The Work

November 17, 2008 9:30 AM

The Kevin Youkilis Chronicles--A Sweaty, High On-Base Percentage Look at Sports and the Law

Posted by Zach Lowe

The biggest law-related news in sports last week came out of the NFL, when a federal jury in California ordered the league's players union to cough up $28 million to retired players for its failure to share marketing revenue with the old-timers. The union's attorney, Jeffrey Kessler of Dewey & LeBoeuf, told us he's confident the verdict will be overturned.

We thought of Kessler again when The Am Law Daily's Brian Baxter (our resident Yankee fan, and thus, servant of evil) noticed that the Crowell & Moring attorneys representing ex-Atlanta Falcons quarterback Michael Vick had claimed in bankruptcy court papers that Vick plans a return to the NFL when he's finished serving his 23-month prison sentence for organizing a dogfighting ring.

One problem: NFL Commissioner Roger Goodell has suspended Vick indefinitely. That's the same punishment Goodell meted out to Adam "Pacman" Jones of the Dallas Cowboys for Jones's role in an "alcohol-related scuffle" with his bodyguard last month.

Both penalties are the result of changes Goodell made to the NFL's personal conduct policy last year to boost his power in sanctioning players when their off-field behavior, in his view, reflects poorly on the league--regardless of whether they face criminal charges.

The policy was not negotiated through collective bargaining. Instead, Goodell reportedly ran it by a panel of six players, who approved it. A suspended player who objects to his punishment does have the ability to appeal--to Goodell. Good luck with that.

We asked Kessler whether or not he'd fight for a new policy during the next round of talks.

"It's becoming excessive, and it's a very ad hoc system," Kessler told us. "And the whole issue of having a neutral arbiter is going to be very important."

Marc Edelman--a visiting professor at Rutgers who also operates a website,, that mediates fantasy-sports disputes--says he's waiting for someone to challenge Goodell's conduct policy in federal court as a violation of antitrust laws.

Edelman is completing an article for the Catholic University Law Review in which he argues that at least three federal circuits (the sixth, eighth, and the D.C. circuit) would likely view the policy as a violation of antitrust law, since it amounts to all 32 teams getting together and allowing Goodell to blacklist certain players without opening up the policy to collective bargaining.

"That kind of behavior has been found to be illegal in some cases," Edelman says.

Other circuits, including the second, historically have allowed broader exemptions to antitrust law, Edelman says.

Either way, the conduct policy has freaked out NFL teams, according to this fascinating Wall Street Journal story about teams spying on their own players. Some clubs even are hiring enforcers to check out local bars and yank players away from potentially compromising situations. We wonder: how would Broadway Joe Namath have dealt with a team babysitter?

Also on the sports law docket in recent weeks:

If the Suit Fits
Remember the legal spat between Speedo and TYR? For those who don't: TYR, the industry's number two company, sued USA Swimming and Speedo for conspiring to squelch competition by promoting Speedo's $500, NASA-engineered full-body suit over TYR's similar product. (The suit centered around USA Swimming head coach Mark Schubert's public and private comments that Speedo's suit made swimmers 2 percent faster than rival swimwear.)

The lawsuit didn't prevent the Olympics from going off as scheduled, but the fight it isn't over. Last Tuesday, TYR's legal team at Hewitt & O'Neil filed a huge batch of papers, including the deposition of Genadijus Sokolovas, USA Swimming's former director of physiology, in which Sokolovas said that Schubert's comments were "pure speculation" without any science to back them up.

Lawrence Hilton, the Hewitt partner handling the case for TYR, says he doesn't know the exact amount of damages he'll request should his side win at trial, now scheduled for early 2010. That's because Speedo's marketing campaign peaked during the Olympics, when Speedo-wearing swimmers such as Michael Phelps set dozens of records and swimmers with sponsorship deals with TYR and Nike begged those companies to let them wear the Speedo suit for performance reasons.

"Their marketing campaign worked," Hewitt says. (Side note: Just last week, U.S. swimmer Peter Marshall broke two short-distance backstroke world records at swimming's World Cup wearing a TYR suit. Somehow, this news did not make Sportscenter.)

Titleist in the Rough
The Am Law Daily guesses that, even at this time of year, some of our law firm readers enjoy a round of golf. And some may well use Titleist's Pro V1 golf balls, which have apparently gained quite a following at the country club. (We wouldn't know. Our golf skills are such that we only use old balls we don't mind donating to the water hazard.)

In any case, you might want to stock up on those Pro V1s, because Callaway (maker of the Big Bertha driver!) has convinced a federal judge in Delaware to grant an injunction that blocks the sale of all Pro V1s. Callaway claims Titleist ripped off the design for the balls; Titleist says it changed the design to move it outside Callaway's patents. Titleist and its parent company, Acushnet, plan to appeal the injunction.

City of Angels
We end today with baseball, still the greatest American sport in The Am Law Daily's eyes. Our friends at sibling publication the Recorder bring us the ridiculous litigation theater that is the fight between the city of Anaheim and its baseball team, the Los Angeles Angels of Anaheim (we didn't think it possible, but the name is even more embarrassing than the one originally given to the city's hockey team--the Anaheim Mighty Ducks--as a marketing tie-in connected to the Walt Disney Co. movie starring Emilio Estevez).

First, a brief history of the team's name, which is the subject of the dispute: From 1961 (its first season) through 1964, the franchise was known as the Los Angeles Angels. From 1965 through 1996 (after moving to Anaheim), they were the California Angels. From 1997 through 2005 (and including the 2002 championship season), they were the Anaheim Angels. And in 2006, under new ownership, they assumed their current unwieldy moniker. Got it?

In its suit, the city of Anaheim claims the team, in a blatant marketing ploy, breached an agreement by tacking Los Angeles onto the front of its name. The team says it's in the clear because "Anaheim" is still part of the name (slapped on at the end though it may be). The team won at trial court in 2006, but a state appeals court appears divided.

Hilarious trial gaffe: the team's attorney, Harry Chamberlain of Buchalter Nemer, referred to his client as the Los Angeles Angels at one point (maybe he was having an early '60s flashback?), leaving out the ever-important "Anaheim" qualifier.

Judge David Sills interrupted Chamberlain with this gem, according to The Recorder's Legal Pad blog: "I thought the name was changed to the Los Angeles Angels of Anaheim...Why don't you call it that?"

"I've been looking at newspapers all over the United States for the last six months," Sills added, "and I've yet to see the name Anaheim."

Solid legal reasoning.

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