Is Kansas Softening on the Legality of Fantasy Sports?

With the 2012 NFL season kicking off this week, the Kansas Racing and Gaming Commission has given an early indication of a change to its view on the legality of fantasy football.

As I noted in my 2012 Harvard Journal of Sports and Entertainment Law article, A Short Treatise on Fantasy Sports and the Law, Kansas has traditionally been a high-risk state for operating fantasy football leagues based on language appearing on the state's Racing and Gaming Commission website that indicated "chance predominates over skill in fantasy sports leagues" and that "if a fantasy sports league has a buy-in (no matter what it is called) for its managers and gives a prize, then all three elements of an illegal lottery are satisfied."

However, as of this morning, this cautionary language no longer appears on the Kansas Racing Commission website. In addition, the Kansas Racing and Gaming Commission's Frequently Asked Questions page now omits any discussion about the legality of fantasy sports.

Although language on the Kansas Racing and Gaming Commission website is merely advisory, its recent removal in conjunction with the website's overall renovation signals a possible backing away from the state's earlier hard-line stance against fantasy football. Furthermore, it is interesting to note that two of the largest providers of pay-to-win fantasy football games -- CBS Sports and Yahoo! -- had allowed entries from Kansas, even despite the previous cautionary language.

Boston University Hockey and Institutional Control

It's not just the big-time football powers that have trouble with the behavior of their athletes. Boston University has issued a report into sexual assault charges against a pair of players on the hockey team in which it says "a culture of sexual entitlement exists among some players on the men’s ice hockey team, stemming in part from their elevated social status on campus."

The report was ordered up by the school administration after back-to-back incidents last season that led to sexual assault charges. Corey Trevino, a 2008 draft pick of the New York Islanders, pleaded guilty to assault. Rape charges against Max Nicastro, who is the property of the Detroit Red Wings, were dropped. Neither player remains in school.

The report says it doesn't attempt to judge the guilt or innocence of the players, but rather look into "whether inherent aspects of the program's culture and climate could have helped to foster the actions that led to the criminal charges." 

BU is an interesting case. The school doesn't have a football team; it eliminated the program in 1997. But that only confirmed what most everybody already knew: BU is a hockey school, with five NCAA titles, 21 appearances in the collegiate Frozen Four and the longtime domination of the Hockey East conference and the annual battle for Boston's bragging rights called the Beanpot. 

The report acknowledges hockey's special status on campus:

For those unfamiliar with Boston University athletic programs, the men’s hockey team, which has won a total of five national championships, has garnered substantial national recognition and is often among the top university ice hockey programs in the nation. Its visibility both on and off campus exceeds that of any other BU athletic program.

The report also noted that hockey is an unusual situation, in that players are often drafted before they attend college. That calls into question, perhaps even more than in other sports where a pro career might be assumed, the players' commitment to their academics. In its conclusion, though, the report hit the school for a lack of sufficient institutional control over its flagship athletic program.

There are a number of important structures and processes that are failing to achieve the full level and quality of oversight of the men’s ice hockey program that is expected and appropriate at a major university. These failings include issues of institutional control and governance structure at the highest levels, as well as shortcomings in leadership at the team level. Further, the absence of a few routine, transparent, and systematic processes that would establish clear expectations for players’ behavior has created a culture in which important aspects of oversight for our student-athletes’ behavior—beyond performance as a team member—has fallen inappropriately to the coaching staff.

The report said its outside investigator, Michael Glazier, chair of the Collegiate Sports Practice Group in the firm of Bond, Schoeneck & King, PLLC, "found no evidence of major NCAA violations."

Replacement refs, player safety, and causation

Warren and Mike each discuss the idea of NFL players staging a sympathy strike in solidarity with the NFL referees' union, with player safety as the purported hook. This also has been a recurring theme in media criticisms of the NFL--that the league, despite its purported concerns for concussions and player safety, is jeopardizing player safety by using replacement refs of questionable ability, and all over a relatively small-value labor dispute. Mike's e-mailer captures it when he insists that the NFL has an argument "the minute an NFL player is injured because of a bad call."

But this arguments suffers from serious causation problems. How exactly does a bad call "cause" the injury in any legal, or even logical, way? I do not see how using unskilled replacement refs creates a greater risk of injury or how replacement refs will cause more injuries with their terrible calls and non-calls. The likelihood of an incorrect call or non-call on a given play does not affect the likelihood of an injury occurring on that play. In other words, whether a penalty is called (correctly or incorrectly) after a play is over does not affect whether an injury occurs on the play itself. If DB A hits Receiver X coming across the middle, Receiver X may or may not be hurt on the play, whether or not a penalty is called on the play and whether or not a penalty should have been called; if DE B hits QB Y, QB Y may or may not be hurt, whether or not a penalty is called or should have been called. In no sense did the incorrect call or non-call "cause" the injuries on those plays.

Plus, even with the regular refs, injuries regularly occurred on plays in which no penalty was called, with the league coming in and imposing fines after the fact for certain conduct. Also, most "bad calls" that refs are going to make or not make it are unconnected to injury; that missed Offsides is not going to increase anyone's risk of injury. So, at best, we are talking about a small subset of calls and plays. And, of course, lots of injuries occur on plays in which no penalty should be called because no one did anything against the rules; they just played an inherently risky game.

The only conceivable argument is that the replacement refs will have less control of the game and will less accurately call certain dangerous conduct (late hits, hits to the head, hits on defenseless receivers), causing players to try to get away with more knowing that they will not be caught or penalized, resulting in more injuries. Several problems with this. First, it is necessarily cumulative; it will not allow for proof that one injury was caused by the refs, but only proof that a series of bad calls incentivized a given play on which an injury occurred. That is a tricky logical chain to navigate. Second, it is impossible to show that DB A wouldn't have gone high on the receiver even if he knew there was a greater chance of being penalized. So, again, we have the problem of a causal link between some bad call(s) and the injury itself.

Third, and most importantly, the argument assumes the replacement refs' awfulness will run in the direction of being more lax and giving players more incentive to engage in dangerous or injury-threatening play. But it may be just as likely that the refs will err on the side of over-calling penalties, imposing a disincentive on players as to how they play. If the replacements improperly call lots of unwarranted penalties on hits to the QB, defensive players are going to ease up on anything close, not wanting to risk a penalty. The result is bad football because the refs are just getting things wrong and because defenders are losing the opportunity to make plays. But the result is not a reduction in player safety--in fact, player safety would seem to increase, as QBs are going to take fewer hits.

At some level, player safety has become an unfortunate talisman for the players and for the media to trot out over everything. And there are lots of reasons not to want the NFL to allow less-skilled officials onto the field. But the leap to connect bad officiating to player safety is a long one that is not obviously warranted, at least not ex ante. 

Could NFL Players walk off field and argue Replacement Referees Pose an "Abnormally Dangerous Condition" under federal law?

A labor lawyer familiar with the NLRB emailed me tonight with an interesting twist to the NFL referee lockout (between the asterisks)

* * *

I was listening to DeMorris Smith of the NFLPA raise the possibility of a work stoppage in support of the locked out refs and noticed something no one has mentioned as of yet.

While it is true that the current collective bargaining agreement does contain a "no strike" clause, there is an exception that I think the NFLPA may be considering. 29 USC 143 permits a worker from refusing to work in an "abnormally dangerous condition.". The lead NLRB case in this issue is TNS 309 NLRB 1348 (1999). This type of argument crystallizes the minute an NFL player is injured because of a bad call.

* * *

The U.S. Court of Appeals for the Sixth Circuit enforced the NLRB's order in the TNS case, which involved employees at a nuclear plant who were exposed to unsafe levels of radiation and who walked off the job. The NLRB said the workers were legally entitled to do so under 29 USC 143 because of a good faith belief and objective evidence (including evidence of kidney damage and abnormal levels of uranium exposure) that they were being harmed.

John B. Flood--who, to be clear, is not the lawyer who emailed me tonight--has a law review article on when the NLRB determines whether there are sufficient abnormally dangerous conditions to justify workers walking off their jobs. In Revisiting the Right to Refuse Hazardous Work Amidst the Anthrax Crisis of 2001, 5 U. Pa. J. Lab. & Emp. L. 545 (2003), Flood writes that the NLRB decides each situation on a case-by-case basis, with "immediate, presently existing dangers" given particular weight.

You might say it's inconceivable that NFL players would walk off the job because of replacement referees. NFL players make a ton of money and everyone, other than the real refs, is excited that the 2012 season is about to start. The last thing NFL players want to do is stop everything - and not get paid their salaries.

I get that. But let's say the referee lockout goes on for weeks and during that time, some of the game's top stars are injured, at least in part because replacement refs made terrible calls or failed to make obvious calls? Or say the number of injuries goes way up under replacement refs? Would the idea of walking off the field remain inconceivable if players believed they were playing in . . . abnormally dangerous conditions? How would their families and agents and those who influence them feel?

The Presidential Race At 26.2 Miles

Image from Politix

Paul Ryan may not be the first politician to stretch the truth but he may be the first to fabricate his athletic achievement.

An interview last week between Ryan and Hugh Hewitt contained the following dialogue:

* * *

HH: Are you still running?
PR: Yeah, I hurt a disc in my back, so I don’t run marathons anymore. I just run ten miles or yes.
HH: But you did run marathons at some point?
PR: Yeah, but I can’t do it anymore, because my back is just not that great.
HH: I’ve just gotta ask, what’s your personal best?
PR: Under three, high twos. I had a two hour and fifty-something.

* * *

Much to the Republican Party’s dismay, those darn fact checkers revealed that Ryan’s best time in any marathon was over four hours. As Nicholas Thompson put it: “That’s the difference between running and racing.” Ryan recently recanted; the spin, of course, was that this all occurred some ten years ago and his memory was naturally fuzzy.

Anyone who has seriously run competitively, let alone run marathons, knows this explanation to be as shaky on the facts as the original assertion. The best times of any serious runner—like the best scores of any golfer—are firmly etched in one’s psyche. While I sometimes have trouble with my children’s names, I can remember my best high school hurdle times achieved more than 45 years ago. (Sigh!)

Can you imagine a golfer claiming to have shot in the low 70s when he had never broken 90?

It’s one thing to tell half-truths about Medicare, the country’s credit rating, or the closing of an auto plant; rabid supporters will never know the difference—or care even. But let’s draw the line at PERs, performance enhancing rhetoric.

New Sports Illustrated column: Ed O'Bannon wants to include Current Players in massive class action v. NCAA

As Warren Zola discussed earlier this morning, Ed O'Bannon's class action lawsuit against the NCAA could grow dramatically. O'Bannon has asked a federal judge to expand the purported class to include current D-I football and men's basketball players. Through a trust, these players would be paid, in all likelihood thousands of dollars. Put more bluntly, college players would be paid. You heard that right.

I have a column for Sports Illustrated on this and what it means for college sports. Hope you have a chance to check it out.

NCAA....it's Your Move.

With one strategic maneuver, the plaintiffs in the O'Bannon v. NCAA lawsuit have placed the debate of paying college athletes front and center. Filed in 2009, the suit initially sought damages under antitrust law, claiming that the NCAA and EA Sports conspired to pay student-athletes nothing for the use of the name and likeness in video games.

This past Friday, as the sports world prepared for the start of another exciting college football season, the attorneys for O'Bannon and other plaintiffs, sought to have their case certified as a class action. Additionally, based on information they have obtained during discovery, the plaintiffs now contend that the money derived from television, video games and other products that use athletes' names, images and likenesses be shared with players.

The lawyers "do not seek compensation to be paid to current student-athletes while they maintain their eligibility" but rather "that monies generated by the licensing and sale of class members' names, images and likenesses can be held in trust" until their college careers are over.

Make no mistake, the reverberations of this strategy in the United States District Court in California could radically alter college athletics forever.

[With news this big, I am certain that there will be detailed and thoughtful analyses coming soon from others....perhaps from "our own" Michael McCann....]