THE PORTS LAWYER - The Sports Lawyers Association

The Sports Lawyer
January 2016
THE SPORTS LAWYER
In This Issue
January 2016
Current MLB Players Bryant,
Franco File Grievances Over Service
Time Manipulation
Ex-Trojans Coach Steve Sarkisian
Files Wrongful-Termination Suit
Against USC
Former Fox Sports 1 Employee
Accuses Network of Age and
Gender Discrimination
NCAA Appeals Class-Action
Status of Lawsuits To Pay
Players
Also
Faculty Editors
Gary Roberts – Indiana University Robert H.
McKinney School of Law
Gabe Feldman – Tulane University Law School
Student Editors
Victoria Acuff – Senior Editor
Fritz Metzinger – Junior Managing Editor
Tate Martin – Junior Articles Editor
Staff
Ben Cooper
Tim Edwards
Jordan Jackson
Julien Lamothe
Blake Mattingly
Erin O’Neill
Chris Robinson
Mead Solomon
Nike Gives First Lifetime Contract in Company
History to LeBron James
Pepperdine University’s Motion to Dismiss Title IX
Lawsuit is Denied
Jonathan Papelbon Files Grievance Against Nationals
for Lost Salary
Kirk Cousins “You Like That” Trademark
Major League
Table of Contents
Major League Baseball – 2, National Collegiate Athletic Association - 4, Other News - 7
1
The Sports Lawyer
January 2016
Baseball
Current MLB Players Bryant, Franco File Grievances Over Service Time
Manipulation
Current Major League Baseball third basemen Kris
Bryant of the Chicago Cubs and Maikel Franco of the
Philadelphia Phillies filed grievances through the
Major League Baseball Players Association against
their teams over claims of service time manipulation
that allegedly occurred during the 2015 MLB season.
Bryant and Franco claimed their respective clubs
intentionally manipulated each player’s service time, or
time spent on a major league roster, by unnecessarily
keeping them in the minor leagues to delay the date
each player would be eligible for free agency.
Both Bryant’s and Franco’s cases bring attention to the frequent practices employed by MLB clubs in an
effort to delay free agency eligibility for young players. As long as the clubs operate within the
collectively bargained rules, they may employ any strategy or rationale to maintain control over a
player’s services for an extra season beyond the six full years of service time that must precede free
agency. This system defines a full year of service as a player staying on a major league roster for a
predetermined, collectively bargained amount of days (172 days in 2015 season). At the beginning of
the 2015 season, the Chicago Cubs opted to send Bryant to the minor leagues despite him having led the
major leagues with nine home runs in spring training. A few weeks later, an injury to the starting third
baseman opened up a roster spot for Bryant, who was promoted to the major leagues on April 17 – one
day after the deadline for qualifying for a full season of major league service time. Bryant would go on
to win the National League Rookie of the Year award and finished with 171 days of service time, one
short of the requirement for a full season. Alternatively, Maikel Franco first appeared in September
2014 for the Philadelphia Phillies, yet started the 2015 season in the minor leagues. On May 12, the
Phillies optioned their everyday third baseman to the minor leagues but did not recall Franco to the
major leagues until May 15. Franco ended the 2015 season with 170 days of service time, two days shy
of the requirement for a full season. Both Bryant and Franco contend that their respective clubs have
operated in bad faith in an effort to delay each player’s eligibility for free agency. Had both players
reached 172 days of service time by the end of the 2015 season, they would have been eligible for free
agency following the 2020 season. However, neither player will be eligible until at least 2021,
potentially resulting in losses amounting to tens of millions of dollars. Once grievances have been filed,
the next step is a hearing in arbitration. However, neither grievance has been heard, and there is no
guarantee an arbitration panel will ever hear either. Generally, open grievances are resolved during
collective bargaining discussions, which are slated to take place once the current MLB collective
bargaining agreement expires December 1, 2016.
“We want to see things geared toward winning…[t]he fans deserve to see the best product on the field,
and the players deserve the best team surrounding them so they can win,” Ryan Royster, Franco’s agent,
said. “Obviously we feel like we’re in the right, but I’m not going to comment on the case,” said
Chicago Cubs General Manager Jed Hoyer. If the player’s grievances reach arbitration, MLB arbitrator
Frederic Horowitz would have to determine whether each club acted in good faith. —Jordan Jackson
2
The Sports Lawyer
January 2016
Jonathan Papelbon Files
Grievance Against Nationals for
Lost Salary
Washington Nationals closer Jonathan
Papelbon filed a grievance against the
Nationals for failing to pay his salary
during a four-game suspension he
served during the 2015 season. The
Nationals issued the suspension in
October following a dugout altercation
involving Papelbon and teammate
Bryce Harper.
The incident occurred during the 8th inning of a game against the Philadelphia Phillies on September 28,
2015. Harper returned to the Nationals’ dugout after flying out and began a heated exchange with
Papelbon. The tiff culminated in Papelbon wrapping his hands around Harper’s throat and shoving him
into the back of the dugout before fellow Nationals’ players and coaches separated the two. The
Nationals suspended Papelbon for four games without pay following the incident, and Papelbon lost
$284,153 of his $13 million salary as a result. Papelbon filed a grievance shortly after the suspension
was issued, contending that there is no precedent for a team withholding a player’s salary during a teamimposed suspension. Papelbon may win the grievance if he can prove that teams have never issued a
penalty this harsh for a team suspension.
“That’s business. It’s not personal between Papelbon and the Nationals, or Nationals to Papelbon,” said
Nationals general manager Mike Rizzo. Arbitrator Fredric Horowitz would hear the grievance most
likely during spring training if the parties do not settle. A date for a hearing has not been set.
—Julien Lamothe
3
The Sports Lawyer
January 2016
National Collegiate Athletic
Association
Ex-Trojans Coach Steve Sarkisian Files Wrongful-Termination Suit Against USC
On December 7, 2015, former USC
football coach Steve Sarkisian filed a
lawsuit against the university claiming
that he was wrongfully terminated this
past October. Sarkisian contends that he
was not given enough time to treat his
alcoholism and is owed damages under
the contract.
Sarkisian took over as head coach of the
USC football team in 2014. Sarkisian
was relieved of his duties in October
after he allegedly showed up to work
intoxicated, with reports also asserting that Sarkisian was drunk during the Arizona State game. USC
Athletic Director Pat Haden initially placed Sarkisian on an indefinite leave of absence. Sarkisian
contends that he pleaded with Haden to give him time off to get help. However, one day later, while
Sarkisian was on a flight to enter alcohol-rehabilitation treatment, he received the termination via e-mail.
Sarkisian contends that the school didn’t properly accommodate his disability—alcoholism. The lawsuit
claims that USC violated California law by not making a “reasonable accommodation” for Sarkisian’s
request for time off to get help.
“Alcoholism is a recognized disability under California law," said Sarkisian's lawyer, Alan Loewinsohn.
“So firing somebody because of that disability is against the law.” In a statement, USC general counsel
Carol Mauch Amir stated that USC would vigorously defend the claims. “Much of what is stated in the
lawsuit filed today by Steve Sarkisian is patently untrue,” the statement read. “The record will show
that Mr. Sarkisian repeatedly denied to university officials that he had a problem with alcohol, never
asked for time off to get help and resisted university efforts to provide him with help. The university
made clear in writing that further incidents would result in termination, as it did.” Sarkisian says that he
has completed time in rehab and is “sober and ready to return to coaching.”
—Chris Robinson
4
The Sports Lawyer
January 2016
NCAA Appeals Class-Action Status of Lawsuits To Pay Players
On December 18, 2015, the U.S. Court of
Appeals for the Ninth Circuit received a petition
for review from the NCAA and eleven other
major conferences seeking to overturn a recent
ruling granting class-action status. The suits,
brought by a former Clemson athlete, a former
West Virginia athlete, and two current
Wisconsin athletes, allege that the NCAA and its
conferences violated antitrust laws by limiting
the compensation that college athletes can
receive.
On December 4, 2015, U.S. District Judge
Claudia Wilkin rejected arguments by the
NCAA and the conferences that the issues
presented by the student athletes are not common to a wide class. The NCAA and conferences had
argued some athletes would benefit more than others by being allowed compensation beyond their
current scholarship value. The defendants also predicted that an injunction would increase the costs to
the Football Bowl Subdivisions and Division I schools and some would stop participating at that level or
reduce their costs, such as offering fewer scholarships. Judge Wilkin also rejected those arguments
because the plaintiffs are not seeking an unrestricted market for player competition. In the petition to
the Ninth Circuit, the NCAA and conferences stated that Wilken improperly shifted the burden of proof
from the plaintiffs to defendants, speculated that the effect of the requested relief would not materialize,
and ignored controlling legal authority regarding conflicts of interest among the class members.
“The errors in the district court's decision to grant a class are clear,” said Donald Remy, the NCAA chief
legal officer. “The failure to protect absent class members who benefit from the current rules and the
unprecedented speculation on fashioning of future rules and remedies. This class should never have been
certified and we would like the chance to explain the reasons in detail to the appellate court.” The
athletes are represented by Jeffrey L. Kessler of Winston & Strawn, LLC in New York City and Steve
W. Berman of Hagens Berman in Seattle.
—James Cooper
5
The Sports Lawyer
January 2016
Pepperdine University’s Motion to Dismiss Title IX Lawsuit is Denied
On December 15, 2015, U.S.
District Judge Dean D. Pregerson
denied Pepperdine University’s
motion to dismiss a suit filed by
former Pepperdine University
women’s basketball players Haley
Videckis and Layana White. Judge
Pregerson held that discrimination
on the basis of sexual orientation is
covered by a law that bans
discrimination in educational
programs based upon sex. See
Videckis v. Pepperdine Univ., No. CV1500298DDPJCX, 2015 WL 8916764 (C.D. Cal. Dec. 15, 2015)
Videckis and White allege that in 2014 members of the Pepperdine University women’s basketball
coaching staff discriminated against them due to their sexual orientations. According to Videckis and
White, the coaching staff tried to remove them from the team on the basis that their homosexuality
would lose the team games. On April 16, 2015, the University filed a motion to dismiss a lawsuit filed
by Videckis and White in the U.S. District Court for the Central District of California in Los Angeles.
The University claimed that Title IX does not apply to sexual orientation discrimination.
In a 22-page opinion, Judge Pregerson disagreed with the University. “Simply put, the line between sex
discrimination and sexual orientation discrimination is 'difficult to draw' because that line does not exist,
save as a lingering and faulty judicial construct,” Pregerson wrote. Thus, Judge Pregerson denied the
University’s motion to dismiss.
Videckis and White are represented by Alan B. Newman of Alan Burton Newman APC in Marina Del
Rey, California,; and Jeffrey J. Zuber and Jeremy J. Gray of Zuber Lawler and Del Duca LLP in Los
Angeles. Paula Tripp Victor and Peter B. Rustin of Anderson McPharlin and Conners LLP in Los
Angeles represent Pepperdine.
—Mead Solomon
6
The Sports Lawyer
January 2016
Other News
Former Fox Sports 1 Employee Accuses Network of Age and Gender Discrimination
On December 16, 2015, journalist
Colleen Dominguez sued Fox Sports 1
in the United States District Court for
the Central District of California for
discrimination on the basis of age and
gender. Dominguez alleges that the
channel denied her reporting and
coverage opportunities because of her
age and gender.
Dominguez, 54, worked for ESPN and
NBC prior to being hired by Fox Sports
1 in 2014. Her first assignment with Fox Sports 1 was to cover the NBA playoffs, which she did with
great success. After the NBA playoffs, Dominguez received no new assignments so she secured
interviews with athletes on her own. In addition, despite her extensive experience covering the NFL
playoffs, the NBA All-Star game and the MLB, Dominguez was not assigned to cover any of these in
2014 or 2015. Instead, Fox Sports 1 gave these assignments to 40 year-old male reporters as well as
younger, less experienced female reporters. Despite securing interviews on her own with high profile
athletes such as Madison Bumgarner, Fox declined the interviews she secured. Other employees
informed Dominguez that management was concerned with how she “looked” on camera, and a
producer even sent her a text saying she had done nothing wrong. According to the suit, her supervisor
told her “we don’t handle veteran female reporters very well.” Dominguez also reached out to the
President of FOX, Eric Shanks, to inquire why she was not receiving assignments. Shanks told her he
would look into it but never contacted her again. In her complaint, Dominguez asserts that her lack of
assignments has damaged her career as a reporter and hindered her future income. In August 2015, Fox
Sports 1 informed Dominguez’s coworkers that she was no longer employed with the network.
Dominguez is seeking punitive and compensatory damages for an unspecified amount, as well as
attorney’s fees.
“I never turned down assignments. I brought them exclusive interviews. I did my job well,” Dominguez
wrote in an op-ed for the San Diego Union-Tribune. “…Not getting assignments for such a long period
has been damaging. Some have suggested I’ll never recover from the damage inflicted, others say the
lawsuit will kill my career.” A spokesperson for Fox Sports declined to comment. Colleen Dominguez
is represented by Paul M. Gleason of Gleason & Favarote, LLP in Los Angeles as well as by Joseph R.
Becerra of Becerra Law Firm in Los Angeles. Dominguez demands a trial by jury as to all issues.
—Erin O’Neill
7
The Sports Lawyer
January 2016
Nike Gives First Lifetime Contract in Company History to LeBron James
On December 8, 2015, Nike reached an
agreement with LeBron James for a lifetime deal
reportedly worth more than $500 million. James
became Nike’s first lifetime client in the
company’s 44-year history.
James’ lifetime deal is reportedly worth more
than $500 million with $30 million annually
going to James. Maverick Carter, James’
business partner, will manage the deal and Main
Street Advisors’ Paul Wachter negotiated it.
James’ relationship with Nike has spanned his
twelve-year professional career, in which time
Nike has made thirteen versions of James’
sneaker sold on the retail market with estimated
annual sales at $400 million. Nike hauled in more than $30 billion in revenues in 2015, up from $10.3
billion in annual sales when Nike first signed James in 2003. They have announced a goal to have $50
billion in annual revenue by 2020. Nike is not the first company to extend this sort of lifetime deal to a
client. George Foreman agreed to a deal with Salton, Inc for $137.5 million to use his name forever, and
Duke basketball coach Mike Krzyzewski signed a deal to coach there as long as he wishes. Adidas also
has a lifetime deal with Chicago Bulls’ point guard Derrick Rose, and Reebok has one with former NBA
superstar Allen Iverson.
“We can confirm that we have agreed to a lifetime relationship with LeBron that provides significant
value to our business, brand and shareholders,” Nike said in a statement. “It meant a lot to me even
when I signed my first deal just to be with Nike,” James said in a statement after the deal was
announced, “and it means even more that they’ve given me this.” This is Nike’s first lifetime agreement
with a client to date.
—Blake Mattingly
8
The Sports Lawyer
January 2016
Kirk Cousins “You Like That” Trademark
On October 27, 2015, Kirk Cousins and his
brother Kyle filed a trademark application for
the phrase “You Like That.” The application
was filed just two days following the
Washington Redskins comeback victory over
the Tampa Bay Buccaneers. News of the
application first broke in late December 2015.
The phrase gained Internet fame when a vine
of Cousins surfaced after the game against
the Buccaneers. In the vine, Cousins screams
“You Like That!” at a CSN Sportsnet camera
while running back to his locker room. The
vine currently has over 31,000,000 plays on
social media. The phrase also has become a popular chant at Redskins home games and is now even
featured on the stadiums Jumbotron after big plays. Cousins, taking advantage of the vine’s popularity,
immediately began making T-shirts featuring the phrase and was able to raise $41,000 for the
International Justice Mission. Cousins’ trademark, if approved, would apply towards all bumper
stickers, home décor, posters, clothing, and electronic billboard advertising.
“Things I Like: Hearing ppl say You Like That while eating Shake Shack after a Skins win,” Cousins
recently tweeted. Cousins is not the only Redskins quarterback to pursue a trademark, with former
starter Robert Griffin III currently holding five of them.
—Tim Edwards
9
The Sports Lawyer
January 2016
The Sports Lawyers Association is proud to announce that the
4th Annual Law Student Writing Competition is now accepting submissions.
Theme: Current Issues in Sports Law
Deadline for Submission: March 15, 2016
Submit Papers to: [email protected]
Winning Authors to Receive:
 $5,000 will be awarded for first place selection and submission will be published in the Sports Lawyers Journal
(subject to SLA's editorial standards)
 $3,000 awarded for second place selection
 $2,000 awarded for third place selection
 All three finalists will receive a complimentary registration for the 2016 SLA Annual Meeting in Los Angeles,
May 12-14, at LA Live (recipients recognized and order of awards presented at the SLA Annual Meeting in Los
Angeles). Winners need not be present at the announcement.
 Winners are solely responsible for taxes on their prize winnings and must provide a social security number for
tax reporting purposes.
Criteria and Submission Instruction
 Choose a current issue in Sports Law and Advocate a position.
 Each entry is limited to 3,000 words maximum, not including title of reasonable length (footnotes and
references included).
 Must be submitted in Microsoft Word or equivalent Google Documents file format, via email to
[email protected], with subject line "SLA Writing Competition".
 Each entrant must be a current law student enrolled at an ABA accredited law School, US resident 18 years of
age or older, and member in good standing of the Sports Lawyers Association. LLM candidates are not eligible.
 Paper(s) must be received by March 15, 2016, at 5 pm Pacific time (no exceptions).
 Entrant warrants that the submitted entry is original and unpublished.
 Co-authorship of a manuscript is not permitted in the contest.
 Each author may submit only one entry.
 Previous winners and/or finalists are ineligible.
The entries will be judged anonymously by members of the SLA Writing Competition Committee. Entries will be judged
on the following criteria:
 Creativity and clarity of the submission
 Organization
 Quality of the analysis and research, including supporting references
 Grammar, syntax, and form that support a scholarly submission
All decisions of the judges are final. On or before April 22, 2016, the top three finalists will be notified by email and/or
telephone and will be offered a free registration to the SLA 2016 Annual Meeting in Los Angeles, CA.
Consent For Release
The writing competition is open to current law student members of the Sports Lawyers Association aged 18 or older
who reside in the United States of America. By submitting an entry, each entrant warrants that his or her entry is
original and unpublished, and grants to the Sports Lawyers Association an irrevocable license to reproduce and publish
the entry in any medium, as well as an irrevocable license to use the entrant's name, likeness, and other personal
information (hometown, law school attended, class year, etc.) in any medium, for the purpose of promoting the writing
competition and/or the SLA.
Contact the Sports Lawyers Association at:
Sports Lawyers Association
12100 Sunset Hills Road, Suite 130
Reston, VA 20190
703-437-4377 ext. 4085, 4070 or 4071
or go to https://www.sportslaw.org/contact/index.cfm
10
The Sports Lawyer
January 2016
The Sports Lawyers Association
Officers
President: Matthew J. Mitten
Secretary: Vered Yakovee
Treasurer: Ash Narayan
Director of Publications: Gabe Feldman
Immediate Past President: Glenn M. Wong
Staff
Executive Director: Richard A. Guggolz
Deputy Executive Director: Melissa Pomerene
Administrative Assistant: Ellen Goff
Board of Directors
For a full list and biographies of all board members, please visit:
http://www.sportslaw.org
You can follow the Sports Lawyers Association on:
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