Friday, August 24, 2018

NCAA Business Model Under Fire

The NCAA should be scared. For its business model is in jeopardy. Yes, the “March Madness” model, with a billiondollars flowing to the NCAA and millionsto elite coaches, with little left for the student-athletes who make it all possible.
The threat comes from antitrust litigation. The lawsuit led by former Clemson football player Martin Jenkins on behalf of men’s football and men’s and women’s basketball student-athletes was just cleared for trial. The student-athletes claimthat the NCAA and 11 conferences violated antitrust law by “conspiring to impose an artificial ceiling” on the scholarships and benefits they can receive.
First, a bit of history. In the first trial taking direct aim at the NCAA’s amateurism defense, former college basketball star Ed O’Bannon challenged rules preventing student-athletes from being paid when their name, image, or likeness (NIL) appeared in videogames, live game telecasts, and other television footage.
The NCAA’s long-avowed defense based on amateurism—that its rules prohibiting payment to players are essential for college sports to exist—was revealed in the O’Bannon case to have significant holes. Judge Claudia Wilken found that the rules had significant anticompetitive effects in preventing the student-athletes from receiving NIL payments. And while the amateurism defense was weaker than alleged, it was sufficient to allow the court to reach the question of whether there were less restrictive alternatives to the NIL rules.
The court found two such alternatives: (1) increasing payment from the “grant in aid” (GIA) (covering tuition and fees, room and board, and required books) to the “cost of attendance” (COA) (which also includes supplies and transportation) and (2) allowing players to receive $5,000 NIL payments held in trust until they graduated. (The Ninth Circuit, applying an aggressive standard of review, rejected the second.)
In a nutshell, O’Bannon opened the door to scrutiny of the NCAA’s amateurism defense with the relatively limited goal of obtaining NIL payments.
In contrast, the Jenkins case aims for the whole enchilada. The plaintiffs already settledwith the NCAA on their damages claim, obtaining the $200-million difference between the GIA and COA. In the proceedings headed to trial, they seek an injunction, forcing the NCAA to change the way it does business.
In its March 28 ruling, the court first found that plaintiffs’ case was not barred by the O’Bannon case. The court explained that—because of new plaintiffs and different challenges—this case can go forward.
The court then found that the student-athletes satisfied their burden of showing an anticompetitive effect because they would have obtained greater compensation and benefits absent the NCAA’s restrictions on payment.
The court next accepted the NCAA’s justifications recognized in O’Bannon of amateurism and integrating the student-athletes into the schools’ communities. But it made clear that it would not presume the justifications but that defendants had to prove them at trial.
Finally, and most notably, the court explained that the stage of less restrictive alternatives would be applied differently in this case than it was in O’Bannon. For instead of being restricted to the limited remedy of NIL payments, the student-athletes’ more ambitious challenge here is accompanied by more far-reaching remedies: (1) allowing conferences to set their own rules and (2) blocking NCAA rules limiting payments and benefits linked to educational benefits and incidental expenses.
At the end of the day, the court made clear that NCAA regulations are subject to antitrust scrutiny. And amidst the bright lights and rich rewards of March Madness, the NCAA will be challenged like never before to defend rules that seem arbitrary and inconsistent to the student athletes who are at the heart of big-time college sports but who are left on the outside when the money comes rolling in.

Infield shifts and limiting rules

Scoring is down in baseball this season (and has been on a downward trend in recent years). Some of the declines is being attributed to the increasing use of defensive shifts, especially against left-handed pull hitters, with teams situating four defenders to the right of second base and placing the second baseman in the shallow right field, where he is close enough to field a grounder and throw out the runner. SI's Tom Verducci shows the effects and offers an "illegal defense" rule--prohibiting teams from placing three infielders on one side of the field (so the shortstop could be only as far as even with second base) or requiring infielders to have one foot on the infield dirt (removing the rover in short right field).

In devising a framework to explain the Infield Fly Rule and other rules that seek to limit or eliminate strategic moves within a sport, I distinguish true limiting rules from aesthetic rules. True limiting rules are designed to avoid or eliminate extraordinary cost-benefit imbalances on plays, while aesthetic rules are designed to ensure the beauty of the game. For example, the I/F/R and the rules on uncaught third strikes are true limiting rules; Offside in soccer or rules designed to limit end-of-game fouling in basketball are aesthetic.

I had thought of the possible responses to shifts as aesthetic because the cost-benefit disadvantage was not unavoidable if the batter could and would learn to hit away from the shift. But the stats Verducci musters give me pause. There appears to be a structural disadvantage for left-handed hitters, something baked into the game that works against these players and that cannot be overcome, at least without altering the game. And while playing the second baseman in shallow right field is not as obviously contrary to expectations as intentionally not catching a fair fly ball, it is out of the ordinary for what we understand of the game.
So the need for an "illegal defense" rule may be not a question of making the game look good, it may be a question of its basic situational competitive balance.

NFL Agents and Tortious Interference

I am currently representing an NFLPA-certified contract advisor (better known as an “agent”) in a dispute with another agent.  The NFLPA’s Regulations Governing Contract Advisors require certain types of disputes between agents (and also between agents and players) to be adjudicated through an NFLPA-governed arbitration process.  This has been the case since 1994, shortly after the NFLPA recertified itself as the bargaining representative of NFL players following the White v. NFL settlement.  By recertifying itself, the NFLPA regained its authority to certify and regulate agents under the National Labor Relations Act.

Representing an agent or a player in these grievances (as I’ve done in the past) provides an interesting window into the NFLPA arbitration system and case law.  In order to allow the parties to be properly prepared, the NFLPA provides the parties with all prior arbitration decisions brought under its auspices.  At present, there have been approximately 290 decisions in disputes between an agent and a player (almost always involving an unpaid commission or the return of money loaned).  On the other hand, there are only 22 decisions in an action brought by an agent against another agent – less than one a year.

The paucity of actions does not necessarily reflect the absence of grievances initiated.  Arbitrator Roger Kaplan – who has handled almost all of the arbitrations brought under the NFLPA Regulations – is known for having a deft hand in forging settlements before any decision is rendered.

Nevertheless, what is particularly interesting is the nature of the claims brought and the results reached in the “agent v. agent” cases.  In 18 of the cases, the principal claim was, what would be called in civil litigation, tortious interference (my current case is not such a case).  Section 3(B)(21)(a) of the NFLPA Regulations prohibits an agent from:

Initiating any communication, directly or indirectly, with a player who has entered into a Standard Representation Agreement with another Contract Advisor . . . if the communication concerns a matter relating to the: (i) Player’s current Contract Advisor; (ii) Player’s current Standard Representation Agreement; (iii) Player’s contract status with any NFL Club(s); or (iv) Services to be provided by prospective Contract Advisor either through a Standard Representation Agreement or otherwise.
Nevertheless, Section 3(B)(21) does not apply if the player initiates the communication, if the player has less than 60 days left on his player contract, or to generalized marketing materials.

You don’t have to spend much time with an agent to understand the fierce competition within their industry – which is horribly cut throat (about half of all agents don’t have a single client).  However, even though agents regularly accuse other agents of stealing each other's clients, there are only 18 cases where agents brought an action against another agent claiming tortious interference under Section 3(B)(21)(a).  And in all 18 of those cases, the arbitrator found for the respondent, determining that the complaining agent had failed to prove a violation of Section 3(B)(21)(a) or its predecessor provisions.

There are a variety of factors which may contribute to an undefeated record for respondents in 3(B)(21) cases:  (1) limited discovery in arbitration likely makes it challenging to prove any improper communications occurred; (2) many alleged improper communications likely occur orally and in a group gathering, making the question of who initiated what and when challenging; (3) as mentioned above, Section 3(B)(21) provides a variety of exceptions to the prohibition against contact, seemingly in order to enable players to be well-represented during contract negotiations; and (4) many agents are likely resigned to the nature of their industry and have little faith in seeking relief for alleged wrongs.

Solicitation of another agent’s clients undoubtedly occurs.  Several courts have found that such behavior appropriately provides players with competitive choices.  See, e.g., Speakers of Sport, Inc. v. ProServ, Inc., 178 F.3d 862 (7th Cir. 1999); Champion Pro Consulting Group, LLC v. Impact Sports Football, LLC, 116 F. Supp. 3d 644 (M.D.N.C. 2015) (disclosure: I represented Impact Sports in this case); Bauer v. Interpublic Group of Companies, Inc., 255 F. Supp. 2d 1086 (N.D. Cal. 2003).  But at what point is the behavior inappropriate?  Unfair? Tortious interference?  And if so, do NFL agents have meaningful recourse?  The current arbitral case history suggests these are open questions.

The overwhelming effect of stays pending appeal

The Second Circuit denied a stay pending appeal of the denial of an injunction barring suspension of NFL running back Ezekiel Elliott. The court referred to it as an "injunction pending appeal," which is wrong and the improper terminology makes the media reporting on this more confusing than usual.

Tracing the history of this case is a Fed Courts or Remedies problem all its own: 1) Elliott was suspended for six games and an arbitrator upheld the suspension; 2) a judge in the Eastern District of Texas issued a preliminary injunction barring enforcement of the suspension (allowing Elliott to play); 3) the Fifth Circuit reversed, holding that the district court lacked jurisdiction, grounds that were arguably incorrect, although the result was probably right (barring Elliott from playing); 4) the union and player filed suit in the Southern District of New York; 5) a district judge granted a TRO (allowing Elliott to play); 6) the same judge refused to grant a preliminary injunction (barring Elliott from playing); 7) the Second Circuit granted a temporary stay of the denial of the preliminary injunction (allowing Elliott to play) pending fuller consideration of the motion to stay; 8) the Second Circuit today denied a full stay pending appeal, allowing the judgment denying the preliminary injunction to go into effect, meaning the suspension goes into effect and Elliott will not be able to play on Sunday (unless SCOTUS gets involved).

Even more than in the marriage-equality litigation, the stay question dictates the result in these cases. Although the Second Circuit granted expedited appeal, it is not clear that the case will be resolved before Elliott has missed six games. The question is the weight the likelihood-of-success prong bears in these cases--it is hard to overturn an arbitrator's decision, so Elliott was not likely to succeed in having the denial of the injunction reversed. And that may have convinced the court of appeals there was no irreparable harm in having the suspension take effect.

Jews and the 2017 World Series

Some off-the-cuff baseball history.

The 2017 World Series features Jewish players on both teams--Alex Bregman for the Astros and Joc Pederson for the Dodgers. According to Bob Wechsler, author of The Jewish Baseball Card Book, this is the first two-Jew Series since 2004 (Gabe Kapler for the Red Sox and Jason Marquis for the Cardinals); the second since 1959 (when Sandy Koufax played for the Dodgers); and the fifth in history (the other two involved Hank Greenberg in 1945 and 1940).

In Game 2 this evening, Bregman is the Astros regular third baseman, while Pederson will start in left for the Dodgers. This is, as far as I can tell, the first time that both teams have started a Jewish player in a World Series game. Kapler did not start against Marquis in Game 4 in 2004, nor did the Jewish players playing against Koufax and Greenberg.

Bregman homered last night for the Astros' only run. I am trying to figure out who was the last Jewish player to homer in a Series. Greenberg hit 2 in the 1945 World Series. I cannot find any homers since then. Who am I missing and when?

[Update: Naturally, we need a Halachic ruling on the last point: Steve Yeager, the Dodgers catcher in the '70s and early '80s, hit 2 homers in the '77 Series and 2 in the '81 Series (in which he won MVP), but converted to Judaism only after he retired. So he is Jewish, but was not when he hit those 4 homers. Do these count as World Series homers by a Jewish player?]

[Further Update: Pederson homered for the Dodgers’ first run of Game 2, making this the first Series with home runs by multiple Jewish players.]

[One More Update: According to Ron Kaplan, the only Jewish player to homer in the Series between Greenberg in 1945 and Bregman and Pederson this year (if you do not count Yeager) was Ken Holtzman, a pitcher for the A's, who homered in Game 2 of the '74 Series (in researching this by going through a list of Jewish players and their career stats, I did not think to look at any pitchers).]

Monday, August 20, 2018

Former Linebacker Tests Application of Disability Laws to NFL Workplace

The NFL is an extraordinary workplace – players face risks and earn incomes far beyond the imagination of many Americans.  Nevertheless, it is a workplace – meaning it is governed by the same state and federal laws as any other workplace.  Moreover, the NFL and NFLPA cannot collectively bargain around these laws as the NFL learned in the StarCaps case.  Williams v. Nat’l Football League, 582 F.3d 863 (8th Cir. 2009), cert. denied, 562 U.S. 1029 (disclosure: my prior law firm represented Kevin and Pat Williams).

Despite being protected by traditional workplace laws such as the Civil Rights Act, Occupational Safety and Health Act (“OSH Act”), Americans with Disabilities Act (“ADA”), and the Genetic Information Nondiscrimination Act (“GINA”), players rarely seek protections under these statutes.  In one law review article I recently co-authored, we explained the potential application of the ADA and GINA to the NFL workplace (including potential violations at the NFL Combine) – and in a forthcoming work, we address the application of the OSH Act to the NFL workplace.

Despite the application of these laws to the NFL, litigation is rare.  One former NFL player has recently initiated a lawsuit seeking their protection.  On September 29, 2017, Erin Henderson, an NFL linebacker from 2008-16 with 119 career tackles and 8.5 sacks, sued the New York Jets, his most recent employer, in New Jersey state court alleging violations of the New Jersey Law Against Discrimination.  Specifically, Henderson alleged that he suffered from bi-polar disorder and that the Jets placed him on the Non-Football Injury list (depriving him of his salary) and ultimately terminated him because of his condition.

The Jets removed the case to federal court on diversity grounds – but did not argue that Henderson’s claims were preempted by the Labor Management Relations Act, an argument that is frequently made by NFL clubs.  Henderson responded by filing an amended complaint that added a federal ADA claim.  Then, on December 20, the Jets answered the amended complaint.  The fact that the Jets did not move to dismiss supports the viability of these claims at least at the pleading stage.

Henderson will now have the benefit of discovery and we can await the prospect of a court ruling establishing important precedent about the application of the ADA to the NFL.  If Henderson is successful, perhaps more players will seek the protections afforded by workplace laws.

The case is Henderson v. New York Jets, LLC, 17-cv-10110 (D.N.J.). 

The Save America's Pastime Act

At the behest of Major League Baseball, the omnibus spending bill that Congress enacted back in March included a short, half-page provision known as the Save America's Pastime Act (SAPA). The SAPA created a new exemption to the Fair Labor Standards Act, largely excluding minor-league baseball players from the federal minimum wage and overtime rules.

I just posted the draft of a new law review article -- entitled The Save America's Pastime Act and Its Implications for the Future of Minor-League Baseball -- analyzing the SAPA and its implications for the professional baseball industry. The abstract of the article appears below:
Buried deep within the 2,232-page omnibus federal spending bill passed by Congress in March 2018, was an obscure, half-page provision entitled the “Save America’s Pastime Act” (SAPA). The SAPA was inserted into the spending bill at the last minute at the behest of Major League Baseball (MLB), following several years — and several million dollars — worth of lobbying efforts. MLB pursued the legislation to insulate its minor-league pay practices from legal challenge after they had become the subject of a federal class-action lawsuit alleging that the league’s teams failed to pay minor-league players in accordance with the Fair Labor Standards Act (FLSA). The SAPA largely shields MLB from these claims by creating a new statutory exemption excluding most professional baseball players from the protections of the FLSA.
This article provides the first substantive analysis of the SAPA. Specifically, it asserts that although initial assessments concluded that the provision would shield MLB from any future liability for its minor-league pay practices, a closer reading of the statute reveals that it contains several potential ambiguities that could arguably give rise to unanticipated liability for the league. At the same time, however, the article nevertheless asserts that the SAPA significantly reduces the odds that MLB will be forced to substantially change its minor-league pay practices in the future.
The article can be downloaded here. Any feedback would be greatly appreciated.

NYC Bar Association Event - Taking a Knee: Legal Implications of Athlete Political and Social Activism

Piggybacking on what looks like a great event at the University of New Hampshire School of Law, I wanted to invite readers to a similar event being hosted by the New York City Bar Association's Sports Law Committee on April 30.  Information below.

Monday, April 30, 2018 | 6:30 p.m. - 8:30 p.m.

Program Fee: $15 for Student Members | $25 for Members | $20 for Public Interest Lawyers | $40 for Non-Members

Includes cocktails and hors d’oeuvres.

Do professional athletes need to check their voices and opinions before walking on the field or court? Should they use their public profiles as a platform for social justice issues and reform? Does a team or league have the authority to require neutral politics and behavior from players if they want to get paid and put in the game?

In recent years, we have seen an increase in social and political activism by professional athletes, especially around issues of race and equal pay for female athletes. Their actions have been met with a wide range of reactions - from strong praise and solidarity to vehement admonishment, and everything in between. Being a political or social activist on the field raises various legal issues - including labor and employment law concerns between the players and their teams or leagues, potential First Amendment considerations, and possible contractual issues with sponsors.

This event will explore the recent controversy in "taking a knee" by drawing on the expertise of individuals with first-hand experience, including athletes, team and league executives, union representatives, agents, and others with careers in the sports industry.
Jeff Fannell, Founder and Owner, Jeff Fannell & Associates, a sports management and consulting firm. Fannell was formerly in-house counsel at the Major League Baseball Players Association (MLBPA) and an Adjunct Professor, St. John’s University School of Law, teaching Sports Law.
Teri Patterson Smith, Deputy COO and Special Counsel, NFL Players Association (NFLPA), where she oversees all NFLPA community efforts and assists the Executive Director with the organization's management. Smith was formerly with Dechert, LLP and Latham & Watkins, LLP.
Adolpho Birch, Senior Vice President of Labor Policy & League Affairs, NFL. Birch oversees the League's policies respecting the integrity of the game, including those on substances of abuse, performance-enhancing drugs, gambling and criminal misconduct, and advances the League's legislative and political interests. Prior to joining the NFL, Birch worked in private practice in Houston, Texas.
Alex Lasry, Senior Vice President, Milwaukee Bucks. Lasry directs the team's digital marketing and leads the organization's development initiatives, including the team's rebrand and its historic public-private partnership for a new arena and 30-acre development project in downtown Milwaukee. Lasry is also part of the Management Committee that oversees the organization's strategic growth. Prior to joining the Bucks, Lasry worked as the Deputy Counselor for Strategic Engagement at the White House and as an analyst for Goldman Sachs.
Andrew Hawkins, former wide receiver in the NFL, having played from 2011 through 2016 for the Cincinnati Bengals and Cleveland Browns.  In six seasons, Hawkins caught 209 passes, for 2,419 yards and nine touchdowns.  Hawkins has an undergraduate degree from the University of Toledo and an M.S. in Sport Management from Columbia University.
Sponsoring Association Committee:
Sports Law Committee, Karen Hoffman Lent and David Sussman, Co-Chairs
Office for Diversity and Inclusion

Wednesday, August 1, 2018

Submission to BJSM on Unreliable Data and Results in IAAF Science on Testosterone

Submission to BJSM on Unreliable Data and Results in IAAF Science on Testosterone
Along with Ross Tucker and Erick Boye, today I have submitted our re-vised paper on erroneous data and unreliable results on Bermon and Garnier (2017), the IAAF study which underpins its new testosterone regulations.

The full paper can be found here in PDF.

For additional background see here, here, here. I am happy to hear your comments or questions, here in the comments or on Twitter.

Friday, July 27, 2018

BJSM Lets Stand a Deeply Flawed Paper, Why?

BJSM Lets Stand a Deeply Flawed Paper, Why?
A few weeks ago the New York Times wrote about a paper we had submitted to the British Journal of Sports Medicine calling for Bermon and Garnier (2017, BG17) to be retracted. You can get the back story at the links in the previous sentence, but two things to understand up front:
  • BG17 is not just any old scientific paper -- it is the only scientific basis for regulations to be implemented by the International Association of Athletics Federation (IAAF) governing naturally occurring testosterone in female athletes.
  • Calling for a retraction of a scientific paper is not something to be done lightly. BG17 is the first paper that I have called on publicly to be retracted in 25+ years of publishing, reviewing, serving on editorial boards and studying science in policy. Yes, it is that bad.
Today the editor of BJSM emailed with the following information (which are quoted in full from his message):
1. The BJSM editorial team has considered the various points raised to us about retracting BG17 (including yours) and stand by our decision that retraction would be inappropriate. 
2. We respect the authors’ decision not to open these data even though we support the general principle of data sharing.
No retraction, no sharing of data.

When should a paper be retracted? Fortunately, the publisher of BJSM has a policy on retraction which states:
Retractions are considered by journal editors in cases of evidence of unreliable data or findings, plagiarism, duplicate publication, and unethical research.
This retraction policy is similar to the recommendation of the Committee on Publication Ethics (COPE), whose guidelines are followed by most scientific publishers (PDF):
Retraction is a mechanism for correcting the literature and alerting readers to publications that contain such seriously flawed or erroneous data that their findings and conclusions cannot be relied upon.
Why have we called for BJSM to retract BG17? Because of seriously flawed and erroneous data such that the paper's conclusions cannot be relied on. This is such a clear case that it is baffling why BJSM has chosen not only to let the paper stand, but to not require the paper's flawed data to be shared openly.

Why is the case so clear?
An editorial board should be so lucky as to have such a clear cut case. It's a no brainer. The message to BG17 should be: Sorry guys but this effort is so flawed that we are going to pull it. End of story.

So why did the BJSM editorial board act as they did? I have no insight on their internal deliberations, but given the retraction policy of the publisher of BJSM and the ethical guidelines suggested by COPE, there logically can be only three possibilities.
  • The BJSM editorial board disagrees with our analysis and the statement of the lead author of BG17 that there are pervasive errors underlying the original analysis. This would be a very odd position to take, as it is contrary to both evidence and the admission of the researchers who wrote BG17 and BHKE18.
  • The BJSM editorial board accepts that there are pervasive errors in BG17 and has decided to let the paper stand regardless. This too would be an odd position to take, as it is unethical and unscientific (according to COPE) and contrary to the retraction policy that BJSM is expected to follow. No scientific publisher worthy of the title would let flawed science stand. 
  • The BJSM editorial board is uncertain about the presence of pervasive errors in BG17 and in the face of this uncertainty has decided to let the paper stand. This would be an exceptionally odd position to take in light of the fact that BJSM has concluded (emphasis added), "We respect the authors’ decision not to open these data even though we support the general principle of data sharing." A really good way to understand the true depth of data errors would be for BJSM to require the authors of BG17 to release fully 100% of their data that has no privacy concerns.
So which is it?

The bottom line here is that BJSM has failed in its core scientific obligations. By all appearances BJSM is acting in the interests of IAAF and protecting IAAF research from normal scientific scrutiny.  I have no idea why this is so, but it is a subject that I'll continue to pursue.

Ross Tucker, Erik Boye and I will be revising our submission to BJSM and will ask to have it reviewed, published and linked to BG17. Obvious more to come, stay tuned.

(Note: This post represents my views only, though everyone is welcome to share them.)