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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What’s Good for the Goose . . .

Earlier this week, a panel of the U.S. Court of Appeals for the Seventh Circuit issued its decision in In Re Sherwin-Williams Co. The court upheld Judge Lynn Adelman’s decision not to recuse himself from a case pending before him in the Eastern District of Wisconsin, Burton v. American Cyandamid, et al. 

Sherwin-Williams is currently before Adelman as a defendant in a personal injury action involving lead paint, heard in diversity jurisdiction. S-W believed “his impartiality might reasonably be questioned” (the relevant legal standard) because he had written an article defending the Wisconsin Supreme Court’s controversial lead paint decision in Thomas v. Mallett, 2005 WI 129.  (The article is Adelman & Fite, Exercising Judicial Power: A Response to the Wisconsin Supreme Court’s Critics, 91 Marq. L. Rev. 425 (2007)). In the article, Adelman defended the Court’s 04-05 term generally and praised Thomas particularly as a “positive development” which ensured that “the doors of the courthouse remain open.” Id. at 446. 

Based on this characterization, S-W sought his recusal in this case. 

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