It's Rugby Time Again

Dartmouth Rugby 7s 2012 CRC from Fields of Vision on Vimeo.

OK, here we go with a huge assist to a Certain Emailer whose information on this year's edition of the above action is unapologetically reproduced here, almost verbatim:

The Collegiate Rugby Championship (CRC) 7s tournament will be played at PPL Park in Philadelphia this weekend. Dartmouth is the two-time defending champion.

D.C. Circuit Sides with Comcast in Dispute with Tennis Channel

This week's D.C. Circuit ruling siding with Comcast in its carriage dispute with Tennis Channel came as little surprise. It ruled that the Federal Communications Commission failed to justify its conclusion that the cable provider (known as a "multichannel video programmer distributor" in today's parlance) discriminated against the Tennis Channel (not owned by Comcast) by placing it in a more expensive tier than the Golf Channel and Versus (now the NBC Sports Network). The ruling is available here.

For cable services, the ruling will come as a big relief. The opinion concluded that the FCC's determination Comcast's disparate treatment of the Tennis Channel by tiering it in a more expensive package was not discriminatory under sec. 616 of the 1992 Cable Act, and rejected the Commission's factual basis for making that determination. Judge Williams, writing for the court, stated that the FCC failed to provide "adequate evidence" to bolster its claims of discrimination. He did not address the more fundamental argument made by Comcast -- that the statute, or at least its application, was a First Amendment violation of the free speech rights of the cable provider. Basically, the court found that there were valid reasons for placing the Golf Channel and Versus on a lower, cheaper and more widely distributed tier than Tennis Channel and that there was no evidence that this differentiation was based on the fact that Tennis Channel was not a part of Comcast. Additionally, there was no evidence presented that Comcast would gain any financial benefit by placing Tennis on that same tier of service as the others, noting that no expert witnesses, or written studies were provided. That lack of evidence of any potential financial game was crucial in the court's determination. So, the court essentially rejected the FCC's emphasis on the similarities of the programming on the Golf, Versus and Tennis Channels and the disparate treatment of them, without anything more.

There were two concurring opinions. Judge Edwards discussed procedural issues (not the focus here), but Judge Kavanaugh produced an analysis of sec. 616 in terms of antitrust jurisprudence, with a passing reference to First Amendment standards. As to the antitrust issue, he opined that sec. 616 violations should be based on the same standards of proof as antitrust claims involving vertical concentration because sec, 616(a)(3) requires that the FCC enact regulations that prevent the cable operators from discriminatory conduct which "unreasonably restrains" the ability of the unaffiliated service to fairly compete.  In so doing, he found that there was no per se violation and there was no evidence of undue market power on the part of Comcast (a point that is debatable, given the general monopoly nature of cable operators). Therefore such vertical restraints (as found with the connection between Comcast and Golf/Versus) was presumptively pro-competitive.

Judge Kavanaugh then pushes what I think is a speculative connection between antitrust the First Amendment principles. He states: "applying sec. 616 to a video programming distributor that lacks market power would violate the First Amendment as it has been interpreted by the Supreme Court." Cases that generally applied an intermediate scrutiny test that has been upheld by the "monopolistic characteristics" of cable programmers and the need for access. I am not convinced at the connection and there is no specific mention of such a connection in Turner v. FCC,  512 U.S. 622 (1994) which upheld mandatory carriage requirements under an intermediate scrutiny test. He also that technological changes have weakened any undue market power of cable operators, inferring that the today, unlike the 1990s, cable regulations such as sec. 616 would be harder to justify today.

The majority did not wade into this territory, but nonetheless gave Comcast a big win. It would be more difficult for independent sports channels to provide discrimination, at least in the DC Circuit.

Give A Rouse Redux

It's been a good week for former Dartmouth football players. Yesterday Adam Nelson '97 learned he will be receiving the gold medal in the shot put from the 2004 Olympics.

A former linebacker-turned-defensive lineman at Dartmouth, Nelson won the silver medal Athens Games. When gold medalist Yuriy Bilonog of the Ukraine failed a drug test for a banned substance Nelson was declared the Olympic

Give A Rouse!

If you are a Dartmouth baseball (and football) fan, you can now exhale.

After 10 years down on the farm and more than a few knocking on the door, Dartmouth product Ed Lucas '04 was called up yesterday by the Miami Marlins from their Triple-A team in New Orleans. How Lucas will fare and how long he'll remain with the big club only time will tell, but congratulations to the former Ivy League

NFL Draft Heads to May

By pushing the NFL Draft back two weeks in 2014 to May 8th-10th, the league showed no favoritism to agents, prospective players, team personnel, or the fans--they all are negatively affected.

1. Agents

While no sympathy will be offered by the general public to agents, pushing the draft back extends the time during which they pick up expenses for their clients.  Traditionally, agents will absorb the costs of pre-draft training which will include combine prep, living expenses, travel, and an assortment of other "benefits."  Now, while powerhouse firms can easily assume the marginal additional expense, agents often spend between $10,000 and $20,000 on each client.

Obviously, for agents with fewer clients or alternative revenue streams, the additional weeks of "investment" in their clients becomes a burden.  Much like the summer of 2011 when the lockout extended the time during which agents covered their client's expenses, there was a clear distinction between what larger agencies were able to cover versus smaller firms or individual agents.

And, let's not pretend that poaching between agents doesn't occur.  This gives more time for agents to continue to recruit the clients of others.  [I won't even get into the role of runners and the impact that Jay-Z/Roc Nation could have during this period.]

2. Players

There is no real benefit to the potential draftable players, other than extended an already difficult time period.  Since the NFL is not changing the dates of the Combine, preparation for elite prospects will still start immediately after the bowl season.  There will still be a rush to sign with an agent, have them pick up training costs, and begin immediate preparation for the Combine.  These players will need to be in peak form for All-Star games, the Combine, perhaps for their school's Pro Days, and then there will still be another 6 weeks before the draft--more than enough time to slip, either physically or with a mistake.
 
And this extends the time that unsigned free agents have to patiently wait for teams to fortify their rosters with rookies (i.e. cheap labor) before they are able to resign with an NFL team.

3. NFL Personnel

Again, no one cares if a scout or assistant GM needs to go without sleep for another two weeks but this maneuver extends the time under which these individuals are under exorbitant amounts of pressure.  The extra two weeks provides no additional insight into a player's potential so there is no evaluative benefit to this additional time.

4. The Fans

Hey, look, another two weeks of your favorite draft prognosticator telling you who your favorite team will select in the 6th Round!  A colossal waste of time--unless you listen to Mike Mayock who, and I'm partial because he's a Boston College alum, is fantastic.

For the future, either the NFL Draft should revert back to April, or the League Year should also be pushed back--thereby moving the Combine, the start of free agency, and other calendar items. However, as it stands today, does anyone see any winners in this move?

Names To Notice . . . And Then Forget

Rivals' star-ranked players in the high school class of 2014 listed as having interest in Dartmouth – or Dartmouth having interest in them:

4-star DB Adarius Pickett 4 stars, 6-0, 185 DB, El Cerrito, Calif. (El Cerrito)
3-star OL Sean Krepsz 6-5, 300, Riverside, Calif. (Martin Luther King)
3-star WR Bryant O'Georgia, 5-11, 180, Phoenix, Ariz. (North Canyon)
2-star QB Cody Ennis 6-6, 246, San

New Sports Law Scholarship--Pt. 2

Recently published scholarship includes:

Ben Einbinder, What FINRA can learn from Major League Baseball, 12 PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL 333 (2012)

Harry Epstein & Daniel Gandert, The Court’s yellow card for the United States Soccer Federation: a case for implied antitrust immunity, 11 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 1 (2011)

David Falk, Note, Are professional sports leagues’ control over their member teams and owners in doubt?, 43 RUTGERS LAW JOURNAL 337 (2012)

Gabriel Feldman, Antitrust versus labor law in professional sports: balancing the scales after Brady v. NFL and Anthony v. NBA, 45 UC DAVIS LAW REVIEW 1221 (2012)

Heather M. Field, Throwing the red flag: challenging the NFL’s lessons for American business, 38 JOURNAL OF CORPATION LAW 381 (2013)

Nicholas Fram & T. Ward Frampton, A union of amateurs: a legal blueprint to reshape big-time college athletics, 60 BUFFALO LAW REVIEW 1003 (2012)

Nabeel Gadit, Note, An end to the NCAA’s exploitation of former student-athletes: how O’Bannon v. NCAA highlights the need for an inalienable reversionary interest in the right of publicity for former student-athletes, 30 CARDOZO ARTS & ENTERTAINMENT LAW JOURNAL 347 (2012)

Matthew Gallagher, The changing face of the “sport of kings”: a brief history of thoroughbred horse racing in the United States, its recent decline, and the legal implications surrounding racing partnerships and syndicates in the current landscape, 19 SPORTS LAWYERS JOURNAL 275 (2012)

Robert M. Gallman, Comment, Enhancement or recovery? The scientific and legal paradox of performance-enhancing substances, 15 SMU SCIENCE & TECHNOLOGY LAW REVIEW495 (2012)

Ephraim Glatt, Defining “sport” under Title IX: cheerleading, Biediger v. Quinnipiac University, and the proper scope of agency deference, 19 SPORTS LAWYERS JOURNAL 297 (2012)

Samantha Glazer, Note, Sporting chance: litigating sexism out of the Olympic intersex policy, 20 JOURNAL OF LAW & POLICYY 545 (2012)

Robert A. Gottfried, Reasonable relocation: antitrust implications of restrictions on movement of professional sports teams, 19 SPORTS LAWYERS JOURNAL 109 (2012)

Jeremy P. Gove, Note, Three and out: the NFL’s concussion liability and how players can tackle the problem, 14 VANDERBILT JOURNAL OF ENTERTAINMENT & TECHNOLOGY LAW 649 (2012)

Linda S. Greene, Head football coaches: ending the discourse of privilege, 2 WAKE FOREST JOURNAL OF LAW & POLICY115 (2012)

Nathaniel Grow, Decertifying players unions: lessons from the NFL and NBA lockouts of 2011, 15 VANDERBILT JOUNRNAL & TECHNOLOGY LAW 473 (2013)

Rockwell T. Gust IV, Comment, The California Workers’ Compensation Act: the death knell of NFL players’ “concussion” case?, 44 UNIVERSITY TOLEDO LAW LAW REVIEW 245 (2012)

David Haddock et al., League structure & stadium rent seeking—the role of antitrust revisited, 65 FLORIDA LAW REVIEW 1 (2013)

Courtney D. Hall, Comment, Fishing for all-stars in a time of global free agency: understanding FIFA eligibility rules and the impact on the U.S. Men’s National Team, 23 MARQUETTE SPORTS LAW REVIEW 191 (2012)

Tim Hance, Note, Threading American Needle: defining a narrow relevant market for rule of reason analysis in sports antitrust cases, 11 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 247 (2011)

Angela J. Hattery, They play like girls: gender and race (in)equity in NCAA sports, 2 WAKE FOREST JOURNAL OF LAW & POLICY247 (2012)

Marcus Hauer, Note, The constitutionality of public university bans of student-athlete speech through social media, 37 VERMONT LAW REVIEW 413 (2012)

Jeremy D. Heacox, Comment, Wisconsin Legislature employs halftime adjustment: how Wisconsin’s “new” Indian mascot law changes the outlook for future challenges to the use of discriminatory nicknames, mascots, and logos in Wisconsin schools, 22 MARQUETTE SPORTS LAW REVIEW 651 (2012)

Diane Heckman, Batter up: a look at the Supreme Court’s lineup, including the interaction with the new chief umpire on the bench, as Title IX marks its fortieth anniversary, 22 MARQUETTE SPORTS LAW REVIEW461 (2012)

Kris Helge, The success of a nation’s soccer team: a bellwether regarding a nation’s electronic information infrastructure, the legal regulations that govern the infrastructure, the resulting citizen-trust in its government and its e-readiness in Nigeria, the DPRK, China, Japan, South Korea, the Netherlands and the United States, 39 NORTHERN KENTUCKY LAW REVIEW 467 (2012)

Aishlin P. Hicks, Note, Unsportsmanlike conduct: female sportswriters as targets for sexual harassment, 23 HASTINGS WOMEN’S LAW JOURNAL 219 (2012)

Joseph M. Hnylka, California drops the ball: the lack of a clear approach to recklessness in sport injury litigation, 11 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 77 (2011)

Justin R. Hunt, Note, To share or not to share: revenue sharing structures in professional sports, 13 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 139 (2012)

John Imhoff, Comment, Bouchat v. Baltimore Ravens, 56 N.Y. LAW SCHOOL LAW REVIEW 1619 (2011-2012)

Trevor Jack, Note, Blue field of dreams: a BCS antitrust analysis, 39 JOURNAL OF COLLEGE & UNIVERSITY LAW 165 (2013)

Aiden Johnson, Note, Update: The curious case of Oscar Pistorius & Caster Semenya, 14 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 89 (2012)

Kendall K. Johnson, Enforceable fair and square: the right of publicity, unconscionability, and NCAA student-athlete contracts, 19 SPORTS LAWYERS JOURNAL 1 (2012)

Cassandra Jones, Book Note, Reviewing Deborah Brake, Getting in the Game: Title IX and the Women’s Sports Revolution, 22 MARQUETTE SPORTS LAW REVIEW 613 (2012)

Richard T. Karcher, Broadcast rights, unjust enrichment, and the student-athlete, 34 CARDOZO LAW REVIEW 107 (2012)

Richard T. Karcher, Redress for a no-win situation: using liquidated damages in comparable coaches’ contracts to assess a school’s economic damage from the loss of a successful coach, 64 S.C. LAW REVIEW 429 (2012)

Joseph B. Kenney, Comment, Showing on-field racism the red card: how the use of tort law and vicarious liability can save the MLS from joining the English Premier League on racism row, 20 JEFFREY S. MOORAD SPORTS LAW JOURNAL 247 (2013)

Jordan I. Kobritz & Jeffrey F. Levine, Don Fehr leads the NHLPA: does the NHL have anything to fear?, 11 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL178 (2011)

Jordan I. Kobritz et al., Don Fehr trades his ball for a puck: will he continue to score?, 19 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 521 (2012)

Shane Kotlarsky, What’s all the noise about: did the New York Yankees violate fans’ First Amendment rights by banning vuvuzelas in Yankee Stadium?, 20 JEFFREY S. MOORAD SPORTS LAW JOURNAL 35 (2013)

Katherine Kraschel, Note, Transcending space in women’s only spaces: Title IX cannot be the basis for exclusion, 35 HARVARD JOURNAL OF LAW & GENDER 463 (2012)

Liz Larson, Note, More than just spelling: How differences in international labor laws create barriers to expansion of the American National Sports Leagues into Europe intercollegiate sports, 11 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 288 (2011)

Benjamin I. Leibovitz, Comment, Avoiding the sack: how Nebraska’s departure from the Big 12 changed college football and what athletic conferences must do to prevent defection in the future, 22 MARQUETTE SPORTS LAW REVIEW 675 (2012)

Amanda Leone, Comment, Buying influence in college athletics: how much does it cost to put in your two cents?, 23 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 221 (2013)

Michael H. LeRoy, An invisible union for an invisible labor market: college football and the union substitution effect, 2012 WISCONSIN LAW REVIEW 1077 (2012)

Michael H. LeRoy, Federal jurisdiction in sports labor disputes, 2012 UTAH LAW REVIEW 815 (2012)

Clinton R. Long, Promoting competition or preventing it? A competition law analysis of UEFA’s financial fair play rules, 23 MARQUETTE SPORTS LAW REVIEW 75 (2012)

Joseph M. Long, A contextual study of the non-profit duty of obedience: the National Collegiate Athletic Association, 23 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 125 (2013)

James P. Looby, Reasonable accommodations for high school athletes with disabilities: preserving sports while providing access for all, 19 SPORTS LAWYERS JOURNAL 227 (2012)

Brian Lovell, Note, Eighteen years old and ready for driving, cigarettes and war, but not basketball: why the NBA is committing a foul on the age eligibility rule, 26 JOURNAL OF CIVIL RIGHTS & ECONOMIC DEVELOPMENT 415 (2012)

Rohani Mahyera, Comment, Saving cricket: a proposal for the legalization of gambling in India to regulate corrupt betting practices in cricket, 26 EMORY INT’L LAW REVIEW 365 (2012)

Heather M. Mandelkehr, Comment, When toning shoes strengthen nothing more than likelihood of lawsuit: why the Federal Trade Commission needs guidelines regarding proper substantiation of fitness advertisements, 20 JEFFREY S. MOORAD SPORTS LAW JOURNAL 297 (2013)

Samuel G. Mann, Note, In name only: how Major League Baseball’s reliance on its antitrust exemption is hurting the game, 54 WILLIAM & MARY LAW REVIEW587 (2012)

Michael LAW Martin, It’s not a foul unless the ref blows the whistle: how to step up enforcement of the UAAA and SPARTA, 19 SPORTS LAWYERS JOURNAL 209 (2012)

James Masteralexis et al., Enough is enough: the case for federal regulation of sport agents, 20 JEFFREY S. MOORAD SPORTS LAW JOURNAL 69 (2013)

James T. Masteralexis & Steve McKelvey, This tweet sponsored by…: the application of the new FTC Guides to the social media world of professional athletes, 11 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 222 (2011)

Alfred D. Mathewson, Remediating discrimination against African-American female athletes at the intersection of Title IX and Title VI, 2 WAKE FOREST JOURNAL OF LAW & POLICY 295 (2012)

Amy C. McCormick and Robert A. McCormick, Race and interest convergence in NCAA sports, 2 WAKE FOREST JOURNAL OF LAW & POLICY 17 (2012)

Eric M. McGregor, Comment, Hooray beer!?: how the reemergence of alcohol sales at campus stadiums will affect universities, 23 MARQUETTE SPORTS LAW REVIEW 211 (2012)

Ryan McLaughlin, Note, Warning! Children’s brains are in danger: legislative approaches to creating uniform return-to-play standards for concussions in youth athletics, 22 INDIANA INTERNATIONAL & COMPARATIVE LAW REVIEW 131 (2012)

Getting To Know . . .

Get to know Robin Harris, executive director of the Ivy League, through this video from August of 2011. She discusses her background, the formation of the league, the origin and execution of Ivy League concussion rules, football rivalries and more:



•
The South Charlotte News has a story about 20 seniors from Charlotte Country Day School going on to play college sports next year. Listed are

Photo Day

Before they installed home stands that stretch the length of the field it was hard to find decent photos of the Butler Bowl, where Dartmouth will open the season in September. The stands covered just one part of the home side with fans having to sit on a bank from midfield to the end zone. Here's what it looked like.



With the stands complete they are now selling photos of the facility. To see

5 Sports Law Questions & Answers for the Mississippi Sports Hall of Fame

I'm honored to be the Distinguished Visiting Hall of Fame Professor of Law at Mississippi College School of Law, where I taught full-time from 2005 and 2008. I now teach a sports law course there every May and I remain active in the Mississippi sports and legal communities. I consider Mississippi my other home state.

A few days ago, I answered 5 sports law questions for Rick Cleveland, the executive director of the Mississippi Sports Hall of Fame & Museum. Topics include NFL concussion litigation, Bountygate, legality of the Bowl Championship Series, the NCAA banning Twitter hashtags and O'Bannon v. NCAA.  Here's an excerpt:

Part of the problem is that the NFL and NFLPA have a strained relationship, to put it mildly, partly due to the lockout and partly due to years of not trusting one another.

Part of the problem is also that the NFL commissioner has tremendous, non-reviewable powers, and that the players accepted those powers in collective bargaining.  Had the lockout not dragged on right up until the 2011 season, I suspect the players would have had more time to negotiate more due process.  But they didn’t, so the commissioner’s authorities remain quite strong.

To read the rest, click here.

It's No Joke (Say It Fast)

We awoke this morning to a surprise . . .




Memorial Day Weekend – the traditional opening of
the Jersey Shore. Here? Not so much ;-)



Ah lilacs. The true sign of spring? (double click for a better look)



We're chillin', not grillin'.



This morning was no picnic.



The antenna balls on our cars look jaunty with their new white caps. 


The Orlando Sentinel has a story under the headline:

Two Familiar Names

Not a huge fan of Bleacher Report because the quality of the work posted by non-professional writers can be uneven, but this one (link) is well done and fun for a couple of reasons.

First, the list of top-25 all-time Cincinnati Bengals includes – not surprisingly – Dartmouth grad Reggie Williams '76.

Given the profile the writer paints of Williams, I might quibble about him being pegged at No.

"Sport as Speech" and Non-Sport as Speech

I just finished reading Sport as Speech, a new paper by Genevieve Lakier (currently a law clerk on the Sixth Circuit); Lakier argues that spectator sports are expressive activities entitled to First Amendment protection (or at least First Amendment scrutiny of any regulations). It is an interesting notion that I had not thought of, although if she is right, it certainly strengthens my arguments about fan speech.

Two further thoughts on the paper.

1) Lakier takes on prior scholarhip and case law (notably a 2002 student comment in Yale LJ) arguing that sport is protected only to the extent it is close to being a dance or theatrical performance--for example, gymnastics, diving, and figure skating. These are the events that I have argued are not sport because the results are determined by evaluating the intrinsic merit of the athletic skills performed, as opposed to sport, where the result of that performance. In other words, under this approach (which Lakier rejects), non-sport is expressive, but sport is not expressive. So there is yet another reason for figuring out what qualifies as sport.

2) Lakier expressly limits her argument only to spectator sports, arguing that the expressive component of sport comes from players performing for a crowd. But I wonder if that cuts her case short. She relies a lot on the similarity between sport and other conduct widely recognized as expressive, notably music and dance. But those activities enjoy First Amendment protection even if not done for an audience; a prohibition on dancing in private or when no one is watching (think Footloose) would violate the First Amendment. So if basketball is expressive when played for a crowd, why not when it's ten people playing in an empty gym or playground or even one person playing in the driveway?

Relatively Speaking II

On Monday BGA took a look at which incoming freshmen had relatives who were pro athletes. (link) Today: A look at which players returning next fall have relatives who at some point were paid to play:

Defensive back Mike Banaciscki's dad, Joe, signed with the Philadelphia Eagles
Offensive lineman/tight end Pat Hand's father Rich played in the Oakland A's organization
Defensive back Chai Reece's

Recruiting News

The Dartmouth takes a look at the incoming class of freshman football players under the headline, Football team announces 35 recruits in the Class of 2017.

To be accurate, there are 29 recruits and six incoming freshmen who have expressed an interest in playing football.

Editor's Note: I've compiled the first list for the last eight incoming classes and each time coach Buddy Teevens has debated

New sports law scholarship -- Pt. 1

I'm finally getting caught up with recently published scholarship, and since it's been a while since I've posted these updates, I'm breaking up the list into parts over the next few days:

Tara M. Allport, Comment, This is hardcore: why the court should have granted a writ of mandamus compelling mandatory condom use to decrease transmission of HIV and STDs in the adult film industry, 19 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 655 (2012)

Phoebe A. Amberg, Comment, Protecting kids’ melons: potential liability and enforcement issues with youth concussion laws, 23 MARQUETTE SPORTS LAW REVIEW171 (2012)

Brenda L. Ambrosius, Note, Title IX: creating unequal equality through application of the proportionality standard in collegiate athletics, 46 VALPARAISO UNIVERSITY LAW REVIEW 557 (2012)

Trisha Ananiades, Penalty on the field: creating a NCAA sexual assault policy, 19 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 463 (2012) 

Paul M. Anderson, Title IX at Forty: an introduction and historical review of forty legal developments that shaped gender equity law, 22 MARQUETTE SPORTS LAW REVIEW 325 (2012)

Thomas A. Baker III et al., Consent theory as a possible cure for unconscionable terms in student-athlete contracts, 22 MARQUETTE SPORTS LAW REVIEW 619 (2012)

Talor Bearman, Note, Intercepting licensing rights: why college athletes need a federal right of publicity, 15 VANDERBILT JOURNAL OF ENTERTAINMENT & TECHNOLOGY LAW 85 (2012)

Eric D. Bentley, He tweeted what? A First Amendment analysis of the use of social media by college athletes and recommended best practices for athletic departments, 38 JOURNAL OF COLLEGE & UNIVERSITY LAW 451 (2012)

Amy L. Bernstein, Comment, Into the red zone: how the National Football League’s quest to curb concussions and concussion-related injuries could affect players’ legal recovery, 22 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 271 (2012)

Erin E. Berry, Respect for the fundamental notion of fairness of competition: the IAAF, hyperandrogenism, and women athletes, 27 WISCONSIN JOURNAL OF LAW GENDER & SOCIETY 207 (2012)

Annie Bersagel, Is there a stare decisis doctrine in the Court of Arbitration for Sport? An analysis of published awards for anti-doping disputes in track and field, 12 PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL 189 (2012)

Andrew C. Billings, Talking around race: stereotypes, media, and the twenty-first century collegiate athlete, 2 WAKE FOREST JOURNAL OF LAW & POLICY 199 (2012)

Michael Birch, Take some land for the ball game: sports stadiums, eminent domain, and the public use doctrine, 19 SPORTS LAWYERS JOURNAL 173 (2012)

Kevin B. Blackstone, The whitening of sports media and the coloring of black athletes’ images, 2 WAKE FOREST JOURNAL OF LAW & POLICY 215 (2012)

Jessica Blumert, Note, Home games: legal issues concerning the displacement of property owners at the site of Olympic venues, 21 CARDOZO JOURNAL OF INTERNATIONAL & COMPARATIVE LAW 153 (2012)

Brian Bodansky, Note, Kicking the penalty: why the European Court of Justice should allow salary caps in UEFA, 36 FORDHAM INTERNATIONAL LAW JOURNAL 163 (2013)

Deborah L. Brake, Going outside Title IX to keep coach-athlete relationships in bounds, 22 MARQUETTE SPORTS LAW REVIEW 395 (2012)

Andrew W. Breck, Note, Keeping your head on straight: protecting Indiana youth athletes from traumatic brain injuries through “return-to-play” legislation, 9 INDIANA HEALTH LAW REVIEW 215 (2012)

Jacquelyn L. Bridgeman, The end game: envisioning equality for women and girls in sports, 2 WAKE FOREST JOURNAL OF LAW & POLICY 267 (2012)

Garrett R. Broshuis, Comment, Deterring opportunism through clawbacks: lessons for executive compensation from minor league baseball, 57 ST. LOUIS UNIVERSITY LAW JOURNAL 185 (2012)

Zak Brown, Note, What’s said in this locker room, stays in this locker room: restricting the social media use of collegiate athletes and the implications for their institutions, 10 JOURNAL OF TELECOMMUNICATIONS & HIGH TECH LAW 421 (2012)

Maggie Jo P. Buchanan, Note, Title IX turns 40: a brief history and look forward, 14 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 91 (2012)

Timothy J. Bucher, Game on: sports-related games and the contentious interplay between the right of publicity and the First Amendment, 14 TEXAS REVIEW ENTERTAINMENT & SPORTS LAW 1 (2012)

Alexander Bussey, Stretching copyright to its limit: on the copyrightability of yoga and other sports movements in light of the U.S. Copyright Office’s new characterization of compilations, 20 JEFFREY S. MOORAD SPORTS LAW JOURNAL 1 (2013)

Erin E. Buzuvis & Kristine E. Newhall, Equality beyond the three-part test: exploring and explaining the invisibility of Title IX’s equal treatment requirement, 22 MARQUETTE SPORTS LAW REVIEW427 (2012)

David S. Cerra, Note, Unringing the bell: former players sue NFL and helmet manufacturers over concussion risks in Maxwell v. NFL, 16 MICHIGAN STATE UNIVERSITY JOURNAL OF MEDICINE & LAW 265 (2012)

Walter T. Champion & Danyahel Norris, Obama vs. Bush on steroids: two different approaches to a pseudo-controversy—or is it really worthy of note in a state of the union address?, 36 THURGOOD MARSHALL LAW REVIEW193 (2011)

Jeremy Corapi, Note, Red card: using the National Football League’s “Rooney Rule” to eject race discrimination from English professional soccer’s managerial and executive hiring practices, 23 FORDHAM INTELLAW PROPERTY MEDIA & ENTERTAINMENT LAW JOURNAL 341 (2012)

Nathan Crown, Hart v. Electronic Arts, Inc.: the District of New Jersey tackles college athletes’ publicity rights, 19 SPORTS LAWYERS JOURNAL 345 (2012)

George B. Cunningham, Occupational segregation of African Americans in intercollegiate athletics administration, 2 WAKE FOREST JOURNAL OF LAW & POLICY 165 (2012)

Paul A. Czarnota, The World Anti-Doping Code, the athlete’s duty of “utmost caution,” and the elimination of cheating, 23 MARQUETTE SPORTS LAW REVIEW 45 (2012)

Christopher David & Cameron Ruiz, You can’t win if you don’t play: the surprising absence of Latino athletes from college sports, 2 WAKE FOREST JOURNAL OF LAW & POLICY227 (2012)

Lindsay N. Demery, Note, What about the boys? Sacking the contact sports exemption and tackling gender discrimination in athletics, 34 THOMAS JEFFERSON LAW REVIEW 373 (2012)

Nicholas A. Deming, Note, Drafting a solution: impact of the new salary system on the first-year Major League Baseball amateur draft, 34 HASTINGS COMMUNICATION & ENTERTAINMENT LAW JOURNAL 427 (2012)

Javier Diaz, Comment, Beware of deadly flying bats: an examination of the legal implications of maple bat injuries in Major League Baseball, 22 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 311 (2012)

John Dillon, Comment, Major League Baseball team bankruptcies: who wins? Who loses?, 32 LOYOLA-L.A. ENTERTAINMENT LAW REVIEW297 (2012)

William A. Drennan, Taxing commercial sponsorships of college athletics: a balanced proposal, 73 OHIO STATE LAW JOURNAL 1353 (2012)

Thomas M. Duncan, Comment, Driving Americans’ perception of recreation: awaiting the Park Service’s long-term solution to address snowmobile access in Yellowstone National Park, 19 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 699 (2012)

Dennis Durao, An endangered species: professional sports team physicians, 15 QUINNIPIAC HEALTH LAW JOURNAL 33 (2011-2012)

Chika Duru, Out for blood: employment discrimination, sickle cell trait, and the NFL, 9 HASTINGS RACE & POVERTY LAW JOURNAL 265 (2012)

N. Jeremi Duru, Call in the Feds: Title VI as a diversifying force in the collegiate head football coaching ranks, 2 WAKE FOREST JOURNAL OF LAW & POLICY143 (2012)

1995-1996 Florida Offense - Steve Spurrier

The Florida offense under Head Coach Steve Spurrier was undoubtedly one of the most exciting offenses in recent history, putting up lots of points and throwing the ball around as few teams had done up to that point in time.  Coach Spurrier's Fun and Gun attack helped to end the run-first era and to usher in the Spread offense era of multiple WRs and the ability to throw the football to win.  The remarkable thing about Spurrier and his offenses was how easy they made it look to score points and how wide open his receivers always seemed to be.

There were plenty of highlights in the Spurrier era during the 1990s.  The 1995 game vs. Tennessee with Peyton Manning at QB saw the Gators down 30-14.  Then there was a torrential downpour that was only exceeded by what Danny Wuerffel and the Gator offense did to pour on 48 straight points in a 62-37 beat down (also fueled by one of the biggest hits of all-time).  I'm not sure I can ever remember a team being up by so much like Tennessee was that ended up getting avalanched and absolutely destroyed the way they did.  The Gators pulverized FSU 52-20 for their first national championship in 1996 to get revenge for a 24-21 regular season defeat.  The upset of a great FSU team in 1997 that was ranked #1 in the country is still the greatest game ever played at Florida Field (my favorite game of all-time along with the 1985 Miami Dolphins 38-24 win over the Chicago Bears in the most-watched game ever on Monday Night Football to keep the Bears from going undefeated). 

The other game that stood out for me for the raw fury of offensive explosion and opposing its will on a defense was Spurrier’s last game at Florida vs. Maryland in the 2002 Orange Bowl.  Rex Grossman did not start the game for missing curfew and Brock Berlin came and the Gators had a shaky 14-10 lead in the 2nd Qtr.  Spurrier, being a former Heisman winner, was ever the demanding perfectionist at coaching the QB position.  After Berlin threw his 2nd interception, Spurrier yanked him for Grossman, who came in and took over, obliterating Maryland’s 3 deep coverage for six straight TDs in a 56-23 rout.  If there was ever a clinic video made of how to destroy Cover 3 with the passing game, this game tape would have to be it.

I recently got a hold of some vintage cut-ups of all of the 1995-96 Florida TD passes.  The Gator offense under Heisman Trophy winning QB Danny Wuerffel, RB Fred Taylor, and WRs Reidel Anthony, Ike Hilliard, Jacquez Green, and Chris Doering led them to two appearances in the national championship game.  There were three concepts that the Gator offense was synonymous for that showed up repeatedly in the cut-ups that I want to show and talk about: the Fade route, the Corner route, and the Mills concept.

Fade

The Faderoute in the Florida offense was a devastating weapon.  DBs could be in almost perfect coverage but the route always allowed the Florida WRs plenty of grass to run to and the ability to see the ball and to jump and grab it before the DB could turn around and react quick enough.  I got coached up recently on the Fade route by former Gator great, Jacquez Green.  He explained it simply as a foot fire, hard stick inside, and run to the back corner of the end zone.  Green was only 5-9, but ran the route better than anyone else at Florida because his feet were so quick.  He was great at the foot fire and the deadly jab step inside to free him from tight man coverage.

Football is certainly a science with all of the X's and O's and fundamental techniques that we coaches can spend a lifetime studying and tweaking, but it is also an art form.  I believe that the Fade route, especially in slow-motion, is quite possibly the most beautiful play in all of football.  I tried to slow-motion the film in the cut-ups but the video is too old to do so.

Fade Route - 1995-1996 Florida Offense - Steve Spurrier from Barry Hoover on Vimeo.

Corner Route

Florida saw a lot of Cover 2 and they used the Corner route to score numerous TDs back in the day.  Spurrier liked to get to the opponent's 30-40 yard line and throw TDs from there rather than drive down deep in the red zone and let the field compress him and limit what he could do.  There were multiple concepts that utilized the Corner route in Spurrier's offense.  Corkers is basically the Smash concept mirrored to both sides.  Righty/Lefty was Smash to the playside with a Post from the backside.  Ralph/Lonnie was a concept made famous by Spurrier in which the #1 WR's rule was to run a Curl route and to adjust that route to an inside release Corner route vs. Cover 2.  Chris Brown at Smart Football and Grantland says Ralph/Lonnieallowed Spurrier’s offense and his QB to always be right: “You play him in Cover 2, he throws the corner, you play him in Cover 3, he throws the curl.   Finally, in the cut-ups they also hit the Corner route once out of the Snagconcept (#1 – Snag, #2 – Corner, #3 – Flat or Swing) that is quite popular today.

Corner Route - 1995-1996 Florida Offense - Steve Spurrier from Barry Hoover on Vimeo.

Mills

Millswas a Play-Action concept named after former Florida WR, Ernie Mills, and was responsible for many big TD passes during the 1990s.  Spurrier’s first SEC victory in 1990 vs. Alabama was one of the biggest wins in school history according to Spurrier and was made possible by a 70 yard pass to Ernie Mills on this very play.  This play is great vs. Quarters coverage that is prevalent today.  The #2 WR runs a Dig route to get the Safety to jump him and the #1 WR runs a Post route over top of the Safety.  The QB will read the Safety to see if he will come up to play the Dig or stay back to play the Post.  The single side WR to the opposite side runs an inside release Corner to occupy the backside Safety.

Mills - 1995-1996 Florida Offense - Steve Spurrier from Barry Hoover on Vimeo.

Great Links

Coach Vint with The Little Things are the Biggest Things and Leverage, Numbers, and Green Grass.

Blitzology is back again with Torch: Lighting Up the Offense with the Read Twist and Equipment Review.

Coach CP at Strong Football with 3 Reasons to Use the TE at the H.S. Level, Cover 2 Trap Zone Blitz, the Smash Concept, and Beating Press Coverage with Bunch Formations and Motion.

Coach Mac with Practicing Your Tempo and Power.

DaCoachMo at Spread Football features Dub Maddox in Question: Want to Be a Great Coach? and he also shares Clinic Notes.

Compete In All Things with Shallow Cross: Why Is He Always Open?

Coach Holst with notes on the Nevada Spring Game.

Chris Brown at Smart Football and Grantland with What Drafting Matt Barkley Means for Chip Kelly's Plans for the Eagles.

Duece has some motivation material with Today's the Big Day and talks coverage with Split Field Coverage - The Underneath Players.

Dan Gonzalez with Assembling a Game Plan: Parts One, Two, and Three.

Coach Grabowski with lots of TE Resources.

2013 Virginia Tech Helmet Safety Study

Coach Burk with Stick-Draw Concept.

Brophy with Gunter Brewer video on Snag & Scat Revisited and Western Michigan Special Teams Circuit.

Coach B Dud with Installing R4 For the First Time, Using an H Back to Enhance Your Inside Zone Package, Game Planning, and R4 in Spring Ball.

Coach Fore with Three Essentials to Building a Booster Club - Part 2.

Gellin' With Kellen

Lineman Jacob Flores poses with NFL Hall of Famer Kellen Winslow.



NFL Hall of Famer Kellen Winslow was on campus yesterday to talk about wellness in a college environment. Quoted in a story in The Dartmouth about Winslow's talk was Big Green freshman quarterback Ernest Evans, who had this to say:

“As I listened to him, I thought of our Peak Performance program. We have an academic

Hart v. Electronic Arts: First Amendment Does Not Trump the Right of Publicity

In adopting and applying the transformative use test for balancing the First Amendment against the right of publicity, yesterday the Third Circuit ruled in Hart v. Electronic Arts that the First Amendment does NOT trump college players' right of publicity in the context of video game use of their likenesses.  The court's 62-page opinion is here and it is a fascinating read for those of you who, like me, have an interest in right of publicity law.

Courts that have rejected professional athletes' right of publicity claims in various contexts (such as fantasy league use and parody trading card use) have sometimes highlighted the fact that "they are already handsomely compensated."  While in my view this has no relevance in evaluating a professional athlete's right of publicity claim, the Third Circuit in a footnote (pg. 23 of the opinion) points out that it is obviously inapplicable to right of publicity cases involving amateur athletes:

We reject as inapplicable in this case the suggestion that those who play organized sports are not significantly damaged by appropriation of their likeness because "players are rewarded, and handsomely, too, for their participation in games and can earn additional large sums from endorsement and sponsorship arrangements." (citations omitted)  If anything, the policy considerations in this case weigh in favor of [the athletes].  As we have already noted, intercollegiate athletes are forbidden from capitalizing on their fame while in school.

The right of publicity claim in the O'Bannon/Keller consolidated case is pending appeal on the opposite side of the country in the Ninth Circuit.  The district court in that case has already ruled that the First Amendment does not trump the players' right of publicity in the context of video game use.  It would surprise me if the Ninth Circuit does not ultimately uphold the district court's ruling.  But even if the Ninth Circuit were to reverse the district court, it would result in a split of circuits on this question.   The bottom line, therefore, is that this is a highly significant and ground-breaking decision by the Third Circuit in favor of college players. 

  

Award Winners

Two Dartmouth football players were presented with awards at the College's annual Celebration of Athletic Excellence at Leede Arena. Honored were junior linebacker Michael Runger and senior linebacker Garrett Wymore. Runger was presented with the Class of 1948 Scholar-Athlete Award, given "to one male and one female of the junior class, who have combined outstanding performance in athletics and

Warren Zola article in Boston Globe Magazine

Warren Zola has an outstanding and provocative piece in this past Sunday's Boston Globe Magazine arguing that college athletes should be paid.  Be sure to check it out.

Relatively Speaking

Digging through information on incoming freshmen revealed that a lot of the recruits have relatives who played college sports. Some have relatives who went pro. Among the latter: • Safety Lucas Bavaro's father Mark was a tight end with the New York Giants, Cleveland Browns and Philadelphia Eagles. • Wide receiver Jon Marc Carrier's father Mark was a receiver with the Carolina Panthers, Cleveland

Winslow Coming To Town

With apologies to former NFL veteran Casey Cramer '04, the best tight end to ever set foot on the Dartmouth campus will be in town Tuesday. That's a safe bet because Kellen Winslow has to be in any conversation about the best tight end in NFL history.


Winslow will be speaking about wellness Tuesday at Dartmouth Hall from 4:30-5:30 p.m.


Selected to the Pro Football Hall of Fame in 1995 and the

Panther Prospects Commit to Ferrum

Ferrum's recruiting efforts are paying some very nice dividends according to news found on the Internet. Below are some links to articles detailing some of the incoming football players for the 2013 season.

Article 1

Article 2

Article 3

Article 4

Article 5

Stay tuned, I will post more stories like this as I get them.

"Pros or Cons" Thoughts For The Modern "Sports Attorney" - Part V

Sports Law Blog is publishing a 5-part series on the practice of sports law.  The series is co-authored by Peter Jarvis, a legal ethics and professional responsibility attorney with Hinshaw & Culbertson, LLP in Portland, Oregon and Jason Davis, a California attorney currently residing in Seattle, Washington.  These posts will appear on Saturdays.  These posts  appear on Saturdays.  First post can be read at this link, the second at this link, the third at this link, and the fourth at this link.  Here is the fifth:

---------------------------------------------------------------------------------------------------------------------------

"Pros or Cons" Thoughts For The Modern "Sports Attorney"

Authored by Jason A. Davis, Esq. and Peter R. Jarvis, Esq. (all rights reserved)

( jason.a.davis.esq@gmail.com, @JasonDavisEsq1 & pjarvis@hinshawlaw.com)

 (ARTICLE #5)

Know Your Role

On occasion, an oversized lineman may find the football bouncing into his arms on a fortunate bounce from a fumble to which he may then lumber anywhere from a few to more than he thought he was able, yards into the end zone for an awe-inspiring score. However, this is not his expertise and far from the position assigned which he has spent in years of training, practice and preparation.

So what happens when you find yourself with the "perfect client" but the client needs work in a field in which you lack essential experience? Do you run with it and hope for the best? In the alternative, do you take a look at the clock, use your last time out and confer with the coach?

The prior installments should suggest the answer. Although a lawyer need not have sufficient competence to handle a matter before taking it on, the lawyer must either be prepared to acquire the competence on a timely basis or to bring in someone who already has the competence. And just as quarterbacks do not necessarily make the best tackles, so too a lawyer-client team may be best served if each player fills the role, and only the role, for which that player has the greatest expertise. An attorney's job is to put the client's goals first and foremost. And even from the attorney's selfish point of view, time spent by an attorney to learn what other lawyers already know may be time that the lawyer simply cannot bill to the client. In other words, both Al and Mega may be best served if Al is, and remains, quarterback rather than trying to play eleven positions at once.

 

Mad Max

Artist and popular former Dartmouth quarterback Max Heiges '10 is the subject of this story about a 26-foot tall, 750-pound art installation he is responsible for in Geyserville, Calif.



Max Heiges(Courtesy Dartmouth)

Heiges, well known for making terrific Etch-A-Sketch art and funny drawings on the white board in quarterback meetings when he was in college, was also a serious studio art major

Coming Attractions

The video begins with a look at several of Dartmouth's standout recruits from this season and then shows quick snippets of video from the incoming class, which has been officially announced here.