Friday, 17 January 2014

Legal Implications of Medical Marijuana and the NFL

If an NFL player received a physician's prescription to use marijuana as a medicine, could the NFL deny him?  The answer is probably yes, since the player's contract requires him to adhere to collectively-bargained restrictions, one of which is no use of marijuana.  As to whether the player could seek a claim under the Americans with Disabilities Act to use marijuana, while it's true that the ADA can't be contracted around, the Ninth Circuit recently held that medical marijuana is not protected by the ADA.

I spoke with Maggie Gray today about this topic and the arrest of Browns receiver Davone Bess -- who was arrested at an airport after tweeting a photo which seemed to show marijuana -- on SI Now:

Thursday, 16 January 2014

A-Rod, the MLBPA, and PED Culture Change

By now everyone has had time to digest Monday's news that Alex Rodriguez is suing both MLB and the Major League Baseball Players Association in an attempt to overturn the decision by arbitrator Frederic Horowitz's suspending him for the entire 2014 season.  While Rodriguez's case against MLB had been expected, his decision to also name the MLBPA in the suit took some by surprise.  In particular, Rodriguez alleges that the union violated its duty to fairly represent him in three ways: (i) by failing to take sufficient steps to stop MLB from leaking confidential details regarding his arbitration to the media, (ii) by failing to intervene to prevent MLB from obtaining information through it's Florida state court lawsuit against Biogenesis, and (iii) through statements made by former MLBPA Executive Director Michael Weiner allegedly suggesting that A-Rod was guilty of PED use.

Rodriguez likely included the claims against the MLBPA in his suit in hopes of boosting his chances of convincing the federal court to overturn the arbitration decision.  By alleging that the union did not fairly represent him in the matter, he can contend that he should not be bound by the arbitration's outcome, despite the fact that it was the result of a collectively-bargained-for procedure.  Rodriguez's chances of success on the claim are nevertheless quite slim, as a breach of the duty of fair representation typically requires a showing that the union acted in bad faith, or in an arbitrary or discriminatory way, neither of which appears to be the case here.

A-Rod's suit against the MLBPA can also be viewed in another light, however; in many respects, it is a natural consequence of the recent culture change within the union regarding PED use.  In the wake of the Biogenesis scandal, a majority of MLB players increasingly appear to favor stiffer punishment of PED violators.  For example, the MLBPA announced over the summer that it would not defend players in cases where there was overwhelming evidence of PED use, but would instead encourage them to reach a settlement with MLB.  While such a stance appears to reflect the majority opinion within the union, it also exposes the MLBPA to suits like Rodriguez's when an accused PED user feels that the union should have done more to protect him from league prosecution.

This culture change may also explain one curious aspect of the Rodriguez arbitration decision.  Prior to the release of the decision, commentators had questioned how MLB had reached the 211-game figure in its suspension of Rodriguez.  Indeed, under Section 7.A of MLB's Joint Drug Agreement (JDA), a first time violator is supposed to receive a 50-game suspension.  However, as the arbitration decision reveals, Rodriguez's suspension was not based on Section 7.A, but instead on Section 7.G.2, under which a player is "subject[] to disciplinary action for just cause" for "any violation ... not referenced in Section 7.A through 7.F."

As Fangraph's Wendy Thurm has pointed out, this reliance on Section 7.G.2 is somewhat curious.  Based on its express language, Section 7.G.2 only applies in cases where there has not been a violation of Section 7.A.  Section 7.A, meanwhile, expressly applies in cases where a player "tests positive for a Performance Enhancing Substance, or otherwise violates the program through the use or possession of a Performance Enhancing Substance," the latter half of which seemingly would apply to the facts of the A-Rod case.  Arbitrator Horowitz concluded that Section 7.A did not apply to Rodriguez, though, because A-Rod was not accused of using a single prohibited Performance Enhancing Substance, but instead of using three different banned substances.  In such a case, he determined, punishment pursuant to Section 7.G.2 was warranted.

Horowitz's reading of the JDA runs contrary to normal rules of interpretation, under which singular nouns are typically assumed to include the plural form, and visa versa, unless the context indicates otherwise.  In other words, the term "a Performance Enhancing Substance" would normally refer not only to the use of a single banned substance, but the use of multiple prohibited substances as well.

Horowitz's decision justifies his unusual interpretation of Section 7.A as follows:
MLB, the MLBPA, and the Player agree that Section 7.G.2 of the JDA supplies the governing framework for this case. The record establishes that cases such as this, involving continuous and prolonged use or possession of multiple substances (as opposed, e.g., to a single positive test), were intended to be handled under Section 7.G.2 rather than Section 7.A.
Arbitration Decision at 28 (appearing as Exhibit A to A-Rod's complaint).

All of this raises the question of why the MLBPA would agree to such an interpretation of the JDA.  Indeed, because violations of Section 7.G.2 are not subject to the typical 50-100-lifetime suspension framework employed for violations of Section 7.A, David Waldstein of the New York Times notes that the Rodriguez arbitration decision potentially gives MLB significant new power to punish alleged PED users.  Admittedly, in Rodriguez's case the application of Section 7.G.2 was arguably beneficial, as his use of three different banned substances could have potentially justified a lifetime suspension under Section 7.A.  Nevertheless, given that the Rodriguez decision will serve as a precedent for future cases, and therefore may subject players that would normally be subject to only a 50 or 100-game suspension under Section 7.A to lengthier punishment, the question remains of why the MLBPA would take such a stance in the Rodriguez arbitration.

Although we don't know for sure why the MLBPA took the position it did, one possible explanation is that its stance reflects the union's changing culture with respect to PED use.  If a majority of union members now favor stiffer punishment of PED users, then the MLBPA's consent to the application of Section 7.G.2 in cases where a player used multiple banned substances begins to make more sense.  While this new interpretation will certainly hurt those accused of PED use in the future, it will likely also have a significant deterrent effect against PED usage.  As a result, the union may have concluded that it was willing to concede to a potentially questionable interpretation of the JDA in order to accede to the wishes of a majority of its membership.

Indeed, the union's stance on the applicability of Section 7.A to A-Rod's case appears to have shifted over time.  Last summer, MLBPA Executive Director Michael Weiner seemed to suggest that the Biogenesis suspensions were not subject to Section 7.A.  By the time Rodriguez was formally suspended in August, however, the union had apparently changed its position, with Commissioner Bud Selig acknowledging that "the MLBPA has now taken the position that your [Rodriguez's] discipline ... can only be imposed in accordance with the schedule set forth in Section 7.A." (Arbitration Decision at 14).  By the time that Rodriguez's case reached arbitration, however, the union apparently had flip-flopped once again, agreeing that Section 7.G.2 was the applicable provision.

Whether the union will ultimately come to regret its position in the Rodriguez case remains to be seen.  At a minimum, though, it appears to reflect a new reality within the MLBPA regarding PED use.

Wednesday, 15 January 2014

Fontana on Jewish athletes

David Fontana (GW) has a piece at HuffPost on The Return of the Jewish Athlete, discussing some sociological and demographic causes for the recent revival (relatively speaking, of course) of Jewish athletes. These include increasing intermarriage, new Jewish immigration, and increasing populations in suburban and exurban communities and growing areas such as the Southwest. He also pays note to Northwestern's Aaron Liberman, a 6'10" center who wears a yarmulke and played high school basketball at a Yeshiva, earning the nicknmae "The Jewish Dwight Howard."

Interested in studying Sports Law? Join our UNH Law Sports and Entertainment Law Institute chat tonight

If you're interested in studying sports law, I hope you consider joining our chat tonight from 7:30 to 9:30 pm EST at the University of New Hampshire School Law.  I'll be joined by two current students and we'll talk about our Sports and Entertainment Law Institute and answer questions about our programs.  I hope you can join the discussion!  Here's more information:

  Admissions    |    Apply Now   |   Request Information

You are invited to join UNH Law faculty, staff, and students for our upcoming Chat Night, which will focus on the areas of sports and entertainment law. This is your opportunity to ask questions and learn more about the opportunities available to UNH Law students pursuing these fields.
Chat Night: Sports and Entertainment Law
Wednesday, January 15th
7:30pm - 9:30pm EST
Chat Night will include Professor Michael McCann, Director of the Sports and Entertainment Law Institute (SELI), Trish Morris, JD '06, Associate Director of Admissions, as well as current UNH Law students who have first-hand experience with SELI's offerings.

The Sports and Entertainment Law Institute
For 40 years, UNH Law has promoted intellectual property as an engine for innovation and growth. In keeping with our pioneering roots in the field of intellectual property, UNH Law recently launched SELI as part of the Franklin Pierce Center for IP. UNH Law students interested in pursuing sports law will have access to our innovative offerings, including:
In addition to academic offerings, SELI hosts various special events, lectures, and presentations throughout the year. Prominent upcoming and recent events include:
  • Thursday, February 6th, 2014: Panel on Russia's "Ban on Homosexual Propaganda"; SELI and the UNH Law Chapter of Lambda Legal will co-host this panel on Russia's so-called "ban on gay propaganda aimed at children" and its impact on the Sochi Olympics, moderated by Prof. McCann, including notable panelists from the fields of academia, sports, and law. (Detailed event information will be added in the coming days.)
  • Tuesday, November 5th, 2013: A Town Hall Discussion on Ed O'Bannon v. NCAA and the Future of College Athletics; moderated by B.J. Schechter, Executive Editor of Sports Illustrated and, with notable panelists from both the sports and law communities, including Prof. McCann. A full recording of the event is available.

Admitted Student Information
Congratulations on your admission to UNH Law! Now that the application process is behind you, there may be steps you still have to take in order to secure your seat for Fall 2014. As an admitted student, you will soon be receiving an invitation to attend one of our Admitted Student Days this Spring. If you have not visited yet, this is your chance to see the campus, meet current students and faculty, and learn more about the many exciting opportunities available to UNH Law students. You can expect to receive a formal invitation by mail in the coming weeks. I look forward to seeing you on campus!
– Robin Ingli, Assistant Dean for Admissions at UNH Law

Meet Professor Michael McCann
Michael McCann is a professor of law and director of the UNH Law Sports and Entertainment Law Institute (SELI)
McCann is one of the nation’s leading experts in sports law, a seasoned sports attorney, and an award-winning teacher and scholar. He is Sports Illustrated ’s legal analyst, a writer for both Sports Illustrated and, and the on-air Legal Analyst for NBA TV. McCann has covered the Boston Marathon bombings, NBA, NFL & NHL lockouts, the Penn State scandal, O’Bannon v. NCAA, Lance Armstrong & other stories... Read more
Follow Prof. McCann on Twitter

“Professor McCann is an authority on sports law and a prominent voice in journalism – when athletes and athletic organizations encounter legal hurdles, he’s among the first people called to weigh in. His expertise, experience, and accessibility make him an invaluable resource, and our current and incoming students – many of whom follow Professor McCann on Twitter and have tuned in for his live coverage of recent events – are thrilled to have the opportunity to work with him.”
– Professor Alexandra Roberts, Executive Director of the Franklin Pierce Center for IP at UNH Law


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A-Rod: A Detailed Look at His Arbitration Ruling and Its Implications

I am writing a series for Forbes SportsMoney that looks at the A-Rod arbitration decision from a number of different legal angles.

Here are four of my recent articles on the A-Rod decision that readers may find helpful:

1.  A-Rod Will Have a Tough Time Challenging His 162 Game Suspension in Court  (Jan. 11)

2.  The A-Rod Arbitration Might Have Been Legally Wrong, But that Doesn't Make the Arbitrator Biased (Jan. 12)

3. Should The Major League Baseball Players' Union Fire Frederic Horowitz for His A-Rod Decision? (Jan. 14)

4.  Why Two Of Baseball's Past Arbitrators May Have Been More Lenient On A-Rod's Suspension (Jan. 15)

5.  Why A-Rod's Decision to Sue Players Union May Be More Strategic Than Legal (New:  Jan. 16)

Tuesday, 14 January 2014

Two New Sports Illustrated Articles: Proposed NFL settlement Rejected, Maryland sues ACC

I have a couple of articles for today, a busy day in sports law:

* What Rejection of Settlement means to concussion case against NFL


The good news for the NFL and the retired NFL players who support the settlement is that they can rework it and then petition for Brody's approval. One obvious correction would be to provide more data and documentation to support the settlement's economic assumptions. A second and more controversial step would be to increase the $765 million. Whether NFL owners, who will share in paying this amount, are willing to increase their contributions by a significant margin remains to be seen. A 31 percent increase would bring the settlement amount to just over $1 billion. Given the league's annual revenue of $9 billion to $10 billion, it could send a powerful message to Brody and skeptical retired NFL players if a new proposed settlement at least crossed the billion dollar line.

A reworked settlement could also reallocate some of the money that was intended for medical research to retired players' health expenses. While this move would raise a potentially different set of objections by Brody, it would help to address her central criticism that not enough money is being made available to retired players.

* Maryland-ACC suit brings business of college sports back to spotlight again


There are three key takeaways from the Maryland-ACC litigation.

First, both sides hope to litigate before home-state courts, with the ACC holding the "home-court" advantage for the time being. The North Carolina-headquartered ACC is surely appreciative to litigate before North Carolina jurors and a judge elected by North Carolina voters. Maryland, in contrast, would prefer to litigate before a Maryland court, which would feature Maryland jurors and a judge who, though initially appointed by the governor, must face Maryland voters to be retained.

While the law must be applied fairly by the courts of all states, trial attorneys are mindful that local biases can sometimes play a crucial difference in close cases. Should the ACC win in North Carolina, watch for Maryland to attempt to convince a Maryland court to hear similar claims.

Preliminary approval of NFL concussion settlement denied

Judge Anita Brody of the U.S. District Court for the Eastern District of Pennsylvania has denied preliminary approval of the $765 million settlement in the concussion lawsuit. Brody was concerned that there would not be sufficient funds to cover even 10 % of former players who ultimately receive qualifying diagnoses, given the proposed length and scope of the settlement pool. She also dropped a footnote expressing additional concerns, still to be addressed, about the adequacy of the funds and the release of the NCAA and other amateur football organizations. The denial was without prejudice and the parties will be able to offer further documentation to show adequacy.