Rain Delays and "the Integrity of the Pennant Race"

An interesting side-note from Wednesday night, which is becoming widely accepted as one of the best nights of baseball ever.

The Red Sox game against the Orioles in Baltimore was delayed by rain for about 90 minutes in the seventh inning with Boston leading 3-2. This is not an inordinately long delay, but it's much more than the minimum (30 minutes) required for the umpires to decide to call the game. If they had, the Red Sox would have won, and presumably would be in a one-game playoff with Tampa Bay for the AL wild-card spot. But the generally accepted practice is that a game that important should not be called because of "the integrity of the pennant race." (Most agree that if the game had been between two non-contenders, it would have been called.)

I am not saying the game should have been called (or that it shouldn't). But I don't agree that the integrity of the pennant race is best protected by changing the rules in the interest of the integrity of the pennant race. Much like basketball referees who swallow their whistle at the end of the game in the mistaken belief that they are allowing the players to determine the result, deciding not to enforce a rule is as much an example of referees determining the outcome as overzealously enforcing one. In either case, one team is given an advantage it wouldn't have at another point in the game or season.

In this example, it worked out well for the Orioles, and through them the Rays. And it worked out well for baseball, which had a much more interesting outcome than it would have with a rain-shortened game. (Although had Boston won there would have been a one-game playoff on Thursday.) I'm just not sure that having different rules for "important" games is something baseball should be promoting.

New Sports Illustrated Column: Court ruling keeps Mets owners in limbo regarding Madoff lawsuit

I have a new column for SI on a key decision today by U.S. District Judge Jed Rakoff to permit the two most serious claims against Mets owners Fred Wilpon and Saul Katz, who are facing a $1 billion lawsuit over whether they fraudulently earned money through investments with imprisoned Ponzi scheme artist Bernie Madoff. Rakoff dismissed nine of the lawsuit's 11 counts, but refused to dismiss the most damaging counts: that Wilpon and Katz earned $295 million in fictitious profits through investing in a scheme that they knew to be too good to be true -- that is, they knew to be fraudulent -- and that they should return their $700 million principal, as well.

Could Major League Baseball take over the team?  Here are my thoughts:

Wilpon and Katz also have to worry about Major League Baseball's interest in the matter. Commissioner Bud Selig has already taken over the Los Angeles Dodgers this season from Frank and Jamie McCourt because of the team's financial woes. The commissioner is armed with several legal weapons -- the best interests of the game clause, which provides Selig with wide discretion to regulate any aspect of the game, including ownership interests; the waiver of recourse clause found in ownership purchase agreements, which nominally prevents owners from suing Major League Baseball; and the historical exemption enjoyed by Major League Baseball under federal antitrust law -- that make it possible for him to wrestle control of privately-owned teams from their owners. Although Selig has a much better relationship with Wilpon than with the McCourts, he cannot ignore the potential fallout of the Mets mired in a $1 billion lawsuit.

To read the rest of the column, click here.

Zelinsky on The Supreme Court (of Baseball)

Aaron Zelinsky, who has blogged here and written on aspects of the judge-as-umpire metaphor, has a new piece, The Supreme Court (of Baseball), at Yale Law Journal Online, that continues his argument that the Supreme Court and the Justices are analogous to the Commissioner of Baseball.

Worth a read.

Professional Sports Counseling Panels: Financial Incentive for Schools

This past winter I co-wrote a law review article (with Glenn Wong and Chris Deubert) titled "Going Pro in Something Other than Sports: Improving Guidance for Student-Athletes in a Complicated Legal and Regulatory Framework." This article appeared in the Cardozo Arts & Entertainment Law Journal and, among other things, we argued that schools should be serving student-athletes in this capacity because it is the right thing to do.

After some thought, I've added a new argument for schools to consider--it will save millions of dollars. Maybe this argument will be heard. You can check out this article on the Huffington Post here.

University of Maryland School of Law Symposium on Intersection of Sports and Business in Today’s Legal Arena

I look forward to participating in next Monday's sports law symposium at the University of Maryland School of Law -- this event is open to the public; hope to see Sports Law Blog readers there.

University of Maryland Francis King Carey School of Law

Upcoming Symposium

 
"The Intersection of Sports and Business in Today’s Legal Arena."

Journal of Business & Technology Law Fall Symposium, Co-Hosted by the Entertainment, Arts and Sports Law Association


Monday, October 3, 2011, 9:30 a.m. – 5:30 p.m.

Ceremonial Moot Court Room, University of Maryland Francis King Carey School of Law, 500 West Baltimore Street, Baltimore, MD 21201

Distinguished speakers will take part in panel discussions on stadium development, the legality the Bowl Championship Series, and athlete images/media rights. A highlight of the event will include a speech by Ed Durso, Executive Vice President, Administration for ESPN, who is currently scheduled to give a luncheon keynote address. Additionally, Jay Bilas, ESPN commentator and analyst, will also speak and moderate a panel discussion. Other recognized speakers include Irwin Kishner, a Partner at Herrick, Feinstein and lead counsel for the new Yankee Stadium transaction, Alan Fishel, a Partner at Arent Fox and supporter of the Bowl Championship Series, and N. Jeremi Duru, Associate Professor of Law at Temple University Beasley School of Law and author of the book, Advancing the Ball: Race, Reformation, and the Quest for Equal Coaching Opportunity in the NFL.

RVSP HERE or reply by email to ngrim004@umaryland.edu.

Schedule of Events

9:30 – 9:35	Welcome from JBTL/EASL members
9:35 – 10:20	A discussion with N. Jeremi Duru, visiting Associate Professor of Law, University of Maryland School of Law, about equal opportunity in sports.
10:20 – 11:00	Opening Remarks from moderator Jay Bilas, ESPN commentator and analyst
11:00 – 12:30 p.m.	Complex Sports Transactions: Stadium Development Panel Stan Kasten, Former President of the Washington Nationals, Atlanta Braves and Atlanta Hawks Irwin Kishner, Partner, Herrick, Feinstein Irwin Raij, Partner, Foley & Lardner Paul Tiburzi, Partner, DLA Piper
12:30 – 1:00	Lunch and message from Dean Phoebe Haddon
1:00 – 2:00	Keynote speech by Edwin Durso, Executive Vice President, Administration for ESPN
2:15 – 2:30	Introduction to the afternoon panels from moderator Dionne Koller, Associate Professor of Law, University of Baltimore School of Law
2:30 – 4:00	Bowl Championship Series Panel Alan Fishel, Partner, Arent Fox Philip Hochberg, Law Offices of Philip R. Hochberg Josephine (Jo) Potuto, Professor, University of Nebraska College of Law Robert Wierenga, Principal, Miller Canfield
4:15 – 5:15	Athlete Images/Media Rights Panel Ronald Katz, Partner, Manatt, Phelps & Phillips Michael McCann, Director of the Sports Law Institute and Professor of Law, Vermont Law School Stuart Paynter, Partner, Paynter Law Firm.  Lead plaintiff's counsel in Sam Keller v. Entertainment Arts
5:15 – 5:30	Closing Remarks from Dionne Koller

Sports Lawyer Matthew Lane to speak at Vermont Law School on Representing Olympic Athletes

This Thursday, between 12:45 and 2:00 p.m. in Oakes 208 on the Vermont Law School campus, Matthew Lane will speak on representing Olympic athletes and runners. Lane is a sports attorney at Preti Flaherty in Portland, Maine. His clients include the American Milers' Association, NJNY Track Club, and Andrew Wheating, a 2008 Olympian. Lane is a summa cum laude graduate of University of Maine School of Law and the College of William and Mary. He was previously a professional runner, sponsored by Nike, and was a member of two U.S. national teams.

This event is sponsored by the Vermont Law School Sports Law Institute and is open to the public.

New Book Chapter on Mike Williams

Congrats to Sports Law Blog contributor Warren Zola, who contributed a chapter to a recently released book "Sports for Dorks: College Football" which was edited by Mike Leach. The book is intended to "address the information needs of college football fans who seek a deeper understanding about the game and its intricacies."  Warren wrote a chapter entitled "Understanding the College-to-NFL Transition: The (Cautionary) Tale of Mike Williams.”

The future of GLBT athletes

Ari Waldman has a short post at PrawfsBlawg discussing the new NFL CBA which prohibits discrimination because of sexual orientation. Waldman describes this as an important next step in the slow acceptance of homsexuality in sports (especially male sports), along with numerous athletes speaking out on marriage equality and anti-gay bullying.

Who Is It That Should Protect You at All Times?

Is Boxing’s Oldest Adage Under Fire Following Floyd Mayweather’s Controversial and Crushing KO of Victor Ortiz?

This past Saturday night, following a seemingly intentional head-butt to his mouth and conciliatory kiss and hug by “Vicious” Victor Ortiz, Floyd (Money) Mayweather, Jr. scored a spectacular fourth round knockout which will have a permanent home in boxing infamy.  

While Mayweather was ripped by fans and boxing cognoscenti alike for his facially unsportsmanlike conduct, there is no real consensus as to who of the three individuals in the ring should truly bear the brunt of the post-fight firestorm.  

Did Ortiz get what he deserved for setting off Mayweather, who has a history of forcefully laying waste to boxers such as Diego (Chico) Corrales, Phillip (The Time Bomb) N’Dou, Ricky (Hitman) Hatton, and Arturo (Thunder) Gatti when he is facing an actively dangerous opponent? Should Mayweather be deemed the epitome of a bad sportsman for landing the two worst-intentioned punches in his career when Ortiz tried to apologize again after touching gloves? Should referee Joe Cortez have been looking away during a volatile moment in the bout? 

More important perhaps than any of these questions, however, is the question of whether boxing’s oldest adage, protect yourself at all times, survives a bout such as Mayweather-Ortiz and is truly the exclusive responsibility of the boxer himself anymore and not a referee. A quick analysis follows...

For the full article, please go to this link.

Family of hockey scout settles last remaining 9/11 lawsuit

The family of Mark Bavis, an LA Kings scout who died aboard United Flight 175 when it crashed into the World Trade Center during the Sept. 11 attacks, has settled its lawsuit against the airline and its security company. See the AP story here

Bavis' family, including his identical twin brother Mike, a BU assistant coach, had insisted that they would not settle (see my earlier story here) because it was more important to them to investigate and expose the failures of airline security. They had hoped to house their findings at the 9/11 memorial at ground zero. But the family, and its lawyers, say U.S. District Judge Alvin Hellerstein gutted its case, limiting the amount of time for the trial to three weeks. He also kept much of the information under seal, for national security reasons.

The family explained its change of heart this way:

"This change is the result of a recent ruling by the Honorable Judge Alvin Hellerstein. With the stroke of his pen, Judge Hellerstein very cleverly changed this lawsuit. The lawsuit was about wrongful death, gross negligence and a complete lack of appreciation for the value of human life. He instead made it a case about a federal regulation. He ignored 100 years of aviation law and relied on an environmental case to apply federal preemption. He essentially gutted the case so that the truth about what led to the events of Sept. 11, 2001, would never be told at trial."

The amount of the settlement has not been disclosed. I would be interested in seeing whether it came in higher than the average $2 million payment from the Victims Compensation Fund, and higher than the $5.5 million average from the other cases that went to court before settling.

Boston Panel Tonight: Understanding the NFL & NBA Labor Disputes and Their Economic Impact

The Boston Chapter of Women In Sports and Events (WISE) is pleased to present a networking and panel discussion covering the NFL and NBA lockouts.

Don't miss out on your chance to hear our panel of industry experts discuss the impact of the NFL and NBA lockouts on teams, owners, players, fans, and the media.

We are also pleased to announce the addition of Jimmy Golen, Sports Writer for the Associated Press, as panel moderator.

Our Panelists:

• Robyn Glaser - Senior Advisor to The Kraft Group, Club Counsel to the
  New England Patriots
  
• Keith Glass - Sports Agent, NBA
• Michael McCann -Sports Illustrated & NBA TV Legal Analyst, Law Professor at Vermont Law School
• Gary Washburn -National NBA Writer, Boston Globe

In addition to what is sure to be a lively discussion, a fantastic lineup of food and beverage will be provided by Davio's and Wachusett Brewery, followed by a networking reception sponsored by Croft Pink.

Register Now for this Event!  

When

Wednesday September 21, 2011 from 6:00 PM to 8:30 PM EDT
  
6:00-6:30 Registration/Networking 
6:30-7:30 Panel Discussion
7:30-8:30 Q&A/Networking Cocktail Hour

Where

Nixon Peabody LLP
100 Summer Street
25th Floor
Boston, MA 02110


WISE Boston members: This event if FREE for WISE Boston members.  Simply register via the link above and select the "WISE Boston Member: No Charge" option* 

Non-Members: The registration fee for this event is $15 by Credit Card/PayPal.  (If you'd prefer to pay by cash or check on the evening of the event, the fee is $20.  You still must RSVP via the link above but select the "Non-Members Paying Cash or Check at the Event" option)
*Not sure if you are a current Member?  Please email  info@wiseinboston.com to inquire about your status or sign-up to become a WISE Boston member today.
Join WISE Boston by October 7th and we will apply your event registration fee towards your annual membership dues.

New Group seeks College Football Playoffs

Interested in BCS reform? Want a playoff system for college football?  A new community of fans is emerging: Fix The Post Season. They also can be found on Twitter and Facebook.  Definitely worth checking out if you're hoping to see playoffs in college football.

NBA TV: What to expect in NBA Lockout

A few hours ago I was on NBA TV to join Steve Smith, David Aldridge, Vince Cellini and Steve Aschburner for a roundtable discussion on what to expect going forward in the NBA lockout.  One thing not to expect: the 2011-12 season starting on time.

Sports Law Discussion at Suffolk University Law School today (Wednesday) at 4 p.m.

I'll be giving a talk today at 4 p.m. at Suffolk University Law School in Boston.  It will be held in the moot court room on the 4th floor.  Topics will include the NBA lockout, collective bargaining issues for Major League Baseball and the Major League Baseball Players' Association, and how to break into the sports law industry.  If you're in Boston and have some free time around then, hope to see you there!

Ryan Hart's federal lawsuit against Electronic Arts dismissed

Electronic Arts, publisher of the NCAA Football and NCAA Basketball video games, has been sued by various former college players who argue that these video games have featured the players' likenesses without the players' permission.  The "likenesses" have varied by game, but normally include reference to the player's number, position, skills/talents, hometown, and a digital representation of his height, weight and race/ethnicity, but not his name.  Even without the players' name, it is usually clear to the typical fan of a team as to whom the digital players are referring.

U.S. District Judge Freda Wolfson, who in 2002 was nominated by President George W. Bush to the U.S. District for the District of New Jersey, has just dismissed a lawsuit brought by former Rutgers player Ryan Hart against EA.  The judge reasoned that the First Amendment and its protection of free speech (and significant transformative elements) empowered EA to create digital representations of the players.

The dismissal by no means signals that similar lawsuits, such as Ed O'Bannon's class action lawsuit against the NCAA, will also fail, especially since those lawsuits have been brought in other jurisdictions and since they raise other types of claims, including those based in antitrust law.  Still, a defense based on the First Amendment to use college players' identities does appear bolstered by Wolfson's dismissal.

Here's IGN on the news:

Hart, a former Rutgers player, accused EA of using his name and likeness in the NCAA Football series without his knowledge or consent, suing the company in 2009. But U.S. District Judge Freda Wolfson has ruled that the likeness is permissible under the first amendment, and has dismissed the case.

EA's lawyer Elizabeth McNamara said the decision "validates Electronic Arts' rights to create and publish its expressive works." Hart's lawyers have yet to comment publicly.

This case is one of many currently pending against the publisher in relation to likeness issues in NCAA titles, largely stemming from players' wishes to be compensated for their inclusion in the games. NCAA Football 12 released in July for PS3 and Xbox 360.

Personalizing the national anthem

Patriotic and political rituals that pervade our sporting events. And the performing of The Star-Spangled Banner, a part of just about every game, is heightened at major games and events (championships, Super Bowls, all-star games, event finals). And we expected that to even more so at today's Women's Final of the U.S. Open, played in New York on the tenth anniversary of 9/11.

What I find interesting is the way artists can and do try to personalize the anthem, changing the entire tune and musical style of the song (particularly in non-traditional styles), and the way our reactions to that have changed. What is widely regarded as the first attempt at restyling was Jose Felciano's acoustic slow Latin jazz rendition before Game 5 of the 1968 World Series in Detroit, which outraged fans (NBC stations were inundated with angry phone calls) and lead some radio stations to stop playing Feliciano's music for a time. On the other hand, the response was much more favorable to Marvin Gaye's rendition at the 1983 NBA All-Star Game. And in 2010, Feliciano was invited back to Detroit to perform his version of the anthem during a memorial ceremony for late Tigers announcer Ernie Harwell. Are there other recent examples of performers making stylistic changes to the song?

All of which is by way of saying that our reaction to Queen Latifah's gospel/soul rendition before today's match is a product of its time:, It probablt would have been a subject of controversy 40 years ago; it now becomes an instant classic. Enjoy.

Tennis Bracketology

Only sort-of sports-law related, kind of: The top 4 seeds made the Men's Semifinals at the U.S. Open. In today's semis, # 1 (Djokovic) played # 3 (Federer) and # 2 (Nadal) played # 4 (Murrary). But brackets are always set up for semis of 1 v. 4 and 2 v. 3.

Anyone out there know why the Open does it differently?

Phillies protest denied

I missed this two days ago: To no one's surprise, MLB denied, without explanation, the Phillies' protest over the use of replay in last Sunday's game with the Marlins.

University of Wisconsin Law School Symposium related to Sports Law and Gender

If you are writing about sports law and gender issues, be sure to consider submitting your piece:

The Wisconsin Journal of

Law, Gender & Society

Announces our 2012 Symposium…

When Gender Norms Become Law:

Recognizing and Correcting for Gender Bias

February 10, 2012

University of Wisconsin Law School

Madison, Wisconsin

We are seeking original scholarship, from both scholars and practitioners, addressing ways in which gender norms are reflected in legislation, judicial precedent, and administrative findings. Ideally, proposals would highlight:

·       An analysis of the inherent and functional gender biases in these policies and practices and

·       Recommendations as to how the same policies could be pursued without the resulting gender disparity.

Topics could include: findings of fact that shape evolving areas of law, the role of social sciences in evidence, and differing approaches to gender considerations across legal systems.  Interested parties should send an abstract to WJLGS.Symposium@gmail.com by October 15, 2011.  Those selected for the Symposium will be notified by November 2011.  The Journal’s Symposium issue will be published in Fall 2012.

Questions may be addressed to Symposium Editor Meredith Davis at mdavis7@wisc.edu.