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By: Cameron Miller

Public funding for sport venues has long been a sore spot in Arizona politics and public discourse. At present, the city of Glendale is particularly burdened[1], owing large sums for the right to host the Arizona Coyotes[2] and may not recoup its investment in MLB spring training complexes.[3] University of Phoenix Stadium, despite hosting two Super Bowls, a Final Four, and eight NFL games per year, has not generated the economic impact necessary to offset Glendale’s other liabilities, forcing the city to layoff employees and cut services.[4] This comes as no surprise to sports economists, who have long decried the supposed economic benefits of sports venues and public support of their construction.[5]

And the financial situation looked even bleaker until a recent decision by the Arizona Court of Appeals.[6] The ruling came in the long-running Saban Rent-A Car case, which challenged one of the key funding mechanisms for Arizona’s sports venues—rental car taxes. Though the court found the taxes constitutional, the debate over the wisdom of public support of stadium construction and the legacy of Arizona’s heavy investment in sports venues remains unsettled.

This article discusses the history of stadium financing in the state before detailing the Saban Rent-A Car case and its impact on the future of such financing.

History of Public Financing of Arizona Sports Venues

Arizonans’ approval of taxpayer support for sports venue construction has oscillated in the last several decades. In 1989, Maricopa County voters simultaneously approved a referendum requiring a vote on any publicly funded sports stadium project valued at $3 million or more and rejected a sales tax that would have provided financing for a baseball venue (which local leaders hoped would attract a MLB franchise).[7] Also passed in that year’s legislative session, however, was a law permitting the Maricopa County Board of Supervisors to levy a county sales tax to raise funds for a baseball stadium—and without voter approval.[8] In subsequent years, the state lawmaker who introduced the sales tax legislation, along with Jim Bruner, a member of the Board of Supervisors, successfully lobbied then-Suns owner Jerry Colangelo to bring a baseball franchise to Phoenix.[9] With Colangelo closing in on a successful expansion bid, the Board instituted the sales tax increase allowed by the 1989 legislation in order to fund what would become Bank One Ballpark (now Chase Field).[10] The one-quarter of one cent sales tax was in effect from April 1, 1995 until December 1, 1997 and was originally intended to finance $238 million of the $364 million project[11]; Bank One Ballpark, which opened March 1998, ultimately cost closer to 400 million[12] (though inextricably linked, the relationship between the Diamondbacks and Maricopa County is now icy, with the two sides still locked in a battle over stadium repairs—a conflict that may push the team out of Chase Field[13]).

A year later, in 1999, Mesa residents also rejected a sales tax increase that was to fund a mixed-use development that would have included a new stadium for the Arizona Cardinals, which were then playing at Sun Devil Stadium.[14] In the wake of the failed referendum, Arizona governor Jane Hull commissioned a “Stadium Plan ‘B’ Advisory Task Force” whose goal was to find a new home for the Cardinals.[15] The task force found that losing the Cardinals and the Fiesta Bowl and the inability to host a Super Bowl regularly would deprive the local economy of hundreds of millions in economic impact dollars.[16] Further, it was concluded that other warm-whether areas, particularly Las Vegas, were in an increasingly better position to poach Arizona’s sports teams, including its spring training tenants.[17]

As suggested by the task force, the Arizona legislature then passed Senate Bill 1220 (codified as A.R.S. § 5-839(B)(1)), which created the Arizona Tourism and Sports Authority (“AzSTA”).[18] Months after AzSTA’s founding, Maricopa County voters narrowly approved Proposition 302, which levied a 30-year, 3.25 percent tax on “the gross proceeds or gross income” of rental car companies (a $2.50 tax was assessed on cars rented as a “temporary replacement” for another vehicle).[19] The referendum also instituted a 1 percent tax on hotel room sales, to be paid by the hotel operator.[20] The primary use of these levies, according to information distributed to voters, was to “pay the annual principal and interest owed on a portion of the bonds issued by (AzSTA) for construction of the multipurpose stadium facility in Maricopa County.”[21] That stadium, now known as University of Phoenix Stadium, was completed in 2006 at a cost of $455 million ($100 more than originally estimated).[22]

To date, AzSTA and the Valley’s constituent communities have managed to retain their major sports teams and events—but at significant cost. Complicating the ability of AzSTA to fund the major stadium projects it’s launched have been a number of legal challenges to the constitutionality of SB 1220, including the Saban Rent-A Car suit, which sought to invalidate the rental car tax.

The Saban Rent-A-Car Challenge

After failing to defeat the tax in an administrative action, Saban Rent-A Car in November 2010 sued the Arizona Department of Revenue (ADOR) and AzSTA in tax court alleging both federal and state constitutional violations.[23] Saban posited that § 5-839’s de facto disparate treatment of Arizona and non-Arizona residents with respect to renting vehicles (levying a greater tax on rental car transactions than on temporary replacement car transactions) violated the dormant Commerce Clause,[24] which generally prohibits interference with interstate commerce.[25] Saban cited numerous statements from Hull and lawmakers explaining that the intent of the taxes was to transfer, to the greatest extent possible, the burden for stadium funding to non-residents.[26] It was also argued that the rental car tax violated Article IX, Section 14 of the Arizona constitution, which barred taxes from “fees, excises, or license taxes relating to registration, operation, or use of vehicles on the public highways or streets or to fuels or any energy resource used for the propulsion of vehicles on the public highways or streets” from being used for anything “other than highway and street purposes.”[27] On behalf of a class of rental car companies, Saban sought a refund of the taxes it had paid under § 5-839 and an injunction prohibiting further collection of the rental car tax. The tax court held the rental car levy in violation of the Arizona constitution and ordered a refund to the rental car companies while dismissing the dormant Commerce Clause theory.[28] That ruling was later upheld in Maricopa County Superior Court in 2015.[29]

ADOR and AzSTA appealed, arguing the taxes levied under § 5-839 did not “relat[e] to registration, operation, or use of vehicles” and therefore did not offend Article IX. Saban also appealed, seeking to undo the adverse dormant Commerce Clause finding.

In an opinion filed March 13, 2018, the Arizona Court of Appeals reversed the lower courts’ decisions, upholding the constitutionality of § 5-839 and voiding the refund. The rental car taxes, the appeals court reasoned, did not “relat[e] to registration, operation, or use of vehicles” because “the taxable event that triggers the surcharge is the rental of a vehicle, not its operation or use.”[30] (emphasis in original) Also significant in the appeals court’s opinion is that, prior to the passage of Article IX, Section 14 of the Arizona constitution in 1952, the state was already collecting taxes on rental car companies that were not earmarked for road purposes. And because materials distributed to voters regarding Section 14 made clear the statute would “entail no change in the source or expenditure of highway revenues,”[31] the court found that taxes on rental car companies did not fall within the ambit of § 5-839. The court rejected Saban’s wide reading of the phrase “relating to,” finding a broad interpretation would render meaningless the remainder of the statute and invalidate other vehicle-related taxes not at issue in Saban.[32] Saban’s dormant Commerce Clause arguments were again dismissed.

It is unclear whether Saban will appeal the ruling, especially in light of its own recent legal woes.[33]

The Future of Stadium Subsidies in Arizona and Beyond

Despite Saban’s preservation of AzSTA’s primary funding source, the Authority still may not be able to meet its financial obligations before the Proposition 302 taxes sunset in 2031. Nearly $165 million alone is owed to the cities of Glendale and Goodyear for their construction of spring training complexes, but officials doubt those reimbursements will be issued .[34] Glendale is only now emerging from years of budget deficits, driven primarily by its sports investments.[35] Given this and the recent reluctance of the local public to commit financial support for stadium projects for the Suns[36], Coyotes, and Diamondbacks[37], Maricopa County’s era of public financing of sports venues—marred by controversy and debt—may be coming to a close.

[1] Travis Waldron, The Super Bowl Comes To Glendale, The City Ruined By Sports, ThinkProgress (January 30, 2015), https://thinkprogress.org/the-super-bowl-comes-to-glendale-the-city-ruined-by-sports-92e8a251a842/.

[2] Pat Garofalo and Travis Waldron, If You Build It, They Might Not Come: The Risky Economics of Sports Stadiums, The Atlantic (September 7, 2012), https://www.theatlantic.com/business/archive/2012/09/if-you-build-it-they-might-not-come-the-risky-economics-of-sports-stadiums/260900/.

[3]  Peter Corbett, Arizona cities could lose $100M in baseball stadium funding, The Arizona Republic (August 16, 2014), https://www.usatoday.com/story/news/nation-now/2014/08/15/glendale-goodyear-hundred-million-cactus-league-funding/14103097/.

[4] Garofalo and Waldron, supra Note 2.

[5] Clifton B. Parker, Sports stadiums do not generate significant local economic growth, Stanford expert says, Stanford News (July 30, 2015), https://news.stanford.edu/2015/07/30/stadium-economics-noll-073015/.

[6] Saban Rent-A-Car LLC, et al. v. Arizona Dept. of Revenue, et al., WL 1279248 (Ariz. Ct. App. 2018).

[7] Kevin J. Delaney and Rick Eckstein, “Public Dollars, Private Stadiums” 1 (2013). Available at: https://books.google.com/books?id=vfbFbkbZ3GwC&pg=PA1&lpg=PA1&dq=1989+referendum+sports+referendum+arizona&source=bl&ots=1L8-XQkAnb&sig=GdPnJNm0yKMLDZwaTGWfYXscYLk&hl=en&sa=X&ved=0ahUKEwixm9nbl8jaAhVn2IMKHYRWAiw4ChDoAQg6MAQ#v=onepage&q&f=false.

[8] Harala, Larry, “Public finance of professional athletic facilities: Case studies in stadium and arena finance” (2000). UNLV Theses, Dissertations, Professional Papers, and Capstones. 663. Available at: https://digitalscholarship.unlv.edu/cgi/viewcontent.cgi?article=1664&context=thesesdissertations.

[9] Id., at 28.

[10] Id., at 29.

[11] Harala, supra Note 9 at 29.

[12] “University of Phoenix Stadium,” available at: https://www.sandiego.gov/sites/default/files/legacy/real-estate-assets/pdf/stadium/stadiumbackgroundarizona.pdf.

[13] Rebekah L. Sanders, Arizona Diamondbacks, Maricopa County may be close to Chase Field deal, The Arizona Republic (January 23, 2018), https://www.azcentral.com/story/news/local/phoenix/2018/01/23/deal-keep-arizona-diamondbacks-chase-field-close-maricopa-county/1054933001/.

[14] Gary Nelson, Mesa voters sacked Cardinals stadium, East Valley Tribune (August 28, 2016), http://www.eastvalleytribune.com/arizona/mesa-voters-sacked-cardinals-stadium/article_1e251074-6bdf-11e6-af49-efe21eb8486b.html.

[15] Long v. Napolitano, et al., 203 Ariz. 247, 251 (Ariz. Ct. App. 2002).

[16] 203 Ariz. at 252.

[17] Id.

[18] 203 Ariz. at 252-3.

[19] A.R.S. § 5-839(B)(1)

[20] A.R.S. § 5-840 (2018)

[21] Proposition 302 Voter Pamphlet (2002), available at: https://upload.wikimedia.org/wikisource/en/b/b4/Arizona_Proposition_302.PDF.

[22] Supra Note 13.

[23] Notice of Appeal and Complaint for Declaratory and Injunctive Relief and for Refund of Taxes Under A.R.S. § 5-839, Saban Rent-a Car, LLC, et al. v. Ariz. Dept. of Revenue, No. 1 CA-TX 16-0007 (2014).

[24] Id., at *11-12.

[25] “Commerce Clause,” Legal Information Institute, available at: https://www.law.cornell.edu/wex/commerce_clause.

[26] See supra Note 24 at *4-11.

[27] Ariz. Const. Art. IX, Sec. 14.

[28] Saban Rent-a Car, LLC, et al. v. Ariz. Dept. of Revenue, WL 12738281 (Ariz. Tax 2014) (Trial Order).

[29] Peter Corbett, Judge: Arizona must refund millions from rental-car tax that pays for stadiums, The Arizona Republic (August 13, 2015), https://www.azcentral.com/story/news/local/arizona/2015/08/13/judge-arizona-must-refund-millions-rental-car-tax-pays-stadiums/31590919/.

[30] WL 1279248 at *4.

[31] Id.

[32] Id. at *2-3.

[33] “$1.85 Million Verdict Against Car Rental Company for Defrauding AZ Consumers,” Arizona Attorney General (February 14, 2018), https://www.azag.gov/press-release/185-million-verdict-against-car-rental-company-defrauding-az-consumers.

[34] Darrell Jackson, Camelback Ranch impact comes up short for city, The Glendale Star (June 29, 2017), http://www.glendalestar.com/news/article_67490430-5ab4-11e7-a697-23f9f3e38c25.html.

[35] Perry Vandell, Once in danger of bankruptcy, Glendale nearing financial stability, The Arizona Republic (May 8, 2017), https://www.azcentral.com/story/news/local/glendale/2017/05/03/glendales-budget-path-financial-stability/307009001/.

[36] Jessica Boehm, Details of Phoenix Suns arena deal still cloudy, but its defeat is becoming clearer, The Arizona Republic (November 16, 2017), https://www.azcentral.com/story/news/local/phoenix/2017/11/16/details-phoenix-suns-arena-deal-still-cloudy-but-its-defeat-becoming-clearer/859158001/.

[37] Sean Holstege, Diamondbacks versus Taxpayers: Nine Stadium Issues That Will Determine If the Team is Out, The Phoenix New Times (August 1, 2017), http://www.phoenixnewtimes.com/news/diamondbacks-want-out-of-chase-field-lease-seeks-185-million-in-repairs-9550164.

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By: Cameron Miller

“Bottom line, the players are upset…they are uniting in a way not seen since 1994.”

When MLB player agent Brodie Van Wagenen released his manifesto on the 2017-18 offseason in early February, those words were perhaps the most cutting.[1] MLB was enduring its slowest, strangest offseason in recent memory—with a large number top players still unsigned after months of free agency.[2] For Van Wagenen to harken back to the players’ 1994 strike that ended the season prematurely was to conjure memories of baseball’s last work stoppage and one of, if not the most painful, in its history.[3] The 1994 reference made clear that something was different about this current free agency period.

Yet, more than a month after Van Wagenen’s proclamation, many top-tier free agents remain without a team. Pitchers Jake Arrieta, Lance Lynn, Alex Cobb, and Greg Holland (co-lead National League in saves) have not yet signed, and neither have position players Mike Moustakas or Jonathan Lucroy.[4] And even players who have signed deals have done so at below market value.[5] Mega-agent Scott Boras[6] and MLB Players Association Director Tony Clark[7] have suggested that owner collusion is to blame for glacial pace of the “hot stove” season.

But collusion is easy to allege and difficult to prove. This article discusses how it might be done in light of previous collusion claims.

Defining Collusion

Since 1968, MLB’s Collective Bargaining Agreement has defined collusion as “Clubs…act[ing] in concert with other Clubs,”[8] which is prohibited in the free agent market. The CBA also outlines the consequences should an arbitration panel find collusion: The impacted player(s) are entitled to treble damages[9], the costs of pursuing the collusion claim[10], and gain the option to terminate their contract.[11] If five or more clubs are found to have colluded, the Players Association has the opportunity to “reopen” the CBA.[12] 

History of Collusion in MLB

 The height of cooperation between clubs in the signing of free agents came during the 1980s, when three separate collusion claims were brought against the owners.[13] Commissioner Peter Ueberroth chastised owners for their spending on players, encouraging clubs to hold down the amount and length of contracts.[14] Other league officials cautioned owners to “resist the temptation to give in to unreasonable demands of experienced marginal players.”[15] In the offseasons following the 1985 and 1986 seasons, only 8 free agents signed with new teams and most signed just one-year deals; in 1987, the average player’s salary had decreased by 16 percent from the previous year despite a similar increase in league profits.[16] The 1987-88 offseason saw even more blatant collusion, as clubs were instructed to share “information about who was doing what about what players…what the status of negotiations are….”[17] Arbitrators ruled for the players in all three collusion claims, and the owners agreed to pay players $280 million in damages.[18]

The Process of Proving Collusion

 While the CBA empowers an arbitration panel comprised of 1 or 3 members to hear grievances over alleged collusion, it does not specify the burden of proof required for such a finding.[19] But when the players prevailed in their collusion cases in the 1980s, they presented strong direct and circumstantial evidence of coordination: In their collusion claim for the 1986-87 offseason, players cited meeting minutes and other written notes of conversations between team and league officials (Ueberroth was alleged to have told teams to “Be honest with each other, exchange information”).[20] In the claim for the 1985-86 offseason, the players—without a solid paper trail—cited the fact that “[n]o free agent received any offers from other Clubs until his former Club declared a lack of interest in re-signing the player”; the arbitrator held that this was a strong indication of “a common understanding that no club will bid on the services of a free agent…”.[21] In the final collusion case covering the 1987-88 offseason, it was through hearing testimony by team officials that the existence of an information sharing “databank” was uncovered.[22]

 If current MLB players are to prove collusion during this past offseason, they’ll have to present similar direct and/or circumstantial evidence of coordination to meet even the lowest burden of proof (preponderance of the evidence). Though it is unclear what that evidence might be or where it could come from, Van Wagenen’s statement provided one potential angle: Team officials, according to Van Wagenen, are “frustrated with the lack of funds to sign the plethora of good players available.” This supposed “lack of funds” argument does not square with MLB’s rising revenues or the payouts clubs received this offseason from the sale of BAMTech.[23] If statements from general managers and team presidents to agents and players association officials regarding this alleged lack of finds can be aggregated and presented effectively, it could become circumstantial evidence of collusion. But without a pattern of documented, consistent behavior and statements, this theory remains just that.

Other evidence of collusion during the past offseason could stem from the new CBA, which instituted harsher luxury tax penalties that have created a quasi-salary cap.[24] Teams could be working in concert to keep their payrolls under the $197M luxury tax threshold—but this is only an issue for several clubs, including the Dodgers and Yankees.[25] Still, with a potential free agent bonanza next offseason, teams may be cooperating to position themselves to spend on future free agents without owing luxury taxes. But with no “smoking gun,” this is pure conjecture.

Even parallel efforts to “tank” could form the basis of a successful collusion claim.[26] While each franchise looking to revamp surely has its own strategy (e.g., cutting payroll and playing young players), it is not inconceivable that teams have had conversations about these issues—the substance of which could aid collusion claims.

Complicating any collusion claim(s) are the existence of reasonable explanations for the slow market.[27] But the key here is the lack of strong circumstantial or direct evidence of coordination: Until such evidence can be developed, allegations of illegal cooperation are unlikely to be successful.

[1] Gabe Lacques, Agent Brodie Van Wagenen accuses MLB owners of collusion, threatens spring training boycott, USA Today (February 2, 2018), https://www.usatoday.com/story/sports/mlb/2018/02/02/agent-brodie-van-wagenen-accuses-mlb-owners-collusion-threatens-spring-training-boycott/300994002/.

[2] Neil Paine, This MLB Offseason Has Been Eerily Quiet, FiveThirtyEight.com (January 22, 2018), https://fivethirtyeight.com/features/this-mlb-offseason-has-been-eerily-quiet/.

[3] Bob Nightengale, 1994 Strike Most Embarrassing Moment in MLB History, USA Today (August 11, 2014), https://www.usatoday.com/story/sports/mlb/2014/08/11/1994-mlb-strike/13912279/.

[4] MLB Free Agent Tracker: Latest Hot Stove signings, best players available for 2018, CBSSports.com, https://www.cbssports.com/mlb/news/mlb-free-agent-tracker-latest-hot-stove-signings-best-players-available-for-2018/ (last visited February 25, 2018).

[5] Jon Tayler, Troubling Offseason Trend Continues as Cubs Snag Yu Darvish at Reduced Rate, SportsIllustrated.com (February 10, 2018), https://www.si.com/mlb/2018/02/10/yu-darvish-cubs-contract-dodgers-nlcs.

[6] Zachary Ripple, Scott Boras engages in war of words with MLB, suggests league is colluding against free agents: report, New York Daily News (February 7, 2018), http://www.nydailynews.com/sports/baseball/scott-boras-accuses-mlb-colluding-free-agents-report-article-1.3804014.

[7] Christopher Smith, MLB free agency: Tony Clark says Boston Red Sox players ‘concerned’ that free agents remain unsigned, MassLive.com (February 24, 2018), http://www.masslive.com/redsox/index.ssf/2018/02/mlb_free_agency_tony_clark_say.html.

[8] Major League Baseball 2017-2021 Basic Agreement, Article XX(E)(1). Available at: http://www.mlbplayers.com/pdf9/5450407.pdf.

[9] Id., Article XX(E)(2).

[10] Id., Article XX(E)(3).

[11] Id., Article XX(E)(6).

[12] Id., Article XX(E)(5).

[13] Marc Normadin, The past, present, and future of MLB collusion, SBNation.com (January 10, 2018), https://www.sbnation.com/mlb/2018/1/10/16863052/mlb-collusion-history-bud-selig-free-agency.

[14] Id.

[15] BASEBALL; Excerpts From the Ruling, The New York Times (September 22, 1987), http://www.nytimes.com/1987/09/22/sports/baseball-excerpts-from-the-ruling.html?pagewanted=all.

[16] Normadin, supra.

[17] Murrah Chass, Union Brief Cites ‘Collusion’, The New York Times (July 5, 1988), http://www.nytimes.com/1988/07/05/sports/union-brief-cites-collusion.html.

[18] Normadin, supra.

[19] Major League Baseball 2017-2021 Basic Agreement, Article XI(A)(9).

[20] Chass, supra.

[21] Roger I. Abrams, Legal Bases: Baseball and the Law 143 (1998).

[22] Claire Smith, Arbitrator Finds 3d Case of Baseball Collusion, The New York Times (July 19, 1990), http://www.nytimes.com/1990/07/19/sports/arbitrator-finds-3d-case-of-baseball-collusion.html.

[23] Zachary Zagger, New MLB Collusion Rumors May Reveal Bigger Issues, Law360 (January 19, 2018), https://www.law360.com/articles/1004027/new-mlb-collusion-rumors-may-reveal-bigger-issues.

[24] Chris Cwik, The luxury tax is bad for MLB, and is already destroying the game, Yahoo! Sports (January 5, 2018), https://sports.yahoo.com/luxury-tax-bad-mlb-actively-destroying-game-201649772.html.

[25] Id.

[26] Jeff Passan, Here’s why baseball’s economic system might be broken, Yahoo! Sports (January 16, 2018), https://sports.yahoo.com/heres-baseballs-economic-system-might-broken-224638354.html.

[27] Grant Bisbee, The benign explanation of baseball’s slow offseason, SBNation.com (January 17, 2018), https://www.sbnation.com/mlb/2018/1/17/16900966/baseball-free-agency-mlb-slow-offseason.

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By: John Zubek

While Spring Training is beginning in Arizona and Florida, many talented MLB players are still without contracts. Free agent signings have been few and far between in 2018 — leading to what some are calling the slowest offseason of all time.[1] Top MLB agent Scott Boras recently said he has “never seen anything like it” when asked about the lack of movement.[2] There are several theories for the cause of this phenomenon. Some argue that MLB teams are colluding to drive the free agent market down, allowing teams to sign players for a fraction of the money they would normally get.[3] The reality, however, is that a mix of circumstances—driven mainly by smarter front offices and new team creation strategies—are to blame for the stagnant 2018 offseason.

Collusion?

Players and agents are hinting that they believe there is a coordinated effort by teams to drive down player salaries in the free agent market.[4] Players are reportedly “outraged.”[5] The MLB Players Association (MLBPA) released a statement lamenting that “a record number of talented free agents remain unemployed in an industry where revenues and franchise values are at record highs.”[6]

Collusion by MLB teams would not be unprecedented. In 1990, three arbitration rulings concluded that MLB teams were colluding against the players for years, leading owners to settle the players’ claims for $434 million (equivalent to about $800 million today).[7]

Could the same thing be happening this offseason? It is unlikely. No hard evidence of collusion has been presented.[8] Instead, the slow 2018 offseason is a result of a combination of circumstances discussed below.

The Reality

Several factors have combined to create a perfect storm, causing the slow market we are seeing today. While some tactics teams are using now may be questionable and may highlight the need for reforming MLB’s arbitration system, owners are not doing anything illegal.

MLB front offices are getting smarter. Teams have embraced advanced statistics and analytics.[9] As a result, teams are more aware of the effects of aging on player productivity, and teams are using advanced data to improve player development.[10] This is allowing teams to replace older, more expensive players with younger, cheaper ones.[11] Perhaps the biggest factor is the increasingly popular strategy of full rebuilds — that is, teams trading their star players for prospects, losing as many games as possible for a few years to get higher draft picks, and using the money they save over the years to supplement their young talent by signing superstars.[12] This strategy — which MLBPA president Tony Clark contemptuously calls the “race to the bottom,”[13] and Boras calls a “non-competitive cancer”[14] — has had a significant chilling effect on the free agent market, since it limits the amount of competitive teams — thus limiting potential destinations for older, more expensive stars.

Other factors include teams’ desires to stay under the luxury tax threshold, and the superstar-level players of next year’s free agent class — both of which are incentives to spend less on free agents this offseason.

Together, these factors explain why teams are reluctant to pay top dollar for aging players this offseason. While the players are understandably frustrated, nothing can be done unless some hard evidence of collusion is uncovered. Until then, some of the most talented baseball players in the world will be stuck watching Spring Training from their couches.

[1] Travis Sawchik, This Is the Slowest Offseason Ever, FanGraphs (Feb. 6, 2018), https://www.fangraphs.com/blogs/this-is-the-slowest-offseason-ever/.

[2] Bob Nightengale, Agent Scott Boras: ‘Non-Competitive Cancer’ Ruining Baseball, USA Today (Jan. 29, 2018), https://www.usatoday.com/story/sports/mlb/columnist/bob-nightengale/2018/01/29/scott-boras-non-competitive-cancer-ruining-baseball/1074755001/.

[3] See Michael Hiltzik, Are Major League Baseball’s Owners Engaging in Collusion Again?, Los Angeles Times (Feb. 7, 2018), http://www.latimes.com/business/hiltzik/la-fi-hiltzik-mlb-collusion-20180207-story.html.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Steve Adams & Jeff Todd, The 2017-18 Offseason: Trend or Anomaly?, MLB Trade Rumors (Jan. 27, 2018), https://www.mlbtraderumors.com/2018/01/slow-mlb-offseason-trend-anomaly.html.

[9] See generally Neil Greenberg, MLB’s Free Agent Snoozefest: Don’t Call It Collusion; Call It Smart Business, The Washington Post (Feb. 7, 2018), https://www.washingtonpost.com/news/fancy-stats/wp/2018/02/07/mlbs-free-agent-snoozefest-dont-call-it-collusion-call-it-smart-business/?utm_term=.a1c32a0f2d37.

[10] Id.

[11] Id.

[12] Nightengale, supra note 2.

[13]Jeff Todd, Tony Clark Accuses MLB Teams Of “Race To The Bottom” MLB Trade Rumors (Feb. 6, 2018), https://www.mlbtraderumors.com/2018/02/tony-clark-accuses-mlb-teams-of-race-to-the-bottom.html.

[14] Nightengale, supra note 2.

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By: Hector Zurita-Cruz

Giannis Antetokounmpo took great joy in filming Milwaukee Bucks rookie Sterling Brown open the doors to his Mercedes-Benz G-Wagon only to find the inside of his car filled with popcorn.[1] As he opened the doors, Brown’s feet were flooded by popcorn all while Antetokounmpo reminded the rookie, this is what you get when you forget to put towels on his (Antetokounmpo) seat on game day.[2] As he began to empty the popcorn, Brown told his teammates “ya’ll could at least help,” but the other three weren’t having it, they continued to record him and ate the popcorn flowing out of the car.[3] Brown’s response, “I can’t wait until my rookies come in,” as he ate the popcorn too.[4]

Hazing. A rite of passage you aren’t comfortable with until you get to mess with the new guy for literally breathing. It is responsible for bringing us some of the most iconic haircuts in professional sports history. From, Tim Tebow’s legendary friar tuck (Yes, there are pictures[5]), to De’Angelo Henderson getting the George Jefferson (Again, here you go[6]). Despite the laughter it brings, professional athletes have either forgotten or are unaware of the laws that make hazing illegal.

Currently, forty-four out of fifty states have anti-hazing laws.[7] In definition, hazing is any activity expected of someone joining or participating in a group that humiliates, degrades, abuses, or endangers them regardless of a person’s willingness to participate.[8] With professional athletes, hazing has involved traditions that originally began as harmless, but profusely worsened as time went on. NFL tight end Jeremy Shockey remembers his hazing experience back in 2002 by stating, “When I was a rookie, I had to buy donuts every morning from Krispy Kreme. Every Saturday and every Friday, I bought coffee.”[9] Now in 2018, that tradition has perhaps escalated into the notorious rookie dinner, whereby veteran teammates treat themselves to an exorbitantly expensive team dinner and stick the rookies with the bill to welcome them into the bonds. In the past, notable dinners have included the Dallas Cowboys offense sticking Dez Bryant with a $54,895 bill after he refused to carry a veteran’s shoulder pads,[10] the Philadelphia Eagles teaching Evan Mathis ‘a lesson’ with a $64,055 tab,[11] and who can forget the Cleveland Browns veterans treating themselves to a $37,361 rookie dinner after a perfect 0-16 season.[12]

Yes, a good time is had by everyone, but the rookies. But what appears to start out as a practical joke or seemingly harmless prank can ultimately lead to the destruction of a professional athlete’s career. In wake of the Richie Incognito-Jonathan Martin fiasco, Martin, an offensive lineman for the Miami Dolphins, decided to hang up his cleats for good after he was allegedly subjected to “a pattern of harassment” that included racial slurs and sexual taunts about his mother and sister by fellow teammates.[13] Martin admitted difficulties with the profession ultimately led him to attempt suicide on multiple occasions.[14]

Despite picture evidence of professional athletes getting taped to goal posts or hogtied in their hotel room with a bunch of singles thrown around them,[15] hazing with professional athletes is too often shaken off or completely ignored. In Brown’s case, the Milwaukee Bucks even applauded the popcorn prank by posting the video on their Twitter account with a quote from Antetokounmpo stating, “This is what you get when you don’t do your rookie duties!!”[16] By turning the blind eye or encouraging hazing, professional athletes and their organizations are not only condoning it, but are also raising the bar of acceptability. Today, the NBA may find the popcorn prank seemingly harmless, but because it does, it may lead professional athletes to test the boundaries with more strenuous pranks, thereby establishing a slippery slope with hazing.

So how do we change the hazing culture of professional sports if even the organizations themselves are condoning it? Primarily, we can start by actually enforcing State anti-hazing laws with professional athletes. Second, we can stop encouraging player’s antics by disciplining them within their organization. Finally, we can stop laughing and begin to hold professional athletes accountable for their actions, as you would any other individual. One thing is for sure, if this were a high-school football team shaving the heads of their Freshman players and posting it on social media for the world to see we would be having a completely different conversation, but because professional athletes are involved we seem to let it go.

[1] Alysha Tsuji, Bucks rookie finds his car full of popcorn, USA Today (Jan. 9, 2018), https://www.usatoday.com/story/sports/ftw/2018/01/09/giannis-antetokounmpo-happily-watches-bucks-rookie-find-his-car-full-of-popcorn/109312388/.

[2] Id.

[3] Id.

[4] Id.

[5] National Football League, http://www.nfl.com/photoessays/0ap3000000833600 (last visited Feb. 11, 2018). Yes, the National Football League actually posted pictures of these haircuts on their website with the caption “Check out some of the best rookie haircuts.” Id.

[6] Broncos’ class of 2017 got their rookie haircuts and they’re amazing and awful, The Denver Post (Aug. 22, 2017), https://www.denverpost.com/2017/08/22/broncos-rookie-haircuts-2017/.

[7] Stop Hazing, https://www.stophazing.org/university-college-policies/states-with-anti-hazing-laws/ (last visited Feb. 11, 2018).

[8] Stop Hazing, https://www.stophazing.org/frequently-asked-questions/ (last visited Feb. 11, 2018).

[9] Matt Ufford, The NFL’s disastrous lack of an anti-hazing policy, SB Nation (Nov. 5, 2013), https://www.sbnation.com/2013/11/5/5065834/jonathan-martin-richie-incognito-dolphins-rookie-hazing.

[10] Ryan Wilson, Cowboys WR Dez Bryant refused to be hazed as a rookie, CBSSports.com (Nov. 8, 2013), https://www.cbssports.com/nfl/news/cowboys-wr-dez-bryant-refused-to-be-hazed-as-a-rookie/.

[11] Ryan Wilson, Eagles’ Mathis calls $64,000 dinner bill ‘teaching rookies a lesson’, CBSSports.com (June 12, 2014), https://www.cbssports.com/nfl/news/eagles-mathis-calls-64000-dinner-bill-teaching-rookies-a-lesson/.

[12] Andrew Gould, Browns Players Make Rookie Defensive Linemen Pay for $37,000 Team Dinner, Bleacher Report (Dec. 19, 2017), http://bleacherreport.com/articles/2750069-browns-players-make-rookie-defensive-linemen-pay-for-37000-team-dinner.

[13] Incognito, others tormented Martin, ESPN (Feb. 15, 2014), http://www.espn.com/nfl/story/_/id/10455447/miami-dolphins-bullying-report-released-richie-incognito-others-responsible-harassment.

[14] Richie Incognito: No mending fences with Jonathan Martin, ESPN (Oct. 19, 2016), http://www.espn.com/nfl/story/_/id/17835460/richie-incognito-says-jonathan-martin-patched-differences.

[15] Sports Illustrated, https://www.si.com/nfl/photos/2013/07/23/nfl-rookie-hazing-through-years#1 (last visited Feb. 11, 2018); Kyle Rooney, Gilbert Arenas Shares a Photo of The Time He Hazed A Rookie Nick Young, HNHH (Mar. 30, 2017), https://www.hotnewhiphop.com/gilbert-arenas-shares-photo-of-the-time-he-hazed-a-rookie-nick-young-news.30724.html.

[16] Tsuji, supra note 1.

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By: Stacy Skankey

Sexual harassment and assault allegations have taken over Hollywood headlines in the past few months. Dozens of Hollywood’s elite men have been accused of various forms of sexual misconduct.[1] This surge of allegations due in large part to the #MeToo movement. The #MeToo movement raises awareness of sexual harassment and has empowered women to remove sexual predators from the Hollywood scene.[2] Allegations of sexual harassment and assault should be taken seriously, but there is always the possibility of false claims. Some Hollywood men have pushed back on these allegations saying they are fake.[3]

Actors are generally deemed common-law employees, subject to at-will termination.[4] However, they often have several employment engagements at any given time and appear to be more like temporary employees with several short employment arrangements.[5] In a traditional employment context, if an employee is accused of sexual harassment there is typically an investigation and the employer is not able to discriminate against an accused individual for his/her participation in the investigation.[6] The Hollywood context of employment is very different. Due to the short duration of the employment, most accusations surface long after the employment has transpired. This forgoes the opportunity for an employer to hold a private investigation prior to legal action.

Most of the recent sexual harassment or assault allegations have come forward via social media or media outlets.[7] These allegations are public, having the accused face the court of public opinion, prior to an investigation into the matter. The public view tends to be guilty until proven innocent rather than the legal criminal standard, innocent until proven guilty.[8] Without an opportunity for an investigation into the accusations, many of these actors have lost their current jobs, endorsements or prospective jobs, all because of the public nature of the accusations. The court of public opinion, which includes prospective employers of actors, may discriminate against the accused without finding of guilt or liability, because they want to distance themselves from the accusations.

James Franco is just one recent example of an actor who has been accused by sexual misconduct. He has been accused by 5 women of various types of sexual misconduct.[9] All the accusations have been made via Twitter after James Franco, wearing a #TimesUp pin, won for Best Actor at the Golden Globe awards. Thus far, none of the women have filed legal action whether civil or criminal. Two of the women have held numerous interviews and made appearances on major news programs to discuss the events in question.[10] One woman said the she still has love for James Franco and all she desired was a public apology.[11]

James Franco has put himself in a peculiar spot as he denies the allegations while trying to continue his support for the #TimesUp or #MeToo movements. In interviews he said the allegations are incorrect, and yet, would like the women to be able to come forward with these allegations if they feel they need to.[12] These quotes where taken before James Franco failed to receive a nomination for the Oscars, his alma mater high school removed artwork he created for the school, and the New York Times cancelled his appearance.[13] The allegations against James Franco should be taken seriously and, if the victims felt inclined to, legal action should be taken. Alternatively, if these are false allegations against James Franco, his career has been severely damaged by these false claims and he may not recover.

Women’s rights attorney Gloria Allred encouraged Oscar voters to consider extrinsic factors when voting for Oscar nominations for acting, essentially telling voters not to vote for James Franco for Best Actor.[14] Days later, James Franco did not receive a nomination. It is speculated that this “Oscar snub” was due to the sexual misconduct allegations. Ms. Allred posted a video in which she giddily says, “there is nothing he can do about it.”[15] While Ms. Allred does not say James Franco’s name, it is apparent from context, she is referring to James Franco’s legal remedies for losing an Oscar nomination.

While James Franco cannot seek a legal remedy for losing an Oscar nomination, he can always seek a defamation action. In California, the standard for libel is false publication that “exposes any person to hatred, contempt, ridicule, or obloquy, causes him to be shunned or avoided, or [tends to] injure him in his occupation”.[16] New York has a similar standard, “[d]efamation is the making of a false statement which tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons”.[17] James Franco has lost support from the Hollywood industry over these accusations and has been featured in news segments relating him to other Hollywood sexual predators, some who have committed rape. If these allegations are false, there is no doubt that James Franco has been exposed to hatred, ridicule, injured his occupation, and induced an evil opinion of him.

All the sexual harassment and assault accusations have brought about change in Hollywood. The Screen Actors Guild – American Federation of Television and Radio Artists (“SAG-AFTRA”) released a Code of Conduct relating to Sexual Harassment.[18] Potentially these changes will help future conduct of Hollywood actors and how to deal with allegations. The Code provides for representation for the accused and an investigation into those accusations.[19] The Code hopes to change the Hollywood landscape of sexual misconduct. Having a union standard will help provide venues for victim’s voices and an opportunity for investigations of accusations.

[1] Maggie Mallon, Post-Weinstein, These Are The Powerful Men Facing Sexual Harassment Allegations, Glamour (Feb. 8, 2018), https://www.glamour.com/gallery/post-weinstein-these-are-the-powerful-men-facing-sexual-harassment-allegations.

[2] Id.

[3] Id.

[4] Noah B. Kressler, Using the Morals Clause in Talent Agreements: A Historical, Legal and Practice Guide, 29 Colum. J.L. & Arts 235, 248-49 (2005).

[5] Id.

[6] Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 269 (2001).

[7] Mallon, supra note 1.

[8] Michael Rothman, Why ‘Innocent Until Proven Guilty’ May Not Apply In Hollywood Misconduct, ABC News (Dec. 14, 2017), http://abcnews.go.com/Entertainment/innocent-proven-guilty-apply-hollywood-misconduct/story?id=51646170.

[9] Alex Stedman, James Franco Accused Of Inappropriate Behavior By Five Women, Variety (Jan. 11, 2018), http://variety.com/2018/film/news/james-franco-accused-inappropriate-behavior-1202661115/.

[10] James Franco Accusers Speak Out About Sexual Misconduct Allegations, ABC News (Jan. 23, 2018), http://abcnews.go.com/GMA/video/james-franco-accusers-speak-sexual-misconduct-allegations-52543901.

[11] James Franco Accuser ‘I Still Have Love For Him’ But HE Must Apologize!!!, TMZ (Jan. 12, 2018), http://www.tmz.com/2018/01/12/james-franco-accuser-sarah-tither-kaplan-demands-apology/?adid=TMZ_Search_Results.

[12] Christie D’Zurilla, James Franco Says Actresses’ Sexual Misconduct Allegations Against Him ‘Are Not Accurate’, Los Angeles Times (Jan. 10, 2018), http://www.latimes.com/entertainment/la-et-entertainment-news-updates-2018-james-franco-says-actresses-allegations-1515605045-htmlstory.html.

[13] TMZ Live: James Franco: Oscar Snub Controversy, TMZ (Jan. 23, 2018), http://www.tmz.com/2018/01/23/tmz-live/?adid=TMZ_Search_Results; Associated Press, James Franco’s High School Removes His Art Amid Sexual Misconduct Allegations, Page Six (Feb. 1, 2018), https://pagesix.com/2018/02/01/james-francos-high-school-removes-his-art-amid-sexual-misconduct-allegations/; Ricardo Lopez, New York Times Says James Franco Event Was Canceled Due To ‘Recent Allegations’, Variety (Jan. 9, 2018), http://variety.com/2018/biz/news/james-franco-timestalk-cancelled-1202659239/.

[14] Gloria Allred Sags, Oscars Shouldn’t Go To Alleged Sexual Predators, TMZ (Jan. 21, 2018), http://www.tmz.com/2018/01/21/gloria-allred-award-shows-sexual-misconduct-oscars-sag-awards/?adid=TMZ_Search_Results.

[15] Gloria Allred James Franco’s Not Innocent ‘Til Proven Guilty…For Oscars, TMZ (Jan. 23, 2018), http://www.tmz.com/2018/01/23/gloria-allred-james-franco-oscars-nomination-snub-sexual-misconduct/.

[16] Cal. Civ. Code § 45 (2017).

[17] Franklin v. Daily Holdings, Inc., 135 A.D. 3d 87, 91 (N.Y. App. Div. 2015) (adopting Restatement (Second) of Torts § 558 (1979)).

[18] Code Of Conduct On Sexual Harassment, SAG-AFTRA (2018), https://www.sagaftra.org/files/sag-aftra_code_of_conduct_final.pdf.

[19] Id. at ¶ 4.2.

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By: Mark Bosch

On January 24th, 2018, the National Basketball Association (NBA) advocated for a statutory change that could help lead to the legalization of single-game sports betting nationwide.[1] A league attorney testified before a New York state Senate Committee outlining how the NBA envisions the implementation of this betting system.[2] This testimony was yet another example of the growing push for the legalization of sports gambling.

In recent years, the NBA has softened its stance on sports betting. NBA Commissioner, Adam Silver, wrote an op-ed for the New York Times in 2014 advocating for the legalization of sports gambling.[3] The commissioner recognized that supporting sports gambling was a change in message for the league, as they were one of the stake holders advocating for the passage of the 1992 Professional and Amateur Sports Protection Act (PASPA).[4] Nonetheless, Silver argued that the sports world has changed since 1992, and cited the widespread acceptance of state lotteries and legal casinos.[5] Silver called for a federal law that ensured that the black market of gambling to become regulated and safer for consumers to participate in.[6] Only four states in the country currently allow legal sports betting: Nevada, Oregon, Delaware, and Montana.[7]

Silver may see his wishes come true when the Supreme Court rules on Christie v. NCAA, which concerns the Constitutionality of PASPA. The issue presented in the case is whether or not PASPA, a statute that prohibits altering or repealing state laws concerning the private conduct of individuals amounts to commandeering.[8] When Congress enacted PASPA, it made it unlawful for a state to “sponsor, operate, advertise, promote, license, or authorize by law or compact” sports gambling.[9] The law did provide exemptions for Nevada, Oregon, Delaware, and Montana.[10] It further allowed Atlantic City, New Jersey a limited exemption.[11]

New Jersey is arguing that the Congressional Statute commandeers state police and forces the them to regulate acts within the state and that Congress is prohibited from doing this.[12] New Jersey advocates that the Framers of the Constitution were acutely aware of the dangers of commandeering and sought to protect the states from such federal infringement.[13] Three governors and 18 state attorney generals filed a brief in support of New Jersey.[14]

NCAA contends that PASPA does not commandeer state regulation, but merely requires that states refrain from certain activities.[15] The respondents constitutional argument is that PAPSA does not commandeering state action, PAPSA preempts state laws under the Supremacy Clause.[16]

Regardless of the outcome of the case, it appears that states are beginning to want a seat at the table with single-game sports betting. New York, New Jersey, Pennsylvania, Connecticut, and Mississippi have already enacted legislation on sports gambling in the event that the Supreme Court rules in favor of New Jersey.[17] Whatever the outcome of the New Jersey case, it seems Adam Silver may get his wish soon enough.

[1] Brian Windhorst, NBA outlines plan for nationwide sports betting, ESPN (Jan. 24, 2018), http://www.espn.com/nba/story/_/id/22198782/nba-outlines-plan-professional-sports-leagues-pushing-national-legalized-wagering.

[2] Id.

[3] Adam Silver, Legalize and Regulate Sports Betting, The New York Times (Nov. 13, 2014), https://www.nytimes.com/2014/11/14/opinion/nba-commissioner-adam-silver-legalize-sports-betting.html.

[4] Id.

[5] Id.

[6] Id.

[7] Chad Millam, Delaware allows sports betting, ESPN (May 13, 2009), http://www.espn.com/espn/news/story?id=4162225.

[8] Brief for Petitioners at i, Christie, et. al. v. National Collegiate Athletic Association, et. al., (No. 16-476), 2017 WL 3774486.

[9] Id. at 6.

[10] Id.

[11] Id.

[12] Id. 16-17.

[13] Id. at 17.

[14] Chris Kirkman and Brent Kendall, Supreme Court to Hear Arguments Over Sports-Betting Ban, The Wall Street Journal (Dec. 2, 2017 7:00 a.m. ET), https://www.wsj.com/articles/supreme-court-to-hear-arguments-over-sports-betting-ban-1512216001.

[15] Brief for the United States as Amicus Curiae Supporting Respondents at 8, Christie, et. al. v. National Collegiate Athletic Association, et. al., (No. 16-476).

[16] Id. at 8.

[17] Supra note 14.

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By: Cole Kubosumi

Whether you are a die-hard Eagles fan, someone who could care less about sports in general, or anything in between, you were almost certainly at a Super Bowl Party this past Sunday.[1] Between the food, the drinks, the friends, and the football, millions of people across the country gathered at Super Bowl parties to celebrate this culturally iconic sporting event.[2] In most cases, the person hosting the party was probably most worried about keeping the game on the television and the cheese dip off the carpet. However, hosting a Super Bowl party can result in serious legal liability. Three of the more focal issues facing party hosts are trademarks, tort liability, and gambling laws.

Any host of a Super Bowl party will likely want to be able to call it a “Super Bowl” party. However, the National Football League (“NFL”) owns at least eight trademarks on words like “Super Bowl” and “Super Sunday,” as well as the copyright to telecast the actual game.[3] And the NFL is not afraid to enforce their rights; nor does the NFL seem to discriminate between large corporations and small viewing groups.[4] In 2007, the Fall Creek Baptist Church sought to provide a place for its congregation to watch the Super Bowl.[5] To get the word out, the church posted about their “Super Bowl Bash” on the church web site and handed out fliers.[6] The NFL objected and ultimately required the church to drop the trademarked language, agree to not charge any fee, and watch the game on a smaller screen than the originally planned 55” screen.[7] Of course, it is not the use of the words “Super Bowl” alone that violates the trademark. The key issue is whether an entity is engaged in nominative fair use or obtaining commercial gain by associating itself with the trademark.[8] If the entity is associating itself with the Super Bowl through language like “the official Super Bowl bean dip,” the entity is likely liable. But if the entity can argue nominative use of the phrase using language like “a great bean dip for the Super Bowl,” the entity likely is not liable.[9] However, under either scenario, the NFL can always send a cease and desist letter.[10] As such, it is important to be careful how the NFL’s trademarks are being used.

Many Super Bowl party hosts will also want to provide beverages for guests. However, in many cases, these party hosts can be held liable for the wrongdoings of their intoxicated guests.[11] While the trademark issue largely turned on how the words were used, liability for the acts of intoxicated guests may turn on where the party is located.[12] For example, courts in New Jersey and Massachusetts have recognized that a social host serving alcohol may be liable for damages caused by the actions of guests consuming that alcohol.[13] But courts in California and Texas have decided that social hosts cannot be held liable for such actions.[14] Beyond this split between the jurisdictions, the jurisdictions recognizing liability apply different tests.[15] For example, a court in New Jersey has ruled that a social host may be liable for the acts of its guests when the social host provides alcohol to an obviously intoxicated guest under circumstances which create a reasonably foreseeable risk of harm to others.[16] In contrast, the Supreme Court of Massachusetts recognized that a social host may be liable to third parties injured by the negligence of an intoxicated guest if the social host knew or should have known that the guest was intoxicated but provided or allowed further consumption of alcoholic beverages.[17] Thus, no matter where the Super Bowl party is hosted, the host must be aware of the potential consequences of allowing or providing alcohol at the party.

Finally, the Super Bowl is a major opportunity for gamblers. In fact, $138.5 million was bet on Super Bowl 51 at Nevada sportsbooks.[18] However, under the Professional and Amateur Sports Protection Act (“PASPA”), Nevada is the only state in which traditional sports betting is legal.[19] Nevertheless, legal wagers only make up a fraction of the total amount gambled and the American Gaming Association estimates that $4.6 billion was wagered illegally on this year’s game.[20] At those numbers, over 97% of people gambling are breaking the law.[21] While it seems unlikely that the PASPA will see full compliance anytime soon, it is very possible that gambling laws will be changed in the very near future.[22] In fact, there is a case pending in the United States Supreme Court at this very moment that questions the constitutionality of PASPA, and numerous spectators are predicting that PASPA will not stand as currently written.[23] Therefore, while it is always important to be aware of the law, gamblers may want to pay particularly close attention in the coming months as the highest federal court of our nation considers the validity of PASPA.

Ultimately, the Super Bowl creates a unique opportunity to come together, and countless Super Bowl parties are hosted problem-free each year. Nevertheless, it only takes one overly assertive post on social media, one guest who has had one too many drinks, or one wrongfully placed wager to result in legal liability.

[1] In a recent survey, less than half of the people surveyed said that they did not plan to attend or host a Super Bowl event. Do you plan to throw or attend a Super Bowl party?, Statista (Feb. 5, 2018), https://www.statista.com/statistics/217156/super-bowl-parties-in-the-us/; 45 million people plan to host a Super Bowl Party.

[2] 45 million people planned to host a Super Bowl Party. NRF Says Consumers Will Spend $14.1 Billion on 2017 Super Bowl, NRF (Feb. 5, 2018), https://nrf.com/media/press-releases/nrf-says-consumers-will-spend-141-billion-2017-super-bowl.

[3] Is Super Bowl Protected by Trademark or Copyright Law? Try Both., Broadcast Law Blog (Feb. 5, 2018), https://www.broadcastlawblog.com/2012/01/articles/is-super-bowl-protected-by-trademark-or-copyright-law-try-both/.

[4] See Crystal Marie Prais, “The Big Game:” The Effect of the NFL’s “Super Bowl” Trademark on New Jersey Businesses and Consumers, 11 Rutgers Bus. L. Rev. 99, 121 (2014).

[5] NFL Thwarts Church’s Plan to Show Super Bowl, Fox News (Feb. 5, 2018), http://www.foxnews.com/story/2007/02/01/nfl-thwarts-church-plan-to-show-super-bowl.html.

[6] Prais, supra note 4, at 121.

[7] Id.; Fox News supra note 5.

[8] See Prais, supra note 4, at 117.

[9] See id. at 122; Kevin Allen, Can your brand use the term ‘Super Bowl’ on social media?, PR Daily (Feb. 5, 2018), https://www.prdaily.com/Main/Articles/Can_%20your_brand_use_the_term_Super_Bowl_on_social_m_13708.aspx.

[10] Prais supra note 4, at 122.

[11] See Edward L. Raymond, Social host’s liability for injuries incurred by third parties as a result of intoxicated guest’s negligence, 62 A.L.R.4th 16.

[12] See Id.

[13] See Id. at §11a.

[14] See Id. at §11b.

[15] See Id. at §11a.

[16] See Clendening v. Shipton, 149 Cal.App.3d 191 (1983).

[17] See McGuiggan v. New England Tel. & Tel. Co., 398 Mass. 152 (1986).

[18] Kurt Badenhausen, Everything You Need To Know About The Money In The Eagles-Patriots Super Bowl, Forbes (Feb. 5, 2018), https://www.forbes.com/sites/kurtbadenhausen/2018/01/29/everything-you-need-to-know-about-the-money-in-the-eagles-patriots-super-bowl/#655ff3541b66.

[19] Americans to Bet $4.7 Billion on Super Bowl 51, American Gaming Association (Feb. 5, 2018), https://www.americangaming.org/newsroom/press-releasess/americans-bet-47-billion-super-bowl-51.

[20] Badenhausen supra note 18.

[21] 97.1% is calculated by dividing the illegal wagers by the sum of the legal and illegal wagers.

[22] See Daniel Wallach, How The Supreme Court Could Hand A Win To New Jersey And Sports Betting, Forbes (Feb. 5, 2018), https://www.forbes.com/sites/danielwallach/2017/12/11/supreme-court-ncaa-christie-nj-betting/#21de7b8a6ca7.

[23] See Id.

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By: Zade Shakir

“I just signed your death warrant.” The sound of camera lenses clicking filled the silence in the moments before Judge Rosemarie Aquilina delivered these six words on January 24, 2018, sentencing Larry Nassar to 40 to 175 years in prison for criminal sexual conduct.[1]

The former Michigan State University (MSU) and USA Gymnastics (USAG) doctor, who has already been sentenced to 60 years in federal prison on child pornography charges, had just finished hearing victim impact statements from over 156 accusers in Ingham County, Michigan, detailing the horrific extent of his sexual abuse.[2] While Nassar will almost certainly spend the rest of his life behind bars between his convictions in federal and state courts, the fallout of this case has tremendous implications for USAG, MSU, and the NCAA.[3] Over 150 civil suits have been filed, many of which name MSU and USAG as defendants, accusing the institutions for failing to protect Nassar’s patients and ignoring countless red flags.[4]  Allegations against the institutional defendants allege they “unreasonably failed to detect wrongful conduct…or worse, helped cover up those crimes.”[5]

USA Gymnastics

USAG employed Nassar as its team doctor, and was legally responsible for supervising his work and investigating allegations of misconduct.[6] Victims of Nassar’s conduct have accused USAG of being “grossly negligent” and willfully disregarding “necessary precautions to reasonably protect” those who came forward with accusations.[7]

Further, some have accused USAG of attempting to “silence” sexual assault victims through the use of non-disclosure agreements (NDAs), drawing comparisons to Harvey Weinstein’s alleged conduct.[8] Gold medalist McKayla Maroney has argued that MSU, USAG, and others are legally responsible for Nassar’s abuse of her when she was 15 years old.[9] Maroney’s attorney contends that Maroney was “forced” to sign an NDA in her 2016 settlement with USAG, which released USAG from liability in exchange for $1.25 million.[10] The concerning portions of the settlement are the non-disparagement and confidentiality provisions, which essentially state that Maroney would be contractually obligated to pay USAG $100,000 in damages if she spoke against Nassar.[11] When news of this contractual obligation hit the social media sphere, including Chrissy Teigen’s viral offer to pay the fine, USAG announced that it would not seek the damages against Maroney if she testified.[12]

From Weinstein to USAG, the growing concern over the use of NDAs lingers. As Michael McCann, SI’s legal analyst, succinctly describes, “[NDAs make] repeat sexual misconduct much more likely: when each victim is legally barred from publicly sharing what happened, the perpetrator becomes more capable to victimize someone new.”[13] While NDAs are generally permitted and enforceable under the law, with a few exceptions, there have been legislative pushes to void NDAs that have the purpose of attempting to conceal claims of harassment or discrimination.[14]

Amid the Nassar scandal, all USAG board members have resigned, the Karolyi Ranch training facility has been shut down, and USAG has adopted several new policies.[15] Nonetheless, USAG’s duty to protect the victims of Nassar’s abuse is still the subject of a number of lawsuits, likely leaving the organization on the hook for millions of dollars in damages and settlements.

Michigan State University

Some have compared Nassar’s crimes at MSU with Jerry Sandusky’s conduct at Penn State, citing similarities in the “total and consistent disregard by the most senior [institutional leaders] for the safety and welfare of [sexual assault] victims.”[16] One plaintiff alleges that, in 2014, she reported to MSU that Nassar had “cupped her buttocks, massaged her breast and vaginal area, and became sexually aroused” as “treatment” for a hip injury.[17] According to this plaintiff, MSU dismissed her complaint and told her that “she didn’t understand the ‘nuanced difference’ between sexual assault and appropriate medical procedure.”[18] Another plaintiff said that MSU’s then-gymnastics coach Kathie Klages discouraged her from filing a lawsuit in the late 1990s when she told her about Nassar’s abuse.[19] MSU’s campus police and Title IX office did not begin formally investigating Nassar until 17 years after the first complaint was made to a MSU coach.[20] MSU colleagues such as Dr. Brooke Lemmen actively aided in hiding Nassar’s conduct. Not only did she remove boxes of confidential treatment information from MSU’s Sports Medicine Clinic at Nassar’s request, but she was also one of the experts that MSU relied upon to clear Nassar in a 2014 internal Title IX investigation, where she told investigators there was nothing sexual about Nassar’s treatments.[21]  From the various allegations, influential individuals at the university appear to have been on notice for years; however, Patrick Fitzgerald, MSU’s lead attorney, argues that “the evidence will show that no MSU official believed that Nassar committed sexual abuse prior to newspaper reports in the summer of 2016.”[22]

While MSU administrators claim that the university properly handles sexual assault complaints, an Outside the Lines investigation alleges that MSU has a history of concealing secrets that extend beyond the Nassar case, discovering “a pattern of widespread denial, inaction and information suppression of such allegations by officials ranging from campus police to the Spartan athletic department.”[23] A former MSU sexual assault counselor left the university in 2015 over frustration with how administrators handled sexual assault cases, particularly how complaints involving athletes fell to former athletic director Mark Hollis’ department, or sometimes even coaches, to investigate.[24] The Outside the Lines investigation includes incidents involving both football coach Mark Dantonio and basketball coach Tom Izzo, and points to a system-wide lack of transparency. In 2015, the U.S. Department of Education’s Office for Civil Rights found that a “sexually hostile environment existed for and affected numerous student and staff on [MSU’s] campus,” and that the university’s “failure to address complaints of sexual harassment, including sexual violence, in a prompt and equitable manner caused and may have contributed to a continuation of this sexually hostile environment.”[25]

MSU officials such as Hollis and former president Lou Anna Simon have resigned in light of the Nassar findings, and the university has offered up millions to help the victims of sexual assault, yet MSU is still far from righting their wrongs. The university’s legal liability will continue to be debated in courtrooms across the country.

NCAA

A new development hit social platforms on January 27, 2018, when The Athletic’s Nicole Auerbach reported that NCAA president Mark Emmert was put on notice in 2010 of 37 sexual assault incidents at MSU.[26] In a letter written to Emmert, Kathy Redmond, the founder of the National Coalition Against Violent Athletes, raised concern that MSU was not taking proper disciplinary action against athletes that had committed sexual violence.[27] Emmert penned a letter to the NCAA’s Board of Governors in response to Auerbach’s piece, claiming that “[t]he assertion that [he] and the NCAA are not reporting crimes…is blatantly false.”[28]

The NCAA officially initiated its investigation into MSU on January 23, 2018. Some expect the NCAA-imposed punishments to be similar to those given to Penn State (a $60 million fine, postseason ban, and scholarship restrictions), while others are calling for the NCAA “death-penalty,” which would terminate Michigan State gymnastics—or the entire athletic department—for a year or two.[29] What could prove to be problematic is if plaintiffs begin naming NCAA as a defendant alongside MSU and USAG by arguing that the NCAA’s constitution binds the NCAA to protect student-athletes. McCann contends that “it would be awkward, at a minimum, for the NCAA to investigate a fellow co-defendant, whose interests are not all aligned with the NCAA.”[30] With a special prosecutor set to “investigate every corner of Michigan State University,” it may be wise for the NCAA to defer to this investigation so as to ensure the findings are comprehensive and credible.

[1] Scott Cacciola & Victor Mather, Larry Nassar Sentencing: ‘I Just Signed Your Death Warrant’, N.Y. Times (Jan. 24, 2018), https://www.nytimes.com/2018/01/24/sports/larry-nassar-sentencing.html.

[2] Tracy Connor, ‘Army of Women’ Fights Gymnastics Doctor Larry Nassar with Words, NBC News (Jan. 24, 2018, 2:29PM), https://www.nbcnews.com/news/us-news/army-women-fights-gymnastics-doctor-larry-nassar-words-n840481.

[3] Michael McCann, Four Key Sports Law Implications of the Larry Nassar Scandal, Sports Illustrated (Jan. 19, 2018), https://www.si.com/olympics/2018/01/19/larry-nassar-scandal-sports-law-implications.

[4] Tracy Connor & Elizabeth Chuck, Gymnastics Doctor Scandal: What’s Next in the Larry Nassar Case?, NBC News (Jan. 24, 2018, 10:19PM), https://www.nbcnews.com/news/us-news/gymnastics-doctor-scandal-what-s-next-larry-nassar-case-n840781.

[5] McCann, supra note 3.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Rebecca Davis O’Brien, USA Gymnastics, McKayla Maroney Had Confidentiality Agreement to Resolve Abuse Claims, The Wall Street Journal (Dec. 20, 2017), https://www.wsj.com/articles/usa-gymnastics-reached-settlement-over-abuse-claims-with-gold-medalist-mckayla-maroney-1513791179.

[11] Id.

[12] Heather Tucker, USA Gymnastics Says it Will Not Fine McKayla Maroney if She Speaks Out Against Larry Nassar, USA Today (Jan. 16, 2018, 10:40PM), https://www.usatoday.com/story/sports/olympics/2018/01/16/usa-gymnastics-mckayla-maroney-larry-nassar/1039025001/.

[13] McCann, supra note 3.

[14] Id.

[15] Nicole Chavez, What Others Knew: Culture of Denial Protected Nassar for Years, CNN (Jan. 25, 2018, 11:21AM), https://www.cnn.com/2018/01/23/us/nassar-sexual-abuse-who-knew/index.html.

[16] Rochelle Riley, An Open Letter to Lou Anna Simon About Larry Nassar, Detroit Free Press (Jan. 24, 2018, 12:49PM), https://www.freep.com/story/news/columnists/rochelle-riley/2018/01/24/lou-anna-simon/1061207001.

[17] McCann, supra note 3.

[18] McCann, supra note 3.

[19] Jason Hanna, The Fallout from Larry Nassar’s Sexual Abuse is Just the Beginning, CNN (Jan. 27, 2018, 2:49PM), https://www.cnn.com/2018/01/26/us/larry-nassar-investigation-fallout-march/index.html.

[20] Paula Lavigne & Nicole Noren, OTL: Michigan State Secrets Extend Far Beyond Larry Nassar Case, ESPN (Jan. 25, 2019, 8:27 AM), http://www.espn.com/espn/story/_/id/22214566/pattern-denial-inaction-information-suppression-michigan-state-goes-larry-nassar-case-espn.

[21] Matt Mencarini, MSU Doctor Resigned After Removing Nassar Patient Files, Lansing State Journal (Mar. 17, 2017), https://www.lansingstatejournal.com/story/news/local/2017/03/17/msu-doctor-resigned-after-removing-nassar-patient-files/99316854.

[22] Chavez, supra note 13.

[23] Lavigne & Noren, supra note 18.

[24] Id.

[25] Id.

[26] Nicole Auerbach, NCAA President Mark Emmert was Alerted to Michigan State Sexual Assault Reports in 2010, The Athletic (Jan. 27, 2018), https://theathletic.com/223555/2018/01/26/ncaa-president-mark-emmert-was-alerted-to-michigan-state-sexual-assault-reports-in-2010.

[27] Id.

[28] Emmert Letter to NCAA Board, Washington Post (Jan. 27, 2018), https://www.washingtonpost.com/sports/colleges/emmert-letter-to-ncaa-board/2018/01/27/91a08298-03bb-11e8-86b9-8908743c79dd_story.html?utm_term=.4daa0d922687.

[29] Michael McCann, The NCAA’s Own History in MSU’s Sexual Assault Scandal Could Impede Any Potential Punishment, Sports Illustrated (Jan. 28, 2018), https://www.si.com/college-football/2018/01/28/mark-emmert-ncaa-michigan-state-investigation-larry-nassar.

[30] Id.

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By: Mike Stone

Ever hear of a team called the Golden Knights? Since 1969, the U.S. Army Parachute Team has performed under this name.[1] Now, the National Hockey League (“NHL”) has expanded from 30 teams to 31,[2] and the owner of the new team wants the same alias.[3] If you initially thought “Golden Knights” referred to the latter, you may begin to understand why the U.S. Army is less than thrilled with the idea of allowing the hockey club to share their name.

One particularly interesting facet of this ongoing narrative is that the new team is not even denying the fact that their moniker is a direct reference to the U.S. Army Parachute Team.[4] Bill Foley, the owner of the NHL’s expansion team, graduated from West Point and served in the United States Army.[5] In General Manager George McPhee’s opinion, the team name and logo are tributes to the U.S. Army and to Foley’s classmates that “he lost serving this country.”[6]

In fact, on social media, McPhee confirmed rumors that originally Foley wanted to name his team the Black Knights, but couldn’t because West Point had a vested legal interest in that name, as well as the authority and desire to prevent Foley from usurping the name.[7] Once it became clear that Foley could not (or, at least, should not) register the Black Knights trademark as his own, he thought the Golden Knights alternative was sufficiently distinct to avoid liability, and sufficiently symbolic such that he could still pay tribute to the United States Army.[8]

The Army did not share the same sentiment, and formally opposed the hockey club’s application to register their trademark.[9] On January 10, 2018, The Department of the Army filed their Notice of Opposition against Foley’s company, Black Knight Sports and Entertainment LLC, which controls the hockey team.[10]

The Army filed their opposition pursuant to 15 U.S.C. § 1063 and 37 C.F.R. §§ 2.101, 2.104(a), which collectively grant a cause of action to any party who believes it will be damaged if the United States Patent and Trademark Office were to grant another party’s application to register a trademark.[11] Here, the Army thought they would be damaged if the USPTO granted Foley’s application to register the Golden Knights mark in the following ways:

  1. The public is likely to be confused as to whether the U.S. Government or the Applicant controls the quality and nature of the services or endorses or sponsors Applicant’s services.
  2. The Applicant’s mark so resembles the Army’s Golden Knights mark as to be likely to cause confusion, mistake, or to deceive consumers, with consequent injury to the Army and the public.
  3. The Applicant’s mark so resembles the Army’s Golden Knights mark as to falsely suggest a connection between the hockey team and the Army, or their respective services, with consequent injury to the Army and the public.
  4. The use and registration of the hockey team’s desired mark will likely dilute the distinctive quality of the Army’s famous mark.[12]

In my personal opinion, the hockey team’s mark will not cause the requisite confusion to infringe on the Army’s legal rights to the mark for two reasons. First, the potential association between the two marks in the instant case is too attenuated. Second, even if the mark is similar enough to cause confusion, the law should be extended in the context of sports mascots.

Consider the reality of the circumstances in layman’s terms. Army contends that someone is going to see the hockey team’s mark and be confused about whether or not the hockey team is endorsed by or associated in some way with a military parachute troupe based in Virginia. Furthermore, Army believes that this association will result in damages to Army.

The Army has made clear that Foley’s attempt to pay tribute to his time in the military would be a leading cause of confusion; I would argue that the same set of facts lead to the opposite conclusion. The media cited in Army’s Notice of Opposition indicates that Foley actively sought a way to pay tribute to the Army. If an actual association existed, Foley would not have to actively seek out a way to draw this connection for the public. The conversation would have an entirely different tone. Here, the dissociation between the two entities is so overtly apparent that it was challenging for Foley to pay tribute to the Army without using the same mark the Army uses for their athletic program (Black Knights). The statements made with respect to the confusion instead make it clear that the association does not exist, and that Foley wants to figure out a legal way to pay tribute to the Army that his business is otherwise not connected to. It is not likely that the Army will be able to establish a likelihood of confusion between their own governmental entities and Foley’s company that performs professional ice hockey exhibitions.

Even if confusion were a real risk, I contend that in the context of sports mascots, there should be a much higher threshold for plaintiffs to establish a prima facie case of trademark infringement against a professional sports team because of the inherent distinction between different teams and the obvious dissociative nature of each entity. The rationale for my argument is strengthened when the plaintiff is an entity not engaged in professional sports.

The Cardinals. The Giants. The Jets. The Kings. The Panthers. The Rangers. In the four major American sports alone, twelve teams share these six names. This practice is even more common when considering college mascots and other groups. In fact, Clarkson University in New York and the University of Central Florida also use the Golden Knights moniker to represent their athletic programs.[13] (Each of these entities gave the Las Vegas Golden Knights permission to share the mark.) Sharing mascot names is a common practice across sports, and confusion about association between teams is not a realistic concern. Did you think the Arizona Cardinals of the NFL have any investment in the success of the St. Louis Cardinals of the MLB, or vice versa? As such, it should be more difficult for a plaintiff to sue for misappropriation when the defendant-entity is simply picking a nickname for their team.

[1] Steve DeVane, Army officials to review hockey team’s use of Golden Knights, The Fayetteville Observer (Nov. 27, 2016, 5:17 PM), http://www.fayobserver.com/7aa74a76-40cb-5c02-9a8e-886468bd743f.html.

[2] Cutler Klein, From six teams to 31: History of NHL expansion, NHL (Jun. 22, 2016), https://www.nhl.com/news/nhl-expansion-history/c-281005106.

[3] Steve DeVane, Army officials to review hockey team’s use of Golden Knights, The Fayetteville Observer (Nov. 27, 2016, 5:17 PM), http://www.fayobserver.com/7aa74a76-40cb-5c02-9a8e-886468bd743f.html.

[4] See, e.g., Aaron Torres, Vegas Golden Knights finally reveal their uniforms, and Twitter hated them, The Washington Post (Jun. 21, 2017), https://www.washingtonpost.com/news/early-lead/wp/2017/06/21/las-vegas-golden-knights-finally-reveal-their-uniforms-and-twitter-hated-them/?utm_term=.28cbd9f4661f.

[5] Id.

[6] Id.

[7] TSN Radio Vancouver (@TSN1040), Twitter (Nov. 14, 2017, 1:07 PM) https://twitter.com/tsn1040/status/930542833907494913.

[8] See Aaron Torres, Vegas Golden Knights finally reveal their uniforms, and Twitter hated them, The Washington Post (Jun. 21, 2017), https://www.washingtonpost.com/news/early-lead/wp/2017/06/21/las-vegas-golden-knights-finally-reveal-their-uniforms-and-twitter-hated-them/?utm_term=.28cbd9f4661f.

[9] Notice of Opposition # 87147269, USPTO, http://ttabvue.uspto.gov/ttabvue/v?pno=91238886&pty=OPP&eno=1, (last visited Feb. 2, 2018).

[10] Id.

[11] Id.

[12] Id.

[13] Marissa Payne, Despite U.S. Army’s concerns, NHL expansion team’s owner sticking by nickname choice, The Washington Post (Dec. 1, 2016), https://www.washingtonpost.com/news/early-lead/wp/2016/11/29/the-u-s-army-might-have-an-issue-with-the-nhls-newest-franchise/?utm_term=.ea3949d716b2.

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By: Cameron Miller

As the web of betrayal, harm, and suffering Dr. Larry Nassar spun during his now-disgraced career as a sports medicine physician at Michigan State University (“MSU”) and with USA Gymnastics begins to unwind, the NCAA has come to East Lasing.

On January 23, the Association has sent a letter of inquiry[1] to the institution, requesting information from the university regarding potential rules violations stemming from Nassar’s decades-long abuse.[2]

Though it’s a good public relations move for the NCAA, what, exactly, can its enforcement staff do about what occurred at MSU? While the NCAA’s rulebook contains glistening statements about “student-athlete welfare” and ethical conduct by athletic employees, the Association has few, if any, regulations MSU’s athletic department could be found liable under for Nassar’s conduct.

Before discussing the case the NCAA’s enforcement staff could potentially build, recall that NCAA has been in this very position before—and failed.

The NCAA and Penn State

In 2012, the NCAA faced a similar situation at Penn State involving former football coach Jerry Sandusky as it currently faces with Nassar: A gut-wrenching saga of child sexual abuse,[3] institutional leaders sent packing,[4] and a maelstrom of criticism to do something, anything.[5] There, the NCAA eschewed its traditional enforcement process, entering into a consent decree with Penn State in July 2012 that imposed devastating penalties: A $60 million fine, a four year postseason ban in football, scholarship losses, probation, and vacated wins.[6] The NCAA never conducted its own investigation; rather, it relied upon the Penn State-commissioned Freeh Report as the basis for its punishment.[7] And while the consent decree cited several bylaws that Penn State allegedly breached in the cover-up of Sandusky’s crimes and the failure to act on reports of his conduct,[8] most of those referenced impose no duty or obligation on member institutions and are simply aspirational in nature. The consent decree did not state with specificity how any of Sandusky’s actions violated NCAA rules and, by connection, how any of the institution’s leaders were responsible for monitoring conduct not actionable under the NCAA’s regulations.

But after becoming the target of legal action[9] and criticism for exceeding its authority, the NCAA began to roll-back its Penn State penalties in 2014,[10] eventually restoring the University’s vacated wins and withdrawing the remainder of the sanctions in 2015.[11] At the outset, the NCAA’s actions at Penn State may have been a PR victory, but by the end the Association bent under the weight of its good-intentioned-but-self-righteous attempt mollify the public outcry. Internal correspondence sent by NCAA officials at the time show even Association President Mark Emmert knew the penalties given to Penn State were a “bluff.”[12]

Potential NCAA Enforcement Action at Michigan State

By sending a notice of inquiry, the NCAA has already indicated that it seeks avoid a Penn State repeat by adjudicating any potential MSU infractions case through its normal disciplinary process. Still, the question of which NCAA bylaws MSU could have violated while Nassar was employed as a sports medicine physician remains unclear. There are several NCAA bylaws expansive enough to potentially create liability for MSU:

Bylaw 10.1 (Unethical Conduct)[13]: Bylaw 10.1 includes a non-exhaustive list of actions by athletes or institutional employees considered to be “unethical” and therefore actionable under NCAA regulations. With respect to the situation at MSU, the most relevant are:

Refusal to furnish information relevant to an investigation of a possible violation of an NCAA regulation when requested to do so by the NCAA or the individual’s institution; and

Knowingly furnishing or knowingly influencing others to furnish the NCAA or the individual’s institution false or misleading information concerning an individual’s involvement in or knowledge of matters relevant to a possible violation of an NCAA regulation.

Thus, even if Nassar’s conduct and the institution’s alleged ignorance and/or cover-up of it are not violative of any NCAA rules, a failure to cooperate fully and give truthful and accurate information during the NCAA’s investigation could result in penalties. Given Michigan State’s evident unwillingness to produce relevant documents related to Nassar’s actions to the U.S. Department of Education’s Title IX officials,[14] refusing to cooperate with the NCAA would not appear surprising.

Bylaw 19.01.5 (Exemplary Conduct)[15]: Bylaw 19.01.5, one of the “General Principles” of the NCAA’s Infractions program, is simultaneously aspirational and obligatory. Covering the conduct of intercollegiate athletic officials, 19.01.5 states that these persons’ “moral values must be so certain and positive that those younger and more pliable will be influenced by a fine example.” Whether the word “must” truly creates the “affirmative [responsibility]” stated in the bylaw is unclear, but what is known is that several MSU athletic officials failed to report Nassar when they were confronted with evidence of his abuse. From 1997-2001, youth and MSU athletes from several different sports reported inappropriate touching by Nassar to their coaches or athletic trainers. In one instance, MSU women’s gymnastics coach Kathie Kagles defended Nassar’s conduct to two underage girls;[16] in another, a softball player who had been touched by Nassar reported his actions to two MSU trainers—both of whom are still employed by the University—who dismissed her complaints.[17] None of these individuals or the others who became aware of Nassar’s conduct through the years upheld the spirit of 19.01.5, but whether this falls within the scope of the unethical conduct standard is unknown.

Bylaw 2.2.3 (Athlete Health and Safety)[18]: Per the NCAA’s Constitution, MSU is responsible to “protect the health of, and provide a safe environment for” its athletes.[19] And, as a Division I member, MSU “should provide an environment that fosters…safety…”[20] It clearly failed to do so. But again, there is a question of whether providing “safety” for athletes is a “should” or “must” under the NCAA’s bylaws.

In short, and notwithstanding obstruction of the NCAA’s investigation, there is little, if any ground on which the Association’s enforcement arm can build its case. But, if Penn State was any indicator, the NCAA’s inability to act under its own regulations doesn’t mean it won’t.

[1] Letter from Oliver Luck to Mark Hollis (January 23, 2018), https://drive.google.com/viewerng/viewer?url=http://media.freep.com/documents/2018/01/mark_hollis_letter_01242018.pdf.

[2] Emily Lawler, NCAA to Investigate Michigan State Over Nassar, MLive.com (January 23, 2018), http://www.mlive.com/news/index.ssf/2018/01/ncaa_to_investigate_msu_over_n.html.

[3] CNN Library, Penn State Scandal Fast Facts, CNN (last updated November 28, 2017), https://www.cnn.com/2013/10/28/us/penn-state-scandal-fast-facts/index.html.

[4] Id. (“November 9, 2011 – Paterno announces that he intends to retire at the end of the 2011 football season. Hours later, university trustees announce that President Graham Spanier and Coach Paterno are fired, effective immediately.”).

[5] Tim Rohan, Scandal at Penn State Poses Tough Choices for N.C.A.A., The New York Times (July 14, 2012), http://www.nytimes.com/2012/07/15/sports/ncaafootball/penn-state-scandal-poses-tough-choices-for-ncaa.html.

[6] BINDING CONSENT DECREE IMPOSED BY THE NATIONAL COLLEGIATE ATHLETIC ASSOCIATION AND ACCEPTED BY THE PENNSYLVANIA STATE UNIVERSITY (July 23, 2012), https://www.ncaa.org/sites/default/files/Binding%20Consent%20Decree.pdf, at 5-6.

[7] Consent Decree at 2.

[8] Id. Cited are NCAA Bylaws 2.1, 6.01.1, 6.4, 10.01.1, 11.1.1, 10.1, 2.4 and 19.01.2 (now 19.01.5).

[9] Charles Thompson, Gov. Tom Corbett launches counterattack on NCAA’s Penn State sanctions, PennLive.com (January 2, 2013), http://www.pennlive.com/midstate/index.ssf/2013/01/gov_tom_corbett_launches_count.html; Charles Thompson, State Sen. Jake Corman files second lawsuit against NCAA over Penn State sanctions, PennLive.com (January 4, 2013), http://www.pennlive.com/midstate/index.ssf/2013/01/state_sen_jake_corman_files_se.html; Bill Chappell, Paterno Family Sues NCAA To Reverse Sandusky Sanctions, NPR (May 30, 2013), https://www.npr.org/sections/thetwo-way/2013/05/30/187261347/paterno-family-to-sue-ncaa-to-reverse-sandusky-sanctions.

[10] Steve Eder and Marc Tracy, N.C.A.A. Decides to Roll-Back Penalties Against Penn State, The New York Times (September 8, 2014), https://www.nytimes.com/2014/09/09/sports/ncaafootball/penn-states-postseason-ban-is-lifted.html.

[11] SI Wire, NCAA to Restore Joe Paterno’s Vacated Penn State Wins, SI.com (January 16, 2015), https://www.si.com/college-football/2015/01/16/joe-paterno-penn-state-wins-restored.

[12] Kevin Horne, Internal Emails Show NCAA Questioned Authority to Sanction Penn State, OnwardState.com (November 5, 2014), http://onwardstate.com/2014/11/05/internal-emails-show-ncaa-questioned-jurisdiction-over-penn-state/ (NCAA Vice President of Academic and Membership Affairs Kevin Lennon: “I know we are banking on the fact the school is so embarrassed they will do anything, but I am not sure about that, and no confidence conference or other members will agree to that. This will force the jurisdictional issue that we really don’t have a great answer to that one…”).

[13] NCAA Bylaw 10.1, see http://www.ncaapublications.com/productdownloads/D118.pdf at 45.

[14] Paula Lavigne, Michigan State sought to end federal oversight, delayed sending Nassar files, ESPN.com (January 25, 2018), http://www.espn.com/espn/otl/story/_/id/22211140/michigan-state-sought-end-federal-oversight-delayed-sending-feds-files-larry-nassar-espn.

[15] NCAA Bylaw 19.01.5, see http://www.ncaapublications.com/productdownloads/D118.pdf at 329.

[16] Tracy Connor and Sarah Fitzpatrick, Gymnastics scandal: 8 times Larry Nassar could have been stopped, NBC News (January 25, 2018), https://www.nbcnews.com/news/us-news/gymnastics-scandal-8-times-larry-nassar-could-have-been-stopped-n841091.

[17] Id.

[18] NCAA Bylaw 19.01.5, see http://www.ncaapublications.com/productdownloads/D118.pdf at 329.

[19] NCAA Bylaw 19.01.5, see http://www.ncaapublications.com/productdownloads/D118.pdf at 3.

[20] Commitments to the Division I Collegiate Model, see http://www.ncaapublications.com/productdownloads/D118.pdf.

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