Sunday, June 5, 2016

Muhammad Ali and the Law

Some law-related thoughts following the death of Muhammad Ali.

Ali's direct contribution to U.S. law is the Supreme Court decision (in a case captioned Cassius Marsellus CLAY, Jr. also known as Muhammad Ali) reversing his conviction for refusing Army induction. It was a per curiam opinion, decided on fairly narrow grounds, so nothing that would become canon or significant precedent. Ali had sought a conscientious-objection exemption, which at the time required that the person have a sincere, religiously grounded objection to war in any form. Although a hearing officer found all three elements satisfied and recommended to the Appeal Board that his status be recognized, the Department of Justice wrote a letter to the Board recommending rejection of status, based on DOJ's purported findings that Ali failed to satisfy any of the three elements. The Appeal Board denied c/o status, disregarding the hearing officer's recommendation and without explanation, although the only other available basis was the DOJ letter. Before the Court, however, the government conceded that Ali's objection was sincere and religiously based. That brought the case within precedent holding that when the basis for a selection-service (or any other government) decision is uncertain but some possible bases are unlawful or erroneous, the entire decision must be vitiated. Rather than speculating whether the Board might have relied on the one remaining basis (the objection not being to war in any form), the Court rejected the Board's decision in toto. Justice Douglas concurred; he argued that the evidence showed Ali objected to all but Islamic war against nonbelievers, a "matter of conscience protected by the First Amendment which Congress has no power to qualify or dilute" by limiting c/o status only to those who object to all war in all forms. Justice Harlan concurred in the result, concluding that the DOJ letter could be read as claiming that Ali's assertion of C/O status was untimely, an error that called for reversal under the same line of cases as the majority relied on. The inside-the-Court workings leading to the decision were the subject of the otherwise-silly Muhammad Ali's Greatest Fight.

Ali is lionized for this stand, often through the modern laments about professional athletes refusing to take political stands or become politically involved the way Muhammad Ali did. But this has always seemed unfair. Ali was not lionized at the time. His actions were unpopular with the press and much of "mainstream" America (which did not like Ali to begin with, regarding him as an uppity loudmouth). The exception was African-Americans and young anti-war activists on college campuses. He was stripped of the heavyweight title and denied a license to fight in any state, most importantly New York (Madison Square Garden remained the center of the boxing world), costing him 3 1/2 years at the prime of his career. Although ultimately vindicated by SCOTUS, it came at tremendous cost to his career. Modern athletes asked to take political stands almost certainly do not face similar exile from their sports. But to normalize Ali* as the expectation for high-profile athletes seems unfair, a burden we do not place on other people, even other famous people, anywhere else in society.
[*] The other person forwarded as the aspiration is Jackie Robinson. But Robinson was somewhat forced to take a stand by circumstance--being the first African-American player in modern baseball made him inherently political. And the abuse Robinson took no doubt took a psychological and physical toll that contributed to him dying at age 53.
Case in point from the Daily News, extolling Ali for "offer[ing] a roadmap for today’s athlete to be an activist," while 1) eliding that in 1967, this columnist almost certainly would have been lining up to excoriate Ali for talking to much and dodging the draft, and 2) perpetuating the idea that the only true activist is the one who sacrifices millions of dollars and the prime of his career, something we ask of no one else.  The Big Lead provides a good critique. At the same time, it understates the point in saying "[t]here are few, if any, athletes who can match Ali’s legacy fighting for social issues. That’s what made him such an important figure." Ali's legacy is, in part, a unique product of circumstances and initially unlawful action by the United States. That is why no one can match it.

Update: This Slate piece goes into detail on a lot of these themes, including more background on DOJ's efforts to influence the Appeal Board and on the prosecution, which were influenced by congressional and administration pressure.

Monday, May 23, 2016

The Notorious RBG & Tom Brady

If you're a fan of the New England Patriots, or believe the NFL has expanded the power of the commissioner's office illegally, you have yet another reason to believe in the wisdom of Supreme Court Justice Ruth Bader Ginsburg.

Tom Brady's appeal to the 2nd Circuit Court (filed today) requires 7 of the 13 judges to conclude the case requires further scrutiny. If they do authorize an en banc hearing, 8 out of 14 judges will need convincing the decision was extraordinary, with wide-ranging implications for parties other than Brady and the NFLPA.

While the 2nd Circuit typically respects three-judge panel decisions, because the lone dissent vote was cast by Robert Katzmann, the chief justice of the entire 2nd Circuit, there appears to be a greater chance than usual to grant an en banc hearing. A decision on an en banc hearing should be released by July 4th. If granted, Brady's suspension will be stayed until a final ruling. If denied, he and the NFLPA have a right to appeal to the Supreme Court.

Brady and his legal team would likely ask the 2nd Circuit for a stay (suspension of his punishment) until the Supreme Court decides on whether or not to hear the case. The Supreme Court's decision will rest on whether there are critical labor law issues, impacting parties well beyond football, needing a clear resolution. The 2nd Circuit has the right to reject that appeal, reinstating the four-game suspension for this season. Finally, as one last Hail Mary, Brady could ask the Supreme Court for a stay until they decide whether to hear the case.

If the 2nd Circuit denies a stay request, there is one final person who determines IF Brady's receives a stay while the Supreme Court decides? The Supreme Court justice assigned to the 2nd Circuit, Ruth Bader Ginsburg. And what does the Notorious RBG think of dissenting opinions?

"Dissents speak to a future age. It's not simply to say, 'my colleagues are wrong and I would do it this way,' but the greatest dissents do become court opinions." ~ Justice Ruth Bader Ginsburg.

Monday, May 9, 2016

Adding to list of summer sports law programs...Florida Coastal School of Law

As we blogged about last month, there are many great summer sports law programs---including at the University of Oregon Law School, the University of New Hampshire School of Law and Case Western Reserve Law School. Another great program can be found at Florida Coastal School of Law. It will run from May 16 to June 24. Be sure to check out the link for all of the details.

Tuesday, April 26, 2016

Delayed Justice: Jury verdict in "The Hillsborough Disaster"

The top Sports Law story in the world today?

No, not the awful ruling by the Second Circuit reinstating the suspension of Tom Brady for, more probably than not, conspiring to deflate a few footballs contrary to the laws of physics.

A far more significant event occurred across the pond where justice was actually served.

After two years of hearing evidence, a jury in Liverpool has found that soccer fans were “unlawfully killed” in what became known as the Hillsborough Disaster in 1989. The event was a match between Liverpool and Nottingham Forest at Hillsborough Stadium. Police and stadium personnel had set up pens without adequate turnstiles to prevent fans from confronting one another. The result was chaos as 96 died from crush injuries and 796 lay injured. Originally, the authorities blamed the fans and circulated false stories about individuals acting in a manner justifying police actions.

The jurors concluded the fans were in no way responsible for the incident and that the police, stadium personnel, and emergency responders were entirely to blame for the tragedy. When the verdict was announced, tears were shed and those in attendance rose and applauded the jury.

Justice may have been delayed after nearly 30 years but it was not denied. The same cannot be said for what happened at Foley Square in a case of far less importance to the world of sports, since it was literally, like the show Seinfeld, about nothing.

Tuesday, April 19, 2016

University of New Hampshire Summer Sports Law Institute



This summer at the University of New Hampshire Durham campus we will be offering 4 outstanding sports law courses--taught by leading experts--as part of our 4-week UNH Law Summer Sports Law Institute from May 23 to June 17. The UNH Law Summer Sports Law Institute is part of the highly-acclaimed UNH Law and Franklin Pierce Center for IP's Intellectual Property Summer Institute. Here is more information on the courses:


Week 1, May 23 to 27 

NCAA Division I Legislation and Compliance, taught by Professor Katherine Sulentic, the Associate Director of Enforcement on the NCAA enforcement staff and Chair of the Academic Integrity Unit. This class is ideal for those who intend to practice law in the college sports industry and those who seek a mastery of NCAA compliance and enforcement issues.








Week 2, May 31 to June 3

Sports Law and Investigative Reporting, taught by Professor B.J. Schecter, Sports Illustrated's executive editor and editor of Campus Rush, and me. This class is ideal for law students and attorneys who want to gain a better understanding of journalism and investigative reporting and for journalists who want to gain a better understanding of the legal system.








Week 3, June 6 to 10

Fantasy Sports and Gaming Law, taught by Professor Daniel Wallach, a shareholder at Becker & Poliakoff, P.A. and a leading commentator on all things legal and business related to the fantasy sports and gaming industries--Professor Wallach is the gaming law guru. This course is ideal for those who want to gain a better understanding of the growing and transformative body of law in the fantasy sports and sports gaming industries--two of the fastest growing industries.







Week 4, June 13 to 17

Sports Ethics and Bioethics: Playing Fair and the Law, taught by Professor Alan Milstein, a shareholder of Sherman Silverstein and Chairman of the Firm's Litigation Department and also a leading commentator on sports law and bioethics and the law. Professor Milstein has litigated on behalf of Allen Iverson, Carmelo Anthony, Eddy Curry, Allen Houston, Maurice Clarett and other sports figures. This class is ideal for those who want to learn more about connections between sports, law, health and bioethics. You will hear first-hand from the attorney who represented Eddy Curry in his DNA test dispute with the Chicago Bulls.







A few quick but important items:
  • Each class is 1 credit, at a cost of $1,370 ($1,233 for NH residents), and each class is open to law students, attorneys, compliance officers, graduate students, journalists, businesspersons and many others. You can take all or any of the courses.
  • For those coming from out of town, housing and meal plans are available at a very low cost.
  • You can take the class physically on the UNH Durham campus or virtually on the UNH Concord campus.
  • If you're interested in taking a class for credit, click here; if you're interested in taking a class but not-for-credit, click here.
  • New Hampshire--which Politico Magazine recently ranked as the #1 state in terms of such factors as education, health, income and employment--usually offers amazing weather over the summer and there are tons of fun things to do while you're up here.
  • If you have any questions, shoot me an email at michael.mccann[a]law.unh.edu. Hope to see you this summer!

Oregon Law Summer Sports Institute


I'm excited to be back teaching in the Oregon Law Summer Sports Institute, which will run from July 6 to August 5, 2016 in Eugene, Oregon. I'll be teaching on the intersection between media law and sports law--including in the context of Deflategate--and I'll be presenting on NCAA legal issues as well.

Run by Oregon law professor Robert Illig, the Oregon Law Summer Sports Institute is a terrific program and includes a wide variety of sports law classes and outstanding faculty members. Be sure to check it out.

Great Lake Sports and Entertainment Law Academy

If you are interested in studying sports law, check out the Great Lake Sports and Entertainment Law Academy, hosted by Cleveland-Marshall College of Law and Case Western Reserve University School of Law in Cleveland, Ohio from May 16 to June 3. It is led by the legendary Peter Carfagna and top professor Craig Nard, and the program offers an impressive list of courses.