Senin, 07 April 2014
Is a seven-inning game still baseball?
This is an incredibly interesting idea. But is nine innings an "essential" rule of baseball, such that it no longer is "baseball" if games are only seven innings? I don't think so, but I'm interested in other thoughts.
President Obama v. David Ortiz? Right of Publicity, the First Amendment and Selfies
Last week, David Ortiz and his Red Sox teammates visited the White House in honor of the Sox winning the 2013 World Series. While there, Ortiz asked President Obama for a selfie, which the President agreed to do. The selfie was re-tweeted countless times. Here's the photo:
Unbeknownst to the President, Ortiz had recently signed an endorsement contract with Samsung -- makers of the phone he used for the selife -- to promote the product and Samsung. Samsung aggressively promoted Ortiz's selfie on Twitter and noted it was taken on one of its phones. The White House is not happy about the arguable deception, fearing that it could be mistaken as an endorsement by President Obama of Samsung.
I spoke with Julie Loncich of ABC News's Boston affiliate, WCVB, last night about the role of right of publicity and the First Amendment. The President, like all Americans, has a right of publicity, which generally protects our image and likeness from being used without permission (see Ed O'Bannon v. NCAA). The First Amendment, however, trumps the right of publicity when persons are covered in the news. You could argue that anything the President of the United States does counts as "news," including when he poses for a selfie with a legendary Boston athlete. Here's the video of my interview:
Unbeknownst to the President, Ortiz had recently signed an endorsement contract with Samsung -- makers of the phone he used for the selife -- to promote the product and Samsung. Samsung aggressively promoted Ortiz's selfie on Twitter and noted it was taken on one of its phones. The White House is not happy about the arguable deception, fearing that it could be mistaken as an endorsement by President Obama of Samsung.
I spoke with Julie Loncich of ABC News's Boston affiliate, WCVB, last night about the role of right of publicity and the First Amendment. The President, like all Americans, has a right of publicity, which generally protects our image and likeness from being used without permission (see Ed O'Bannon v. NCAA). The First Amendment, however, trumps the right of publicity when persons are covered in the news. You could argue that anything the President of the United States does counts as "news," including when he poses for a selfie with a legendary Boston athlete. Here's the video of my interview:
Concussion Lawsuit Presentation at DRI Product Liability Meeting
Minggu, 06 April 2014
Unions, incentives, and change
Northwestern football coach Pat Fitzgerald publicly urged his players to vote against forming a union (the vote is scheduled for April 25, although the votes would be impounded if Northwestern appeals the decision of the regional director to the full National Labor Relations Board). And at least a few players seem inclined to vote against it, at least based on quotations in the story.
What is interesting is the near-universal sense from everyone that things do need to change in college football in terms of benefits, hours, health care, etc.--all the things supporters want to get through the union and collective bargaining. The dispute is over how those changes will or should occur. One player pointed to Fitzgerald and his activities with the American College Football Association (he is on the association's Board of Trustees); another said he hopes the NCAA will see the need for change. But what would cause anyone to believe either of those groups (or any other non-player group) is likely to act in the players' interests. Football coaches are control freaks (I say that as a control freak myself) who would see that control threatened by many of the changes the players might want. How likely is ACFA to support tighter limits on football hours--so players can spend more time being students--or tighter limits on contact practices--so players are subject to fewer hits? The NCAA is a dysfunctional organization that has never shown any inclination to truly protect and benefit players, especially when the changes transfer from it and its schools to the players. This is not an institution likely to change unilaterally or from within. Especially since the NCAA, conferences, and schools make massive amounts of money off football and men's basketball and may make less money if the system changes.
Importantly, none of these organizations is structured or legally obligated to take player interests into account or even to hear their concerns. All the unfortunate anti-union sentiment in the United States obscures the real benefit of the NLRA and a union in this situation--the rules regarding the terms and conditions under which the players operate can only be made with consent from the players. Absent a union, the players are left hoping that someone else--ACFA, the NCAA, the Big Ten/Twelve, Northwestern--will deign to give them what they want or need. In other words, change comes because the same powers that be decide to throw the players a bone via the same paternalistic arrangements. Moreover, since Northwestern must follow NCAA regulations (as a condition of membership and maintaining eligibility of its teams), the only source of change really is the NCAA.
I thought of similar issues surrounding the union in doing an interview regarding this joint study by the Student Press Law Center and a journalism class at the University of Maryland (I am quoted in the report itself). The report describes some of the policies to which student-athletes are subject (either by the university, the athletic department, or the team) regarding social media and other speech activities; social, dating, and sexual activities; and privacy. For example, the University of Georgia men's basketball team has policies regarding monogamy (good) and visible hickeys (bad) and reserving the right to inspect a player's dorm room at any time. Obviously these policies would be unconstitutional as applied to an ordinary student at the University of Georgia. They probably are not much more constitutionally valid as applied to student-athletes--much depends on whether the court views student-athletes as akin to employees and thus subject to the tighter speech restrictions that government can impose on its employees. Of course, one still could argue that these policies are over the top even in that situation--seriously, telling a student how many girlfriends he can have?
Of course, we never will find out whether these policies and rules are constitutionally valid because no player is ever going to challenge them in court, for fear of retribution from the powerful and in-control coach. Collective action eliminates that problem--the coach is not going to kick everyone off the team for objecting to these sorts of unconstitutional and offensive rules. Only the group, not the lone player, can resist the greater power of the coach, the school, and the NCAA.
What is interesting is the near-universal sense from everyone that things do need to change in college football in terms of benefits, hours, health care, etc.--all the things supporters want to get through the union and collective bargaining. The dispute is over how those changes will or should occur. One player pointed to Fitzgerald and his activities with the American College Football Association (he is on the association's Board of Trustees); another said he hopes the NCAA will see the need for change. But what would cause anyone to believe either of those groups (or any other non-player group) is likely to act in the players' interests. Football coaches are control freaks (I say that as a control freak myself) who would see that control threatened by many of the changes the players might want. How likely is ACFA to support tighter limits on football hours--so players can spend more time being students--or tighter limits on contact practices--so players are subject to fewer hits? The NCAA is a dysfunctional organization that has never shown any inclination to truly protect and benefit players, especially when the changes transfer from it and its schools to the players. This is not an institution likely to change unilaterally or from within. Especially since the NCAA, conferences, and schools make massive amounts of money off football and men's basketball and may make less money if the system changes.
Importantly, none of these organizations is structured or legally obligated to take player interests into account or even to hear their concerns. All the unfortunate anti-union sentiment in the United States obscures the real benefit of the NLRA and a union in this situation--the rules regarding the terms and conditions under which the players operate can only be made with consent from the players. Absent a union, the players are left hoping that someone else--ACFA, the NCAA, the Big Ten/Twelve, Northwestern--will deign to give them what they want or need. In other words, change comes because the same powers that be decide to throw the players a bone via the same paternalistic arrangements. Moreover, since Northwestern must follow NCAA regulations (as a condition of membership and maintaining eligibility of its teams), the only source of change really is the NCAA.
I thought of similar issues surrounding the union in doing an interview regarding this joint study by the Student Press Law Center and a journalism class at the University of Maryland (I am quoted in the report itself). The report describes some of the policies to which student-athletes are subject (either by the university, the athletic department, or the team) regarding social media and other speech activities; social, dating, and sexual activities; and privacy. For example, the University of Georgia men's basketball team has policies regarding monogamy (good) and visible hickeys (bad) and reserving the right to inspect a player's dorm room at any time. Obviously these policies would be unconstitutional as applied to an ordinary student at the University of Georgia. They probably are not much more constitutionally valid as applied to student-athletes--much depends on whether the court views student-athletes as akin to employees and thus subject to the tighter speech restrictions that government can impose on its employees. Of course, one still could argue that these policies are over the top even in that situation--seriously, telling a student how many girlfriends he can have?
Of course, we never will find out whether these policies and rules are constitutionally valid because no player is ever going to challenge them in court, for fear of retribution from the powerful and in-control coach. Collective action eliminates that problem--the coach is not going to kick everyone off the team for objecting to these sorts of unconstitutional and offensive rules. Only the group, not the lone player, can resist the greater power of the coach, the school, and the NCAA.
Jumat, 04 April 2014
My Reddit AMA on Kain Colter, College Players Unionizing, Age Eligibility Rules and the NBA D League
Here's an excerpt:
[–]Michigan Wolverinesmaxaiden
(1) Do you think Title IX is unconstitutional?
(2) What impact, if any, would Title IX have on a compensation scheme for college athletes?
(3) If the NBA’s draft eligibility age limit were challenged in court, how would you defend it?
[–]McCannSportsLaw[S]
1. I don't think Title IX is unconstitutional. That's not to say it shouldn't be reformed, but I believe it's a permissible use of governmental power, consistent with other civil rights legislation.
2. Title IX would likely require universities that pay male athletes as employees to pay women athletes as well. The leading Title IX experts make that point, and I don't see a way around it -- unless, that is, a school decides to spin off its athletic department as a for-profit business. There still may be Title VII (gender discrimination) issues but Title IX is likely off the table at that point. The downside to the school at that point would be it loses its tax exempt status for sports. So there would be a cost. But maybe it's cheaper than paying women athletes in order to comply with Title IX.
3. If I had to defend the NBA's age eligibility limit (and I wouldn't want to!) I would argue 1. It was collectively bargained and historically unions can negotiate on behalf of prospective employees and 2. It serves business purposes for the NBA in terms of player evaluation and in terms of marketing rookie players to fans. A player entering the NBA already being well-known is an advantage to NBA teams (take Carmelo Anthony being a household name while at Syracuse versus Al Jefferson from high school in Mississippi to Celtics and the average Celtics fan is not familiar with him).
For the rest, click here.
Senin, 31 Maret 2014
Upcoming Oregon Law Review Symposium on the NCAA in Crisis
I'm honored to be participating in the upcoming Oregon Law Review symposium titled NCAA in Crisis: The Crossroads of Intercollegiate Sports. The topic couldn't be more timely. The symposium will be held on Friday April 11.Warren Zola and I will be giving the introduction to the symposium (to be delivered by Warren).
Excellent work by Dustin Littrell, the Editor-in-Chief of the Oregon Law Review, and Kristina Cauthorn, OLR's Symposium Editor, in organizing the event, developing the panels and assembling an outstanding group of speakers.
Here is more info:
Friday, April 11, 2014Here is the schedule:
9:00 AM to 4:30 PM
Lee Barlow Giustina Ballroom, Ford Alumni Center
1720 East 13th Eugene, Oregon 97403
Oregon Law Review's spring symposium, The NCAA in Crisis: the Crossroads of Intercollegiate Sports, will provide a forum for a comprehensive inquiry into questions regarding the current state of NCAA regulations and enforcement, and an analysis of Ed O'Bannon v. NCAA and its potential implications on amateurism, anti-trust law, the gaming industry, and possible legislature involvement. Through this inquiry, Oregon Law Review hopes to formulate and analyze possible solutions to the NCAA's current issue: how does the NCAA amend its regulatory and enforcement mechanisms to create a more efficient, effective, and fair organization?
Registration & Morning Refreshments | 9:00 – 9:30 A.M. |
Welcome Remarks & Event Overview | 9:30 – 10:00 A.M. |
Panel I: The NCAA: Regulation, Enforcement, Investigation, and Adjudication Mechanisms | 10:00 – 11:30 A.M. |
Lunch | 11:30 – 12:30 P.M. |
Keynote Address | 12:30 – 1:00 P.M. |
Panel II: Ed O’Bannon v. NCAA & Other Current Conflicts: Potential Implications for the NCAA and Intercollegiate Sports | 1:00 – 2:30 P.M. |
Afternoon Break | 2:30 – 2:45 P.M. |
Panel III: The Future of the NCAA and Intercollegiate Sports | 2:45 – 4:15 P.M. |
Closing Remarks | 4:15 – 4:30 P.M |
Presenters Include:
- Timothy Davis, Wake Forest University School of Law
- Marc Edelman, Zicklin School of Business, Baruch College, City University of New York
- Gabe Feldman, Tulane University Law School
- Todd Hairston, Wake Forest University
- Michael McCann, University of New Hampshire School of Law and Sports Illustrated
- Matthew Mitten, Marquette University Law School
- Joe Nocera, The New York Times
- Brian Porto, Vermont Law School
- Josephine Potuto, University of Nebraska
- Stephen Ross, Penn State Dickinson School of Law
- Rodney Smith, Thomas Jefferson School of Law
- Jeffrey Standen, Northern Kentucky University School of Law
- Warren Zola, Boston College
Minggu, 30 Maret 2014
Amicus Brief in Christie, et al v. NCAA, et al
I recently co-authored (with Tassos Kaburakis and John Holden) and served as counsel of record in connection with a cert stage amicus brief filed in the New Jersey/PASPA case. This case is now at the U.S. Supreme Court ("SCOTUS") level. The SCOTUS docket can be found here. A link to the amicus brief is here. I penned a short piece summarizing New Jersey's cert petition here.Unlike the more common 9,000 word merits stage amicus briefs (filed after SCOTUS has granted cert), cert stage amicus briefs are limited to 6,000 words. As such, a number of findings were left on the cutting room floor. One of the most interesting was legislative history indicating that the senators debating the bill (S. 473) were unsure about which states would be exempted under PASPA's unique grandfathering clause. For example, one senator posited that he thought South Dakota would/should be exempted. PASPA passed by a 88-5 vote. Wisconsin senator Herb Kohl, the owner of the NBA's Milwaukee Bucks, did not vote "yes" or "no" on PASPA, opting for "present" instead. Six senators did not vote at all.
The cert petition (and two other amicus briefs) focus on PASPA's interaction with anti-commandeering and equal sovereignty arguments stemming from the Constitution's Tenth Amendment. We primarily focus on PASPA's text vis-a-vis the Intellectual Property Clause (Article I, Section 8, Clause 8) of the Constitution. We spend time examining Sec. 3703 of PASPA.
April 21, 2014 is the deadline for the NCAA/NBA/NFL/NHL/MLB (original plaintiffs) and DOJ (intervenor) to file a response to the cert petition. At some yet-to-determined date, the justices will decide whether to grant the cert petition. Stay tuned.
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