Family of L.A. Kings scout Mark Bavis won't settle Sept. 11 lawsuit

There were 2,977 people killed in the Sept. 11 attacks, and 2,880 families went through the Victim Compensation Fund that was set up by the U.S. government to save the airlines from the expected deluge of lawsuits. The fund, run by special master Kenneth Feinberg, paid out more than $7 billion.

Ninety-five families gave up the chance for a quick payoff -- the fund finished up in 2004 and paid an average of $2.08 million to the survivors (and an average of $400,000 for more than 2,600 who were injured) -- and sued. Ninety-four have settled.

The remaining wrongful death lawsuit is from the family of Mark Bavis, a former Boston University hockey player and scout for the Los Angeles Kings. Here is the AP story on Bavis v. United Airlines et al, and why even after 10 years the Bavises refuse to settle.

Fantasy Football Season is Coming. Is Your League Legally Prepared?

Mike has reported extensively on the Tom Brady settlement and anticipated 10 years of labor peace in the NFL. For more than 20 million Americans,this means a return of their favorite pastime: fantasy football. Nevertheless, even as fantasy football has become a multi-billion dollar industry, few seem to understand how federal and state laws apply to fantasy sports.

With great pleasure, I thus introduce my newest law review article: A Short Treatise on Fantasy Sports and the Law: How America Regulates it New National Pastime. This article, which will be published in the upcoming edition of the Harvard Journal of Sports and Entertainment Law, explains how federal and state laws regulate the fantasy sports industry (including fantasy sports host sites, fantasy sports advisory sites, fantasy sports treasury sites, fantasy dispute resolution sites).

Upon conducting my research for this article, here are five interesting tidbits that I learned:

(1) Fantasy sports can be traced back to the early 1960s and a game known as "The Baseball Seminar," which was played by distinguished professors from Harvard University and the University of Michigan.

(2) Not all states agree that fantasy sports leagues are legal. Just ask Randy Bramos: a Florida firefighter who was arrested in 1991 for running a fantasy baseball league (all charges against him were ultimately dropped).

(3) Of all states, Montana has the most complex, and perhaps most insightful, way of regulating fantasy sports leagues. Under the Montana statute, fantasy sports host sites are only allowed to charge up to 15% of league entry fees as administrative fees for running a league. This rule may place certain CBS Sports fantasy games on the wrong side of Montana state law.

(4) Certain scoring systems in fantasy sports games are patentable. Indeed, there was an 2002 case in the Federal Circuit involving alleged patent infringement in the fantasy sports industry.

(5) If your employer does not allow you to solicit fantasy sports membership, it may be for good reason. A 2000 Tenth Circuit Court of Appeals case found it to be discriminatory for an employer to allow workplace solicitation during the workday of fantasy sports membership, but not union membership. Thus, if an employer wants to prevent employees from soliciting union membership, the employer should also prevent employees from soliciting fantasy football membership.

For those interested in reading my full article about fantasy sports and the law, again, it is available for download here.

Upcoming Boston sports law panel: Understanding the NFL and NBA Labor Disputes and Their Economic Impact

I'm looking forward to being a panelist on this upcoming panel on NBA and NFL labor issues hosted by the Boston Chapter of Women in Sports and Events.  If you would like to attend the Wednesday September 21 event, which will be held in the Boston office of Nixon Peabody (100 Summer Street) between 6:30 and 8:30 p.m and which is open to those interested in sports law, please e-mail info@wiseinboston.com.

Dan LeBatard never took Evidence

Dan LeBatard of the Miami Herald is not a lawyer. But I often complain that when the mainstream media tries to talk about law, they invariably get it wrong. Today,  LeBatard tried to urge patience as allegations swirl around UM's football team, with some genuinely incoherent comments about law.

First, he says that "Circumstantial evidence is not actual evidence." Umm, yes, it is. We know that, because, as a blogger for The Big Lead says, it says "evidence" right there in the phrase. And in any event, the evidence against UM is not circumstantial. Someone with firsthand knowledge (Shapiro) is stating the things he did (giving players money and other gifts, etc.) and those things violate NCAA rules. That is as direct as evidence can get.

Later, LeBatard says "precious little of what we’ve seen amid this noise so far can be considered truth, evidence, facts." Again, this is wrong on many levels. What we have been hearing are, indeed, facts--assertions or propositions about events that have happened in the world (e.g., "I gave money to UM football players"). And it is evidence--information by someone with knowledge offered to establish the truth of those assertions or propositions. Is it truth? That we do not know (although each of us is free to reach our own conclusions for now) and that ultimately will be for some fact-finder, whoever it turns out to be. But doubting the truth of facts does not mean they are not facts; disbelieving some evidence does not mean it is not evidence.

Two New Sports Illustrated Columns: NFL concussion lawsuit and Mike Jacobs testing postive for HGH

I have a couple of new SI columns.  Yesterday I wrote about the first class action lawsuit brought by retired NFL players against the league for concussions and related neurological problems; on Thursday I wrote about the impact of minor leaguer Mike Jacobs becoming the first player in pro baseball, basketball, hockey or football to test positive for Human Growth Hormone.  Here are the links:

• Concussion lawsuit could cost NFL, whether settled in or out of court

• Ripple effect in wake of Mike Jacobs' failed test for HGH

Brief thought on the UM scandal

I doubt the allegations against UM's football team are that unusual as NCAA violations go, although the salacious details (prostitutes, strippers, and abortions) are irresistible to the media. The story is bringing into stark relief the basic disagreement over whether the NCAA and its regulations are worthwhile or whether they are the problem, as demonstrated by this exchange between Deadspin's Tommy Craggs and Charles Robinson, the Yahoo! reporter whose investigative work broke the story.

Several people, including NCAA President Mark Emmert, have suggested that the "Death Penalty" could be in play here.  I find it telling that we did not hear similar talk surrounding the recent investigations of The Ohio State University, USC, or North Carolina, or the fledgling investigation against Kentucky basketball last summer. And while I do not believe the NCAA would do that (and Emmert apparently has walked his comments back), the tone of the discussion is noteworthy. Why the difference? Advocates of the death penalty would argue that Miami is a blatant repeat offender; this would be the third or fourth major violation in the past twenty years, not to mention the unproven scandals (such as Luther Campbell's unproven Pay-for-Play) and the school's overall reputation as a bandit/thug school.

But let me suggest a different, less-principled explanation: Miami looks a lot like SMU, the only school to suffer the ultimate sanction, did in the 1980s. Both are relatively small (SMU has 12,000 students, UM 15,000) private universities that are new (or relatively new) to big-time college football. Both burst on the football scene, combining on-field success with a brashness that disturbed the NCAA establishment. Back in 1987, SMU lacked the political capital within the NCAA to resist the penalty; and, if you believe the 30-for-30 documentary, there was a strong sense  that the old guard who controlled the NCAA were also trying to make a special point by bringing the hammer down on the unwelcome interloper.

Could the NCAA's old guard again be gunning for the interloper, one whose style has long rankled? The NCAA backed off from really going after OSU and USC, two old-line football powers. Does Miami have enough political capital to resist, if the NCAA is determined to swing the hammer against it in a way it did not against establishment schools?

NFL enforcing NCAA regs?

The NFL announced the eligible players for Monday's Supplemental Draft, a list that includes Ohio State QB Terrelle Pryor. In addition, however, NFL Commissioner Roger Goodell announced that Pryor would not be eligible to practice or play in the first five games of the NFL season--the same length as the suspension that Pryor would have served had he remained at Ohio State.

The NFL explains:

In addition to being notified that Terrelle Pryor may be selected in the Supplemental Draft, NFL clubs were informed that Pryor made decisions that undermine the integrity of the eligibility rules for the NFL Draft.  Those actions included failing to cooperate with the NCAA and hiring an agent in violation of NCAA rules.  This resulted in Ohio State declaring him ineligible to continue playing college football.  Pryor then applied to enter the NFL after the regular draft.  Pryor had accepted at the end of the 2010 college football season a suspension for the first five games of the 2011 season for violating NCAA rules.


In his decision allowing Pryor to enter the Supplemental Draft, Commissioner Roger Goodell determined that Pryor will be ineligible to practice prior to or play in the first five games of the NFL regular season after he signs.  Pryor may be selected in the Supplemental Draft, negotiate and sign a contract with an NFL club, and fully participate in the remainder of the preseason.

 Deadspin finds this "incredible" and perhaps it will not stand if Pryor sues and/or the NFLPA gets involved.

But consider: At least part of the problem with NCAA enforcement is that the real wrongdoers (and let's assume for the moment that NCAA regs are worth enforcing and those who break those rules are worthy of sanction) virtually never are punished. The players and coaches involved in the misconduct are long gone from a school by the time any punishment is imposed and the punishment falls entirely on a new coach and new players who had nothing to do with anything. For the players who are just marking time in college because they have to, having to leave college and jump into the pros (as Pryor is doing) is not a meaningful sanction.

The answer thus is for the pro leagues to enact their own rules sanctioning professional players who broke NCAA rules. This is particularly so, as with Pryor, the wrongdoing was a direct step to trying to go into the pros (or so the NFL believes) and the wrongdoing is close in time (as opposed to the wrongdoing being discovered three years into the player's NFL career, as with, for example, Reggie Bush).

The question, beside whether this will work, is whether this is a one-shot deal or the NFL is serious about trying to bolster NCAA enforcement by wielding its own punishment authority.