Sports Law Roundup – 12/2/2016


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:

  • MLB CBA: Shortly before the December 1 deadline, MLB and the MLBPA reached agreement on a new collective bargaining agreement that will govern the sport for the next five years.
    Details still are emerging, but early analyses are labeling this round of negotiations another win for ownership. (Others see it as a mere “setup for war in 2021.”) One of the most visible changes fans will notice is that the All Star Game no longer will determine home-field advantage in the World Series; instead, that perk will go to the team with the better regular-season record. Another aesthetic change: no more chewing tobacco (although current players are free to chaw down; the ban only applies to new players as they enter the league). Following in the NFL’s footsteps, MLB has indicated plans to play a regular-season game in a foreign country, possibly England or Mexico, as soon as 2018.
  • Football player suspension challenges: Lane Johnson, a fourth-year offensive tackle for the Philadelphia Eagles who is serving a ten-game suspension following a second failed test for performance-enhancing drugs, has challenged his suspension by filing complaints against the NFL and NFLPA with the National Labor Relations Board and U.S. Department of Labor, alleging that the suspension procedure violated his rights under his employment contract and federal labor law. While the filings currently are not public, Johnson’s challenge appears, based on a statement from his lawyer, to be a collateral attack on the collective bargaining agreement itself: “During Lane’s appeal, it became apparent that the written words in the collectively bargained Performance-Enhancing Substances (‘PES’) Policy, under which Lane was disciplined, are meaningless. The NFL and NFLPA have undermined these protections leaving the players — including Lane — with a hollowed-out process devoid of any protections.”
    Faced with a similar situation, Mike Pennel, a third-year defender for the Green Bay Packers, is challenging the adequacy of the suspension-appeal procedures by filing an action in federal court. Pennel’s allegation is that the use of only two arbitrators, rather than three, for his appeal hearing violated the league’s substance-abuse policy.
    Both Pennel and Johnson are represented by the same law firm, Ohio-based Zashin & Rich.
  • NBA arena: A court’s denial of two citizens’ organizations’ petitions will allow construction to proceed in San Francisco on a new, privately financed, $1 billion arena for the Golden State Warriors. The groups had sought to block the project because, in their view, the city’s environmental analysis was insufficient, specifically including an allegation that increased traffic would interfere with the operation of the nearby UCSF hospital. The Warriors will leave their current home in Oakland to begin play in the new San Francisco arena in 2019.
  • Sharper sentencing: A judge sentenced longtime NFL safety and serial rapist Darren Sharper, previously most famous for playing fourteen seasons for the Packers, Vikings, and Saints, and for his supporting “role” in this viral video, to twenty years in prison as part of a plea bargain in which Sharper admitted to drugging and raping women in four states. Sharper, whose victims number more than a dozen, previously pleaded guilty in a federal trial for drugging three women so he could rape them and is appealing the eighteen-year sentence he received in connection with that plea.
  • Inmate phone calls: Former Florida Gator and New England Patriot Aaron Hernandez, who is incarcerated in Massachusetts following his conviction for murdering one person and being charged with multiple additional murders, has sued Securus Technologies, one of the largest providers of inmate telephone services. Based on media reports of a Securus data breach, Hernandez’s suit alleges that the company failed to protect privileged and confidential information, such as telephone calls between Hernandez and his lawyers.
  • Whistleblowing coach: A judge awarded former Penn State football coach Mike McQueary an additional $5 million Wednesday after determining that the school terminated his employment as a result of his testimony against other PSU officials who failed to act in response to McQueary’s report on child sexual abuse by another football coach. McQueary previously won $7.3 million in a jury trial on claims related to the university’s investigation of the assault and its related defamation of McQueary. (Yes, the PSU community really did attack McQueary for reporting a football coach’s child sexual abuse. Four years later, that community appears to be as delusional as ever.)
  • Football painkillers: In an update to a story previously highlighted in this space, a judge has ordered Dallas Cowboys owner Jerry Jones to sit for a deposition in a lawsuit by former NFL players alleging that teams irresponsibly dispensed painkillers to their players in order to keep them on the field, granting a discovery victory to the players. The victory was a partial one, however, because the judge denied the plaintiffs’ request to depose Jim Irsay, the owner of the Indianapolis Colts, famous guitars, and a personal history of painkiller abuse.
  • Super Bowl hotel rooms: Marriott has emerged victorious in a contract dispute with a sports travel agency after a judge ruled that the hotel chain was not bound by its obligations to the agency to provide 300 rooms for the Super Bowl in Houston, because the agency, in selling 240 of the rooms to another broker, violated a no-transfer provision of the agreement with Marriott. When Marriott cancelled the contract, the agency sued, accusing Marriott of violating their contract in order to pursue a more lucrative opportunity with the NFL and alleging that Marriott knew of the agency’s practice of reselling rooms. Even if that was true, the judge explained, the no-transfer clause was clear, and the agency could not enforce a contract it had breached.

Sports court is in recess.


State College Delusional: What hasn’t changed

We haven’t said much about this Penn State mess because we’re busy and because really, what is there to say?

From the initial news of the grand jury investigation through the firing of Joe Paterno, the release of the Freeh Report, and this morning’s announcement of NCAA sanctions, it feels like this thing has reached at least a temporary landing point at which we can breathe, take stock of what’s happened, restore some perspective, and focus on what’s important (i.e., the victims).

All of us, that is, except for one group: current Penn State students. (There’s no point in even approaching the parallel universe in which the Paterno family steadfastly resides. That’s expected, if indefensible.) They rioted furiously when the university fired Paterno, and from the sounds of it, little has changed today. In anticipation of the announcement of NCAA sanctions, ESPN Radio’s Mike & Mike checked in this morning with a correspondent in State College, PA, who had clips from two students responding to yesterday’s removal of the Paterno statue outside Beaver Stadium. My attempted transcriptions, first of student one:

Removing the Paterno statue did nothing to heal us. How does that heal us?

The emphasis in this statement was on the “us,” as in, “us students.” To them I ask, why do you need healing? What happened to you? Unless Jerry Sandusky raped you, you are not a victim in need of healing. Of course it didn’t heal you. It has nothing to do with you.

Student two:

Doctor Rodney Erickson said that he was going to protect JoePa’s legacy. How does this protect his legacy?

First, the kid actually said “Doctor Rodney Erickson.” Just so we’re clear. Secondly, to answer his question, it doesn’t protect “JoePa[‘s]” legacy in any way. Paterno’s “legacy” was a charade, a falsity Paterno and others protected at the expense of children. In reality, Paterno’s legacy is this coverup. That’s the legacy Paterno advanced through his dying day, and that’s the legacy Erickson protected by removing a monument to Paterno’s fraudulent legacy. Third, now seems like as good a time as any to stop calling him “JoePa.”

I think we wanted to think that the students initially rioted because they didn’t quite understand, but now that all the information is out in the sunlight and there’s been time for clearer heads to prevail, the students at the geographic locus of this would come in line with the general public. We’re told that Penn State is a big school, that not everybody thinks the same way, that they aren’t wearing blinders. The only data points we get from them– the initial riots and rallies, the Big Brother-esque turning off of the campus televisions during the Freeh Report announcement, Matt Millen, incoming recruits, and now these comments– indicate that the PSU campus residents are as delusional as ever.


ESPN’s Jeremy Schaap: Giving a Voice to Penn State’s Victims – Huffington Post

“It sounds like an attempt to avoid personal liability”
Joe Paterno to retire at season’s end
Growing Up Penn State

Special teams Monday

On Friday night, the Minnesota Timberwolves hung around long enough and took advantage of a Los Angeles Clippers’ offense that, despite dominating most of the game even without Chris Paul, stagnated after Mo Williams, who couldn’t miss, got himself ejected. Minnesota won the game on a Kevin Love 3-pointer off an in-bounds play with 1.5 seconds remaining. The 101-98 game-winning margin was the T-Wolves only lead of the night after going up 2-0 to start the game.

In college action, Michigan State was all over Purdue in East Lansing, 83-58, the Boilermakers being a much better team in West Lafayette than on the road. Vanderbilt, meanwhile, hasn’t quite been able to right its ship, dropping a tough one in overtime to #15 Mississippi State, 78-77. Other notable games included Virginia Tech upsetting UVA in a low-scoring affair (47-45), Notre Dame upsetting previously undefeated #1 Syracuse, and Florida State salvaging its season with an upset of Duke in Durham just a week after it blew out free falling North Carolina. There also was this neat fact:

Sometime Saturday night or Sunday morning, former Penn State football coach Joe Paterno died after a battle with lung cancer.  Beyond the longevity of his tenure, recent information about his handling of the Jerry Sandusky situation has obscured and clouded Paterno’s legacy. One has to wonder, though, whether Paterno would be alive today if he had been allowed to remain in his post. It isn’t a sensational suggestion: he and others addressed this very question in years past (in an article, probably in Sports Illustrated, for which I spent a good amount of time unsuccessfully searching on Sunday). The other footnote on this story right now is the mishandling of the death announcement by the media– particularly CBS Sports, which lifted a premature story without attribution from Onward State, a PSU student site, and then attempted to blame that site when the error was revealed.

Sunday featured the NFL playoffs’ final four and saw New England and New York advancing to the Super Bowl. In each game, the losing team appeared to be in control at the end, only to commit crippling special teams errors that delivered the victory to their opponent. When the teams meet in the Super Bowl, Eli Manning will have the opportunity to double his brother’s championship total, while Tom Brady could join Terry Bradshaw and Joe Montana as the only quarterbacks to win four Super Bowls. Super Bowl XLVI will be a rematch of Super Bowl XLII, which the Giants won 17-14, thanks in large part to a fourth-quarter catch by WR David Tyree.

In the Australian Open, Serena Williams lost 6-2, 6-3 to Ekaterina Makarova. Williams was the last American alive in the tournament.

It’s all over for Joe Paterno

Sixty-one years of coaching end like this, what Deadspin calls Joe Paterno’s Nixon-boarding-a-helicopter moment:

Here’s video of the strange press conference at which Paterno’s firing was announced:

EDSBS has a “transcript” of that press conference.

Videos of the student riots are not difficult to locate.

Joe Paterno to retire at season’s end

ESPN reports:

Penn State football coach Joe Paterno has decided to retire at the end of the season, according to a person familiar with the decision.

Paterno will announce his retirement later Wednesday. The Associated Press reported on Paterno’s pending retirement, which has been confirmed by ESPN sources.

Sources have told ESPN that Paterno is planning to coach the 12th-ranked Nittany Lions in Saturday’s home game — their last home game of this season — against No. 19 Nebraska.

For many, this is not soon enough, and it is at least a little difficult to understand why Paterno will be in the stadium this weekend. The burden would appear to be on Penn State to justify why he should be coaching this weekend, rather than on others to say that he should not. Given that most people who’ve watched a Penn State game in the last two or three years probably think that Paterno doesn’t do much during the games anyway, some sort of paid administrative leave for a week seems like a measured, reasonable approach. The program already is in turmoil over the underlying incident regardless, and a decision like that buys the school and the coach some time to get their acts together, something they’ve largely failed to do to this point.

In examining legacies, it strikes me that it must be very difficult for a longtime, successful coach to step away on his own terms. Paterno’s coaching peer, former Florida State coach Bobby Bowden, was forced out by his school before he was ready to leave, and Bowden was knocked out of his fairly tight race with Paterno for most career wins as a head coach due to NCAA violations that forced FSU to vacate wins. While the wrongdoing alleged to have occurred in Happy Valley is different in kind from the NCAA violations in Tallahassee, it is worth noting those similarities that do exist between the departures of these two coaches.

Growing Up Penn State (via Grantland)

I can’t add a lot to what’s been written about the facts of the burgeoning scandal at Penn State, except to tell you how strange it feels to type the phrase “burgeoning scandal at Penn State.” I know that I’m in denial. I know that I’m working through multiple layers of anger and disgust and neurosis and angst. I know that I’m too emotionally attached to the situation to offer any kind of objective take, though I don’t think I realized how emotionally attached I was until this occurred. I never understood how much of an effect both football and a sense of place had on my persona. I apologize if what follows seems disjointed, because I am still coming to terms with the fact that this is real. “What can I say?” my mom wrote me from State College on Monday afternoon. “We’re sort of going around in a daze.”
. . .
I have two close friends, a husband and wife, both alums, who moved to State College from New York City a few years ago. They did this because they couldn’t afford to raise children in Manhattan, but they also did it because he couldn’t imagine a safer place to raise their kids than a little town in a valley situated three hours from everywhere. I don’t know what it feels like to grow up there now. I want these things to disappear from my consciousness, but they won’t. The place where I grew up is gone, and it’s not coming back. … Read More

(via Grantland)