ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Monday, January 27, 2014

Sports Contracts with Middle Schoolers

NCAA_Women's_LacrosseToday's New York Times has a long story about college coaches in non-money sports, like soccer and lacrosse, recruiting middle schoolers.  Like most intersections between amatuer athletics and money, this phenomenon is bad for everyone.  According to the Times, the new trend is an unintended consequence of Title IX.  There is lots of scholarship money chasing relatively few talented athletes, especially female athletes, in the non-money sports.  As a result, players of promise get snatched up very early, so now schools offer scholarship money to eighth graders in the hope that they will commit to play for them when they go to college.  

The result is bad for everyone for obvious reasons.  Coaches cannot really predict which 13-14 year olds will be All-American athletes.  Even if athletic potential is there, injuries, loss of interest or other factors (e.g., life outside of sports) can intervene.  The dynamic hurts young athletes because it forces them to focus on one sport very early, playing that sport year round and increasing the likelihood of injury.  Then, many athletes recruited in middle school are not top players in college, so they spend their college years as frustrated bench warmers, has-beens at the age of 18.  The coaches hate it as well.  They've got better things to do with their time than endless telephone converstions with middle schoolers, and they hate the dynamic of having to commit to student athletes before they are confident of the students' potential.

But it's actually hard to have that much sympathy for the coaches, since this is a world they have created by exploiting loopholes in NCAA rules.  They could voluntarily self-regulate or simply work at getting a reputation for being a school that only accepts students who arrive at a particular sports program as a result of more mature deliberation.  Perhaps it won't work and then a school might have to suffer the ignominy of not having, for example, a top ten women's soccer team.  The horrors.  University administrators should focus more an graduation rates, employment rates and student well-being and less on rankings.  

But the reason I am posting about this is of course the relevant contacts issues.  The Times is silent on how the minors bind themselves to particular universities.  Since these middle schoolers cannot bind themselves contractually, there must be parents involved.  Still, I wonder what the remedy is if a student athlete decides not to attend the university to which she has pre-committed.  Of course, the student will sacrifice her scholarship, but if a recruited soccer player decides that she wants to play at a different school, will it really be  impossible for her to find a school that will offer her a scholarship when she is a senior?  Given that the coaches know that they will make mistakes in recruiting 14-year-olds, they ought to hold a few scholarships in reserve so that they can make offers to late bloomers.  

But students may be unwilling to renege on their commitments.  As the closing line of the Times article suggests, students may be happy to simply be done with the process, even though they know that they are pretty poor predictors of what they will want for themselves in four years' time.  The disservice we do to student athletes is obvious.  But the process also disserves colleges and universities.  There are lots of reasons to go to college, but the chief reason for almost all students ought to be educational.  By forcing to middle schoolers to pick a school based on a sport which will almost certainly never be anything more than a hobby for them, we present a distorted picture of the purposes of higher education -- or perhaps we simply contribute to a realistic picture of higher education which is in fact a disfigurement of education.

January 27, 2014 in In the News, Sports | Permalink | Comments (0) | TrackBack (0)

Monday, December 23, 2013

Motion to Compel Arbitration Granted in Part, Denied in Part in Antitrust Case v. Cable Providers and Sports Organizations

HockeyOn November 25, 2013, Judge Scheindlin of the Southern District of New York issued an opinion in Laumann v. National Hockey League, granting in part and denying in part a motion to compel arbitration brought by defendant Comcast and denying in full a similar motion brought by defendant DIRECTV.  Plaintiffs claim that defendants, including the National Hockey League and Major League Baseball, along with the major cable and satellite television service providers entered into "agreements to eliminate competition in the distribution of [baseball and hockey] games over the Internet and television [by] divid[ing] the live-game video presentation market into exclusive territories, which are protected by anticompetitive blackouts," and by "collud[ing] to sell the `out-of-market' packages only through the League [which] exploit[s] [its] illegal monopoly by charging supra-competitive prices."  These agreements allegedly violate the Sherman Antiturst Act.

At the heart of plaintiffs' beef, it seems, is that if one wants to view "out-of-market" games -- that is, games that do not feature the team from one's home city or the city where one is located -- one must purchase television packages which inculde all out-of-market games, even if one is only interested in the games of one out-of-market team.

BaseballBoth Comcast and DIRECTV have customer service agreements that feature arbitration clauses and so both defedants moved to compel arbitration.  Judge Scheindlin granted Comcast's motion with respect to one plaintiff who purchased an out-of-market package directly from Comcast and thus was clearly bound by the arbitration provision.  The remaining plaintiffs had a more complicated relationship to Comcast and claimed that their claims did not arise directly under their customer service agreements with Comcast.

Judge Scheindlin first ruled that any colorable dispute about the scope or validity of the arbitration clause must be referred to the arbitrator.  Plaintiffs colorfully objected that where the relationship between the agreements and the claims are too attenuated, granting Comcast's motion would be like compelling arbitration of a claim by a plaintiff who had been hit by a Comcast bus.  Judge Scheindlin agreed with respect to one plaintiff, where "the sole nexus between his claims and his Comcast service is the allegation that his DIRECTV package contained material produced by the Comcast" Regional Sports Networks.

Comcast also sought to compel arbitration of claims brought against it pursuant to arbitration clauses in plaintiffs' agreements with DIRECTV.  With respect to these claims, Judge Scheindlin noted that there was no clear intent to have questions of arbitrability between a signatory and a non-signatory decided by the arbitrator.  She then ruled that the arbitration clause in the DIRECTV agreements did not encompass plaintiffs' claims against Comcast.  She also rejected Comcast's claim that plaintiffs should be estopped from bringing a claim under the DIRECTV agreements through any mechanism other than arbitration.

DIRECTV's motion to compel arbitration against another plaintiff failed because the plaintiff is not a DIRECTV customer bound by its arbitration agreement.  The DIRECTV subscription is in the name of plaintiff's wife, and the court rejected any claim that he could be bound by admission or estoppel.



December 23, 2013 in Recent Cases, Sports, Television | Permalink | Comments (0) | TrackBack (0)

Saturday, December 7, 2013

Will Tough Mudder's Liability Waiver Hold Up?

Tough Mudder hosts extreme 10-mile obstacle course challenges.  If you are unfamiliar with the company, this video should give you a sense of the challenges Tough Mudder creates: 

Before a participant may enroll in an event and run the course, he/she must agree to an assumption of risk, waiver of liability and indemnity agreement.

Outdoor magazine has a story this month about the tragic death of Avishek Sengupta at a Tough Mudder event in Maryland.  He jumped into the deep, muddy pool at the "Walk the Plank" obstacle and did not emerge.  His tragic death is recounted in harrowing detail in the Outdoor magazine article, which mentions that Avishek's family has sued Tough Mudder and Amphibious Medics, a subcontractor that was onsite to provide rescue services.  

Central in the case will be the enforceability of the waiver of liability.  The parties weren't too fortchoming with litigation strategy but the article does provide:

Tough Mudder won't discuss its strategy for the Senguptas' legal action—nor will anyone from Amphibious Medics—but if the suit goes forward, its lawyers will likely stress the fact that Avi signed what Tough Mudder calls a Death Waiver, exculpating the company of liability for certain acts of "ordinary negligence" and "inherent risks," such as "inadequate or negligent first aid and/or emergency measures" and "errors in judgment by personnel working the event."

But the Boston-area firm Gilbert and Renton, representing Avi's estate, will likely argue that such waivers do not relieve Tough Mudder of the legal "duty of care" that exists whenever a business knowingly creates predictable hazards for the public. In the case of Walk the Plank, the predictable hazard—drowning—is clear enough. Hence the presence of a rescue diver and lifeguards at the obstacle on the day Avi drowned.

This will be an important and interesting case for liability waivers.  Worth following.

[Meredith R. Miller]



December 7, 2013 in Games, In the News, Sports | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 13, 2013

A Slam Dunk of a Deal

In a situation that underscores the importance of thinking twice about very long term contracts, the NBA wants to end a contract which requires it to pay two brothers a percentage of its broadcast revenues.  Back in 1976, the Silna brothers owned an ABA franchise, the Spirits of St. Louis.  When the ABA merged with the NBA, the Silnas agreed to this bargain - they would dissolve their team in exchange for 1/7 of the television revenues for the four ABA teams that were merged.  The four teams were the Indiana Pacers, the San Antonio Spurs, the Brooklyn Nets and the Denver Nuggets. 

Sure, back in 1976, the Silnas might have looked silly for giving up a huge buyout for something that seemed pretty worthless (the NBA wasn't even televised prime time) but now the deal is being called "the greatest sports deal of all time."  

Not kidding about that "all time" either - the Silvas reportedly received $19 million under the contract last season and the contract term is "in perpetuity."  Fat chance the NBA will be able to scream foul on the basis of lack of mutuality...


[Nancy Kim]

November 13, 2013 in Current Affairs, Games, In the News, Miscellaneous, Sports, True Contracts | Permalink | Comments (0) | TrackBack (0)

Thursday, September 26, 2013

Halftime Show: Is the wholesomeness of the NFL M.I.A?

NFL v. MIA: we've mentioned issues related to this incident on this blog in the past.  But, if you ask me, it just got good.

Here's the background: at the 2012 Superbowl, this little flip of the bird happened during the halftime show:

The NFL has since sued (in arbitration) M.I.A. (the bird-flipping artist in the video above) for $1.5 million.  The NFL’s claim?  It claims that M.I.A. breached her contract because the “offensive gesture” was “in flagrant disregard for the values that form the cornerstone of the NFL brand and the Super Bowl."  In the contract, she apparently acknowledged “the great value of the goodwill associated with the NFL and the tremendous public respect and reputation for wholesomeness enjoyed by the NFL."

The case, it sounds, comes down to what is “offensive” and what exactly are the “wholesome” values of the NFL.  This FoxSports column does a great job explaining why the lawsuit is “laughable” – with video footage as evidence of just how wholesome the NFL is.

A video of M.I.A. has recently surfaced.  In the video, she (rather articulately) explains the absurdity of the lawsuit.  As describes:

[M.I.A.] says the NFL is "scapegoating me into trying to set the goalpost for what is offensive in America." She notes that the picture in which she is seen giving the middle finger also has a group of sixteen year-old girls who were selected from a high school in Indianapolis who are in cheerleader outfits with their "hips thrusted in the air, legs wide open, in this very sexual...sexually provocative position."

Here’s M.I.A. regarding the lawsuit, which she describes as  "a massive display of... powerful corporation dick shaking."  In light of the 16-year-old cheerleaders on stage behind her, she frames the issue in the lawsuit as whether female sexual exploitation or empowerment is more offensive.  Interesting stuff:

[Meredith R. Miller]

September 26, 2013 in Film Clips, In the News, Music, Sports, Television | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 31, 2013

One-Day Contracts

Today's New York Times features an article on a relatively recent sports phenomenon -- the one-day contract.  In a nutshell, the one-days permit a retired player to re-sign with the team he played for in his prime, so that he can retire as a member of that team.  The player then shows up at the stadium and the fans can cheer him one last time (until the next opportunity comes around).    The team may benefit from the one-day contract in that fans may show up to cheer a retired star and re-experience a team's glory days.  The Times charaterizes these contracts as effecting for the players "a meaningless return to a team so they can reflect on how meaningful that team was to them." 

Jerry_RiceThis characterization strikes me as unfortunate.  The return is far from meaningless.  In fact, the contract is all about meaning and not at all about playing a particular sport or even about money for the athlete.  San Francisco 49er star Jerry Rice (pictured) was given a one-day contract that actually specified an amount, consisting of his rookie year (1985), his number (80), his retirement year ('06) and then 49, totaling $1,985,806.49.  But according to the Times (and Wikipedia), the amount was ceremonial.  Rice was not actually paid anything when he re-signed with the 49ers.  In baseball, the actual contracts are with farm teams, as teams cannot afford to give up a roster spot during the season -- even for one day.  This too is evidence that the contracts are not meaningless.

One blogger thinks the one-day contract phenomenon has gone too far, arguing both that it is meaningless and trivial and that it is an attempt at revisionist history.  These players did not actually end their careers with the teams that meant the most to those careers, and so the one-day contracts perpetrate a fraud.

Another way to look at it is that sports is imitating art, at least if the television series Lost is art.  Like the characters on Lost, these players get to return to a virtual reality in which they share experiences with the people who meant the most to them at the time in their lives when they had their biggest impact.


July 31, 2013 in Celebrity Contracts, In the News, Sports | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 30, 2013

Still Mystified by Long-Term Baseball Contracts

BaseballToday's New York Times features a lengthy article about the Los Angeles Angels' contract with Albert Pujols, the once-mighty St. Louis Cardinals slugger to whom the Times now refers as a faded star.  Between now and 2021, the Angels are contractually obligated to Pujols to the tune of $212 million.  In the last year of his contract, when Pujols will be 41, he is scheduled to earn $30 million.  The article explores the reasoning behind these contracts to some extent.  The Angels found that they could not compete with teams like the Yankees in the post-season without the marquee players whom one could only attract with hefty long-term contracts.  

But the Yankees' model of buying up the top players in the league does not look so effective right now.  They won the World Series in 2009, and they have been contenders most years, but the 1996-2000 glory days are long behind them.  The Times article on Pujols notes that the Yankees may well be secretly hoping to get out of their comparable contract with Alex Rodriguez through the deus ex machina of a life-time ban due to Rodriguez alleged involvement in the Biogenesis doping scandal.  

The Times implies that the Yankees at least got their money's worth out of Rodriguez, whom the Times credits with "leading" the Yankees to a championship in 2009.  But baseball doesn't work that way.  Rodriguez was a part of an extremely strong team.  Just on the offensive side, arguably, Rodriguez was about the middle of the pack among the Yankees' starters that year, who included: Derek Jeter, who hit .334 and had 30 stolen bases; Robinson Cano, who hit .320, with 25 home runs; and Mark Teixeira, who hit 39 home runs, drove in 122 and batted .292.  Johnny Damon, Hideki Matsui and Jorge Posada all posted offensive numbers not too different from Rodriguez's highly respectable ones.  Given their offense, the Yankee' didn't really need great pitching, but C.C. Sabathia won 19 games, and Mariano Rivera saved 44, while posting an E.R.A. of 1.76.  The only category in which Rodriguez led the Yankees that year was salary.  

Mad StacksPujols career is far from over.  He is suffering from a foot injury that has hampered his performance this year.  But has there ever been a Pujols-like power hitter (other than the tainted Barry Bonds) who continued to perform at All-Star levels after age 35?  Does it make sense to pay a designated hitter a top salary?  

As we have argued over and over again, to no avail, the solution is to design contracts that pay players for performance (rather than rewarding them for past performance).  Alfonso Soriano got hot at just the right point in the season, and now he is wearing the Yankee pinstripes again.  But Cubs fans should just be overjoyed to have been relieved of about $7 million of the psychotic $24.5 million the Cubs would otherwise have had to pay a guy who will struggle to hit .250 for the rest of the year.  I would love to like Soriano, but his salary has hurt his team more than he can help it.


July 30, 2013 in In the News, Sports | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 19, 2013

The Mystery of the Elvis Dumervil Contract Mix-up

Elvis Kool Dumervil, the star defensive end for the Denver Broncos, has been in the news recently based on an alleged mix-up involving a contract renegotiation with the team. I have read multiple reports and still cannot figure out exactly what happened from a contractual formation standpoint. But here's my current understanding and analysis...

Dumervil's contract with the Broncos, like most NFL player contracts, had an "opt out" of sorts for the Broncos.  Under the contract, the Broncos could either pay Dumervil $12 million to play next season--and have that entire amount count against the team's salary cap--or cut him ("cut" being the sports term for "fire") and only have a portion of his salary count against the team's cap.  Without getting into too much detail, each team has a maximum amount of money it is allowed to pay in player salaries per year, subject to various adjustments.  If the Broncos were able to reduce how much Dumervil's salary would count against their team's cap, they conceivably would have been able to spend more money to sign other players and improve their team; hence their interest in keeping the cap number down.

To avoid a bad salary cap consequence and still keep Dumervil, the Broncos sought to renegotiate a middle ground.  They offered to keep versus cut Dumervil but for a reduced salary amount of $8 million.  According to various reports, that offer was only open until 1pm MDT on Friday, March 15th.  The Broncos set that deadline because they faced a deadline of their own set by the NFL.  Specifically, the only way the Broncos could avoid the full salary cap hit of $12 million under NFL rules was to cut Dumervil by 2pm MDT (or show that they had re-signed him to a different deal).  If they cut him prior to 2pm MDT, they'd only take a $5 million hit; if they cut him anytime after 2pm MDT, they'd take a $12 million hit.

In the early afternoon of March 15th, Dumervil reportedly rejected the Broncos' $8 million offer over the phone (thereby terminating the Broncos' offer, most likely).  However, Dumervil  later told the Broncos that he had changed his mind. The Broncos then renewed their $8 million offer but specified that Dumervil could accept only by faxing his acceptance to them prior to the NFL's 2pm deadline.  When the Broncos did not receive a fax from Dumervil by that time, they cut him.  Dumervil's agent has said that the fax was sent to the Broncos at 2:06pm due to some delay in getting a fax from Dumervil.

When the story first broke, some media outlets were reporting that a fax machine malfunction was to blame. Thus, many commentators initially expressed frustration that a bungled or late transmission via fax, a now-outdated device, could have such a significant impact. When I heard those reports, it seemed that the media outlets, like some first-year law students, were overemphasizing the need for a writing and deemphasizing the parties' actual intent.  As we teach our students, a signed writing often is not required; contracts are formed all the time without that formality. Subject to the statute of frauds and other exceptions, a contract can be formed without a writing, faxed or otherwise.  And, unless the offeror limits the form of acceptance to a signed and faxed writing, the acceptance may be communicated in any reasonable manner.  In sum, it is intent of the parties that controls. Thus, if the Broncos really wanted to sign Dumervil to a new $8 million deal (that could be completed within 1 year of its making) based on his verbal agreement, no rule of contract law would have prevented it. In other words, if Dumervil truly had communicated his acceptance to the Broncos, the absence of a faxed signature from Dumervil would not prevent contractual formation unless: (i) the Broncos had stated that acceptance could only be via fax or similar writing; or (ii) the contract was one that could not be performed within a year or otherwise subject to the statute of frauds. We would need more facts to analyze both of those issues.

Of course, another possibility outside of traditional contract law (and the proverbial elephant in the locker room) is that the NFL likely has its own rules regarding contractual formation under its collective bargaining agreement or through some other mechanism. That's the part of the mystery about which I have no information at this point. Some reports seem to indicate that the NFL's rules somehow prevented contractual formation and that the Broncos are seeking a change of heart from the NFL. Perhaps someone more familiar with the NFL's rules can comment on that.  In the meantime, I think Bronco fans can stop blaming general contract law and continue blaming the Broncos and the NFL.  At least for now.

[Heidi R. Anderson]

March 19, 2013 in Celebrity Contracts, In the News, Sports | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 5, 2013

Magic Johnson's Offer to Tempt LeBron James

LeBron James participated in this year's NBA All-Star game but one former player, Magic Johnson, was not happy.  Magic, like many fans, would like to see the league's star players participate in the fun events leading up to the game, such as the slam dunk contest. Apparently, Magic would like that so much that he's willing to offer $1 million to the winner of next year's slam dunk contest if the contest includes LeBron James. He made that offer on ESPN's show, NBA Countdown:


When I first learned of this, I suspected that Magic's statement was an offer to James himself. However, in the video, Magic appears to say that the money would go to the winner of the contest, LeBron or not (OK, sure, the winner likely would be LeBron but you never know--underdogs can win, too).

Jalen Rose, Magic's co-host of the show NBA Countdown, stated that another player, Blake Griffin, would have to participate, too. Magic's verbal agreement with Rose seems to indicate a modified offer--one in which the $1 million payout is now conditioned on the participation of James and Griffin. From the video, it also appears that Magic is bargaining for performance versus promise but I'm not 100% sure. 

For professors looking for a modern-day reward-style offer, this could serve as a less political alternative to the recent reward-style offers by Donald Trump and Bill Maher, about which we previously blogged.

[Heidi R. Anderson]

March 5, 2013 in Celebrity Contracts, Sports, True Contracts | Permalink | Comments (0) | TrackBack (0)

Thursday, January 17, 2013

Using The Blind Side as a Visual Aid for the Parol Evidence Rule

I start the second semester of Contracts with the Parol Evidence Rule.  I think it's a complex but manageable topic that engages my no-longer-terrified "seasoned" students at the beginning of the semester.  Some students, however, struggle to understand exactly what the effect of the rule is, especially after I tell them that it's not really a rule of evidence.  Then, after we cover the exceptions, they're even more confused.  So, for the visual thinkers in the class, I show this clip:


For the students not familiar with football, I explain that the player featured in the video, Michael Oher, is an offensive lineman at the heart of the book and movie, The Blind Side.  His primary job is to protect the quarterback.  More specifically, Oher's job is to protect the quarterback's "blind side"--the side the QB can't see when looking downfield to pass (for right-handed quarterbacks, the left tackle protects the blind side; for lefty QBs, it's the right tackle's job).  

Then, I say, "Michael Oher is the Parol Evidence Rule.  The defenders rushing in are parol (or extrinsic) evidence.  Defensive linemen are prior written agreements.  Linebackers are contemporaneous statements. The safety is fraud in the inducement.  The quarterback is the judge.  Most of the time, Michael Oher (a.k.a., the Parol Evidence Rule) is keeping the extrinsic evidence away from the quarterback/judge.  The QB/Judge knows the evidence is there but it does not reach him or affect his decision.  That said, Michael Oher is not perfect.  Neither is the parol evidence rule.  Sometimes, a safety gets through, and for good reason."  

And so on.  The analogy breaks down in various places but still seems to work for some students.  Thus, I thought I'd share it on the blog.  I hope some of you find it useful.

[Heidi R. Anderson]


January 17, 2013 in Sports, Teaching | Permalink | Comments (1) | TrackBack (0)

Monday, December 17, 2012

World's #1 Golfer Sued for Breach of Endorsement Contract

Rory_McIlroyHaving jumped the shark last week with posts about curricular reform, we have decided to stick with what we know: sports contracts. 

As reported here in the Telegraph, Rory McIlroy (pictured), this year's world #1 golfer, is not Tiger Woods.  In addition, it appears that Mr. McIlroy has been endorsing Oakley sportswar until recently and now wants to jump ship and join team Nike.  Oakley is claiming a right of first refusal and claims that it offered to match Nike's offer to Mr. McIlroy.  He apparently spurned that offer and so is, according to Oakley, in breach of contract.

Oakley is claiming that it is irreparably harmed by the breach and seeks to enjoin Mr. McIlroy from enjoying the benefits of his $200 million Nike agreement.  In the alternative, Oakley is seeking unspecified damages.

Reading between the lines, there do appear to be issues that are of some interest.  Usually a right of first refusal requires the holder of the right to match the competing offer.  But suggests that Oakley was only offering McIlroy $60 million to continue endorsing its products.  Perhaps that amount is equal to the portion of McIlroy's Nike deal that relates to Nike apparel.  In addition, ESPN reports on an e-mail sent by Oakley to McIlroy's agent back in September when contract negotiations were breaking down.  The e-mail read,  "Understood. We are out of the mix. No contract for 2013."

McIlroy will argue that the e-mail suggests that Oakley waived its option to renew its agreement with McIlroy.  Oakley contends that, notwithstanding the September e-mail, negotiations resumed and Oakley claims to have matched Nike's offer.

So, there will be unwonted excitement on the golf tour next year as viewers tune in to see what McIlroy is wearing.


December 17, 2012 in Celebrity Contracts, In the News, Sports | Permalink | Comments (0) | TrackBack (0)

Friday, September 14, 2012

Is Boyz II Men v. Aaron Rodgers the New Lucy v. Zehmer?

Boyz ii menLast night, the Green Bay Packers redeemed themselves against the Chicago Bears after a disappointing Week 1 loss to the San Francisco 49ers. However, the Packers' quarterback, Aaron Rodgers, still has not redeemed himself after allegedly backing out on a bet with Nathan Morris of the R&B group, Boyz II Men.  The terms of their original deal reportedly were as follows: (i) Boyz II Men agreed to perform the national anthem before the Packers' week 1 game with the 49ers at Lambeau Field; and (ii) in exchange, Aaron Rodgers agreed to wear a 49ers jersey but only if the Packers lost to the 49ers.  (Even though Boyz II Men were part of the "East Coast Family" of the 1990s, they're apparently fans of a West Coast NFL team, the San Francisco 49ers. But I digress.)  Sounds like a pretty straightforward promise to perform in exchange for a promise to perform subject to a condition precedent, right?  Well, Boyz II Men performed, and the 49ers won, but... Aaron Rodgers has not worn the 49ers jersey.  Cue the Twittersphere and TMZ.  Rodgers, like Zehmer, claims that his jersey-wearing promise was a joke.  In this interview clip, Rodgers says, "It was a [unintelligible] joke between friends" that's been "blown out of proportion."  Morris claims it was a serious deal, tweeting after the game that he "was pressing the jersey now."  However, Boyz II Men also suggested they will give Aaron Rodgers more time to perform.  If not, anyone want to represent them against Rodgers?  Or is this the End of the Road for this matter?

[Heidi R. Anderson]

September 14, 2012 in Celebrity Contracts, In the News, Sports | Permalink | Comments (1) | TrackBack (0)

Wednesday, September 5, 2012

Money Well Spent on “America’s Favorite Pastime”

As reported here by, ESPN and Major League Baseball (MLB) have entered into an eight-year, $5.6 billion agreement, which includes TV and radio rights to MLB programming both in the U.S. and internationally, keeps baseball on the network through 2021 and includes a record-setting increase in annual rights fees (doubled to $700 million from $360 million annually).  

Wrigley Field
The agreement significantly expands the network's studio and game content, allowing ESPN to broadcast up to 90 regular-season MLB games plus wild card games for both leagues and the ever-exciting All Star week events (not including sunflower seed spitting).  Further, ESPN was granted the right to air the annual opening night game, games played on national holidays, and it may air up to ten Spring Training games per year.  Games can also be streamed through and an ESPN app.  

And there was much rejoicing.

ESPN's president said, “Baseball remains the national pastime," but the truth is, baseball has long been eclipsed by other sports and then by video games based on other sports and then by video games about killing people, and then by video games about killing zombies.  Meanwhile, there was recently talk of MLB becoming a wholly-owned subsidiary of Justin Bieber, Inc.  Commissioner Bud Selig commented that "today is a very historic day for baseball."   Taken in the context of a sport that is so hung up on statistics that every day is considered "historic" (Wow, Lou, that's the first time that a rookie switch-hitter has struck out looking from both sides of the plate in the same inning -- what a historic day!), Selig's comments seems to be downplaying the deal.    

According to the New York Times, ESPN's rival networks, Fox, TBS, NBC and CBS, are still contenders in the baseball airing arena, as ESPN did not manage to grab the division series or league championship series games.  There's still some history out there to be made.

[JT and Christina Phillips]

September 5, 2012 in In the News, Sports, Television, Web/Tech | Permalink | Comments (1) | TrackBack (0)

Thursday, August 2, 2012

Discussion of Consideration over at Concurring Opinions

Paul_McCartney_Over at Concurring Opinions, David Hoffman has called our attention to a "bizarre" consideration issue at the Olympics.  Professor Hoffman liniks to this story in The USA Today, according to which the performers at the Olympics halftime show -- whoops, make that opening ceremonies -- including Paul McCartney, donated their time.  According to The USA Today, the performers received a mere one pound for their performances, and that one pound was paid in order to make the performers' agreements with the Olympics binding.

Professor Hoffman comments as follows:

If true, I take it that British law takes the position that nominal consideration can bind obligees, but that “false” nominal consideration can’t.  Thus, the organizers had to both promise to pay McCartney a pound and actually pay it before the ex-Beatle was bound to perform.

To my  mind, this is the least good resolution of the consideration problem possible.  Look: either consideration should mean something – bargained for exchange motivating actual counter-promising – or parties should be free to dispose of the requirement of consideration entirely.  In the United States, only Pennsylvania has taken that sensible latter position.  The rest generally tend to require actual bargained for exchange, excepting only charitable subscriptions, which the Olympics are not.  The Brits, who handed us this mess in the first instance, have apparently now embraced the unfortunate, mumbo-jumbo, hybrid, which reduces the sensible formality of consideration to a bit of a magical contract theatre.  Does anyone think that that pound of consideration actually motivated McCartney’s promise to perform?

Interesting comments follow, including those of Patrick O'Donnell, to whom we tip our virtual hats for having directed us to the Concurring Opinions post.

Unfortuantely, we have at present nothing substantive to add to the learned discussion of at Concurring Opinions.  However, we would like to observe that perhaps Sir Paul is happy to work for nominal consideration given that just a few weeks ago, as reported by the BBC, concert organizers pulled the plug on him and Bruce Springsteen because they performed past a curfew in Hyde Park.

Band member and erstwhile proprieter of "Da Bing," Steven Van Zandt, tweeted rhetorically "When did England become a police state?"  


August 2, 2012 in In the News, Music, Sports, Weblogs | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 4, 2012

I Choose Not to Run!

For those of you who do not follow track and field sports or the Olympics, there was an interesting development in the women's 100 meter final at the U.S. Olympic trials.  There was a tie for third.  It's actually kind of a nice story.  Allyson Felix and Jeneba Tarmoh share a coach and train together.  They are friends.  Even a photo finish could not determine who came in third.

Unfortunately, a lot rides on the difference between third and fourth.  A country can send no more than three competitors for each event.  So, nothing's worse than fourth.  Both runners have contracts with Nike and those contracts, according to the New York Times, likely include significant bonuses if the runners make it to the Olympics. The situation is apparently unprecedented.  There is no official tie-breaking mechanism, and for a time it seemed that the two women would run against one another to determine who goes to London.

But Tarmoh is now re-enacting a Seinfeld episode (see the animated version below), although nobody is claiming she got a head start.  Earlier this week, as reported in the New York Times, she announced in an e-mail that she would not run and was conceding her place on the U.S. 100 meter team to Felix. 


Tarmoh was initially declared the third place finisher, but that finding was quickly reversed. According to the Times, Tarmoh is refusing to run again because she believes she already won the race, although she did not make use of the available protest mechanisms.  Her high school track coach explains that Tarmoh is mentally and physically exhausted due to the stress brought on by the tie.  Tarmoh will likely be a part of the U.S. 100 meter relay team, so she should still get a chance to run at the Olympics. 

Meanwhile, the sprinters in the Tour de France went at it for the fourth consecutive day.  Today's sprint finish was won by Andre Greipel after the favored Mark Cavendish took a nasty spill in the build-up to the sprint finish.  Cavendish won the intermediate sprint during the nearly 160 kilometer stage.  Despite getting knocked off his bike at speeds likely in excess of 35 mph, I suspect Mark Cavendish will be in the hunt for a stage win tomorrow. He's also supposed to ride for his country in the Olympics about two weeks after completing the 2000-mile, three-week Tour de France.


July 4, 2012 in Commentary, Sports | Permalink | Comments (0) | TrackBack (0)

Monday, June 18, 2012

Terrell Owens' Threatens to Sue His Former Indoor Football League Team

Terrell_OwensAccording to this article on, Terrell Owens (pictured) has given the Indoor Football League Allen Wranglers an ultimatum—issue a public apology and pay him the $160,000 that he claims they owe him (for four games) plus his 50% share of merchandise, tickest and concessions from his time with the team.  

The team claimed that Owens was cut on May 29, 2012 for not intending to play in two upcoming road games with playoff implications and for missing a team event at a local children’s hospital.  He is asking the Allen Wranglers for a public retraction of the statement that he intentionally missed the visit. As reported by Yahoo!sports, Owens claims his contract stated he did not have to play in away games and that the team privately acknowledged that an Allen Wranglers publicist gave him the wrong date concerning the hospital visit. had earlier reported that Owens was not only cut, he was evicted from the house provided for him by the team, was ordered to turn over the keys to the 2012 Jeep Chrokee that the team had loaned him, and he was given $50 in payment for his stake in the team.  According to's latest report on the subject, the Allen Wranglers are standing firm, reportedly telling Owens, "You ain't getting a penny."

[JT and Christina Phillips]

June 18, 2012 in Celebrity Contracts, In the News, Sports | Permalink | Comments (0) | TrackBack (0)

Thursday, April 26, 2012

Query: Why Is a Unilateral Contract to Seriously Injure Someone Not a Crime?

PaytonSorry, this story is a bit stale, but we've been occupied with the semester.  Last month, the New York Times reported that the head coach for the New Orleans Saints, Sean Payton (pictured) would be suspended without pay for one year "for his role in a bounty program that promised money to players if they injured opponents and knocked them out of games."

Upon learning this news, the Saints' quarterback, Drew Brees tweeted as follows:  “I am speechless. Sean Payton is a great man, coach, and mentor. The best there is. I need to hear an explanation for this punishment.”

Well, we are not likely the source that Drew Brees looks to for explanations of such things, but is it not obvious that we are talking about serious crime here and is it not equally obvious that, if the bounty program is as described above, the appropriate penalty is not a one-year suspension for Coach Payton but a criminal investigation that could lead to significant jail time and a lifetime ban from the sport for Payton and all other members of the staff or the team who conspired to commit these crimes?  We are talking about offering players money for attempting to intentionally injure other players.  How is that not simply felonious conduct?  And it's not as if the perpetrators in this case can claim, as Michael Vick more plausibly could do, that their criminal conduct is the product of some sub-culture in which outrageous, inhumane behavior is considered normal.  Payton and his staff are NFL insiders who rub shoulders with the very people who are disciplining them for their conduct.  

If the suspension is upheld, Payton will be deprived of $7 million in salary.  Perhaps the Saints can contribute that money to a fund for NFL players and their families who are suffering from the long-term effects of the brain injuries they suffered while playing.


April 26, 2012 in Celebrity Contracts, Commentary, Sports | Permalink | Comments (0) | TrackBack (0)

Monday, March 26, 2012

Coaching Contracts in Texas

Texas LonghornThe Austin American Statesman recently ran a report on the contracts the University of Texas enters into with the coaches of the school's sports teams.  The report is unusual in breaking down the incentives paid to coaches.  For example, the report notes that Texas's men's basketball coach earned a $125,000 bonus because the team won a spot in the NCAA tournament, despite the fact that the team lost its first game in that tournament.  The bonus comes on top of a $3.48 million contract.  The women's team also made the tournament and also lost in the first round.  Its placement earned the team's coach $10,000 on top of her annual contract of $1.09 million.

UT's senior associate athletic director noted that all coaches' salaries, including bonuses, are paid out of athletic department revenues.  He stresses that "no taxpayerr money of other university funding" is used for such purposes.  If one is inclined in such a direction, one might object that regardless of the source, the expenditure of that kind of money on sports -- the very fact that the University of Texas feels the need to have a senior associate athletic director -- makes one wonder about the priorities of our educational institutions and allocation of resources.


March 26, 2012 in In the News, Sports, True Contracts | Permalink | Comments (0) | TrackBack (0)

Friday, February 24, 2012

Did Fabio Capello Breach His Contract by Criticizing the Football Association?

Fabio-CapelloAccording to The Guardian, Fabio Capello (pictured), manager of England’s national football team could be in breach of contract after publicly challenging the Football Association’s (FA) decision to strip John Terry, England’s national football team captain, of his captaincy.  The Guardian reports that the FA made this decision after John Terry allegedly racially abused English footballer, Anton Ferdinand.  Capello was upset that this decision was taken without consulting him.  Capello said that he felt “undermined by the FA decision to notify him after the decision had  been made.

Capello also objects to the substance of the decision, finding it premature.  Preferring civil justice to sports justice, Capello believes that Terry should remain captain until the courts decide whether he committed the crime. 

While the details of Capello’s contract are unknown, People Management reports the contract likely gives the FA final say regarding squad selection, but does that also relate to choosing the team captain?   People Management also suspects that the contract contains some sort of gag provision and notes that in the UK, senior executive contracts often contain a provision preventing the employee from bringing the company into disrepute or making a public statement that is in direct conflict with a statement made by the employer.  If Capello’s contract contained this provision, he may be in breach for making his views, opposing the FA’s decision, public.  Whether such a remedy entitles the FA to treat Capello’s conduct as a repudiation of the agreement or can serve as grounds for dismissal will turn on the precise contractual language.

As the Guardian reports here, Capello resigned as Manager on February 8th, and the parties agreed to a £1.5 million settlement.  Capello's annucal salary was £6 million.  A confidentiality agreement means we will never get to explore the issues of breach in more detail. 

[JT & Janelle Thompson]

February 24, 2012 in Celebrity Contracts, Sports | Permalink | Comments (0) | TrackBack (0)

Thursday, February 23, 2012

Law and Social Norms: The Jumbotron Kiss

481px-El_Beso_(Pinacoteca_de_Brera,_Milán,_1859)It is common at sporting events to have a segment during time-outs at which the camera focuses on couples (always heterosexual, natch) and, as the crowd looks at their images on the Jumbotron, the couples almost invariably kiss.  This practice is known as the Kiss-Cam.

This week's installment of This American Life includes a short introductory segment in which tv producer Bill Langworthy recounts how he was induced by the Kiss-Cam to kiss his ex-girlfriend's best friend, a woman whom, according to Bill, he would not otherwise kiss for any amount of money. 

This American Life's host, Ira Glass, points out that Bill "did not have to kiss her; there would be no penalty; there was no contract; no money had changed hands. . . . "  Bill explains that he felt that, with everyone watching, and with a producer looking at him, expecting him to act, he felt compelled to kiss his ex-girlfriend's best friend.  This is a nice little gloss on the view that we often comply with our obligations (or even our perceived obligations) whether or not we are legally obligated to do so for reasons apart from contractual obligation.  And so, a surprisingly high percentage of commercial obligations -- even among sophisticated parties who could lawyer the relationship to death if they so choose -- arise informally. 

But we offer a different perspective on what is going on here.  Bill explains that he attended the ball game with two friends, a married couple.  Someone who coordinates the Kiss-Cam segment came around and asked the married couple if they would mind kissing for the Jumbotron.  They agreed.  This was already a revelation, since the parties often look as though they are taken by surprise when the Kiss-Cam seizes upon them.  Who knew it was all a set-up?  In any case, according to Bill, a few beer runs later, the parties had switched seats, so when the Kiss-Cam alighted, it hit him and his ex-girlfriend's best friend, instead of their married neighbors. 

Since Bill is himself a producer, it seems reasonable to assume that he understood how things like the Kiss-Cam operate.  Having identified its prey, the Kiss-Cam was going to focus on a particular seat, rather than on, for example, the tall guy wearing a baseball cap and the home team's jersey., since that latter description lacks specificity in the context of a sporting event. 

Come on Bill, maybe you really wanted to kiss her and were just waiting for the Jumbotron to permit you to break the taboo?


February 23, 2012 in Commentary, Sports, True Contracts | Permalink | Comments (0) | TrackBack (0)