December Mini-Coaching Progam - 2012 Planning

2 Spots Still Available

The travel schedule is light in December, which allows me to work with a select group of people on individual visibility coaching.

If you desire a stronger focus on visibility, personal branding, networking activities, and 2012 business development strategy, this "mini-coaching blitz" might be an ideal chance for you to fine tune your efforts in time for the new year.

*Two one hour meetings (by phone or face-to-face if you are in Austin)

*LinkedIn Review ($250 value)

*Unlimited email access for two months.

The regular price for this mini-coaching program is $795, but this unique December opportunity is only $295.  Both meetings must be scheduled between December 1st and December 24th (with a minimum of 7 days in between).  The meetings are one hour in length, but may run longer.  Email responses will be provided withing 48 hours (usually within 12 hours).

I have availability to work with ten individuals (six spots remain).  If you are interested, please contact me by email or phone.

Learning objectives:

*Review of LinkedIn and discussion about how to best utilize this business tool.

*Identification of business networking organizations in your business community.

*Goal setting and visibility plan.

*Development of a personalized follow up and thank you policy.

Thom Singer

(512) 970-0398

Ten Days of Thanksgiving (Day 7)

Thanksgiving and the focus we give to appreciation should be more than one day. Really, it should be everyday.

I am going to post about things I am thankful for each day for ten days to keep the feelings of gratitude going.

Day Seven.

I am thankful to live in a country and a time in history where creativity can reign.  Not everyone on earth has the ability to achieve their goals and dreams, and throughout the ages there have been may obstacles that have limited  people from creating their own path.

I have had the ability to work for some amazing companies (and some that sucked).  Over the past three years I have made my own business and my family is able to share interesting experiences as we grow this company.  We are aware that we are fortunate in the adventure, and I am honored to be in the time and place that is allowing us to live a self-made life.

Have A Great Day.

thom singer 

A place for this blog and its EIC

Slate's weekly sports podcast "Hang Up and Listen" leads off this week with a discussion of the end of the NBA lockout. One of the points of discussion is the failure of the sports media to fully grasp and accurately cover the bargaining process. Not being experienced in how labor and litigation negotiations work, reporters fall for dramatic, tragic, and pessimistic narratives because, to their eyes, the process appears to be failing. They specifically note Bill Simmons' calls for both David Stern and Billy Hunter to be fired for their mismanagement of this process, a sentiment widely shared by fans but not by experienced labor experts (who recognize legal posturing as all part of the negotiation process).

If this assessment is accurate, it presents a good argument for this blog and, in particular, for Mike's work on ESPN and NBA-TV. They provide voice that can report and opine on the legal issues from a real position of experience, avoiding the narrative traps.

Time for Transformative Change in Intercollegiate Athletics

Well, I've spent the better part of the fall semester thinking and talking about change in intercollegiate athletics. I figured it was time to put my ideas and arguments down on paper and, as such, wrote a brief article, summing up my thoughts and, more importantly, making some recommendations.

The essay was just posted on Huffington Post here.

In sum, I argue that we need to address three key areas: 1) Academics & Integrity, 2) The Interests and Experiences of Student-athletes; and 3) Accountability.

Let me know what you think...and help me improve my proposals.

Ten Days of Thanksgiving (Day 6)

Thanksgiving and the focus we give to appreciation should be more than one day. Really, it should be everyday.

I am going to post about things I am thankful for each day for ten days to keep the feelings of gratitude going.

Day Six.

I am thankful for people who volunteer in our communities.  No one person can do everything necessary to save the world, and without the participation of those in our villages -  the world would be a mess.

Some give time, some give money, and others send "good vibes" to causes that serve the greater good.  We often forget the community volunteers and public servants who forgo the monetary rewards to contribute to our society.  This includes, but is not limited to those who help the children, the elderly, those in poverty, the environment, animals, etc.... 

Also most of our elected officials are giving of themselves to make the world a better place (I say most, because we all know that some of them are not helping much!).  I appreciate that there are people willing to serve in these leadership positions, as while it is fun to knock our political system.... it is the best around!

At different times in our lives we have differing abilities to jump in to the mix, roll up our sleeves, and volunteer.  It is not always the right time to be the person giving, but we should always be aware and grateful of those around us who are silently doing the unseen tasks that lift us all up.  I am fortunate to know many people who freely donate to their communities, and I do not think they are ever appreciated nearly enough.  

Have A Great Day.

thom singer

NBA TV Interview: Remaining Steps

I joined David Aldridge, Reggie Miller, Dennis Scott and Matt Winer tonight on NBA TV to talk about remaining steps for there to be NBA basketball on December 25. 

Ten Days of Thanksgiving (Day 5)

Thanksgiving and the focus we give to appreciation should be more than one day. Really, it should be everyday.

I am going to post about things I am thankful for each day for ten days to keep the feelings of gratitude going.

Day Five.

I am grateful for my health, and that of my family.  We recently lost a friend to a long battle with cancer and another died suddenly of a heart attack.  Many people do not think about such things until life and death issues hit close to home.

My modified vegan diet over the last nine months has taught me much about health.  While I have not kept totally vegan since the end of Lent (I was strict for nearly 2 months in February - April), I now eat about 70% less meat and 90% less dairy than I ate in the past. These choices also eliminate much of the junk food that crosses my path.  I also find when I do indulge in something with meat or dairy, I eat less than I would have a year ago.  Making the right dietary choices is not easy, but over the long haul I feel fantastic.

I am conscious that my health is a gift that I cannot take for granted, and I am enjoying this stage in my life, as I know as I get older there will be bumps in the road.  I try to get to the gym two or three days a week (I come up short here sometimes), and know that I must keep up the exercise along with the diet to prolong my health into the future.

Have A Great Day

thom singer

New Sports Illustrated Inside Report Interview: Legal Fallout of Bernie Fine Scandal

The Enthusiastic Networker by Juli Monroe

I just finished reading "The Enthusiastic Networker" by Juli Monroe.  I know Juli via Twitter, and although we have never met in person, we have become friends because of her enthusiastic manner in establishing and cultivating relationships -- thus the title of her book is more than a title... it is a way of life!

My friend Patti DeNucci just released a book called "The Intentional Networker" (which I reviewed here), and I love that these two books crossed my path so close together, as being intentional AND enthusiastic are key to success in cultivating long-term and mutually beneficial relationships.

Juli does a great job of making networking real.  Too often if you ask ten people what it means to "network" you will get ten differing definitions.  She begins her book by spelling out her philosophies on the purpose of building relationships.  She then gives real life examples and plenty of actionable exercises to help anyone become more enthusiastic in their networking efforts.

The book is easy to read and will help the skeptical and experienced in finding ways to do the things that they enjoy (and she teaches you how to enjoy the parts of networking that might make you cringe).

She also does a good job of merging the online and offline networking strategies.  It is common that people separate the two, or pit the digital world and face-to-face world at odds.  This book reminds us that we are the same people in social media and in person.... and that they should work together, not apart.

The book is available on Amazon and other book retailers.  It is an easy read and will make you think about how you network online and in person.  Enjoy!

Have A Great Day.

thom singer

International Sports Law Review Pandektis

The most recent issue of the International Sports Law Review Pandektis, an IASL-sponsored journal, has been published. A number of articles caught my eye that Sports Law Blog readers may be interested in. Of particular note is the article published by Stephen Argeris pertaining to the MLB draft, which was presented earlier this year at the MIT Sloan Sports Analytics Conference and last year at the International Sport Law & Business Conference.

The complete table of contents for the most recent issue can be found here.

Ten Days of Thanksgiving (Day 4)

Thanksgiving and the focus we give to appreciation should be more than one day. Really, it should be everyday.

I am going to post about things I am thankful for each day for ten days to keep the feelings of gratitude going.

Day Four.

I am thankful for the opportunity to live in Austin, Texas. Twenty years ago we moved here with the intent of staying for 3 years. We did not intend to discover a growing community that would turn out to be such a wonderful place to raise a family and launch our careers.

Austinites have an unnatural love affair with their city. While most parts of Austin have changed a lot over two decades (it has nearly double the population), there is still a culture of openness, entrepreneurship, encouragement, and friendliness that has welcomed us and made this our home. The people are special and the opportunities are limitless. I wonder if I could have had the same success in a different location?

I often say we ended up here by accident, but it turned out to be just the right place. Every time I get a glance of the expanding skyline I feel a kinship to Austin and I am happy to have grown up with the community over the past twenty years.

Have A Great Day.

thom singer

Entrepreneurship and Home Life

Being an entrepreneur has a direct impact on those closest to you.  Working for a company brings many advantages and disadvantages, as you have job security (in theory) but not necessarily the freedoms that come with being your own boss.   Entrepreneurship has a different impact, as work hours and security can be all over the map, while the freedoms you might expect are not always present in the early stages of starting your venture.  The responsibilities and pressures of growing a business mean that your family has to be part of your work life or they may feel squeezed out during the times when you are focused on work issues.

Your personal life can easily become intermingled with your business when you are starting or running your own company.  Regardless of is you are a solo-entrepreneur or leading a larger corporation, if you are the boss it can be difficult to have an "off-switch" when you get home.  Being self-aware of how engaged you are at home is important, as with today's technologies it is easy to always be plugged into work.

In the growth phase of a business money can be tight, which means sacrifices at home.  However, those who create successful and sustainable companies often can have financial windfalls that can more than compensate for the lean times.  But nobody enjoys sacrificing at the time, and thus a spouse and children must be included in conversations about the focus and purpose of the entrepreneurs efforts or it is easy for people to feel cheated by any hit to lifestyle.  While it can easily take three, five or ten years (or more) to realize the upside for the entrepreneur, that can feel like a lifetime for the family.

Additionally, if you make the leap from employee to entrepreneur after you have a family, it might not be the lifestyle that your spouse and children expected.  Being part of an entrepreneurial venture, even from the home-side of the fence, can be quite an experience.

Be sure sure that everyone at home understands the realities of living with an entrepreneur.  While the long hours for business can take a toll, there can also be flexibility for the entrepreneur to create a flex schedule that allows them to drive carpool, coach sports teams, and sneak away for long weekends with their spouse.  If work becomes overwhelming it is easy to let the home life responsibilities slip, but making family time a priority is the only way to keep yourself engaged in the day to day functions of a family.

Many entrepreneurs are driving by a dream, but if those around him or her do not share the dream it can make life difficult and create conflicting priorities between home and work.  Communication and clear expectations between everyone is paramount to making sure that there is not additional stress added to the home-front.

Including your family in the business is one way to make sure everyone has buy into the purpose of the entrepreneur.  This does not mean your husband or wife needs to be employed at the company, but everyone should know what is happening with growth of the organization.  Even young children will better understand when mommy or daddy are gone on a business trip when they know what it is their parent does for a living. 

There is a lot written about "Work / Life Balance", but there is never real balance.  Decisions are constantly being made in regards to where we put our attention.  Knowing our purpose at work and at home can make the tough choices easier for the entrepreneur.  Being honest with our co-workers, family and ourselves about what is needed to succeed in both areas will not solve all problems, but can moderate the misunderstandings and expectations. 

Have A Great Day.

thom singer

Ten Days of Thanksgiving (Day 3)

Thanksgiving and the focus we give to appreciation should be more than one day. Really, it should be everyday.

I am going to post about things I am thankful for each day for ten days to keep the feelings of gratitude going.

Day Three.

Author Jim Rohn had a great saying:

 "You are the sum of the five people you spend the most time with in your life".  

Think about that for a minute..... you are, in regards to your character.... and your soul.... the sum of the five people you spend the most time with in your life.  Wow.  If that is true, I am a very lucky guy, as my friends are amazing people.

I am fortunate that I have had always had associations with great people.  I am thankful for the people I call my friends.  They have always been there for me in good times and in bad times.  They have provided shoulders to lean on and have shared celebrations.  I understand and accept their quirks....and they do the same for me.

While over the course of a lifetime people will come and go, I have ongoing relationships with people I have known in all stages of my life journey.  (I only have one close friend with whom I had a bad ending and I regret that situation).  I appreciate the long-term and mutually beneficial connections and I openly honor the love of these people who are my friends.

Have A Great Day.

thom singer

Beware Of Being Nasty In A Dispute

In life and business there will be disagreements... and where we find humans there are emotions.

This can be a dangerous combination.

While trying to resolve an issue, beware of getting nasty in your conversations.   People often have a knee-jerk reaction and jump to the conclusion that the other party is intentionally screwing them over, but often that is not the case.  Since there are two sides to every story, on occasion you may discover that you are the one who is wrong or that it is simply a misunderstanding.  Once you have been nasty it is difficult to put that genie back in the bottle.

It gets worse if you have been broadcasting your problems to others, as word of your rant will get back to the people you are bad-mouthing.  In the end, you look small and it is tough to recover because your own ego gets in the way and fessing up to what went down and repairing the damage is often impossible (I know, as I have been there and made these mistakes!).

Not every conflict has to be adversary.  Most people are not actually out to get you, and thus most disagreements eventually work themselves out in the end.  Burned bridges are opportunity lost for everyone involved.

Have A Great Day.

thom singer

The NBA Lockout is Over!

I was on NBA TV this morning (live, at 4 a.m.) talking about next steps.  Glad to have games back!

Update 4 p.m. Saturday: I have a new column for SI: NBA players, owners may still run into problems with tentative deal

NBA and Players Talk Litigation Settlement: Will it lead to new CBA?

I was on NBA TV this afternoon to talk about owners and players having litigation settlement talks, how they can convert those talks into a new CBA, and why there is reason to be optimistic. 

Could David Boies be the X Factor for players and help them reach a deal with NBA that Billy Hunter, Derick Fisher and Jeffrey Kessler couldn't? 

More known for his litigation skills than settlement skills, this could become Boies's finest hour.

Ten Days of Thanksgiving (Day 2)

Thanksgiving and the focus we give to appreciation should be more than one day. Really, it should be everyday.

I am going to post about things I am thankful for each day for ten days to keep the feelings of gratitude going.

Day Two.

I have spent the last three years earning my living as a professional speaker, trainer, and consultant. While working as a "solo-entrepreneur" is difficult (and sometimes lonely), it has been a highlight of my eclectic and interesting career path.

I am grateful for the friends who have supported my efforts and referred me into their companies, law firms, and industry associations as a resource for training and speaker. This is a word-of-mouth business, and this experience has taught me more about the power of business relationships than I ever could have imagined. Those who took the time, effort and risk to refer me as a speaker or sales trainer into an organization are the cement in the foundation of my success.

I am appreciative of the clients for whom I have had the honor to serve. I have worked with great people who have made me feel like part of the family in their internal and external events. The meetings industry is not a cookie-cutter place. Each event, conventions, users conference, seminar, luncheon, sales meeting, training session, networking gathering, and trade show is different. The goals, needs, and expectations of every planner are not the same. I have loved working with everyone of the people I have met over the past three years.

I know how fortunate I am to have addressed audiences both large and small. I delivered over 150 presentations in the past 36 months and the organizations who have hired me have forever touched my life in more ways that anyone will ever fully understand. But I understand.

Have A Great Day.

thom singer

Ten Days of Thanksgiving (Day 1)

Thanksgiving and the focus we give to appreciation should be more than one day.  Really, it should be everyday.

I am going to post about things I am thankful for each day for ten days to keep the feelings of gratitude going.

Day One.

I am thankful for my family.  I had great parents (mom is gone, dad is 97) who showed me the meaning of unconditional love.  I have three older brothers who have each contributed to my life (in good ways, for the most part),... and their families are delightful.  I married a wonderful woman who works hard to make our house a home.  And the kids.... wow, I am so grateful for my kids.  No words can describe it.

Have A Great Day.

thom singer

Sports as protected expression?

For all my writing on fan speech, this is a place I never thought to go: Last week, UFC and several UFC fighters have challenged New York's ban on MMA exhibitions and profiting from those exhibitions on, among other things, First Amendment grounds. The argument is that the state is targeting the message of MMA through a commercial ban, even though the activities themselves are lawful in a gym. The plaintiffs are represented by Barry Friedman, a great con law scholar at NYU (and, I am guessing, an MMA fan).

Friedman has tried to argue that MMA is mixed martial arts, so is an activity that is more uniquely performative than other sports (more akin to dancing than basketball), so it does not necessarily follow that all sports are expressive. Or maybe all sports are expressive, with whatever legal issues that may create.

As I said, I had never thought to go here. But if sport is expressive, then I believe my arguments that watching and cheering for sports gains added strength.

Real-Life Fantasy Sports Law: Enter the Lobbyists

Back in August, I blogged about the proliferation of the fantasy sports industry and whether certain fantasy sports games might violate state gambling laws. I also posted a draft of my newest law review article: "A Short Treatise on Fantasy Sports and the Law."

Since then, the Fantasy Sports Trade Association ("FSTA") has announced the hiring of Travis McCoy, a former aid to Senator John Boehner (R-Ohio), to serve as its first official lobbyist. According to USA Today, the FSTA "still is deciding what states it will target first."

The FSTA's hiring of a lobbyist is noteworthy on several levels. First, it signals an acknowledgement by the industry that certain state gambling laws are unfavorable to fantasy sports. In addition, it shows the early stages of collective action within the fantasy sports industry.

It will be interesting to see if the FSTA’s lobbying efforts will target only state gambling laws that disallow fantasy sports leagues, or if they will also target state laws that limit fantasy websites' administrative fees. For example, Montana law currently limits fantasy sports websites to charging 15% in administrative fees. This limit is probably unpopular with fantasy sports businesses. However, it is intended to protect fantasy participants.

NBA Players drop lawsuit in California - focus on lawsuit in Minnesota

A little bit of litigation news tonight.  I discuss it on NBA TV.

Also, it was announced that the Honorable U.S. District Judge Patrick J. Schiltz will be the judge for Carmelo Anthony et al. v. NBA. Schiltz, a graduate of Harvard Law School, is a former clerk to U.S. Justice Antonin Scalia and former professor at the University of Notre Dame Law School. A practicing attorney in Minnesota in 1995, Schiltz represented the T-Wolves in case re: relocation of team to New Orleans. In the case, the NBA Board of Governors rejected sale of T-Wolves to investor group, "Top Rank", in New Orleans. NBA then sued both T-Wolves and Top Rank, seeking declaratory order from court that T-Wolves owners could not sell team to Top Rank w/o league approval. Schiltz represented T-Wolves, which eventually joined the side of the NBA in the litigation. Not only was he lawyer in litigation over T-Wolves failed relocation to New Orleans, but Schiltz represented NFL in several cases, including Powell v. NFL and McNeil v. NFL. McNeil helped lead to new CBA between NFL and NFL players.

New Sports Law Scholarship

Recently published sports law scholarship includes:

Jessica L. Adair, In a league of their own: the case for intersex athletes, 18 SPORTS LAWYERS JOURNAL 121 (2011)

Adam Epstein & Bridget Niland, Exploring Ethical Issues and Examples by Using Sport, 13 ATLANTIC LAW JOURNAL 13 (2011)

James R. Andrews, Why are there so many injuries to our young athletes? Professionalization and specialization in youth sport, 40 UNIVERSITY OF BALTIMORE LAW REVIEW 575 (2011)

Ross Appel, Note, Head east, young man (and comparatively older men who are likely to languish in the minor leagues), 12 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 109 (2010)

Andrew D. Appleby, For the love of the game: the justification for tax exemption in intercollegiate athletics, 44 JOHN MARSHALL LAW REVIEW 179 (2010)

Jessica Baranko, Hear me roar: should universities use live animals as mascots?, 21 MARQUETTE SPORTS LAW REVIEW 599 (2011)

Jonathan Bateman, Book Note, Reviewing Billy Hawkins, The New Plantation: Black Athletes, College Sports, and Predominantly White NCAA Institutions, 21 MARQUETTE SPORTS LAW REVIEW 793 (2011)

Eric Blevins, College football’s BCS (bowl cartel system?): an examination of the Bowl Championship Series agreement under the Sherman Act, 18 SPORTS LAWYERS JOURNAL 153 (2011)

Victor Broccoli, Policing the digital wild West: NCAA recruiting regulations in the age of Facebook and Twitter, 18 SPORTS LAWYERS JOURNAL 43 (2011)

Christine A. Burns, Comment, Potential game changers only have eligibility left to suit up for a different kind of court: former student-athletes bring class action antitrust lawsuit against the NCAA, 6 JOURNAL OF BUSINESS AND TECHNOLOGY LAW 391 (2011)

Loftus C. Carson, II & Michelle A. Rinehart, The big business of college game day, 12 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 1 (2010)

Marc Charmatz, Lindy L. Hedges-Wright & Matthew Alex Ward, Personal foul: lack of captioning in football stadiums 45 VALPARAISO UNIVERSITY LAW REVIEW 967 (2011)

Josh Chetwynd, Clubhouse controversy: a study of dispute resolution processes between teammates in Major League baseball, 16 HARVARD NEGOTIATION LAW REVIEW 31 (2011)

Christopher B. Chuff, Comment, “Rolling the dice” on financial regulatory reform: gambling law as a framework for regulating structured investments, 18 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 569 (2011)

Jeremy Corapi, Note, Huddle up: using mediation to help settle the National Football League labor dispute, 21 FORDHAM INTELLECTUAL PROPERTY, MEDIA & ENTERTAINMENT LAW JOURNAL 789 (2011)

Joshua B. Couvillion, Note, Defending for its life: ChampionsWorld LLC v. United States Soccer Federation denies extending antitrust immunity to USSF in regulating professional soccer, 18 SPORTS LAWYERS JOURNAL 325 (2011)

Caitlin M. Cullitan, Note, “I’m his coach, not his father.” A Title IX analysis of sexual harassment in college sports, 12 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 53 (2010)

Elizabeth Hart Dahill, Note, Hosting the Games for all and by all: the right to adequate housing in Olympic host cities, 36 BROOKLYN JOURNAL OF INTERNATIONAL LAW 1111 (2011)

Darren Heitner & Jason Wolf, In Baseball's Best Interest?: A Discussion of the October 2010 MLBPA Regulations Governing Player Agents, 10 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 249 (2011)

Marc Edelman & Joseph A. Wacker, Collectively bargained age/education requirements: a source of antitrust risk for sports club-owners or labor risk for players unions?, 115 PENN STATE LAW REVIEW 341 (2010)

Marc Edelman, Does the NBA still have “market power?” Exploring the antitrust implications of an increasingly global market for men’s basketball player labor, 41 RUTGERS LAW JOURNAL 549 (2010)

Brad Ehrlichman, In this corner: an analysis of federal boxing legislation, 34 COLUMBIA JOURNAL OF LAW & ARTS 421 (2011)

Mitchell L. Engler, The untaxed king of South Beach: LeBron James and the NBA salary cap, 48 SAN DIEGO LAW REVIEW 601 (2011)

Natasha C. Farmer, Note, Jockey advertising regulations in horseracing, 3 KENTUCKY JOURNAL OF EQUINE, AGRICULTURAL & NATURAL RESOURCES LAW 103 (2010-2011)

Meir Feder, Is there life after death for sports league immunity? American Needle and beyond, 18 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 407 (2011)

Lauren Ferrante, Note, Two for one: how the NCAA rules do not adequately address package deals and a proposed rule to prohibit them, 12 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 77 (2010)

David Franklin, Note, League parity: bringing back unlicensed competition in the sports fan apparel market, 86 CHICAGO-KENT LAW REVIEW 987 (2011)

Laurie C. Frey, How the smallest market in professional sports had the easiest financial journey: the renovation of Lambeau Field, 18 SPORTS LAWYERS JOURNAL 259 (2011)

Kristina M. GerardiTackles that rattle the brain, 18 SPORTS LAWYERS JOURNAL 181 (2011)

Ariana E. Gillies, Comment, Not with a bang, but a whimper: Congress’s proposal to overturn the Supreme Court’s Leegin decision with the Discount Pricing Consumer Protection Act of 2009, 18 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 645 (2011)

Nathaniel Grow, Louisville v. Duke and its implications for breached college football scheduling agreements, 37 JOURNAL OF COLLEGE & UNIVERSITY LAW 239 (2011)

Jennifer Gustafson, Comment, Bronze, silver, or gold: does the International Olympic Committee deserve a medal for combating human trafficking in connection with the Olympic Games?, 41 CALIFORNIA WESTERN INTERNTAIONAL LAW JOURNAL 433 (2011)

Diane Heckman, The entrenchment of the glass sneaker ceiling: excavating forty-five years of sex discrimination involving educational athletic employment based on Title VII, Title IX and the Equal Pay Act, 18 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 429 (2011)

Dennis P. Hughes, Jr., Book Note, Reviewing Bill Madden, Steinbrenner: The Last Lion of Baseball, 21 MARQUETTE SPORTS LAW REVIEW 801 (2011)

Michelle R. Hull, Note, Sports leagues’ new social media policies: enforcement under copyright law and state law, 34 COLUMBIA JOURNAL OF LAW & ARTS 457 (2011)

Bryan T. Ikegami, Note, From dumpster to dicta: how the BALCO investigation created incurable violations of players' rights and how to prevent them,34 COLUMBIA JOURNAL OF LAW & ARTS 491 (2011)

Mohit Khare, Note, Foul ball! The need to alter current liability standards for spectator injuries at sporting events, 12 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 91 (2010)

Robb Kuczynski, Book Note, Reviewing Charles H. Martin, Benching Jim Crow: The Rise and Fall of the Color Line in Southern College Sports, 1890-1980, 21 MARQUETTE SPORTS LAW REVIEW 787 (2011)

Adam Harris Kurland, The prosecution of Michael Vick: of dogfighting, depravity, dual sovereignty, and “A Clockwork Orange,” 21 MARQUETTE SPORTS LAW REVIEW 465 (2011)

Christina Lembo, Comment, FIFA transfer regulations and UEFA player eligibility rules: major changes in European football and the negative effect on minors, 25 EMORY INTERNATIONAL LAW REVIEW 539 (2011)

Sheri Lipman, The story of the disappearing season: should strict liability be used in the NCAA infractions process?, 41 UNIVERSITY OF MEMPHIS LAW REVIEW 847 (2011)

James T. & Lisa P. Masteralexis, If you’re hurt, where is home? Recently drafted minor league baseball players are compelled to bring workers’ compensation action in team’s home state or in jurisdiction more favorable to employers, 21 MARQUETTE SPORTS LAW REVIEW 575 (2011)

Robert A. & Amy Christian McCormick, Major college sports: a modern apartheid, 12 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 13 (2010)

James T. McKeown, The economics of competitive balance: sports antitrust claims after American Needle, 21 MARQUETTE SPORTS LAW REVIEW 517 (2011)

Richard H. McLaren, Is sport losing its integrity?, 21 MARQUETTE SPORTS LAW REVIEW 551 (2011)

Mary Catherine Moore, Note, There is no “I” in NCAA: why college sports video games do not violate college athletes’ rights of publicity such to entitle them to compensation for use of their likenesses, 18 JOURNAL OF INTELLECTUAL PROPERTY LAW 269 (2010)

William E. Nesnidal, The fan can phenomenon: the scope of universities’ color schemes as trademarks in light of Budweiser’s team pride campaign, 18 SPORTS LAWYERS JOURNAL 283 (2011)

John V. O’Grady, Casenote, The end of indecency? The Second Circuit invalidates the FCC’s indecency policy in Fox Television Stations, Inc. v. FCC, 18 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 527 (2011)

Elizabeth Odian, Preventing Sonicsgate: the ongoing problem of
franchise relocation, 18 SPORTS LAWYERS JOURNAL 67 (2011)

David A. Palanzo, Comment, Safety squeeze: banning non-wood bats is not the answer to amateur baseball’s bat problem, 51 JURIMETRICS JOURNAL 319 (2011)

R. Alexander Payne, Note, Rebuilding the prevent defense: why unethical agents continue to score and what can be done to change the game, 13 VANDERBILT JOURNAL OF ENTERTAINMENT & TECHNOLOGY LAW 657 (2011)

David Pepper, Comment, Anand v. Kapoor, 55 NEW YORK LAW SCHOOL LAW REVIEW 1191-1211 (2010/11)

Christopher Powell, Comment, Premises liability in California: chilling the diffusion of bicycle motocross, 47 CALIFORNIA WESTERN LAW REVIEW 329 (2011)

Timothy Poydenis, The unfair treatment of Dominican-born baseball players: how Major League Baseball abuses the current system and why it should implement a worldwide draft in 2012, 18 SPORTS LAWYERS JOURNAL 305 (2011)

Erica N. Reib, Comment, Ante up or fold: what should be done about gambling in college sports?, 21 MARQUETTE SPORTS LAW REVIEW 621 (2011)

Ryan M. Rodenberg & Andrea N. Eagleman, Uneven bars: age rules, antitrust, and amateurism in women’s gymnastics, 40 UNIVERSITY OF BALTIMORE LAW REVIEW 587 (2011)

Chris Sagers, Why Copperweld was actually kind of dumb: sound, fury and the once and still missing antitrust theory of the firm, 18 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 377 (2011)

Michael C. Shull, Comment, Biting the hand that feeds: how trademark protection might threaten school spirit, 21 MARQUETTE SPORTS LAW REVIEW 641-665 (2011)

Rachel D. Solomon, Note, Cuban baseball players, the unlucky ones: United States-Cuban professional baseball relations should be an integral part of the United States-Cuba relationship, 10 JOURNAL OF INTERNATIONAL BUSINESS AND LAW 153 (2011)

Patrick Sterk, To pray or to play: religious discrimination in the scheduling of interscholastic athletic events, 18 SPORTS LAWYERS JOURNAL 235 (2011)

Alexander F. Tilton, Note, Mayer v. Belichick: “spygate” scandal is not the court’s concern, 18 SPORTS LAWYERS JOURNAL 341 (2011)

Brian Welch, Comment, Unconscionable amateurism: how the NCAA violates antitrust by forcing athletes to sign away their image rights, 44 JOHN MARSHALL LAW REVIEW 533 (2011)

Kevin W. Wells, Labor relations in the National Football League: a historical and legal perspective, 18 SPORTS LAWYERS JOURNAL 93 (2011)

Gregory J. Werden, American Needle and the application of the Sherman Act to professional sports leagues, 18 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 395 (2011)

Matthew A. Westover, Comment, The breaking point: examining the potential liability of maple baseball bat manufacturers for injuries caused by broken maple baseball bats, 115 PENN STATE LAW REVIEW 517 (2010)

Ulysses S. Wilson, Comment. The standard of care between coparticipants in mixed martial arts: why recklessness should ‘submit’ to the ordinary negligence standard, 20 WIDENER LAW JOURNAL 375 (2011)

Roberta Furst Wolf, Note. Conflicting anti-doping laws in professional sports: collective bargaining agreements v. state law, 34 SEATTLE UNIVERSITY LAW REVIEW 1605 (2011)

Daniel J. Zajda, A true home field advantage: a striking coincidence in the criminal prosecutions of professional athletes for in-game violence, 18 SPORTS LAWYERS JOURNAL 1 (2011)

Michael K. Zitelli, The controversy ensues: how Major League Baseball’s use of DNA testing is a matter for concern under the Genetic Information Non-Discrimination Act, 18 SPORTS LAWYERS JOURNAL 21 (2011)

Thom Singer on Web 2.0 TV

At the 2011 Innotech Conference in Austin I was interviewed by Web2Point0.tv about the future of social and mobile in regards to your network.  Technologies are changing fast, but who we are as people has not changed.  The way we relate to other humans and how we decide whom we want in our lives is still very much the same.


Thom Singer President of NYP Speakers from BestFit Mobile on Vimeo.


Invest time and choose people.  While having a cool online tool that links you to others is neat... it does not equal the cultivation of a long-term and mutually beneficial relationship.

(If you cannot see the above video, here is the link:  http://web2point0.tv/)

Have A Great Day

thom singer

University of Baltimore Law Professor Dionne Koller on Penn State Scandal

There have been a number of provocative and well-argued commentaries on the Penn State scandal.  University of Baltimore School of Law Professor Dionne Koller provides another one and from a vantage point that has not been raised: It's a Guy Thing at Penn State, and That's a Problem

Temple Law Professor Jermei Duru on Penn State scandal

Great piece on The Post Game by Professor Jeremi Duru on the Penn State scandal - Explaining Penn State Scandal To My Dad.

NY Times Article on becoming a law professor: Is it like a pro sports draft?

Very provocative article today by David Segal of the NY Times.  Among many points critical of law school teaching and of allocation of law school resources - and students' tuition dollars - on arguably irrelevant or ponderous legal scholarship, he makes an apt comparison between how one becomes a law professor and how a prospect participates in a pro sports draft:

The Prestige Game

About half of all law school hiring begins at the Faculty Recruitment Conference, widely known as the meat market, held by the Association of American Law Schools. It is conducted every year at the Marriott in the Woodley Park neighborhood of Washington.

At this year’s conference, in October, nearly 500 aspiring law professors turned up for interviews with 165 law schools. Like the draft of every professional sport, there are superstars here and for two days they were hotly pursued. At the top of the pile were former Supreme Court clerks. Just under them were candidates with both a J.D. and a Ph.D. in another discipline. Law schools, especially those in the upper echelons, have been smitten by Ph.D.-J.D.’s for more than a decade.

Ori J. Herstein, who studied philosophy in grad school and is a doctor in the science of law, says that “an economics Ph.D. is the most valuable,” and that “the further away you get from the humanities the better.”

Mr. Herstein was sitting in the Marriott lobby between interviews. Israeli-born and cheerful in a boyishly wonky way, he has a résumé that seems custom-built to tantalize law school recruiters. He has two degrees from Columbia, which, along with a handful of other elite schools — most notably Yale — has become a farm team for the credential-obsessed legal academy. He has already published a handful of  law review articles with promisingly esoteric titles (“Historic Injustice and the Non-Identity Problem: The Limitations of the Subsequent-Wrong Solution and Towards a New Solution”) and has submitted another that sounds perfectly inscrutable (“Why Nonexistent People Do Not Have Zero Well-Being but Rather No Well-Being”).

To read this article, click here.

Demand For Your Products or Services

Identifying market demand is important for success as an entrepreneur.  Many people have had great ideas without ever finding customers who are willing and able to pay for their products or services.  While it is nice to imagine building a better mousetrap and having the world beat a path to your door, history has shown us many technologically superior products that never won their share of the market.  It has been argued that BetaMax was the better video player, but VHS became the industry standard for years.

For a company to be successful it must connect the products and services to customers.  This involves more than just providing quality.  There must be an understanding of the marketplace, consumer demographics, competition, and the growth potential.  Apple reached the top because their company culture went beyond just shipping cool products.  Their deep commitment to innovation, design, and the customer experience combined to make profits soar.

Creating demand is more than advertising and market research.  Advertising alone does not create demand, but instead brings attention of a product or service to the greater population.  Creating demand is difficult and leaves many start ups lost to ever reach revenue goals.  Customers are not always aware that they want a new product and thus the marketing strategies for the entrepreneur must be intertwined with education, product strategy and all aspects of the marketing launch.  Henry Ford famously said: "If I had asked people what they wanted, they would have said faster horses.”

Commoditization is another problem that faces many companies.  Too many products and services appear to be similar solutions as what is offered by their competition.  Making matters worse is that all the advertising and marketing within a single industry often looks the same.  Telling consumers about yourself does not allow the solution to stand out, as it gets lost in the shuffle of "too much noise". Showing always is better than telling, but this is not easy in a world with limited access to they eyes and ears of the customers. This is where creating demand through word-of-mouth marketing and creating legions of customers as "fans" will have a real impact.

The problem is that you cannot create "fans" simply by having a Facebook page or a Twitter account.  Getting others to talk about your company means you have to be truly unique and provide experiences that make people feel good about being part of your community.  Getting beyond the "same -old / same - old" is difficult, and rarely happens by accident.  However, just because it is hard, does not mean it is impossible.

Entrepreneurs should make it a priority to bust out of the impression of being a commodity.  There is always more demand where there is something unique.  The trick here is to make sure what the entrepreneur sees as important and unique is the same thing that the customer values.

To successfully create demand for you products or services you must create an integrated marketing strategy that combines educating the consumer, cultivating visibility and delivering at the highest level every time.  Marketing research and outreach can determine which products or services may be of interest to customers, but there is an element of risk that leads to the top levels of success.  This process should not stop once you company achieves success, as the marketplace and customer demands will change, and successful entrepreneurs are always paying attention and seeking ways to get out in front of new trends.

Establish strong customer relationships and create a reputation of being an industry leader that provides value.  Identify who is your customer, provide them with value, keep them engaged, and get them to be advocates for your company and you will discover more demand and profitability.

Have A Great Day

thom singer

NBA's "one and done" rule: if lockout persists, will someone challenge rule?

Tom Reed of the Cleveland Plain Dealer explores the possibility of the NBA holding a draft during an extended lockout.  The draft and particularly the "one and done" eligibility rule -- which requires that U.S. players be 19-years-old and one year removed from high school -- would be subject to antitrust challenge, as they would no longer be borne from collective bargaining.  Reed interviews Alan Milstein, Sonny Vaccaro and me on the topic.

For a great discussion on the empirical analysis of players who have jumped from high school to the NBA, see Zach Lowe's recent SI column. 

Related point: there is a very good chance that when the lockout is ultimately resolved, and a new CBA is in place, the eligibility rule will be raised to 20-years-old and two years removed from high school.  Whether that will motivate players to skip what would be their freshman and sophomore years in college to play professionally in Europe for a couple of years remains to be seen.

The Penn State Debate: Are NCAA Sanctions Inevitable?

Pennsylvania State University (“Penn State”) has always been an institution of great prestige and moral character, but within a few short days, the institution where the patriarchal football coach preached, “success with honor,” had been utterly shamed and dishonored. Now, it appears that the NCAA may be piling on. 

By now, we’ve all heard the disturbing allegations against former defensive coordinator, Jerry Sandusky, and details continue to emerge regarding the indefensible cover up of these egregious acts. Penn State has already taken steps towards remedying this situation by firing Coach Joe Paterno and President Graham Spanier, and accepting the resignations of Athletic Director Tim Curley and Vice President Gary Schultz. These actions taken by the Board of Trustees have elicited mixed emotions from the community. Penn State students rioted in response to Paterno’s firing, yet just a few days later, a moment of silence for the victims was held at the outset of the Penn State Nebraska game. As evidenced by their tweets, Penn State players expressed empathy for the victims, but were also saddened by the loss of their coach. In a situation such as this, with so many details yet to be uncovered, it seems as though no one really knows how to act. One thing is certain, however, and that’s that those responsible will be punished.

The criminal and civil consequences notwithstanding, the question has been asked: what would the NCAA do? On Friday, NCAA President Mark Emmert provided an answer. Emmert announced in a letter to new Penn State President Rod Erickson that the NCAA will conduct an investigation into whether Penn State failed to exercise institutional control over its intercollegiate athletics programs. The NCAA may look into numerous provisions in its investigation. Bylaw 10.1  lists examples of what the NCAA considers unethical conduct. The bylaw states that the unethical conduct is “not limited to” the conduct provided in the examples. The NCAA could use this non-exhaustive clause to find the conduct of Sandusky and others to be unethical, and therefore, punishable by the NCAA. Furthermore, bylaw 11.1 details the conduct of athletics personnel and states that coaches must act with honesty “at all times.” Certainly the requirement of forthrightness is not limited solely to the field of play or the purely athletic context. Moreover, bylaw 11.1.2.1 states that it is the responsibility of the head coach to monitor the conduct of all assistant coaches and administrators to ensure an atmosphere of compliance. Overall, if it is discovered that administrators knew of these acts and either ignored or deliberately concealed the heinous conduct, Penn State could face the dreaded charge of “lack of institutional control.”

To be sure, any NCAA sanctions that may stem from this incident are of tertiary concern in comparison to bringing those responsible to justice and attaining some semblance of retribution for the victims, but Penn State administrators have undoubtedly been cognizant of this possibility. There are no provisions that specifically prohibit Sandusky’s alleged conduct or the covering up of such conduct, as such should simply be a matter of human decency, but if the NCAA does decide to issue sanctions against Penn State, no one will question its justification for doing so.

Yet, it is conceivable that the NCAA will do nothing here, and it is likely to let law enforcement run its course before making any definitive conclusions. It is worth noting that this case does not involve any violations on the part of the student-athletes, and the NCAA may be reluctant to impose sanctions because ultimately, the student-athletes will be most affected. Additionally, the NCAA has been historically leery to take action when a serious criminal investigation is at issue, with the Duke Lacrosse case being a recent example of this approach. The NCAA, though, may simply be waiting for the full array of facts before taking action.

Even in the wake of the recent slew of scandals transpiring in collegiate athletics, this scandal is beyond shameful when one considers the innocent lives affected and the misdeeds of the adults who were entrusted with their care. Ironically, in August 2011, former Penn State President, Graham Spanier commented on the U’s violations stating, “We absolutely must put this climate of rule-breaking behind us.” On November 11, Penn State’s Board of Trustees created a Special Committee for the sole purpose of investigating this scandal. According to the Board, the Committee will be given whatever resources necessary to make sure that an incident like this never happens again, and the Committee will be charged with holding those responsible fully accountable. It seems as though Penn State will have to heed the advice of its former President and mend its reputation. A reputation that is undoubtedly far more tarnished than any stain that could be caused by NCAA sanctions.

Hat tip to law clerks Brian Konkel and Gabriela Schultz for their work on this piece.

Want To Be Better At Public Speaking? -- Listen to Country Music

I was not a fan of Country Music.  I grew up in Los Angeles in the 1970s and 1980s, and it was just not a "Country Music Town".  While in college (in San Diego) I never even saw a country band play anywhere.  Nobody I new listened to the genre.  (I have memories of some Kenny Rogers being blasted on a camping trip once, but not sure who was responsible for that cassette tape).  After I moved to Texas I kept my musical tastes tied to Rock, Pop, Oldies and a little Jazz.  No Country!  

However, as a professional speaker I have learned that successful oratory is tied to the ability to tell a story.  Regardless of the topic, if a speaker cannot reach the people listening, their whole presentation can fall flat.  The same is true for musicians.  While all types of music tell stories, there is no better way to learn how to clearly and quickly weave a captivating tale than listening to the master song writers from Country Music. 

Two years ago I began listening to a local country station as a means to understanding how to connect the power of a story to the message of a speech.  The songs are more than entertainment, they are windows into the soul. In just a few minutes we can see the mental pictures and be transported to a different place and time.  We are allowed to share the experiences of others and thus we become more connected to the greater world view.

Too many speakers take the stage and give a data dump of information.  They fail to see themselves as needing to entertain and tell a story.  Some actively shun the idea of being more than a brilliant mind that barfs knowledge.  

While statistics, graphs and spreadsheets are useful, they are not enough to grip an audience and cause transformation.  To have a real impact on people we must connect to them at a level of the soul.  Ancient tribal leaders did not use pie charts to inspire and educate people, but instead they told relevant stories.

Every presentation should have a story.  If the person speaking has no personal connection to the topic then they are simply delivering a book report. In a world filled with so much noise and little differentiation, your story is the unique stamp that takes ideas beyond a passing string of words and implants them forever in the memory of the audience.

If you want to become a better storyteller, and thus improve your presentation skills, tune into a little Country Music and do more than tap your foot to the beat.  Dissect the words and seek out how that short story set to some guitar strumming becomes a movie that plays out behind your eyes.  Over time you will begin to see the ways that Country Music will make you better at public speaking.

Have A Great Day

thom singer 

Sports Law Internship Opportunity

The Arizona Diamondbacks of Major League Baseball are seeking a second or third year law student for an internship in the team's legal department this upcoming spring semester. Those interested in the position can learn more here:

http://baseballjobs.teamworkonline.com/teamwork/r.cfm?i=39878

Sting Concert in Houston

Last night my wife and I went to watch Sting perform at the Verizon Wireless Theatre in Houston.

The first time I saw Sting was in 1991 at the Concord Pavilion in the Bay Area (we have been to two other Sting concerts in-between).

Many things have changed over 20 years:

• Concert venues are now named after corporate sponsors, not the city where they are located.
• In 1991 Sting was 40 years old and his audience was young (umm, myself included).
• Today he is 60 years old, and so was most of the audience. (Although we should all hope to be in that good of shape at sixty).

Some things remained the same over 20 years:

• Sting puts on one hell of a great show.
• His music is timeless.
• My wife still looks amazingly hot dancing at a concert.

It was a quick overnight trip to Houston, but we had a great time at dinner and the concert.  The concert was her birthday present (The B-day is in September) from our kids.  They sent us to dinner and the concert while they stayed with the visiting grand-parents.  Oh, and when I say it was a gift from the kids, they still made me pay for the tickets!   (I also had a meeting with a potential client while in Houston).

Have A Great Day

thom singer

Brainstorming Is Important To Entrepreneurial Success

Ideas are paramount to success for an entrepreneur.  However, not all ideas are the right ideas for starting a business or tackling challenging problems.

Some businesses are spawned from a single idea. However, most who achieve sustainable success will need to consistently be identifying new concepts, products, services, and ways to overcome obstacles.  A one hit wonder in the world of business ideas is no different than a rock and roll band who has just a single song on the charts.  Entrepreneurs must always be on the look out for the "new thing" either to grow their existing company or to launch their next venture.

Brainstorming can take many different forms.  The concept was popularized in the 1950's and 1960's by Alex Osborn, in his book, "Applied Imagination".  It is a process for developing creative solutions to problems and Osborn proposed that teams could double their creative output through brainstorming techniques.

When a team of people are working together and committed to discovering powerful solutions, the end result is often stronger than any one person could have achieved alone.  Effective entrepreneurs do not operating in a vacuum.   They are surrounded by people who allow them to expand beyond their own limitations and weave the best thoughts together and create powerful solutions.

Brainstorming involves a group of people focusing on a problem, and then coming up with as many solutions as possible.  There are no bad ideas and the purpose is to push the creative thought to beyond the standards.  Each person can expand on the ideas of the next and combine concepts while creating new possibilities.

The process can be both formal and informal and it is important in the formation stage of a business as well as when tackling issues that can stall a company's progress and growth.  To continually have success and entrepreneur must always be seeking ideas and formulating plans.  Getting your whole team involved will have the added impact of creating a culture where everyone is looking to add to the greater good for the company.

Once ideas are uncovered there must be a process for deciding which should be acted upon. There is neither the time nor resources available to act upon every idea that comes along for a business, and not all ideas will help move the company toward its ultimate goals.  The entrepreneur's experience, instincts and trusted advisers all play a role in deciding how to implement actions. In finding success the entrepreneur must be willing to take the risks and go for blazing the new trails, as sometimes they will chase the wrong ideas and make mistakes.  

Discovering the ideas, while important, is only part of the journey for anyone who is looking to grow a business.  But without the ideas, their is no starting place from which to build.

Have A Great Day.

thom singer

Coming Soon: NBA Forum Wars (and Why Choice of Venue will Matter)

By now, most readers are aware of three antitrust lawsuits that seek to address whether the NBA's league-wide lockout represents an illegal group boycott under Section 1 of the Sherman Act:

- Butler v. National Basketball Association (filed by NBA players against the league on Nov. 15, 2011 in the U.S. District Court for the District of Minnesota, which is part of the 8th Circuit).

- Anthony v. National Basketball Association (filed by NBA players against the league on Nov. 15, 2011 in the U.S. District Court for the Northern District of California, which is part of the 9th Circuit).

- National Basketball Association v. National Basketball Players Association (filed as a declaratory judgment suit by the NBA teams against the players on Aug. 2, 2011 in the U.S. District Court for the Southern District of New York, which is part of the 2d. Circuit).

Soon, a battle will likely emerge between the parties about which forum should hear this dispute. In a nutshell, here are two reasons why the ultimate forum might affect the case's result.

(1) Differences in Interpreting Antitrust Law's Non-Statutory Labor Exemption Make the 8th and 9th Circuits More Favorable to the Players than the 2d. Cir.


One of the key defenses in any labor-side antitrust challenge is the non-statutory labor exemption: a defense arguing that a particular claim is preempted from antitrust scrutiny by labor law. However, not all circuits apply the non-statutory labor exemption in the same manner.

In both the 8th and 9th Circuits, courts have repeatedly held that the non-statutory labor exemption shields from antitrust scrutiny only activities that (1) involve mandatory subjects of bargaining, (2) primarily affect the parties involved, and (3) are reached through bona fide arms' length bargaining. Based on this standard, the U.S. District Court for the District of Minnesota concluded in McNeil v. Nat'l Football League, 790 F. Supp. 871 (D. Minn. 1991) that the non-statutory labor exemption cannot apply after a union disclaims interest: presumably because after a disclaimer the second and third prongs of the non-statutory labor exemption cannot be met.

By contrast, the U.S. Court of Appeals for the Second Circuit in Clarett v. Nat'l Football League rejected the 8th & 9th Circuit definition of the non-statutory labor exemption in favor of a far broader non-statutory labor exemption. Thus, in the Second Circuit, the mere act of disclaiming union interest might not impose immediate liability on a sports league for maintaining terms originally implemented before such a disclaimer.

For more on the differences in interpreting the non-statutory labor exemption in the 2d. Cir. from the 8th/9th Cir., see my law review articles addressing the circuit split in the context of age requirements here and here, and Professor McCann's articles discussing this split in the context of age requirements here and here.

(2) Differences in Interpreting "Market Power" in a Labor-Side Antitrust Case

In addition, the NBA teams may seek to defend their league-wide lockout under antitrust law by arguing that the relevant market for professional basketball labor is worldwide and that within a worldwide market the NBA teams lack the requisite "market power" to illegally restrain trade under the Rule of Reason. In determining whether the relevant geographic market for men's basketball labor is limited to the United States or extends to the entire world, a court would likely consider within what range the movement of workers is "practicable."

While many NBA players' lack of interest in playing overseas may seem to indicate that doing so is not practicable and thus to relevant market should be confined to the U.S. the U.S. Court of Appeals for the Ninth Circuit case Tanaka v. University of Southern California, 252 F.3d 1059 (9th Cir. 2001) seems to go against that point. There, the court disregarded a female collegiate soccer player's preference to only accept employment near her family's home in Los Angeles in favor of the view that the market for her services extended to a greater geographic region.

While the court's holding in Tanaka does not directly bar the Ninth Circuit from finding a market for men's basketball labor that is limited to the U.S., it seems to introduce one more bar for the players' lawyers to overcome.

For more on the NBA's potential "lack of market power" defense, see my recent Rutgers Law Journal article Does the NBA Still Have 'Market Power?' Exploring the Antitrust Implications of an Increasingly Global Market for Men's Basketball Player Labor.

Business Meeting Facilitation - 2012 Team Kick-Off

Is your company or law firm planning a year end meeting or 2012 kick off?

Would the outcome be positively impacted with a facilitator to jump start the conversation,  DiSC profile assessments, and a business development & sales focus?

Let's talk.  ;-)

thom singer
thom (at) thomsinger.com
(512) 970-0398

Questioning the NBA Players' Litigation Strategy

NBA players filed two different antitrust lawsuits against the NBA owners on Tuesday, one in the U.S. District Court for the Northern District of California, and one in the District for Minnesota. Although I haven't yet been able to track down a copy of either complaint online, the players' attorney David Boies has stated that he doesn't intend to pursue a preliminary injunction lifting the NBA's lockout in either case. Boies, of course, previously represented the NFL owners in the Brady v. NFL litigation this past spring, where he successfully persuaded a majority of the Eighth Circuit panel that a preliminary injunction blocking a lockout is improper under the Norris-LaGuardia Act.

Despite the Eighth Circuit's decision in Brady, I can't help but think that the NBA players are making a mistake by not seeking a preliminary injunction to lift the lockout. Although the NFL players ultimately lost on the injunction issue at the Eighth Circuit, they were nevertheless able to convince the district court judge, as well as one of the three appellate judges, that a preliminary injunction lifting a lockout could issue under the Norris-LaGuardia Act. And even the majority of the Eighth Circuit panel believed that injunctive relief might be appropriate to temporarily lift the lockout for at least a segment of the players (i.e., those not currently under contract with an NFL team). Therefore, there is a legitimate chance that a different judge (and perhaps a panel of the Ninth Circuit) would be willing to grant the NBA players preliminary injunctive relief preventing the NBA owners from continuing their lockout.

Given this possibility, I don't see why the NBA players wouldn't at least seek a preliminary injunction. A court order lifting the lockout would give the players perhaps the greatest bargaining leverage they could hope to achieve from a lawsuit against the owners. In turn, an injunction would provide players with the best chance of reaching a favorable resolution of the dispute in time to save at least part of the season. Meanwhile, the potential downside of seeking a preliminary injunction is minimal, since a refusal by the court would merely maintain the status quo.

Consequently, I don't understand the logic behind not seeking a preliminary injunction. What am I missing here?

New Sports Illustrated Column: Legal Implications of Jerry Sanduskys' Interview with Bob Costas

I have a new SI column on the Penn State scandal.  Here is an excerpt:

The problem with Sandusky's legal strategy is not only that a growing number of men independently charge that Sandusky raped them while they were children, but that also admitting to strange and lewd behavior with children would likely make jurors highly suspicious of him and more inclined to convict him of sexual assault. Put differently, it's hard to believe there is a merely a misunderstanding between Sandusky's recollection of the facts and that of the alleged victims when Sandusky freely admits to showing terrible judgment.

The interview also reflects poorly on Penn State. Sandusky admitted to behavior that was far from discreet and was sure to attract the attention of others. Along those lines, did no one at Penn State find it disconcerting that Sandusky was showering with boys? Did any school official notice any unusual "touching" by Sandusky? Joe Paterno's insistence that "we were all fooled" seems even more hollow after Sandusky's interview.

To read the rest of the column, click here.

Does Anyone Really Use LinkedIn?

I was recently asked "Does anyone use LinkedIn?"

The person doing the asking was trying to rationalize if their firm bio was enough of an internet presence.  He could not see why he would need more.  He did not like social media, and was hoping to just avoid LinkedIn altogether.

I believe many savvy business professionals are using LinkedIn.  It is a valuable resource for you before any meeting you have with someone you have never met before (regardless of the purpose of the meeting).

My advice is you should always check out the other person's LinkedIn profile.  The purpose is not to be a weird stalker, but instead it allows you to find tid-bits of information and common connections that can jump start your conversation.  Who do you both know?  Where did they go to college?  What companies did they work for in the past?  Etc....

You should also assume that those you meet with are doing their homework on you before you get together.  Make it easy for them to find out about you.  People expect to connect the dots.  Again, this is not stalking, but instead shows that they are invested in the meeting by doing the pre-work.

I recently had coffee with a friend-of-a-friend who wanted to pick my brain about career advice.  I had looked her up on LinkedIn, but she had no profile.  During our chat I mentioned something about one of my books and her response was "You wrote a book?".   I could not figure out how we ended up in a meeting where she wanted to pick my brain without them knowing anything about me.  I began to feel our time together was a little one sided.  I am always happy to help people, but she did not know who I was or why her friend recommended we have a conversation.

In today's social media world you should be utilizing all the tools available.  Gathering information will allow you to discover common interests and things that matter to the other person.  In days when there is too little time for chit-chat, LinkedIn can be the catalyst that allows you to create a faster bond.

Yes, people do really use LinkedIn.

Is your profile informative?  Are you using LinkedIn before your meetings?

Your thoughts?

Have A Great Day.

thom singer

Excited To Be Speaking At The 2012 PCMA Convening Leaders Conference

I am very excited to be speaking for the Professional Convention Management Association (PCMA) at their annual "Convening Leaders" conference in 2012.

I will be the keynote speaker for their "Student Union" program, addressing the large gathering of college students (mostly Hospitality Majors from a variety of university programs) who will be an active part of the convention.  I am impressed with PCMA's commitment to the next generation who will work in the meetings industry, and I look forward to serving this group of future leaders.

I will also be actively involved in the "Learning Lounge" throughout the event.  This alternative educational venue offers a variety of choices and will be open daily throughout Convening Leaders.  For those seeking a sustenance bite, a bite-size learning or to meetup with peeps - this your prime-time option.

The Learning Lounge allows customization of the learning experience with choices from formal and informal presentations to hands-on demos and shared-interest discussion forums. Over the course of the conference the Learning Lounge will host three days of education in the four distinct HUBS and play host to 150+ short, succinct options designed to meet your learning and pain point needs.

I am honored to be working with PCMA and look forward to seeing many of my friends and meeting many more amazing people.  If you will be attending the 2012 Convening Leaders event, I hope you will come by the "Student Union" or the "Learning Lounge" and say HELLO!

Have A Great Day.

thom singer
www.ConferenceCatalyst.com

Breaking News: NBA Players disclaim interest:: Legal Analysis

The 2011-12 NBA season just became less likely.  I talk to NBA TV about what today's big news means.  And then later in the evening I spoke with Dennis 3D Scott, Stan Kasten, David Aldridge and Matt Winer.

Also, here is my Sports Illustrated video on this topic, with dramatic music in the background:

Because Nobody Else Does It That Way

I was talking with a business organization that was struggling with the best way to schedule their monthly networking breakfasts.  They were receiving complaints about their 7:00 AM start time being too early, but kicking off at 7:30 would push their ending to 9:30 (which means attendees cannot get back to their office until nearly 10 AM).

A first thought was to cut the program length to 90 minutes.  They believed this is too short to have time for networking, announcements and a full program.

My other suggestion was splitting the difference --  beginning at 7:15... and ending at 9:00.  Seemed like a good way to allow people time to arrive, and still giving them the opportunity to get everything done (with a shaving of 15 minutes off the program as well).

Oh the horror.  You would have thought I suggested they all attend their meeting naked.

While I was not in the meeting where these ideas were discussed, one person told me the group felt that a 7:15 AM start time was "weird".  One of their people made a bold statement that "nobody starts a meeting on the quarter hour" (nobody?...Ummmm, I have seen it done, so that is not true).  Additionally they felt that the length of 1:45 would confuse the people. 

In the end they kept the schedule of 7:00 - 9:00 AM.

"Because nobody else does it that way" is a lame argument.  In fact going away from the standard is often the best way to create.  

I just finished reading the Steve Jobs biography by Walter Issacson.  The book is a fantastic read (it shows the genius and demons that co-existed in Jobs).  I am confident that the Apple co-founder, or anyone else who has ever made a meaningful difference, never had the "we don't do it that way" knee-jerk reaction.

I wonder what would have happened if Jobs had thought it was weird to combine the music player and a phone.  Think of the result if he had feared others would view the iPad as abnormal.  Apple has topped the Fortune 500 exactly because they sought new ways to do things.  Weird or different are not bad things if you want to stand out from the competition.

I am not comparing a 7:15 AM start time for a networking breakfast to the launching of the iTunes Store. However, if you cannot get beyond how a quarter hour start time and a 1:45 program might be judged, you will never present a program that has lasting impact on your audience.  

I believe most of us struggle in finding ways to uniquely stand out from our competition.  It is hard to create, and comfortable to stay close to the status quo.  It can be worse when you go with your new ideas, and others question your decisions along the way.  You must have both vision and fortitude when you do things differently.

Have A Great Day.

thom singer

Follow the Money

Here's the question. Is the Penn State scandal a sports law issue or simply a criminal matter? Consider this scenario. A young muscular graduate student in Biology wanders into a lab and sees an aging Assistant Professor raping a ten year old boy. Is there any doubt the perpetrator, if aware he had been seen, would immediately stop, the witness would intervene, the cops would be called, the Professor would be put away, and the University and its President would not be implicated in the least?

Why did that not occur here? Only one answer: the money generated by the plantation system known as the NCAA. For Penn State that is 100 million dollars, 75 million in football revenue and 25 million in assorted generic memorabilia like sweatshirts mostly attributed to the football program.

One telling fact that has not been given much attention. Look at the chain of command that failed miserably in this case. McQuery tells Paterno the coach. He tells Curley the Athletic Director. Who does he tell? Gary Schultz. His title? Vice President of Business and Finance. Among the many unanswered questions, who else knew? Typically the AD must report any potentially troubling incidents to the Conference Commissioner. Did Curley do that here? If not, why not?

UPDATE from Mike McCann: Below are some excellent comments responding to my Facebook post on Follow the Money:


Mark McKenna [Notre Dame Law Professor] 
 Is there any doubt the grad student would intervene? Absolutely there is. There has been way too much of the "this is because it was football." if anyone doesn't think a grad student dependent on a star faculty member for his future might have acted just like McQuery did, they are kidding themselves. And kidding oneself this way is dangerous because it allows all of us off the hook too easily by making this seem like a problem of some "other" culture.

Afi Johnson-Parris  [Attorney in Greensboro, North Carolina]
Is it too much to expect that he would have had even an ounce of courage to make a noise from the shadows, flicked the lights, called out "is anyone there?," something, anything to make it stop, anything but walking away. How do you just walk away? I agree, that has less to do with football than it does to do with courage. Funny, they're always saying that courage is what football is about.

Mark McKenna 
No, Afi, clearly it's not too much to ask. I wasn't in any way making an excuse for him. I was only pointing out that lots of people have made themselves feel better about this situation by pretending that this is just something about the culture of some institution rather than a sad, but universal, fact about human beings. They protect themselves and the institutions they believe in first. See also, the Catholic Church.

Michael McCann 
Not that this would have likely stopped what happened at Penn State, but I think a better model to college sports would be for there to be an independent branch of a school, sort of like an independent federal agency that's to some extent insulated from the executive branch, that regulates the athletic departments. It may moderate the "winning at all costs, everything else be damned" approach we see at too many schools. In terms of Mark and Afi's larger points, I agree that this story is about much more than why persons in a big time sports program respond so poorly to a fellow human in crisis. It also says, as Mark notes, that allegiance to institutions too often trumps allegiance to basic morality. Perhaps it also says that instead of these persons lacking humanity it's that humanity is less than what we expect or hope for.

Mark McKenna
I can't bring myself to "like" your last post, Mike, but the last sentence is right on.

Alan Milstein 
Mark, I just have to disagree. I do not think it is the norm for someone to not do anything when confronted by an old man raping a ten year old boy. Even if it is a superior, you would have to believe in an academic setting the grad student would believe the chairman of the department and everyone else would come down hard on the offender. Mainly because there is nothing to lose. That's the difference here. There was something to lose if they didn't cover it up. Millions of dollars. Incredibly, all they did was take away his locker room privileges, presumably so he could do his business elsewhere just not in the Penn State locker room.

Mark McKenna 
No, I wouldn't believe that people would act differently in another academic setting. People act selfishly whenever there is a lot for them to lose. There is a ton to lose when a graduate student reveals something about a supervisor they depend on (and grad students depend enormously on their advisors). There is a ton to lose when speaking up would force you to confront the failures of an institution you believe in. The statistics on abuse are staggering, and they couldn't be even remotely right if you were right that people generally speak up and stop things. They don't. I guarantee you that there has been undisclosed abuse in virtually any organization. This is not an apology - it's absolutely the wrong thing. But I think we delude ourselves by pretending it couldn't happen in our own back yard.

Jason Chung For me, the fact that people some people honestly say that they would have also walked away or merely alerted their superior when confronted with a similar situation is the greatest indictment of our culture.

Alan Milstein And your analogy to the Catholic Church doesn't help your point. The same forces are at work. But outside of such institutions like Penn State and the Catholic Church, where most of us reside, I have to believe most people would do the right thing and stop the brutalization. It's a ten year old boy, for God's sake. People by and large are good not bad, moral not immoral, caring not uncaring.

Mark McKenna I wish it were so, Alan. But I don't think it is. If you want to exclude all the institutions because the same forces are at work, then I think you have a long list to exclude. And that's my point.

Jason Chung
Mark, I understand your point - in today's society where everyone is looking to get ahead, there is sometimes tension between doing the right thing and doing what seems right for you personally. Sometimes, people do the latter instead of the former. Understood. However, I think that Alan's point is that the cult of big-money sports amplifies what we would consider "acceptable" in the realm of distasteful things one would tolerate. I'm not sure that I entirely agree with that assessment but I do acknowledge that sports, and particularly collegiate sports, has more than a fair whiff of an insular, old boys network feel to it where omerta and misguided "loyalty" is preferable to decency. I'd normally make an analogy or example trying to illustrate this point but, frankly, this entire issue is so beyond the pale, it makes me sick. This equalizer is this - At least, we, the fans, don't have to accept it. Stay vigilant, make noise, keep those responsible (and those who enabled) accountable.

Alan Milstein
This story is just beginning. The cover up has yet to be uncovered.