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.