This Sunday marks Michael Vick’s official return to the National Football League–an event that has been widely criticized by People for the Ethical Treatment of Animals (“PETA”), as well as some sports writers and doggie bloggers.
What those who criticize NFL Commissioner Roger Goodell for reinstating Vick fail to understand, however, is that the NFL may have ultimately lacked any real choice. Had the NFL not reinstated Vick, Vick could have potentially filed an antitrust lawsuit against the 32 NFL clubs for concertedly refusing to deal with him. Even though such a lawsuit would have likely failed in the Second and Seventh Circuits (due to the holdings respectively in the Clarett and American Needle cases), a lawsuit against the NFL clubs would have likely gotten to a jury in the Third, Sixth, Eighth and D.C. Circuits–all places where professional athletes have previously won large antitrust settlements.
As a quick background in antitrust law, Section 1 of the Sherman Act, in pertinent part, states that “[e]very contract, combination … or conspiracy in the restraint of trade or commerce … is declared to be illegal.” Although most Section 1 claims involve restraints of trade related to product markets, the Sherman Act likewise prohibits restraints in labor markets, as long as these restraints occur outside of the proper workings of a collective bargaining agreement (“non-statutory labor exemption”).
Courts in general determine whether a particular restraint violates Section 1 of the Sherman Act in three steps. First, courts will determine whether a particular restraint emerges from a “contract, combination or … conspiracy” among two or more parties. Next, they will determine whether the restraint yields a net anticompetitive effect to consumers. Finally, they will assess whether any antitrust exemption would negate the finding of liability.
After the jump, how might a court weigh these factors?

Continue reading “Sports And The Law: Why PETA Shouldn’t Blame Roger Goodell For Michael Vick’s Return”

Back in February, the U.S. Supreme Court asked the acting solicitor general to file an amicus brief in the case American Needle Inc. v. National Football League — a move that seemed to indicate that the Supreme Court would soon hear oral arguments. Yesterday, however, U.S. Solicitor General Elena Kagan did her best Jeff Feagles impersonation by filing a 22-page amicus brief (pdf) that ultimately attempted to punt this case off the Supreme Court’s docket. The brief, which was co-authored by the Federal Trade Commission, concluded that “[t]he petition for a writ of certiorari should be denied.”
For those who have not been following the American Needle case, the original plaintiff, American Needle Inc., had for more than twenty years maintained a non-exclusive license to design and manufacture headgear bearing the NFL clubs’ names and logos. Then, nine years ago, the NFL clubs decided to offer an exclusive license to American Needle’s main rival, Reebok. American Needle thereafter sued the NFL clubs in the Northern District of Illinois, contending that the new NFL licensing arrangement violated Section 1 of the Sherman Act by illegally restraining trade in the market for purchasing rights to NFL logos. The NFL clubs, in turn, responded by not only alleging that their licensing arrangement was pro-competitive under antitrust laws, but also by contending that the NFL clubs combined to form a single-entity that was entirely exempt from antitrust scrutiny.
Let’s take a look at the NFL’s “defensive line” after the jump.

Continue reading “Sports And The Law: Elena Kagan Punts Away American Needle v. NFL”

While President Obama and a bipartisan Congress spent most of last weekend trying to recoup $165 million in taxpayer money that insurance giant AIG paid to its upper-level employees, the Miami-Dade County Commissioners were finalizing a plan to spend $359 million in taxpayer money to build a new baseball stadium for the Florida Marlins “bailout”-demanding owner Jeffrey Loria.

The Marlins new stadium, anticipated to open in 2012, will be neither the first baseball-oriented stadium built with public dollars (that distinction belongs to Milwaukee County Municipal Stadium), nor the most expensive subsidized baseball stadium (that distinction belongs to the Washington Nationals’ new $611 million facility). Yet, this new stadium may ultimately come to symbolize all that is wrong with the relationship between Major League Baseball and the American city.

From a taxpayer perspective, the Marlins new stadium deal epitomizes fiscal irresponsibility. First, the specific terms of the Marlins stadium agreement skew hugely in the Marlins’ favor (more so than many other recent stadium deals). Under the agreement, the local government will be responsible for covering approximately three quarters of stadium building costs, while the Marlins will get to keep all stadium revenues — even those revenues from events completely unrelated to baseball, and even those revenues derived from selling stadium naming rights.

And we haven’t even gotten to the worst part. More on that after the jump.

Continue reading “Sports and the Law: The Marlins New Stadium; More Pork to the Fattest Pig in Town”

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’”