Examining pros and cons of NFL clean zones as lawsuit nears trial

I have a new SI column on the Super Bowl and the controversial concept of "clean zones", which grant the NFL legal rights to control commercial activity in streets around the Super Bowl. Here's an excerpt:

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Clean zones raise a bevy of concerns.

For one, clean zones unabashedly limit competition when businesses are denied permission from the league or city. A decrease in competition implicates two core worries of antitrust law: fewer choices and higher prices for consumers. So perhaps instead of two dozen T-shirt street vendors around Lucas Oil Stadium, the NFL only grants permission to a handful. Although they would still compete with vendors of other items, the licensed vendors might charge more and offer less variety.

Second, clean zones restrict commercial speech, meaning speech that solicits a commercial transaction, such as when a company advertises or promotes a product. To be sure, commercial speech is accorded much less protection under the law than political speech. While the First Amendment aggressively protects one's right to express personal opinions from government suppression, a government, such as the City of Indianapolis, can readily limit commercial speech that is deceptive and misleading.

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Eric Williams v. NFL: A Clean Zone Test Case

Last year anti-bullying advocate Eric Williams teamed up with Best Buy on what seemed like a promising idea: Williams would park his bus in Best Buy's parking lot near Cowboys Stadium between Feb. 4 and Feb. 6 and host a John Madden video game tournament. Williams would charge participants of the tournament, which would teach children about how to detect and stop bullying.

The tournament never happened.

Arlington police and code enforcement officers asked Williams if he had a permit to be there. He did not and saw no reason why he should. After all, his bus was on Best Buy's private property, with the store's express invitation. The security officers nonetheless insisted that Williams move the bus, since it was a commercial operation located within a clean zone ordinance.

To read the rest, click here.

Social Media and Intercollegiate Athletics

The inaugural issue of the Mississippi ("Ole Miss") Sports Law Review is now available. You can view it online here. The presentation that we had in Oxford this past fall was a great event, and now we have the law review available to compliment the presentation on social media and intercollegiate athletics. The issue is ordered as follows:

Timothy Liam Epstein - Student-Athlete.O – Regulation of Student-Athletes’ Social Media Use: a Guide to Avoiding NCAA Sanctions and Related Litigation

Jerry Parkinson – Impact of Social Media on NCAA Infractions Cases
Mary Margaret “Meg” Penrose – Free Speech versus Free Education: First Amendment Considerations in Limiting Student Athletes’ Use of Social Media

John T. Wendt & Peter C. Young – Reputational Risk and Social Media

Gould on the 2011 NBA Lockout

Stanford Law Review Online has published an essay by William Gould on the 2011 NBA Lockout. Gould is a former chair of the NLRB and a leading scholar and advocate on sports-and-labor issues, (H/T: Concurring Opinions). Worth a read.

2012 MIT Sloan Sports Analytics Conference

I'm thrilled to be joining Daryl Morey, Jessica Gelman, Gary Bettman, Scott Boras, Mark Cuban, Brian Burke, Adam Silver, Bill James and many others as a speaker at this year's MIT Sloan Sports Analytics Conference, which will be held on March 2 and 3. In my view, it's hands-down the best sports business and sports law event of the year.

Here are this year's list of speakers.

The following topics will be discussed:

• Art & Analytics of Negotiation

• Baseball Analytics

• Basketball Analytics

• Cuban one-on-one with Simmons

• Fanalytics

• Football Analytics

• Franchises in Transition

• Media Rights: Comparing Strategies of Leagues and Media Entities

• Motorsports Analytics

• Soccer Analytics

• The Commish: The Role of the Modern Commissioner in Sports

• Ticketing Analytics

Association for Conflict Resolution to host sports law panel next Wedesday Jan. 25

For our Chicago-based readers, looks like a great panel coming up next Wednesday:

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The Association for Conflict Resolution – Chicago Chapter

Presents

Dispute Resolution in the Sports World

Come join ACR-Chicago for an evening with three experts on Sports Alternative Dispute Resolution! You will learn more about ADR in the sports world and the various alternative dispute mechanisms utilized in the sports industry: arbitration, mediation, conciliation, mini-trials and ombudsmen. The panelists will discuss how these processes have been used in recent years (for example, mediation in the NFL and NBA 2011 lockouts). The panel will also focus on an introduction to Olympic arbitrations, and life as a sports arbitrator. It promises to be an interesting and engaging program!


When: Wednesday, January 25, 2012
6:00-6:30pm Reception and Sign-in
6:30-8:00pm Program
8:00-8:30pm Networking

Where: The John Marshall Law School
315 S. Plymouth Court, Chicago, IL

Cost: Free to ACR-Chicago Members and The John Marshall Law
School; $20.00 for non-members (new or renewal memberships
accepted at door)

Speakers on the Sports ADR Panel will Include:

Matt Mitten, Professor of Law; Director, National Sports Law Institute and LL.M. in Sports Law Program for Foreign Lawyers, Marquette University Law School.

Cari A. Stern, Chapman and Cutler LLP. Adjunct Professor of Sports Law at The John Marshall Law School

Daniel Gandert, Clinical Instructor, Program on Negotiation and Mediation, Northwestern University School of Law.

Many thanks to The John Marshall Law School for hosting this Program

Please RSVP by January 20, 2012 to Jennifer DeGregorio
by email at info@acrchicago.org or at 312-458-0984


The Association for Conflict Resolution – Chicago Chapter
is an alternative dispute resolution (ADR) umbrella organization dedicated to resolving disputes.
Visit our website at www.acrchicago.org

University of Oregon School of Law Sports Law Symposium on Friday Jan. 27

Rick Karcher, Maureen Weston, Woodie Dixon and other panelists will participate in what looks to be an excellent sports and entertainment law symposium at the University of Oregon School of Law (Portland campus)  next Friday.  It is hosted by the law school's sports and entertainment law forum.

Topics include:

Women in Sports and Entertainment
The number of women enrolled in law school and working in the legal field has risen to rival men in the last decade with women even making up the majority in some schools and cities. However, sports and entertainment and their corresponding legal markets continue to be male-dominated industries. This panel will address both the legal and practical issues of women in sports and entertainment, including the function of Title IX and its continuing legacy, differences in media and networking between men and women athletes and entertainers, methods of contract negotiation in women’s sports, and how to break into the industry without making it all about gender. This panel will also feature a five-minute clip from Ellen Devlin’s film documenting the history of the University of Oregon’s women’s track program and the influences of Title IX on the different generations of female athletes.

The Rise of the Agent
As anyone familiar with sports knows, agents are now ubiquitous. An agent is a representative of the athlete, and in recent years, the number of agents has risen significantly. Now it seems as if there are as many agents in the business as there are athletes. As is often the case with those in the legal profession, an agent’s job is mostly unglamorous. Even down-and-out Jerry Maguire of pop-culture fame, manages some semblance of high class, as a jet-setting friend and confidante of the stars. Yet, for most agents, this is far from the truth. Whether it is the high stress, high stakes world of superstar contract negotiations between the Scott Borases of the agent world, or the increasingly popular agent-on-the-side approach, an agent is many things. This panel will focus primarily on the agent as an entrepreneurial figure, a power player in the decision making process in the industry, and the agent as a day-to-day representative of his client’s interests.

The Changing Face of the NCAA
With the college football bowl season just finishing, and the madness that is the college basketball’s final four on the horizon, it is an appropriate time to evaluate what has happened to college sports. Gone are the days where a school’s academic reputation is more interesting than its athletic. Gone are the days of a few clubs meeting on the muddy football field in front of a handful of local fans. Gone are the days of the amateur ideal. Whether we think the changes in interest, emphasis, and allocation of resources are good or bad are immaterial. Change has occurred: the NCAA basketball postseason championship is a billion-dollar event, bowl games are glittering multi-million dollar prizes that await teams and conferences at the end of the college football season, and college venues are becoming as elaborate and expensive as professional ones. This panel of experts will talk about the changing landscape of the NCAA conferences, the legal and practical issued posed by the growing revenue generated by college sports, and the eroding idea of the amateur athlete.

For more information, click here.

Brian Porto's new book: The Supreme Court and the NCAA

Vermont Law School Professor and Sports Law Institute Deputy Director Brian Porto's new book, "The Supreme Court and the NCAA: The Case for Less Commercialism and More Due Process in College Sports," was recently published by the University of Michigan Press.

Two U.S. Supreme Court decisions, NCAA v. Board of Regents (1984) and NCAA v. Tarkanian (1988), have shaped college sports by permitting the emergence of a supercharged commercial enterprise with high financial stakes for institutions and individuals, while failing to guarantee adequate procedural protections for persons charged with wrongdoing within that enterprise.

Porto examines the conditions that led to the cases, the reasoning behind the justices' rulings and the consequences of those rulings.

Arguing that commercialized college sports should be compatible with the goals of higher education and fair to all participants, Porto suggests that the remedy is a federal statute. His proposed College Sports Legal Reform Act would grant the NCAA a limited "educational exemption" from the antitrust laws, enabling it to enhance academic opportunities for athletes. The Act would also afford greater procedural protections to accused parties in NCAA disciplinary proceedings.

Porto's prescription for reform in college sports makes a significant contribution to the debate about how best to address perennial problems in college sports such as cost containment, access to a meaningful education for athletes and fairness in rule enforcement.

OSU Deja Vu: Legal Lessons from the OSU Basketball Tragedies

The National Transportation Safety Board (“NTSB”) has released its Preliminary Report regarding the November 18, 2011 airplane crash that killed Oklahoma State University (“OSU”) Women’s Basketball coach Kurt Budke and his assistant coach, Miranda Serna. The Piper Cherokee 180 was owned and flown by former Oklahoma State Senator Olin Branstetter who, along with his wife, was also killed in the crash. News reports indicate that the four were flying from OSU to Little Rock, Arkansas for a recruiting trip.

Unbelievably, this was the second tragic plane crash to afflict OSU within a decade. In 2001, an airplane chartered for the OSU Men’s Basketball team crashed in Colorado, killing ten, including two players. The NTSB determined that the 2001 crash was caused by a loss of a.c. electrical power that was not adequately managed by the pilot. Spurred by the loss to its athletic community, OSU revised its team travel policy, and the NTSB held up OSU’s revised post-accident team travel policy as a model for other sports organizations. This policy is largely articulated in a January 21, 2003 letter from the NTSB to Dr. Myles Brand, former NCAA President. It is not known whether OSU’s current travel policy was applicable to the flight that killed coaches Budke and Serna.

The NTSB’s Preliminary Report on the most recent crash, as is typical for preliminary reports, simply addresses “who, what, when, and where.” Over the next several months, the NTSB, along with any manufacturers or others it designates as a party, will conduct a comprehensive investigation into the “how.” Oftentimes this investigation involves, among other things, wreckage and component part inspections and testing, analysis of aircraft logbooks and maintenance records, analysis of the pilot’s experience and qualifications, and analysis of radar and other data pertaining to the accident flight. The investigation will culminate in the NTSB’s probable cause finding, which is the NTSB’s determination as to the probable cause or causes of and contributing factors to the accident.

The NTSB investigates accidents and issues probable cause findings to promote safe transportation, not to help litigants win lawsuits; thus, there are federal regulations that govern the admissibility of NTSB findings and the type and amount of discovery a litigant can conduct with respect to the NTSB. These rules often vex courts presiding over air crash litigation. It is evident, even at this early stage, that many other issues that commonly arise in air crash litigation could be implicated in any lawsuit regarding the recent OSU crash. For example, the question of forum often takes center stage early on in airplane crash lawsuits. In this case, the individuals killed were from Oklahoma, but the plane crashed during a recruiting trip to Arkansas, so a court may have to sort out the appropriate and most convenient forum, and determine which state’s law to apply. The possibly varied residences of any defendants could further complicate this issue. Another possible legal issue is the applicability of the General Aviation Revitalization Act’s 18-year statute of repose which protects manufacturers. Federal Aviation Administration ("FAA") records reveal that the Piper was manufactured in 1964, so product liability lawsuits may be barred, though this is a highly fact-intensive issue that also implicates volumes of precedent. Also, few airplane crash claims are resolved without accompanying insurance coverage disputes, and the factual circumstances surrounding the recent OSU crash lend themselves to possible complex coverage issues.

Regardless of the cause of the recent OSU accident, it underscores the importance of air travel to collegiate sports teams. Colleges and universities are often located in areas not well-served by commercial aviation, so staff and athletes may rely on private aircraft transportation on recruiting trips or away games. Whether a college or university uses its own flight department, a private charter operator, or donated airplanes and crew can have far-reaching and difficult to foresee consequences in the wake of a crash. Shortly before this tragic crash, in light of the KHL hockey team crash, I published an article in Sports Litigation Alert with fellow partners from the Aerospace Group at my firm discussing airplane crashes and sports teams; we discussed prior accidents, common issues in aviation lawsuits, and the importance of safe airplane travel policies. This unfortunate accident should serve as a stark reminder to sports organizations to ensure that their travel policies are current with respect to aviation safety developments, and that their policies are rigorously adhered to. Sports organizations should also watch closely for the NTSB’s findings and any safety recommendations it may make, and review their policies accordingly.

Hat tip to my partner, Michael McGrory, for his work on this piece.

The NHL says it will postpone its plans for realignment because the players association wouldn't approve it in time for next year's schedules. (The union has taken to Twitter to deny it balked at the plan.)

This is tied to travel, which is subject to collective bargaining, but only indirectly. So it's not clear to me that this is something the union should have any say over. The league says it will pursue all avenues to preserve its rights, but it says it's too late for next season.

Edward Zelinsky on "Albert Pujols, Occupy Wall Street, and the Buffett Rule"

Professor Edward Zelinsky, a distinguished tax law expert at Cardozo Law School and author of The Origins of the Ownership Society, has a thoughtful and provocative Oxford University Press piece on Albert Pujols and his 10-year, $254 million contract. Zelinsky argues that Pujols indeed deserves what he is being paid and that he is not under-taxed. Here is an excerpt:

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Pujols is not a poorly-performing CEO whose salary has been inflated by a compliant compensation consultant and ratified by a passive board of directors the CEO himself has selected. Pujols’ salary was established in a transparent and open marketplace by purchasers seeking his services on an arms-length basis against other bidders, baseball teams trying to win more games. Pujols has earned the rewards of the marketplace in a truly competitive fashion.

Pujols joined the proverbial 1% honorably, through hard work and professional success. I suspect that many of the folks who identify with Occupy Wall Street will disagree, but Pujols should not be lumped together with overpaid, underperforming CEOs – of which there are many.

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 To read the rest, click here.  It's a good read.

Reflections on the NFL and NBA Lockouts

I recently posted the working draft of an essay reflecting on the recent NFL and NBA lockouts to SSRN, and thought that it might be of interest to some readers. The abstract for the essay is below:

This essay analyzes the National Football League (“NFL”) and National Basketball Association (“NBA”) lockouts of 2011, focusing in particular on the role union dissolution played in both work stoppages. Although the existing academic literature had generally concluded that players’ unions in the four major U.S. professional sports leagues were unlikely to disband during a labor dispute, the unions in both the NFL and NBA elected to dissolve in the face of lockouts by ownership. This essay provides an explanation for why the pre-existing academic literature underestimated the likelihood that players would disband their unions during a work stoppage, and considers what role union dissolution is likely to play in future professional sports labor disputes.

The paper can be downloaded here. Any comments - critical or otherwise - would be much appreciated.

The Cross-Town Classic: ChiSox versus Cubs on Taxes and Renovations

The Illinois Sports Facilities Authority (“IFSA”) was created in 1987 by the Illinois General Assembly to create and reconstruct sports stadiums for professional teams in Illinois. The IFSA owns and operates U.S. Cellular Field and receives annual debt payments for bonds related to renovations of the stadium. In 2001, the IFSA also contributed to the renovations made to Soldier Field. The IFSA has relied on hotel tax revenue from the state to pay back these payments, but this past year it was forced to turn to a different source of revenue to pay back this debt: Chicago taxpayer money.

Prior to 2011, the Illinois government would provide an advance to the IFSA so it could pay for any work conducted on the stadiums. The IFSA would later pay back those advances with hotel tax revenues. In 2010, though, hotel tax revenue was deficient by over $1.1 million, so the state turned to Chicago’s portion of state income tax to pay the bill. This is the first time that tax revenue fell short since 2001, which is when a new law was enacted that allowed the IFSA to issue bonds for renovations to Solider Field.

Besides receiving scrutiny over this incident, the IFSA has also been criticized for the new restaurant it built right outside U.S. Cellular Field. Taxpayers, again, ultimately paid for the expenses for this restaurant. Furthermore, the IFSA allowed the White Sox to retain all the restaurant profits.

Unfortunately, for the National League team across town, similar benefits from public funding do not exist. There have been recent discussions about renovating privately-owned Wrigley Field, one of the oldest stadiums in American professional sports. Rumors swirled about who would finance the possible restoration. In 2010, Chicago Cubs owner Tom Ricketts developed a complex plan which ultimately asked for $200 million in public money, specifically additional ticket taxes, for the restorations. In September of this past year, sources stated that Mayor Rahm Emanuel was willing to contribute all $200 million using the City’s money. All of these rumors were put to rest, though, when on November 2, 2011, Emanuel announced that the proposed plan was not something he was going to incorporate into the 2012 budget, and the City would not be contributing extra tax money for construction on Wrigley Field.

One obstacle that the Cubs have to overcome in order to raise more money for renovations is getting its restrictive landmark status lifted. If the Cubs were to obtain permission from the City to lift Wrigley’s restrictive landmark status, as the City did for Solider Field so renovations could be done to it in 2001, then not only would construction on Wrigley be allowed, but the Cubs could possibly generate more revenue. Outside of additional seating and expansion of luxury boxes that would surely take place in renovations, removal of the landmark status could allow additional advertisement signage at Wrigley that would generate more revenue to contribute towards the proposed renovations.

With a government entity “overseeing and funding” the renovations to U.S. Cellular Field, which have occurred recently and often, and with Wrigley Field enduring so many restrictions, conspiracy theorists (i.e. Cubs fans) suspect that The Cell is being favored over the Friendly Confines. Keep in mind, though, that the Cubs are one of only five Major League Baseball teams that play in a privately-owned stadium, and do not directly see benefits like renovation monies returned from payment of amusement taxes (12% combined City and County taxes per ticket). Further, while Wrigley’s unique historical significance (only two years junior to Fenway Park) and neighborhood setting certainly brings fans and tourists through the turnstiles, this bears some consequences as well. From objections of the slope of bleachers to not impede rooftop club neighbors to night game restrictions (Wrigley is restricted to a maximum of thirty night games, twenty-four fewer than the MLB average), Wrigley is losing out on direct monies from expansion of seating as well as prime-time television appearances.

If Wrigley Field was sold to the City, it may be renovated, but there is a possibility it may not be done in the way that Cubs’ owners envision. However, as it stands now, Chicago taxpayers are left to pay off the renovations done to U.S. Cellular Field, and the Cubs’ organization is left to explore different financial avenues in order to support its restoration aspirations, such as privately purchasing adjacent property to bring more of the Wrigleyville dollars to the Cubs.

The Sports Law Journal Seeks submissions

The Sports Law Journal is interested in submissions - for more information, e-mail its Editor-in-Chief, Alex Tilton, at atilton1[at]tulane.edu.

Utah AG planning to sue BCS in coming weeks: What to Expect

I speak with Robert Gehrke of the Salt Lake Tribune about what to expect should Utah AG Mark Shurtleff sue the BCS, as he says he plans on doing within the next month or so.  For additional commentary on the BCS, check out our past coverage.