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NCAA Violations

NCAA To Drop Women’s Equestrian As Emerging Sport in…

An NCAA emerging sport is defined as: “A women’s sport recognized by the NCAA that is intended to help schools provide more athletics opportunities for women, more sport sponsorship options for institutions and help that sport achieve NCAA championship status.”

Unfortunately, beginning in 2017, the NCAA Committee on Women’s Athletics (“CWA”) has recommended the NCAA no longer recognize women’s equestrian as an emerging sport. Archery, badminton, team handball, and synchronized swimming are four examples of other emerging sports that have suffered the same fate. Women’s equestrian failed to reach the 10-year benchmark set by NCAA bylaws for emerging sports. During an emerging sport’s first 10 years it must reach “championship status,” which means the sport must establish 40 varsity programs or steady progress toward that goal. Currently, there are only 19 division I varsity women’s equestrian programs with only 719 participant athletes.

Even if collegiate athletic programs want to continue varsity equestrian at their schools, it may not be feasible due to NCAA bylaws. NCAA Bylaw 20.9.6 requires that NCAA athletic programs maintain 16 NCAA recognized sports. Without the NCAA’s recognition of equestrian, schools will be forced to add a different NCAA recognized sport to meet the bylaw requirement. Ultimately, this may mean the end of women’s equestrian programs because without NCAA recognition, there is no incentive to continue to fund this expensive sport.

As a 4-year letter winner in equestrian at South Dakota State University with All-American honors, the loss is unfortunate, though understandable. Equestrian requires more than just facilities; it also requires well-trained operational staff, 40-50 horses, and other considerations when dealing with a barn. However, despite the cost, varsity equestrian was more than just a fun activity during college for me. It was an excellent motivating factor to work hard both in and out of the classroom and to contribute to the community around me. Varsity equestrian positively impacted my life in an indescribably positive way.

“Varsity Equestrian provided great opportunities for both equestrian athletes and the equestrian community as a whole,” noted former varsity equestrian Kelsey Byrnes. “I’m worried for the future of the athletes – both human and equine.”

Kansas State University (“KSU”) is the first of the 19 programs to discontinue the sport. However, KSU will continue to honor its financial commitments to both the athletes and coaches. To meet the NCAA’s 16 recognized sport threshold, KSU will establish a women’s soccer program in the 2016-17 school year. It will be interesting to see how long it takes for other programs to follow suit. Hopefully, other schools will honor their financial commitments to both athletes and coaches as KSU has done.

Antitrust

Big Changes Ahead for NCAA: Autonomy for Big 5…

In August of this year, the NCAA Board of Directors approved more autonomy for the Big 5 Conferences in a 16-2 vote. The Big 5, consisting of the SEC, ACC, Big 10, Big 12, and PAC 12, now has the power to change the landscape of collegiate athletics. These conferences have the ability to vote on and enact new rules to govern themselves. To enact a new rule, the rule must be approved by (a) 60% of the 80 voters from each conference, including 3 student representatives from each school, plus a majority of schools within 3 out of 5 of the conferences, or (b) a majority of all voters plus a 4 out of 5 majority from the schools in those conferences. Any school is welcome to follow the new rules enacted by the Big 5, though budgetary restrictions may prevent them from being able to do so.

The Big 5 are expected to tackle various issues because of their enhanced autonomy, including whether to increase athlete stipends and offer medical benefits to student-athletes. NCAA President Mark Emmert says the measure will better support student-athletes. Skeptics of the change fear that the new system will only exaggerate the gap between the wealthy schools and institutions with less financial means. “College athletes have been putting tremendous pressure on NCAA sports to eliminate unjust policies, and this vote demonstrates how much power players have when they stand up against this system,” said Ramogi Huma, the Executive Director of the National College Players Association.

The rule changes follow a series of lawsuits against the NCAA. Judge Claudia Wilken of the United States Court of Appeals for the Ninth Circuit presided over the Ed O’Bannon anti-trust lawsuit, which found that limits on collegiate athletes’ compensation “unreasonably restrains trade.” Judge Wilken granted an injunction that, beginning in the 2016-17 school year, will allow for full compensation to football and basketball student-athletes as well as a system of deferred compensation for their images and likenesses. The NCAA plans to appeal this decision. Hopefully, the new Big 5 autonomy will find the appropriate balance between collegiate sports and athletes’ rights.

            The Big 5 decision will be finalized in October and substantial rule changes can be expected around 18 months from now. These changes will go into effect in 2016.

Uncategorized

“Take a Page Out of Little League” – It’s…

The following article was written by Benjamin Haynes, Esq.

Oct 14, 2012; Bronx, NY, USA; Second base umpire Jeff Nelson (left) watches as Detroit Tigers second baseman Omar Infante (in grey) tries to dive back to second base against New York Yankees second baseman Robinson Cano in the 8th inning during game two of the 2012 ALCS at Yankee Stadium. Infante was called safe. Credit: Brad Penner-USA TODAY Sports

In game two of the ALCS, Detroit Tigers’ Omar Infante overran second base and was desperately trying to dive back to the bag. New York Yankees second baseman Robinson Cano applied the tag to Infante and clearly tagged him before Infante could even get remotely close to reaching the base. However, the umpire called Infante safe. Yankees manager Joe Girardi went out to argue the call with the umpire. Eventually, Girardi got thrown out of the ball game for excessive bantering. After the game, the umpire admitted that he missed the call.

While this blown call didn’t cost the Yankees the game, this incident hammered home the strikingly obvious issue that has been on the mind of many baseball fans, players, and general managers. Why isn’t there instant replay in Major League Baseball?

The NBA has it, the NFL has it, heck, even the Little League World Series has it. So why hasn’t the MLB introduced the instant replay to the game? When asked about the possible implementation of instant replay, vice president of baseball operations, Joe Torre, stated “We have to make sure we don’t make a knee-jerk reaction to something that’s, you know, already — we settle this tag play at second base, and all of a sudden we find, you know, something else comes up and something else comes up, and the game goes on and on forever and forever.”

Currently, Major League Baseball only allows instant replay to verify where a home run occurred. However, baseball is further exploring the option of instant replay. If MLB decides to pull the trigger, the new instant replay rule would only allow umpires to view replays to determine if 1) the fielders catch or trap fly balls and line drives, 2) the ball lands fair or foul when right near the lines, and 3) fans interference with a fielder’s chance at making a play whether fair or foul. Therefore, as Joe Torre pointed out last night, the tag incident during game two would not be one that would be reviewed under the three instant replay criteria. This seems to be a step in the right direction, yet still has fundamental flaws.

The NFL allows coaches to throw out challenge flags, which gives a team the ability to challenge a call via instant replay. MLB currently has no plans of having such challenges available to general managers even though the Little League World Series has implemented such challenges and it has worked extremely well. In the Little League World Series, a team’s coach can challenge as many times as he wants, until he has two failed challenges. Once his two failed challenges have occurred, the coach is no longer allowed to challenge a call. This system has been effective for twelve-year-old’s and it seems that such a system would work well with the big leagues. In fact, it is fairly baffling to think that the Little League World Series has better umpiring and instant replay than that of the highest level of baseball, the Major League.

Essentially, it seems as if Joe Torre is afraid of instant replay in baseball reaching a magnitude of being extremely time consuming in a game that is already inherently long. “We’re not saying it can’t happen, but right now we haven’t really come up with a conclusion on what’s the best way to go about it and not make the game drag on and go any longer than they are already going,” Torre stated.

Joe Giradi doesn’t buy this argument. Girardi stated that by the time the manager goes out onto the field to argue the play, the umpires could get together and make a decision in a speedy fashion. Further, Girardi believes that with such technology available, it doesn’t make sense not to use it to its full extent. “In this day and age when we have instant replay available to us, it’s got to change.”

It seems that getting a call correct should be held to a higher degree of importance than ensuring a speedy game. However, there is an important balance that needs to be discovered by baseball; that balance lies somewhere between keeping the game’s pace relatively fluent, and making sure the correct calls are being made. The NFL and the NBA have been successful at finding such a balance, and MLB needs to follow in their footsteps. Baseball is America’s past time, but it’s time to better the sport by implementing instant replay and giving managers the option to challenge calls.

Uncategorized

Through the Eyes of Compliance: Q & A with…

The following article was written by Benjamin Haynes, Esq.

During my 3L year of law school, I had an externship with Jacksonville University’s Athletic Compliance office. I had no idea what to expect coming in. During my collegiate basketball career, I never paid attention to the compliance directors, just like most of the other athletes. I remember signing various documents during the annual compliance meeting, but it was something I didn’t put a lot of effort in understanding. However, during my externship, I realized just how detail oriented the NCAA rules manual is, and how there is a heavy burden that rests upon the compliance directors at the universities.

For this article, I interviewed Jeffrey Mitchell. Jeff is the Associate Athletic Director at Santa Clara University, and serves as the sport supervisor for the Broncos’ men’s basketball and baseball program. Further, Jeff coordinates the University’s NCAA compliance program. Jeff attended law school at the University of Mississippi, from which he earned a Juris Doctorate in December of 2005. Mitchell is the primary contact for all NCAA related business including legal affairs and institutional control matters. He is also an award-winning author, writes a column published quarterly in SCU’s Bronco Sports Magazine and has been a reference for the LA Times on NCAA compliance issues.

While many fans see compliance related issues from the athlete or the NCAA’s perspective, this article’s purpose is to shed light on the University’s perspective with regards to compliance issues. Jeff is a perfect interviewee for this topic because of his extensive knowledge and experience.

Q: In general, what are your biggest concerns on a daily basis as a compliance director?

A:  I’ll address my concerns from the standpoint of an athletics administrator.  On a daily basis, I want to do my part to ensure that we, as an administration, are serving our coaches and student-athletes by providing the necessary resources for them to be successful.  Are we providing a good collegiate experience for our student-athletes?  Are we treating them fairly? Are we providing sufficient staffing support, competent coaching, and safe facilities?  Certainly, a significant focus of an athletics administrator is geared to NCAA compliance.  In that regard, my first priority is to ensure that the status of our students as amateur athletes is constantly being protected. 

Q: I remember my compliance meetings in college. Like most of the other athletes, I didn’t pay attention. What can you do to try and help athletes understand the NCAA rules as applied to them?

A: I make it real for them.  I give them real examples with real consequences.  For example, we walk through the scenario of a student-athlete receiving an extra benefit in the form of an impermissible $100 handshake and the resulting eligibility concerns associated with that violation.  Our student-athletes know that their participation in intercollegiate athletics is a privilege, and they know that such participation can be jeopardized by a mistake or series of mistakes.  The goal is to educate them and to ensure them that my job, in part, is to help protect their status as an amateur.  I believe strongly that the more trust our student-athletes have in our coaches and administrators, the more respect is given to compliance standards.

Q: How do you believe law school has helped you with regards to your compliance position?

A:  As an athletics administrator, I appreciate that I am a law school graduate. I am a better prepared administrator because I learned a unique way of thinking and communicating through legal education.  In tandem with my background in business management, I take advantage of my law school experience to be a more effective leader.  Specific to compliance efforts, when filing waivers, I credit my success to skills honed in legal research and writing classes.  When working with our General Counsel’s Office, I am grateful for having been educated about contracts and civil rights law. 

Q: Do you feel as if coaches are more receptive to working with you, or do you feel as if coaches view you as a nuisance?

A:  It starts with trust.  I try to spend more time talking to coaches about their families, their sport, or other relevant topics than I spend talking to them about compliance.  To be sure, compliance issues and questions arise constantly, and I have a steady stream of coaches who visit with me every day.  In addition to overseeing our compliance program for 18 Division I athletic programs, I directly supervise the day-to-day operations of our men’s basketball and baseball programs.  Without a high level of trust between coaches and me, no productive work gets accomplished. With a high level of trust, when we do have a compliance issue, the resolution is reached amicably and respectfully. 

Q: From the eyes of compliance, what are the positives and negatives to working at a high major university compared to a mid-major?

A: This is a matter of attitude.  The good news is that the vast majority of rules for Division I are consistent.  Rules do vary by sport, and football has its different regulations in FBS and FCS divisions; but compliance issues at the mid-major level are, for the most part, the same as the issues at the high major level.  The principle of integrity is as significant at the mid-major level as it is at the high major level. The media may not always accurately portray that, and to be fair, heightened scrutiny in football at BCS level institutions leads to different organizational efforts when it comes to compliance.  Staffing is probably the most oft cited negative.  The level of staffing in compliance is a University decision that varies from level to level, and high major universities tend to employ more administrators in compliance than mid-major universities. 

Q: What policies are in place in order to monitor Santa Clara’s athletes on social media websites?

A:  At Santa Clara, we encourage our students to participate in social networking.  We know who is active on Facebook and Twitter, and we encourage our students to promote the University and Santa Clara athletics through these sites.  We understand that our student-athletes communicate with friends this way, and to reference an earlier statement, our student-athletes are well aware of the privilege that they have as members of an intercollegiate athletics team.  They know that alumni, fans, and future employers may very well be watching them through social media.  Rather than fear social media, we embrace it, and we are constantly educating our student-athletes to take advantage of networking opportunities in a healthy and productive manner.

To go along with the great insight provided above, Santa Clara has a compliance page on their athletic website which has information on various NCAA and University rules. There is information provided for prospective student-athletes; current student-athletes; and information for agents as well. Further, this compliance page, in bold letters, states, “ALWAYS ASK BEFORE YOU ACT!”

Uncategorized

Winning, Abuse, and Players Being Soft: A Look Inside…

The following article was written by Benjamin Haynes, Esq.

Here is the scenario: It is the first day of conditioning for a division one basketball program. Naturally, players come in thinking they are in shape, only to find out that the strength and conditioning coach’s regimen for the team would prove otherwise. The conditioning starts off with stations of various lateral quickness improvement drills. This is followed by multiple sprints known as 17’s, where a player starts on the sideline and runs continuously back and forth from sideline to sideline 17 times. These 17’s are timed, and each player must make every sprint under a minute, or the entire team has to re-do the sprint. About halfway through the sprints, players start throwing up and pondering the thought of faking injuries. Some actually do quit the sprints due to an “injury”. All the while the coach is verbally challenging the players on a personal level (sometimes extremely personal) in order for the athlete to push through the pain and be mentally tough. This was my personal experience (no I was not one who got “injured”), and is the norm for programs all across the country.

So the proposed question is this: When is a coach doing his job by pushing a player to press past the mental fatigue in order to improve, and when is a coach mistreating or abusing a player?

Billy Gillispie has been in the news again recently. Coach Gillispie has allegedly been mistreating players during his one-year tenure at Texas Tech University. Players have stated that Coach Gillispie had been practicing more hours than the NCAA permits. Jordan Tolbert, Texas Tech’s leading scorer from last year, has gone on record stating that he doesn’t want to play for coach Gillispie if he comes back. An example of some of the “mistreatment” that has been revealed by these players is that Gillispie is allegedly not tolerant of injuries. It was reported that Gillispie supposedly made a player, Kader Tapsoba, who had stress fractures in both legs, run the arena steps until he started crying from the pain.

While at Kentucky, Billy Gillispie had been accused of severely mistreating players and playing multiple “head games” with players. While pushing a player mentally to dig deeper and improve, some of Gillispie’s methods while at Kentucky were severely questioned. For instance, it was reported on ESPN.com that Josh Harrellson said Gillispie once became so angered that he instructed Josh to sit in a bathroom stall during a halftime talk at Vanderbilt and then ordered him to ride back to Lexington in the Kentucky equipment truck. This type of treatment by a coach is not normal, but does it reach the level of abuse? Kentucky and Texas Tech would say yes, but would Texas A&M and UTEP?

This is not another article to bash Billy Gillispie and bring out more incidents that he has allegedly committed. This article is to provide insight on the thought process of how Billy Gillispie thinks, and how programs and fans react to such conduct based upon a program winning or losing.

Before going to Kentucky, Billy Gillispie was a head coach at both UTEP and Texas A&M. UTEP had won six games the season before Coach Gillispie arrived, and won 24 once Billy took over. At Texas A&M, the Aggies had zero conference wins prior to Billy taking the head coaching job. After Billy arrived, Texas A&M went to the Sweet 16 and also developed players, such as Acie Law, well enough to get drafted to the NBA.

Several notable basketball names have come to the defense of Coach Gillispie, the biggest name being Bill Self, the Head Coach of the Kansas Jayhawks. Coach Gillispie was an assistant to Self while at Illinois. Bill Self contacted ESPN in order to give his thoughts on the situation. Self was quoted saying, “I will say this: To have players who have only been in a program for a year or two and be such experts on what it takes to win and how to be treated is a little bit hard to grasp.”

Players who have not experienced Coach Gillispie would consider his coaching methods shocking and abusive, but just because they are not normal methods, does that mean they are so wrongful that Billy should be fired? Certainly, forcing an athlete to work out when seriously injured is abuse, and if true, should be grounds for termination. Has Billy Gillispie developed a course of conduct where he forces injured players to play?

To answer these questions, I interviewed a source that has been very close to Billy Gillispie’s basketball programs in the past. The source had this to say about Billy Gillispie from a basketball standpoint:

“From an X’s and O’s standpoint, Coach Gillispie has a great basketball mind. He has come from nothing. He came from being a high school coach, with no basketball playing background, to being a head coach at Kentucky in just 15 years. So he is going to push his players to do tough things so that these players are mentally tough and believe they can beat top teams even if they are not as talented.”

When I asked him about whether Coach Gillispie forced injured players to play, he said,“Coach G’s big thing was that there is a difference between being injured or hurt. If you were injured, you weren’t going to play, but if you are just sore and hurting you are going to play.”  This is not abnormal, as my coach in college continually told us the same thing.

When asked about Billy’s tough methods, he responded by stating, “It’s a process. In that process, a lot of players breakdown. Combine that with losing, and it can turn into a nightmare. I truthfully believe his intentions are good.”

While at UTEP and Texas A&M, Billy Gillispie was never accused of mistreating his players. However, Billy Gillispie was racking up wins for these programs. Most people believe that the reason Billy Gillispie was terminated at Kentucky was because he was mistreating players. While the mistreatment of players had a small part in Kentucky firing him, there was more to the dismissal. Kentucky basketball is a different beast. They expect you to win a championship every single year, but also, they expect you to conduct interviews and mingle with “Big Blue Nation’s” fan base and boosters on a daily basis. Billy Gillispie was not very kind to numerous reporters during interviews and did not seem to accept the Kentucky basketball motto. You have to be a skillful politician to be a successful coach at Kentucky (see: John Calipari). Also, making the NIT for the first time in almost two decades was unacceptable.

Ask any Kentucky basketball fan this: would you have wanted Billy Gillispie to stay had he led Kentucky to a Final Four? The answer, undoubtedly, would be yes. Kentucky doesn’t care if you throw Josh Harrellson in the bathroom stall as long as you are hanging Final Four banners. So, while Billy Gillispie received a reputation for mistreating players at Kentucky, this mistreatment was far from the primary reason Billy was let go.

Texas Tech was 8-23 under coach Gillispie last season. Had Coach Gillispie been 23-8, would the athletic department be pondering the idea of releasing him over a few accusations of mistreating players? It is doubtful. Don’t believe me? I have some precedent. Case in-point: Bobby Knight.

It is well documented that Bobby Knight had an extremely bad temper. Allegations of Knight emotionally and physically abusing players, by slapping or kicking them, have been made on numerous occasions throughout Bobby’s coaching career. Even through all of the different accusations, Indiana retained Bobby Knight. Why? Maybe it was because Knight had won three National Championships for the University. It wasn’t until 2000, when Indiana had not made it past the second round of the NCAA tournament for six years, that Bobby Knight was finally terminated. The Indiana University president all of a sudden developed a “zero tolerance” policy towards Bobby Knight as accusations of him choking various players during practices surfaced. If Knight had continued to win championships, Indiana would have probably allowed Knight to stay.

While winning, Indiana University was willing to deal with Coach Knight’s temper. However, once losing was the norm for the Hoosiers, Knight’s temper was no longer something Indiana was willing to tolerate.

Compared to Bobby Knight, Billy Gillispie is a saint. Billy has never been involved with any conversation of physically hitting one of his players. Imagine if Billy Gillispie had choked a player in practice at Texas Tech or Kentucky. He would be fired before Kentucky nation could even get a hold of him on Twitter. Still, Billy Gillispie has been pegged as an extremely abusive coach through testimony of a few players.

It should be noted that players these days are much more coddled than players of the past. Through the development of AAU, 6th-graders being ranked, and the dynamic of the game changing, players these days are not used to having coaches act like Billy Gillispie or Bobby Knight. Old school toughness is gone from the game today, and it’s expected to be gone from the way coaches coach as well.

If Billy Gillispie forced an athlete to practice when Billy knew the student-athlete was seriously injured, that is undoubtedly mistreatment and abuse. However, Billy Gillispie’s mental games may or may not be deemed actual mistreatment. According to Billy’s past, if a school is winning, most likely the mistreatment isn’t bad enough for firing. However, if the school is losing, Billy is the most abusive coach in the land. This article was not written to defend Billy Gillispie in his actions, but to bring to the forefront the change of what is acceptable and unacceptable action in this era, as well as to point out that winning covers a plethora of flaws.

Uncategorized

NFLPA v. NFLCA

The following article was written by Cyle Kiger.

The National Football League Players Association (“NFLPA”) has filed a suit (found here) on April 17th, 2012, against the NFL Coaches Association (“NFLCA”) in the District of Columbia.

The NFLCA was established in 2005 as a membership organization and District of Columbia Corporation representing coaches in the NFL.  The NFLPA has multiple claims against the Coaches Association, the first of which is in its first decade, the NFLCA accrued $650,324.88 in debt to the NFLPA, who claims, the NFLCA failed to acknowledge the debt.

The plaintiff claims that the NFLCA has used office space, staff, administrative services and financial support that the NFLPA provided while being continually dependant on the NFLPA to pay for staff and licensing issues.

Who is the Executive Director of the NFLCA?

Two opposing sides to one issue.  The NFLCA’s standpoint is that David Cornwell, a sports lawyer, was properly appointed into the position as Executive Director.  However, the NFLPA claims that DeMaurice Smith is the Executive Director of the NFLCA.

In Cornwell’s statement, he claims that the NFLPA congratulated him on the appointment of Executive Director (NFLPA’s statement on NFLCA congratulation, here)  and promised to send the proper business records to him, which the NFLPA failed to act on that matter in a timely fashion.

The NFLCA claims that the Players Association ignored their promise and is attempting to take control of the organization through naming DeMaurice Smith as the Executive Director of the NFLCA, deceptive practices, and ignoring demands for property by the NFLCA.

Cornwell went on to say that the NFLPA along with Smith has not done anything for the coaches and that there has not been a continued support for association with the NFLPA, stating, “the lawsuit is a smoke screen to prevent the NFLCA from breaking away from the NFLPA.”

The NFLCA Constitution provides guidelines for the election of officers, which include the Executive Committee.  In short, the Constitution states that Executive Committee members serve two-year terms;  job duties of the committee include managing the business and affairs of the NFLCA between board meetings.

However, the Executive Director differs from the Executive Committee on a few points.  First, the job entitles three years of service and until his successor is qualified and elected.  Second, the position also allows the hiring of staff, as necessary, to perform the affairs of the NFLCA.

The NFLPA alleges that David Cornwell was not properly elected into the position of Executive Director.  With no evidence of the election, Cornwell produced a resolution adopted by the Executive Committee appointing Cornwell to the position until the NFLCA Board of Representatives meeting in 2013.

Shortly after taking the position, Cornwell was notified by the NFLPA that the NFLCA still owes $650,324.88 to them for costs such as salary and other expenses.  Currently, the NFLCA does not have complete control over the organization’s bank account at Amalgamated Bank that has $300,000.

The Plaintiff asks for an order to:

  • Not disburse any funds from the bank account at Amalgamated Bank under the name NFLCA.
  • Declare the NFLCA indebted to the NFLPA in the amount of $650,324.88
  • Determine whether David Cornwell is the lawfully elected Executive Director of the NFLCA
  • Awarding the debt owed to the NFLPA or imposing a lien on the funds for the NFLCA

This is an interesting case because the bigger issue at hand  is if Cornwell is Executive Director.  He came into the job because the prior Executive Director, Larry Kennan, left in December when he accepted a collegiate head coaching job.  That fact alone provides insight as to why there was no scheduled election.

Is De Smith the rightful Executive Director?  I would like to be against this, as it seems Smith is gobbling up executive positions as if he’s gunning to be the Commissioner of the NFL within the next few years.

 

Uncategorized

The Legal Blitz Feature: Did Tiger Woods Have a…

Each Friday we will feature an article from our good friends at The Legal Blitz. Please enjoy the following piece and check out The Legal Blitz when you get a chance!

For the first time in a long time, Tiger Woods is entering the Masters coming off a win, and feeling good about his golf game.  Woods’ golf game, and life were turned upside down after crashing his car Thanksgiving weekend in 2009.  The crash was followed by accusations of continual infidelity with several women. A week later, US Weekly released a voicemail message left by Woods to one of his alleged mistresses.  Throughout the relentless media coverage, Woods insisted on his family’s right to privacy.  He even chastised the press for invading this right during hiatus from golf.  He said,

“I have always tried to maintain a private space for my wife and children. They have been kept separate from my sponsors, my commercial endorsements. When my children were born, we only released photographs so that the paparazzi could not chase them. However, my behavior doesn’t make it right for the media to follow my two-and-a-half-year-old daughter to school and report the school’s location. They staked out my wife and they pursued my mom. Whatever my wrongdoings, for the sake of my family, please leave my wife and kids alone.”

While Woods certainly had the platform to insist on his privacy, did he have a legal remedy? Could he have sued the media outlets that released the intimiate details of his life to an eager mass audience?

The Legal Blitz asked Professor Patricia Sanchez Abril those same questions.  Professor Abril teaches in the Business Law Department at the University of Miami’s School of Business Administration.  She also wrote the article, “A Simple, Human Measure of Privacy”: Public Disclosure of Private Facts in the World of Tiger Woods. (10 Conn. Pub. Int. L.J. 385) 

Professor Patricia S. Abril

After Tiger Woods’ accident he wrote a statement to the media which said, “No matter how intense curiosity about public figures can be, there is an important and deep principle at stake which is the right to some simple, human measure of privacy.”  As a legal principle, is Woods correct?

The “important and deep principle” that Tiger is invoking is not a legal one, but rather an ethical or dignitary one. He was pleading to be left alone, even though he (and his lawyers) certainly knew there was nothing they could do to stop the gossip train. His pleas echo those of the British celebrities currently testifying against invasive tabloid practices such as phone hacking. The difference, of course, is that there is no evidence that the press obtained the stories of Tiger’s infidelities in a surreptitious or illegal manner.

Discuss the friction between the “invasion of privacy tort” and the first amendment?

The tort of public disclosure of private facts provides redress for the unwarranted publication of truthful, private facts that are non-newsworthy and offensive to the reasonable person. The tort is an outgrowth of an 1890 Harvard Law Review article by Samuel Warren and Lewis Brandeis in which the two complained of the privacy invasions occurring at the hands of the yellow press armed with new technologies (such as the camera). The First Amendment, of course, generally prohibits the government from silencing the expression of truthful information either by direct regulation or through the authorization of private lawsuits. As you can imagine, there’s friction between the two, prompting some legal scholars to argue that the public disclosure tort’s threat to freedom of expression renders it unconstitutional.

An open question remains as to “whether liability can constitutionally be imposed for . . . private facts [other than public records] that would be highly offensive to a reasonable person and that are not of legitimate concern.”[1] The Supreme Court shed some light in a 1989 case, Florida Star v. B.J.F.[2] In this case, a newspaper named The Florida Star published the name of a sexual assault victim in apparent contravention of a Florida statute that prohibited the publication of the name of a victim of a sexual offense. A Florida Star reporter-trainee had obtained the victim’s name from a police report that was made available to him while in the Sheriff’s Department pressroom. The newspaper then published the name inadvertently and contrary to its own internal policy. The victim sued the newspaper for negligently violating the statute and a jury awarded both compensatory and punitive damages, which were upheld on appeal. The Supreme Court reversed, holding that the award was inconsistent with the First Amendment for several reasons. First, the newspaper had obtained the supposedly private information (the name) in a lawful manner. The Supreme Court was unwilling to impose liability for truthful information legitimately acquired, and available to the public. Second, the Court concluded that imposing liability on the Florida newspaper did not “further a state interest of the highest order,”[3] as the punishment of truthful, lawfully-obtained information should in order to be considered constitutional. In sum, Florida Star held that punishment for the publication of truthful, lawfully-obtained information is only constitutional when narrowly tailored to a state interest of the highest order.

How have courts drawn the line between legitimate news reporting and invasions of privacy?

The public disclosure tort solely protects information that is not ‘newsworthy’ or ‘of legitimate public concern.’ It defines “legitimate public concern” rather circularly as “matters of the kind customarily regarded as ‘news’” as defined by “the mores of the community” and “publishers and broadcasters… themselves.” The Restatement goes on to give the following as examples of topics of legitimate public concern: “homicide and other crimes, arrests, police raids, suicides, marriages and divorces, accidents, fires, catastrophes of nature, a death from the use of narcotics, a rare disease, the birth of a child to a twelve year-old girl, the reappearance of one supposed to have been murdered years ago, [and] a report to the police concerning the escape of a wild animal and many other similar matters of genuine, if more or less deplorable, popular appeal.” As you can see, the common law casts a wide net.

Despite the rather detailed laundry list of authorized publicity, perhaps the best definition of “legitimate public concern” is what it is not.  Non-newsworthiness is defined as that which ‘becomes a morbid and sensational prying into private lives for its own sake with which a reasonable member of the public, with decent standards, would say that he had no concern.’

In Tiger Woods’ case, does it make a difference that he is a celebrity?

Celebrity status certainly makes a difference because famous people are clearly more likely to be legitimately newsworthy. We know from defamation jurisprudence that they receive much less protection against idle chatter about their lives. In listing the topics of authorized publicity, the Restatement lists “marriages and divorces.” Add to that the facts that Tiger’s marital indiscretions and ensuing reputational issues had an economic impact on the brands he endorsed and on his career and you have a pretty good argument that the fact of his divorce was of legitimate public concern. Now whether the lurid details were of legitimate public concern is another story.

Do you think Woods could have successfully sued any of the various media outlets that disclosed his private information?

No, unless there was evidence somewhere that the media outlets used invasive or illegal means of newsgathering, which doesn’t seem to be the case. If the media outlets had reported something that was untruthful, he could have sued for defamation. But remember that suing would require disclosing more private matters in the public record. It would be counterproductive in a privacy case, no?

What disclosures would give Woods his best chance at a successful suit?

The tort of public disclosure of private facts only addresses those disclosures of information that is non-newsworthy, private, and offensive to the reasonable person. We’ve established that the fact of Tiger’s divorce is legitimately newsworthy. The law has a clear boundary defining what is considered “private” – and it is pretty extreme. In other words, it is probably not how you would define “private” in your own life. Any information that has been disclosed (even if only to a group of acquaintances), is publicly available, and in the public record is deemed “public,” as is anything visible from a public place. As such, the images of Tiger’s crashed SUV outside his house, the police report of that incident, and the public statements of his alleged girlfriends are not “private.”

In your opinion, how does society benefit, if at all by limiting the privacy rights of celebrities, and giving tabloids almost free reign?

First, let’s be clear that celebrities generally benefit from their fame. Unless you are an unwitting celebrity (because you were unintentionally embroiled in a newsworthy event, for example), there is an implicit “contract” with the public that accompanies modern fame. The celebrity discloses bits and pieces of his or her private life to create a public image and sells that image, often very lucratively. It is beneficial for society to have free and robust conversations about celebrities. Where the line should be drawn is perhaps at invasive and even dangerous measures of obtaining information about celebrities. That is a different story.

When you study what happened to Tiger Woods, do you think the law should evolve to restrict how far the media can pry into an individual’s life?

There is a much bigger question here, which I believe to be one of the most pressing questions of our time: where is the line between an individual’s right to information privacy and others’ right to know – especially when the information is accessible? American law has never been particularly adept at answering that question because of its reluctance to chill truthful expression that is lawfully obtained. European law is much more accommodating of dignitary concerns vis-a-vis freedom of speech. Frankly, I’m not convinced that more law is the best mechanism to address all privacy issues.  And when the privacy matters involve the freedom of speech, this is an area that is best governed by personal and professional ethics.


[1]. Restatement (Second) of Torts § 652D, Spec. Note on Relation of § 652D to the First Amendment to the Constitution (1977).

[2]. Florida Star v. B.J.F., 491 U.S. 524 (1989). Id. at 526–29.

[3]. Florida Star, 491 U.S. at 533 (quoting Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 103 (1979)).

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The Legal Blitz Feature: Shocking Sports Agent’s Tell-All Is…

Since reading Jim Bouton’s, Ball Four there have not been many sports “tell-alls” that have excited me. Most of these books feel like a last-ditch attempt to scream, “Look at me!” to jump back into the spotlight for another five minutes. Most books in this so-called genre are told with ulterior motives and most lack any sort of story-telling flow or valuable revelations. So I was at first skeptical of Josh Luchs’ new book, Illegal Procedure: A Sports Agent Comes Clean On The Dirty Business of College Football, which hit bookshelves today. But ever since the earth-shaking Sports Illustrated cover story in which Luchs first revealed just how extensively NCAA rules are flaunted in college football, Luchs has been nothing but consistent in his message, and steadfast in his desire to shine a spotlight on all of the gritty underpinnings of the sports agent industry.

Like bed bugs on a thousand-dollar mattress, Luchs exposes the skin-crawling truth under the glamorous surface of being a sports agent in a straight forward, yet entertaining manner in Illegal Procedure.

At times it is hard to believe that this naïve Jewish kid growing up in Beverly Hills, a real schmegegge at times, could do things like give an NFL star clean urine for a drug test or tap into his Bar Mitzvah money to bribe a college athlete. Yet while you want to hate the messenger, a man who admittedly flaunted almost every rule in the book, Luchs’ honest and self-deprecating narration makes the reader empathize with an agent just trying to succeed in a broken system. Luchs masterfully weaves his personal life into this nonstop shocker of admissions and revelations about just how crooked the business of college football really is. He does so by dishing out the truth about hypocritical college coaches like Nick Saban, who grants his own agent unlimited access to the locker room while publicly referring to agents as “pimps,” or devout Christian Jim Tressel, who rigged summer camp raffles to make sure his top recruits won prizes. Nobody is safe. NCAA Compliance Officers, NFLPA executives and even the hallowed lawyer are all exposed.

The best part about this book, though, is that it isn’t just a tell-all. Luchs proposes a slew of well-designed proposals to fix the current, shattered state of big-time college athletics. There is a lot to learn from this book and it should be required reading for not only everyone in the sports industry, but everyone who cares about the well-being of college athletes, the game of football and the institutions that make up the NCAA.

Fortunately for us here at The Legal Blitz, Luchs took time out of his media whirlwind to discuss his new book and future efforts to effect positive change in college athletics.

 

What were some of the biggest challenges in writing this book?

One of the great challenges for me was to share my experiences and make them available to people without succumbing to the desire to make excuses for my behavior. That is a really difficult thing to do. We all have a tendency to justify our actions. I really wanted it to be not necessarily matter of fact, but just left to people’s own internal right vs. wrong monitor.

We wanted to be entertaining, which I think at the end of the day, hopefully we achieved that. I look at it like the spoon full of sugar that helps the medicine go down. It’s not like a Law Review article. Telling the story this way gives us a chance to take the message more mainstream. That’s what is needed for change to take place. The conversation can’t be limited to law students or sports attorneys or even avid sports fans – it needs to have a broader audience.

Most sports books are self-promoting. “I’m a great coach,” “I’m a great player,” or “this is how you win.” I wanted to do something that was honest and raw and not always flattering, but accurate. I think that self-deprecation in this instance is valuable. There is something important that can be drawn from that type of brutal self-examination and honesty. I hope that people take it the right way. Believe me I’m not proud of everything in there, but when I decided that I was going to do what I did with Sports Illustrated I knew that I had to make a decision. You can’t be a little pregnant. I had to go all the way.

Have you been able to maintain relationships with former clients? Former sports agent colleagues?

With respect to clients, I have some very close friends who are former clients of mine. Some of whom I paid and some of whom I didn’t. One of the most telling things from the original Sports Illustrated piece was how many players confirmed or at least didn’t deny their involvement in taking benefits from me. I think that is in large part to the genuine relationships that were developed over the years and explaining my motives for sharing these stories. I think that is what lead to so many players stepping up and validating what I said.

Now I obviously don’t have any clients left because I was decertified, but the relationships are there. A number of guys are having a book launch to support me. They see that there is a bigger picture here and things can get better for athletes. Hopefully a lot of people can get the message from this book without automatically dismissing it because they have some disdain for the messenger.

As far as other agents, a website called Inside The League and they invited me to speak at the NFL Combine this year. So even though I had the chance to speak before Congress, the California Senate, and at law schools across the country, that was the first time speaking in front of a group of my peers in the sports agent business. I didn’t know what to expect on how I’d be received, but it was a mixed bag. Very few of these other agents I’d consider my friends prior to this. They weren’t going to invite me to dinner and I imagine there aren’t many who would invite me to dinner now and I’m okay with that. But there have been some who are very supportive and genuinely want the industry to get cleaned up. They recognize that I have an opportunity with this platform to do some good and have made it clear they are behind me.

A lot of your recommendations for fixing the system are geared toward helping the athletes rather than making life easier for agents. Have you always viewed an agent’s role as that of an athlete’s advocate?

Maybe it is subconscious, but I’ve always felt that way. It is something I think I’m automatically predisposed to doing based on 18 years of doing it that way. I’m flattered that you picked that up because I sincerely want things to get better for what they call “student-athletes.”

In your experience, when players asked for money was it just for spending money to get by or was it for the big diamond earrings and the fancy cars?

Well they want the tricked out Mercedes when the season is over, but it is a different story when they are in school. I’m a firm believer that 80 to 90 percent of the agent issues would go away if the NCAA would provide the full cost of attendance and fill that gap in what the scholarship covers. I think you will always have those that are greedy, but I think most of the players are just needy.

Do you sense any winds of change coming about from the NCAA, NFL or Congress?

That is one of the things I talk about, this sort of utopia where we could de-regulate everything and start fresh or we could better enforce rules that were more realistic: Students athletes could get paid, have worker’s compensation benefits, and be classified as employees so the NCAA would pay taxes on the billions of dollars that they generate.

The NCAA Divison I Manual says essentially that student-athletes should be protected from exploitation by professional and commercial enterprise. What we’ve seen here over time is that the NCAA themselves have become the commercial enterprise that these players need protected from. There are very few advocacy groups. There is the National Collegiate Players Association that works very hard, but until there is a union it will be very difficult for these players to get what they truly deserve.

In the book you write “Unless all the college prospects in America decide to go on strike, they’re not getting a share of college football dollars.” Do you think this will ever happen?

Probably not. It is a shame. For many of these participants in big time college sports, their greatest value in the market place is during the time they are playing college sports. So few of them go on to the pros. It is downright un-American that they are not in the position to adequately capitalize on their market value. That is not what this country is about. It is a capitalist society and what we have is a socialist system.

What advice do you give to a student who wants to become an agent?

First of all it is not much of a life for someone who wants to be married and have children. If you look at the must successful agents in the business, they are not successful husbands. There is a very high divorce rate there because the priority is always the athlete. That is the demand placed on the agent-athlete relationship.

Also, with respect to getting that legal degree, I know how difficult it is to go through law school. I watched my father before he passed go through it. While practicing medicine all day and being terminally ill, he went to law school at night and I saw how much work he had to put in to earn his law degree. I couldn’t help but think that whole time what a waste it is to do all of that work and how overqualified you would be to chase these 20-year-old kids all over the country.

Luchs’ revelations in this Sports Illustrated cover story rocked the sports world in 2010.

Would you go back to being an agent if you could?

No, I’m in a much better place mentally and financially. I’ve moved on to a new career in commercial real estate. I have more time around my kids. I coach my daughter’s soccer team, I go to all the school functions. I’m a much better dad than I would have been had I remained in the business. Now is it sexy and fun and do I miss certain parts of it? Yes, but I wouldn’t trade where I am now for a minute. Legacy is the most important thing. The legacy that I’ll leave for my daughters will hopefully be one of the arrows in the quiver for change. At the end of the day if I’m leaving this business a little better than when I was violating all of the rules and was part of the problem then that is something my kids can be proud of when they talk about their dad.

You seemingly worked a miracle to get Maurice Clarett drafted at all, let alone in the third round by the Denver Broncos. Did you really think he would go on the first day?

Absolutely. He was a first round talent. He was his own worst enemy. Had he followed our plan he may have gone in the second round, maybe cracked the first. He was that special of a talent, he was just also that self-destructive.

If you were Mark Sanchez’s agent, how would you feel about the Tebow trade

There is always going to be competition, but based on how I saw Tebow throw the ball, I’d be happy about it.

So what is your next move?

I’m all for letting the market dictate. If people want more, I’ll provide more. I didn’t go into this with some long, thought out strategy. I’m an opportunist by nature, so if opportunities present themselves, I’ll explore them. I didn’t know a year and a half ago when I did the Sports Illustrated cover story that I’d be writing a book. If I had I would have released a year and a half ago to coincide with the SI article. I don’t know what the future holds, but it is important to me that I remain as involved in this movement for change as people want me to be.

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The Legal Blitz Feature: Civil Rights Implications of FIFA’s…

In a questionable 2007 decision, international soccer organization FIFA banned the wearing of hijabs by Islamic women players during matches.  The ban of the traditional headscarf, which is often required of Muslim women, affected their right to play the sport.  Last week, FIFA finally voted to lift the ban after much protest.

Reports surfaced at one point of an alternative cap, but it has drawn some opposition because it does not fully cover the neck, as hijabs traditionally do.  Some teams have tried to use other garments to cover their necks, but there has been great push-back from officials. During the ban, multiple women’s soccer teams were forced to forfeit their matches; most notably, the Iranian women’s soccer team were asked to remove their turtlenecks during a match but refused, and were subsequently forced to forfeit their 2012 Olympic qualifying match.

Of course, no league intentionally stands in the way of an athlete’s ability to practice religion. Nevertheless, this ban effectively restricted access to the game for many Islamic women.  Professor Linda Sheryl Greene is the Evjue Bascom Professor at the University of Wisconsin Law School and this academic year is also the Distinguished Inaugural Lee Chair in Constitutional Law at the John Marshall Law School, Chicago.

She is a former track and field athlete, a founding board member of the Black Women in Sport Foundation, a former member of the University of Wisconsin Athletic Board, past Chair of the United States Olympic Committee Legislation as well as past Vice Chair of its Audit Committee. She is a member of the Black Sports Scholars Roundtable. Her forthcoming article in the Wake Forest Journal of Law and Policy addresses racial discrimination in the selection of NCAA and NFL head coaches.

1.  Under American laws, would FIFA’s ban on hijabs qualify as an unconstitutional restriction on freedom of religion rights under the First Amendment, even though the motive seemed to be purely for safety?

The First Amendment restricts the federal government and the state. Because FIFA is not a government or a state the First Amendment guarantee of the “free exercise of religion” is inapplicable.

2.  Although the ban may have been viewed as facially neutral, the reality is that it restricted certain women from competing in FIFA events, though no men seem to have been affected.  Might this have other civil rights implications beyond the First Amendment, assuming again this were to fall under U.S. law?

Under traditional First Amendment law, if the federal government or a state government does an act that burdens the “free exercise of religion,” the state must justify that action by demonstrating that the government’s interest is a “compelling one” and that the policy that burden on religion is necessary to serve that interest. Unless the federal or state government compels the policy, the First Amendment is inapplicable. If local, state, or federal government imposes the limitation, such as the Department of Education or a local school board, courts will ask whether the policy was imposed to target religion in which case it would be presumptively unconstitutional, or whether the policy has the effect of burdening the exercise of religion, which would be the case if the policy bans women from wearing clothing required by their religion and forces women to choose to forgo their religion or the activity. Even though the First Amendment is not applicable, the doctrine provides a good model for FIFA and other sports governing bodies that address the participation of Muslim women in sport.  These bodies must ask whether their clothing requirements are necessary for safe participation in the sport. Sport clothing is sometimes related to performance and sometimes simply traditional wear designed to show off the body. Sports governing bodies must bring fresh nontraditional thinking to these clothing issues.

3.  Since FIFA is an international organization, what governing body (outside of the current internal committee meetings) has the power to dictate the legality of league regulations such as this?  Can the United Nations only provide guidance, without any actual enforcement? How are these issues of clothing likely to be resolved?

The United Nations is interested in the capacity of sport to contribute to peace as well as its capacity to contribute to the elimination of discrimination against women. Under UN auspices, in 2008, the International Working Group on Sport and Peace made recommendations to governments that included recommendations to broaden participation of women in sport in part to further the principles contained in the Convention on the Elimination of All Forms of Discrimination against Women.

International Olympic Committee (IOC), whose charter bans all forms of discrimination, could conceivably pressure sport governing bodies that adopt rules that effectively bar women from competition as well as nations that do not send women to the Olympics. Perhaps the IOC might threaten to exclude FIFA from the Olympic Games if the IOC concludes that FIFA is engaged in religious or gender discrimination. Human Rights Watch has asked the IOC to consider barring from Olympic competition countries that do not send women to the Olympic games. It might be path breaking for the IOC to recognize the intersection of religious and gender discrimination in this context and exclude nations that do not send women’s teams to the Olympics. I believe the matter will be resolved with an understanding that FIFA as well as national Olympic committees must make immediate efforts to end gender and religious discrimination. These efforts will prevent this issue from escalating to the point of a boycott against FIFA competition or a competition boycott against nations that preclude women’s participation in sport. The South African experience may be a cautionary tale for FIFA and certain nations. I would not be surprised to learn that there are on-going back channel discussion between FIFA, IOC leaders and certain National Olympic Committees about the effect of this matter on future international competition. The hijab controversy is just the tip of the iceberg. The larger issues involve full participation of women in domestic and international competition and the commitment of all nations to the norms of equality in the charters of international sport governing bodies as well as the IOC.

The rules of the governing bodies of sport, such as FIFA, require that competitors request exemptions from the national governing bodies, such as USA Soccer, and that unfavorable decisions be appealed to international government bodies. That happened recently in the case of the United States Muslim female weightlifter, Abdullah, who wished to compete in loose clothing and a hijab. USA Weightlifting followed existing rules and denied her an exemption. She then appealed to the International Weightlifting Federation, which decided to permit a “one piece full body tight fitted ‘unitard’ under the compulsory weightlifting costume.”

The effort to enlarge the participation of Muslim women who wish to dress modestly will require a team effort. Civil rights lawyers, religious experts, and sport professionals must work together to offer sport specific clothing accommodations respective of religious requirements that neither hamper nor advantage women. The Abdullah case is a great example of this sort of teamwork.

4.  Among its many tournaments, FIFA organizes the Women’s World Cup, the location of which varies each time (next is Canada in 2015).  If the event were to be held in a country where the hijab ban (or lifting of the ban) violates national laws, could the country’s government theoretically override FIFA regulations and require/prohibit/permit wearing of religious attire?

If a country requires or forbids the wearing of the hijab, and FIFA concludes that the policy is discriminatory against women, it should follow the course it took in connection with apartheid South Africa, banning those countries from participation in FIFA competition. But FIFA must be sensitive to the national politics involves as well as the possibility that Muslim women do not necessarily believe that a requirement to wear a hijab is gender discrimination and subordination. I applaud FIFA’s tentative decisions to permit the wearing of the hijab, and I think that FIFA will permanently permit women to be modestly attired consistent with safety. A different course would be too restrictive on female sports participation, and divisive in its national governing bodies. Countries like France that have banned the hijab may no longer be venues for international competition.

5.  What other similar religious clothing restrictions have surfaced in sports, foreign or domestic, and what was the outcome?

I have already mentioned the case of the Muslim female weightlifter Abdullah from the United States who wished to compete covered for modesty reasons. USA Weightlifting followed the International Weightlifting Federation IWF rules on clothing and denied her an exemption. Abdullah appealed, and in June 2011 the IWF decided to permit a “one piece full body tight fitted ‘unitard’ under the compulsory weightlifting costume.”  The effort to enlarge the participation of Muslim women who wish to dress modestly will require a team effort– excellent civil rights lawyers, religious leaders, and sport experts –who together may advise on the adoption of sport specific clothing accommodations consistent with religious requirements that neither hamper nor advantage Muslim women.

Kulsoom Abdullah competing at the USA weightlifting championships in June 2011

It is important to understand that the dispute about the hijab is just one issue among many relevant to the participation of Muslims—both men and women-in sport. The matter has been the subject of recent Muslim jurists’ fatwas (rulings on Islamic Law), and those rulings may offer a window into the future of sport participation by Muslims around the world.  Uriya Shavit and Ofir Winter recently published an excellent article on historical and contemporary fatwas entitled “Sport in Contemporary Islamic Law” in 20 Islamic Law and Society 250-280 (2011). Anyone interested in this issue should read the article.

6.  FIFA’s document, The Laws of the Game, states “[t]he basic compulsory equipment must not have any political, religious or personal statement.”  Does this enumerated policy perhaps make FIFA more vulnerable to lawsuit in this situation?  Might this rule have any other effect, such as being per se discriminatory, even beyond the hijab ban?

Whether FIFA is vulnerable to lawsuits will depend upon many factors including variations in domestic law. In other non-sport contexts, the European Court of Human Rights has upheld bans on the hijab.

Is the ban per se discriminatory against women? One could argue that it is not gender discrimination because some Muslim women may not choose the hijab and others may not feel obligated to wear it. And, if Muslim men who are ordinarily obligated to wear modest clothing must wear relatively immodest clothing during sports participation, some might argue that the clothing requirements equally burden both genders. But those arguments ignore the manner in which sport participation may open doors for women as well as the disproportionate disadvantage Muslim women may incur if they forgo modest clothing. Formal equality is not substantive equality. We must address these issues by taking into account the manner in which a requirement actually affects women differently than men.

FIFA’s March 3rd ruling to permit the hijab makes good sense on equality, sport, and religious grounds. Of course, sport is safer when players do not engage in provocative acts that distract from the sport or might taunt an opponent. The question is whether we should view the hijab as a political, religious, or personal statement that would be harmful to the game of soccer.  The purpose of the hijab to the woman who wears it is to preserve her modesty. When FIFA permits the hijab, it permits women to enjoy the benefits of sports participation as well as full citizenship and respect in their communities. This is a win-win situation.

7.  From a practical safety standpoint, is this really any different than an athlete such as Troy Polamalu, whose hair is a potentially dangerous extension of the uniform that theoretically makes him more prone to injury?

I can’t speak about whether Polamalu, whom I and many other people adore for both his play and his hair, or the many players of various backgrounds and great accomplishment who wear curls, dreads, or braids.  But Polamulu is more likely to suffer injury because he is so enthusiastic about his game. Seriously, though, safety is a legitimate concern unless it is an unthinking stereotypical generalization, or worse, a pretext for exclusion. After all, the international federations of rugby and taekwondo already permit the hijab.

Substantive equality is the paramount goal. Women should be able to enjoy the physical, health, social, economic, and empowerment benefits of competitive sport. The history of sport is replete with stated and unstated rules that have limited the participation of many groups including minorities and women. We are not far removed from the time when we believed that women were unsuited for certain professions and unable to compete at 26.2 miles. Let’s be honest. We’ve come a long way, but we have a long way to go before gender equality is a reality in sport.

8.  Part of FIFA’s reasoning for its original ban could have been construed to be selfish; the policy could have insulated FIFA against lawsuits where a competitor wearing a hijab is injured.  Since there is no apparent competitive advantage in wearing a headscarf, and in fact perhaps only an added danger, isn’t this really just an assumption of the risk for the athlete who elects to wear it and compete?

Assumption of risk of injury is a part of any sport, and I am pleased that FIFA did not rest on that ground. There are modified hijabs available of a wide range of fabrics that may be worn with little risk. FIFA should employ experts to design appropriate covering from which teams might choose and which are consistent with the desire of women competitors to remain modest while competitive. Also, FIFA should adopt rules to prohibit grabbing or using the hijab to inflict injury. These rules would be analogous to those in American football that prohibit a player from grabbing the facemask of an opponent or in football (soccer) in which grabbing the clothing of an opponent during a match is a cautionable offense and a possible foul. This is familiar ground. I am sure that FIFA will get it right in July.

Chris McAndrew also contributed to The Legal Blitz’s publication of this article.

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The Legal Blitz Friday Feature: Mets’ Financial Responsibility Amid…

Each Friday we will feature an article from our good friends at The Legal Blitz. Please enjoy the following piece and check out The Legal Blitz when you get a chance!

Yet another chapter has begun in the saga of the New York Mets organization’s financial responsibility in Bernard Madoff’s Ponzi scheme, which collapsed over three years ago.  U.S. District Judge Jed S. Rakoff for the Southern District of New York ruled that Mets owner Fred Wilpon must pay to Irving Picard, the trustee of the bankrupt Madoff estate, as much as $83.3 million.  This figure represents the amount withdrawn by Wilpon in excess of his total principal invested – funds which were presented to investors as legitimate profits – over the course of his “investment” with Madoff’s fictional investment project.  Only $1.7 million of the $83.3 million in fictional profits is reportedly linked to the Mets financial portfolio.  Judge Rakoff also ruled that the parties will go to trial this month regarding the additional $303 million in principal that Wilpon invested and withdrew before the scheme’s collapse.

It seems that Madoff updates have been consistently sprinkled throughout the news since late 2008.  Indeed, you may ask yourself, why is this still lingering in court?  Why are seemingly legitimate profits withdrawn by Wilpon / the Mets subject to recovery by the trustee?  Moreover, why does the trustee find it appropriate that beyond the fictitious profits, he can recover Wilpon’s principal investment since contracting with Madoff?  How are the Mets, as a team, going to be affected by these financial woes?

 

When a Ponzi scheme collapses, the defrauded investors become creditors of the bankrupt estate and can be divided into two main groups: net losers and net winners.  Originally, the Wilpons asserted that they were losers in the scheme because their statements indicated that their portfolio amounted to roughly $500 million.  The court in this case has already agreed to classify creditors under the Net Investment Method, whereby losers and winners are based on actual amounts invested and withdrawn, instead of the much less popular Last Statement Method, whereby net equity is calculated based on the amounts reflected on investors’ individual fictional account statements immediately before the collapse.

Under-the-limits net losers are compensated fully through individual claims against the Securities Investors Protection Corporation (SIPC), which functions similar to the FDIC or other insurance and provides up to $500,000 for securities losses to those who invested directly.  Over-the-limits net losers, whose losses exceed SIPC compensation, rely on other sources of recovery.  Liquidating the schemer’s estate ordinarily provides only a drop in the bucket; Madoff’s assets, for example, amounted to only $826 million, or under two percent, of the $65 billion total account value of the operation.[1]

Expectedly, the SIPC reimbursements and estate liquidation provide relief for only some investors and represent a small percentage of net investments, so trustees often turn to avoidance actions, known as clawbacks, as outlined in the preference and fraudulent transfer provisions of the Bankruptcy Code.  This is where net winners, such as Fred Wilpon and his New York Mets, enter the picture.

Mets Owner Fred Wilpon (Courtesy: AP)

Fraudulent transfer law under the Bankruptcy Code effectively allows net losers to reach into the pockets of net winners, in an attempt to make themselves whole.[2] Congress set a reachback period of two years from the time of the bankruptcy filing based on the notion that it is within this time that most of the fraudulent transfers occur.  The reachback period was previously another source of indigestion for the Wilpon family and the Mets.  Picard originally tried to invoke a reachback period of six years, which could have subjected the Wilpons to repayments as high as $1 billion, though this argument was later rejected by Judge Rakoff.

Now the primary remaining question for the Wilpon’s case is whether any of their $303 million principal is subject to clawback.  In order for Picard to recover such funds, he need not prove “actual fraud” by means of direct fraudulent involvement on behalf of Wilpon; still, he would need to prove the existence of “willful blindness” based on the objective, reasonable person.  While there were many red flags in Madoff’s scheme – astronomical rates of return, consistency of success, key positions of a small-staffed operation held by family members, obscure auditing practices, limited access to investment status, and the secrecy commanded upon investors[3] – the fact remains that these attributes could have theoretically raised suspicions for all investors, whether net winners or losers.  Accordingly, the standard to recover principal is quite high.

Bankruptcy court appearances for the Madoff fraud are not the only evidence of financial struggles for the Mets organization.  “The Mets have been slashing payroll and selling $20 million minority stakes, each representing about 4 percent ownership of the team.”  Despite the financial conflicts that the Wilpon family must deal with, Mets baseball fans can probably relax on this front (though they still have three consecutive fourth-place NL-East finishes from which to recuperate).  As previously mentioned, Mets accounts will likely be held responsible for only the $1.7 million in fictitious profits.  In terms of other team finances, that value is equivalent to paying Johan Santana for starting just two games, assuming he finds a way to start 30 times this season.


[1] Chad Bray, Madoff Lists $826 Million In Assets, Give or Take, Wall St. J., Mar. 14, 2009, at B1.

[2] 11 U.S.C. § 548(a)(1).

[3] Erin E. Arvedlund, Don‘t Ask, Don‘t Tell: Bernie Madoff is so Secretive, He Even Asks His Investors to Keep Mum, Barron’s, May 7, 2001, at 26.

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