It was billed as the “Fight of the Century” – the match between world champion Manny Pacquiao and undefeated world champion Floyd Mayweather, Jr.  When every dime is accounted for, revenue from last Saturday’s fight at the MGM Grand in Las Vegas is expected to top $400 million. Unsurprisingly, that is a record.  Honest fans paid approximately $100 for pay-per-view access, and the fighters will ultimately split a purse worth more than $300 million.  In the end, Mayweather won by unanimous decision and, by every metric, the fight was a massive success for the athletes, their promoters, and the Vegas machine.  It was also a big letdown for fans who had waited for an epic match-up that arguably should have happened five years ago.

Reports subsequently revealed that Pacquiao injured his shoulder in the months leading up to the fight.  On Wednesday May 6, he underwent arthroscopic surgery in Los Angeles to repair a torn rotator cuff in his right shoulder.  Despite the preexisting nature of the injury, Pacquiao denied any “injury to [his] shoulders, elbows, or hands that needed evaluation or examination” on his pre-fight questionnaire submitted to the Nevada State Athletic Commission.  Pacquiao’s camp denied making any misrepresentation, stating that Pacquiao and his adviser, Michael Koncz, inadvertently “checked the wrong box” on the questionnaire.

Following the injury disclosure, boxing fans teamed up with a few entrepreneurially-minded class action litigators to flood the federal courts with lawsuits alleging fraud and conspiracy by the fighters, their promoters, the television networks, and television providers. See, e.g., here and here.

Of local interest, on Monday, two Philadelphia residents joined the fray with a class action matter filed in the United States District Court for the Eastern District of Pennsylvania.  Plaintiffs, Allan Gordon and Seth Lamb named Showtime and HBO, Mayweather Promotions, LLC, Pacquiao and his promoter, Top Rank, Inc., Top Rank’s CEO and President, Bob Arum and Todd Duboef, respectively, and Michael Koncz, alleging that the defendants conspired to conceal Pacquiao’s injury.  Protesting what they call a “sham fight,” Plaintiffs complain that Pacquiao injured his shoulder so severely that he could not train for a period of two weeks.  Plaintiffs suit is summarized in Paragraph 13:

Defendants each engaged in blatantly self-interested and wrongful conduct which violated the contractual expectations and rights of pay-per-view purchasers who fully anticipated and contracted for access to view and observe an honest and fair boxing match played in compliance with all laws, regulations, and [Nevada Athletic Commission] rules.

Gordon and Smith each paid $99.99 to watch the match – Gordon from his secondary home in Hallandale Beach, Florida, and Smith from his home in Philadelphia.  They assert statutory claims under the Pennsylvania Unfair Trade Practices and Consumer Protection Law (the “UTPCPL”) and the Florida Deceptive and Unfair Trade Practices Act, both of which provide for remedies in addition to actual damages. In the case of the UTPCPL, for instance, a consumer can recover three times the amount of his or her actual damages and an award of attorneys’ fees for a proven violation of any provision of the UTPCPL.  In addition to their statutory claims, Plaintiffs assert common law claims for tortious interference with a contractual relationship, fraud, breach of contract, unjust enrichment, and civil conspiracy.

Plaintiffs ask the Court to certify the matter as a class action and to designate Plaintiffs as representatives of a class that Plaintiffs anticipate will exceed “hundreds of thousands” of pay-per-view subscribers.  In reality, the class of potential plaintiffs could exceed five million.

Given the number of actions and potential class members, it is likely that present and future actions arising from the fight will be consolidated by the United States Judicial Panel on Multidistrict Litigation for the purposes of reducing expense and the toll on judicial resources.  The MDL is a panel consisting of six federal judges from across the country (including Third Circuit Court of Appeals Judge and former First Lady of Pennsylvania, Marjorie Rendell), which serves to (1) determine whether civil actions pending in different federal districts involve one or more common questions of fact such that the actions should be transferred to one federal district for coordinated or consolidated pretrial proceedings; and (2) select the judge or judges and court assigned to conduct such proceedings.

In the interim, the chairman of the NSAC, Francisco Aguilar, has already promised an investigation by the state attorney general’s office, implying that Pacquiao might be facing perjury charges.

Baseball Hall of Fame

The Baseball Hall of Fame, Cooperstown, NY

This week, we have a special guest columnist:  Jim Gauger, a long-time sports journalist, a voter for the Baseball Hall of Fame, and, as it so happens, my father.  Jeff Kravitz and I asked him to contribute his thoughts here due to actions recently taken by the muckraking sports website Deadspin.  Deadspin has apparently arranged with a Hall of Fame voter to purchase his or her ballot, turning the piece of paper – and yes, it is still a standard, photocopied, single sheet of paper – over to the website’s visitors.  Could this all be a joke?  Perhaps.  Deadspin and the larger Gawker empire (Deadspin‘s parent website) have been known to overpromise and underdeliver on fantastical stories in the past.  That being said, Deadspin is accepting votes as we speak, so there appears to be something to it.

What will happen to the anonymous voter?  There are, of course, immediate legal implications — the writer will almost certainly lose his or her voting rights, if not membership in the Baseball Writers’ Association of America altogether, once they have been identified.  Moreover, in situations like these, litigation is often lurking in the wings.

Beyond those concerns, however, Jeff and I thought it would be important to hear from a Hall of Fame voter, to learn more about the internal culture of voting, and the reasons why the system is set up the way it is.  First, of course, I made my father promise that he isn’t the renegade voter.  He has assured me he’s not.

– Neal J. Gauger

***

PHILADELPHIA, PA:

The gatekeepers of baseball tradition are up in arms over a single Hall of Fame ballot.

A member of the Baseball Writers’ Association of America (BBWAA), a group of more than 600, sold his or her 2014 Baseball Hall of Fame vote to Deadspin.com, according to the website.  Under the arrangement between Deadspin and the voter, readers of Deadspin will vote for whom they think should be inducted next year. Then the person who sold the vote will apparently use those names – 10 is the maximum – to fill out the official ballot. This year’s voting results will be announced on Jan. 8 after which, promises the website, the author of the ballot will reveal him or her self, as well as the motivation behind the protest.

In order to grace the stage in Cooperstown, N.Y., next July, a candidate needs 75 percent of the votes.  Sort of like hitting an inside-the-park home run.  Only 303 individuals have been elected to the Hall.  Of them, the writers have selected 112.  Last year, no one got enough votes; it was the first shutout since 1996, and only the eighth time in history.  Craig Biggio was the leader with 388 votes (out of 569 cast) – 68.2 percent.  Jack Morris received 385 – 67.7 percent.  Howls were heard, of course, together with proposals that a lower percentage be required for admission.  The fact is, however, the high statistical hurdle gives the voting process integrity.

The results for the 2014 election are mere weeks away.  Fear not, there will be inductees in 2014.  Most likely a trio of first-ballot candidates – Greg Maddux, Tom Glavine and Frank Thomas – among them.  Being a first-ballot inductee is the ultimate honor in Baseball Hall of Fame circles, one reserved for the most impressive of individuals.

So who votes? The bylaws:  “Active and honorary members of the BBWAA, who have been active baseball writers for at least 10 years shall be eligible to vote.”  Critics of the voting system are many.  There are writers who feel that “journalists cover the news, not make the news,” and thereby should not be voting.  Objectivity, to be sure, is the cornerstone of journalism.  In today’s social media world, anyone who wishes can have an opinion.  More than ever, it is up to the reader to evaluate the messenger before evaluating the message.

The renegade voter contracting with Deadspin is obviously in anguish over the BBWAA’s voting system.  Let all the players vote?  Let the public vote?  Who is really qualified to vote?  Perhaps it is a protest against the failure to elect Barry Bonds and Roger Clemens, both of whom have been publicly scrutinized about drug use during the so-called “Steroid Era” of baseball.  Perhaps it is a protest over Pete Rose’s  name missing from the ballot.

I know the system for voting a player into the Baseball Hall of Fame is not perfect.  There are people who cover the game and know the game by heart, but aren’t part of the BBWAA.  Vin Scully comes to mind.  It has been my experience that baseball writers try to do the right thing.  Consider former Phillies pitcher Steve Carlton, who I have seen yell at approaching writers to stay away from his locker in the team’s clubhouse, and not in such kind terms.  He was adamant about a no-talk policy, which of course, was his right.  Yet, those same writers he declined to speak with gave him a plaque at Cooperstown on the first ballot.  They knew his art of throwing a baseball deserved that accolade.

Voting is taken seriously by the writers, to the very end.  I knew at least one longtime baseball writer whose love for the game (not so much for the umpires) exceeded that of anyone I have ever known. When he died, I am told, his BBWAA card went in the grave with him.

The voter who sold his or her vote will deal with the consequences of doing so; I cannot imagine it was a decision made lightly.  In practice, however, it is nothing more than an awkward way to gain some attention.  Some changes may be made due to this mockery of the voting system.  One thing is certain, however – it shows a lack of respect for the game and for those who report it.

Jimgauger Jim Gauger is a former sports editor at the Times of Trenton, N.J., and an honorary member of the Baseball Writers’ Association of America.

marvinmiller

The Los Angeles Times recently published an article citing the injustice of denying baseball’s great labor leader a booth in the Hall, but they do not answer the question of “why.”

There certainly is no legal obligation to vote him in, despite the fact that he changed the game forever and the owners as well as players are doing extremely well.

Perhaps the answer lies with changing American society. Only a small number of the labor force is unionized now and maybe it looks a little too “blue collar” for the “blue bloods” of the game.

My father was a teamster and proudly so. The new film “Captain Phillips” has one character entoning that he was “25 years a union man” and proud of it.  Tom Hanks, playing the captain, threatens to get him off the ship in Africa, all as per union rules.  I used to ask prospective jurors about union membership, but have not for years, as so few are members nowadays. Thus, the voters may have deemed his relevance  “so five minutes ago.”

For all those who tolled before free agency and for all those who now benefit, how sad to ignore baseball history.  In the meanwhile, the players themselves are left to honor his contributions.

wristslap

The NCAA recently imposed sanctions on the University of Miami (“Miami”)  for numerous violations of the National Collegiate Athletic Association (“NCAA”) rules over approximately a ten year period.   Miami largely agreed with the investigation’s findings that Miami athletic personnel and a former Miami booster and investor in a sports agency provided improper financial incentives to student athletes, prospective student athletes, their families and friends, coaches and university personnel, and that university personnel improperly telephoned and texted prospective student athletes in violation of NCAA rules.  The investigation ultimately concluded that Miami lacked institutional control over its athletics program in that it failed to appropriately monitor and control its athletics programs, particularly in connection with the football and men’s basketball teams, though there were violations in connection with nearly all of Miami’s athletic programs.

The NCAA’s finding of lack of institutional control  alone is considered sufficient under certain circumstances for the NCAA to impose a complete prohibition on the university playing certain sports — “the death penalty.”   Remember SMU’s football program and its slush fund?    The NCAA, however, imposed a much lighter sentence on Miami.  Specifically, the NCAA deprived Miami of nine  football scholarships and one basketball scholarship for three years,  placed Miami on probation for three years, placed restrictions on unofficial visits by prospective athletes, imposed a five game suspension on the former men’s basketball coach and two year show cause for two former assistant football coaches and one assistant men’s basketball coach.   Miami had previously self-imposed a two year bowl ban.   Thus, the NCAA largely accepted Miami’s proposed level of discipline despite the serious and on-going nature of Miami’s violations.

Although Miami failed to enforce its institutional controls over its athletic programs and clearly failed to establish a culture of respect for NCAA rules, Miami did self-report once it became aware of violations, reported possible violations it became aware of but could not confirm, cooperated with the NCAA’s investigation, and imposed fairly harsh penalties on itself for violating these rules.    This may seem unfair to the likes of SMU which received the death penalty and USC whose recommended discipline was largely disregarded by the NCAA.

It may also strike some as encouraging other programs to ignore NCAA rules given that much harsher discipline could have been imposed; however, imposing less severe sanctions and largely adopting universities’ self-imposed discipline may, in the long run, benefit the NCAA by encouraging universities to self-report and impose discipline so as to immediately discourage future misconduct.   It may also level the playing field to some degree in that the NCAA will need to devote less time and attention to investigating programs that self report and impose their own discipline.  This will  enable the NCAA to spend more time investigating and disciplining those programs that  intentionally flout NCAA rules and attempting to avoid discovery.

Will it work?  Only time will tell.