Completing the Revolution

Painting depicting a Revolutionary War scene of a young drummer boy, an older man, and another soldier playing the fife as all three march across a battle fleld. Prof. David Strifling rightly draws our attention to what he terms “the quiet revolution” taking place in Wisconsin administrative law.  As deputy legal counsel for the governor several years ago, I was privileged to be a foot soldier in that revolution, which sought to reinvigorate core constitutional principles around the separation of powers, government transparency, and executive responsibility.  Thus far, the revolution has primarily been fought in the legislature (primarily through 2011 Act 21 and 2017 Act 57) and the executive branch (especially the Governor’s Executive Order 50 and the Attorney General’s opinion 01-16).

The Wisconsin Supreme Court will soon have its opportunity to join and accelerate the revolution when it hears and decides Tetra Tech v. DOR (Court of Appeals decision) and LIRC v. DWD (Court of Appeals decision) (scheduled for argument Friday, December 1).  These cases both present core questions of agency deference, institutional competence, and judicial power – in short, the opportunity for the Court to supplant its current doctrine with a new approach.  As evidence of the sea change that these cases could mark, consider that the Wisconsin Institute for Law & Liberty, Wisconsin Manufacturers & Commerce (leading 10 other business groups), and the Wisconsin Utilities Association all have filed amicus briefs in Tetra Tech making thoughtful arguments as to the value and validity of agency deference.

I have recently posted to SSRN a paper that delves into the past and future of deference in Wisconsin’s jurisprudence.  Originally intended to complete my trilogy of Marquette Law Review articles on interpretation of the Wisconsin Constitution and Wisconsin statutes, the timeliness of these cases has instead prompted a shorter essay which tackles the important questions raised in Tetra Tech with an eye toward the fundamental principles which should guide the Court’s decision.  Ultimately I conclude that the current scheme conflicts with constitutional first principles, the statutes, and common sense.  I believe the Court should deep-six its doctrine and start anew with the standards set forth in Wisconsin’s administrative procedures act (Ch. 227).  Please read the essay to see why.  And we’ll all be watching closely as these cases move forward.  Just because the revolution won’t be televised (I’ve never seen an episode of Law & Order or Suits concerning administrative law) doesn’t mean it won’t have significant implications for law in our state.

Daniel Suhr is a 2008 graduate of the Marquette University Law School.

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Crowdfunding and Sport: How Soon Until the Fans Own the Franchise?

Jamaika-BobThe latest issue of the Marquette Sports Law Review is now available online.  This is a faculty symposium issue.  I am proud to have my article, “Crowdfunding and Sport: How Soon Until the Fans Own the Franchise?,” included in this issue.  Here is the introduction.

The Green Bay Packers football team operates as a nonprofit corporation that has been publicly-owned since 1923.  Since that time, the franchise has raised capital by selling shares of stock in five different stock offerings, and there are currently over 350,000 individual members of the public who are shareholders of the team.  These shareholders are the joint owners of a sports franchise that is currently valued at $1.375 billion.

The public ownership of the Green Bay Packers is often noted in the media, and it is generally praised for contributing to the team’s strong tie to the surrounding community.  However, it is highly unlikely that any other N.F.L. team will follow in Green Bay’s footsteps.  Public ownership of franchises is actually prohibited under the current N.F.L. Constitution, and Green Bay’s ownership structure persists solely because of a grandfather clause that excludes the Packers from the prohibition.  Moreover, the unique nature of the Packer’s public ownership structure extends beyond the boundaries of the N.F.L.  The Green Bay Packers are currently the only wholly publicly owned franchise among all of the four major sports leagues (football, baseball, basketball and hockey) in the United States.

There is no reason why publicly owned professional sports teams cannot thrive and succeed at the same level as privately owned teams.  While public ownership of professional sports teams is relatively rare in the United States, it is common overseas.  Notable examples of publicly owned soccer teams are Real Madrid and Barcelona FC, both of which play in Spain’s Liga Nacional de Fútbol Profesional, commonly known as “La Liga.”  These teams are operated as “socios,” a form of nonprofit organization where fans of the club pay an annual membership fee for the right to buy season tickets in a special section of the stadium and the right to vote on certain management decisions.  Another team that plays in La Liga, Real Oviedo FC, has maintained consistent and significant numbers of public owners despite the relative disadvantage of being based in the region of Asturias, far from Spain’s major population centers.

It is not just that the United States lacks more than one example of a major league team that is wholly owned by the public.  It is also uncommon for American major league sports teams to have a minority ownership stake comprised of public shareholders.  In recent decades, the private owners of several major league franchises have experimented with establishing and maintaining a publicly owned minority stake, seeking to inject additional capital into their team whilst still maintaining control over the enterprise.  However, in each instance the private ownership group used a stock offering in order to create a minority interest, only to subsequently abandon the structure and negotiate the sale of the entire team to new owners.  For example, the Cleveland Indians baseball team held a public offering of shares in 1998 but went wholly private again in 1999.  The Boston Celtics basketball team had a longer run with minority public shareholders, holding a public stock offering in 1986 but eventually reverting to wholly private ownership in 2002.

Today the ownership of major league sports teams in the United States remains almost exclusively the province of large corporations, wealthy individuals or ownership groups comprised of these same two actors.

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Michael Sam and the NFL Locker Room: How Masculinities Theory Explains How We View Gay Athletes

footballLast year, Michael Sam became the first openly gay player in the National Football League. Sam was drafted by the St. Louis Rams in the seventh and final round of the draft. He survived the initial round of pre-season cuts with the team, but was let go when the team had to make a 53-player roster. He was picked up by the Dallas Cowboys and played on the team’s practice squad. After seven weeks with the Cowboys, Sam was released and remained unsigned the rest of the season.

Sam’s coming out and his subsequent drafting and playing in the NFL caused quite a stir. According to one Sports Illustrated article, one NFL player personnel assistant said, “I don’t think football is ready for [an openly gay player] just yet.”

But why?

Continue ReadingMichael Sam and the NFL Locker Room: How Masculinities Theory Explains How We View Gay Athletes