Sports Law Scoreboard : Sports Lawyer & Attorney : Fox Rothschild Law Firm : Intellectual Property, Copyright Infringement & Privacy for Athletes

By Jeffrey S. Kravitz, Esquire

The NHL just announced that all games are cancelled until the New Year. Like marriages, labor quarrels are very tough to analyze from the outside. What I do know is that hockey fans always poll up there with NASCAR fans as the most committed to their sport. What I also know is what Canadian author also noted (with a disclaimer as to his comments on French Canadians):

Canadians are actually the most tolerant of foreigners. Mordecai Riccler said "Canada is not so much a country as a holding tank filled with the disgruntled progeny of defeated peoples. French-Canadians consumed by self-pity; the descendants of Scots who fled the Duke of Cumberland; Irish, the famine; and Jews, the Black Hundreds. Then there are the peasants from Ukraine, Poland, Italy and Greece, convenient to grow wheat and dig out the ore and swing the hammers and run the restaurants, but otherwise to be kept in their place. Most of us are huddled tight to the border, looking into the candy store window, scared of the Americans on one side and of the bush on the other."

-Mordecai Richter

With all of the present political problems, I still wish that the President (under Taft-Hartley) and the Prime Minister could order them back to work. That would be reaching across the aisle as well as across the border.

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As reported in our blog, small businesses have suffered mightily due to the NHL strike.  The Sports Business Journal now reports that the Small Business Administration is now offering counseling to those businesses hurt by the NHL strike.

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By Jeffrey S. Kravitz, Esq.

Marvin Miller died and there will be obituaries in most media outlets for this pioneer. His contribution to the profession was summed up by former All-Star third baseman Ron Cey, who I heard speak the other night. Cey is now an executive with the Dodgers and the discussion was about the how the game had changed over the course of the years. His immediate response was "Thank God for Curt Flood," the courageous player who challenged the baseball reserve clause. Before the legal challenge, players basically had to either accept management's contract or withhold their labor.

Well, without Marvin Miller, there would have been no Curt Flood. As head of the players' union, he directed and supported that fight, resulting in what are now record breaking salaries. What also needs to be pointed out is that baseball itself has prospered, growing from a $10 billion business in 1995 to a gross receipts business of over $30 billion last year. Miller had what has been described as the demeanor of an accountant and that in part allowed the American public to view him as a sane representative of (high priced) labor, rather than as a bomb thrower. The greatest player....obviously Jackie Robinson, but how many kids have baseball cards with union leaders on them?  

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By Jeffrey S. Kravitz

As featured in the Toronto Globe and Mail a Canadian company that sells 95% hockey chatchkes is suffering mightily by virtue of the hockey lockout. Does the NHL owe that person anything...no, because it is a commercial relationship and not a fiduciary one. What is a fiduciary? It is a person or institution that owes another the highest duty of good faith. Think a trustee or dare I say it, a lawyer. The law imposes superior obligations on such folks by virtue of the trust imposed in them. The NHL....likely nada. How could the vendor have protected himself?  He could have tried to put a clause in his license contract with the NHL that required them to pay him in the event of a strike or lockout (good luck). Perhaps he could have obtained business insurance that did the same thing. Or he could have diversified as stated in the article to Major League Baseball or the NBA. The lesson? As presidential advisor Bernard Baruch once remarked, "if you are going to put all of your eggs in one basket, watch the hell out of the basket."

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Education is a unique commodity. Beyond the ability to earn more in the marketplace, education has an intrinsic value. It gives individuals the tools to more fully engage the entire observed world psychologically, personally, professionally, politically, and philosophically. Few other endeavors so dramatically expand rather than diminish returns of investment over time. Thus, questions of compensation in the school setting pose particular challenges to those who must adjudicate them.

I recall my own personal foray into the question when it involved graduate student unionization at Columbia University. As part of the student caucus of the Faculty Senate, I participated in difficult discussions with students, faculty and the administration about the challenges of collective bargaining in the academic environment. Students and administration officials in private universities continue to argue their positions on the matter.

The attention and money involved in student athletics only amplify these difficulties. Ed O'Bannon and Missy Franklin demonstrate the spectrum of student athlete compensation issues.  Former UCLA Bruin Ed O’Bannon is lead plaintiff in a 2009 class action suit seeking a percentage of the NCAA"s licensing revenue. He recently attempted to expand the class to include current men's basketball and football players, the two sports that garner the majority of licensing revenue for the NCAA. Under NCAA Operating Bylaws 12.1.2.1.4.1.2 and 12.1.2.1.4.3.3  "Operation Gold Grant" (Aug. 2011), Missy Franklin would be allowed to keep over $200,000 in compensation for her London Olympics' performance. Though, to her credit, she would forego exponentially more money if she retained her NCAA eligibility.

These difficult issues will require further exploration by NCAA officials, courts and other administrative bodies. However, "just saying no" to compensation may no longer be an option for the NCAA.

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