SBJ/May 15-21, 2017/Opinion

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  • Red Sox’s swift reaction smart, welcome but tricky

    We talk about the fan experience. The “fan experience” at its root was evident earlier this month at Fenway Park. When Adam Jones of the Baltimore Orioles went public that a fan at the game used racial slurs toward him, it spoke to the heart of the fan experience. Too often it’s about Wi-Fi connectivity, concessions and parking. Sure, those are all major components. But the fan experience is truly about safety and comfort, the opportunity to have a great time with friends and family. Boorish behavior is too often tolerated as part of the experience, and when Jones went public, he started a discussion about those elements that are too frequent at games.

    People say, “Well, it’s Boston. That happens there.” And it does. I still remember a game in 1978, where my father took me, my sister and a friend to Fenway. We sat in the bleachers, and it was the perfect storm: A hot summer Saturday, a close pennant race with a choking team, and a doubleheader. It wasn’t an enjoyable experience. So, yes, unpleasant experiences happen in Boston — but they can happen in New York, Philadelphia and L.A.

    I give the Boston Red Sox ownership and Sam Kennedy credit for how strongly they dealt with the Jones situation. Kennedy immediately went on talk radio and local TV, he was angry and clear — such behavior would not be tolerated. There was no questioning Jones’ credibility or doubting what he heard or felt. The Red Sox engaged with both MLB and the Orioles, they were visible, accessible and didn’t send out PR people to speak off the record. As one top sports executive told me, “I don’t know how you could have handled it any better.”

    The fact that Kennedy was so angry and forthright about the issue shouldn’t surprise anyone who knows him. He grew up in the shadows of Fenway and has done so much to market the baseball experience to parents and children that he potentially saw years of hard work destroyed over a few short days. He noted that fans could help, and a day later, the Red Sox announced they revoked the rights of a fan who had allegedly used a racial slur toward the anthem singer after being tipped off by a fan. MLB Commissioner Rob Manfred said the league would review policies of every team to make sure players and fans feel they are in a nonthreatening environment. This is all welcome. But it’s also tricky territory. Kennedy admitted the team had little recourse to enforce a ban. And these actions walk a fine line of what is acceptable and freedom of expression.

    Everyone knows there are lines that shouldn’t be crossed, but those lines move, and elements can be judged differently. I bet the comments one might hear at a baseball game, a football game, a UFC bout, a boxing match or a motorsports race would differ. There are such polarizing perceptions of each “other” — driven by fear or hate or prejudice. Most sports have elements in the underbelly of their fan base who cannot accept the fact that the “other” occupies the same venue that they do. This puts a difficult onus on teams and leagues as enforcers. Difficult yes, but welcome and needed.

    The incident in Boston — and the swift reaction — will elevate the conversation across the country and across sports. The Red Sox’s resolute reaction was noble, but policies are difficult to mandate and enforce going forward. Hate is prevalent in our society, and sports can serve as agents of change. The fan experience shouldn’t be impeded by racism, threatening language or ignorance. We all know what defines racism and likely hate speech, but what defines threatening language or ignorance? I wish the rulebook for doing the right thing was unequivocal. Unfortunately, it’s not.

    Abraham D. Madkour can be reached at amadkour@sportsbusinessjournal.com

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  • Examining the path to the general counsel’s office

    What does it take to become a general counsel in sports?

    The above question is the gist of what we tried to answer in our upcoming law review article, “General Counsels in Sports: An Analysis of the Responsibilities, Demographics, and Qualifications,” due out next week in the Arizona State University Sports and Entertainment Law Journal. The article, co-authored with Kevin Hansen of Texas Tech University, is the first in-depth analysis of the responsibilities, demographics, and qualifications for general counsels of clubs in the NFL, MLB, NBA and NHL. As the highest-ranking attorney at each club, general counsels are prominent individuals in both the sports and legal industries. We sought to better understand their roles and experiences.

    Using club websites and media guides, we created a database of all the general counsels in the four major North American professional sports leagues. We then gathered personal and professional data about each general counsel by reviewing information from those club websites and media guides, LinkedIn pages, state bar records, and reputable news outlets.

    More specifically, we gathered data on general counsels’ age, race/ethnicity, gender, law school, industries worked in, years of legal experience, size of law firms previously worked at, experience at a firm with a large sports law practice, experience at a league office, and experience as an associate counsel. We then had attorneys for MLB, NFL and NBA clubs review our data.

    An analysis of general counsels in the NFL, MLB, NBA and NHL revealed interesting themes.
    Photo by: GETTY IMAGES


    Ultimately, our analysis did not reveal any essential characteristic or qualification on the path to becoming a general counsel. Nevertheless, we did find several interesting pieces of information. Specifically:

    1. Prestige matters. Fifty-two general counsels (49.5 percent) attended a law school currently ranked in the top 25, and 75 of them (66.4 percent) previously worked at a law firm of at least 101 attorneys.

    2. Prior experience at a league office or at a major sports law firm helps, but is not essential. Only 17 general counsels (15.0 percent) previously worked at a law firm with a substantial sports law practice, and only 10 (8.8 percent) previously worked at a league office.

    3. The racial and gender diversity of current general counsels is lacking when compared with national attorney demographic data. Only 21 (18.6 percent) general counsels are female and only 16 (14.1 percent) are non-white.

    SLA annual conference

    The Sports Lawyers Association holds its annual conference Thursday through Saturday in Denver.
    Before providing more specific data, it is important to explain our criteria for a general counsel. We were interested only in those attorneys that are employed by the club (or the entity that owns the club) — not an outside law firm. While the 113 individuals discussed in the article often have a variety of titles, usually but not always including general counsel, for our purposes we meant for the term “general counsel” to include any individual that is the highest-ranking attorney at a club, and who on a regular basis provides legal advice to the club. We found that nine clubs (Kansas City Chiefs, San Diego Chargers, Cincinnati Reds, Cleveland Indians, Kansas City Royals, Oklahoma City Thunder, Calgary Flames, Chicago Blackhawks and St. Louis Blues) do not have a general counsel; these clubs instead rely primarily on outside counsel.

    Age
    There are only two general counsels under the age of 30 and only nine were hired before the age of 30. The largest age bracket was that of 40-49, representing 34.5 percent of general counsels. Yet, the age distribution is fairly consistent among the other age brackets: 30-39 (19.5 percent); 50-59 (24.8 percent); and, over 60 (19.5 percent).

    Race/ethnicity
    The general counsels of professional sports clubs are overwhelmingly white (85.8 percent). Ten general counsels are black/African-American (8.8 percent), four are Asian (3.5 percent) and two are Hispanic/Latino (1.8 percent). These statistics also track those of attorneys and in-house counsel generally. For example, by analyzing data from the U.S. Census, the American Bar Association found that in 2010, 88 percent of attorneys were white, 5 percent were black, 4 percent were Hispanic and 3 percent were Asian. Similarly, the Association of Corporate Counsel’s 2015 census reported that 7 percent of in-house counsels were Asian, 5 percent Hispanic and 4 percent black. Simple arithmetic tells us then that 84 percent of in-house counsels are white.

    Gender
    The vast majority of general counsels of men’s professional sports clubs are men (81.4 percent). Additionally, the gender disparity among sports general counsels is greater than that of attorneys generally, and significantly greater when compared with other in-house counsels. According to the American Bar Association, in 2016, 64 percent of American attorneys were male and 36 percent were female. Moreover, the Association of Corporate Counsel’s 2015 census reported that 50.5 percent of in-house counsels were male and 49.5 percent were female.

    Law school
    Law schools ranked in the top 10 made up the highest proportion of law schools attended by general counsels (27.6 percent). Nevertheless, the distribution between the different tiers of law schools is fairly equal. While 52 general counsels attended a law school in the top 25 (49.5 percent), 37 general counsels attended a law school ranked 51 or lower (35.2 percent). The law schools with the most alumni working as general counsels are: Harvard (8); University of Pennsylvania (5); Duke (4); Stanford (4); Rutgers (4); Columbia (3); Duquesne (3); Georgetown (3); Marquette (3); University of Southern California (3); University of Virginia (3); and Washington University in St. Louis (3).

    General counsels in sports are most likely to be:



    Prior legal experience
    A large majority of general counsels (88.5 percent) previously worked in a private law practice. Nevertheless, general counsels are not among the most experienced attorneys — 80.5 percent of all general counsels had 20 years or less of legal experience prior to becoming general counsel. In fact, the most common experience range of general counsels is that of 10 years or less (44.2 percent).

    We also found that it was important to have worked at a large law firm — 75 general counsels (66.4 percent) previously worked at a law firm of at least 101 attorneys. In contrast, only 18 general counsels (14.5 percent) ever worked at a law firm of less than 26 employees.

    In terms of sports law experience, 15.0 percent of general counsels previously worked at a firm with an established sports practice. Specifically, the following management-side sports law firms produced general counsels: Akin Gump Strauss Hauer & Feld (1 general counsel); Covington & Burling (1); Foley & Lardner (1); Kirkland & Ellis (2); Latham & Watkins (4); Paul, Weiss, Rifkind, Wharton & Garrison (1); Proskauer Rose (6); and Skadden, Arps, Slate, Meagher & Flom (1).

    Similarly, while only 8.8 percent (10/113) of general counsels spent at least some time working in a league office, seven out of 30 NFL general counsels (23.3 percent) did.

    Last, we found that only 16.8 percent (19/113) of general counsels previously worked as an associate counsel. This statistic might be attributed to the fact that the associate counsel position is one of more recent usage.

    We examined a variety of different experiences and qualifications that we hypothesized might match the experiences of general counsels. Generally speaking, our research has not elucidated any one or two clear paths to becoming a general counsel. Nevertheless, we think our analysis has reaffirmed the three themes mentioned at the outset: (1) Prestige matters; (2) Prior experience at a league office or at a major sports law firm helps, but is not essential; and, (3) The racial and gender diversity of current general counsels needs improving. Ultimately, we hope that this article sheds light on an important role in the sports industry, and provides guidance for those who seek to aspire to such heights.

    Glenn Wong is executive director of the sports law and business program, and a distinguished professor of practice (sports law), at Arizona State University’s Sandra Day O’Connor College of Law. Christopher Deubert is the senior law and ethics associate for the Football Players Health Study at Harvard University.

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  • Ticketing lawsuits point to further turmoil

    Recent years have seen a number of lawsuits concerning clubs and ticketing policies. This uptick appears to derive from litigious reactions to various factors, including the desire of initial ticket sellers to exercise more influence on sale and resale opportunities for anti-fraud and brand-related reasons, changes in initial sales methods, stadium construction and relocations. Clubs generally have had better success in defending litigation, yet disaffected parties have not been substantially dissuaded from pursuing claims.

    Resale is a prime example. Technological tools through smartphone applications, online platforms and sophisticated vendors enable ticket sellers to assert what they consider their rightful control over event access — which triggers litigation flare-ups. For example, StubHub sued Ticketmaster and the Golden State Warriors when the Warriors required season tickets to be resold through a Ticketmaster exchange and threatened to withhold playoff tickets or season renewals to noncompliant holders. A disaffected season-ticket holder sued the San Francisco 49ers after the club began to use electronic tickets with barcodes released during a window of time before games to reduce fraud. A season-ticket holder sued the New Jersey Devils after the club required all secondary market transactions to occur on the NHL Ticket Exchange. The Minnesota Timberwolves faced a class action by season-ticket holders after the club required paperless tickets and secondary market transactions to occur on the Flash Seats platform. The Indianapolis Colts, in turn, were sued after they failed to provide a broker with season tickets he renewed for 2016, despite his consent to an additional resale fee.

    Clubs have generally — not universally — had the upper hand. The lawsuits against the 49ers and Devils settled, while the Timberwolves case went to arbitration. Courts ruled in favor of the Warriors and the Colts on club-friendly grounds that could be harbingers. The court in the Warriors case ruled that the supposedly affected market of “secondary” tickets for Warriors games was too narrowly defined. The court determined there were not separate markets for primary versus secondary sales, nor a stand-alone market for Warriors tickets.

    As for the Colts, the court’s favorable decision turned on the prevailing principle that tickets are “revocable licenses.” The holder asserted a form of property rights based on his previous tickets. The court disagreed, explaining that a holder takes the license under its terms — meaning that rights are affected by the grant language. The language there made clear that tickets could be revoked, or not renewed, at the Colts’ discretion. The court in the Warriors litigation expressed a similar view, as have courts in litigation against the Buffalo Bills, Madison Square Garden, Seattle Seahawks and others.

    But just because tickets may be licenses does not mean the holder has no rights. In a somewhat rare victory for ticket holders, a court rejected a license defense that the Seattle SuperSonics asserted against claims when the club moved to Oklahoma. That court determined that ticket purchases were made via terms that did not provide sufficient disclosure of revocation rights. A less successful holder learned the importance of a ticket’s scope when claiming the New England Patriots breached his rights by videotaping game signals. The court held that the ticket only granted spectators a seat.

    Governmental enforcers are showing interest in sales practices. The New York Attorney General investigated a host of practices and issued a 2016 report criticizing ticket sales approaches in multiple industries. Other state enforcers also have indicated interest, suggesting a consumer-protection appetite to examine ticketing policies. While the legal parameters to date have been reasonably clear, turmoil may be coming with this confluence of interests.

    Resale price restrictions are an apt illustration of uncertainties. Some sellers have tried to impose minimum resale prices. Outdated federal law, now economically suspect, held it a “per se” antitrust violation for an upstream party to set minimum resale prices. Modern federal law removes that “per se” prohibition and affords greater flexibility and options for resale prices. Yet states may set their own rules — and some maintain greater restrictions on resale price maintenance. These differing regimes can make it difficult to determine appropriate conditions, necessitating careful review of both federal and state rules.

    John J. Hamill is a partner and Allyson Poulos is an associate in the Chicago office of DLA Piper.

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  • Cartoon: Ring toss

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