NJICLE Kickoff Classic

I am honored to be speaking at the New Jersey Institute for Continuing Legal Education's upcoming "Kickoff Classic" on September 24. The classic will focus on sports law controversies and CLE credit will be available. This link has the key details and information on signing up, and I hope you do. 

Specific topics in the classic include:

• Public relations disasters – what is an attorney’s role when the players and coaches

commit “fouls” off of the field

• Representing sports agents – legal issues involved in courting and signing with the NFL

• NCAA compliance – how to keep college players on the amateur side of the dividing line

• Betting on games - the current status of sports betting in New Jersey

• Concussions – the latest law on injuries and liability

• Gaming the system - O’Bannon vs. NCAA and should student athletes be paid for the

use of their names and likenesses in video games

Here's some more info:

NJICLE Kickoff Classic

Format/Skill Level:

Meeting

Location:

Rutgers- Livingston Campus
84 Joyce Kilmer Avenue Piscataway, NJ 08854

Date:

September 24, 2016

Time:

8:30 AM - 11:30 AM ET

Add to Calendar

NJSBA & NJSBA Section/Committee members are eligible for
special discounts - login to see your discounted rate for this program.
     

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Program time confirmed: 8:30 am. to 11:20 a.m.
Program Location: Rutgers Livingston Student Center, 84 Joyce Kilmer Ave, Piscataway.
Game time confirmed: 12:00 p.m.

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Presented in cooperation with the NJSBA Entertainment, Art and Sports Law Section, the NJSBA Young Lawyers Division and the NJSBA Senior Lawyers Special Committee

Click here to print the registration form. Seminar registration does not include football ticket. To purchase tickets, please email, fax or call customer service at 732-214-8500.

Moderator/Speaker:

Timothy D. Cedrone, Esq.  Chair, NJSBA Entertainment, Art and Sports Law Section Apruzzese McDermott Mastro & Murphy, PC (Liberty Corner)

Speakers include:

Anthony R. Caruso, Esq. Scarinci Hollenbeck (Lyndhurst)

Alan Milstein, Esq. Sherman Silverstein Kohl Rose & Podolsky, PA (Moorestown)

Paul Perrier Senior Associate Athletic Director/ Chief Compliance Officer, Rutgers University Athletic Department (Piscataway)

Elnardo J. Webster, II, Esq. Former football player (1988 to 1991), Rutgers University Inglesino, Webster, Wyciskala & Taylor LLC (Parsippany)

About the Program:

R U Ready for Some Football??!! Join NJICLE, some former Rutgers football players, the NJSBA EASL Section and the Young Lawyers Division as we create a new football tradition with the NJICLE Kickoff Classic! Hear directly from attorneys and some former players who represent athletes, agents, facilities and university football programs as they tackle some of the hottest legal issues in sports. Then, enjoy the Rutgers vs. Iowa game with your friends and family.

CLE Credits:
NJ CLE information: This program has been approved by the Board on Continuing Legal Education of the Supreme Court of New Jersey for 3.3 hours of total CLE credit.
NJ CLE:	This program has been approved for 3.3 credits (50 minute hour)
PA CLE:	2.5 substantive credits pending ($12 fee – separate check payable to NJICLE must be submitted at the end of the program)
NY CLE (t&nt):	3.0 professional practice credits

Click here to print the registration form. Seminar registration does not include football ticket. To purchase tickets, please email, fax or call customer service at 732-214-8500.

Third-Party Funding for Future PASPA Challenges?

In an article penned for Deadspin earlier this week, I laid out an accelerated timeline for legalizing sports betting nationally. The most accelerated path, as I explained in the piece, would be through future court challenges lodged by other states. In my opinion, the quickest path to legalized sports betting would occur through a combination of lobbying and litigating, with an emphasis on the latter. The more litigation pressure, especially if one state succeeds, the quicker the four major professional sports leagues would lobby Congress to repeal or amend the Professional and Amateur Sports Protection Act ("PASPA"), the federal law that prohibits states (like New Jersey) from authorizing or licensing sports betting.

But one of the major obstacles facing potential state challengers is one of "cost," that is, how can states--constrained by budgetary considerations--afford to finance a potentially multi-year, multi-million dollar litigation battle. After all, the final tab for New Jersey, as reported earlier today, was $5.1 million.

It turns out, however, that New Jersey taxpayers did not end up footing the bill--at least not directly. As exclusively reported by John Ensslin of the Bergen Record, the legal fees associated with the New Jersey sports betting case were paid by the state's gaming industry. As Ensslen's article explains:

Taxpayer funds are not being used to pay for the sports betting litigation, according to Leland Moore, a spokesman for the U.S, Attorney's Office. Instead, the legal effort is being funded through fees paid by the gaming industry to regulatory agencies, Moore said. Three-quarters of the costs are paid by fees paid to the Casino Control Fund of the [New Jersey] Division of Gaming Enforcement. An additional 25 percent comes from fees paid to the state Racing Commission, he said.

While taxpayers are "indirectly" footing the bill through a diminution in regulatory services (e.g., less money is available for other gaming regulatory functions), this financing model could serve as an example for other states contemplating a similar legal challenge to PASPA. For those states hampered by budgetary deficits or shortfalls, the New Jersey example illustrates that there are alternative approaches to funding.

The states are not alone in desiring sports betting: the largest stakeholder in this arena is the U.S. gaming industry, which across 40 states, generates nearly $73.5 billion in annual income. Certainly, those stakeholders would have a built-in economic incentive (and strong desire) to assist states in their quest to legalize sports betting by partially or wholly funding future litigation efforts. After all, legal sports betting would be an economic juggernaut to the gaming industry. It is estimated that legal sports betting in New Jersey would have generated over $1 billion in annual gross gaming revenues for New Jersey's racetracks and casinos. For a state like Mississippi, with more than three times the number of commercial casinos and the allure of the Gulf Coast, the potential economic reward is even greater. The gaming industry, if called upon, would likely embrace the opportunity to participate in this fashion, given the significant economic boost that legalized sports betting would provide to gaming venues. Call it a true "public-private partnership," if you will. 

Colin Kaepernick

I do not have much to say about NFL (non-starting) quarterback Colin Kaepernick's decision to not stand for the national anthem, since those who read this space know that I support his right to do this, without equivocation. I am heartened to see the NFL and the 49ers are, thus far, allowing his protests--although see the parenthetical in the first sentence. We have come some distance from 1968 and even 1996, when the NBA suspended Mahmoud Abdul-Rauf for one game for refusing to stand.

As for the criticisms, it is more of the same--"you're rich and successful athlete, so you have nothing to complain about." (so one can engage in political expression only when it furthers one's own self-interest?); "the flag is special and you disrespect those who served in the military" (considered and rejected twice by SCOTUS, including by the sainted Justice Scalia); "find another way to do it" (why should someone be forced to sacrifice their best forum?)

Finally, it is beyond laughable that Donald Trump is running for President on an explicit platform that the country is circling the drain, especially for African-Americans, but that an African-American who protests because of the same belief should leave the country. So does that mean that if America does suck, your choices are 1) run for President, 2) leave, or 3) shut up and vote for Donald Trump? That is an odd vision of free speech. But not a surprising one, given the source.

The Business of Amateurs: Suffering Student-Athletes and a Thriving NCAA

The NCAA frequently lauds amateurism and the ideal of the “student athlete.” But in contrast to this idyllic conception, college football is big business. And it is built on the backs of gladiators, football (and basketball) players who are often forgotten, disposable cogs in big-time college sports.

Such is the story Bob DeMars masterfully weaves in The Business of Amateurs. The former USC football player takes viewers on a tour of the college football machine—its gold-plated, garish facilities and its coaches with million-dollar contracts and reimbursed country-club fees.

On the other side of this excess, however, is the players’ penury. More than 80% of student-athletes live below the federal poverty line. While the fair market value of a Division I football scholarship is $137,000 and a basketball scholarship is $290,000, the average scholarship a student receives is $23,000. The players who never play after college (or have short professional careers) have their highest value when they are in college. But beyond educational expenses, the NCAA prohibits payment. In fact, the ongoing O’Bannon caseagainst the NCAA famously was triggered by the UCLA basketball star’s seeing a near-exact replica of himself in a video game, not receiving a penny from the resulting significant revenues.

If not money, what does the student get in return for filling the school’s coffers? Often, not an education. DeMars highlights UNC, with its fake classes, spoon-fed answers, and predetermined majors, which are selected not because of a student’s interest but because they fit the athletic schedule. Although NCAA rules prohibit student-athletes from spending more than 20 hours per week on their sport, they often spend double that. Yes, there are successful student-athletes. But as these individuals attest in the movie, they are the exception, not the rule.

Surely, the student-athlete at least gets the certainty of knowing they have a scholarship for four years and their health-care costs covered, right? Well, not really. DeMars recounts the players who have had scholarships revoked for being injured, as well as those who are ungraciously denied health-care coverage for injuries suffered during practice or games. Yes, even those practices in which (despite serious injuries) they are forced to participate. Perhaps in response to recent developments like the O’Bannon lawsuit and Northwestern unionization attempt, these practices are changing. But it should not be controversial to apply them to all student-athletes.

The greatest harms appear in the former student-athletes in their 40s, and even sometimes 20s and 30s: the ones addicted to pain medicine; those not able to hold a steady job; the alcoholics; those suffering from dementia; and those who are depressed and even take their own lives. DeMars talks with leading doctors who explain the science behind the degenerative “CTE” disease from repeated blows to the head, ALS (Lou Gehrig’s disease), concussions, and the 900-1500 “subconcussions” football players suffer each season.

As a result of these findings, the NFL has limited hits in practice. But the NCAA, ironically enough founded as an organization to promote safety, has not, “den[ying] that it has a legal duty to protect student-athletes.”

In the past few years, stories about student-athletes as impoverished cogs in the NCAA’s billion-dollar big business machine have spread. DeMars adds to these stories. And he offers a particularly sobering perspective by focusing on the former players whose lives have been upended—if not ended—by injuries. It doesn’t seem right for these gladiators to become a shell of themselves while the NCAA is exploiting their successors for billions. Reform is desperately needed. For everyone who benefits from the gladiators in the ring every week, that is the least we can do.

The Future of College Athlete Players Unions

With today marking the start of the new semester at Baruch College and my first day as a tenured, full Professor of Law, it is my great pleasure to release my newest law review article, "The Future of College Athlete Players Unions: Lessons Learned from Northwestern University and Potential Next Steps in the College Athletes Rights Movement."  The article will be published in Volume 38 of Cardozo Law Review.

  

Here is the abstract:

This article explores the future prospects for organizing Football Bowl Series football and Division I men’s basketball players after the National Labor Relations Board’s decision in Northwestern University.  Part I of this article provides a brief overview of U.S. labor law and introduces the unique labor dynamics of big-time college sports.  Part II explores labor organizers’ recent attempts to unionize the grant-in-aid football players on the Northwestern University college football team.  Part III describes potential strategies for unionizing alternative bargaining units of elite college athletes.  Finally, Part IV analyzes the interplay between unionizing college athletes and challenging the NCAA’s restraints on college athlete pay under Section 1 of the Sherman Act. 

And here is a link to the full article.

More sports rules and perverse incentives

Good stories in Slate and NY Mag about the zero-tolerance false-start rules in Olympic track, under which a racer is disqualified if he false-starts. This is the third version of the Olympic rule. Pre-2003, each runner was allowed one false start and was disqualified only on the second. In 2003, the rule was changed to give the entire field one false start, with a DQ imposed on whoever does the second false start. The current rule was enacted in 2010, making this the second Olympic games under that rule; we have seen two DQs this week, although not by any favorites. Usain Bolt wass DQ'd under the rule at the 2011 World Championships, the only Olympic or world championship final he has lost since 2008. French hurdler Wilhem Belocian was DQd earlier this week and was seen falling to the track in tears, but he had qualified seventh out of eight runners.

The 2010 rule change was designed, at least in part, to eliminate perverse incentives. Slower runners would intentionally false start, using up the "freebie" for the field. This forced faster starters and runners to be a bit more cautious, and thus to hesitate just a bit off the blocks, lest they pick up that second false start that would disqualify them. The new rule eliminates the intentional false start by eliminating the benefit, and thus the incentive, for the slower runner to do this.


This sounds a bit like the logic behind the Infield Fly Rule: 1) Runners were gaining a potentially big advantage (slowing down the fast starters/runners) through the intentional false start; 2) The faster runners could not really counter this move, except perhaps by not false-starting following the intentional freebie; 3) slow runners were intentionally acting contrary to expectations (you do not want to false start); and 4) the advantage offered a perverse incentive to the slower runners to intentionally false-start (although not a great one--the trick did not work very often). The second prong is weak--the faster runners could counter the strategy by not false-starting, something they could do more easily than runners can avoid a double play on an uncaught infield fly. But this is an interesting comparable situation that is worth including in my discussion of similarly justified rules in other sports.

This situation shows the role that aesthetics play in creating sports rules. Rulemakers could have disincentived intentional false starts by returning to the old rule of giving every runner one freebie. But that old rule created problems of multiple false starts by multiple runners, causing long delays, fan boredom, and television overruns. So the new rule, while harsher, is aesthetically favorable to the sport.

Finally, runners and rulemakers have minimized the effect of the harsh rule. All runners slow down their starts a bit to avoid the risk--Bolt, never a fast starter, has slowed his start even more, relying on his remarkable ability to dominate the last 30-40 meters (as he did in winning gold in the 100m this week). And the rulemakers narrowed what qualifies as a false start to exclude flinches and twitches, so a runner false-starts only if his feet leave the starting blocks or his hands leave the track.

Further Thoughts Midway Through RIO 2016

Despite all the naysayers, including me, and dire predictions, the Rio Olympics thus far seem to be rather successful. Michael Phelps and Usain Bolt surely will be remembered 84 years from now when Sports Illustrated opines as to who was the greatest athlete of the 21st Century. (Assuming SI still exists in one form or another.) And Simone Biles demonstrated how far women athletes have come in the last quarter century in demonstrating not just grace but strength and power on a par with any of her male counterparts.

Still, there have been a few low points. First, was the action of the Olympic Committee punishing non-offending Russian Athletes for the sins of their predecessors. Even worse was the despicable behavior of certain athletes from Arab countries manifesting everything the Olympics is not by refusing to either shake the hands of or even compete against Israeli athletes.

I cannot remember any prior games where coaches and athletes complained of being mugged, or of contracting illness from the polluted water venues, or of having to wear protection six weeks after the games to ensure they don’t pass on the Zika virus to their mates when they return home.

Speaking of which, pole vaulter Hiroki Ogita is certain to replace Eddie “the Eagle” Edwards as the athlete achieving the most fame for Olympic failure. In the first round of the competition, on his attempt to clear the bar at 17 feet, 3 inches, it seems Mr. Ogita brushed the bar off its moorings in a rather impressive fashion:

 

Let’s avoid the junior high humor and not even mention this is why Milton Berle gave up pole vaulting for a television career.