Sports Agent and Sports Lawyer Blog

The NFL Players Association (NFLPA) has previously been to court regarding the use of players names and statistics on online fantasy football leagues. Last year in a case with CBS Interactive, the court concluded that the use of this information is protected under the First Amendment. This meant that the players names and statistics were seen as publicly available information and CBS could use this player information without paying a fee. The NFLPA is now appealing.

CBS is not the NFLPA’s only nightmare. Yahoo! recently alleged that the NFLPA has threatened to sue them if they continue to use players stats and other related information without paying proper royalties. The two parties had a licensing agreement regarding this issue, but when that ended in March of this year, Yahoo! now believes they should not have to continue to pay for this information. However only a month after the lawsuit was filed in a Minnesota court, the parties have apparently agreed to settle. The details of this settlement were not made public.

This type of action brings in the question of what should players be compensated for. They are essentially a brand. They add value to their teams and to items they are associated with. Athletes perform on the field and people off the field are making money selling their brand. Take Oakland A’s pitcher, Dallas Braden for example. Soon after Braden’s encounter with A-Rod where yelled at him for crossing over his mound, souvenir stands began selling “Get Off My Mound” T-shirts. The A’s marketing department went to get the shirt approved by the MLBPA, but it was rejected. Thus to get around this they redesigned the shirt so it does not have Braden’s name on it, although it does have a silhouette of him throwing a pitch. It is obvious they are making money off of Braden’s actions, but is something wrong with this picture if Braden is also not earning anything?

As an athlete you are not always aware of when and how and when your brand is being used for profit. You work hard to prove yourself on and off the field and others should not be taking advantage of your success. This is why it is important to have an agent to look out for you. Your agent can and should make sure your brand is protected. They are familiar with the law and know what you are entitled to.

With the Major League Baseball All-Star Break upon us, now may be a good time for any unsigned prospects who were selected in last month’s draft to re-evaluate their options.

If you did not sign, you are probably either (a) leaning heavily toward going to college if you are a high school player, or back to college if you are a junior college player or (b) waiting for others in the top rounds to sign so that you can sign for something over the MLB recommended slot. Some players may be in another state of mind entirely, however. They may be wishing they could sign, but they are being low-balled by the team that drafted them.

Remember, you have just over one month to sign. The deadline is 11:59 p.m. on August 15, 2010. If you have not yet signed, it may be time to consult an adviser and see if the adviser can assist you. Up until now the team has probably been negotiating with your family. If you have not yet signed, it is probably time to be honest and realize that these negotiations have been unsuccessful. Even if you are fine with an outcome that results in you going back to school instead of launching your professional baseball career, don’t you think you should at least let an adviser try to see if he can assist you in working out a better deal?

For this blog’s earlier analysis on the MLB draft and a breakdown of the bonus structure, see these links here and here and here. Remember that fewer than 10 percent of players who are drafted will make the major leagues. This means that the payday you might be about to receive from the team that drafted you could be the largest single paycheck of your entire life. Don't you owe it to yourself to let an adviser see if he can help you?

If you are a professional athlete, your sports agent works for you. That means you can fire them if they don't meet your needs. Your agent, or lack of an agent, should not be a reason you miss out on opportunities to expand your career as a professional athlete. Agents communicate with teams, coaches, managers, along with negotiate contracts and establish endorsement deals all to promote your career. It is not enough to just get you on a team; agents must keep new opportunities coming for their athletes. There are thousands of possible sports agents out there, its important to find one willing to work hard to enhance your career.

Even agents who work for high profile athletes run the risk of losing them to other agencies. This was the case for IMG's Mark Ervin who represented snowboarding prodigy Shaun White. White is among the wealthiest, most successful and highest profile Olympic athletes outside of the mainstream sports. Despite his high profile and successful endorsement and sponsorship agreements, White apparently remained unsatisfied with his lack of opportunities following White's gold-medal performance in the Vancouver Olympics. Thus White recently left Ervin, to sign with CAA.

Although Ervin and IMG will still receive commissions on the endorsement deals they did close for White, they will now miss out on future opportunities. Losing a client like White is a huge loss. It has been said that White has a reputation for being very selective regarding endorsement deals (if you read his bio on his web site, it says he only partners "with companies he thinks are cool"), and we do not know the true details behind the reason for White switching agents. It is possible that he has unrealistic expectations in that the economy remains in the tank, he already has numerous endorsements and it may not be the former agent’s fault that White procured no new deals since his Olympic performance. Nevertheless, this is a lesson for all athletes (and their sports agents) which is that if you are unhappy with your agent, it may be time for a change.

Former Cleveland Browns wide receiver Joe Jurevicius’s lawsuit against his team has been resolved in a confidential settlement. For details of the lawsuit, see this link.

What make this lawsuit interesting is that Jurevicius sued because the team allegedly failed to protect him from getting a staph infection. The infection in his right knee apparently ended his career, thus limiting his future earnings. Specifically, Jurevicius alleged negligence by the Browns in their misrepresentation of the practice facility’s level of cleanliness.

This news is a good opportunity for all the teams and leagues out there – from the major leagues to high schools to leagues for toddlers – to think twice about whether all liabilities are covered. Something as simple as sanitizing equipment and facilities can avoid major legal problems. If you have not yet consulted with a sports law expert about your liabilities, make certain to do so.

This is an interesting article about NASCAR sponsorships by smokeless tobacco products and the changing landscape of spots sponsorships. At least one NASCAR team is losing it corporate sponsorship due to tighter restrictions on the advertising of tobacco products.

According to the U.S. Food and Drug Administration's website (http://www.fda.gov), "the new rule, Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco to Protect Children and Adolescents, restricts the sale, distribution, and promotion of these products to make them less accessible and less attractive to kids. Published March 19, 2010, the new rule becomes effective June 22, 2010, and has the force and effect of law."

The baseball bat debate – wood vs. metal – is a topic we have covered many times on this blog (here and here and here). Now it looks as though some of the answers as to whether wood or metal bats are safer may never be reached.

This is an interesting article about the UMass-Lowell Baseball Research Center, which is facing financial troubles because of a lawsuit. From the article:

The UMass-Lowell Baseball Research Center opened in 1998 and struck profitable deals to certify every model of bat used in the major leagues and NCAA competition. As a gesture of goodwill, the center gave free advice to the National Federation of State High School Associations and youth baseball organizations, gaining national acclaim for addressing the dangers of balls rocketing off metal bats at dangerous speeds.

Accused of violating its license to operate the testing machine, the baseball center became entangled in a seven-year court fight that spanned two jury trials and ended in January with the taxpayer-supported university taking a $4.4 million hit: a $3.1 million court judgment, plus $1.3 million in interest. The case also cost the university $1.7 million in legal fees.

Elliot Hopkins, the baseball rules editor for the National Federation of State High School Associations, said the organization cannot afford to pay for the safety information it receives from the Lowell facility.

“Losing the center would literally cripple high school baseball nationally,’’ Hopkins said. “We couldn’t replace it.’’

With the Major League Baseball draft less than three weeks away, now is as good a time as any to talk about whether a prospect has associated himself with a baseball advisor.

As most prospects know, high school baseball players or collegians with remaining eligibility are permitted by the NCAA to associate with an advisor. The advisor cannot sign a contract with the player, cannot enter into negotiations with the team which selects the player, but nevertheless plays a valuable role in the process.

How is the role valuable for a high school baseball player? If the player is considered likely to be drafted, it is almost certain that he has signed a letter of intent to play college baseball, or committed to a junior college. Scouts are observing the player, and inquiring about his “signability” which refers to the question of whether he is leaning toward college baseball or professional baseball.

All high school baseball players will use the possibility of college baseball as leverage. But if the player is truly and legitimately interested in furthering his education – and equally as important, improving his baseball draft position – he may inform a scout that there is a low possibility of “signability.” On the other hand, that player may also inform the scout that while he would prefer to spend a few years on a college campus, if he is drafted highly enough and offered a correspondingly high signing bonus, he will sign.

You can see that this is a complicated dance. The player cannot tell the scout that he hates the idea of college and wants to go pro. If that happens, the team will not have an incentive to draft him in a high round. The player also cannot tell the scout that he is definitively going to college. If that occurs, the player may not be drafted at all, or could be taken in such a low round that the signing bonus amount is virtually negligible.

This is why the player needs an advisor. The advisor is the advocate for the player, and can streamline information in an unemotional fashion. While the player may have an extraordinarily competent and intelligent family member handling contacts from the team, family decisions can be emotional. At Wolf Sports Management, one of the entities behind this blog, we are in talks with numerous players about becoming their advisors for this year’s draft.

Everyone knows about Tennessee Titans running back Chris Johnson’s holdout. Johnson, who rushed for 2,006 yards and established himself as one of the league’s top 5 running backs last season, is refusing to participate in Tennessee’s off-season workouts.

Johnson and the team are at odds about renegotiating his contract. He’s currently playing under a five year, $12 million deal which he signed after being drafted in the first round in 2008. The problem here is that Johnson actually makes less money than one of his backups.

So who is to blame here? The agent, the NFL or Johnson? As this excellent analysis from NFL.com points out, it looks like Johnson’s gripes at being underpaid are legitimate complaints. But if you represent the Titans, you can probably understand why they do not want to pony up large guaranteed dollars for Johnson.

How will it end, and how will the NFL’s uncapped year impact the signing? So far we have seen few major ramifications of the uncapped year, but the Johnson situation may be one of the first tests, so to speak, of the new NFL paradigm which is inevitable

This sports lawsuit sounded frivolous at first.

When a New England Patriots season ticket holder sued the team and NFL asking for refunds for their season tickets while the team was illegally taping opposing signals, most people assumed it would be thrown out of court.

Not so fast.

Last week the Third Circuit Court of Appeals heard oral arguments on the plaintiff’s motion to dismiss, signifying that the court is taking the matter seriously. Court watchers often like to make predictions based on judge’s comments and questions, which can be a dicey proposition under normal circumstances, but should give the NFL and Patriots cause for concern in this instance.

Some of the toughest questions came from Judge Robert E. Cowen, who called the taping "a tremendous violation, no doubt about that," of league rules.

Judge Cowen also asked how what the Patriots did was different from a team taking money to throw a game.

The NFL’s floodgate argument, that this lawsuit will result in a flood of lawsuits by disgruntled fans, probably has little merit. The case will be decided on the basis of the relationship and expectations that a fan can rightfully assume when he buys a ticket.

How valuable are athlete endorsements? If you are the athlete, they are typically the gold standard. Everyone gets a salary, but not everyone receives an endorsement deal.

Some people still believe that endorsements are worthless. In this commentary on CNN, former best-selling author Bob Greene weighs in on the topic:

How would you feel if you read an ecstatic movie review that made you want to run right down to the theater and buy a ticket -- and then it was reported that the reviewer had received a large check from the movie studio to make sure he gave the film a rave?

What Greene ignores is the obvious fact that the public knows that all endorsers are paid. It is not a trick. We know Brett Favre was paid by Wrangler. We know Peyton Manning was paid by DirecTV. We know Walter Dix was paid by Nike. Yet the endorsements still work because fans want to be associated with athletes.

Greene’s column makes no sense. He argues that the endorsements are useless because the athlete is being paid. What he ignores is basic sports business – and common sense. Consider Favre’s endorsement of Wrangler. If a consumer had the time and resources to carefully study Wrangler versus all the other jeans in the same price category, he would probably not find a substantial difference between Wrangler and the competition. I am sure that the company would disagree, but if you ripped off the labels from Wrangler and Levi's and Lee jeans, would there be a notable distinction? From Wrangler’s perspective, the company needs every possible edge to beat out the competition. So they pay a lot of money to a well-known quarterback to endorse them. They create an image that they feel is associated with Favre’s image. People already like Favre, and they see him having fun playing touch football in the park with his buddies while wearing Wranglers. This helps people make decisions.

People are not stupid. If Wrangler was actually terrible quality and it fell apart after you wore the jeans once, then Favre’s endorsement would not mean much. Instead, his celebrity endorsement separates the product from the competition.

A baseball player has filed a lawsuit because the sun got in his eyes.

This lawsuit is a unique case, as far as I can tell. The elements are a fundamental part of baseball, which is why baseball players typically wear sunglasses if necessary. Nevertheless, I would stop far short of arguing that this lawsuit is frivolous on its face.

The Canadian amateur baseball player is suing the company that owns the ballpark because he believes it allegedly failed to put a sun screen in place. George Black was allegedly injured in 2004 when he was hit by a line drive. He is seeking $1.25 million in damages.

While Canadian tort law may differ from American law, the cause of action appears to be virtually identical, as the plaintiff is already trying to stave off the standard assumption of risk defense.

Norman F. Williams, lawyer for Mr. Black, said there is a general view that if you play baseball and get hurt, "you're the author of your own misfortune."

"It's wrong in this case because [Mr. Black] didn't assume all the risk. Dofasco assumed the risk, part of it if not all, by not putting up sun visors to protect him when they knew it was a danger not to do that," he said. "These are not professional ballplayers."

Every couple of days I get inquiries from people asking about how to get a job in sports or in sports law. My advice is always to read this blog and about 25 other quality publications every day so you can learn as much as possible, and then try to get several internships while you are in college. Also, have realistic expectations about your career path. You need to start at the bottom, absorb as much as you can, try to carve out a niche for yourself and understand that personal and professional relationships are equally as important as your competence.

For a little more detail on how to get a job in sports, Dan Fitzgerald at Connecticut Sports Law Blog has posted a solid roundup of articles on breaking into the business. It is worthwhile for anyone interested in breaking into the sports business. SportsAgentBlog also has a terrific roundup for anyone looking specifically for an internship with a sports agency.

It’s baseball season, so that means we need to talk about metal bat injuries once again. In the San Francisco Bay Area, a 16-year-old high school baseball player was in critical condition after being hit in the head by a line drive in a practice.

From the article:

Gunnar Sandberg, 16, a student at Marin Catholic High School, remained in critical condition Tuesday at Marin General Hospital, said hospital spokeswoman Kathie Graham. He was removed from a medically induced coma on Friday and underwent a brain scan Monday after doctors “didn’t like what they saw,” said school principal Chris Valdez.

Not surprisingly, the article also points to “renewed concerns about the safety of metal baseball bats” and mentions the Brandon Patch verdict in which the parents of a high school player in Montana were awarded $800,000 after the player was killed by a metal bat from a game.

We have blogged about the safety of metal bats before. This blog entry about a league switching back to wood bats in fact drew the most calls and e-mails from readers. What seems a little unusual about this particular situation is that the school, Marin Catholic, immediately chose to switch to wooden bats for the rest of the season. Is this a wise decision? It probably cannot be quantified in terms of safety – if no one else is critically injured throughout the rest of the season does not mean that the wood bats are automatically safer or that the decision was warranted. At the same time, it does not mean the decision was a poor one either.

Still, the Sporting Goods Manufacturers Association is taking an aggressive stance, this time choosing to criticize the school for switching to wood bats. As an attorney who represents and advises businesses (in addition to representing individuals), I can understand why the SGMA would need to insist on the metal bat’s safety. It would no doubt be bad for business if the group acknowledged that metal bats raise concern, right? Nevertheless, it seems to me that the Sporting Goods Manufacturers Association would probably be better served by offering sympathy to the injured child and his family, and would probably be wise to avoid criticizing the school for its decision to switch to wood bats.

It’s a story we have heard repeated again and again – a mortgage firm catering to pro athletes is in the news and a number of athletes have lost a significant sum of money.

This time the news comes from the Houston Area, where a company called Pro Style Financial apparently invested money on behalf of numerous NFL players, among others. From the article:

McCray joins Italian basketball professional Henry Domercant, former Denver Bronco A. Kyle Johnson, and Dallas Cowboy Jeremiah "Jay" Ratliff as alleged victims — all of whom invested in the trust through their financial agent Pro Style Financial, a financial advisory firm that works with a variety of professional athletes and is the subject of an adversarial lawsuit by Trustee Steven Notinger who is trying to identify and regain some of the assets of the failed mortgage company.

This is yet another cautionary tale. I hate to sound like a preacher, but if it sounds too good to be true, it probably is. Just because you’re a professional athlete making millions of dollars a year does not necessarily mean that you have access to investments which work miracles. That’s why pro athletes should always have someone double check and verify the credentials of those with whom they are investing. It is not foolproof, but having a sports lawyer on retainer to conduct due diligence on potential investment opportunities is always a good idea.

We have blogged previously about the safety of sports equipment (such as mouthguards and baseball bats (here and here). Now it is time to take note of a lawsuit underway in Canada regarding the safety of hockey helmets.

The parents of a youth hockey player are suing helmet maker Bauer Hockey Corp, alleging that the helmet did not adequately protect the player against injuries. The article describes Darren More’s injury in this way after crashing into the boards following a hip check:

He was in a coma for six weeks, and remained in hospital four a total of four months. Darren’s injuries included a subdural hematoma, brain swelling and hypoxia.

Darren was unable to graduate high school and cannot seem to function in the manner that he did before the injury.

It is interesting that the plaintiffs have also sued the Canadian Standards Association, which certifies helmets for use. Whether Darren was injured because his helmet was faultily constructed helmet or by a freak accident, here is hoping that this lawsuit resolves the issue and compensates the family if the helmet maker or standards board was derelict in its duties. While Darren's situation is nothing short of tragic, if it leads to changes in the way helmets are designed, it would be a positive legacy for the future

Athletes contact me almost every day to ask how they can procure sports endorsements to further their career. I have been contacted by athletes ranging from established professionals who have lost their sponsorships for various reasons to novices who have not yet embarked on their career because they need funding to pursue their sport.

Oftentimes I am surprised that these athletes believe that all they need is an agent and the sponsorship money will automatically follow. Unfortunately, it is nowhere near that simple. As this article says, even Olympic medal winning athletes from Vancouver are going to struggle to find endorsements.

But the vast majority of Olympic athletes — even those who won medals — will have a harder time cashing in on their appearances at the Games. Winter sports like speedskating and bobsledding will all but disappear from the airwaves and, for many Americans, interest in them will not grow again until the next Winter Olympics in 2014.

If Olympic medal winners are struggling, that is an indicator that everyone else is strugglin as well. Companies are cutting back. Businesses are frugal with their dollars. While athletic sponsorships may be returning according to some published reports, it is still difficult to find money. I am not suggesting that it is impossible or that athletes should give up their dreams. Instead, I just want athletes to be realistic in their goals. Companies carefully scrutinize the athletes they endorse, and they have limited budgets. Unfortunately, it is not quite as simple as making on phone call to an agent, and then procuring sponsorships!

Sports lawyers around the country are starting to take increasing notice of MMA. As MMA moves further into the mainstream and the amount of money at stake continues to soar, you may see more lawsuits such as the Fedor-Affliction Entertainment dispute currently raging in California.

This week the court denied the defendant’s motion to dismiss, which is not necessarily a harbinger of things to come, as the standard to survive a motion to dismiss is not a high threshold. Sherdog provides its usual expert analysis and summary of the sports lawsuit by attorney J.R. Riddell:

In the suit, the world’s No. 1-ranked heavyweight and M-1 claim that Affliction breached the “Fight Agreement” requirement to stage and promote a third bout for the fighter after advertised opponent Josh Barnett was refused a license in California for an alleged positive steroids test two weeks before the event. They claim that Affliction did not undertake “all reasonable efforts” to find a fighter to replace Barnett, and even go so far as to argue that Affliction lost interest in promoting the third bout partly because it was apparently pursuing a competing objective at the same time -- repairing its soured relationship with competing promoter, Zuffa LLC, parent company to the UFC. Shortly after Affliction’s decision to cancel the event, the UFC announced that it had reached a sponsorship agreement to allow the previously banned clothing brand back into its shows.

Is it possible that sports agents who try to procure sponsorships for their clients are over-thinking the process a little too much? Milwaukee Wave soccer player Marco Terminesi probably thinks so.

Terminesi obtained a sponsorship for himself the old fashioned way. He ate at a local restaurant. He liked it. He talked to the restaurant’s manager. He asked the manager if the restaurant would sponsor him. The manager agreed, and now the soccer player has a sponsor:

"It's perfect for me," Terminesi said. "It's healthy food, and the players go there. And Felipe likes soccer." Camargo, a soccer fan himself, said he's been happy with the response so far. In his mind, both the Wave and his restaurant are on the same agenda: a fun, family-friendly atmosphere. "They care about their fans," Camargo said of the Wave. "And we care about our customers."

Of course I am being a little tongue-in-cheek with this post, as we know it is not always this easy to procure a sports sponsorship. Also, most leagues and governing bodies are not as loose with their sponsorship regulations as Major Indoor Soccer League, which allows individual players to place their sponsor’s logos onto their uniforms. Can you imagine the NFL allowing uniforms to be adorned with individual sponsor logos?!

When a judge in Athens-Clarke County dismissed the sports lawsuit brought by former Georgia Bulldog Decory Bryant, the matter was mostly decided on what laypersons might describe as a technicality.

The court ruled that the Georgia Athletic Association is an arm of the state and therefore entitled to protection under the sovereign immunity doctrine. At first glance, this seems like a reasonable ruling, right? Bryant sued his athletic department for failing to procure insurance, and the court ruled that the athletic department is a government entity, and therefore protected from certain types of lawsuits.

Further investigation reveals that it is not quite this simple. The GAA is a non-profit organization. This means that it is not a division of the University of Georgia in the way that, for example, the school’s physics department might be fully encompassed within the institution.

Universities generally form non-profits such as the GAA so that they can evade the usual restrictions faced by public institutions. For instance, in some states, government employees have their salaries restricted by statute. The way to get around that restriction for coaches is to make the coaches employed by the non-profit, and not the state institution.

This means that the GAA is trying to have it both ways. They want to be a separate entity from the University of Georgia with the protections of a private non-profit, but they also want sovereign immunity, which is only available to government entities. It sounds to me like Decory Bryant’s lawyers will be appealing to a higher authority.

The sports media and sports business world was in a frenzy recently over the upcoming launch of TMZSports, a gossip site apparently to be devoted entirely to athletes rather than entertainers. TMZ is already an established media brand and is one of the world's most heavily trafficked web sites, and it earned $40 million in ad revenue over the past two years.

While pundits have weighed in on what this means for sports media, no one has yet discussed what this means for professional athletes and the people who help manage their careers such as sports agents and sports lawyers.

My take is that it while it seems scary - because TMZ habitually pays people for tantalizing photos - it is not something that should scare athletes. Any athlete with a brain already knows that even a minor transgression is in danger of being captured by a cell phone camera and posted online within seconds. The reason that athletes need not be worried is that as Shanoff writes in the first link that I posted above, the general public does not care about the private lives of its sports idols. There are, of course, obvious exceptions, such as the Tiger Woods story. The bottom line is that it’s one more thing for athletes and their agents to monitor, but athletes need not be worried because of a new gossip web site, even if the site is already branded as one of the world's most popular.

To think that the paparazzi will suddenly be parked outside of NFL practice facilities and following offensive linemen around town on their nights out is an over-exaggeration. The TMZ culture of celebrity worship is a phenomenon which has been ongoing for more than a century; entertainers have always been the target of obsession. Only the elite of the elite professional athletes, on the other hand, have been treated as celebrity objects. I predict TMZ's venture will be a non-factor within a year of its launch.

If you are a college football coach and you have a sports agent, you are undoubtedly hoping that college coaching salaries continue to escalate. Unfortunately for the coach and sports agent, I think too many factors are working to force salaries into a downward trend.

In major college sports, it turns out that the entire “game” is deemed a not-for-profit. A recently published report about the University of Texas explains how college sports are considered to be big business, but still remain tax free:

Over the years, the NCAA and other college sports supporters have convinced the Internal Revenue Service that athletics are a genuine part of the educational experience. Yet big college athletic programs also have become more business-minded as their costs have risen. On average, the Congressional Budget Office found that about two-thirds of the athletics revenue at large universities comes from activities such as sales of tickets, TV rights, advertising and merchandise that would be taxed if the schools were ordinary businesses.

The uproar has resulted as people have realized that college sports may be getting a free ride. While changes in this realm may not necessarily impact professional athletes right away, it could result in lesser salaries for coaches as college sports programs are forced to start paying more tax. As head coach salaries have escalated, I have always thought that the market was due for a correction at some point in the coming decade. This movement to potentially strip college sports programs of their non-profit status is yet another sign that coaching salaries will eventually come back down to earth.

As a sports lawyer, my job is to represent my athlete clients in lawsuits. However, there are times when filing a lawsuit is not in the client’s best long-term interests, and it is my job to advise the client of this.

Take the recent ruling in the Reggie Bush lawsuit. Bush was sued by a former investor, and Bush asked the court to move the case to arbitration. One reason that parties to a lawsuit often seek to avoid the court system, is that they want to avoid the publicity that comes hand-in-hand with legal matters. All court documents are considered public material, which means that anyone – blogs, reporters, fans, etc. – can get their hands on the documents. In arbitration, on the other hand, there is no particular obligation to make the material public. Arbitration pleadings are not filed at the courthouse, as arbitration is a private matter.

In Bush’s case, his advisers do not want the NCAA to get their hands on deposition transcripts. If the NCAA reviews the depositions and finds grounds to bolster their already ongoing investigation, that could be bad news. The article says that Bush’s lawyers will now seek summary judgment. If they lose, you can bet that their will be a settlement so that Bush’s testimony does not see the light of day.

This case proves that there are always valid reasons not to sue, even when the athlete thinks a lawsuit is the best course of action.

If you have ever wondered whether a professional athlete’s endorsement of a product produces measurable results, check out this unusual sports law controversy in Japan. Consumers are suing a purified water company because it falsely used Seattle Mariners star Ichiro’s likeness even though Ichiro does not use the product.

One of the comments from a plaintiff is startling:

In his lawsuit, the man claims that he trusted the company because he was told that Seattle Mariners outfielder Ichiro Suzuki regularly drinks the company's water and that it was a sponsor of the Beijing Olympics and the football World Cup."

It’s not uncommon for an athlete to sue a company which falsely uses his likeness. I have never seen a case such as this one, in which consumers believe they were duped by a false endorsement. A closer review of the article reveals that only part of the lawsuit is about Ichiro's allegedly false endorsement; a rogue investor may have hyped the company, thereby inducing investors to lose large amounts of money. Still, I think this lawsuit speaks to the power of professional athlete branding - if a business is linked with the right athlete, the public will buy the product.

When Bears quarterback Jay Cutler started mouthing off about what he perceived to be poor officiating, the media in Chicago took notice. Apparently, Cutler has been complaining during the game at a level far more than normal to the officials. Maybe he is looking to use them as scapegoats for his poor on-field performance.

For some reason, Bears coach Lovie Smith has done a poor job of bringing Cutler’s complaining under control. So does that mean Cutler’s sports agent should try to step in? Sports agents are not babysitters, but they often have the means to persuade their clients that certain actions have adverse consequences. This is not a complex formula: If Cutler were perceived as a “good guy” he may be more likely to procure additional well-paying endorsements. If he were perceived as a “complainer” then Cutler’s public persona will not be well-received.

Sometimes you have to wonder if the folks at Nike really are smarter than everyone else in the sports endorsement world. Nike has announced a partnership with the group that regulates high school sports in Texas:

As part of the agreement, Nike will provide discounted rates to the roughly 1,300 UIL-member schools. Nike also will be an official sponsor at both UIL athletic and non-athletic events

What does this mean on a practical level? While most high school athletes will never have the opportunity to turn professional, those who do will have already been Nike clients for many years by the time that they begin their professional careers. So who do you think they are more likely to sign with if they have been associated for Nike since their formative years? That’s right, Nike.

We have blogged on multiple occasions about creative methods of obtaining sports endorsements. Here is an interesting endorsement which apparently has an indirect payoff.

NBC is allowing viewers to submit a design for skier Lindsey Vonn’s helmet. The contest does not disclose a direct payoff to Vonn, but it is sure to increase her visibility. Every time she is shown on TV, the network will highlight that she has a helmet designed by a viewer, and Vonn will stand out from the pack of usually faceless Olympians who are shown on TV only once every four years.

Vonn’s agent should be commended for procuring this endorsement opportunity. It is especially praiseworthy because the agent probably drew no direct commission for brokering the deal, but he knows it will pay off in the long run.

Sports Agent Lawyer Blog was recently quoted in an article in San Diego City Beat about the energy drink sports endorsement market.

While I have no knowledge of any of the principals involved in the story or the legal proceedings, I was asked to comment by the reporter about the agent’s purported practice of taking a direct commission from the energy drink company when he linked his athletes to the company.

The article calls it a “questionable double-dipping practice.” Here is how it works: The agent has a business relationship with a sponsor. The agent also has athlete clients who need sports endorsements. Naturally, the agent links the athlete and sponsor together and everyone is happy. The questionable practice is that the agent not only takes a commission from the athlete – all marketing agents take a commission when they procure endorsements – but he is also paid by the company.

Here is my quote about the practice:

Attorney Jason Wolf, who blogs about these issues at Sportsagentlawer.com, said this double-dipping isn’t illegal.

“It’s not common, but it’s also not uncommon,” Wolf said. “It’s not unethical, but it raises some questions as to whether the agent is in it for himself or has his clients’ best interest in mind. It makes me raise maybe one eyebrow instead of two.”

The reason this raises questions is that the agent is supposed to have his client’s best interests in mind. This practice is not proof that the agent is failing to meet his fiduciary duty, but it definitely raises questions. I also suggested that perhaps one reason that the practice is not unethical is that there is no uniform code of ethics governing sports agents, and no enforcement of such regulations. Without a code of ethics, how can conduct be deemed to be in violation of the ethical regulations?

As sports agents, sports lawyers and pro athletes enjoy Turkey Day, I just wanted to pass on this brief food for thought.

The recent sale of the Pontiac Silverdome for $583,000 has been the subject of extensive ridicule in the media.

"An 80,000-seat domed arena and its 127-acre site sold for less than a one-bedroom apartment in Manhattan," Jon Stewart marveled on "The Daily Show." Not just any apartment — one "with a rodent problem, above a bowling alley and below another bowling alley."

I think it is also a good opportunity for municipalities to wake up and realize that they need to be less short-sighted, and smarter, when they build stadiums using public money. This facility cost the equivalent of $220 million in today’s dollars. Talk about a waste of taxpayer money and resources.

Everyone has an opinion about baseball sports agent Scott Boras. People either love him or hate him.

One thing that Boras does well is drive up the price for his players. This benefits all major league baseball players, and their agents, because he makes more money available. Owners’ complaints about Boras are well-documented: He is a hold-up artist who artificially inflates salaries to the point where baseball is on the verge of a permanent disparity between the large- and small-market teams.

We will cover the disparity in another blog post. What has impressed me about Boras’ recent comments is that he called out the St. Louis Cardinals for crying poverty:

In an interview that ran about 15 minutes, Boras chided the Cardinals for portraying themselves as a "middle-market franchise" and served up a reminder of a potential power-shifting decision the Red Sox made last winter.

Boras always presents unrealistic demands in the initial stages before contract negotiations get serious. He also obtains results, as witnessed most recently by the eight-year, $180 million contract that his client Mark Teixeira signed with the Yankees last offseason.

Boras also disputed MLB's complaints that the current economic crisis will depress the market for free agents:

"We hear this every year," Boras said of MLB's forecasts that spending will be down. "Based upon their bad economic forecasts of last year, I won't invest in their stocks of choice."

Have you heard about the sports agent who obtained an endorsement for his pro athlete client, but the athlete had to pay money for the privilege of doing the endorsement, instead of the other way around?

A new mouth guard on the market, which retails for up to $800, is being presented as a performance boosting mouthguard. Among the endorsers of this product are All-Pro RB Adrian Peterson and NHL Hall of Famer Brett Hull. They not only endorse the product, they have invested in the company, Bite Tech, which manufactures the special mouthpiece.

The article raises two interesting points. First, should agents advise their clients to try new products if they are alleged to improve performance? (We will cover this in a future blog post; for now, consider whether a sports agent would be wise to recommend that his client try one of the new and improved hockey helmets)

Second, and more importantly, is this a good endorsement if the athlete is not paid anything? The article makes it sound like Hull, Peterson and the others who are involved aren't necessarily endorsing the product as much as investing in a business in which they believe. However, the article also contains this excerpt, which makes me think there is a little bit of a smoke-and-mirrors situation going on here:

But Bite Tech's biggest boost has come from its litany of athlete investors and users, a testament to Kittelsen's prodigious ability to work the room. For instance, Kittelsen first met Hull at Michael Jordan's golf tournament and later cornered him at a restaurant. Hull says it was his idea to invest in Bite Tech, which is precisely what Kittelsen wanted the hockey star to think.

"It has to be their idea," Kittelsen said. "If it's their idea, then they really believe" in the company.

So in other words, the founders of this company have essentially found a way to promote their product that is virtually revolutionary. Not only do they pay nothing to big-time athletes in exchange for an endorsement, they actually have convinced the athlete to pay the company for the privilege of endorsing! Brilliant marketing for the company, but for the agent and athlete, it may not be the smartest move. To be sure, if the product works and the business takes off, the athlete has made a good investment. But at what cost? A superstar such as Adrian Peterson has a brand to protect; he cannot be involved in just any random product. Now he is not only receiving nothing for an endorsement, he is actually paying this company for the privilege of serving as a spokesperson.

Brock Lesnar has been hospitalized with a major illness.

Lesnar is a fascinating topic for this blog because his athletic career has run the gamut from WWE to the NFL to UFC. His endorsement prowess is something we were going to cover in a future blog pose. Now it looks like he is facing some major health problems:

UFC President Dana White has commented on the situation by saying "He's in a hospital up in North Dakota somewhere right now," said White. "He doesn't want to talk about it publicly, but he's in bad shape."

Here's hoping that Lesnar recovers quickly so that he can continue to blaze trails in the UFC world (not to mention defend his title).

We recently blogged about pro athletes suing reporters. Now comes word that the Major League Baseball Player’s Association is closely monitoring baseball team media comments for signs of a collusive-type effort to artificially limit baseball salaries.

Michael Weiner, MLBPA’s new leader, says the union is worried about the “predictions” that a glut of players who are not tendered contracts by their teams will result in lower salaries for free agents:

"I don't think it's an accident that in recent weeks, management officials, without attribution, have been making predictions about what's going to happen in this year's free-agent market," Weiner said. "There have been predictions about the [money] players will get, what players will be offered [salary] arbitration and what players will be non-tendered [contracts].

As an agent, I think this behavior, if true, is deplorable. However, as a sports agency that counsels its clients on how athletes should utilize the media to deliver the right message, a subject which we have blogged about on several occasions here, this is a situation to monitor. It shows that even when you hear something as seemingly innocuous as sweeping predictions about the market, there is a method to the communication.

If you’re an MMA fighter, you have to be pleased at the recent news that Georges St. Pierre has signed with Under Armour. As MMA goes more mainstream – and people finally recognize MMA for what it is, which is a legitimate sport that has nothing in common with WWE – more endorsements are sure to follow.

A lot of people are probably asking themselves: Now that St. Pierre is in the fold, who will be next? The question that I would like answered is: Which mainstream company will dip their toes into the MMA world next? It’s not like MMA is a stranger to big corporations; many endorse the league overall. But to date few major sports endorsing companies endorse individual athletes, and that is sure to change now that Under Armour has signed up St-Pierre. This is good news for MMA fighters and their sports agents.

For more information on sports agents and endorsements, contact sports attorney Jason B. Wolf.

News that the pending baseball card lawsuit between Topps and Upper Deck was settled recently came as no surprise to us here at Sports Agent Lawyer Blog.

According to published reports, the baseball copyright infringement lawsuit settled in mediation in New York. Topps sued Upper Deck alleging that the latter’s 2009 cards too closely mimicked the former’s 1970s card designs. (For the avid card collectors out there, this link provides a detailed review of the baseball card lawsuit). Topps was seeking monetary damages and specific performance, including the destruction of Upper Deck’s allegedly infringing cards.

We were not surprised to see that the lawsuit settled because Upper Deck is apparently now out of the licensed baseball card game because Topps now has a multi-year deal with MLB to be the exclusive provider of baseball cards.

The recent news that baseball legend Curt Flood put his World Series ring and Gold Glove award up for auction is noteworthy because it comes on the eve of the latest round of free agency (as we discussed in the blog a few days ago).

For those who don't remember, Flood is credited with essentially being the father of baseball free agency. Before he filed his famous baseball lawsuit, which went to the United States Supreme Court, baseball players were extremely limited in where they could play; they essentially had no choice. Flood fought the owners, and the result was the most powerful union in sports, and the best free agency scheme in any of the major pro sports.

Here is a quote which sums up Flood's influence. Few could disagree with Flood's influence on the game of baseball and his role in shaping the game into what we know today:

"Needless to say, the significance of Curt Flood in baseball history is pretty well versed," said David Hunt the president of Hunt Auctions. "Whether people agree with his stance or not, he changed the way baseball operated. His effect on history shouldn't be understated."

Athletes need endorsements. Olympic athletes especially need sponsorships. We have blogged several times previously about various methods used by Olympians to raise money for their sports careers, from creative endorsements to new techniques to find sponsorships. Now comes what is believed to be a first in Olympic history.

The Colbert Report is sponsoring the U.S. Speedskating team. What is unique about this opportunity is that Colbert is not paying any money to the team. Instead, he is asking his fans to donate money. Time will tell how much money this deal brings in for U.S. Speedskating. It seems like an unusual sponsorship arrangement. It is probably an indication of how difficult times are for athletes if they have to sign endorsements with businesses in exchange for nothing more than a promise to ask fans for donations.

Are female golfers going to earn more money in sports endorsements?

Michael Whan, who was named the new LPGA commissioner earlier this week, has an extensive background on the marketing and business side. He worked at North America TaylorMade adidas Golf from '95-'00 and has also worked as a brand marketer for BriteSmile and Procter & Gamble.

While Whan's selection was reportedly a surprise to golf insiders who thought the new commissioner would be a more established name, this is probably good news for LPGA golfers. As they try and resolve the problems their sports has been facing, it will be helpful that the new leader has a marketing background. Reports estimate that the LPGA has lost about 13 events since the beginning of 2008, and the league itself has been forced to lay off employees.

Not least of their problems are a dearth of sponsorships, endorsements and marketing opportunities for their athletes. With the new commissioner coming from a marketing background, rather than from an established league or sport, it seems that the golfers on the LPGA can look forward to a stronger and more robust business model, which should translate into more money in their pocket.

Should you start you pro sports career now, or should you go to college instead? Before long, that choice may be made for you. If collegiate sports spending is unsustainable, what does that mean for future professional athletes?

The Knight Commission recently held its annual gripe session in Miami and more than 75 percent of college presidents believe that the level of college athletic spending is too high, and that something must be done to reign in scholarship costs. That sounds to me like the presidents plan to cut scholarship costs as soon as they can.

What does it mean for kids hoping to pursue professional sports careers if there are fewer scholarships? Only time will tell, but one would think a natural and inevitable consequence is that the level of competition will be diluted at the collegiate level.

If collegiate competition is watered down, what happens to pro sports? Let’s consider a non-revenue sport like collegiate tennis, which has a vibrant professional tour. If scholarships are cut, more high school tennis kids will try to make it on the professional tour. Would that add to the quality of pro tennis? If colleges nationwide eliminate 500 tennis scholarships over the next decade, then how many of those kids will turn pro? More importantly, how many of the few remaining athletes will forgo collegiate tennis entirely, as the entire game is less meaningful? I predict that this is an opportunity for many sports such as tennis to capitalize and launch more professional leagues, teams and organizations, and differentiate their levels of competition. Consider what would happen if the majority of college golf scholarships were eliminated. We already have several “minor league” golf tours, but wouldn’t you expect to see a few more?

The amateur-professional sports distinction, and the blurred line between the two worlds, is a well-documented discussion. I think the line could eventually become more solidified as colleges continue to cut back, which means that college sports’ loss will be pro sports’ gain.

If you are interested in sports law related issues, please contact the sports law firm of Koch & Trushin, P.A.

Stop me if you have heard this one before: A successful professional athlete did a poor job managing his finances, and he is now in serious debt.

Professional athletes need to maintain strict control over their finances. They also need someone who assesses their risk and manages their varied investments. I am not talking about a financial adviser, but I am referring to a person who keeps track of everything for the busy athlete who cannot handle his own personal dealings.

The recent fiascos involving former Mets pitcher Livan Hernandez and Celtics forward Antoine Walter are instructive. Hernandez is being sued by his lender for his home in Miami and he is subject to liens from two neighborhood associations, the pool guy and the state of California. This article breaks down Hernandez's financial problems.

As for Walker, he has debts of more than $4 million according to a Boston Globe article. What's most incredible is that Walker has earned about $110 million in his NBA career. Walker has deeper problems as well - he's facing multiple felony counts for passing bad checks.

Continue reading "Who Manages Risk for Athletes?" »

Our friends at the Connecticut Sports Law blog have done a terrific job of covering the tragic story of Jasper Howard, the UConn football player originally from Miami who was murdered on October 19 on campus.

Today, CT Sports Law blogs about a company that is selling unauthorized likenesses of Howard on a t-shirt. The company allegedly states that profits will go to Howard's unborn child, but that claim was deemed sufficiently dubious that the Connecticut Attorney General demanded that the company stop selling the merchandise and threatened a lawsuit.

It's an interesting, although sordid, legal problem. As CT Sports points out, there is already an authorized dealer of licensed Howard merchandise with proceeds to benefit the unborn child. The Connecticut AG said in his press release that the unauthorized shirts are "in violation of state charity and copyright laws."

I can't claim to be an expert on Connecticut charity laws, but the problem is fairly obvious. The seller did not register as a charity, which is probably as easy as filling out a few forms on a web site. As for copyright violations, the press release was too vague to give any insight into which specific copyright laws may have been violated.

With that said, whether a business deal is legal is one question, but whether it is ethical is another matter entirely. The AG himself put it best:

Any attempt to exploit Howard's tragic death is despicable and unconscionable. I will fight anyone seeking to exploit Howard's heartrending tragedy, as well as pursue civil penalties and forfeitures.

Tough to disagree with that sentiment, right? The seller denies that he is exploiting the situation, but he probably could have benefited from consulting legal counsel before moving forward with this plan.

I get a lot of calls and e-mails from basketball players who want to play overseas. What's the best way to get the attention of European, Asian, South American and African professional basketball coaches and teams? How good is the competition over there? What should I do position myself to play overseas basketball when my amateur career is over?

Unfortunately, the answer is complicated. We will explore the best ways to go about finding an overseas team in a later blog post. For now, let's talk about what I think is the absolute wrong way to find a basketball team overseas.

For every Jeremy Tyler, who left high school early to play basketball overseas in Israel, there are a lot more players who wish they could go over there but are not mature enough in their game and off the court to play overseas.

Tyler signed a one-year, $140,000 contract. Apparently he plans to use this league as a jump-start to a higher, more lucrative league next year. Then he'll be ready to jump to the NBA when he's eligible for the draft in 2011 (Remember that you're not draft-eligible in the NBA until one full school year after your high school class graduated - or in Tyler's case, after the class would have graduated).

One has to question the wisdom of Tyler's decision. He is passing up the chance to earn a high school diploma. Here is Tyler's reasoning:

“I left high school early because I felt I could develop my game more by playing professional,” Tyler said.
“Why?”
“Because high school sports wasn't that fun,” said Tyler, 18. “I wasn't getting better. I was developing bad habits. Hopefully here I can develop my skills, and I can show the world I have talent.”

Here's hoping his basketball career works out and he gets drafted in the NBA in 2011. If basketball doesn't work for him, he will lack even the most basic of credentials (a high school diploma) and be virtually unemployable in any career, even minimum wage jobs. This is a short-sighted and narrow-minded decision in my opinion, one that has nothing to do with basketball and everything to do with money.

In an era in which athlete endorsements are increasingly difficult to come by, here's a story about a coach who has sponsors knocking at his door, and has refused any athletic endorsements.

Memphis basketball coach Josh Pastner leads the most popular sports program in the city, and has apparently been approached by a number of businesses for endorsements. So far, he is content not to increase his income through endorsements, but to collect the $880,000 in salary instead, and focus on settling into his first-ever head coaching job.

There is nothing to criticize about Pastner declining to chase endorsements. His quote about why he does not want endorsements is interesting:

"I don't want it to be about me," he said. "I thought, 'Hey I haven't coached a game yet. I don't deserve any of those things and if anyone wanted to do endorsements, they should go get the former players, former coaches.' That's my thinking on it. "I feel what's best is for this first year not to do any of that. It's not to say we're not going to do it in the future, but for this year, the whole focus needs to be strictly on Memphis."

In the long run, is this young coach wasting precious capital? I suspect that he has been receiving advice from an agent, although I do not know this for sure. I do know that he is taking a precarious gamble with his career. On the one hand, he must be supremely confident that he will have a great season. If that happens, his price will only skyrocket and he can command more endorsements (both in quantity and price) next year. On the other hand, if Memphis stumbles, or does not distinguish itself, then he may command less next year.

If you're a professional athlete and someone else owns your domain name, you should thank Toronto Raptors player Chris Bosh for getting it back to you. Bosh recently won a case in federal court in which the court ordered that domain names with no connection to the athlete should be returned to the athlete.

Actually, the court ordered about 800 names to specifically be awarded to Bosh and his company. Bosh has agreed to give the names back to the person named. Here is a complete list of the misappropriated athlete domain names.

This is a major victory for pro athletes under the relatively new Anti-Cybersquatting Consumer Protection Act. If someone is holding your domain name as hostage, have your sports attorney contact them and you should get it back in no time.

Remember when former Minnesota Vikings coach Mike Tice got in hot water for ticket scalping? It's a temptation most pro athletes (other than the top earners) have probably thought about every now and then: Sure, you make a nice salary, but wouldn't it be nice to put a few hundred bucks in your pocket by scalping your free ticket allotment?

Recent media reports have listed tickets for the Vikings-Packers Nov. 1 showdown at Lambeau Field at $364, which vastly exceeds face value. Would it be tempting for the players on either team to scalp their tickets? Perhaps it would be a temptation, as the value of these ticket will only increase, unless Brett Favre gets hurt. Pro football players have enough to worry about without trying to pick up extra cash by scalping tickets.