By Lewis Rice, Harvard Law Today
Executives representing the three most popular major sports leagues in the United States offered insights into the business and legal maneuvering behind the games, including on arbitration and litigation, international expansion, and sports betting, during the HLS 200 Bicentennial Summit panel “A View from the Top.”
Moderated by Peter Carfagna ’79, HLS lecturer on law, the panel featured Daniel Halem ’91, chief legal officer of Major League Baseball; Jeffrey Pash ’80, executive vice president of the National Football League; and Michael Zarren ’04, the Boston Celtics basketball team’s assistant general manager and team counsel.
Working on behalf of the leagues and the teams within them, Halem and Pash discussed the balance between serving their clients—team owners—and negotiating with the players and their unions. Halem noted the “tricky set of relationships” that have to be navigated; in fact, he said, it’s often more straightforward and easier to deal with players than to manage internal disputes, particularly resolving conflicts between teams.
“When you’re lucky enough and successful enough to own a sports team,” he joked, “usually you think you’re right most of the time.”
Among the leagues, the NFL is the only one that has recently litigated cases in the courts, such as appeals of suspensions of Tom Brady and Ezekiel Elliot. Despite those high-profile disputes, Pash noted that most cases are decided by arbitration, with the exception of those that fall under the personal conduct policy, which under collective bargaining gives the commissioner authority to determine punishment. He also pointed to “unity” between the players and the owners, for example during the recent controversy over players kneeling in protest during the National Anthem.
“It has brought our owners and players closer together because I think players are stunned by the level of support they’re getting from the owners, and owners in turn are recognizing that their players are saying something very important, very meaningful, and the right thing to do is stand behind them,” he said.
Zarren addressed some issues unique to the NBA, such as it being the only major U.S. league as of this year that allows advertising on its uniforms, a practice that he predicted may be followed by other leagues. He also discussed the league rule requiring that players must be at least 19 and a year out of high school to be eligible for the draft. While “everyone agrees that the current set-up is the not ideal for the athletes,” he said, the rule represented a compromise between the players’ union and the league that may be revisited in the next round of bargaining. He praised a recent change that will provide less incentive for teams to lose in order to gain a better position in a draft lottery. Halem detailed a different negotiation regarding the MLB draft system, with the players’ union blocking an effort by the league to institute a draft of international players.
International markets have taken on a growing importance for all of the leagues.. Pash spoke of the possibility for the NFL to expand to London, which has hosted games in recent years. Although fans in England have shown their support by quickly selling out the games, he noted that player representatives expressed reservations about locating a team there, concerned that players would not want to be based abroad. Halem added that MLB commissioner Rob Manfred ’83 has emphasized international expansion, and the last round of collective bargaining included substantial discussion around international play, with plans to move more regular season games to sites outside the U.S. and Canada. “Even bargaining over scheduling one game internationally can be difficult,” he said, particularly given a 162-game schedule. “But it’s important. There’s not that many places around the world that play baseball, just like football, so you need to expand your fan base.” Basketball is more commonly played around the globe, and the league has facilitated more participation by, for example, building thousands of basketball courts in India, according to Zarren, although there are no plans to expand to franchises outside of North America.
Professional sports leagues have traditionally resisted legalized sports betting. Halem cited a recent effort by New Jersey to allow sports betting in-state that is being fought by MLB and others. However, Zarren noted that sports gambling takes place in many jurisdictions around the world and is difficult to curb based on how easy it is to place bets and the widespread interest in doing so. Describing the position of NBA commissioner Adam Silver, he said, “This is going on; it clearly relates to all of our games. Why aren’t we sharing in that and why aren’t we protecting our fans from some of the unsavory characters who might be profiting from this because it’s illegal?”
In response to an audience question, Pash spoke about a concussion injury lawsuit brought by former players that was settled by the league. Because the risk of concussions is now well known, including warnings posted in NFL locker rooms, he said, “Going forward, I think it would be very, very difficult for someone to make the kinds of claims … that we faced in the litigation that was settled.” The league has also put into place protocols to monitor concussions and remove players who show signs of impairment. Pash added that the biggest risk, although it has not happened yet, is that people will stop playing the game.
The full article can be viewed at https://today.law.harvard.edu/in-a-league-of-their-own/
