at it frame by frame; in doing so, the ref will be able to see the unvarnished "truth" about the play.

The problem is that assumption probably is wrong. A video depiction of an event neither is the event itself nor speaks for itself about the event. It still requires an act of mental and sensory interpretation from the viewer (here, the replay official). Two people could view the same video and reach different conclusions in many cases, just as two people could view the same play live and reach different conclusions. Being able to slow down and speed up the video provides a different perspective, although it does not necessarily mean that this different perspective is "right." It means only that it provides a different narrative, and thus a different interpretation, of the events depicted. Silbey argues this is what happened during the state prosecution of the LAPD officers who beat up Rodney King in 1991. Defense attorneys slowed the video to frame-by-frame inspection in presenting it to the jury, which allowed for a very different narrative of the events depicted as to what was taking place on the video, who was the aggressor in the altercation, and what anyone's intent was. This was one key to the officers' acquittal. But that tells us nothing about which narrative is objectively correct.

It is worth noting that NBA refs will be doing something similar in using video to review flagrant calls--slowing the tape down and rewatching to figure out exactly where Player A hit Player B and when and what A's intent may have been. But the repeated viewing simply allows the reviewing ref to construct a narrative based on his perception of the tape.

This is not to say that a video never is accurate or that repeated viewing at different speeds will not provide a more accurate conclusion than a one-time look at the play in real time. It is to say that any increased accuracy does not derive from the fact that we are using video and video inevitably reveals the most accurate answer. It derives instead from the same reason that having an appeals process increases (or is thought to increase) accuracy in the judicial system. Having additional people (new "eyes") consider an issue, especially by spending more time with it (think about the time appellate courts have to analyze and decide issues compared with how long trial courts have), increases the likelihood that we will reach the best or most correct result.

But if replay functionally is an appeal, then the possibility of increased accuracy may not alone be sufficient to justify it. Within the judicial process, for example, accuracy is not the sole value; other policy concerns often outweigh accuracy in dictating the rules for appellate practice. This explains the "Final Judgment Rule" in federal court, under which only final decisions by a trial court are subject to immediate appeal, with certain limited exceptions. Go here for a good discussion of the ins-and-outs of appellate jurisdiction. Whatever increase in accuracy may come with appellate review, systemic preferences against piecemeal review of every discrete decision that the trial court makes and in favor of cases moving forward at the trial level expeditiously and without delay lead us to create a system in which most decisions are not subject to appellate review, at least not immediately. Accuracy becomes secondary to other values, at least when the accuracy benefits are relatively slight.

Similarly, whatever increase in accuracy comes from having another set of eyes looking at a play may be outweighed by the harms such review imposes in terms of delay, loss of flow in the game, risk of challenges to increasing numbers and types of plays, quality of on-field officiating, etc. That ultimately is a judgment call that turns on how one weighs competing values. I weigh them in favor of keeping the game fresh, moving, and human; others may disagree.

My point is that we should have the debate about replay without the assumption that the availability of video review necessarily will increase accuracy simply because it is a video and not the human interpretation of live events that lead to the original call.

-- Posted by Howard Wasserman @ 9/10/2007 12:10:00 AM -- Comments (27) -- Post a Comment

Sunday, September 09, 2007

Sunday Notes

Some thoughts following the New England Patriots demolition of the New York Jets in the Meadowlands (and if Randy Moss--9 catches, 183 yards, 1 touchdown--keeps it up and stays healthy, the Patriots trade for him may go down as the most lopsided trade in NFL history: a 4th round pick for perhaps the best wide receiver in the game):

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Town Hall columnist Jackie Gingrich Cushman, who is writing a book on childhood and faith with her father, former U.S. Speaker of the House Newt Gingrich, examines the possible lessons that children can take from Michael Vick's legal troubles. She interviewed me for her column, and asked me how Vick may be able to find redemption, both for himself and for the public. In her column, she notes how University of Hawaii quarterback Colt Brennan has recovered from a troubled past (convicted on second-degree burglary and first-degree criminal trespass) to become a Heisman Trophy candidate this year. As I told Jackie, I agree with her that Vick can still come back:

"If he serves his time without incident, avoids other controversy, and commits to using his football fame for good (such as pledging to donate a meaningful portion of any future football-related income to animal abuse shelters), he would seem to be on the right road to redemption, not only in the eyes of Commissioner Goodell, but also of many Americans." McCann added, "And while we will never forget his role in unspeakably horrific dog abuse, we also, I suspect, recognize that we all make errors and that we can all change and become better persons."

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Marc Edelman, who recently guest blogged here and who runs SportsJudge.com (a fantasy football dispute resolution service which I wrote about here), has just started a companion blog for SportsJudge.com, SportsJudge Blog. According to Marc, "SportsJudge Blog serves to provide cutting-edge fantasy-sports advice from our team of experts in the fields of law, finance, mathematics, medicine, and psychology. The underlying purpose of this blog is to apply specialized academic skills into the realm of fantasy-sports analysis. It is my belief that articles of this variety will prove far more useful to fantasy sports contestants than those available through mainstream media." We look forward to reading SportsJudge Blog and to Marc guest blogging again next month.

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Ryan Rodenberg, another guest blogger who recently served as associate general counsel of Octagon, has just started in the Sports Management Ph.D. program at Indiana University in Bloomington, Indiana. In addition to pursuing his Ph.D., he is also teaching there and is currently teaching a sports law course for grad students. He has started a blog in conjunction with that course, Sports Law Professor Blog. Congratulations to Ryan on his new position at Indiana and good luck to him in his pursuit of a Ph.D. There aren't too many attorneys with Ph.Ds, and several years from now Ryan will be joining a very distinguished group.

-- Posted by Michael McCann @ 9/09/2007 07:46:00 PM -- Comments (5) -- Post a Comment