The Sports Esquires’ 2015 Sports Law Preview

2014 was a historic year in the world of sports law. From the looks of it, 2015 is shaping up to be just as intriguing.  Here are the top sports law stories to follow in the upcoming year:

Concussions and Player Safety

In 2014, the NFL reached a $765 million settlement in a class action lawsuit filed by former players against the NFL. The settlement received preliminary approval from the court, but is still awaiting a final ruling on the fairness of the settlement.

2015 is the year in which the proverbial crap could really hit the fan for the NFL on the concussion issue. While the importance of the class action suit and its implications for former, current, and future players cannot be overstated, what it is even more interesting is the decision of several former players and/or their families to opt out of the class action lawsuit and pursue their own suits against the NFL. Most notable among these individual suits is the one filed by the family of former Chargers and Patriots linebacker Junior Seau, who committed suicide in 2012 after suffering the effects of chronic traumatic encephalopathy (CTE). Seau’s family stood to receive $4 million through the class action lawsuit, but decided to opt out and pursue their own litigation in California state court. Their lawsuit alleges that the NFL concealed the dangers of football-related head injuries for several years.

They say their decision is motivated by the fact that the terms of the class action lawsuit do not require the NFL to admit liability. They believe the settlement is the NFL’s attempt to put the concussion issue to rest without having to release potentially damning information about its knowledge and practices related to players’ head injuries. Steve Strauss, a partner with the firm Cooley LLP who represents the Seau family in this lawsuit, points out that the NFL has not yet been required to produce any documents or provide any oral testimony related to this lawsuit.

What will the NFL be required to disclose regarding its knowledge of its players’ football-related head injuries? What about its policy for assessing head injuries during the time that Seau played in the League? Will Seau’s family and other plaintiffs in lawsuits against the NFL be able to establish the connection between their head injuries and their playing days in the NFL? We should find out the answer to all this and more in 2015.

Ownership Disputes

2015 is likely the year we see issues develop between ownership and leagues, especially across Major League Baseball. With Rob Manfred assuming the role of commissioner, it will be interesting to see how individual owners respond to his leadership or if they try and take advantage of the new guy on the block.

The TV rights saga between Orioles owner Peter Angelos and the Lerner Family owned Nationals will be the primary metric by which Manfred will be judged early on. When Angelos agreed to allow the Expos to relocate to Washington he was granted a portion of the Nationals TV rights as compensation for giving territorial trights to the DC market. At issue is how much of the TV revenue MASN - the network owned by Angelos and hence the O’s - retain versus how much goes to the Nationals.

It’s unlikely that Manfred will be able to bridge the gap and find common ground when Bud Selig couldn’t, as Manfred has likely been involved in the process to date. The outcome of this disagreement will certainly impact the willingness of the Giants to cede territorial rights to the Athletics - who have shown interest in moving to the San Jose area controlled by the Giants.

Likewise, in the NFL, if and when the St. Louis Rams decide to officially relocate to Los Angeles, will 3/4 of the NFL owners approve the move?  The Spanos family - which owns the San Diego Chargers - will likely vigorously attempt to block such a move by the Rams. If the NFL owners vote against relocating the Rams back to LA it’s conceivable that Rams owner Stan Kroenke moves them anyway, creating a situation eerily similar to Al Davis and the Raiders suing the NFL in the early ’80s. Similarly, will the NFL owners try and force Dan Snyder to change the name of his beloved Washington Redskins? It will be interesting to watch these situations play out.

Under Siege: NCAA, MLS, UFC, FIFA

One of the most interesting (and ongoing) sports law developments for 2015 is the legal circus that currently surrounds the NCAA. The organization is still beset on all sides regarding compensation for student-athletes in many forms including: 1) the O’Bannon fallout with student-athletes receiving money for their names, images, and likenesses; 2) the Kessler antirust lawsuit concerning the fixed value of an athletic scholarship, and 3) the Sackos lawsuit claiming that student-athletes are temporary employees under the Fair Labor Standards Act and must be paid at least minimum wage. These issues don’t even involve the new developments within the NCAA with the Power Five Conferences’ autonomy in creating their own rules. Count on the fact that these will not go away, and the legal realm around the NCAA will be incredibly active in 2015.

Other developments to keep an eye on include the MLS CBA, the UFC antitrust case, and (not necessarily legal) the air surrounding FIFA amid World Cup bids and the Garcia Report. For a league attempting to compete with more prestigious leagues around the world, this MLS CBA would play a significant part of any league reforms, especially regarding player compensation and movement. The UFC case will provide an antitrust lawsuit with no collective bargaining protection for the “league,” making UFC’s position that much more tenuous. With the case in its early stages, seeing the arguments set forth and played out will be intriguing. Finally, the public perception of FIFA could not be much lower after corruption accusations mount with the investigation into the 2018 and 2022 World Cup bids. It will be worth watching to see any fallout, and how/if FIFA will publish the Garcia Report (concerns about publishing include what will be legally possible to publish due to confidentiality), after the investigator claimed that his report had been misrepresented.

Legalizing Sports Gambling

The continued movement towards the nationwide legalization of sports gambling is a fascinating thing to watch in 2015 and beyond. The Professional and Amateur Sports Protection Act of 1992 (PASPA) banned betting on sports in all but four states, Nevada, Delaware, Oregon, and Montana. New Jersey has led the charge to overturn PASPA for years, but it’s latest attempt to make sportsbooks legal was thwarted when, in November, a federal district court judge sided with five sports organizations — the NFL, NBA, MLB, NHL, and NCAA — who sued to stop the plan, granting a permanent injunction preventing New Jersey casinos and racetracks from offering sports betting.

Still, while the leagues’ party line has long been that unregulated sports betting threatens the integrity and therefore the essence of their games, NBA commissioner Adam Silver reignited hope that legalization remained on the horizon when he stated that, despite the leagues’ opposition, legalized sports betting is “inevitable.” In a November New York Times op-ed column, Silver proclaimed that, “sports betting should be brought out of the underground and into the sunlight where it can be appropriately monitored and regulated.” “Times have changed since PASPA was enacted,” Silver wrote. “Gambling has increasingly become a popular and accepted form of entertainment in the United States…There is an obvious appetite among sports fans for a safe and legal way to wager on professional sporting events.” Silver’s comments may not have any impact on the eventual outcome of the Third-Circuit appeal of the district court’s ruling against New Jersey’s most recent law, but his emphasis on the need for a “comprehensive federal solution” has already gained traction in the “court” of public opinion and proffers hope of future legislative reform.

Stadium Financing

While the NFL and NBA have agreed to new broadcasting contracts recently worth more than $35 billion combined, local governments around the country face complex budget balancing acts to find ways to meet their obligations without exceeding revenue.  It’s no secret that U.S. cities and states pour money into stadium development projects and offer millions in incentives for local sports teams in an effort to attract or retain professional sports in the community and reap the perceived benefits. But at a time when local governments are strapped for cash while professional sports leagues collect higher profits than ever, do these subsidies make financial sense? With the NFL’s recent domestic violence issues what level of tolerance should the public have for financially supporting sports leagues? Is this the year public opinion turns against stadium financing?

Domestic Violence

The NFL and Roger Goodell took a massive public relations hit this year with the handling of the Ray Rice situation.  The NFL’s seemingly temporary response was to place all players accused of domestic violence on the previously unknown Commissioner’s Exemption List.  Adrian Peterson lost an entire season to the List after unsuccessfully appealing his indefinite placement on the list. Will players fight placement on the Commissioner’s Exemption List in the future? The NFLPA is already fighting the league over its new domestic violence policy, claiming that it is a subject of mandatory collective bargaining.  How will the other major leagues handle domestic violence? Will they learn any lessons from the NFL’s mistakes?

Aaron Hernandez

After a hard fought playoff win against the Ravens this past weekend and a home game awaiting them in this weekend’s conference championship, the Patriots seem destined for their first Super Bowl appearance since 2012. Interestingly, the Patriots run to this year’s Super Bowl intersects with the beginning of jury selection in the murder trial of former Patriots TE, Aaron Hernandez. In the wake of three murder charges and a felony weapons charge, Hernandez, still only 25, has long been assumed to have played his last snap in the NFL by sports media prognosticators. But, don’t be so sure.

With jury selection already underway and opening arguments just around the corner, Hernandez has reason to be hopeful that the murder charge won’t stick. As CNN reported earlier this week the prosecution’s evidence against Hernandez, which has largely been detailed in pretrial hearings, is lacking in many critical areas and “largely circumstantial.” Hernandez’ defense team has been able to exclude several key pieces of evidence, which the prosecution had originally counted on to make their case. Specifically, the following evidence has been excluded:

(1) Text messages from the victim, Lloyd, to his younger sister, sent mere minutes before his murder that supposedly confirm that Lloyd was with Hernandez.

(2) A civil suit by a former friend of Hernandez who has accused Hernandez of shooting him in the eye.

(3) Hernandez’s indictment and pending trial for an alleged double homicide in Boston.

Worst yet for the prosecution, the murder weapon-a .45 caliber handgun-has never been found and seems unlikely to surface. Furthermore, the prosecution’s failure to strike a deal with Hernandez’s two alleged accomplices, Ernest Wallace and Carlos Ortiz, means that the prosecution will be unable to present an eyewitness to the murder. Reading between the lines, the fact that both Wallace and Ortiz chose to roll the dice with a murder charge rather than taking a plea deal might be an even further indication of how shaky the prosecution’s case actually is.

It’s worth noting that even if Hernandez is ultimately convicted for the weapons charges (which is highly likely), it is anticipated that he will avoid further jail time because of his over 2 years already served in prison. It’s also worth noting that of the three murder charges that Hernandez has been indicted for, this was supposed to be the slam dunk. Now, it’s looking more like a contested three-pointer.

So what does this all mean? No murder weapon, no witnesses, and only circumstantial evidence means that Hernandez stands a very realistic (albeit not overly probable) chance of being exonerated in the murder of Lloyd. And while Hernandez still faces two other murder charges, the evidence for those is said to be lacking as well. Factor in that Hernandez, a healthy 25 years of age, could conceivably be a free man within the next 2 years, and factor in the scarcity of depth at the TE position in the NFL. The end result could be Aaron Hernandez returning to the NFL to resume his playing career.