ESPN is now reporting that Rutgers Athletic Director Tim Pernetti has been fired for his handling of the Mike Rice disciplinary procedure. Stay tuned...
Rutgers University has apparently decided to fire head basketball coach Mike Rice, after ESPN aired secret video footage of the coach's behavior during practice sessions in his first two seasons in Piscataway. Athletic Director Tim Pernetti, who hired Rice shortly after taking the helm at Rutgers, suspended and fined the coach back in December, when he first learned about the tapes, which show Rice throwing basketballs at players' heads, and using excessive profanity and gay slurs.
After ESPN aired the video on national television, public outcry erupted for the coach's dismissal. The National College Players Association issued a statement calling for Rice to be fired; reportedly, LeBron James and his Miami Heat teammates were angered by the coach's behavior as well. Even NJ Governor Chris Christie weighed in on the issue (no pun intended), saying that he was "deeply disturbed" by the way the coach conducted himself.
Regardless of whether Rice's behavior was cause for termination, it looks as though he was punished twice for the same conduct. Again, the video footage was filmed during the coach's first two seasons at Rutgers, between 2010 and 2012. In December, AD Tim Pernetti suspended Rice for three games, and fined him $50,000. Since then, there have been no new reports or allegations of misconduct by the coach. So, in essence, he was fired for the same thing for which he was previously suspended and fined. In constitutional law, that's called double jeopardy, though I don't believe that that has much, if any, bearing on employment law. Even if firing Rice was the right thing to do, from a moral perspective, or for public relations, Rutgers is still obligated to honor the coach's employment contract (which I have not seen).
The contract probably allows the university to fire the coach for cause, and it's tough to argue that what he did wasn't cause for termination. But it's hard to imagine that the contract would allow the university to discipline the coach twice for the same conduct. If I were Coach Rice, I'd be speaking with an experienced contracts attorney. Don't get me wrong, it's highly unlikely that he'll get his job back, but there's a strong argument that Rutgers should have to buy out the contract, or, at very least, return the $75,000 he lost as a result of the suspension and fine they imposed on him in December. Rather than firing Rice for the same thing they previously fined and suspended him for, Rutgers would've been better off to fire the coach for his performance—or lack thereof—the Scarlet Knights failed to finish above .500 this past season, with an even worse 5–13 record in the soon-to-be-defunct Big East Conference.
UPDATED 2013-01-03 12:19:44 ET
The 43-page complaint is available here (PDF). To be fair, I must admit that I haven't had time to read the whole complaint yet, but I did see trial attorney Max Kennerly's (@MaxKennerly) detailed analysis over on his Litigation and Trial blog (4 Reasons Why Gov. Corbett’s Antitrust Lawsuit Against The NCAA Is On Shaky Ground). In a nutshell, Kennerly thinks there are issues with standing to bring the lawsuit.
Because I haven't done the research, I'm not in a position to agree or disagree, however, I agree wholeheartedly with Max's final point, which goes to the merits of the case:
[A]ntitrust cases are increasingly difficult to win, and courts have generally sided with the NCAA on issues relating to sanctions.
That is not to say that I agree with the result itself, only that I agree that the Commonwealth will probably lose. Before the suit was filed, I mentioned that I was "intrigued," and that is because I like to examine the way other attorneys deal with peculiar circumstances that make it difficult to get their clients the relief they want. So, with that in mind, I will be watching the way this case develops.
Pennsylvania Governor Tom Corbett has scheduled a press conference today in State College. According to Good Morning America's Josh Elliott (@JoshElliottABC), he's planning to file a lawsuit against the NCAA, over the $60 million fine it levied against Penn State as a consequence of the Jerry Sandusky scandal.
This is an intriguing idea to me, so I poked around a little online, but I didn't find anymore details on the suit. My first thought was that the commonwealth of Pennsylvania was going to go after the NCAA for unjust enrichment—receiving a benefit for which they bestowed nothing in return—and although I like the concept, I'm not confident that it's a winner. There could be an antitrust claim there as well, but again, it seems like a stretch.
The theory behind the suit is likely to be that since Penn State is a state institution, the monetary penalty demanded from them is ultimately being paid by the taxpayers, who aren't a party to any contract or franchise agreement with the NCAA. This theory could support either a claim based in contract (e.g. unjust enrichment) or antitrust. Sometimes, though, a lawsuit like that is used as a strategic, posturing device, to influence future behavior and/or legislation, rather than to win a pile of cash.
If the suit is filed today in U.S. District Court for the Middle District of Pennsylvania, as is rumored, then I should be able to get a copy of the complaint, which I'll post here later.
Photo Credit: Rick Smith/Flickr
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.
Complaint for Declaratory & Injunctive Relief, No. 3:12-cv-04947 (D.N.J. filed Aug. 7, 2012) (PDF)
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
Last week, a Virginia jury found former University of Virginia lacrosse player George Huguely guilty of murder, but found him not guilty of first-degree murder. I'm not at all surprised by the verdict, and my purpose in posting this follow-up is not to call attention to my original post on the subject; rather, one of my colleagues alerted me to an evidentiary issue in the trial, which is something that I haven't heard discussion of in mainstream media coverage, and one that probably had a significant part in the outcome of the trial.
According to Tennessee criminal defense attorney Lee Davis (@LawyerTN), the trial judge substantially limited the testimony of the defense's key expert witness, Dr. Ronald Uscinski, because of a mistake that Huguely's defense team committed when they copied Dr. Uscinski on an email summarizing the testimony of the prosecution's key expert. The judge ruled that Huguely's attorneys violated Virginia's "Rule on Witnesses." Apparently the Commonwealth of Virginia doesn't have their own version of the Federal Rules of Evidence, so they loosely follow the federal rules (and make their own rules up when they feel like it). Virginia's so-called Rule on Witnesses is a variation of Rule 615 of the federal rules, which is designed to prevent trial witnesses who haven't yet testified from changing their testimony because of testimony given prior to theirs. Usually Rule 615 is applied to fact witnesses—people who testify about what they saw or heard, which is relevant to the crime or issue at trial.
Expert witnesses, however, aren't there to testify about facts, or what they saw or heard—their purpose is to provide the jury with scientific evidence that supports one side of the case or the other. Experts typically write reports prior to trial, and the reports are provided to the other side for both scrutiny and trial preparation, so it isn't likely for an expert to change their testimony because it would undermine their credibility if they testified in a manner that was inconsistent with what they previously wrote.
Although my analysis means nil to Huguely at this point in time, it could be a solid foundation for him to appeal his conviction and get a new trial. Ordinarily evidentiary matters aren't good bases for appeals (see, e.g., previous posts here & here) because of the incredible deference that appellate courts give to a trial judge's discretion in whether to admit or exclude evidence, but in this circumstance the judge's decision to exclude portions of Dr. Uscinski's testimony may have deprived Huguely of a fair trial. If so, the judge's evidentiary ruling becomes a constitutional question, or one of "structural error," which garners much higher scrutiny from the appellate court.
This was precisely the situation in a fairly recent decision by the U.S. Supreme Court in which they unanimously reversed the death sentence of a South Carolina man who was convicted of murder after the trial court—on hearsay grounds—refused to allow him to introduce evidence that another person committed the crime. (Even Justice Alito let that guy off the hook!). When I worked for the Court of Appeals of Ohio I drafted a similar decision, which also went one step further and found the state evidentiary rule unconstitutional. The Ohio Supreme Court eventually disagreed as to the constitutional question, but our ruling, for the most part, remained intact.
I'm not intimately familiar with Virginia law, but if I were a member of Huguely's defense team I would be looking to that line of cases for guidance, as well as considering a possible claim for ineffective assistance of counsel.
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.
Even if you believe exiled Penn State FB Coach Mike McQueary's 11th-hour revelation that he did intervene in the child rape that he says he witnessed in the locker room showers in March 2002, it still doesn't change the fact that after that incident, Jerry Sandusky continued to have access to, and continued to molest young boys for another nine years.
On Monday, I spent several hours being interviewed by Fox News, for a special report that is slated to air this weekend, and throughout the interview, the questions they kept coming back to were: "Why didn't Coach Paterno do more?" And, "Why aren't McQueary and Paterno in legal trouble over this?" As I told Fox News, I'm an attorney, not an investigator, a shrink or criminologist. I know the law, and under current Pennsylvania law, both coaches fulfilled their legal duties with regard to reporting the alleged abuse. This is because Pennsylvania is one of only a few U.S. states that don't require those who witness child abuse to report directly to police or child services.
Already, Pennsylvania legislators are taking steps to tighten the state's child-abuse-reporting statute, and there is also talk of Congress passing a stricter federal law. Currently, under the federal Cleary Act, institutions that receive federal funding are required to report all crime information to the U.S. Department of Education, but again, this does little, if anything, to stop an ongoing pattern of abuse such as the one Jerry Sandusky is alleged to have perpetrated. But regardless of whether Pennsylvania's child-abuse-reporting law was more in line with the majority of other states, are those laws tough enough to protect our children?
After giving my Fox News interview, I was curious to see what the child-abuse-reporting requirements were in my home state of New Jersey, so I looked them up, and I was a little disappointed. N.J.S.A. 9:6-8.14 makes failing to report child abuse a disorderly persons offense, which carries a maximum penalty of six months in jail, and a $1000 fine (but almost nobody gets the maximum). I'm going to go out on a limb and say that, perhaps the NJ law is appropriate, if the abuse someone failed to report was a parent who overzealously reacted to catching his teenager shoplifting—after all, when I was in school they still paddled kids in the hallways. But in the case of what McQueary is believed to have done, six months in jail and a $1000 fine isn't enough.
So the next problem with having stricter child-abuse-reporting laws, is that unless we move to a complicated, tiered approach — e.g. the way homicides are classified as murder, manslaughter, criminally negligent homicide — the laws will either be too strict or not strict enough, depending on the type of abuse. Also, these laws would need to specify exactly what conduct rises to the level of abuse that must be reported. In other words, if a school teacher sees a student with curious bruises on a regular basis, but has no direct knowledge of abuse, what is that teacher's reporting responsibility?
The McQueary incident is pretty clear cut, because he alleges that he saw Jerry Sandusky anally raping a ten-year-old boy. Turning to Joe Paterno, however, the situation is different, because from what we know now, Paterno saw nothing. So then, JoePa's next actions would have been guided by his own perception of Mike McQueary's credibility.
Joe Paterno is old school. He never had a reputation for playing fast or loose with rules. Remember Paterno's demeanor in that television promo a few years ago where all the Big 10 coaches admonished the fans to behave themselves "before, during, and after the game"? That being the case, I wonder whether the reason that JoePa didn't do more — as he wished he had done, in hindsight — is that he questioned the credibility of the young grad assistant Mike McQueary. From what I've seen of Mike McQueary, I know I do.
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.
It's probably safe to say that the Penn State sex scandal is one of the most pervasive topics in all of media right now, and since new facts are still coming in by the hour, it's way too soon to offer any meaningful analysis, but I thought it would be helpful to provide a synopsis of resources and perspectives.
1. Fellow NJ attorney Chris Fusco offers us all some wise words so as not to be swept away by the suddenness, as the story of this scandal is still in its infancy. We don't have all the facts — read Sports in the Courts Blog.
2. In his Athletes in Court blog, Tennessee attorney Lee Davis gives a pretty good reason that Penn State AD Tim Curley is the one to blame here (not JoePa). also provides a link to the 23-page grand jury indictment of Jerry Sandusky.
3. Deadspin.com is always a great resource if you're looking for the real dirt in anything sports-related. They're like the TMZ of the wide world of sports. Although there are eight alleged victims referenced in the grand jury's indictment, Deadspin says there could now be as many as twenty victims.
4. Yesterday Deadspin reported that Jerry Sandusky's 1986 National Championship ring was listed for sale on eBay. I checked the link, and the ring is not posted there, but I have no idea whether it was there and has since been removed (by the seller or even by eBay).
5. If you want to follow the scandal in real time, here is a helpful list of people to follow on Twitter, for up-to-the-minute news and developments:
@Ben_Jones88 — Ben Jones, Reporter, StateCollege.com and BlackShoeDiaries.com
@sganim — Sara Ganim, Crime Reporter, Patriot-News (Harrisburg)
@PeteThamelNYT — Pete Thamel, National College Sports Reporter, New York Times
@penn_state — Official Twitter stream of Penn State University
@jakemkaplan — Jake Kaplan, covers Penn State Football for the Philadelphia Inquirer
@bfeldmancbs — Bruce Feldman, College Football reporter, CBS Sports
@macqb11 — Matt McGloin, Penn State starting QB
@YahooForde — Pat Forde, College Football Reporter, Yahoo! Sports
@phillysport — Sports section, Philly.com
@jimbaumbach — Sports Reporter, Newsday
@DanWetzel — National Sports Columnist, Yahoo! Sports
@nittanyrich — Richard Scarcella covers Penn State football for the Reading Eagle Newspaper
@OnwardState — Onward State is "an online news organization serving the Penn State and State College community"
@ScottPaterno — Scott Paterno, JoePa's son
@YESKimJones — Kim Jones, reporter for YES
@markcviera — Mark Viera, New York Times
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.
Another college football season is upon us, and to make sure that everyone at home can keep up with all the suspensions and other mysterious or unexplained absences from their favorite college team, the NCAA has conveniently released its most recent rules manual.
It's a whopping 439 pages, and after reading it cover to cover, I couldn't find a single thing about tattoos. Nonetheless, I'm pretty sure they're banned—unless, of course, The student–athlete can prove that their tattoo was free or discounted.
What I find even more puzzling than the tattoo omission is how it isn't a major rules infraction to show up to a nationally-televised primetime season opener dressed the way Maryland Terps did on Monday night.
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.
I don't care about motivation. I care about credibility. —Eliot Spitzer
This is less about the law and probably much less about college football than it is about credibility. First of all, does Yahoo! Sports have any credibility as an investigative news publication? More importantly, however, if it is true that Tressel received information that players sold Buckeye memorabilia to the owner of a tattoo parlor eight months before Ohio State reported it to the NCAA, how credible was that alleged information?
Jim Tressel is one of the highest paid and highest profile figures in collegiate sports. Despite his generous philanthropy, he's still worth millions, and he runs one of the most successful sports programs in the nation. He has over 100 players on his team, and he teaches in a school with a student body of roughly 65,000. He also has at least one weekly radio talk show, in addition to the countless other interviews and public appearances he attends on a regular basis. What's my point? Jim Tressel has a lot of people in his ear all the time.
Anyone who's ever been to Columbus, Ohio can attest to the viral fanaticism over Buckeyes Football. And then there's this sort of expatriate faction, who hate the Buckeyes just so they can be different. Regardless of their affliction, these fans are constantly emailing and writing letters to the paper (and to Tressel, personally), calling radio talk shows, local and national, and getting on any soapbox they can to tell Tressel what's wrong with his team (i.e., why they're not winning a national championship every year).
So the question is—assuming that Tressel doesn't admit to the allegations in Yahoo's report—who is this person that allegedly told Tressel about the players selling memorabilia? What were the circumstances of the alleged conversation? And what, if anything, did Tressel do after receiving this information?
Now to the law. For all intents and purposes, the NCAA is the league in college sports (think of the individual conferences as divisions). The relevant difference here from pro sports is that there is no players' union. Since, in college sports, the players can't organize, the league wields a lot more power than even the NFL. Even so, although the NCAA oftentimes appears to act randomly or arbitrarily with respect to the sanctions they choose to mete out, they do have an actual set of written rules, known as the Constitution and Bylaws (whether they follow those rules uniformly is an entirely different discussion).
A basic purpose of this Association is to maintain intercollegiate athletics as an integral part of the educational program and the athlete as an integral part of the student body and, by so doing, retain a clear line of demarcation between intercollegiate athletics and professional sports.
So it says on page one of the 431-page Division I manual. (Each division has its own version of the bylaws, which you can download for free from the NCAA Publications website.)
According to the Yahoo! Sports probe, "if Tressel failed to inform [Athletic Director Gene] Smith or the Ohio State compliance department about the players’ dealings," the NCAA could charge him with violations for unethical conduct, failure to monitor, and failure to promote an atmosphere of compliance. The latter two allegations refer to the NCAA's draconian compliance rules.
One of the most basic of these rules is that each school, including its coaches and athletics director, has a duty to self-report rules infractions to the NCAA (see Article 22.2.1 Governance & Commitment to Rules Compliance). It is incredibly difficult to comply with this rule, however, because it is oftentimes subjective at best whether a rules infraction has occurred. This is why any school with a large athletic program typically has a separate department, staffed with a team of lawyers, who work full-time, year-round, to ensure that the school doesn't run afoul of the NCAA's rules.
As this relates to Tressel, if he did in fact receive information about an alleged infraction, he would have been required to look into the allegations further, and then determine whether it was likely that an infraction occurred. If Tressel did make a reasonable inquiry into the matter—the depth of which would be determined by the credibility of the source of the allegation—and then determined that no violation occurred, then he wouldn't have any duty to report it to the NCAA.
Moving to the supposed unethical conduct, which is governed by Article 10.1 of the Bylaws, and provides as follows:
Unethical conduct by a…current or former institutional staff member (e.g., coach…) may include, but is not limited to, the following:
(a) Refusal to furnish information relevant to an investigation of a possible violation of an NCAA regulation when requested to do so by the NCAA or the individual’s institution;
(j) Failure to provide complete and accurate information to the NCAA…or the institution’s athletics department regarding an individual’s amateur status.
Subsection (a) clearly cannot apply unless the NCAA asked Tressel, prior to December 7th, for information regarding the violations. Subsection (j) cannot apply unless Tressel knew about the incident(s), investigated, and determined that there was a possible violation, but then chose not to tell anybody about it.
Although the NCAA may, at its own discretion, apply a much looser interpretation of these rules (or make up new ones), we're still back to credibility. Who is the NCAA going to find as more credible—Jim Tressel, or the unknown individual who allegedly told Tressel about the violations back in April 2010?
In some ways, credibility reigns supreme over even integrity. Not to say that integrity is bad; it mainly speaks to a person's general character, and moral and ethical values. Credibility, on the other hand, speaks to a person's honesty and trustworthiness. In trials, juries weigh the credibility of witness and evidence, in close cases, appellate courts often weigh the credibility of counsel, and attorneys size up their adversary's credibility when negotiating. Don't underestimate the value of credibility—it's much easier to keep than it is to regain.
Many people believe that a contract has to be in writing, or it's not a contract. Not true. Another common mis-perception is that a contract is a document or tangible piece of paper. Also not true. Although contracts are oftentimes written, the contract is the actual agreement itself, and not the paper it's written on, per se. True, the law does require that certain types of contracts be in writing to be enforceable (this isn't one of them), the lack of a written agreement will not prevent most other contracts being enforced. One caveat, however, is that without a written record of an agreement, it is oftentimes difficult to prove that the agreement's existence in the first place, much less the agreement's terms, so in that case, failure to have a contract in writing would serve as a barrier to enforceability.
Generally speaking, a valid contract has three requirements:
(1) An offer;
(3) Consideration (this is just a fancy word that means that the parties have to exchange, or promise to exchange something of value).
In the circumstances with the suspended Buckeyes (see Consequences, Jan. 5), Coach Tressel offered to let them play in the Sugar Bowl if the players promised to return to the team in 2011 (and not go to the NFL). The players accepted. The consideration is the players' promise to forgo the NFL draft this spring, and to serve whatever suspension the NCAA passes down.
In this case, there wouldn't be much difficulty proving that the players and the coach made this agreement: Tressel went on national TV and discussed the deal in detail, and none of the players spoke up to object (this is known as a tacit agreement). Furthermore, members of the media asked some of the players, directly, about their promise(s) to return to Ohio State next year, to which the players each gave an affirmative response.
Breach of contract occurs when one party doesn't honor his contractual obligation. In reality, people breach contracts everyday, but it doesn't always make sense to sue. There are two reasons for this:
(1) Even if you successfully prove that the other party breach the contract, you are only entitled to the damages that you can prove (In other words, the court won't award you a lot of money simply because the other guy acted like a douchebag.);
(2) Regardless of whether you win or lose your contract case, in almost every circumstance you will still have to pay your own attorney. So unless your damages are significant, and you're pretty sure you can prove them, it might not be worth it to file suit.
Turning back to the Buckeyes' promise to return in 2011—if the players reneged, and Ohio State sued them, what are the university's damages? This is what attorneys refer to as speculative damages. But for the sake of argument, let's suppose that Ohio State claims that the players' breach caused the university to lose millions in lost ticket sales, endorsements, and broadcast royalties. The players would counter by saying that if they hadn't played in the Sugar Bowl, Ohio State would've lost, and they would've lost even more than what they lost as a result of the players' breach. And they'd be right.
As Rob Oller pointed out, what would an NFL team think about a player who reneges on a promise to his school under those kinds of circumstances?
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?
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.
The law of real estate (property) is also key in sports—think about all that goes into planning and building a venue like the new Yankee Stadium or Cowboys Stadium; each of these cost upwards of $1 billion to construct. The manner in which the law of real estate pertains to sports, however, is not that much different from ordinary real estate law. I don't wanna say that real estate is boring, because it's oftentimes anything but; it's just not something that I feel needs to be addressed in this blog.
Another area of law that is often overlooked in sports is antitrust, which has beleaguered professional athletes for over 100 years. So what is antitrust? The easiest way to describe it is that it functions as the law of competition—within the marketplace, that is. Antitrust laws, such as the Sherman Act prevent restraints on trade, by making it unlawful for companies to collude or conspire to fix prices of goods. So what does this have to do with sports? Collective bargaining agreements (CBAs).
The players' associations are labor unions; their primary function is to organize and to coordinate the players' efforts in dealing collectively with the owners. CBAs are designed to restrain trade in the labor market—that's their intended purpose! So why is it okay for labor unions to organize, to maximize employee wages, but it's not okay for manufacturers to do that with widgets? The short answer is, Labor Law. More specifically, the the Clayton Act (1914) and the National Labor Relations Act (1935), which the U.S. Supreme Court has interpreted to exempt collective bargaining and labor disputes from antitrust laws. This is referred to as the statutory exemption. So how does this apply in the real world? Remember Maurice Clarett?
As a college sophomore, Clarett sued the NFL, alleging that the league's age/class requirement was anti-competitive, and an unlawful restraint on trade. Alan Milstein, Clarett's attorney at the time, told the NY Times: ''I see Maurice's case as a league trying to make certain players, young players, who are often poor, wait on earning a living, while the NFL and colleges, either directly or indirectly, make millions off of them.'' U.S. District Judge Shira Scheindlin agreed, issuing this 71-page order that granted Clarett the right to enter the 2004 NFL Draft.
The NFL appealed the decision to the 2nd Circuit, which, in an opinion by then-Judge Sonia Sotomayor, reversed, finding that the NFL's eligibility rule fell within the scope of the "nonstatutory exemption" to the antitrust laws, regardless of the fact that the owners and players' association did not collectively bargain over the rule (2d Cir. decision pdf). Clarett's lawyers petitioned the U.S. Supreme Court to stay the the 2nd Circuit's decision, but the Court declined to hear the case (SCOTUS, cert. denied pdf). And we all remember what happened next...
But Maurice Clarett was, by no means, the first athlete to take the NFL—or any other sports league, for that matter—to the U.S. Supreme Court. In 1972, it was St. Louis Cardinals center-fielder Curt Flood, who sued the commissioner of Major League Baseball, challenging the reserve clause in his contract. Twenty years prior, it was NY Yankees' minor-league pitcher George Earl Toolson. And thirty years before that, in 1922, Justice Oliver Wendell Holmes wrote Federal Baseball, holding that professional baseball was not "interstate commerce." With a stroke of the pen, however, Congress effectively erased all of those holdings when it passed the Curt Flood Act of 1997, which removed baseball's antitrust exemption. This law also paved the way for the sharp rise in MLB player salaries over the past 15 years.
Given the history of baseball's antitrust exemption, and the fact that it was eventually repealed, it's probably only a matter of time before we see similar changes to the other professional sports leagues as well, especially in light of all the attention that the NFL is getting this year with regards to the impending expiration of its current CBA.