Friday, October 28, 2011

Major League Baseball's Top 10 CBA Related Issues: #3 A REAL WORLD Series

We are only moments away from the first pitch of the concluding game of the World Series, which has set me up quite well for my #3 MLB CBA Related issue:  a WORLD Series.  But you might be thinking to yourself: "Baseball already has a World Series...  Arn't the Texas Rangers and St. Louis Cardinals playing game seven in order to determine who Baseball World Champions are?"

Wednesday, October 19, 2011

Major League Baseball's Top 10 CBA Related Issues: #1 Reforming The Amateur Draft with Hard Slotting

We are only a few hours away from the first pitch of Baseball's Fall Classic, which will be followed by what looks to be an eventful offseason.  Like the NFL and NBA, Major League Baseball's current Collective Bargaining Agreement expires on December 11, 2011.  I am going to go out on a limb here and make a bold prediction that because Commissioner Selig's ire is directed on one of his own, in Dodger Owner Frank McCourt, and his professional relationship with Union Head Michael Weiner, we, for once, will likely not see a NBA/NFL style lockout in Major League. Moreover, Baseball has gone through a Renaissance where their revenue sharing structure has worked and Baseball continues to maintain its competitiveness across the board, where most owners and players are happy with the pay structure and there is no threat of a salary cap. Nonetheless, there are some modifications that Commissioner Selig will likely press the MLBPA and Union to enhance the competitive balance and entertainment value within the game.  Here is my educated guess as to what will be the main points of discussion in the upcoming bargaining sessions:

1. Reforming the Amateur Draft and Hard Slotting:  This will likely be the biggest battle waged, as Player Agents, errr I mean, Advisors,  have the most to lose.  Selig wants to reform this process because signing bonuses have been increasing each year, which causes smaller market teams to pass on better players for players they know they will be able to sign within their budgets.  This allows the big market teams to obtain the rights and throw big money to a player who should have been drafted with a higher pick.  There is no better example than when the Dodgers drafted the "unsignable" but highly talented Zack Lee as the 28th pick in 2010 draft by convincing Lee to give up LSU Football for Dodger Blue in return for a $5.25 million signing bonus. A hard slot within the draft would cap the amount of bonus money that a player can receive dependent on what round and what pick they are selected with.  Currently, the Commissioner's Office gives recommendations of how much a team should spend on a certain slot, but the teams are not required to abide by the recommendations. 

Next up, I will discuss another draft reform with the implementation of a worldwide draft.

Tuesday, October 18, 2011

A Christmas Miracle: How Mediation's Confidentiality Can Save Christmas Day Basketball

Sick of hearing about the NBA lockout? Well, you likely will not hear much more from both sides as the NBPA and Owners have moved their tense and acrimonious labor negotiations to mediation, where they hope common ground can be found under the guidance of a third party neutral in confidential negotiation sessions.  During this critical time, the owners and NBPA have turned to the Federal Mediation as a way to rebuild trust and thrust the negotiation's momentum forward.

It seems like the Mediation is off to a good start. Yesterday,  both sides met individually with Federal Mediation and Conciliation Director, George Cohen, and then today they joined together for a marathon ten hour negotiation session. If Cohen's name sounds familiar, it is because he was the man who oversaw the NFL Mediation sessions.

Monday, October 3, 2011

Demotion as Discipline: Learning to be a "Big Leaguer"

Florida Marlins' twenty-four-year-old, up-and-coming star, Logan Morrison was sent down to the minor leagues right after a game where he batted third in the lineup. Marlin brass told Lo Mo Morrison (LoMo) that he was being sent down for "baseball reasons" and cited his .240 batting average as evidence.  However, two days after being recalled, Morrison and the MLB Players' Association (MLBPA) filed a grievance against the Florida Marlin for what they see as a wrongful demotion.
Morrison believes that his demotion to AAA New Orleans was a form of discipline without just cause.  At the time,  LoMo was second on the Marlins in OPS, second in home runs, and third in runs batted in.  Additionally, the demotion came the day after LoMo missed a team meet and greet with Marlin season ticket holders.  LoMo had asked his Union Representative, Wes Helms, if he could miss the event, at which Helms replied that it was ok for him to miss.  Helms was released the next day; (perhaps due to his part in the ordeal in giving faulty advice).  Moreover, Larry Beinfest, Marlin President of Baseball Operations commented to the press that LoMo needed some more education on "being a major leaguer."

So the question remains, when can a major league player who has minor league options remaining be sent down to the minor leagues?  For that answer, let's turn to the text of the MLB Collective Bargaining Agreement.

Monday, September 26, 2011

In the NFL, It Gets Better; I Promise.

Pete Olsen, Ohio State University Moritz College of Law 3L Student, and author of the blog "Wide Rights" has uncovered quite a find in the new NFL collective bargaining agreement.  The NFL is the first professional sports league to protect players from any sexual orientation related discrimination (assist PrawfsBlawg). 
As Prawfsblawg (emphasis added by author) points out, the language from the 2006 CBA Article VII, Player Security, reads :
Section 1. No Discrimination: There will be no discrimination in any form against any player by the Management Council, any Club or by the NFLPA because of race, religion, national origin or activity or lack of activity on behalf of the NFLPA.
The new language in the 2011 CBA, now moved to Article 49, reads:

Thursday, September 22, 2011

Professional Athletes' Workers' Compensation? NOT IN MY HOUSE (California)!

One of the little discussed, but increasingly important NFL Collective Bargaining Agreement (CBA) issue in professional sports law is matters relating to professional athletes' workers' compensation claims. A disagreement has arose because numerous professional athletes have decided to choose California as the jurisdiction in which to file their workers' compensation claims, even if he had never played a game for a California home-team due to the belief that when it comes to Workers' Compensation Claims, California has plaintiff favored policies when it comes to work injuries that result from playing professional sports. This strategy was employed  much to the chagrin of the players' out-of-state employer who think that their players (employees) should be required to file their workers' compensation claims in the employers' home-state and have begun including contract provisions that preclude the players from bringing such injury related claims under California law.

However, even though this is an emerging and important issue within professional sports, the NFLPA and Owners punted on this issue, and decided to ratify the CBA and commence the football season  with this issue unresolved.  Nonetheless, both sides agreed to continue to negotiate in good faith regarding these emerging workers' compensation issues.  CBA Article 41 § (5)-(6) states that a joint committee will be formed to negotiate a possible California Workers' Compensation Alternative Dispute Resolution program on a trial basis.  This was agreed to with the big caveat that both sides retain their respective positions with respect to all current pending litigation. An example of such pending litigation was the case of the Chicago Bears versus three of their former players in The Chicago Bears Football Club Inc., et al. v. Michael Haynes, et al. No. 11 C 2668.  In her decision, U.S.  District Judge Elaine Bucklo affirmed an arbitrator's decision that the former Bears players were required to file their workers' compensation claims with the Illinois Workers' Compensation Commission instead of in California because their player contracts' required them to.

But why would a Chicago Bear  file his workers' compensation claim in California anyways?  For that answer, allow me to turn over the floor to Attorney Greg Grinberg; a Northern California Workers' Compensation Attorney who writes the blog wcdefenseca, a blog dedicated to California Workers' Compensation issues. 

Wednesday, September 14, 2011

Billy Hunter: "The Hunted" LP

The anguish was palpable after the latest NBA labor talks broke down after two long days of talks with little to no progress on a new collective bargaining agreement and a threat that training camps will not open on time.

The players' camp seems to be in disarray. There have been reports that some agents, taking the role as puppet-masters, are attempting to pull their players' strings in forcing the NBPA to decertify their union. Bill Duffy, Arn Tellem, Mark Bartlestein, Jeff Schwartz and Dan Fegan are the starting 5 on Team Agent, who also represent roughly one-third of the Union's players. They believe that the owners have most of the leverage and are ready to take it to the hole and blow up the union as a way to regain some of the power in the CBA negotiations, but union head Billy Hunter has rebuffed their proposal. In order for the Union to vote on the decertification issue, all Team Agent would have to do is convince all the players they represent, which totals roughly 30% of the Union members, to sign a petition to bring the issue to a vote.

NBPA President Derek Fisher rebuked Team Agents' request, and even called their motives into question. One only has to go back to the last NBA Lockout where the NBPA Executive Committee was accused of being run by super agent David Falk trying to protect his elite clients, as 10 out of 19 players on the Executive Committee were Falk clients including Union President Patrick Ewing, and fellow superstars Alonzo Mourning, Juwan Howard, and Dikembe Mutombo. This time around around, and probably much to Team Agent's chagrin, the NBPA executive committee is comprised of mostly role players and veterans (aside from star guard Chris Paul), which is evident by the leadership of veteran role player President Derek Fisher. Fisher and Hunter met with a group of about 40 players to discuss the progress or lack of progress in their negotiations with the owners and special guest presenter NFLPA Head DeMaurice Smith spoke about the decertification process as it was used for the NFLPA's specific needs. Many believe that Fisher is not ready to seriously consider decertification at this juncture as he believes that their NLRB complaint could be sufficient to shift the momentum. The Union appeared to leave the meeting an united front.

Subsequently, Fisher than sent an e-mail out to other members of the Union stating that the dysfunction was not among the players, but an internal divide within the Owners circle. After hearing these statements, Commissioner David Stern denied Fisher's allegations saying that the "vast majority" of the owners favor a hard salary cap and that the owner's negotiating committee has the authority to negotiate on all matters.

At their meeting, the owner's ratified a five year deal with NBA referees. The only question is how many games or if there will be a season to officiate at; Union Head Billy Hunter cautioned that the players should be ready to lose at least half a season at this time. Whether that is a threat or happens will be decided in the upcoming days. Derek Fisher has proven that he not only can lead teams to championship but can also unite all the NBA player's diverse interests. However, Billy Hunter needs to share some of the burden or it may not be too long that he ends up much like Hunter, Jan Levinson-Gould's assistant from NBC's "The Office," and let go to focus on his coffeehouse music tour.

Monday, August 29, 2011

The NFL CBA and Contract Holdouts

The Tennessee Titans put Chris Johnson, their standout running back, on the their reserve/did not report to training camp list today. Chris Johnson has held out for much of training camp in his own personal lockout because he wants to renegotiate his current playing contract to make him one of the highest paid players in the league. The holdout tactic is nothing new as players such as Emmitt Smith, Larry Fitzgerald, Logan Mankins and Vincent Jackson have used the tactic before. I thought that this was such a big issue that something would be included in the new collective bargaining agreement that would limit the practice.

Johnson is in the fourth year of a five year deal where he is scheduled to make $1.065 million this season, which would barely cover the $840,000 in potential fines that he has rung up for missing practices. Under Article 42, Section 1 (vi) of the new CBA, any unexcused late reporting or absence from preseason training camp by a player under contract comes with a $30,000 a day fine.

It is obvious that these fines have not been effective in stopping or deterring contract holdouts from occurring. I am currently writing and editing a law journal article on this topic where I propose that players and their teams enter into mandatory mediation prior to holding out, as opposed to salary or non-binding arbitration, which is prescribed for disputes over minimum contracts. I will either post that article or let you know where you can read it if I find a Journal to publish it. Nonetheless, the new CBA did not do enough to address the holdout epidemic and it will be costly to the players' teams and their fans. If and when Chris Johnson returns to the field for the Titans, he will be way behind the learning curve, which will have negative effect on the teams chances on winning the Super Bowl this season.

Monday, August 15, 2011

What exactly is in the new NFL CBA?

Lost in the excitement of the fact that football is back and the preseason games are in full swing is the fact there is a new 10-year collective bargaining agreement that is chock full of new and modified rules and provisions. With the second and third stringers seeing a majority of snaps, now is a better time to dig deeper into what exactly is in the new NFL CBA and the type of impact it will have on the NFL labor market as well as the ongoing and future CBA discussions in the NBA, MLB and NHL. The NFL CBA can be found here if you want to follow along at home.

Because the majority of the news reporters already covered the salary cap/revenue sharing deal points that seemed to take up a majority of the NFL lockout coverage, I will focus this discussion on more of the nuanced provisions such as: (1) the prevalence of binding arbitration as way to settle most disputes, including player contract holdouts; (2) new performance enhancing drug (HGH) testing; worker's compensation rules; (3) worker's compensation filing rules; and (4) the Commissioner's power to discipline players for off the field conduct, among others. Up first, we will discuss the rise of alternative dispute resolution, specifically the rise in the use of arbitration and whether it can be used to settle contract holdouts. Stay tuned!

Wednesday, August 3, 2011

No-no-no: David Stern Channels his Inner "Mutombo" to Preemptively Block NBPA

On Tuesday, Commissioner Stern ran up the "court" where he grabbed the first "Board"; National Labor Relations Board to be exact, to "block" the National Basketball Players Association (NBPA) from de-certifying as a Union. But enough for the flagrant foul worthy puns and onto what's going on in NBA Lockout Land. Stern decided to brush off his litigious rust that he fostered early on as the youngest Partner at Proskauer Rose, a white shoe law firm that has a significant sports law practice group, and preemptively strike and prevent the NBPA from decertifying. It seems as Stern learned from NFL Commissioner's Roger Goodell's cautious attitude toward the NFLPA decertification and wanted to stop it before it started. Goodell probably had a good understanding that it would take decertification in order to get the players back to the table. Goodell was rightfully optimistic that a deal would get done before risking any missed regular seasons games. You see, unlike the NBA, all of the NFL Franchises have been profitable. The lockout was just a way to reorganize how profitable the NFL could be and put the owners in a place where they could maximize profits for the longterm (i.e. 10 year deal.) In comparison, the NBA is not in great shape. Many teams have been taking losses the last few year to a point where almost half of the teams requested a credit extension from the League. That is not a good situation to be in when facing possible anti-trust litigation. Where as the NFL tweaked their salary cap structure, it seems that NBA Owners want to completely blow up their soft cap and start over again. This would be no easy fix in anti-trust violation settlement discussions. David Stern knew this and decided to nip it in the bud.

Monday, July 25, 2011

Are you ready for some football?!?!?! For realz!

It's over, it's over. The 136 day lockout is finito! Once again, it holds true that football does not really start until end of July! However, just as I predicted it was one hell of a roller-coaster ride to get to this point, from the Owners' vote last Thursday (gratuitous link due to this very bLawg getting cited) to today, but I do not think it is premature to say that the lockout is over and there should be football in the near future!

Thursday, July 21, 2011

Players Stuff the Rush

Just as I imagined, NFL players are not moving so fast on a vote on the NFL Owner's ratified agreement, with many stating that the owners may have tried to sneak in some non-agreed to terms. Also, as I mentioned, the players are not so quick to recertify their union and they are not happy that the Owner ratified agreement would interfere with their decision to reform as a union. NFL Network Reporter Albert Breer Tweeted:
Just filed a story on a second email from NFLPA to player reps, breaking down issues with deal and, in particular, recertification timeline. Email says NFL's rough timeline violates fed labor law: "Those laws prohibit employers from coercing their employees into forming a union."
The players may not be unfounded with this claim, as Section 7 of the National Labor Relations Act provides that “[e]mployees shall have the right to self-organization, . . . to bargain collectively through representatives of their own choosing, . . . and shall also have the right to refrain from any or all of such activities..." The players may be able to make a successful claim that the deadline to re-certify violates Section 7 of the NLRA.

More to come...

Are you ready for some Football?!?!??-Owners' in the players hands

According to many sources, the NFL Owners have approved a new collective bargaining agreement. The players will have a conference call at 8:00 PM EST to vote on whether to accept the agreement as well. The more interesting issue is that theoretically speaking, in order to accept the deal, the players would likely have to recertify as a union first and there are reports stating that a coalition amongst the ranks is against doing so. My opinion is that the owners likely would not accept a ratified CBA that is entered into via the Players' "Trade Association" because they would then lose their anti-trust exemption when it comes to player restraints. Usually a Union protects the interests of an average player to the detriment on superstar players, so it will be interesting to see who is in the coalition against recertification. Either way, stay tuned for what could be a climatic ending to the NFL Lockout.

I apologize for my recent lack of posts as I have been doing "2-a-days" in anticipation for the CA bar next week. I plan to provide an analysis of the biggest changes in this new CBA that affect sports labor and employment practices and which could impact the NBA's and MLB's respective CBA negotiations. I also plan to analyze this Recertification issue in more detail when my life gets back to normal. Follow me on Twitter for mini updates and I apologize for the brief hiatus.

Good Luck to any fellow bar takers out there...

Wednesday, July 6, 2011

You can find the NFL players in an Iowa cornfield

Here is FunnyOrDie's humorous take on the NFL Lockout. James Earl Jones actually does a pretty good job explaining the legal issues.

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Tuesday, July 5, 2011

What about us? Retired Football Players seek to Intervene in NFL CBA Negotiations

NFL Hall of Famers Carl Eller, Franco Harris, Marcus Allen and Paul Crause filed a motion asking U.S. District Judge Susan Richard Nelson to halt the mediation she ordered between the NFLPA and NFL Owners, and order that neither party can negotiate on behalf of the retired players. The retired players fear that the NFL Owners and current players are conspiring to dilute the retired players' benefit amount as a way to come to an agreement on how to split the $9 billion in revenue. Previously, the retired players and their legal representatives had been involved in the earlier mediation sessions, but as the mediation venue has changed, and as the NFLPA and players get closer to an agreement, the retired players have been excluded from the recent negotiations. The complaint alleges:
'Through the settlement they are forging, the Brady plaintiffs, the NFLPA and the NFL defendants are conspiring to set retiree benefits and pension levels at artificially low levels[.]'

Friday, July 1, 2011

A Picture is Worth a Thousand Words. What is a 'Non-picture" worth?

The Los Angeles Times is running an interesting story on how and all NBA team sites have removed all player images from their sites. Now when you surf over to your favorite team's site or, you are greeted by images of pictures David Stern's mug (meh), cheerleaders (niiiiiice), and WNBA players (yiiiiiikkkkkkkkeeeesssss!).

How did the Verbal Handshake almost turn Into a Symbolic F You?

While the NBA and the NBPA were descending into the lockout abyss, it looked as if the NFL and its player were ready to emerge in harmony from their lockout inferno. In fact, it was only Wednesday where Player Head DeMaurice Smith invited NFL Commissioner Roger Goodell to jointly address the NFLPA Rookies at the NFL Rookie Symposium in Sarasota, Florida.

However, that optimism soured when Smith and Goodel returned to the bargaining table yesterday,

Thursday, June 30, 2011

Twas the Night Before The NBA Lockout...

And although NBA Commissioner Stern and the Player Rep. Billy Hunter did meet;
All they could agree upon was: any basketball that fans will hear about will only be via Shaq's Rec. League Tweets.

NBA Commissioner David Stern and NBA Player Association head met today in New York for three-hours as a last ditch effort of avoiding an inevitable work stoppage. The NBA will lockout the players effectively at 12:01 EST tonight when the current agreement expires. All league business including free agent signings, trades, and summer league will be halted during the lockout.

Although, in essence, the effect of the lockout will be similar to that of the NFL, it is quite likely that this one may me lengthier than the NFL's (reportedly, the NFL and its players may be close to an agreement, but more on that in a subsequent post). Tulane University Sports Law Professor Gabe Feldman wrote an excellent overview on the NBA lockout. The major themes that will be discussed over and over again is the fact that the NBA wants to move from a soft cap to a hard cap, reduce length of contracts and other related issues. How this differs though from the NFL is that the NBA will claim that by not playing under the terms of the current CBA, NBA teams and the League as a whole would lose money, since many of the individual franchises did not do well last year. This is in direct conflict with the NFL, where even though NFL Commissioner Roger Goodell would never admit it, close to every NFL franchise owner made money last season, and the NFL itself, was quite profitable. Right now, the basis of the NFL disagreement is how to share the profit. This is not so in the NBA.

So what happens next? It is quite possible that the NBA Players Association (NBAPA) will take a play right out of Tom Brady's playbook and decertify their union and file an anti-trust suit. However, the NBAPA is probably waiting to see how it works out for Tom Brady and co. as their lawsuit is pending in the U.S. Court of Appeals for the 8th Circuit. However, if the NFL and NFLPA come to an agreement prior to the 8th Circuit decision, or even if the 8th Circuit rules against the NFLPA, the NBAPA could possibly decertify and bring suit in a employee/union friendly jurisdiction.

If you're a basketball fan, things could get ugly fast. However, if you are a sports law nerd like me, this ride should be an enthralling and prolonged soap opera. So who do you think will try another sport or pick up a new activity a la Chad Ochocinco? How about we send Omri Casspi, Jordan Farmar and Ron Artest to bring some "Metta World Peace" to the Middle East. I wouldn't mind watching Sir Charles Barkley taking hacks on the PGA tour. Maybe Lebron will try out his acting chops and star in Space Jam 2; it seems like the only way he can win a meaningful game is if it's written in a Hollywood script...Stay tuned.

Happy Lockoutx2 Day! And an introduction...

So here I am sitting in Bar Review class, listening to a lecture on how to write an essay on criminal law and criminal procedure. I am about ready to eat the poisoned fruit from the poisonous tree and call it quits. I have not taken a criminal law class or other related class in law school since 1L year. All of my chosen classes were related to sports and entertainment law; intellectual property, and dispute resolution. Unfortunately for me, none of the classes are tested on the California Bar. To maintain my interest in these subject areas I decided to start this blog to discuss the legal intricacies and going-on in this trying time of labor uncertainty in professional sports! Thus, welcome to Lockout Lowdown--a blog dedicated to contemporary labor law issues in professional sports leagues.