2013-06-19T08:42:45-04:00 Roger I. Abrams http://www.huffingtonpost.com/author/index.php?author=roger-i-abrams Copyright 2008, HuffingtonPost.com, Inc. HuffingtonPost Blogger Feed for Roger I. Abrams Good old fashioned elbow grease. tag:www.huffingtonpost.com,2011:/theblog//3.1114244 2011-11-26T16:32:09-05:00 2012-01-26T05:12:02-05:00

Roger I. Abrams http://www.huffingtonpost.com/roger-i-abrams/
Collective bargaining is a frustrating experience both for the participants and the fans of sports. I am sure there are days when club owners wish -- as many employers do -- that their employees would just toss out the union and come back to work at the generous salaries the clubs offer. Many of these owners made their riches running non-union businesses and enjoyed a full measure of managerial discretion. In team sports, however, the owners need the unions. Unless embodied in a collective bargaining agreement, many of the rules needed to operate a team sport would constitute antitrust violations, something the owners must avoid.

The NBA negotiations demonstrated how complicated bargaining can be when you have dozens of owners on one side of the table. The owners' interests were not congruent. Some wanted a "big win" over the union which would then allow them to market their franchises at a better price. Others just wanted to play the game. Each game missed meant a significant loss of revenue. It was David Stern's job to try to cobble together a majority out of this mix, not an easy task.

The NBA players also have divergent interests. Players with high salaries and long-term contracts do not share the concerns of marginal players on ten-day contracts. The Players Association seemed to be able to bridge these differences until it needed to call the NBA's bluff and move towards decertification and antitrust litigation.

By comparison, the pros at the bargaining table in baseball -- Mike Weiner for the Union and Rob Manfred for management -- now have hammered out their third contract in a row without a work stoppage. They have moved towards "partnership bargaining." That does not mean that negotiations are quick and easy. They deal with difficult issues, but the parties do so quietly, without public posturing, and in full recognition of the legitimate, albeit conflicting, interests of the folks across the table. Anyone who thought that baseball would enter an "Era of Good Feelings" after the 1994-95 debacle either had remarkable foresight, or was just nuts.

The negotiators in baseball have made their enterprise more interesting through the bargaining process. We don't know the details of the money and revenue sharing provisions, but adding an additional wild card qualifier in each league is good news for the fans. This gives more teams at least the glimmer of hope of making it to the post-season, while, at the same time, makes winning a division more meaningful since the wild cards now only get a single-game guarantee. I am sure many will be hoping for a repeat of the excitement generated by Bobby Thomson's dramatic walk-off home run in the Giants-Dodgers one-game playoff in 1951.

The basketball negotiation once again demonstrated the importance of personalities at the bargaining table. Negotiating is a very human process, and the word is that management negotiators had problems dealing with Jeffrey Kessler. Jeff is a terrific union-side lawyer, perhaps the most important strategist on the players' side in professional sports. For whatever reason, the NBA trade association (or whatever it was called during its brief lifespan) found it advantageous to bring in new counsel to make the deal. That is not unusual in collective bargaining.

It was also quite foreseeable that the bargain would ultimately be reached at 3 a.m. Negotiators are people too. They get tired, and these long, drawn-out negotiations were exhausting. As a labor arbitrator, I often see the product of these 3 a.m. bargaining sessions years later when a dispute arises about what the parties actually intended when they reached their deal. They write things down, but are too tired to dot every "i" and cross every "t." This leaves some work for arbitrators to do, filing in the gaps left by the negotiators.

Much to just about everyone's surprise, all three negotiations this year -- NFL, NBA and MLB -- ended successfully in agreements. The NFL and MLB missed no meaningful games, and the NBA will be everyone's all-day-long Christmas present. There was lots of frustration along the way, but the deals were made. We now have almost a year until the National Hockey League collective bargaining agreement expires, and so there is no need to worry, at least not yet.
]]> tag:www.huffingtonpost.com,2011:/theblog//3.1089862 2011-11-12T12:26:42-05:00 2012-01-12T05:12:01-05:00

Roger I. Abrams http://www.huffingtonpost.com/roger-i-abrams/
Maybe the Penn State scandal will be the exception that finally changes the rules. It has nothing to do with the illegal recruitment of athletes or the lasting physical abuse players experience playing a game for our enjoyment. It has nothing to do with the idiocy of institutions of higher learning operating sports franchises. It does have to do with allegations of the sexual abuse of young boys by a football coach. Those charges are so horrendous that maybe this time the results will be different.

Although the details of the events at Penn State keep unfolding daily, at its core the scandal involves an abuse of power by those who operate a college football program. That includes not only the miscreant who allegedly violated youngsters in the showers of the college gym, but it also includes a famous coach who failed to report these heinous crimes to the public authorities. Perhaps Coach Paterno hoped they would simply disappear. Perhaps the university officials who failed in their oversight of a athletic program were worried about losing the millions of dollars that their sports franchise produced for their institution.

The Penn State case does not involve the core of what is rotten about big-time college football, but it may be sufficient to tumble the house of cards. Sometimes the final straw has little to do with the bale of hay. Remember that Al Capone went to jail for tax evasion, not for the murders he ordered and committed. In the minds of many of his most ardent followers, Richard Nixon's most grievous crime was tax evasion, not his perversion of the American system of government. It really doesn't matter what finally focuses our attention on this can of worms. What does matter is that we finally clean up the monster we have created.

In many parts of the country, the fall is devoted to football played by young men in their late teens and early twenties. College football when played at the level of Penn State can be a wonderful public diversion. There is nothing to criticize about this obsession. The recent overtime game between Louisiana State and Alabama showed the game at its best. Yet there is nothing about that game that required that two state institutions of higher education be the promoters. If there is a market for college-age football, private entrepreneurs will discover it and exploit it. Most big-time college football programs are operated by state-funded institutions of higher learning with a few notable exceptions, such as Stanford and Notre Dame. One would think that those who rail against big government would cry out for dismantling these publicly-funded entertainments.

It is understandable that football-playing institutions would seek to reap the financial benefits of their Saturday sports festivals. They have used the National Collegiate Athletic Association to enforce regulations that lower the costs of mounting this product -- most importantly by regulating the salaries the entertainers receive -- while maintaining a level playing field among gridiron competitors. In large measure, the schools have been successful, and few have complained. The young men who they recruit to play their games are genuinely honored to receive whatever the colleges give them in return. They accept the status quo as do the fans of the games. The system is rotten, however. It is a perversion of everything that colleges were designed to accomplish.

Nothing shows the damage inflicted by big-time football any better than the reaction of Coach Paterno to the scandal. In recent years when asked by the University president to consider retirement as he reached and passed age 80, Paterno refused. When the recent disclosures included his involvement in what might turn out to have been a cover-up, Paterno preempted the University's Board of Trustees by announcing he would retire on his own timetable after the close of the season. The Board's decision to clean house by firing the coach and the University president was considered courageous because football had become synonymous with the University and Coach Paterno had long been the embodiment of the Nitanny Lions.

Football is not Penn State. It is but one of the University's ancillary activities and certainly not its most important. It is a great university that, like many others, had been led away from its essential mission decades ago and now finally may have been shaken into taking action. If it had acted decades earlier, the lives of some very young boys might not have been ruined.
]]> tag:www.huffingtonpost.com,2011:/theblog//3.1003640 2011-10-10T18:02:21-04:00 2011-12-10T05:12:02-05:00

Roger I. Abrams http://www.huffingtonpost.com/roger-i-abrams/
Al Davis was a kid who grew up in Brooklyn who always reminded me of Johnny Zuko, the leader of the T-birds in Grease. With his ever-present pompadour hair style and sunglasses, Davis lived his life with a chip on his shoulder. (The hairdo was a vintage artifact from his years at Brooklyn's Erasmus High School and his sunglasses were prescription, explaining why he wore them inside.) Davis was an aggressive, moody wanderer, who was always in search of the most lucrative 100 yards of dirt and grass for his football Raiders. Born on the Fourth of July, 1929, Davis valued his independence, but strove his entire life to gain the respect he felt he deserved. Davis' Raiders became a dominating force in America's national game, and the owner became a symbol of what America had become -- restless, belligerent, enterprising, and quarrelsome.

The Los Angeles Coliseum offered Davis millions of dollars to relocate his franchise from the East Bay to LA. The National Football League owners, however, voted 22-0 against the move and refused to schedule any games against the Raiders if those games would be held in Los Angeles. (Ironically, the motion to deny Davis the right to relocate was made by Art Modell, then the consummate NFL insider and, 16 years later, a franchise free agent himself, moving his nee-Browns to Baltimore.) Personally abrasive, Davis did not seek (or gain) the affection of his fellow owners. In fact, it is said that the owners voted against Davis, rather than against the relocation.

The resulting legal battle between Davis and Rozelle demonstrated how the federal antitrust laws set the out-of-bounds markers in the business of sports. His case has become a staple of the Sports Law curriculum, but it was equally important as a venue for Davis to seek the respect he had always sought. A tough guy who played best at games with rules that he could control and manipulate, Davis had always charted his own course to success. He claimed to be an athlete when he was not. (He had only played stickball on the streets of Brooklyn.) He challenged those who stood in his way and manipulated all others. Davis talked himself into a series of college coaching positions, using a combination of bluster and bluff, con and arrogance.

Davis built the Raiders in his own image, with players who would be as aggressive and angry on the field as Davis was off the field. In return for their loyalty, Davis allowed his players personal freedoms that were rare on usually conformist football clubs, but he would not countenance prejudice and racism on his squad and all his players knew that. He was especially sensitive about anti-Semitism, reflecting his Jewish heritage and the discrimination and exclusion he always thought he had suffered. He dominated, manipulated and motivated his franchise; he discarded those who proved disloyal, gradually reshaping his club.

The Davis soap opera needed an antagonist, and Davis found his in the Commissioner's office. Smooth as silk, Pete Rozelle was always the confident charmer, everything Davis despised. In fact, Rozelle was a city kid like Davis, a graduate of Compton High School who worked his way up the football ladder on the public relations side of the LA Rams house. With his smooth demeanor, immaculate dress and bronzed tan, Rozelle epitomized what Davis could not become. Suing the NFL was, for Davis, a personal vendetta. Davis was more than willing to put the NFL joint venture at risk. He knew that the games played off the field were rough and nasty, but he had complete confidence that the self-made tough guy from Brooklyn would prevail.

Davis went one-on-one with the NFL establishment in a court of law and prevailed, freeing individual franchise owners to follow the marketplace as they saw fit. The impact of Davis' victory on NFL franchise relocation was immediate. No longer could cities ignore threats by clubs to leave. Robert Irsay's Colts migrated to Indianapolis, Bill Bidwell's Cardinals left St. Louis for Phoenix, and other relocations soon would follow. The NFL had been shocked by the Raiders' court decision and, as a result, it was enfeebled.

Al Davis was never comfortable in Los Angeles. He soon claimed that the LA Coliseum Commission had failed to fulfill its promises to him and eventually he migrated back to Oakland. Each of his moves was accompanied by litigation which had become primary pastime. As he roamed the practice field wearing his white warm-up suit (he would sometimes change to his all-black version), Davis was master of his domain, a contradiction of idiosyncrasies: vindictive, gracious, caring, officious, paranoid and arrogant. His one consistency was an insistence that his club play "Raider football," combining a nasty, pounding, power running attack with a vertical game, and a ferocious defense with an "X" on the quarterback's chest. "We don't take what they give us," Davis would say about opponents: "We make them take what we give them." Davis had found one ally he could rely upon, much as Tony Soprano could rely on Paulie Walnuts. He had found the law.]]> tag:www.huffingtonpost.com,2011:/theblog//3.972354 2011-09-21T13:10:38-04:00 2011-11-21T05:12:02-05:00

Roger I. Abrams http://www.huffingtonpost.com/roger-i-abrams/
The prospect of four major conferences, each with sixteen teams and two divisions, sounds like a fine entertainment product. Unless the networks decide that we all would like to watch the "left-overs," the future of televised sports lies with the SEC, ACC, Big Ten (16) and PAC-16. It would be just a short jump from there to a two-weekend playoff system pitting the winners of the four conferences in the semi-finals followed by a gala final the week before the Super Bowl. There are, of course, significant antitrust issues that will have to be addressed, but for now it's more exciting to watch where Oklahoma will end up then to watch them pulverize Florida State.

There is something unseemly, of course, about these moves. Suddenly, Pitt and Syracuse depart from the Big East for the ACC and Texas A&M announces its intention to leave the Big 12 for the SEC. What will the Big East do now that it is no longer "Big?" The Big 12 is destined for dismemberment when Texas, Oklahoma and Oklahoma State announce their intentions. The frenzy has even awoken NCAA President Mark Emmert from his slumber. He has urged college presidents to "consider key factors" before booking passage. He has no power. Money conquers all.

For those schools fortunate enough to be invited to one of the new super-conferences, the moves offer the opportunity to balance the books. Many of the migrants are state schools, and public funding has dried up across the nation. The business of televised college sports, however, is booming. ESPN will become a major, albeit indirect, supplier of scholarship funds.

Are the schools left behind without any means to stop the departures? Baylor University has threatened to sue A&M and the SEC for tortious interference with contractual relations. It is not simply a coincidence that Baylor's new president is Ken Starr, the famous (or infamous) prosecutor of President Bill Clinton. He is one persistent lawyer who knows his law. His cause of action is based on age-old legal principles. You cannot intentionally seek to encourage a party to a contract to break its promises under that contract. While few have given Baylor's threat much credence, it is a solid legal argument.

There certainly is a contract among the member schools of the Big 12 (and, as far as that goes, members of every athletic conference). The SEC knew that A&M was signatory to the Big 12 contract. While the initiative might have come originally from College Station, there can be little doubt that the SEC has sought to consummate the move. Baylor can prove that it would suffer damages as a result.

The legal strategy does not require A&M, Pitt or Syracuse to stay in their conferences forever. Each conference has rules that specify how member schools can depart, and what it will cost them to leave. Nothing, in fact, will stop the ultimate realignment, except perhaps an antitrust action under the Sherman Act. The mega-conferences could be seen as "combinations in restraint of trade" if, as a result, they exercise undue market power over television contracts. Any injured school -- there are many -- can bring suit.

It would be ironic if the major football-playing schools become the object of antitrust litigation. When the NCAA regulated member school appearances on television, the Universities of Oklahoma and Georgia sued under the antitrust laws and ultimately prevailed in the Supreme Court. The NCAA television plan was dismantled, and the colleges and conferences negotiated on their own with the various networks. That is why each Saturday we have a cascade of football games that start at noon (9 am on the west coast) and last until after midnight. The free market determines the price paid to colleges and conferences for these games. If there are only four major conferences, there certainly is the possibility of something less than a free market.

Meanwhile, it will be interesting to watch how the colleges realign, decisions made based on business considerations which have nothing in particular to do with academics. Maybe this might mean that the Big Ten, now with twelve schools, might have to be renamed that Big Sixteen. It doesn't quite have the same cache.
]]> tag:www.huffingtonpost.com,2011:/theblog//3.932505 2011-08-21T18:40:31-04:00 2011-10-21T05:12:01-04:00

Roger I. Abrams http://www.huffingtonpost.com/roger-i-abrams/ University of Miami fiasco is only the latest in a series of contretemps that spread back over a century. While enforced amateurism is really a post-World War II phenomenon, college athletics have been causing trouble on campus for much longer.

Apparently, a booster at the "U" had been paying football players for about a decade while running his illegal Ponzi scheme. (You can't pay out that kind of dough without a source of funds.) The NCAA will go through its required processes, and Miami will pay big for its transgressions. I hope that President Donna Shalala is not one of the casualties of the inquest, not because of her involvement in sports, which is rather minor, but because of her excellence in academics. On the other hand, some heads will have to roll, especially if the NCAA dusts off its "death penalty," used only once in history, but certainly a possibility if the allegations are proven.

Football started on campus as a fraternal activity of the upper class young men of the Ivy League and other elite colleges in the Nineteenth Century. My colleague Paul Weiler insists that the first real game of football took place on the Harvard campus in the 1870s when a visiting group of Canadians from Montreal's McGill played a game against eleven men from Harvard. Football seemed innocent enough a pastime until college clubs began to recruit large strong men to play on their teams -- while not worrying too much about whether they were students or not. The game became so rough-and-tumble that the annual death toll from football attracted both public notice and the attention of President Teddy Roosevelt, whose nephew played the game at Harvard and broke a bone in the process. T.R. felt compelled to summon college presidents to the White House, and he ordered them to reform the game to decrease the casualty toll. They did and formed the NCAA in the process. At its creation, the NCAA had nothing to do with amateurism. It was an organization whose goal was purely safety, and it worked.

The fixation on amateurism was a later development after coaches like Bear Bryant attracted muscular support for his teams at Maryland, Kentucky and Alabama. I still have difficulty understanding why it is critical to the college brand to have the players paid only with tuition, room, board and books. Everyone else on campus who provides a service to the institution -- including, I should note, the professors -- are paid the market rate. If football and basketball players (and maybe hockey players, depending on the institution) were paid a market rate, the scandals would evaporate. Of course, players can demand more, but if they were compensated commensurate with their status as minor league football players, the demand for cash would be reduced. Under the current system of enforced amateurism, many are woefully underpaid.

What then is the downside of letting the free market operate? Would football players focus less on academics? It is difficult to determine how much they now focus on academics. Most have gone to college as pre-professional preparation for a career in major league sports. Of course, not many are able to make that grade. There are other athletes who do pursue academics in college and being paid would not chill their ambition.

Some will argue that eliminating amateurism for college football means the "bad guys win." In fact, the opposite is true. Eliminating amateurism will diminish the role of those boosters who have polluted the college game. Some will wonder what minor league football is doing on campus in the first place -- I have wondered about that myself. Yet, the game has found an important entertainment role connected to academia, and the billion dollar television contracts prove it is a valuable commodity. Openly paying college football players may prove costly to some colleges and universities, and some may decide that they no longer want to participate in the activity. That will not happen with regard to the major sports schools, however.

Perhaps during his second term, President Obama will emulate T.R.'s approach and call the leaders of college sports to the White House for some jawboning about the business of the college game. He is already on record in favor of a college football playoff. The president is a sharp-elbowed basketball player himself with both academic and athletic cred. Maybe it is time for a historic repeat.]]> tag:www.huffingtonpost.com,2011:/theblog//3.908533 2011-07-25T11:03:25-04:00 2011-09-24T05:12:01-04:00

Roger I. Abrams http://www.huffingtonpost.com/roger-i-abrams/
Both sides in these negotiations were represented by talented representatives, and they knew exactly when they needed to make a deal. Unlike the dangerous federal budget default negotiations, there was no ideology involved in this dispute, no future election prospects, just plain old money -- who gets what, how much and when.

The parties reached an agreement just in time to give us the NFL exhibition season, the least palatable appetizer on the menu. We will get our usual "taste" of real NFL football for the first three pre-season games -- the fourth game usually involves real NFL players. I guess that is a small price to pay for knowing the 2011-12 season is on.

The NFL-NFLPA deal shows that collective bargaining works as a method of resolving workplace disputes, at least in situations where the employers are filthy rich and the business is growing. It can be a very frustrating process both for participants and observers. Collective bargaining takes time and enormous patience, but in the end an agreement may forge a partnership between those who produce the entertainment and the talent who are the entertainers. That seems to have happened in baseball after eight straight work stoppages that almost killed the National Game, but we shall see how stable that cooperative relationship is after the current collective bargaining agreement expires later this year.

The part of the NFL deal that creates a rookie wage scale is a brilliant piece of self-dealing on the part of both the Players Association and the owners. The best of the rookies, as a result of hardnosed negotiating by their agents, had been taking increasing bites out of the pie which was limited in size by a hard team salary cap. Now the extra money -- and there will be cash around based upon this settlement -- will go to those men who have proven their value on the field. As usual, no one seems to have given adequate attention to the needs of the retirees, but they -- like the unsigned rookies -- are not members of the union.

For sports law professors, these have really been the best of times. We have been inundated with questions from the media about the legal games the parties have been playing. No one understands the Norris-LaGuardia Act -- including apparently the United States Court of Appeals for the Eighth Circuit -- and the only ones around to ask about the intricacies of federal law were those of us who teach the subject in our Sports Law courses. Add to the mix the mysteries of labor law decertification and the inscrutable labor law exemption to the antitrust laws, and it has been a bonanza "law season." Most retailers do most of their business around Christmas time. These past few months have been Christmas time for Sports Law professors.

Genuine sports fans, of course, should care little about these legal issues. They just want the games to go on as scheduled. Who really cares who wins at the bargaining table or in court as long as there are three games scheduled every Sunday and one on Monday night! (I know I am leaving out the special Thursday edition of Monday night football and the NFL Network's games, but there can be too much even of a good thing.)

For those who will miss the business-side of sports, we still have the NBA lockout to kick around, and we will have it for some period of time. This was always going to be a more difficult dispute to resolve through collective bargaining because, unlike the NFL owners, the NBA owners claim to be losing money hand-over-fist. (If that is true, why would new owners buy into such a lousy business? This is one of those unanswerable questions I always pose to my students.)

Although not quite as interesting as the two lockouts, we should not forget about the Barry Bonds and Roger Clemens criminal trials. Bonds may already be old news, except when it comes to whether the home run champion will ever be voted into the Hall of Fame. (My best guess is that he will not, at least until a "decent interval of time" has passed.) The Clemens case was a real shocker. The misconduct by the prosecution was almost as serious as taking human growth hormone. I don't think the prosecution deliberately used evidence the court had already ruled inadmissible. It was likely just a slip up, something that happens at trial. We will have to wait until September to see whether there will be a sequel in the Clemens saga, but the whole issue of performance enhancing drugs has run its course -- except, of course, if the Tour de France explodes again into a festival of pharmaceuticals. I sure hope Cadel Evans tests clean.
]]> tag:www.huffingtonpost.com,2011:/theblog//3.888634 2011-07-01T17:11:53-04:00 2011-08-31T05:12:01-04:00

Roger I. Abrams http://www.huffingtonpost.com/roger-i-abrams/
During the ubiquitous baseball strikes of the 1970s, 1980s and 1990s, I was sufficiently upset to think about how to solve the problems of the club owners and the players. Working with my friend Paul Weiler at Harvard Law School, we even developed a plan for a national blue ribbon panel of neutrals that would advise the President (Clinton, at that time) about the baseball strike and who should bear the public's scorn. As a result, we thought, there would be such public pressure placed on the offending party that there would be an immediate settlement. Instead, the Clinton administration decided to appoint Bill Usery, a distinguished labor mediator, to bring the parties together and encourage them to make peace. By all accounts, that mediation process proved to be a disaster, but I am not sure that our efforts would have been any more successful. Ultimately, it was a misstep by the baseball owners -- a unilateral change in terms and conditions of employment before the parties had bargained to an impasse on the issues -- that led the MLB Players Association to the Labor Board, which, in turn, moved in federal court for an injunction against the baseball club owners.

Now we are faced with the clear prospect of a year without professional basketball. The word that has leaked out of the negotiations is that the parties are so far apart it could be spring before they reach an accommodation. Of course, there is plenty of time between now and the first NBA game of the season in the fall, but there seems to be little reason for optimism. The NBA owners, many of whom have only recently purchased their franchises, seem committed to changing the financial structure of the League. They certainly are entitled to try to do that. Remember that the essential goal of their bargaining is to control not the players, but other owners from emulating the late George Steinbrenner and blowing the salary scale out of the water. They want -- and likely need -- the Players Association to control them!

Many will read about the multimillion dollar salaries of the players and wonder how things arrived at such a state. The free market is a strange and wondrous mechanism. It allows salaries to rise to meet demand. Someone offered each one of these players their enormous salaries. As far as I know, no one has ever forced an owner to offer these amounts at the point of a gun.

Each owner is faced with the possibility that signing one player would actually allow his club to reach the playoffs and one more superstar after that might even cinch an NBA title. (Bring together Labron, D-Wade and Bosh and you will have five, six or seven championships in a row... What ever happened to that?) It is unlikely to imagine that happening in any other team sport. The NBA's now-expired soft cap had enough holes in it to allow the owners to do themselves in. They want a harder cap like the NFL or a really, really hard cap like the NHL. It is no coincidence that six NBA owners also own NHL franchises and have seen the benefits of a year-long lockout which can crush a labor organization.

On the other hand, it is almost time to feel good about football. My prediction in this blog made months ago was that the NFL would not miss any meaningful games this coming season, and I stand by that. We should have a contract within a few weeks and certainly by the end of the month. The only thing that could stand in the way would be a resounding decision by the Eighth Circuit giving some NFL club owners hope that with just a little more patience they can do what the NHL accomplished. My guess is that the Circuit Court does not want to disrupt the prospects for a bargain and will stay its hand.

And so, we will have pro football, but no pro basketball. What do we do with all our free time? There will be hockey. (By the start of the NHL season, every person living in New England would have touched Lord Stanley's Cup, drunk Sam Adams out of it and brought it home for dinner. Someone will then suggest that it is time to lace up the skates again.) We also have the semi-professional game called college basketball. You might also try reading.]]> tag:www.huffingtonpost.com,2011:/theblog//3.880088 2011-06-19T19:10:30-04:00 2011-08-19T05:12:02-04:00

Roger I. Abrams http://www.huffingtonpost.com/roger-i-abrams/ change in the structure of the leagues.

Apparently, they are talking about moving one National League club to the American League, giving each circuit 15 teams. Houston would be the perfect candidate for the move, setting up a natural rivalry with the American League club in North Texas. Then the parties would increase the number of teams qualifying for the post-season, adding one from each league.

The proposal may also suggest the elimination of the current divisions, which would be a truly bad idea. Those of us who remember when each league had eight teams recall how dreadful life was for those clubs in the "second division" during the second half of the season. They were doomed, and folks who attended their games either came just for the beer or to catch some rays in the bleachers.

The National League in the 1890s had an even worse system. It had 12 teams in the one major league that remained after the American Association folded. Attendance dwindled and finally the Nationals cut four teams, allowing the rival American League some strong franchises on which to resurrect a competitive circuit. While that would not happen today, the division structure does offer the potential for success deep into the season -- unless you are the Baltimore Orioles and have to face the Yankees, Red Sox and Rays every other week.

I am far more interested in another change to the game, one the parties would have to address through collective bargaining because it directly impacts player jobs. It is absurd that the rules of the game played in the American League differ from the rules of the game in the National League. Yes, I am talking about the designated hitter rule. This legacy of Charlie Finley -- although it was not his idea to begin with -- should be addressed. The fact that the pitcher does not bat in the AL and bats (or tries to) in the NL makes absolutely no sense at all.

The difference in the rules comes to the fore each season during inter-league play and in the World Series. The Red Sox, for example, are about to embark on a nine-day road trip to National League cities. The club's stellar designated hitter having a comeback year -- David "Big Papi" Ortiz -- will not be playing, except perhaps to pinch hit. In the past he would play first base during these NL adventures, but no one is going to sit Adrian Gonzalez. Papi in the outfield would be embarrassing to this fine ballplayer. But the need for uniformity is not just about the Sox. It is about the integrity of the game.

During the first class of Sports Law, we discuss "what is a sport." Obviously, it is a competition which requires physical exertion, but a quintessential element of a sport is the "level playing field." Everyone plays by the same rules. Rule number one is "who plays." Does the pitcher bat or some non-fielding slugger?

Frankly, I don't care which set of rules the parties might agree upon. The Players Association does, of course. Great designated hitters might lose their jobs. National League aficionados are convinced that the "small ball" played by a bunting pitcher and double switches is real baseball and more fun. That's fine with me, but it is hard to argue that in the Bronx the pitcher sits and in Queens he bats (or on the North Side the pitcher bats, but on the South Side he sits). All the minor leagues use the designated hitter rule. Maybe that is the way to go -- but we should urge the powers that be to go somewhere and end up at the same place.

While we are at this fundamental level of analysis, maybe we should outlaw chewing tobacco and constant spitting. Talking about bad role-modeling! I am more than willing to leave that for another day, if they can only get this designated hitter issue aligned. It is one game, and there should be one set of rules.
]]> tag:www.huffingtonpost.com,2011:/theblog//3.876318 2011-06-13T18:34:10-04:00 2011-08-13T05:12:01-04:00

Roger I. Abrams http://www.huffingtonpost.com/roger-i-abrams/
"All the people that were rooting on me to fail, at the end of the day, they have to wake up tomorrow and have the same life that they had before they woke up today. They have the same personal problems they had today. I'm going to continue to live the way I want to live and continue to do the things that I want to do with me and my family and be happy with that. They can get a few days or a few months or whatever the case may be on being happy about not only myself, but the Miami Heat not accomplishing their goal. But they have to get back to the real world at some point."

While Lebron was certainly accurate -- we all woke up today with the same life we had yesterday -- he will not. He had again besmirched his reputation. He seems to be ready to cash in whatever chips of public good will he had remaining after his "Escape to South Beach" escapade last year.

Lebron James is not the first public person to demonstrate acute arrogance and an utter disdain for the general public. One would have thought, however, that Lebron would have learned to handle failure by now. His remark reminded me of Richard Nixon castigating the press after losing the governor's race in California in 1962: "You won't have Nixon to kick around anymore because, gentlemen, this is my last press conference." Nixon, of course, did not keep this promise, much to our national regret. Lebron will likely get some good public relations coaching over the summer and come back ready to lead his Heat teammates towards their first championship, assuming there is a season this fall -- a major assumption considering the current state of the labor talks.

We have a tacit arrangement with professional athletes that requires both sides of the bargain to stay within their appointed roles. As fans, we complain about our heroes when they fail to perform up to our expectations. We complain about how much they get paid. We criticize their lack of loyalty. We share their victories and suffer along with them when they lose. In exchange, professional athletes are supposed to perform to the best of their abilities and thank us for our support. We can ridicule them. They cannot ridicule us.

Occasionally, both sides break the bargain. Fans have been known to throw things at athletes while they are playing. Hurling epithets is allowed; nine-volt batteries are not. We must also stay off the playing surface. They play the game; we don't. Occasionally, when lubricated with enough beer we forget those limitations and run out on field, but for the most part we respect the proscenium boundaries. Athletes are our heroes and (like it or not) our role models and, in exchange for the public glory and their abundant pay, they relinquish some of their privacy.

Most athletes understand those rules, although that has not always been the case. Ty Cobb once entered the stands in New York to beat up a severely handicapped heckler. When he was not beating up fans, he was attacking hotel service workers and beating up his teammates. Thank goodness, he was the exception and not the rule. And then there are the athletes who used performance-enhancing drugs. While clearly violating either the rules of the game or the law, they have only done so to try to play better. For a while, we even enjoyed their enhanced performances.

But athletes should not remind us about the hum-drum lives we lead as compared with their lives -- the lives of the rich and famous. Lebron was understandably upset, and maybe he can be excused. In less than a year, however, he has transformed his personae from the shining knight of Akron, Ohio to the spoiled brat of South Beach. That's a shame.
]]> tag:www.huffingtonpost.com,2011:/theblog//3.868210 2011-05-27T17:46:51-04:00 2011-07-27T05:12:01-04:00

Roger I. Abrams http://www.huffingtonpost.com/roger-i-abrams/
The real American game has always been business, played for centuries with winners and losers along the way. The National Basketball Association has repeatedly claimed that it is a loser at this market contest. (Could you imagine losing $300 million in a year and not being an auto manufacturer?) Commissioner David Stern claims that two-thirds of his clubs are losing money. Who will help the NBA in its time of need? Of course, the owners want it to be their employees.

Way back in the 1960s, predecessors to these players organized a union to represent their interests in dealing with their employers, the clubs. Their entertainment product has come a long way since then -- the old videotapes show scrawny tall guys in short shorts -- but the basic dynamics of the labor relations game has remained fairly stable. That game is played one-on-one across the negotiation table, with side trips to the press room and to various legal arenas.

The NBA and the NBPA are parties to a collective bargaining agreement that expires on June 30, about a month from now. The agreement is a complex document filled with measures that limit player and team salaries. The union would be pleased to maintain the status quo, but the Commissioner has plainly and repeatedly stated that this would not occur.

This week, the Players Association filed an unfair labor practice charge -- wrongly reported in the press as a "complaint" -- with the National Labor Relations Board's New York office, claiming bad faith bargaining on the part of the League. In its press release, the PA explained: "We have urged the Board to investigate this matter quickly and to seek an injunction against the NBA's unlawful bargaining practices and its unlawful lockout threat." The charge alleges that the NBA violated federal law by "making harsh, inflexible, and grossly regressive 'takeaway' demands that the NBA knows are not acceptable to the union and not supported by objective or reasonable factors or balanced by appropriate trade-offs." In addition, it claims the NBA has been "repeatedly threatening to lock out union-represented employees upon contract expiration regardless of negotiation status, without fear of a strike, based on a pretextual claim of financial weakness, and despite the foregoing bad-faith bargaining."

The union also alleges the NBA has been making threats and demands that "are inherently destructive to the collective bargaining process and to employee rights, and that reflect the NBA's hostility to that process and those rights and are intended to signal to union-represented employees that back-and forth bargaining is futile." The charge also cites the NBA's failure to supply adequate financial data so the union can determine whether its "plea of poverty" is based on real facts.

In case you might think this is a "game changer," it is not. The NBPA has launched a "four" point shot from mid-court. The Board, it seems to me, is most unlikely to seek an injunction as it did against Organized Baseball in 1995 when the owners made interim unilateral changes in terms and conditions of employment without bargaining with its union to an impasse. This, by comparison, appears to be a plain vanilla, bad-faith-bargaining charge, tough to prove since the parties are still regularly meeting and dealing with the issues -- even if somewhat one-sided.

The NBPA needed to file this charge, however, to establish the rights of the players to reinstatement upon an ultimate finding of an unfair labor practice. The case may take years to adjudicate. I still think we will see a repeat of the decertification-and-sue strategy followed by the NFLPA (the legal equivalent of a "pick-and-roll") if the 8th Circuit affirms in the NFL case. If the 8th Circuit reverses, which now seem likely, all bets are off.

Meanwhile, it is best just to watch LeBron, Wade, Bosh and Company face off against Mark Cuban, Dirk and the Mavs in what could be a great final series. If everything continues on schedule, we should not hear from the 8th Circuit on the NFL case until after the seventh game of the NBA series. Then the legal playoffs will really begin.]]> tag:www.huffingtonpost.com,2011:/theblog//3.863121 2011-05-17T17:01:58-04:00 2011-07-17T05:12:01-04:00

Roger I. Abrams http://www.huffingtonpost.com/roger-i-abrams/
The twists and turns in this labor dispute have now moved decisively in favor of the league. The problem with the panel's decision is that it ignores the rationale for Norris-LaGuardia and the Supreme Court's decision in Brown, which created this mess in the first place by giving a labor union only one real option when faced with an impasse in negotiations -- declare itself decertified and sue.

Norris-LaGuardia was enacted at the height of the Depression as a pro-labor measure to keep federal courts out of the business of busting non-violent union strikes. For most of the prior century, the courts -- both federal and state -- had acted as tools of management. In the 19th century, they declared unions to be illegal criminal conspiracies and jailed participants in job actions or even in peaceful organizational activities. With the 1914 Clayton Act, peaceful union organizing activity was excluded from antitrust censure. Finally, with Norris-LaGuardia, the courts could no longer be used by companies to break non-violent strikes and organizing.

It was a great irony, then, when the NFL called upon the courts to use this pro-union legislation to free it from judicial restraint and allow it to beat up on the NFLPA (National Football League Players Association) through its powerful lockout. The statute prohibits the issuance of an injunction in any matter "growing out of a labor dispute." Since this matter originated in a labor dispute between the NFL and the NFLPA, then, the majority of the court panel argued, it certainly "grew out of a labor dispute." The NFLPA was certainly a labor union, doing labor union work, primarily its job of negotiating terms and conditions of employment, until the talks broke down. The union then decertified. The panel majority wrote: "Given the close temporal and substantive relationship linking this case with the labor dispute between league and the players' union, we struggle at this juncture to see why this case is not at least one 'growing out of a labor dispute' -- even under the district court's view that union involvement is required for a labor dispute." This reading of Norris-LaGuardia turns the clear congressional intent to protect labor unions on its head.

The majority's reading also ignores the Supreme Court's conclusion in the Brown case. There, Justice Breyer, writing for the Court, concluded that the NFL's antitrust exemption continued long past the expiration of its collective bargaining agreement with the NFLPA, even after the parties had reach an impasse in their negotiations. The NFL could unilaterally institute its final offer to the union -- in that case what the clubs would pay players on what used to be called the "taxi" squads -- without having to worry about the implications of the antitrust laws, which would have made the collusive decision of the owners a clear violation of law. The Supreme Court, however, left open the possibility that the antitrust exemption would expire at some time: "Our holding is not intended to insulate from antitrust review every joint imposition of terms by employers, for an agreement among employers could be sufficiently distant in time and in circumstances from the collective bargaining process that a rule permitting antitrust intervention would not significantly interfere with that process." It then cited cases suggesting that a genuine union decertification would be sufficient to end the antitrust immunity. That, of course, is what the district court found happened here.

Thus, what the majority of the circuit panel has suggested is that the antitrust immunity bestowed by a collective bargaining agreement, albeit one that has expired, can never really end. The differences between the parties will always have grown "out of a labor dispute." The district court's injunction against the lockout will be reversed once the circuit court hears the merits on that issue because of a statute that was designed by Congress to protect unions. Apparently, once a union, always a union.

The irony of this result reminds a labor historian of how the federal courts first used the Sherman Antitrust Act of 1890. Designed to free the economy from the restraints of combining capital, the statute was applied repeatedly against unions! Nothing changes. Everything stays the same. ]]> tag:www.huffingtonpost.com,2011:/theblog//3.852633 2011-04-22T17:12:02-04:00 2011-06-22T05:12:01-04:00

Roger I. Abrams http://www.huffingtonpost.com/roger-i-abrams/
Selig announced: "I have taken this action because of my deep concerns regarding the finances and operations of the Dodgers and to protect the best interests of the club, its great fans and all of Major League Baseball. My office will continue its thorough investigation into the operations and finances of the Dodgers and related entities during the period of Mr. McCourt's ownership."

Major League Baseball will likely appoint an experienced baseball executive to monitor all significant financial expenditures of the club in the short term, and Frank McCourt has threatened to pursue legal action to thwart the commissioner's takeover. He will not be the first owner to test the commissioner's unique fiduciary powers, and he will not be the first to lose in court. "The best interest of the national game of baseball" clause is part of the Major League Agreement which McCourt signed. It was intended to apply in situations just like this one -- although admittedly divorce proceedings do not usually sink a franchise. That normally is the result of poor pitching and an anemic offense.

Judge Kenesaw Mountain Landis was baseball's first commissioner, an autocrat of the first order. The club owners sought Landis' leadership to guide them out of a scandal of major proportions. Eight ballplayers with the Chicago White Sox (later generally referred to as the "Black Sox") had colluded with rogue gamblers, backed by New York mobster Arnold Rothstein, to throw the 1919 World Series. When the perfidy was revealed, baseball knew that the crisis risked losing the public's affection and patronage during the post-war years.

Landis agreed to take charge, but only if he were given absolute and unreviewable powers. (He had wanted to be called the "High Commissioner," the title the British applied to their colonial officials. He had to settle for mere "Commissioner.") The club owners bestowed upon him, as a federal court later said, "all the attributes of a benevolent, but absolute, despot." Landis proceeded to ban the eight Black Sox from baseball for life, despite the fact that they had been acquitted by a Chicago jury. He later banned other players and club officials involved in what he considered shady activities. Landis would rule the game with an iron fist until his death 25 years later.

Bud Selig is not Judge Landis, and sports fans should be pleased he does not share the judge's arrogance and swagger. (It was said of Judge Landis that he was the only person who could "strut sitting down.") Yet Selig has exercised the powers of the commissioner when it appeared warranted. Maintaining the fiscal soundness of the game must be the commissioner's primary focus. All thirty clubs depend upon the commissioner to make sure there are uniform and sound business rules and practices. He has not been quick on the draw, however. For example, the ownership of the New York Mets currently faces significant fiscal challenges (not to mention real problems on the field), but Selig has stayed his hand. He could not wait, however, for the McCourt matrimonial brawl to further damage one of the sport's premier franchises.

The commissioner's trustee will operate the Dodgers ballclub and seek a market price to sell the business. There are likely to be many folks who would want to purchase a piece of this storied franchise. In the meanwhile, the many fans of Dodger Blue will have some comfort in knowing that the "best interests of the game" are being protected.
]]> tag:www.huffingtonpost.com,2011:/theblog//3.849469 2011-04-17T19:10:17-04:00 2011-06-17T05:12:02-04:00

Roger I. Abrams http://www.huffingtonpost.com/roger-i-abrams/
Of course, none of this is particularly new. Bonds had been tried and convicted in the press for years. He apparently now admits that he was fed some steroids. (Could you imagine his surprise when he discovered his head was expanding and his testicles were shrinking?) The jury seems to have come in with a verdict just opaque enough to leave the public jury confused. You mean he wasn't lying about the injections, but he was just generally lying or otherwise being snarky?

In any case, the verdict will end for a long time the guessing game about whether they should clear a space for the Bonds' plaque at the Hall of Fame. While other users not convicted of a felony may hope that after a decent interval they will be considered for election, Bonds will have real difficulty pushing that stone up the hills surrounding Lake Otsego of the easternmost Finger Lakes. If Roger Clemens' trial this summer ends in conviction as well, we will have a pair of felons. Add their names to the list of those who have publicly admitted their use of performance enhancing drugs, like Alex Rodriguez, and there may be some years when the Hall of Fame ballot will be devoid of superstars.

Kobe Bryant continues to be a piece of work. By now, most fans have forgotten his criminal charge in 2003 for the sexual assault of a 19-year-old hotel employee in Colorado. The alleged victim refused to testify and settled her civil suit against Kobe for unspecified damages and a public apology: "I want to apologize to her for my behavior that night and for the consequences she has suffered in the past year... I can only imagine the pain she has had to endure." The next year Kobe signed a seven-year, $136 million contract.

Kobe's homophobic outburst this week was followed, of course, by another apology: "What I said last night should not be taken literally. My actions were out of frustration during the heat of the game, period. The words expressed do NOT reflect my feelings towards the gay and lesbian communities and were NOT meant to offend anyone." He admitted his choice of words was not appropriate. All you have to do is say you were sorry, capitalize NOT, and all will be forgiven.

Ultimately, the Fiesta Bowl scandal may be the most important of the recent improprieties. The Bowl hired a special investigator to look into allegations of some very questionable expenditures, payoffs to politicians, coaching witnesses, and altering documents. The 276-page report is filled with delicious improprieties, but my favorite was Bowl CEO and President John Junker's explanation for the $1,241 charged to the Bowl for a visit to a Phoenix strip club. "We are in the business," Junker said, "where big strong athletes are known to attend these types of establishments. It was important for us to visit, and we certainly conducted business." Junker also charged the Bowl for his four-day birthday bash in Pebble Beach. The celebration of his 50th cost the Fiesta Bowl $33,188. The Fiesta Bowl Board of Directors was duly "shocked" and fired Junker after 30 years of distinguished service.

The Fiesta Bowl-o-rama could not have come at a worse time. While it may cost the Fiesta Bowl its status as one of the BCS bowls, the Justice Department is currently considering whether to open an investigation into whether the entire Bowl Championship Series violates the nation's antitrust laws. It is time for the NCAA to step in to protect the integrity of its college football operation.

There are additional allegations pending against other bowls. Questions have been raised about the compensation levels of executives of the Sugar and Orange Bowls and their expenditures have also been criticized. No similar questions have ever been raised about excessive compensation and expenditures in connection with the NCAA's basketball tournament. No scandals, no apologies, no antitrust violations, just basketball.
]]> tag:www.huffingtonpost.com,2011:/theblog//3.838628 2011-03-21T15:57:43-04:00 2011-05-25T18:40:24-04:00

Roger I. Abrams http://www.huffingtonpost.com/roger-i-abrams/
The delight of the annual college basketball festival has almost made me forget the NFL lockout, now in a two-week hiatus before the federal judge in Minneapolis holds a hearing on the request of former members of the Union for an injunction. The April 6th hearing obviously will be important for the NFL and the new trade association of football players, but also it will be vital for sports law in general.

The court will have to decide in the first instance whether, in fact, the Union decertification was valid. As far as I can tell, this is what lawyers like to call "a case of first impression." Although the NFL Players Association decertified once before in 1989 and then was resurrected in 1993, a court never formally ruled on whether the Union's decertification was valid. In fact, in order to reach the new collective bargaining agreement back then, the trade association had to do some union-like things, like negotiate with the NFL owners.

Should the decertification be considered legally valid? There is no question the Union sought and obtained authorization from its members to terminate its status as the exclusive bargaining representative. That should be sufficient. The NFL will argue that this was just a ploy in order to give the Union more economic power at the bargaining table. That was true, but that bargaining power did not result in an agreement the Union found acceptable.

How can you tell when a union is no longer a union? In the first instance, it can no longer do union-like things. It can't be sucked back to the bargaining table because it has no legal power to represent the football players. Commissioner Goodell's letter to the players urging them to encourage their "union" to return to the table was, for the most part, met with disdain by the players. The former Union cannot process any grievances or behave like a labor organization. It took down its website, and it would likely do better having non-union folks represent the class of plaintiffs in Minneapolis.

If the plaintiffs -- Mr. Brady, et al. -- can establish their legal, non-union status, then I think the antitrust part of the case is fairly simple. A group of 32 employers cannot boycott a group of 2000 employees. That is a "contract, combination or conspiracy" in "restraint of trade," which violates the 1890 Sherman Act and the 1914 Clayton Act. Under prevailing precedent, the NFL's actions will be judged by the Rule of Reason, which would balance the anti-competitive effects of its actions against the pro-competitive justifications. Here, it is hard to identify any justifications assuming that collective bargaining has ended. The other requests made by the plaintiffs -- for an injunction against the salary cap, restricted free agency, the draft, etc. -- would likewise fall into the prohibited category.

However, I have not been able to figure out the trade association's next step when it wins. With the injunction in hand, how will the trade association be able to cash in at the bargaining table? Will there need to be player-by-player, individual negotiations? Will every rookie be a free agent? Lots of great legal issues will smack us right in the face, so stay tuned.

In the meanwhile, enjoy the basketball. Will Kansas win it all? I have Duke, but there are some great college basketball teams in the field. Please don't try to think about the fact that all this terrific entertainment is brought to you by young men who are paid in kind with college tuition, room, board and books, while their performances are now spread over four television networks to record-breaking ratings. Just enjoy the three-pointers and the dunks.
]]> tag:www.huffingtonpost.com,2011:/theblog//3.834414 2011-03-11T08:10:27-05:00 2011-05-25T18:40:24-04:00

Roger I. Abrams http://www.huffingtonpost.com/roger-i-abrams/
The games don't count, of course, except for those talented athletes looking to make a club for opening day or find a place on a AAA or AA team where they can be called up mid-season when the inevitable injuries happen to the first nine. It seemed that the Red Sox, my local franchise, called up everyone from Pawtucket and Portland during the course of last year's march to the emergency room. At one point in the season, more than a majority of the players on the field had not started the season with the big club. All of them, however, had played in Fort Myers in March.

Even the predictably dreadful Pittsburgh Pirates seem energized this spring. They played the Phillies last Friday. The Phils had brought along enough red-clad fans to out-cheer the hometown Bradenton faithful. The Phillies are likely to end up playing almost until November. The Pirates will finish the season on September 28 playing the Brewers in Milwaukee. On this delightfully sunny day, however, the Pirates and Phillies were tied for first place! Neither had lost a game that counted. In fact, every club in Florida and Arizona was tied for first place! This is certainly a social worker's dream. Competition with no losers... at least yet.

It is true that the collective bargaining agreement between Major League Baseball and the Players Association will expire after the end of this coming season, but unlike football and especially basketball, no one foresees labor strife in the future of the National Pastime. I am still dazzled by how the leadership of the owners and players transformed their truly dysfunctional labor relationship into a positive partnership. That does not mean that the parties sing "kumbaya" around the campfire and go home. They have issues to iron-out, but they will do so as experienced professionals without risking a labor stoppage. Mike Weiner, the new chief honcho at the Players Association, and Rob Manfred, who heads up the labor relations operation at MLB, have now negotiated two agreements in a row without what had earlier been the inevitable result -- labor strife and a hiatus in the sports entertainment that gets us through the summer. They have already begun preliminary work on this year's negotiations.

And so, spring training just continues on in its own quirky way. Last Monday, the Yankees and the Orioles played to a nine inning scoreless tie. That seemed sufficient for a day's work, and no one in the crowd complained when the game was called. By the ninth inning, of course, all the regulars had been replaced by the "future stars," the players we may or may not see again. The stands are filled with scouts from other teams looking over the talent and thinking about trades that could make their clubs stronger.

Spring training is big business for the towns and cities of Florida and Arizona. They have provided terrific new stadiums and compete with one another to keep (or steal) a club they can call their own, at least until the trucks pull out by the end of the month and head back to reality. Up north (or south in the case of the Florida Marlins) the games count. Only 25 players can wear the club's uniform and no one has a number in the eighties or nineties on their back. Unlike spring training, no games are called after nine or ten innings just because everyone has had a good enough workout.
]]>