Michigan Legislation Prohibits College Athlete Unions

It is now illegal in Michigan for college athletes at any public university to form a labor union for purposes of collective bargaining.  No comment.

Gutless educational administrators, Part 6,577 (Updated

This is pathetic and really depressing. (Note the title has been changed to indicate that the face of this decision is not the school's AD, but its principal).

First, we bemoan about how uninvolved and politically disinterested "kids today" are, then we systematically shut down their efforts to be involved or to take a stand.

Second, note the administration's move here--"we are too small to keep the peace 'should someone get upset and choose to act out,' so we are just going to stop people from speaking." This is a preemptive heckler's veto--In the ordinary heckler's veto, government stops the speaker when the crowd gets unruly and actually threatens violence; here, the government is stopping the speaker with no basis to know or reason to believe that anyone will get unruly, essentially by pleading poverty. Of course, government never has enough resources to protect everyone should someone decide to act out (someone will get hurt before police/security can respond). So, taken to its extreme, no one should be able to say anything that (government finds) controversial or objectionable, because government never can guarantee complete safety.

Third, while high schools are different and administrators have much greater control over expression on school grounds, this seems a step too far, particularly as to fans in the stands. Is an "I Can't Breathe" shirt really more likely to cause a disruption than an armband in the middle of Vietnam?

Fourth, given the insistence that "all political statements" be kept away from the tournament, should we assume that the national anthem will not be sung?

The tourney begins Monday. No indication that the players or potential shirt-wearing fans are running to court to even try to get an injunction.

Update: Some more details in this story. Before explaining the preemptive heckler's veto, the principal of the host school--a professional educator--indicated that she "respected the Mendocino teams 'for paying attention to what is going on in the world around them.'" Apparently, however, this professional educator does not respect them enough to not punish them for paying attention to what is going on in the world around them. Irony really is dead.

The Huff Post story also indicates that the father has been in touch with the ACLU and is hoping to hear back after the holiday. Someone in the N.D. Cal. is going to be handling an emergency TRO Monday morning.

Further Update: The school district relented following negotiations with an attorney for one of the players--players and spectators will be permitted to wear the t-shirts, so long as they "do not cause any serious problems at the tournament." Of course, framing it that way walks us right back to the heckler's veto--if I object to the shirts, my motivation is to cause a disruption, which would then prompt the school district to do what I want and stop people from wearing them.

Jameis Winston cleared in code of conduct hearing: what's next?

Florida State quarterback Jameis Winston has been cleared in his code of conduct hearing. What's next for his legal situation? I break it down on Sports Illustrated tonight with some outstanding contributions by Florida attorney Daniel Wallach. Hope you can read the piece.

Fighters file antitrust lawsuit against the Ultimate Fighting Championship

Current and former fighters have filed a potentially game-changing lawsuit against the UFC over salaries and UFC's business practices. Here's my analysis of the lawsuit for Sports Illustrated - hope you have a chance to check it out.

But can I wear my "Fuck the Draft" jacket?

From Judge Susan E. Gash, presiding over the trial of NFL player Aaron Hernandez:

No person wearing clothing, or a button or other object attached to clothing, or carrying an object that displays any Patriots or other NFL team logo, football-related insignia, or words and/or a photograph that relate in any way to this case will be permitted entry to the Fall River Justice Center during any phase of the trial.

Does this seem excessive, especially as it applies not only to the courtroom, but within the entire building? And is it necessary to ban everything related to all of football, not just the Patriots or even just the NFL? Is it really that problematic for jurors to see any and all football-related things?

The best defense of athlete speech you will read

Courtesy of Cleveland Browns' Andrew Hawkins (he of the "Justice" t-shirt in Sunday's game that a Cleveland police union official labeled "pathetic"):

“I was taught that justice is a right that every American should have. Also justice should be the goal of every American. I think that’s what makes this country. To me, justice means the innocent should be found innocent. It means that those who do wrong should get their due punishment. Ultimately, it means fair treatment. So a call for justice shouldn’t offend or disrespect anybody. A call for justice shouldn’t warrant an apology.

“To clarify, I utterly respect and appreciate every police officer that protects and serves all of us with honesty, integrity and the right way. And I don’t think those kind of officers should be offended by what I did. My mom taught me my entire life to respect law enforcement. I have family, close friends that are incredible police officers and I tell them all the time how they are much braver than me for it. So my wearing a T-shirt wasn’t a stance against every police officer or every police department. My wearing the T-shirt was a stance against wrong individuals doing the wrong thing for the wrong reasons to innocent people.

“Unfortunately, my mom also taught me just as there are good police officers, there are some not-so-good police officers that would assume the worst of me without knowing anything about me for reasons I can’t control. She taught me to be careful and be on the lookout for those not-so-good police officers because they could potentially do me harm and most times without consequences. Those are the police officers that should be offended.

“Being a police officer takes bravery. And I understand that they’re put in difficult positions and have to make those snap decisions. As a football player, I know a little bit about snap decisions, obviously on an extremely lesser and non-comparative scale, because when a police officer makes a snap decision, it’s literally a matter of life and death. That’s hard a situation to be in. But if the wrong decision is made, based on pre-conceived notions or the wrong motives, I believe there should be consequence. Because without consequence, naturally the magnitude of the snap decisions is lessened, whether consciously or unconsciously.

“I’m not an activist, in any way, shape or form. Ninety-nine times out of a hundred I keep my opinions to myself on most matters. I worked extremely hard to build and keep my reputation especially here in Ohio, and by most accounts I’ve done a solid job of decently building a good name. Before I made the decision to wear the T-shirt, I understood I was putting that reputation in jeopardy to some of those people who wouldn’t necessarily agree with my perspective. I understood there was going to be backlash, and that scared me, honestly. But deep down I felt like it was the right thing to do. If I was to run away from what I felt in my soul was the right thing to do, that would make me a coward, and I can’t live with that. God wouldn’t be able to put me where I am today, as far as I’ve come in life, if I was a coward.

“As you well know, and it’s well documented, I have a 2-year-old little boy. The same 2-year-old little boy that everyone said was cute when I jokingly threw him out of the house earlier this year. That little boy is my entire world. And the No. 1 reason for me wearing the T-shirt was the thought of what happened to Tamir Rice happening to my little Austin scares the living hell out of me. And my heart was broken for the parents of Tamir and John Crawford knowing they had to live that nightmare of a reality.

“So, like I said, I made the conscious decision to wear the T-shirt. I felt like my heart was in the right place. I’m at peace with it and those that disagree with me, this is America, everyone has the right to their first amendment rights. Those who support me, I appreciate your support. But at the same time, support the causes and the people and the injustices that you feel strongly about. Stand up for them. Speak up for them. No matter what it is because that’s what America’s about and that’s what this country was founded on.”

Does Adrian Peterson's lawsuit against the NFL have a chance?

I break Adrian Peterson v. NFL down today on SI NOW with host Maggie Gray. Hope you can watch the video:

Regulating Professional Sports Leagues

I recently posted a copy of my latest law review article, "Regulating Professional Sports Leagues," to SSRN.  The paper, to be published next year in the Washington & Lee Law Review, makes the case for a federal sports regulatory agency (admittedly, a proposal that is unlikely to be adopted anytime soon).  Here's the abstract for the paper:

Four monopoly sports leagues currently dominate the U.S. professional sports industry. Although federal antitrust law — the primary source of regulation governing the industry — would normally be expected to provide a significant check on anticompetitive, monopolistic behavior, it has failed to effectively govern the leagues due to both their well-entrenched monopoly status and the unique level of coordination necessary among their respective teams. Consequently, the four leagues today each in many respects enjoy unregulated monopoly status in what is estimated to be a $67 billion industry.

As one might expect, these leagues use their largely unchecked monopoly power to injure the public in various ways. By restricting expansion, leagues create an artificial shortage of franchises enabling their existing teams to extract billions of dollars in stadium subsidies from U.S. taxpayers. Similarly, by preventing their franchises from individually licensing their broadcast rights nationally or over the Internet, the leagues are able to demand significantly higher fees from television networks and consumers than would be obtainable in a competitive marketplace, while at the same time subjecting viewers to arcane and outdated blackout provisions.

Unfortunately, existing proposals in the academic literature to remedy this undesirable state of affairs are both impractical and unlikely to be effective. This article instead proposes a surprisingly overlooked solution: the creation of a federal sports regulatory agency. Because the U.S. professional sports leagues today effectively operate as natural monopolies — with nearly 150 years of history establishing that competing leagues cannot sustainably co-exist in a sport for any significant length of time — direct government regulation of the industry is warranted. Indeed, a specialized agency would be particularly well suited to ensure that the leagues’ activities are aligned with the public interest, while at the same time accommodating the industry’s unusual economic characteristics.

You can download the full piece here.  Any feedback would be greatly appreciated.

Free speech in the NFL, ctd.

After this happened two weeks ago (and may or may nor have been resolved by what may or may not have been an apology from the Rams), this happened in Cleveland yesterday: Browns receiver Andrew Hawkins wore a t-shirt during pre-game intros calling for "Justice for Tamir Rice and John Crawford," both of whom were recently shot to death by Cleveland police officers. This follows on the heels of numerous NBA players, including some Cleveland Cavs, wearing "I Can't Breathe" t-shirts during pre-game warm-ups.

The head of the Police Patrolmen Union then offered this:

It's pretty pathetic when athletes think they know the law. They should stick to what they know best on the field. The Cleveland Police protect and serve the Browns stadium and the Browns organization owes us an apology.

If possible, this one is even more tone-deaf than the statement from the St. Louis police union spokesman. Note the familiar beats of 1) arrogant paternalism ("Stick to football and don't speak out on matters of public interest the way ordinary citizens can") and 2) mild threat ("We protect you, but if you don't appreciate us, maybe we won't anymore").

This is not going away anytime soon.

Update: The Browns responded in a far more unequivocal and unambiguous way: "We have great respect for the Cleveland Police Department and the work that they do to protect and serve our city. We also respect our players' rights to project their support and bring awareness to issues that are important to them if done so in a responsible manner."

That last qualifier is always the kicker of course; someone who wanted to could say that what the players did is not responsible. They would be wrong, of course, but there you go. I guess the next move is whether the department tries to pull out of providing game-day security (my guess: No, because the rank-and-file officers want the pay that comes with it).

Further Update: Will Leitch of Sports on Earth explains why this sort of athlete activism is a good thing (he was writing about the "I Can't Breathe" shirts in the NBA rather than the NFL examples, but the point is the same).

Adrian Peterson's Legal Options

Now that Adrian Peterson has lost his NFL appeal, is he headed to court? My new column for Sports Illustrated on Peterson's legal strategy and the NFL's likely defenses. Hope you can check it out.

A saitirical take on the Washington Professional Football Team

In California Law Review Circuit,  Alex Pearl (Texas Tech) goes Jonathan Swift on the controversy over the Washington Professional Football Team's nickname.

Key evidence excluded in Aaron Hernandez murder case

Key evidence--including text messages--were ruled inadmissible in Aaron Hernandez's upcoming trial for the murder of Odin Lloyd. My new column for Sports Illustrated on what this means and whether Hernandez might beat the murder charge.

MLB Sued Over Minor League Wages in New Antitrust Suit

On Friday, a group of four former minor league baseball players filed a federal class action antitrust lawsuit in California, contending that Major League Baseball teams have illegally colluded to fix minor league players' salaries.  I wrote about the case (Miranda v. Office of the Commissioner of Baseball) on Monday over at the baseball statistical analysis website FanGraphs.  Here is an excerpt of my piece:

The Miranda suit alleges that MLB unlawfully suppresses minor league players’ salaries in a variety of ways. By subjecting North American amateur players to the first-year player draft each June, Major League Baseball prevents draftees from selling their services to the highest bidder — instead forcing them to negotiate with only a single team. MLB then artificially reduces the size of the signing bonuses that entry level players receive through its domestic and international signing bonus pool restrictions.

Once players have entered the minor leagues, their annual salaries are then largely dictated on a take-it-or-leave-it basis by their teams in accordance with MLB-imposed, minor league salary “guidelines.” And because MLB teams retain the exclusive rights to their minor league players’ services for seven years, many players go their entire careers without ever being able to sell their services in a competitive market. As a result, the suit asserts that most minor league players earn as little as $3,000 to $7,500 per year.

The full piece is available here.

Court won't overturn football ref's decision

This seems right. I cannot imagine the absolute mess that would result if a court of equity could get involved in reviewing decisions of game officials. It would make sense if the state association provided for some mechanism to challenge a game official's understanding of the rules. The suggestions of racial bias are troubling, but do not change the fundamental analysis. I also assume that the game official has been appropriately sanctioned.

Sports Illustrated article on O'Bannon v. NCAA appeal

I've written an article titled "Court Time: Will Ed O'Bannon's historic victory withstand not-so-instant replay?" in this week's magazine issue of Sports Illustrated (Dec. 8, 2014 issue). The article is on page 56. Hope you can check it out.

The stupidity of trying to regulate hate speech

Too often, the people doing the regulating do not get humor and satire. Latest case in point: the English Football Association has brought "charges" against star player Mario Balotelli (who is Italian, of Ghanaian descent) over an Instagram post of the picture "Dont' Be Racist," which shows how multi-ethnic (and thus non-racist) Mario is by reference to all the ethnic stereotypes he embodies.

The FA says Balotelli violated a prohibition on "abusive and/or insulting and/or improper," aggravated by "reference to ethnic origin and/or color and/or race and/or nationality and/or religion or belief." I posted the picture after the jump. Is it possible to sensibly see this as anything other than a joke, reappropriating stereotypes to undermine them? Is this really abusive or insulting? Or is this simply what happens--when you try to regulate words, context inevitably gets lost.

UAB Abolition of Football and the Intersection of Title VI and Title IX

The University of Alabama at Birmingham announced earlier this week that it was shutting down its football, bowling and rifle teams. The decision has been controversial in Alabama and sent reverberations across the country in college athletics. The university probably gave some consideration to the implications under Title IX with respect to the bowling and rifle teams in making the decision but did it look at the potential application of Title VI?

Even though closing of the bowling and rifle teams will reduce participation opportunities for women, the reduction in football participation numbers will drop the participation numbers for men below that of women according to UAB’s last Equity in Athletics report. However, closing the football program will result in a substantial decrease in participation numbers for African American males will be substantial and a similar impact on the overall participation numbers for African American athletes. Furthermore, bowling happens to be a sport in which African American women comprise a significant percentage of the participants in intercollegiate competition. Although the UAB team may not currently have an African American member, it is a sport in which UAB has the potential to offer African American female athletes participation opportunities outside of basketball and track.

Given the impact of the decision on opportunities for African American student athletes and the reallocation of resources to other sports, UAB’s decision may have Title VI implications.

Alfred Dennis Mathewson

The evolution of fan speech

During last night's ACC/Big Ten Challenge game between Virginia and Maryland in College Park, Maryland fans chanted "no means no" and held signs referencing the Rolling Stone report about rape at UVa's campus and calling for the university to be called to account.

Two thoughts. First, how should we feel about an socio-political message that is being chanted to razz the opponent? Is it inappropriate or mean "too political," since it has nothing to do with the game or with any of UVa's players? Or does it reflect the inevitable ties between sports and society--in this case between a problem at the university and the team that represents that university. Second, it shows that we have improved somewhat in our understanding of sexual assault. In the early 1980s, a Maryland player named Herman Veal was accused of sexual misconduct; Duke fans waved women's panties and one fan held a sign that said "Did you send her flowers?" Yesterday's expression at least recognize sexual assault as a serious issue.

By the way, as the Deadspin report shows, there was speech all over that game. Students staged a "die-in" outside the arena to protest the various non-indictments of police officers; the protest included one member of Maryland's football team.

Does Adrian Peterson have a good case?

I have a new column for Sports Illustrated on Adrian Peterson's appeal.

I was also a guest on the Jim Rome Show yesterday to talk about Ray Rice's appeal:

Free speech in the NFL

It will be interesting to see how this plays out. Five St. Louis Rams players walked onto the field in the "Hands Up, Don't Shoot" gesture; the St. Louis Police Officers Association is demanding that the players be disciplined and that the team issue a public apology. The full statement from the association is angry and unprofessional (not to mention loaded with really stupid football puns); it quotes extensively from the organization's business manager, a fired police officer now serving in the state legislature who has been one of the few voices opposing body cameras.

Roger Goodell is a coward and a liar. But will be really punish players for core political speech about a local and ongoing matter of public import? (Note: Yes, I know he can punish them; the question is will he and, if he does, how does he explain it away).

Update: It appears neither the Rams nor the NFL will sanction the players involved.