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Friday, April 29, 2011
New Sports Illustrated Column: Eighth Circuit grants temporary stay -- NFL Lockout is Back On
Here's my new SI column on tonight's big news from the Eighth Circuit: Judge Nelson's preliminary injunction order has been temporarily stayed and the tea leaves suggest the order will be made permanent.
Thursday, April 28, 2011
Tomorrow in Boston: A Discussion on NFL Labor Negotiations
My Vermont Law School colleague and good friend Professor Sean Nolon, who is Director of the Dispute Resolution Center at our school, and I will give a joint presentation the NFL labor crisis tomorrow at the Boston office of Bulkley, Richardson and Gelinas. While the event is primarily geared for Vermont Law School alumns, please contact me if you would like to attend as I can secure you an invitation.
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Reminder: SLA and Sullivan and Worcester Panel tonight
If you're in the Boston and are looking for a timely sports law discussion - it should be fun and I strongly suspect the NFL legal chaos will work itself into the discussion:
The Sports Lawyers Association and Sullivan & Worcester LLP present
Boom Goes The Dynamite! Top Sports Transactions of 2010 |
Thursday, April 28, 2011 Program: 5:30 pm - 6:30 pm Reception: 6:30 pm- 7:30 pm |
Sullivan & Worcester LLP One Post Office Square Boston, MA 02109 MAP |
The Sports Lawyers Association and Sullivan & Worcester LLP invite you to attend a panel discussion on the top sports transactions of 2010, including the sale of the Golden State Warriors, the Texas Rangers and the acquisition of Liverpool FC. Speakers:
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Please RSVP by April 22. If you have questions or need more information, please contact Katie Potter at 617.338.2923 or kpotter@sandw.com. |
Wednesday, April 27, 2011
New Sports Illustrated Column: Judge Nelson Denies NFL Stay. What's Next?
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| Judge Susan Nelson. Do NFL owners now regret Judge David Doty's removal? |
4. So what would you recommend the NFL do?
First, NFL teams should re-open business without any physical or other obstructions to players. A court has told the league to resume operations. It should do just that and not pull any gimmicks. It may be an awkward time for teams and players, but only if they let it be.
Second, the NFL should -- for the time being -- not employ a salary cap, meaning teams should be able to sign free agents without restriction. Teams would still be deterred in their spending because a new CBA will eventually be reached and it will contain a salary cap -- no team wants to be way over the cap when the new CBA is put in place.
Third, teams should remove franchise tag designations and other restrictions on players' free agency rights. History should convince the league of this point: the NFL has lost antitrust cases involving unilaterally imposed restrictions on movement of free agents between teams. Judge Nelson notably stipulated that teams are not obligated to sign free agents. In one respect, that stipulation benefits teams since they cannot be alleged to have engaged in a group boycott under federal antitrust law by not signing free agents. But as a matter of practice, the stipulation may not prove meaningful: teams may not be legally obligated to sign free agents, but if they don't, their competitors will. . . .
Boston Marathon concedes its course is ineligible for world, American records
The organizers of the Boston Marathon decided today not to contest IAAF rules that make the course ineligible for a world record. (The Boston route ends 459 feet of elevation below the start, and it is a point-to-point course that is susceptible to a tailwind such as the one last Monday that helped Geoffrey Mutai finish in 2 hours, 3 minutes, 2 seconds _ 57 seconds faster than Haile Gebrselassie's world record.)
B.A.A. officials had said they would file the paperwork to have the record certified, even though the IAAF language is clear and Boston has long been known to be ineligible. Today the B.A.A. decided not to force a confrontation over the issue. Instead, it said it would "engage members of Boston's scientific and medical communities" to see if they can't come up with new rules that would better recognize the challenges of the course, notwithstanding its net downhill layout.
B.A.A. officials had said they would file the paperwork to have the record certified, even though the IAAF language is clear and Boston has long been known to be ineligible. Today the B.A.A. decided not to force a confrontation over the issue. Instead, it said it would "engage members of Boston's scientific and medical communities" to see if they can't come up with new rules that would better recognize the challenges of the course, notwithstanding its net downhill layout.
SBJ Sports Law Article
The April 25, 2011 issue of Sports Business Journal includes an insightful article by Bill King about several lawyers who work where the law and the sports industry overlap. Lawyers at Proskauer, Weil Gotshal & Manges, O'Melveny & Myers, and other law firms are profiled. The article appears to be gated online, but is worth a read if you can get access to a hard copy or if you have a subscription to the web-based companion publication.
Josh Luchs to speak at New York Law School tomorrow
From Elliot Solop of The Sports Tomato:
Josh Luchs will be lecturing at New York Law School on April 28th (the day of the NFL 2011 Draft) between 1-2pm. Do not miss out on a great opportunity to hear about the realities of the sports industry and how Mr. Luchs hopes to change it. Special thanks to Mr. Luchs for taking time out of his busy schedule to come educate. It should be great!
Here’s the info:
Thursday, April 28, 2011
1:00 p.m. – 2:00 p.m.
Room WA10
About our speaker:
Josh Luchs was a former NFLPA certified agent that made shocking confessions in a Sports Illustrated article (“Confessions of an Agent,” October 18, 2010) concerning the unethical conduct and foul play of sports agents. Mr. Luchs came out with the story with the goal to change the ethical and moral landscape of the industry.
Notable former clients of Josh Luchs include:
Adam Archuleta (20th overall, St. Louis Rams), Todd Heap (31st overall, Baltimore Ravens) and Terrell Suggs (2004 NFL Defensive Rookie of the Year, Baltimore Ravens), Chris Mims (Tennessee defensive end, 23rd overall in the 1992 draft), Jamir Miller (UCLA linebacker, 10th pick overall in the 1994 draft by the Arizona Cardinals) and Tony Banks (Michigan State quarterback, the first QB selected in the 1996 NFL Draft, by the St. Louis Rams).
Please RSVP to nylawsports@gmail.com.
Tuesday, April 26, 2011
New Sports Illustrated Column: How does NFL Ruling Impact the NBA and NBA Players?
In a new SI column, I write the potential impact of Judge Nelson's order in favor of NFL players on the NBA and NBA players, two groups which are headed for a similar labor crisis this summer and possibly into next season.Here's an excerpt:
• NBA players may be less able to show irreparable harm caused by a lockout.
Another factor in a trial judge's decision to grant a preliminary injunction is whether the plaintiffs -- be they NFL players or NBA players -- would suffer irreparable harm if the injunction is denied. Irreparable harm refers to a harm that cannot be adequately remedied by money damages.
Nelson, in relying on numerous affidavits, including from such prominent player agents as Neil Cornich and Tom Condon, determined that NFL players would suffer irreparable harm if they missed the 2011 season. During that time, players would age, and given that NFL players are usually in their 20s or early 30s and usually only play a few seasons, missing just one year of football might be akin to the typical person, who normally works decades in his/her lifetime, missing many years of work. Players would also lose out on conditioning and training opportunities. And as Nelson ruled, free agents are hurt even before a missed 2011 season since they cannot sign with teams during a locked out off season. She also found that 2011 rookies would be particularly hurt by a lockout since they would return in 2012 after missing a year of football -- in both the pros and college -- and then be expected to compete with 2012 rookies, who would be fresh off playing in college.
Most of Nelson's logic holds true for NBA players, as well. In fact, to advance her reasoning on irreparable harm, she cited Spencer Haywood's successful antitrust suit against the NBA in 1971. Haywood, one of the best players in the rival American Basketball Association and then a signee of the Seattle SuperSonics, was barred from entering the NBA until four years after his high-school graduation. The NBA's restriction had not been collectively bargained and was thus subject to antitrust law. A court found that he would suffer irreparable harm by missing four years of playing in the NBA.
The presence of alternative employment opportunities in pro basketball, however, could sway a different judge, particularly one who is more inclined than Nelson to favor the league's views. Indeed, if the NBA instituted a lockout, some players would likely seek and obtain comparable employment in Europe and elsewhere. While those leagues impose restrictions on the number of U.S. players allowed on rosters, the restrictions could be changed in the event of the supply of available NBA players suddenly surges on July 1. The NBA would argue that irreparable harm should not be found if players can pursue comparable opportunities elsewhere.
In response, however, NBA players would likely cite the Haywood case: even though Haywood could play professionally in the ABA, a court nonetheless found that he suffered irreparable harm by not being able to play in the NBA. NBA players would probably also charge that playing and living abroad should not constitute an equivalent employment opportunity to playing in the NBA and living in one's home country.
Monday, April 25, 2011
New Sports Illustrated Column: NFL Players Secure Big Victory before Judge Nelson
Judge Nelson granted the players the injunctive relief they were seeking -- but an appeal may make it a short-term success. I have an SI column on the ruling and what it means. Here's an excerpt:
8. What effect, if any, does Judge Nelson's ruling have on the NBA?
The collective bargaining agreement between the NBA and the National Basketball Players' Association (NBPA) will expire on June 30. Just like we saw last month with the NFLPA and the NFL, the NBPA is poised to decertify and the NBA is poised to institute a lockout.
On one hand, Judge Nelson's ruling sends a warning to the NBA and its owners that, at least in her view, antitrust law holds a dim view of lockouts and that judges should not wait for the NLRB to decide on unfair labor complaints.
On the other hand, the NBA is in a very different situation.
For one, the NFL's legal argument has been hampered by the fact that not one NFL team can show that it is losing money. The inability of a team to do so suggests that enjoining the NFL lockout would not force an NFL team to lose money. The NBA, in contrast, asserts that 22 of its 30 teams will lose money in the 2010-11 season, and the league is willing to open the books to prove it. A court decision to lift a lockout instituted by the NBA would therefore subject NBA teams to losing money in the 2011-12 season. Such a consequence could motivate a judge reviewing an NBA lockout to be less willing than Judge Nelson to lift the lockout.
Second, irreparable harm may be more difficult for NBA players to show, since unlike NFL players who can play nowhere else and earn an NFL-quality income, some NBA players would be able to secure lucrative contracts in Europe and elsewhere during a lockout. If NBA players can't show irreparable harm, they would not be able to convince a judge to enjoin an NBA lockout.
Third, Judge Nelson's decision would not bind a court that reviews the NBA lockout. In fact, it is likely that such a court would be in New York, where both the NBA and NBPA are located. The NFL and NFLPA are litigating the lockout in Minnesota because the parties choose to do so in their collective bargaining agreement.
Bottom line: while Judge Nelson's ruling likely caused some concern for NBA teams, the NBA is in a very different situation and a lockout may be viewed more favorably by a court.
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