Sports Law Roundup – 11/18/2016

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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:

  • Baseball stadium netting: On Wednesday, the trial court dismissed a lawsuit seeking increased fan-safety measures in baseball stadiums, including expanded safety netting behind dugouts and along the foul lines, based on a lack of standing. I previously wrote about this case over at TechGraphs (see here, here, and here), generally discussing the ways in which it– despite the legal weaknesses in the plaintiffs’ position– already was effecting change. Although those legal weaknesses proved to be the downfall of this suit, the court’s ruling was not without its admonitions to Major League Baseball. For example, an early footnote contains this observation: “Why Major League Baseball, knowing of the risk [foul balls pose] to children in particular, does little to highlight this risk to parents remains a mystery.” The order also expressly suggests the possibility that future litigation along these lines may be more availing in other states, where the “Baseball Rule,” which makes it very difficult for fans to recover against baseball teams and leagues, has fallen under attack: “Thus, it is conceivable that, under the right set of circumstances, a plaintiff could obtain the type of relief that plaintiffs seek here. Given the changing nature of both the baseball game experience and the injuries at issue, which are far different from those in 1914, what is a ‘reasonable expectation’ on an ‘ordinary occasion’ is not a static concept.
  • Football painkillers: Attorneys for retired NFL players in a lawsuit against the league alleging that team doctors dispensed painkillers “‘as if they were candy’ regardless of long-term effects” are seeking permission to depose team owners Jerry Jones and Jim Irsay. Outside of football, Irsay, who inherited ownership of the Indianapolis Colts from his father, is known for collecting famous guitars– including Jerry Garcia’s Tiger, Les Paul’s Black Beauty, and Prince’s Yellow Cloud— and having a history of abusing painkillers. The plaintiffs also have amended their complaint to add a RICO claim, which, among other things, introduces the potential for tripling their financial recovery in the lawsuit.
  • NCAA transfer rules: Johnnie Vassar, a former Northwestern basketball player, filed a putative class-action lawsuit against the NCAA, alleging that the rule forcing transferring students to sit out of their sport for their first year at their new school violates antitrust laws. Vassar claims that he attempted to transfer from Northwestern but was unable to do so, because all of his target schools only would accept him if he could play immediately. In recent years, Northwestern has emerged as a cradle of anti-NCAA legal activity.
  • Triathlon death: A wrongful death claim brought in connection with the drowning death of a competitor in the 2010 Philadelphia Triathlon cannot proceed, a Pennsylvania appellate court ruled, concluding that the triathlete knowingly and voluntarily assumed the risk of participating in the event when, in the course of registering for it, he executed a detailed liability waiver.
  • Cuban baseball-player smuggling: In a federal criminal case against a sports agent accused of conspiracy to smuggle Cuban baseball players into the United States, the government has listed numerous professional players, including Yoenis Cespedes and Jose Abreu, as trial witnesses. For more on this general subject, ESPN The Magazine’s feature on Yasiel Puig is a must-read.
  • Boxing fraud: The defendants– Floyd Mayweather, Manny Pacquiao, HBO, Top Rank, and others– in twenty-six lawsuits alleging that they improperly concealed Pacquiao’s shoulder injury leading up to the fighters’ 2015 bout in order to boost pay-per-view sales admitted that the plaintiffs– fans and bars– had standing to pursue their claims, even as the defendants denied that those claims had any merit.
  • Gambling: West Virginia, Arizona, Louisiana, Mississippi and Wisconsin are asking the United States Supreme Court to review a Third Circuit decision rejecting New Jersey’s attempt to open up sports gambling in its state. The five states, together, filed an amicus brief in support of New Jersey’s cert petition (formal request that the Supreme Court allow them to appeal the Third Circuit’s ruling), arguing that the manner in which Congress has regulated sports gambling is unconstitutional and threatens the balance of power between the federal and state governments. In an unrelated story, daily fantasy leaders FanDuel and DraftKings announced a merger agreement this morning.
  • Secondary football ticket market: Under pressure from state regulators, the NFL agreed to end its league-wide imposition of a price floor on game tickets sold on the secondary market that had prevented the resale of tickets at prices below face value. The agreement does not apply to tickets for the Super Bowl and Pro Bowl, nor does it prevent teams from acting “unilaterally” to enforce price floors, meaning that the practice could continue.
  • Campus police records: The Indiana Supreme Court affirmed a trial court’s dismissal  of ESPN’s lawsuit seeking the University of Notre Dame Police Department’s incident reports involving student athletes, deciding that the ND Police Department is not a “public agency” and thus cannot be compelled to produce the requested materials under the state’s open records law.

Sports court is in recess.

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Window Shopping: Step Back From the Window, or, Thank You Very Much, Mr. Rebooto

The July 31 non-waiver trade deadline was an especially active period for the Detroit Tigers franchise, which made big moves both with player and front-office personnel.

Detroit traded three of the best players on its 2015 roster in the days and minutes prior to the trade deadline. The team’s biggest move, and arguably the biggest of one of the most active trade-deadline periods ever, was their decision to trade number-one starter David Price to the Toronto Blue Jays. They also sent closer Joakim Soria to Pittsburgh, and, in the final moments before the deadline, Yoenis Cespedes to the Mets.

The basic logic behind each of these moves is that, even prior to these trades, each of these players was, for all practical purposes, not going to be a member of the Detroit Tigers in 2016. That’s because each is in the final year of his current contract, meaning that each becomes a free agent at the end of this season. The Tigers would have no special ability to keep Price, Cespedes, or Soria in Detroit after the end of the 2015 season, and, given their individual successes, each is likely to fetch contract offers on the free market too rich even for Mike Ilitch’s blood. Rather than keep Price, Cespedes, and Soria for August and September on a team that’s unlikely to even make the playoffs, only to watch them walk away in the winter, the Tigers, with an eye on the post-2015 future, decided to cash in some of the value of these assets by trading them now. In doing so, Detroit converted these three expiring assets into six prospects, including five pitchers and one infielder.

Baseball analysts widely praised these transactions as beneficial to the Tigers, who, general manager Dave Dombrowski announced were “rebooting,” selling with the goal of remaining competitive in the near term, rather than undergoing a full rebuilding. The top return for Detroit was Daniel Norris, a now-former Blue Jay who lives in a van and shaves his beard with an ax. They also received Matt Boyd from Toronto, a younger starter who, in his recent Tigers’ debut, beat Johnny Cueto and the Royals.

Of course, the only real question for Detroit was not whom to trade but whether to trade. As July 31 approached, that question divided fans and, it later would be revealed, members of the team’s front office and ownership. As for the former group, most fans recognized the Tigers’ slim playoff odds and supported selling, although a minority that included this writer held out hope that the team could make one more postseason push before initiating a rebuild. Ultimately, Dombrowski’s “rebooting” seemed to satisfy both camps: Detroit would get close-to-ready prospects in exchange for their expiring assets. No long rebuilding process– a full surrender– was in store, just a quick retooling.

Two additional notes in the context of these trades: 1) one week before the trade deadline, Toronto, the biggest buyers, and Detroit, the biggest sellers, sat four and five games out of the last American League wild card position, respectively, and 2) while it isn’t at all likely that Price, Soria, or Cespedes will return to Detroit in the offseason, the effect of an unusual clause in Cespedes’ contract is that the Tigers actually increased whatever chance they have of resigning Cespedes by trading him.

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As the Tigers and their fans were settling into life without Price, Soria, and Cespedes, and enjoying their first trial run with Norris, who had a strong start on Sunday in Baltimore, unbeknownst to them, even more action was afoot behind the scenes.    Continue reading

What does Adam Schefter’s publication of Jason Pierre-Paul’s medical records mean for the future of athlete health information?

In the context of yesterday’s Jason Pierre-Paul fireworks/amputation news, my latest post for TechGraphs asks whether the increasing use of wearable sports technology could have negative consequences for athletes, and, further, whether athletes may be effectively powerless to avoid those consequences.

The full post is available here.

The moral implications of StatCast

moralitycastIf your neighborhood baseball nerd is nerding out a little more than usual today, it’s probably because Pluto’s in retrograde right now or something, and it definitely doesn’t have anything to do with tonight’s television broadcast debut of StatCast, which will go far beyond showing balls and strikes by tracking things like player movements and batted-ball data. Ben Lindbergh has a good preview of the technology and its chief implications for expanded baseball analysis here.   Continue reading

Divided They Stand (via ESPN The Magazine)

Ferguson, however, is not Gaza. For millions of African-Americans, it is not theoretical but personal. Professional athletes know the Ferguson dynamic too well, very likely better than most. The sports world is populated by hundreds of players who come from places similar to Ferguson, with similar tensions and hostilities, where the police have never been allies but an entity to fear. If ever there was time to hear from the players, for them to peek out from behind the tinted glass of their Escalades and for their teams and handlers to have the courage to encourage them to actually speak about their experiences, it is now.

The most immediate consequence for voicing such sentiments is to be greeted with the chilling chorus of “stick to sports.” But that chorus is not just patronizing; it ignores the reality that sports hasn’t been sticking to sports for nearly a generation. More than a decade ago, after Sept. 11, sports relinquished its traditional ground as a generally apolitical entity. It joined the war movement, codified politics into the quiet pastime of going to see a ballgame. In so doing, the games contributed to the growing culture of militarism that is now everywhere in America, a movement that has manifested itself in the mine-resistant armored vehicles that were employed by Ferguson’s 53-member police force. … Read More

(via ESPN The Magazine)

Flying Tigers: Actually Mad Max

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Detroit starting pitcher Max Scherzer is the subject of this week’s Sports Illustrated cover story. The cover’s headline is “Mad Max’s $144 Million Bet,” and it asks whether Scherzer “Made a Dumb Wager on His Future.” Scherzer, who wanted all contract discussions to end by the time the season started regardless of whether he reached a new agreement with the Tigers, was not happy with the way SI framed the story about him, telling the Free Press he was “frustrated that they chose to put the contract stuff on the cover.” The reigning Cy Young Award winner elaborated:

When they approached us, [Tigers media relations] and I, we specifically asked not to make the story around the contract. … They assured us it wasn’t going to be like that. They chose a different route, and we felt like we were lied to and misled.

I didn’t want it to be about that. I’m a baseball player. I want to talk baseball. It’s frustrating when you get lied to about that.

The magazine responded that they knew Scherzer did not want to discuss his contract situation “in detail,” but stated that they did not make any promises about how they might present that subject in the context of the article.

The article itself (I’ll post a link once it’s available online) really does not spend much time on the contract issue at all. It’s mentioned roughly twice in the feature but never substantively analyzed. On the whole, the article actually is a nice profile of Max at an important stage of his career. It spends far more time discussing his analytical development at Missouri– the importance of the pitch following a 1-1 count, for example– and his development of a curveball with Detroit pitching coach Jeff Jones than it does his employment status and prospects.

The sensationalism of the cover’s “$144 Million Bet” language, described as a “dramatic $144 million offer” on the article’s introductory page, has the look of an editor’s efforts to boost general interest in the piece and the magazine as a whole. That introductory page asks, “What does [Scherzer] know that we don’t?” If that really was the question author Albert Chen was seeking to answer when he interviewed Max and wrote this article, he surely would have spent more time discussing broader matters of age, endurance, and pitcher decline than he did.

Those topics are there, of course, and so is the contract. It would be irresponsible not to include all of that in a Scherzer profile published this week. But Chen’s article doesn’t deliver on the sensational promises of his editor’s cover, and readers should be glad it doesn’t. They’ll learn a lot more about Scherzer in Chen’s article and have a more enjoyable time doing so than they would from a poorly sourced pot-stirring piece more suitable for ESPN First Take.     Continue reading

Out Route (via ESPN The Magazine)

He’s done. He can’t take another year. The grind of football has exhausted him, and the grind is just now starting. It’s July. He’s in the weight room of his Huntington Beach home, in a gated community only miles from the projects where he was raised. He is about to work out, because his 37-year-old body might not last 16 games otherwise, because he has played in the NFL for 16 years and knows no other way. He is a physical wonder, sculpted to the last inch, but the imperative to work out is more draining than the workout itself. His body seems to be outlasting his will, rather than the reverse.

Tony Gonzalez has convinced himself that he can find happiness without football. Of course, he’s said that before. He all but filed retirement papers the past two years only to return. He exists in a state of conflict that he hates, of not being able to live with the game or without it. Now he’s tired. The energy required to train at his future Hall of Fame level is offset only by the certitude of finality. He looks around his weight room, littered with steel plates and bars. “I can’t wait to get rid of all this next year,” he says. “Should have gotten rid of it last year.”

He pauses.

“I’ll never need this shit again.” … Read More

(via ESPN The Magazine)

2014 BCS National Championship Preview

The final BCS National Championship Game is tonight at 8:30 pm on ESPN between Auburn and Florida State. The Seminoles, behind Heisman winner Jameis Winston and a robust defense, are heavily favored, but that’s no reason to think the Eagles/Tigers/Plainsmen can’t win. When I previewed all the bowl games last month, I wrote of this one:

Florida State and Auburn round things out in the final BCS National Championship Game before the implementation of the College Football Playoff next season. If this game was being played this weekend, I’d have an easier time picking Auburn to win. Although the Eagles/Tigers/Plainsmen have beaten Alabama, Missouri, Texas A&M, and everyone else on their schedule with the exception of LSU on the road, I think all of the time off will allow Florida State to better prepare for Auburn’s packaged offensive scheme. I can’t help being reminded of Auburn’s last national championship, in a game in which I also thought they were severely overmatched. Auburn’s giving up forty-two points to Missouri in the SEC championship game worries me, but they’re still my tentative pick to win it all on January 6.

I don’t know that anything has happened since then to make me feel more confident that Auburn can win, so I’m going to leave my prediction as it is. Feel free to add yours in the comments below.

(Sidebar: Picking bowl games is a little bit difficult. This year, my picks were pretty scattered, none worse than picking Rice to beat Mississippi State in the Liberty Bowl, which ended up being one of the few bad games this postseason. Still, I would like to note that ESPN the Magazine went 0-fer in its BCS bowl predictions. They had Alabama by 14 in the Sugar (Oklahoma by 14), Baylor by 20 in the Fiesta (UCF by 10), Ohio State by 6 in the Orange (Clemson by 5), and Stanford by 15 in the Rose Bowl (Michigan State by 4).)

For your pregame reading, I offer the following selections:

  • The Making of a Modern-Day Guru: How Gus Malzahn went from high school defensive coordinator to college offensive mastermind, and took Auburn to the brink of championship glory in the process Grantland
  • Florida State: Unbeaten and Untested. In contrast to Tigers, Seminoles Took the Path of Least Resistance Wall Street Journal
  • Equal Justice Under College Football Playoff: College football will take a big step forward when it adds a two-round, four-team playoff, but it will take a step backward when it replaces the BCS ranking system with the College Football Playoff Selection Committee ALDLAND

Enjoy the game tonight.