The first week of Commonwealth of Massachusetts v. Aaron Hernandez

I was in Fall River, Massachusetts this week to attend and report on the Aaron Hernandez trial for Sports Illustrated. Here are a few articles I wrote:

• Analysis of testimony presented on second day of Aaron Hernandez trial

• Analyzing opening statements on first day of Aaron Hernandez trial

• The complete trial preview: Key issues in murder trial of former Patriots tight end Aaron Hernandez

#Not All Convictions

Sadly, the only lessons anyone will learn about campus sexual assault from the convictions of two former Vanderbilt football players is 1) Don't be so stupid (or arrogant) as to record and share your criminal activity and 2) You cannot get away with as much when you are not the star quarterback at a championship-contending football factory. More sadly, I am not sure what would happen if you have a star quarterback who is stupid enough to record. Still more sadly, we already know what happens if the non-star is smart enough not to record.

Legal Analysis of the MLS Labor Crisis and whether MLS is a single entity

I have a new article for Sports Illustrated on the labor dispute in Major League Soccer and potential legal options for the players and the league. Hope you can check it out.

Did a Patriots staffer cause Deflategate?

Another surreal day in Deflategate. I have new article tonight for Sports Illustrated on allegations against a Patriots locker room attendant and how the Patriots are prepared to fight back. Hope you can check it out.

Are Retired NFL Players Making a Mistake Opting out of NFL Concussion Settlement?

In a new article for Sports Illustrated, I look at the advantages and disadvantages for retired players and families who opt out of the settlement and pursue their own lawsuits.

Legal Fallout of Bill Belichick's Science Defense and Response by NFL and NFLPA

I have a new column for Sports Illustrated tonight on Bill Belichick's press conference today on Deflategate. He offered a detailed and I think persuasive defense, but NFL and NFLPA will still have questions. Hope you can read the piece. I was also a guest on Don Lemon's CNN Show to talk about Deflategate:

McCants v. UNC: New academic fraud lawsuit filed against UNC and the NCAA

In a new Sports Illustrated article, Jon Wertheim and I break down McCants v. UNC and what it means for college sports.

A Legal Analysis of Deflategate

Just when the Patriots thought they were all set for the Super Bowl, Deflategate happens. My take for Sports Illustrated.

This Friday: Charleston Sports Law Symposium

Several of our contributors, including Warren Zola and Timothy Liam Epstein, will be featured panelists at Charleston Law School's Sports Law Symposium next Friday, January 30, 2015. Titled "Under Further Review: A Legal Look at the World of Sports," this one-day conference includes several timely panel discussions on, among other things, NCAA reform and the future of college athletics, concussions, injuries and medico-legal issues in sports, and the interplay between professional sports league discipline and the due process rights of players and owners. Warren Zola will be on two panels (including the one on NCAA reform), and is moderating the panel titled "League Scandals: Disciplinary Powers and Due Process, which features Chicago-based sports law attorney Scott Andreson, sports business and tax expert Robert Raiola, and me as panelists. The keynote speaker of the symposium is Megha Parekh, Senior Vice President and General Counsel of the NFL's Jacksonville Jaguars. For more information about the symposium, including how to register, click here. Hope to see you next Friday.

Under Further Review:
A Legal Look at the World of Sports

January 30, 2015
Charleston Music Hall, 37 John Street
The Seventh Annual Law & Society Symposium
Co-Sponsored by the Charleston Law Review and the Richard W. Riley Institute of
Government, Politics and Public Leadership at Furman University

Keynote Address
Megha Parekh

Senior Vice President, General Counsel
Jacksonville Jaguars

Panel One

Reform in College Athletics and
the Future of the NCAA

Warren Zola, Chair, Boston College's Professional Sports Counseling Panel & Executive Director of the Office of Corporate and Government Affairs

Angela Littlejohn, Legal Advisor, Furman University

Timothy Liam Epstein, Partner, SmithAmundsen

Panel Two

Concussions, Injuries, and
Medico-Legal Issues in Sports

H. Hunt Batjer, M.D., Former Co-Chair, NFL's Head, Neck, and Spine Committee

David Geier, Jr., M.D., Director, East Cooper Sports Medicine

Timothy Liam Epstein, Partner, SmithAmundsen

Panel Three

League Scandals: 
Disciplinary Powers and Due Process

Daniel Wallach, Shareholder, Becker & Poliakoff

Scott Andresen, Founder, Andresen & Associates P.C.

Robert Raiola, C.P.A., Sports and Entertainment Group Manager, O'Connor Davies LLP

Ninth Circuit Upholds Baseball's Antitrust Exemption

On Thursday, the Ninth Circuit Court of Appeals affirmed the district court's dismissal of the antitrust lawsuit brought against Major League Baseball by the city of San Jose, California.  San Jose filed the suit back in June 2013, alleging that MLB's refusal to approve the relocation of the Oakland Athletics to the city violated the Sherman Act.  MLB has had the proposed relocation under consideration for nearly six years, but has failed to act in large part because the San Jose territory is currently assigned to the San Francisco Giants, who have refused to allow the move.  In October 2013, district court Ronald M. Whyte dismissed San Jose's case, finding that it's antitrust claims were covered by baseball's antitrust exemption. 

A unanimous, three-judge panel of the Ninth Circuit affirmed this ruling on Thursday.  In the court's opinion (available here), Judge Alex Kozinski held that baseball's antitrust exemption clearly applies to its relocation policies, since those policies are central to the baseball business.  Moreover, the court also determined that the Curt Flood Act of 1998 - the act giving major league players the right to file antitrust suits against MLB - forecloses San Jose's suit.  In particular, the Ninth Circuit highlighted a provision in the act stating that it "does not create, permit or imply a cause of action by which to challenge under the antitrust laws . . . franchise . . . relocation."  The court held that this language confirmed that Congress did not intend for the Sherman Act to apply to MLB's relocation policy.

For more on the Ninth Circuit's decision, fellow Sports Law Blog contributor Ed Edmonds and I discussed the case on Friday on Bloomberg Radio.  Our discussion is available here.

Meanwhile, on a related note, I discussed this month's 100th anniversary of MLB's first antitrust challenge - the Federal League's 1915 lawsuit against the American and National Leagues argued before Judge Kenesaw Mountain Landis in Chicago - on the NPR program Only a Game this weekend.  That interview is available here. 

Is the NFL's eligibility rule vulnerable to legal challenge?

On SI Now today, I talk about a potential legal challenge to the NFL's eligibility rule, which requires that players be three years out of high school. I reference the extraordinary work of Alan Milstein, who was interviewed in Time Magazine on this topic.

This Friday: 5th Annual Duke Sports & Entertainment Law Symposium

If you're in the Raleigh-Durham area this Friday, January 16th, I strongly encourage you to attend the Fifth Annual Sports & Entertainment Law Symposium, sponsored by Duke University School of Law. This one-day event offers panel discussions covering a wide range of hot topics in the world of sports and entertainment law. There will be panels on stadium financing and development, publicity rights of college athletes, personal conduct policies of sports leagues and schools (e.g., Adrian Peterson, Ray Rice, Jameis Winston), sports betting legalization, and daily fantasy sports. The symposium concludes with a reception at 4:30 pm. Registration is free! For more information about the symposium, including how to register, click here. The symposium schedule appears below. Hope to see you Friday.

Schedule of Events

8:30 Registration Breakfast – 3rd Floor Lobby, Duke Law School

9:00-10:00: Financing and Development of Professional Athletic Venues:

Understanding the legal issues and economic tradeoffs between the public and private sectors when determining how and when to build a new stadium are key to all sports development and growth strategies. Given the sky-rocketing cost of team operations, the need to build new revenue generating venues can motivate a team’s desire to relocate if local authorities are reluctant to subsidize construction costs or facilitate stadium development. New stadium construction involves many legal issues—real estate, tax, public zoning, permitting and environmental impact—all of which must be vetted, debated and resolved before a new facility can be built. This Interdisciplinary panel will discuss the complexities of facility development as well as highlight the potential economic benefits and problems that can emerge throughout the process.

• Mark Conrad, Director, Sports Business Program, Fordham Gabelli School of Business
• Victor Matheson, Professor of Economics, College of the Holy Cross
• Irwin Raij, Co-Chair Sports Industry Team, Foley Lardner

10:00-11:00: Royalties in the Modern Music Industry

The Royalties Panel will address how the online and digital world has changed the way music is licensed, particularly how this change has affected songwriter, composer, and music publisher fees, and back-end royalties associated with music projects.​

• Jennifer Jenkins, Duke Law (moderator)
• Coe W. Ramsey, Brooks Pierce
• Sean Peace, CEO & Co-founder of Royalty Exchange
• Robert Monath, Robert Monath Law
• David Oxenford, Wilkinson Barker Knauer

11:00-12:00: Misappropriation of College Athletes’ Rights

This Misappropriation of College Athletes’ Rights panel will discuss the publicity rights of student athletes and the recent tension with the NCAA, publishers, and other parties regarding the use of athletes’ name, image, or likeness.

• Gabe Feldman, Director, Sports Law Program, Tulane University Law School
• Robert Carey, Hagens Berman Sobol Shapiro, LLP
• Stuart Paynter, The Paynter Law Firm
• Mark Conrad, Director, Sports Business Program, Fordham Gabelli School of Business

 12:00-1:00: Lunch – Provided by Q Shack

 1:00-2:00: The Importance of Personal Conduct Policies for Schools, Teams, and Leagues

In 2014 the NFL faced significant controversy regarding its handling of a number of highly publicized cases, including Ray Rice and Adrian Peterson. Criticism of the NFL often focused on the importance of fair and sensible personal conduct policies and procedures to protect the league, and its teams and members; the powers of the commissioner; violations of the CBA and violations of due process. This panel will focus on the importance of personal conduct policies and procedures for both professional and collegiate athletic organizations.

• Paul Haagen, Professor, Duke Law (moderator)
• Scott Andresen, Andresen & Associates
• Daniel Wallach, Becker & Poliakoff
• John Hogan, The Law Offices of John V. Hogan
• Todd Clark, Professor, North Carolina Central School of Law School

 2:00-3:00: Impacts of the Supreme Court’s Aereo Decision

A significant cord-cutting trend has been developing among television consumers, as audiences are increasingly viewing live or time-shifted television exclusively through the Internet rather than cable. Aereo offered just such a service, allowing customers to watch free, over-the-air broadcasts through their website. Specifically, customers accessed Aereo’s website to choose their desired programming — Aereo then tuned antennas to the relevant stations, and captured and retransmitted the signal to their customers. The Supreme Court ruled against Aereo — the services provided were too similar to that of a cable system.

This holding amounted to a clear victory for broadcasters; Aereo‘s impact on technology and innovation is more unclear. Which technologies are now infringing because they are also similar to a cable service? The court declined to discuss cloud storage and network DVR, yet they are increasingly ubiquitous in the lifestyles of the average media consumer. Join our panelists as they discuss the impact of the Aereo decision and where they see the future of media entertainment and technology heading. 

• Julia Ambrose, Brooks Pierce
• John Kivus, Wood Jackson
• Harry Cole, Fletcher Heald & Hildreth
• Brandon Huffman, Stevens Martin

 3:00-4:00: The Line Between Fantasy Sports and Gambling

In 2014, an estimated 41 million people played fantasy sports in North America. The recent growth of daily fantasy sports websites, such as FanDuel, has led to large financial investments from venture capital firms and partnerships with professional leagues and teams. Yet the leagues are currently fighting to prevent the legalization of sports betting in New Jersey, as they have in other states. This panel will discuss what separates fantasy sports from gambling and what the difference means for sports leagues.

• Daniel Wallach, Becker & Poliakoff
• Robert Raiola, O’Connor Davies, LLP
• Gabe Feldman, Director, Sports Law Program, Tulane University Law School

4:30 Reception: Duke Law Star Commons Mezzanine

The NFLRA & The NFL Playoffs

If you are unhappy with the officiating in the NFL playoffs this year blame the union—the NFL Referees Association. The NFLRA decided to use “all-star” crews, assigning the league’s highest rated officials to work playoff games. The obvious problem is that these crews haven’t worked any games together as a unit, and their ability to blend and communicate is causing problems.

The NFLRA rates officials during the year, and the highest graded individuals are selected to work the playoffs--but not with their regular season crew. How did this happen? Because this right was collectively bargained for by the union with the NFL during the 2012 labor negotiations.

For a detailed analysis of this decision, including the rules involved in the selection of officials, here’s a link to the piece in today’s Boston Globe by their fantastic NFL writer Ben Volin who follows in the footsteps of Greg Bedard and Will McDonough in this space.

The Mueller Report on Ray Rice and the NFL

I have an article on SI.com on the Mueller Report and what it means for the NFL, Roger Goodell and the Associated Press.

Oklahoma Courts are not the Field to Remedy a High School Football Referee Blunder

While there are some out there claiming that the recent “phantom flag” against the Dallas Cowboys was the right call, the majority of both fans and analysts (and not just those based in Detroit) are crying foul.  While the Lions will not get a replay of the game, the idea of replaying a game (or a portion of a game) due to a bad call is not unprecedented.  In some cases, the idea of a replay due to an official’s error makes its way to the courthouse.  The Oklahoma high school football playoffs were recently engaged in a clock-suspending standstill while a state court determined whether it had the ability to intervene in the aftermath of a grievous referee error.  Frederick A. Douglass High School sought the replay of either the final sixty-four seconds or its entire quarterfinal game against Locust Grove High School after the referees incorrectly negated a touchdown with a five-yard penalty that should have been assessed on the ensuing kickoff. 

Despite an apology and public admonishment of the mistake from the Oklahoma Secondary School Activities Association (OSSAA), many were left unsatisfied when the OSSAA concluded that a replay would not occur.  The OSSAA cited its concern for setting a precedent that allowed every on-field decision to be subjected to protest, appeal, and replay.

The Oklahoma City School District, on behalf of Douglass High, filed a lawsuit requesting a replay on the grounds that it was unreasonable for the OSSAA to not intervene after the referees admitted to not knowing the relevant penalty assessment.  As outrage mounted, District Judge Bernard M. Jones II issued a temporary restraining order, which postponed the impending semifinal playoff game involving Locust Grove.  Judge Jones noted, however, that the District faced a heavy burden to prove that greater injunctive relief should be granted.

Unfortunately for Douglass High and its supporters, precedent involving judicial intervention of high school athletics is not favorable.  Whereas NCAA rules permit replays in the face of serious referee error, there is no analogous high school provision.  Interestingly enough, the 2013 Oklahoma high school baseball playoffs were suspended for a month while a participating school tried to use state courts to challenge an ineligibility ruling made by the OSSAA. 

Ultimately, Judge Jones eliminated the possibility of a court-sanctioned replay after he found that the OSSAA had not violated or disregarded its policies in a manner that warranted injunctive relief.  In his order dismissing the claim, the judge emphasized that “it borders on the unreasonable” to believe that a court is “more equipped or better qualified than [the OSSAA] to decide the outcome of any portion of a high school football game.”  Moreover, Judge Jones reasoned:

"This slippery slope of solving athletic contests in court instead of on campus will inevitably usher in a new era of robed referees and meritless litigation due to disagreement with or disdain for decisions of gaming officials — an unintended consequence which hurts both the court system and the citizens it is designed to protect."      

The entire order can be read here.

Maybe as a sign of karmic intervention, Locust Grove was ousted from the playoffs after losing to Heritage Hall High School when the semifinal game was finally played. 

I can see why a judge would be reluctant to simply reverse a win or a loss for a game that has already been played, but if there is an admission of a bad call by officials, and that bad call substantially altered the outcome of a game, why put an absolute bar on replaying the game if the teams are able to accommodate?  Unfortunately, I have personally heard language like this from judges on more than one occasion when trying to get injunctive relief for student-athletes and schools.  “Counsel, it is not my job to make line-ups,” or “I am a judge, and not a ‘super referee.’”  I well recognize that participation in extracurricular sports is a privilege, and not a right, and therefore not accorded the same levels of constitutional protection; however, with an ever increasing amount of money coming into sports, and the benefits and value of athletic scholarships continuing to increase, the judiciary needs to revisit the idea that athletic participation may warrant intervention prior to the professional levels.

Hat tip to law clerk, Ben Barnett, for his assistance on this.

New Book: Careers in Sports Law

Readers of Sports Law Blog regularly come to us for advice on how to land jobs working in the field. Recognizing the great interest among law students and practitioners in our practice area, Professor Geoffrey Rapp and I have written a book on Careers in Sports Law.

We believe the book provides a realistic depiction of how to try to break into the sports law field. The book also provides some suggestions about what to consider when applying to law school and selecting law school courses.

For those of you interested in pursuing a career in sports law, we encourage you to consider purchasing a copy of the book or asking your college/law school library or career counselors to acquire a copy so that you can borrow it for long enough to read the chapters most pertinent to you,