The NCAA’s response to Georgia’s new NIL law reveals the emperor’s new clothes

Earlier today, the State of Georgia enacted HB 617, which affirmatively permits college athletes attending schools in that state to receive financial compensation for use of their name, image, or likeness (“NIL”). The new law takes effect on July 1, 2021.

In a nationwide environment in which the NCAA broadly prohibits almost every form of direct financial compensation to so-called “student athletes,” emerging state laws like Georgia’s HB 617– other states joining in this initial wave include Alabama, Florida, Mississippi, and New Mexico– offer a commonsense middle ground on compensation that’s short of revenue sharing with school athletic departments and would seem to place schools in those states at a competitive recruiting advantage, at least in the short term.

The NCAA’s initial response to what appears to be a broadside attack on one of the governing body’s longstanding, core tenets was surprising. Jere Morehead, a member of the NCAA Board of Governors “said he would expect the NCAA would allow ‘accommodations,’ to be made for athletes in states with NIL rules.” Morehead also is the president of the University of Georgia, so this may not be the NCAA’s official position on state NIL laws. If the “accommodations” comment reflects in any way the thinking within NCAA leadership, though, it is extremely illuminating.

It’s easy to forget that athletics organizing entities, and especially in light of their popularity and rhetoric the NCAA, NFL, and MLB, do not act and regulate their respective sports with the force of actual law. (In fact, they in some sense operate outside the law thanks to formal and informal antitrust exemptions.) During baseball’s meltdown over Barry Bonds’ superhuman ascension in the early aughts, you could be forgiven if you weren’t sure whether steroids were illegal illegal or merely MLB “illegal.” The NFL also has done an effective job of coopting this officious language into its in-sport vernacular as well (e.g., “illegal touching” having quite different meanings on and off the field). All of these groups have “committees” that issue “rules” and “regulations” just like real government agencies!

For the degree to which these private sports administrative entities control the behavior of their subject players as well as the general public’s perception of the goings-ons in and around their games, it’s sort of amazing that states could just opt out of a major NCAA prohibition and the NCAA’s response is to roll over and take it. Not that passing legislation is easy, but is this all that was needed all along?

If the NCAA’s “accommodations” response proves real, it could carry widespread consequences for the enforceability of other NCAA rules. Suddenly, the implication is that the NCAA will yield wherever its policies conflict with state law. Does this mean an end to the NCAA’s punishment of athletes who use marijuana in states that have authorized its use? What about sports wagering? There of course are other actual legal factors at work with those two examples (the persistent federal marijuana prohibition and common legal provisions restricting wagering by contest participants), and it’s unclear whether an affirmative legalization is a prerequisite (e.g., was Todd Gurley prohibited from being paid for autographed helmets as a matter of Georgia law?) . Still, Morehead’s suggestion that the NCAA will quietly accede in this area implies that there actually may not be much brute behind the bluster out of Indianapolis. If that’s the case, it’s a welcome– if still annoyingly executed– development that should further hasten the loosening of the NCAA’s iron fist over those whose efforts generate millions of dollars in administrative salaries.

A predictable turn in the ongoing saga of Charlie Blackmon’s 1979 Pontiac Trans Am

The end of the first month of the 2021 MLB season finds the Colorado Rockies stuck in last place in the National League’s Western Division. By OPS+, they’re the worst hitting team in the NL and the second-worst overall, their 85 OPS+ just edging the Detroit Tigers at 81 OPS+. Even though the Rockies were in the playoffs as recently as 2018, their slow start this year already has cost Jeff Bridich his general manager post. Perhaps unsurprisingly in light of the foregoing, Charlie Blackmon, the team’s ostensible star, so far is having the worst season of his career. His .169/.299/.292 line shakes out to 58 OPS+/56 wRC+/108 DRC+.*

Meanwhile, the winding road that conveys the legal saga of Blackmon’s 1979 Pontiac Trans Am– a story that remains too hot for any other website to cover– may be approaching its terminus. We picked up the tale as it hit the courthouse steps in January, when Blackmon filed suit against Michael Ramsey and his company, Ramsey Performance, alleging that the two entities took his money and his car and, after failing to complete agreed-upon restoration work on the latter, refused to return either. When Ramsey declined to hire a lawyer and instead made a “Good Job/Good Effort” attempt to respond to Blackmon’s complaint by filing only a copy of the complaint bearing Ramsey’s handwritten comments on the allegations, I predicted that Blackmon’s legal team would wait a few weeks and then file a motion for default judgment or judgment on the pleadings.

That’s exactly what happened. Referring to Ramsey’s unusual filing as “a something,” Blackmon’s motion asked the Superior Court of Cherokee County, Georgia to take a shortcut to the end of the lawsuit. Ramsey’s response either was so deficient that it didn’t amount to an answer at all, the essence of the argument goes, or it was an answer that didn’t deny any of the material allegations in the complaint. Either way, Blackmon contended that the court can rule for him on the question of the defendants’ liability right now. The question of damages– basically, the amount of money the court would order paid to Blackmon– could throw a wrench into Blackmon’s gears, however. Because he hasn’t been able to inspect the vehicle, the motion proposes the appointment of a special master– an investigator who works at the judge’s direction– to provide an assessment of the Pontiac’s condition for the purpose of determining a precise monetary award.

If Ramsey’s response to this motion is better than his response to the complaint, it is so only because he typed it as a partially separate document rather than handwriting his comments on Blackmon’s filing. This response otherwise is worse than the last one. Continuing to represent himself, Ramsey complains that Blackmon refused an out-of-court resolution of the dispute on terms Ramsey dictated. Ramsey also provided in-line responses to some of the arguments in Blackmon’s default motion, though these generally do not help his position, being either admissions of matters pertinent to the question of default (e.g., acknowledgement that he was served with the complaint) or immaterial. He also attached correspondence that again reveals Blackmon’s personal email address (although Blackmon’s own lawyer already let that cat out of the bag) and is neither relevant nor, to the extent it constitutes settlement communications, admissible as evidence.

Next up will be the trial judge’s ruling on the default motion. Judge Cannon certainly has plenty of latitude to grant a default judgment in Blackmon’s favor here. The easiest part to resolve should be a ruling on the question of a default judgment against Ramsey’s company, which, in Georgia, must be represented by a lawyer. Apparently open questions about the precise nature of the remedy or remedies Blackmon seeks (e.g., Does he just want his car back? Does he want money from Ramsey, and, if so, exactly how much?) may complicate the situation for Blackmon, however, and complications and uncertainties usually are not helpful to a party seeking entry of a default judgment.

Those, of course, are matters for Blackmon’s legal team to sweat. Their client likely is more concerned about his sub-.200 batting average and his team’s NL-worst record.

As always, keep your browser dialed to ALDLAND.com, where we remain your (actually; I somehow am not kidding) exclusive source for hot rod baseball litigation.

* All statistics current as of the time I typed them.

_________________________________________________________

Previously
A reminder that it’s spring training for automotive shop workers too: The ongoing saga of Charlie Blackmon’s 1979 Pontiac Trans Am
The ongoing saga of Charlie Blackmon’s 1979 Pontiac Trans Am

A reminder that it’s spring training for automotive shop workers too: The ongoing saga of Charlie Blackmon’s 1979 Pontiac Trans Am

MLB spring training kicked off this week, and the schedule included a couple of games for the Colorado Rockies, who make their spring camp in Arizona. While outfielder Charlie Blackmon has yet to make his 2021 spring debut for the Rockies, that didn’t stop his legal adversaries from making theirs on the other side of the country.

In the story too hot for any other sports website to handle, Blackmon is suing a Georgia man– Michael Ramsey– and his company– Ramsey Performance– who, Blackmon alleges, took his money to restore a 1979 Pontiac Trans Am but didn’t finish the work and now refuses to return either Blackmon’s car or his money.

Yesterday, the Superior Court of Cherokee County, Georgia finally heard from Ramsey and his company– sort of. Ramsey, purporting to represent himself and possibly his company, filed a response to Blackmon’s complaint that does not so much answer the allegations, in a conventional sense, as it does continue the long-winded, argumentative emails Ramsey had been sending to Blackmon’s agent before he filed the lawsuit. To the extent they can be distilled, the main points of Ramsey’s countering contentions are that he, personally, is not at fault because all the work was done by his company; there was no fixed schedule for this “spare time” project; the scope of and financial responsibility for work done by third parties remains Blackmon’s obligation; “the vehicle is not a hostage . . . but it will not leave without payment resolution”; a sheriff’s deputy sent to inspect the vehicle at Ramsey’s garage accidentally defrosted Ramsey’s freezer; and Blackmon’s complaint should have included more of Ramsey’s emails.

The unsolicited suggestion that Ramsey and his company should hire a lawyer isn’t merely a strategic one borne out of the thought that judges are unlikely to be swayed upon encountering filings that include both segments typed entirely in capital letters and handwritten annotations on the opposing party’s exhibits. Indeed, while Ramsey has the right to make the choice to represent himself in court, his company, Ramsey Performance, does not.

Indeed, it isn’t clear that Ramsey Performance, as the distinct legal entity that Blackmon named as a separate defendant and to which Ramsey himself pointed for potential liability, filed an answer at all. If it did not, Blackmon’s attorney likely will wait a couple weeks and then move for a default judgment against Ramsey Performance. As for Ramsey’s responsive filing, assuming it qualifies as an answer, it may be ripe for a quick motion for judgment on the pleadings or summary judgment to the extent the judge determines that it does not sufficiently deny key allegations in Blackmon’s complaint. Setting aside for a moment the possibly critical technical failings of Ramsey’s answer, it also is possible that the judge orders the parties to mediate a dispute that seemingly could be resolved for less than $20,000.

The only way to find out what will happen next? Keeping it tuned right here to ALDLAND.com, your exclusive source (seriously) for hot rod baseball litigation.

_________________________________________________________

Previously
The ongoing saga of Charlie Blackmon’s 1979 Pontiac Trans Am

The ongoing saga of Charlie Blackmon’s 1979 Pontiac Trans Am

1979 Trans Am- bought it new in April of 1979. It is an unrestored 400/4spd  car with a little… | Pontiac firebird trans am, Pontiac firebird, 1979  pontiac trans am

From MLB hot stove season to MLB hot rod season, the Superior Court of Cherokee County, Georgia brings us the tale of Colorado Rockies outfielder and four-time All-Star Charlie Blackmon‘s classic sports car. While the Sports Law Roundup is on hiatus, we’ll tackle this one in as much detail as the public record permits, because what else are we going to do during Pandemic Pro Bowl Weekend?

According to a complaint his legal team filed on Monday, Blackmon hired Michael Ramsey and Ramsey’s company, Ramsey Performance, to restore a 1979 Pontiac Trans Am in early 2015. Since then, Blackmon has paid Ramsey more than $50,000 and has nothing to show for it, and now he wants it back. Ramsey may have done some work on the project, but it is not complete. The allegations and written communications attached to Blackmon’s filing suggest that Ramsey even has refused to allow Blackmon to view the vehicle, much less take possession of it.

The filing includes written correspondence, mostly between Ramsey and Anna Domenech, one of Blackmon’s representatives at his sports agency, ACES. Domenech stepped in to try to retrieve her client’s vehicle. Her documented efforts over the course of most of 2020 proved unsuccessful, but they paint a picture of Ramsey as someone with other priorities and not particularly eager for real engagement with Blackmon’s people. Ramsey’s rare, often lengthy responses refer to his obligations to a software company undergoing post-merger downsizing, a matter he characterized as “my job which actually supports my family.” The emails also suggest that the restoration project became more expensive than Ramsey anticipated and required him to advance money for overruns that he wants to recover, at least in part, before surrendering the car to Blackmon.

Ramsey eventually offered a completion date of May 23, 2020. After he missed his own deadline, Blackmon hired a Georgia lawyer with experience representing sports and entertainment clients in the state to secure the vehicle’s return. In September, when Ramsey responded to the lawyer’s demand, the lawyer forwarded the response to Domenech, simply noting, “[a]t least he is alive.” Domenech replied to agree, further pointing out that the work still wasn’t done and writing, of Ramsey, “[i]f there is someone that can’t be trusted its [sic] him and he has proven that time and time again.”

Blackmon hired another Georgia lawyer who, in December, again demanded possession of the car. Ramsey responded by insisting that he be paid additional money before surrendering the vehicle:

I am more than happy to setup [sic] a review/inspection of the car, settle on what is owed based on that review, and ONLY THEN return the car to Charlie once we are both able to close this. It can only happen in that order and in that way, I will not release the car and settle later . . . . Anything owed on either side are [sic] agreed to and handled before the car leaves as once the car leaves everything is closed.

Blackmon then sought the assistance of the Cherokee County Sheriff to retrieve the car. When that effort was unsuccessful, Blackmon finally filed suit this past week against Ramsey and his company. He’s asking the court to order Ramsey to return the car or pay Blackmon the value of the car plus all materials and services for which Blackmon paid. Blackmon also is asking the court to force Ramsey to pay Blackmon’s legal expenses incurred in the case.

Ramsey has not yet filed an answer to the complaint, and his response isn’t due until at least late February.

There has been no detectable media coverage of this case, and Blackmon presumably wants it to stay that way. Nevertheless, his lawyers’ decision to leave unredacted certain personal identifying information, including Blackmon’s email address and the addresses of two of his current or former residences (one of which looks like it might be incorrect), is a footnote of minor interest pertaining to the representation of a famous client.

Born in Texas, Blackmon attended high school and colleges in Georgia before signing with Colorado as a second-round pick in 2008. Now, he’s entering what might be his final season with the Rockies (he has player options in 2022 and 2023) and looking to rebound from a slight dip, by his standards, in his eleventh year in the majors.

InDirecTV: A battle over television access to NFL games continues

Yesterday, the United States Supreme Court sat with a full bench for the first time since the passing of the long-tenured Justice Ruth Bader Ginsburg. Among other actions on Monday, the Court (Justice Amy Coney Barrett not participating) released an order in the antitrust lawsuit challenging NFL teams’ collective arrangement with DirecTV in which the former permit the latter to be the sole provider of live, out-of-market game telecasts through the NFL Sunday Ticket package.

On its face, the order is good news for those challenging that arrangement, because it allows their lawsuit to continue, letting stand a lower-court order that reversed an even-lower-court order that would have dismissed the challengers’ case.

But while the media coverage of yesterday’s order also noted the portion of the statement included with the order from Justice Brett Kavanaugh that the Supreme Court’s decision “should not necessarily be viewed as agreement with” the lower court’s decision to revive the case, I have not seen any further discussion of the entirety of Justice Kavanaugh’s statement, which goes much farther than what that out-of-context quotation might suggest.

More than a neutral, “we’re not saying one way or the other” comment, Justice Kavanaugh’s statement pours cold water on the hopes of those who saw this lawsuit as a vehicle to break up the NFL’s antiquated, frustrating, and expensive approach to delivering television access to its product. Most fundamentally, the statement suggests the possibility that the challengers may not have a right to bring their lawsuit at all: “This Court’s case law authorizes suits by direct purchasers but bars suits by indirect purchasers. The plaintiffs here did not purchase a product from the NFL or any team, and may therefore be barred from bringing suit against the NFL and its teams.” (Citations and internal quotation marks omitted.) And even if the challengers do have a right to sue, their claims may fail in substance if the NFL and its member teams are organized and operate as a cohesive legal unit:

Under the existing contract, the 32 NFL teams have authorized the NFL to sell the television rights for out-of-market games to a single buyer, DirecTV. The plaintiffs argue, and the Court of Appeals agreed, that antitrust law may require each team to negotiate an individualized contract for televising only its own games. But that conclusion appears to be in substantial tension with antitrust principles and precedents. The NFL and its member teams operate as a joint venture. And antitrust law likely does not require that the NFL and its member teams compete against each other with respect to television rights.

(Citations omitted.)

To be sure, these are the preliminary views of one justice on a nine-member court that might never see this case again. If the case does return to the Supreme Court, Justice Kavanaugh’s expressed concerns might not be relevant to the questions at issue for the Court at that time, or, if they are, they might not be shared by a sufficient number of his fellow justices to be consequential.

As the case heads back to the trial court, however, Justice Kavanaugh’s comments could prove influential and find their way into the analysis of a judge who already has shown some disinclination toward the challengers’ claims and, more certainly, the arguments of the league and teams.

DirecTV’s NFL Sunday Ticket package may survive this legal challenge, but the service separately is facing financial difficulties that could render the lawsuit practically moot. Five years after buying it for $49 billion, AT&T has been trying, unsuccessfully, to sell DirecTV as it hemorrhages subscribers, the rate of losses recently slowing only because it’s running out of subscribers to lose. With the NFL’s agreement with DirecTV set to expire in the next year or two, attrition rather than litigation might be the most fruitful course for those seeking more football-viewing options on Sunday afternoons. Stay tuned.

The week in baseball: 5/29/20

From the Increasingly Nocturnal Department:

  • I haven’t found it productive to follow each new return-to-play proposal for the 2020 MLB season in any detail, but public comments this week, especially from players including Max Scherzer and Trevor Bauer, point to the very real possibility that the entire season will be lost due to the inability of the owners and players union to reach final agreement on compensation arrangements for the year in a timely fashion. Although the calendar has not yet turned to June, keep in mind that any start date will need to allow a few weeks of lead time for pitchers to stretch out, undoubtedly among other logistical considerations. The viability of opening the season on or around July 4 therefore depends on what the sides can accomplish over the next couple of days. Of all the things Rob Manfred has screwed up in his brief tenure as MLB commissioner, the complete absence of baseball in America should other professional sports leagues find a workable way to resume action would be one of the most memorable.
  • Meanwhile, the 2020 Minor League Baseball season effectively ended this week following the announcement that teams are expected to begin releasing large numbers of players shortly. Some big-league veterans, including  Shin-Soo Choo and David Price, have responded by personally paying all of the monthly stipends of all of the minor-league players in their respective teams’ farm systems.
  • The CPBL and KBO seasons are rolling on, though a recent resurgence of COVID-19 cases in South Korea has delayed the expected return of fans to KBO stadiums. ESPN is continuing live telecasts of KBO games, often with replays on ESPN2 later in the afternoon.
  • The KBO appears to have earned itself a celebrity fan in Adam Eget, trusty sidekick of Norm Macdonald and manager of the world-famous Comedy Store, who said as much on a recent episode of Joe Rogan’s podcast. He and Rogan also discussed cults and Charles Manson, so listen at your own risk.
  • Japan’s professional baseball league, NPB, announced it will begin an abridged season on June 19. The prevalent view among those who follow foreign baseball leagues is that the NPB is the league that comes closest to MLB in terms of talent and competition levels.
  • Facing the prospect of the complete absence of MLB games this year, I’ve begun posting daily baseball landmarks that occurred on that day on ALDLAND’s twitter account. Some from the past week in baseball history, courtesy of Baseball-Reference:
    • 1904 – Dan McGann steals 5 bases in a game, a feat not matched until 1974 (Davey Lopes) or bested until 1991 (Otis Nixon, 6)
    • 1922 – Supreme Court rules baseball not subject to antitrust laws, interstate commerce regulations
    • 1925 – Ty Cobb becomes 1st major leaguer with 1,000 career extra-base hits
    • 1946 – 1st night game at Yankee Stadium
    • 1951 – Willie Mays gets his first hit, a home run off Warren Spahn
    • 1952 – Hank Aaron, then of the Indianapolis Clowns, signs with the Boston Braves
    • 1959 – Harvey Haddix pitches 12 perfect innings before an error in the 13th (“there has been never been anything like it” = more from Tim Kurkjian here)
    • 1968 – NL announces expansion to Montreal, San Diego
    • 1969 – Aaron becomes the 3rd major leaguer with 500 HR + 500 2B
    • 1976 – Pitcher Joe Niekro, batting against his brother, Phil, hit his only career home run
    • 1990 – Rickey Henderson breaks Cobb’s AL stolen-base record
    • 2004 – Mariano Rivera earns his 300th save
    • 2006 – Barry Bonds hits 715th home run
    • 2008 – Pedro Martinez, making a Single-A rehab start for the St. Lucie Mets, faces off against then-recent top pick David Price, then of the Vero Beach Devil Rays. (Price and the Rays win 2-0.) Price would make his major-league debut that September and his World-Series debut the following month.
    • 2010 – Roy Halladay pitches perfect game (ESPN is airing a program on Halladay’s career and too-short life tonight at 7:00 pm)
  • Whatever happens with baseball this year, Jersey City brewery Departed Soles wants to make sure we don’t forget what happened in the recent past, and therefore has released its newest beer, Trash Can Banger, a session IPA with a can styled after the Houston Astros’ classic 1970s uniforms. For now, the beer only is available in New Jersey.
  • Did the Astros cheat? They did. Did their cheating help? Running counter both to fan intuition and the public statements on the subject by professional pitchers, the latest look at that question, like some others before it, concludes that it didn’t make much of a difference. This analysis also set out to test Commissioner Manfred’s assertion that the Astros didn’t cheat in 2019 but was unable to reach a conclusion on that question.

California will allow college athletes to profit from endorsements under bill signed by Newsom (via Los Angeles Times)

Gov. Gavin Newsom has signed a bill that will allow California athletes to earn money from the use of their names, images and likenesses, despite warnings from the National Collegiate Athletic Assn. that the measure would upend amateur sports.

Senate Bill 206 by Sen. Nancy Skinner (D-Berkeley) garnered national attention, with athletes including NBA stars LeBron James and Draymond Green lauding the California effort to give college athletes a share of the windfall they help create for their universities and NCAA. The bill passed the state Legislature unanimously.

Newsom signed the bill on an episode of UNINTERRUPTED’S talk show The Shop with James, WNBA’s Diana Taurasi and former UCLA basketball player Ed O’Bannon, saying the new law addresses a “major problem for the NCAA.” . . .

The bill would prohibit the NCAA from barring a university from competition if its athletes are compensated for the use of their name, image or likeness beginning in 2023. NCAA rules strictly prohibit athletes from profiting in any way from their sports.

While the bill would allow athletes to sign endorsement deals with major companies, it would also open up smaller opportunities that were previously prohibited, such as paid youth coaching positions. SB 206 would still forbid schools from directly paying athletes.

The NCAA sent a letter to Newsom in September while lawmakers were mulling the bill, calling it “unconstitutional” and a “scheme.”

In September, a New York state senator introduced legislation similar to Skinner’s bill with the added provision that college athletic departments share 15% of annual revenue from ticket sales with student athletes. … Read More

(via Los Angeles Times)

Court grants broad exception to athlete liability for in-sport actions

Supreme Court of Utah: “participants in any sport are not liable for injuries caused by their conduct if their conduct was inherent in the sport.”

The court elaborated:

We think it appropriate to establish an exception to tort liability for certain injuries arising out of voluntary participation in sports. But we do not deem it appropriate to require proof that a defendant’s conduct was reckless or intentional. Nor do we think it is necessary to limit the exception to an arbitrary subcategory of “contact” sports. Instead we hold that voluntary participants in a sport cannot be held liable for injuries arising out of any contact that is “inherent” in the sport. Under our rule, participants in voluntary sports activities retain “a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.” But there is no duty to lower or eliminate risks that are inherent in an activity.

Excerpts from last week’s opinion in Nixon v. Clay, which arose out of an injury sustained in a church-league basketball game, and a link to the full opinion are available here.

March Madness on the Bench: Are judges distracted by the NCAA Basketball Tourney? (via The Volokh Conspiracy)

Past research suggests that natural preferences for leisure influence the ways in which federal judges carry out their work. We consider the extent to which incentives for leisure reduce the speed with which judges work and the quality of their output. We take advantage of a natural experiment caused by an annual sporting event that creates differential distractions across judges. Using a difference-in-differences design, among federal courts of appeals judges we show that a judge’s alma mater’s participation in the National Collegiate Athletic Association Men’s Basketball Tournament both slows the rate at which opinions are drafted and ultimately undermines the opinions’ quality, even accounting for the additional time judges spend writing them. The findings suggest that incentives for leisure influence important normative concerns for swift and high-quality justice. … Read More

(via The Volokh Conspiracy)