American Needle's Lesson for the New Jersey Sports Wagering Case

News broke late last Friday that the U.S. Court of Appeals for the Third Circuit had denied New Jersey's request for an en banc hearing in the on-going sporting wagering lawsuit.  After losing at both the District Court and Court of Appeals level, the state is now down to its last option - the U.S. Supreme Court.  Previous statements from the New Jersey side indicated that Gov. Chris Christie is inclined to take the case to the Supreme Court.  If so, the state will file a petition for writ of certiorari within the next 90 days.  Like all petitions, the chances that the Supreme Court opts to take the case are slim.

If New Jersey does indeed seek review by the Supreme Court, the conventional wisdom is that the sports league plaintiff quintet (NCAA, NBA, NFL, NHL, and MLB) would oppose review by SCOTUS given that the leagues have already prevailed twice earlier.  Such opposition could manifest itself in one of two ways: (i) by filing a motion in opposition to New Jersey's petition or (ii) by doing nothing.  However, as we learned in the American Needle v. NFL, et al case several years ago, there is a third option - the sports leagues could join New Jersey in seeking review by the Supreme Court.

Recall the American Needle case single entity antitrust case and its procedural history.  The NFL and its co-defendants prevailed at both the District Court and Seventh Circuit Court of Appeals before moving to the Supreme Court in 2010.  Nevertheless, the NFL decided to request review at the highest level.  In relevant part, here is what the league wrote in their pleading -

"The NFL Respondents are taking the unusual step of supporting certiorari in an effort to secure a uniform rule that (i) recognizes the single-entity nature of highly integrated joint ventures and (ii) obviates the uncertainty, chilling effects, and forum shopping that inevitably result from the current conflict among the circuits."

In other words, the NFL desired the Supreme Court to memorialize their earlier court victories.  With Minnesota and California promulgating sports betting-related legislation and watching the New Jersey case closely, it is possible that the NCAA-NBA-NFL-NHL-MLB plaintiffs may opt to follow the same appellate strategy now.  While the Third Circuit's decision regarding PASPA constitutionality is persuasive nationwide, only a Supreme Court decision would be binding in every circuit. 

Instances of a prevailing party seeking further review of a case are exceedingly rare.  Nevertheless, given the recent history of it happening in another high-profile case involving one of the same litigants, it is a (remote) possibility worth being aware of.

University of Chicago 4th Annual Sports Symposium

This Friday, November 15, 2013, the University of Chicago Booth School of Business will host its Fourth Annual Sports Symposium, organized by the School's Media, Entertainment & Sports Group (MESG).  Panelists throughout the day will be coming in from the Chicago Bulls, Chicago Fire, Chicago Sky, Cleveland Browns, St. Louis Cardinals, Boston Red Sox, Baltimore Orioles, Gatorade, Intersport, and the Chicago Cubs.  Panel topics include: navigating front office management of professional teams, the increasing role of analytics in sport, and the growth of digital marketing.

I will be moderating the legal panel entitled: "The Impact of Increased Litigation in Sports."  We anticipate covering a number of topics from the concussion lawsuits to the student-athlete likeness litigation to doping.  Our panelists follow:

• Bobby Hacker, VP of Business and Legal Affairs, Fox Sports
• Jill Bodensteiner, Sr. Associate AD, University of Notre Dame
• Todd Henderson, Professor, University of Chicago Law School
• Michael LeRoy, Professor, University of Illinois College of Law and School of Labor Relations
• Michael Siegel, Player Agent, Siegel Sports
• Daniel Gandert, Professor, Northwestern Law School

Please come by if you are in the area.  More details can be found through the hyperlink above.

Do Conflict of Interest Rules Prohibit the NFLPA from Representing Both Jonathan Martin and Richie Incognito?

The following post is written by Joseph Kohm, Jr., an attorney and agent at Diakon Baseball Group in Virginia. Kohm represents, among others, Blue Jays All-Star pitcher Steve Delebar.  Kohm has also taught sports law at Regent University School of Law and in the late 80s played on Syracuse's men's basketball team.  We're pleased to have Joe's contribution.  He also authored the Sports Law Blog post titled What if Rick Pitino Had Been A Woman? in 2009.  -- Mike McCann

* * * 

It was interesting to watch NFLPA head DeMaurice Smith tell ESPN’s Stuart Scott before Monday night’s Dolphins-Buccaneers game that the Players Association could adequately represent the interests of both Jonathan Martin and Richie Incognito without a conflict of interest. NFL Commissioner Roger Goodell likes to wield the league’s Personal Conduct policy like the sword of Damocles and based on the limited information that has been made public to date, both players could be subject to discipline. Under general labor law principles, it is conceivable that the NFLPA could claim to represent both players. As the designated bargaining unit for the players, the union has the duty of fair representation. A breach of the duty of fair representation occurs when a union’s conduct toward a member is arbitrary, discriminatory, or in bad faith. I am assuming that this is the lens through which the NFLPA is viewing their role.

However, DeMaurice Smith is a lawyer, and I am guessing that many at the NFLPA are lawyers. As such, their conduct should be governed by conflict rules consistent with Model Rule of Professional Conduct 1.7, which states, “… a lawyer shall not represent a client if the representation involves a conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client…” As this matter progresses, how could both players be assured that the union could aggressively pursue a course of action to seek justice for an aggrieved player, yet vigorously defend the interests of an accused player during an investigation, or a punished player through the appeals process? Even with the consent of both Martin and Incognito, I do not see how the NFLPA jumps over the hurdle in the exception provision of the Rule that permits representation if, “ the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal…”

One possible solution would be to have the NFLPA appoint an experienced union leader from another sport to represent the interest of either Martin or Incognito in the very limited scope of matters pertaining to or arising out of the events in this case. Don Fehr would seem to be the likely choice. This way, the NFLPA avoids any hint of bias and both Jonathan Martin and Richie Incognito are assured that they will receive the full scope of the rights and benefits they are entitled to under their Collective Bargaining Agreement.

Joseph Kohm, Jr.

Would You Join a College Players' Association?

The legal aftermath of Judge Wilken's certification order in O'Bannon v. NCAA takes a new twist with formation efforts for a college players' trade association.  Here's my take for Sports Illustrated.

Partial Certification in O'Bannon v. NCAA

I have a new article for SI.com on Judge Wilken partially certifying the class action lawsuit brought by Ed O'Bannon, Sam Keller and other former and current student-athletes.  Short take: her order is great news for future and current student-athletes, not so great news for former ones.

ASU 4th Annual Conference on Sports and Entertainment Law

I am looking forward to returning to speak at The Sandra Day O’Connor College of Law at Arizona State University for its 4th Annual Conference on Sports and Entertainment Law this Saturday, November 9th, 2013 from 9am – 4pm, followed by a reception for all attendees and speakers.  The Conference will take place at Arizona State University Memorial Union, Arizona Ballroom 221 (2nd Floor), 1290 S. Normal Ave., Tempe, AZ, 85287.  CLE credit is available for attorneys, including Ethics credit.  The Keynote Presentation will be given by Bud Selig, the Commissioner for Major League Baseball. 

Panel topics include:

• Agency –Sports and Entertainment Joint Panel
• Athlete Personal Website and Social Media Issues
• Music Rights and Copyright
• Licensing, Sponsorship, and Endorsement Agreements
  –with a mock negotiation
• Major League Baseball and Olympic Steroid and Drug Testing

Panelists include:

• Caleb Jay (Associate General Counsel, Arizona Diamondbacks)
• Gary Marchant (Faculty Director & Faculty Fellow, Center for Law, Science & Innovation)
• Steve Adelman, Venue Safety Expert, Adelman Law Group, PLLC
• Scott Peters, Safe Football LLC, former NFL and ASU Athlete

·       Gregg Goldman, 29th Drive

• Rodney Smith (Distinguished Professor of Law & Director, Center for Sports Law & Policy, Thomas Jefferson School of Law)
• Marc Edelman (Associate Professor of Law at the Zicklin School of Business, Baruch College, City University of New York & Professional Sports and the Law, Fordham University School of Law)
• James M. Marovich (The Marovich Law Firm, PLC)
• Mark Conad (Associate Professor & Acting Area Chair for Law & Ethics, Director of the Sports Business Specialization, Fordham University)
• Travis Leach (Partner, Ballard Spahr LLP)
• Timothy Liam Epstein (Partner/Chair, Sports Law Group at SmithAmundsen; and Adjunct Prof. of Law at Loyola University Chicago School of Law)
• Jason Belzer (Founder, Global Athlete Management Enterprises, Inc. & Writer for Forbes)
• Sam Renaut (Certified NFL Player Agent)
• Stephen Webb (Executive Director of Athletic Compliance, Arizona State University Sun Devil Athletics)
• Jaia Thomas (Sports & Entertainment Attorney, The Law Office of Jaia Thomas)
• Connie Mableson (Intellectual Property, Business, & Entertainment, Mableson Law Group, PLLC)
• Elissa Hecker (Entertainment & Business Attorney, The Law Office of Elissa D. Hecker)
• Debbie Spander (Sports & Emerging Media Attorney, Spander Digital Sports & Entertainment)
• Stephen Nebgen (Entertainment & Intellectual Property Attorney, The Law Offices of Stephen Wade Nebgen, PLLC)
• Jay Raftery (Raftery Law Firm, J.L. Raftery, PC)
• Don Gibson (Founder, Kavi Sports & Entertainment)

Its always a great conference, and looking forward to having fellow Sports Law Blog contributors joining me this year.

Register at this link. 

Confronting Locker Room Bullying with Physical Violence

An interesting development in Incognito-gate yesterday, with stories that Miami Dolphins GM Jeff Ireland told Jonathan Martin's agent that Martin should punch his tormentor in the face.

One downside of punching someone in the head, of course, is that one has committed a tort: battery.  Can a person use force to defend themselves from bullying?  In my article Defense Against Outrage, I explore this very question.  I ask whether, if the bully's conduct rises to the level of extreme or outrageous conduct, a person can use physical force in "self-defense" against the emotional damage bullying can do.

Some have argued that Richie Incognito's bullying, pervasive and offensive, would rise to the level of IIED.  Would that have created a privilege to use physical violence in self-defense?