Selasa, 31 Desember 2013

Top 10 Sports Law Stories in 2013 & Predictions for 2014


I've authored a Top 10 Sports Law Stories of 2013 article for Sports Illustrated.  My list from 2013:

10. Chris Christie and sports betting in NJ
9. NHL concussion litigation and fighting
8. Jonathan Martin and the forthcoming Ted Wells Report
7. Lance Armstrong admits to doping and hit with lawsuits
6. NFL reaches proposed settlement in Concussion Litigation, but some retired players say no
5. Jameis Winston cleared in rape investigation, but civil lawsuits may follow
4. New Legal Strategy in Biogenesis case, but A-Rod fights back
3. Ed O'Bannon's class certified, setting table for historic trial
2. Aaron Hernandez charged with murder
1. Boston Marathon bombing

Hope you have a chance to check out my analysis and predictions.

Senin, 30 Desember 2013

Head Injuries and Baseball

I have a short piece in the December Sports Litigation Alert, called Head Injuries and Baseball. It elaborates on an exchange between Nathaniel and me on this post regarding what baseball can do about concussions.

Rooney Rule

Check out the third item ("My Pal the Tortoise") and footnote 7. If this is really how teams operate--and I have no doubt it is--then the Rooney Rule is a joke.

Minggu, 29 Desember 2013

Athlete speech and hate speech

Mike passed along this story about French soccer player Nicolas Anelka, who made a possibly anti-Semitic neo-Nazi salute after scoring a goal in an EPL game yesterday. Anelka (who converted to Islam and whose parents emigrated to France from Marinique) made the "quenelle" signal, in which the right hand is pointed downward and the left hand grasps the right shoulder. The signal, which was created by a controversial French comedian, is becoming popular among neo-Nazis and anti-Semites in France, where the Nazi salute is banned under strict hate-speech laws. The signal sort of looks like an inverted Nazi salute, but is unknown outside of France and thus allows people to express themselves without anyone out-of-the-known understanding what was being said; there have been stories and photos of people making the gesture outside Auschwitz and at the Western Wall. Anelka denies that he was doing the gesture as a racist or anti-Semitic statement and claims to be "gobsmacked" by the international uproar he has caused; he insists the gesture is "anti-system" (which I assume means anti-establishment). The English Football Association has opened an investigation.

The reaction is doubly intense here, as compared to if a U.S. athlete had done this after scoring a touchdown or hitting a home run. Europe's approach to hate speech is much different than ours (although the First Amendment would not be in play in any event). More importantly, Europe is especially sensitive to anti-Semitic and Nazi speech, given its history.

On a different part of this, on-field athlete speech is a different and interesting issue, one I hope to  examine if/when I get back to writing about the sport/speech connection. Expression--verbal and physical--is endemic to what athletes do on the field. Content aside, it is a nice question how much room sports teams and leagues should leave the players to express themselves, especially on what must be understood as political matters (even if hateful ones).

Update 12/30: The plot thickens and comes across the pond. French NBA players Tony Parker and Boris Diaw posed with the comedian who started all this while making this gesture; the photos, which are a few years old, hit the interwebs on Sunday. Parker apologized, saying he saw the gesture as part of a comedy act and only recently learned about its anti-Semitic connotations. The Simon Wiesenthal Center asked that he make a further statement, in French, directed to French Jews.

Anelka has promised not to make the gesture again.

Sabtu, 21 Desember 2013

If Facebook’s Zuckerberg Was A Sports Fan What Would He Do With His Billions In Charity?

I am not the one to tell someone how to spend his or her money. But if it is acceptable to dream about winning the lotto, it’s still OK to imagine a movie on how a nerdy Harvard dropout became the richest youngster in the world, and then had a sports epiphany. If done well, it could top Adam Sandler’s golf dreams in Happy Gilmore. So in the most unusual of dreams, and without a man-crush, and like most good comedies, there is a touch of reality.

The reality is that billionaire Zuckerberg is so rich he has a tax bill bigger than many city budgets. He has the acumen to say something like, “OK, I am not going to use my cash to pay the IRS. It hurts at a visceral level to do that – and I have choices.”  Rather, SEC filings reveal a complex transaction where he will take advantage of Facebook’s doubling in stock price since January 2013 to pay those taxes and donate to education, including the local school district around Facebook’s headquarters.  His wife is a teacher and influenced him to teach as well.

The plan is that he will exercise his options on 60 million shares, sell 41.35 million of them to pay capital gains taxes he will have on the transaction. He had the option to buy at – get this – 6 cents a share. That will net him about $1 billion.  Then by donating about 18 million shares ($990 million in value) to a nonprofit, he can save the same amount in taxes – i.e. a little-known dollar-for-dollar tax benefit under a certain adjusted gross income threshold.

But what if his passion was for sports, not teaching? Or why not a passion that weds the two? My movie (which I am writing and is already copyright protected) has him playing touch football, getting knocked unconscious, having a concussion and then having the following epiphany:

“I am providing a matching grant to the NFL, NBA, and MLB and their respective players associations if they amend their collective bargaining agreements (“CBAs”) to mandate two items noted below.

First, 10% of the player salaries will be allocated to certain education-related designated charities designed to equalize opportunities. Many inner city and Appalachian-like rural schools are severely under-resourced compared to suburban schools, with teachers buying materials from their own pockets without comparable technology.

Second, to the maximum extent permitted by ERISA laws, player salaries over a certain multi-million dollar threshold are placed in a trust fund or a vetted deferred compensation plan. That appears to be the most immediate way to reverse the sad statistic that approximately 60% of the NBA players file for bankruptcy protection after retirement. That way, the CBA can protect the athletes from themselves, and redirect their futures away from being an impending lost resource and into a future family and community asset. Hence, a burgeoning class of New Age Athletes.

These provisions are legal because the players have to agree to it, so it is voluntary. It is also likely immune from any antitrust concerns of third-party contractors who provide financial services to the players or the leagues because the clauses fall within the well-established nonstatutory labor exemptions for collectively bargained items.

Sometimes dreams come true. Even business plans start with imagination – a vision of what can be, not what already is, a reality.

Jumat, 20 Desember 2013

Video of UNH Law & Sports Illustrated Town Hall on O'Bannon v. NCAA and Future of College Sports

Last month, the University of New Hampshire School of Law's Sports and Entertainment Law Institute and Sports Illustrated co-hosted a Town Hall on the O'Bannon case and the future of college sports.  The Town Hall examined how this class action lawsuit could radically change college sports as we know it.  As you know if you've followed this case, through legal arguments sounding in intellectual property and antitrust, O'Bannon—a former basketball star at UCLA—contends that current and former Division I men's basketball and football players should be paid for their image and likeness on television broadcasts, video games, trading cards, apparel and other commercial ventures. The Town Hall also considered related cases, including Sam Keller v. NCAA and Ryan Hart v. Electronic Arts, as well as pending federal legislation in the NCAA Accountability Act. Collectively, these legal developments could lead to the compensation of college student-athletes and impact their unionization and quasi-employment rights.

The Town Hall featured some of the most influential and insightful people in college sports. It was moderated by B.J. Schecter (Sports Illustrated & SI.com executive editor and UNH Law adjunct professor of sports law and investigative reporting) and panelists were: Sonny Vaccaro (unpaid adviser to O'Bannon and leading advocate for college athletes' rights), Charles Grantham (former executive director of the National Basketball Players' Association), Alan Milstein (litigator for Allen Iverson, Carmelo Anthony, Maurice Clarett & other sports personalities), Pete Thamel (Sports Illustrated senior writer), Marty Scarano (UNH Director of Athletics), Alexandra Roberts (UNH Law entertainment law professor) and me.

The Town Hall attracted more than 140 people to attend, including students, attorneys and former basketball players, including NBA Hall of Famer and former Boston Celtics forward Satch Sanders.

On December 17, 2013, video highlights of the Town Hall and accompanying commentary were shown on SI.com.

Yesterday the complete Town Hall video was made available on Youtube.  I hope you have a chance to watch:

Senin, 16 Desember 2013

Concussion-Related Injuries (and Litigation?) Come to Major League Baseball

Media outlets reported yesterday that doctors have confirmed that former Major League Baseball player Ryan Freel was suffering from chronic traumatic encephalopathy (CTE) at the time he committed suicide last December.  Freel is the first MLB player to be diagnosed with the concussion-related disease. Prior to his death, Freel, who was known for his aggressive brand of play, estimated that he had suffered as many as 10 concussions throughout his playing career, resulting from various plays such as colliding with a teammate in the outfield and getting hit in the head by an errant pick-off throw.

Freel's diagnosis shows that football and hockey players are not the only professional athletes exposed to potential concussion-related injuries.  Indeed, as CNN reports, concussions are more common in MLB than one might at first suspect:
This season, 18 baseball players were placed on the disabled list after concussions -- 10 of them were catchers. In 2012, 13 players were placed on the DL after a concussion, and in 2011, the number was 11, according to MLB data.
Therefore, Freel's diagnosis raises the question of whether MLB will be the next professional sports league to face a wave of concussion-related lawsuits.  It would not be surprising if some affected former baseball players (or their families) file suit against MLB.  However, because concussions do not appear to be as widespread in baseball as in football, class action litigation may be less likely.  Indeed, with baseball concussions arising from a variety of different causes (collisions on the field, players getting hit with thrown balls, catchers getting hit by foul tips), the injuries alleged by former baseball players will likely prove to be more dissimilar than those involving contact sports such as football or hockey, arguably making class action treatment less appropriate. 

Nevertheless, it might be possible for a group of similarly situated players, such as former catchers, to jointly sue MLB for failing to take greater precautions to prevent their injuries.  Should such a class action be filed, MLB would be able to assert many of the same defenses that were available to the NFL in its own concussion-related lawsuits.  However, MLB might decide -- as did the NFL -- that despite these potential defenses such a case carries sufficient negative publicity and litigation risk to warrant a settlement of the claims.

For its part, MLB has already been relatively proactive in dealing with concussions over the last several years.  Back in 2011, MLB implemented a series of protocols to deal with head injuries, including the creation of a new 7-day disabled list for concussed players.  And then last week, the league announced that it intends to ban home plate collisions beginning in 2014.  While such steps will not completely eliminate MLB's risk of potential legal liability, they do reflect a concerted effort on behalf of the league to lessen the chance that future players experience a significant head injury.