June 11, 2019
As I mentioned in part 1 of this review, the three-day Sports Lawyers Annual Conference was a mine of information and summarizing it adequately would be an impossible task. One would have had to be able to be at different places at once in order to attend every session and hear every word but, my hope is that my list of takeaways captures enough of its essence to be of interest to people who were in attendance and people who were not. In this second and last part, I focus on student-athletes in the NCAA, sports betting & gambling, and sexual abuse.
➤ Student-athletes in the NCAA
When it comes to the NCAA these days, most questions on people’s minds have to do with whether or not student-athletes should get compensated and it is no surprise that the topic was visited on several occasions during the conference. As for an answer to the actual question, it really depends on who you ask, even among sports lawyers.
For some, it is a no-brainer. Not only should they be compensated but it is also long overdue. For others, compensation certainly sounds like a viable option but we should be very careful about the application of these potential changes: Should money be involved? What status would that give student-athletes in the eyes of the law? Will they be considered employees of the universities they play for and as such would they be able to unionize (form a union, receive workers’ compensation and other rights and benefits afforded to employees in other industries? Should every student-athlete be compensated or only those who play sports that generate money for their institutions? What about other students, on scholarship or otherwise? Where would the money or other forms of compensation come from, especially at institutions that are operating at a loss? What if certain states made the move to consider student-athletes eligible for compensation and others did not? How would it affect the level of competition, recruitment, etc.? Others, at least in their public remarks, reserved their opinions and judgment until the newly-assembled NCAA Board of Governors Federal and State Legislation Working Group draws its conclusions and makes recommendations. The group, according to the NCAA, will “examine issues highlighted in recent proposed federal and state legislation related to student-athlete name, image, and likeness.” Although the NCAA has made it clear that “the group will not consider any concepts that could be construed as payment for participation in college sports” and that “the NCAA’s mission to provide opportunity for students to compete against other student prohibits any contemplation of pay-for-play”, we all have felt the tide starting to turn in recent years and the myth of amateurism being challenged more than ever before.
It started with momentous rulings like the one in the well-known antitrust class action lawsuit O’Bannon v. NCAA brought forth in July 2009 and there is no telling how, when and where it is going to end but change is no longer on the horizon. It is here.
➤ Sports betting and gambling
The New Jersey’s Supreme Court victory of 2018 has opened the door to a new era of legalized sports betting in the U.S. and as individual states and even Congress continue to debate various legislations on the subject, the landscape has already started to change, which is impacting every actor in the sports business. Integrity is a word that always comes up in the discussion around gambling and betting, mainly preserving the integrity of each sport and each league, as they embark on this journey where the threats to the aforementioned integrity are even greater.
Betting and gambling are nothing new in the world of sports, whether legal in Las Nevada for the past few decades or illegal everywhere else until recently, they have been part of the game, forcing institutions and leagues to create safeguards and strict rules of engagement to prevent abuse. These precautions were not enough, however, as we have seen in the scandal involving former NBA referee Tim Donaghy back in 2007, which in addition to confirming to the world the risks that existed, also revealed that despite the labor agreement in place at the time, restricting NBA referees from participating in gambling of any kind, almost all of them had admitted to engaging in some form of gambling. Still, the integrity of the NBA, although briefly compromised by the action of one man seemed overall intact and in the absence of similar scandals in the years since, in the four major sports leagues, the move to legalize sports betting appeared logical, safe enough and somewhat inevitable.
For pro leagues, there is a lot of money to be made with this new revenue stream and it is up to them to find ways to capitalize on this new reality and make their piece of the pie as big as can be, while maintaining the integrity of the game and the family-friendly environment they have taken pride in creating. With no consistency at the federal level, however, some teams will have the upper hand over others, at least temporarily, when it comes to benefiting from the move, which will certainly create issues. Will there ever be a federal consensus? And if so, how long will it take for things to get to this point? And what about players? How big their piece of the pie is going to be? That is a question that is sure to add some friction to the already-tense discussions that occur during CBA negotiations.
As one panelist remarked, the concerns raised about betting and gambling threatening the integrity of the game are way too often solely in regards to players. The reality is that everybody is at risk, from the commissioner down to much lower level employees of the teams or leagues. Acting as though the players have to be watched more closely is particularly condescending but on par with the way they are treated, perceived and talked about in general. Legalized sports betting is both a great economic opportunity and a threat to the integrity of the game.
With gambling comes a new way of tracking data and analyzing it. Think wearables, for example. More data available is a dream for sports nerds, coaches, agents, scouts, reporters, analysts, gamblers and players who want to keep track of their performances and health, but they can also become a nightmare in terms of collection, ownership, and access. Leagues and Players associations will have to sort these issues out and keep pace with the constant stream of new technologies, which promise better, more accurate, more reliable, more exhaustive data with sometimes not enough regard for cybersecurity standards. As we move on in this world where privacy and boundaries are often trampled in the name of information and money, it is more important than ever to ensure players gain and/or maintain control over their personal informational and collectible data, and how much of it can be shared, how it is shared and who has access to it.
Something else to keep an eye on, as sports betting continues to expand and fans’ engagement grows, is the potential increase in inappropriate and abusive language and behavior from certain fans toward players, especially in the NBA, as we have seen due to the close proximity of the seats to the court and benches. These kinds of behaviors, online and in person, might be exacerbated in people who have more skin in the game and a bigger vested interest in a particular team or a particular player’s performance. Teams will have to invest even more in security efforts in their arena and adopt even stricter policies to ensure players safety.
What was absent from the conversation, at least in my opinion, is any reference to the bigger toll gambling will likely take on the people in society who are very vulnerable to it, which includes people who suffer from addiction. Historically, we have seen how families and sometimes entire communities can be wrecked by gambling addiction and other forms of addiction that often come with it or as a substitute when their drug of choice is not available (e.g., drug, alcohol, sex. etc.). Some of the byproducts of these addictions, like anger, violence, and paranoia, are also responsible for fracturing families and destroying individuals. Legal gambling is not going to make illegal gambling go away, on the contrary, and the expansion of both will mean more opportunities for people to take more risks, win more but also lose more, go to not-so-reputable sources to fix their problems, which more often than not leads to a descent into the abyss only very few ever come back from unscathed. For people with intense or addictive personalities and for addicts, be they fans, stadium employees, coaches, players or team executives, it is important to remember that nobody is immune and we should keep that in mind, work on ending the stigma, make the necessary resources available and treat the issue with as much care and attention than the money generated by gambling. As a passionate mental health advocate, this is something, I hope, as a society, we really take into consideration and approach from a place of compassion rather than a place of judgment as is the case much too often.
➤ Sexual abuse
As a survivor myself, being in the presence of two survivors of former Michigan state and USA Gymnastics team physician Dr Larry Nassar, now a convicted felon serving which amounts to a life sentence, was a moment I will never forget. Rachael Denhollander and Sarah Klein, both former gymnasts, became lawyers who fight for survivors like me and themselves. It took an immense amount of courage to sit on that stage and recount their harrowing stories and the horrors they have suffered at the hands of that man they and so many other girls and women trusted and loved for a long time. They spoke up openly, told the world what he had done to them, they told him, at his sentencing, how his actions had affected them, they told the sports world, at the ESPYs, that they were not statistics but real beings who went through the worst and came out on the other side stronger than ever, they told us in that large ballroom in Phoenix that their fight was for themselves, for those who haven’t found their voices yet and for anybody who has ever been victimized.
The panel itself was cut short due to a medical emergency but the message was loud and clear. We should have never allowed Larry Nassar and his abuses to go unchecked as long as they did and we no longer have any excuses to sit idle as the ever-present problem of sexual assault and sexual abuse plague collegiate institutions, sports federations and our society as a whole. It did not start with #Metoo, it affects every area of life and every industry you can ever think of, and it is up to all of us, involved in sports, sports business and sports law, to clean up the messes of the past, work on the horrors of today and ensure, by learning from mistakes and deliberate misdeeds, and by being proactive, that history doesn’t repeat itself tomorrow in the world our children will grow up, study, play sports, work and raise their families in.
Sports law is a young, exciting, fascinating, challenging, fast-evolving, fast-growing field that marries so many other areas of the law and whose future looks brighter than the Arizona sun. Sports lawyers are and can be so much more than the courtroom litigators or backroom negotiators who first come to the mind of most people when they think about the profession. The career paths and opportunities are as varied as the people who comprise this select club. From the aforementioned trial litigators working for legal firms, to in-house counsel for sports leagues or individual teams, to athletic directors of universities and colleges, to professors teaching the next generation of sports lawyers, to Court of Arbitration for Sports arbitrators, to sports legal analysts in the media, to general counsel to collegiate institutions, to labor and workers’ compensation advocates, to executive directors for players associations to league commissioners, sports lawyers are virtually everywhere and do everything. And with the evolution of each sport and the world of sport in general, as well as the global nature of pro sports, more roles will emerge and more problems will have to be solved.
The conference was a wonderful opportunity to network and learn but it was also an incredible experience on a personal level that I am looking forward to repeating in the future. Miami 2020.