On November 2nd, Nationwide Tour pro, Doug Barron, became the first player to fail the PGA Tour’s new drug policy and was issued a one-year suspension for his violation.  In response, Barron filed a civil lawsuit this last Thursday against the PGA Tour, seeking monetary damages and a temporary restraining order against the Tour which, if granted, would allow him to play in the second stage of the PGA Tour Qualifying Tournament on Nov. 18-21st.

The lawsuit filed by Barron’s lawyers clarifies the banned substances that Barron tested positive for: testosterone and beta-blockers.  The lawsuit also claims that Barron has been taking beta-blockers since he was diagnosed with mitral valve prolapse in 1987. Barron has also suffered from anxiety attacks for years, a fact that was widely known on Tour and that he shared with at least one reporter. In 2005, he was diagnosed with abnormally low testosterone. The condition affects fellow Tour pro Shaun Micheel, among others, and leads to feelings of lethargy and depression. His agent, Art Horne, said Barron last took a testosterone shot in June.  Since then, Barron has switched from non-conforming beta-blockers to a similarly acting but conforming drug, Horne added.

The lawsuit lends credence to the theory that many Tour-watchers believed from the start, that Barron, an unimposing-looking 40-year-old without a victory, had inadvertently broken the rules.  According to the Memphis Commercial Appeal, Barron stated this, “I’ve never tried to gain any advantage over my peers.”  And in a recent ESPN article he stated, “There is no way to enhance my performance at the level I was at…I was trying to live a healthy life as an adult male as seen by my physician that was treating me for good health.”

In a recent article from golf.com, Barron’s agent Horne stated, “This was never a case of a guy in a back room taking creams or using needles,” but rather, “[t]his was a guy taking what was prescribed to him by medical doctors for conditions that others have been given exemptions for. We feel Doug has been treated unfairly.”  It is nice to see that Barron’s agent took appropriate actions by addressing the media directly and explaining his client’s position on the matter.  Whether or not they are true remains to be seen.

This World Series defense stems from the actions of an over eager Philadelphia fan who is using the Phillies World Series appearance as part of her defense against a misdemeanor charge of promoting prostitution from an advertisement on Craigslist.

Susan Finkelstein, a 43-year-old University of Pennsylvania graduate student, wanted to take her husband to a World Series game between her darling Philadelphia Phillies and the New York Yankees. Mrs. Finkelstein wanted to get tickets for game one of the World Series so badly that she posted an advertisement on Craigslist describing herself as a “buxom blonde” looking to meet up with someone to discuss getting tickets to a World Series game. Unfortunately for Finkelstein, an undercover officer responded to the ad and arranged to meet her in a suburban Philly bar on Tuesday, October 27^th. The two had a few beers and discussed Finkelstein’s ideas about a ticket exchange. The specific facts about what was said at the table between the two are unclear as both sides have different accounts.

According to Finkelstein’s attorney, William J. Brennan, the Craigslist ad may have dropped double entendres but never explicitly offered sex. Brennan said, “If somebody read into that posting a sexual connotation, that’s on them. There’s no overt sexual reference.” Mr. Brennan also said that his client was “a nice lady overcome with Phillies fever.”  Finkelstein told the Associated Press that she was hoping to get cheap tickets, as she had in the past.  “Maybe meet someone, and talk, and bat my eyelashes and maybe get some tickets.”

On the other side, the prosecution believes the advertisement on Craigslist and the conversation with the undercover officer at the bar clearly show Finkelstein’s true intent.  The officer said that she never offered him any money for the tickets, but declined to further elaborate on the conversation and the offer.

Finkelstein has a preliminary hearing in Bucks County Pennsylvania on December 3^rd. In the mean time, the notoriety and press, although embarrassing, has given Finkelstein and her husband some positives. A radio station and car dealer offered her and her husband a pair of tickets to a weekend game of the Phillies. Other reports have her and her husband attending game three of the World Series, but failed to mention how she got the tickets.

NFL spokesman Greg Aiello mentioned that Doty’s ruling on Vick’s bonuses was upheld in large part because the 8th Circuit found the contract’s forfeiture language ambiguous.

The ruling allows the Philadelphia Eagles backup Quarterback to keep more than $16 million in roster bonuses from the Atlanta Falcons.  The court claimed that Vick had already earned the bonus money before he was convicted of federal dog fighting crimes and the money was NOT subject to forfeiture laws.

Vick could certainly use the additional money to help pay off creditors and start over now that he is back on the playing field.  He is set to earn  $1.6 million from the Eagles this year with a team option for the second year at $5.2 million.

Obviously the NFL was not happy about the appellate court’s decision to agree with Judge Doty’s previous ruling.  Doty has handled NFL cases including Collective Bargaining Agreement (CBA) matters for years.  However, after his first decision in this case, the NFL began accusing the Judge of being biased and attempted to end his oversight of its contract with the players union.

Unfortunately, after the decision that the 8th circuit handed down, it looks like the relationship between the NFL and Judge Doty will continue a bit longer.

Adidas and UCF discussed this matter again last week and could not find a middle ground on this situation. Before  making the decision to halt the contract extension with the University, Adidas spokeswoman Andrea Corso said, “We are in negotiations for a future relationship regarding the broader UCF athletic program. What I can say is that these relationships are based upon agreed deliverables for both parties.” Ultimately, Adidas said they were not willing to bend the rules, even for a Jordan.

If UCF did not allow Marcus to wear Nike’s, they could have lost Marcus Jordan as an athlete. Jordan was very persistent and was never seen wearing anything but Air Jordan’s. He even said that this issue was discussed on his recruiting trip to UCF. The only real option the University had was to amend the prior contract between Adidas and allow Marcus Jordan to be the exception to this sponsorship agreement. UCF athletic director Keith Tribble said Jordan could make his own choice on what shoes to wear.  He also mentioned that he wouldn’t be the first athlete at the school to get permission to wear something other than Adidas (a football player wore a different pair of shoes because of a better fit). However, the athlete in this situation was Michael Jordan’s son and the media attention and spotlight were shining bright on the athletic company.

This may seem like a silly dispute over shoes, but the effects of little Jordan’s actions are much more serious. The real issue here is a contract dispute; however the attention this story received will surely have an underlying effect on the current debate about intellectual property rights for NCAA athletes.

Are all student athletes bound by what sponsor the school has chosen or do they have any individual rights? What rights are college athletes giving away by signing with a school and playing college sports?

This is only one of the many conflicts that have arisen lately around the nation regarding college athletes and the rights they have while in school. Last year Nebraska University quarterback Sam Keller filed a lawsuit against video-game company Electronic Arts and the NCAA stating that they were illegally using the images of college football and basketball players in video games without their permission or compensation. Other related intellectual property cases are still pending and awaiting trial. The court will soon have to address the broad range of activities that athletes consent to give the universities when sign their name on the dotted line and agree to play for that school.

Last week, the single game penalty turned into a year-long ban.  The NCAA suspended Bryant for the rest of the 2009 season and any bowl game that OK State might play in.  Oklahoma State appealed the suspension, which seems rather harsh based on the situation (unless there are facts that have been withheld to the public).  We may find out the result of that appeal as early as tomorrow.

It sure seems as if OK State gets picked on a lot by the NCAA.  Remember Andy Oliver?  He played at the same institution before signing with a professional team in the 2009 draft.

The NCAA flexes its muscle again.  Are you impressed?  If Bryant would have solicited advice of an attorney, would the NCAA have pulled an Andy Oliver and tried to say that he was ineligible for that too?

Shouldn’t the NCAA be the advocate for its student-athletes above everything else?  I perceive the institution in a different light.  Its actions lead me to question its purpose at times.  With Brandon Jennings performing at a high level in the NBA (yes, it is a very small sample to look at) after saying no to college and playing a year overseas, shouldn’t the NCAA try to do more to show that it cares about its players.  Suspending them for a season without giving solid justification, makes me think that athletes will want to get in and out (or never in) of college as fast as possible.

Again, if the penalty is merely in response to Dez lying to NCAA officials, then I think it is excessive.  If there are facts unknown to me and the rest of the general public, then that is another story.  OK State was 4-0 without Bryant…until last weekend.  41-14.  Season over.  Reminiscent of last year’s College World Series.

What: 2010 Tulane Law School National Baseball Arbitration Competition

When: January 22-24, 2010

Where: Tulane University Law School. Map.

The Tulane Law School Sports Law Society has been busy inviting law schools to compete in the 2010 Tulane Law School National Baseball Arbitration Competition. I received an email invite last week, asking if my school (University of Florida Levin College of Law) would be interested in attending.

The Baseball Arbitration Competition is a simulated salary arbitration competition modeled closely on the salary arbitration procedures used by Major League Baseball.  Each team will represent either the assigned player for that round or the team for which that player plays. The goal of each round is to determine the salary for that player for the upcoming season by persuading the arbitrator(s) that the position advocated for is more appropriate.

The competition assumes that each party has previously submitted their final offer, and that good faith negotiations have concluded.  Each problem will include these final offers; the competitors’ objective is to persuade the independent arbitrator, through both a written submission and through oral arguments, that the offer tendered by their client is the most appropriate compensation for that player.  Players used for this competition will, barring unforeseen circumstances, be actual Major League Baseball players eligible for salary arbitration in that year.

The deadline for registration is 5:00 p.m. on December 15.

Cost: $150 per team (2-3 people per team. Only 2 people may participate in any single round).  Schools may bring up to 2 teams.  Click here to register.

Competition Website | Competition Rules

Recently, this proposal has been picked up by various major media outlets.  Tom Farrey’s piece on ESPN.com, sparked a lot of interest across the World Wide Web.  His story talks about a distinction within the same proposal I talked about in August, that would allow athletes who do not earn a professional salary, but play alongside other athletes that do, to retain their amateur eligibility (which apparently they forgo under the current NCAA Amateurism rules).  It definitely does not make sense that one athlete on a team could jeopardize the amateur eligibility of all of his teammates.

Here is a telling fact from the ESPN.com article,

Of the 490 incoming athletes penalized for amateurism violations last year, 434 were foreign students, according to the NCAA.

The NCAA Amateurism Cabinet held a meeting regarding this proposal on September 24.  For the full report from that meeting, click here.  The result regarding NCAA Proposal No. 2009-22: Men’s Ice Hockey will be excluded.  Here is the relevant justification section of that report:

The ice hockey community strongly believes that many more prospective student-athletes seeking to participate in NCAA Division I men’s ice hockey would elect to participate in Major Junior A hockey prior to initial collegiate enrollment. As a result, although the proposal would permit such activity, their eligibility status would likely be jeopardized once they became involved in the Major Junior A leagues (e.g., by being influenced to accept more than actual and necessary expenses, signing with an agent, or by signing a professional contract). The ice hockey community expressed concern that the Canadian Hockey League, the governing body for Major Junior A ice hockey, would intentionally attempt to jeopardize prospective student-athletes’ NCAA eligibility in order to retain their services and continued participation in their league. Further, the ice hockey community asserted that participation in Major Junior A hockey would be detrimental to prospective student-athletes’ academic success given the demands of participation in that league. Lastly, USA Hockey commented that the proposal would adversely impact future U.S. performance in international competition, including the Olympic Winter Games.

So ice hockey is out, but the rest of the NCAA sports are still attached to the proposed NCAA legislation.

Last, I want to touch on an interesting question that was brought to my attention by Minor Leaguer and prolific blogger, Garrett Broshuis.  Broshuis received an email from another MiLB player who noted,

The salaries that some guys make in short season or extended spring training aren’t even considered large enough for the NCAA to qualify it as a professional salary.

And Broshuis ends his piece by asking,

If a player receives a tiny signing bonus and never makes it out of short-season professional baseball, could he then maintain amateur status? This thought is as absurd as the current salary structure.

This is definitely out of the question if said player hires an agent.  Once an agency contract is signed by the player, he automatically loses his amateur eligibility, and once it is lost, it can never be returned.  But what if the player never hires an agent?  What are your thoughts?

Personally, I think MJ’s son has a legitimate reason for not wearing his team shoes.  But isn’t college basketball more about the team and not the individual?  How would it look if Marcus was the only one on the team wearing brand new Jordan’s that haven’t been released yet?

On a more serious note, the University of Central Florida has a 3 million dollar, six-year contract with Adidas.  This contract  requires all UCF athletes and coaches to use only Adidas apparel and equipment.  If Marcus wears his fathers Nike’s this will clearly be a breach of contract and with the last name of Jordan, it is likely to cause a big scene.

Adidas said they were aware of Marcus Jordan’s attendance at UCF and on the basketball team, and will be working to resolve this “unique” situation without causing too much controversy.

Although this may not seem like a big deal and some of you may think little MJ should be able to wear his fathers shoes, it has very serious legal and athletic ramifications for UCF.  If Adidas and UCF can’t find a middle ground with this situation and Marcus wears Nikes, the University may be liable for breach and owe  damages up to $3 million dollars to Adidas.  On the opposite side, if UCF does not allow Marcus to bend the rules and amend the contract, they may lose Marcus Jordan (if he cannot be persuaded to switch to Adidas).

The battle of the footwear seems silly but surely has some serious ramifications for UCF.

The ELI Essay Competition invites law students focusing on the entertainment practice to write a 3,000-word paper on a compelling legal topic facing the music industry today. The contest culminates with the winning student authors presenting their essays at the prestigious ELI luncheon on January 29, 2010. For competition rules and the ELI Writing Competition Workshops, visit the Entertainment Law Initiative page on Facebook. Non-Facebook users should send an e-mail to eli@grammy.com for more information and instructions.

Submission deadline: January 4, 2010

Winners will be announced on January 22, 2010

Awards: First Place Winner $5000; Four Semifinalists $1,500 each

All winners receive: One GRAMMY Awards Show Ticket; Round Trip Airfare to the GRAMMY Awards in Los Angeles; Hotel Accomodations; and Ticket to The MusiCares Person of the Year Tribute Dinner

Wow, that was a long paragraph.  But after almost 2 1/2 years of law school, I can now confidently say that I will graduate with a better understanding of the best practices in representing talent, and that I will have an edge over my counterparts who never put in the 3 years to attain a J.D.  I did not write that statement with the intention of denigrating anyone’s intellectual capacity, and there are plenty of amazing sports agents who have had tremendous success in scrupulously representing their clients.  However, I do believe that there is a lot to gain by going to law school, especially in the realm of learning how to effectively negotiate (which really cannot be learned by just reading a book).

There are a lot more sports agents (A LOT MORE) than there are General Managers in their respective sports.  While not every agent has had the proper education necessary to effectively negotiate on behalf of his client, you better believe that every GM knows every trick in the book, whether it be from formal education or years and years of experience.  Mark Warkentien, VP of Basketball Operations for the Denver Nuggets, is one of those expert negotiators.  During Summer, he spent a week at Harvard Law School in order to enlarge his arsenal of negotiation tools, and shared some of his wisdom with Ian Thomsen of SI.  Some important points he talks about are:

• The need to know what your counterpart is going to say before you sit down at the negotiating table.
• Find points of agreement before starting the negotiation.
• Make your counterpart justify his interests and positions.
• Face-to-face negotiations beat phone/email/fax conversations.
• Showing emotion often does not help you in progressing your position.
• Be flexible in negotiations.
• Don’t talk down to your counterpart.
• Never use the word “but”.

I have learned all of those bullet points, minus the very last one.  However, it is definitely an interested point, and one that I may take into consideration when altering my own negotiating style.  This is how Warkentien describes Harvard Law School’s justification for scrapping the word “but” from negotiations:

“When you say, ‘I hear what you’re telling me, but …’ what you’re really saying is, ‘Go to hell.’ That word — ‘but’ — comes across as if everything the other guy has just said doesn’t matter.”

As a side note, I will be speaking at Barry University School of Law exactly a week from today.  If you are in Orlando, please join the discussion next Monday at 12 p.m.  Contact Thomas M. Schoendorf for more information.