football | Heitner Legal

League Regulations and Stadium Subsidies in American Professional Sports…

The following article was written by Evan Zepfel.

The recent wave of stadium construction has sparked debate regarding the appropriateness of providing public funding to build these cathedrals to sports. Beginning with Judith Long’s 2001 Ph.D. Dissertation, “Full Count,”[1] a series of articles in the Wall Street Journal in 2011 and books like Field of Schemes[2] have brought considerable attention to the actual costs that these stadia incur to the local communities. Despite this backlash against providing public funds for private enterprise, municipalities continue to provide millions of dollars to construct grand stadia. Due to this trend, it is important to ascertain what factors determine the size of the public subsidy for each new stadium. Previous research has determined that a credible threat to relocate is the most important determinant of subsidy size in new stadium construction. However, it is not possible to compare threats to relocate across leagues without first comparing the regulations of the three leagues, as teams in each league are subject to different sets of rules when seeking to relocate. I seek to determine which of the three major leagues rules (NFL, MLB, NBA) provides teams with the ability to most credibly threaten relocation, and consequently, secure the greatest amount of public funding towards the construction of a new stadium.

Each of the three major leagues has a set of rules established by the league governing its operations, and regulating the actions of its member teams. While certain sections of those rules are updated and agreed upon by both the league and players’ associations (eg: those found within the collective bargaining agreements, or CBAs), most of the rules governing the day-to-day operations of the leagues and their member teams do not change every time the CBAs expire. Rather, they are found within the league constitutions. It is prudent to examine the regulations in each league that govern regulation, as well as any other rules that might affect the ability of cities to effectively compete for a franchise.

Major League Baseball

Major League Baseball is unique in that it defines specific geographic areas that each team “owns”, as delineated in the Major League Rules. These ‘spheres of ownership’ allow the teams to control television broadcasts and regulate other teams relocating into their territory.[3] For example, the Los Angeles Dodgers (NL) and Los Angeles Angels of Anaheim (AL), are explicitly given shared control of Orange, Ventura, and Los Angeles Counties in California, while the San Diego Padres are given exclusive control over San Diego County.[4] See Figure 1 below for a detailed map of MLB territorial allocations.

Figure 1: MLB Territorial Allocations[5]

Notwithstanding the existence of these geographic domains, relocation is possible, although difficult, under the constraints of the rules. A team wishing to relocate must obtain ¾ of the votes of the owners in the affected league, plus a simple majority in the other league.[6] However, any team can block another major league or minor league team from playing within 15 miles of its territory.[7] Since 1990, only one MLB team has successfully relocated (the Montreal Expos to Washington, D.C., becoming the Washington Nationals).

Generally, such strict control over relocation would be considered a violation of antitrust law. Major League Baseball, however, prizes an exemption from antitrust scrutiny[8] that stems from the Federal Baseball Club v. National League (Federal Baseball)[9] case in 1922. In this landmark Supreme Court decision, Justice Oliver Wendell Holmes noted that “the business is giving exhibitions of baseball, which are purely state affairs”[10] when he decided that the business of baseball was not subject to Federal regulations (and therefore not subject to scrutiny for violations of Federal antitrust law). This case spawned MLB’s antitrust exemption, which has since been confirmed by the courts twice,[11] even though the exemption is based on the seemingly false presumption that professional baseball does not involve interstate commerce, and thus, by virtue of the Commerce Clause,[12] cannot be subject to federal law. Despite the fact that the initial intent of these three cases was to overturn the reserve system that existed in MLB before 1975,[13] their rulings and the exemption they created have been applied to relocation issues. This exemption allows MLB to maintain strict rules regarding franchise relocation, and since relocation is more difficult for an MLB team than for an NFL or NBA team, an MLB team’s threat to relocate is the least credible of the three leagues. Consequently, application of my theory would dictate that MLB teams should receive the smallest level of subsidy to construct stadia of teams in any of the three leagues.

Despite the antitrust exemption, teams have still succeeded in utilizing the courts to affect relocation decisions in Major League Baseball. In Piazza v. Major League Baseball,[14] the court temporarily overturned Federal Baseball and held that the antitrust exemption no longer applied to cases of franchise relocation. In this case, the San Francisco Giants were not permitted (by vote of owners) to move to St. Petersburg, Florida, even though the prospective owners in Florida offered $115 million contingent on the relocation. Rather, the Giants’ ownership was forced to accept a $100 million offer to stay in San Francisco, explicitly demonstrating how the inability to relocate freely can exert downward pressure on the selling price a team can command. This case will be examined in more detail in chapter 5. Although the antitrust exemption was quickly reapplied to relocation cases in McCoy v. Major League Baseball[15] in 1995, Piazza and other cases[16] were still influential in MLB’s decision to grant expansion franchises to Phoenix, Arizona and St. Petersburg. The exemption was expanded in Major League Baseball v. Crist,[17] where it was determined that the ability to control the number and location of MLB games was a crucial part of the business of baseball, thus preserving the antitrust exemption granted in Federal Baseball. Other legal challenges that do not relate directly to the antitrust exemption (Metropolitan Sports Facilities Commission v. Minnesota Twins Partnership)[18] have succeeded as well, but have relied on special circumstances (eg: an injunction prohibiting the Minnesota Twins from breaching their lease of the Metrodome), and are not applicable or likely to succeed in most cases involving relocation.

Relocation in Major League Baseball is complicated by the fact that MLB controls the Minor League Baseball system (known as MiLB). MiLB is a series of separate, lower leagues that function as a reserve system for the major league teams. Although minor league teams are generally owned independently of their major league counterparts, they are subject to the decisions of their major league partners and MLB. For example, the Oakland Athletics’ proposed plan to relocate to San Jose is complicated by the fact that the Giants’ minor league affiliate (also known as the Giants) already plays in San Jose, as well as the fact that the Giants have territorial control over Santa Clara County.[19] These minor league clubs also can compete with major league teams for ticket sales and television viewership.

Although MLB’s antitrust exemption does not entirely immunize the league from legal challenges to its relocation policy, it does make any effort to relocate against the will of the league significantly more difficult, and decreases the bargaining power that MLB teams hold (in terms of gaining concessions for relocating or threatening to do so) in comparison to teams in the NBA and NFL. MLB teams are not able to relocate without a significant portion of the league ownership supporting the move, and can be blocked by nearby teams, making it extremely difficult to credibly threaten to move and significantly limiting possible relocation destinations. For these reasons, and according to my hypothesis, Major League Baseball teams should receive the smallest concessions (in terms of subsidies toward stadiums) from municipal and local governments.

National Basketball Association

The rules regarding relocation in the National Basketball Association Constitution impose restrictions similar to those in Major League Baseball.[20] They prevent teams from relocating without the consent of the NBA Board of Governors, and take into account factors like the proximity of other teams to the proposed relocation destination, the profitability of the new destination for the team and for the league, as well as any state or local laws or regulations that might inhibit or prohibit an NBA team’s success in a new destination.

Despite the perceived restrictiveness of the NBA’s relocation rules, their actual implementation is considerably more liberal when considered in the light of the specific case law that has helped to define and apply them. Unlike Major League Baseball, the NBA does not enjoy an antitrust exemption, and is thus subject to “rule of reason” analysis in cases regarding relocations.[21] Although the league has attempted to utilize MLB’s exemption in its own relocation cases, the league has not been successful in transporting its application from the MLB to the NBA.

“Rule of reason” analysis stems from the U.S. Supreme Court’s 1911 decision in Standard Oil Co. of New Jersey v. United States.[22] The logic underlying the “rule of reason” and laid out in the majority opinion maintains that a monopoly itself is not inherently illegal, but rather, that an examination of the effects of the restraint of trade is necessary to determine whether the monopoly is detrimental. A restraint of trade that either does not affect or which increases competition is legal, while one that decreases competition is illegal.[23] This differs from a per se analysis, where the Court’s mere identification and categorization of the restraint of trade is sufficient to find it illegal.[24] “Rule of reason” analysis was applied to the NBA by the decision in NBA v. San Diego Clippers Basketball Club[25], following the precedent of Raiders I and Los Angeles Memorial Com’n v. National Football League (Raiders II),[26] which will be discussed in detail in section 3.3.

As in Major League Baseball, non-league parties have challenged restrictions on teams’ rights to relocate based on alternative legal theories (other than antitrust violations). In 2007, Oklahoma City native Clay Bennett, who had just come off of an unsuccessful effort to persuade the local Seattle government to build a new arena to replace the dilapidated Key Arena, purchased the Seattle SuperSonics.[27] Despite the fact that the Sonics had a lease to play in Key Arena until 2010, Bennett began the process to move the team to Oklahoma City just months after he purchased the franchise. The city sued immediately for damages, and attempted to use their suit to force the team to remain in Seattle. Part of the problem that the city faced in forcing the Sonics to stay dealt with the intangible benefits of having a team (e.g., that the damages to the city would be more than the loss of contractual revenue under the lease should the Sonics leave). Sports economist Andrew Zimbalist was called in to testify that the breach of contract would cause great damage to the city, and that monetary damages would not be sufficient to compensate the city for the breach of contract. Rather, the city wanted the court to compel the Sonics’ “specific performance of the lease,” meaning that the Sonics would be required to play out the remaining years in their contract in order to appropriately compensate the city for its investment in the arena. However, it is unclear whether this strategy would have worked, since the Sonics and the city reached a settlement that allowed the team to relocate before a decision was rendered.

Like MLB, the NBA oversees a lower-level basketball league that functions as a reserve system. This league, known as the NBA Development League (or D-League), is comprised of 16 teams, some of which are owned directly by NBA teams. However, since the NBA exerts greater of control over this lower league than does MLB wields over MiLB, it is less of a consideration for relocation issues, and does not present problems to clubs attempting to move.

The absence of antitrust protection makes the NBA’s rules regarding franchise relocation more difficult to enforce than those in MLB. Although the NBA has had some success using legal challenges to restrict franchise movement, the more recent court decisions as well as the recent wave of relocations in the NBA might lead one to believe that a threat to relocate in the NBA is more credible than in the MLB. The “rule of reason” analysis applied in NBA relocation cases gives the league less control over the ability of teams to relocate. Thus, following the logic laid out earlier in this thesis, NBA teams should receive higher subsidies toward constructing a new stadium or remodeling an existing stadium than teams in MLB.

National Football League

Like MLB, the National Football League explicitly defines the territory controlled by each team. According to Article 4.1 of the NFL Constitution, each team has the exclusive right to control all professional football competitions involving NFL teams within its territory. Each team controls as its “Home Territory” the area 75 miles in all directions from the limits of the city in which the team is based.[28] This rule also implicitly gives the team controlling each territory the right to control movement into the territory, as any team playing a game in another team’s “Home Territory” without the consent of the “Home Team” would be in violation of the NFL Constitution. These territories do not grant the teams as many rights as MLB territories do, as the NFL also does not enjoy the same antitrust exemption as MLB and thus cannot utilize territorial restrictions to the same extent or in the same manner.

In addition to the rule giving each team control of its “Home Territory”, the NFL attempts to curb relocation by requiring ¾ of all NFL teams to vote in favor of any move, even if a team wishes to move to another site within its territory. This means that if a team wishes to move from a suburb into a downtown area within the same territory, the relocation must be approved by the same number of teams that would be required to approve a cross-country move. A team wishing to move to a site within the “Home Territory” of another club requires a unanimous vote of all of the clubs, meaning that the club whose territory is being infringed upon can singlehandedly veto such a move.[29] The League also reserves the right to restrict movement into areas that are not within the ‘Home Territory” of any club, and also requires approval of any move into unoccupied territory by ¾ of all NFL teams. Clubs wishing to relocate are also required to pay a transfer fee to the League, depending on the effect the move might have on other clubs, as well as the League’s ability to generate revenue. The amount of this fee is subject to the commissioner’s discretion.

The NFL Constitution also delineates criteria that may be considered by the League when a franchise is pursuing relocation. These criteria include, among other things, the level of fan support in the current city, the financial standing of the club, as well as the location of other clubs relative to the club proposing to relocate. However, the League can also consider the condition of the team’s home stadium, the level of support from local governments toward updating the stadium or constructing a new one, and the proposed level of subsidy in other potential relocation destinations. This section of the NFL Constitution is particularly interesting, as it is the only place in the rules of the three major leagues where subsidy support for stadiums is explicitly taken into account when considering relocation. This specific section of regulation might allow NFL teams to benefit the most from greater public support for a new stadium (in terms of the proposed level of subsidy in a new stadium) since the League specifically considers such factors when making decisions regarding relocation.

Despite the seemingly harsh appearance of regulations regarding relocation in the NFL, case law has eroded many of the NFL’s controls over franchise relocation, most notably in the Raiders cases that involved the club’s movement to Los Angeles and subsequently back to Oakland in the mid-1980’s. After the Los Angeles Rams moved from the Los Angeles Coliseum to Anaheim Stadium, Oakland’s owner (Al Davis) decided to attempt to move his Raiders into the newly vacant Coliseum, but the NFL rejected his proposal since it did not receive the unanimous approval necessary, prompting Davis to sue.

This case, commonly known as Raiders I, set the precedent for the application of rule of reason analysis to relocation cases in professional sports outside of MLB. The jury found that the NFL was not a single entity, as it had protested, [30] but rather that “the NFL teams were sufficiently independent and competitive to find under a rule of reason analysis that the anticompetitive harms outweighed the precompetitive effects of the rule.”[31] This led the Court to allow the Raiders to make the move to Los Angeles, despite the club’s failure to meet the NFL guidelines for relocation. More recently, in American Needle v. NFL,[32] the Supreme Court applied rule of reason analysis when it examined and upheld the NFL’s single entity status, in the context of a case involving the appropriation of exclusive apparel contracts.

The NFL, however, did prevail in a subsequent case referred to as Raiders II,[33] in which the League sued the club on the grounds that the Raiders had “unilaterally appropriated the value of a location for a professional football team that the league as a whole had created and owned.”[34] Although the Court in this case decided in favor of the NFL, the decision failed to prevent the relocation of the franchise, and rather held simply that the Raiders were not entitled to the damages granted by the lower courts due to the interpretation of Rule 4.3. Victor Kiam, owner of the New England Patriots in 1988 also sued the League on the grounds that Rule 4.3 provided an illegal restraint of trade, but his claim was dismissed as he had signed a waiver of his right to sue. The court, however, maintained that rule of reason analysis applied to relocation cases in sports, noting that “some restrictions on trade are illegal per se, others, such as trade restrictions on sports leagues, are analyzed to determine whether the restriction’s ‘harm to competition outweighs any precompetitive effects’.”[35] These cases substantially undermine the effectiveness of Rule 4.3, and diminish the ability of the League to effectively deter a club from moving, thus increasing the credibility of any threat by an NFL team to relocate.

Further NFL regulations designed to maximize the level of parity through revenue sharing and restrictions on player movement also give NFL franchises a distinct advantage over franchises in the other two leagues in terms of relocation. As previously mentioned, the NFL, unlike MLB or NBA, shares television revenues equally among all of the teams as a result of the league, rather than individual team ownership of the television contract. This league ownership means that each team gets an equal payment from the league regardless of the size of the local television market, and that individual teams in larger markets are not able to bargain for larger contracts and thus benefit from their location in larger markets.[36] This regulation evens the playing field for cities competing for an NFL franchise, as smaller cities are not forced to compete with the draw of larger television audiences that larger cities promise, since teams receive an equal share of the league’s television contract regardless of the size of the audience for each individual game. Article 4.3 of the NFL Constitution specifically mentions that the central purpose of relocation restrictions is to maintain fan support in the home territory and to prevent clubs from seeking greater revenue streams elsewhere (through larger television contracts, among other things). These rules regarding the division of television revenues, however, facilitate franchise relocation as they decrease the bargaining power that cities with larger television audiences have over smaller ones, allowing a larger number of cities to bid on the same franchise.

Additionally, the NFL imposes strict limits on player salaries. This restrictive salary cap reduces teams’ the need for large revenue streams in order to obtain the best players. This cap, in addition to other rules that restrict player mobility, limits the impact that large revenue streams can have on the success of a franchise (in terms of winning games), as teams are less able to ‘buy’ good players than they are in the NBA and MLB. Assuming that the primary goal of each NFL franchise is to win a Super Bowl, this gives the clubs the ability to move to cities that might not provide as great of a revenue stream, since the team’s wealth is not as important for obtaining the most talented players as it is in other leagues. In fact, the NFL’s Green Bay Packers, which is one of the sport’s most successful franchises (2 Super Bowl Championships), makes its home in a city with just over 100,000 people–by far the smallest city to host a professional franchise in any of the three major leagues.

Although NFL franchises are subject to many of the same regulatory restrictions on relocation as NBA franchises, there is an increase in the number of cities that are able to compete for a franchise when one seeks to relocate due to the League’s inability to claim an exemption from antitrust scrutiny in cases regarding relocation, as well as the NFL’s policies intended to increase parity. While the application of antitrust law to league regulations reduces the NFL’s ability to effectively regulate team relocation, the salary cap and equal sharing of television revenue greatly diminish the marginal benefits of a larger population for franchises seeking to relocate. This increase in franchise demand, combined with the stagnation of franchise supply levels, drives up the price a city has to pay for a franchise, and thus, makes NFL subsidies relatively higher than those in both the NBA and MLB.

Conclusion

Assuming that a credible threat to relocate is the most important factor determining the size of a subsidy for a new stadium, it follows that NFL regulations should allow for the largest subsidies among the three major leagues. Successful challenges to the League’s relocation policies increase the credibility of relocation threats in the NFL. Similarly, the League’s regulations limiting player salaries and evenly distributing television revenue increase the number of cities that are able to compete for a fixed number of franchises. This increase in demand for franchises, combined with the constant demand (barring league expansion) should drive up the price for NFL franchises (in terms of the size of the subsidy required to induce a franchise to relocate). A statistical examination of subsidies in the three major leagues since 1990 confirms this finding, as NFL teams receive an average of almost 70% of construction costs from public sources.

For further details on the statistical portion of this thesis, visit: http://harvardsportsanalysis.wordpress.com/ or contact the author ezepfel@post.harvard.edu

[1]Judith Grant Long. “Full Count: The Real Cost of Public Subsidies for Major League Sports Facilities” Ph.D. Dissertation, Harvard University, 2002.

[2] Neil deMause and Cagan, Joanna. Field of Schemes: How the Great Stadium Swindle Turns Public Money into Private Profit. Lincoln, NE: University of Nebraska Press, 2008.

[3] Major League Rule 1(c) requires that a team moving into another team’s territory (in the other league) pass a ¾ vote in the affected league, that the two stadia are at least five miles apart, and that the relocating team pay the team owning the territory $100,000 plus half of any previous indemnification to invade territory.

[4] See Appendix C for a larger map of all MLB Club territories.

[5] Source: www.bizofbaseball.com.

[6] Peter Carfagna. Sports and the Law: Examining the Legal Evolution of America’s Three “Major Leagues”, (St. Paul, MN: Thompson Reuters, 2009).

[7] Major League Rule 52.

[8] Only applicable in cases dealing with franchise relocation after the Curt Flood Act of 1998.

[9] Federal Baseball Club v. National League, 259 U.S. 200 (1922).

[10] Ibid.

[11] Toolson v. New York Yankees, 346 U.S. 356 (1952) and Flood v. Kuhn, 407 U.S. 258 (1972).

[12] U.S. Constitution. Art.I, Sec.8, Clause 3.

[13] The Seitz decision in 1975 granted free agency to Andy Messersmith and Dave McNally, who were previously under contract with the reserve clause.

[14] 1994 WL 385062 (E.D. Pa. 1994).

[15] 911 F.Supp 454 (W.D. Wash 1995)

[16] Butterworth v. National League of Professional Baseball Clubs, 644 So.2d 1021 (Fla. 1994) allowed the Attorney General of Florida to investigate MLB for refusing to allow the Giants to move to St. Petersburg

[17] 331 F.3d 1177 (11^th Cir. 2003).

[18] 638 N.W.2d 214 (Minn. App. 2002), rev. denied (Minn., Feb 4, 2002). This case actually prevented MLB from contracting the Minnesota Twins, but represents an important legal victory over MLB’s power to control franchises.

[19] Newhouse, Dave. “Can the A’s Find the Way to San Jose?.” San Jose Mercury News, October 03, 2011.

[20] Article 9 of the NBA Constitution deals with franchise relocation.

[21] Peter Carfagna. Sports and the Law: Examining the Legal Evolution of America’s Three “Major Leagues”, (St. Paul, MN: Thompson Reuters, 2009).

[22] 221 U.S. 1 (1911).

[23] Ronald Shingler, “Antitrust Law,” Golden Gate University Law Review, 18, no. 1 (2010): 35-55, http://digitalcommons.law.ggu.edu/ggulrev/vol18/iss1/5 (accessed December 2, 2011).

[24] Ibid.

[25] 815 F.2d 562 (9^th Cir. 1987).

[26] 791 F.2d 1356 (9^th Cir 1986).

[27] The city was unwilling because it had built new stadia for the Mariners (MLB) and Seahawks (NFL) within the past 10 years.

[28] There are exemptions to this rule, specifically when more than one team plays in the same city, or in the case of the Oakland Raiders and San Francisco 49ers.

[29] Peter Carfagna. Sports and the Law: Examining the Legal Evolution of America’s Three “Major Leagues”, (St. Paul, MN: Thompson Reuters, 2009).

[30] And as the 9^th Circuit Court in California had found in Los Angeles Memorial Coliseum Com’n v. National Football League 726 F.2d 1381 (9^th Cir. 1984), which the Supreme Court overturned.

[31] Peter Carfagna. Sports and the Law: Examining the Legal Evolution of America’s Three “Major Leagues”, (St. Paul, MN: Thompson Reuters, 2009).

[32] 130 S. Ct. 2201 (2010).

[33] 791 F.2d 1365 (9^th Cir. 1986).

[34] Peter Carfagna. Sports and the Law: Examining the Legal Evolution of America’s Three “Major Leagues”, (St. Paul, MN: Thompson Reuters, 2009).

[35] VKK Corp v. NFL, 55 F. Supp 2d 196 (S.D.N.Y. 1999), aff’d 244 F. 3d 114 (2d Cir. 2001).

[36] Phillip Closius, “Professional Sports and Antitrust Law: The Ground Rules of Immunity, Exemption, and Liability,” Government and Sport: Public Policy Issues, ed. Arthur T. Johnson and James H. Frey (Totowa, NJ: Rowman & Allanheld, 1985), 140-161.

Salary Cap Issues

Cowboys and Redskins Docked Cap Space by NFL

The following article was written by Spencer Wingate.

The NFL has issued a statement stating the Dallas Cowboys and Washington Redskins will receive salary cap penalties for moves they made last offseason. With the CBA expiring last year, the NFL effectively had no salary cap. Teams were warned of dumping salaries or front loading contracts, but nothing was mandated in writing.

Restructuring contracts is common practice throughout the league in the offseason. The money is usually given as a large signing bonus so the base salary per year is much smaller. Therefore, the team is able to stay below the cap and the player still receives the money. Without a salary cap in place due to the lockout, teams could dramatically increase players’ salaries for the 2011 season to gain a salary cap advantage. There seemed to be a mutual agreement amongst owners to not violate the spirit of “competitive” balance and give players huge salaries in 2011. The NFL owners determined the Washington Redskins and Dallas Cowboys created a significant advantage with their transactions in the absence of a salary cap. The owners requested the league take action. The Cowboys have been penalized $10 million and the Redskins $36 million. The salary cap hit will reduce the money each team can spend over the 2012 and 2013 seasons. The Cowboys and Redskins will be able to spread the penalty across the two years as they see fit. The money will be given to the other teams, excluding the Saints, due to the bounty scandal and the Raiders for violating the unwritten salary cap rules to a lesser extent. The money will come out to $1.6 million of extra cap space the other teams can spend in free agency.

The league recently announced the salary cap for the upcoming season will be $120.6 million. The amount is a slight increase from the previous season. League insiders have indicated the salary cap would have been decreased unless the NFLPA agreed to sanctions against the Cowboys and Redskins. The union did not want the money to be taken from the players so they advocated for it to be split amongst the other teams.

Since a salary cap was not in place last year, the Cowboys and Redskins did not commit salary cap violations. The NFL never officially documented the expectations so the Cowboys and Redskins technically did nothing wrong. Each club has issued a statement contending they followed league rules and regulations. The ruling by the NFL is unprecedented, meaning the appeal procedure is not known at this time. If the league determines an appeal will not be allowed, lawsuits could arise. The clubs might be reluctant to pursue legal action against the league. However, the NFL did approve the moves at the time they occurred. To further complicate matters, it appears other teams (possibly even eight), engaged in the same unfair advantages. It will be interesting to see how the Cowboys and Redskins respond to the penalties. Will they accept the punishment or demand they are reduced- possibly even overturned?

Drugs/Doping

Two Broncos Defensive Players File Lawsuit against NFL over…

The following article was written by Spencer Wingate.

Denver Broncos linebacker DJ Williams and defensive lineman Ryan McBean were each recently suspended six games without pay for violating the NFL’s performance enhancement policy. The players maintain they are innocent and have filed a lawsuit against the league to have the suspensions overturned.

The players failed the test in August because they allegedly substituted a non-human specimen during their urine tests. The collector during the testing has since been fired by the NFL for breaching protocol and procedural irregularities. Williams’ lawyer, Peter R. Ginsberg, stated the collector tampered with testing procedure and submitted urine samples to the league that were not human. The suit, filed in Denver District Court Monday, also alleges that the NFL violated chain of custody procedure during the appeal process. When Williams and McBean appealed the ruling during the season, their lawyers were not present. The hearing officer, Harold Henderson, denied the appeal and ruled against the players. The players believe since Henderson works for the commissioner’s office, he did not act as an impartial arbitrator and refused to objectively view the facts. They claim their rights and reputations were trampled on by the league. The NFLPA has publically supported the players and questioned the process. Williams and McBean want the suspension vacated by the NFL.

Broncos Tight end Virgil Green was suspended at the same time by the NFL for four games. He is not involved in the lawsuit. He was taking medication that led to his failed drug test that has since been approved. The NFL has frequently been in the news for lawsuits filed by retired players over injury related matters. However, it is not often that active players seek legal action against the league. Reigning National League MVP Ryan Braun recently made headlines in baseball when he had his 50 game suspension for a positive drug test overturned. Major League Baseball supported the collector and confirmed he followed protocol; yet Braun still won. It seems Williams and McBean will have a more compelling case as the NFL has fired the collector while confirming protocol was not followed.

Intentional Torts

Aqib Talib Verbally Assaults Woman; Chris Cook Trial on…

The following article was written by Cyle Kiger.

Aqib Talib, Tampa Bay Buccaneers cornerback, is already awaiting trial for a felony gun charge. Commissioner Roger Goodell did not issue a punishment for the felony gun charge. However, repercussions from that incident will likely come after his court hearing. To make matters worse, the problem child of the Tampa Bay Buccaneers has threatened a woman after a traffic accident.

Riddled with incidents throughout his young career, Talib has tallied at least four run-ins with the law. One of his more infamous decisions was when Talib punched a cab driver; the two parties came to an agreement of a cash settlement.

In his most recent altercation, Talib is being sued for $15,000 for saying that he would “put a cap” in the woman involved in the traffic dispute. Betty Atwood, the plaintiff, said the incident spurred from Talib “negligently causing them to collide.” The incident happened in 2010, which makes me wonder why Atwood wouldn’t sue earlier. Regardless, Talib and the Bucs don’t need any more attention than they would’ve otherwise received in the coming weeks.

Every team in almost any league has a problem child. The infamous characters of Manny Ramirez and Carlos Zambrano come to mind when thinking about baseball. Teams have given players like Manny and Zambrano short leashes before they are let go. Along with the Bucs, the Minnesota Vikings are in a sticky legal situation with fellow cornerback Chris Cook.

Cook missed nearly the entire 2011 football season for the Vikings because of an altercation with his, now, ex-girlfriend Chantel Baker. The cornerback is facing a felony domestic assault charge and third-degree assault charge. Cook slapped his girlfriend in an act of self defense against the high heel shoe that struck him in the back of his head moments earlier, as Cook’s attorney portrayed the incident with the 21-year-old.

At the time of the arrest, Baker fabricated a story to put Cook in jail for the night by telling officers the Chris Cook strangled her.

Rodger Goodell will have his hands full with punishing the cornerbacks. Both athletes were beginning to excel in the NFL. But with the recent legal implications for the two, depending on the outcome of the two cases, look for their respective teams to make a move in free-agency or in the upcoming draft for a bit of insurance.

Criminal Issues

New Orleans Saints put Bounty on Opponents

The following article was written by Cyle Kiger.

The 2009 NFL champions have potential legal infractions coming for puting “bounties” on opposing players. In Minnesota, Brett Favre was arguably more popular than Adrian Peterson for a single season, and it sickens me that an NFL team would reward players for injuring top-tier players.

Who dat dirty team? The New Orleans Saints.

In the league’s investigation, between 22 and 27 defensive players were in on the bounty program led by Gregg Williams. The pools of money reached $50,000 or more in 2009, the year the Saints won the Super Bowl. Throughout the season, “knockouts” were worth $1,500 and “cart-offs” were worth $1,000, and in the playoffs the reward doubled or tripled. The investigation stated that the players contributed cash into a pool and received improper cash benefits, not specified in the players’ contracts, based on their play in the previous week’s game.

Some players that were interviewed did not regret taking part in the program. Instead, playing tough and pushing the envelope was a part of Williams’ system. Football is a contact sport, and don’t get me wrong, I love the hits, but watching the NFC Championship game, it was clear that the Saints defense was targeting Favre. Several late hits went uncalled, and fortunately Favre was not hurt, but it did not change the outcome of the game.

Commissioner Goodell will be holding disciplinary proceedings for the team and players involved. ESPN reports that the disciplines could include fines, suspensions and decreased draft picks.

Some of the legal implications outlined by Sports Illustrated could result in criminal charges, personal injury claims, tax evasion, contract termination for cause and false advertising.

A brief overview of the possible legal implications:

Criminal Charges:

•

Battery- Intentional use of force upon another without that person’s consent. The Saints player(s) battered opposing players. Football is a contact sport, and opponents assume the risk in participating. However, is assumption of risk a solid defense if the Saints players intended to go out on the field to injure others?

•

Conspiracy- when two or more persons plan to commit a crime, such as battery. Williams and his players would be considered to have possibly conspired to commit battery.

Personal Injury Claim:

•

Players injured by the Saints could file a suit for personal injury. Players do not normally file suits for on-field hits. A bounty may change that; a player being targeted by a “hit-man” could very well sue because that is not what he signed up for when he signed his uniform player contract with his respective team.

Tax Evasion

•

Players who received the bounty money are subject for tax evasion because it is taxable income that was likely not reported to the IRS.

Contract Termination For Cause:

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It would be necessary for Saints owner Tom Benson to fire players, coaches and personnel who participated in the bounty scheme. Termination for cause would be necessary because the people involved were committing tortious acts.

False Advertising

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The Saints could be sued by fans that attended games because consumers pay to see competitive football, not hit men targeting players with the intent to injure.

Regardless of the fallout to come, scandals like “Spygate” and now this situation should not arise

In a highly regulated league, injuring people on purposeshould not be taken lightly by the league or by anybody hurt from the previous seasons. It’s disgusting on the part of players and coaches alike.

I may be a tad biased against the Saints for the devastating loss my Vikings endured in ’09, but all levels of the Saints organization needs to see justice. Saints players that received money from the ‘bounty’ need to see criminal charges. This should be headline news for weeks to come leading up to the draft.

Concussion Litigation

Death over Concussion Issues Brings Suit

The following article was written by Cyle Kiger.

Dave Duerson died a year ago due to a self-inflicted gunshot wound to the chest. There were times in his 11 year career where he lost consciousness during games, and had more than 10 concussions. Duerson, a member of the ’85 Bears and ’90 Giants Super Bowl teams, left a note to have his family donate his brain to Boston University’s School of Medicine.

The lawsuit was filed for a wrongful death claim against the NFL. Tregg, Duerson’s son, filed the claim on behalf of his family, stating that the NFL did not do enough to prevent or treat the concussions of his father. The family wants to know how the NFL handled concussions during Duerson’s career.

Concussion litigation is becoming more familiar to the NFL with each passing day. The league may be looking at an expensive 18 suits, not including Duerson’s case. There are currently 657 retired players suing the league, none of which have as strong a case as Duerson, says Dan Pompei of the Chicago Tribune. It should not go without saying that 11 former New Orleans Saints also filed suit against the NFL for concussion issues more than a week ago.

Tregg Duerson said at a press conference, “If they(NFL) knowingly failed to inform and implement proper safety concussion procedures, then their indifference was the epitome of injustice.” The Duerson family is accusing the NFL of negligently not warning Dave Duerson of the negative effects of concussions. The suit also involves Riddell Inc., claiming that the helmets did not adequately protect players.

This writer doesn’t like to see injuries happen in any sport, but watching the incredible hits that occur on a weekly basis is what the fans of the NFL thrive for. Player safety has hit No. 1 on the league’s priorities, and very well should be.

However, the rule changes lead to missed calls; protecting players on good football plays will ultimately be the downfall to the NFL. Dr. Hunt Batjer said to the Chicago Tribune that changing the kickoff rule reduced the number of concussions by 50% on kickoff, but it still isn’t enough to change the culture of the league.

The NFL is cracking down on players for malicious hits, with penalties and fines. Fines have reached $75,000 (the particular incident involving James Harrison of the Pittsburgh Steelers). What does the NFL do with fines that are for blows to the head? I know some fines goes to a fund for retired players. I think a good way the NFL could help with the issue is to donate the fines from illegal hits to the head to a leading brain trauma research center, and make some headway on the issue.

Drugs/Doping

NHL and WADA to Re-work Drug Testing Policy?

The following article was written by Cyle Kiger.

A focus in all major sports continues to be drug testing and the use of Human Growth Hormone (HGH). Add the National Hockey League to the list in strengthening its own policy with the World Anti-Doping Agency (WADA). The Chicago Tribune reported that the WADA has had conversations with the NHL and its players association about the topic. WADA would like to have the framework for a new drug testing policy in place before the end of the Stanley Cup playoffs.

Currently, it is thought that the NHL has the weakest anti-doping program of the four big leagues in the US.

NFL Policy on Anabolic Steroids and Related Substances – 2010

In general, the NFL prohibits the use of anabolic steroids, stimulants and growth agents. Masking agents are considered a prohibited substance along with anabolic agents and hormones (a full list can be found on link above, p. 14).

The NFL has a pre-employment test, in which case a positive test will be subject to medical evaluation and clinical monitoring. An annual test to all players for prohibited substances happens at least once per year. The policy sets forth that testing shall occur at training camp when the player reports. In the preseason and regular season setting, each week, 10 players from every team are randomly selected by computer to submit to a test without regard to how many past times the player has taken a test. Playoff teams are subjected to the same method as long as they are contending for the Super Bowl. During the offseason, players under contract are subject to up to 6 tests.

A player with a previous positive test of a prohibited substance, including collegiate and combine tests, are subject to reasonable cause testing at the frequency of the Independent Administrator.

Disciplinary consequences do ensue after testing positive for a prohibited substance. For a first time offense, the commissioner has the option to suspend the player for a minimum of four regular/post season games, unpaid. A second time offender will be suspended for a minimum of 8 games without pay. And the third time a player ends up with a positive test, he is suspended for a minimum of 12 months. The players can appeal the Commissioner for reinstatement, but the matter is only in the Commissioner’s hands.

MLB Joint Drug Prevention and Treatment Program

The policy states that all players are prohibited from using, possessing, selling any drug or steroid. Drugs in the Schedule II of the Controlled Substances Act are considered prohibited by the MLB.

Procedure for league testing is only during season play and there is no random testing. However, testing for the drugs of abuse or Schedule II drugs, is on a basis of reasonable cause. For this instance, a member of the Health Policy Advisory Committee (HPAC) needs to have evidence that a player has used, possessed or sold drugs within the last 12 months. If a majority vote is reached by the board, the player has 48 hours to take the test.

The MLB implemented a harsh policy for positive steroid test results, which needed to be done. After a first positive test is a 50 game suspension. A second positive test yields a 100 game suspension. Lastly, a third positive test brings a lifetime suspension to the player.

Use of prohibited substances are less strict but do carry consequences. The first offense is a 15-30 day suspension with a possible fine of $10,000. The second offense is 30-90 days with a possible fine of up to $50,000. A third offense is a minimum one year suspension and possible fine of up to $100,000. A fourth offense brings a minimum two year suspension.

NBA CBA 2011

The NBA’s recent Collective Bargaining Agreement prohibits many of the same things the MLB prohibits. Schedule II drugs, steroids, masking agents and performance-enhancing drugs are the main drugs listed in the new CBA.

The NBA has implemented random testing in the CBA. Players are subject to four random tests each season (Oct 1-Jun 30). The NBA uses a third-party entity to test; this relieves the league of scheduling and selecting the players for testing.

They also have reasonable cause testing; if the NBA or NBPA receives information that provides them with cause to test a player, the player has 24 hours within notification to take the test. After authorization for testing, the player will be tested four times in six weeks.

A program that I think is outstanding that the NBA has implemented is the “Coming Forward Voluntarily” program. It is described as when a player seeks out help for medical treatment and counseling, the team will take care of the expenses as long as the player takes the necessary steps (found on pg.11 of CBA) to do so.

The penalties for drugs of abuse states that during random testing or reasonable suspicion testing, a positive result will dismiss and disqualify the player from the NBA. If a player tests positive for marijuana he will be submitted into the “Marijuana Program.” After the first positive test result, players are subject to fines and suspensions of 5 games. For performance-enhancing drugs, the increments in which suspensions are issued are 10 games, 25 games and 1 year suspension per positive result. A fourth positive result will dismiss the player from the NBA as well.

NHL testing

Currently, the NHL tests every player between 0-3 times per year. Tests only happen during the regular season. I think that a major mistake that the NHL makes is that every player is eligible for testing, but not all of them get tested.

The NHL tests for steroids, hormones and basic doping tests. The penalties inferred on the players are a 20-game suspension for the first positive result and a 60-game suspension for a second time. Like the other leagues, lifetime bans are used by the NHL after a third positive test result.

From reports, I expect to see something done by the NHL and the WADA in conjunction with the other major sports leagues in the nation. From the different types of policies, I think that the NFL has the best options to keep its league safe and under control.

My policy, in short, would look something like this:

Pre-employment testing to all incoming free-agents and rookies and a physical.
A similar random testing that the NFL has implemented, where each team has 3 players a week from their roster get tested at random a maximum of 3 times throughout the season.
Reasonable Suspicion testing that is very similar to the NBA. In fact, all leagues should adopt their ‘Marijuana Program.’ Also Schedule II drugs would be prohibited and tested throughout the season.

Penalties:

The current NHL penalties are on point considering the length of a season. Though the other option would be to move the lifetime suspension to the fourth positive result, and the third offense would be a season suspension.

The NHL surely has some catching up to do to their competition. Hopefully within the next few months, with the help of WADA, they’ll re-draft a drug testing policy and get with the times. For issues such as drug testing, the big 4 sport leagues in America should pull ideas from each other because each has their own unique issues and ways to settle them. For example, the “Coming Forward Program” in the NBA could have saved a life, case in point, Derek Boogaard.

Concussion Litigation

NFL Faces Two Additional Law Suits Stemming from Head…

The following article was written by Spencer Wingate.

Wally Hilgenberg, a 16-year NFL veteran, died from Lou Gehrig’s disease in 2008. His family donated his organs to Boston University School of Medicine. Shockingly, in 2010, the school announced the doctor’s original diagnosis was mistaken. Hilgenberg had actually died from Chronic Traumatic Encephalopathy (CTE). CTE is a progressive degenerative disease found in individuals suffering from repeated head injuries. Symptoms sometimes do not appear for decades after the injuries first occur.

Following his retirement from football in 1979, Hilgenberg had started a successful real estate business. However, beginning in 2003, he began to suffer from memory loss and muscle weakness. Wally’s son Eric Hilgenberg is claiming the NFL’s negligence led to his father’s death. He is suing the NFL for wrongful death on his own behalf, father’s estate, and for his mother. The complaint states the NFL has repeatedly distorted its’ own data regarding neurological disorders. His suit claims that since the 1960s, the NFL has been aware of the dangers of concussions, but continuing into 2009, has kept refuting the data. The Hilgenberg family is represented by Larry Coben and Sol Weiss with Anapol, Schwartz. They are seeking reimbursement from the NFL for charges of concealment, civil conspiracy, and negligence.

More than forty former players and their wives filed a similar complaint against the NFL. NFL Network Analyst Brian Baldinger (amongst others) is claiming that the NFL refuses to acknowledge the greater risk of former players to suffer from post traumatic brain injuries. Gene Locks, led by Britt and Bridgette Hager, is representing the plaintiffs.

Both suits contend the NFL needs to develop appropriate means to identify at-risk players and guidelines for returning to play. After retirement, players are forced to deal with long-term injury and illness. They believe the NFL cannot continue to deny long term mental health disabilities that their scientific research confirms. Players commonly have dizziness, memory-loss, dementia, Alzheimer’s disease, and encephalopathy that can sometimes lead to a premature death. Courthouse News’ report of the story references the tragic death of Chicago Bears defensive back Dave Duerson in February 2011. Duerson shot himself, presumably to save his brain. He was suffering from chronic traumatic encephalopathy.

Earlier this month it was reported that the NFL was attempting to insert a waiver into players’ contracts forcing them to waive their right to sue over medical issues. The NFL denied the claim and the NFLPA stated they would not allow such a waiver. As lawsuits against the NFL continue to emerge, the same issues continue to surface. The league must be held accountable for the safety of current and former player. However, football is an incredibly physical game. Injuries are part of game that can never be fully eliminated; just hopefully reduced. The NFL’s attempts at rule changes in the name of safer play have been met with intense scrutiny. Players’ competitive nature and passion for the game causes them to play through injuries. The NFL and players must understand that safety is the utmost concern. Controversy is inevitable regarding rule changes and players’ safety. Anytime the status quo is altered reactions will be mixed. The NFL and NFLPA must make the tough decisions to implement a system that ensures the well being of players, not only now, but further down the line.

Intellectual Property

Legal Dispute over “Who Dat” Catch Phrase Reaches Settlement

The following article was written by Spencer Wingate.

“Who Dat?”, Inc. has reached a settlement with the NFL/New Orleans Saints over their trademark dispute. The settlement effectively dismisses the lawsuit and means the two will work together. From this point forward, all merchandise with the catch phrase will be co-branded by both parties.

The legal battle began when the NFL issued cease-and-desist letters to New Orleans vendors selling “Who Dat” merchandise. The NFL claimed they held trademark rights and would sue the companies if they did not stop selling the merchandise. After local outrage and support from the state congressional delegation, the NFL backed off their stance. Then Steve and Sal Monistere, founders of “Who Dat?”, Inc., stepped in. They filed lawsuits against the NFL and companies using “Who Dat.” The Monistere brothers referenced how they trademarked the phrase with the Louisiana Secretary of State in 1983. They had trademarked “Who Dat” before releasing a song with the phrase that became popular at football games. Their suits claimed the other parties had committed trademark infringement by engaging in business using the phrase. The Monistere brothers stated they have other partners who pay them royalties when they sell “Who Dat” gear. One example noted was their negotiation with a Saints Fan Club in 1988 to use the phrase.

The voluntary agreement between “Who Dat?”, Inc. and the NFL does not mean everyone is free to use the phrase.

Who Dat Inc. has not settled legal battles with four companies regarding trademark rights. Lauren Thom, who wants to use “Who Dat” on her Fleurty Girl apparel, is still in a legal dispute with the Monistere brothers. She states all the settlement means is the NFL is no longer on her side.

The origination of the popular saying is of key concern in the remaining lawsuits. The source has been left for debate. Its citation ranges from a popular school chant in the 1970s and 80s all the way back to 19^th century literature. Thom and others contend a single entity like “Who Dat?”, Inc. can not claim ownership of something that has been in the public domain for so long.

Concussion Litigation

Controversy Continues Over NFL Medical Issues

The following article was written by Spencer Wingate.

Seemingly each month brings about a new case with players suing the NFL due to medical problems. Recently, a suit was filed by three hundred players stating they should have been better educated over the effects of head injuries. Former NFL players Patrick Surtain, Jamal Lewis, and Tony Dorsett are three of the more prominent athletes that have been amongst players filing suits against the league due to concussion related aliments.

Chris Corbellini of the Daily is reporting the NFL has decided to take action. Their legal team is reportedly in the process of preparing a waiver to be inserted with players’ contracts beginning with the NFL Draft in April. It will stipulate players can not sue for health related problems due to head injuries. The waiver purportedly states the league will do the best they can to educate players on concussions and head injuries, but they must agree to not resort to legal action.

The Daily received responses from both NFL Spokesman Greg Aiello and NFLPA General Counsel Richard Berthelsen regarding the issue. Aiello claims the league is not attempting to insert any waiver, while Berthelsen states the NFLPA would adamantly fight any such endeavor. The NFLPA feels like the league is continuing to run away from its obligations to players. The NFL contends it has been taking action to combat problems with concussions. They recently aired a message during the Super Bowl detailing rule changes to make play safer.

The waiver idea seems to produce two schools of thought. Football is an incredibly physical game. Concussions are not a new phenomenon; they are part of the culture of football that may never go away. Medical studies have now begun to show their devastating effects. Does that mean the players must accept the dangers and agree to put their safety on the line without proper compensation? Signing a wavier is agreeing to relinquish your rights way down the line. The risks and physicality of the game can not be refuted. The league is responsible for their current and former workers’ safety, but to what end? Educating players about the dangers is a necessary first step. Now decisions must be made regarding liability with medical issues.

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