"Pros or Cons" Thoughts For The Modern "Sports Attorney" - Part IV

Sports Law Blog is publishing a 5-part series on the practice of sports law.  The series is co-authored by Peter Jarvis, a legal ethics and professional responsibility attorney with Hinshaw & Culbertson, LLP in Portland, Oregon and Jason Davis, a California attorney currently residing in Seattle, Washington.  These posts will appear on Saturdays.  First post can be read at this link, the second at this link and the third at this link.  Here is the fourth:

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"Pros or Cons" Thoughts For The Modern "Sports Attorney"

Authored by Jason A. Davis, Esq. and Peter R. Jarvis, Esq. (all rights reserved)

( jason.a.davis.esq@gmail.com, @JasonDavisEsq1 & pjarvis@hinshawlaw.com)

(ARTICLE #4)

The Lateral Pass (Association and Networking)

The quarterback throws, the running back runs, and the kicker kicks. Each member of a team serves a distinct and valuable purpose. Although a sports attorney may at times need or be tempted to wear a number of different hats, it is important to remember which hats are the most important, which are necessary, and which are problematic.

In our continuing hypothetical, Mega Star's requests of Attorney Al include the organization of Mega's motivational speaking business and the filing of Articles of Incorporation for Mega's motivational speaking business in Delaware and legal advice in connection with Mega's purchase of a vacation home in Florida.

As a first question, one might consider whether Al already has the legal competence to handle these Delaware and Florida matters. If not, then he will either have to take the time to learn enough law to make himself competent or, alternatively, to associate with someone who already has the requisite degree of competence.

It does seem highly unlikely, however that Delaware would view Al's formation of a Delaware corporation as the unauthorized practice of Delaware law. If Delaware law did so, the state could not play the preeminent role that it plays in corporate formation on a national level. Whether Al's involvement in a single real estate transaction for a non-Florida resident would provide him with sufficient Florida contact to subject him to the Florida RPCs would have to be addressed under Florida RPC 4-8.5, though it seems to us that that should not be enough. It should be clear, however, that Al's likelihood of being subject to the Florida RPCs will be materially greater if he regularly helps clients buy Florida real property.

In our next and final installment in this series, we will look at a further real reason why Al may want to "share the glory."

Ending home-game blackouts?

Introducing legislation is easy, enacting it is hard. So an all likelihood this is not going anywhere. John McCain today introduced the Television Consumer Freedom Act of 2013, which primarily would allow cable companies to offer channels a la carte, rather than exclusively in packages.

But buried in § 5 of the bill is a provision that would eliminate blackout regulations for games played in stadiums that were financed, in whole or in part, by federal, state, or local government. This would repeal a portion of the Sports Broadcasting Act of 1961, passed at the urging of NFL Commissioner Pete Rozelle, which allows teams to blackout home games in local markets. McCain described the practice of preventing taxpayers from watching games played in arenas that their tax dollars had paid for as "unconscionable." Many of my ideas on fan speech depend on legal consequences and limitations attaching to public financing of sports venues, so I am glad to see the bill relying on the same idea.

Of course, most legislation is introduced for show and there is no apparent groundswell of public or legislative support for this, so I do not expect the bill to go anywhere. And it has more than a little whiff of McCain trying to play populist maverick against the broadcast/cable industries (recall that McCain criticized radio stations for the boycott of the Dixie Chicks in 2003). Still, it is an interesting proposal to watch.

O'Bannon Case Update: Discovery

The O'Bannon v NCAA case crawls along.  Presently the courts are trying to determine the scope of discovery leading up to the trial itself.  There was a hearing yesterday (May 8th) in San Francisco before U.S. Magistrate Judge Nathanael Cousins, in part, to determine from whom the plaintiffs would be allowed to take depositions.  This is an important step in the process as the case heads progresses towards the June 20th hearing before U.S. District Judge Claudia Wilkins on class certification.

In terms of depositions, Judge Cousins decided that:

The plaintiffs MAY depose:

1. Big Ten commissioner Jim Delany
2. Horizon League commissioner Jon LeCrone
3. Frenso State president John Welty

At this time, the plaintiffs MAY NOT depose:

1. Texas athletic director DeLoss Dodds
2. Missouri Valley commissioner Doug Elgin
3. Big 12 commissioner Bob Bowlsby
4. NCAA managing director of research Todd Petr.

For a detailed report on yesterday's proceedings, and comments from both sides, you can read the excellent piece by Steve Berkowitz of USA Today here.

Additionally, Jon Solomon of the Birmingham News write about the fact that a former EA Sports employee admitted in his deposition that the programmers absolutely tried to replicate college players.......conflicting an initial defense offered by the NCAA.  In his story, which can be read here, Solomon says:

"Jeremy Strauser, who worked at EA from 1995 until 2011, testified last December that computer-game avatars were linked to specific player identifying numbers and biographical information, such as team depth charts, was used to make the game realistic.  "We generally tried to make the players perform as their real life counterparts, short of their name and likeness," Strauser testified."

Stay tuned.....

Sports, video, and procedural rules

This story captures why people like me like using sports to illustrate legal ideas.

1) The umpires went to video review of a disputed non-Home Run call. And despite everyone (including the opposing team's announcers) believing the ball was a home run, the umps upheld the call. Why? Because video review still involves judgments and inferences, depending on the angle and what each individual sees. Contra Justice Scalia, the video does not necessarily speak for itself; someone has to figure out what the video is saying and that is going to vary on the viewer. Video just gives sports fans another thing to argue and complain about with respect to umpires.

2) The manager for the losing team was thrown out after this happened. Baseball has specific rules on what and how you can argue with umpires. One rule is that if a manager requests video review, he cannot argue over the results of that review (much as he cannot argue balls and strikes). Nor can he protest the review decision to the league, which is a non-reviewable judgment call. So you can make a motion, but not a motion for reconsideration. And you cannot appeal.

Legal Analysis of Vijay Singh v. PGA Tour

I have an article for Golf.com on Vijay Singh's lawsuit against the PGA Tour over his would-be suspension for using deer antler spray (which he admitted to in a Sports Illustrated story by David Epstein and George Dohrmann).

Here's an excerpt of my article:

He also takes sharp aim at what he portrays as a disingenuous right to appeal the suspension. According to the lawsuit, the PGA Tour told Singh in February that if he appealed the 90-day suspension, the suspension would not begin until after an appeal was heard in May and was found unsuccessful. Pending the appeal, Singh could continue to play on the PGA Tour. Singh, however, claims the PGA Tour told him that any money he earned during the pending period would have to be put in escrow and subject to forfeiture if he lost the appeal.

In other words, if Singh appealed and lost, he would have lost more than 90 days’ worth of money: he would have forfeited any money he earned while pending appeal, plus money he could have earned over the 90-day suspension.

In Singh’s view, the message was clear: he would be punished for appealing. Singh insists no other golfer has been subjected to this arrangement and that it constituted bad faith.

To read the rest, click here.

Flood v. Kuhn Reenactment

Readers in the Washington, D.C. area may be interested in attending an upcoming event organized by the Supreme Court Historical Society where the oral argument from the 1972 Supreme Court case of Flood v. Kuhn -- affirming baseball's historic exemption from antitrust law -- will be reenacted.  The event is scheduled to be held at the Supreme Court on Wednesday May 22nd, with Justice Sonia Sotomayor presiding.  More information for the event, which costs $75 to attend, is available here.

The truth about past relationships

NBA player Jason Collins famously came out as gay last week, the first active player in a major U.S. team sport to do so. The reaction was the expected mixed bag. One mini firestorm erupted over comments by media critic Howard Kurtz, who chastised Collins for not owning up to his having been engaged to a woman. Unfortunately for Kurtz, Collins actually mentions his engagement (along with the fact that he dated women) in the eighth paragraph of the Sports Illustrated cover story. Kurtz apologized--initially in a typically half-assed fashion, then more unequivocally--and was grilled about it on CNN, stating "I deserve the criticism, I accept it and I am determined to learn from this episode." He also was terminated from The Daily Beast, although he insists this was in the works for a while and the timing was a coincidence.

Criticisms of Kurtz, and his apology, all focus on the factual error of his criticism. But this suggests that had Kurtz been correct and Collins had not mentioned the engagement, Kurtz's criticism would have been justified. Is that right? hat bothered me about Kurtz's initial story (but that I did not see discussed) was the stupidity of his premise: Collins was not being completely honest or forthcoming in excluding the detail of his engagement from the SI story. When a public-figure comes out, does the story really have to be "complete" and does that completeness necessarily include details about past heterosexual sexual activity? And how deep does this run--what is it, exactly, that Kurtz believes the public is entitled to know? Is it only the engagement about which Collins was obligated to "come clean"? Is it all dating? Is it the number of heterosexual sexual partners? Collins is 34 years old and only recently (within the past several years) came to understand his sexuality. It stands to reason that in the decade-plus between puberty and his coming out, he dated and had relationships, perhaps even long-term and serious relationships, with women. But why is that fact remotely relevant to the story of his coming out? Does it make him less gay? Does it make his story less sympathetic that he behaved as many closeted (or unrealizing) GLBT people do and as people have been forced to do by society, particularly in the world of team sports?