Debating the Infield Fly Rule in Penn Law Review

In December, Penn Law Review published A Step Aside: Time to Drop the Infield Fly Rule and End a Common Law Anomaly, by U.S. District Judge Andrew J. Guilford and his law clerk, Joel Mallord. While there have been rumblings in many places against the Infield Fly Rule, this was the first full, sustained scholarly critique of the rule.

My response, Just a Bit Aside: Perverse Incentives, Cost-Benefit Imbalances, and the Infield Fly Rule, has now been published on Penn Law Review Online.

How Antitrust Law Could Reform College Football: Section 1 of the Sherman Act and the Hope for Tangible Change

Last spring, Rutgers Law Review held its annual symposium on the legal issues surrounding professional and college football.  I gave the symposium's keynote address, entitled "How Antitrust Law Could Reform College Football: Section 1 of the Sherman Act and the Hope for Tangible Change."

My keynote address is now available for download here, in article form.  The thrust of my speech is that if the antitrust plaintiffs ultimately prevail in the O'Bannon and Jenkins, it would enhance college football by leading to an allocation of resources that is more equitable for all stakeholder groups, including both the athletes and consumers.

Video and getting a call "right"

I have always been against instant replay, being one of those who enjoys the "human element" and the "flow" of the games. I recognize the countervailing argument for getting it "right" by available means. But this play, from St. Joseph's NCAA Round One victory over Cincinnati last night, calls into question what we mean by getting it "right." Cincy's game-tying dunk at the buzzer, initially called good, was waved off following video review. Beginning at the 2:00 mark, you can see the extreme slow-motion/frozen video that showed he still had his hand on the ball (pushing it down through the rim) when the red light went on.*

[*] Leave to one side the oddity that dunking the ball worked to the player's disadvantage in this instance, by requiring him to keep his hand on the ball longer than if he had shot a lay-up or dropped the ball through the hoop from above the rim (what players did during the NCAA's absurd no-dunking days from 1967-76).

But we only could see the "right" call via video slowed to a speed so far beyond the ability of the human eye and brain. Do we really need college basketball games to be decided by such super-sensory means or that establish correctness at a meta-physical level? Is it fair to say the refs got the call "wrong" initially, when the wrongness could be established only by this extreme use of video? And should we understand the "truth" of what happened by what we can perceive or what video reveals at that heightened meta-physical level?**

[**] Recall that the lawyers who successfully defended the LAPD officers in the Rodney King beating in state court did just this with that video: Slowing it down to the frame level so as to reveal movements by King that might have shown continued resistance, even if there was no way anyone could have perceived them. This strategy has only become easier with the advances in video technology.

Professor Michael Carrier reviews Indentured: The Inside Story of the Rebellion against the NCAA

Rutgers Law Professor Michael Carrier has authored the following review of Joe Nocera and Ben Strauss new book, Indentured: The Inside Story of the Rebellion Against the NCAA.

* * *

The NCAA’s Exploitation of Student-Athletes

Michael A. Carrier*

“Amateurism.” “Student-athlete.” Such phrases conjure the finest ideals. Sound body, sound mind. Top-notch educations and athletic contests.

But what if it’s all a façade? What if the powers-that-be neglect the “student” and exploit the “athlete”? What if amateurism is an empty phrase the NCAA hides behind in its embrace of commercialism on the backs of athletes?

These are the questions at the heart of Joe Nocera and Ben Strauss’s gripping new book Indentured. The authors rip the lid off the NCAA’s celebrated morals, weaving a complex—and sad—story of student exploitation, extravagant riches, and blatant hypocrisy.

NCAA football and men’s basketball are big business. The NCAA generates $900 million in annual revenues while coaches make millions and ESPN pays billions. Schools flee long-standing conferences to receive more money. Gleaming new football facilities boast full-size indoor practice fields and lounges with every possible amenity.

But this big business does not come from nowhere. It comes from the athletes, who put in 50-hour workweeks. It comes from “voluntary” practices that are “mandatory in everything but their name.” It comes when coaches push severely-injured players back onto the field and don’t allow them to see a doctor.

Students suffer not just physically but also financially. More than 4 of 5 football athletes on full scholarship live below the poverty line. But they are not allowed to eat university-provided food at any time other than three specified times a day. And they must pay out of pocket to treat their injuries.

The disconnect between the NCAA’s riches and the athletes’ poverty would have been jarring enough. But the authors heap insult upon injury in their methodical discussion of the 400-page rulebook the NCAA uses as a hammer or, alternatively, ignores.

The NCAA allows athletes to maintain a 20-hour week during football road trips by magically capping time related to a game event (such as travel, play, and team meetings) at three hours. It ignored its own rules (pretending amendments passed that did not) in signing a promotional deal with Pontiac. And it looked the other way to protect the “untouchable” John Wooden-led UCLA basketball team when a prominent booster arranged for food, clothes, and housing and provided players with cars, stereos, airline tickets, and money.

On the other hand, when the NCAA decides to punish a school, it pulls out all the stops. A USC coach was punished on the basis of “completely made up” witness testimony, unethical communications, and conduct deemed by a court to be “malicious.” UNLV’s Jerry Tarkanian found himself a target, as the NCAA threatened witnesses and used “largely discredited” testimony because they “really want to get him.”

In addition to vendettas, the NCAA has applied its rules in ways that ignore common sense and decency. A Mississippi State football player was suspended for three years for unknowingly receiving a $12 discount at a thrift shop. A University of Oklahoma baseball player lost his eligibility for “profiting” from a book he wrote detailing his struggles with brain and stomach cancer. The University of Nebraska received two years’ probation for covering the costs of books recommended (rather than required) by professors.

Today, the shackles are—ever so slowly—being loosened. The most powerful conferences have guaranteed four-year scholarships, enacted a concussion protocol, and agreed to allow schools to pay a few extra thousand dollars covering the full cost of attendance. And while the Northwestern football players’ attempt to form a union was not successful, Congress continues to look over the NCAA’s shoulder and antitrust litigation seeking even greater player compensation than received in the O’Bannon trial (payment up to the cost of attendance) is underway.

Joe Nocera and Ben Strauss have done a masterful job exposing the contradictions at the heart of a commercial NCAA built on the backs of impoverished student athletes. Though appearing to be a radical title for a book about college athletes, readers will walk away from Indentured shaking their head at just how unfair the system is.

* Distinguished Professor at Rutgers Law School, author of Innovation for the 21^st Century, co-author of IP and Antitrust treatise, and signer of Ninth Circuit brief on behalf of the O’Bannon plaintiffs.

Michael A. Carrier
Distinguished Professor
Rutgers Law School
217 North 5^th Street   Camden, NJ 08102
856.225.6380
Web  Book  Treatise  SSRN  @profmikecarrier

Drexel University: College Athletes’ Rights Conference

At Drexel University, the conference will begin Thursday, March 24 from 4-8 p.m., the evening before the NCAA Division I men’s basketball regionals, at the National Constitution Center, a national stage for dialogue about constitutional rights.  Starting at 5:00pm, keynote addresses will be delivered by the New York Times’ Joe Nocera, who will speak about the new book he co-authored, “Indentured: The Inside Story of the Rebellion Against the NCAA”; and Harry Edwards, PhD, on college athletes’ rights as civil rights. At 6:30 p.m., a panel on college athletes’ rights for the 21st century will include Taylor Branch (Pulitzer prize winning author, The Shame of College Sports), Ramogi Huma (National College Players Association), Kain Colter (pro football player with the Los Angeles Rams and College Athletes Players Association), Ed O’Bannon (lead plaintiff in O’Bannon v. NCAA) and Billy Hawkins (professor, author of The New Plantation), moderated by ESPN’s Kevin Blackistone.

The second day of the conference, Friday, March 25, from 8:30 a.m. – 5:30 p.m., will be held at Drexel’s Gerri C. LeBow Hall. It will include an address by Sonny Vaccaro, the former marketing executive for Nike, Adidas and Reebok; and an interactive dialogue lead by Jeff Prudhomme, vice president and fellow of the Interactivity Foundation; as well as panel discussions on challenging power dynamics, college athlete activism (Grace Yan & Nicolaus Watanabe, University of Missouri & Ann Pegararo, Laurentian University), rethinking player representation models (Richard Southall, University of South Carolina; Michele Donnelly, Kent State, Ivan Soto, Arena Football League Players Association) and helping college athletes access their own voices (Eddie Comeaux, University of California-Riverside; Ellen J. Staurowsky, Drexel).

The final day of the conference, Saturday, March 26, from 8 a.m. – 1:30 p.m., also will take place at Gerri C. LeBow Hall. A debate on whether or not the NCAA should be afforded an antitrust exemption will feature Marc Edelman (law professor, City University of NY and sport business writer, Forbes.com); Donna Lopiano (Sport Management Resources), Joel Maxcy (Drexel Sport Economist) and Andrew Zimbalist(Smith College Sport Economist). The conference will close with a panel on college athletes, the NCAA and due process. Panelists include Matt Haverstick(Kleinbard LLC & plaintiff’s attorney in Corman v. NCAA); Richard Johnson(plaintiff’s attorney in Oliver v. NCAA), Steven Silver (McBreen & Kopko and co-founder, The Legal Blitz) and Ben Strauss (New York Times).

Here is a link to registration site. Finally, more information about the conference and a full schedule is available here.

Penn Sports Law Symposium: "Sports in 2025"

On Friday, February 19^th, the 3^rdAnnual Penn Law Sports Symposium will be held in Philadelphia. The keynote speaker is noted NBA player agent Leon Rose and there will be introductory remarks offered by Jon Wertheim of Sports Illustrated.

The day will then be broken down into three panels:

Panel 1: The Anticipated Growth in International Markets and Publicly Funded Stadiums

1. Moderator: Ken Jacobsen (Practice Professor of Law at Temple University Beasley School of Law; Lecturer in Sports Law and Co-Owner of sports businesses/franchises)
2. Andrew Brandt (NFL Business Analyst at ESPN; Columnist for Sports Illustrated and TheMMQB.com; Director of the Moorad Center for Sports Law at Villanova University; Former Vice President of the Green Bay Packers)
3. Andrew Altman (2012 London Olympics Planning)
4. Randy Campbell (Executive Director and Head of Sports Facility Finance at Morgan Stanley)
5. Irwin Raij (Co-Chair of Foley & Lardner’s Sports Industry Team)

Panel 2: The Evolving Role and Legal Position of Daily Fantasy Sports
1. Moderator: Daniel Roberts (Writer at Fortune Magazine/Yahoo)
2. Marc Edelman (Baruch Law Professor; Expert in Sports and Gaming law)
3. Darren Heitner (Forbes; Lawyer, Writer, and Professor)
4. Alan Milstein (Lead plaintiff attorney in DFS class action; Partner at Sherman Silverstein)
5. Daniel Wallach (Nationally-recognized Sports and Gaming law attorney)

Panel 3: The Future of Amateurism and NCAA Compliance
1. Moderator: Karen Weaver, Associate Clinical Professor and Interim Program Director, Sports Management, Drexel University
2. Jim Corcoran (Heisman Trust)
3. Oliver Luck (Executive Vice President of Regulatory Affairs at NCAA; Former Director of Athletics at West Virginia University)
4. Warren Zola (Boston College Carroll School of Management Professor; Expert in Sports Law)
5. Dan Werly (Bleacher Report, Managing Editor of The White Bronco)

You'll note that there are four Sports Law Blog contributors who will be participating, Edelman, Milstein, Wallach and Zola, along with several friends of the SLB including Brandt, Heitner, and Werly. If you're interested in attending, here's a link to the conference website.

Triumph and Tragedy: A Lesson in Equipoise

The story of Jenrry Mejia, the first major league baseball player to receive a lifetime ban for taking Performance Enhancing Drugs, reads like a movie script. Mejia was just 17 when he was drafted out of a life of poverty in the Dominican Republic. He had never even thrown a baseball before the age of 15. As a boy, rather than pursue education, he worked full time shining shoes for $8 a day. He and his family were thrilled to receive the $16,500 signing bonus so he could start his career playing for the Dominican Summer League Mets in 2007.

Mejia made his major league debut in 2010, becoming one of the youngest players ever to make an opening day roster. By 2014, he had become the Mets closer and looked to be on the way to making the kind of money that dreams were made of back in the Dominican Republic. He was fun to watch, particularly when he would do his strikeout dance moving backward off the mound to end an inning.

Perhaps because he was rushed into the physically destructive role of throwing a baseball at top speed, Mejia continued to be plagued by injuries to his throwing arm. Twice he had been suspended after testing positive for steroids, obviously taken not to hit home runs but to get himself back on the mound. Then this past week, he tested positive for PEDs once again and, along with Pete Rose, became one of only two players banned from baseball for life.

The drug detected in Mejia was Boldenone Undecylenate, also known ironically as “Equipoise.” It is manufactured for use by veterinarians for the treatment of horses and cattle and is not approved for humans anywhere in the world. It works by promoting erythropoietin (EPO), the body’s hormone essential to the production of red blood cells. The more red blood cells, the higher oxygen carrying capacity, the longer one can work out, the sooner one can rehabilitate, or so the story goes.

The side effects of the drug are relatively minor: hair loss, acne, oily skin, increased hunger, though a rare few may suffer from liver or kidney problems. A major drawback of the drug is that its use can be detected by a simple urine test for as long as 18 months after injection.Why then would a major league player risk his career by taking Equipoise, particularly a prior offender who knows he is subject to random urine tests? Where would he learn of such a drug? How would he get it? One can only speculate that someone like Mejia, who knows firsthand what life is like in utter poverty, would do anything to get his body back in tune. Perhaps, like its name, the drug presented what Mejia thought was his only hope of counterbalancing the life he had left behind. What does he do now at the tender age of 27?

This piece is not about making excuses for Mejia’s poor choices. But his story is a tragedy that reveals much about the sometimes exploitive industry we know as professional sports. Surely, a system that prioritizes proper physical conditioning, medical treatment, and education for those like Mejia plucked out of a poor barrio as a kid is a better alternative than the arbitrary penal system in place today.