Faculty Bibliography

The past two years have brought important legal changes to the intercollegiate sports industry, with the U.S. Supreme Court striking down aspects of the NCAA’s bylaws that prevented colleges from providing unlimited educational benefits to their athletes, and state legislatures passing new laws to ensure that college athletes enjoy the legal right to endorse products for money. These recent changes to the economic system of college sports have now heralded broader change in legal policy pertaining to the classification of college athletes. At present, the U.S. Court of Appeals for the Third Circuit is reviewing, on interlocutory appeal, the question of whether certain NCAA Division I college athletes may constitute employees for purposes of the Fair Labor Standards Act. In addition, on December 15, 2022, the National Labor Relations Board instructed its Los Angeles branch to move forward in pursuing an unfair labor practice charge against the University of Southern California, the Pac-12 Conference, and the NCAA for engaging in the ongoing misclassification of their college football and basketball players as mere “student-athletes.”This article provides an in-depth and contemporary analysis of college athletes’ employment status under both federal labor and employment law. It concludes by asserting that while the NCAA and its member institutions may be correct that certain college athletes fail to fall within the legal definition of employees, other college athletes, especially those in revenue-generating sports, fall clearly within the legal definition. The Article further provides guidance as to determining what types of college athletes constitute bona fide employees, as well as what entity, or entities, would constitute the employers of these employee-athletes.

For the past seventy years, intellectual property law’s right of publicity has allowed for celebrities to monetize their names, images and likenesses for commercial gain. However, until recently, college athletes remained excluded from the endorsement marketplace based on the National Collegiate Athletic Association’s internal Principle of Amateurism, which has kept the wealth of college sports in the hands of a select few administrators, athletic directors and coaches. Following years of mounting pressure from the college-athletes’ rights movement, a number of states recently announced new laws to ensure college athletes the right to endorse products free from NCAA interference. As such, the NCAA begrudgingly relented on June 30, 2021 and deregulated certain aspects of its Principle of Amateurism—for the first time allowing individual schools and conferences, rather than the association itself, to dictate what name, image, and likeness (“NIL”) deals their athletes may enter. What has followed has been a great deal of confusion and ad hoc development of policies by people who have never before been responsible for policing these types of activities. In an ironic twist, many states that passed and implemented NIL laws have been placed in a position where they have more restrictions in place than schools in states that never passed NIL laws. This Article, or perhaps more accurately Short Treatise, provides a comprehensive overview of the history of the right of publicity and discusses the legal risks facing the NCAA, collegiate conferences, schools, and athletes in this new world of college sports.

Is it lawful for a professional sports league to punish an executive of a team when that executive isn’t employed by the league and, unlike a player, isn’t a member of a union that collectively bargains with the league? The answer to this question has long been presumed as “yes,” despite the non-employing league lacking a contractual link to the executive—a third party—it fines, suspends, or even bans from employment with businesses owned by others. This Article challenges that presumption. It does so by applying employment law, franchise law, and private association law to the unique relationship between sports leagues and their independently owned franchises. The Article balances the absence of a contractual relationship with league interests in fair play and orderly structure. To date, this topic has been overlooked in legal scholarship. Yet it is timely given recent high-profile punishments of team executives in several of the major leagues.

The legal framework governing college athletes is in a transformative era. Under pressure by state governments and members of Congress, the NCAA is contemplating structural changes that would permit college athletes to license their names, images and likenesses. Should these changes come to pass, college athletes—most likely through the negotiation vehicle of trade associations—would be compensated for the use of their identities in apparel, merchandise, video games, television broadcasts and related goods and services. The changes would upend decades of NCAA adherence to “amateurism,” a controversial system of rules that denies compensation opportunities on the logic that pay would corrupt college athletes, betray educational goals and undermine the consumer appeal of collegiate athletic contests. This Article examines the mechanisms by which college athletes should be able to secure representation for their commercial interests. Within that area of study, this Article focuses on men’s college basketball players who declare for the annual National Basketball Association (“NBA”) Draft while preserving the option to return to school. The NCAA has proposed requirements for agents to represent these players. Such requirements are of questionable merit and raise concerns about the demographics of persons they might tend to exclude as agents. This Article contends that while the NCAA may have the legal capacity to exclude agents, it should weigh potential adverse consequences on competition and socioeconomic status. This argument has concrete implications on college basketball and more broadly on the economics of college sports.

The Oxford Handbook of American Sports Law explores the growing field of sports law in the United States. Through thirty articles by leading scholars, this book explains the essential components of sports law in the twenty-first century. Each article addresses a distinct sports law topic and informs the reader of critical interpretations, theories and practical applications. Legal topics covered in the book span the spectrum of those found in the sports world. They include traditional themes, such as labor and antitrust controversies in professional sports leagues, and contemporary ones, such as whether college athletes ought to be paid and how emerging technologies require rethinking of long-standing sports law conventions.

This Article examines the legal ramifications of Royce White, a basketball player with general anxiety disorder and obsessive compulsive disorder, playing in the NBA. White’s conditions cause him to have a fear of flying, thus making it difficult to play in the NBA. This subject is without precedent in sports law and, because of the unique aspects of an NBA playing career, lacks clear analogy to other employment circumstances. This dispute also illuminates broader legal and policy issues in the relationship between employment and mental illness. This Article argues that White would likely fail in a lawsuit against an NBA team and the NBA under the Americans with Disabilities Act. Case law disfavors recognition of his conditions as workplace disabilities, and even if a court recognizes them as such, there appears to be no reasonable accommodation that doesn’t necessitate him flying. This Article also contends that if White cannot adequately resolve his health issues, it would be advisable for him – and the NBA and Players’ Association – to find creative resolutions. Such an approach would be far preferable to litigation. One such approach could be loaning White’s employment to another pro basketball league where all or almost all games are played within driving distance. In that circumstance, he could develop his game against talented pro basketball players and, hopefully, gradually overcome his health issues. The Israel Super Basketball League (Ligat Winner Sal) is one such league. During time in another league, White’s NBA employment rights could remain with an NBA team. This Article also insists the NBA and Players’ Association take mental health policies more seriously, especially as increasing rates of Americans are diagnosed with mental illness. For years, the NBA and Players’ Association have focused on "physical" health policies while largely ignoring mental health.

A Twitter exchange led the author to an unexpected sit-down with the disgraced cyclist.

This Article examines the compatibility of the Bowl Championship Series (“BCS”) with federal antitrust law and the appropriateness of the federal government using its formal and informal powers to encourage a new format for postseason college football. The Article begins by examining the legality of the BCS under Sections 1 and 2 of the Sherman Antitrust Act. It then discusses the appropriateness of government actors concerning themselves with, and expending taxpayer dollars on, the scheduling of college football games. The Article concludes by offering possible changes to the scheduling structure of postseason college football, with an emphasis on voluntary, efficiency-promoting changes by the colleges, universities, and conferences currently associated with the BCS.

This Feature will explore American Needle, Inc. v. NFL and its potential impact on professional sports in the United States. In August 2008, the United States Court of Appeals for the Seventh Circuit held that the National Football League (NFL) and its teams operate as a “single entity” for purposes of apparel sales. Because a single entity cannot conspire with itself, it cannot violate Section 1 of the Sherman Act, which prohibits concerted action that unreasonably restrains trade. The U.S. Supreme Court recently granted a writ of certiorari and will review American Needle in its 2009-2010 Term.

This new approach would begin by rejecting the dominant, common-sense account of human behavior (sometimes called dispositionism) and replacing it with the more accurate account being revealed by the social sciences, such as social psychology, social cognition, cognitive neuroscience, and other mind sciences. At its core, situationism is occupied with identifying and bridging the gap between what actually moves us, on one hand, and what we imagine moves us, on the other. Recognizing that gap is critical for understanding what roles tort law (among other areas of law) serves. Beyond that, a situationist approach helps to make clear the subconscious tendencies and otherwise unappreciated external forces that have shaped tort law and tort reforms. A situationist perspective on tort law, this Article argues, also has significant implications for how tort law is taught. The Langdellian model of teaching, which has monopolized the law school classroom since the late 19th century, has been the brunt of increasing criticism over the past several decades. Most critics emphasize that the casebook method forces the round complexities of law, lawmaking, and human behavior into the square holes of antiquated legal categories and idiosyncratic appellate decisions. A number of leading law schools are now dramatically reshaping their curricula to address such concerns. Simultaneously, legal theory is in the midst of its own revolution as legal scholars are beginning to reject the hard-core dispositionism at the foundation of law and to incorporate, or at least acknowledge, emerging insights from the mind sciences. The curricular and theoretical renovations underway represent what we would call a turn toward the situationist. Those trends have created a hospitable climate for the emergence of a more robust situationist approach to law and law teaching. This Article describes not only those trends and their implications, but also some specifics regarding how situationist torts would be taught and what a situationist torts casebook would look like.

Each year, the National Basketball Association (NBA) conducts its annual entry draft (NBA Draft), which is the exclusive process by which premiere amateur players gain entrance into the NBA. To the dismay of many commentators, a number of drafted players will have just completed their senior year of high school. Routinely, these players are dismissed as immature, unprepared, and ill-advised, even though most will sign guaranteed, multi-million dollar contracts before their college educations would have begun. In stark contrast to popular myth, this Article finds that players drafted straight out of high school are not only likely to do well in the NBA, but are likely to become better players than any other age group entering the league. In fact, on average, these players perform better in every major statistical category than does the average NBA player or the average NBA player of any age cohort. Beyond excellence in performance, high school players can also earn substantially more over the course of their NBA careers, largely due to the brief, but steep career earnings-curve of professional basketball players, as well as collectively-bargained labor conditions concerning free agency. Strikingly, players who bypass college may earn as much as $100 million more over the course of their careers than had they earned a college diploma. These results may appear surprising and even unpopular, but they only represent predictable outcomes of the NBA’s economic system, which, perhaps unintentionally, provides unambiguous incentives for premiere high school players to seek entrance into the NBA as soon as possible. In turn, since those players are often the most talented, they tend to develop at a uniquely accelerated rate, and thus their earlier arrival and longer stay ultimately benefits the NBA. At the same time, those high school players better off attending college tend to do so because of contrasting incentives generated by this same economic system. In short, high school players have proven to be the best group of players entering the NBA because the NBA’s economic system dictates that very outcome.Despite the systematically-predictable success of high school players in the NBA, league executives and myriad social commentators desire to ban them. As a result, this Article explores whether federal labor law and antitrust law might preclude the NBA from imposing such a ban. Related discussion analyzes the two most likely forms of employment preclusion: a collectively bargained ban or a unilaterally imposed banFirst, should the NBA and the National Basketball Players’ Association (NBPA) agree to a provision banning high school players from the NBA Draft, a court may defer to their collective bargaining, even though high school players would not have had a seat at the negotiating table when such a rule was created. Although the NBA and the NBPA have flirted with such negotiations in the past, this scenario seems unlikely, in part due to the specter of litigation, and in part due to likely allegations of hypocrisy levied against the NBPA, which, historically, has unequivocally opposed such a rule. Moreover, pending the final outcome of former Ohio State football player Maurice Clarett’s lawsuit against the National Football League (NFL) and its age prohibition, the mere ability of the NBA and NBPA - and any professional sports league and players’ association - to construct such a rule would be cast in doubt.Even if the NFL defeats Clarett in court, and the NBPA were to accept a ban on high school players during the next collective bargaining negotiation, a group of sympathetic and, more importantly, influential NBPA members could seek to decertify the union. Decertification would require a majority vote of NBPA members. Provided a majority of NBPA members agree to decertify, the NBPA would lose its collective bargaining power, thus rendering the ban ineffectual. Should the NBA unilaterally impose the ban, however, the analysis turns to antitrust law. Despite recent judicial trends to apply the flexible rule of reason analysis to group boycotts, courts have remained generally consistent in applying the more stringent per se analysis to boycotts where the boycotting group serves as the only option for potential buyers or sellers. In the context of the NBA, high school players, like all potential draft picks, are the sellers since they are selling their talents to NBA teams, the buyers. Because there is no substitute equivalence to the NBA, boycotted players would not be able to secure comparable employment. In this scenario, therefore, high school players would have an excellent opportunity to characterize the ban as a group boycott.A less predictable scenario would occur if a court employs rule of reason analysis or quasi-rule of reason analysis. In those instances, a judicial balancing of procompetitive and anticompetitive effects would weigh a number of factors, including how a ban fails to provide procedural safeguards, how the NBA dominates global basketball, and how high school players comprise only 4 percent of all NBA players. Because antitrust law has generally been confined to instances where large segments of buyers or sellers have been boycotted, the dearth of high school players may prove significant. On the other hand, a blanket prohibition on high school players would fail to provide procedural safeguards, thus potentially animating a court to find it in violation of antitrust law.