"First," Raiola stressed, "the IRS could argue that the sale was pursuant to bylaws and provisions which Sterling agreed to play by, rather rules being forced on Sterling."To read the rest, click here.
Articles 13 and 14 of the NBA's constitution detail an intricate procedure for owners to terminate the interest of another owner in a team. Sterling and other owners agreed to this procedure. Interestingly, the termination of Sterling's interest in the Clippers would not technically constitute a sale of the franchise. Instead, the NBA and the office of commissioner Adam Silver take control of Sterling's interest. This means the league would essentially run the Clippers, much like it ran the New Orleans Hornets after purchasing the team from George Shinn in 2010. The league would then have the choice of selling the Clippers at a price Silver deems "reasonable and appropriate." From this lens, the sale of the Clippers would not be "involuntary": Sterling would have voluntarily given his blessing to a procedure later used to oust him. Sterling (and perhaps the NBA) would be subject to capital gain taxes in this scenario.
Kamis, 08 Mei 2014
Involuntary Conversion tax benefit for Donald Sterling? Think again
Some media commentaries have suggested that Donald Sterling, if forced to sell the Clippers, would be able to avoid taxes under federal tax law which permits taxpayers to avoid capital gain taxes for "involuntary conversions." In a new article for SI.com, I interview CPA and sports tax expert Robert Raiola, who explains why those commentaries are likely wrong. Here's an excerpt:
Donald Sterling and free speech
There have been scattered rumblings about the problem of the NBA sanctioning Donald Sterling for protected, although offensive, speech. Obviously, this is not a First Amendment problem, since the NBA is a wholly private actor. But we might call it a free speech problem, in that Sterling did suffer a sanction for expressing his opinions. And because it may be difficult to draw the line between this case and people speaking on other matters of people controversy (marriage equality, gay rights, abortion, whatever) and possibly offending someone, the specter of league-imposed suspensions for political speech looms.
Mike Dorf looks for a principled line and finds it in a broad conception of harassment, such that once Sterling's racist views became public, his continued position as owner "created a kind of hostile work environment." While this is not enough to violate Title VII, Dorf argues that private firms often adopt prophylactic policies that go beyond what the law requires. He thus urges the NBA to defend the punishment on those grounds, rather than on his offensive speech simpliciter.
There is an appeal to this view, especially as a post hoc explanation for what the league did and as a way to isolate what Sterling did as something unique. But I wonder if the principle can be easily cabined. Any controversial policy could be recast as creating this sort of hostile environment--an openly LGBT player may find it hostile that the owner or a teammate contributes to anti-marriage equality causes, just as a devoutly religious player may find it hostile that a teammate opposes Christian prayer before public meetings, just as an Dominican player may find it hostile that a teammate supports heightened immigration enforcement. Maybe this is just the worst kind of slippery-slope anxiety--no league is going to suspend anyone for being involved in genuine social and political causes and we should not dignify what Sterling did by comparing it genuine political involvement. But I am not convinced Sterling (or to go back a longer time, former MLB pitcher John Rocker) only a difference of degree, not kind.
But if not Dorf's approach, then what?
One possibility is to try to distinguish speech (and wrongful non-speech activities) that genuinely relates to one's part or role on a team and in the league from speech that does not, with only the former providing a basis for league sanction. I thought about a version of this in thinking about what the league should have done a decade ago with the various racialized civil actions Sterling was involved in.
Now, this may not be any better, since it does not necessarily avoid those same line-drawing problems. Just as a league always can say X's involvement in a hot-button political controversy "creates a kind of hostile work environment," so can a league always say X's involvement in a hot-button political controversy relaates to his role on the team (often by throwing out the buzzword of creating "distractions in the lockerroom"). This saves us having to define and develope a new concept such as "kind of hostile work environment." But we still have to figure out what "genuinely relates" to one's role on the team. Another approach is for private entities to import some kind of Pickering balance, although that remains squishy and malleable enough to still cause problems.
None of this changes my basic view that the NBA has the authority to force the sale (and probably to suspend) Sterling and that these sanctions should hold up if/when he challenges them in court. But Dorf is onto something about not what the league can do, but what it ought to do.
Mike Dorf looks for a principled line and finds it in a broad conception of harassment, such that once Sterling's racist views became public, his continued position as owner "created a kind of hostile work environment." While this is not enough to violate Title VII, Dorf argues that private firms often adopt prophylactic policies that go beyond what the law requires. He thus urges the NBA to defend the punishment on those grounds, rather than on his offensive speech simpliciter.
There is an appeal to this view, especially as a post hoc explanation for what the league did and as a way to isolate what Sterling did as something unique. But I wonder if the principle can be easily cabined. Any controversial policy could be recast as creating this sort of hostile environment--an openly LGBT player may find it hostile that the owner or a teammate contributes to anti-marriage equality causes, just as a devoutly religious player may find it hostile that a teammate opposes Christian prayer before public meetings, just as an Dominican player may find it hostile that a teammate supports heightened immigration enforcement. Maybe this is just the worst kind of slippery-slope anxiety--no league is going to suspend anyone for being involved in genuine social and political causes and we should not dignify what Sterling did by comparing it genuine political involvement. But I am not convinced Sterling (or to go back a longer time, former MLB pitcher John Rocker) only a difference of degree, not kind.
But if not Dorf's approach, then what?
One possibility is to try to distinguish speech (and wrongful non-speech activities) that genuinely relates to one's part or role on a team and in the league from speech that does not, with only the former providing a basis for league sanction. I thought about a version of this in thinking about what the league should have done a decade ago with the various racialized civil actions Sterling was involved in.Now, this may not be any better, since it does not necessarily avoid those same line-drawing problems. Just as a league always can say X's involvement in a hot-button political controversy "creates a kind of hostile work environment," so can a league always say X's involvement in a hot-button political controversy relaates to his role on the team (often by throwing out the buzzword of creating "distractions in the lockerroom"). This saves us having to define and develope a new concept such as "kind of hostile work environment." But we still have to figure out what "genuinely relates" to one's role on the team. Another approach is for private entities to import some kind of Pickering balance, although that remains squishy and malleable enough to still cause problems.
None of this changes my basic view that the NBA has the authority to force the sale (and probably to suspend) Sterling and that these sanctions should hold up if/when he challenges them in court. But Dorf is onto something about not what the league can do, but what it ought to do.
status within the Clippers organization created a kind of hostile environment - See more at: http://verdict.justia.com/2014/05/07/limiting-principle-donald-sterling-case#sthash.d6L4K1IG.dpuf
Although the immediate predicate for disciplining Sterling was the recording of his racist comments, he was not - See more at: http://verdict.justia.com/2014/05/07/limiting-principle-donald-sterling-case#sthash.d6L4K1IG.dpuf
Although the immediate predicate for disciplining Sterling was the recording of his racist comments, he was not—or should not have been—disciplined merely because he held racist views. He was disciplined because once those views were made public, his status within the Clippers organization created a kind of hostile environment. - See more at: http://verdict.justia.com/2014/05/07/limiting-principle-donald-sterling-case#sthash.d6L4K1IG.dpuf
Although the immediate predicate for disciplining Sterling was the recording of his racist comments, he was not—or should not have been—disciplined merely because he held racist views. He was disciplined because once those views were made public, his status within the Clippers organization created a kind of hostile environment. - See more at: http://verdict.justia.com/2014/05/07/limiting-principle-donald-sterling-case#sthash.d6L4K1IG.dpuf
Although the immediate predicate for disciplining Sterling was the recording of his racist comments, he was not—or should not have been—disciplined merely because he held racist views. He was disciplined because once those views were made public, his status within the Clippers organization created a kind of hostile environment. - See more at: http://verdict.justia.com/2014/05/07/limiting-principle-donald-sterling-case#sthash.d6L4K1IG.dpuf
Although the immediate predicate for disciplining Sterling was the recording of his racist comments, he was not—or should not have been—disciplined merely because he held racist views. He was disciplined because once those views were made public, his status within the Clippers organization created a kind of hostile environment. - See more at: http://verdict.justia.com/2014/05/07/limiting-principle-donald-sterling-case#sthash.d6L4K1IG.dpuf
Ken Feinberg discusses the Former College Athletes Players Association
I had the honor of interviewing famed mediator Kenneth Feinberg for his role in the Former College Athletes' Association, an organization that would distribute money to former college athletes should the O'Bannon and related litigation prevail or lead to a settlement. Here's my interview for SI.com.
Here is an excerpt:
The distribution of funds by the FCAA to former college athletes would require formulas, and Feinberg says those formulas, along with associated bylaws and regulations, are "still in development." In other distributions supervised by Feinberg, individuals and businesses have been awarded different amounts of money depending on such factors as type of injury suffered, proximity to the harm, loss of revenue pegged to prior years' averages and quality of supporting documentation. As an illustration, business geographically closer to oil spills have received more money because of proximity, but their type of harm and prior earnings matter, too.
Feinberg has generally received praise for developing formulas that balance equity and fairness, although some have complained his methodologies are too rigid. No matter what formulas are used, some do better than others. The same would be true of former college athletes should they be entitled to compensation. Some would do better than other former players and some would likely complain. Potential factors for formulas are numerous and may include type of sports played, playing time, team and individual exposure on television, statistical performance and public recognition.
Along those lines, it is possible that college athletes at big-time sports schools would receive more from the FCAA after college. This could provide a recruiting advantage for coaches at big time sports schools when recruiting star high school athletes. It is important to stress, however, that until formulas are finalized and revealed, it is difficult to know their possible impact on college sports. Feinberg emphasizes that the FCAA would be "fair" in distributing any money.
Rabu, 07 Mei 2014
My kind of blog
Welcome to Full Court Press--A Blog on Sports and the First Amendment, run by the law firm of Levine, Sullivan, Koch & Schulz, a firm specializing in entertainment, media, IP, and First Amendment law. The introductory post rejects the hand-wringing over Donald Sterling's supposed privacy interests.
Worth adding to your bookmarks.
Worth adding to your bookmarks.
Selasa, 06 Mei 2014
The Nation Turns to SLB Contributors for Legal Analysis!
Not surprising, Sports Law Blog contributors have been instrumental in providing their expert legal analysis on the NBA events surrounding Donald Sterling's comments and Commissioner Adam Silver's response. Here's a brief summary of some of the contributions many of us have made in the past week:
MICHAEL McCANN, UNIVERSITY OF NEW HAMPSHIRE
Michael McCann, of the University of New Hampshire School of Law, provided the initial legal analysis as a result of his work for Sports Illustrated. Mike authored two outstanding articles that have been widely discussed, quoted and cited. Mike, quite frankly, shaped the legal debate on this story.
What's Next for NBA in Donald Sterling Fight? (April 26, 2014)
Donald Sterling, NBA Set for Epic Legal Battle (April 29, 2014)
Additionally, it's virtually impossible not to change channels and see Mike on the news. Here's his YouTube channel which provides links to the TEN times he's been on national television in the past week. Of course he's really skimming the bottom of the coverage when he appears on CNN, The Today Show, MSNBC and PBS News Hour.
NPR, All Things Considered
Mike has also authored an essay that will run in this week's issue of Sports Illustrated on the Sterling scandal and the NBA's reaction. The magazine hits the newsstands today.
GABE FELDMAN, TULANE UNIVERSITY
Gabe Feldman, of Tulane University's Law School, has been all over the media as well. Here's just a sampling of his television appearances.
Marc Edelman, of the Zicklin School of Business, Baruch College, City University of New York, contributed the following:
Television:
CNN (May 3, 2014)
Article:
WARREN K. ZOLA, BOSTON COLLEGE
MICHAEL McCANN, UNIVERSITY OF NEW HAMPSHIRE
Michael McCann, of the University of New Hampshire School of Law, provided the initial legal analysis as a result of his work for Sports Illustrated. Mike authored two outstanding articles that have been widely discussed, quoted and cited. Mike, quite frankly, shaped the legal debate on this story.
What's Next for NBA in Donald Sterling Fight? (April 26, 2014)
Donald Sterling, NBA Set for Epic Legal Battle (April 29, 2014)
Additionally, it's virtually impossible not to change channels and see Mike on the news. Here's his YouTube channel which provides links to the TEN times he's been on national television in the past week. Of course he's really skimming the bottom of the coverage when he appears on CNN, The Today Show, MSNBC and PBS News Hour.
NPR, All Things Considered
Mike has also authored an essay that will run in this week's issue of Sports Illustrated on the Sterling scandal and the NBA's reaction. The magazine hits the newsstands today.
GABE FELDMAN, TULANE UNIVERSITY
Gabe Feldman, of Tulane University's Law School, has been all over the media as well. Here's just a sampling of his television appearances.
MSNBC, Jansing & Co.
MSNBC, The Last Word
CNN, The Lead:
NBC, The Today Show
I've given up trying to locate ALL of the other media impressions Gabe has made this week....
MARC EDELMAN, BARUCH COLLEGE, CUNY
MARC EDELMAN, BARUCH COLLEGE, CUNY
Marc Edelman, of the Zicklin School of Business, Baruch College, City University of New York, contributed the following:
Television:
CNN (May 3, 2014)
Article:
Quotes:
Radio interviews:
89.3 KPPC (Southern California) (Apr. 28, 2014) (audio link)
KABC (California) (Apr. 30,2014) (link to download)
590 The Fan (Toronto) (Apr. 29, 2014) (from Soundcloud)
WARREN K. ZOLA, BOSTON COLLEGE
So, if Mike, Gabe and Marc's phones were all busy, or they were live on the air, the media found me a few times. Most importantly, and I did trump the others in PR for The Sports Law Blog, was my appearance on MSNBC where my caption indicated my relationship with The Sports Law Blog and NOT Boston College. [You'll also note I've been "banned for life."
I was also on the radio 89.3KPPC (Southern California) (April 30, 2014) and Huff Po Live on April 30, 2014. I'll skip posting my various quotes on the topic because, at this point, you've got the message: the nation turns to the Sports Law Blog contributors for their analysis!
Kamis, 01 Mei 2014
Two additional thoughts on the Donald Sterling suspension
Yesterday I questioned the precise basis for the NBA's suspension of Clippers owner Donald Sterling. On further reflection, I want to consider some additional interpretive points.
First, I noted that the NBA Constitution and By-Laws contain two provisions--Article 35A(c) allows for a fine of up to $ 1 million for statements prejudicial or detrimental to the league and Article 35A(d) allows for a suspension and/or a fine of up to $ 1 million for conduct prejudicial or detrimental to the league. Commissioner Adam Silver must have relied on 35A(d), since 35A(c) does not allow for a suspension. But I questioned that usage. Sterling's misdeeds involved statements and the existence of distinct prohibitions--one regulating conduct and one regulating statements--suggests that the statement-specific provision should have been used here, which would make the suspension inappropriate.
But now I am wondering whether I am reading 35A(c) incorrectly. Perhaps the "statements" it prohibits are those that directly criticize the league or something about the league, for example game officiating (many a fine has been imposed on a coach or owner for doing that). But it does not reach statements about something else that, because of their viewpoint, happen to make the league look bad. That would instead be treated as "conduct" and pulled back within the more-general regulation of 35A(d).
Second, I am wondering if Silver simply jumped to the catch-all power of Article 24(l) to make decisions and impose punishments in the best interests of the NBA for all three sanctions, ignoring anything in Article 35A. Article 24(l) allows for a range of penalties, including suspension and a fine up to $ 2.5 million. If so, it brings to even sharper light the question of how he could do that, since, again, 24(l) only operates when "a situation arises which is not covered in the Constitution and By-Laws." This means Silver should have at least glanced at 35A(c) and/or (d), which do seem to cover this situation.
First, I noted that the NBA Constitution and By-Laws contain two provisions--Article 35A(c) allows for a fine of up to $ 1 million for statements prejudicial or detrimental to the league and Article 35A(d) allows for a suspension and/or a fine of up to $ 1 million for conduct prejudicial or detrimental to the league. Commissioner Adam Silver must have relied on 35A(d), since 35A(c) does not allow for a suspension. But I questioned that usage. Sterling's misdeeds involved statements and the existence of distinct prohibitions--one regulating conduct and one regulating statements--suggests that the statement-specific provision should have been used here, which would make the suspension inappropriate.
But now I am wondering whether I am reading 35A(c) incorrectly. Perhaps the "statements" it prohibits are those that directly criticize the league or something about the league, for example game officiating (many a fine has been imposed on a coach or owner for doing that). But it does not reach statements about something else that, because of their viewpoint, happen to make the league look bad. That would instead be treated as "conduct" and pulled back within the more-general regulation of 35A(d).
Second, I am wondering if Silver simply jumped to the catch-all power of Article 24(l) to make decisions and impose punishments in the best interests of the NBA for all three sanctions, ignoring anything in Article 35A. Article 24(l) allows for a range of penalties, including suspension and a fine up to $ 2.5 million. If so, it brings to even sharper light the question of how he could do that, since, again, 24(l) only operates when "a situation arises which is not covered in the Constitution and By-Laws." This means Silver should have at least glanced at 35A(c) and/or (d), which do seem to cover this situation.
NCAA-barred Tressel, seeking university presidency, to host live forum
Former OSU football coach Jim Tressel is a candidate for the presidency at the University of Akron, where he currently works in a non-sports role. Today he will be participating in an open forum from 1:30-2:30 pm EST, which will be streamed live and posted on the Akron search page: http://www.uakron.edu/bot/visit.dot#t
Tressel is one of three finalists; he is also one of five finalists for the presidency at Youngstown State, where he coached before his move to Columbus.
Tressel is one of three finalists; he is also one of five finalists for the presidency at Youngstown State, where he coached before his move to Columbus.
Langganan:
Postingan (Atom)