The NHL's Power Play

So the mediation has not worked and the NHL has decided to bring out their legal weapons.   The NHL made two legal filings ton Friday.  First, the NHL filed a class-action complaint in New York Federal Court aiming for declaratory relief that their lockout was legal.  This was a strategic move to get home field advantage in any legal dispute.  In the NFL lockout, the NFLPA players filed their antitrust lawsuit in the Eighth Circuit because that circuit has been characterized as union friendly as opposed to the Second Circuit, where the New York Federal Court resides in and is seen more pro-employer.  This mirrors the tactic taken by the NBA in their most recent lawsuit.  Could this be a prelude to the NHLPA union decertifying and bringing an anti-trust suit?

I would not be surprised if the NHLPA decertifies,  especially based on what the NHL has complained in their Unfair Labor Practice charge they complained of to the National Labor Relations Board.  The NHL complained that "by threatening to 'disclaim interest,' the NHLPA has engaged in an unlawful subversion of the collective bargaining process and conduct that constitutes bad faith bargaining under the National Labor Relations Act."

The NHLPA did not exactly deny the facts of the accusation, but moreso denied the law when they responded by saying that the "NHL appears to be arguing that players should be stopped from even considering their right to decide whether or not to be represented by a union."  The NHLPA had previous discussions on whether to issue a "disclaimer of interest" where the union walks away from representing players, with its primary advantage being that it is quicker than decertification and more informal.

It looks like the winter may be over before we see some action on the ice. 

Best wishes to Michael Weiner, MLBPA Head

MLBPA Executive Director Michael Weiner has begun treatment for a brain tumor.  Weiner plans to continue to work during his treatment and held a conference call with the player representatives of all 30 clubs where he told them they can and should call him if they need anything.  It is no wonder that he is so trusted and respected by the players, by higher ups in the Commissioner's office, and even by your humble blawger.  Mr. Weiner gave an informative and candid talk at the Sports Lawyers Association Meeting this past May.  He also was extremely patient as he answered all my questions when I approached him after his panel, which I greatly appreciate.   We wish Mr. Weiner a speedy and healthy recovery! 

The New MLB Draft

We are mere moments into the MLB Amateur draft and the Houston Astros with the first overall pick have already made headlines with their surprise first pick in Puerto Rico Baseball Academy's SS Carlos Corea. Is due to the new CBA?  Most reporters had pegged the Astros choice coming down to Byron Buxton and Mark Appel.   This is an interesting draft as it will be the first time that the draft pool bonus cap is utilized.  WEEI's Alex Speier wrote a great primer on the new draft rules. Let's take a look at those rules below the fold. 

Shameless Plug: Social Media in Sports: Can Professional Sports League Commissioners Punish 'Twackle Dummies'?

Please excuse this interruption to your regularly scheduled May Day reading as I shamelessly plug my article, which was recently published by the Pace I.P., Sports & Entertainment Law Forum. 

With celebrities, politicians, athletes, and non-athlete-kinda-Twitter famous-so not really celebrities, finding themselves in hot water due to some unfortunate comments they made via social media, I thought out loud---well---actually wrote out loud, as to whether professional sports league commissioners had the authority to punish their respective sports stars for tweeting bone-headed comments.   From my abstract:

Billy Hunter: "The Hunted" Pt. 2 Fisher Pres. Edition

Billy Hunter is being hunted again.  As you may remember, during the NBA Lockout there was a contingency of NBA Agents who formed Team Agent and tried to finagle the ouster of Billy Hunter as the NBPA Executive Director.  At the time, Union President Derek Fisher stood and propped Hunter up.  But it seems the tide changed during the lockout as mistrust between the two leaders grew and boiled over after Bloomberg reported that Hunter's family members and businesses had been paid $4.8 million by the union since 2001.  In response, Fisher called for an independent audit, which initially was signed off by the NBPA Executive Committee.

But the NBPA Committee quickly reversed course.  Hunter explained his family's involvement to the Executive Committee and then pushed the spotlight back onto Fisher and asked for his resignation due to the "numerous instances over the past six months, where Fisher engaged in conduct detrimental to the union, including acting in contravention of the players' best interests during collective bargaining, declining to follow the NBPA Constitution, and failing to uphold the duties of the Union President." 

Opening Day MLB Collective Bargaining Agreement Odds and Ends

Happy Opening Day one and all!  There is no greater feeling than that of opening day in major league baseball as each club and its fans enters a state of eternal optimism!  Who remembers who won last year's World Series?  Even the Cubbies can wait a few days before the eternal mantra of "wait until next year"starts being uttered in Wrigleyville.  Heck, with Major League Baseball and the MLBPA agreeing to add one more wild card per each league, they may even get to wait until late July before they throw in the towel.   Yes, as I described before, Commissioner Bud has gone wild card crazy.  Up against a stringent deadline and scheduling nightmare, the Commissioner's Office and MLBPA representatives were able to work together to come to an agreement for this season.  While the World Series and League Championship Series will remain, for 2012 only in order to deal with the scheduling nightmare, the parties agreed the five-game Division Series will begin with two home games for lower seeds, followed by up to three home games for higher seeds. Division Titles and Wild Card slots will also be decided by a one-game play-in if necessary, as opposed to the prior use of head to head records.  The way the playoff system will work is that the two wild card teams will play a one game play-off to decide who moves on to the division series.  This also creates a competitive incentive to win the division as division winners will have two off days prior to the start of their series, where as the wild card teams will likely have to burn an ace pitcher to make it to the next stage.  In lauding the deal, Cardinals Manager Mike Matheney pointed to how exciting the last day of the season was last year and how that this system can guarantee that type of excitement every year.

The Continued Interest in Professional Athletes' California Workers' Comp Claims

The NFL and the NFLPA is in a world of hurt these days (pun intended).  With accusations flying that  NFL Coaches offered "injury bounties" and legal claims being filed alledging that the most popular professional sport in America did not do enough to provide for the safety of its forefathers, it is no wonder that my blawg post on professional athletes workers compensation has been one of my most read articles.  In that September 22, 2011 post, Attorney Greg Grinberg, writer and editor of WCDefenseCA, succinctly explained why California has become the popular go-to jurisdiction for professional athletes to file their worker's compensation claims. 

Attorney Grinberg has continued this discussion with a series of in depth blawg posts, which further explore this issue.  Today, he discussed the Seminal Case: Injured Workers’ Insurance Fund of the State of Maryland v. Workers’ Compensation Appeals Board (2001) 66 Cal. Comp. Cases 923 (writ denied) involving Baltimore Colt Cleveland Crosby, which held that even though Crosby played only one game in California, he still was entitled to workers' comp. under California's labor code.  I encourage all readers who are interested in this subsection of professional sports law to head on over to WCDefenseCA, to participate, and to read Attorney Grinberg's "Visiting California for Workers' Comp" series. At the conclusion of his series, I plan on dedicating a post summing up Attorney Grinberg's posts while also providing my own opinions and interpretations regarding the issues he discusses. 

What happened to the NFL's HGH Testing Policy?

Penalty Flag! Excessive Celebration!  
The NFL and NFLPA should have taken the advice from"Pulp Fiction" character, Winston Wolf', instead of being so quick to congratulate themselves on being the first professional sports league to collectively bargain for Human Growth Hormone (HGH) testing.  Much to Commissioner Goodell's displeasure, the NFL and NFLPA were not able to implement HGH testing in the just concluded NFL Season. Even though they agreed to start testing for HGH in principle, however an HGH test has yet to be agreed to in any particularity.

During a pre-Super Bowl press conference, NFLPA Executive Director DeMaurice Smith's stated that HGH testing discussions are ongoing but there is no guarantee that an agreement will be reached before the 2012 NFL season. In fact, Smith declared:

"No one will bully us into a test"

The Legal Costs for Super Bowl XLVI

Yesterday's Super Bowl definitely was an exciting finish to an NFL Season that was on the brink of never occurring.  Remember that lockout that threatened to wipe out the season?  Well, here's a friendly a reminder I am sure most labor lawyers would be interested in.   The average Super Bowl ticket cost  $1,999.00, which is small beans in comparison to the amount that the NFL Players Association paid in legal fees incurred this past year. 

The Am Law Daily took an in depth look at how much was spent in legal costs leading up to the NFL lockout from March 1, 2010 through February 28, 2011.  The NFLPA, like all other Unions, have to file public LM-2 forms with the National Labors Relations Board.  The NFLPA spent approximately $63.2 million on representational fees including outside legal fees, and an additional $1.7 million on lobbying and political activities.  The top three law firms to rake in legal fees Latham & Watkins ($3.1 million), Dewey & LeBoeuf ($2.9 million), and Patton Boggs ($948,983).   DeMaurice Smith, former Latham and Patton Boggs Partner, and who is the current NFLPA Executive Director, did not do too shabby for himself either.  After agreeing to accept a $1 salary while the lockout was going on, Smith collected $1.5 million in back pay and an additional $1 million bonus for a job well done in resolving the labor quagmire. 

It will be interesting to see how large the legal fees were for next years disclosure that will include fees earned related to the lockout that occurred from March 2011 through July 2011.  I'll also provide a rundown of the NBPA and MLBPA's legal costs related to their CBA expenses once they become available.  However, Am Law Daily did a good job estimating their respective (MLBPA and NBPA) legal costs based on past disclosures. 

Bud Gone Wild (Card)

Bud Selig has a fever and the only cure is more wild cards.  Selig has taken a definitive stance that two additional wild card teams will be added to THIS upcoming season's postseason.  However, the MLBPA and Executve Director Michael Weiner don't think we should not hold our breath.

"The 2012 season was not designed to accommodate an extra round of playoffs," Michael Weiner, executive director of the Major League Players Association, told USA TODAY. "We're having discussions to see if it can work. We'll decide in the next month or so if we're able to do it." 

ESPN's Jayson Stark reported that others around the league also have their doubts. He reports that General Managers, TV Executives, and even Selig's own people think that it will be extremely difficult to rearrange the schedule to allow for contingencies, such as potential tie-breakers, and the additional wild card round.  MLB and MLBPA already decided to eliminate their archaic tie-breaking formula, which was based on such scientific determinative outcomes of a "coin flip"; now, all division ties will be broken on the playing field.  Time has been allotted for these potential tie breaking games for this season, but it is becoming difficult to find the time needed for the wild card round due to travel and prevent a snowy world series.   

Realignment and It Feels so Good Pt. 2: "Cold as Ice"

In part 1 of my realignment series, I discussed Major League Baseball's future realignment, where the Houston Astros will move from the National League Central Division to the American League Western Division.  Major League Baseball and the Major League Baseball Players Association agreed to this as part of their newly ratified collective bargaining agreement.

Like Major League Baseball,  the National Hockey League wanted to realign their divisions for the 2012-2013 season.  In December, the NHL's Board of Governors were forced to realign due to the Atlanta Thrashers move to Winnipeg.  It did not make much sense to keep the Canadian team in the Southeast division so they did a one-for-one swap moving the Jets into the Western Conference.  Moreover, the NHL Board of Governors also voted on a complete overhaul plan that made even more sense in their eyes.  The plan was to realign the league into a 4-conference setup where the top four teams in each conference would make the playoffs and the initial two playoff rounds would consist of inter-conference match-ups.  However, much to the chagrin of the NHL's Board of Governors, the proposal was rebuffed by the National Hockey League Player Association and their new executive director, Donald Fehr.

Realignment and It Feels so Good... Pt. 1

I took my blogging hiatus right as I was in the middle of my top 10 issues most likely to be addressed in the new MLB Collective Bargaining Agreement.  As I easily predicted--- I was not able to get through all top ten; in fact, I made it through three...   Nonetheless, number four on my list was going to be a discussion on REALIGNMENT!

As most of you know, in 2013, the Houston Astros will be moving to the American League West.    However, this came at a cost to ex-Astros owner Drayton McClane, who ended up having to take a discount on the sale of the team to persuade incoming owner Jim Crane to sign off on the move.  But why would Commissioner Selig sign off (some might say orchestrate) a transaction that ended up lowering the team's sale value.  Let's put on our tinfoil hats and cue the conspiracy theory...

I've fallen and I can't get up...

Kidding... But really, it has been a long while since I last posted.  A lot has happened since I left last---as I predicted, the NBA followed MLB's lead in signing new collective bargaining agreements and we were treated to a Christmas miracle with a NBA tip off (even if David Stern was the Grinch that stole CP3 from the Lakers).  I do apologize for my lack of action regarding these events, but unfortunately the holidays, my victorious march in the Constitutional Daily Fantasy Football League, and that crazy thing called "life" took up too much of my precious spare time.   I have said Kaddish and sat shivah for the loss of my beloved Green Bay Packers and I am ready to keep you up to date on all sports labor and employment law developments.  Happy New Year!  

On deck: "Realignment and It Feels so good..."

edit: it is with great irony, and also unintentional, that I decided to resurrect this blawg on the eve of SOPA blackout day...

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?"

Major League Baseball's Top 10 CBA Related Issues: #2 A Worldwide Draft

Well the World Series may be rained out, but the rain cannot rain on my MLB CBA Parade.  In fact the players and owners met today in New York to discuss the new CBA.  Here is part two of MLB's CBA related issues.  In my last post, I discussed the battle Commissioner Selig will wage for hard slotting in the amateur draft.  This post will continue our discussion of Commissioner Selig's wish to reform the MLB draft with the imposition of a worldwide draft.

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.

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.

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.

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:

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.