By Jarett L. Warner
The sparks were negligible. The sarcasm was on hiatus. This was not your typical last day of the Sports Lawyers Association meeting. On this day, the lead counsel for the professional sports leagues and their counterparts on the players’ side made nice as they trumpeted the success of the league and the modest amount of ongoing litigation confronting them.
The morning began with Jeffrey Pash, Executive Vice-President and League Counsel for the NFL, noting that the past year had been a year of growth and transition for the NFL under Commissioner Goodell. He pointed specifically to the personal conduct policy, which makes changes to the prior policy. One very specific difference is that, after a certain point, the NFL will not wait for a court resolution to take action internally. He added that with the new policy, the individual organizations are accountable for the conduct of its personnel.
Pash said that the NFL’s new Collective Bargaining Agreement (CBA) with the Players Association would guarantee labor peace through at least 2010. The new CBA was a “complicated” deal due to the fact that the players are getting an increased share of the revenue, while teams are facing increasing costs related to new stadiums because communities do not want to contribute to the costs. He discussed a lawsuit brought by a Hamilton County, Ohio official against the NFL and Cincinnati Bengals, alleging that they abused their monopoly power by forcing the county to build a stadium for the Bengals. The case was dismissed based on the expiration of the Statute of Limitations and is currently on appeal to the Sixth Circuit.
Thomas Ostertag, Senior Vice-President and General Counsel for MLB, discussed that much of the legal work in MLB for the last few months has been dominated by negotiations and launch of the television Extra Innings Package. Plans are to launch the MLB Network in 2009. Ostertag discussed MLB’s case with CDM, a company which continued to conduct fantasy baseball games without a license. The Court issued a decision holding that CDM did not need a license, however, the decision is currently under appeal to the Eighth Circuit. Ostertag also discussed new legislature which enables international players on minor league rosters to obtain the same type visas as major league players, for which there is no cap as to the number of visas permitted. MLB and the MLB Players Association reached a new CBA last fall and will continue to have labor peace through 2011.
Daniel Rube, Senior Vice-President and Deputy Counsel for the NBA, said that the NBA is in its second year of a six year CBA that runs through the 2010-2011 season or the 2011-2012 season should the league pick up the option for the seventh year. The CBA guarantees that players would receive 57 percent of the league’s revenue for the 2005-2006 season and also has a provision enabling teams to retain their best young players. There was no major litigation or arbitration during the past year. Rube said that one of the NBA’s highest concerns is putting together player policies to improve the public’s perception of the players, which is currently being achieved through other ways, such as setting new dress codes for the players.
Jessica Berman, Associate General Counsel of the NHL, said that the NHL is in its second year of a 6-year CBA that is working well. From an international front, the NHL entered into an agreement with the International Ice Federation, however, the Russians had opted out of the federation. Berman discussed litigation where Russian hockey teams had been seeking an injunction preventing its players from signing with NHL teams. However, the court denied the request because Russian law says the players can get out of their contracts with their Russian teams with two weeks notice. This led to the Russians teams’ discontinuance of the case. Finally, Berman commented that the NHL now has a league-wide web based medical system, giving the teams the ability to easily transfer a player’s records if he changes teams.
Labor’s Perspective
Donald Fehr, Executive Director and General Counsel for the Major League Baseball Players Association spoke about how the new CBA maintained player retirement benefits at the legal maximum, increased the minimum player salary to $380,000, restores a team’s right to re-sign its former players at anytime, increased the threshold for the competitive balance tax and states that there will be no contraction during the terms of the CBA. The MLBPA is making efforts concerning the expansion of baseball internationally, including the backing of the new president of the International Baseball Federation and working on an agreement to play games internationally, including China.
Billy Hunter, the Executive Director of the National Basketball Association Players Association, said that the players will collectively earn $2.1 billion this year and that they are guaranteed 57 percent of the league’s revenue. They are in the second year of a 6-year CBA. The big issue during the next round of bargaining in 2011 or 2012 will be revenue sharing. Eight owners have signed a letter expressing their dislike of the current revenue plan as too pro-player. The NBAPA was not involved in any litigation during the past year but threatened litigation concerning the new synthetic basketball being used. However, the league decided to return to use of the old ball, rendering that threat moot. Much of Hunter’s discussion related to the NBAPA’s charity and food programs to improve the negative image of the players. This included entering into a partnership to feed needy children around the country and initiating a program in Kenya called “Feeding 1 Million.”
Eugene Upshaw, the Executive Director of the National Football League Players Association, discussed that the CBA, entered into two years ago, gives the players 60 percent of the revenue. It will expire in 2012, unless either side gives notice to discontinue it one or two years before. The owners are not happy with the players getting 60 percent of the revenue under the current CBA but the NFLPA will not budge. The NFLPA is working on medical issues such as the return of players after a concussion (should be a medical issue) and early signs of heart problems. The NFLPA has allowed an increased number of players to be tested for drugs and performance enhancing drugs, but there is still no reliable testing for HGH.
