Sports Law Roundup – 12/2/2016

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:

  • 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.
    2016-mlb-cba
    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.

Sports Law Roundup – 11/25/2016

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 a short holiday week:

  • NFL head injuries: A new lawsuit, filed Monday by thirty-eight former NFL players against the league and its teams, seeks an amendment to the NFL-NFLPA collective bargaining agreement to provide for workers’ compensation benefits for CTE, the disease found in people who suffer from repeated brain trauma, for living patients, as well as loss-of-consortium compensation for their spouses. The plaintiffs, including Detroit Lions All-1990s lineman Tracy Scroggins, allege that they have symptoms of CTE. While doctors typically cannot diagnose CTE until the patient has died, allowing for a more thorough brain examination, this lawsuit shifts the focus to those demonstrating CTE symptoms while they are alive. Advances in brain-imaging technology and a newly developed blood test may provide medical support for legal claims based on “living CTE.”
  • Professional athlete Ponzi scheme: On Monday, a banker pleaded guilty to conspiracy, wire fraud, and money laundering in connection with a Ponzi scheme she ran with former NFL player Will Allen designed to defraud investors with a plan to make loans to professional athletes seeking offseason financing when they weren’t receiving payments from their team salaries. The athletes’ identities are not public information, but, according to the banker, they include “the second-best player on a National Football League team, two other pro football players, two pro baseball players and a hockey player.” Allen, who already entered a guilty plea, spent more than a decade in the NFL as a defensive back for the Giants and Dolphins.

Sports court is in recess.

Sports Law Roundup – 11/18/2016

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:

  • 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.

DraftKings and FanDuel finally announce inevitable merger agreement

dk-merger

According to this morning’s press release, the two DFS companies “are merging to create a stronger entity that can focus on growing the fantasy sports market by developing new products and features, delivering enhanced user experiences and creating an overall stronger fantasy sports community, all aimed at creating a more diverse, exciting and appealing experience for fantasy sports players and sports fans generally,” which, sure.

There already was some probably unethical data sharing going on between these companies, and with the bills for difficult regulatory battles coming due, it makes perfect sense that these companies would merge. DraftKings’ CEO will become the CEO of the new company, and FanDuel’s CEO will become the chairman of the board.  The two sites will continue to operate separately through the 2017 NFL season, integrating only after the merger has cleared all regulatory hurdles and is finalized.

If you’re still playing these games without the use of a zombie computer army, well, good luck.

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Related
Lose money playing DraftKings or FanDuel? File a lawsuit.
Why I don’t gamble on sports, ep. 37

Lose money playing DraftKings or FanDuel? File a lawsuit.

Want to skip the silly personal story and get to the details? Click here.

Back in April, I deposited $10 into a new DraftKings account. I already knew I wasn’t good at sports gambling, as my record on free wagering games like ESPN’s Streak for the Cash attests, but I gave the money to DraftKings because it got me a year’s subscription to BaseballProspectus.com, something that ordinarily costs $30. I’d already won!

Having secured the benefit of my bargain, I decided to try to win my money back (in reality, a windfall) by playing some DraftKings baseball contests. I needed to turn my $10 into at least $20, that being the site’s minimum cash-out amount. (So risk-adverse am I, I didn’t want to try depositing an additional $10 to see if that would do the trick.)

Early results, like my undisciplined “strategy,” were mixed, but mostly negative, as you know because I did not appear on any commercials this fall holding a Publishers Clearing House check.

In August, FanGraphs began hosting something called SaberSim, a daily analysis of all baseball players driven by matchups and sabermetrics, all stated in terms of projected value based on the way DraftKings and FanDuel each award fantasy points. I decided to use the remainder of the MLB season to put SaberSim to the test. I’d strictly adhere to its optimized lineup, even if its counsel conflicted with my (demonstrably feeble) intuition.

Early results under the SaberSim test remained mixed but were far more positive than before. I soon climbed close– so close!– to that $20 mark. DraftKings’ transaction history log makes it difficult to track these things with precision, but at one point in late August I hit $19.40 (or so). I had one month of regular-season MLB games left to earn less than $1. I did not achieve my revised goal.

After reaching that high-water mark, results, while still mixed, turned decidedly negative, and I finished the season with $0.80, too little to enter another contest without depositing more money, something I have no intention of doing.

When I discovered SaberSim, I had visions of writing a fun post here on how best to use the new tool to make a little money in daily fantasy sports. Instead, all you get is this piddling tale.

Something you also get is a link to my latest post at TechGraphs, an overview of two new lawsuits filed against DraftKings and FanDuel by a person who lost money on both sites.

The full post is available here.

MLB fan safety lawsuit update

The latest on Payne v. MLB, about which I previously wrote, is the subject of my most recent post at TechGraphs. The league has moved to dismiss the lawsuit, which seeks increased safety netting at ballparks. Separately, MLB Commissioner Rob Manfred has made public comments on the subject that suggest that changes may be coming next season.

The full post is available here.