2012 Sports Lawyers Association Conference Review
By Ian Gunn
The Sports Lawyers Association hosted the annual Sports Lawyers Association Conference in San Diego, CA from Thursday, May 10, 2012, to Saturday, May 12, 2012. Tulane’s Sports Law Program co-sponsors the conference, and over 25 Tulane law students attended the conference this year, more than any other law school in the country. Tulane also hosted a reception for Tulane sports law alumni and other sports lawyers at the conference. You can see photos from the reception on our Flickr page here.
If you missed the conference, or cannot remember some of the more interesting issues discussed, a brief review of some of the panels and speakers from the weekend follows.
Tulane’s own Professor Gabe Feldman spoke first on Thursday, giving an overview of recent legal developments in sports. Some of the issues he discussed:
Labor: Feldman briefly elaborated on the NFL lockout and the Brady v. NFL case as well has the NBA lockout, La Liga strike, MLB labor peace, the Redskins-Cowboys salary cap dispute, and the California workers’ compensation law for NFL players. He discussed two cases related to drug testing (Ryan Braun and D.J. Williams/Ryan McBean) and noted that the MLB’s new CBA allows for random HGH pre-season and off-season testing in addition to “for cause” testing during the season.
Intellectual Property: Feldman discussed the arguments in two cases against Electronic Arts, one regarding EA Sports’ NCAA Football game and the other regarding its Madden NFL game. Perhaps the highlight of the talk was the discussion of a suit by the United States Olympic Committee for trademark infringement against an organization called the “Redneck Olympics.”
Contracts: Feldman delved into both the “morals” clause issue in the Rashard Mendenhall Twitter case as well as the outcome in the Marist v. Brady case.
Antitrust: Feldman also brought up the Joseph Agnew suit against the NCAA for its prohibition on multi-year scholarships.
Torts: The Indiana Court of Appeals stated that tort liability could apply in recreational sports if the injury was not sustained as part of the ordinary course of the game or if there was an unreasonably increased risk beyond those normally encountered in the sport. Feldman also laid out the NFL Players Association’s three main arguments in the Bountygate case: 1) the CBA provides a release from punishment for pre-CBA player conduct; 2) out-of-contract bonuses should be heard by an arbitrator; 3) the players are being punished for on-field conduct, and therefore their appeals should be heard by Ted Catrell and Art Shell.
Thursday’s first panel followed Professor Feldman’s review of sports law news. The panel was “College Conferences and Their Own Networks: Will College Sports Be Changed Forever?” Stephanie Vardavas of Irenic, LLC was the moderator, and the panelists were Karen Brodkin (Executive VP of Fox Cable Networks, LLC), Woodie Dixon (General Counsel and VP of Business Affairs for the Pac-12 Conference), and Kevin Sweeney (Shareholder at Polsinelli Shughart).
Kevin Sweeney provided a historical overview of the issue and how the landscape has evolved. For example, the first NCAA “Game of the Week” contract with NBC in 1952 was for $1.14 million. The new ACC-ESPN contract is worth about $3.6 billion. In what Sweeney called the “Restricted Era,” universities viewed television as the enemy. Power shifted from the schools themselves to the NCAA to market television rights as a single entity. The popularity of sports increased during this era, despite the limited broadcasting of games. The “Deregulated Era” followed the Restricted Era, and rights fees fell, creating the need for other sources of revenue such as sponsors. In the current “Digital Era,” nearly every major sports game is already available or will be available.
Woodie Dixon spoke about the PAC-12’s new network and how the conference has handled its television rights. The PAC-12 Conference insisted that all media rights to the different conference teams go to the conference. The key for the conference network is that it owns all of its schools’ media rights, allowing it to keep institutions in the conference and increasing the conference’s bargaining power against the networks. Dixon stated that having the schools on the same page is important to driving the network. He also confirmed that the PAC-12 channel will have regional networks focused on specific areas of the conference (such as the state of Oregon).
The panel agreed that all of the major conferences will create some type of distribution outlets, whether that consists of their own network or a partnership with a previously existing network.
The next panel on Thursday was “Counseling Your Client in a Crisis Situation.” Craig E. Fenech of the Law Offices of Craig E. Fenech served as moderator. Panelists included Gregg Clifton (Partner at Jackson Lewis LLP), Steve Fehr (Outside Counsel for the NHLPA and MLBPA), and Derede McAlpin (VP of Levick Strategic Communications).
The panelists told a few “war stories” of crises they had experienced and offered advice on how to deal with crisis situations. Craig Fenech said that in a crisis there are typically two problems: a legal problem and a reputation or media problem. His advice: first, ask what is the crisis? Second, ask what is the worst possible thing that could happen here? You have to swing the media pendulum your way, for example by talking to a friendly reporter. In a crisis situation, assess the problem, deal with the media, investigate, and dispose of the case. To do these things, you must first assemble the proper team, determine the problems at hand, and then deal with the legal and media issues.
Steve Fehr said that the most dominant force in crisis situations is the media. He emphasized four things to do in a crisis: sleep, control your message, keep your perspective, and keep your sense of humor. If you say something to the media, control the circumstances and only do it if you know what you want to say.
Gregg Clifton said that an important consideration is whom you are representing. There may be different issues and different perspectives based on whom you represent. You need a crisis management team, because a crisis will occur, and it’s better to prepare for it ahead of time and have a plan in place. For a corporate or university client, make sure your representative or speaker truly represents your client. Identify the crisis and your client’s strengths and weaknesses, and always keep in mind how you will recover from the crisis.
Derede McAlphin stressed getting a message out quickly and controlling the narrative. When giving a statement, show concern, commitment, and action in regard to the problem. Understand the news curve and master the media, whether it be traditional or social media. Some common mistakes include being defensive, making weak comments, using the wrong messenger, and issuing a “no comment.” Don’t forget that a crisis can be an opportunity.
The last session on Thursday was a town hall debate titled “Collective Bargaining: Winners and Losers.” David Cornwell of DNK Cornwell, LLC moderated the discussion. Panelists included Ron Klempner (Deputy General Counsel of the NBPA) and Professor Stephen Ross (Pennsylvania State University Dickinson School of Law).
The panel heavily discussed who won or lost in recent major sports collective bargaining disputes; however, the panelists failed to reach a consensus about any definite winners or losers with the exception of NFL rookies. The panelists agreed that NFL rookies lost in a few ways, most notably with the introduction a small pool of money to sign all draft picks, therefore decreasing rookie salaries in the NFL.
The first panel on Friday was “Ethics for Sports Lawyers, The Lawyer’s Dilemma: Ethics vs. Reality.” Libba Galloway (Executive Director of the Professional Association of Athlete Development Specialists) moderated the discussion. Panelists included Richard Karcher (Professor of Law and Director of the Center for Law and Sports at Florida Coastal School of Law), Robert Lattinville (Partner at Stinson Morrison Hecker LLP), Doyle Pryor (Assistant General Counsel of the MLBPA), and Bob Wallace (Partner at Thompson Coburn LLC). The panel discussed issues in sports law ethics and the various dilemmas that sports lawyers may encounter.
The second panel, “Title IX: 40 Years Later” examined how far women have come in sports since Title IX and how far they still have to go. Matthew Mitten (Professor of Law and Director of the National Sports Law Institute and LLM in Sports Law Program for Foreign Lawyers at Marquette University Law School) moderated the panel. The panelists were Barbara Osborne (University of North Carolina, Chapel Hill), Allison Rich (Athletics Consultant for JMI Sports LLC), and Ray Yasser (University of Tulsa). The panel focused on Title IX proportionality and real enforcement. Sham rosters, limited events, and cosmetic compliance do not constitute real adherence to Title IX.
After the Title IX panel, the Sports Lawyers Association honored Dick Moss, Former General Counsel and a Co-Founder of the MLBPA with its 2012 Award of Excellence during a luncheon.
After lunch, the next session was “The Olympics Games as Showcase – Anticipated Issues.” Maidie Oliveau (Counsel for Arent Fox LLP and Arbitrator for the Court of Arbitration for Sport) moderated the panel, which consisted of Gary Johansen (Associate General Counsel for the U.S. Olympic Committee), Sonja Keating (General Counsel and Senior VP of the U.S. Equestrian Federation, Inc.), Christopher McCleary (Associate General Counsel, Global Brand and Client Management for Visa Inc.), and Leah Tuffanelli (Senior Advisor Business Affairs for MATCH Services AG).
The big issue for this panel was a discussion of sponsorship and ambush marketing. The panel reviewed how ambush marketing is affecting sporting events like the Olympics, and how different entities are dealing with the problem. The panelists suggested a few ways to address ambush marketing: 1) traditional legal protections (trademarks, copyright, design rights); 2) ad regulations; 3) contractual restrictions (ticketing terms and conditions).
“Gambling and Corruption in Sports” followed the Olympics panel. Ryan Rodenberg (Florida State University) moderated. The panelists were Anthony Cabot (Partner at Lewis and Roca LLP), Kevin Carpenter (Lawyer and Executive Contributor for LawinSport), Jay Moyer (Special Counsel for the NFL), and Jay Rossello (Director of Legal Affairs and Assistant General Counsel for the NCAA).
Jay Moyer reviewed a history of gambling, explaining that only three states had approved systems of sports gambling prior to the passage of PASPA in 1992: Nevada, Delaware, and Montana. PASPA bars legalized gambling on sports in any way that didn’t already exist prior to 1993. Jay Rossello stated that gambling is a bigger problem in Division III than Division I and that the sport with the most gambling in the NCAA is golf. Rossello believed that gambling was less prevalent in Division I because of the increased scrutiny on Division I sports. The rest of the panel discussed the likelihood of the widespread legalization of gambling in the United States as well as other issues. For example, in fantasy sports, there is no federal solution to gambling because the internet is subject to state law where the servers are and also to state law where the players are, so a 50-state analysis is necessary to understand the legal environment of fantasy sports. Kevin Carpenter stated that he expects widespread legalized gambling to exist in the U.S. in the next 10 to 15 years.
A variety of breakout sessions followed the “Gambling and Corruption” panel to finish the Friday program. Here is a list of the topics covered:
- Worker’s Comp Issues Unique to Pro Athletes
- Insurance Coverage for Live Sporting Events
- Teaching Sports Law
- Hot Topics in NCAA Legal Issues: Agents and Amateurism
- Professional Sports Team General Counsel, Legal Update
- ADR Issues in the Olympics and Major Sports
- Legal Issues Involving Immigration and Sports
- Important Tax Considerations in Representing Sports Figures
- Motor Sports 2012: Current Trends and Issues
- Athletes and Philanthropy: Risks and Reward
- Sports Law Analytics
- Television, IP, Risk Management, and Legal Perspectives involved in Emerging Sports (Rugby, Snowboarding, etc.)
On Saturday morning, the SLA Conference hosted the “Executive Directors’ Forum” comprised of the executive directors of the major sports player associations or their representatives. The panelists were Richard Berthelsen (General Counsel for the NFLPA), Steve Fehr (Outside Counsel for the NHLPA and MLBPA), Ron Klempner (Deputy General Counsel for the NBPA), and Michael Weiner (Executive Director and General Counsel for the MLBPA).
Michael Weiner discussed collective bargaining in the MLB and emphasized that you cannot begin negotiations wanting to reach labor peace. You need to go for what you want. He discussed some of the changes in the new CBA, including the concept that the extra wild card game enhances the value of winning the division. Another important change for the players was that pensions begin running when a player starts playing - players become vested immediately.
Steve Fehr stated that his brother, Don Fehr, has restructured and stabilized the NHLPA. He said that problems with teams’ finances may factor into the upcoming NHL CBA negotiations. The negotiations will also focus on concussions (what the state of the science is and what the league should do about concussions) and disciplinary issues (currently NHL players have no right to have a neutral person decide any disciplinary cases).
Ron Klempner said that the NBA players asked themselves what they wanted going into CBA negotiations. They came up with a 10-point platform, and Klempner walked the SLAC attendees through the goals and how the players attempted to achieve them.
1. Guaranteed contracts. The threat to this was the salary cap, so they kept the NBA-style flex cap with certain exceptions.
2. Preserve the middle class. They kept the mid-level exception, and increased the team minimum salary level.
3. Fair revenue split. The players knew that the 57-43 BRI split was not working for the owners; and despite getting a smaller percentage of BRI, the players are still getting comparable money because of increased revenue.
4. Avoid the owners’ goal of splitting gross revenue, not net. Players kept the split specific to BRI, not gross revenue.
5. Avoid roll-backs, and honor all contracts.
6. Create easier player movement with looser exceptions.
7. Provide for freedom sooner. Restricted free agents have better opportunities now, and teams have only three days to match other teams’ offers.
8. Benefits and programs. One example: 1% of BRI goes to an annuity for players.
9. Curb league discipline.
10. In-season days off. Players now have a fixed number of days off.
Klempner emphasized that the players were motivated by altruism, not avarice. The players gave up money in the lockout for future benefits they won’t see, because the average playing career for players is far less than the length of the CBA.
Richard Berthelsen said that players will actually get about 55% of revenues in football under the new CBA. The players did the best they’ve done revenue-wise in over five years. He emphasized that NFL rookies did not lose in the recent negotiations. Berthelsen argued that reduced off-season activities should lead to healthier players and a longer playing career for most players.
An attendee asked how the players associations could represent injured players while at the same time advocating for the players who caused injuries. Weiner answered that the unions don’t represent one player against another. He explained that a union is obligated to defend a player who is suspended. Weiner emphasized that that does not mean the players associations approve of the behavior that resulted in suspension, but there’s still a duty to defend the players. Fehr added that unions want an appropriate process in addition to rules to prevent injuries. He stated that rules to prevent injuries are important, but the disciplinary process for rule infractions needs to be fair as well.
The second session on Saturday was the “General Counsels’ Forum” moderated by Dennis Curran (Senior VP/Labor Litigation and Policy for the NFL). The panelists included Daniel Rube (Senior VP and Deputy General Counsel for the NBA), Gary Gertzog (Senior VP – Business Affairs and General Counsel for the NFL), and Thomas Ostertag (Senior VP and General Counsel for the MLB).
Daniel Rube stated that the NBA came out of the lock-out with increased popularity and fan participation in the game. He also said that despite the compressed schedule, each team added only two more games per month on average, with a shorter training camp. Rube stressed that he did not believe the compressed schedule contributed significantly to the many high-profile injuries players suffered near the end of the season and in the playoffs. He also discussed a few individual NBA teams. Rube said that he believes Tom Benson is the “perfect owner” for the New Orleans Hornets, that the “future looks bright” for the Brooklyn Nets, and that it’s been a “bumpy ride” for Sacramento. He emphasized that a new revenue system was necessary to avoid sharing losses of less financially sound teams.
Thomas Ostertag spoke briefly about the Los Angeles Dodgers situation. He said that the league was determined that a team not be able to use a bankruptcy court to pick and choose MLB rules it wants to follow. He also discussed litigation involving stealing broadcast transmissions to transfer to the internet. He said the league is working hard to curb copyright violations of online videos.
An NHL representative filling in for William Daly stated that player safety had been an important focus of the NHL and one of the reasons why the league has created a Department of Player Safety. The NHL has had success this year with broadcasting, having all playoff games televised nationally on NBC, NBC Sports, and CNBC. However, rule changes, education, and guidance for players are still needed to enhance safety.
Gary Gertzog said that the NFL has an option in its ESPN deal to air a playoff game on ESPN. He also said that Thursday night football games will start in Week 2 this year. Gertzog confirmed that AEG is working on a downtown site for a potential Los Angeles NFL stadium. He also said that the NFL may play a second football game in the United Kingdom in 2013, but insisted that no team will be stationed in the U.K. any time soon. Gertzog also said the NFL is dealing with unique IP claims by defending against patent claims.
The conference concluded on Saturday with the last panel discussion, “Breaking into the Sports Law Industry.” Benjamin Starr of Fox Cable Networks, LLC moderated the panel. The panelists were Jason Cohen (Competition Counsel for NASCAR, Inc.), Kari Cohen (Associate Counsel for the Brooklyn Nets), and Ben Tario (Associate Director of Technology and Operations for the Atlantic Coast Conference).
The 2012 Sports Lawyers Association Conference had over 600 attendees. The SLAC is a great way to continue to learn about the different areas of sports law and network with other sports lawyers. Mark your calendars now for the 2013 conference which will be May 16, 2013, to May 18, 2013, at the Intercontinental Hotel (Buckhead) in Atlanta , Georgia.