Marvin Miller - The Most Significant Figure in Baseball in the Past 50 Years?

Professor Ed Edmonds

The following piece is written by Notre Dame Law School sports law professor Ed Edmonds, one of the best minds around on baseball and the law and founder of the Baseball Salary Arbitration website.

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Marvin Miller - The Most Significant Figure in Baseball in the Past 50 Years?

There have been no shortage of articles this past week honoring the passing of the legendary leader of the MLBPA Marvin Miller at age 95.  Many writers have noted that he was possibly the most significant figure in baseball over the past half-century.  I certain agree that he belongs in any conversation about that topic, and I point to an earlier post on this blog by Howard Wasserman regarding his place in sports law history.  I will not attempt to go through the compilation of Miller’s many accomplishments because so many of you know and teach about this on a regular basis. 

Let me take up one point that comes together with the thoughts of Murray Chass, the long-time writer for the New York Times.  By the way, if you do not regularly read Mr. Chass’s writings on Murray Chass . . . On Baseball, I highly recommend it.  Murray Chass posits that perhaps Miller can now be elected to the National Baseball Hall of Fame because the owners and other management personnel will not be subjected to his acceptance speech or because their hatred for the man who led the players to some freedom over their playing careers and significantly better pay and working conditions would not allow them to vote into the Hall a man who so rightly deserves to be there.  I only need to mention the additional shun shown Miller when the Hall opened its doors to Bowie Kuhn.

How ironic is it that Barry Bonds, Roger Clemens, and Sammy Sosa appear this week for the first time on a Hall of Fame ballot?  We are finally at the point so many have waited for to determine how the voters will actually deal with the steroid era candidates.  There will be a renewed conversation about the integrity of the induction process if Bonds, Clemens, and Sosa are allowed the honor of enshrinement.  My point is a simple one:  If anyone is really concerned about the “integrity” of the membership in the Baseball Hall of Fame, the exclusion of Miller needs to be addressed.  Marvin Miller’s bitterness over his non-election sparked comments from him that he would not have accepted the honor in his final few years.  Perhaps now everyone can agree to do not only the honorable thing, but an honest thing.  To not have a plaque to Marvin Miller in the National Baseball Hall of Fame is a grievous oversight.  Let’s hope that it is remedied soon.

Legal implications of the proposed ban on belly putters

I speak with David Dusek of Golf Magazine|Golf.com about the potential legal fallout of the US Golf Association banning belly putters and whether affected athletes, like Keegan Bradley, and putter manufacturers can sue. My take: any attempt to use the law to beat the ban would probably fail.

Here's an excerpt:

But McCann quickly adds that it's an unpersuasive argument. The USGA and the R&A would argue that they have decisive rule-making authority. They would also contend that it's reasonable for them to alter the rules, and the PGA Tour would argue that it's reasonable to abide by those rules. 

"Courts give leagues a tremendous amount of latitude in rules of play" he says. "It's one thing to say there is a new restriction on free agency and that it's not collectively bargained, or there is a salary cap change; it's another to change the rules of play. Courts are pretty deferential, and I think any type of lawsuit would be unlikely to prevail." 

McCann pointed out, however, that in the early 1990s, a group of golfers led by Bob Gilder joined Ping and won a favorable settlement from the USGA and the PGA Tour after Ping Eye 2 irons were banned. That club's square grooves had been ruled to have a performance-enhancing effect, but the players rebutted that argument by citing data that showed golfers using the club earned less than those who did not use it. The case ended in a settlement that allowed the club but required different grooves in future models. 

That precedent may seem to favor a player inclined to sue, but McCann cautions that the player would have to show statistics that indicated that belly putters were not providing an unfair advantage.

To read the rest, click here.

The ACC Sues Maryland over Exit Fee

The Atlantic Coast Conference filed a lawsuit in North Carolina state court on Tuesday seeking to enforce a $52,266,342 exit fee against the University of Maryland, following the recent news that the school was leaving the league to join the Big 10.  The exit fee represents a sum three times the conference's annual operating budget for the 2012-13 school year, and was approved by the ACC membership in September, with both Maryland and Florida State University voting against the measure.

The Washington Post has obtained a copy of the ACC's complaint, available here.  In the lawsuit, the conference alleges that Maryland president Wallace Loh -- a former dean of the University of Washington Law School -- has "refused to provide assurance" that the school would honor the exit fee.  The complaint also points to statements made by Loh back in September, in which he contended that the ACC's exit fee could be legally unenforceable. 

Indeed, Maryland can argue that the ACC's fee is an unlawful penalty under traditional contract law principles.  Specifically, courts will generally refuse to enforce liquidated damages provisions (like the ACC's exit fee) when the clause goes beyond simply compensating the non-breaching party for its anticipated financial injury and instead unfair penalizes the breaching party (I have summarized the law regarding the enforceability of liquidated damages provisions in the related context of college football scheduling agreements and coaching contracts in a law review article available here on pages 21-23).

Maryland can thus plausibly argue that the ACC's exit fee -- set to three times the entire conference's annual operating budget -- goes beyond mere compensation and rises to the level of an unlawful penalty.  The school can also point to the fact that the ACC's fee appears to be significantly larger than that imposed by any other conference in the country (the SEC notably has no exit fee).  Meanwhile, expect the ACC to argue that the total damage inflicted on the conference by a defecting university is so significant, and yet hard to precisely calculate, that a $52 million fee is within the realm of being reasonable.

I anticipate that Maryland and the ACC will ultimately settle the case out of court, likely for less than the full amount owed (as Missouri, Texas A&M, Syracuse, and Pitt each did following their recent defections to new conferences).  In fact, I suspect the ACC likely opted to file its suit on Tuesday in a favorable forum in hopes of obtaining some leverage in the ensuing negotiations, thereby preempting a potential suit by Maryland in a local state court.  You may recall that West Virginia University and the Big East conference both filed dueling lawsuits against one another in 2011 after the school announced it was departing for the Big XII, lawsuits that were ultimately settled earlier this year.  On the other hand, it is also possible that the ACC may refuse to settle for anything less than the entire $52 million in order to try to prevent other schools from leaving the league.

Others' thoughts on Marvin Miller

I don't have a whole lot to say about the life of Marvin Miller, who died on Tuesday at age 95, other than that Miller might be the most significant figure in sports law; in fact, by introducing true labor law in sports, he arguably invented the field. Ironic, given that he was not a lawyer.

Instead, have a look at this piece by Tim Marchman in Slate, which argues that Miller achieved success by taking incremental steps, waiting for the right moment to attack the big issues (he was union head for almost a decade before the reserve clause fell, although he recognized that as a winning issue immediately), and being fortunate enough to go up against generally incompetent people on the other side of the table.

Majoring in college sports

Last year, I wrote about a proposal by Sally Jenkins of the Washington Post to allow college athletes to major in their sport, building a (hopefully) rigorous curriculum around participation on the team. Now here is David Pargman, an emeritus professor of educational psychology (and a self-described sports fan) making a similar proposal in Monday's Chronicle of Higher Education (H/T: Deadspin). Like Jenkins, Pargman uses performing arts majors as the analogue. He goes one step further and lays out what the last two years of the program would look like, with the first two years spent in basic studies. The advantage of this, Pargman argues, is honesty--students, coaches, family members, and universities all can openly acknowledge exactly why these young men and women (mostly men) are on campus.

As I wrote last time, this is an interesting idea with some potential, but the devil is in the details. Ultimately, my deepest question is whether this solution addresses the real problem facing college athletics. Pargman argues that not forcing student-athletes to pick a major in which they are not interested--when they really want to study their sport and become a professional athlete--is "integral" to a good portion of the other travesties that surround college sports. But is forcing a football player to major in, say, "Leisure Studies" really integral to all the other problems? Or are the real problems that 1) many of these people have no interest in being in college or studying at all, regardless of what classes they can take or what they can declare as a major, and 2) universities and coaches are making boatloads of money because of the skills of these students and the students are not seeing a dime. Honesty in their major does not change that.

Which is not to reject the proposal out of hand. It is just to emphasize that the problems inherent in college sport go much deeper than this.

The Contractual Implications of Auburn Firing Gene Chizik

As many had predicted over the last few weeks, Auburn University announced on Sunday that it was firing head coach Gene Chizik just two years after he led the Tigers to an undefeated season and BCS national championship.  Because the school decided 17 months ago to give Chizik a contract extension through 2015, Auburn is now on the hook for an expensive buyout of its football coaching staff.  Specifically, Chizik is owed a total of $7.5 million -- to be paid in monthly installments of $208,334 for each of the next 36 months -- pursuant to the early termination clause in his contract.  Had he not been fired, Chizik would have received an additional $3 million over the life of his contract.  However, because many of his assistant coaches were also given guaranteed contracts (in some cases running through June 2014), the total cost of the buyout for Auburn will actually exceed $11 million.

Anticipating Chizik's likely termination, the Columbus (GA) Ledger-Enquirer explored Auburn's contractual commitments to its football coaching staff, as well as the general trends in football coaches' buyout provisions nationally, in a story last week.  Here is an excerpt:

A June 2011 release by Win AD stated of the coaches who were dismissed in 2010 or 2011 with buyout clauses written into their contracts, 70 percent of those buyouts were based on their remaining total or base salary.

The other 30 percent were guaranteed a partial take on their full salary -- either a certain amount of money per month or year remaining on the contract, a percentage of the remaining base salary, or one year's total or base salary.

Read more here: http://www.ledger-enquirer.com/2012/11/21/2285781/auburn-football-a-lot-has-changed.html#storylink=cpy

You can check out the full story (including quotes from myself and Rick Karcher) by clicking here.

Loss of NHL games with Gary Bettman as Commissioner

Updated for NHL's additional cancellation of games on Dec. 10, 2012: As of December 10, the NHL has cancelled 526 of the 1230 regular season games scheduled for the 2012-13 NHL season.  10.1% 9.5% of regular season games under Gary Bettman have been cancelled.  No other commissioner is close and even when they are combined, they aren't close.

Back in October, I tweeted about loss of regular season games by commissioner by percent and in the aggregate.  With the 2012-13 NHL season on the brink (as Nathaniel Grow explained), I figured it might be helpful to see some updated math.

Here are my calculations for NHL commissioner Gary Bettman:

NHL Season    Regular S Games    Games Lost

1992-93             384*                         0

1994-93           1092                          0

1994-95           1092                      468               

1995-96           1066                          0               

1996-97           1066                          0               

1997-98           1066                          0               

1998-99           1107                          0               

1999-00           1148                          0               

2000-01           1230                          0               

2001-02           1230                          0               

2002-03           1230                          0               

2003-04           1230                          0               

2004-05           1230                    1230                   

2005-06           1230                         0               

2006-07           1230                         0               

2007-08           1230                         0               

2008-09           1230                         0               

2009-10           1230                         0               

2010-11           1230                         0               

2011-12           1230                         0               

            Total:               22,781                1698 = 7.4% of games cancelled through 2011-12 season.

 

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2012-13           1230             To 12/10/2012: 526 games cancelled = 9.5% 

                                            

                                                                

                                             If 12-13 season lost: 12.2%

To date, 9.5% of games under Bettman's nearly 20 years as commissioner have been cancelled.  But if this season is cancelled, the number jumps to 12.2% of games.  That's a lot of games lost -- for owners, players and the numerous businesses (souvenir stores, restaurants/bar) dependent on NHL games being played.

Explanatory Notes and Assumptions

• NHL used 84-game regular season in 92-93, 93-94, and 94-95 seasons; in other seasons, 82-game regular season used. 

• NHL had 24 franchises in 92-93, 26 franchises from 93-94 to 97-98; 27 franchises in 98-99; 28 franchises in 99-00; and 30 franchises from 00-01 to present.

• Bettman became commissioner on Feb. 1, 1993.  By that date most of the 92-93 season had been played.  The Boston Bruins, for instance, had played 52 of their 84 regular season games.  Other teams had played about the same, give or take a game.  Assuming the 24 franchises had 32 games left, then Bettman was commissioner for 384 games in the 92-93 season (768 remaining games to be played by teams, divided by two since each game has two teams).

 

Context and Caveats

• It's important to stress that loss of games has many explanations, and not just who is the person occupying the commissioner’s job.  Clearly, the wishes of individual franchise owners and their level of unity in bargaining matter.  The willingness and ability of players’ associations to organize players and reasonably compromise with the league also matter.

• Evaluating a commissioner invites numerous metrics, including growth of revenue and popularity of sport.  Most would say Bettman has done well on those and other fronts, though expansion into southern U.S. states remains a questionable business strategy.

Key Take Away:

While context matters and while blame should be shared with owners and players, it's hard to escape these numbers when compared to other leagues' commissioners: Far more games have been lost under Bettman's watch than have been lost under commissioners of the NFL, NBA and MLB. 

In fact, no games have been lost under Roger Goodell’s leadership (6 years on the job), and just 2% of games have been lost under the leadership of David Stern (28 years on the job) and Bud Selig (20 years on the job). Those commissioners can certainly be criticized for many things, but they have succeeded in ensuring that scheduled games are played.  Games being played is obviously not only a concern for owners and players - the two groups who have the authority to resolve a labor dispute.  It's also one for those who have no formal say at the bargaining table: fans who buy tickets, networks that enter into broadcasting contracts to televise games, and apparel stores and restaurants that enter into business contracts assuming they will generate business from games being played.

If Bettman's games lost percent rises to 12%, it will be a percent of games much higher than all of the other commissioners combined -- and it's already higher as it is.