Joseph Conti: Aroldis Chapman and Rethinking MLB free agency rules

This post is written by Attorney Joseph Conti

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Overview

On Monday January 28, 2015 the New York Yankees traded away four prospects to the Cincinnati Reds in exchange for Aroldis Chapman, but the Yankees acquiring one of baseball’s top closers is only one part of this transaction. Chapman is currently being investigated for an alleged domestic violence incident stemming from an October 30, 2015 confrontation. Due to this investigation, Major League Baseball is contemplating a suspension for Chapman in accordance with collectivley bargained rules.

Baseball's CBA allows teams to control a player’s contract for 6 years prior to the player hitting the free agent market. Chapman is entering his 6th year of service. However, if MLB suspends Chapman for more than 45 days for this upcoming season, the 2016 season will not count against that 6 year time table. Therefore, it is in the Yankees best interest for Chapman to get suspended for more than 45 days in the 2016 so they can pay Chapman a cheaper salary for the 2017. A contract for a superstar in arbitration, before free agency, is much lower than the contract Chapman would receive as a free agent.

Issue

Whether the rules delaying of the free agency period because of a domestic violence suspennsion should be altered.

Givens and Variables

A given is that the Yankees did what is best for their organization. Chapman’s contract appears more valuable than the cost of the prospects traded away and the potential negative public relations associated with acquiring a player who is accused of wrongdoing. Also, the Yankees taking full advantage of a rule already in place is not a negative.

Other "givens" include that certain variables may positively or negatively affect any athlete. The list includes performance, injury, and baseball has a new CBA at the end of the 2016 season.

Why this rule is good

The rule imposes a substantial penalty on players who have engaged in wrongdoing, at least "wrongdoing" as determined by MLB. That consequence may, to some degree, deter other players from engaging in that type of wrongdoing. Losing one year of a higher free agent salary during the prime of your career should be a determent. To further illustrate this point: when using the NFL as a comparison, a 45 day+ suspension in baseball is more punishing than 4 game suspension in the NFL.

Why this rule is bad

The rule counterintuitively makes athletes with domestic violence suspensions more valuable as an asset to a team since teams gain an additional year of control over these players. At least in theory, this dynamic could create corruption by players, agents, and teams to avoid free agency for a season in hopes of an additional season to improve their value upon hitting the free agent market. Teams now have players under their control for an additional year for something that is inherently negative.

Solution

Being a stat head I believe the best solution would be to create a stat based approach predicting outcomes and values in the future. This way the athletes associated with crime and the temas that employ them do not benefit when all of the above variables are in executed. The statistic solution can show whether or not free agency now or a year from now will result in a net positive for the athlete.

For example, if Chapman breaks his arm the last game of the season next year. He is likely worse off as a free agent in 2016 because someone has to take a risk on him and he should be a free agent avoiding the benefit of a 2017 season before he signs a long term free agent contract. However, if he closes 42 games successfully without a loss he forced into another year of arbitration before his free agent contract.

Attorney Joseph Conti is an associate focusing on high tech patent prosecution at Onello & Mello LLP in Burlington, MA. He is a 2015 graduate from The University of New Hampshire School of Law. During his free time you will see Joe cheering on the Big 4 Philadelphia Sports Teams, and Saint Joseph's University Basketball.

United States v. Klein and NFL Officiating

I no longer watch football, particularly the NFL; the league is just too corrupt and the sport just too gladiatorial for my taste. But I cannot avoid news stories related to the league. I was interested in the league's announcement this week that, in the wake of increasing criticism of the game officiating this season (that may or may not be justified), game officials would be in contact the league vice president of officiating during games about replay and other "administrative" matters. This has sparked concerns among many, including the former VP of officiating, about the lack of accountability and increase in uncertainty from having a league official whispering into the ref's earpiece. One former official worried that we could not know whether a changed call was because the game officials got together or because "someone in New York doesn't like the call." As another former official said, "what it looks like is that the league office is making decisions on who possibly wins or loses the game."

The last concern sounds in the sports-officiating equivalent of United States v. Klein (which returns to SCOTUS later this term with a case challenging a law that may actually be unconstitutional): Just as Congress cannot dictate specific decisions or outcomes in specific cases, the NFL should not be telling officials what calls to make or how to apply the rulebook on specific plays in a specific game.

Pete Rose remains banned from Major League Baseball

MLB Commissioner Rob Manfred announced today that it would not reinstate Pete Rose, concluding that Rose had not presented credible evidence that, if reinstated, he would not again violate the prohibition on gambling on baseball games and on his own team. Manfred emphasized both that Rose continues to bet on baseball and that he has not fully owned up to the full scope of the gambling activities that lead to the ban in the first place (for example, he continues to deny betting on Reds games as a player in 1985-86, despite records indicating that he did, and he continues to insist that he did not selectively bet on the Reds, which is contradicted by documentary evidence). There also is an interesting discussion of how the commissioner should reconcile the mandatory lifetime ban imposed for gambling under Rule 21 with the broad discretion vested in the commissioner under Rule 15 to reinstate a suspended player; Manfred's solution was to say that reinstatement was warranted under Rule 15 only with "objective evidence" that there was no risk of a repeat violation of Rule 21.

Manfred also took a short detour to emphasize that he was not making any determination about Rose's eligibility for the Hall of Fame and that any debate over his eligibility or qualifications "must take place in a different forum" and turn on different questions and policy considerations. This is only partially right, of course. Rose is not in the Hall almost almost entirely because of Rule 3E of the Baseball Writers Association of America Election Rules, which provides that "Any player on Baseball's ineligible list shall not be an eligible candidate;" that rule was passed in 1991 (two years after Rose accepted his lifetime ban) specifically to eliminate any chance that Rose (and, to a lesser extent, Joe Jackson) would slip into the Hall. So while Manfred was not deciding whether Rose is eligible, his decision here basically dictates the outcome of the Hall vote.*

* Hall criteria include integrity and sportsmanship. So there is a chance that sportswriters might decline to vote Rose in because of his gambling misconduct, even if he were not on the ineligible list, just as they have kept out suspected PED users (Clemens, Bonds, etc.) who remain on the eligible list and thus eligible for the Hall.

Crowdfeeding

Apparently, crowdfunding can rely on the adage, "the way to a man's heart is through his stomach." A Baltimore crab house has offered Orioles star Chris Davis free crab cakes for his life and for the next two generations of his family for re-signing with the Orioles. It reminds me that we might have underemphasized the purely symbolic value and benefit to fanfunding. It need not be about raising significant amounts of money or outbidding competing fans, but about expressing support for the player in any way, including unique ways that reflect a connection to the particular city.

Crowdfunding college sports

The New York Times tells of a Clemson fan who has launched UBooster, a site designed to allow college sports fans to pledge money to help attract high school athletes to the donors' preferred schools--in other words, exactly what Dan Markel, Mike, and I proposed. (H/T: Gregg Polsky). According to the story, fans pledge money to a particular recruit, with a note urging him (or her) to choose a particular school; no more money can be contributed once the athlete commits to a school and the money is held in trust until after the player finishes college. The money is not funneled through the university and there is no direct contact between UBooster and either the athlete or any particular school. For that reason, the founder, Dr. Rob Morgan, believes this does not violate NCAA rules and, in fact, offers a way to allow fan involvement while easing the financial burden on universities to do more to help athletes.

The former head of the NCAA's Committee on Infractions calls this "far more sophisticated than the hundred-dollar handshake," but I am not sure it is a meaningful difference in kind. Student-athletes are still receiving money because they are student-athletes and because of their athletic ability, and the lack of a direct connection among student-athlete, school, and donor does not change that; in fact, the NCAA's point is specifically to keep "strangers" from giving student-athletes money, regardless of connection to the school. Nor does the four-year delay in getting the money change much--it is still money for playing a sport, whether the benefit is received immediately or in a few years. I also do not believe the absence of an express quid pro quo (the student-athlete gets the money, regardless of where he ultimately plays) makes a difference; the NCAA regs are designed to avoid bidding wars and allowing the athlete to keep everything is not going to alleviate (or necessarily disincentivize) such bidding wars.

Mind you, I am not speaking in support of the NCAA's regs or the current model of college sports. I am only saying that, under those rules, any student-athlete who participates in this (and any school for which he plays) is in for some problems.

MIT Lecture: The Law and Science of Deflategate

If you're interested in the law and science of Deflategate, we hope that you attend a special lecture at the Massachusetts Institute of Technology on Friday, Dec 11th from 2:30 to 4 pm. MIT Professor John Leonard--who authored the Taking the Measure of Deflategate study, as presented at UNH Deflategate--will be joined MIT Professor Annette (Peko) Hosoi--the founder and director of STE@M (Sports Technology and Education @ MIT)--and me in a joint lecture. The event will be open to the public but with limited seating and you must register at this Eventbrite page to secure a seat.

Here are more details:

The Law and Science of Deflategate

2:30-4:00pm, Friday December 11th, Room 3-270
Massachusetts Institute of Technology
77 Mass. Ave., Cambridge MA 02139
[Seating is limited]

Speakers: Michael McCann, University of New Hampshire School of Law and Sports Illustrated; John Leonard, MIT Department of Mechanical Engineering; and Annette (Peko) Hosoi, MIT Department of Mechanical Engineering

Abstract: Prof. McCann, Prof. Leonard, and Prof. Hosoi will lead a joint discussion of some of the key legal and scientific questions about the Deflategate Controversy.  Topics will include: (1) a review the key legal theories of Brady vs. NFL case, including a discussion of the constraints imposed by the collective bargaining agreement agreed upon by the NFLPA and an analysis of the NFL Management Council's latest filing to the United States Court of Appeals for the Second Circuit against Judge Berman's decision to vacate the discipline imposed on Tom Brady by Roger Goodell; (2) discussion of the findings of the Wells/Exponent report and a review the underlying physical principles at the heart of the case, including the ideal gas law and the transient response of the warming of the Patriots and Colts footballs that occurred during the halftime measurement period; and (3) a critique of the methodology that Exponent, Inc. used to reach its claim that "no set of credible environmental or physical factors that completely accounts for the additional loss in air pressure exhibited by the Patriots game balls as compared to the loss in air pressure exhibited by the Colts game balls measured during halftime of the AFC Championship Game."

Speaker Bios:

Michael McCann is a Professor of Law and the Founding Director of the UNH Law Sports and Entertainment Law Institute (SELI). SELI, which is part of the top-ranked Franklin Pierce Center for Intellectual Property, offers students hands-on training and experiential opportunities in this cutting-edge area of law.  McCann is one of the nation's leading experts in sports law, a seasoned sports attorney, and an award-winning teacher, scholar and journalist. He is Sports Illustrated's Legal Analyst, an Investigative Writer for both Sports Illustrated and SI.com, and the on-air Legal Analyst for NBA TV. McCann has authored more than 400 legal columns and investigative articles for Sports Illustrated and SI.com and is a key member of Sports Illustrated's investigative team.
http://law.unh.edu/about/personnel/faculty/michael-mccann-bio

John J. Leonard is Samuel C. Collins Professor of Mechanical and Ocean Engineering and Associate Department Head for Research in the MIT Department of Mechanical Engineering.  His research addresses the problems of navigation and mapping for autonomous mobile robots.  He holds the degrees of B.S.E.E. in Electrical Engineering and Science from the University of Pennsylvania (1987) and D.Phil. in Engineering Science from the University of Oxford (1994).  Prof. Leonard has been one of the faculty instructors in the MIT Mechanical Engineering subject 2.671 Measurement and Instrumentation since 2005.
https://marinerobotics.mit.edu/

Annette (Peko) Hosoi is Professor of Mechanical Engineering and Associate Department Head for Education in the MIT Department of Mechanical Engineering.  She is the founder and director of STE@M (Sports Technology and Education @ MIT) which is dedicated to building an interconnected community of faculty, students, industry partners, and athletes who are passionate about tackling challenges that lie at the intersection of engineering and sports.  Prof. Hosoi's research contributions lie at the juncture of nonlinear hydrodynamics,
microfluidics and bio-inspired design.  She is the recipient of numerous teaching awards at MIT and has been elected a MacVicar Fellow, MIT's highest undergraduate teaching award.  She is a Fellow of the American Physical Society.  
https://hosoigroup.wordpress.com/
http://steam.mit.edu/

Salary Arbitration in Sports Conference

On Thursday, November 19th a trio of veteran sports agents will host the inaugural Salary Arbitration in Sports conference at St. John's University School of Law in Queens. The SAS conference will feature representatives from Major League Baseball, MLBPA, certified agents and former players, all with comprehensive experience in salary arbitration.

Hear from salary arbitration experts and industry veterans:

• Jason Belzer, GAME, Inc. and Forbes.com;
• Gregg E. Clifton, Jackson Lewis, P.C.;
• Jeff Fannell of Jeff Fannell & Associates;
• Rex Gary, Turner Gary Sports;
• Paul Mifsud, Labor Relations, MLB;
• Omar Minaya, MLBPA;
• Mike Nicotera, The Sparta Group;
• C.J. Nitkowski, Former MLB Player;
• Jay Reisinger, Farrell & Reisinger, LLC;
• John Ricco, NY Mets;
• Rick Shapiro, MLBPA; and
• Matthew Swartz, MLB TradeRumors.

At the SAS Conference, seasoned participants in the art of salary arbitration will share their insights and experiences through a full day of panel discussions and question-and-answer sessions. The conference is the inspiration of experienced certified sports agents Jeff Fannell, Mike Nicotera and Rex Gary. FrontOfficeSports.org, one of the Nation's fastest growing sources for #Sportsbiz insight and education will serve as the conference's digital partner.

Reserve your seat TODAY and receive an early bird discount using code "EARLY" at http://SalaryArbitration.org. Space is limited.

Baseball and Viewpoint Discrimination?

As students are aware of my baseball allegiances, I am getting many questions and comments from students about the Cubs current position in the baseball playoffs. One student shared this story from last week--a professor at the University of Illinois moved the mid-term exam for a student because the student had obtained tickets to last week's National League Wild Card game in Pittsburgh.
This is the student's plea.










And this is the professor's response










Viewpoint discrimination? What about the Cardinals fans who no doubt are in the class?

UNH Law panel on Cardinals-Astros Hack and Analytics Security for Teams

Image from the Pandora Society

You are invited to attend a panel discussion at the University of New Hampshire School of Law next Thursday, October 15, from 5:30 to 7:00 pm on the legal and technology implications of the St. Louis Cardinals alleged hacking into the Houston Astros server. The panel will also address the broader topic of analytics security for sports teams.

Here is the lineup:

Moderator: 

Professor Roger Ford of UNH Law. Professor Ford teaches and writes in the areas of intellectual property, law and technology, and privacy. 

Panel:

Mandy Petrillo, the Director of Legal Operations of the Boston Red Sox (Fenway Sports Management). 

Bob Ryan, longtime columnist for the Boston Globe and contributor to ESPN's Pardon the Interruption and Around the Horn. Bill Simmons has called Bob Ryan "the best basketball writer ever."

Sean Smith, the Director of the Institute of Security, Technology and Society at Dartmouth College

Mark Szpak, partner at Ropes & Gray, where he is a member of the firm's nationally-ranked data breach and privacy group

Excellent work by students Daniel Schwartz and Amanda Ramirez-Kelmer organizing this event. 

For driving directions to UNH Law in Concord, NH, click here. Hope to see you next Thursday!

Thabo Sefolosha Trial

The New York City trial of Atlanta Hawks guard Thabo Sefolosha has begun. My Sports Illustrated legal analysis on what to expect.

Impact of Insider Trading allegations on legality of Daily Fantasy Sports

I have a new article for Sports Illustrated on how allegations of insider trading may impact the legal of daily fantasy sports. Also be sure to see the excellent commentary by our colleague Daniel Wallach in today's New York Times.

New Law Review Article: The Curiously Confounding Curt Flood Act

As most sports law enthusiasts are well aware, although Major League Baseball has traditionally benefited from a judicially created antitrust exemption, it does not enjoy blanket antitrust immunity across all of its operations. Most notably, in 1998 Congress passed the Curt Flood Act, a law partially repealing baseball's exemption in order to allow major league players to file antitrust lawsuits against MLB.

Throughout Congress's deliberation of the Flood Act, legislators made it abundantly clear that the legislation was intended to remain neutral regarding the continued viability and scope of the rest of baseball's antitrust exemption. Nevertheless, a number of courts and academic commentators have read the law quite differently, concluding that it either explicitly or implicitly reflects Congressional acquiescence in the exemption. This was the position recently adopted by both the district and appellate courts in the City of San Jose v. Office of the Commissioner of Baseball litigation, for instance, the lawsuit challenging MLB's refusal to approve the relocation of the Oakland A's to San Jose. The implication of these analyses is that baseball's antitrust exemption has now effectively been codified by Congress, meaning that the courts no longer have the power to repeal the exemption, should they be so inclined.

I challenge this interpretation of the Flood Act in a new law review article, "The Curiously Confounding Curt Flood Act," forthcoming next year in the Tulane Law Review. In particular, my article advances a novel textualist interpretation of the Flood Act, contending that when properly read, the law neither expressly nor implicitly approves of the bulk of baseball's antitrust exemption. As a result, I conclude that the judiciary retains the power to reconsider baseball’s antitrust status, should a future court wish to do so.

The piece can be downloaded here. I'd greatly appreciate any comments or feedback.

Peter King to speak at the University of New Hampshire Deflategate course

You are invited to attend a lecture by MMQB Editor-in-Chief and Sports Illustrated senior NFL writer Peter King at the University of New Hampshire this Wednesday, October 7, from 5:10 to 8 pm in McConnell Hall, Room 240.

Peter, along with MMQB editor Matt Gagne, will speak to my Deflategate course. They will discuss the Deflategate controversy and how the controversy will impact the legacies of Tom Brady and Roger Goodell. Part of the discussion will include an experiment of sorts with footballs and air pressure. They will also address debates that have arisen in the media and on social media concerning media coverage of the controversy. Peter will field questions from the audience. He will also feature this lecture in a forthcoming MMQB column.

Seating is limited, so please email me if you would like to attend. My email is michael.mccann[at]law.unh.edu. Driving directions to UNH can be found here.

Regulating Professional Sports Leagues: A Debate

Earlier this year, the Washington & Lee Law Review published my article "Regulating Professional Sports Leagues." The article advances the case for a proposition that is admittedly unlikely to be adopted anytime soon: the creation of a federal sports regulatory agency.

Fellow Sports Law Blog contributors Geoff Rapp and Marc Edelman were kind enough to take the time to write extremely thoughtful responses to my article for the Washington & Lee Law Review's online edition. Both pieces have now been published.

Geoff's piece, "Is it Time to Give Up on Antitrust Law for Pro Sports?," is available here.

Marc's piece, "In Defense of Sports Antitrust Law: A Response to Law Review Articles Calling for the Administrative Regulation of Commercial Sports," is available here.

Both responses are terrific; I hope that everyone will check them out.

Ed O'Bannon's victory against the NCAA upheld by Ninth Circuit

Here's my take for Sports Illustrated on Ed O'Bannon winning the appeal in the Ninth Circuit, which (in the NCAA's favor) also eliminated the proposed $5,000 per year payment to student-athletes.

Funded Opportunity for PhD Student in "Sports Law Analytics"

Starting Fall 2016, I will be be able to sponsor 1-2 new PhD students here at Florida State University (”FSU”).  New students studying under my supervision may be funded for at least three years (assuming reasonable progress each year and compliance with university guidelines).  Such funding usually includes a teaching appointment (undergraduate sports law course), a research/living stipend, a teaching/research assistant position, and tuition remission.

PhD programs in this field usually take 3-5 years.  As such, it is a considerable investment in time and may carry with it significant opportunity costs.

The phrase “sports law analytics” is in quotes for a reason…there is no doctoral degree (that I am aware of) in such a topic.  In my mind, “sports law analytics” is the application of parsimonious quantitative methods to legal issues in the sports industry.  The actual degree program here at FSU would result in a PhD in “sport management.”  However, like I did several years ago when I was a doctoral student at Indiana University, a PhD student studying under my supervision would take coursework that lends itself to being able to take a quantitative look at legal issues in sports.  Learning how to conduct archival research would be key too.  Graduates would be capable of publishing research in peer reviewed academic journals and law reviews.  Papers included in my Google Scholar profile are illustrative.

The ideal candidate would fall under one or both of the following categories: (i) someone who is a graduate of an ABA-approved law school with a documented interest in sports law and some degree of statistical acumen/interest and/or (ii) someone who holds an undergraduate or graduate degree in economics or statistics and can demonstrate an interest in sports law issues.

All candidates must be proficient in either Bluebook or APA.  Experience with Stata and/or Excel is desirable.

The foregoing is not meant to be an exhaustive explanation of the PhD program or its component parts.  If you are interested, please contact me for further details.  I am happy to discuss on the phone or in-person. 

Second Circuit grants NFL motion for expedited appeal in Tom Brady v. NFL

The U.S. Court of Appeals for the Second Circuit tonight granted the NFL's motion for an expedited review of Tom Brady v. NFL. Here are my five key points for Sports Illustrated on what this development means for Brady, the NFL and the New England Patriots.

From Meerkat to Periscope: Does Intellectual Property Law Prohibit the Live Streaming of Commercial Sporting Events

On May 2, 2015, American boxing fans tuned into Meerkat and Periscope to watch free live streaming of the Mayweather-Pacquiao championship fight, produced by other sports fans. This phenomena has caused grave concern among some sports entities and their television broadcast partners. If legal, will live streaming eat into the size of their future television audiences?

In a new Columbia Journal of Arts & the Law article (forthcoming Spring of 2016), I discuss the potential impact of live streaming on the commercial sports industry.  I also analyze whether commercial sports enterprises have the legal power to stop live streaming of professional and collegiate sporting events.

Among other things, this article discusses how the NCAA's argument that the First Amendment trumps college athletes' publicity rights in the televised use of their likenesses might actually increase the likelihood that fans in attendance at a sporting event may legally live stream the entire event.

The current version of my upcoming law review article is available for download here.  Thoughts and suggestions are always appreciated.

Cheerleader Minimum-Wage Litigation Comes to the NBA

The professional sports industry has been hit with a number of minimum wage lawsuits in recent years. These cases have predominantly focused on the allegedly unlawful pay practices of teams in the NFL and MLB, with various categories of team employees filing suit against their employers for allegedly failing to comply with the minimum wage and overtime requirements of the Fair Labor Standards Act ("FLSA").

For example, in the last two years alone seven different lawsuits have been filed against the NFL and its teams by former cheerleaders who allege that they were paid much less than the federally guaranteed $7.25 minimum wage. Given the high-profile nature of these cheerleader lawsuits, some had speculated that similar litigation could soon be filed against teams in the NBA or NHL as well.

As predicted, just such a case was filed on Thursday, when a former cheerleader for the NBA's Milwaukee Bucks filed a lawsuit alleging that the team failed to pay her in accordance with federal and state minimum wage laws. In Herington v. Milwaukee Bucks, LLC, former Bucks cheerleader Lauren Herington contends that the team required its cheerleaders to spend upwards of 30 hours per week in mandatory practice and workout sessions, in addition to their game-day duties. Because these workout sessions (as well as mandatory salon visits) were unpaid, the complaint asserts that the Bucks not only failed to pay their cheerleaders the minimum wage, but often neglected to pay them overtime as well.

As was the case in the NFL and MLB minimum wage lawsuits, the Bucks are likely to assert in defense that the team is exempt from at least the federal minimum wage and overtime requirements under 29 U.S.C. § 213(a)(3), a statutory provision covering seasonal amusement and recreational establishments.  As I explained last year, under this exception any amusement or recreational establishment may pay its employees a sub-minimum wage (without overtime) so long as one of the following two conditions exist: either (A) the establishment does not operate for more than seven months in any calendar year, or (B) the establishment's revenue in its six lowest revenue months in the previous year was no more than 33 1/3% of its revenue received in its six highest revenue months (e.g., the business's receipts from April-September were at least three times greater than its receipts from October-March).

Because the Bucks were eliminated in the first round of the NBA playoffs this past spring, the team's entire 2014-15 pre-season, regular season, and post-season only cumulatively spanned seven months (from October through April). So the team is likely to argue that this qualifies it as a seasonal establishment under Section 213(a)(3)(A), and therefore that the team is not required to pay its cheerleaders in accordance with the FLSA.

As I noted last year, prior courts are split on the question of whether professional sports teams qualify for FLSA immunity under Section 213(a)(3), based on whether judges view a sports franchise's amusement-related operations as lasting only during the team's playing season or as running year round. However, as my co-author Charlotte Alexander and I conclude in our forthcoming U.C. Davis Law Review article "Gaming the System: The Exemption of Professional Sports Teams from the Fair Labor Standards Act," NBA teams can credibly contend that they qualify for the Section 213(a)(3) exemption in at least some portions of their operations given the existing statutory language and accompanying regulations. 

Nevertheless, despite this potential defense, it would not be surprising if the Bucks ultimately opt to settle the Herington suit. Indeed, several NFL teams confronting cheerleader lawsuits have elected to settle the claims even though they arguably have an even stronger argument for exempt status under Section 213(a)(3) given the shorter length of their playing season. Most notably, the Oakland Raiders agreed to pay its former cheerleaders $1.25 million to settle their minimum wage claims even though the U.S. Department of Labor had issued an opinion earlier that same year concluding that the team was not subject to the FLSA due to Section 213(a)(3).

At the same time, it also would not be surprising if the Herington suit motivates other NBA cheerleaders to file suit against their teams. In the NFL's case, five additional teams quickly faced their own cheerleader lawsuits within the span of just a few short months after the league's first case was filed. The NBA must now hope that its teams do not face a similar wave of cheerleader minimum-wage litigation.

At a minimum, though, the Herington lawsuit shows that the allegedly unlawful pay practices of professional sports teams will continue to remain a pressing issue for the sports industry for the foreseeable future.

John Molori column in Patriots Football Weekly: "McCann brings common sense to emotional NFL issues"

My sincere thanks to John Molori of Patriots Football Weekly for writing a wonderful column titled "McCann Brings Common Sense to Emotional NFL Issues" in the latest issue (Sept. 20, 2015) of the magazine. I am posting the column with permission:

--

BUSINESS BLITZ

By John Molori

McCann brings common sense to emotional NFL issues

     Sports Illustrated legal analyst and writer Michael McCann is a wanted man. With the NFL awash in labor and legal issues on a seemingly daily basis, the founding Director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law has been beset by media inquiries.


     Give McCann’s mobile phone a jingle and you might hear a message saying that he is taking a break from media requests. When you try to leave a message, his mailbox is full. Why, you ask? It’s simple. McCann’s writing, teaching, analysis, and commentary has provided a sane and sublime look at the NFL’s off-field woes, eschewing emotional hyperbole and focusing on common sense and facts.

     The 39-year old McCann was ahead of the curve on the seemingly eternal Deflategate issue, stating early on that the NFL did not have enough evidence against Tom Brady to uphold his 4-game suspension. In fact, McCann has devoted an entire class to Deflategate at UNH.

     When ESPN’s expansive Spygate revelations came to light on September 8, many reacted with rage and doubt. Was ESPN using the story as payback for the backlash they took for their shoddy Deflategate reporting? Did they coordinate the story’s release to negatively affect the Patriots’ opening night festivities? Typically, McCann embraces no such conspiracy theories.

     He relates, “I’m not sure we can say that anything was coordinated. My take is that there was a lot of time spent on that story, a lot of work. I think ESPN just wanted to get it out before anyone else did.”

     Conventional wisdom, or should I say, New England conventional wisdom, says that Commissioner Roger Goodell’s harsh punishment against the Patriots and Brady for Deflategate was a “make up call” for his perceived slap on the wrist for Spygate in 2007. 

     Ever the realist, McCann opines, “I’m not sure it was a makeup call. Certainly, there are other owners who feel some frustration toward the Patriots. It could be plausible that they wanted Goodell to treat the Patriots more harshly this time. It gives a narrative to the story, but there is not a lot of evidence that this happened.”

     Evidence. There’s that word again. It is the key reason why the NFL’s reactions based on Ted Wells’ infamous Deflategate report were ultimately flawed. McCann saw through the report, but still has some sympathy for Wells, who was thrust into a difficult situation.  “The NFL made a big mistake describing the report as independent,” says McCann, who has covered the Aaron Hernandez murder case, Boston Marathon bombings, and Penn State and Lance Armstrong scandals, among other stories.

     “It was not independent. This whole thing really did a disservice to Ted Wells. It does absolutely nothing for Wells in his career. He may have made a lot of money from the league, but I am not sure he would ever want to work for the NFL in the future.”

     Putting legalities, rules, and points of law aside, the Deflategate issue hit at the heart of a powerful NFL relationship – the one between Roger Goodell and Patriots owner Robert Kraft. “Robert Kraft really feels like his franchise has been treated poorly and has suffered reputational harm,” says McCann.

     “These stories are damaging to a franchise. I do think that Kraft did not fight the Commissioner’s punishment hoping that Brady would get a reduction in his suspension. Goodell’s contract is up in 2019, and most likely, Robert Kraft will still be an active owner then. It would not surprise me if the NFL possibly replaces Goodell at that time.”

     McCann’s legal and academic resume is impressive. A graduate of Harvard Law School, the University of Virginia School of Law and Georgetown University, he taught the first-ever sports law analytics class at Yale Law School. He also co-founded the Project on Law & Mind Sciences at Harvard Law School and is the Distinguished Visiting Hall of Fame Professor of Law at Mississippi College School of Law.

     Beyond the credentials, McCann’s greatest strength is his ability to apply his vast knowledge beyond the ivy-covered walls of academia to the current player conduct crisis in the NFL.

     “The crisis is about disciplinary problems.” asserts the Andover, MA native and resident. “From the New Orleans Saints’ bounty issue, to Ray Rice, Adrian Peterson, and Tom Brady. It makes sense for the NFL to reform.”

     Part of this reform could include a proposed change in Roger Goodell’s areas of purview. Goodell, himself, says that he would be open to such a change. Says McCann, “The Commissioner is not an attorney and this affects how he views issues of process and fairness. Yes, he is empowered by the owners, but the Players’ Association gave him the power with personal conduct issues.

     “In the NBA, if a player is suspended for more than 12 games, he has the right to have his case heard by an independent arbitrator. If NBA Commissioner Adam Silver had the authority that Goodell has, I think the results would be different because he has a legal background.”

     Despite the tidal wave of criticism. Goodell continues to ride the crest of NFL prosperity, i.e. - he continues to make wads of money for NFL owners. McCann explains, “Credit and blame flow upward. That crisis that we discussed does not affect the NFL’s bottom line.

     “These off-field disciplinary issues are negative, but in a kind of perverse way, they have actually added to the league’s popularity. Think of all the people who were not interested in the NFL, but have become interested recently because of these stories.”

     Speaking of stories, McCann has filed more than 400 of them for Sports Illustrated and SI.com. He has been featured on numerous multi-media outlets, most recently Fox Sports 1, Monday Night Football, and MSNBC.

     So, what draws this journalistic lawyer and lawyerly journalist to a subject? “I like stories that are teachable and that comport to the classroom,” he relates. “Sports law involves some very serious areas of law.”

    There are many who believe that the legal and moral issues in the NFL merely reflect those of society as a whole. McCann, who served as counsel to college football star Maurice Clarett in his NFL eligibility lawsuit, gives his view.

     “I think it is fair to say that pro football mirrors society in some aspects. Tom Brady’s case was about management-union relations, but in life, it is not usually about a worker making $20 million a year. Certainly, the courts treat sports differently. You can fight in a game or on the field and get away with it. If you did that on the street, you would be tried in court.”

      Media attention aside, McCann’s first love is education. He has won the Professor the Year Award for outstanding teaching several times and written more than 20 law review articles, including placements in the Yale Law Journal and Boston College Law Review. He has also presented at MIT Sloan Sports Analytics Conferences since 2009.

     In 2011, the Society for Social Psychology & Personality awarded McCann its Media Prize for excellence in explaining legal topics to a general audience. While McCann is making a name for himself as a much sought-after media personality, he is first and foremost a teacher, and his Sports and Entertainment Law Institute at UNH Law is his most important stage.

     He explains, “The program started a few years ago when I was a visiting professor at UNH Law School. They offered me a tenured position and a chance to direct the program. It is a great program that helps students build the necessary skills to get into the sports industry.

     “People say there are no jobs in sports, but that is not true. Colleges are hiring more lawyers than ever. It is a growth industry. You may not become the attorney for the Patriots or Red Sox right when you graduate, but in our program, you will take the courses that will help you get there in the future. Recent sports stories have also included issues of labor law, evidence, and even murder. As a professor, I can use these stories to inform students about relevant areas of the law.”

John Molori is an author and columnist for numerous publications. Like him on Facebook at John Molori, Twitter @MoloriMedia. Email molorimedia@aol.com.