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.

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.

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.

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.

Not an infield fly

On Sunday, Tigers second baseman Ian Kinsler* intentionally failed to catch an infield pop-up with a runner on first and none out, in order to get a force out at second base on a speedy runner at first, replacing him with the batter, a slower runner. (Video in the link). After some initial confusion, the runner at first was called out and the batter was on first base.

[*] Apropos of nothing, Kinsler is Jewish, so this ties back to the ongoing fascination with the presence/increase of Jewish athletes.

Some comments after the jump.

• The Infield Fly is not involved here, despite the initial shouts from the announcers (more on that below), because there were not force outs in effect at multiple bases. That rule is designed to prevent a double play on the stuck base runners (as opposed to a base runner on the batter running to first base). Absent that risk, the IFR does not control. Instead, R. 5.09(a)(12) (also known as the "trapped ball rule") prohibits an infielder from intentionally dropping a ball with a force out in effect at any base, although the rule does not apply where the infielder allows the ball to drop to the ground untouched.
• It is not clear where the confusion came from initially. The only possibility is that the first base umpire believed Kinsler had touched the ball and intentionally dropped it, although the video makes clear that the ball fell to the ground untouched. But the umpires conferred and got it right.

• This is the same play that originally triggered the creation of what became the infield fly rule in 1894. Hall of Fame shortstop John Montgomery Ward pulled the same move in an 1893 game order to replace a runner on first with the batter, who had the "speed of an ice wagon." Decrying the deception, trickery, and poor sportsmanship (in 19th century conceptions) the play reflected, baseball officials outlawed the play in 1894. Over the next decade, they came to realize that the problem was this play being made when there were two force outs in effect and the defense could turn a double play; what became known as the Infield Fly Rule evolved in that direction.

• Critics of the IFR (most recently Judge Guilford in Penn Law Review) point to this situation to show that baseball otherwise tolerates players intentionally not catching balls in search of greater advantage. My response is that the cost-benefit disparity is not nearly as great, since the defense still only gets one out in this situation (as compared with two outs when there are multiple forceouts, and thus the IFR, in effect). As a result, the incentive to try this play is not as great, given the relatively marginal benefit of exchanging individual base runners, the relative rarity of genuinely wide disparities in speed, and the deemphasis on base-stealing in our advanced-metrics times. Part of the reason Kinsler's play will draw attention is that infielders do not try this all that often, because the benefit is typically not worth the risk.**

[**] A batting team has a run expectancy of about half-a-run from having a runner on first and one out (meaning it scores an average of .5 runs from that situation to the end of the inning); that number does not move dramatically with a faster runner.

• Announcers are clueless about baseball's rules. The Astros announcers initially believed the umpire had called Infield Fly, downshifting into a discussion of why that rule should not apply here. The Tigers announcers recognized what Kinsler was trying to do, but then started talking about how he did not "sell" the play well enough, ignoring (or unaware) that because he never touched the ball, he did not have to sell anything.

• Although this is not an infield-fly situation, watching the play illustrates how likely a double play would be in that situation absent the rule, at least on balls hit to this area of the field. Watch the play--see how the ball falls at Kinsler's feet, takes a small bounce, and comes to a rest at his foot; see how easily Kinsler picks up the ball and flips it softly to second. It is easy to imagine, in an infield-fly situation, a fielder picking this ball up and making a hard throw to third, followed by a relay to second that produces a double play, all before the base runners can even begin moving. Having the IFR means we generally cannot test the actual likelihood of the double play that the rule seeks to prevent; a play like this gives us a little bit of an idea.