Sports Law Roundup – 12/22/2017

aslr - xmas

Here are the top sports-related legal stories from the past week:

  • Gymnast abuse: Earlier this month, a judge declared that a doctor with ties to USA Gymnastics, the national governing body for gymnastics in the United States; Michigan State University; and a gym in the Lansing area, who was facing multiple civil and criminal accusations of improper sexual conduct in connection with his alleged sexual abuse of young female athletes was “a danger to children” and sentenced him to sixty years in prison. Now, one of his most prominent victims, U.S. gold-medalists McKayla Maroney, has sued USA Gymnastics, which, she alleges, tried to stop her from publicly accusing the doctor of abuse. According to Maroney’s complaint, the situation arises out of a prior $1.25 million settlement agreement Maroney reached with USA Gymnastics that contained mutual non-disclosure provisions. Maroney’s current attorney says that while Maroney willingly agreed to that settlement, she did so at a time when she was suffering from emotional trauma and needed the money for “lifesaving psychological treatment and care.” USA Gymnastics says that the parties included the confidentiality provision in the settlement agreement at the insistence of Maroney’s then-attorney, Gloria Allred. Maroney’s complaint also names Michigan State University, the U.S. Olympic Committee, and the doctor as defendants. The doctor still is awaiting sentencing on ten state-law counts of first-degree criminal sexual conduct.
  • Baseball injury: Dustin Fowler, currently an outfielder for the Oakland A’s, filed a negligence action against the Chicago White Sox and Illinois Sports Facilities Authority, which owns and operates Guaranteed Rate Field, because of an injury he suffered when, as a member of the New York Yankees, he ran into an unpadded electrical box in the right-field foul territory of Guaranteed Rate Field during a game last summer. Fowler damaged his knee in the collision, causing his rookie season to end before his first plate appearance, and he ultimately required surgery. Fowler claims that the defendants should have done more to secure the box or protect players from running into it.
  • Sleeve suit: A tattoo artist, whose clients include LeBron James, Kyrie Irving, Tristan Thompson, and Danny Green, is suing the makers of the NBA2K17 video game because, he says, the game’s graphics are so realistic and detailed they include replications of his work, over which he claims copyrights, and he alleges he is entitled to compensation for their use in the game. It’s unclear whether the artist (somewhat confusingly named James Hayden) has sought to protect these rights in other circumstances, such as game broadcasts or television commercials, featuring his clients. This isn’t the first lawsuit against the makers of the NBA2K series of games, however. A different owner of copyrights on NBA player tattoos sued over prior editions of the game and lost because it had not registered those copyrights with the U.S. Patent and Trademark Office. It isn’t clear whether Hayden has registered his trademarks.
  • Super Bowl ticket shortage: A federal appeals court will allow a proposed class action to proceed against the NFL based on allegations that the league’s ticket lottery program for Super Bowl XLVIII, which was played at MetLife Stadium in East Rutherford, New Jersey, only released a fraction of the available tickets to the public. The legal basis of the suit is a New Jersey consumer protection statute that requires the public sale of at least 95% of the tickets for events hosted in the state. The named plaintiff’s claim relies in significant part on an expert economic opinion that the plaintiff paid more for tickets he bought on the secondary market than he would have had the league not withheld more than five percent of the game tickets from the primary public market in violation of the New Jersey law. The federal court now has certified the question of whether the state law applies to the NFL’s actions to the Supreme Court of New Jersey.
  • Hockey island: The State of New York’s economic development agency, Empire State Development, has selected a $1 billion bid by a joint venture directed in part by New York Mets owner Fred Wilpon to develop an entertainment complex that will be the new home of the New York Islanders. The move is significant in that the site, which is part of the Belmont Park racetrack property, is located on Long Island, the place the team called home for all but the last three years, when the franchise left Nassau Coliseum for the Barclays Center in Brooklyn (which, as a geological matter, is part of Long Island but whatever).
  • Music City soccer: On Wednesday, MLS announced that it would award an expansion franchise to Nashville, where the new team is expected to play in a new arena to be built at the city’s fairgrounds. The day before, a local judge had dismissed a lawsuit by opponents of the stadium’s construction because she concluded the plaintiffs lacked standing to challenge the project and determined that the stadium would not impair existing fairground activities, including the state fair.
  • RICO soccer: On Friday in a New York federal court, a jury convicted the former leaders of the Brazilian and Paraguayan soccer associations on racketeering conspiracy charges related to millions of dollars in bribes received in exchange for marketing rights. The jury is continuing to deliberate over similar charges against the former head of the Peruvian soccer association. The maximum sentence for each charge is twenty years in prison.
  • Thursdays are for the lawsuits: On Thursday, Barstool Sports served the NFL with a notice to cease and desist the marketing and sale of a line of apparel the website contends were “made with the intent to trade off of the goodwill associated with” a Barstool-owned trademark, “Saturdays are for the Boys.” (Interestingly, Barstool did not create “Saturdays are for the Boys,” though it did popularize, market, and register as a trademark the phrase one of its writers overheard at a bar.) The allegedly offending products are shirts the NFL is selling with the phrase “Sundays are for” followed by one of its team names or nicknames. The one shown in the cease-and-desist letter is the Dallas t-shirt, which reads “Sundays are for the Boys.” The NFL had pulled that shirt from its online store prior to the sending of the letter, but the others remain available.

Sports court is in recess.

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“The passion I have for this game I can’t hide.” – Legendary sports broadcaster Dick Enberg, 1935-2017

dick enberg baseball

Legendary sports broadcaster Dick Enberg died yesterday at the age of eighty-two. The Michigan native grew up dreaming of playing right field for the Detroit Tigers, a job, he always acknowledged, went to his contemporary Al Kaline. Many people have been sharing many special memories of Enberg, who broadcast baseball, tennis, and nearly every other sport in a career that spanned five decades and earned him many awards and accolades. In addition, Enberg may be the most prominent graduate of Central Michigan University, although Jeff Daniels may give him a run for his money. An off-the-cuff ranking of the most famous Chips:

  1. Jeff Daniels
  2. Dick Enberg
  3. Clark Howard
  4. Dan Majerle
  5. Tom Crean
  6. Chris Kaman
  7. Dan LeFevour
  8. Alveda King
  9. Ray Bentley

(Opening up the list to non-graduating attendees would add Antonio Brown and J. J. Watt.)

Baseball Notes: Current Issues Roundup

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Rather than my own attempt at fashioning a nugget of faux-wisdom, the purpose of this Baseball Notes post is to highlight a number of articles posted elsewhere addressing current offseason issues in the sport.

On the hot stove‘s slow burn:

An underappreciated element of the utter sameness that permeates baseball today is the number of executives who came through the commissioner’s office at Major League Baseball either as an intern or early in their careers. Jobs there aren’t just pipelines to teams. They are breeding grounds for the proliferation of commissioner Rob Manfred’s doctrine, honed during two decades as the sport’s chief labor negotiator.

How does it work? Consider the case of Tommy Hunter, the relief pitcher, who late last winter was holding out for a major league contract. On the same day, according to two sources, at least two teams called Hunter offering the exact same deal – an occurrence that in the past might have screamed of collusion. In this case, the sources said, it was likelier a reflection of how teams value players so similarly.

It’s not just the algorithms with minuscule differences that spit out the same numbers. It’s a recognition of how to manipulate the new collective-bargaining agreement. “Clubs are maneuvering to take advantage of the significant salary depressors in the CBA,” one agent said. An example: One large-revenue team telling agents that his team is wary of getting anywhere close to the luxury-tax threshold, lest it be penalized for exceeding it.

“Of course that’s what we’re saying,” the GM said. “We’d be stupid not to.”

On Julio Teheran and what happens when player-value metrics tell different stories:

At Baseball-Reference, Julio Teheran was much worse in 2017. He allowed heaps more runs than he had in 2016. It’s more complicated than that — a ton of work has gone into the calibration — but at a basic level this is what we’re talking about. By bWAR, based on runs allowed adjusted for things like ballpark and the quality of his defense, Teheran was worth 1.6 wins in 2017, close to league average.
. . .
At FanGraphs, Julio Teheran was much worse in 2017, worse even than he was at Baseball-Reference. His strikeout rate went down, his walk rate went up, and he allowed way more home runs. It’s more complicated than that, but at a basic level it’s not much more complicated than that. By fWAR, which is based on a stat (FIP) calculated with those three factors alone, Teheran was worth 1.1 wins. He pitched considerably worse than a league-average starter.
. . .
But now it gets complicated, because at Baseball Prospectus Teheran’s WARP was 3.8, identical to his 3.8 WARP in 2016. He ranked 24th in baseball, ahead of Alex Wood, James Paxton and Robbie Ray. We’ve found a story that says Teheran was actually good.
. . .
Which takes us to a third level of storytelling, observing not just what happened or what should have happened but what should have should have happened.

In WARP’s telling, Teheran walked more batters than he did in 2016, but he pitched like somebody who should have walked fewer than he did. He allowed far more home runs than he did in 2016, but he pitched like somebody who should have allowed fewer. Specifically, given his pitch types and pitch locations, he should have beat batters who actually beat him.
. . .
There are those who complain there are multiple WAR models telling us different things about players. Stats are supposed to resolve uncertainty, we figure, not exacerbate it. But these are complicated questions. The worst thing a stat could do it mislead us about how simple baseball is, or about how much we know. It’s not simple. We don’t know all that much.

On the weekend’s big throwback trade between the Dodgers and Braves:

With five players involved, [Matt Kemp, Adrian Gonzalez, Scott Kazmir, Brandon McCarthy, and Charlie Culberson,] this is a big trade for two teams to make. But then, if we’re going to be realistic, this isn’t about the players at all. This is a swap of money, or, more accurately, this is a swap of debt. There is short-term debt, and there is shorter-term debt.
. . .
Gonzalez is already a free agent. The Braves designated him for assignment so fast that it was part of the initial press release. Kemp is unlikely to play a game for the Dodgers, since they’re already looking to flip him, if not drop him outright. Kazmir didn’t pitch in the majors this past season. McCarthy did, but he threw just 92.2 innings. Culberson batted all of 15 times before making the playoff roster because Corey Seager was hurt. All of these players combined for a 2017 WAR of +0.7. It was all thanks to McCarthy, and his 16 adequate starts.
. . .
[H]ere’s how this works. Gonzalez’s 2018 salary belongs to the Braves now. Then his contract is up. The same is true for McCarthy, and the same is true for Kazmir. Culberson does come with some years of team control. The Dodgers are also sending the Braves $4.5 million. And Kemp’s 2018 salary now belongs to the Dodgers. So does Kemp’s 2019 salary. In each year, he’s due $21.5 million.
. . .
[T]his exchange is more or less cash-neutral. That is, neither the Braves nor the Dodgers are taking on the greater obligation. But the Dodgers are spreading it over the next two years, reducing their 2018 payroll figure. The Braves will face the greater short-term burden, and then, come 2019, there will be sweet, sweet freedom. The Braves ditch a future obligation, giving them more financial flexibility a year from now. The Dodgers assume a future obligation, but they, too, will get more financial flexibility a year from now, and beyond, because they likely won’t have to pay the most severe competitive-balance taxes. All they’re worried about is getting the overage penalties to reset. . . . Next offseason, Bryce Harper, for example, is expected to be a free agent. Manny Machado is expected to be a free agent. All sorts of good players are expected to be free agents, and, significantly, Clayton Kershaw could opt out. The Dodgers are presumably planning to spend big, so resetting the overage penalties now could and should eventually save them eight figures. All it requires is one year of dipping down.

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Previously
Baseball Notes: Baseball’s growth spurt, visualized
Baseball Notes: The WAR on Robbie Ray
Baseball Notes: Save Tonight
Baseball Notes: Current Issues Roundup
Baseball Notes: The In-Game Half Lives of Professional Pitchers
Baseball Notes: Rule Interpretation Unintentionally Shifts Power to Outfielders?
Baseball Notes: Lineup Protection
Baseball Notes: The Crux of the Statistical Biscuit
Baseball Notes: Looking Out for Number One
Baseball Notes: Preview

Addressing the sports consequences of the Disney-Fox deal

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As highlighted in this week’s Sports Law Roundup, Disney and Fox are entering into a doozy of a media deal that involves everything from movies to television shows to streaming platforms to sports programming. This transaction has Star Wars components, Hulu components, and Simpsons components that, rightfully, are making headlines. It would not be surprising, however, if some of the most visible changes for viewers that result from this asset purchase, for which approval by various supervisory entities remains pending, come for consumers of sports media.

In an article out today, Will Leitch sheds some light on how this sale may affect the sports-media landscape:   Continue reading

Sports Law Roundup – 12/15/2017

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Here are the top sports-related legal stories from the past week:

  • Louisville basketball: The fallout from the FBI’s announced investigation of Adidas-sponsored men’s college basketball programs resulted in the termination of Rick Pitino’s  position as the head coach of Louisville’s team. That, in turn, spawned Pitino lawsuits against Louisville for wrongful termination and Adidas for intentional infliction of emotional distress. Louisville now has sued Pitino for breach of contract and negligence and seeks monetary from Pitino arising out of the school’s losses due to vacated wins, potentially including its 2013 national title, and other NCAA sanctions, lost donations, and other financial losses. Louisville’s complaint alleges Pitino admitted liability when he said in a post-termination interview that he knew about NCAA violations but did not report them and took “full responsibility” for his decisions to hire assistants who subsequently engaged in wrongful activity.
  • Television transfer: An announced transaction between 20th Century Fox and Disney involving the latter’s acquisition of more than $50 billion (exclusive of debt) of the former’s assets has potentially significant consequences for the entities’ sports properties. Included among the assets Disney (which already owns ESPN and ABC) is acquiring are all of the Fox Sports Regional Networks (e.g., Fox Sports Detroit, Fox Sports South, etc.) and the YES Network. Disney also is acquiring other substantial assets, including FX Network, Fox’s interest in Hulu, and all of Fox’s film and television studios, which would include the rights to film properties like “The Simpsons,” “Modern Family,” “Avatar” (for which one source reports there are four sequels in the works), “Deadpool,” and “X-Men.” In exchange, Fox shareholders will receive shares of Disney stock. In addition, a spinoff entity will take control of Fox’s primary national networks, including FOX, Fox News, Fox Business, FS1, FS2, and the Big Ten Network. The deal still requires approval from both existing entities’ boards of directors and shareholders, as well as government regulators.
  • Baylor sexual assaults: The flow of evidence of Baylor‘s apparently widespread sexual assault problems seems unlikely to abate anytime soon now that a judge is permitting discovery of sexual assault reports from students who are not parties to pending litigation involving the school, as well as records of third-party Code of Conduct violations limited to violations related to “sex” and is ordering Baylor to produce documents previously provided to independent auditors, those being “32,000 nonparty student records, and hundreds of thousands of additional documents, without regard to” relevance or federal privacy restrictions.
  • Gambler defamation: In June, an alleged “gambling guru” known as RJ Bell (real name: Randall James Busack) sued Deadspin (and its post-Gawker-bankruptcy owner, Gizmodo Media Group, LLC) and freelance writer Ryan Goldberg over an article Goldberg wrote and Deadspin published that was critical of Busack and which Busack alleges was libelous. On Tuesday, a New York bankruptcy judge announced that trial in the case will begin on Valentine’s Day 2018. An important legal question in the case is whether a provision in an order of the bankruptcy court overseeing the Gawker Media bankruptcy intended to operate as a release of third-party claims against Gawker Media writers applies to bar Busack’s claims against Goldberg, which is the position Goldberg takes. Busack contends that the release doesn’t apply to him because he didn’t sue Gawker during the bankruptcy and received no distribution from the Gawker bankruptcy estate. Gawker Media entered bankruptcy as a result of a prior lawsuit Hulk Hogan (real name: Terry Bollea) brought. The attorney who represented Bollea in that case also represents Busack in this case. On Wednesday, the judge, who previously indicated he found the release issue ambiguous, ruled that the release did, in fact, bar most of Busack’s claims.
  • Garbler defamation: Lou Holtz, former head football coach at Notre Dame and South Carolina and former football “analyst” for ESPN, has sued The Daily Beast and one of its writers, Betsy Woodruff, for defamation. Holtz claims that Woodruff’s article about Holtz’s comments during the 2016 Republican National Convention, in which she reported he said immigrants were “deadbeats” and “invading the U.S.,” contained information known to be false and caused Holtz to lose future speaking opportunities.
  • NFL Network sexual harassment: A former NFL Network employee has sued NFL Enterprises, LP (apparently the Los-Angeles-based television and broadcast arm of the NFL), Jessica Lee (allegedly a supervisor at NFL Network whose LinkedIn page describes her as the Network’s director of studio operations), and fifty unnamed defendants. The plaintiff’s lawsuit nominally is one for wrongful termination, but its most newsworthy allegations involve claims of sexual harassment, assault, and battery by other NFL Network employees, including former players Marshall Faulk, Donovan McNabb, Warren Sapp, Ike Taylor, Heath Evans, and Eric Davis and former executive Eric Weinberger, who now works as the president of Bill Simmons Media Group, which owns The Ringer.

Sports court is in recess.

Waive that flag: Close to the edge/Not right away (NFL 2017 week fourteen penalty update)

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In a time-honored sporting tradition, what started out as a historic trend soon may become merely notable. While NFL officials, through week fourteen, have thrown their penalty flags at a rate that would constitute an all-time* high, that rate has been falling as the season has worn on.

nfl penalty flag data 12-14-17

My note from last week still applies: 2017 now looks quite close to the prior peaks in 2015 and 2014. If things continue as they have this season, 2017 still will be the high-water mark for penalty flags in the NFL, but the week-to-week trend strongly suggests that that is not a reasonable assumption. That trend also lends some support to the idea that abbreviated preseason training leads to worse play early in the regular season.

* The NFL Penalty Tracker has data going back to the 2009 season, but I’m pretty confident that we still are witnessing the all-time high-water mark.

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Previously
Falling into a deep swell? (NFL week thirteen penalty update)
Good news but bad news (NFL week ten penalty update)
Stability of a kind (NFL week nine penalty update)
People are noticing (NFL 2017 week eight penalty update)
Is this still a thing? (NFL 2017 week seven penalty update)

Alberto’s favorite things (NFL 2017 week three penalty update)
NFL week two penalty update (2017)

The NFL returns with zebras on parade

Sports Law Roundup – 12/8/2017

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Here are the top sports-related legal stories from the past week:

  • Olympic doping: The International Olympic Committee has banned Russia from the upcoming Olympic Games in South Korea due to “systemic manipulation of the anti-doping rules and system,” although it will allow individual Russian athletes who prove they aren’t doping to compete under the Olympic flag and wearing uniforms indicating they are “Olympic Athlete[s] from Russia.” Additionally, twenty-two Russian winter Olympic athletes banned for life following doping violations during the 2014 Winter Olympics have applied to the Court of Arbitration for Sport to reinstate them. The upcoming winter games begin in February.
  • Gymnast abuse: In February, the Michigan Attorney General charged a doctor with ties to USA Gymnastics, the national governing body for gymnastics in the United States; Michigan State University; and a gym in the Lansing area, who already was facing multiple civil and criminal accusations of improper sexual conduct, with twenty-two additional criminal counts in connection with his alleged sexual abuse of young female athletes. USA Gymnastics and Michigan State terminated their relationships with the doctor following the earlier accusations. Some of the charges added in February involved victims who were younger than thirteen at the times of the alleged acts, and all of the charges are felonies that carry a maximum sentence of life imprisonment. On Thursday, following guilty pleas on three federal charges, a federal trial judge in Grand Rapids declared the doctor “a danger to children” and sentenced the fifty-four year old to sixty years in prison, the maximum allowable sentence. In determining her sentence, the judge considered statements from victims, including U.S. gold-medalists McKayla Maroney and Aly Raisman. The doctor still is awaiting sentencing on ten state-law counts of first-degree criminal sexual conduct.
  • Charity fraud: Former NBA player Kermit Washington pled guilty to multiple criminal counts of making false statements on income tax returns and a single count of aggravated identity theft in connection with charges that he used charitable donations intended for a medical clinic in Africa for personal expenses. Washington allegedly induced donors, including professional athletes, to contribute to the clinic but spent the money on vacations and jewelry. In 1973, the Los Angeles Lakers drafted Washington fifth overall out of American University, the beginning of a ten-season NBA career in which he also played for the Trailblazers, Clippers, Celtics, and Warriors.

Sports court is in recess.

Waive that flag: Falling into a deep swell? (NFL 2017 week thirteen penalty update)

Something that I had expected might be occurring now seems from the updated numbers like it might, in fact, be occurring, which is that my imperfect flag-rate metric is both (a) continuing to fall and (b) now close to falling out of historic* range. Come look for yourself:

nfl penalty flag data 12-5-17

As a season, 2017 now looks quite close to the prior peaks in 2015 and 2014. If things continue as they have this season, 2017 still will be the high-water mark for penalty flags in the NFL, but the week-to-week trend strongly suggests that that is not a reasonable assumption. That trend also lends some support to the idea that abbreviated preseason training leads to worse play early in the regular season.

Obviously it would be interesting to track flag rates for each of these seasons on a chronological weekly basis. A project for the offseason, perhaps. Meanwhile, since the terrible Giants have been in the news recently, an interesting note that only one team (Carolina) has been flagged fewer times than the 2-10 G-Men.

* The NFL Penalty Tracker has data going back to the 2009 season, but I’m pretty confident that we are witnessing the all-time high-water mark.

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Previously
Good news but bad news (NFL week ten penalty update)
Stability of a kind (NFL week nine penalty update)
People are noticing (NFL 2017 week eight penalty update)
Is this still a thing? (NFL 2017 week seven penalty update)

Alberto’s favorite things (NFL 2017 week three penalty update)
NFL week two penalty update (2017)

The NFL returns with zebras on parade

Sports Law Roundup – 12/1/2017

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Here are the top sports-related legal stories from the past week:

  • Streaming data: The U.S. Court of Appeals for the Ninth Circuit has ruled that ESPN may share an individual’s streaming device identification number and record of videos watched without violating the federal Video Privacy Protection Act because that information does not constitute “personally identifiable information” under that act. The First Circuit previously had ruled that such information could be personally identifiable information, especially where combined with geolocation data, but that now is regarded as the minority position.
  • Bird death: A Massachusetts appellate court affirmed a trial court’s grant of summary judgment in favor of a truck manufacturer and the owner of automotive-related equipment in a wrongful-death case brought by the widow of Mark Fidrych. Fidrych died in 2009 of accidental asphyxiation when his clothing became entangled in the equipment while he was working underneath his truck. The court agreed that the equipment was dangerous and could have been designed in a safer fashion, but, because those designs were not defective and the risk that led to Fidrych’s death “arose out of the addition of other components and the decisions made, and actions taken, by downstream actors, the defendants had no duty to warn of those dangers.”

Sports court is in recess.

Waive that flag: Good news but bad news (NFL 2017 week ten penalty update)

nfl referee pleading for camera time

The good news on the NFL-watchability front is that the penalty-flag rate is decreasing as the season wears on. The bad news remains that NFL referees still are throwing their flags with historically high frequency.*

nfl penalty flag data 11-16-17

Incorporating last week’s numbers shows that we’re settling into that 9.2 range. With seven weeks of games remaining, there’s plenty of time for the rate to continue to fall, so it remains possible that 2017 will end up closer to historical norms. Without examining week-to-week data from past seasons, I don’t have a sense of whether that’s likely to occur (e.g., if it’s common for officials to call fewer penalties as seasons develop).

* The NFL Penalty Tracker has data going back to the 2009 season, but I’m pretty confident that we are witnessing the all-time high-water mark.

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Previously
Stability of a kind (NFL week nine penalty update)
People are noticing (NFL 2017 week eight penalty update)
Is this still a thing? (NFL 2017 week seven penalty update)

Alberto’s favorite things (NFL 2017 week three penalty update)
NFL week two penalty update (2017)

The NFL returns with zebras on parade