Sports Law Roundup – 12/16/2016

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I used to write the sports technology roundup at TechGraphs, an internet website that died, and now I am writing the sports law roundup at ALDLAND, an internet website.

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

  • NBA CBA: Like baseball, the NBA has a new collective-bargaining agreement. Full details are not yet public, but it appears there will be salary cap and luxury tax changes, as well as an increase– from thirteen to fourteen– in the number of guaranteed roster spots for each team. The league also has agreed to shorten the preseason and expand the calendar length of the regular season without increasing the number of regular season games. One aspect that will not change is the manner in which the players and owners divide basketball-related income. The players conceded roughly seven percent (approximately from 57% to 50%) during the last lockout in 2011.
  • NFL concussion settlement: Earlier this year, the NFL settled a class-action lawsuit brought by former players seeking compensation for ongoing problems related to head injuries suffered during their professional football careers by agreeing to provide a fund to compensate former players for the next sixty-five years. The U.S. Court of Appeals for the Third Circuit affirmed the settlement, but a small subset of the class members– approximately thirty of 22,000– were dissatisfied with the settlement, believing it was underinclusive because it did not provide relief for former players who develop CTE, the disease found in people who suffer from repeated brain trauma that, at this time, is not detectable while the player is alive. Seeking further review of the settlement, these plaintiffs petitioned the Supreme Court. On Monday, the Court declined to grant their petition, leaving in place the Third Circuit’s ruling. It is unclear whether these objecting plaintiffs have any further recourse, though they likely are watching the new lawsuit highlighted in this space last month that specifically addresses CTE.
  • Student-athlete classification: As discussed here last week, the United States Court of Appeals for the Seventh Circuit rejected claims by a group of former Penn student-athletes that they are employees entitled to minimum-wage compensation under the Fair Labor Standards Act. Now, those students plan to request en banc review, meaning that they will ask the full panel of Seventh Circuit judges to reconsider the decision. (Federal circuit courts typically hear cases in three-judge panels, even though more than three judges make up each of the federal circuit courts. Aside from an appeal to the Supreme Court, which may not even be accepted, the only way to reverse a circuit court ruling is to ask the full court to do so.) The plaintiffs contend that the amateur aspect of collegiate athletics the ruling noted is not pertinent to an FLSA analysis, and that the Seventh Circuit’s decision “conflicts with decisions in this and other circuits on employee status.”
  • Raiders stadium: In an apparent attempt to keep the Raiders from moving to Los Angeles or Las Vegas, the Alameda County Board of Supervisors voted to support the building of a new football stadium in Oakland that– unlike the new basketball arena being built for the NBA’s Warriors that will relocate them from Oakland to San Francisco–  would be funded, in significant part, with public money. The Board’s vote does not guarantee that the Raiders will stay in Oakland.
  • Rams fans: St. Louis-area holders of Rams personal seat licenses suing the team after its move to Los Angeles now have requested class-action status. The plaintiffs are seeking a variety of forms of relief, including reimbursement for tickets and concessions. A judge already has ruled that some of the plaintiffs who want the team to continue to honor the licenses by allowing the St. Louis fans to purchase season tickets at the team’s new home in L.A. are entitled to do so.
  • NFL broadcasting: The plaintiffs in an antitrust lawsuit targeting NFL Sunday Ticket, the product of the exclusive agreement between the NFL and DirecTV for the television broadcasting of out-of-market NFL games, won an apparently significant victory when Fox and CBS agreed to produce documents evidencing their own Sunday-Ticket-related agreements with the league and DirecTV in connection with a judge’s discovery order. The NFL contends that the plaintiffs have failed to allege an antitrust violation because the NFL can decide how to broadcast its games, and the Sunday Ticket package represents an addition to viewers’ existing options (i.e., the one or two games available each Sunday afternoon on Fox and CBS, plus the national Thursday/Sunday night/Monday night broadcasts) rather than a restriction.
  • Secondary ticket market: The President has signed the BOTS Act, a bill that expands the authority of the Federal Trade Commission to regulate the online secondary market for event tickets. The new law seeks to prohibit “ticket bots and other online tools that deliberately circumvent security protocols limiting or restricting online ticket purchases.” Here’s hoping this law will provide a more meaningful benefit to sports fans than the NFL’s practically meaningless agreement to end its league-wide imposition of a price floor on game tickets sold on the secondary market.
  • Formula One acquisition: Liberty Media, the company that owns the Atlanta Braves, will acquire auto-racing series Formula One for $4.4 billion. According to a reputable source, F1 cars are the fastest in the world among road-course racing cars.
  • MLB CBA: I wrote about the new CBA in this space after the league and players union reached their agreement on November 30. Now we have more information about the particularities of the agreement, and this analysis provides a helpful overview. We also learned that the Tampa Bay Rays were the only team to vote against approving the agreement. In a public statement, the Rays’ general managing partner made reference to an “opportunity [that] was missed” to “address the extraordinary and widening competitive gap that exists on-field between higher and lower revenue clubs.”

Sports court is in recess.

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Sports Law Roundup – 12/9/2016

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I used to write the sports technology roundup at TechGraphs, an internet website that died, and now I am writing the sports law roundup at ALDLAND, an internet website.

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

  • College football defamation: On Thursday, former Baylor head football coach Art Briles sued three Baylor regents and the university’s senior vice president and CEO claiming that they defamed him by stating that he had knowledge of sex crimes reportedly committed by his players and failed to provide that information to proper authorities. In addition, Briles alleges that the officials sought to prevent him from securing another coaching position elsewhere. He also included a claim for intentional infliction of emotional distress, and, in total, seeks unspecified damages in excess of $1,000,000. Here is a picture of Briles’ longtime attorney, Ernest H. Cannon, riding a horse at a rodeo.
  • Football player suspension challenges: In related stories covered in this space last week, two NFL players represented by the same Ohio law firm launched collateral attacks on the NFL/NFLPA collective bargaining agreement targeting alleged procedural deficiencies in the suspension-appeal process after both were suspended for drug violations. The NFL and NFLPA now have taken action in one of those cases by appointing a third arbitrator to hear a rescheduled appeal by Green Bay Packer Mike Pennel. The absence of a third arbitrator is central to the claims Pennel raised in the lawsuit he filed in Ohio federal court. In connection with that suit, Pennel also sought a temporary restraining order, which the responsive actions by the league and union were designed to moot. On Tuesday, Pennel agreed to drop his lawsuit in exchange for a reduction– from ten games to four– in his suspension, which will allow him to play in the postseason should his Packers secure a playoff berth. (Pennel’s attorneys also represent Philadelphia Eagle Lane Johnson, who filed similar complaints with the National Labor Relations Board and U.S. Department of Labor around the same time Pennel filed his lawsuit.)
  • Student-athlete classification: The United States Court of Appeals for the Seventh Circuit rejected claims by a group of former Penn student-athletes that they are employees entitled to minimum-wage compensation under the Fair Labor Standards Act. The trial court granted a motion to dismiss the defendants– the NCAA, Penn, and more than 120 other NCAA member schools– filed, and the appellate court affirmed. The court agreed that dismissal as to the non-Penn defendants was appropriate because of a lack of standing; the plaintiffs had attended only Penn and had no basis to recover wages from any school they didn’t attend. The court also agreed that dismissal was appropriate as to Penn, because the plaintiffs had failed to state a claim for relief from Penn. Noting the “revered tradition of amateurism in college sports” and the weight of judicial and regulatory precedent holding that student-athletes are not employees, the court concluded that the FLSA does not apply to student-athletes. While many disagree with this outcome, it is consistent with the original meaning and purpose behind the “student-athlete” designation. (In a concurring opinion, Judge Hamilton cautioned against broad application of the court’s decision, noting that the plaintiffs participated in a non-revenue sport– track and field– for a school that does not offer athletic scholarships, and suggested that he might have voted differently had the plaintiffs been student-athletes on athletic scholarship in a revenue sport.)
  • Hockey head injuries: A group of former NHL players suing the league for its alleged failure to warn them of known risks of head trauma now have requested class certification in that case for two classes of former players based on the different measures of relief sought: damages for those already diagnosed with neurological injuries and medical monitoring for others. Attorneys from a number of large law firms, including Skadden Arps Slate Meagher & Flom, are representing the NHL in this case. Skadden is the anchor tenant in a new commercial real estate development in Manhattan that also will be home to the NHL’s offices when it opens in 2019.
  • Minor League Baseball lobbying: MiLB has created a political action committee in order to boost lobbying efforts. The impetus for this move likely is the class-action lawsuit minor-league players filed alleging that their compensation violates federal wage and hour laws and the leagues’ attempt to snuff out that suit by way of congressional action. The proposed Save America’s Pastime Act would create a carve-out in the Fair Labor Standards Act exempting minor-league players from minimum-wage and overtime protections. There has been essentially no action on the bill since Rep. Brett Guthrie of Kentucky introduced it in June, leaving plenty of time for MLB to say dumb things about it.
  • Soccer ban: The Court of Arbitration for Sport denied former FIFA president Sepp Blatter’s request to overturn his six-year ban from all national and international soccer-related activity and fine of 50,000 Swiss francs for his involvement with bribes and kickbacks during his leadership of FIFA.
  • Canadian Super Bowl commercials: There is a thing in Congress called the House Northern Border Caucus, and four of its members, representing districts in North Dakota, New York, and Washington, sent a letter asking the Canadian government to reverse its decision to block Canadian advertisers from running commercials on the Canadian broadcast of the Super Bowl. Canadian broadcasters used to have an agreement with the NFL that allowed Canadian commercials on the Canadian broadcast of the game, but, in 2015, Canadian regulators changed course in response to viewer demands to see the popular American commercials that run during the game. Canadian broadcasters and advertisers and the NFL, which is losing out on Canadian advertising revenue as a result, all oppose that change. The company that holds the Canadian broadcast rights to the Super Bowl, Bell Media, also has sued the regulatory body in an attempt to reverse the policy.
  • Hockey logo: Things are off to a rough start for Las Vegas’ first major professional sports team after the U.S. Patent and Trademark Office denied the Golden Knights’ registration application, citing a “confusing[] similar[ity]” to a mark registered by the College of Saint Rose. Arguable visual similarities aside, I didn’t even know there was a Saint Rose, much less a College of Saint Rose, and I certainly didn’t know the school’s mascot is the Golden Knights, and neither did you, which means that, however similar these marks might be, the likelihood of confusion here is very low. This likely is little more than another instance of the USPTO seeking a moment in the sports sun.
  • Gambling: The nation of Antigua and Barbuda has issued a threat to the United States if the U.S. does not meet a year-end deadline to comply with a 2003 World Trade Organization order ruling that American online sports betting and gambling laws violate international law. If the U.S. does not comply with the WTO order, which also carries an annual noncompliance penalty of $21 million and has accrued to over $250 million, Antigua and Barbuda intends to suspend intellectual property protections for Americans, effectively permitting Antiguans to establish websites hosting royalty-free downloads of American IP (e.g., books, music, movies, television programming, etc.).
  • Baseball ambassador: Bobby Valentine, former MLB player and manager of the Mets and Red Sox, reportedly is under consideration by president-elect Donald Trump for the position of ambassador to Japan. Valentine, who currently serves as athletic director at Sacred Heart University, is popular among Japanese baseball fans thanks to two successful stints as manager of a professional baseball team there.

Sports court is in recess.

Why the Michigan Wolverines have been unwatchable since at least 2008

When the University of Michigan’s athletic department swapped out its Nike gear in exchange for a lucrative contract with Adidas, the Maize ‘n’ Blue lost more than a swoosh: they lost their Maize. In fact, they sold it for something far worse:

The shift from Nike to Adidas was also a huge change. For fans, seeing a different symbol on a jersey isn’t anything special, but for athletes it’s a big adjustment. Sizes, fit, comfort, color and durability are all crucial to being able to play your sport well. With Nike, every team had figured out what they liked and disliked, and they could make small adjustments in their gear from year to year. But Adidas specializes in soccer and football gear, so things like volleyball shoes and jerseys presented new challenges.

Nike also copyrighted the color “Maize,” so Adidas actually had to make a new version of our school color, now known as “Sun” (which the volleyball team has affectionately dubbed the “highlighter” jerseys).

Terrible. I don’t love what the Spartans have done aesthetically over the last decade– it’s the overall fluctuations in approach, more than any one decision, that has become somewhat annoying– but Michigan State hasn’t done anything to make my eyeballs burn out of my face, and that recent rosy addition has been downright pleasing.

Old news, but new to me, and now you know it too.

On paying college athletes: Schools’ obligations under the status quo

Last week, Clay Travis argued, credibly, that all Wonderlic Test scores should be made public. For whatever reason, these scores are the only NFL combine results not made public. Every year, though, someone leaks a few of the scores to the media, and this year was no exception. According to the testing company, a score of ten indicates literacy, while a twenty indicates average intelligence. The three leaked scores were a twelve (Justin Hunter, Tennessee), an eleven (Cordarrelle Patterson, Tennessee), and a seven (Tavon Austin, West Virginia). Travis explained his larger takeaway point:

So all three of these wide receivers tested borderline literate, and substantially less intelligent than an average security guard would test.

Yet all three receivers have been eligible to play college football for years.

Isn’t this prima facie evidence of academic fraud? I mean, if you can barely read the Wonderlic test, how in the world have you been eligible at a four year college without significant cheating?

Travis goes on to writhe in the muckety muck of “academic fraud . . . one of the great untold stories of major college athletics” and cast  now-common aspersions on the NCAA.

It’s the NCAA that tends to bear the brunt of the building criticism of the college athletics status quo from the likes of Travis and his former employer, Deadspin, and the NCAA probably deserves most of that criticism. On this issue, though, it’s the schools themselves that deserve a critical assessment, not the NCAA.

The boom-bust cycle that is the volume of the discussion over whether college athletes should be paid is in a boom phase at the moment, but the substance of the conversation has not changed much over the years. Those in favor of paying college athletes point to the large revenue streams college athletics produce for schools and the NCAA and argue that it’s wrong that the athletes are not allowed to share in those profits; those opposed argue that the student-athletes are being compensated in the form of a free college education. The two sides actually seem to agree, at least implicitly, on the fundamental premise that college athletes should be compensated, and their disagreement is with the degree to and manner in which the athletes should be compensated: Proponents want new cash payments, perhaps held in trust, for the students, while opponents believe a free education constitutes sufficient compensation.

Test results indicating that students are flirting with illiteracy after three or four years of college are evidence that schools are not even keeping up their bargain to provide student-athletes with an education.

Occupy Herbstreit

ALDLAND generally tries to stay above (ok, below) current political issues, but it’s tough to not notice that there’s a lot going on out there right now. The Occupy Wall Street rallies are the story of the political moment, it seems, and while it is alternatively difficult and easy to understand what they’re all about, it feels like the whole mess of it flies under the radarabove the head of the common sports fan.

Luckily for sports fans, though, they now have an opportunity to participate in Occupy Wall Street even if they don’t understand it, don’t want to understand it, don’t agree with it, or just don’t want to leave their house, thanks to a new blog called Occupy Herbstreit:
Subtitled “A Lost Gameday Fan Occupies Wall Street,” the blog collects photos of people (so far it appears to be the same person) with signs that blend the vernacular of the Wall Street protesters and the subject matter of a college sports fan. See the rest of the pictures here.

Report on college athletic director pay

USA Today reports:

Following the lead of the $5 million football coach, athletics directors may be next to hit the college sports salary jackpot.

ADs average about $450,000 at the NCAA’s top-tier schools, according to a USA TODAY analysis, rivaling the pay of many university presidents. But at least five ADs make more than $1 million, and since August 2010, at least 10 public schools have given their AD’s pay raises of $75,000 or more.

USA Today’s cover story on the topic is here. The paper also provided a breakdown of the top 120 schools’ ADs. The top ten, ranked in descending order by total pay:

School Athletics Director Conf. University pay Other pay Total pay Max Bonus
             
Vanderbilt David Williams SEC $2,560,505 $0 $2,560,505 $0
Florida Jeremy Foley SEC $1,545,250 $0 $1,545,250 $50,000
Louisville Tom Jurich Big East $1,422,204 $5,500 $1,427,704 $344,000
Texas DeLoss Dodds Big 12 $1,093,391 $2,365 $1,095,756 $125,000
Ohio State Gene Smith Big Ten $1,074,546 $0 $1,074,546 $250,000
Wisconsin Barry Alvarez Big Ten $1,000,000 $40,800 $1,040,800 $0
Oklahoma Joe Castiglione Big 12 $975,000 $0 $975,000 $510,000
Notre Dame Jack Swarbrick Indep. $932,232 $0 $932,232 $0
Duke Kevin White ACC $908,659 $0 $908,659 $0
Tennessee Dave Hart Jr. SEC $750,000 $0 $750,000 $0

(HT: @AndrewBrink)