National Basketball Association (NBA)

David Kiefer writes:

With the calendar turning to September, that means that NBA training camps will open in less than one month. And while the players’ main offseason focus was on how the influx of new national television revenue will put more money in their pockets (8 players signed new or amended contracts worth more than $100 million this past offseason), a lesser-celebrated event – in this case, a change in the law – will lead to a number of players keeping a bit more money in their own pockets.

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Since July 1, 2009, NBA players who have played games in the state of Tennessee – both as visiting players and as members of the Memphis Grizzlies – have paid a $2,500 per game “Professional Privilege Tax for Professional Athletes,” up to a maximum of $7,500 per year. See T.C.A. §§ 67-4-1702, 1703. The tax was particularly onerous on minimum salary players, as the players’ union contended that minimum salary players had a nearly 100% effective tax rate for games played in Tennessee (after accounting for federal income taxes and any other state income taxes due in the player’s home state). However, as of June 1, 2016, NBA players no longer have to pay Tennessee’s $2,500-per-game privilege tax.

In passing House Bill 1134 and Senate Bill 1247 in April 2014, the Tennessee legislature removed NBA players (as well as NHL players, who were also subject to the tax) from the list of individual required to pay the state’s privilege tax. The elimination of the tax on NHL players was effective immediately, while the tax on NBA players remained in force through the 2015-16 NBA season.

Tennessee’s Professional Privilege Tax for Professional Athletes was unique for a few reasons. First, Tennessee has no state income tax, which meant that the tax was structured as an occupational license tax. NBA and NHL players – two groups of individuals whom typically do not require state licenses or certification to work as professional athletes – were nonetheless required to annually pay the $2,500-per-game tax, which was well in excess of the $400 tax due from other Tennessee-based professionals (such as accountants, architects and attorneys).

Second, the money collected from tax was “deposited into a municipal government fund located in the same municipality as the indoor sports facility in which the game was played.” T.C.A. §§ 67-4-1703(e). In essence, part of the tax revenues collected were paid to the operator of FedEx Forum in Memphis, which happened to be the ownership group of the Memphis Grizzlies (the portion of the revenues attributable to NHL players went to the operator of Nashville’s Bridgestone Arena, which also happened to be the owners of the Nashville predators). Those tax revenues were then used to attract other sports and entertainment events to the Memphis area, such as bowl games, concerts and the like.

Finally, Tennessee’s privilege tax was arguably unconstitutional. Prior to the tax being repealed, NBA players sought refunds of previously paid privilege taxes on the basis that the privilege tax violated the United States Constitution’s dormant commerce clause, due process clause and equal protection clause. Had the cases proceeded to litigation, these arguments could have proved meritorious, as Ohio’s Supreme Court recently analyzed similar taxes involving Cleveland’s municipal income tax and ruled that Cleveland’s tax violated players’ constitutional rights. See Hillenmeyer v. Cleveland Bd. of Rev., 144 Ohio St.3d 165, 2015-Ohio-1623, ¶ 49 (rejecting equal protection challenge and declining to address commerce clause challenge, but holding that the tax “imposes an extraterritorial tax in violation of due process, because it foreseeably imposes Cleveland income tax on compensation earned while Hillenmeyer was working outside Cleveland”); Saturday v. Cleveland Bd. of Rev., 142 Ohio St.3d 528, 2015-Ohio-1625 (declining to address constitutional challenges to Cleveland’s municipal income tax but holding that “a professional athlete whose team plays a game in Cleveland but who remains in his home city participating in team-mandated activities is not liable for Cleveland municipal income tax”).

Now, Tennessee’s privilege tax is no more, and players on all 30 NBA teams will leave Memphis with a little more money in their pockets.

David Kiefer is an associate in the Labor & Employment Department, resident in the firm’s Pittsburgh, PA office.

Copyright:  / 123RF Stock Photo
Copyright: / 123RF Stock Photo

Take a look at his highlight reel. Looks good. Great backstory (from war-torn Sudan). And wants to play pro ball. He is 19 and is at one of those finishing schools back east. Essentially a 5th year of high school. The NBA says you have to be 19 and graduate high school to be in the draft.

It was Dickens who said “the law is a ass, a idiot.” (sic) I think the rule of reason should apply here. If you are the commish, why make him go to China for a year? In this case it serves no educational or commercial purpose.


Copyright: ericbvd / 123RF Stock Photo
Copyright: ericbvd / 123RF Stock Photo

This famous (and incorrectly reported) quote is attributed to Samuel Goldwyn of MGM fame. The response is “It depends.” DeAndre Jordan of the L.A. Clippers told everyone that he was going to sign with the Dallas Mavericks. He goes to Texas yet meets again with a group of teammates from the Clippers. All of a sudden, he is wavering.

In California oral contracts are legal with certain statutory restrictions. For example, palimony suits are so ‘70s and the courts tired of them, nixing them in the California codes. Oral promises to marry are so 19th Century, but used to be legal and subject to suit.

In any event, the NBA requires a written contract and it is his prerogative for Jordan to come back home to his adopted land and lead the Clippers to the Promised Land.

By the way, Mavs owner Mark Cuban might be subject to another Goldwynism from Mr. Jordan, “I will never talk to you again, unless I need something from you. “

Monmouth Park Racetrack
Copyright: andykazie / 123RF Stock Photo

Today is a crucial day for New Jersey in its mission to legalize sports betting, as it will argue its position on the issue against attorneys for the four major American professional sports leagues and the NCAA this morning in the Third Circuit Court of Appeals in Philadelphia, Pennsylvania.

Attorney Theodore B. Olson, who represents New Jersey in this action, plans to argue that U.S. District Court Judge Michael Shipp erred in ruling that that New Jersey’s partial repeal of its prohibition against sports wagering violates the federal Professional and Amateur Sports Protection Act of 1992 (“PAPSA”).  New Jersey will likely also assert that the professional sports leagues have “unclean hands” due to their partnerships with fantasy sports websites.

While it is true that some sports leagues have recently embraced pay-fantasy sports websites, the leagues remain steadfast in their quest to thwart New Jersey’s legalization efforts.  They believe that PAPSA clearly prohibits the 46 states not exempted from the act’s application from legalizing sports betting in any fashion.

The Third Circuit has previously ruled in favor of the sports leagues, but the Court’s prior Opinion potentially provided the state with a loophole – it acknowledged that even under PAPSA, states have “much room . . . to make their own policy” and can establish their own parameters of sports betting prohibitions.  New Jersey will assuredly use that language in support of its argument today.

Led by Governor Chris Christie, New Jersey has been undeterred by many unfavorable court decisions in the two-plus years since the sports leagues initially sued to prevent the state from commencing sports betting.  While nearly all casinos and racetracks in New Jersey have seen revenues decrease each of the last few years, the state and its casino/racetrack owners believe that sports betting could reverse their fortunes and bring in millions of dollars yearly.

Whether the Third Circuit will continue to affirm the sports leagues’ position that PAPSA prevents New Jersey from having authority to legalize sports betting remains to be seen. What is certain is that today’s oral argument and the resulting decision is extremely crucial in determining the future of potential sports betting in New Jersey, in addition to many other states that may wish to follow its lead.

Copyright:  / 123RF Stock Photo
Copyright: / 123RF Stock Photo

As heard on The Herd (note: the linked ESPN radio interview plays automatically), Clippers point guard Chris Paul been fined by the NBA for allegedly dissing a female referee. Generally considered a very good, very bright guy, and the union rep, Paul has been criticized for criticizing.

Absent other details of which this lawyer has not been informed, sometimes a cigar is a cigar. We’ll know we’ve reached an egalitarian society when everybody can be criticized equally. In SoCal, the public tends to understand all of this. I have found that employment cases are much easier to litigate where there is not one dominant ethnic group. Jurors run the gamut from Aussies to Zanzibarians, who tend to understand that it is a big world out there.

Monmouth Park Racetrack
Copyright: andykazie / 123RF Stock Photo

On Friday, Judge Michael Shipp granted the NCAA and four major professional sports leagues a permanent injunction to prevent New Jersey casinos and racetracks from offering sports betting.  The decision was unsurprising, but still extremely disappointing, to New Jersey state officials who have been attempting to establish legalized, regulated sports betting in the state for over three years.

New Jersey should, and it appears will, exercise any and all legal options it has in fighting to establish sports betting in the state.  State Senator Raymond Lesniak, the leader of New Jersey’s campaign to legalize sports betting, told ESPN on Friday that New Jersey would appeal Friday’s decision to the Third Circuit Court of Appeals this week.

Regardless of the outcome of the appeal, hopefully other leagues will follow the lead of National Basketball Association Commissioner Adam Silver.  Eight days before Judge Shipp’s ruling, Silver, whose league ironically is a party fighting against sports betting in New Jersey, wrote a heavily-discussed op-ed in the New York Times calling for Congress to “adopt a federal framework that allows states to authorize betting on professional sports, subject to strict regulatory requirements and technological safeguards.”

Silver acknowledged that sports betting in the United States currently operates mainly through “illicit bookmaking operations and shady offshore websites.”  Why not legalize and regulate the industry so governments and legitimate businesses can be the beneficiaries instead of underground bookmakers and offshore websites?

If the NCAA and other professional sports leagues adopt Silver’s position, Congress would be more inclined to pass legislation revoking the outdated Professional and Amateur Sports Protection Act.  The benefits of an industry that will continue to thrive whether or not it is operating legally should shift from underground bookmakers and offshore businesses to governments and legitimate businesses.

By John W. Polonis

Villanova University School of Law

Editor-in-Chief, Jeffrey S. Moorad Sports Law Journal


Stadiums are common carriers for the public, and therefore, states’ use of eminent domain for their construction should be justified. While the use of eminent domain may not be ideal, the long term community and economic benefits of stadiums will likely outweigh any costs of condemnation.

The eminent domain power of the state should not be absolute, but in cases like the one involving the Barclays Center and other similarly situated stadiums, it is necessary to spur economic and community development. Under the 5th Amendment of the United States Constitution, the government can only “take” private property from one citizen and transfer it to another if the property is put to a “public use.” See Kelo v. City of New London, 545 U.S. 469, 498 (2005). Under Kelo, the government may permit condemnation of privately owned, non-blighted land so long as the land is part of a comprehensive plan for economic development. See Carol L. Zeiner, Article: Eminent Domain Wolves in Sheep’s Clothing: Private Benefit Masquerading as Classic Public Use, 28 Va. Envtl. L.J. 1, 2 (2010). In response to Kelo, a majority of states have passed legislation limiting their eminent domain powers, but New York was not one of them.

The New York Court of Appeals reaffirmed its rule, allowing the condemnation of businesses, public property, and private homes for private economic development projects like the Atlantic Yards, the current home of the Barclays Center. See Goldstein v. New York State Development Corp., 13 N.Y.3d 511 (2009).Post-Kelo, most state and Federal courts give broad deference to state legislatures and their views on exercising or curtailing the state power of eminent domain. For Federal courts, commentators describe the judge’s task as “patrolling the borders” of the condemnation decision, examining it objectively, and not searching for some illicit governmental motive for exercising the taking. See Michael A. Rosenhouse, To “Public Use” Restrictions in Federal and State Constitutions Takings Clauses and Eminent Domain Statutes, 21 A.L.R.6th 261. Both state and Federal courts will often defer to state legislatures to define what constitutes a public use or purpose.

In Goldstein v. Pataki, 516 F.3d 50 (2d Cir. 2008), the Second Circuit found a rational relation between public use and a private developer’s construction of a new stadium for the NBA’s Nets franchise in a public open space, along with the construction of affordable housing units, and the redevelopment of an area of downtown Brooklyn. See id. The area had been afflicted for decades with substantial blight that one person described as “a scar that divided the neighborhood.” The Court deferred to New York’s legislative judgment even though it involved a private developer implementing his own private development plan. The court explained that the stadium was a municipal use in the interest and for the public benefit of the citizens. Given the scope of the state’s police powers, the legislature had the authority to make this public use determination.

Similarly, the court in Southeast Land Development Associates v. District of Columbia, 2005 WL 3211458 (D.D.C. 2005), rejected a public use challenge to the District of Columbia’s use of eminent domain to build a baseball stadium and refused to adopt a test to project the magnitude of the anticipated public benefit. Deferring to municipal legislative judgment, the district court for the District of Columbia found that the Public Use Clause requires only that a taking be “rationally related to the broad concept of public use or public interest and does not imply a means-ends test.” See id. Therefore, it’s only the purpose of the taking, and the not the means employed, that must pass rational basis scrutiny.

Although the evidence suggests that most state legislatures outside of New York disapprove of permitting the broad use of eminent domain to build stadiums, Federal and state courts are inclined to permit such takings so long as they are rationally related to a public use or purpose. Given the low rational-basis bar for “public use,” people and their representatives must pass legislation to limit the courts’ broad interpretation of public use. A broad interpretation of the Public Use Clause particularly benefits private developers in states like New York where the legislature has not acted to limit eminent domain, thereby allowing takings of private lands like the Atlantic Yards. Development of these blighted areas is rationally related to public benefits of more jobs, affordable housing, and retail and office space.See Kelo, 545 U.S. at 501; see also Goldstein, 516 F.3d at 50. The argument that a sports franchise can unite people and create economic growth usually suffices to justify a taking in the courts, unless the state legislature says otherwise beforehand.

In an ideal world, developers like Chris Hansen in Seattle will not need the assistance of eminent domain laws to acquire land to build a stadium, but sometimes they must. The prospects of more jobs, housing, and retail space, along with a sports franchise to enhance the community spirit of a city, serve as great incentives for state legislatures to loosen the restrictions on eminent domain.  While the New York model may not be the one to emulate, if more states permit the use of eminent domain for the construction of common carriers like stadiums, then previously underdeveloped and struggling areas could experience prosperous economic growth. Justice O’Connor, dissenting in Kelo, concluded that the Public Use Clause includes common carriers “such as . . . a railroad, a public utility, or a stadium.” 545 U.S. at 498. This conclusion serves to distinguish widely unpopular takings in favor of corporations of the sort in Kelo with sports stadiums, where the general public has an actual opportunity to use and enjoy them.

When baseball players seek free agency, there is a procedure called a baseball arbitration.  In it, each side names a number not known to the arbitrator. The arbitrator examines the proofs from management and the player’s representative, and then announces his "number."  The party closer to the number gets what it has advanced.  Why not try it in basketball?  It would be high stakes, but would end the impasse.  I do not know whether I am more depressed by the state of basketball negotiations or the Super Committee.

Bill Simmons in lists about two dozen ways for the NBA to fix itself. Brilliant column, starting with the harsh economics of the game, the new technology and how not to ruin a great thing. Check it out. It is the kind of forward thinking that should have been written and acted upon by the music industry before the start of the technology revolution or by the feds before we have come within a few weeks of the debt ceiling crashing on all of us. Just look at the legal system trying to deal with two lockouts….