The Gregg Williams' NFL Suspension: Logical Yet Perhaps Illegal

Most NFL fans were appalled to learn about former New Orleans Saints defensive coordinator Gregg Williams' bounty system that paid his players for injuring opponents. In light of growing concern about retired NFL players' health, Commissioner Roger Goodell swiftly suspended Williams indefinitely from the league.

Thus far, Goodell's suspension of Williams has received overall positive press. However, even if fans are happy to see Williams go, their feelings beg an entirely different question: did Roger Goodell have the legal authority as a governing figure on behalf of the 32 teams to ban Williams from practicing his profession as a pro football coach?

If challenged under Section 1 of the Sherman Act, Goodell's attempt to indefinitely suspend Williams serves as an interesting test case to the modern view of antitrust law's Rule of Reason. As the NFL will most likely note, back in 1961 the U.S. District Court for the District of New York ruled in the case Molinas v. Nat'l Basketball League that a league commissioner may indefinitely suspend a player on moral grounds. However, since the Molinas case was decided (which, of course, only came from a single district court), courts' interpretation of antitrust law's Rule of Reason has changed significantly.

Most notably, in the 1978 U.S. Supreme Court case National Society of Professional Engineers v. United States, the high court explained that antitrust law's Rule of Reason should not turn "on a court's intuitive judgment of whether a particular practice seems sensible and equitable, but rather on economic analysis." In other words, unlike in past decisions such as Molinas, public policy grounds no longer serve a clear place in a proper antitrust analysis.

In light of the Supreme Court's holding in both Professional Engineers and its progeny, I have repeatedly argued that indefinite commissioner suspensions in professional sports leagues are generally no different from illegal group boycotts. This argument is especially powerful where the suspended party is an NFL coach because NFL coaches are not unionized and thus their suspensions lie outside of antitrust law's non-statutory labor exemption.

Interestingly, a rarely discussed footnote in Professional Engineers (footnote 22) leaves open a small gray area if the main purpose for a restraint of trade is to protect a collective entity from "product liability." Given the bona fide liability concerns that would flow to NFL teams by allowing continued employment of a coach that has encouraged physical harm to players, Goodell's suspension may fall firmly within the spirit of this Footnote 22 caveat.

Nevertheless, footnote 22 of Professional Engineers is vague, and its successful application has been rare. In addition, footnote 22 relates specifically to product markets and not to labor markets, where upholding such a restraint would entirely prevent one from practicing his chosen avocation.

In this vein, courts have been frequent to uphold the general position that no matter how laudable one's intentions, separate businesses are forbidden from coming together to form an extra-governmental entity that provides rules for the regulation and restraint of interstate commerce. According to most courts, the power to regulate such trade is a power reserved for the government and not trade associations, even where a trade association's leader has honorable intentions.

Two tales of cheering speech

I was interviewed yesterday by a reporter for The New York Times on the subject of cheering speech; he seemed resistant to many of my arguments and suggested that others would be, as well (he might be right about that last point). Anyway, here are two new examples of cheering speech for the record books:

Last night in Oakland, Golden State Warriors fans loudly and continuously booed team owner Joe Lacob during the ceremony to retire the jersey of Warrior great Chris Mullin. The boos continued despite repeated requests from Mullin and from Rick Barry, who also was on hand. Also yesterday, Southern Mississippi kicked five members out of the pep band and withdrew their scholarships after they chanted "Where's green card" at Kansas State's Angel Rodriguez during an NCAA tourney game last weekend.

Both incidents show fans being utterly obnoxious, to be sure. But it is hard to see why any of this does not and should not enjoy free-speech protection under current principles. Certainly the Warriors fans should be able to make their feelings heard about an owner who, in their view, is mismanaging the team.

The Southern Miss situation could get interesting, because the sanction was meted out by a state institution, so a First Amendment lawsuit is not out of the question. My best guess is that any lawsuit will fail, because a court would conclude that the band members speak "as the school" and the school can control who speaks (or cheers) on its behalf. The Fifth Circuit last year rejected a claim by a high school cheerleader who was kicked off the team for refusing to cheer for the basketball team member who, she alleged, sexually assaulted her. It's hard to imagine the band members having any better luck.

Update: A reader emails to say he reached out to the Southern Miss. administration and a spokesperson said there is no First Amendment violation because the students were punished only in their capacity as band members. Sloppily stated, but it does sound like they are setting up a "we get to choose who speaks as our official representative" argument.

New Sports Illustrated column: Mets owners settle claims brought by Madoff victims

Big news in Mets land today, as the team's owners settle what was originally a $1 billion lawsuit brought by victims of Bernard Madoff.  While the settlement is for $162 million, they will likely end up paying much, much less.  Here's my take for SI.

Jim Thorpe and Civil Procedure

Here is an interesting story from yesterday's Washington Post on the ongoing over the remains of Jim Thorpe, the great Native American athlete of the early 20th century. In 1953, Thorpe's third wife gave his body to two neighboring towns in the Pocono Mountains of Pennsylvania--Mauch Chunk and East Mauch Chunk--in exchange for their merging and adopting the name "Jim Thorpe." But in 2010, John "Jack" Thorpe, one of Thorpe's sons, sued in federal court against the Borough of Jim Thorpe, seeking the return of his father's remains under the Native American Graves Protection and Repatriation Act (“NAGPRA"), as well as damages under § 1983.

As always, there is a lot of interesting procedure floating around here. In February 2011, the district court granted in part and denied in part the Borough's 12(b)(6); it held that the damages claims were legally barred, but that the NAGPRA did govern the plaintiff's claim. The court also suggested that Richard and William Thorpe, Jack's brothers, and the Sac and Fox Nation, the Oklahoma-based tribe to which Jim Thorpe belonged, had to be joined as defendants under FRCP 19. Jack Thorpe initially sought an ordering that Jim's remains be turned over to Jack; to the extent William, Richard, or the Sac and Fox might also have a claim to the remains, they needed to be heard in this case. The court left open the question under FRCP 19(b) whether Richard, William, or the Nation would be subject to personal jurisdiction in Pennsylvania and, if not, whether the case could proceed without them.

Shortly after the district court's decision, Jack Thorpe died, triggering application of FRCP 25 for substitution of parties. But then Richard and William and the Sac and Fox Nation joined Jack (now represented by his estate) as plaintiffs, filing an Amended Complaint that now seeks the return of Jim's remains to the tribe. The Amended Complaint recently denied a second 12(b)(6) motion, holding that the new plaintiffs are proper parties and reiterating its view that the NAGPRA claim is not legally defective and can proceed.

Vermont Law School Panel on Emerging Issues in Ski, Snowboarding and Resort Law

The Sports Law Institute at Vermont Law School is thrilled to announce our upcoming panel on emerging issues in ski, snowboarding and resort law.  Here are the details:

The Sports Law Institute at Vermont Law School presents

A Panel Discussion on Emerging Legal Issues

in Ski, Snowboarding and Resort Law

Thursday, March 29, 2012

12:45 to 2:00 pm

Chase Community Center

We are excited to announce a dynamic panel of leading attorneys in ski, snowboarding and resort law.  The event will be open to the public and 1.25 Vermont CLE credit hours will be available.     Topics will include:

• tort implications of participating in ski and snowboarding;

• role of assumption of risk in personal injury litigation involving ski and snowboarding;

• new state laws that promote safety, such as requiring skiers and snowboarders under 18 to wear helmets; 

• the structuring of licensing and related ski and snowboarding contracts;

• impact of international law on multi-national ski, snowboarding and resort transactions;

• impact of controversial new regulations promulgated by the International Ski Federation;

• ways the law can improve underprivileged persons' access to ski and snowboarding; and

• how changes to the law might address the expected impact of climate change on the ski, snowboarding and resort industries.

Introduction

Professor Michael McCann will introduce the event and the speakers.  He will also comment on the Sports Law Institute's exciting plans for 2012-13.

Panel

Brian Porto (moderator)

Professor Porto is Deputy Director of the Sports Law Institute and an Associate Professor of Law at Vermont Law School.  He has been writing about legal issues in sports for more than two decades.  Professor Porto's writings focus on the effects of Title IX on college sports and on the relationship between those sports and higher education.  His most recent book, The Supreme Court and the NCAA, examines the antitrust and due process consequences for college football and basketball of the United States Supreme Court's decisions in NCAA v. Board of Regents (1984) and NCAA v. Tarkanian (1988), respectively.  Professor Porto holds a JD from Indiana University-Bloomington and a PhD. in political science from Miami University (Ohio). Before coming to VLS, he taught political science at Macalester College in St. Paul, Minnesota and practiced law in Vermont.

Evan Banker

Mr. Banker is the senior associate at Chalat Hatten & Koupal PC in Denver, Colorado.  His practice is focused on ski, snowboard, and other recreation related injuries, as well as professional malpractice. Mr. Banker’s ski and recreation law practice regularly includes questions of law regarding the enforceability of liability waivers, inherent risks and dangers of skiing, resort liability, and skier responsibility. He holds degrees from the University of Denver College of Law and the University of Michigan.

Jaimesen Heins

Mr. Heins is Associate General Counsel at Burton Snowboards in Burlington, VT.  He manages transactional legal matters for Burton and its global family of surf, skate and snow brands.  This including drafting, review and negotiation of professional athlete, sponsorship, manufacturing, licensing and related commercial agreements.  In addition, Mr. Heins provides advice and strategic counsel to Burton with respect to mergers and acquisitions, intellectual property, employment, real estate and litigation matters.. Previously, Mr. Heins served as a Project Manager for Toll Brothers, Inc., a publicly traded real estate development company.  Mr. Heins also held associate positions with Hughes Hubbard & Reed, LLP in New York and Eggleston & Cramer, Ltd. in Burlington, Vermont.  Mr. Heins holds degrees from the University of Pennsylvania Law School and Tulane University.

Andrew Maass  

Mr. Maass is an attorney at Ryan Smith & Carbine in Rutland, VT.  A past officer and President of the Board of Directors of the Association of Ski Defense Attorneys, Mr. Maass is active in ski defense and professional liability litigation and has successfully tried numerous cases to jury verdict.  He has presented before the National Ski Areas Association, the Vermont Ski Areas Association and the Ski Areas of New York Association and has been involved in ski industry litigation throughout the East Coast.  A substantial portion of Mr. Maass’s practice also consists of counseling employers on employment issues. Mr. Maass is an approved trainer for equal employment/discrimination matters by the Civil Rights Division of the Vermont Attorney General’s Office.  He holds degrees from New England School of Law and St. Lawrence University.

Parker Riehle (VLS' 92)

Mr. Riehle is president of the Vermont Ski Areas Association, which represents the state’s alpine and Nordic ski areas in governmental affairs, marketing and public affairs.  Before first joining the association as the Director of Governmental Affairs in 1998, Riehle was in private practice with a primary focus on insurance defense litigation. In 2003, he was appointed to Governor Douglas’ senior staff as Special Assistant to the Governor and Secretary of Civil & Military Affairs, where he served as legal counsel, legislative liaison and policy advisor.  After the Governor’s first term, he returned to VSAA and has been president since 2006, where he oversees all aspects of the association and serves as the ski industry's lobbyist with the Vermont legislature and regulatory agencies.  He holds degrees from Vermont Law School and Hamilton College.

An empirical look at sports and politics

Brad Smith, a UNC undergrad, has analyzed President Obama's NCAA bracket, finding a statistically significant relationship between the number of wins Obama picks for a team and that team's location in a potential swing state in this fall's election, a relationship beyond the national average. (H/T: Kim Krawiec of UNC Law). Kim adds a nice caveat: not every pick of a school in a swing state will appeal to swing-state voters in the same way. For example, picking Duke will not appeal to North Carolina voters in the same way as picking UNC or NC State.

Interview with Bryan Stroh, Vice President and General Counsel of the Pittsburgh Pirates

The Pittsburgh Pirates recently hired Bryan Stroh as Vice President and General Counsel.  It's been a productive month for him.  He played key roles in the team winning its arbitration case against first baseman Garrett Jones and re-signing All Star center fielder Andrew McCutchen to a six-year contract worth $51.5 million with a club option for 2018 worth (the deal buys out at least two years of when the 25-year-old McCutchen could have been a free agent). 

Bryan is a good friend and former law school classmate of mine (University of Virginia School of Law, 2002).  Prior to joining the Pirates, he was a Chicago-based partner of Katten Muchin Rosenman, where his work included representing the Chicago White Sox.  He's also a 1998 graduate of Princeton University, where he was a top pitcher for the baseball team.  Bryan was kind enough to answer a few questions for Sports Law Blog.

SLB: What types of experiences at Katten best prepared you for this job?

STROH: At Katten, I was fortunate enough to work on a number of matters for the Chicago White Sox.  When I was a mid-level associate, I worked with a partner representing a White Sox player in a dispute with a former agent.  That case really opened my eyes to the various ways that the legal world overlaps with baseball.  Then a few years later I worked with the same partner on an internal investigation for the White Sox.  It was a fascinating case and I was lucky enough to be exposed to a number of people in the White Sox front office.  After we got a good resolution on that case, the partner basically kicked me in the butt and told me that I owed it to myself to try to figure out if there was a way for me to that sort of work more often, since he could see how much I enjoyed doing the work.

Beyond the sports cases that I worked on, as a litigator I did a ton of negotiating in a variety of different contexts.  That has been a huge benefit for me in my new role because even though the subject matter is a bit different, there are very few situation and personalities that I have not already come across in one form or another. 

SLB: What are typical situations you might have to handle in your job?  Are you involved with the disciplining of players or visa issues?

STROH: I have only been here about three months, so I am not sure I can really describe what is typical.  In the non-baseball world, the offseason involves a great deal of contract drafting and negotiation for things like sponsorship agreements, suite licenses, and media contracts.  On the baseball side, my primary focus has been contract negotiation for one multi-year contract in particular, but also for arbitration eligible players.  I also spent a great deal of time preparing for and giving the club’s presentation at a salary arbitration hearing. I have also had a variety of issues pop up related to the club’s activities in the Dominican Republic and other Latin American countries. One of the things that really attracted me to this job is the variety of work that I get to do, which includes a good deal of overlap with the club's baseball operations. Every club structures things differently, but I am fortunate that Neil Huntington and Frank Coonelly give me opportunities to be involved in more than just those traditionally associated with a general counsel position.

SLB: The new CBA, which limits the amount of money teams can spend on drafted players, has been described as unfair to small market teams like the Pirates, which have used spending on the draft to rebuild in part because free agents are so expensive/over-priced.  What are your views on the impact of the CBA on the Pirates?

STROH: I understand that perspective and selfishly think it is too bad that we cannot continue to exploit what we believed to be a competitive advantage.  But, the reality is that, even though the Pirates spent more money in the draft than most teams in the past 3-4 years, that was not going to last forever.  The bigger market clubs could have changed that at any time, and likely would have once one decided that the money spent in the draft was efficient and money well spent.  If that ever happened, the larger market clubs could have spent significantly greater dollars than even the level the Pirates had been spending, which could have been a huge competitive disadvantage.  Thus, the structure of the new CBA prevents that from happening, even if it takes away the temporary advantage produced by the additional dollars spent by the Pirates in recent drafts.

SLB: Baseball has adopted tougher penalties and testing protocols for steroids and performance-enhancers.  Do you think Baseball will be able to keep up with what are clear market incentives for players and disreputable labs to identify new drugs that evade detection?

STROH: One thing that might surprise some fans is that, for the most part, I think the players, not just the clubs, really want to clean up the game.  You saw that recently with some of the reaction to the Braun case.  The players are aware that there is this perception out there that any accomplishments are somehow tainted by the steroid possibility.  Thus, most of them seem to realize that the perception, even if it is not based on fact, will not go away until there is a testing program that engenders the public’s confidence and trust.  Most players and agents that I have spoken with are very clear about this point, and that is why I believe that the last round of bargaining produced a strong set of penalties and testing protocols that both sides believe in.
 
SLB: What advice do you have for law students or new attorneys hoping to break into sports law?

STROH: First, they need to ask themselves whether they really have a strong passion for a sport or whether they just think that the idea of working in sports would be fun or cool. 

Second, and only if they have the passion for a particular sport, they need to think about how they will separate themselves from the pack in terms of offering value to whoever might hire them.  Unfortunately, it just is not enough to be somebody who likes sports, went to a good school and got good grades.  There are thousands of people who want to work in sports, and after Theo Epstein and others helped to break the mold, the supply of talented people who want to work in sports has gone through the roof in the last 10 years.  One of the clubs that I represented in private practice used to show me the resumes of people that did not even make the cut to be “finalists” for a few positions.  Those resumes were incredibly impressive and these people did not even make the final cut!  Whereas it used to be people wanted to work in sports but were semi-realistic about their chances, now anybody who goes to college wants to get into the sports world.  While I think that is healthy for sports in general since it means that more and more qualified people are considering working in sports, the reality is that by itself just isn’t enough to get a job.  You have to try to think about how you can provide some sort of unique skill or background that will help you stand out.  And even then, if you are able to do all of those things, you have to get a little lucky and be in the right place at the right time.  If you do your homework on how most people from the outside got their start in baseball, it becomes pretty obvious that timing is everything.