Beginning October 1, people will be able to shop for the expanded insurance coverage made possible by ACA. As part of its publicity effort, the Department of Health and Human Services is seeking to partner with the NFL and other sports leagues in publicity efforts. This does not sit well with GOP Sens. Mitch McConnell and John Cornyn, who sent this letter to Commissioner Roger Goodell.
The letter chastises the league for risking its "inclusive and apolitical" brand, expressing surprise that a pro sports league would take "public sides in such a highly polarized public debate." But I would reject the suggestion that the NFL, or any other sports league, is or ever has been apolitical. Putting aside the way leagues regularly engage in politics for their own direct benefit--antitrust, labor law, stadium funding. Leagues and teams regularly get involved in public issues--gay rights, women's rights, racial equality, war and the military. At least some of these are at least as contentious as ACA. In fact, as the letter acknowledges, the Boston Red Sox in 2007 participated in efforts to encourage enrollment in Massachusetts' program. The reason for this being different, they argue, is that ACA passed on a party-line vote using "legislative gimmicks" and "ridiculed political favors." Stated differently, ACA passed through the ordinary legislative process, but the process worked to our disadvantage. Thus, the law is illegitimate, so you, as an apolitical entity, should stay out of it.
There also is a hint of the paranoid. They express concern for "the Obama Administration's record of using the threat of policy retaliation to solicit support for its policies or to silence its critics" and helpfully tell the NFL to come to them if they are feeling threatened or coerced so the Senate GOP can protect them from the big, bad President. Of course, in emphasizing how unheard-of and wrong-headed the NFL's involvement would be , the letter could be read as its own threat designed to solicit support for the McConnell/Cornyn side in this debate. It actually is the classic bully trick--you better come to me for protection from that other who is threatening you.
Minggu, 30 Juni 2013
A Murder in Massachusetts: Aaron Hernandez
Hope you can pick up a copy of this week's issue and out the article.
Sabtu, 29 Juni 2013
MMA in Indian Country
An interesting piece on MMA in Indian Country (I had not realized the sport somewhat got its start there) and regulatory conflicts between states and sovereign Indian nations. My colleague Alex Pearl was a source for the story.
The Ends Do Not Justify the Means in MLB's Current PED Investigation
I am excited to have been invited to become a contributor to Sports Law Blog, and this is my first post, where I will look at topics that involve the intersection of legal ethics and professional responsibility with sports law. For this post, what follows are my opinions about and understanding of MLB’s current PED Investigation.
MLB and MLBPA have a Collective Bargaining Agreement, and they have a Joint Drug Prevention and Treatment Program that in part “provide[s] for, in keeping with the overall purposes of the Program, an orderly, systematic, and cooperative resolution of any disputes that may arise concerning the existence, interpretation, or application of this Program. Except as otherwise provided herein, any dispute arising under the Program shall be subject to resolution through the Grievance Procedure of the Basic Agreement.” The CBA and the Joint Program are neither MLB’s nor MLBPA’s: They are their mutually negotiated and agreed to contracts governed by federal labor law.
Rather than follow the Joint Program, MLB filed a straw-man lawsuit in Florida state court for what appears to be the sole purpose of obtaining discovery that it could not otherwise have obtained, which is per se an improper purpose, I believe. We can surmise that was the purpose, because in exchange for the information it wanted, MLB apparently settled with the primary defendant and indemnified him against claims by the players. Clearly, all MLB wanted was information, and its claim for tortious interference was simply a front. MLB’s billion dollar weight was thrown against defendants without apparent financial means, who would have been expected to cave and did. To date, while apparently leaking information to the media as to whom is going to be suspended or who is under suspicion, MLB has not followed any part of the Joint Program, or at least none that has been reported. Certainly, the Joint Program doesn’t provide for discovery lawsuits against third-parties, and, instead, it specifically requires that the “[Joint] Program shall be subject to resolution through the Grievance Procedure of the Basic Agreement.” If there is reasonable cause to believe that a player has violated the Joint Program, notice to and testing of the player is a required prerequisite, yet that has assumedly not occurred, because MLB has no such “reasonable cause,” which is presumably why it went on its fishing hunt in the first place. If MLB thought it needed additional avenues for discovery, it was free to negotiate that with MLBPA, yet it did not do so.
With this apparently extortionate power that comes with the Goliath versus David lawsuit, and with no one, not even the players or the Union, taking action to stop them, MLB may have interfered with the players’ right to keep confidential their medical information under both federal and state law, and the Florida state court has just ordered that such medical records be returned immediately to one of the deponents in the case. Moreover, according to news reports, MLB’s attorneys may have violated Model Rule 3.4 through their client’s payment for records and testimony, not to mention their client indemnifying the primary defendant, which should subject that ill-gotten information or testimony to evidentiary exclusion, and which may expose MLB’s lawyers to grievances before the attorney regulatory agencies of the applicable states. On the sidelines, MLB, either directly or through the teams, appears to be coercing the minor league players to roll over. They are not even members of the Union, unless they’re on the 40-Man Roster, so imagine how “cooperative” their cooperation really is, when they are being compelled to speak under what one may imagine is at least an implied threat of suspension or termination.
MLB filed its lawsuit for tortious interference with a collective bargaining agreement, when there is no such tort—they just made it up. The players’ contracts are with the teams, and if one wanted to make a tortious interference claim for those contracts, the individual teams would be the appropriate plaintiffs. Labor law is the exclusive province of the federal courts, yet MLB filed in state court, and to make dumb dumber, the Florida state court has noted that it probably lacks subject matter jurisdiction, yet it is waiting for one of the defendants (versus third-party deponents) to make a motion to dismiss on the basis of standing, when no one has standing, if the court lacks subject matter jurisdiction (in which case, the court is supposed to dismiss the case on its own).
What is clear in my opinion is that MLB’s foray into Florida state court is frivolous under Civil Rule 11 and other related sanctions tools. I am published on and edited the leading treatise on this topic. MLB seems to have filed a bogus lawsuit in the wrong jurisdiction against people who have no ability to fight back, it seems to have illegally or unethically obtained confidential information and testimony from them, it seems to have used this material to smear odd-numerous professional baseball players without ever making formal accusations against them, it seems to have leaked to the Press that it has already prejudged these players, whose rights to respond under the Joint Program have been rendered meaningless, and so on. If I was designing a frivolous case example for a law school text book, this would fit the bill, where there seems to be no good-faith basis in law or fact for the lawsuit, and where the lawsuit seems to have been filed for an improper purpose.
If the NCAA was behaving this way, we’d all expect its poor judgment, but MLB? What are they thinking? So if MLB is trying to litigate a bogus dispute in the wrong place, why are they doing that? You may recall that the NCAA wrongfully got information from a civil suit in Florida, too. How about MLB? Is it trying to secure and securing discovery by these wrongful means to use against the players? And where does MLB plan on using this information against players? In the context of its labor agreements before a labor arbitrator!
Sooner or later, either the players or the Union are going to file a federal court action to declare what is obvious, which is that MLB is constrained by the agreements it negotiated, that it cannot violate HIPPA and/or various state laws regarding medical confidentiality and privacy, that it cannot file frivolous lawsuits, and that it cannot taint evidence by unethically paying for it, if not also coercing or extorting it, and then still expect to be able to use it. The same result will happen if any of the defendants remove the current lawsuit to federal court, or if the players or the Union intervene and do the same.
The players who have already been smeared should have already intervened, as they have nothing to lose now, the Union should have intervened by now to protect the integrity of the process it negotiated and agreed to, and both the players and the Union should be seeking an injunction against MLB from using any of its ill-gotten information or any fruits from the same. There is no principled argument that can be made to allow MLB to use unethically or illegally obtained so-called evidence. And the larger public policy issue is that collective bargaining agreements between very sophisticated parties must be followed rather than eluded, especially when they are being eluded for apparently improper purposes. Certainly, the players and the Union should be seeking an injunction to compel compliance with the CBA and the Joint Program.
One of the things that trial lawyers think about in regards to investigating facts is whether we can get relevant information, but also whether we can do so ethically and pursuant to applicable law, and if so, whether we can use it, i.e., is it admissible or can we use it to gain admissible evidence? The NCAA forgot this in regards to the University of Miami, and MLB has forgotten this in regards to its current PED investigation.
MLB and MLBPA have a Collective Bargaining Agreement, and they have a Joint Drug Prevention and Treatment Program that in part “provide[s] for, in keeping with the overall purposes of the Program, an orderly, systematic, and cooperative resolution of any disputes that may arise concerning the existence, interpretation, or application of this Program. Except as otherwise provided herein, any dispute arising under the Program shall be subject to resolution through the Grievance Procedure of the Basic Agreement.” The CBA and the Joint Program are neither MLB’s nor MLBPA’s: They are their mutually negotiated and agreed to contracts governed by federal labor law.
Rather than follow the Joint Program, MLB filed a straw-man lawsuit in Florida state court for what appears to be the sole purpose of obtaining discovery that it could not otherwise have obtained, which is per se an improper purpose, I believe. We can surmise that was the purpose, because in exchange for the information it wanted, MLB apparently settled with the primary defendant and indemnified him against claims by the players. Clearly, all MLB wanted was information, and its claim for tortious interference was simply a front. MLB’s billion dollar weight was thrown against defendants without apparent financial means, who would have been expected to cave and did. To date, while apparently leaking information to the media as to whom is going to be suspended or who is under suspicion, MLB has not followed any part of the Joint Program, or at least none that has been reported. Certainly, the Joint Program doesn’t provide for discovery lawsuits against third-parties, and, instead, it specifically requires that the “[Joint] Program shall be subject to resolution through the Grievance Procedure of the Basic Agreement.” If there is reasonable cause to believe that a player has violated the Joint Program, notice to and testing of the player is a required prerequisite, yet that has assumedly not occurred, because MLB has no such “reasonable cause,” which is presumably why it went on its fishing hunt in the first place. If MLB thought it needed additional avenues for discovery, it was free to negotiate that with MLBPA, yet it did not do so.
With this apparently extortionate power that comes with the Goliath versus David lawsuit, and with no one, not even the players or the Union, taking action to stop them, MLB may have interfered with the players’ right to keep confidential their medical information under both federal and state law, and the Florida state court has just ordered that such medical records be returned immediately to one of the deponents in the case. Moreover, according to news reports, MLB’s attorneys may have violated Model Rule 3.4 through their client’s payment for records and testimony, not to mention their client indemnifying the primary defendant, which should subject that ill-gotten information or testimony to evidentiary exclusion, and which may expose MLB’s lawyers to grievances before the attorney regulatory agencies of the applicable states. On the sidelines, MLB, either directly or through the teams, appears to be coercing the minor league players to roll over. They are not even members of the Union, unless they’re on the 40-Man Roster, so imagine how “cooperative” their cooperation really is, when they are being compelled to speak under what one may imagine is at least an implied threat of suspension or termination.
MLB filed its lawsuit for tortious interference with a collective bargaining agreement, when there is no such tort—they just made it up. The players’ contracts are with the teams, and if one wanted to make a tortious interference claim for those contracts, the individual teams would be the appropriate plaintiffs. Labor law is the exclusive province of the federal courts, yet MLB filed in state court, and to make dumb dumber, the Florida state court has noted that it probably lacks subject matter jurisdiction, yet it is waiting for one of the defendants (versus third-party deponents) to make a motion to dismiss on the basis of standing, when no one has standing, if the court lacks subject matter jurisdiction (in which case, the court is supposed to dismiss the case on its own).
What is clear in my opinion is that MLB’s foray into Florida state court is frivolous under Civil Rule 11 and other related sanctions tools. I am published on and edited the leading treatise on this topic. MLB seems to have filed a bogus lawsuit in the wrong jurisdiction against people who have no ability to fight back, it seems to have illegally or unethically obtained confidential information and testimony from them, it seems to have used this material to smear odd-numerous professional baseball players without ever making formal accusations against them, it seems to have leaked to the Press that it has already prejudged these players, whose rights to respond under the Joint Program have been rendered meaningless, and so on. If I was designing a frivolous case example for a law school text book, this would fit the bill, where there seems to be no good-faith basis in law or fact for the lawsuit, and where the lawsuit seems to have been filed for an improper purpose.
If the NCAA was behaving this way, we’d all expect its poor judgment, but MLB? What are they thinking? So if MLB is trying to litigate a bogus dispute in the wrong place, why are they doing that? You may recall that the NCAA wrongfully got information from a civil suit in Florida, too. How about MLB? Is it trying to secure and securing discovery by these wrongful means to use against the players? And where does MLB plan on using this information against players? In the context of its labor agreements before a labor arbitrator!
Sooner or later, either the players or the Union are going to file a federal court action to declare what is obvious, which is that MLB is constrained by the agreements it negotiated, that it cannot violate HIPPA and/or various state laws regarding medical confidentiality and privacy, that it cannot file frivolous lawsuits, and that it cannot taint evidence by unethically paying for it, if not also coercing or extorting it, and then still expect to be able to use it. The same result will happen if any of the defendants remove the current lawsuit to federal court, or if the players or the Union intervene and do the same.
The players who have already been smeared should have already intervened, as they have nothing to lose now, the Union should have intervened by now to protect the integrity of the process it negotiated and agreed to, and both the players and the Union should be seeking an injunction against MLB from using any of its ill-gotten information or any fruits from the same. There is no principled argument that can be made to allow MLB to use unethically or illegally obtained so-called evidence. And the larger public policy issue is that collective bargaining agreements between very sophisticated parties must be followed rather than eluded, especially when they are being eluded for apparently improper purposes. Certainly, the players and the Union should be seeking an injunction to compel compliance with the CBA and the Joint Program.
Rabu, 26 Juni 2013
Aaron Hernandez Charged with Murder
I have a new SI column on the charges and how Hernandez might wage a defense strategy.
Senin, 24 Juni 2013
Breaking Down the San Jose vs. MLB Lawsuit
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| Image from SanJose.com |
As others have noted, San Jose faces an uphill battle in the lawsuit as MLB has a number of potential defenses at its disposal. The most obvious defense for MLB is its historic exemption from antitrust law. In a series of three decisions (Federal Baseball in 1922, Toolson in 1953, and Flood v. Kuhn in 1972), the U.S. Supreme Court has consistently held that federal antitrust law does not apply to professional baseball, thus apparently undermining the city's Sherman and Clayton Act claims.
In response to the antitrust exemption argument, San Jose's best hope may be to persuade the district court to follow a series of precedents from the early-1990s limiting the scope of baseball's immunity. Most notably, in the 1993 case of Piazza v. Major League Baseball, the Eastern District of Pennsylvania decided a suit similarly challenging MLB's relocation policies after the league refused to approve the proposed relocation of the San Francisco Giants to Tampa Bay. The Piazza court allowed the plaintiffs' antitrust claims against MLB to proceed despite the league's exemption by interpreting the Supreme Court's baseball trilogy as only protecting the reserve clause from antitrust scrutiny. Because major league players successfully defeated the reserve clause via arbitration and collective bargaining in the mid-1970s, the upshot of the Piazza holding was that MLB's antitrust exemption was effectively null and void.
However, as I argued in my 2010 law review article Defining the 'Business of Baseball': A Proposed Framework for Determining the Scope of Professional Baseball's Antitrust Exemption, the Piazza precedent is of dubious validity given that it was premised on several erroneous conclusions. Indeed, most subsequent courts considering the scope of baseball's antitrust immunity have disregarded Piazza, making it unlikely that the court in San Jose's suit will adopt such a narrow interpretation of the exemption in this case (unless, of course, the court - itself located in San Jose - is particularly motivated to allow the case to proceed to discovery and trial).
Meanwhile, although unlikely, it is also possible that MLB will decide not to assert its antitrust exemption in the case. The league has been extremely reluctant to rely on its exemption in recent antitrust cases, presumably for fear of triggering an adverse court decision limiting the scope of its immunity. Most notably, MLB did not assert the exemption as a defense in the Garber v. MLB lawsuit filed last year challenging baseball's television broadcast policies under antitrust law. Therefore, should baseball believe that it can successfully persuade the court to dismiss San Jose's lawsuit on other grounds (such as those discussed below), then the league may opt to forgo asserting the exemption in this case. However, given that control over franchise relocation is one of the two most important protections the league derives from the exemption (with the shielding of the minor league system from antitrust scrutiny being the other), San Jose's suit would appear to be a prime case for MLB to rely on its historic antitrust immunity.
In addition to the antitrust exemption, MLB can make at least two other potentially strong arguments in support of its motion to dismiss the lawsuit. Most significantly, the city of San Jose's standing to sue in the case appears to be tenuous at best. The city's complaint is based upon an option contract San Jose entered with the team in 2011, under which the Athletics have three years to purchase a parcel of land from the city for just under $7 million. However, the option contract in question does not obligate the Athletics to purchase the land, nor to relocate the team to the city even if the option were exercised. While A's owner Lew Wolff has consistently expressed his desire to move the team to San Jose, he has yet to formally commit to such a relocation, and has never suggested that he would be willing to move the team without MLB approval.
As a result, San Jose's suit poses a similar fact pattern as that litigated back in the late-1970s when the Los Angeles Memorial Coliseum first sought to attract an NFL team (following the Rams' move to Anaheim Stadium, but before the Coliseum reached its eventual agreement with Al Davis to move the Raiders to Los Angeles). Specifically, the Coliseum sued the NFL alleging that the league's relocation restrictions prevented the stadium from securing a new NFL team, thus violating antitrust law. The district court dismissed the case, however, concluding that the Coliseum lacked standing to sue. Los Angeles Memorial Coliseum Commission v. National Football League, 468 F.Supp. 154 (C.D. Cal. 1979) ("Los Angeles Memorial I"). In particular, the court held that because the Coliseum had not yet found an NFL team willing to move to the stadium, and because the league had not yet rejected any proposed relocation, there was not yet an actual case or controversy to resolve. It wasn't until Davis formally agreed to move the Raiders to Los Angeles, and the NFL officially blocked the relocation, that the Coliseum was able to move forward with its case (resulting in the so-called Los Angeles Memorial II litigation). Accordingly, given that Wolff hasn't definitively committed to moving the Athletics to San Jose, and because MLB hasn't formally rejected the proposed relocation, the court may very well follow the Los Angeles Memorial I precedent and conclude that San Jose lacks standing to sue.
Meanwhile, MLB can also argue in its motion to dismiss that San Jose's state law claims are preempted by federal law. In Flood v. Kuhn, the Supreme Court not only dismissed Flood's federal antitrust claims pursuant to baseball's exemption, but also his state antitrust claim as well. In particular, the Flood Court held that the regulation of professional baseball required national uniformity, thus concluding that Flood's state law claims were precluded by the Commerce Clause. Consequently, MLB will likely argue that, at a minimum, the Flood precedent requires that San Jose's claim under California antitrust law be dismissed (the league may also assert that some of the city's other state law tort claims -- its unfair competition claim in particular -- are similarly preempted, although that argument will likely be harder to win).
Finally, however, even if San Jose were to survive MLB's motion to dismiss, and the court allows the suit to proceed to trial, the city may still face an uphill battle in winning the suit. The Ninth Circuit Court of Appeals has held on two separate occasions that professional sports leagues' restrictions on franchise relocation do not automatically violate federal antitrust law. See Los Angeles Memorial Coliseum Commission v. National Football League, 726 F.2d 1381 (9th Cir. 1984) ("Los Angeles Memorial II"); National Basketball Ass'n v. SDC Basketball Club, 815 F.2d 562 (9th Cir. 1987). For instance, despite ultimately condemning the NFL's refusal to allow the Raiders to move to Los Angeles, the Los Angeles Memorial II court noted that several factors could potentially justify a league's decision to block a proposed relocation under antitrust law. These factors included: (i) an interest in protecting the loyalty of fans in the franchise's current home city, (ii) the maintenance of some reasonable territorial restrictions, (iii) the preservation of traditional rivalries, (iv) giving municipalities time to recoup their investments in local stadiums, and (v) maintaining a league presence in major television markets. While not all of these considerations will apply to the Athletics' proposed move, San Jose will ultimately have to convince the court that MLB's failure to approve the relocation was improper in light of the legitimate factors outlined in Los Angeles Memorial II, should the case proceed to trial.
Of course, the city probably does not intend to take the case all the way to trial. Instead, San Jose's litigation strategy likely hinges on surviving MLB's inevitable motion to dismiss and entering the discovery phase, at which point the city will have significantly increased its bargaining leverage over the league. If San Jose can get to that stage then its litigation strategy may prove fruitful. Given MLB's potential defenses outlined above, however, I suspect that the city will be unable to defeat a motion to dismiss the suit.
Update (6/27/13): Professor Ed Edmonds wisely notes in the comments that San Jose will also have to overcome the text of the Curt Flood Act of 1998 if it wishes to persuade the court to adopt the Piazza precedent limiting baseball's antitrust exemption to the reserve clause. As Professor Edmonds notes, the text of the act would appear to support a broad interpretation of the scope of the exemption.
Sabtu, 22 Juni 2013
Help Wanted: Current College Athlete to Join Plaintiffs
Where are we going? I offer big picture perspective, a solution, and immediate needs below:
Big Picture:
Joe Nocera of The New York Times takes a big picture approach to look at the impact the O'Bannon case will have on college athletics in this article titled "The Lawsuit & The NCAA." The theme continues to be, change is coming and the only question is how and when.
One Solution:
Advocating for paying college athletes, I wrote the following piece in The Boston Globe recently. Then, I offered a solution in an op-ed in The Chronicle of Higher Education by proposing the creation of a new NCAA division in this article.
Immediate Concern:
What's become apparent is that the class certification efforts--to include current college athletes as plaintiffs with former college athletes--is that Judge Wilken has indicated a willingness to certify IF a current college athlete is formally willing to participate as a plaintiff. While the plaintiffs asked if the individual could be anonymous, it appears that the answer is "no." Thus, the rights of future college athletes and the framework of this industry are seeking a courageous CURRENT student-athlete.
Andy Staples provided a great overview of the situation in Sports Illustrated with this piece titled "Current College Athlete Set to Become Face of Ed O'Bannon v NCAA." To summarize the requirements, the plaintiffs seek the following:
1. A current student-athlete in the sport of men's basketball or football;
2. Who starts at a school in either the ACC, Big 12, Big Ten, Pac-12 or SEC;
3. That gets significant screen time when his team's games are televised (i.e. a star);
4. Who has a pristine personal history;
5. Who is courageous, strong in his convictions, and intelligent.
6. And finally, someone willing to be the face of change in college athletics.
Up to the task?
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