Keri on the Baseball Hall of Fame

The results of this year's voting for the Baseball Hall of Fame were released today, with no one elected. This is a story, of course, because Roger Clemens and Barry Bonds both were on the ballot for the first time. So along with Mark McGwire (who came up the first time last year) and others, we are in the throes of of the BBWAA trying to figure out what to do (or not do) with the great players from the steroid era.

Jonah Keri at Grantland and Jayson Stark on ESPN both have strong take downs of the writers for their voting and the overall process. I especially like and share Keri's argument that no one has ever come up with a good explanation why alleged steroid users should be kept out, but not the players who used amphetamines (which is to say everyone up to and into the 1980s) or corked bats or spitballs or other things that have always been done with the intent of "enhancing performance."

Oakley's Lawsuit Against Rory McIlroy and Nike

Oakley's lawsuit against Rory McIlroy and Nike, filed December 15, 2012 in the Central District of California, highlights the importance, and difficulties in drafting a right of first refusal in athlete endorsement contracts. 

As set forth in Oakley's complaint, it had the right to match any offer McIlroy received for "products the same or substantially similar to the Products," which were defined as "eyewear, apparel and accessories" as set forth in an exhibit to the agreement.  Nike made an offer for McIlroy to endorse a whole range of Nike products, without specifying the amount of the endorsement fees attributable to each of the products, including the Products covered by Oakley's contract.  Thus, when Oakley notified McIlroy that it was matching Nike's offer, it did not know the amount that had been offered for McIlroy's endorsement of the Products and relied on "average product endorsement allocations in the golf industry" to offer 20% of the dollar amount of Nike's package offer.  Notwithstanding Oakley's "match" of Nike's offer, McIlroy proceeded to contract with Nike, leading to the lawsuit.

The basic question: Did Oakley's "match" of 20% of Nike's total satisfy the matching right under the right of first refusal?

It is difficult to anticipate all the elements that might be included in an endorsement offer from a company seeking to wrest away an athlete and to cover all scenarios for a right of first refusal.  Nevertheless, a right of first refusal provision should attempt to define as specifically as possible each of the products covered by the right, the form for an offer from a new company, and each of the elements that must be matched for the matching right to be invoked effectively.

Are there certain elements that won't count for matching purposes?  Will only cash compensation count?  Are products specifically defined so that it is clear which products are covered, and which products are not subject to a matching right?  Are there specifications for how the competing offer must be structured, such as allocating endorsement fees among each category of endorsed product?

Each of these points can create thorny issues, as Oakley's lawsuit demonstrates.

The limits of video

All demonstrated here.

Penn State Rescue Blues: initial read on Corbett's Complaint

As the annual ritual of New Year’s Day bowl games came to a conclusion, Pennsylvania Governor Tom Corbett held a press conference that was, in a sense, curiously timed yet simultaneously fitting.  Corbett announced that the Commonwealth of Pennsylvania is suing the NCAA for antitrust violations stemming from the sanctions imposed upon Penn State in the wake of the Jerry Sandusky scandal.  Corbett intimated that sanctions (4-year bowl ban, $60 million fine, scholarship reductions, and vacation of wins) were unlawful, and imposed with intent to disadvantage Penn State both on and off the field.  The full complaint can be found here.  There are financial and political considerations at play here, and in no uncertain terms, the suit seeks to protect Penn State football.

Like any fact-intensive antitrust suit, many key issues are far from resolved, and much is still to be determined (for a full analysis of the merits of the suit, see Mike’s Sports Illustrated piece).  Also, see Marc and Howard's comments from earlier.   What is apparent from Corbett’s actions and from the face of the Complaint, however, is that college football possesses influence and leverage unmatched by any other sport.

The language of the Complaint readily concedes the influence of the sport, stating at the outset of the facts that “Division I college football is big business.”  Further, much of the State’s case centers on the alleged economic impact of the sanctions, including effects on the School’s revenue, on local businesses, and on jobs.  The economic effects will be determined in discovery if the case reaches that phase, and the actual impact beyond the fine and lost bowl revenue is questionable since Penn State will still play all of its home games for the duration of the penalty, and still has attendance figures that rate near the top in Division I.  But the point is clear: top tier college football programs are among the most valuable assets of state and local economies.  Like any valuable commodity, expect all stops to be pulled out in protecting what many consider Penn State’s most prized asset. 

I do not represent the NCAA (never have), and I have actually been directly adverse to the NCAA, and actively defend student-athletes, coaches, schools, and related companies in various NCAA enforcement proceedings.  That being said, I am troubled by various aspects of this Complaint as drafted.  Some quick thoughts on my initial read of the Complaint are below. 

• Unfortunately, Corbett claims that constitutional due process was owed to Penn State, and not given.  Neither Penn State nor any other NCAA member institution is owed such protections in the NCAA administrative law system (see my blog piece here attacking this notion).  Corbett makes an improper legal conclusion on this point in Paragraph 53 defining “ ‘traditional investigative and administrative proceedings’-i.e., due process”. 
• Two sentences that should not be back to back in this Complaint: “Penn State was forced to sign away its procedure rights, including an investigation of the charges against it, factual findings that NCAA rules were violated, a hearing before the NCAA’s Committee on Infractions, and an appeal of any adverse ruling.”  Followed by… “These punishments threaten to have a devastating, long-lasting, and irreparable effect on the Commonwealth, its citizens, and its economy.”  As someone who actively works on matters in the NCAA administrative law system, I can tell you that it could have been more devastating, more long-lasting, and possibly irreparable if Penn State did not sign the consent agreement and actually went through the infractions process.  The death penalty and punishment short of the same, but worse that the current Penn State sanctions, certainly could have resulted through the infractions process.  I am not saying that I agree with what the NCAA did here, but if I am a Nittany Lion, I am not so quick to assume that I would get a better deal going through infractions. 
• I believe that some programs in the NCAA get treated differently than others on the enforcement end of things.  However, Corbett is suggesting that there is some intent to bring Penn State down as if the NCAA was looking for a reason to do so, and jumped on the opportunity with the Sandusky scandal.  This is a stretch, which does not advance the ball to defeat a Motion to Dismiss, so Corbett may lose some credibility with the Judge on this one.
• Related to the above, Corbett is suggesting a conscious effort on the part of the NCAA to advance other member institutions at the expense of Penn State.  What schools would those be?  Competitors in the Big Ten that felt the weight of Penn State bringing down conference revenues?  Schools that could pick-off those players who wanted to transfer as a result of the sanctions?
• There is a great deal of ink devoted to all of the money spent in Pennsylvania in support of Penn State football, but nothing in the NCAA sanctions effects that income (the same amount of games are played by Penn State in the Commonwealth) so long as people keep supporting the program, which certainly was not a problem this year.  A death penalty that would only result if Penn State went through the infractions process would have had the negative effects that Corbett enumerates.  I have not yet had someone articulate for me how the current Penn State sanctions could be worse that the one year death penalty suffered by SMU.  A notion that Corbett suggests in Paragraph 73(b).
• Corbett admits that the revelation of Sandusky’s crimes “created a public relations crisis around its popular and respected football program for more than forty years suddenly found itself broken.”  Did the NCAA make it more broken with the subject sanctions?  Prior to the NCAA’s involvement, Corbett admits that “Penn State’s public image had been significantly tarnished.”  Did the NCAA make it more significantly tarnished with the aforementioned sanctions?
• There is not an argument in the alternative here.  That would look something like: “this is none of the NCAA’s business, so invalidate”, or in the alternative, “we did not get to go through the infractions process, so invalidate.”  Instead, the Complaint reads that “this is none of the NCAA’s business” and “we want our hearing that NCAA business gets”.
• What is to say that a drop in interest in the program from incoming recruits, current players, alumni, and others is not the result simply of Sandusky’s crimes and the allegations of cover-up in the greater football staff and University administration?  How will Corbett prove this up, particularly after spending multiple paragraphs of his own complaint acknowledging the damage to the program before the NCAA acted?

Interestingly, it seems that Corbett has long recognized both the importance and the politics of college sports.  He cited his desire to avoid distracting the football program as rationale for the timing of the filing.  Further, Corbett, who previously served as Pennsylvania Attorney General, has been widely criticized for his staff’s delayed reaction to the Sandusky allegations while serving in that role.  It has been posited, fairly or unfairly, that his deliberation was a tact employed to avoid upsetting Penn State supporters (and Corbett voters).  Incoming Attorney General Kathleen Kane has criticized Corbett, and has vowed to investigate the delay.    

To be fair, this phenomenon is not unique to Corbett and PSU.  We have seen this in other contexts, whether it be former SMU President and Texas Governor Bill Clements’ involvement in the School’s pay-for-play scandal, Utah Senator Orrin Hatch threatening to bring an antitrust suit against the BCS,  or the slew of litigation related to conference exit fees imposed on departing member institutions.  The fact remains that college football begets strong emotional responses, and often the accompanying litigation.  Interestingly, since Penn State is a public institution tax payers, many whom are assuredly Penn State fans, are going to foot the bill for both the litigation and the fine.

In handing down the sanction in the first place, the NCAA noted that criminal charges are generally outside the purview of its jurisdiction, but it was the administration’s lack of institutional control over the football program that triggered the response.  Essentially, sanctions that stemmed from an irrational reverence for the sport have now triggered litigation designed to protect the same.  Corbett alleges that the relationship between the sanctions and the sport is too attenuated, yet ironically, the case serves as a reminder that sometimes sports overshadow and often diminish more significant societal issues.  This is, perhaps, most evident in the realm of college football. 

More on Corbett v. NCAA

Howard blogged about Pennsylvania's lawsuit against the NCAA this morning.  For two other takes, see Marc Edelman's piece for Forbes and my piece for Sports Illustrated. 

Do not go gentle into that good night

The Commonwealth of Pennsylvania (with the support of lots of Penn State students, alumni, and leaders, but not PSU itself) is filing an anti-trust action against the NCAA, claiming it lacked the power to sanction the school for "tangential" things such as covering up criminal activity by a person with close access to its football program. Philly.com and what appears to be a PSU fan site both live-blogged Gov. Tom Corbett's press conference.

I know nothing about anti-trust, so I leave it to others to weigh-in on whether this has legs. I am surprised anyone associated with PSU or Pennsylvania wants to keep this thing alive even longer. But, here we go.

Update: Deadspin offers some analysis, including an embedded copy of the complaint.

Further Update: I just finished reading the complaint, which at 43 pages, 82 paragraphs, and one count offers a refreshingly "short and plain statement" for this type of case (compare the ridiculous tomes that passed for complaints in the Duke lacrosse cases). As I said, I know nothing about antitrust, so I really cannot speak to the merits of this lawsuit (the Deadspin writer I link to above is convinced the Commonwealth should and will win). But a few things jumped out at me.
   1) There really is no good actor in this case. The NCAA is a reprehensible organization, Penn State acted in a reprehensible fashion, and the Commonwealth happily benefited and encouraged it all.
   2) There is language throughout the complaint in which the plaintiff basically admits that the university is primarily a vehicle for operating a money-making football program, everything about the university revolves around that, and, essentially, Penn State is not Penn State if it loses its powerhouse football program. Everyone already knew this, of course, and its a legally significant fact that must be pled to show market harms in an antitrust case. Still, it is striking to see it in print. Relatedly, there is an odd blame-shifting in several places, in which the Commonwealth acknowledges that the PSU football program was out of control, but blames the NCAA for incentivizing it to be that way.

Nigerian sport newspapers

Nigerian press was one of the most outspoken and free from the African continent and contributed to the fight for the independence. In Nigeria are over 100 national, regional and local newspapers and they are written in English (the official language) and in other major spoken languages like are Yoruba, Hausa, Igbo and others. The Nigerian sport newspapers write about popular sports like football, basket, cricket, rugby and athletics.

The most important Nigerian sport newspapers are:

Complete Sports    
The Nation
The Guardian Nigeria
The Punch
The Vanguard
PM News
This Day
National Mirror
Nigerian Watch