A place for this blog and its EIC

Slate's weekly sports podcast "Hang Up and Listen" leads off this week with a discussion of the end of the NBA lockout. One of the points of discussion is the failure of the sports media to fully grasp and accurately cover the bargaining process. Not being experienced in how labor and litigation negotiations work, reporters fall for dramatic, tragic, and pessimistic narratives because, to their eyes, the process appears to be failing. They specifically note Bill Simmons' calls for both David Stern and Billy Hunter to be fired for their mismanagement of this process, a sentiment widely shared by fans but not by experienced labor experts (who recognize legal posturing as all part of the negotiation process).

If this assessment is accurate, it presents a good argument for this blog and, in particular, for Mike's work on ESPN and NBA-TV. They provide voice that can report and opine on the legal issues from a real position of experience, avoiding the narrative traps.

Time for Transformative Change in Intercollegiate Athletics

Well, I've spent the better part of the fall semester thinking and talking about change in intercollegiate athletics. I figured it was time to put my ideas and arguments down on paper and, as such, wrote a brief article, summing up my thoughts and, more importantly, making some recommendations.

The essay was just posted on Huffington Post here.

In sum, I argue that we need to address three key areas: 1) Academics & Integrity, 2) The Interests and Experiences of Student-athletes; and 3) Accountability.

Let me know what you think...and help me improve my proposals.

Upon further review Joe Paterno rose to the occasion while everyone else sunk.

Two major events have occurred since the firing of Joe Paterno which prove that the news media are not only incompetent and dishonest but also hypocritical beyond anything anyone would have thought possible.



And both revelations are about as damning as could be imagined both against ESPN, whose commentators condemnation of Paterno and demands for his firing were some of the loudest, and the school officials at Central Mountain high school, where Sandusky's Victim One went to school.



The first revelation concerns the molestation charges against Syracuse assistant coach Bernie Fine. One of Fine's accusers secretly tape-recorded a phone conversation he had with Fine's wife in 2002 in which the sexual contact with Fine was discussed and where Fine's wife admitted she knew everything her husband had been doing. Fine's accuser says he took the tape to the Syracuse Post Standard in 2002 along with his allegations against Fine and played the audiotape for them. The newspaper declined to report the allegations saying that, even with the tape they wanted more corroborating evidence before they would report it. In other words the Syracuse Post Standard gave more of the benefit of the doubt to an accused child molester than the news media in general gave to Joe Paterno, a man with a polished solid gold reputation for 60 years. And there has been no outcry by any of the sanctimonious self-serving members of the media who railed against Joe Paterno focused on the Post Standard for "having knowledge of" sexual abuse and not reporting it.



It gets a lot worse. It has also been revealed that the victim took the same audiotape to ESPN more than ten years ago with his allegations against Fine and played the tape for them, No one at ESPN did a thing. For ten years. They didn't talk to their own lawyers.They didn't refer it to any child protective agency. They didn't refer it to any law enforcement agency. They did nothing. And now try and hide behind the excuse that they didn't have enough corroborating evidence to do any more.



This is the same ESPN whose commentators called for Joe Paterno's firing immediately for, in their factually challenged hypocritical world, "not going to the authorities" or "not doing enough", The same ESPN whose commentators said Joe Paterno going to the administrative head of campus police the next day with McQueary's non-specific report wasn't enough. The same ESPN who accused Joe Paterno without a shred of proof, of being aware of child sexual abuse and "not doing enough". The same ESPN that had an audio tape confirming from the mouth of the abuser's own wife, the sexual abuse of a ball boy at Syracuse university. And did nothing.



And are the same sanctimonious self-righteous group of journalists insisting that anyone at ESPN who had been aware of those tapes for the last ten years and who is still with ESPN be fired? No,  of course not.



We now know that the same media types both on television and in print who smeared Joe Paterno on their front pages with the word "Shame", without a shred of proof, did absolutely nothing when put in Paterno's shoes.



Unfortunately the second set of revelations makes it even worse for the media



New revelations were made by the mother of Sandsusky's Victim One that will forever shame even further everyone in the news media who attacked Paterno as well as the trustees of Penn State who buckled under the pressure exerted by the media mob and threw Paterno over the side to quiet them down.



Keep in mind that the fictional narrative by the press in their attack on Paterno, their reason for demanding he be fired was that he had knowledge of sexual abuse and didn't do enough when it came to reporting it, ( something that has already been proved to be completely false).



According to the mother, in a piece that can be read here, the principal of the high school her son attended, Karen Probst, was present in 2009 when her son openly accused Sandusky of molesting him and not only did the school principal do nothing, according to the mother the principal actually tried to talk her and her son out of reporting it.



Additionally, according to the mother, Steve Turchetta, the boy's high school coach repeatedly allowed Sandusky to come to the school and take the boy out of school not only without parental consent but without even any parental notification. And Turchetta continued to allow Sandusky to take the boy out of school even after the mother found out and protested.



The mother states that eventually there was a meeting at the school after the boy had told all to a school counselor and had gotten so emotional they finally believed him. At that meeting the mother states that when she insisted they go to the police, the school officials tried to talk her out of it. They told her to think about it and think about what the accusations could do to her family.



All of this information was available at any time any real journalist wanted to take the time to actually investigate and learn the facts. But all of them, like Sean Gregory at Time Magazine, Andy Staples at Sports Illustrated and just about everyone at ESPN except Lou Holtz, were too busy smearing Paterno to bother. It was Paterno they went after. Because it was Joe Paterno's picture that sold newspapers and got web hits, not Karen Probst's.It was going after Paterno that made the very small and sanctimonious feel very big.



The irony is, that in the end, Joe Paterno did more and with less knowledge, and did it faster than anyone connected to either the Sandusky allegations or the Bernie Fine allegations, all of whom had more knowledge that he did.



And isn't it ironic ( or perhaps par for the course) that ESPN, whose commentators like Jay Bilas and others were some of the most vocal for saying Paterno didn't do enough, had an audio tape that contained an admission of the sexual abuse of a Syracuse ball boy for ten years and did nothing.



So what will ESPN do now? Will they accuse themselves of "not doing enough"? Will they accuse themselves of allowing a sexual predator to remain free? Will there be any media condemnation by others of ESPN?Anyone hear any media condemnation? Anyone demanding people at ESPN be fired? Or will they all hide under their sheets?



So now class lets review the facts: Joe Paterno the day after getting a non-specific non detailed sanitized version of events from McQueary went to the administrative head of the Penn State campus police with Mc Queary's allegations against a man he knew and worked with closely for 26 years, without hesitating or calling Sandusky to get his side of the story. Karen Probst, Victim One's high school principal, Steve Turchetta his high school coach, the school's assistant principal, the school guidance counselor, Ray Gricar, the DA at the time who declined to prosecute, the Syracuse Post-Standard, and ESPN all had specific allegations and in the case of  the Fine, a tape recorded admission of child sexual abuse and did absolutely nothing for years. These are some of the people who yelled the loudest about  Joe Paterno and moral responsibility. These are some of the people who demanded Joe Paterno be fired for not doing more.



People are angry about what happened to Paterno. They should be even angrier now and should demand not only the restoration of Paterno's reputation, they should demand retribution.



Journalists who falsely accused Paterno should be fired and so should anyone who had knowledge of the events surrounding Sandusky and Bernie Fine. That includes journalists and school officials.



There should be demands that Sean Gregory at Time Magazine who wrote that Joe Paterno "knew a ten year old boy was being raped in a shower and didn't report it to authorities"  with no evidence to substantiate it be fired. So should his editor for allowing Gregory's dishonest report to be printed. So should an ESPN columnist named Jemele Hill who wrote her own dishonest column about Paterno simply parroting the false reporting of other journalists and making the same false claims. Anyone at ESPN with knowledge of the Bernie Fine tape should be suspended or fired. The two senators in Pennsylvania, Democrat Bob Casey and Republican Pat Toomey should be eviscerated, their offices deluged with phone calls for withdrawing their sponsorship of Paterno for the Medal of Freedom without any facts, just acting like spineless politicians reacting to the mob . And last but not least every trustee at Penn State who voted to fire Joe Paterno, which is all of them, should resign. They are the people who disgraced Penn State, not Joe Paterno.



The Penn State trustees made a mockery of every value that a university tries to instill in its students and proved, ironically that the trustees can't be trusted. They should all in good conscience, resign. If not their resignations should be demanded since it was they, not Joe Paterno who betrayed the values of Penn State,denying Paterno any form of due process and capitulating to a dishonest incompetent, out of control mob of journalists.



The day after Paterno was fired, students at Penn State demonstrated and demonstrated angrily. They knew, as college students tend to know, that a gross injustice had been done to Joe Paterno and they were motivated by something that the Penn State trustees and those in the news media either lost a long time ago or never had in the first place -- ideals.



The students at Penn State saw that the ideals preached at Penn State were trampled on by a mob of out of control self-serving journalists and a spineless collection of trustees. And they were justifiably angry. They knew a gross injustice had been done. The factually challenged Stuart Scott, reporting on the demonstrations for ESPN said of the demonstrators, "Don't they get it"? Here is a flash to Stuart Scott and the rest of the news media. They got it. You didn't.



When Paterno was given the sanitized version of the event in the shower by McQueary he went straight to the administrative head of campus police, the police agency that had the jurisdiction over any crime committed on the campus of Penn State. Joe Paterno went to the proper authority, he went immediately and he went as high as he could go. The news media, the Penn State trustees, the politicians, ESPN and everyone else who attacked Joe Paterno, given the opportunity, went as low as they could go. They will be remembered for it. And they should all lose their jobs. But before they go, they owe Joe Paterno one big apology.

Marc Rubin
Copyright Marc Rubin 2008

NBA TV Interview: Remaining Steps

I joined David Aldridge, Reggie Miller, Dennis Scott and Matt Winer tonight on NBA TV to talk about remaining steps for there to be NBA basketball on December 25. 

New Sports Illustrated Inside Report Interview: Legal Fallout of Bernie Fine Scandal

International Sports Law Review Pandektis

The most recent issue of the International Sports Law Review Pandektis, an IASL-sponsored journal, has been published. A number of articles caught my eye that Sports Law Blog readers may be interested in. Of particular note is the article published by Stephen Argeris pertaining to the MLB draft, which was presented earlier this year at the MIT Sloan Sports Analytics Conference and last year at the International Sport Law & Business Conference.

The complete table of contents for the most recent issue can be found here.

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é pra fuder td mesmo hahhahah

ótima semana

Soccer

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mto bom !!!

Abs

Soccer

The NBA Lockout is Over!

I was on NBA TV this morning (live, at 4 a.m.) talking about next steps.  Glad to have games back!

Update 4 p.m. Saturday: I have a new column for SI: NBA players, owners may still run into problems with tentative deal

NBA and Players Talk Litigation Settlement: Will it lead to new CBA?

I was on NBA TV this afternoon to talk about owners and players having litigation settlement talks, how they can convert those talks into a new CBA, and why there is reason to be optimistic. 

Could David Boies be the X Factor for players and help them reach a deal with NBA that Billy Hunter, Derick Fisher and Jeffrey Kessler couldn't? 

More known for his litigation skills than settlement skills, this could become Boies's finest hour.

Sports as protected expression?

For all my writing on fan speech, this is a place I never thought to go: Last week, UFC and several UFC fighters have challenged New York's ban on MMA exhibitions and profiting from those exhibitions on, among other things, First Amendment grounds. The argument is that the state is targeting the message of MMA through a commercial ban, even though the activities themselves are lawful in a gym. The plaintiffs are represented by Barry Friedman, a great con law scholar at NYU (and, I am guessing, an MMA fan).

Friedman has tried to argue that MMA is mixed martial arts, so is an activity that is more uniquely performative than other sports (more akin to dancing than basketball), so it does not necessarily follow that all sports are expressive. Or maybe all sports are expressive, with whatever legal issues that may create.

As I said, I had never thought to go here. But if sport is expressive, then I believe my arguments that watching and cheering for sports gains added strength.

Brow...

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Puts

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Meuw

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E assim...

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Demais néh

Abs

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Ow...

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Müller sempre marcando

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Real-Life Fantasy Sports Law: Enter the Lobbyists

Back in August, I blogged about the proliferation of the fantasy sports industry and whether certain fantasy sports games might violate state gambling laws. I also posted a draft of my newest law review article: "A Short Treatise on Fantasy Sports and the Law."

Since then, the Fantasy Sports Trade Association ("FSTA") has announced the hiring of Travis McCoy, a former aid to Senator John Boehner (R-Ohio), to serve as its first official lobbyist. According to USA Today, the FSTA "still is deciding what states it will target first."

The FSTA's hiring of a lobbyist is noteworthy on several levels. First, it signals an acknowledgement by the industry that certain state gambling laws are unfavorable to fantasy sports. In addition, it shows the early stages of collective action within the fantasy sports industry.

It will be interesting to see if the FSTA’s lobbying efforts will target only state gambling laws that disallow fantasy sports leagues, or if they will also target state laws that limit fantasy websites' administrative fees. For example, Montana law currently limits fantasy sports websites to charging 15% in administrative fees. This limit is probably unpopular with fantasy sports businesses. However, it is intended to protect fantasy participants.

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deixa vir q molhado é sempre melhor

é disso que a gente gosta !!!!

abs

Soccer

NBA Players drop lawsuit in California - focus on lawsuit in Minnesota

A little bit of litigation news tonight.  I discuss it on NBA TV.

Also, it was announced that the Honorable U.S. District Judge Patrick J. Schiltz will be the judge for Carmelo Anthony et al. v. NBA. Schiltz, a graduate of Harvard Law School, is a former clerk to U.S. Justice Antonin Scalia and former professor at the University of Notre Dame Law School. A practicing attorney in Minnesota in 1995, Schiltz represented the T-Wolves in case re: relocation of team to New Orleans. In the case, the NBA Board of Governors rejected sale of T-Wolves to investor group, "Top Rank", in New Orleans. NBA then sued both T-Wolves and Top Rank, seeking declaratory order from court that T-Wolves owners could not sell team to Top Rank w/o league approval. Schiltz represented T-Wolves, which eventually joined the side of the NBA in the litigation. Not only was he lawyer in litigation over T-Wolves failed relocation to New Orleans, but Schiltz represented NFL in several cases, including Powell v. NFL and McNeil v. NFL. McNeil helped lead to new CBA between NFL and NFL players.

New Sports Law Scholarship

Recently published sports law scholarship includes:

Jessica L. Adair, In a league of their own: the case for intersex athletes, 18 SPORTS LAWYERS JOURNAL 121 (2011)

Adam Epstein & Bridget Niland, Exploring Ethical Issues and Examples by Using Sport, 13 ATLANTIC LAW JOURNAL 13 (2011)

James R. Andrews, Why are there so many injuries to our young athletes? Professionalization and specialization in youth sport, 40 UNIVERSITY OF BALTIMORE LAW REVIEW 575 (2011)

Ross Appel, Note, Head east, young man (and comparatively older men who are likely to languish in the minor leagues), 12 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 109 (2010)

Andrew D. Appleby, For the love of the game: the justification for tax exemption in intercollegiate athletics, 44 JOHN MARSHALL LAW REVIEW 179 (2010)

Jessica Baranko, Hear me roar: should universities use live animals as mascots?, 21 MARQUETTE SPORTS LAW REVIEW 599 (2011)

Jonathan Bateman, Book Note, Reviewing Billy Hawkins, The New Plantation: Black Athletes, College Sports, and Predominantly White NCAA Institutions, 21 MARQUETTE SPORTS LAW REVIEW 793 (2011)

Eric Blevins, College football’s BCS (bowl cartel system?): an examination of the Bowl Championship Series agreement under the Sherman Act, 18 SPORTS LAWYERS JOURNAL 153 (2011)

Victor Broccoli, Policing the digital wild West: NCAA recruiting regulations in the age of Facebook and Twitter, 18 SPORTS LAWYERS JOURNAL 43 (2011)

Christine A. Burns, Comment, Potential game changers only have eligibility left to suit up for a different kind of court: former student-athletes bring class action antitrust lawsuit against the NCAA, 6 JOURNAL OF BUSINESS AND TECHNOLOGY LAW 391 (2011)

Loftus C. Carson, II & Michelle A. Rinehart, The big business of college game day, 12 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 1 (2010)

Marc Charmatz, Lindy L. Hedges-Wright & Matthew Alex Ward, Personal foul: lack of captioning in football stadiums 45 VALPARAISO UNIVERSITY LAW REVIEW 967 (2011)

Josh Chetwynd, Clubhouse controversy: a study of dispute resolution processes between teammates in Major League baseball, 16 HARVARD NEGOTIATION LAW REVIEW 31 (2011)

Christopher B. Chuff, Comment, “Rolling the dice” on financial regulatory reform: gambling law as a framework for regulating structured investments, 18 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 569 (2011)

Jeremy Corapi, Note, Huddle up: using mediation to help settle the National Football League labor dispute, 21 FORDHAM INTELLECTUAL PROPERTY, MEDIA & ENTERTAINMENT LAW JOURNAL 789 (2011)

Joshua B. Couvillion, Note, Defending for its life: ChampionsWorld LLC v. United States Soccer Federation denies extending antitrust immunity to USSF in regulating professional soccer, 18 SPORTS LAWYERS JOURNAL 325 (2011)

Caitlin M. Cullitan, Note, “I’m his coach, not his father.” A Title IX analysis of sexual harassment in college sports, 12 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 53 (2010)

Elizabeth Hart Dahill, Note, Hosting the Games for all and by all: the right to adequate housing in Olympic host cities, 36 BROOKLYN JOURNAL OF INTERNATIONAL LAW 1111 (2011)

Darren Heitner & Jason Wolf, In Baseball's Best Interest?: A Discussion of the October 2010 MLBPA Regulations Governing Player Agents, 10 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 249 (2011)

Marc Edelman & Joseph A. Wacker, Collectively bargained age/education requirements: a source of antitrust risk for sports club-owners or labor risk for players unions?, 115 PENN STATE LAW REVIEW 341 (2010)

Marc Edelman, Does the NBA still have “market power?” Exploring the antitrust implications of an increasingly global market for men’s basketball player labor, 41 RUTGERS LAW JOURNAL 549 (2010)

Brad Ehrlichman, In this corner: an analysis of federal boxing legislation, 34 COLUMBIA JOURNAL OF LAW & ARTS 421 (2011)

Mitchell L. Engler, The untaxed king of South Beach: LeBron James and the NBA salary cap, 48 SAN DIEGO LAW REVIEW 601 (2011)

Natasha C. Farmer, Note, Jockey advertising regulations in horseracing, 3 KENTUCKY JOURNAL OF EQUINE, AGRICULTURAL & NATURAL RESOURCES LAW 103 (2010-2011)

Meir Feder, Is there life after death for sports league immunity? American Needle and beyond, 18 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 407 (2011)

Lauren Ferrante, Note, Two for one: how the NCAA rules do not adequately address package deals and a proposed rule to prohibit them, 12 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 77 (2010)

David Franklin, Note, League parity: bringing back unlicensed competition in the sports fan apparel market, 86 CHICAGO-KENT LAW REVIEW 987 (2011)

Laurie C. Frey, How the smallest market in professional sports had the easiest financial journey: the renovation of Lambeau Field, 18 SPORTS LAWYERS JOURNAL 259 (2011)

Kristina M. GerardiTackles that rattle the brain, 18 SPORTS LAWYERS JOURNAL 181 (2011)

Ariana E. Gillies, Comment, Not with a bang, but a whimper: Congress’s proposal to overturn the Supreme Court’s Leegin decision with the Discount Pricing Consumer Protection Act of 2009, 18 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 645 (2011)

Nathaniel Grow, Louisville v. Duke and its implications for breached college football scheduling agreements, 37 JOURNAL OF COLLEGE & UNIVERSITY LAW 239 (2011)

Jennifer Gustafson, Comment, Bronze, silver, or gold: does the International Olympic Committee deserve a medal for combating human trafficking in connection with the Olympic Games?, 41 CALIFORNIA WESTERN INTERNTAIONAL LAW JOURNAL 433 (2011)

Diane Heckman, The entrenchment of the glass sneaker ceiling: excavating forty-five years of sex discrimination involving educational athletic employment based on Title VII, Title IX and the Equal Pay Act, 18 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 429 (2011)

Dennis P. Hughes, Jr., Book Note, Reviewing Bill Madden, Steinbrenner: The Last Lion of Baseball, 21 MARQUETTE SPORTS LAW REVIEW 801 (2011)

Michelle R. Hull, Note, Sports leagues’ new social media policies: enforcement under copyright law and state law, 34 COLUMBIA JOURNAL OF LAW & ARTS 457 (2011)

Bryan T. Ikegami, Note, From dumpster to dicta: how the BALCO investigation created incurable violations of players' rights and how to prevent them,34 COLUMBIA JOURNAL OF LAW & ARTS 491 (2011)

Mohit Khare, Note, Foul ball! The need to alter current liability standards for spectator injuries at sporting events, 12 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 91 (2010)

Robb Kuczynski, Book Note, Reviewing Charles H. Martin, Benching Jim Crow: The Rise and Fall of the Color Line in Southern College Sports, 1890-1980, 21 MARQUETTE SPORTS LAW REVIEW 787 (2011)

Adam Harris Kurland, The prosecution of Michael Vick: of dogfighting, depravity, dual sovereignty, and “A Clockwork Orange,” 21 MARQUETTE SPORTS LAW REVIEW 465 (2011)

Christina Lembo, Comment, FIFA transfer regulations and UEFA player eligibility rules: major changes in European football and the negative effect on minors, 25 EMORY INTERNATIONAL LAW REVIEW 539 (2011)

Sheri Lipman, The story of the disappearing season: should strict liability be used in the NCAA infractions process?, 41 UNIVERSITY OF MEMPHIS LAW REVIEW 847 (2011)

James T. & Lisa P. Masteralexis, If you’re hurt, where is home? Recently drafted minor league baseball players are compelled to bring workers’ compensation action in team’s home state or in jurisdiction more favorable to employers, 21 MARQUETTE SPORTS LAW REVIEW 575 (2011)

Robert A. & Amy Christian McCormick, Major college sports: a modern apartheid, 12 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 13 (2010)

James T. McKeown, The economics of competitive balance: sports antitrust claims after American Needle, 21 MARQUETTE SPORTS LAW REVIEW 517 (2011)

Richard H. McLaren, Is sport losing its integrity?, 21 MARQUETTE SPORTS LAW REVIEW 551 (2011)

Mary Catherine Moore, Note, There is no “I” in NCAA: why college sports video games do not violate college athletes’ rights of publicity such to entitle them to compensation for use of their likenesses, 18 JOURNAL OF INTELLECTUAL PROPERTY LAW 269 (2010)

William E. Nesnidal, The fan can phenomenon: the scope of universities’ color schemes as trademarks in light of Budweiser’s team pride campaign, 18 SPORTS LAWYERS JOURNAL 283 (2011)

John V. O’Grady, Casenote, The end of indecency? The Second Circuit invalidates the FCC’s indecency policy in Fox Television Stations, Inc. v. FCC, 18 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 527 (2011)

Elizabeth Odian, Preventing Sonicsgate: the ongoing problem of
franchise relocation, 18 SPORTS LAWYERS JOURNAL 67 (2011)

David A. Palanzo, Comment, Safety squeeze: banning non-wood bats is not the answer to amateur baseball’s bat problem, 51 JURIMETRICS JOURNAL 319 (2011)

R. Alexander Payne, Note, Rebuilding the prevent defense: why unethical agents continue to score and what can be done to change the game, 13 VANDERBILT JOURNAL OF ENTERTAINMENT & TECHNOLOGY LAW 657 (2011)

David Pepper, Comment, Anand v. Kapoor, 55 NEW YORK LAW SCHOOL LAW REVIEW 1191-1211 (2010/11)

Christopher Powell, Comment, Premises liability in California: chilling the diffusion of bicycle motocross, 47 CALIFORNIA WESTERN LAW REVIEW 329 (2011)

Timothy Poydenis, The unfair treatment of Dominican-born baseball players: how Major League Baseball abuses the current system and why it should implement a worldwide draft in 2012, 18 SPORTS LAWYERS JOURNAL 305 (2011)

Erica N. Reib, Comment, Ante up or fold: what should be done about gambling in college sports?, 21 MARQUETTE SPORTS LAW REVIEW 621 (2011)

Ryan M. Rodenberg & Andrea N. Eagleman, Uneven bars: age rules, antitrust, and amateurism in women’s gymnastics, 40 UNIVERSITY OF BALTIMORE LAW REVIEW 587 (2011)

Chris Sagers, Why Copperweld was actually kind of dumb: sound, fury and the once and still missing antitrust theory of the firm, 18 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 377 (2011)

Michael C. Shull, Comment, Biting the hand that feeds: how trademark protection might threaten school spirit, 21 MARQUETTE SPORTS LAW REVIEW 641-665 (2011)

Rachel D. Solomon, Note, Cuban baseball players, the unlucky ones: United States-Cuban professional baseball relations should be an integral part of the United States-Cuba relationship, 10 JOURNAL OF INTERNATIONAL BUSINESS AND LAW 153 (2011)

Patrick Sterk, To pray or to play: religious discrimination in the scheduling of interscholastic athletic events, 18 SPORTS LAWYERS JOURNAL 235 (2011)

Alexander F. Tilton, Note, Mayer v. Belichick: “spygate” scandal is not the court’s concern, 18 SPORTS LAWYERS JOURNAL 341 (2011)

Brian Welch, Comment, Unconscionable amateurism: how the NCAA violates antitrust by forcing athletes to sign away their image rights, 44 JOHN MARSHALL LAW REVIEW 533 (2011)

Kevin W. Wells, Labor relations in the National Football League: a historical and legal perspective, 18 SPORTS LAWYERS JOURNAL 93 (2011)

Gregory J. Werden, American Needle and the application of the Sherman Act to professional sports leagues, 18 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 395 (2011)

Matthew A. Westover, Comment, The breaking point: examining the potential liability of maple baseball bat manufacturers for injuries caused by broken maple baseball bats, 115 PENN STATE LAW REVIEW 517 (2010)

Ulysses S. Wilson, Comment. The standard of care between coparticipants in mixed martial arts: why recklessness should ‘submit’ to the ordinary negligence standard, 20 WIDENER LAW JOURNAL 375 (2011)

Roberta Furst Wolf, Note. Conflicting anti-doping laws in professional sports: collective bargaining agreements v. state law, 34 SEATTLE UNIVERSITY LAW REVIEW 1605 (2011)

Daniel J. Zajda, A true home field advantage: a striking coincidence in the criminal prosecutions of professional athletes for in-game violence, 18 SPORTS LAWYERS JOURNAL 1 (2011)

Michael K. Zitelli, The controversy ensues: how Major League Baseball’s use of DNA testing is a matter for concern under the Genetic Information Non-Discrimination Act, 18 SPORTS LAWYERS JOURNAL 21 (2011)

University of Baltimore Law Professor Dionne Koller on Penn State Scandal

There have been a number of provocative and well-argued commentaries on the Penn State scandal.  University of Baltimore School of Law Professor Dionne Koller provides another one and from a vantage point that has not been raised: It's a Guy Thing at Penn State, and That's a Problem

Temple Law Professor Jermei Duru on Penn State scandal

Great piece on The Post Game by Professor Jeremi Duru on the Penn State scandal - Explaining Penn State Scandal To My Dad.

É Gurizada

Vms q vms néh a coisa não pode parar !

Meuw

Esse cara é mto bom

Olha aê

Gde

de leve hahaha

Opa hahaha

Até jah

Abs

Soccer

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Tah fodah! aff

Preciso parar de pensar nos problemas

e focar nas soluções

esse Totti me mata

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NY Times Article on becoming a law professor: Is it like a pro sports draft?

Very provocative article today by David Segal of the NY Times.  Among many points critical of law school teaching and of allocation of law school resources - and students' tuition dollars - on arguably irrelevant or ponderous legal scholarship, he makes an apt comparison between how one becomes a law professor and how a prospect participates in a pro sports draft:

The Prestige Game

About half of all law school hiring begins at the Faculty Recruitment Conference, widely known as the meat market, held by the Association of American Law Schools. It is conducted every year at the Marriott in the Woodley Park neighborhood of Washington.

At this year’s conference, in October, nearly 500 aspiring law professors turned up for interviews with 165 law schools. Like the draft of every professional sport, there are superstars here and for two days they were hotly pursued. At the top of the pile were former Supreme Court clerks. Just under them were candidates with both a J.D. and a Ph.D. in another discipline. Law schools, especially those in the upper echelons, have been smitten by Ph.D.-J.D.’s for more than a decade.

Ori J. Herstein, who studied philosophy in grad school and is a doctor in the science of law, says that “an economics Ph.D. is the most valuable,” and that “the further away you get from the humanities the better.”

Mr. Herstein was sitting in the Marriott lobby between interviews. Israeli-born and cheerful in a boyishly wonky way, he has a résumé that seems custom-built to tantalize law school recruiters. He has two degrees from Columbia, which, along with a handful of other elite schools — most notably Yale — has become a farm team for the credential-obsessed legal academy. He has already published a handful of  law review articles with promisingly esoteric titles (“Historic Injustice and the Non-Identity Problem: The Limitations of the Subsequent-Wrong Solution and Towards a New Solution”) and has submitted another that sounds perfectly inscrutable (“Why Nonexistent People Do Not Have Zero Well-Being but Rather No Well-Being”).

To read this article, click here.

NBA's "one and done" rule: if lockout persists, will someone challenge rule?

Tom Reed of the Cleveland Plain Dealer explores the possibility of the NBA holding a draft during an extended lockout.  The draft and particularly the "one and done" eligibility rule -- which requires that U.S. players be 19-years-old and one year removed from high school -- would be subject to antitrust challenge, as they would no longer be borne from collective bargaining.  Reed interviews Alan Milstein, Sonny Vaccaro and me on the topic.

For a great discussion on the empirical analysis of players who have jumped from high school to the NBA, see Zach Lowe's recent SI column. 

Related point: there is a very good chance that when the lockout is ultimately resolved, and a new CBA is in place, the eligibility rule will be raised to 20-years-old and two years removed from high school.  Whether that will motivate players to skip what would be their freshman and sophomore years in college to play professionally in Europe for a couple of years remains to be seen.

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Soccer

The Penn State Debate: Are NCAA Sanctions Inevitable?

Pennsylvania State University (“Penn State”) has always been an institution of great prestige and moral character, but within a few short days, the institution where the patriarchal football coach preached, “success with honor,” had been utterly shamed and dishonored. Now, it appears that the NCAA may be piling on. 

By now, we’ve all heard the disturbing allegations against former defensive coordinator, Jerry Sandusky, and details continue to emerge regarding the indefensible cover up of these egregious acts. Penn State has already taken steps towards remedying this situation by firing Coach Joe Paterno and President Graham Spanier, and accepting the resignations of Athletic Director Tim Curley and Vice President Gary Schultz. These actions taken by the Board of Trustees have elicited mixed emotions from the community. Penn State students rioted in response to Paterno’s firing, yet just a few days later, a moment of silence for the victims was held at the outset of the Penn State Nebraska game. As evidenced by their tweets, Penn State players expressed empathy for the victims, but were also saddened by the loss of their coach. In a situation such as this, with so many details yet to be uncovered, it seems as though no one really knows how to act. One thing is certain, however, and that’s that those responsible will be punished.

The criminal and civil consequences notwithstanding, the question has been asked: what would the NCAA do? On Friday, NCAA President Mark Emmert provided an answer. Emmert announced in a letter to new Penn State President Rod Erickson that the NCAA will conduct an investigation into whether Penn State failed to exercise institutional control over its intercollegiate athletics programs. The NCAA may look into numerous provisions in its investigation. Bylaw 10.1  lists examples of what the NCAA considers unethical conduct. The bylaw states that the unethical conduct is “not limited to” the conduct provided in the examples. The NCAA could use this non-exhaustive clause to find the conduct of Sandusky and others to be unethical, and therefore, punishable by the NCAA. Furthermore, bylaw 11.1 details the conduct of athletics personnel and states that coaches must act with honesty “at all times.” Certainly the requirement of forthrightness is not limited solely to the field of play or the purely athletic context. Moreover, bylaw 11.1.2.1 states that it is the responsibility of the head coach to monitor the conduct of all assistant coaches and administrators to ensure an atmosphere of compliance. Overall, if it is discovered that administrators knew of these acts and either ignored or deliberately concealed the heinous conduct, Penn State could face the dreaded charge of “lack of institutional control.”

To be sure, any NCAA sanctions that may stem from this incident are of tertiary concern in comparison to bringing those responsible to justice and attaining some semblance of retribution for the victims, but Penn State administrators have undoubtedly been cognizant of this possibility. There are no provisions that specifically prohibit Sandusky’s alleged conduct or the covering up of such conduct, as such should simply be a matter of human decency, but if the NCAA does decide to issue sanctions against Penn State, no one will question its justification for doing so.

Yet, it is conceivable that the NCAA will do nothing here, and it is likely to let law enforcement run its course before making any definitive conclusions. It is worth noting that this case does not involve any violations on the part of the student-athletes, and the NCAA may be reluctant to impose sanctions because ultimately, the student-athletes will be most affected. Additionally, the NCAA has been historically leery to take action when a serious criminal investigation is at issue, with the Duke Lacrosse case being a recent example of this approach. The NCAA, though, may simply be waiting for the full array of facts before taking action.

Even in the wake of the recent slew of scandals transpiring in collegiate athletics, this scandal is beyond shameful when one considers the innocent lives affected and the misdeeds of the adults who were entrusted with their care. Ironically, in August 2011, former Penn State President, Graham Spanier commented on the U’s violations stating, “We absolutely must put this climate of rule-breaking behind us.” On November 11, Penn State’s Board of Trustees created a Special Committee for the sole purpose of investigating this scandal. According to the Board, the Committee will be given whatever resources necessary to make sure that an incident like this never happens again, and the Committee will be charged with holding those responsible fully accountable. It seems as though Penn State will have to heed the advice of its former President and mend its reputation. A reputation that is undoubtedly far more tarnished than any stain that could be caused by NCAA sanctions.

Hat tip to law clerks Brian Konkel and Gabriela Schultz for their work on this piece.

Sports Law Internship Opportunity

The Arizona Diamondbacks of Major League Baseball are seeking a second or third year law student for an internship in the team's legal department this upcoming spring semester. Those interested in the position can learn more here:

http://baseballjobs.teamworkonline.com/teamwork/r.cfm?i=39878

Why Joe Paterno should sue for libel and journalists should lose their jobs.

For Paterno it all started with the big lie.



The media repeated the lie over and over again and still are either knowing full well they didn't have any evidence to back it up but did it for their own self-serving reasons or are simply too stupid to know there is no evidence to back it up.



The lie, as everyone knows, is that Joe Paterno knew a 10 year old boy was raped by Jerry Sandsusky in the showers at Penn State and didn't report it to the proper authorities.



That lie was repeated over and over again by a torch carrying mob of ignorant journalists until the trustees finally fired Paterno under pressure by the mob in the press who continue to this day, to repeat the lie as if it were fact. And no doubt feel smug about it,



But the more information that comes out, the more we see just how ignorant and malicious the press was while at the same time, the press ignores the information that exposes them for what they have been.



No one in the news media knows exactly what Paterno was told and knew except that Paterno himself and McQueary both stated that Paterno was told a watered down sanitized non specific non detailed version of what happened in that shower. But everyone in the news media collectively ignored that since "not knowing" doesn't make a good story, and doesn't, as Karl Ravech at ESPN said, "advance the story". There was even something as preposterous as Jay Bilas, an ESPN basketball analyst saying, " a 60 year old man was in a shower with a ten year old boy. That's all you have to know". Really? Grandfathers and fathers who have had children late in life, beware if Jay Bilas comes to your town.



The witch hunting has gotten so out of control that Franco Harris, one of the few to stand up and defend Paterno was himself fired as a spokesman for the Meadows race track and casino, specifically because of his defense of Paterno. This what happens with fascists when someone dares to speak out about something in opposition to the party line.



But another fact has emerged which makes the journalistic mob look even worse than before, a fact that has been conveniently glossed over by the news media for the obvious self-serving reasons.



In response to news reports of McQueary's claim that he did go to the police, the local police chief pointed out that while they have no record of McQuery filing a report with them, McQueary wouldn't have gone to them in the first place for the simple reason that, as the police chief pointed out in his statement, the local police have no jurisdiction over a crime that occurs on the Penn State campus. That,as the police chief pointed out, is the sole jurisdiction of the Penn State Campus Police.



The significance of this is crucial because if the only police agency with jurisdiction over what McQueary witnessed was the Penn State Campus police then Paterno did in fact do everything the moralizers said he didn't do. Gary Shultz was one of the Penn State administrators Paterno went to with whatever McQueary told him. Gary Shultz was the supervisor and overseer of the Penn State Campus Police.When it comes to reporting anything to the Penn State Campus Police, you couldn't get any higher than Shultz.He was, in effect, the chief of Penn State campus police.



Based on this fact and this reality, Paterno did exactly what all the self serving moralizers said he should have done and in fact, there was NO police agency other than the Penn State campus police who had jurisdiction and no other police agency Paterno should have gone to.



This is what happens when ignorant people convinced of all their own self-righteous beliefs but ignorant of facts band together in a mindless mob and go on a rampage.This is what the news media were and continue to be regarding Joe Paterno.



Members of the media like Sean Gregory of Time Magazine and Andy Staples of Sports Illustrated and any number of commentators at ESPN, the Daily News, and other media outlets, all wrote or commented that Paterno knew a 10 year old boy was raped in the showers and only reported it to Curley and Shultz and so shirked his responsibilities when we now know that reporting it to the campus police was fulfilling ALL of Paterno's legal and moral responsibilities. Maybe these ignorant journalists don't think the Penn State campus police are real police. Maybe they'd like to say that to the faces of the Penn State campus police who were in full riot gear the night of the protests, and had tear gas and firearms at their disposal if needed. Penn State has 80,000 students stretched over campuses state wide with the biggest population at the Happy Valley campus. It is a small city. The Penn State campus police are as real and have as much authority as any police anywhere in any jurisdiction. So now the lie that Paterno didnt do enough by only going to the head of campus police can be put to rest.



But as everyone knows, the biggest lie that Sean Gregory and others tell is that Paterno knew a 10 year old boy was being raped in spite of the fact that Paterno himself said he was never told that by McQueary.



Based on all the known facts, Joe Paterno could sue for libel for that reporting. And he should. The case is so open and shut it would never get to court. The media outlets Paterno could sue wouldn't let it. Instead there would be out of court settlements for millions with the stipulation that Paterno never talk about it. Why? Because the news media wants to preserve their -uh - reputations.



Of course there are those in the media, and small minority outside the media that believe that Paterno just had to know the specifics of what on. They have no proof but they say it anyway. So what did McQueary actually tell Paterno? We don't know.And neither does one single journalist anywhere. But here is something we do know.



Just a few days ago, the Citadel, a military college in South Carolina revealed they had something of a child abuse scandal of their own. In reporting the story a CNN reporter wrote:



"In 2007, the college received an allegation that five years earlier, ReVille invited two campers at The Citadel Summer Camp into his room to watch pornography. They did not touch each other, but engaged in sexual activity."



Kind of missing in specifics isn't it. The reporter doesn't say what sexual activity or how they engaged in sexual activity without touching each other. Was it an out of body experience? Acrobatics? Mind over matter?



Most people are smart enough to figure out for themselves that what this journalist so awkwardly and cryptically is trying to say is, in all probability they engaged in some kind of group masturbation. The reporter could have said so in so many words. He could have been specific. They didn't.



So an experienced reporter writing for CNN could not make a simple declarative statement about the specifics of a sexual event that took place, even with time to reflect and to get the words right and even with the help from an alleged editor,and  over an event with which they had no personal involvement. Yet we are supposed to believe McQuery gave 84 year old football coach Joe Paterno specifics when an experienced reporter with all the time in the world to reflect, couldn't.The irony is, that even if McQueary did tell Paterno all the specifics ( something Paterno and McQueary deny) Paterno did everything he could have and should have done in reporting it. There is no other police agency Paterno could have or should have gone other than the head of Penn State campus police, Gary Shultz. And he and McQueary did. What Shultz did or did not do at that point is none of Paterno's responsibility. Period.



It is not in Joe Paterno's DNA to sue. He has always avoided the limelight and personal publicity and he doesn't need the money. But there are many reasons of principle Paterno should sue certain journalists and media outlets for libel and defamation, not the least of which is that its a law suit Paterno could not lose and would mete out well deserved justice to the news media. After all isn't justice what the news  media has been clamoring about?



The legal definition of libel, which in many cases is hard to prove especially in cases involving celebrities or public figures, fits what happened to Paterno like a glove.



Two important elements must be proved. One, that the person making the libelous statements knew the statements were not true ,and two, that the person making the libelous statements knew they would injure and harm the person they were making the statements about. Two elements that in Paterno's case could be proved so easily the media outlets being sued would settle almost immediately. And as part of the settlement Paterno could demand a public apology.



One target would be Sean Gregory and Time Magazine. Gregory in print and in so many words stated that "Paterno knew a 10 year old boy was raped in the showers at Penn State and didn't report it to the authorities". No number of lawyers at Time could defend the double fabrication by Sean Gregory.



Similar statements about Paterno knowing about a boy being sexually molested were made by Andy Staples at Sports Illustrated, numerous commentators at ESPN including Stuart Scott, Jay Bilas, and others. All statements made at a time when they nor anyone else had one shred of proof that Paterno knew what they say he knew. And if true justice were to prevail, Gregory,his editor and many other so called journalists would lose their jobs for their fabricated, dishonest, and factually challenged reporting.



It is a virtual certainty media outlets like ESPN, Time Magazine and others whose journalists who defamed and libeled Paterno would settle out of court rather than risk having a jury speak and probably award many millions more than what they could settle for. And Paterno, once they agreed to settle, could donate all the money to worthy children's charities. The purpose of the libel suits would be principle and a principle worth suing over, but the money Paterno would get would also do a lot of good for a lot of charities and help a lot of children and in the end that would be justice too since it was in defense of children that the media justified its smearing and libeling of Joe Paterno.



In all probability Paterno wont sue. Certainly if Paterno was actually guilty of what those in the mob said he was guilty of, Paterno's firing and everything that happened subsequently would be appropriate. But Paterno from the first day said otherwise, said he didn't know the details or ANY, specifics of what McQuery saw and reported what McQueary told him, as he was supposed to, legally and morally to his superior, the AD and in effect, the chief of Penn State campus police, the police agency with sole jurisdiction.



Paterno should sue for libel. Not only to defend his name but to mete out justice and punishment to those who trample the civil rights of others so effortlessly for their own self aggrandizement because they think they can and get away with it and in the process do tremendous damage, as all mobs do, solely because of their stupidity and ignorance.



Paterno won't sue. But he should.



UPDATE: We can now add a writer named Jemele Hill to the list of the sanctimonious and factually challenged and dishonest sportswriters, who, if  standards of fact meant anything in journalism would lose her job as well.  Writing for ESPN on Nov. 22, Hill wrote a peice about all the negative email she has received because of the story she wrote attacking Paterno. Hill wrote in her Nov 22 peice, " I anticipated that since the story is centered on his (Paterno's) knowledge of and reaction to the alleged sexual abuse of children".



Notice how she treats Paterno's "knowledge of sexual abuse of children" as fact when we know that Hill hasnt got a shred of evidence to back that up. But even more bizarre is that Hill calls the actual sexual abuse "alleged".  In her mind Paterno's knowledge of the abuse is fact but the abuse itself is only "alleged". This is either ESPN's legal guidelines  telling her to use the word "alleged" to protect them from being sued by Sandusky if he ever got an acquital, or Hill's own twisted point of view.  But in attacking Paterno the sexual abuse is "alleged" but Paterno's knowledge of the abuse is fact.



Also somehow in Hill's journalistic fantasy world. the boy that McQueary witnessed with Sandusky in the shower has now become many and many instances.. In Jemele Hill's world Paterno not only knew of child sexual abuse with Sandusky at Penn State( that maybe didnt really happen) and did nothing about it,  but Paterno's known about  other cases of sexual abuse with other children and did nothing about  that either.

Without a single fact or a shred of evidence to back it up. Or even the suggestion of any evidence.

Marc Rubin
Copyright Marc Rubin 2008

Coming Soon: NBA Forum Wars (and Why Choice of Venue will Matter)

By now, most readers are aware of three antitrust lawsuits that seek to address whether the NBA's league-wide lockout represents an illegal group boycott under Section 1 of the Sherman Act:

- Butler v. National Basketball Association (filed by NBA players against the league on Nov. 15, 2011 in the U.S. District Court for the District of Minnesota, which is part of the 8th Circuit).

- Anthony v. National Basketball Association (filed by NBA players against the league on Nov. 15, 2011 in the U.S. District Court for the Northern District of California, which is part of the 9th Circuit).

- National Basketball Association v. National Basketball Players Association (filed as a declaratory judgment suit by the NBA teams against the players on Aug. 2, 2011 in the U.S. District Court for the Southern District of New York, which is part of the 2d. Circuit).

Soon, a battle will likely emerge between the parties about which forum should hear this dispute. In a nutshell, here are two reasons why the ultimate forum might affect the case's result.

(1) Differences in Interpreting Antitrust Law's Non-Statutory Labor Exemption Make the 8th and 9th Circuits More Favorable to the Players than the 2d. Cir.


One of the key defenses in any labor-side antitrust challenge is the non-statutory labor exemption: a defense arguing that a particular claim is preempted from antitrust scrutiny by labor law. However, not all circuits apply the non-statutory labor exemption in the same manner.

In both the 8th and 9th Circuits, courts have repeatedly held that the non-statutory labor exemption shields from antitrust scrutiny only activities that (1) involve mandatory subjects of bargaining, (2) primarily affect the parties involved, and (3) are reached through bona fide arms' length bargaining. Based on this standard, the U.S. District Court for the District of Minnesota concluded in McNeil v. Nat'l Football League, 790 F. Supp. 871 (D. Minn. 1991) that the non-statutory labor exemption cannot apply after a union disclaims interest: presumably because after a disclaimer the second and third prongs of the non-statutory labor exemption cannot be met.

By contrast, the U.S. Court of Appeals for the Second Circuit in Clarett v. Nat'l Football League rejected the 8th & 9th Circuit definition of the non-statutory labor exemption in favor of a far broader non-statutory labor exemption. Thus, in the Second Circuit, the mere act of disclaiming union interest might not impose immediate liability on a sports league for maintaining terms originally implemented before such a disclaimer.

For more on the differences in interpreting the non-statutory labor exemption in the 2d. Cir. from the 8th/9th Cir., see my law review articles addressing the circuit split in the context of age requirements here and here, and Professor McCann's articles discussing this split in the context of age requirements here and here.

(2) Differences in Interpreting "Market Power" in a Labor-Side Antitrust Case

In addition, the NBA teams may seek to defend their league-wide lockout under antitrust law by arguing that the relevant market for professional basketball labor is worldwide and that within a worldwide market the NBA teams lack the requisite "market power" to illegally restrain trade under the Rule of Reason. In determining whether the relevant geographic market for men's basketball labor is limited to the United States or extends to the entire world, a court would likely consider within what range the movement of workers is "practicable."

While many NBA players' lack of interest in playing overseas may seem to indicate that doing so is not practicable and thus to relevant market should be confined to the U.S. the U.S. Court of Appeals for the Ninth Circuit case Tanaka v. University of Southern California, 252 F.3d 1059 (9th Cir. 2001) seems to go against that point. There, the court disregarded a female collegiate soccer player's preference to only accept employment near her family's home in Los Angeles in favor of the view that the market for her services extended to a greater geographic region.

While the court's holding in Tanaka does not directly bar the Ninth Circuit from finding a market for men's basketball labor that is limited to the U.S., it seems to introduce one more bar for the players' lawyers to overcome.

For more on the NBA's potential "lack of market power" defense, see my recent Rutgers Law Journal article Does the NBA Still Have 'Market Power?' Exploring the Antitrust Implications of an Increasingly Global Market for Men's Basketball Player Labor.