The Sports & Entertainment Law Playbook

ESPN is now reporting that Rutgers Athletic Director Tim Pernetti has been fired for his handling of the Mike Rice disciplinary procedure. Stay tuned...

By Travis J. Tormey

New York Jets linebacker Bryan Thomas is asking the Morris County Prosecutor to accept him into “pre-trial intervention,” which is a New Jersey courts diversionary program for first-time offenders. The 6’4” 265-pound linebacker is facing criminal charges of aggravated assault and possession of controlled dangerous substances following a domestic incident last October during which he allegedly punched his wife in the stomach.

To be eligible for the PTI program, you must have no prior criminal history, and you cannot have used a diversionary program before (such as PTI, or conditional discharge). Additionally, PTI is typically only available for non-violent and lower-level crimes, and the county prosecutor’s office has to accept you into the program. Typically, offenses like this one (aggravated assault) would preclude PTI, but in this case the prosecutor might go along with it because the victim no longer wants to testify. The prosecutor’s choice, then, is to try the case without a key witness, and risk acquittal, or take the defendant into PTI, require domestic violence counseling, and hope that he learns his lesson.

In this case, it looks like Thomas will be admitted into the PTI program. Prosecutors use PTI in cases like this where his wife wants the charges dropped against him. If she is unwilling to testify and there are no witnesses to the alleged assault, the State will be unable to prove the charges against him beyond a reasonable doubt. As a result, rather than drop the charges altogether, they will allow him to complete PTI and domestic violence counseling in hopes that no other incidents like this occur in the future.

If Thomas is accepted into the PTI program, his charges will be suspended while he completes probation, counseling, etc. If he successfully completes the program, the charges will be dismissed and he will have no record from this incident. This seems like a fair result in this case. The bottom line is, if his wife refuses to testify and wants the charges dropped, PTI at least allows the State to monitor him and require that he attend counseling. In the alternative, the charges would be dropped altogether without any consequences at all.

--

Travis J. Tormey is a New Jersey trial attorney and the founder of the Tormey Law Firm, LLC, which is dedicated exclusively to criminal and drunk driving (DWI) defense. Travis has been certified to operate the Alcotest 7110, which is the breath testing device used to prosecute DWI cases in New Jersey, and Travis worked on two of the most influential DWI cases in recent history in New Jersey—State v. Holland and State v. O'Driscoll. Travis is also known for his expertise in defending sex crime charges, and disorderly persons offenses, and has been cited in New Jersey by the Bergen Record, Daily Record, and Asbury Park Press, and nationally by AOL News. Travis blogs at www.criminallawyerinnj.com and www.bergencountycriminaldefensedwilawyer.com.

Today, it seems, is the end of the line for Lance Armstrong. I remember what I said—here, here, and here, on Twitter, and probably elsewhere too—that despite all the news reports and controversy surrounding USADA's indictment of Lance Armstrong for engaging in a systematic pattern doping, he was still a 7-time Tour de France winner. Now, not so much.

Earlier today, Patrick McQuaid, president of the International Cycling Union (aka UCI) announced that the UCI was adopting USADA's findings and imposing their recommended sanctions (strip all 7 #TdF victories, plus lifetime ban from cycling). McQuaid is the most senior administrative individual in all of cycling, thus, he and his organization were the only ones with jurisdiction or authority to take the action that USADA threatened. In a press conference from Geneva, Switzerland, McQuaid said this:

Lance Armstrong has no place in cycling, and he deserves to be forgotten in cycling.

So is this post my personal mea culpa? You could say that. But for the record, I never said that Armstrong never doped. He did. So did a lot of other cyclists. Some of them got caught; some didn't. In spite of all the terrible things we're learning about the 15+ year conspiracy led by Lance Armstrong, I still don't believe that it was fair or just to go back in time and take away his #TdF titles. We set a very bad precedent when we turn back the clock to try and change something that is already done and decided. What's done is done, and hindsight is always 20/20. If, when it's all said and done, it's brutally obvious that the guy was a scumbag, so be it.

Photo credit: Richard Masoner, Flickr

The big news over the weekend was that the U.S. Anti-Doping Agency (USADA) supposedly stripped Lance Armstrong of his 7 Tour de France (TdF) titles, after Armstrong announced that he would not enter into arbitration to decide whether he won those events with help from banned substances. Pittsburgh sports attorney Jay Reisinger (@jayreisinger) wrote an accurate account of how we got to this point, and I've seen and heard several other descriptions that are also accurate, so I won't bother recapitulating.

What surprises me is that nobody seems to be questioning USADA's authority (or lack thereof) to take away something that was bestowed upon Armstrong by the International Cycling Union (UCI). USADA is a private, non-profit corporation. Despite its name, USADA isn't a government agency, nor does it have any governmental or police power, or judicial authority. USADA was created to do one thing: To oversee U.S. Olympians and Olympic hopefuls, and to monitor and regulate their use of performance-enhancing drugs. The Tour is sanctioned by UCI. They award the yellow jersey. They are the only body that can take it away. 

USADA cannot assert control of a professional international sport and attempt to strip my seven Tour de France titles. I know who won those seven Tours, my teammates know who won those seven Tours, and everyone I competed against knows who won those seven Tours.

Even though every news outlet has reported that USADA stripped Lance Armstrong of his TdF victories, it hasn't actually happened. What has happened is that USADA sent a report of its "findings" to the UCI, which will examine the report, and then make its determination. Could the UCI strip Lance Armstrong of his titles? Sure. But it hasn't happened yet, and it may not happen at all. So don't buy into the hype, and don't buy Travis Tygart's propaganda.

Earlier:

Deja Vu All Over Again: USADA Launches New Assault on Lance Armstrong

Latest on Blood Doping in Pro Cycling

Also read:

ESPN News, Lance Armstrong won't fight charges

Brian Alexander, How Armstrong Could ‘Get Away With Stuff With Everybody Looking'

Photo credit: jdegenhardt

Yesterday, the NCAA and the big four professional sports leagues filed a lawsuit against New Jersey Governor Chris Christie, alleging that the state law that was approved by NJ voters last November is a "clear and flagrant violation of federal law." The five sports organizations (plaintiffs) are asking the U.S. District Court for the District of New Jersey for preliminary and permanent injunctions against NJ officials, to enjoin (prevent) them from carrying out the law that authorizes sports betting in New Jersey. Here's why the State of New Jersey will prevail:

First of all, there's a legitimate argument that the federal statute at issue—the Professional & Amateur Sports Protection Act (PASPA), 28 U.S.C. § 3702—is unconstitutional. Second, even if the statute is constitutional on its face, because the NJ voters overwhelmingly approved the referendum, the state can argue that the statute is unconstitutional as applied because it violates the Tenth Amendment (state sovereignty).

And perhaps the most compelling reason that New Jersey will prevail is that courts don't hand out injunctions like Roger Goodell hands out fines and suspensions. There's a strict, three-part test that the plaintiffs must prove: 1) a likelihood of success on the merits of the lawsuit; 2) irreparable harm is likely if the court doesn't grant the injunction; and 3) that the injunction is necessary to "balance the equities" in the controversy.

Success on the merits essentially means that the plaintiffs have a clear right to relief, or, that there's very little doubt that they will ultimately win the case. In this case, even if the plaintiffs could ultimately win, it's not so clear or obvious as to sufficiently prove a likelihood of success. To try to show their likelihood of success, the plaintiffs simply cited the federal statute at issue—which purportedly bans sports betting in all states except Nevada, Delaware, Montana, and Oregon. But there is a countervailing argument—that the federal law could be unconstitutional. Even though the plaintiffs have the burden of proof, all Gov. Christie (who was a fairly astute lawyer and federal prosecutor in his day) has to do is show the court that there's doubt.

With regard to irreparable harm, the plaintiffs said this in their complaint: 

[A]uthorization of sports gambling in New Jersey would irreparably harm amateur and professional sports by fostering suspicion that individual plays and final scores of games may have been influenced by factors other than honest athletic competition. Plaintiffs cannot be compensated in money damages for the harm that sports gambling poses to the character and integrity of their respective sporting events. Once their reputations and goodwill have been compromised, and the bonds of loyalty and devotion between fans and teams have been broken, Plaintiffs will have been irreparably injured in a manner that cannot be measured in dollars.

Once you consider the undeniable fact that, even without being lawful, sports betting is a multi-billion-dollar industry, the irreparable harm argument is almost laughable. Further, the NJ law specifically carves out local collegiate sports betting from being permissible, which chips away even more of the NCAA's assertion that they will be irreparably harmed by the law.

But there are a couple more reasons that New Jersey will prevail. Say what you want about Chris Christie; you may not like him, his mouth, or his politics, but he has a proven track record of winning. Finally, the pink elephant in the room is Atlantic City, NJ, which for all intents and purposes is the Gambling Capital of the East Coast. With all due respect to Mike Florio, I don't believe that the Third Circuit's ruling on sports betting in Delaware will be controlling in this case. As I said back in November, the state of New Jersey spent a great deal of money getting this law passed. They knew about PASPA, and they got sports betting in NJ on the ballot anyway. It wasn't easy, and it wasn't cheap, and they wouldn't have done it if they didn't believe that the benefits outweighed the risks.

READ:

 Complaint for Declaratory & Injunctive Relief, No. 3:12-cv-04947 (D.N.J. filed Aug. 7, 2012) (PDF)

SEE ALSO:

NJ Says 'Yes' to Sports Betting, But Why?

Tim Dahlberg, Time to do away with sports betting stigma

PHOTO CREDIT: DonkeyHotey

I'm gonna go out on a limb, and say that Ohio State Football Coach Urban Meyer didn't get his new $26M contract from legalzoom.com. It has nothing to do with the fact that it's a high-dollar contract, either. The reason I know that the contract was not created from some computer database is that the terms of the contract are tailored to the specific circumstances that are important to the contracting parties.

I'm not saying there's anything wrong with Legal Zoom. If you need a will, and you have no children or substantial assets, I'm sure that whatever they have may suffice. If you need a simple power of attorney, a bill of sale for that old refrigerator you're selling out of your basement, or maybe even an operating agreement for your single-member LLC, then I could see using Legal Zoom. But I wouldn't trust them with a document that has the possibility of affecting another person's livelihood, or the potential to be litigated.

Last November, Urban Meyer shocked the college football world when Ohio State introduced him as their new head football coach in the wake of the Tattoo-gate scandal, which cost the Buckeyes several players, including quarterback Terrelle Pryor, and once-beloved coach Jim Tressel. Meyer won two national championships at the University of Florida, and then resigned, citing health conditions, before essentially coming out of early retirement to take the job in Columbus. Although Meyer's $4.4M annual compensation makes him far and away the highest paid coach in the Big Ten Conference, the brilliance of his contract isn't reflected in that number.

When Ohio State released the details of Meyer's contract last week, we learned about a special provision that—if the NCAA levies more sanctions against the school arising out of the Tressel-ball era—allows Meyer to get out of the deal, AND still pays him $1.5M per year for the remainder of the six-year term. That contractual provision is essentially an insurance policy for Urban Meyer, so he doesn't get stuck living in Columbus, Ohio, and coaching a dead-end team because of what happened during Jim Tressel's watch. This type of a contract clause can't come from some antiquated legal form. It can only be the product of a skilled contract drafter, someone who has taken the time to understand the parties' true interests and objectives, which many times are a lot more complicated than dollars and cents.

You might think that you have to make Urban Meyer money to be able to get a contract that good, but you'd be wrong. Before you enter into any agreement for employment, or to buy or sell anything of significant value, it's worth the cost of a one-hour consultation with an attorney to discuss what's on the table, and address any potential issues or concerns that are on your mind. At the end of that consultation, the attorney will either tell you that you'll be fine with the basic contract, or what the pitfalls lie ahead in relying on a standard document. In most cases, it's like the old adage, pay a little now, or pay a lot later: If you and a buddy enter into a business deal based on some chicken scratch on a cocktail napkin, if and when things go south, you could find yourself in the middle of a contentious (expensive) lawsuit.

NB: The above statements are not intended to be construed as an endorsement of any online or other provider of legal documents or forms.

Photo credit: Brooke LaValley, Columbus Dispatch

Earlier:

University Paid Nearly $142K in Football Players' Legal Fees

Will NCAA Sanction Tressel If They Determine He Withheld Information

Consequences If Buckeyes Break Promise To Return

Did Major League Baseball get the last laugh in the chain-of-custody argument?

Last week, the League fired longtime grievance arbitrator Shyam Das (the guy who cast the deciding vote that overturned National League MVP Ryan Braun's 50-game suspension for testing positive for performance-enhancing drugs last month) after allowing a second player to use the so-called chain-of-custody defense. The League was certainly within its right to remove Das, who "served at the pleasure of" both MLB and the Players' Association—either side was free to remove Das, at any time, with or without cause, upon written notice. But is the League's action a sign of something more significant?

 What's happened here is that MLB removed a judge from the bench because of a philosophical disagreement—i.e. the League believes that their "independent arbitrator" should take a more relaxed view of pillars of the American justice system like the Rules of Evidence.

Alfonzo's grievance challenging his suspension raised issues that were nearly identical to those resolved in the arbitration involving Ryan Braun. It is not anticipated that any other future cases will be impacted by the circumstances raised in the grievances of these two players.

That was MLB's statement, after announcing Das's termination, and the fact that they'd reached "an agreement" with the Players' Association regarding Eliezer Alfonzo's alleged second positive drug test. Whether or not Alfonzo is suspended makes little, if any difference—he was designated for assignment by the Colorado Rockies (effectively cut from their roster) and sent to Triple-A. What's troubling, however, is the League's declaration, that the evidence issues in Braun's and Alfonzo's arbitration hearings will never be at issue again.

This type of situation is precisely why the founders of our country—in the U.S. Constitution—gave federal judges life tenure. The underlying theory of life tenure is that judges will be true to their own consciences and moral convictions, without fear of reprisal for rendering an unpopular decision. Baseball's collective bargaining agreement also had a provision with the same intent (described by attorney Craig Calcaterra in his NBC Sports blog Hardball Talk), but it seems that it failed in this case.

Although the effect of Das's removal is limited to baseball, it represents a microcosm of judicial politics in the United States, which has been a hot-button issue in states such as Mississippi, New York, New Jersey, and Ohio, and subject of the realistic fiction in books by John Grisham. N.B. read Grisham's The Appeal for a creepy tale about a tort reform group's influence on judicial elections, which results in…sorry, you'll have to read the book to find out how it ends (or just read the Wiki-spoiler review).

Earlier:

Braun Decision Affirms Fact that Appeals are Crucial to our System of Justice

The Roger Clemens [re]trial officially kicked off on Monday, though it still has yet to get started. Today marks day three of jury selection. New York Daily News sports investigative reporters Michael O’Keeffe and Nathaniel Vinton are tweeting live covereage of jury selection from the E. Barrett Prettyman Federal Courthouse in Washington, D.C. (@NYDNSportsITeam).

As was the situation in the case against Barry Bonds, Clemens is charged with perjury (see the 19-page indictment), but we all know what the case is really about—steroids, drugs, PEDs, human growth hormone; call it what you want. Apparently I’m not the only one who thinks this trial is a waste of time (not to mention, taxpayer dollars). Shortly after the government’s first attempt at prosecuting Clemens ended in a mistrial, some of the jurors from the case spoke out, which prompted district court judge Reggie Walton to call the attorneys from both sides into his chambers:

The reason I wanted to do this in chambers and not in the courtroom is because I think what I’m going to say now would create a tremendous amount of publicity, which I don’t think this case needs, and that is, some of the jurors had said that they felt it was a waste of taxpayers’ money at a time when we have significant fiscal problems in our country to prosecute this case again, because they felt that Congress has all of these other issues on their plate, they can’t seem to solve them, so why are we spending money prosecuting this case.

The trial in the matter of United States of America vs. William R. Clemens, No. CR-10-223, is expected to last four to six weeks. The government's case rests almost entirely on DNA evidence that was allegedly procured by Brian McNamee, Clemens' former strength trainer, who claims that he saved some of the needles and gauze that he used to inject Clemens with PEDs. That evidence will be worthless, however, unless the government can prove its chain of custody, which means that they will have to identify and make available for cross-examination every individual who possessed the proferred evidence—from the time it was collected, then examined, and all the way up to the time they present it to the jury.

Good luck Mr. Assistant U.S. Attorney: That's 11 years you have to account for the whereabouts of this evidence, including the 7 years that McNamee claims that he stored the medical waste in his New York home, stuffed inside a Miller Lite beer can.

(photo credit: Mark Sardella/Flickr)

Ryan Braun just became the first major league baseball player to successfully overturn a positive drug test result on appeal, and based on the immediate reactions in the press and Major League Baseball itself, you'd think the Berlin Wall had just crumbled. But before everyone jumps to the conclusion that baseball's drug policy is flawed, or that this outcome will somehow open up the proverbial floodgates to players wanting to challenge their positive drug test results, let's put it in perspective.

Prior to Braun's appeal of his October 2011 test result, twelve other positive drug test results were upheld on appeal. In terms of batting average, that's .077. By comparison, in our civil justice system, somewhere between ten and twenty percent of cases are reversed on appeal (in batting average that's .100 to .200). And according to this NY Times report, two-thirds of all death sentences are overturned on appeal (.666). So if you're José Canseco planning a comeback, don't get your size small jockstrap out of retirement yet.

If you want to be upset about something here, it should be the comments by Rob Manfred, MLB's Executive Vice-President for Labor Relations & Human Resources, who is an attorney (Hahh-vaad educated) and was one of the three attorneys that presided as arbitrators of the appeal:

Major League Baseball considers the obligations of the Joint Drug Prevention and Treatment Program essential to the integrity of our game, our Clubs[,] and all of the players who take the field. It has always been Major League Baseball’s position that no matter who tests positive, we will exhaust all avenues in pursuit of the appropriate discipline. We have been true to that position in every instance, because baseball fans deserve nothing less.

As a part of our drug testing program, the Commissioner’s Office and the Players Association agreed to a neutral third party review for instances that are under dispute. While we have always respected that process, Major League Baseball vehemently disagrees with the decision rendered today by arbitrator Shyam Das.

The reason that Braun's positive test result was thrown out was that after the tester collected the urine sample, he kept it in his refrigerator over the weekend, and it wasn't actually examined until days later when it was received by the lab in Montreal. Some call that a technicality, but in reality, once a urine sample is 24-hours old its clinical significance is worthless by medical standards.

As attorneys, we are sworn to advocate for truth, justice, and the Federal Rules of Evidence, but based on Manfred's comments, his only concern is imposing punishment, rather than making sure that punishment is first warranted or justified. Moreover, the fact that Manfred called out his colleague, for essentially voting in a manner consistent with well-established legal doctrine, casts serious doubt on his integrity. 

Ironically, baseball analyst Tim Kurkjian (@Kurkjian_ESPN), who by the way is not an attorney, hit the ball on the screws in this interview:

Just like in a court of law, both sides had a chance to present evidence, and in this case the evidence went in Ryan Braun's favor.

Did the National League's 2011 Most Valuable Player use banned substances during last season's playoffs? We don't know. After learning about the positive test result from the MLB collection, Braun had a second test performed by an independent laboratory, and that test revealed normal levels of testosterone. Braun also tested negative for banned substances on three other occasions during the 2011 season. That doesn't mean that he was clean when he was tested in early October, but given the circumstances of the first drug test, the results are clinically unreliable, and so punishment would be unjust.

Photo credit: Steve Paluch

Sometimes it's easy to forget that behind almost every news headline is a real person. Usually the person in the headline did something affirmative to earn that distinction, but what about when the headline is about a victim? Last week I wrote about a New York Rangers hockey fan who was beaten by Philadelphia Flyers fans outside a South Philly cheesesteak stand. To make for a catchy or funny title, I even borrowed a famous trademark from the restaurant's main competitor.

But when I saw Neal Auricchio Jr. (the victim of the crime) interviewed on local news a couple nights ago, it made me feel like what I'd written was insensitive, or at least that it was subject to that interpretation. As it turns out the assailed Rangers fan is practically a neighbor of mine. He's a police officer, and a former U.S. Marine, who was awarded a Purple Heart for his service to our country, while stationed in Iraq. Also, Mr. Auricchio is a husband, and father to a young son, and he wasn't just roughed up—he was severely beaten, to the extent that he'll need facial reconstructive surgery, and won't return to the police force for months.

I never meant any disrespect to Mr. Auricchio by what I wrote, but I didn't want there to be any confusion. I make my living by carefully choosing words that will have a specific and desired effect on their respective listener or reader. In most cases, my goal (no pun intended) is to create sympathy for my client, which sometimes calls for sarcasm or other similar rhetoric. In this circumstance, the butt of my joke should have been Dennis Veteri, the 32-year-old south Jersey man who led the brutal attack on Mr. Auricchio.

As it turns out, Veteri doesn't only look like Richie Aprile, but he's about as unsavory a character as the one portrayed by actor David Proval on the HBO hit series about New Jersey mob life. According to the Philadelphia Inquirer, Veteri has eleven prior arrests in four different states, including seven criminal convictions, for everything from drugs and robbery, to assault with a deadly weapon—when he was eighteen years-old Veteri stabbed his own brother with a kitchen knife! Those charges were dismissed, presumably because Nicholas Veteri refused to cooperate with the Philadelphia District Attorney's Office. (See a detailed account of Veteri's criminal history in Mike Newall's article at Philly.com.)

For now, Veteri is free on $400,000 bail, but given the brutality of the crime, the evidence against him, and his criminal record, not to mention the fact that this case has now garnered a lot of publicity, I think it's safe to say that Veteri won't escape jail this time. Veteri hired Philadelphia personal injury attorney Michael A. DeFino to defend him against the criminal charges. DeFino says the whole thing is just a fist fight that's been blown out of proportion. Meanwhile Auricchio has retained one of New Jersey's most prominent plaintiffs' attorneys, Ray Gill, to represent him in the civil suit. And as for Richie Aprile, we all remember what happened to that prick...

Getting back to the defamation lawsuit Scottie Pippen filed last month in an Illinois federal court. By the way, I know it's still early, but so far I haven't received word that Pippen is suing me over my last post...

Before we get into Pippen's specific claims, let's briefly review the law of defamation. First of all, defamation is the broader classification of two kinds of intentional torts (a type of civil lawsuit) that arise out of the making of false and disparaging remarks about another. If the disparaging remark or statement is oral, then the claim is for slander, if written, then it's libel. Anytime someone sues for defamation they must prove four elements to win. Although there are a few narrow exceptions, the most difficult of these elements to prove is, invariably, damages—i.e. what financial harm did the person suffer as a result of the disparaging statement?

Additionally, when the person claiming defamation is a "public figure" (e.g. celebrity, public official, etc.), they must also prove that the individual who made the defamatory statement/publication knew that the it was false (or recklessness as to the statement's alleged falsity). This is sometimes called the actual malice doctrine, and it basically means that there isn't liability for negligently or accidentally making a statement that is false about a celebrity.

Scottie Pippen has alleged that the various media outlets defamed him by publishing ten or so articles that either allege or imply that he filed for bankruptcy in or around 2003 (complaint PDF file). Furthermore, Pippen's attorneys claim that these publications constitute defamation per se, which is one of the narrow exceptions I alluded to earlier with regard to proving damages. When a statement is considered defamation per se, then you don't have to prove your damages. But there's a catch. Historically, there are only four types of defamatory statements that are considered defamation per se:

(1) allegations that attack a person's professional competence

(2) accusations of criminal activity (which must usually allude to crimes of moral turpitude)

(3) allegations of unchastity

(4) allegations of a loathsome disease (e.g. leprosy, HIV/AIDS, other STDs)

What's missing from this list? For starters, I didn't see "being poor," which is the only thing that would apply in Scottie Pippen's case. So unless Pippen's attorneys can convince the court that they should add "being poor" to the short list of per se defamatory statements, his claim for defamation per se is dead in the water. 

Pippen has also sued CBS, NBC, and the others for negligence, and for false light. Based on the actual malice doctrine the negligence claim is unfounded. As to false light, this is probably the only claim that Pippen has made that has a chance to withstand a motion to dismiss. So what is false light?

False light is somewhat similar to defamation, but is actually an invasion of privacy. The primary difference between a defamatory statement and one that gives rise to a claim for false light is that the crux of the former is a false statement, whereas the latter doesn't necessarily have to be false—typically a false-light statement is one that is misleading in a way that would be highly offensive or embarrassing to a person of ordinary sensibilities.

Based on all this, I would expect the attorneys for each defendant to file motions to dismiss counts one and three of Pippen's complaint, and I would also expect them to prevail on these motions. Pippen's attorneys could amend count three of the complaint to include ordinary defamation (as opposed to defamation per se), but even if they do, they will then have to prove that Scottie suffered some financial harm as a result of the alleged defamatory statements. Damage to his reputation and so-called good name aren't enough.

One last observation about this case: Assuming that Pippen never filed for bankruptcy, how did so many news outlets get it wrong? It's possible that one just copied the other after the other, which may make sense for some of the smaller defendants, but it surprises me that editors at CBS Sports and CNBC would have been so careless.

As the temperature has finally dipped into the twenties in the northeast, skiers and snowboarders are starting to think about knee-deep powder, but before you head out to the slopes this season, make a quick stop at your local ski or snowboard shop, and get you and your kid properly fitted for snowsports-specific helmet.

With all that we're learning about post-concussive syndrome and sports-related brain injury in general, you can't be too safe when it comes to protecting our little ones' melons. Make sure your child is properly fitted with a snowsports helmet approved by the American Society of Testing and Materials (ASTM). Even better yet — set a good example by wearing a helmet yourself. This isn't just a suggestion, either; California, New York, and Massachusetts have mandatory helmet laws pending in their state legislatures, and in New Jersey, a mandatory helmet law is already in effect.

In April, Governor Chris Christie signed a bill that made New Jersey the first state to require kids to wear helmets on the slopes (the irony is that the only "slopes" in New Jersey are nothing but glorified sledding hills, but that's not the point). The law, which took effect on November 1, requires everyone under 18 to wear a "securely fitted protective helmet specifically designed by the manufacturer to be used while engaged in the activity of downhill skiing," and subjects parents/guardians to a fine of as much as $100 ($25 for the first offense) if their child is caught sans helmet.

Other states are sure to follow New Jersey's lead. To find out whether your state has helmet legislation in the works, or to educate yourself about brain injuries in snowsports, visit www.nsaa.org (National Ski Areas Ass'n) and LidsOnKids.org.

Photo credit: Michael Choi

On Monday I was interviewed by Fox News for a one-hour special The Crisis at Penn State, hosted by John Roberts (no, not the Chief Justice, the other one!). If you click on the image to the left, it takes you to a 20-second video promo. The special report is scheduled to air tomorrow/Saturday night on Fox News Channel at 10:00 p.m. EST.

A lot of folks might not have even realized that Tuesday was Election Day. As an aside, I find it unfortunate that people don't take the extra few minutes to stop and vote on every election day — not just when there's a presidential race, or some other consequence of great magnitude — but I'll leave that topic alone, at least for now. Despite the fact that there weren't many high-profile races going on across the nation, there were a lot of big issues at stake in several states.

For example, Mississippi voters rejected a bill that would have changed the "meaning of life," for purposes of abortion and related issues; Ohio voters rebuked GOP Governor John Kasich's bid to rewrite state labor law, which would have substantially limited collective bargaining; and the people of New Jersey voted resoundingly to allow sports betting in the state. The only problem here is that federal law (which, of course, trumps any state's law) prohibits sports betting in all states except Nevada, Delaware, Oregon, Montana.

So why did proponents of sports betting bother to go through all the trouble of getting the referendum on the ballot? According to the Star-Ledger, State Senator Ray Lesniak (D–Union), who "spearheaded the effort for sports wagering" in NJ, plans to get another law passed authorizing the state's Casino Control Commission to issue sports betting licenses to casinos and racetracks. The idea is that once the state has such a law in place, the administration can sue the federal government to declare the federal ban on sports betting unconstitutional.

Getting an issue on the ballot isn't easy, so it seems like an awful lot of trouble to go through for something that, even if successful, depends on so many contingencies. Nonetheless, Lesniak says he's hoping to have sports betting legalized in NJ in time for the start of the 2012 NFL season. Even if it all goes smoothly, it would still be illegal to bet on college games that take place in NJ, and on NJ college teams, regardless of where they're playing.

Over the weekend, ESPN reported that the West Virginia Mountaineers were heading to the Big XII Conference, just weeks after Syracuse and Pitt announced their defection from the much-maligned Big East. Yesterday, the West Virginia Univ. Board of Governors filed a six-count lawsuit [PDF] against the Big East, in Monongalia County Circuit Court (WV), which essentially accuses Big East Commissioner John Marinatto of running the organization into the ground, to the point where the conference is no longer viable or competitive.

This lack of leadership, breach of fiduciary duties by the Big East and its Commissioner, and voting disparity between the football and non-football schools resulted in the Big East football conference no longer being a viable and competitive football conference. Additionally, upon information and belief, [it] is expected by WVU and others that the Big East will lose its [automatic BCS bid]. Accordingly, the Big East Conference and its Commissioner ... breached their contract [with] WVU and nullified and voided the Bylaws.

This is really great stuff. What WVU is arguing is that despite the fact that they entered into a contract with the Big East and agreed to be bound by its rules and regulations (i.e. Bylaws), that they shouldn't have to fulfill their contractual obligations to the conference because Marinatto failed to fulfill his obligations to the organization and its member institutions.

By suing the Big East instead of waiting for the Big East to sue them, WVU has seized home-field advantage: They get to fight their fight in West Virginia state court, rather than a Rhode Island court, or federal court. Not surprisingly, Marinatto released a statement saying, "a contract is a contract," and basically threw the bullshit flag, but based on the facts alleged in the complaint, relative to the facts I know, I like WVU's chances. Kudos to attorneys Stephen M. LaCagnin, Seth P. Hayes and the Morgantown, WV law firm Jackson Kelly.

Who do you think foots the bill when a university hires attorneys to defend its student–athletes?

Ohio State University's student newspaper—The Lantern—ran a story earlier this week about the outrageous legal fees the school has paid thus far in defending various football players against alleged NCAA rules infractions.

The "Sports Illustrated 9" refers to nine current players, separate from the six players suspended for "Tattoo-gate," "whose alleged wrongdoing might fall within the NCAA's four-year statute of limitations," according to a June 6 SI article.

OSU's athletics department paid the fees out of its general operations fund, which student fees do not go toward, said Dan Wallenberg, associate athletics director for communications.

[Wallenberg] also said the funds for similar services could come out of the Student-Athlete Opportunity Fund, which was created by the NCAA in 2003 to provide direct benefits to student–athletes or their families, and is generated by NCAA basketball tournament revenue.

The benefactor of this particular transaction is the Columbus law firm of Crabbe Brown & James LLP, which has reportedly received "$141,814.30 as of mid-September." That number is quite small compared with, for example, the amount Ohio State paid the Vorys law firm from 2004–2008 to defend them against former basketball coach Jim O'Brien's wrongful termination lawsuit (well over a million bucks).

By comparison, Auburn University paid $170K in legal fees while the NCAA investigated 2010 Heisman trophy winner Cam Newton's eligibility. And the University of Michigan paid over $600,000 in legal fees in an NCAA infractions case involving former head football coach Rich Rodriguez.

As Alex Antonetz's Lantern article points out, this is all legit—schools can pay outside counsel to represent their student–athletes when they get themselves into trouble. Perhaps its unfortunate that the schools can't help them out when they can't pay their phone bills, can't buy groceries, or can't afford to fly home for holidays, because if the student–athletes had some financial assistance in that regard they might not have to resort to earning money other ways (ways that get them into trouble). Having lived with two scholarship athletes (one All-American) during my freshman year of college, I have first-hand knowledge about student–athletes' financial woes.

This past weekend Syracuse University and the University of Pittsburgh announced that they had applied to join the ACC (Atlantic Coast Conference), leaving the Big East behind. Within a day, the ACC announced that its member institutions unamimously approved the addition of the two universities. Both schools are apparently ready to part with the $5M exit fee that they each must pay to the Big East.

The ACC currently has a dozen schools, and with this transaction will have fourteen. Although technically the Big East currently has 16 (14 without Pitt & Syracuse), that number is deceiving because it includes Notre Dame, whose football team isn't part of the Big East, as well as DePaul, Marquette, Providence, St. John's, Seton Hall, Georgetown, and Villanova—none of which even have football programs. That leaves just 6 football teams in the Big East (and they call it the Big Least now?). Six teams do not a conference make. And for the record, TCU's expected addition to the Big East next year doesn't change this conversation. Rumors are now circling that Rutgers will leave for the ACC next, or alternatively, that they'll join the Big Ten (which is actually 12).

Regardless of what Rutgers, or any of the other Big East programs do, however, the conference's instability leaves a whole lot of student–athletes in vulnerable (if not untenable) positions because of the Big East's transfer rule:

Student–athletes in the sports of men’s basketball, women’s basketball[,] and football, are not permitted to transfer (directly or indirectly) from one BIG EAST institution to another BIG EAST institution and participate in any capacity...There are no exceptions or waivers to this rule.

Although most conferences have their own rules or conditions for intra-conference transfers, this one is without doubt the most Draconian of them all. You actually don't have to be an attorney to understand it either, because there are no exceptions or waivers. (For those who aren't attorneys, we didn't go to law school to learn the law, we went to learn the exceptions.)

So while Pitt, Syracuse, and the rest of the Big East are quibbling over how long those schools should be required to serve out their membership in the conference—which is purportedly 27 months—television networks and advertisers and sponsors will likely be shifting their focus to other conferences. It's even possible that the BCS could revoke the Big East's automatic bid, after all, fans and analysts have been calling for the Big East's ouster since around the time Virginia Tech and Miami left the conference. Even the NCAA's very definition of Football Bowl Subdivision Conference says that it must have at least 8 members.

All of this punishes those student–athletes far more than it punishes the member institutions. The schools will make up the lost revenue through boosters and other benefactors, but the student–athletes have no such luxury. Furthermore, if TV networks decide not to broadcast Big East games, because of a perceived lack of competitiveness, or any other reason, the student–athletes are going to lose exposure, which could cost some of them when their time comes to enter the NFL draft.

Admittedly, these scenarios are somewhat speculative, but in a world where the sanctity of amateur sports is supposed to reign supreme, it hardly seems like the people who make the rules care at all about the student–athletes.

No pun intended. Seriously. After U.S. District Judge Reggie Walton declared a mistrial in the government's perjury case against Roger Clemens last week, the 300-win hard-throwing right-hander's future is somewhat in limbo. That is because a mistrial is not an acquittal. An acquittal is when a jury unanimously finds that the prosecution failed to prove the defendant's guilt beyond a reasonable doubt, which results in a not guilty verdict. N.B. that doesn't mean innocent; many a defendant is found not guilty, but they are far from innocent (ah em, O.J., or better yet, Casey Anthony).

Mistrials usually happen because of something related to some undue influence or irregularity with regard to the jury, and basically, a mistrial means that the trial never happened. A common reason for a mistrial is a deadlocked jury, as we saw in the case against Barry Bonds. The reason for the mistrial in Clemens' case was prosecutorial misconduct—the prosecutors violated one of Judge Walton's pretrial evidentiary rulings, when Assistant U.S. Attorneys Dan Butler and Steven Durham showed the jury video footage of Clemens' Capitol Hill testimony in which Rep. Elijah Cummings (D.-Md.) made references to Laura Pettitte (Andy's wife). (See Sports in the Courts Blog's Chris Fusco recap what happened, on MLB network.) Sure, it's a technicality, but it's legit—when a judge tells an attorney not to do something, you'd better not do it (think Jack Nicholson in A Few Good Men "We follow orders, or people die.").

So what now? Roger Clemens is still under indictment (i.e., charges are still pending), and Judge Walton has scheduled a hearing to decide whether the U.S. Attorney will be allowed to present the case to a new jury. ESPN's Lester Munson makes much ado about whether the judge will allow the U.S. Attorney to retry Clemens, but I wonder if that's just bunk to sell advertising on ESPN.com.

As Munson admitted, mistrials in federal court are rare. Judges don't like to give them. It's almost like judges see a mistrial as though it reflects poorly on their own legal knowledge or judicial temperment. That is exactly the reason I'd be shocked if the judge ruled that the case against Clemens is dead. That kind of ruling takes a lot more than peculiar circumstances (not to mention, a lot of chutzpah), because when a judge makes that kind of ruling he is taking the case out of the jury's hands. Trial by jury being one of the most sacred institutions in our legal system, if not our whole society. Even if the judge barred Clemens' retrial, the prosecution would have a right to appeal that decision, and it would likely be reversed.

Bottom line, the judge will allow prosecutors to retry Clemens, but whether they will is anyone's guess. Although what happens to Roger Clemens doesn't make much difference to me, I wish this whole thing would go away. A case of this magnitude is no inexpensive affair—from investigation all the way to trial—and the U.S. Attorney is financing its witch hunt at taxpayers' expense, and for what? Because some retired ballplayer may have lied about using steroids? Who cares? Hypothetically speaking, let's assume that Clemens is guilty. Then who is the victim? Congress? Baseball fans? Even if Clemens is guilty, his was a victimless crime. Leave it alone.

Barry Bonds's criminal perjury trial officially began yesterday, with a full day of voir dire (pronouncedvwahr deer), which is the process by which attorneys select a jury by questioning the prospective jurors on their backgrounds and potential biases. At the end of the day, eight women and four men, two of whom are black, were selected—at the end of the trial, which could last as long as a month, these twelve individuals will determine Barry Bonds's fate. 

Later this morning, the prosecution and defense are scheduled to give opening statements. If convicted of the most serious charge(s), Bonds could face up to 10 years in federal prison, though as a first-time offender it's unlikely that he would be sentenced to a term of more than two to two-and-one-half years.

Selection Sunday is upon us. For a lot of business owners and department heads, that means the upcoming week will be one of the least productive work weeks of the year, especially since this year, "for the first time ever, every tournament game will be carried live nationally in its entirety across CBS, TBS, TNT[,] or truTV."

For most of us, however, it means that we'll be pouring over those iconic NCAA brackets right up until the first tip (which, by the way, is Tuesday evening!). With the expansion of the field of teams, the first three rounds of the tourney will have a whole new format, which means that we can all start with a clean slate this year. That's why I'm passing along a few tips that I've found helpful in filling out my brackets the last couple years.

I lifted most of these tips from a great column I read in Men's Health a few years ago; ever since I implemented this system, I've won or finished top five in my office March Madness pool. Not surprisingly, the column's author had help from the real Brandon Lang (Matthew McConaughey's character in Two for the Money.) Click on this link to read the entire Ten Commandments of Bracketology, by Greg Presto, here's my redux:

According to Presto/Lang, the key first-round matchup(s) are the games pitting the 12–5 seeds against each other. This will be even more important this year because of the new format for the first round—four of the additional teams are slated to be at-large bids, which have historically been #12 seeds.

II. Thou shalt pick the right 12-seed.

Upsets are what makes bracketology fun, and even casual fans have heard of the traditional 12-over-5 first-round topples. But it's not enough to take a stab and pick a dozen-seed to win, says Stoll. "Focus on 12-seeds that have lost 6 or fewer games for the season [13-16 overall against 5-seeds] or 12s that are coming off a loss in their previous game [10-13 against 5-seeds]." The holy grail? A 12-seed that satisfies both criteria -- they're 3-0 all-time in round 1.

Other helpful tips are: Start filling out your bracket in the middle, then work your way out; make sure all top seeds make it to your Elite Eight, and don't put any team lower than a #6 seed in your Final Four. Finally—and this one pains me to say, but unfortunately it's true—don't pick Big Ten teams. Although Ohio State could be an exception to this rule, I'm not picking them (picking them over Florida a couple years ago cost me the pool). The Buckeyes (31–2) will probably be in my Final Four, but I doubt that I'll pick them to win the big dance. I'll post my bracket when it's finished, so everyone can hold my feet to the fire.

If you have your own tried-and-true, stone-cold, lead-pipe lock of a bracket tip or strategy, feel free to post a comment.

Now for a quick word on gambling. Although the law varies from state to state, a few more than half of all states are consistent to the extent that they don't punish "social gambling." Except in the state of Florida, social gambling usually means gambling that doesn't take place in public establishments, and is non-commercial, or not-for-profit—i.e., there is no "house" per se, which takes its own cut off the top of all the wagers. In Florida, social gambling has a ten-dollar table limit. To check your state's laws, attorney Chuck Humphrey put together a great website that summarizes the laws of all fifty states, and compiles the anti-gambling statutes for each state as well.

The key factor with regards to March Madness office pools is that all of the money collected must be redistributed to the winner(s). The person organizing the pool can't take an "administration fee." Also, it's a good idea to be mindful of where you discuss the pool, and where you collect the brackets and money, particularly if you work for a large corporation or government agency. In 2008, a NJ man was fired for running an office pool, despite having done it for the previous four years. Don't be that guy.

Even if you're not running the pool, you still need to keep a couple things in mind. Unless you have express authorization (I'd want it in writing), don't use your work email for pool-related communications. And if you must watch the games while you're on company time, the safest bet is to have your own mobile TV or device with broadband. That way, nobody in IT can track the time you spent on CBSsports.com, or bodog.com for that matter. 

Till now I have purposely avoided concerning myself with the day-to-day minutiae of the ongoing labor negotiations between the National Football League and the Players' Association. After all, there's going to be a deal. The only question(s) is what will the deal look like, and when will they get it done. The league's current CBA (collective bargaining agreement) expires in a little over two weeks. If the CBA expires, all that means is that there's no agreement in place. Could there be a lockout (owners refuse to keep the status quo)? Sure. Could there be a strike (players refuse to play without a new agreement)? Sure. But will there be? Nobody, including God—and those at ESPN who think they are—knows the answer.

This morning on Mike & Mike, I heard an ESPN columnist discussing the complaint that the NFL filed yesterday with the National Labor Relations Board (NLRB) against the Players' Association. He then proceeded to compare the current NFL labor situation to the 1994 Major League Baseball strike, which is an utterly ridiculous proposition. Unfortunately, I didn't catch the columnist's name. 

Regardless of whether he really believed what he was saying, or whether he just didn't do his homework, making that kind of statement this early in the game is not only premature and reckless, but there is no good that can come from it. All it will do is make football fans uneasy and uptight. Lest we forget how damaging the MLB strike was to the game of baseball. It took years for baseball to earn its way back into America's family rooms; of course, after that the game's popularity suffered again after the steroid scandal erupted. But here's why the two situations are completely unrelated:

First, in the 1994 MLB labor dispute, it was the players that filed an NLRB complaint against the owners, not the other way around, as is the case today. Second, the players didn't file that complaint until after they had already been on strike for roughly six months, and didn't do so until Congress and President Clinton stepped in to try to end the strike. Here, the current CBA hasn't even expired, and even if/when it does, there are six months between that date and the start of the next NFL season.

I don't believe that an NFL strike/lockout is out of the question, but given the commercially-driven attitude of Roger Goodell and the new, No Fun League, and the amount of money that stands to be lost as the result of any work stoppage, I don't think that a strike or lockout is likely. Nevertheless, if the season were delayed because the dispute remains unresolved, as fans we could all luck out, by being spared the Chinese torture of having to watch the NFL preseason. 

For a more in-depth analysis of the substantive issues and applicable law relating to the NFL's complaint, check out this post at www.laborrelationstoday.com. 

Regardless of whether you liked the teams or the outcome of last night's BCS National Championship game, you have to admit how much better the championship is now that it's back on ABC's family of networks. During the three years that Fox carried the title game, the coverage was dreadful. The production was bad, the audio was bad, and worst of all was the play-by-play coverage of Thom Brennaman.

Brennaman is a baseball guy, the son of long-time Cincinnati Reds announcer Marty Brennaman. Thom also went to Ohio University, which is almost an anti-football college. At some point he started dabbling in NFL games, after Fox picked those up in the late '90s. And then out of the blue, Fox hired him to be the voice of the BCS in 2006. What business did Thom Brennaman have calling bigtime college football games?! Furthermore, what experience did Fox have broadcasting them, and why did they appoint a college football outsider to such a crucial role in broadcasting?

I thought maybe it was just me—that Brennaman rubbed me the wrong way—but apparently not. In the 2009 title game in which #2 Florida beat #1 Oklahoma, 24–14, Brennaman's bias toward Florida QB Tim Tebow was so obnoxious that it drew criticism from the media at-large: "Brennaman was so far over the top in his pro-Tebow hyperbole on Thursday that the game became darn-near unwatchable unless the volume was off," wrote FanHouse's Chris Burke.

Bleacher Report ran a post last week, called BCS: 15 Reasons We're Glad It's on ESPN, Not Fox.

In 2009, we were reminded by Thom Brennaman how great a person Tim Tebow was. He took every opportunity to gloss Tebow as the second coming.

I can only imagine that if Fox had the rights this season, Thom Brennaman would pick a new favorite. We would then be forced to hear how great Cam Newton is or what LaMichael James might be thinking while playing with such talent.

I grew up watching college football on ABC. Dick Enberg, Brad Nessler, Brent Musberger, and of course, Keith Jackson. Jackson's iconic delivery will forever resonate in my ears as the voice of college football. But Jackson notwithstanding, my perception of ABC's sports productions is that they always presented the college game in a dignified manner. Fox, not so much.

Fortunately, Disney (parent company of ESPN, ABC) is doing pretty well, because they were able to pony up half a billion dollars to reclaim college football's January finale ($125M/yr., 2011–14). Fox had been paying about $82M annually for the 4 games it broadcast in each of the 2006–09 seasons. Fox balked at ESPN's offer, and didn't feel they needed to match it because of the fact that ESPN is a cable network, which reaches 16 million fewer viewers than broadcast networks. Being on cable apparently didn't hurt the BCS last night: Its 16.1 Neilsen rating was the highest in the history of cable television, and higher than the 2005 (USC def. Okla., ABC) and 2008 (LSU def. Ohio St., Fox) title games.

Rest assured, beginning with the upcoming college football season, through 2014, ESPN will carry all of the BCS games. Maybe Thom Brennaman can take over Ted Williams' post collecting donations along I-71. On second thought, Williams has a better voice.

Last night, the Ohio State Buckeyes beat the Arkansas Razorbacks 31–26 in the Allstate Sugar Bowl. The games's MVP was junior quarterback Terrelle Pryor, who, along with four other Buckeyes, was suspended by the NCAA on Dec. 23, 2010 for allegedly receiving improper benefits (NCAA Press Release pdf). The so-called improper benefits were cash proceeds from the sale of memorabilia items, including their Big Ten Championship rings, which the five players admitted to selling, for between $1000 and $2500.

But because the NCAA found that "it was reasonable at the time the student-athletes were not aware they were committing violations," a loophole in the rules allowed all five Buckeyes to play in the upcoming bowl game. "The policy for suspending withholding conditions for bowl games or NCAA championship competition recognizes the unique opportunity these events provide at the end of a season, and they are evaluated differently from a withholding perspective."

ESPN-nation erupted, over what the public perceived as the NCAA giving Ohio State preferential treatment. Then, on Dec. 30—the day after the Buckeyes returned from their 4-day x'mas break—Jim Tressel announced that he had requested verbal commitments from each of the suspended players, to return for their senior seasons at Ohio State if allowed to play in the Sugar Bowl. All five players agreed, which seemed to quiet much of the public outcry. Columbus Dispatch's Rob Oller called Tressel's move, "a masterful flanking maneuver that puts him back in charge and quiets critics who have questioned his leadership."

But Tressel's deal didn't satisfy everyone; the new topic du jour was speculation over whether those five players would actually keep their promises to return. Critics argued that if they decided not to honor their promises, and instead declared for the 2011 NFL Draft, then those players wouldn't have to suffer any consequences for their impermissible conduct. Oller even referred to the players' agreement as "nonbinding." Although I believe it would be a supreme waste of time to, say, try to enforce the players' promises using judicial means—not to mention, a public relations nightmare—I wouldn't be so quick to dismiss the players' promises as nonbinding.

Some will inevitably refer to Jim Tressel's gentleman's agreement as his deal with the devil, especially given the way all five players contributed immensely to the Buckeyes' Sugar Bowl win. Prior to last night, the Buckeyes had a 32-year winless streak against SEC football teams in bowl games. This morning, I bet that some of those same fans who criticized Tressel for his deal, are silently rejoicing.

Next—Part II: What is a contract?

Earlier today, the NY Court of Appeals released a decision affirming the dismissal of a negligence case filed by Dr. Azad Anand, against his [former] golfing buddy, Dr. Anoop Kapoor, which arose out of injuries sustained from a shanked fairway shot. "A person who chooses to participate in a sport or recreational activity consents to certain risks that are inherent in and arise out of the nature of the sport generally[,] and flow from such participation."

Despite the fact that the victim, a neuro-radiologist, suffered severe vision loss as a result of being struck with the ball, the court noted that such an incident was not atypical in the game of golf (pdf file of the court's decision). Although the court did not say whether it factored into the decision, Anand was standing only 15 to 20 feet from Kapoor when the ball struck him, and at that close range, it's unlikely that a verbal warning would have prevented the injury in the first place.

Given the way in which sports—even collegiate sports—have become so heavily branded, merchandised, and televised, another area of law that routinely intersects sports is intellectual property—namely copyright, trademark, licensing, and the all-but-forgotten right-of-publicity. For example, the University of Alabama sued the artist who painted this picture commemorating the Tide's 2010 BCS National Championship. The artist, Daniel Moore, won summary judgment in the district court (pdf decision here), but the case is currently on appeal to the Eleventh Circuit.

And in 2005, fantasy sports league operator CBC Distribution filed suit against Major League Baseball Advanced Media (MLBAM, MLB's Internet division) after CBC was denied a new licensing agreement with the players' association giving it the rights to player profiles and statistics.

MLB argued that the league owned intellectual property rights in the players' right-of-publicity, which made it unlawful for fantasy leagues to profit from the identities or statistics of MLB players. In 49-page order granting summary judgment to the fantasy league, U.S. District Court Judge Mary Ann Medler said that even if the league did have intellectual property rights in the players' stats and likenesses, the First Amendment trumped the league's property interest, because the information that the fantasy leagues disseminate are facts. Facts, Medler, wrote, appear in newspapers everyday. Nobody can own them. (CBC v. MLBAM pdf file)

Paul Weiler's textbook Sports and the Law (see previous post) is nearly 1200 pages long, yet it devotes fewer than 100 pages to sports and IP law. In fact, in that single chapter of the book that addresses IP, Weiler tackles broadcast rights, copyright ownership, player publicity rights, trademarks, and group marketing of IP rights. By contrast, the book has three chapters on antitrust, two on labor relations, and even has a full chapter devoted to Title IX and intercollegiate sports. But because of how every sports franchise, conference, and league is continuously exploring how to increase the revenue earned from their branding and intellectual property, IP law, will nonetheless continue to impact the sports world for many years to come.

So what about entertainment law? I realize that I just devoted three entire posts to explain sports law, and even though this is the Sports & Entertainment Law Playbook, I haven't so much as mentioned entertainment law. Again, there is no such body of law per se, though there are so-called entertainment lawyers. I happen to be one of them. Like sports and the law, there are many different areas of law that intersect with the entertainment industry, although IP is probably the most prevalent. Artwork, sheet music, and sound recordings all need copyright and in some circumstances, trademark protection. Also, composers routinely license their scores and compositions to filmmakers and advertisers. This process inevitably involves attorneys. And just like professional athletes, artists, actors, and musicians work under contracts as well, and they also need competent legal counsel to represent their interests during negotiation. The record companies, opera houses, and concert promoters are certainly going to come to the table with the best attorneys that money can buy, so it behooves the artist to also come prepared.

If criminal law is the body of law that governs criminals and the commission of crimes, and labor law is that which governs wages, employment, and labor unions, shouldn’t it follow that sports law is the body of law that governs athletes and athletic competition? Although attorneys, law students, and the media refer to sports law as though it were in fact an independent body of substantive law, the term sports law is actually a misnomer.  Noted Harvard law professor Paul  Weiler, whom many consider the founder of what we call sports law, underscores this point on page two of his textbook Sports and the Law (West 4th ed. 2010). Weiler specifically points to the book's title, which, read lliterally,  reinforces  his point that sports, and law are two mutually exclusive and independent concepts. So if there isn't any body of law specifically called sports law, how is it that there are so-called sports lawyers? 

The easy answer to that is—Cincinnati Bengals notwithstanding—the  legal issues in   sports are oftentimes lucrative and complex; thus, what perpetuates the sports law-myth is the glamorous media portrayal of the intersection of sports and the law. Add to that the fact that "sports lawyers" are, themselves high-profile, and it has become more and more common for lawyers to moonlight as sports agents, or give up practicing law altogether to become full-time agents. Case in point: Two of the most prominent sports agents today, Scott Boras and Drew Rosenhaus, are both lawyers.  Rosenhaus, a/k/a "Next Question," is a 1990 graduate of Duke Univ. School of Law, and has negotiated more than $2 billion in NFL contracts. Although Boras graduated from a small law school in California, his  $20 million, 23,000 square-foot Newport Beach office compound is anything but small. Nor are the scores of MLB contracts he's brokered, including both of Alex Rodriguez's record-setting contracts, which combine for over half a billion dollars. But is this sports law, or just garden-variety contract law?  

It’s difficult to turn on Sportscenter these days without hearing about a high-profile contract dispute between an athlete and franchise, or rumors of a lockout or strike, or a professional athlete who was arrested for shooting a gun in a night club, or crashing his SUV while driving under the influence. Each of these scenarios involves, respectively, the well-established doctrines of contract law, labor and employment law, and criminal law.

It is my intention that by stating for the record—here, in my very first post—that sports law isn't really what it purports to be, I cannot be guilty of perpetuating that same myth. Having said that, we call it sports law because of the players involved, rather than the game itself (pun intended).

Next: Part II, Antitrust