Negotiating Punishment in the NFL and the NBA

Every few months, there is a new media feeding frenzy surrounding a star athlete for something he has done or said off the playing field.  The allegations of sexual assault against Ben Roethlisberger provide just one recent example.  Although off-the-field misconduct may sometimes result in serious legal liability (see Plaxico Burress), the most damaging sanctions are often those imposed by a league commissioner.  For instance, in a world of multimillion-dollar sports contracts, a suspension for even a few games (like Roethlisberger’s) can be extraordinarily expensive.  Yet, such sanctions are typically imposed under vaguely worded league rules and without much by way of formal procedural protections.

For these reasons, Matt Parlow wonders in an interesting new article whether the player unions will make an issue of the commissioners’ authority to punish in the impending renegotiation of collective bargaining agreements in the NFL and the NBA.  Whether or not they do, Matt makes a good case that the unions should pay close attention to this issue. 

The article, entitled “Professional Sports League Commissioners’ Authority and Collective Bargaining,” appeared at 11 Tex. Rev. Entertainment & Sports L. 179 (2010).  It is available here on SSRN.  The abstract appears after the jump. 

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The BP Oil Disaster and College Conference Realignment: Evidence of the Need for Greater Governmental Oversight

Thursday’s announcement that the University of Colorado will move from the Big 12 Conference to the PAC 10, and the rumored move of Nebraska from the same conference to the Big 10, appear to be setting off a tsunami of conference switches that threatens to leave the landscape of college sports dramatically different from what it has been during most of the post-World War II era.

The current expansion mania is fueled largely by the financial success of the Big 10 Network and is premised on a single assumption:  the larger the football conference, the larger the potential television revenues, particularly if the added teams bring with them a large television market (like the University of Colorado and metropolitan Denver) or a strong reputation for football prowess (like the University of Nebraska).  What is being ignored are considerations regarding increased travel expenses for non-revenue sports and the continuation of traditional football rivalries.

Universities appear to be motivated solely by the desire for more television dollars and by concern for the consequences of not acting quickly.  That the public interest might not be consistent with increased university television revenues does not appear to be a consideration.  More moderate alternatives—such as creating football-only conferences that would leave existing conference structures intact for other sports—do not even appear to be on the table.

While it is fashionable to say that government has no role to play in the oversight of the sports industry, the industry itself—in both its professional and “amateur” manifestations—regularly demonstrates a seemingly unlimited capacity for short-sightedness.

Conference expansion appears likely to lead to a reduction in the number of non-revenue sports, more legal gymnastics to maintain the illusion of Title IX compliance, and the ending of traditional football rivalries, even among teams that remain in the same conference.  If the current scheduling formula of eight conference games and four non-conference games is maintained—as appears to be the plan—in a sixteen team league, teams placed in opposite divisions are likely to play each other at home only once every sixteen years rather than once every other year as is currently the case.  Such is the likely future, for example, of University of Wisconsin games with Ohio State and the University of Michigan if the Big 10 expands to 16 teams.

I am not suggesting that the Gulf Oil Disaster and NCAA Conference realignment are phenomena of the same dimensions.  Nevertheless, both illustrate the dangers of allowing purely private entities to exercise nearly complete control over matters in which there is a significant public interest.  Congress has a duty to save college football from itself.

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Who Owns a Sporting Event in Wisconsin?

The ownership rights to live athletic events has been the subject of much legal controversy since the rise of commercialized spectator sports a century and a half ago. In 1885, the Detroit Wolverines baseball club, then a member of the National League, sued John Deppert ,who owned a barn adjacent to Recreation Field, where the team played. Deppert was charging baseball fans a fee to climb on to the roof of his barn, from which the Wolverine games could be watched. A half-century later, the issue shifted to radio broadcasting, and the question became whether or not a radio station could broadcast live accounts of an ongoing game without the permission of the home team.

Today’s version of the question involves streaming images of games across the Internet. Earlier this month, Wisconsin federal district court judge William Conley weighed in on this question. The ruling came in a case involving the Wisconsin Interscholastic Athletic Association and The Appleton Post-Crescent newspaper and the Wisconsin Newspaper Association.

The WIAA sued The Post-Crescent after it streamed live coverage of four high school football playoff games in 2008.

The paper was apparently lawfully on the premises from which it “broadcast” the games, and it does not appear to have violated the terms of any license acquired from the WIAA.

In 2004, the WIAA had entered into a exclusive agreement with the When We Were Young Internet broadcasting firm that granted the company the exclusive right to stream live WIAA football games across the Internet. In the lawsuit, the WIAA took the position that it “owned” the rights to the games it produced, and thus could exclude the Post Crescent from broadcasting the games in competition with the official licensed broadcaster. The newspaper defended on the grounds that the exclusive agreement ran afoul of the First Amendment and the Fourteenth Amendment’s Equal Protection Clause.

In his opinion, Judge Conley ruled on behalf of the WIAA, essentially finding that the association “owned” the rights to its games and that its granting a monopoly streaming license to one entity did not offend First Amendment values. Although John Deppert won his case back in 1886, twentieth- and twenty-first-century decisions in the United States have tended, with a few exceptions, to favor the party that puts on the athletic events, although the precise legal rationale for so finding has varied from case to case.

The issue is also not exclusively an American one, and the resolution of these disputes in the courts of other nation’s has not been uniform. An Israeli court recently reached a decision contrary to the Wisconsin decision in a case involving the streaming of English Premier League soccer matches to Israel, via the Internet. The court ruled that the league and its teams had no ownership interest in the games themselves, and thus could not prevent the dissemination of the games in Israel.

There is no question that the party who controls the grounds on which the games are played can impose restrictions on those who enter as licensees. However, whether or not there should be an additional property right in the games themselves is a question on which there appears to be no greater consensus today than there was in Deppert’s time.

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