Sports Law Roundup – 2/17/2017

aslr

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:

  • Baseball human trafficking: The federal criminal trial began this week in Miami in a case in which an agent and trainer were indicted for their alleged roles in a smuggling network designed to move baseball prospects from Cuba into the MLB system.
  • Boxing non-fight fight: Boxer Alexander Povetkin sued fellow heavyweight Deontay Wilder after the latter withdrew from the pair’s scheduled fight last May following the former’s positive test for meldonium, the same banned substance for which Maria Sharapova was banned from tennis competition. This week, a jury returned a verdict in Wilder’s favor, but Povetkin’s attorney wants to keep fighting, alleging that Wilder’s lawyer engaged in “gross and extensive misconduct” during the litigation and implying that he would seek a mistrial.
  • NFL turf: In what the Houston Texans are calling “a case of first impression,” former NFL linebacker Demeco Ryans is suing the team for damages arising out of an alleged career-ending, noncontact Achilles tendon injury Ryans says he suffered when he landed on a seam in the turf while playing in a game against the Texans as a member of the Philadelphia Eagles. Ryans is seeking $10 million, but the Texans say the court should dismiss the case because the NFL collective bargaining agreement preempts his claims. Ryans is hoping to avoid CBA preemption by relying on a prior case involving Reggie Bush, in which Bush injured himself after running out of bounds and slipping on a concrete surface surrounding the field during a game in St. Louis. In Bush’s case, the court ruled that the CBA did not apply, since the injury happened outside the field of play. Ryans’ lawsuit, the Texans highlight, deals with the in-bounds playing surface itself, which, the team argues, is a critical distinction that renders the Bush case inapplicable.
  • Lance Armstrong fraud: A False Claims Act lawsuit against Lance Armstrong will proceed after a judge’s ruling on various motions this week. The case involves allegations that Armstrong, while lying about his doping practices, received millions of dollars from the federal government in connection with his cycling team’s sponsorship by the U.S. Postal Service. Although the government’s case can go forward, Armstrong’s side will be able to argue in mitigation that the government’s benefit from the sponsorship reduces the amount of financial harm it actually suffered.
  • Student-athlete scholarships: Last week, we mentioned a settlement agreement under which the NCAA will pay an average of approximately $7,000 to current and former football and men’s and women’s basketball players who played a sport for four years and were affected by alleged athletic scholarship caps. Now, one of the plaintiffs, former USC linebacker Lamar Dawson, has objected to the settlement, which requires court approval before it’s finalized. Dawson’s concern is that the settlement includes a release of certain labor law claims that were not litigated in that particular case and which he is pursuing separately in a wage-and-hour lawsuit against the NCAA.
  • NBA fan app: A court partially dismissed a fan’s lawsuit against the Golden State Warriors, ruling that, although the fan had alleged facts sufficient to show that she had suffered an actual injury as a result of the team’s smartphone app’s alleged secret recording and capturing of her private communications, she had not stated a claim for relief under the federal Wiretap Act because she had not shown how the team intercepted and used her communications. The judge is allowing the fan the opportunity to amend her complaint.
  • Tennis commentator: After ESPN fired him in connection with an on-air remark about Venus Williams during this year’s Australian Open broadcast, Doug Adler, who worked for the network for nearly a decade, has filed a wrongful-termination lawsuit against his former employer, alleging that he was dismissed for saying something he never said. While some heard Adler use the word “gorilla” in reference to Williams, he maintains that he used the word “guerrilla” in describing her approach during the match he was broadcasting. Thanks to the magic of the internet, you can render your own judgment after viewing the clip here.
  • Penn State child abuse: Earlier this month, a court ruled that three former Penn State University administrators will face criminal child endangerment charges stemming from the Jerry Sandusky sexual assault scandal inside the university’s football program. The trial is supposed to begin next month, but the three defendants are attempting an immediate appeal of the ruling that they must face trial, arguing that a two-year statute of limitations bars the charges, and that Pennsylvania’s child-endangerment laws don’t apply to officials in their positions. In other news, Sandusky’s son, Jeff, has himself been charged with sexually abusing a child.

Sports court is in recess.

Sports Law Roundup – 2/10/2017

aslr

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:

  • Wrestling ban: Last week, the Iranian government announced that it would not allow the American wrestling team to compete in the 2017 Freestyle World Cup, which the Iranian city of Kermanshah is hosting this month, in retaliation for President Trump’s executive order temporarily blocking people from entering the United States from Iran and six other majority-Muslim countries. Now, Iran has lifted that ban, saying it will grant visas to the U.S. wrestlers in light of American judicial orders temporarily halting enforcement of the executive order.
  • Student-athlete scholarships: The NCAA, Pac-12, Big XII, Big Ten, SEC, ACC, AAC, C-USA, MAC, MWC, WAC(!), Sun Belt Conference, and a group of student-athletes settled monetary claims in their antitrust dispute for $208.7 million. The suit targeted caps on athletic scholarships. Under the settlement, the NCAA will pay an average of approximately $7,000 to current and former football and men’s and women’s basketball players who played a sport for four years and were affected by the caps between March 2010 and the present.
  • Football painkillers: In a case we have been watching (here and here) between the NFL’s teams and a group of former players alleging improper dispensation of painkillers, the judge dismissed many of the players’ claims, including all of their claims against twenty-four of the league’s thirty-two teams. At this time, some claims remain pending against the Lions, Vikings, Packers, Raiders, Broncos, Seahawks, Chargers, and Dolphins.
  • Hockey head injuries: Last month, the NHL asked the judge overseeing a head-injury lawsuit between the league and a group of former players to issue an order compelling Boston University’s CTE Center to turn over research documents the former players say constitute evidence supporting their claims. Unsurprisingly, the Center now opposes that request, because disclosing the information would violate the privacy of its research subjects, “impos[e] a burden on the center that will functionally prevent it from conducting any work, and creat[e] a chilling effect on research in this field.”
  • Football head injuries: Former NFL player Brian Urlacher sued a hair-restoration clinic alleging unauthorized use of his likeness in advertisements.
  • Athlete advisor fraud: Brian J. Ourand, who worked as a financial advisor to athletes, including Mike Tyson and Glen Rice, admitted stealing over $1 million from his clients and pleaded guilty to federal wire fraud charges.

Sports court is in recess.

Sports Law Roundup – 12/9/2016

aslr

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.

How Drugs and Alcohol Fueled the 1986 Mets to a Championship (via WSJ)

bn-nj747_darlin_m_20160404135051You’d see guys toward the end of a game, maybe getting ready for their final at bat, double-back into the locker room to chug a beer to “re-kick the bean” so they could step to the plate completely wired and focused and dialed in. They had it down to a science, with precision timing. They’d do that thing where you poke a hole in the can so the beer would flow shotgun-style. They’d time it so that they were due to hit third or fourth that inning, and in their minds that rush of beer would kind of jump-start the amphetamines and get back to how they were feeling early on in the game—pumped, jacked, good to go. How they came up with this recipe, this ritual, I’ll never know, but it seemed to do the trick; they’d get this rush of confidence that was through the roof and step to the plate like the world-beaters they were born to be. … Read More

(via WSJ)

College Football Playoff Championship Preview

Oregon meets Ohio State tonight in the inaugural College Football Playoff finale, and I’m most excited about the ESPN Megacast, which, in addition to the above, includes an ESPN Radio play-by-play broadcast as well. ESPN gets knocked around plenty for doing things like bowing to the will of “partners” like the NFL at the expense of its own journalistic integrity or hosting a platform for grey-matter destroyers like Skip Bayless, Stephen A. Smith, and Colin Cowherd, but there are times when they leverage their resources to make significant improvements to the fan experience. ESPN introduced the Megacast concept for the final BCS championship game one year ago, and it was such a success that it’s back again this year, bigger and better than ever. In the interim period, other networks have experimented with the concept, loosely defined, in other sports, and I believe this is the way we will enjoy all major sporting events in the near future.

(If at this point you are wondering what ESPN Goal Line is, it appears to be a Briagdoon-like offering that will materialize on your TV sometime today, maybe. Anyway, you can find me tuning into ESPN Classic’s “sounds of the game.”)

Game Comments

As Sports Illustrated graphically illustrated in this week’s issue, Ohio State and Oregon actually were quite close to each other this year in statistical terms. Initially, there are two reasons to question that apparent parity, however: 1) Oregon plays in the stronger Pacific Twelve conference, while OSU spent much of the season feasting on relatively weaker conference opponents, and 2) Ohio State earned much of its production with quarterbacks not named and thought to be superior to Cardale Jones, the man who will be under center for the Buckeyes tonight. It is right to regard Oregon as the better team in this matchup.

There are a number of factors that cut against Oregon’s edge, however:   Continue reading

Stadium Jam

The Wall Street Journal (now with questionable sports bona fides!) published today, in oral-history style, a feature on Crosby, Stills, Nash & Young’s 1974 summer stadium tour. An introductory excerpt:

On July 9, 1974, a month before President Richard Nixon resigned, with albums by Elton John and John Denver at the top of the charts, David Crosby, Stephen Stills, Graham Nash and Neil Young reunited to begin an ambitious nine-week tour of the U.S., Canada and England. Produced by Bill Graham, most of the 31 concerts were performed at stadiums and speedways with lengthy sets and clear, audible sound—firsts for an outdoor rock tour. Tickets cost about $7.50 (or $36 in today’s dollars).

Although the band hadn’t had a top-10 album since 1971, CSNY performed three-hour sets before crowds averaging 50,000 per concert, paving the way for rock stadium tours that followed.

Graham Nash: The idea for the tour was Bill Graham’s. Bill called me in my room at the Chateau Marmont in Los Angeles in early ’74. Bill said a lot of money could be made, and we knew Bill was used to putting on large events and had just produced Bob Dylan’s 40-date tour. Bill also pointed out that something on this scale had never been tried before, which sounded pretty cool to us.

For our music-sports nexus, the article also sheds a little light on Stephen Stills’ well-photographed penchant for wearing football jerseys onstage and on album covers:

[Tour photographer Joel] Bernstein: Stephen started wearing football jerseys on stage that year. The jerseys had a practical purpose—they were big and loose and perfect for a guitarist on stage. But they also were a statement. Remember, there were no NFL stores back then. All of those jerseys were originals, given to him by NFL players. I think for Stephen, they symbolized being in a stadium on a great team. There probably was a certain amount of irony there, too—he was a big football fan.

Speaking of photographs, the article includes a slideshow, which is the real gem here. High-quality audio and video from the tour are due out next month, but HD sideburn images are just a click away.   Continue reading

Seeing Barry Bonds

This is not a new idea, but after seeing a recent picture of Barry Bonds, it seemed worth reprising.

Here’s Bonds in 1992. Age 28.

Bonds in 2007. Age 43. Besides having ballooned physically, Bonds is doing a coupe of interesting things here. One, he is wearing a Rod Beck memorial patch, like the rest of his teammates did that year. That’s how I dated this photo. Two, he apparently was wearing Ryan Klesko’s batting helmet. Klesko and Bonds were teammates for one year.

Bonds in 2012. Age 48. From the hosting site:

Now comes word that Bonds over the weekend was hanging around in Aspen and spending time on his bike in the mountains. How much does he weigh now? The guy in the neon green shirt is 6-5, 185. Bonds was said to be 6-2, 228 in 2007.

Time to invest in Bonds again?

Bay of Cigs: Heeeeeere’s Jhonny?

jhoLast month, Jhonny Peralta, the starting shortstop for the Detroit Tigers, agreed to accept a fifty-game suspension because of his connection to the Biogenesis Clinic. That suspension is nearly over, and he could return to the team on September 27, which is the date of the first game of the Tigers’ final regular season series, coincidentally taking place in Miami.

The decision whether to bring Peralta back to the team belongs to the team, and general manager Dave Dombrowski in particular. The question is whether they should allow him back.   Continue reading

Bay of Cigs: Crime & Punishment

jhonnyWhen Ryan Braun accepted a sixty-five-game suspension for his violation of MLB’s drug policy, I lit into the Milwaukee Brewers star, or at least did whatever constitutes lighting into someone around here. Now that (likely former) Tigers shortstop Jhonny Peralta has accepted a fifty-game suspension for his connection to the Biogenesis clinic, it seemed only fair that I respond to a part of this expanded story that hits close to my fandom as well.

Peralta represents the nearest the PED scourge has come to my fan doorstep– right on the front stoop, as it were– and even though I acknowledged the likely cognitive bias in the abstract, I did not really appreciate how differently one approaches stories like this when they directly involve a favorite team or player until the Peralta suspension was announced Monday. Lance Armstrong was fun, but I wasn’t a real cycling fan and I never wore a Livestrong bracelet. I wasn’t a fan of Barry Bonds or Roger Clemens either. I did have plenty of pictures of Mark McGwire and Sammy Sosa on my bedroom walls as a kid, but the revelations didn’t come as quickly then as they do now. By the time they came for those two, I’d moved on.

When the PED dragnet picked up an active Detroit Tiger, a starter, an all-star, and an important component of a team with World Series aspirations, though, I found myself scrutinizing every word of the official public statements in the matter, demanding concrete proof of wrongdoing, and generally establishing a defensive posture. Peralta was reported to have a weaker connection to the Biogenesis clinic than other accused players, after all, and didn’t MLB strongarm Biogenesis founder Anthony Bosch into “cooperating” with the league’s investigation by filing a probably frivolous lawsuit against him (yes), and have there been any positive drug test results for any of these players (no), and aren’t they kind of being railroaded into accepting these no-contest suspensions (I mean, at least kind of), and isn’t there something to be said for due process in all of this (of course), and what did the league and the players say, exactly, anyway?

Here’s Peralta’s statement:

In spring of 2012, I made a terrible mistake that I deeply regret. I apologize to everyone that I have hurt as a result of my mistake, including my teammates, the Tigers’ organization, the great fans in Detroit, Major League Baseball, and my family. I take full responsibility for my actions, have no excuses for my lapse in judgment, and I accept my suspension.

I love the fans, my teammates and this organization, and my greatest punishment is knowing that I have let so many good people down. I promise to do everything possible to try and earn back the respect that I have lost.

(Before spring training this year, Peralta issued a statement: “I have never used performance-enhancing drugs. Period. Anybody who says otherwise is lying.”)

Here’s MLB Commissioner Bud Selig’s statement:

Continue reading