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2012: The Summer of Sports Law

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Each year I welcome students in my Sports Law course at Boston College by declaring: "To truly understand sports, you must have a basic understanding of the law... let's begin." The cycle is straight-forward: the demand for sports on television grows which in turn generates revenue; the business operations to support this growth become more complex, resulting in the law's ever-increasing role in the events and stories of the industry. The summer of 2012 has poignantly proved my point: Virtually every major story, from the Olympics, to college sports, to professional leagues has been shaped by legal principles studied in the first year of law school -- civil procedure, constitutional law, contracts, criminal law, and business law.

Olympics

The London Olympics celebrated the success stories of Missy Franklin, Gabby Douglas and Oscar Pistorius, yet each of their journeys has been, or will be, shaped tremendously by the law. As a 17-year-old high school graduate, who happens to have four Olympic gold medals in swimming, Franklin has aspirations of college. Her challenge is that in order to compete for a college swim team the NCAA must determine that she is eligible to compete.

Since 1906 the NCAA has developed internal rules that govern intercollegiate athletic competition. Those rules stipulate that one must be an "amateur" to participate, yet the NCAA itself defines amateurism. The 2011-12 version of The NCAA Division 1 Manual, written primarily by attorneys, is not surprisingly 465 pages long and filled with more inconsistencies and minutiae than the scoring for Olympic gymnastics (see Aly Raisman and the tiebreaking rules).

To her credit, Franklin has maintained her amateurism, so far, under the NCAA's rules despite receiving over $200,000 in reward bonuses from the United States Olympic Committee (USOC) under their "Operation Gold" project. How? Because there is an exception explicitly carved out in the NCAA rules. However, under those same NCAA rules should Franklin receive a t-shirt from Nike or accept an Olympic tattoo for free, she's out. What? (For more details on this situation you can read my short post here.)

The NCAA is clear, and the courts (see the case of Bloom v. National Collegiate Athletic Ass'n) have supported their position, that if anyone accepts pay for performance or signs an endorsement deal, they are considered a professional by the NCAA and permanently ineligible to complete in college. Thus, once Gabby Douglas accepted money to appear on a box of Corn Flakes she forfeited her ability to compete in college gymnastics. Still undecided, Franklin must choose between accepting endorsements and paying her way through college or turning down millions so that she can compete on an athletic scholarship.

Perhaps the single most spectacular athletic achievement in the Olympics was the presence of South Africa's Oscar "Blade Runner" Pistorius. Born without fibulas his legs are amputated below the knees thus, Pistorius competed in several track events on his carbon fiber prosthetic limbs. But his physical disabilities were not the only obstacle he had to overcome to reach the Games; Pistorius also needed to win in court just to participate. In 2007 the International Association of Athletics Federations banned him from competing in able-bodied competitions reasoning that his blades allowed him to expend less energy than other runners.

To pursue his dream, and at his own expense, Pistorius assembled a legal and scientific team to appeal this ruling to the Court of Arbitration in Sport. Pistorius narrowly won his appeal, but the Court's decision applies to him only and offers no guidelines for future use of "adaptive sports equipment," forcing future athletes to appeal individually.

College Athletics

One of the country's most egregious college sports scandals unfolded in recent months as details regarding the events surrounding Penn State football and Jerry Sandusky came to light. Beyond the copious federal and state criminal charges, the NCAA itself must navigate through the legal morass of this situation. The question is, as a nonprofit, membership organization whose purpose is to regulate intercollegiate athletics, to what extent can the NCAA impose sanctions on conduct that had no direct nexus to athletic competition?

Furthermore, under what scenario does the NCAA as a private entity, have the right to bypass their own normal internal policies and procedures for investigations and sanctions? Clearly the NCAA decided that a swift response was more important than due process (something the courts have decided the NCAA does not owe since they are not a state actor -- see NCAA v. Tarkanian). Yet, the NCAA cannot act capriciously or arbitrarily and that has opened them up to potential lawsuits by Penn State (who appears to have accepted their punishment) and the Paterno family (who has not).

Professional Sports

Collective bargaining -- the intersection of antitrust and labor law -- has once again permeated our lexicon in sports. Both professional hockey and football are at labor impasse this summer and the impact will be felt by the fans. In the NFL, the league has locked out their officials (represented by the NFL Referees Association) and they are arguing over, not surprisingly, their pay. Referees in the country's most financially successful league are part-time employees and feel that their pay and benefits should be increased, which the NFL has refused so far. The result is that this summer's preseason games are being officiated by replacement referees and their efforts have been, to be kind, subpar.

Things are even worse in professional hockey where the NHL and the player's union, the NHLPA, are having significant disagreements over the business of hockey, including revenue sharing, the definition of hockey related revenues (HRR), salary roll backs and free agency. The rift is wide and, it appears that the NHL is unfortunately headed towards their fourth stoppage of play in a decade.

Last summer the NFL and their labor negotiations with the NFLPA took center stage. The NFL is back in the courts -- this time over the power of the commissioner to impose punishment and suspensions on players in "Bountygate." The result is that Commissioner Roger Goodell felt that a one year suspension (among other penalties) for New Orleans Saints linebacker Jonathan Vilma was justified.

In general, collective bargaining last summer between the NFL and NFLPA determined that the Commissioner is afforded the ability to be judge and jury in disciplinary cases. However, the NFLPA and Vilma are charging Goodell and the NFL with both defamation of character (likely to be dismissed) and that Goodell undermined "the integrity of the NFL and the Commissioner's office" by handing down punishments based on evidence that is either flawed or cannot be substantiated. This case is now being argued in U.S. District Court in New Orleans and Vilma is asking the courts for a temporary restraining order which would reinstate him to the Saints.

And Finally...

In addition to the aforementioned stories, there have been a slew of developments in actual legal cases in sports this summer, including:

1. As we acknowledge the 40th Anniversary of Title IX, a law intended to ensure gender equity in education, the courts have ruled that cheerleading does not constitute a sport for the required balancing test.

2. The NFLPA charged the NFL and its owners with collusion in establishing a "secret $123 million salary cap" in 2010, which under the previous labor agreement was designated as an uncapped year of spending.

3. Ed O'Bannon and other high-profile former student-athletes including Bill Russell, are launching a serious legal attack on college athletics, claiming the NCAA violates federal antitrust laws by keeping former student basketball and football athletes from receiving compensation for the commercial use of their images and likenesses. This summer, the plaintiffs received a discovery ruling in their favor and this case bears watching.

4. Cycling continues to work on the sport's image by taking measures to clean up performance enhancing drugs from the sport. In the latest battle, Lance Armstrong is suing the United States Anti-Doping Agency claiming their investigation violates his constitutional rights.

5. Baseball hasn't been immune to the legal system this summer as Roger Clemens spent time in the courtroom answering a charge of perjury surrounding his alleged use of steroids.

6. Finally, the former owners of the Los Angeles Dodgers, Frank and Jamie McCourt, found themselves both in divorce and bankruptcy courts in recent months. When the dust cleared, a group led by Magic Johnson now owns the team following a settlement that is apparently the costliest divorce in California history.

All of these events have unfolded since students across the country yelled "school's out!" in the spring. What does this mean? Maybe nothing other than more airtime and attention will be paid to the small faction of "sports lawyers" around the country. Nevertheless, I have more content for my class and a growing satisfaction that my students better understand this multi-billion dollar industry.

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