Archive for the ‘Law’ Category

I like this guy. Image c/o NY Daily News

Lou Lamoriello resigned as president of the New Jersey Devils last Thursday. During his 28 years with the Devils, he won the Stanley Cup three times. He’s moved on to become the 16th general manager of the Toronto Maple Leafs. As a Washington Capitals fan, you’d normally expect me to ask, “Who cares?” But Lamoriello appears to be a generally good guy. What you all could verify with a mouse click is that Lamoriello took out a full-page advertisement in the sports sections of The Record and The Star-Ledger on Friday to thank Devils fans. That certainly seems like a decent thing to do, but I have more reason to believe that Lamoriello is really good guy.

I graduated from law school in 2000, and with nothing to lose, I decided to take a ridiculous shot at getting a dream job. I wrote every single NHL, NBA, MLB, MLS, and NFL team (except the Dallas Cowboys, because fuck those guys) asking for an interview for a position as in-house counsel. First, many of these teams don’t hire in-house counsel, instead retaining large law firms (which I call out-house counsel, because fuck those guys) to do the work. The jobs for which I applied, in some cases, simply didn’t exist. Second, for those people hired in-house at such a dream position, it takes a mountain of experience to get it, and there are the additional factors of luck and connections that a dopey, recent law school graduate isn’t going to have. As you might expect, I received rejection letters from about half of these teams, with the other half simply ignoring my request.

But not Lamoriello. He hand-wrote a letter to me explaining why he couldn’t interview me but wishing me well in my job search. This is a guy who had much better things to do than to tell me something that I already knew. Even if he were inclined to extend an extra bit of courtesy in the interests of public relations, he could have had his secretary send me a form letter with his name stamped on it. Nope. This guy appreciated my interest and wanted to connect.

I still hate the New Jersey Devils, the Toronto Maple Leafs, and every other that isn’t my team (because fuck those guys), but whatever you want to assume about people, this is no bullshit: Lou Lamoriello is a class act.

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Apparently, Dave has been reporting since the early 80s. Or so I hope. That haircut better not have seen the 90s.

Dave Meltzer has been discussing a contract between Showtime and Zuffa, LLC, owner of the Ultimate Fighting Championship (“UFC”) and Strikeforce. The latest word from Meltzer on the contract is that there is a list of fighters on the Strikeforce roster that may not fight on a UFC card without Showtime approval until the Zuffa-Showtime contract ends (2013 or 2014, depending on whom you ask). It’s important to note that neither Meltzer, you, or me have a copy of the contract (as far as I know). By Meltzer’s own admission, his information comes from someone who knows someone, and Meltzer has already changed his story once. Moreover, for what it’s worth, Dana White is telling us Meltzer is making up the whole story, which wouldn’t surprise me. This is all factual speculation, and I’m going to make it worse by adding some legal speculation.

Much Ado About Nothing

This isn’t that big of a deal. If the UFC wanted to do cross-promotional fights, they can still do it. Let’s say they offer Showtime two of six fights, with the UFC doing the other four. The fights will be, for example, Condit v. Marquardt, Dos Santos v. Cormier, or even non-title holders like Kennedy v. Diaz. Showtime would be so happy with having Dos Santos on their network, they’d gladly approve of such a deal even though it’s technically in the UFC’s favor. The only thing really stopping Melendez from fighting the Edgar/Henderson winner is Zuffa. If they want it to happen, it will.

It’s a Contract, but Is It Legal?

Several people have raised this question, and answering it without seeing the contract itself would be irresponsible. Being a nerd and a lawyer, though, I love throwing around hypothetical, nerdy, legal propositions, especially ones that might break new legal ground.

In an employment contract, you can have a covenant-not-to-compete, which prevents the employee from working for a competitor for a limited period of time in a limited geographical area after leaving the company. You’ve probably heard of this, so it’s not news. If the terms are too restrictive (e.g., it lasts too long, it covers too large a geographical area), the term will be deemed void. Virginia takes a strict approach to this. If the terms are deemed too restrictive, it’s completely thrown out rather than modified. For example, if a Virginia contract restricts you from being employed for five years in a 50-mile radius, and the court determines that to be unreasonable, the court won’t change it to “1 year in a 10-mile radius” to make it reasonable. Instead, the court will throw out the term altogether, saying there’s no covenant not to complete. Different states might try to reform the contract instead, changing its terms to something reasonable.

Enough of that. Let’s get back to the Zuffa-Showtime contract.

This isn’t an employment contract, of course, but if you think this doesn’t directly affect the fighters’ employments, you’re naive. Because it’s clearly having such a huge impact, I could see a court drawing an analogy to the covenant-not-to-compete and voiding it. After all, the geographical scope is international (events are held all over the world), and the term might be 2 years (assuming it expires in mid to late-2014). Moreover, pro athletes are more sensitive to these kinds of restrictions. Their shelf-life is limited, and keeping them out of the action or limiting their growth for even a short period of time can end or permanently damage their career.

Still, the analogy probably doesn’t hold up, at least not if the contract lives up to how Meltzer is reporting it. This isn’t analogous to restricting employment but rather like restricting in-house promotions for an existing job. Would Gilbert Melendez’s career really be so terribly harmed by being forced to fight Strikeforce-caliber fighters for the next year or two? I’m guessing not.

Career Suicide

On the other hand, Melendez’s career could be harmed by suing.

Keep in mind that in order for a fighter to sue, he’ll have to prove they were the ones facing harm. The only fighters that could possibly claim that harm are the marquee fighters appearing on the list. If one of those fighters sued Zuffa (suing Strikeforce wouldn’t yield results), the UFC would fire them, forcing them into the minor leagues for all time. The cash reward the fighter received from the case (assuming they could win) probably wouldn’t be nearly as valuable as staying Zuffa’s good graces. If Saturday’s Strikeforce card is a sign of things to come, being in Strikeforce isn’t such a bad thing anyway. That card was awesome.

There might be enough here that some fighters could sue over this contract (without receiving sanctions for a frivolous suit), but I doubt they’re foolish enough to do so. They’d be biting the hand that feeds them, and no one will feed them as well as Zuffa.

The Future

As mixed martial arts grows, contracts like this might generate more lawsuits, as the threat of going to “the minor leagues” might not be so intimidating a prospect. It’s impossible to guess whether those lawsuits would win on the grounds I’ve outlined here. Other than these grounds, I don’t see much of an argument based on what little I know of the contract, and I’m really reaching with this idea. A litigator might have better insight.

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“But I’m famous? Doesn’t that count for something?”
Lord, I hope not.

ESPN reported yesterday that Floyd Mayweather, Jr. was seeking early release from prison. Specifically, they report that Mayweather’s attorneys have filed

an emergency motion asking the court to move Mayweather into the general jail population — something that jail officials had avoided out of fear for the celebrity’s safety — or put him in house arrest for the rest of his three-month sentence.

The court knows that the offering the option of moving Mayweather into general population is an empty gesture, because the likely result of doing so would subject the state to a huge lawsuit. The ESPN report goes on to note that Mayweather’s attorney, Richard Wright,

said he’d be willing to have the boxer serve the sentence in an apartment or somewhere less luxurious than Mayweather’s posh Las Vegas-area home. But prosecutor Lisa Luzaich said softening the sentence would be just another accommodation, similar to when Mayweather’s jail surrender date was postponed for months after sentencing so he could fight Miguel Cotto in May.

Mayweather’s strongest argument in favor of early release appears to be that serving out the remainder of his term could threaten his career by limiting his access to proper exercise and nutrition. I sincerely hope that Justice of the Peace Melissa Saragosa doesn’t accept this argument. Many people lose their livelihood because they go to jail. I admit that Mayweather’s job is much more sensitive to even short jail sentences, being that he’s an elite athlete, but the solution isn’t disparate treatment. The solution is not committing the crime. For the same reason his job is so sensitive to jail sentences, he has a higher burden of behaving himself. He’s a public figure, and if you want a job in the public spotlight, you have to answer to the public, whether or not they’re being reasonable. He received a 90-day sentence despite having the means to employ top-notched attorneys, which suggests he’d be facing a longer sentence if he could afford only what most of us can.

I hope he serves the full term, and if that costs him his career, it’s his own damn fault.

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Jonny “Bones” Jones’s Mugshot

Posted: May 31, 2012 in Law, MMA, UFC

Yes, this is enormously cheap of me to do this, but he’s a public figure and needs to face the consequences of how he’s tarnished his image. Not learning this lesson now, while still young, could do long term damage. For the record, I never have been, nor am I now, on the Bones Jones hate bandwagon. I have nothing against the guy in general and appreciate the skill he’s displayed in the octagon. My writing on this blog backs up that claim. I hope he gets himself back on track.

Address to send your life savings:
Rob Bodine, P. O. Box 2083, Fairfax, VA 22031—9998
Always use the 9-digit zip code. The Post Office will love you for it!

MMA Journalism Is a Joke
Oh, Dana! You’re so crazy, Part I and Part II
Update on Nate Marquardt’s Release
Ronda Rousey post

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Jim Tressel recently resigned as head coach at Ohio State University. Normally, I’d ask, “So? OSU is no longer a top-5 program in college football, and there insistence otherwise annoys me, so I’m not watching.” However, the resignation has reenergized the debate on whether high school athletes should be paid, and South Park and the Daily Show have jumped on board, so I’m joining the debate as well. As to whether college athletes should be paid, here’s my answer:

Yes and no.

Most of my friends will sigh and say, “Typical lawyer’s response.” Well, they’d be right, but not because lawyers are afraid to commit to a point of view. Lawyers study issues more deeply than most others before opening our mouths and quickly learn to appreciate that the right answer is almost never perfect; it’s just the best one available. Almost all answers have something good in them, but all answers have at least some bad attached. The goal is to find the answer that creates the best net effect (i.e., the good minus bad). I wish more people would show that understanding in political debate.

But I digress.

Why Should We Pay Them?

Yes, NCAA athletes should be paid for all the reasons we typically hear. They’re adults (legally-speaking) who are working hard to make a ton of money for their school. They do so at the risk of great bodily injury that could derail their potential careers before they even start. It just seems unfair for so many people to make so much money off of other people’s work, even in the cases of those lucky few that do hit the big time.

Just How Bad Is It?

So the system is unfair, but it’s not that unfair. Even for the sports that make a ton of money (e.g., basketball and football), the student athletes are often getting a free education that costs tens of thousands of dollars for the rest of us. They also get free housing, meal plans, and paid tutors to make sure they succeed despite themselves. For most student athletes, that’s an important perk because they won’t actually have a professional career. They need that degree more than most of them will admit, and it’s handed to them on a silver platter. It takes a special form of stupidity and irresponsibility to screw up that.

Still, the issue of fairness remains because the dollar amounts the big sports generate should result in payments that would pay for all of these things for not only the student athlete, but for his children (future or otherwise) as well.

Why Not Pay Them?

What’s the downside to paying them? They may be adults legally, but are they really mature enough to handle all that money? Remember that statement about a special kind of stupidity and irresponsibility two paragraphs up? It happens all the time. Of course, there are plenty of examples of professional athletes screwing up even after making millions in a major professional league, but that happens to everyone, and after you’re out of school, you’re your own problem. Universities can’t be expected to be responsible for people after they’ve left the school, but they are responsible for them during school.

Another concern is that the bigger schools will buy the better high school student athletes. Really? Doesn’t this happen anyway, even with schools that aren’t breaking the rules? Still, if the university has the means to teach their students good ethics, they should, so it’s a concern.

The Solution

The best answer I have is to create an interest-bearing escrow account from which student athletes can withdrawal their fair share when they graduate. This is not a novel idea; others have considered it, and I don’t mean to take credit as the only one. A student athlete fund would give student athletes a much-needed and much-deserved financial boost on graduation, and — depending on how it’s implemented — could actually satisfy the concern of bigger schools buying up the good players.

Some Options

If they don’t graduate, allow them to withdrawal only a percentage of what they’d otherwise get, with the rest of the money remaining in the fund and increasing the amount future athletes can withdrawal. Why give a non-graduating player less money than one leaving with a degree? While the non-graduating player, in theory, needs the money more than the graduating player, the benefits of providing an incentive to graduate probably outweighs that. I could, of course, be wrong, because I don’t have all the information I need to answer that question, but let the experts determine these details.

Another good question for the number-crunchers to consider is the possibility of placing the same limit on withdrawals on any student that gets a professional contract with a major sports league (NBA, NHL, NFL, and MLB). Again, I don’t know whether that’s better. Remember, if it’s a common fund, the amount students could get might be tied into how much is in the pot (as opposed to a set amount), in which case the guys who really don’t need it don’t need to take from it.

Yet another question for the number-crunchers to consider is how to deal with players in different sports. Basketball and football players clearly bring in more money for the school then lacrosse players, so shouldn’t they get paid more? That seems fair. Warning: If you think this is all about fairness, think again. You know damn well that when fairness demands that men be paid much more than women under this thinking, there will be a cry of discrimination loud enough to drown out all logic you might have in support of it. Don’t worry, though; I’m sure universities will choose logic over political correctness. *sigh*

Details, Rob! Details!

So, how much do we pay them? This is yet another area where I honestly don’t know because I don’t have the data I need to form an opinion. I refuse to answer that question until I can do so knowledgeably. I wish more people would take that approach to political debate as well. 🙂

Just some food for thought. Considering we can’t get the NCAA to implement a football playoff system because it’s not immediately as profitable as the bowl system, I seriously doubt there’ll be a change without the government getting involved, which they shouldn’t.

Reminder: I’ll be interviewed by Fight Fans Radio on Monday, June 6. Listen in through UStream at

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I’m not an antitrust attorney, but that’s a good thing. You don’t want a long-winded lecture on that. I took antitrust law in law school, and only tax law was more boring. After listening to some incredibly ignorant statements made by callers to the Lavar & Dukes show on 106.7 FM in Washington, DC, I decided to provide perspective on a few issues that have been raised regarding the National Football League Players’ Association (“NFLPA”) case against the National Football League (“NFL”). I won’t be citing case law (you’re welcome), but I will cite the Sherman Act, which governs antitrust law, in order to make a point (I’ll be as gentle as possible).

Not Everyone Involved on the Owners’ Side Is Filthy Rich

This one has to have you scratching your heads. Bear with me.

As you might know, the named plaintiffs in the NFL lawsuit are, among others, Tom Brady and Peyton Manning. These guys are worth a fortune. They can afford to take a year off to fight a legal battle. They won’t lose their homes or even their lifestyles. As all of you like to point out, though, the average NFL player isn’t a mutli-millionaire. They have a lot of expenses associated with being an NFL player that really eats into the league minimum salary. This hurts those guys, and calling them “filthy rich” or “spoiled” is unfair. They have a genuine need in getting a fair deal, so jumping to the conclusion that they’re just whining is also unfair.

Similarly, though, while the Washington Redskins and Dallas Cowgirls go back and forth between being the most valuable franchise in the NFL, many other NFL franchises aren’t so lucky. The Buffalo Bills are no Washington Redskins. They’re owner might be rich, but the franchise is still standing on the edge of a knife. They have a rabid fan base, but there just isn’t as much money in the Buffalo area as there is in DC. There also isn’t as much interest for the Bills outside of Buffalo, while Dallas enjoys the greatest amount of unamerican, fair-weather fans in the league. It costs a ton of money to operate an NFL franchise, and if the Bills don’t get a fair deal, they could fold. Do you want an NFL that consists of only 10 super-rich franchises? Even though I won’t lose my team, I still don’t want that.

(Aside: most likely, the Bills would just move to Toronto or another bigger market before folding, but if the outcome of the lawsuit is bad enough, even that might not be an option. I don’t have specific knowledge of the Bills folding. They’re just an example of a small, struggling franchise that helps make my point.)

Did I mention that all of these franchises employ a host of “little guys” as concession stand operators, marketers, and admin assistants? Some of these people work for the teams full time all year round. This is how they pay the mortage/rent, feed the kids, etc.

This case needs to be decided fairly. There are fat cats on both sides of the issue, but there are honest hard-working people on both sides as well. Don’t let the anti-rich sentiment running through this country cause you to jump to conclusions about either side.

How Antitrust Cases Are Decided

Case-by-case on facts

Like all legal cases, this one will turn on its facts. The law is usually fairly standard — “You can’t punch people in the noses except in self-defense!” — and those laws are applied to the case’s specific facts to see if the defendant is guilty (criminal case) or liable for damages (civil case). Can any of you honestly say you have all the facts in this case? In fact, I doubt many of us, if given the facts, would even be willing to examine them thoroughly. These are complex issues that will bore even lawyers to tears. So how can you fairly decide who’s to blame here? There may be a bad guy, or there may be no bad guys, or there may be several bad guys. We don’t know, and I for one would rather that the courts and attorneys do all the work deciding it. After all, they’re being paid millions of dollars. If that means we have to place our faith in a bunch of lawyers we don’t trust, so be it.

Case-by-case on law!

The Sherman Act governs Antitrust Law, 15 U.S.C., Chapter 1, governs “monopolies.” Specifically, § 2 provides (in part):

Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize . . . shall be deemed guilty of a felony.

This begs an important question: Just what the hell is “monopolization”? That’s a good question. This is one of the vaguest laws on the books, and intentionally so. Congress didn’t want to attempt to define such a vague concept too narrowly. If you try to provide too clear a definition of monopolization, too many people would find a way to wiggle around that definition and get away with harming the economy. So, Congress left it up to the courts to define what monopolization is. This is not the way the law’s supposed to work — judges are supposed to interpret the laws, not write them — but in this case Congress effectively directed the courts to write the law. (I’m going to stop right here to make sure I don’t get on a soapbox about judicial activism.)

Because the Sherman Act has been around a long time, there have been plenty of antitrust cases to define what monopolization is, but it remains a vague concept, and this means that the NFL case isn’t only going to depend on its individual facts, but also, to some small extent, on whatever law the judge applies. So exactly how can you, an uninformed, out-of-the-loop party, possibly form an opinion on this case? You can’t, so really, don’t try.

Monopolies Aren’t per se Illegal

Let’s get back to the definition of monopolization. One thing I can tell you is that monopolization doesn’t necessarily mean “has a monopoly.” There are plenty of legal monopolies out there. For example, the “essential facilities” exception allows a water or electric utility to hold a monopoly in a given jurisdiction. Strict government regulation of that company prevents price gouging. Also, obtaining a monopoly through hard work and outdoing your competitors isn’t illegal, and the Sherman Act doesn’t say it is. What’s illegal is monopolization. So, what’s that? It’s obtaining or maintaining a monopoly through conduct deemed unlawfully exclusionary. In other words, it requires more than merely holding the power of a monopoly; you have to have done unfair or inappropriate things in order to get or keep the monopoly.

What’s unfair or inappropriate? Ask the courts. Seriously. Read a bunch of cases. Congress didn’t define it, and neither did I. You need to read a ton of case law to know the answer to that question, and even if you do, for the reasons I gave above, you still might have trouble predicting the outcome of the NFL case.

Actually, It’s an Oligopoly

The NFL isn’t considered a single entity. It’s considered a small number of entities (i.e., the teams). When a small number of entities holds all (or an overwhelming majority) of the market power, it’s technically an oligopoly. This is just an FYI. If you continue to refer to the NFL as a monopoly, everyone will still understand what you’re saying, and I won’t beat you up for it. I just like being precise.

Fairness Has Its Place, and Ignorant Statements Aren’t Fair

I hope this has given you a better perspective on just how difficult it is to critique the merits of this case. If you don’t have all the facts and a strong knowledge of antitrust law, you can’t fairly take sides. Like it or not, you’ll have to trust in the system to come to the right conclusion. In the end, antitrust law is designed not to protect the owners’ interest or the players’ interest; it’s designed to protect the consumers’ interest. That’s you. You want this done right. Let the professionals do their jobs.

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