UPDATE to include discussion of Bryce Brentz injury; Ryan Sweeney and injuring hand by punching door: is it grounds for Disqualified List?

Bryce Brentz

UPDATE Feb. 9 2013: we're learning today from WEEI.com's Alex Speier that the Red Sox now have another player who has been injured outside of playing the game and in questionable circumstances: about a month ago, prospect Bryce Brentz accidentally injured himself while cleaning a hand gun.  A bullet went into his leg.  

Brentz is lucky.  It doesn't appear the injury will hurt his baseball career.  But if it does for a period of time, it would be interesting to see if Red Sox disqualify him instead of disable him.  My guess is they disable him rather than disqualify him, since this was an accident and not a result of him losing his temper.  For more analysis of these two lists, please read the post below on Ryan Sweeney.

And, yes, Brentz is making his second appearance on Sports Law Blog.  He was  the player we talked about in our post "Bryce Brentz and Teams Requesting that Players Use Medical Devices for Abnormally Good Health"

* * *
ORIGINAL POST ON RYAN SWEENEY


In the eight inning of last night's Red Sox -Tigers game, Red Sox outfielder Ryan Sweeney became upset after grounding out. So angry that after returning to the dugout he let a door feel the brunt of his frustration, which caused a hand injury:

* * *

Ryan Sweeney will need X-rays after he punched a door in the dugout following a groundout in the eighth inning of the Sox' 7-3 win over the Tigers. Sweeney injured the knuckle on his left pinkie and had to come out of the game when he couldn't make his warm-up throws in the top of the ninth inning.
According to a team source, the outfielder -- who is hitting .260 with a .303 OBP and .373 slugging mark in 63 games -- is likely to require a DL stint for the injury.
From: Mike Petragalia, WEEI.com

* * *

Should Sweeney be placed on the disabled list -- or the disqualified list?

The seldom-used disqualified list is for players who, according to the CBA, "fail to render services to his club." While disqualified, a player is not paid his salary and is removed from the roster, though the player can workout with his team and receive healthcare benefits. On behalf of a disqualified player, the Major League Baseball Players' Association can file a grievance to fight the disqualification. The grievance procedure may eventually lead to a hearing before three-arbitrators.

The disqualified list is purposelessly defined in vague terms, since its definition gives teams flexibility in interpreting it. Teams are hesitant to use it, however, because it likely damages the team's relationship with a player. It may also damage the team's relationship with the player's agent, which in some instances may be a big deal.

Because of these downside for teams, few players have been placed on the disqualified list in recent years. Two years ago the Mets placed Francisco Rodriguez on the disqualified list after he injured his hand in a fight with his girlfriend's dad. Last year for SI.com, I wrote about the Cubs placing Carlos Zambrano on the disqualified list for 30 days after he bizarrely walked out on his team and claimed to be retiring. Earlier this month the Cleveland Indians placed minor league pitcher Nick Hagadone on minor league baseball's disqualified list for a self-inflicted injury to his pitching hand after he pitched poorly in a game. Teams sometimes use the disqualified list as a threat - in 2006 the Nationals threatened to disqualify Alfonso Soriano after he refused to play the outfield. The threat worked.

Should the Red Sox use it for Sweeney?

Reasons for Yes

Punching a door or any wall shows terrible judgment, if for no other reason than the fact that it is completely predictable that you can, and probably will, injure your hand by doing so. It isn't like Sweeney threw his bat in frustration and it somehow hit a wall and bounced back at him, or that he suffered some other freak injury. He punched a door.

Sweeney didn't act in the heat of the moment - there was at least 30 seconds between his ground out and his punching for him to cool down. The fact that he had time to think about what he was doing, and still did it, makes it worse.

Sweeney, who Baseball America called the White Sox's No. 1 prospect in 2006, is not new to the game. He's in his 7th MLB season and is 27-years-old. Punching a wall might be more excusable for a rookie, but not for a seasoned vet.

Sweeney's injury makes it much harder for the Red Sox to trade him before today's deadline. He's been rumored to be on the trading block (see NESN.com). If he's placed on the disabled list or disqualified list, he can't be traded absent the commissioner's approval. Even if he's not put on any list, his already low trade value (he's a corner outfielder who has 0 home runs in 204 at bats) has likely plummeted even lower. On today's Dennis and Callahan show on WEEI, it was even discussed that Sweeney may have intentionally injured his hand to not be traded - if so (and that seems unlikely and would also be hard to prove), the disqualified list would be even more appropriate.

Reasons for No

Unlike Carlos Zambrano, who had a long history of strange behavior, Sweeney has never attracted controversy and seems to be a good teammate. His temper just got to him and he did a foolish thing. To his credit, Sweeney has acknowledged responsibility and fault. He admits he let his team down (see Boston.com). It isn't like Sweeney is refusing to acknowledge he did something wrong.
If the Red Sox disqualify Sweeney, they will almost certainly have to deal with a grievance filed by the MLBPA, which will argue that the penalty is excessive, especially for a player without a track record for misbehavior. Keep in mind, the MLBPA does not want a precedent of teams disqualifying players, since other teams could do the same in the future. They would fight for Sweeney, if not so much for him than for their collective membership.

Moreover, as sports attorney/professor and MLBPA certified agent Jim Masteralexis tells me on Twitter, Kevin Brown and Doyle Alexander were not disqualified after they punched walls and were injured. While the Red Sox could argue those instances do not preclude them from punishing Sweeney, they are still persuasive precedent.

Although Sweeney is a free agent at the end of the season, the Red Sox would damage its relationship with him going forward by disqualifying him. The same is probably true of the team's relationship with Sweeney's agent, Larry Reynolds, who has a pretty impressive list of clients. Along those lines, would free agents be less likely to sign with the Sox because of how it treats Sweeney?

Verdict: I doubt the Red Sox will disqualify Sweeney, but if they did, I believe they would have sufficient grounds.

Cathryn Sloane And Silly Things I Wont Admit To Saying

After watching the controversy last week on the Cathryn Sloane post on NextGen Journal I keep thinking one thought:

"Thank God when I was 25-years-old my every immature or arrogant thing I said or did was not recorded on the internet"

If you are not familiar with the issue to which I refer, the 25-year-old writer penned a post about "Why Every Social Media Manager Should Be Under 25".

Since November 2011 she has written several articles for the online information portal.  None of her posts has had more than five comments until this one topped 600 comments due to the up-roar she caused.  (Note, her post with the 5 comments was the journalistic ground-breaking piece on "Why Hooking Up In College Will Not Disappear").

Five comments to over 600 in one post is a big jump for any blogger.  But from what I have seen the writer has been blind-sided by how her words impacted people.  She locked her Twitter account and has not commented on fire-storm (if she has, I did not see it).

I am sure that Ms. Sloane will not stumble upon my blog post.  But others might read this, and I have three pieces of advice:

1.  Come out and address the issue.  We all make mistakes.  Own it.  OR... if you do not think you made a mistake... defend yourself.  Hiding never solves problems.

2.  Learn from it, and teach others.  No matter which way you view this situation, we all learn throughout life, and this one might be a pivot moment for your future.

3.  When you turn 45 do not ever, ever, ever say nasty things about the generations that follow you.... Especially if they seem to believe they know everything, are living in a new crazy would and claim you do not understand.  Smile and say... "been there".

I go back to thinking how lucky I was to not have the internet around when I was 25-years-old.   I said silly things, arrogant stuff, and youthful burps that I will choose to not admit to at this point.

Have A Great Day

thom singer

Penn State Death Penalty: Was It Ever Really An Option? (The Antitrust Problem)

Several recent posts on this blog have analyzed the NCAA's punishment of Penn State University in light of rumors that the NCAA would have given Penn State a four year death penalty if it had not agreed to the NCAA's alternative sanctions. (See here, here, and here). What almost nobody is talking about, however, is that the NCAA's 'death penalty' sanction may very well have been illegal under Section 1 of the Sherman Act. Thus, if the NCAA had attempted to shut down Penn State's football program, an interesting antitrust challenge could have potentially followed.

For those less familiar with antitrust law, Section 1 of the Sherman Act states that "[e]very contract, combination ... or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal." In practice, this section of antitrust law is not interpreted to literally prohibit all contracts signed among competing businesses. However, the courts have consistently interpreted Section 1 of the Sherman Act to strike down contracts that are deemed unreasonable in terms of their economic effects.

As a private association composed of member schools that compete against each other for fans and players, all decisions reached by the NCAA or its employees are, in essence, horizontal agreements subject to Section 1 review. In addition, any agreement by the NCAA to ban a competitor from the marketplace would be defined as a "group boycott," which falls among the most troublesome types of agreements subject to Section 1 scrutiny.

The U.S. Supreme Court has already once prevented the enforcement of an NCAA bylaw under Section 1 of the Sherman Act that sought to exclude certain competitors from the college football marketplace. In that case, National Collegiate Athletic Association v. Board of Regents, the high court held that an NCAA bylaw intended to ban colleges that appeared in more than a certain number of televised football games was illegal because it "curtail[ed] output and blunt[ed] the ability of [NCAA] member institutions to respond to consumer preference."

Logically, the same argument could be made for disallowing the NCAA 'death penalty.' Although on a moral level the egregious wrongdoing that occurred at Penn State University cannot be compared to a school merely seeking to play additional televised football games, under antitrust law the reasons behind the boycott are entirely irrelevant. All that matters is the economic effect. In other words, as the Supreme Court explained in its 1978 decision National Society of Professional Engineers v. United States, "the purpose of [antitrust] analysis is to form a judgment about the competitive significance of the restraint; it is not to decide whether a policy favoring competition is in the public interest."

While it is true that the U.S. Court of Appeals for the Fifth Circuit had rejected an earlier antitrust challenge arising out of the NCAA's first attempt to enforce its 'death penalty' (that time against Southern Methodist University), the posture of that case was a bit different. In that challenge, McCormack v. National Collegiate Athletic Association, the claim was brought by the schools' alumni, football players and cheerleaders, rather than by the boycotted school itself. Thus, the court determined that the plaintiffs lacked antitrust standing to bring suit, as well as that their challenge was merely at attack of reasonable athlete-eligibility rules. These conclusions would have been far harder to sustain if the suit had been brought by a school, challenging the financial implications of a boycott on their football revenues and merchandise sales.

Of course, antitrust law leaves open the possibility of other less restrictive forms of punishment against Penn State University that might indirectly lead to the same result. For example, any individual school can legally make the independent decision not to play Penn State University without running the risk of a legal issue. If all schools independently reach the same conclusion, there would be no antitrust violation. In addition, perhaps an entire conference such as the Big Ten could even decide to ban Penn State without significant antitrust risk if that conference is found to lack "market power."

Yet, for the very reason that the NCAA death penalty is often described by advocates as the 'ultimate sanction,' a court would likely not allow that result. Thus, no matter how abhorrent the leadership may have acted at Happy Valley, a court would not be likely to allow that to justify the entire college football industry collectively driving Penn State University football out of business.

"Follow Through DNA" is RARE

If we all think we are better than average in our "Follow Through" skills, something has to be wrong with the math.

Few people really have "Follow Through DNA".... but everyone thinks the problem is the other people.

There is a lot of time and money invested in networking... but little done after that short conversation and the business card exchange.

(Hint:  Sending a LinkedIn request is not really meaningful if that is all you do)

Have A Great Day.

thom singer

Adrien's Groaner

Adrien's Groaner

The Questions That Arose from the Last Minute Wrangling to Preserve Adrien Broner vs. Vicente Escobedo

This past Saturday, the now former WBO Super Featherweight champion Adrien (The Problem) continued his recent string of impressive performances with a fifth round TKO of Vicente Escobedo. Not as impressive, however, was what happened both before and after Broner weighed in for the bout. Broner weighed in at 133 ½ pounds for his anticipated WBO title defense and subsequently forfeited both his title and $60,000 of his purse (half of which went to Escobedo, the other half to the Ohio commission). The failed weigh-in took place after Broner posted several pictures of recent desserts to his Twitter feed and publicly stated that the Escobedo fight would be his last at 130 pounds. Over the following day, it appeared that Broner’s HBO main event was in jeopardy altogether, as Escobedo threatened to pull out after a second failed weigh-in before reportedly receiving over$50,000 in additional pay out of Broner’s purse. While there has been much outrage in recent years, notably as to Joan Guzman and Jose Luis Castillo’s repeated failures to make weight, the controversy surrounding the Broner-Escobedo seemed to quickly dissipate as the focus turned more to Broner’s obvious pound-for-pound level gifts after his hammering of Escobedo. Nonetheless,what questions were raised (and what lessons can be learned) by the near-dismantling of an entire HBO show over a weight dispute? A quick look follows.

To view the entire article, please go to: http://www.8countnews.com/news/125/ARTICLE/5672/2012-07-23.html.

Better Decisions (New Training Class)

Thanks to my Human Resources friends from several companies for helping me brainstorm a new training class offering.

"Better Decisions (with People)" is a half-day or full-day class designed to encourage teams to better understand the power of business relationships, cultivate internal networking connections and make team oriented decisions.

The class utilizes DiSC Workplace Assessments, communication skills, leadership techniques, and facilitated group discussions.

Participants will learn to:

*Better communicate with co-workers

*Understand of different working styles

*Create a team oriented culture

*Network inside the company

*Identify and highlight the strengths of coworkers

For more information on offering this class to your team, contact me at thom (at) thomsinger.com or (512) 970-0398

Have A Great Day

thom singer

Let The Games Begin - 2012 Olympics Bring The World Community Together!

After watching the Opening Ceremonies of the 2012 Olympics in London, I am excited about the games.  There is something special about the Olympics.  I was a teenager in 1984 when the Olympics were held in Los Angeles, and we all very excited to be part of the pageantry.  I attended several events that year and still hold the memories among the most special experiences of my life (My dad had the experience twice as he also attended the 1932 games in LA).

I did not love the London opening show.... but my opinion is just that -- an opinion.   Art is subjective.  It was clearly well thought out, and flawlessly executed.  Choreographer Danny Boyle is to be complemented for his production.

Maybe I allowed the Chinese Olympiad of four years ago to set the bar too high for what I want from a worldwide televised spectacle.  That one was a visual WOW to watch on TV.  Last night was not the same vibe.

If all you did was follow the opening ceremonies on Twitter you would have had the impression that the show was great or awful.  The comments were fun to watch as differing opinions floated past quickly.

I was a little critical in some tweets.... which caused one Brit to reply that it was not expected for American's to understand the imagery (ouch).  Another person told me I was being cynical.  Maybe I was, but I think I understood the whole thing!  And I loved the Queen for filming the James Bond skydiving entry... as that made me laugh out loud.  Her Majesty is clearly a good sport.  Oh... and who doesn't love Mr. Bean?

But it does not matter what I thought.  The show rocked (and I imagine being present in the stadium must have been amazing!!).  I like how they incorporated many wonderful British celebrities, sports heroes, and history.  As Americans we are tightly joined to Great Britain.

I woke this morning feeling good.  Who doesn't feel good when they think of the Olympics?

In the end, the Queen opened the games of the 30th Olympiad and the world is joined for two weeks in the spirit of sport.

Have A Great Day

thom singer

Cool Things My Friends Do - Living More Like A Professional Than An Amateur

Each Friday on this blog I enjoy highlighting some of the cool things my friends do in their work and personal lives.  

I cannot name the friend who I am profiling this week.  What he is doing is very personal.  It is cool (thus it makes the "Cool Things My Friends Do" post), but not a public effort.  He is taking on some personal change, and change can be scary.  What he is attempting is not the stuff that others on the outside will understand.  He will have people who will try to stop him from his efforts.  His boss will lose a good employee, too, as with change will come a new career (but another boss will find a better employee).

I am talking about re-invention.

This friend is a good person with a great heart.   He has been caught up in a life whirlwind that has not produced the results he desires.  A bumpy career, a divorce, and other "stuff" has left him wondering if there is more to this crazy human experience.  He tries hard, but has feels he is only treading water.


He recently read a book called "Turing Pro" by Steven Pressfield.  He was not far into the book when reading the words on the page were similar to looking in mirror.  Pressfield makes the case that there is a difference between living your life as an amateur or a professional.  The choices made by amateurs are very different than the actions taken by professionals.  My friend called me (I recommended the book) and was perplexed as he knew that once he completed the reading assignment nothing could be the same.  Or if it was the same he could not defer the results to anything beyond himself.

Daily there is a question ringing in his mind: "How would a professional act in this situation vs. what would an amateur do?"  He is taking the steps to be a pro (or at a minimum he sees the difference).  But this might mean leaving some habits, lovers, friends and vices on the side of the road.  I can hear the conviction in his voice... but there is still trepidation with each step.  He knows that to make this change means a different life on the other side.  He clearly likes parts of his existing world (cuz there is a lot of fun with amateur choices), but at the same time he has a new suit of ambition covering his soul.  

It is cool to see a person embrace changes that are for the better.  I believe in him, but know first hand that it is easy to be inspired by a book (or a seminar) and then fall back into comfortable patterns.  Maybe once he completes the journey I can write about him by name and link back to this post to say "we knew him when...."


I will keep you posted.

Have A Great Day.

thom singer

U.S. Court of Appeals for the Eighth Circuit 2012 Judicial Conference

I'm honored to be a speaker at this year's U.S. Court of Appeals for the Eighth Circuit Judicial Conference. The conference will be held next month, from August 8 to August 10, in Kansas City. This year's conference title is "“Landmark Litigation in the Eighth Circuit Courts: Views from the Bench, Bar and Academy”. The conference agenda can be read here and information on attending can be found here.

More so than any other federal circuit in recent years, the Eighth Circuit has played a pivotal role in the development of U.S. sports law. This includes deciding Tom Brady et al. v. NFL, a decision which led to the NFL and NFLPA ending the 2011 NFL Lockout.

I'll be on the labor relations in professional sports law panel with Indiana University Dean Gary Roberts, who previously represented the NFL, and former St. Louis Rams Executive VP and General Counsel Bob Wallace. Judge Mary Vasaly will moderate the panel, which will begin at 9:15 am on Thursday August 9.

Labor Relations in Professional Sports:
Does Federal Law Level the Playing Field

Introductions:

Judge Mary R. Vasaly
Minnesota Judicial Branch
Fourth Judicial District

Panel:

Professor Michael McCann
Professor of Law & Director of Sports Law Institute
Vermont Law School

Dean Gary R. Roberts
Gerald L. Bepko Professor of Law
Robert H. McKinney School of Law
Indiana University

Mr. Robert E. Wallace, Jr.
Partner
Chair, Sports Law Group
Thompson Coburn LLP

The conference has a number of distinguished speakers with sports law ties, including Paul Clement, who argued for the NFL in Brady v. NFL and for NBA players in Carmelo Anthony et al. v. NBA, and Ted Olson, who argued for the NFLPA in the Brady case. Other notable speakers include U.S. Supreme Court Justice Samuel Alito, Baylor University President Dean Ken Starr, who served as Independent Counsel while Bill Clinton was President, and Ohio State Law Professor Douglas Berman.

Why have nationality rules for Olympics?

The New York Times has a thoughtful debate on nationality rules for the Olympics. Are they even necessary? Could the Olympics take place without them - where the best athletes play regardless of their country?

Law Professors Peter Spiro, Ayelet Shachar, Ian Ayres, Jim Nafzinger, and former IOC official Jean-Loup Chappelet all contribute.

The Opening Ceremonies Set The Tone.... For The Olympics AND Your Speech

The 2008 Olympics in Beijing are forever remembered because of how the opening ceremonies captivated the audience worldwide (sorry Michael Phelps).  The 2012 Olympics in London kick-off in a few hours, and the organizing committee has put in thousands of hours to create a spectacle that will fascinate the soul.

The opening sets the tone for the whole event.  This is not just true of the Olympics, but everything.  People form opinions quickly.  Researchers have shown that people make decisions about all sorts of things in seconds (or fractions of a second), and the cliche "you never get a second chance to make a first impression" could not be more true.  How we launch is paramount to the impression we leave behind.

This is true for speakers.  Too many business professionals begin their talks without any preparation.  They thank the person who gave the introduction, they tell the audience they are honored, and then ramble around about what they will talk about.  Too few speakers have learned about the importance of the opening ceremonies.  

The next time you give a speech, invest time in creating a compelling opening.  The effort you put in will create a stronger impression and allow you audience to feel more engaged.

Not sure if I am right?  Imagine if tonight's Olympic Opening Ceremonies was not rehearsed.  What if the athletes all just pushed and kicked into the stadium and the entertainers had all met for the first time in the parking lot?  What you would see would be a horrible mess.  But that is not what will happen in London.  The opening will have pizzazz and will be clearly choreographed.  

When the first few minutes of your presentation has not been planned out with clarity... what your audience gets can be a horrible mess.  Your opening ceremonies set the tone for your whole speech.

Have A Great Day.

thom singer

Richard Epstein: NCAA bypassing process in review of Penn State is wrong and a function of its monopoly status

University of Chicago Law Professor Richard Epstein writes a provocative column for Richochet titled, "Does the NCAA Wear the White Hat?". Here are excepts:

In this case, the longish process that gives Penn State 90 days to respond was waived. It seems that everyone wanted to get something done on this issue as quickly as possible. But the concentration of all powers in the hands of a single individual, NCAA President Mark Emmert, has real dangers – and would even if Emmert were the wisest person on the face of the planet.

* * *

It is not enough to say that there is abuse at the school level. It is also necessary to ask whether there is abuse at the NCAA level as well. On the latter point, the NCAA cannot get a clean verdict. The blunt truth is that the NCAA is the only game in town and has a power disproportionate to its wisdom. Put otherwise, the NCAA enjoys a monopoly position as a regulator and thus cannot be immune from the temptations that face all organizations with such power. Just to be summoned before the NCAA to explain why a college is not in compliance with this or that rule is a hugely expensive undertaking, which goes a long way to dull criticism of its behavior.

To read the rest, click here.

MPI's WEC 2012 - Maximize Your Networking

Many of my friends will be in St. Louis next week for the MPI World Education Conference 2012 (WEC).  This is a major event in the meetings industry that will be attended by organizers, vendors, speakers, hoteliers, and others who make meetings happen.

While I will not at this conference (I will be speaking at the MPI Chapter Business Summit in September) I am excited about the theme of the WEC.  "Creating the New Connectivity" is a powerful theme in our hyper-connected world.  Meetings are not just about a ballroom with some interesting keynotes and breakouts. There is so much more that happens anytime humans gather.  Since the beginning of time people have come together in community to share, learn, contemplate and connect.

If you are going to be at the WEC, here are my top 5 tips for maximizing your networking experience at the event:

1.  Say good-bye to your co-worker once you arrive.  A major mistake made at large conferences is that people cling to those they already know.  They sit with their friends at every meal, and attend all the sessions together.  Better to split up and then come together on occasion to share details of individual experiences.

This does not mean no contact with your buddies... but do not fall into the trap of being together all the time or you will miss the opportunity to meet new people.

2.  Put your SmartPhone and tablets away during meal, breaks and happy hours.  Most large conferences these days are overrun by the "Phone Zombies".  People spend every break trying to connect outside the event, that they fail to have any meaningful conversations with those present.  If you must check in with your office, walk outside.  To take your phone out in the networking areas sends a message to those close by that you find your electronics more fascinating than they are (and that is rude).

This does not mean you cannot have your phone out during the speakers presentations.  Take out your phone and tweet or post to Facebook any information you find interesting.  Those of us not at the conference will enjoy sharing in your learning experience.

ALSO... if the speaker is boring... go ahead and check email or surf the internet.  If the speaker is not engaging enough to keep your attention, they do not deserve your attention!


3.  Be the person to initiate conversations.  People attend these events to meet others, but most are waiting for someone to talk to them.  Many are a bit shy at big events (both introverts and extroverts can clam up in big crowds), and when you say "hello" you can melt their shyness away and kick-start their whole meeting experience.  Once you have a short conversation with someone you will be surprised how often you will cross paths with them again and again at the event.

4.  Bring lots of business cards.  Do not assume anyone will remember your name.  While there are lots of people who want to push us all to use technology in place of a business card, it is often the easiest for everyone to trade the traditional paper cards.  It does not require anyone to have the same apps, and since most people are visual, your will card has a unique look were the new links all look the same.

5.  Have fun.  When you are having fun people will be drawn to be around you.  This event will have a great mix of learning and social activities... so do not miss out on the festive side of WEC.  Too often people can get so caught up in the business and education that they forget to make the most from talking with other people.  Some of the best learning comes from the impromptu "hallway conversations" you have with other attendees and vendors... and sharing with people is always fun!!!

While there is a lot of "new" ways to connect.... the good old-fashioned face-to-face conversations that take place at meetings is still paramount to business success.  So get out there and talk to each other while in St. Louis.

Have A Great Day.

thom singer

Thom Singer is known as "The Conference Catalyst". He works with meeting planners and conference organizers to set the tone for a meeting. His presentations educate, inspire and motivate attendees to engage deeper in the event and make meaningful connections.  http://www.conferencecatalyst.com 

www.ConferenceCatalyst.com

FCC Upholds Conclusion that Comcast Discriminated Against the Tennis Channel

A two-year dispute involving the cable tier placement of the Tennis Channel (not owned by Comcast) and the Golf Channel and Versus, recently renamed the NBC Sports Network, (both owned by Comcast) has been making its way through the FCC. This week,the majority of the FCC commissioners concluded that Comcast illegally discriminated in placing the Tennis Channel in a more limited and more expensive tier than the other two sports channels and ordered the firm to pay a fine and move the Tennis Channel to the same tier as the others.

The commission’s party-line 3-2 ruling by its Democratic majority upheld an administrative law judge’s conclusion that ordered Comcast to pay a forfeiture of $375,000 and required Comcast to carry Tennis Channel at the same level of distribution as Golf Channel and Versus. The ALJ also required Comcast to provide Tennis Channel with equitable treatment as to channel placement. The full commission ruling affirming the ALJ’s determination was the first time an MVPD was held liable under the law. The decision is lengthy, with a fair amount of space devoted to procedural issues.However, the areas of particular interest for sports and broadcast lawyers involve the determination of what facts justify a affiliation discrimination and the general First Amendment standards that should be accorded such cases.

The majority concluded that this policy unreasonably restrained the non-Comcast affiliated Tennis Channel from competing with the Comcast-affiliated Golf Channel, a violation of Section 616 of the Communications Act and its accompanying regulations. Such disputes are considered on a case-by-case basis and there are many factual questions that must be determined before concluding that competitive discrimination occurs.The majority, in upholding the ALJ, found that these conditions existed. Looking at the similarities in programming, ratings and demographics, along with circumstantial evidence, the majority concluded that discrimination due to affiliation existed. The opinion also discussed First Amendment considerations and concluded that since the anti-discrimination rules were based on “content-neutral” standards, the lesser intermediate scrutiny test would be applied. Citing earlier precedent involving cable television’s mandatory carriage requirements, the majority concluded that the test was warranted and that the it “easily” met the standard of a substantial governmental interest to prevent such unfavorable policies and that the rule was not burden substantially more speech than necessary.

The two dissenting commissioners contested the methodology of the majority’s conclusion about discrimination,noting the general cable industry practices involving the place of the Tennis Channel. It also issued a warning worth pondering: “. . . in order to shield themselves from discrimination complaints, Comcast and other MVPDs will be more likely to carry networks they do not want, on tiers with broader penetration,and at higher prices than ever before—at least if they are foolish enough to be willing to invest in content creation. And the Commission should not kid itself. These additional programming costs will come out of the pockets of consumers, not from MVPDs’ bottom lines.”

For the Tennis Channel, this is a huge shot in the arm. Comcast must now add Tennis Channel, currently available in 34 million homes nation wise, into an additional 18 million more households just weeks before the U.S. Open. This case will be appealed by Comcast and it is an important one to watch for cable operators, sports programmers and viewers.

PSU Board meeting to see if Consent Decree Invalid

This could be prove huge: Penn State Board of Trustees is meeting to discuss if President Erickson lacked the legal authority to sign the consent decree with the NCAA without first getting its approval. As I discussed yesterday, the invalidation of the consent decree strategy may be the best one for those who believe Penn State should fight the penalty.

Update 7/26: The Board met into the evening, but declined to vote on whether to rescind the consent decree. The board was apparently deterred by the possibility of a worse sanction from the NCAA if it fights it. Of course, the decision not to fight traces back to an on-going discussion on this blog about the NCAA not having to provide its members due process because of the Supreme Court's decision in NCAA v. Tarkanian.

Process and Due Process

Tim does a great job exposing the problems with the complaints about due process and consent decrees, as Mike initially discussed. I want to add two more thoughts.

First, the mistake people are making is to assume that only the state or a state actor can provide process and thus to settle or enter "consent decrees."But any large organization can (and frequently does) accord process as part of its decision making. Think about how, say, a private university adjudicates student disciplinary matters. Providing process does not make a private entity a state actor. But a private entity that provides process can accord whatever process it believes is fair or appropriate; it is not bound by constitutional notions of what process is due, but only what its members (and perhaps the public) regard as fair. Similarly, if a private entity wants to call the resolution of its private processes a "consent decree," it is free to do so, without any state action or constitutional implications.

Second, it is worth considering how we should understand the Freeh Report from a due process perspective. The Paterno family has repeatedly (after thes tatue was removed and again after the penalties were announced) complained that their lawyers never were given an opportunity to cross-examine witnesses or to call and question their own witnesses. The Freeh Report thus was a one-sided "prosecutor's brief," and PSU's and the NCAA's reliance on the Report disregards due process.

But another way to look at the Freeh Report is as a decision by a judge in an inquisitorial judicial system, where the judge, acting as a neutral factfinder, gathers information himself. Attorney involvement and control and cross-examination of witnesses are not a core part of these proceedings; thejudge is charged with calling and questioning witnesses and gathering evidence to make a decision, including finding facts and drawing inferences. This certainly sounds like Freeh's charge from the Penn State Board of Trustees andit certainly sounds like what the Freeh Report sought to do. While different from the adversarial system that generally (although not exclusively) prevails in the United States, it cannot be that reliance on inquisitorial processes violates due process.

It Is Not Just About Me (No really, it's not!!)

We live in crazy times and the level of competition is overwhelming.  Too many people are worried about getting their slice of the pie.  But is opportunity finite?  I hope not.  

When we spend time hoarding everything (physical stuff, relationships, opportunities, knowledge, etc...) for fear others are out take from us then we never get a chance to expand our own boundaries.  

We could all benefit from not viewing ourselves too seriously and trying to give to others. There are countless ways we can help those around us achieve their own goals, and when we do it we find more opportunity for ourselves (it is weird).

If you have not made an effort to refer someone a piece of business lately.... and then you wonder why so few refer leads to you.... there might be a connection.  Can you name the last time you referred real leads to someone (not those light positive comments, but real live business)?

Sure, we have our own needs and goals.  We work hard to achieve, and there is never enough time on the clock.  Taking time to help another can seem like it derails us from our own track.  If we are not getting stuff done to pay the bills then we fail, and if we fail we cannot help others.  But I do not think we have to wait to succeed to give.... we can do it along the way (so everyone wins together).

On top of being busy, we have egos.  I do.  You do, too.  Most of us think we are awfully special at our "stuff".  Each of us is probably right on some level.  Yet too often we get caught up in our own situations, and we fail to realize that we are all people seeking to find our own way in the world. With over 7 billion people on the earth that means there are over 7 billion personal points of view.... and we often think ours is the best one. Not.

Being human is a complex experience.  Emotions play tricks on us, and get us all worked up....  and when we get emotional, we often become secretly clairvoyant (or think of ourselves in that way).

Do you know what I am talking about?  We get angry or jealous (or insert any emotion) and we instantly know what others are thinking in their minds.  Of course we do not really know what they are thinking.... we are just imagining their motivation.  But damn... it sure seems real at the time, and this can keep us from going out of our way to help them find success (because clearly they are not thinking about anyone but themselves!!!).

It is easier to make quick judgments about others and fill in the blanks with imaginary critiques than to invest the time to understand the people around us.

On Friday's I write a blog series called "Cool Things My Friends Do" and I am often promoting my friends who are also speakers and authors.  Recently a fellow professional speaker asked me why I would put the spotlight on my "competition".  I had no answer other than "why wouldn't I want to praise others for their success?  If I want anyone out there to cheer about me... I need to lead by example".   

Take a minute to chill out and get in touch with how you can be more helpful to others.  Try it for a few weeks and just see how you feel when you give a little time or energy to seeing another person get closer to their goals. 

Your thoughts?

Have A Great Day.

thom singer

Penn State: Dispelling the "Due Process" Myth and Perceived Precedential Value Problem

As to whether the punishment fit the crime in the imposition of punishment on current student-athletes and coaches that had no fault here, it is difficult to equate Jerry Sandusky's heinous actions and subsequent cover-up with standard NCAA violations that go to competitive advantage. Therefore, I can see why many people are having trouble with the punishment being levied against the innocent members of the football program in Happy Valley. Let's put that aside for the moment, though, to clear away some of what I consider to be misinformation and misinterpretations of this latest NCAA headline. In addition to punishment itself, Mark Emmert's executive declaration of Penn State's punishment on Monday left many on the sidelines enraged over (1) a lack of "due process" and (2) setting a bad precedent for future NCAA enforcement matters. As to (1), "due process" is not accorded to member institutions in the NCAA process, and I do not believe that (2) should concern current and future alleged rule-breakers in standard areas of violation such as recruiting, benefits, academic eligibility, amateurism, etc.

As to the due process issue, the NCAA administrative law process does not accord Federal or state constitutional due process protection for those parties that go through enforcement proceedings, be it student-athlete reinstatement (SAR) or infractions. The U.S. Supreme Court made it clear that the NCAA is not a governmental actor and thus is not obligated to provide due process. Nat’l Collegiate Athletic Ass’n v. Tarkanian, 488 U.S. 179, 179 (1988). The NCAA is a private association made up of members that include schools and conferences. Those schools and conferences agreed to abide by the Association rules, including potential punishments for violations of Association rules, analogous to a country club and its members. (Bylaw 3.3.4.1). Schools and conferences are voluntary members of the NCAA, and therefore must abide by the associated rules and regulations. See, Hispanic Coll. Fund, Inc. v. Nat’l Collegiate Athletic Ass’n, 826 N.E.2d 652 (Ind. Ct. App. 2005) (holding that the NCAA’s decisions regarding organization were not subject to trial court’s review absent allegations of fraud or illegality, because the organization was a voluntary member of NCAA). Furthermore, “[t]he articles of incorporation and bylaws of a not-for-profit corporation are generally considered to be a contract between the corporation and its members and among the members themselves.” Id, at 658. Therefore, member schools are under an enforceable contract with the NCAA and subject to its rules, regulations, and any punishment it may sentence. Bylaw 19.5.2 lists all the appropriate penalties for major violations, including (l): other penalties as appropriate.

Courts have been, and remain, reluctant to accept challenges to the substance of NCAA enforcement decisions; the Oliver case being one of the few exceptions. See e.g. Justice v. Nat'l Collegiate Athletic Ass’n, 577 F. Supp. 356 (D. Ariz. 1983) (upholding NCAA sanctions for recruiting violations and denying student-athletes’ constitutiona land antitrust claims); but see Oliver v. Natl. Collegiate Athletic Assn., 2008-Ohio-7144, 155 Ohio Misc. 2d 1, 920 N.E.2d 190. Further, membership must tread lightly in either going to court to challenge a decision or, more likely, abiding by a court ruling overturning a NCAA decision pursuant to injunctive relief sought by a student-athlete, since the NCAA reserves the right to punish a member institution should an appellate court later reverse alower court’s ruling overturning a NCAA decision. See, e.g. Nat’l CollegiateAthletic Ass’n v. Jones, 1 S.W.3d 83 (Tex. 1999) (holding that the NCAA’s appeal from an injunction granted at the trial court level was not moot as to the applicability of retroactive penalties). Challenges to the NCAA administrative law process are for when the NCAA is not following its own “fair process.” So, the question applicable to Penn State is whether the NCAA did, in fact, follow its own fair process.

The fair process established by the NCAA can be found in Article 32. From start to finish, including investigations and hearings, the infractions process takes over a year in most cases. The process includes a preliminary investigation, the possibility of summary-disposition, notice of inquiry, notice of allegation, institution investigation, written responses to the allegation, hearing, final Committee report and possible appeal. For example, allegations of impermissible recruiting and student-athletes receiving benefits from professional agents at the University of South Carolina first came to light in July 2010. The Public Infractions Report was issued two years later on April 27, 2012. On the other hand, the overall process with Penn State took about nine months.

However, with Penn State, the NCAA did not follow the infractions process established in Article 32. So, does the NCAA's failure to follow its already-established process of investigation, enforcement, hearing, deliberation, decision, and possible appeal violate the fair process that it is bound to follow? Yes and no. A "quick look" analysis reveals that punishment was delivered by the NCAA President without regard for the existing NCAA enforcement structure; something not specifically articulated in NCAA bylaws, and certainly not something for which we see any precedent. However, the only party with standing to challenge the NCAA's declaration is Penn State, and Penn State consented to this punishment; ergo we now have a moot challenge.

As someone who regularly represents parties in NCAA processes, knowing what information is public thus far, if I am Penn State, I do not think going through the infractions process would have been a better process for the Penn State community. Sure, the punishments might not have been as severe, but Jerry Sandusky's actions were not just corruptions of the NCAA's principles of amateurism, competitive fairness, and academic integrity, but acts of profound evil. As such, as the infractions process drags on, Sandusky's acts and any cover-up of those acts would be continually relived. Further, there is a cost in terms of counsel like myself to be involved in the process. Let's go back to the South Carolina example. The school said that it spent $535,667.50 in connection with the NCAA investigation. Finally, as to those who believe that Penn State would find relief only at the appellate level in the infractions process, there is no guarantee that Penn State would have taken the case this far. My friend, Jerry R. Parkinson, who served as a member of the NCAA Division I Committee on Infractions from 2000 until very recently (including service as the committee’s first coordinator of appeals), cited in a law review article that only thirty-four of the ninety major infractions cases that went to a hearing from 2000 to 2009 were appealed.

While I believe the less controversial route would have been an expedited infractions process that would necessarily include a summary disposition (the July 12, 2012 Freeh Report helps in this regard), for the Penn State community to heal, I have to think ripping the band-aid off quickly in the manner done here with Emmert's decision yesterday, while not ideal, is preferable to a drawn out infractions process.

"Consent Decree": Does it make the NCAA a State Actor?

UNC Chapel Hill Professor Dr. Richard Southall, who is also Director of the College Sport Research Institute, wonders why the NCAA and Penn state have referred to the agreement signed by President Rodney Erickson and the NCAA as a "consent decree" (the validity for which I discuss in a previous post).

I also wondered about the phrase "consent decree" and assumed it to mean, at least in this context, something akin to a settlement between two parties who could otherwise have legal claims against one another. For example, Penn State could have sought an injunction to stop the NCAA; instead, by signing the decree, it has consented to the NCAA's punishment. The NCAA has reached settlements with other schools concerning infractions and the agreement with Penn State seemed like another example.

But as Richard notes to me in an e-mail, the phrase "consent decree" is normally used by government actors (e.g., courts, the Department of Justice, the Securities and Exchange Commission etc.) when settling claims with private parties. Neither he nor others I have spoken with can remember the NCAA entering into "consent decrees" with other schools. According to a brief search by me on Lexis/Nexis, I did find that the NCAA previously entered into a consent decree -- but it was with the U.S. Department of Justice.

The website Legal Dictionary on Law.com defines consent decree as

"an order of a judge based upon an agreement, almost always put in writing, between the parties to a lawsuit instead of continuing the case through trial or hearing. It cannot be appealed unless it was based upon fraud by one of the parties (he lied about the situation), mutual mistake (both parties misunderstood the situation) or if the court does not have jurisdiction over the case or the parties. Obviously, such a decree is almost always final and non-appealable since the parties worked it out. A consent decree is a common practice when the government has sued to make a person or corporation comply with the law (improper securities practices, pollution, restraints of trade, conspiracy) or the defendant agrees to the consent decree (often not to repeat the offense) in return for the government not pursuing criminal penalties. In general a consent decree and a consent judgment are the same."

So if a phrase sounds like it would be made the government, does that mean it was made by the government? Well, use of "consent decree" probably doesn't transform the NCAA into a state actor, which the Supreme Court said it wasn't in NCAA v. Tarkanian and as a result the NCAA need not offer its member institutions and student-athletes due process. I can't imagine use of a term in one instance would have that kind of profound effect.

But I wonder why the NCAA would use "consent decree" now but not (apparently) before?

UPDATE:

In addition to the thoughtful comments to this post, consider these comments:

Drexel University Professor Dr. Ellen Staurowsky, an expert on college sports and the NCAA:

"The thought occurs that perhaps the use of the term is a reflection of who the NCAA's legal counsel is. According to Donald Remy's bio, he has previously held positions including deputy assistant attorney general at the U.S. Department of Justice; assistant to the General Counsel of the Army; law clerk to the 6th Circuit United States Court of Appeals; and senior vice president, deputy general counsel and chief compliance officer at Fannie Mae. That might explain it although the language still interests me a great deal."

Dr. Southall:

"As [Dr. Staurowsky] and I discussed earlier isn't a consent decree usually either between a "state actor" (governmental entity – DoJ, SEC, etc.) and an individual or corporation being investigated, or imposed by the court after negotiations between a plaintiff and defendant? It seems that in this case the NCAA is not a state actor nor the Court, but a voluntary organization that has imposed (the NCAA's language) on a member. Does a truly voluntary member waive any right to appeal? Sounds like a tactic similar to imposing upon NCAA athletes a requirement regarding the use of their names and likenesses….Oh never mind:)"

Do Penn State fans have any legal recourse?

I received an email from a Penn State alum named Jordan who asked me if Penn State fans can do anything legally to the NCAA or Penn State. I think there are at least three legal strategies - defamation, consumer fraud and consent decree invalidation - that could be used. None of them, however, would likely work.

Here are some quick thoughts on them:

1) SUING THE NCAA FOR DEFAMATION: I don't think Penn State fans/ticket holders can sue the NCAA for defamation with any hopes of success. They likely do not have standing to bring a claim, since none of them were named or referred to (specifically or generally) by the NCAA or anyone at the NCAA.

Theoretically, Penn State as an institution could bring a defamation claim against the NCAA, but the consent decree (assuming it is valid) would take that claim off the table. Plus, truth is an absolute defense to defamation and the Freeh Report would be used by the NCAA.

2) SUING PENN STATE FOR CONSUMER FRAUD: It's possible that ticket holders could sue Penn State under a consumer fraud claim - the gist of it would be that the on-field product was somehow misleading since a cover up and scandal were occurring. But don't expect that to work. For one, those types of claims always seem to fail. They failed when a Jets fan brought a claim against the New England Patriots for Spygate, arguing the games were rigged. And they would fail if fans brought claims against the Saints for watching a hit man show instead of a football game. The problem is that when fans buy a seat to a game, it's a contractual right to watch a game and nothing more. People who went to Penn State games, be they Penn State fans or fans of other schools, were never denied that right. Even if the contractual right was broader, the scandal still had nothing to do with the players who played the games.

3) INVALIDATING THE CONSENT DECREE: Maybe the best legal strategy for Penn State fans would be to encourage the Board of Trustees to portray the consent decree as invalidly executed, and then for the university to seek an injunction from a court to restrain the NCAA's sanction.

Did President Erickson adequately notify the Board of Trustees about the decree? Did he receive its permission? Did he have the legal authority to bind Penn State to such an agreement without the Board's notice or permission? If he didn't, could the NCAA still rely on his signature? These are important process questions. Relevant Board rules and terms of Erickson's employment contract would prove crucial in answering them.

Practically, though, I don't see this strategy working: it seems like the university's key decision-makers (even if not many alumns, fans and students) are on board with accepting the NCAA's judgment.

My Column for CNN on Penn State and the NCAA

In a column for CNN, I take issue with the NCAA's process that led to its sanctioning of Penn State. Here's an excerpt:

But I'm less comfortable with how fast the ruling was made. The NCAA clearly bypassed its normal procedure for investigating and sanctioning. This procedure often takes more than a year and involves several hearings.

Consider what the NCAA did not give Penn State. Normally the association notifies the school that an official inquiry is going to be held. Notice is followed by an investigation and, if the NCAA finds fault, a written explanation of the allegations is given. The school has 90 days to respond, after which it may request more time to respond or schedule a hearing before the NCAA's Committee on Infractions.

Then comes the hearing, which resembles a trial or arbitration hearing. If the school is found to be at fault, it can appeal to the NCAA's Infractions Appeals Committee. Penn State did not receive 90 days to respond, nor did it get a trial or an opportunity to appeal.

To read the rest, click here.