Thursday, 28 February 2013

New Law Review Article: "A Short Treatise on Amateurism and Antitrust Law"

It is with great excitement that I share the first draft of my newest law review article, "A Short Treatise on Amateurism and Antitrust Law: Why the NCAA's 'No Pay' Rules Violate Section One of the Sherman Act."

This article is intended to serve as roadmap for challenging NCAA rules that prevent student-athlete pay.  The article is currently under review by several law journals.  Reader feedback is both encouraged and appreciated.

Tuesday, 26 February 2013

Enforcing Johnny Football's Intangible Property Rights

Rick Reilly's column today, Selling Johnny Football, provides an interesting perspective on Johnny Manziel's trademark lawsuit filed in Texas against a man who was selling T-shirts that read, "Keep Calm and Johnny Football."  It was reported that Texas A&M's compliance office recently received a ruling from the NCAA that an athlete can keep earnings (a damages award) obtained in a lawsuit.  Why the NCAA thinks it must first give an athlete permission before he can sue someone for stealing his intangible property rights and keep the damages award if successful is beyond me.  Would an athlete also need the NCAA's permission to sue someone for stealing his wallet or computer?

But in any event, Reilly raises the point in his column that now that the NCAA has given its "blessing" for Manziel to enforce his legal rights against those profiting off his identity, he should go after the NCAA and Texas A&M now.   Reilly asks:  "How can the NCAA see the evil in some citizen cashing in unfairly on Manziel's name but not when it does it?  How can Texas A&M send out more than 60 cease-and-desist letters to people selling Manziel items, as it says it has, and not accept one itself?" 

More Marlins Problems: Jeffrey Loria Tries to Defend his Public Subsidy

Last Thursday marked the five year anniversary of the thirteen commissioners of Miami-Dade County approving a plan to spend $347 million in taxpayer money to build a new 37,000 seat retractable-roof ballpark for the Miami Marlins -- a decision that I have previously criticized on Sports Law Blog here.

In acknowledgement of this event, I wrote an article on Thursday for Forbes SportsMoney that posed the question of whether an empty Marlins Park will create backlash against sports stadium subsidies for other teams.

In the article, I noted the following:
The Marlins stadium deal is such an easy target because in no other case has the recipient of huge subsidies so brazenly turned around and slashed team payroll to lowest in the league.  Furthermore, the Marlins stadium agreement only required the team to pay nearly a third of the building costs, while it awarded Marlins ownership 100% of stadium-related revenues -- not exactly what sounds like an equal partnership.

On Sunday, Marlins owner Jeffrey Loria fired back -- taking out an advertisement in each of the major Miami newspapers -- defending both his ownership style and the Marlins Park deal itself.  Presumably, Loria's response was based in part based on my Thursday article in Forbes.

Among other things, Loria told the Miami-Dade community:
The ballpark issue has been repeatedly reported incorrectly and there are some very negative accusations being thrown around.  It ain't true folks.  Those who have attacked us are entitled to their own opinions, but not their own facts.  The majority of public funding came from hotel taxes, the burden of which is incurred by tourists who are visiting our city, NOT the resident taxpayers.  The Marlins organization also agreed to contribute $161.2 million toward the ballpark.
Nevertheless, Loria's letter is easy to rebut -- even based exclusively on the facts in 'his' advertisement.  For example, the fact that the ballpark was paid for with tourist taxes shouldn't matter because the tourist taxes could have just as easily been spent of public projects such as schools and hospitals, new public housing programs, or even as a way of maintaining the community's existing public works projects while lowering the community's overall tax base.

In addition, Loria's purported $161.2 million contributed toward the ballpark is not a mitigating factor because the ballpark deal allows Loria to keep all of the revenues from selling naming rights to the stadium -- a revenue stream that overnight reasonably could offset much, if not all, of the $161.2 million investment.  Moreover, even if Loria does not sell these naming rights himself, the value of this right will clearly be factored into the Marlins ultimate sale price -- further increasing the Marlins owner's return on investment.

I am not sure the purpose of Jeffrey Loria's recent advertisement, but I fully encourage continued dialogue on the topic.  While I believe his arguments with respect to the stadium are without merit, I at least commend him for keeping the conversation about sports stadium subsidies firmly in the public eye.

* * *
For a more in-depth view of the issues surrounding sports stadium subsidies, please see the following resources

Monday, 25 February 2013

Watch 2013 MIT Sloan Sports Analytics Conference On-Line

With due respect to the many great sport law and sports business conferences held each year -- and there are some excellent ones -- the best one is the MIT Sloan Sports Analytics Conference (March 1-2). I'm honored to be a panelist at this year's event; this is my fifth year in a row as a panelist and each year it gets better - a credit to the conference's organizers, Daryl Morey and Jessica Gelman. I'll be on the Beyond Reason: Sports Labor Negotiations panel on Saturday March 2.

The conference is sold out, but at the following link you can register to watch many of the panels on-line. I always gain a ton of insight at this conference, which this year features as panelists Adam Silver, Michael Lewis, Mark Cuban, Stan Kaster, among many others, and has an awesome set of panels.

If you aren't attending, the webcast is a must-watch if you're interested in our industry.

Sunday, 24 February 2013

New Sports Illustrated Column: When spectators flee a race crash, is video of it news or copyright protected sports event?

Many spectators were hurt in yesterday's Daytona race because of a collision. A high school sophomore took a video of the crash and fans screaming and trying to get help. NASCAR wanted the video taken off YouTube, which for a while removed it but then put it back up.

Do we have a legal right to see this video? I explore in a new column for Sports Illustrated | Here's an excerpt:
But only about 12 seconds of Anderson's 1 minute, 16 video is actually of a NASCAR race; the rest centers on the crash and fans scrambling for cover from flying debris. NASCAR's ownership over this latter part of the video is questionable, since "facts" and "news" are not subject to copyright protection and the First Amendment safeguards public access to them. The NBA knows this quite well. Back in 1997, the U.S. Court of Appeals for the Second Circuit ruled that the NBA could not claim copyright in its stats and scores, which Motorola had broadcast through a wireless paging device known as SportsTrax. The reasoning? Facts and news are not copyright protected. 

It could be argued that at about 13 seconds into Anderson's video, the race transformed from a copyright-protected NASCAR event into a not-copyright-protected news event. Fans screaming and fleeing for cover is not part of any race, but is certainly newsworthy. On the other hand, NASCAR might contend that because crashes are (unfortunately) not uncommon in NASCAR races, a crash should be considered a continuation of a copyright-protected NASCAR event. This is a difficult area of law and highlights how legal protection for "sports events" and "news events" may not always be the same.

To read the rest of the column, click here.  Here's the video:

The Economics of the Infield Fly Rule

My longer treatment of the infield fly rule, The Economics of the Infield Fly Rule, is now available on SSRN and forthcoming in Utah Law Review. The abstract is below. Comments welcome.

 No rule in all of sports has generated as much legal scholarship as baseball’s Infield Fly Rule. Interestingly, however, no one has explained or defended that rule on its own terms as an internal part of the rules and institutional structure of baseball as a game. This paper takes on that issue, explaining both why baseball should have the Infield Fly Rule and why a similar rule is not necessary or appropriate in seemingly comparable, but actually quite different, baseball situations. The answer lies in the dramatic cost-benefit disparities present in the infield fly and absent in most other baseball game situations.

The infield fly is defined by three relevant features: 1) it contains an extreme disparity of costs and benefits inherent in that play that overwhelmingly favors one team and disfavors the other team; 2) the favored team has total control over the play and the other side is powerless to stop or counter the play; and 3) the cost-benefit disparity arises because one team has intentionally failed (or declined) to do what tordinary rules and strategies expect it to do and the extreme cost-benefit disparity incentivizes that negative behavior every time the play arises. When all three features are present on a play, a unique, situation-specific limiting rule becomes necessary; such a rule restricts one team’s opportunities to create or take advantage of a dramatic cost-benefit imbalance, instead imposing a set outcome on the play, one that levels the playing field. The Infield Fly Rule is baseball’s prime example of this type of limiting rule. By contrast, no other baseball situation shares all three defining features, particularly in having a cost-benefit disparity so strongly tilted toward one side. The cost-benefit balance in these other game situations is more even; these other situations can and should be left to ordinary rules and strategies.

Thursday, 21 February 2013


Fellow sports lawyers, the Sports Law Blog has been a leading site for delivering cutting edge commentary and insight in the field of sports law.  As this leading site celebrates its 10th Anniversary in November, with the support of our Editor-in-Chief Michael McCann, we decided it was time to expand our efforts to brand and promote the tremendous talents of our contributors.

A natural first step was to generate a Twitter handle and feed for ourselves.  Thus, today, we are happy to announce the launch of the official "The Sports Law Blog" Twitter feed -- @InsideSportsLaw.  The goal is to generate additional attention to both the information we post on our website, as well as promoting the industry's leaders in the field of sports law--our writers.

While the use of this Blog, the newly created Twitter account, and other related future efforts will evolve over time, we hope that our efforts to offer both insight and commentary on the world of sports law remain unparalleled.

Daily Fantasy Sports and the Law: The First Legal Challenge

On March 21, 2012, Illinois lawyer Chris Langone filed a lawsuit in the U.S. District Court for the Northern District of Illinois against Fan Duel and one of its purported winners, Patrick Kaiser.  The lawsuit seeks to recover the third-party losses of Fan Duel's contestants based on Illinois's version of the Statute of Anne -- a common law statute that sometimes allows third parties to recover unclaimed winnings from illegal gambling transactions.

The posture of this case resembles the 2006 case Humphrey v. Viacom, with two major differences: (1) case is brought in Illinois rather than New Jersey, and (2) the case is brought against a daily fantasy sports game rather than a traditional, full-season fantasy game.

Fan Duel has filed a motion to dismiss that argues, among other things, that its games should not fall under Illinois gambling losses recovery statute because its games involve predominantly skill.

This week, I have written several articles on this case and its implications over at Forbes.  For more on the specifics and the merits of the parties' respective arguments, please see the following three sources:

1.  Marc Edelman, Will New Lawsuit Help to Clarity the Legal Status of Daily Fantasy Sports, Forbes, Feb. 19, 2013.

2.  Marc Edelman, Did Comcast Invest in Fan Duel Too Soon, Forbes, Feb. 20, 2013.

3.  Marc Edelman, A Short Treatise on Fantasy Sports and the Law: How America Regulates its New National Pastime, 3 Harvard Journal of Sports & Entertainment Law 1 (2011).

Wednesday, 20 February 2013

Presentation to Northwestern Sports Law Society

I will be at Northwestern University School of Law tomorrow (Thursday), presenting The Economics of the Infield Fly Rule to NU's Sports Law Society as part of Sports Law Society Week. The program runs from 12:10-1:20. Feel free to stop by if you are in Chicago.

Slate on Indian Mascots

Following up on our discussions of Indian mascots, this week's Slate Hang Up and Listen podcast includes a segment (starting at 34:10) on the controversy, featuring Dr. Ellen Staurowsky, a professor of sports management at Drexel University (Ellen also was kind enough to contribute an excellent chapter for my book on Duke lacrosse). It is a good conversation, touching on many of the issues of Indian self-concept and self-image that Alex mentions in his post.

Worth a listen.

A Call to Action

NCAA President Mark Emmert's leadership, and lack of accountability, surrounding his organization's investigation into the University of Miami was an embarrasment to those of us in higher education.  Thankfully, the good folks at The Huffington Post have provided me an outlet to rant.

The result is the following piece, titled "A Call to Action" where I advocate that it's time for Emmert to go; and since he's declared he won't resign, the NCAA Executive Committee needs to take action.  Feel free to lobby the members, who are listed here.

More on the significance of defining sport

The surprising and controversial announcement that wrestling is being dropped from the core Olympic programme effective with the 2020 Summer Games made me think that we may have found a reason why it matters whether something is a sport or not: Whether something is a sport (as opposed to a game or a competition) should be a tiebreaking factor when choosing between two events. In other words, when the IOC is deciding between wrestling and, say, synchronized ballroom dancing, the former wins out because it is a sport and the other is not.

Tuesday, 19 February 2013

More on the Redskins and Indian Mascots

The following is by my colleague Alex Pearl; Alex is an enrolled member of the Chickasaw Nation of Oklahoma and writes and teaches on Indian Law.

As mentioned here, the National Museum of the American Indian held a symposium entitled “Racist Stereotypes and Cultural Appropriation in American Sports.”  In this post I am limiting the discussion to the Redskins specifically and sports mascots generally.  I have to plug the comprehensive blog, Native Appropriations, which examines representations of Indigenous Peoples in popular culture generally, including sports.

I’ve lost count of how many times the two entrenched sides of the Indian mascots debate have made their arguments.  The arguments of the respective camps can be summarized as follows.  Pro-Indian Mascots: We are honoring you and we have a connection to the team name, if you are offended then that is political correctness run amok.  Anti-Indian Mascots: We are not being honored and your connection to the team name is ridiculous.  In the interest of full disclosure, I’m an enrolled member of the Chickasaw Nation of Oklahoma (i.e., I’m an Indian).

            At the Symposium, one participant had this to say, “[i]f Dan Snyder truly thinks the word ‘Redskins’ is anhonorific, I challenge him to attended the next meeting of the NationalCongress of American Indians and try using that word to people’s faces.  Of course, Dan Snyder (nor anyone from the Pro-Indian Mascot camp) is coming to the Symposium or any other majority-Indian meeting. Which brings me to my point that the two sides are simply talking past each other.  They maintain mutually exclusive positions regarding a disagreement about a subjective value judgment. 

            I think there are opportunities for advancing the debate in an objective way.  There is research performed by Dr. Stephanie Fryberg and others that examine the effects of American Indian mascots on “aspects of the self-concept for American Indian students.” [Of Warrior Chiefs and Indian Princesses: The Psychological Consequences of American Indian Mascots, available at].  Here’s the abstract findings from her jointly authored paper:

When exposed to Chief Wahoo, Chief Illinwek, Pocahontas, or other common American Indian images, American Indian students generated positive associations (Study 1, high school) but reported depressed state self-esteem (Study 2, high school), and community worth (Study 3, high school), and fewer achievement-related possible selves (Study 4, college). We suggest that American Indian mascots are harmful because they remind American Indians of the limited ways others see them and, in this way, constrain how they can see themselves.

Dr. Fryberg was not at the Symposium held at the NMAI.   While I think the symposium does some good by focusing on the cultural gulf existing between Indian and non-Indian society, I think it would be more worthwhile for there to be greater emphasis on the type of research performed by Dr. Fryberg and others.  Moving the debate beyond “This mascot doesn’t honor me” to “This mascot causes empirically demonstrable psychological harm to Indian youth” is, in my view, preferred.  As an added bonus, studies like these may provide evidentiary support for the more recently filed action, Blackhorse v. Pro-Football, Inc., seeking to cancel the trademarks affiliated with the Washington Redskins

            As Sally Jenkins pointed out in her Washington Post article, many potentially influential people have raised this issue and suggested a name change.  However, the franchise, and accompanying branding and trademarks, is simply too valuable to change.  Unless there is a significant intervening economic event, like the Blackhorsecase prevailing, substantial fines by the NFL, or boycotts by fans and ticket holders the mascot is not going to change.  All this moral weight and scientific evidence will not trump the economic bottom line.

University of Virginia School of Law Sports Law Conference

The complete program for the March 8, 2013 sports law conference at the University of Virginia School of Law can be found here.  It is my understanding that CLE credits are pending.  Panels include the following:

- Ethical Issues for Sports Agents

- Legal and Practical Issues for Women in Sports and the Sports Law Industry

- Gambling and Corruption in Sports

- Penalties for Athletes

- Lockouts, Greed, and Collective Bargaining  

Monday, 18 February 2013

The Tragedy of Oscar Pistorius

The Oscar Pistorius situation is truly tragic for many reasons, including the loss of a life.  The fallout has included a number of sponsors including Nike terminating their relationship with Pistorius, pulling ads or otherwise removing Pistorius from their advertising campaigns. 

The ability of a sponsor to take these actions usually depends on the specific language of a morals clause.  Some clauses will allow termination or other adverse actions if the athlete has been charged with a crime, regardless of whether there is ultimately a conviction.  Other clauses might allow such actions only upon conviction of a crime.  

This situation highlights the basic principle for contract drafting generally and morals clauses in particular -- in order to impose the proper penalties for a breach, specific language is often necessary to fit specific situations.  Nike's contract with Pistorius apparently allows for termination in the event of a criminal charge or even just becoming involved in a public scandal.  In an unfortunate situation such as this one, this type of broadly-worded morals clause gives the sponsoring company significant power in determining its response.

Waterstones Bookshop, Kensington - "Mind, Body Spirit"section

Thanks to Alex Hackett.