Thursday, February 28, 2013

New Law Review Article: "A Short Treatise on Amateurism and Antitrust Law"

It is with great excitement that I share the first draft of my newest law review article, "A Short Treatise on Amateurism and Antitrust Law: Why the NCAA's 'No Pay' Rules Violate Section One of the Sherman Act."

This article is intended to serve as roadmap for challenging NCAA rules that prevent student-athlete pay.  The article is currently under review by several law journals.  Reader feedback is both encouraged and appreciated.

Tuesday, February 26, 2013

AFC election-lineup: little real promise of badly needed reform



By James M. Dorsey

The line-up of contenders for the presidency of the Asian Football Confederation (AFC), promises everything but the wind of reform and change the group badly needs after almost two years of controversy and scandal that are still reverberating through the world of soccer.

With five days left to the March 3 deadline by which candidates have to announce themselves, the list of contenders so far reads like a cast of characters from a B-movie. In many ways, the line-up reflects a scandal-ridden world of questionable governance in global soccer in which officials project themselves as proponents of change, albeit change that does not fundamentally rock their comfortable boat.

The 46-member AFC is scheduled to elect its new president at an extraordinary congress on May 2 following the banning for life from involvement in professional soccer late last year by world soccer body FIFA of Mohammed Bin Hammam, the AFC’s most recent elected head.

Three of the five contenders - Yousef Al Serkal of the United Arab Emirates, Worawi Makdudi of Thailand and Hafez Al Medlej of Saudi Arabia -- are all associates of Mr. Bin Hammam. The Qatari national was accused of multiple conflicts of interest and financial mismanagement of the AFC.

Mr. Makdudi has repeatedly been investigated for fraud and corruption. He denied last September fraud allegations made by a South Korean firm related to the cancelation of a multi-million-dollar broadcast rights deal. Earlier, he was accused by former English Football Association chairman Lord David Triesman of involvement in an alleged scheme to buy votes for England’s failed 2018 World Cup bid. Makdudi was cleared in 2011 of accusations that funds meant for the Thai soccer association to build facilities were instead spent on building assets on land he owned in Bangkok. Most recently, the Thai parliament investigated FIFA’s refusal to approve a newly futsal facility by his association.

Mr. Serkal's hiring last year of two former AFC employees associated with Mr. Bin Hammam's controversial at best financial management of the AFC holds out little promise for a real break with the past. As head of the AFC marketing committee, Mr. Al Medlej was not only a Bin Hammam associate but also involved in a $1 billion commercial rights agreement with Singapore-based World Sport Group (WSG) that was questioned by an internal audit of the group conducted by PricewaterhouseCoopers (PwC). PwC raised questions about the propriety of the negotiation of the agreement as well as its terms and advised the AFC to explore the possibility of renegotiating or even cancelling the agreement.

The fourth candidate, Sheikh Salman bin Ebrahim Al Khalifa, head of the Bahrain Football Association, was narrowly defeated four years ago by Mr. Bin Hammam in his bid for a seat on the FIFA executive committee. World Football Insider characterized the bitter battle between the two men as dominated by personal attacks, power abuse claims and cash bribes for votes.

Sheikh Salman’s candidacy is further clouded by the fact that he is a member of the Bahrain royal family that brutally suppressed a popular uprising in 2011 in which scores of sports people, including three members of the country’s national soccer team, were arrested for supporting the protests. Some, including soccer players, asserted that they were tortured in prison. In an interview with Associated Press this week, Sheikh Salman conceded that "people will talk about what happened.”

Of the five candidates, Acting AFC chairman Zhang Jilong is the only one who has sought to introduce a degree of change within the AFC. Critics say Mr. Zhang was restricted in his ability to challenge Mr. Bin Hammam's influence even after he was first suspended in the early summer of 2011 because of the fact that he had headed the AFC's finance committee during the Qatari national's presidency.

Reformers within the AFC hope to turn the need for candidates to project themselves as agents of a clean break by demanding that they put forward a program that encapsules their vision for the group's future. The West Asian Football Federation (WAFF) that groups the AFC's Middle Eastern associations announced this week that it would vote for the candidate whose program best served soccer in the region.

In response, Sheikh Salman has drafted a seven-point program entitled United for Change, according to World Football Insider, that pledges to fight match-fixing, doping and illegal betting; ensure full financial transparency by introducing international accounting standards and externally audit yearly reports; and guarantee equality in the distribution of AFC commercial revenues.

The reformers’ hope that the programs will allow them to hold whoever gets elected to their word could prove easier said than done. The new president will chair an existing executive committee whose majority has so far been more inclined to delay rather than introduce real change. One litmus test, with most candidates likely to promise financial transparency, will be whether the new president acts on the PwC recommendations or at least initiates a thorough investigation of the group's finances and commercial dealings.

That would involve revisiting the WSG contract that according to PwC may have been undervalued. PwC stopped short of drawing conclusions about the propriety of the agreement but suggested there were grounds for a review that include payments to Mr. Bin Hammam totaling $14 million by a WSG shareholder in the walk-up to the signing of the contract. Sources say pressure on the new president to follow through is compounded by continued inquiries into Mr. Bin Hammam’s management of the AFC by FIFA ethics investigator Michael J. Garcia.

WSG started last year legal proceeeding against syndicated columnist and author of this blog, James M. Dorsey, in a bid to force him to reveal his sources. The bid is designed to squash reporting and intimidate sources. A Singapore court, in a landmark decision earlier this week, granted Mr. Dorsey the right to appeal an earlier court ruling instructing him to disclose sources.

WSG’s performance is already under scrutiny within the AFC with some of the group’s members insisting that it service a broader swath of Asian matches that are not necessarily among those that are commercially most lucrative. The push is part of a larger effort to broaden participation in the AFC’s Champion League to ensure that all members reap the benefits of commercialization.

James M. Dorsey is a senior fellow at the S. Rajaratnam School of International Studies, co-director of the University of Wuerzburg’s Institute for Fan Culture, and the author of The Turbulent World of Middle East Soccer blog.

Enforcing Johnny Football's Intangible Property Rights

Rick Reilly's column today, Selling Johnny Football, provides an interesting perspective on Johnny Manziel's trademark lawsuit filed in Texas against a man who was selling T-shirts that read, "Keep Calm and Johnny Football."  It was reported that Texas A&M's compliance office recently received a ruling from the NCAA that an athlete can keep earnings (a damages award) obtained in a lawsuit.  Why the NCAA thinks it must first give an athlete permission before he can sue someone for stealing his intangible property rights and keep the damages award if successful is beyond me.  Would an athlete also need the NCAA's permission to sue someone for stealing his wallet or computer?

But in any event, Reilly raises the point in his column that now that the NCAA has given its "blessing" for Manziel to enforce his legal rights against those profiting off his identity, he should go after the NCAA and Texas A&M now.   Reilly asks:  "How can the NCAA see the evil in some citizen cashing in unfairly on Manziel's name but not when it does it?  How can Texas A&M send out more than 60 cease-and-desist letters to people selling Manziel items, as it says it has, and not accept one itself?" 

More Marlins Problems: Jeffrey Loria Tries to Defend his Public Subsidy

Last Thursday marked the five year anniversary of the thirteen commissioners of Miami-Dade County approving a plan to spend $347 million in taxpayer money to build a new 37,000 seat retractable-roof ballpark for the Miami Marlins -- a decision that I have previously criticized on Sports Law Blog here.

In acknowledgement of this event, I wrote an article on Thursday for Forbes SportsMoney that posed the question of whether an empty Marlins Park will create backlash against sports stadium subsidies for other teams.

In the article, I noted the following:
The Marlins stadium deal is such an easy target because in no other case has the recipient of huge subsidies so brazenly turned around and slashed team payroll to lowest in the league.  Furthermore, the Marlins stadium agreement only required the team to pay nearly a third of the building costs, while it awarded Marlins ownership 100% of stadium-related revenues -- not exactly what sounds like an equal partnership.

On Sunday, Marlins owner Jeffrey Loria fired back -- taking out an advertisement in each of the major Miami newspapers -- defending both his ownership style and the Marlins Park deal itself.  Presumably, Loria's response was based in part based on my Thursday article in Forbes.

Among other things, Loria told the Miami-Dade community:
The ballpark issue has been repeatedly reported incorrectly and there are some very negative accusations being thrown around.  It ain't true folks.  Those who have attacked us are entitled to their own opinions, but not their own facts.  The majority of public funding came from hotel taxes, the burden of which is incurred by tourists who are visiting our city, NOT the resident taxpayers.  The Marlins organization also agreed to contribute $161.2 million toward the ballpark.
Nevertheless, Loria's letter is easy to rebut -- even based exclusively on the facts in 'his' advertisement.  For example, the fact that the ballpark was paid for with tourist taxes shouldn't matter because the tourist taxes could have just as easily been spent of public projects such as schools and hospitals, new public housing programs, or even as a way of maintaining the community's existing public works projects while lowering the community's overall tax base.

In addition, Loria's purported $161.2 million contributed toward the ballpark is not a mitigating factor because the ballpark deal allows Loria to keep all of the revenues from selling naming rights to the stadium -- a revenue stream that overnight reasonably could offset much, if not all, of the $161.2 million investment.  Moreover, even if Loria does not sell these naming rights himself, the value of this right will clearly be factored into the Marlins ultimate sale price -- further increasing the Marlins owner's return on investment.

I am not sure the purpose of Jeffrey Loria's recent advertisement, but I fully encourage continued dialogue on the topic.  While I believe his arguments with respect to the stadium are without merit, I at least commend him for keeping the conversation about sports stadium subsidies firmly in the public eye.


* * *
For a more in-depth view of the issues surrounding sports stadium subsidies, please see the following resources

Monday, February 25, 2013

Watch 2013 MIT Sloan Sports Analytics Conference On-Line

With due respect to the many great sport law and sports business conferences held each year -- and there are some excellent ones -- the best one is the MIT Sloan Sports Analytics Conference (March 1-2). I'm honored to be a panelist at this year's event; this is my fifth year in a row as a panelist and each year it gets better - a credit to the conference's organizers, Daryl Morey and Jessica Gelman. I'll be on the Beyond Reason: Sports Labor Negotiations panel on Saturday March 2.

The conference is sold out, but at the following link you can register to watch many of the panels on-line. I always gain a ton of insight at this conference, which this year features as panelists Adam Silver, Michael Lewis, Mark Cuban, Stan Kaster, among many others, and has an awesome set of panels.

If you aren't attending, the webcast is a must-watch if you're interested in our industry.

Sunday, February 24, 2013

New Sports Illustrated Column: When spectators flee a race crash, is video of it news or copyright protected sports event?

Many spectators were hurt in yesterday's Daytona race because of a collision. A high school sophomore took a video of the crash and fans screaming and trying to get help. NASCAR wanted the video taken off YouTube, which for a while removed it but then put it back up.

Do we have a legal right to see this video? I explore in a new column for Sports Illustrated | SI.com. Here's an excerpt:
But only about 12 seconds of Anderson's 1 minute, 16 video is actually of a NASCAR race; the rest centers on the crash and fans scrambling for cover from flying debris. NASCAR's ownership over this latter part of the video is questionable, since "facts" and "news" are not subject to copyright protection and the First Amendment safeguards public access to them. The NBA knows this quite well. Back in 1997, the U.S. Court of Appeals for the Second Circuit ruled that the NBA could not claim copyright in its stats and scores, which Motorola had broadcast through a wireless paging device known as SportsTrax. The reasoning? Facts and news are not copyright protected. 

It could be argued that at about 13 seconds into Anderson's video, the race transformed from a copyright-protected NASCAR event into a not-copyright-protected news event. Fans screaming and fleeing for cover is not part of any race, but is certainly newsworthy. On the other hand, NASCAR might contend that because crashes are (unfortunately) not uncommon in NASCAR races, a crash should be considered a continuation of a copyright-protected NASCAR event. This is a difficult area of law and highlights how legal protection for "sports events" and "news events" may not always be the same.

To read the rest of the column, click here.  Here's the video:

The Economics of the Infield Fly Rule

My longer treatment of the infield fly rule, The Economics of the Infield Fly Rule, is now available on SSRN and forthcoming in Utah Law Review. The abstract is below. Comments welcome.

 No rule in all of sports has generated as much legal scholarship as baseball’s Infield Fly Rule. Interestingly, however, no one has explained or defended that rule on its own terms as an internal part of the rules and institutional structure of baseball as a game. This paper takes on that issue, explaining both why baseball should have the Infield Fly Rule and why a similar rule is not necessary or appropriate in seemingly comparable, but actually quite different, baseball situations. The answer lies in the dramatic cost-benefit disparities present in the infield fly and absent in most other baseball game situations.

The infield fly is defined by three relevant features: 1) it contains an extreme disparity of costs and benefits inherent in that play that overwhelmingly favors one team and disfavors the other team; 2) the favored team has total control over the play and the other side is powerless to stop or counter the play; and 3) the cost-benefit disparity arises because one team has intentionally failed (or declined) to do what tordinary rules and strategies expect it to do and the extreme cost-benefit disparity incentivizes that negative behavior every time the play arises. When all three features are present on a play, a unique, situation-specific limiting rule becomes necessary; such a rule restricts one team’s opportunities to create or take advantage of a dramatic cost-benefit imbalance, instead imposing a set outcome on the play, one that levels the playing field. The Infield Fly Rule is baseball’s prime example of this type of limiting rule. By contrast, no other baseball situation shares all three defining features, particularly in having a cost-benefit disparity so strongly tilted toward one side. The cost-benefit balance in these other game situations is more even; these other situations can and should be left to ordinary rules and strategies.
 

Militant Jerusalem fans challenge founding principle of Israeli foreign policy


Beitar fans insist that their club remain racially pure (Source: Reuters)

By James M. Dorsey

When militant supporters of right-wing soccer club Beitar Jerusalem last month vowed to keep their team pure in protest against the hiring of two Chechen Muslim players they went beyond what are usually accepted expressions of racism in Israel to unwittingly challenge a founding principle of Israeli foreign and defense policy coined by the country’s first prime minister, David Ben Gurion: the need to ally Israel with non-Arab Muslim nations to compensate historically for the lack of and more recently uncertainty of its relations with Arab neighbors.

In doing so, they provoked a rare national outcry against the club’s racist policy – Beitar Jerusalem is the only top league club to have never hired a Palestinian player despite the fact that Palestinians rank among the country’s top performers – that in many ways reflected last month’s outcome of national elections and a growing awareness that Israeli policies are alienating even its closest allies. Prime Minister Benjamin Netanyahu’s Likud party emerged narrowly as the winner from an election that showed Israel deeply divided between the right and the left.

In an illustration of Beitar’s importance to the Israeli right, two right-wing Israeli parliamentarians, Michael Ben-Ari, a former member of assassinated right-wing rabbi Meir Kahana, and Aryeh Eldad of Otzma L’Israel, attended a Beitar match on the eve of the elections in a bid to garner suoppert.

The outcry nevertheless included denunciations by Mr. Netanyahu himself, like many right-wing Israeli leaders, a staunch supporter of Beitar, the storied bad boy of Israeli soccer. It also reflected however unease among significant segments of Israeli public opinion with their country’s increasing isolation sparked by controversy over Israel’s settlement policy; mounting criticism of the treatment of prisoners, including last year’s release of a hunger striking Palestinian national soccer team player as a result of international pressure; and the rupture in relations with Turkey in the wake of the killing of nine Turks aboard the Mavi Marmara as it sought to break Israel’s sea blockade of the Gaza Strip.

The prisoner issue threatened this weekend to explode with thousands of Palestinian prisoners staging a 24-hour hunger strike and hundreds of Palestinians demonstrating in the wake of the death of a 30-year year old Palestinian arrested on charges of stone-throwing while he was in Israeli custody. Palestinian officials warned that the prisoner’s death could be the spark that ignites the powder keg of discontent on the West Bank and in the Gaza Strip.

Conditions in Israeli prisons have further undermined Israel’s relations with its staunch ally Australia, already strained by the use in 2010 of Australian passports by Israeli agents believed to have been responsible for the killing of a Hamas operative in Dubai, after news leaked earlier this month of the death in Israeli custody of an Australian national, Ben Zygier. Mr. Zygier reportedly was an operative of Mossad, the Israeli intelligence service, who allegedly was on the verge of revealing details of Israel’s use of foreign passports in its covert operations.

Australia, in an unprecedented break with past unrestricted support of Israel, last year joined 26 of the 27 members of the European Union who either voted in favor or abstained from voting for a United Nations General Assembly resolution recognizing Palestinian statehood. “In a world so interconnected and interdependent, Israel cannot afford to lose the international legitimacy that flows from a readiness to make peace. There are myriad obstacles to an agreement with the Palestinians – many of them on the Palestinian side. But Mr. Netanyahu has redefined the issue in international opinion as one essentially of Israeli intransigence,” said columnist Philip Stephens in this weekend’s Financial Times.

The current outcry stems from the fact that a militant segment of Beitar’s supporters rejected the club’s hiring of two non-Arab Muslim players, who moreover hail from a region that Mr. Ben Gurion would have defined as part of the non-Arab Muslim periphery, which Israel has always sought to engage. It comes amid growing concern in Israel about mounting soccer violence that is not always related to Israel’s dispute with the Arab and much of the Muslim world.

The outcry over racism expressed towards the two Chechen players contrasts starkly with the lack of a national response to past outbursts by militant fans, including an attack on Palestinian shoppers and workers in a Jerusalem mall as well as Jewish musician who denounced their attitudes and Beitar’s refusal to hire Palestinian striker Mohammed Ghadir who in late 2011 volunteered to join the club in a challenge to its anti-Palestinian policy.

Despite the fact that the militant fans’ language and symbolism at times is reminiscent of that of the Third Reich – fans unfurled a banner with their demand to keep their club pure that was reminiscent of those employed by the Nazis – Beitar until recently defended rather than condemned its most extreme supporters. The long overdue outcry is moreover itself not free of racial attitudes.

To be sure, President Shimon Peres appealed in a strongly worded letter to Israel Football Association president Avi Luzon “to all football fans to refrain from all expressions and manifestations of racism in football stadiums and outside of them.  Racism has struck the Jewish people harder than any other nation in the world.  The authorities must prevent it before it starts. Today, sport is a universal declaration against racism. It is unacceptable for the opposite to take place in Israel.”

Mr. Peres’ appeal however hit deaf ears within Beitar. While the club’s owner, Russian-born Arkady Gaydamak, echoed the president’s remarks, Beitar coach Eli Cohen drew a distinction between Arabs and Muslim in a perversion of Mr. Ben Gurion’s principle. "I don't understand the fans who don't want to see a Muslim player in Beitar. There are a billion Muslims in the world and we must learn how to live with them. There is a difference between a European Muslim and an Arab Muslim, and the fans here have a problem with Arabs living in the Middle East,” Mr. Cohen.said.

The club’s spokesman, Assaf Shaked, went as far as explicitly defending its anti-Arab policy. “We are against racism and against violence and we pay a price for our fans. But we aren’t going to bring an Arab player just to annoy the fans,” Mr. Shaked said.

The row over Beitar’s racism goes to the heart of Israel’s increasingly troubled international relations, an increasing sense that it bears substantial albeit not sole responsibility for the failure so far of the Israeli-Palestinian peace process and its strained formal and informal relations with a majority of the Arab world. Israel’s strength no doubt is its ability to discuss such issues publicly. The question is whether this debate will spark the necessary soul-searching.

James M. Dorsey is a senior fellow at the S. Rajaratnam School of International Studies, co-director of the University of Wuerzburg’s Institute for Fan Culture, and the author of The Turbulent World of Middle East Soccer blog.







Friday, February 22, 2013

Port Said unites key Egyptian government critics: workers and soccer fans


(Source: Fox News)

By James M. Dorsey

Military troops are protecting factories and government offices on the fifth day of a general strike in the Suez Canal city of Port Said that has brought together two groups with working class roots that played key roles in the toppling of former Egyptian president Hosni Mubarak: militant, highly politicized, street-battled hardened soccer fans and the labor movement.

Operating independently both groups constituted key centers of resistance to the repression of Mr. Mubarak’s regime during the years that preceded his downfall. The fans fought police and security forces in the stadiums in a battle for control of one of the country’s most crucial public spaces while workers in industrial towns like Mahalla organized strikes against Mr. Mubarak’s economic liberalization policy and corrupt and nepotistic privatization of state-owned assets.

Yet, it took perceptions of a majority of the population of Port Said, a city of 600,000 historically on the frontline of Egypt’s many past confrontations with Israel but nevertheless economically neglected, that even under the country’s first democratically elected president they continued to be a convenient scapegoat, to bring fans and workers together. In doing so, Egyptian President Mohammed Morsi has failed where Mr. Mubarak succeeded: keeping powerful critics divided. Some 20,000 workers have joined the protests and a five-day old general strike in Port Said, according to Egypt’s state-owned Middle East News Agency.

As a result, Mr. Morsi faces a serious challenge to his authority with protesters and strikers ignoring his declaration of emergency rule in the city and two other towns along the Suez Canal and the Red Sea, Suez and Ismailia that were focal points of anti-government demonstration. That defiance is likely to be fuelled in coming in weeks as Egypt anticipates a second round of verdicts on March 9 in the trial against 52 defendants who include officials of Port Said’s Al Masri soccer club as well nine mid-level police and security officials accused of responsibility for the death a year ago of 74 supporters of crowned Cairo club Al Ahly SC in a politically loaded brawl.

Mr. Morsi’s predicament is his own making even if he inherited the explosive political baggage embedded in the Port Said trial from the military that led Egypt’s from Mr. Mubarak fall to the Muslim Brother’s electoral victory. His failure to initiate crucial albeit difficult reform of the overriding symbol of the Mubarak regime’s repression, the police and security forces, is compounded by the fact that they remain a power onto themselves able to continue their Mubarak era practices of hard-handed management of public protests, arbitrary arrests and torture.

Adding insult to injury is the fact that police and security officials have yet to be held accountable for the deaths of more than 800 protesters since demonstrations against Mr. Mubarak first erupted in January 2011. 

Public anger has been further fuelled by the fact that none of the security and police officials in the Port Said trial were among the first batch of those convicted despite a prosecutor’s report that put equal blame on law enforcement and Al Masri fans as well as the fact that 32 protesters were killed in Port Said during protests on the day that the court announced the death sentences against the Al Masri supporters.

Mr. Morsi’s attempt this week to counter Port Said’s sense of being ignored with proposed legislation to reopen a lucrative free trade zone in the city and allocate some $60 million to economic development in Port Said, Suez and Ismailia was rejected by protesters as too little too late. The protesters say they are steadfast in their demand for justice for the protesters who were killed.

The deep-seated animosity towards the police and security forces is rooted in years of confrontation with fans in the stadiums in what amounted to a battle of control for public space and in factories where workers asserted their rights as well as in the fact that police and security officials were the ones that made life difficult in popular neighborhoods of Egyptian cities. The resulting popular anger may well have boiled over in Port Said on the day of the sentencing of the Al Masri fans with witnesses reporting that two policemen were the first to die on the city’s streets.

That notwithstanding, calm badly needed to halt Egypt’s economic slide and return it to economic growth, is unlikely to be restored as long as Mr. Morsi fails to initiate reform of the police and security forces, a major bastion of the former regime. The president’s failure to do so is compounded by his haughty style of government and his failure to consult opposition forces on controversial moves such as the rushing through of a constitution perceived by many as strengthening the hand of Islamists and potentially curbing fundamental freedoms.

The bringing together of workers and fans in a consorted protest against the Morsi government that has all but paralyzed Port Said heightens the risk that traffic through the Suez Canal, a major source of badly needed revenue for the government, could ultimately be affected. The protests have already prompted the evacuation of the Suez Canal authority’s headquarters as well as the closure of more than 20 factories that are now guarded by the military as fans, workers and government employees demand Mr. Morsi’s resignation. Protesters this week temporarily blocked the road leading to the entrance of the Canal. They were joined by workers of the Canal’s container terminal.

Militant soccer fans first reached out to the workers’ movement during protests a year ago in the wake of the Port Said brawl by acknowledging in a song that workers were among those who lost their lives in Egypt’s popular revolt. It never went however beyond the symbolic stretching out of a hand.

Port Said may well constitute the basis for real cooperation rather than symbolism. If so, Mr. Morsi will have not only paved the way for the emergence of an activist coalition that has got its feet wet not in using a computer to employ social media but in hard fought battles in which they have proven themselves as formidable, fearless opponents, but will have also further complicated his efforts to restore calm and open the door to economic development without embarking on real political, social and economic reform.

Said a leader of Ultras Ahlawy, the militant Al Ahli support group, in an interview with Egypt’s Al Ahram newspaper: "Our fight for justice is ongoing and will escalate until all members of the police or military who abused the Ultras are put on trial. We will not give up our rights that easily. We will escalate if needed, as was seen in our 26 January protests commemorating the second anniversary of the 25 January Revolution."

James M. Dorsey is a senior fellow at the S. Rajaratnam School of International Studies, co-director of the University of Wuerzburg’s Institute for Fan Culture, and the author of The Turbulent World of Middle East Soccer blog.

Thursday, February 21, 2013

@InsideSportsLaw

Fellow sports lawyers, the Sports Law Blog has been a leading site for delivering cutting edge commentary and insight in the field of sports law.  As this leading site celebrates its 10th Anniversary in November, with the support of our Editor-in-Chief Michael McCann, we decided it was time to expand our efforts to brand and promote the tremendous talents of our contributors.

A natural first step was to generate a Twitter handle and feed for ourselves.  Thus, today, we are happy to announce the launch of the official "The Sports Law Blog" Twitter feed -- @InsideSportsLaw.  The goal is to generate additional attention to both the information we post on our website, as well as promoting the industry's leaders in the field of sports law--our writers.

While the use of this Blog, the newly created Twitter account, and other related future efforts will evolve over time, we hope that our efforts to offer both insight and commentary on the world of sports law remain unparalleled.

Daily Fantasy Sports and the Law: The First Legal Challenge

On March 21, 2012, Illinois lawyer Chris Langone filed a lawsuit in the U.S. District Court for the Northern District of Illinois against Fan Duel and one of its purported winners, Patrick Kaiser.  The lawsuit seeks to recover the third-party losses of Fan Duel's contestants based on Illinois's version of the Statute of Anne -- a common law statute that sometimes allows third parties to recover unclaimed winnings from illegal gambling transactions.

The posture of this case resembles the 2006 case Humphrey v. Viacom, with two major differences: (1) case is brought in Illinois rather than New Jersey, and (2) the case is brought against a daily fantasy sports game rather than a traditional, full-season fantasy game.

Fan Duel has filed a motion to dismiss that argues, among other things, that its games should not fall under Illinois gambling losses recovery statute because its games involve predominantly skill.

This week, I have written several articles on this case and its implications over at Forbes.  For more on the specifics and the merits of the parties' respective arguments, please see the following three sources:

1.  Marc Edelman, Will New Lawsuit Help to Clarity the Legal Status of Daily Fantasy Sports, Forbes, Feb. 19, 2013.

2.  Marc Edelman, Did Comcast Invest in Fan Duel Too Soon, Forbes, Feb. 20, 2013.

3.  Marc Edelman, A Short Treatise on Fantasy Sports and the Law: How America Regulates its New National Pastime, 3 Harvard Journal of Sports & Entertainment Law 1 (2011).

Wednesday, February 20, 2013

Presentation to Northwestern Sports Law Society

I will be at Northwestern University School of Law tomorrow (Thursday), presenting The Economics of the Infield Fly Rule to NU's Sports Law Society as part of Sports Law Society Week. The program runs from 12:10-1:20. Feel free to stop by if you are in Chicago.

Slate on Indian Mascots

Following up on our discussions of Indian mascots, this week's Slate Hang Up and Listen podcast includes a segment (starting at 34:10) on the controversy, featuring Dr. Ellen Staurowsky, a professor of sports management at Drexel University (Ellen also was kind enough to contribute an excellent chapter for my book on Duke lacrosse). It is a good conversation, touching on many of the issues of Indian self-concept and self-image that Alex mentions in his post.

Worth a listen.

A Call to Action

NCAA President Mark Emmert's leadership, and lack of accountability, surrounding his organization's investigation into the University of Miami was an embarrasment to those of us in higher education.  Thankfully, the good folks at The Huffington Post have provided me an outlet to rant.

The result is the following piece, titled "A Call to Action" where I advocate that it's time for Emmert to go; and since he's declared he won't resign, the NCAA Executive Committee needs to take action.  Feel free to lobby the members, who are listed here.

More on the significance of defining sport

The surprising and controversial announcement that wrestling is being dropped from the core Olympic programme effective with the 2020 Summer Games made me think that we may have found a reason why it matters whether something is a sport or not: Whether something is a sport (as opposed to a game or a competition) should be a tiebreaking factor when choosing between two events. In other words, when the IOC is deciding between wrestling and, say, synchronized ballroom dancing, the former wins out because it is a sport and the other is not.

Tuesday, February 19, 2013

More on the Redskins and Indian Mascots

The following is by my colleague Alex Pearl; Alex is an enrolled member of the Chickasaw Nation of Oklahoma and writes and teaches on Indian Law.

As mentioned here, the National Museum of the American Indian held a symposium entitled “Racist Stereotypes and Cultural Appropriation in American Sports.”  In this post I am limiting the discussion to the Redskins specifically and sports mascots generally.  I have to plug the comprehensive blog, Native Appropriations, which examines representations of Indigenous Peoples in popular culture generally, including sports.

I’ve lost count of how many times the two entrenched sides of the Indian mascots debate have made their arguments.  The arguments of the respective camps can be summarized as follows.  Pro-Indian Mascots: We are honoring you and we have a connection to the team name, if you are offended then that is political correctness run amok.  Anti-Indian Mascots: We are not being honored and your connection to the team name is ridiculous.  In the interest of full disclosure, I’m an enrolled member of the Chickasaw Nation of Oklahoma (i.e., I’m an Indian).

            At the Symposium, one participant had this to say, “[i]f Dan Snyder truly thinks the word ‘Redskins’ is anhonorific, I challenge him to attended the next meeting of the NationalCongress of American Indians and try using that word to people’s faces.  Of course, Dan Snyder (nor anyone from the Pro-Indian Mascot camp) is coming to the Symposium or any other majority-Indian meeting. Which brings me to my point that the two sides are simply talking past each other.  They maintain mutually exclusive positions regarding a disagreement about a subjective value judgment. 

            I think there are opportunities for advancing the debate in an objective way.  There is research performed by Dr. Stephanie Fryberg and others that examine the effects of American Indian mascots on “aspects of the self-concept for American Indian students.” [Of Warrior Chiefs and Indian Princesses: The Psychological Consequences of American Indian Mascots, available at http://www.indianmascots.com/fryberg__web_psychological.pdf].  Here’s the abstract findings from her jointly authored paper:

When exposed to Chief Wahoo, Chief Illinwek, Pocahontas, or other common American Indian images, American Indian students generated positive associations (Study 1, high school) but reported depressed state self-esteem (Study 2, high school), and community worth (Study 3, high school), and fewer achievement-related possible selves (Study 4, college). We suggest that American Indian mascots are harmful because they remind American Indians of the limited ways others see them and, in this way, constrain how they can see themselves.

Dr. Fryberg was not at the Symposium held at the NMAI.   While I think the symposium does some good by focusing on the cultural gulf existing between Indian and non-Indian society, I think it would be more worthwhile for there to be greater emphasis on the type of research performed by Dr. Fryberg and others.  Moving the debate beyond “This mascot doesn’t honor me” to “This mascot causes empirically demonstrable psychological harm to Indian youth” is, in my view, preferred.  As an added bonus, studies like these may provide evidentiary support for the more recently filed action, Blackhorse v. Pro-Football, Inc., seeking to cancel the trademarks affiliated with the Washington Redskins

            As Sally Jenkins pointed out in her Washington Post article, many potentially influential people have raised this issue and suggested a name change.  However, the franchise, and accompanying branding and trademarks, is simply too valuable to change.  Unless there is a significant intervening economic event, like the Blackhorsecase prevailing, substantial fines by the NFL, or boycotts by fans and ticket holders the mascot is not going to change.  All this moral weight and scientific evidence will not trump the economic bottom line.

University of Virginia School of Law Sports Law Conference

The complete program for the March 8, 2013 sports law conference at the University of Virginia School of Law can be found here.  It is my understanding that CLE credits are pending.  Panels include the following:

- Ethical Issues for Sports Agents

- Legal and Practical Issues for Women in Sports and the Sports Law Industry

- Gambling and Corruption in Sports

- Penalties for Athletes

- Lockouts, Greed, and Collective Bargaining  

Monday, February 18, 2013

The Tragedy of Oscar Pistorius


The Oscar Pistorius situation is truly tragic for many reasons, including the loss of a life.  The fallout has included a number of sponsors including Nike terminating their relationship with Pistorius, pulling ads or otherwise removing Pistorius from their advertising campaigns. 

The ability of a sponsor to take these actions usually depends on the specific language of a morals clause.  Some clauses will allow termination or other adverse actions if the athlete has been charged with a crime, regardless of whether there is ultimately a conviction.  Other clauses might allow such actions only upon conviction of a crime.  


This situation highlights the basic principle for contract drafting generally and morals clauses in particular -- in order to impose the proper penalties for a breach, specific language is often necessary to fit specific situations.  Nike's contract with Pistorius apparently allows for termination in the event of a criminal charge or even just becoming involved in a public scandal.  In an unfortunate situation such as this one, this type of broadly-worded morals clause gives the sponsoring company significant power in determining its response.

Sunday, February 17, 2013

Great Lakes Sports and Entertainment Law Academy

Last year we blogged about the Great Lakes Sports and Entertainment Law Academy, a summer program  started last year by Peter Carfagna and Craig Nard and affiliated with Case Western and Cleveland-Marshall Law Schools for law students interested in sports and entertainment law. The academy has a great deal to offer and will have courses again this year from May 14 to May 31. For more information, click here.

Soccer fans defy emergency rule, force work stoppage in Port Said


Protesters block government offices (Source: Al Jazeera)

By James M. Dorsey

Thousands of militant soccer fans, in an indication that emergency rule will not squash mass protests, blocked government buildings as part of a general strike in the Suez Canal city of Port Said that is at the center of mounting anger at the brutality of police and security forces and demands that those responsible for the death of more than 800 protesters since mass demonstrations erupted in Egypt two years ago and toppled president Hosni Mubarak be held accountable.

The protest that forced the closure of the port authority and disrupted rail and telecommunications services constitutes a reaffirmation of a deep-seated sense among residents that Port Said is being made a scapegoat for at best the failure by law enforcement to prevent and at worst to have instigated a politically loaded soccer brawl a year ago in which 74 fans were killed.

By targeting the port authority but stopping short of seeking to close the Suez Canal, the fans signaled that they could strike where it hurts most: Egypt’s economy that has been in decline since the overthrow of Mr. Mubarak and constitutes one of President Mohammed Morsi’s foremost Achilles heels. In a victory for the protesters, Mr. Morsi shied away from enforcing the 30-day curfew in the city that he had declared in January.

Security forces brutally intervened last month killing some 40 people to squash protests against the sentencing to death of 21 members of the Green Eagles, the militant support group of Al Masri SC, Port Said’s football club, on charges of having been responsible for the brawl. In response to the protests in Port Said and elsewhere Mr. Morsi declared emergency rule in the city of 600,000 as well as in two other Suez Canal and Red Sea cities, Ismailia and Suez.

Tension is likely to build further in the walk-up to the expected verdict on March 9 in the case of 52 remaining defendants in the Port Said trial, who include club and mid-level security officials.

To prevent further protests and violence, Mr. Morsi would have to meet at least some of the militants demands and take convincing steps towards beginning a process of reform of the police and security forces, the most despised institutions in Egypt because of their role as the executors of the Mubarak regime’s repression, that has continued to employ hard-handed tactics since the Egyptian leader’s downfall.

The militants are demanding an independent investigation presided by a judge from outside Port Saud into the last month’s killing of protesters; the granting of the status of martyrs of the revolution to the dead which would entitle their families to government financial support and a renewed investigation of last year’s brawl, the worst incident in Egyptian sporting history.

The protests put Mr. Morsi in a bind. Any concession to the Green Eagles could provoke resistance from the militant supports of crowned Cairo club Al Ahli SC, who were the main victims in last year’s brawl. Al Ahli supporters celebrated the sentencing to death of the Green Eagle members, although they agree with their rivals that last year’s incident was not spontaneous and likely instigated by supporters of Mr. Mubarak and at least tolerated by the security forces.

Scores of employees of the provincial government, the judiciary, utilities and customs joined the protesters who gathered in front of government buildings on early Sunday morning, the first day of the work week.  

In a statement, the Green Eagles said "Port Said has always been treated unjustly over the years," a reference to a perception among city residents that they have always stood in the forefront of the country’s battles, including the various wars with Israel, but have been neglected over the years by the central government rather than rewarded.

"The city's revolt comes because of a deep sense of injustice," the statement said. It said that sense was strengthened by last month’s use of live ammunition against protesters.

"The officials have done nothing for us ... The presidency is not moving a finger," Mohammed Fouad, a representative of Port Said's business community, told Egypt’s privately-owned ONTV channel.

Opposition groups expressed support for the Port Said protests. The Popular Current group, one Egypt’s major opposition groups, described them as "part of the popular anger" against Mr. Morsi. "What is happening in Port Said is a legitimate right in the face of an authority that has adopted repression and tyranny," the group said in a statement.

James M. Dorsey is a senior fellow at the S. Rajaratnam School of International Studies, co-director of the University of Wuerzburg’s Institute for Fan Culture, and the author of The Turbulent World of Middle East Soccer blog.

Friday, February 15, 2013

In Egypt, the kids are not all right (JMD quoted in The Washington Post)


David Ignatius
David Ignatius
Opinion Writer

In Egypt, the kids are not all right

If you’re trying to understand the rampaging soccer fans who have become a political force in the new Egypt, you might consult Anthony Burgess’s 1962 novel “A Clockwork Orange.”
The book is about a chaotic future shaped by roving gangs of “droogs” (Burgess’s imaginary word for young male toughs). Led by Alex, the droogs get stoned on milk-and-drug cocktails and then commit brutal acts of what Burgess called “ultra-violence.”
David Ignatius
Ignatius writes a twice-a-week foreign affairs column and contributes to the PostPartisan blog.
“You got shook and shook till there was nothing left. You lost your name and your body and your self and you just didn’t care,” Alex says in describing his violent binges.
Burgess’s novel — ­popularized in a 1971 film by Stanley Kubrick, starring Malcolm McDowell as the malevolent Alex — is worth a new look. It’s an eerily prescient guide to the youth gangs that are wild in the streets of Egypt and other countries.
What are these hooligans telling us about the future — not just in Egypt but also in other nations where authoritarian leaders have lost their power to repress dissent by angry young men? The teenage marauders seem to have lost respect for the world of their fathers — and for the forces of social control that were woven through traditional societies such as Egypt.
The old social fabric has ripped. The young gangs who own the streets are contemptuous of police and most other authority figures. If the Egyptian government orders a curfew, the soccer thugs make a point of staying out all night. They seem to disrespect their fathers’ generation for having sacrificed their dignity by submitting to President Hosni Mubarak’s soulless, repressive regime.
The Egyptian soccer thugs are known as “ultras,” a term Burgess would have liked, and they play a growing political role. They helped overthrow Mubarak two years ago in Tahrir Square. Now, styling themselves as the “Black Bloc,” they are challenging Mubarak’s successor, President Mohamed Morsi, and his Muslim Brotherhood government.
Analysts theorize that the soccer thugs were allowed to take root under Mubarak because they offered a nonpolitical way for young men to vent their anger — outside the mosque and outside opposition politics. But the gangs of violent youths became shock troops of the uprising that toppled Mubarak’s regime. They helped prevent the security forces from sweeping the square in the revolution’s fragile early days.
James Dorsey, a journalist and academic who writes a blog called “The Turbulent World of Middle East Soccer,” explains the rise of the ultras. After years of battling Egyptian police in the soccer stadiums, “they were fearless, they had nothing to lose, and they became battle-hardened,” he told Foreign Policy.
Egypt’s post-revolutionary challenge has been getting these angry youths to join in building a new democratic system. This same problem is evident in other Arab Spring hotspots, such as Tunisia and Libya, which are proving fractious and difficult to govern. In Egypt (a society with a deep love of order), the instability has been acute: A year ago, a soccer riot in Port Said killed 74 people. Last month, more than 30 were killed as soccer riots erupted in Suez, Alexandria, Cairo and Port Said. Morsi seemed close to losing control until the military sent in troops to protect key facilities.
The problem, Dorsey told Foreign Policy, is “how to make the transition from street to system.” This hasn’t happened in Egypt or Libya and has only begun in Tunisia.
The revolt of alienated soccer youths is hardly confined to North Africa. In Israel, a soccer team called Beitar Jerusalem is supported by racist young fans who chant “Death to the Arabs” and recently unfurled a banner that proclaimed “Beitar Pure Forever” to express their opposition to recruiting Muslim players. “When talking about Beitar, it’s actually showing a mirror for Israeli society,” Nidal Othman, director of the Coalition Against Racism in Israel, told the New York Times.
Soccer hooliganism is endemic, as well, in Britain and many other European nations. Racist chants can be heard on soccer pitches across the continent.
In his 2004 book “How Soccer Explains the World,” Franklin Foer notes the paradox that hooligans and their violent tribalism continue even as soccer becomes globalized and interconnected. Soccer teams provide an intense bonding experience in societies where other connections have broken down.
We can see this theme playing out in Egypt, as the kids who made the revolution refuse to settle down and take their seats. Like the Jacobins of revolutionary France, these “ultras” rule the streets, almost daring some future general to crack down.