Last Tuesday, the Wisconsin Supreme Court held that a cheerleader who allegedly failed to spot his teammate was immune from liability under a Wisconsin assumption-of-risk statute, which forbids bringing a claim against any amateur athlete who acts negligently while performing a sport. In reaching this conclusion, the court explained that competitive cheerleading was indeed a “sport” based on the American Heritage Dictionary‘s definition of that word: “an activity involving physical exertion and skill that is governed by a set of rules or customs.”

Upon learning of this decision, one astute Above the Law reader asked if courts would similarly find cheerleading to be a sport under Title IX of the Patsy T. Mink Equal Opportunity in Education Act. This is an especially interesting question because some schools including the University of Maryland and Seton Hall University have granted varsity status to their disproportionately female cheerleading squads. Thus far, the Department of Education has not taken a stance on these particular schools’ Title IX compliance, nor has there been a test case in our court system.

After the jump, should cheerleaders count for Title IX purposes?

Continue reading “Sports and the Law: Can Schools ‘Cheer’ Their Way into Title IX Compliance?”

[Ed Note: ATL is happy to welcome back Marc Edelman, sports-law professor/sports-law blogger. Marc will be giving ATL readers his take on the sports-law issues of the day on an ad-hoc basis.]

Sports executives are supposed to be shrewd. They are supposed to be savvy. They are supposed to follow sound legal advice, and they are not expected to write smoking gun emails.

Some big-name sports executives, however, keep fouling this up.

Last Thursday, Portland Trailblazers president Larry Miller sent an email to the other 29 NBA teams, asking them not to sign free agent forward Darius Miles. Miller sent this email because he did not want to incur the salary cap hit that would have been triggered if Miles plays in two more games this season. (For more details, see here).

According to various sources, Miller’s email was filled with legal banter such as claims that if any NBA team signed Miles, it would breach a “fiduciary duty as an NBA joint venturer,” and “tortiously interfer[e] with the Portland Trail Blazers’ contract.”

As a matter of law, however, Miller’s claims are bizarre, if not outright bogus. There is no fiduciary duty amongst NBA teams that forbids them from competing vigorously in the free agent market. In addition, there is no active player contract between a free agent player such as Miles and his former team.

Even more disturbing than these outlandish legal claims, however, is that Miller’s email seems to invite NBA teams to boycott Miles’s services. This reading of Miller’s email places the Blazers at risk of facing an antitrust lawsuit under Section 1 of the Sherman Act or a labor grievance under the anti-collusion provisions in the NBA collective bargaining agreement (Major League Baseball owners got into trouble for similar misconduct in the late 1980s) (pdf).

After the jump, more sports executives behaving badly.

Continue reading “Sports and the Law: Sports Executives Say The Darndest Things”

To: Attorneys All
From: Marc Edelman
Re: A Hearty Farewell
Dear Friends:
Today marks the end of my six-month externship as sports editor at Above the Law. On Monday, August 18, I will begin the next stage of my career as a visiting assistant professor at Rutgers School of Law in Camden, NJ. I will also continue my current affiliation with the Institute for Information Law and Policy at New York Law School.
During my brief stint as your sports law blogger, I enjoyed the opportunity to interact with many readers. To those of you that have reached out, thanks. It has been a pleasure to exchange ideas and share advice on breaking into the sports industry.
To David Lat, thanks as well for taking a leap of faith and inviting me, as an academic, to guest blog on your self-described “tabloid.” I know not all of our experiments worked perfectly (see, e.g., Monday Morning Quarterback); however, more often than not, the readership survived their traditional and sensationalist worlds colliding.
For those wishing to stay in touch, the best way to reach me is via email at either MarcEdel at camden dot rutgers dot edu or Marc at MarcEdelman dot com.
All the best,
M.E.
P.S. For one final time … take it away, Statler and Waldorf.
* * * * *
Marc Edelman is an attorney, business consultant, published author and professor, whose focus is on the fields of sports business and law. You can read his full bio by clicking here.

In honor of both the start of baseball season and April Fool’s Day, log onto Westlaw and type in 123 U. Pa. L. Rev. 1474. What you will find is a piece from the June 1975 University of Pennsylvania Law Review called The Common Law Origins of the Infield Fly Rule. This Aside, presumably written tongue-in-cheek, examines “whether the same types of forces that shaped the development of the common law also generated the Infield Fly Rule.”
The Infield Fly Rule is a baseball rule that prevents infielders from intentionally dropping pop flies with less than two outs and either runners on first and second base or the bases loaded. According to the rule, if a batter hits a pop fly in infield territory, the umpire is supposed to automatically call the batter “out.” Runners are then free to advance at their own risk.
As discussed in the Aside, baseball owners implemented the Infield Fly Rule to combat gamesmanship by infielders, including most famously Columbia Law School graduate Monte Ward, who realized that intentionally dropping pop flies would allow turning single outs into double plays and triple plays. Without adding such a rule, base runners would have no way to know whether to advance or retreat on pop flies until the very last moment.
Over the years, The Common Law Origins of the Infield Fly Rule has developed a cult following. The work has been cited 56 times, including by the U.S. Court of Appeals for the Fifth Circuit. Wikipedia ranks the Aside as one of the sixteen most “significant” works ever published by Penn Law Review. The author Will Stevens even stepped forward to identify himself after having originally published the piece anonymously.
More discussion, after the jump.

Continue reading “Sports and the Law Review”

When the Miami Heat and Atlanta Hawks took the floor last Saturday at Phillips Arena, it marked the first commissioner-ordered “do over” in the past 25 years of NBA basketball. As per NBA Commissioner David Stern’s orders, the Phillips Arena scoreboard was re-set to 114-111 and the game clock was turned back to 51 seconds. The teams then proceeded to replay close to the final minute of a December 19 contest that the Hawks seemingly had already won 117-111. Neither team scored in the “do over” time, meaning the Hawks still utlimately won the contest but by three less points.
The Heat-Hawks “Do Over”
Commissioner Stern ordered this “do over” on January 11 because of what he considered to be “grossly negligent” conduct by the home-team Atlanta Hawks’ official scorers. With 51 seconds left in the original game, the Hawks’ scorers ruled that Miami Heat center Shaquille O’Neal had committed his sixth foul, meaning that O’Neal was ejected from the game. O’Neal, however, had really only committed five fouls.
Stern scheduled the “do over” for March 7, which was the next time when the Heat were supposed to play in Atlanta. This delay, however, created all kinds of problems. Most notably, the original dispute involved whether O’Neal was wrongly prevented from playing the game’s final 51 seconds. However, even though Stern ruled in favor of the Heat, O’Neal was again unable to play in the “do over” because he had been traded from the Heat to the Phoenix Suns for Shawn Marion and Marcus Banks—both of whom Stern deemed eligible to play. Based on this logic, if the Heat had acquired Kevin Garnett and Lebron James in the intervening period, they too would have been eligible to play.
More do-over discussion, after the jump.

Continue reading “Sports and the Law: Appeals and ‘Do Overs’”

On Friday, February 22, Major League Baseball Advanced Media, L.P. (“MLBAM”) and the Major League Baseball Players Association (“MLBPA”) filed a petition for a writ of certiorari to the U.S. Supreme Court (No. 07-1099), seeking to overturn the Eighth Circuit Court of Appeals’ ruling that the first amendment protects free use of baseball players’ names and statistics in fantasy sports games. MLBAM and the MLBPA both contend that the Eighth Circuit’s ruling fails to properly balance important concerns about state-law publicity rights against first amendment interests.
The original case, C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P., emerged from a change in MLBPA policy regarding the licensing of player names to fantasy sports businesses. The district-court plaintiff, C.B.C. Distribution and Marketing, Inc. (“CBC”), for over ten years had licensed directly from the MLBPA major league baseball player names for use in fantasy sports contests. Then, in 2005, the MLBPA decided not to renew CBC’s license—instead granting an exclusive right to use baseball players’ names to MLBAM “for exploitation via all interactive media.” MLBAM thereafter launched its own fantasy baseball contest on its website MLB.com and refused to grant a sublicense to CBC. This led CBC to file suit.
CBC originally filed suit in the District Court for the Eastern District of Missouri, which granted it summary judgment, holding that CBC’s fantasy games did not infringe on any state-law publicity rights that belonged to major league baseball players. The Eighth Circuit affirmed on other grounds, finding that while CBC was indeed infringing on major league baseball players’ publicity rights, CBC’s “first amendment rights in offering its fantasy baseball products supersedes the players’ rights of publicity.” The Eighth Circuit based its ruling on three factors: (1) fantasy baseball statistics are already in the public domain; (2) major league baseball players are already “rewarded, and handsomely;” and (3) there is no danger that any consumers would be misled into believing the use of players’ names represents a product endorsement.
Discussion picks up, after the jump.

Continue reading “Sports and the Law: Supreme Court Might Hear Dispute Over Fantasy Sports Property Rights”

Until recently, fans were limited in their ability to become involved in the business side of sports. Now, however, three businesses are bringing fans a tad closer: (1) a soon-to-be launched, publicly owned professional football league known as the UFL; (2) a democratically run British soccer club called Ebbsfield United FC; and (3) an Internet-based business that sells future interests in the earnings of minor league baseball players.
UFL Public Offering
The story of fan ownership in pro sports inevitably begins with a New York Times article that ran last summer, announcing that financier Bill Hambrecht and Google executive Tim Armstrong were planning to launch a new publicly owned professional football league called the UFL. The UFL is slated to begin play in August 2008 with eight teams, each owned 50 percent by wealthy investors and 50 percent by public shareholders. A date for the initial public offering (“IPO”) is still pending.
The UFL is in the process of choosing its host cities, and it is doing so in an interesting way. With help from an online ticketing partner, prospective customers currently may purchase seating options in thirteen different cities. Whichever eight of these cities sells the most options will land the league’s first franchises.
Column continues, after the jump.

Continue reading “Sports and the Law: Three New Opportunities for Fans to Invest in Sports”

The thirteen commissioners of Miami-Dade County are expected on Thursday to approve a proposal to spend $347 million in taxpayer money to build a new 37,000-seat, retractable roof stadium for the Florida Marlins. This proposal would not only provide a huge subsidy to the team’s much maligned owner, Jeffrey Loria, but it also might violate the Florida Constitution.
According to published reports, the Marlins stadium proposal would require Miami-Dade County to contribute roughly two-thirds of the cost for the new stadium, with the city of Miami contributing roughly 3% ($10 million), and Marlins owner Jeffrey Loria contributing 30% ($155 million). According to Miami Today, Mr. Loria would then be allowed to sell the stadium’s naming rights to a third party, expected to fetch him more than $155 million.
A number of Miami-Dade County residents are unhappy about the idea of publicly funding a new stadium for Mr. Loria, who has never invested much of his own money in the Marlins ball club. Recently, on December 5, 2007, Mr. Loria traded away the Marlins’ two most productive players, Miguel Cabrera and Dontrelle Willis — a move that reduced team payroll to less than $25 million, the lowest in Major League Baseball. For purposes of comparison, the New York Yankees projected 2008 payroll is $213 million. The Yankees, incidentally, are privately financing their new stadium.
Read more, after the jump.

Continue reading “Sports and the Law: Marlins Stadium Subsidy Might Violate State Constitution”