Monday, August 6, 2012

Will Union Cycliste Internationale help Lance Armstrong's Legal Situation?

I have a new column on that discusses an international jurisdiction dispute between UCI and USADA over whether USADA can sanction Lance Armstrong, and what this might mean for Armstrong.

Olympic Law

Nice post from Lisa McElroy (Drexal Law) on using the 2004 Men's Gymnastics controversy (where an unquestioned scoring error affected the outcome and resulted in Paul Hamm winning the all-around gold) to demonstrate the difference and intersection between law and justice, between following the rules or trying to produce the "best" results.

I'm getting old. I remember when we would use the 1972 Olympic Men's Basketball final, which had the added bonus of looking like they were just making the rules up as they went along (because they were).

Saturday, August 4, 2012

Defining sport: Intrinsic and Instrumental Values

I have written before about defining sport and distinguishing sport from other athletic competitions. My preferred definition of sport includes four elements: 1) Large motor skills; 2) Simple machines; 3) Objective scoring (distinct from subjective judging); and 4) Competition. Of these, # 3 has proven to be most difficult, controversial, and contested, as the comments on this post show. Watching the Olympics (count me among the many who detest the NBC Primetime productions) has lead me to a different way of thinking about # 3, using a line familiar to legal scholarship--the difference between intinsic and utilitarian instrumental values. Hear me out.

Everything involves the performance of particular skills (dives, flips, swimming strokes, running strides, throwing, putting the shot, whatever), with the hope of performing those skills as correctly as possible. The difference is why the athlete performs those skills.

Sometimes they are done for utilitarian instrumental purposes--to enable the athlete to swim or run faster or to put the shot further or to put the ball in the basket. And the better or more perfectly the athlete performs those skills, the more likely he is to do well in the competition. But ultimate evaluation is not on the skills themselves and correct performance is not essential to success. A shot-putter still can have a good throw even if his performance on that throw is not technically correct; a swimmer still might swim fast even if his stroke is off; a jump shot in basketball may go in  even if the form on the shot is off. Each of those scores is worth the same as one done with perfect form. Other times, those skills are performed for their intrinsic value and utlimate evaluation is on the correctness and form of the skill itself. An Inward 2 1/2 that is not done correctly will score less than an Inward 2 1/2 done correctly; a backflip not done correctly will score less than a backflip done correctly.

This is our new third element. Sport is utilitarian instrumental; skills are performed toward some other end and outcomes are determined by the result of the skill rather than by evaluating the skill itself. It is not sport if it is intrinsic; skills are performed for their own sake and outcomes are determined by evaluating the skill itself. We no longer care about objective or subjective evaluation, about scoring or judging. Instead, we focus only on the thing being evaluated to determine outcome--the skill itself (not sport) or the results of the skill (sport).

Combined with elements 1, 2, and 4, above, we may have a winner.

Friday, August 3, 2012

Fan speech and Penn State: A Response

Thanks to Geoff for the shout-out on my writing on fan speech. I wanted to post a quick response.

First, while I agree it would be disgusting for opposing fans to taunt players about the specifics of child sexual assault, I am not as sure that taunting players about the overall scandal at a university and football program of which they are a part would be uncivil. Especially if the message is that PSU is not the holier-than-thou place it pretended to be for 60 years. A little bit of schadenfreude is a core part of cheering speech. Geoff also is right that the NCAA, Big 10, and schools cannot do anything about this (exception, ironically, my alma mater).

Second, I do not have a problem with Penn State fans overdoing it with praise for the involved school officials. I expect it and, in fact, welcome it. One reason to protect speech for uninformed or offensive ideas is to expose those ideas, and those who hold them, to public attention and ridicule.

Fan Speech and Penn State

In less than a month, the Penn State football team will take the field for the first time since the NCAA imposed sanctions on the school for the conduct of Athletic Department employees in connection with the Sandusky child sexual assault scandal.  One of the factors which led me to take the position that Penn State should take the year off from football, rather than continue to play, is a concern about what kinds of signs we'll see and chants we'll hear from the stands.
Howard has written in this blog about fan speech, and the challenges in regulating it, in this blog on a number of occasions: here, here, here and here, for instance.

We have two reasons to be concerned about fan speech here.  First, we may see signs at home games which are overly supportive of key Penn State figures now besmirched by the scandal.  In spite of the mountain of evidence indicating a colossal breakdown in morality and leadership, some fans may stubbornly cling to rosy images of football heroes. 

More likely, though, when Penn State travels to play away games in Iowa City and Lincoln -- never easy places to visit -- we'll see some fans who use the scandal to taunt the current players (players having nothing to do with the matter).  No doubt the Big Ten or the NCAA will urge fans to keep their cheers civil, but we've already seen the emergence of (grammatically challenged) fan speech in connection with the scandal and I think it's fair to expect more.

Here, players may be more likely, than in the case of the kind of racist fan speech that usually raises concerns, to be able to brush of these insults.  Yet by dragging the matter into the light of national TV, potentially offensive fan speech has the potential to continue to cause hurt to the real victims of this scandal:  Sandusky's targets.  Unfortunately, there's not much that the NCAA or the Big 10 can do about it.

Thursday, August 2, 2012

Minority relgiions and the Olympics

My colleague Tom Baker linked me to this story on the Jews, Muslims, Sikhs, and other minority religious groups taking special rooting interest and pride in the Olympic success of their co-religionists, even if they are competing for other countries. The author seems surprised by this, although I am not sure why. American Jews always have been very conscious of the existence and success of Jewish-American as well as Israeli athletes (while never being afraid to recycle the old joke "Do you have some light reading? Here's a pamphlet of great Jewish athletes"). What is new here, if anything, is the way that other religious groups in the U.S. are catching on. 

For what it's worth, my sense with Jews and Jewish athletes is that it always has been more ethnic/cultural than religious. People knew gymnast Aly Raisman is Jewish because of her name and her floor routine done to "Hava Nagila." The issue was never whether she was particularly observant (although her rabbi is quoted in the story, so we somewhat know), but that she identified as Jewish. That has always been enough.

Mutu v Chelsea – Three Years After the “Remarkable” CAS Decision

This is a special guest post by Romanian attorney Smaranda Miron, LL.M, who practices at
Freshfields Bruckhaus Deringer LLP in Frankfurt, Germany, on the Court of Arbitration for Sport ordering Romanian football player Adrian Mutu to pay 17 million to Chelsea.

Mutu v Chelsea – Three Years After the “Remarkable” CAS Decision

It was back in July 2003 when Roman Abramovich commenced the £140,000,000 takeover of Chelsea FC plc and then proceeded to create a star-studded team, with one aim: bringing the Stamford Bridge club among the world’s football elite.

In August 2003, Romanian football player Adrian Mutu was transferred from AC Parma to Chelsea for €22,500,000 the highest amount ever paid for the transfer of a Romanian athlete. Mutu’s arrival at Chelsea was highly acclaimed: compared by some with Gianfranco Zola, the “brilliant” Mutu received Chelsea's flattering number°7 jersey. At that time, Romania’s “golden team” of football players was retiring and, as they stepped out of the field, they pointed at Mutu as being the new leader capable of securing future victories.

Under his almost five years contract with Chelsea, Mutu was to be paid an annual gross salary of £2,350,000 a once only signing fee of £330,000, the usual bonuses and incentives Chelsea paid to its players, as well as a special goal bonus. Mutu's agent was to receive €500,000. Things started relatively good for the Romanian striker, though for some reason he failed be as prolific as he had been in Parma. Up until 1°October 2004, he appeared in 27 games and found the net 6 times.

But on 1 October 2004, Mutu's dream began to collapse: a targeted drug test was held on him by the English Football Association. On 11 October 2004, Mutu was found positive for cocaine. A few weeks later, on 28 October 2004, Chelsea terminated Mutu's contract with immediate effect. He also received a seven-months worldwide ban. What followed was an endless battle, both in the media and in the courts, between Mutu and Chelsea: after almost eight years and numerous proceedings in England, Switzerland and the US, they are still waiting: Chelsea for its money, and Mutu for an almost impossible reversal of unfavourable rulings.

The Court of Arbitration for Sport (CAS) in Lausanne has dealt with no less than three matters between Mutu and Chelsea. Mutu lost every single one of them.

The first CAS award was rendered in 2005. Previously, the Football Association Premier League ruled that Mutu’s admitted use of cocaine constituted a unilateral breach of contract without just cause. He appealed the decision before CAS, and his appeal was dismissed.

As a result, in 2006, Chelsea requested the FIFA Dispute Resolution Chamber (DRC) to impose the adequate sporting sanctions on Mutu and/or to order him to pay compensation for breach of contract. The DRC declined jurisdiction, and Chelsea brought the case before CAS. In this second CAS award, the club’s appeal was upheld, CAS said that the DRC wrongly declined jurisdiction and soon afterwards Chelsea re-applied for compensation before the DRC.

On 13 August 2008, the DRC decided that Mutu was to pay Chelsea € 17,173,990 for breach of his employment contract, which comprised the unamortised portions of the transfer fee paid by Chelsea to Parma, the sign-on fee and the agent's fee. What is more, the DRC noted that, due to specificity of sport, additional punitive measures can be imposed on athletes, so that compensation can sometimes be even higher than normally calculated under the applicable rules. At that time, it was the highest fine ever imposed by FIFA.

Mutu then filed a third case before CAS, and asked them to annul the DRC decision.

The CAS Panel considered that the quantification of damages by the DRC (based on unamortised acquisition costs) was consistent with the applicable provisions, namely English law and the 2001 FIFA on the Status and Transfer of Players. However, the Panel revised the calculations made by the DRC and took into account additional items of acquisition costs: a solidarity contribution, a transfer levy and the club agents’ fees. It reached an amount of €19,113,688 and £371,444, higher than the one put forward by the DRC. But in order not to go ultra petita, the CAS Panel could only confirm the damages awarded by the DRC.

Furthermore, all Mutu’s arguments were rejected:

He argued that he had been discriminated on the basis of nationality (which is forbidden in the European internal market), since the legal framework applicable to English football players transferred at a domestic level was different than the one applicable to foreign players performing in England. The CAS Panel disagreed and said that it was not the nationality of the player that triggered the application of one set of rules or the other, but whether the player was moving between clubs belonging to different national football associations or not.

Contrary to Mutu’s submissions, the Panel considered that English Football Association’s competence to rule on the measure of damages and the fashion in which the damages were calculated were not in breach of European legislation prohibiting anti-competitive practices.

Mutu’s argument that such a way of calculating compensation would act as a deterrent to players wishing to perform in other countries and would thus be in breach of the European rules on freedom of movement was also unsuccessful. The Panel stated that the obligation to pay compensation can never be seen as an impairment of the freedom of movement.

Mutu challenged the third CAS award before the Swiss Federal Tribunal (Schweizerische Bundesgericht), but the review system before the Swiss Federal Tribunal was of little comfort for the player. Mutu argued that the method of calculating damages by the DRC (upheld by CAS) was breaching the Swiss public policy. On 14 June 2010, the Swiss Federal Tribunal dismissed Mutu’s case as unfounded.

On 8 November 2010, Chelsea filed a petition before the US District Court Southern District of Florida (Miami Division) and requested them to recognize and enforce the third CAS award against Mutu under the New York Convention. According to Chelsea, Mutu was owning various residential property in Florida, including property in Miami-Dade county. In his defence, Mutu argued that the enforcement of the CAS award would have been contrary to public policy because it relied on a contractual penalty clause. He asked the court to deny recognition and enforcement of the CAS award under article 5(2)(b) of the New York Convention.

On 13 February 2012 the US court issued recognizing and enforcing the CAS award. It ruled that, even if one were to find the relevant provision of the 2001 Regulations for the Status and Transfer of Players as being a penalty clause, the CAS award was properly and independently decided pursuant to English law. However, the review of the US court was limited; as the judge put it, even if an award was unsupported, foolish and poorly reasoned, as long as it does not violate public policy (i.e., basic notions of morality and justice), it cannot be subject to court interference.

On 19 March 2012 Mutu appealed the Southern District of Florida order before the US Court of Appeals, 11th Circuit. A decision is pending.

While waiting for the 11th Circuit decision, a few issues still linger:

Athletes are not machines. Nor are – or can – they be perfect. Football players remain people, and no matter how talented and disciplined they are, things can go awry at any time. When Mutu was taking cocaine, he was also going through a highly publicised divorce and had regular conflicts with coach Mourinho. Mutu had never offered any guarantee that the transfer sum paid by Chelsea was indeed worth paying. He was not involved in the negotiations and had one way only to influence the amount at stake: the better he played, the higher the transfer sum would have been. Therefore, when a contract between two rich almighty clubs is concluded, should the player bear all the risks?

Is the legal framework applicable to football players truly running against European law, as Mutu argued before CAS? The CAS Panel said no. However, at no point of the dispute could Mutu have had his case heard before a national court of a Member State which, in turn, could have referred the case to the Court of Justice of the European Union for a preliminary ruling and shed light on this matter. Shouldn’t football players, European citizens rendering services in a Member State of the European Union, be given some kind of remedy before the European courts in addition to the CAS system?

By all means, this is an atypical anti-doping case: cocaine is everything but a sports performance enhancing substance. In addition, Mutu was not cocaine addicted. He needed no medical support to recover from use of cocaine and, once he returned to Italy, he continued his series of startling performances. For Fiorentina, he scored 54 goals in 112 appearances and was named the player of the season in Il Calcio in 2006/2007. Anyway, he still has to pay an incredible amount to Chelsea, amount that –as press reports say– will most likely plunge him into bankruptcy. Needless to say, he never made this money from football. Indeed, FIFA and CAS had taught him and the whole sports world a tough lesson. It remains to be seen how much was achieved with that. It is beyond contestation that anti-drug messages are positive. But one can only wonder if payment of roughly €17,000,000 and endangering an athlete’s career is not too big a price to pay for a message which, at the end of the day, each of us can also read on street billboards.

Note: all the opinions and errors in the article are Smaranda Miron's and the article does not express the views of Miron's firm.

Tuesday, July 31, 2012

Ryan Sweeney and injuring hand by punching door: is it grounds for Disqualified List?

In the eight inning of last night's Red Sox -Tigers game, Red Sox outfielder Ryan Sweeney became upset after grounding out. So angry that after returning to the dugout he let a door feel the brunt of his frustration, which caused a hand injury:

* * *
Ryan Sweeney will need X-rays after he punched a door in the dugout following a groundout in the eighth inning of the Sox' 7-3 win over the Tigers. Sweeney injured the knuckle on his left pinkie and had to come out of the game when he couldn't make his warm-up throws in the top of the ninth inning.

According to a team source, the outfielder -- who is hitting .260 with a .303 OBP and .373 slugging mark in 63 games -- is likely to require a DL stint for the injury.

From: Mike Petragalia,

* * *

Should Sweeney be placed on the disabled list -- or the disqualified list?

The seldom-used disqualified list is for players who, according to the CBA, "fail to render services to his club." While disqualified, a player is not paid his salary and is removed from the roster, though the player can workout with his team and receive healthcare benefits. On behalf of a disqualified player, the Major League Baseball Players' Association can file a grievance to fight the disqualification. The grievance procedure may eventually lead to a hearing before three-arbitrators.

The disqualified list is purposelessly defined in vague terms, since its definition gives teams flexibility in interpreting it. Teams are hesitant to use it, however, because it likely damages the team's relationship with a player. It may also damage the team's relationship with the player's agent, which in some instances may be a big deal.

Because of these downside for teams, few players have been placed on the disqualified list in recent years. Two years ago the Mets placed Francisco Rodriguez on the disqualified list after he injured his hand in a fight with his girlfriend's dad. Last year for, I wrote about the Cubs placing Carlos Zambrano on the disqualified list for 30 days after he bizarrely walked out on his team and claimed to be retiring. Earlier this month the Cleveland Indians placed minor league pitcher Nick Hagadone on minor league baseball's disqualified list for a self-inflicted injury to his pitching hand after he pitched poorly in a game. Teams sometimes use the disqualified list as a threat - in 2006 the Nationals threatened to disqualify Alfonso Soriano after he refused to play the outfield. The threat worked.

Should the Red Sox use it for Sweeney?

Reasons for Yes

Punching a door or any wall shows terrible judgment, if for no other reason than the fact that it is completely predictable that you can, and probably will, injure your hand by doing so. It isn't like Sweeney threw his bat in frustration and it somehow hit a wall and bounced back at him, or that he suffered some other freak injury. He punched a door.

Sweeney didn't act in the heat of the moment - there was at least 30 seconds between his ground out and his punching for him to cool down. The fact that he had time to think about what he was doing, and still did it, makes it worse.

Sweeney, who Baseball America called the White Sox's No. 1 prospect in 2006, is not new to the game. He's in his 7th MLB season and is 27-years-old. Punching a wall might be more excusable for a rookie, but not for a seasoned vet.

Sweeney's injury makes it much harder for the Red Sox to trade him before today's deadline. He's been rumored to be on the trading block (see If he's placed on the disabled list or disqualified list, he can't be traded absent the commissioner's approval. Even if he's not put on any list, his already low trade value (he's a corner outfielder who has 0 home runs in 204 at bats) has likely plummeted even lower. On today's Dennis and Callahan show on WEEI, it was even discussed that Sweeney may have intentionally injured his hand to not be traded - if so (and that seems unlikely and would also be hard to prove), the disqualified list would be even more appropriate.

Reasons for No

Unlike Carlos Zambrano, who had a long history of strange behavior, Sweeney has never attracted controversy and seems to be a good teammate. His temper just got to him and he did a foolish thing. To his credit, Sweeney has acknowledged responsibility and fault. He admits he let his team down (see It isn't like Sweeney is refusing to acknowledge he did something wrong.

If the Red Sox disqualify Sweeney, they will almost certainly have to deal with a grievance filed by the MLBPA, which will argue that the penalty is excessive, especially for a player without a track record for misbehavior. Keep in mind, the MLBPA does not want a precedent of teams disqualifying players, since other teams could do the same in the future. They would fight for Sweeney, if not so much for him than for their collective membership.

Moreover, as sports attorney/professor and MLBPA certified agent Jim Masteralexis tells me on Twitter, Kevin Brown and Doyle Alexander were not disqualified after they punched walls and were injured. While the Red Sox could argue those instances do not preclude them from punishing Sweeney, they are still persuasive precedent.

Although Sweeney is a free agent at the end of the season, the Red Sox would damage its relationship with him going forward by disqualifying him. The same is probably true of the team's relationship with Sweeney's agent, Larry Reynolds, who has a pretty impressive list of clients. Along those lines, would free agents be less likely to sign with the Sox because of how it treats Sweeney?

Verdict: I doubt the Red Sox will disqualify Sweeney, but if they did, I believe they would have sufficient grounds.

Monday, July 30, 2012

Penn State Death Penalty: Was It Ever Really An Option? (The Antitrust Problem)

Several recent posts on this blog have analyzed the NCAA's punishment of Penn State University in light of rumors that the NCAA would have given Penn State a four year death penalty if it had not agreed to the NCAA's alternative sanctions. (See here, here, and here). What almost nobody is talking about, however, is that the NCAA's 'death penalty' sanction may very well have been illegal under Section 1 of the Sherman Act. Thus, if the NCAA had attempted to shut down Penn State's football program, an interesting antitrust challenge could have potentially followed.

For those less familiar with antitrust law, Section 1 of the Sherman Act states that "[e]very contract, combination ... or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal." In practice, this section of antitrust law is not interpreted to literally prohibit all contracts signed among competing businesses. However, the courts have consistently interpreted Section 1 of the Sherman Act to strike down contracts that are deemed unreasonable in terms of their economic effects.

As a private association composed of member schools that compete against each other for fans and players, all decisions reached by the NCAA or its employees are, in essence, horizontal agreements subject to Section 1 review. In addition, any agreement by the NCAA to ban a competitor from the marketplace would be defined as a "group boycott," which falls among the most troublesome types of agreements subject to Section 1 scrutiny.

The U.S. Supreme Court has already once prevented the enforcement of an NCAA bylaw under Section 1 of the Sherman Act that sought to exclude certain competitors from the college football marketplace. In that case, National Collegiate Athletic Association v. Board of Regents, the high court held that an NCAA bylaw intended to ban colleges that appeared in more than a certain number of televised football games was illegal because it "curtail[ed] output and blunt[ed] the ability of [NCAA] member institutions to respond to consumer preference."

Logically, the same argument could be made for disallowing the NCAA 'death penalty.' Although on a moral level the egregious wrongdoing that occurred at Penn State University cannot be compared to a school merely seeking to play additional televised football games, under antitrust law the reasons behind the boycott are entirely irrelevant. All that matters is the economic effect. In other words, as the Supreme Court explained in its 1978 decision National Society of Professional Engineers v. United States, "the purpose of [antitrust] analysis is to form a judgment about the competitive significance of the restraint; it is not to decide whether a policy favoring competition is in the public interest."

While it is true that the U.S. Court of Appeals for the Fifth Circuit had rejected an earlier antitrust challenge arising out of the NCAA's first attempt to enforce its 'death penalty' (that time against Southern Methodist University), the posture of that case was a bit different. In that challenge, McCormack v. National Collegiate Athletic Association, the claim was brought by the schools' alumni, football players and cheerleaders, rather than by the boycotted school itself. Thus, the court determined that the plaintiffs lacked antitrust standing to bring suit, as well as that their challenge was merely at attack of reasonable athlete-eligibility rules. These conclusions would have been far harder to sustain if the suit had been brought by a school, challenging the financial implications of a boycott on their football revenues and merchandise sales.

Of course, antitrust law leaves open the possibility of other less restrictive forms of punishment against Penn State University that might indirectly lead to the same result. For example, any individual school can legally make the independent decision not to play Penn State University without running the risk of a legal issue. If all schools independently reach the same conclusion, there would be no antitrust violation. In addition, perhaps an entire conference such as the Big Ten could even decide to ban Penn State without significant antitrust risk if that conference is found to lack "market power."

Yet, for the very reason that the NCAA death penalty is often described by advocates as the 'ultimate sanction,' a court would likely not allow that result. Thus, no matter how abhorrent the leadership may have acted at Happy Valley, a court would not be likely to allow that to justify the entire college football industry collectively driving Penn State University football out of business.

Adrien's Groaner

Adrien's Groaner
The Questions That Arose from the Last Minute Wrangling to Preserve Adrien Broner vs. Vicente Escobedo

This past Saturday, the now former WBO Super Featherweight champion Adrien (The Problem) continued his recent string of impressive performances with a fifth round TKO of Vicente Escobedo. Not as impressive, however, was what happened both before and after Broner weighed in for the bout. Broner weighed in at 133 ½ pounds for his anticipated WBO title defense and subsequently forfeited both his title and $60,000 of his purse (half of which went to Escobedo, the other half to the Ohio commission). The failed weigh-in took place after Broner posted several pictures of recent desserts to his Twitter feed and publicly stated that the Escobedo fight would be his last at 130 pounds. Over the following day, it appeared that Broner’s HBO main event was in jeopardy altogether, as Escobedo threatened to pull out after a second failed weigh-in before reportedly receiving over$50,000 in additional pay out of Broner’s purse. While there has been much outrage in recent years, notably as to Joan Guzman and Jose Luis Castillo’s repeated failures to make weight, the controversy surrounding the Broner-Escobedo seemed to quickly dissipate as the focus turned more to Broner’s obvious pound-for-pound level gifts after his hammering of Escobedo. Nonetheless,what questions were raised (and what lessons can be learned) by the near-dismantling of an entire HBO show over a weight dispute? A quick look follows.

To view the entire article, please go to:

Friday, July 27, 2012

U.S. Court of Appeals for the Eighth Circuit 2012 Judicial Conference

I'm honored to be a speaker at this year's U.S. Court of Appeals for the Eighth Circuit Judicial Conference. The conference will be held next month, from August 8 to August 10, in Kansas City. This year's conference title is "“Landmark Litigation in the Eighth Circuit Courts: Views from the Bench, Bar and Academy”. The conference agenda can be read here and information on attending can be found here.

More so than any other federal circuit in recent years, the Eighth Circuit has played a pivotal role in the development of U.S. sports law. This includes deciding Tom Brady et al. v. NFL, a decision which led to the NFL and NFLPA ending the 2011 NFL Lockout.

I'll be on the labor relations in professional sports law panel with Indiana University Dean Gary Roberts, who previously represented the NFL, and former St. Louis Rams Executive VP and General Counsel Bob Wallace. Judge Mary Vasaly will moderate the panel, which will begin at 9:15 am on Thursday August 9.

Labor Relations in Professional Sports:
Does Federal Law Level the Playing Field


Judge Mary R. Vasaly
Minnesota Judicial Branch
Fourth Judicial District


Professor Michael McCann
Professor of Law & Director of Sports Law Institute
Vermont Law School

Dean Gary R. Roberts
Gerald L. Bepko Professor of Law
Robert H. McKinney School of Law
Indiana University

Mr. Robert E. Wallace, Jr.
Chair, Sports Law Group
Thompson Coburn LLP
The conference has a number of distinguished speakers with sports law ties, including Paul Clement, who argued for the NFL in Brady v. NFL and for NBA players in Carmelo Anthony et al. v. NBA, and Ted Olson, who argued for the NFLPA in the Brady case. Other notable speakers include U.S. Supreme Court Justice Samuel Alito, Baylor University President Dean Ken Starr, who served as Independent Counsel while Bill Clinton was President, and Ohio State Law Professor Douglas Berman.

Why have nationality rules for Olympics?

The New York Times has a thoughtful debate on nationality rules for the Olympics. Are they even necessary? Could the Olympics take place without them - where the best athletes play regardless of their country?

Law Professors Peter Spiro, Ayelet Shachar, Ian Ayres, Jim Nafzinger, and former IOC official Jean-Loup Chappelet all contribute.

Thursday, July 26, 2012

Richard Epstein: NCAA bypassing process in review of Penn State is wrong and a function of its monopoly status

University of Chicago Law Professor Richard Epstein writes a provocative column for Richochet titled, "Does the NCAA Wear the White Hat?". Here are excepts:
In this case, the longish process that gives Penn State 90 days to respond was waived. It seems that everyone wanted to get something done on this issue as quickly as possible. But the concentration of all powers in the hands of a single individual, NCAA President Mark Emmert, has real dangers – and would even if Emmert were the wisest person on the face of the planet.

* * *

It is not enough to say that there is abuse at the school level. It is also necessary to ask whether there is abuse at the NCAA level as well. On the latter point, the NCAA cannot get a clean verdict. The blunt truth is that the NCAA is the only game in town and has a power disproportionate to its wisdom. Put otherwise, the NCAA enjoys a monopoly position as a regulator and thus cannot be immune from the temptations that face all organizations with such power. Just to be summoned before the NCAA to explain why a college is not in compliance with this or that rule is a hugely expensive undertaking, which goes a long way to dull criticism of its behavior.
To read the rest, click here.

FCC Upholds Conclusion that Comcast Discriminated Against the Tennis Channel

A two-year dispute involving the cable tier placement of the Tennis Channel (not owned by Comcast) and the Golf Channel and Versus, recently renamed the NBC Sports Network, (both owned by Comcast) has been making its way through the FCC. This week,the majority of the FCC commissioners concluded that Comcast illegally discriminated in placing the Tennis Channel in a more limited and more expensive tier than the other two sports channels and ordered the firm to pay a fine and move the Tennis Channel to the same tier as the others.

The commission’s party-line 3-2 ruling by its Democratic majority upheld an administrative law judge’s conclusion that ordered Comcast to pay a forfeiture of $375,000 and required Comcast to carry Tennis Channel at the same level of distribution as Golf Channel and Versus. The ALJ also required Comcast to provide Tennis Channel with equitable treatment as to channel placement. The full commission ruling affirming the ALJ’s determination was the first time an MVPD was held liable under the law. The decision is lengthy, with a fair amount of space devoted to procedural issues.However, the areas of particular interest for sports and broadcast lawyers involve the determination of what facts justify a affiliation discrimination and the general First Amendment standards that should be accorded such cases.

The majority concluded that this policy unreasonably restrained the non-Comcast affiliated Tennis Channel from competing with the Comcast-affiliated Golf Channel, a violation of Section 616 of the Communications Act and its accompanying regulations. Such disputes are considered on a case-by-case basis and there are many factual questions that must be determined before concluding that competitive discrimination occurs.The majority, in upholding the ALJ, found that these conditions existed. Looking at the similarities in programming, ratings and demographics, along with circumstantial evidence, the majority concluded that discrimination due to affiliation existed. The opinion also discussed First Amendment considerations and concluded that since the anti-discrimination rules were based on “content-neutral” standards, the lesser intermediate scrutiny test would be applied. Citing earlier precedent involving cable television’s mandatory carriage requirements, the majority concluded that the test was warranted and that the it “easily” met the standard of a substantial governmental interest to prevent such unfavorable policies and that the rule was not burden substantially more speech than necessary.

The two dissenting commissioners contested the methodology of the majority’s conclusion about discrimination,noting the general cable industry practices involving the place of the Tennis Channel. It also issued a warning worth pondering: “. . . in order to shield themselves from discrimination complaints, Comcast and other MVPDs will be more likely to carry networks they do not want, on tiers with broader penetration,and at higher prices than ever before—at least if they are foolish enough to be willing to invest in content creation. And the Commission should not kid itself. These additional programming costs will come out of the pockets of consumers, not from MVPDs’ bottom lines.”

For the Tennis Channel, this is a huge shot in the arm. Comcast must now add Tennis Channel, currently available in 34 million homes nation wise, into an additional 18 million more households just weeks before the U.S. Open. This case will be appealed by Comcast and it is an important one to watch for cable operators, sports programmers and viewers.