ContractsProf Blog

Sid DeLong, Against Settlement

AGAINST SETTLEMENT? CHOPPING THE POT, SPLITTING THE GOLD, AND OTHER GENTLEMEN’S AGREEMENTS
Sidney W. DeLong

Our society is ambivalent about competition and cooperation, and that ambivalence is reflected in the law. In some domains, such as antitrust, competition is a virtue, and cooperation (e.g., price-fixing) is a vice. In other domains, such as labor law, anti-competitive agreements (collective bargaining) are encouraged, and free-market competition (strike-breaking) is a sin. Contractual agreements between competitors may be conciliatory or collusive.

The sports world too reflects ambivalence about cooperation and competition, which is perhaps more relevant now that professional sports is in many ways just another commercial activity. And as usual, sports can reveal much about law.

It is the finals of the Olympics men’s high jump on August 1, 2021. At the end of the competition, Tamberi of Italy and Barshim of Qatar are tied on height and on misses. An official makes them an offer: Either a jump-off with one winning first (gold) and the other second (silver) or an agreement to share (two golds). Both athletes had to agree to the share option. The exact opposite of a prisoner’s dilemma! Of course, they voted to share. Two gold medals were awarded for the first time in the Olympic high jump. On T.V., their deal induced an explosion of Italian joy, no detectable expostulations from Qatar, and widespread encomiums to sportsmanship.

Was this Olympic moment What Sports is All About? The lion lying down with the lamb in a paradise of alternative dispute resolution? Or was it a betrayal of the Holy Spirit of Competition, a cowardly concession motivated by risk-aversion and satisficing and collectivist thinking?

Contrast the high jump ruling with the disqualification of eight badminton players from the 2012 Olympics after it was discovered that they intentionally lost matches so that they could face weaker opponents in the second round of a multi-round elimination tournament. While the spectacle of a player trying to lose a match makes a mockery of the sport, strategic losing was at least a tactic rationally aimed at winning overall. The disgrace belongs not with the players but with the organizers of the event, for devising a competition in which dumping was a rational strategy.

The problem of dumping is not unique to badminton. International contract bridge competitions have also been afflicted with identical problems because of the design of multi-round, elimination tournaments in which second round matches are determined by first round results. It is easier to conceal an intentional loss in bridge than in badminton. In an earlier time, Bobby Fischer famously accused Soviet chess players of intentionally losing or drawing games with each other in order to give one of them a record that would defeat Fischer in international chess tournaments.

But deliberately losing is not the same as deliberately tying. Unlike the rules of Olympic jumping events, most sports rules do not permit the splitting of the top prize if the players are tied. In the Masters golf tournament as in Highlander: “There can be only One” and playoff holes will decide the winner if two or more players are tied after 72 holes.  

And this accords with the spirit of sport, in which the public rarely applauds a collusive tie. The spectacle of two gasping palookas waltzing through the closing rounds of a bout on the undercard, serenaded by the catcalls and whistles of angry bettors and bloodthirsty ticketholders is not only a trope of 1930’s cinema but a prototype of competitive shame.

But professional athletes have a time-honored if unpublicized practice of blunting the edges of winner-take-all. In his work on the history of distance running, Five Kings of Distance, Peter Lovesey reports on the practice known as a “penny all around” in which professional runners in 19^th Century England would agree before their races to split the prize money so that no one went unpaid.

But the timing of the deal is critical. An agreement to share a prize after the competition has stalled is one thing; an ex-ante agreement to make the competition a sham is quite another.

Which brings us to tournament poker and the practice of chopping the pot. Consider the following (very common) situation. It is the final table at the World Series of Poker. Several thousand players have bet $10,000 each to play a multi-day, freeze-out tournament of Hold’em Poker. The winner, the player who ends up with all the chips, wins 10 million dollars (aptly known in the trade as “life-changing money.”) Second place gets 6 million (Also L.C.M), Third gets $4 million etc.

After several days of competition, only four players are left. They all meet in a hotel room the evening before the final day. They have chip stacks that give each of them theoretical odds of winning that are roughly proportional to the sizes of their stacks. (Vegas is booking bets on each of them.) But tomorrow could bring any outcome. Luck plays a big role in Hold’em: In an “all-in” hand, any two cards can win all the chips.[1] The four competitors, risk-averse as are we all in the presence of such large amounts of money, have a friendly, familiar discussion: they agree that regardless of the final day’s outcome (regardless of who wins all the chips, who is the last remaining opponent, who finishes third, etc.) they will split the chips according to an agreed formula that is more equitable that that contained in the contest rules. Pushing “all-in” is less risky than it seems when the pusher has financial security.

Suppose you are a poker fan: would learning of this deal distress you? Make you cynical? Make you demand your money back if you paid to watch the event?

In response to early antitrust challenges to contracts between competitors, the tycoons running the colluding businesses often referred to “gentlemen’s agreements”, by which they presumably meant that properly brought-up aristocrats would (true to the ethic of their class) agree amongst themselves not to compete in the seamy struggle over price and instead to divide the spoils of their commerce in a reasonable way, incidentally extracting more money from the hoi polloi who purchased their goods. Richards v Nielsen Freight Lines, 810 F.2d 898 (9^th Cir. 1987) suggests that unenforceable gentlemen’s agreements are still in use. Thanks to the antitrust law’s enshrinement of the ideal of competition, we should be above all that now, or at least we should express our illegal contracts, combinations, and conspiracies in a gender-neutral way.

But competition can be a hard ideal. In the economic blood sport known as civil litigation, the temptation to settle, to avoid the risk of loss and split the spoils, is powerful. In earlier days, litigation was a blood sport. When trial by combat was used to determine title to land, the champion who, instead of fighting to the death, resigned from the fight by shouting the word “Craven!” was despised and outlawed. 3 Blackstone Commentaries on the Laws of England (1765) 340.

Today, in less sanguinary times, attorneys usually advise their clients take half a loaf or a bird in the hand rather than to roll the dice. But is it always the right thing to do? In Against Settlement, Owen W. Fiss rejected settlements of public interest class action litigation. He argued that settlement of civil rights class actions deprived the public of a definitive adjudication of important legal issues. The informational value of victory and defeat are public goods extinguished by private settlement.

Of course, Against Settlement appeared at a time when its author could expect the judicial resolution to favor civil rights. Today, given the radical re-shaping of the federal courts, authoritative adjudications about civil rights are likely to be the last thing their proponents would seek.

Even in civil litigation that has no public interest dimension, a settlement agreement may not always be the ethical thing to do. At the mundane level of the everyday lawsuit, the prospect of an early settlement of a civil claim can expose structural conflicts of interest inherent in all attorney-client fee agreements. Because of the different kinds of risk that attorneys bear under different agreements, for example, it may be that hourly-rate attorneys have a financial interest in prolonging the litigation (when it should settle) while contingency fee attorneys often have a financial interest in a quick settlement (when they should hold out for more). Neither may be incentivized to obtain the best client outcome.

Nevertheless, we seem to have arrived at a consensus that most civil litigation should settle promptly. Today, Fiss’s concern, the informational value of adjudication lost by settlement, has become trivial because the public information goods resulting from litigation have been largely erased by arbitration, a process does not yield opinions from which the public can discern the shape of contemporary law or from which it can obtain precedent for future guidance.

[1] It is a cliché’ in Hold’em that “Any two cards can win.” The theoretically-weakest Hold-em hand, 7-2 off-suit will beat the theoretically-strongest Hold’em hand, A-A about 15% of the time if both players stay to the river. For example, 7-2 will beat Aces if the flop is 777Q and the next two cards are not aces. There are many others. Don’t bet your life on the aces, especially if your opponent has a pointed tail.

NBA Player Agent Cannot Sue as Third-Party Beneficiary

Image by Tdorante10 - CC BY-SA 4.0 

District Judge Jed Rakoff of the Southern District of New York recently decided a juicy third-party beneficiary claim.  The link is not publicly available yet, but look for it coming soon.  Plaintiff David Lee is a player agent certified by the National Basketball Players Association (NBPA), the NBA players’ union.  Lee had arranged to represent Mitchell Robinson (right), at the time a potential NBA draftee. Defendant Raymond Brothers is also a NBPA-certified agent.

All NBPA-certified agents must sign a "certification agreement," which states the agents agree to all NBPA’s regulations, including a rule against agents giving monetary incentives to induce a player to hire them.

Lee claimed that Brothers breached this NBPA regulation by enticing Robinson—with the inducement of a Chevrolet Silverado pickup truck—to end his contract with Lee and sign a new player agent contract with Brothers instead. Lee alleged that Brothers’ conduct put him in breach of his contract with the NBPA, and Lee sought damages as a third-party beneficiary. Robinson had signed a multi-year contract with the New York Knicks.  Lee claimed entitlement to the commission he would have received had the contract with Robinson not ended three months before the draft season.  I will resist the temptation to make jokes about the Knicks here.  I'm a Bulls fan.  Glass houses, etc.

Lee’s third-party beneficiary claim relied on language from Section 3.B.2 of the NBPA agreement, which he characterized as an anti-poaching provision intended to protect agents from unscrupulous behavior such as that alleged in the complaint.  Indeed, who is going to enforce the prohibition on monetary inducements if not jilted agents?

On October 6^th, in Lee v. Raymond Brothers, Judge Rakoff rejected Lee's third-party beneficiary argument and dismissed counts I and II of his complaint which were based on that alleged status. Quoting its prior ruling in In re George Washington Bridge Bus Station Dev. Venture LLC, Judge Rakoff reiterated that under New York law, a person is a third-party beneficiary of a contract where (1) there is a valid and binding contract between the contracting parties, (2) that contract "was intended for the third party's benefit," and (3) the benefit to that third party "is sufficiently immediate to indicate the assumption by the contracting party of a duty to compensate the third party if the benefit is lost."

In this instance, as in Piccoli A/S v. Calvin Klein Jeanswear Co., a plaintiff cannot recover as a third-party beneficiary where the contract showed that the parties’ intent was to limit the power of enforcement to themselves. Section 3.B.2 states an intent to protect players from agent abuse and contains no statement of intent to benefit agents. The players were the NBPA’s intended beneficiaries, and the NBPA, not agents, was the intended enforcer of the regulations.

Lee’s additional claims, for tortious interference with Lee’s contract and business relationship with Robinson, were dismissed because one cannot tortiously interfere with a contract terminable at will.  The contract between Lee and Robinson allowed either party to terminate with 15 days’ notice. Although Robinson did not provide the requisite notice, even if he had, the draft season was still months away and Lee’s prospects of a commission still would have been long gone had he given notice.  As a result, Lee failed to allege any harm as a result of Brothers’ alleged wrongful offer to Robinson.

Finding that Lee was not an intended third-party beneficiary of NBPA contracts with other agents, the Court granted Brothers' motion and dismissed Lee's amended complaint with prejudice.

H/T to Alyssa Cross, the ContractsProf Blog's research assistant!

Ohio State Linebacker, Inspired by Cheerleader, Tests the Limits of the First Amendment

Last month, I posted about Mahanoy Area School District v. B.L., a case in which the Supreme Court held 8-1 that a school could not punish a cheerleader for a profane Snap expressing frustration with, among other things, school, softball, and cheerleading.  The Court held that, while schools can regulate some off-campus speech, it could not punish B.L. for exercising her First-Amendment rights in ways that did not threaten significant disruption of school activities.

The case is of interest to this blog (at least arguably), because B.L. had signed a form as a condition of her participation in team activities, in which she promised not to say negative things on the Internet about her school or cheerleading.  None of the courts that heard the case gave any weight to B.L.'s promise, and while I don't think the promise should be given dispositive weight, I, following Jamal Greene's How Rights Went Wrong, think courts should weigh all the interests implicated in the case before them and that the school's interest in holding B.L. to her promise is one such interest.

Over the weekend, a similar situation arose.  K'Vaughn Pope, a linebacker for the Ohio State Buckeyes, apparently was upset about his lack of playing time.  According to ESPN, after conversation with several members of the coaching staff, Mr. Pope was escorted from the field.  He then took to Twitter and, while the game was still in progress, in a since-removed post, wrote "f--- Ohio State."  He also wrote "good lucc to my teammates" and that one is still up.

Reporters inquired of Ohio State coach Ryan Day whether Mr. Pope was still on the team.  Coach Day wisely equivocated, but the question assumes that disciplining a student at a state university for comments critical of that university is permissible under the First Amendment.  Or perhaps the reporters thought it appropriate to discipline a student-athlete for misspelling "luck" in a comment viewable by the public.  

As reported here, Coach Day then spoke a bit about commitments, which may or may not be contractual, and about other things:

[W]hen you make a commitment to a team at the beginning of the year, when you make a commitment to the Ohio State Buckeyes, that’s what you do. One of the hard things is that you have to play certain guys, and you have to make some decisions on who’s playing in those games and you just really count on guys to be great teammates if they’re not getting on the field … What it really is, is that guys want to play and you can’t play everyone. And then frustration kicks in.

I'm guessing that few will think that the First Amendment prohibits Coach Day from disciplining Mr. Pope for his conduct and speech.  If so, why can he be disciplined when B.L. could not?  

Coach Day's remarks are sensible.  I'm not a fan of college sports, but if they are to exist, if public high schools are to field sports teams, it seems obvious to me that coaches ought to be empowered to discipline athletes for conduct that they deem detrimental to their teams, subject to internal due process protections permitting students with means of appeal.  The notion that the First Amendment would have anything to say about students' non-political speech critical of their coaches' decisions strikes me as not just wrong but ludicrous.  And the notion that federal judges are better situated than school administrators to determine where to draw the line between permissible and impermissible disciplinary measures strikes me as more evidence of the bizarre sacralization of a few privileged "rights." We infantilize ourselves when we act as though the Constitution has to sort out all our problems.

The Other Shadow Docket* Revisited: Hidden Contract Issues in Mahanoy Area School District v. B.L. (the Cheerleader Case)

A few months ago, I posted about  Jamal Greene's How Rights Went Wrong and a case decided during the last SCOTUS term, Fulton v. City of Philadelphia.  As I pointed out in the last post, one of the key points that  Professor Greene (left) makes is that our jurisprudence elevates certain rights as "fundamental," and courts protect those rights zealously through heightened scrutiny.  Other rights, since 1937 or thereabouts, have been left nearly entirely unprotected.  Greene illustrates the phenomenon and the damage it has done to our social fabric with myriad examples.  Contracts rights, protected in the Lochner Era, are largely disregarded today.  Neither Professor Greene nor I advocate a return to Lochner.   Indeed, Professor Greene regards Justice Harlan's Lochner dissent with wistful admiration, as a path not taken.  He has persuaded me that courts ought to engage in less rights fundamentalism and more rights negotiation and mediation.  

In my last post, I indicated that if the Court had been more interested in contracts rights and less committed to a winner-take-all strategy in which Free Exercise Rights trump all, Fulton could have come out differently, and I think better.  Today, I want to make the argument that the Court should have at least considered contracts law before siding with the foul-mouthed cheerleader in Mahanoy.  

A quick review of the facts: B.L. was on the junior varsity team at Mahanoy in her freshman year.  She tried out for varsity but did not make it.  Upset about that and other things, she expressed her outrage, off campus and over the weekend, on Snapchat.  The Snap that got her in trouble was a picture of her and a friend giving the camera the finger.  The text, which is edited here, because this is a family-friendly blog (this blog is #f-faf), "f school f softball f cheer f everything."  She shared the Snap with 250 friends, many of whom attended her school, and some of whom were cheerleaders. 

Another cheerleader, who happened to be the daughter of one of the coaches, shared the Snap with her mother.  Many cheerleaders were upset by the Snap, and not about its lack of punctuation.  They complained to the coaches saying, in effect, "You're not going to let her get away with this, are you?"  The coaches did not let B.L. get a way with it.  They suspended her from the cheer team for one year.  B.L.'s parents protested their decision, but the coaches' superiors approved their decision at every level -- athletic director, principal, superintendent, school board.  

But the ACLU took up B.L.'s case and got an order from the district court preliminarily enjoining the School District from suspending B.L. or indeed punishing her in any way for exercising her constitutional right of free speech.  That injunction was upheld and made permanent in the District Court, the Third Circuit Court of Appeals, and the Supreme Court, 8-1, with Justice Thomas alone in dissent.  Justice Thomas, you are not alone!

You wouldn't know it to read the three opinions in Mahanoy, but before B.L. tried out for the varsity team, she and her mother read and agreed to the team rules by signing the appropriate forms.  Those rules provide, among other things: “There will be no toleration of any negative information regarding cheerleading, cheerleaders, or coaches placed on the internet.”  The District Court, perhaps incoherently, held that the rules were neither vague nor overbroad, but they were unconstitutional as applied to B.L.'s Snap.  The Third Circuit went farther, holding that schools cannot discipline students for off-campus speech.  The Supreme Court, per Justice Breyer, rejected the Third Circuit's categorical ruling but found that B.L. had been engaged in constitutionally protected speech and had been unconstitutionally disciplined for criticizing her coaches.  

Justice Breyer, I defend your right to retire when you are good and ready, but on this issue we must part company.  She was not disciplined for criticizing her coaches.  She wasn't criticizing anyone.  She did not believe the words she wrote.  She cried when she was suspended, and when asked in deposition why she cried, she said it was because "I really enjoy cheerleading."  The Tinkers never apologized for wearing the armbands that led to their celebrated case.  They never tearfully admitted that they really enjoyed the Vietnam War.  B.L. was punished because she promised to behave a certain way in order to qualify to be a cheerleader.  She broke that promise, and on this blog, there are consequences when people break their promises.

B.L. was disciplined for violating team rules against posting negative comments on the Internet about cheerleading.  The School District felt confident that B.L.'s speech was unprotected because the Court had ruled in a prior case (Fraser) that profane speech is unprotected in the school context.  True, Fraser was on school property at the time he delivered his speech, but technically, Frederick of Morse v. Frederick was off campus when he unfurled his immortal BONG HiTS 4 JESUS banner.  And we are all eternally grateful to him. But the Supreme Court upheld his absurd 10-day suspension (Fraser got three, reduced to two for some reason), because, as Mr. Mackey would say, "Drugs are bad, mmkay?"

Look.  As co-blogger Nancy Kim might point out, one might argue that, given the context, B.L. and her mother did not give meaningful consent when they signed the school's forms.  Maybe there are some rights you cannot contract away, but there are lots of contexts in which people's employment limits their right to speak to the constitutional max.  If we don't want public school children to surrender their constitutional rights at the schoolhouse gate, perhaps we shouldn't be searching their lockers or subjecting them to random drug tests so that they can play the saxophone in band.  In any case, none of these arguments against enforcing the school's agreement with B.L. were considered in the Supreme Court because First Amendment rights matter to that Court, and in contexts like these, contracts rights don't matter at all.  But in a world in which we balanced and mediated rights. cheerleaders could be disciplined in reasonable ways for violating team rules, and courts wouldn't need to get involved absent due process violations which clearly were not presented in B.L.'s case.

Jamal Greene briefly discusses this case and Fulton in an episode of the wonderful Strict Scrutiny podcast devoted to his book.  He notes that Justice Breyer has long been committed to a more balanced approach to rights than most of his colleagues on the Court, and he seems to think that Breyer struck the right balance here.  I share Professor Greene's general assessment of Justice Breyer's approach to rights, but I don't see much balancing in this case.  However, Professor Greene concedes that a balancing approach to rights does not mean that we will always agree with the outcome.  Still,  Professor Greene divides the free speech in school cases into those involving "knuckleheads" and cases involving serious protest speech.  He thinks B.L. was protesting her school's policies, and I can see how he would so conclude based on the Court's rendition of the case.  But it just ain't so.  She has far more in common with the  "knuckleheads" than she does with the Tinkers.  I hope that Professor Greene and I can agree that if students (or their parents) were not encouraged to think of themselves as endowed with unassailable fundamental rights, most if not all of these cases (Tinker needed to be heard) would disappear.  B.L.'s parents would press and lobby.  Eventually, the school would have reduced the suspension from one year to three games, and everyone would have moved on. Or the school would have insisted on its suspension, and everyone would have moved on.

*The Shadow Docket is a phrase coined by Will Baude and explored at great length by Steve Vladeck.  They are two of the smartest people writing about constitutional law  and related topics today, and I recommend all of their writings and doings.  Both of them have excellent podcasts, and Will Baude explains the shadow docket on the first episode of Divided Argument, which he co-hosts with Dan Epps.

News from the World of Mixed Martial Arts Contracts

On the right in the photo at left is Jordan Kimball, who was one of my contracts students when she was a wee 1L.  She is pictured with her Mixed Martial Arts (MMA) coach Julia Avila.  I did my best to teach Jordan contracts law, and she is now  doing her best to educate me about the MMA world.   

Julia Avila competes under the auspices of the Ultimate Fight Championship (UFC), the largest MMA organization, headed up by Dana White.  According to Jordan, its junior-level fighters like Julia get paid very little for their matches.  MMA Guru (in an annoyingly repetitious post), reports that while about 1/3 of MMA fighters earned six-figure salaries in 2018, a little over 1/3 earned less than $45,000.  The basic structure was (as of 2018) that fighters get paid about $3500 in base pay for their first three fights, which goes up to $5000 per fight thereafter.  Fighters also get a "win-bonus" that equals the base pay, so they are highly motivated.  Better-known fighters have the ability to draw up their own contracts, and obviously the money gets substantial at the top of the heap.  But the UFC is now hugely popular, and the vast majority of its fighters get paid a small fraction of top athletes in other sports.

UPDATE: the good people @TKO Combat Sports & Entertainment sent me a helpful correction.  The figures above are the sponsorship fees (uniform pay) per fight.  According to TKO, the minimum base pay per fight is $10,000, plus another $10,000 if you win.  So, a successful athlete can earn $23,500-$25,000 per match to start, which sounds like a good pay day, but for obvious reasons, one can't fight too frequently.  A little Internet research suggests that, barring injury, most athletes can only fight 2-3 times a year.

The base pay is somewhat higher than it was before the UFC entered into exclusive sponsorship agreements.  Before such agreements, fighters could earn money by wearing the gear of their individual sponsors.  Now, under the UFC contract, fighters are required to wear only the gear of the UFC sponsors in official UFC fights.  At least at the start, some athletes objected to the new sponsor system.  

However, according to the The Manuel, apparently the big money comes from "fight of the night" and "performance of the night" bonuses within Dana White's sole discretion.  In 2020, such bonuses accounted for $4.6 million out of a total of $13 million in bonuses that UFC paid out.  As a result, as soon as fighters finish their matches, they hit social media to encourage their followers to deluge Dana White with messages advocating for their favorite fighter.  In such a system, athletes who criticize the pay structure are unlikely to earn bonuses from the man they are criticizing.  In addition, and not surprisingly, such prizes rarely go to women. 

The UFC is the big dance of MMA.  There are feeder leagues in which MMA athletes can complete, but once they sign with the UFC, they cannot fight with any other organization.  The other organizations do not restrict private sponsorships, so for fighters coming up in the sport, jumping to the UFC entails risk.  The payout in early fights is going to be smaller, and you sacrifice private sponsorships.  While the athletes at the top of the sport can make millions of dollars, much like the top athletes in more traditional sports, young MMA athletes do not have the protections of a union, as exist in more traditional sports.  A rookie UFC fighter has no guaranteed minimum salary as would a rookie in MLB, the NFL, the NBA, etc.  And clearly the risk of injury is at least as great in the UFC as it is in the more traditional sports.

Thus the junior-level fighters, even if they make it to the UFC, have very little bargaining power and cannot publicly criticize Dana White, who literally controls the pursestrings.  All they can do is beg him to throw some of his largesse their way.  But they are not alone.  There are athletes at all levels within the UFC who complain about one-sided UFC contracts.

Thanks, Jordan, for all of the research on this post!   I regret that your work for the ContractsProf Blog will be even less remunerative than the UFC, but we place no limitations on your ability to seek sponsorships.

Cycling Contracts News

Lighter posting for the next fortnight as I am engrossed in the 2021 Tour de France.

But, I am so impressed with the range of New York Contract Law Decisions, who has directed me to a decision of the Antwerp labor court, I had to make time to report on the Wout van Aert case. 

Who is Wout van Aert?  Well, he's a talented cyclist

He is currently third in the general classification of the Tour de France after finishing 20th last year, and although he did not finish the 2019 edition, he won two stages (one was a team time trial, but still) before crashing into some fencing in a time trial.  Before becoming a road cyclist, he was a dominant cyclo-cross rider.  I'm not sure what that is exactly, but it seems to involve getting dirty and sometimes having to carry your bike up stairs and also ride it down stairs and just about anything else.

As recounted here, in 2018, van Aert rode with team Verandas Willems-Crelan (Verandas), but he was dissatisfied on that team and was due to transfer to Jumbo-Visma in 2020.  Jumbo was willing to take van Aert a year early, and so he jumped ship and began riding with Jumbo in March 2019.   Verandas sued, seeking $1.3 million in damages relating to lost sponsorships once the team lost its star rider.  van Aert alleges that the team had defaulted on the agreement.  It's not clear how.  He won in the first round in 2019.  Somehow, the case wound up back in court, and the Belgian court has now sided with Verandas, awarding just over $800,000. 

An appeal is expected.  Stay tuned.

Rich Paul and the Role of Sports Agents in the NBA

As reported in Isaac Chotiner's New Yorker article, Lebron James’s Agent Is Transforming the Business of Basketball, Rich Paul has been changing the way athletes and agents negotiate with teams. Paul, the agent for LeBron James and other N.B.A all-stars, started his agency, Klutch, nine years ago.

Paul and James became friends in 2002 when James -- only seventeen—was expected to be N.B.A.’s No.1 draft pick. When the two first met, Paul was twenty-one and selling vintage jerseys out of his trunk. James took an interest in one of the jerseys, the two struck up a friendship and stayed in touch. They bonded over being Black kids who grew up in the inner city and the difficulties that come with that.  That background has given Paul a unique advantage when advising young players with similar experiences growing up.  Paul's mother struggled with drug addiction.  His father died of cancer while he was in college. He would have finished, he said, because it was important to his father.  But after his father died, Paul's business ambitions took over.

Photo by Keith Allison

Their contractual relationship began the summer of 2003, when James signed with the Cleveland Cavaliers. James began paying Paul a salary of $48,000. According to Chotiner, James regarded the payments as “an investment in what the relationship could become.” A few years later, Paul began working for James then-agent Leon Rose, at Creative Artists Agency (CAA).

Paul left CAA and formed Klutch Sports Group in 2010 after the controversial announcement made by James on “The Decision” —an  ESPN live broadcast—in which he declared he was leaving the Cavaliers. James declared “I’m going to take my talents to South Beach and join the Miami Heat.”  The press took a very dim view of "The Decision," but James has no regrets (or will admit to none), and his move from Cleveland to Miami became the model for later moves by star players who want to dictate where they play and with whom they play.  

Paul began to develop powerful influence in the N.B.A with James as his star client. They have become associated with “player empowerment.” Player empowerment is the influence that athletes wield as they change teams and build new fan bases. The argument in favor of player empowerment is that too much control has been in the hands of teams who can trade a player on a whim. Players should have some say in where they work and live. This philosophy allows the league’s best athletes to have the most leverage because they bring in the fans, jersey sales, and general revenue. Paul believes players should have more power over who and where they sign with.

The dynamic between the league, athletes, and player empowerment, is intertwined with race. Historically, basketball—a majority Black sport—has always been run by white owners. As players have become increasingly more outspoken about politics, the league has had to follow suit, like embracing the Black Lives Matter movement.

The dynamic in NBA player contracts has certainly changed, at least at the top of the NBA food chain.  The game used to be that owners would lock in young players to multi-year contracts.  If the players underperformed or became injury-prone, the owners retained the ability to trade them.  If the players exceeded expectations, they were systematically underpaid until their contract came up for re-negotiation.  Sorry Scottie Pippen.  Now, the star players can reverse the option.  With Paul's help, they star prospects can now negotiate generous contracts but retain some contractual flexibility to move to different teams, and the league and the owners seem relatively powerless to prevent them from doing so.

Critics of player empowerment say it has put too much power in the hands of players. Bomani Jones, a sports journalist for ESPN state that player empowerment is a catchall for the fact that the league has done a terrible job empowering team, and that the N.B.A. has a problem with real estate; they have teams in places where young Black men do not want to live.

Although Paul is proud and willing to fight for his clients, he struggles with the impression that he is constantly battling with teams. He said that perception is all wrong. “What I am focused on was how to educate the athletes. It’s one thing to be a black man in America it’s a totally different thing to be a black athlete.”

For Black athletes, Paul explained, the sudden wealth of an NBA contract comes with a ‘black tax.’ Black tax is the difference in experience black athletes face compared to that of white athletes. For some Black athletes, their number of dependents is higher, their education may be lower, their financial literacy lower, and their family infrastructure is lesser. Paul and others at Klutch say they see their job not only as making money for players, but also teaching them how to spend it. Furthermore, family members of young athletes historically have only seen White men in a position of agent or head coach, so that is who they tend to seek out and listen to. It is difficult for Paul to represent White athletes because they do not seek him out and they do not expect or trust Black agents.

Photo by All-Pro Reels

Klutch became known for driving hard bargains, especially for James. Paul's reputation was cemented when James joined the Lakers in 2018. The following year, Paul pressured New Orleans Pelicans to trade Anthony Davis to the Lakers—which cemented the roster that enabled the Lakers to win the NBA championship in 2020.  Paul's strategy has aggressive:  he let it be known David was demanding a trade and that the he really wanted to be traded to the Lakers.  Davis's value to the Pelicans dipped precipitously.  He didn't want to play for the team and he didn't want to risk injury.  Paul effectively called the bluff of the owners.  They disapproved of the tactics, but Paul forced them to recognize the market power their star players wield.   The N.B.A. fined Davis fifty thousand dollars for the trade demand.   Why even bother?

Paul’s success has led to debate about what it takes to be a good agent. Paul cannot match his rivals in formal education.  Most other agents are lawyers or have lawyers. But Paul understands the business, and he understands the psychology of the players, the agents, and the "Euro men in their fifties" who still make the decisions for teams. Now for Paul’s star clients, the job is about finding new ways to wield power, including using the media. In 2018 Paul negotiated an unconventional deal for NBA prospect Darius Bazley. Bazley reneged on a commitment to play for Syracuse University but was later paid $1 million for an internship at new balance. The next year the NCAA announced a new rule: agents could not represent college athletes unless they themselves had a college degree. Then James took to Twitter and dubbed the new regulation #TheRichPaulRule. Within a week the NCAA rescinded the rule.

Chotiner's article provides a behind-the-scenes look at how Paul recruits clients.  He recounts a Zoom call between Paul and an NBA-prospect's mother.  Paul encourages the young athlete to talk about his teammates and his team mentality, about his enthusiasm for playing defense and being a play-maker rather than just a scorer or showboater.  The mother quickly grasps that the strategy is to spout cliches to counteract the prejudices about young Black athletes her son is likely to encounter.  But to her, it sounds like forcing her son to repress his personality and bow before these new White masters.  Paul is playing the long game.  For him, it is not about bowing down to anyone.  it's about achieving a balance that enables young stars to rise.   

Once players rise to stardom, they have more freedom to speak for themselves.  Klutch has athletes speak out on political or social issues. Michael Jordan would not even say whether he preferred classic Coca-Cola or new Coke.  James has spoken out on the killing of George Floyd, police brutality, and Georgia’s restrictive voting laws. Paul said that however the players decide to involve themselves is up to them, and that they should not be tone-deaf to things happening around them. 

Photo by Keith Allison 

The new model works well for the star players, but does it improve the sport?  From my perspective in Oklahoma City, I still hear complaints about Kevin Durant's abandonment of the Thunder.  I hear this from White fans, and I suspect that, while the NBA's popularity bridges racial gaps in the U.S., the people buying (unbelievably expensive) seats in stadiums and (unbelievably expensive NBA gear) are mostly White. 

I've only been here a year, and with COVID, people aren't thinking much about attending sporting events (other than college football, which never stopped here), but nobody has ever brought up the Thunder in conversation with me since I arrived.  I follow basketball a little, but I can't name a single Thunder player.  I follow the Bulls, but I know at the start of every season that the Bulls do not have three all-stars, so they will not be in serious competition for the championship.  Seems like a doomed model for small-market cities like New Orleans, Oklahoma City, and the New York Knicks.

Still, it seems preferable to baseball contracts where, for some reason, owners lock themselves in to multi-year contracts valued in the hundreds of millions of dollars with players who are nearing their peaks and will be paid tens of millions late in their careers.  Such older players often are of limited value to the club, often relegated to the roll of designated hitter.   I wonder whether, for that reason, the average age on American League teams is a bit higher than on National League teams.  On the one hand, perhaps it is nice that these players get to enjoy the riches denied them in their primes.  On the other hand, it must frustrate elite athletes to compete and under-perform.  It also hurts their teams, because salary caps prevent baseball teams with older, expensive players from trading for top players still in their prime.

Thanks to ContractsProf Blog Intern, Alyssa Cross, for her research assistance!

Trump Organization Sues New York City for Breach of Bronx Golf Course Contract

Soon after the January 6th assault on the Capitol Building in Washington, DC,  New York City attempted to terminate contracts with the Trump Organization to operate two ice skating rinks and a carousel in Central Park (left).  It seemed like that would result in an early end to the ice skating season during a pandemic.  New York parents were desperate for ways to divert their children and fend off boredom.  They delighted in an opportunity to ponder whom they found more despicable: their former President or their current mayor. The City blinked on that one.  Those contracts with the Trump Organization were due to lapse in April in any case, so the City chose to let them run their course and not renew them.

Now, according to the New York Times, the Trump Organization is suing New York City for allegedly wrongfully terminating a 20-year contract the organization had with the city. The lawsuit centers around the city-owned course in the Ferry Point section of the Bronx, called Trump Golf Links at Ferry Point. The Trump Organization was in the sixth year of operating the course since its opening in 2015.  

The Trump Organization alleges  that “Mayor de Blasio had a pre-existing, politically-based predisposition to terminate Trump-related contracts, and the city used the events of January 6, 2021 as a pretext to do so.” A spokesman for the mayor, Bill Neidhardt, responded, saying: “Donald Trump directly incited a deadly insurrection at the U.S. Capitol. You do that, and you lose the privilege of doing business with the City of New York.”  Oooh.  That's a new wrinkle on a morals clause!

Actually, the mayor's spokesman should leave the lawyering to the lawyers.  They claim that the Trump Organization defaulted on its contracts when it failed to attract a major tournament to the course.  It is unlikely to do so in the future. The woke PGA has recently announced it would no longer be allowing a Trump-owned course in New Jersey host one of its major Tournaments.

The Trump organization claims it had no obligation to attract a major tournament. Rather, its only obligations was to maintain “a first class tournament quality daily fee golf course.”  It's legal papers include statements from professional golfers, including Dustin Johnson and Bryson DeChambeau, describing the course as “tournament quality” and  “first class.”  Not bad, but if they really wanted to impress, they should have characterized the course as "astonishingly excellent".

Thanks to ContractsProf Blog Intern, Sydney Scott, for her research assistance!

Keeping with our Martial Arts Theme: Influencer Wins A Technical Knock-out in SDNY

Yesterday, we posted about a boxing match.   Today, we move on to mixed martial arts.

Have you ever wanted a behind-the-scenes look at how YouTuber "influencers" make money?  I certainly have.  I asked my daughter what seemed to me the obvious question: Why would anybody take seriously an endorsement from an "influencer" when you know that influencers get paid to endorse products and that their endorsement is thus effectively meaningless?  Her shrug, accompanied by an eye-roll spoke volumes.  

Fortunately, Jed Rakoff, of the Southern District of New York, just decided an influencer case, Brueckner v. You Can Beam, LLC,  that reveals quite a few details about how these deals work (H/T New York Contract Decisions Twitter Feed), although I admit I still don't really understand the premise behind these deals.

Josh Brueckner (Brueckner), for those who don't know, is a professional mixed martial arts athlete and influencer.   On February 1, 2020, he entered into an agreement with You Can Beam LLC (Beam), a nutritional supplements company.  The agreement provided that Brueckner would post (i) at least six promotional Instagram posts a year about Beam's nutritional supplements, (ii) at least one Instagram story per week mentioning a Beam product, and (iii) at least one YouTube video a month on Brueckner's YouTube channel, including Brueckner's coupon code and a link to the You Can Beam website in any YouTube videos. Even if the video was not about Beam’s products, Brueckner was required to link his coupon code in the description box. In exchange, he was to be paid a monthly fixed rate of $15,000 and a commission of $4 per unit sold using Brueckner's coupon code or link.  Wow, so that's how that works.  Thanks, Judge Rakoff!

The initial term of the agreement was one year, but then came COVID.  On March 17, Beam told Brueckner to “hold off” on the posting due to COVID-19 restrictions, because "everything with this virus has put us on hold unfortunately.” Beam still paid Brueckner his $15,000 for March, but they also sent him a termination notice dated April 8, 2020.  Contending that the termination was not in accordance with the contract terms, Brueckner filed suit on April 28th.  I'll say this for him, he's quick.  Beam counterpunched, alleging that Brueckner had been in breach of the agreement since February 28th, when Beam had sent him notice that he had failed to include a link and discount code in his YouTube videos as required under the parties' agreement.  Beam's counterpunch failed to land.

Brueckner moved for summary judgment, and he won.  Beam's sent its February 28 notice to the wrong address.  As a result, Brueckner was never properly put on notice that he was in breach.  Moreover, Brueckner clearly cured the alleged breach within the 10-day period provided for in the agreement.  As a result, he was not in breach when Beam instructed him to "hold off" on his influencing activities, and it was thus Beam, not Brueckner that was in breach. The Court granted Brueckner’s motion for summary judgment, finding Beam liable on Brueckner's breach of contract claim and dismissing Beam's breach of contract counterclaim.

Brueckner sought an additional $75,000 for the five months on the contract.  It is not clear if he could also seek to recover the $4 per sale he would have been entitled to but for Beam's breach.  As a side note, if you can offer reductions on each sale via coupon and pay an influencer $4 per sale, doesn't it seem like your product is overpriced?  Or is it common that most of what we pay for goes to marketing and not product.  Do I pay more for Progressive Insurance than Geico because Progressive has to pay Flo, while Geico stiffs its gecko?

H/T to ContractsProf Blog Intern Sydney Scott (left) for research on this post.

A Reason to Be Interested in the Mayweather/Logan Paul Fight

If you watched boxing legend Floyd Mayweather's exhibition bout against YouTuber Logan Paul, you should not have been disappointed.  That's because your expectations should have been very low.  I know very little about boxing, but I learned in researching this piece that Mayweather is a boxer, not a puncher, so he was unlikely to injure Logan Paul dramatically.  Logan Paul, on the other hand, although nearly twenty years younger and far bigger, was unlikely to land any clean blows on Mayweather.  And that is what ensued.  Mayweather landed nearly twice as many punches while throwing about half as many.  Paul demonstrated that he could take a punch and that he, quite literally, has thick skin, which likely serves him well in his line of work.

Dubai, Jumeirah Beach by pe-sa

But there is one area in which the exhibition match delivered quite the wallop: contractual controversy.  This fight, after all, was about making money.  According to legalreader.com, Mayweather sued the fight's promoter, PAC Entertainment Worldwide, when he did not  receive an initial payment of $30 million, a portion of his guaranteed $100 million take, which was due in March.  The fight was supposed to take place in Dubai, but PAC could not pull that off. Mayweather claimed that PAC's breach meant that he no longer had to perform and he was owed $122.6 million.  For that amount of money, I too would be willing to not fight Logan Paul.  The fight occurred in Miami last week, organized by a different promoter.  

Image by Brian W. Schaller

Whether and how much Mayweather can recover may turn on his take from the June 6th event.  Presumably Mayweather was only going to fight Logan Paul once.  Whatever he made will be subtracted from his provable damages as mitigation.  We'll see if we hear more about this in the coming months.

H/T to ContractsProf Blog Intern Alyssa Cross (left) for research on this post.

University of Kansas Gives Basketball Coach a Lifetime Contract

Photo by Corkythornetfan
CC BY-SA 3.0

According to ESPN.com, the University of Kansas (KU) entered into a "lifetime contract" with Bill Self (pictured), the school's head basketball coach.  The contract has an interesting structure, one I'd never heard of before.  Its stated term is five years, but at the end of each year, another year is automatically added.  On any given day,  Coach Self has something less than five years remaining on his contract, and yet the contract never ends.  

Unsurprisingly, there are no links to the contract.  I suspect there are contractual outs on both sides.  According to ESPN, there were rumors recently that Coach Self might move to the NBA.  Would he thereby be breaching his lifetime contract?  If so, what would be KU's measure of damages?  

On the other side, KU has been disciplined following an FBI investigation into alleged payments to two former players from Adidas.  What contractual outs does KU have should the NCAA decide to discipline Coach Self, given that there was a finding of violations for which Coach Self bears some responsibility?  Can KU set aside the lifetime contract based on a morals clause?  What if Kansas (known to the cognoscenti as "the Jayhawks") goes winless in conference for a year?  For two years?  Unlikely, but no doubt the Mets thought they were getting a sure thing when they signed Bobby Bonilla.

TFW: Terms and Conditions Warn of "Death" and "Permanent Damage"

Last week, we covered the story of a woman who was hit by a baseball and was seriously injured at a Cubs game.  At the time she was injured, back in 2018, she was unaware that there was an arbitration clause in the terms and conditions on the back of her ticket.  Now we have a story of tickets that warn attendees that if they attend the event (UFC 261), along with 15,000 other people, they are assuming the risk of contracting COVID-19.  Buyers are not scared.  Tickets are now being sold at 20x face value.  

Here's the language:

The story concludes by noting that if somebody gets sick as a result of attendance, UFC President Dana White and the UFC "have more than made sure they are protected legally."  Well that depends on whether a boilerplate assumption of risk clause on the back of a ticket is enforceable against somebody who, for example, bought the ticket third-hand at 20x face value.

Hat tip: Stefan Padfield

Baseball Fans Aren't As Loyal As They Used to Be

In the classic scope of employment case, Manning v. Grimsley, plaintiff was hit by a fastball presumably thrown into the stands because relief pitcher Ross Grimsley had heard enough comments on his pitching abilities.  If you check his stats for that year, you'll find that he was among the league leaders in intentional torts.  But the point is, plaintiff, a Red Sox fan, did not sue the Red Sox for failure to maintain the fencing/netting separating players from fans.  Plaintiff sued the Baltimore Orioles who employed the irascible Grimsley.  

But Laiah Zuniga, injured by a foul ball at Wrigley Field, home to the Chicago Cubs, winners of the 2016 World Series, and, let's assume, many others, sued the home team!

In Zuniga v. Major League Baseball, decided last week, an Illinois Appellate Court upheld a trial court's ruling, denying defendants' (Major League Baseball and the Cubs) motion to compel arbitration.  My students in Section 4 will be outraged.  They call themselves the back-of-the-ticket readers, and they insist that they always read the fine print and will even take their business elsewhere if they don't like the terms they find there.  Ms. Zuniga would not last a day in Section 4.  She didn't read the back of her ticket, and so she did not see the warning about the need to stay alert because foul balls could come her way.  Nor did she take note of the clause providing for mandatory arbitration of disputes.  More shocking still, she did not visit the Cubs' website, where she could have read a more comprehensive version of the team's mandatory arbitration provision.  The opinion provides that arbitration agreement in full, but tbh, tl;dr.

The trial court denied defendants' motion to compel arbitration, finding it procedurally unconscionable.  Yes, you read that right.  In Illinois, a court can strike down a contract or a provision if it is substantively unconscionable, procedurally unconscionable or both.  The arbitration clause was in tiny print and thus was too difficult to read and understand, perhaps even for the intrepid members of Section 4.   

The Illinois Appellate Court agreed.  Its analysis was very context specific and detailed, akin to the "micro-analysis" that courts undertake in the context of wrap contracts, as discussed in Nancy Kim's work, about which we posted yesterday.  The court found enough procedural unconscionability in the back-of-the-ticket terms to render the arbitration provision unenforceable.  For good measure, the court also found elements of substantive unconscionability, in that plaintiff had inadequate time to opt out of the mandatory arbitration provision.  That double-whammy may be enough to deter defendants from appealing to the Illinois Supreme Court.  

If they nonetheless do so, I wonder if they have preserved an objection to the Illinois rule accepting either procedural or substantive unconscionability as sufficient to render a contract or some of its provisions unenforceable.  If any party would have the wherewithal and motivation to do so, it would be MLB and the Cubs. I can see the argument for refusing to enforce substantively unconcscionable contracts without more, although I think a court would always be able to find some procedural unconscionability if a contract is substantively unconscionable.  Why would a party agree to one-sided terms if they had bargaining power?  But if your only objection is procedural unconscionability, how are you harmed by terms that are not materially unfair?  In this case, it just doesn't seem plausible for plaintiff to argue that, but for the procedural unconscionability, she never would have accepted her ticket if she had known that her claims would be sent to arbitration.

I also wonder why plaintiff thinks she is better off in court than in arbitration.  In a court, she might come away with nothing based on assumption of risk, especially if she gets a jury unsympathetic to a plaintiff who failed to bleed Cubbie blue.  Can one request a change of venue to the South Side?  Moreover, she alleges that she was eating a sandwich that she bought at the stadium when she was hit by the foul ball.  To me, eating stadium food goes beyond assumption of risk.  It's reckless.  An arbitration is more likely to lead to some recovery, at least in my limited experience.  Thoughts welcome in the comments.

[Hat Tip to my former student, Don Dechert]

Sid DeLong, The Parable of the Peloton

The Parable of the Peloton
By Sidney W. DeLong

Cooperation and competition are the yin and yang of contract. A voluntary contractual exchange is a cooperative “win-win” transaction that produces a gain in welfare for both participants. The measure of this subjective gain is the amount by which each trader values what it receives by more than it values what it gives up. This exchange surplus is familiarly known as the “pie,” as in “making the pie larger.”

But each party to a cooperative exchange is also trying to maximize its share of the exchange surplus pie at the expense of the other. This competition does not increase the pie and is a zero-sum or even a minus-sum transaction. The parties’ efforts to maximize their personal profit may be so great as to prevent the transaction or even to tear it apart. Pie-eating contests take place openly in the negotiation of the price terms of the contract, but they can also occur throughout the performance stages of the transaction as parties seek unbargained-for advantages over each other.

The norms of contract law must mediate the opposition between its cooperative and competitive elements. Sins against cooperation are the centrifugal forces that can tear the deal apart through illegitimate competition: hence the rules about good faith, duress, and opportunistic breach. But legitimate competition in the performance of a contract is not sinful but is an expected part with the self-seeking behavior that led to the bargain in the first place.  

Contract’s yin and yang of cooperation and competition are nicely illustrated in the sport of professional bicycle racing. I recently watched the glorious spectacle of the Tour de France and was rewarded with one of the most competitive events in my memory, as always against the matchless backdrop of La Belle France. It naturally led to reflections on contract law, as what does not?

Dozens of professional riders compete to win a long-distance road race with the prize each day going to the individual winner. For most of the race, most of the competitors ride in a large group, called the “peloton.” A group of riders can go much faster than a solo rider by taking turns leading and “drafting” behind each other, reducing the aerodynamic drag on the bikes behind the leaders. Individual riders who try to win the race by speeding up and “breaking away” from the peloton usually fail because their individual talent is overcome by the efficiency of the group.

The competitors are all professional riders, under contract to ride for their sponsor. Most riders on a team are ordered to ride in support of their star rider. They attend to his needs during the race and form a protective shield around him, easing his way to the point at which he will race away to the end alone. These contractual relationships are easy to understand, and do not warrant a parable.

But sometimes, more than one rider will break away, aiming at the formation of an elite coalition of riders from different teams that can employ its own drafting benefits to outride the peloton. Once the group is formed, they ride as an ad hoc team, taking brief turns leading and then drafting in a “pace line.” A good pace line is a thing of beauty to behold, with precise timing and positioning creating a super-fast organism. A good pace line can go much faster working together than any of them can go alone and often can out-pace the peloton. The more closely they cooperate, the faster they go.

Although they may be the product of pre-race planning, the breakaway alliances are usually formed instantly and wordlessly. Breakaway “contract formation” is spontaneous, tentative, and uncertain. The “offerors” must expend significant “search costs,” little busts of energy as riders jump away and invite other riders to join them, often to be disappointed when they don’t. But if it appears that two or three strong riders will succeed, other strong riders (who have been waiting for the opportunity)  will “jump across” to join them and make the group stronger still.

The trick is thus for a select group of strong riders to find each other, to sort themselves out, to winnow out weaker riders, and to work thereafter at maximum effort for a few kilometers to gain an advantage over the rest.

The chief sin in a breakaway is shirking. Each rider must take his turn at the front and not coast along at the rear, literally free-riding on the labors of others. Sometimes the group is joined by an uninvited, parasitic rider, who takes no turns at the front because he is working in the interests of a rider back in the peloton who wants the breakaway to fail or, if it succeeds, for the parasite to capture the win.

But the dynamics of the race make shirking a constant temptation. Each rider is trying to hold something back, even at risk of slowing the group, in order to have a bit more energy left for the final sprint when he can defeat those who spent more of their energy working for the group. Blatant shirking is usually detected and chastised by the other riders, but there is little sanction they can impose.

The alliance often lasts until the final mile, when the breakaway group has a lead that assures them that one of them will be the winner. Then, however, something surprising happens: the alliance is suddenly broken, with each rider trying to move ahead of the others. “All for one and one for all” becomes “Every man for himself.” At this point, drafting is no longer a gift bestowed by the leader on the others but a burden assumed by the hapless rider who is forced to ride in front only to be jumped from behind at the finish.

The moment when the alliance breaks, when the riders move from cooperation to competition, is always uncertain but everyone knows that it is inevitable. Sometimes, when the peloton is pressing near the end of the race, the breakaway riders must calculate carefully how long to work together (necessary to ensure that they will not all be run down) before the group explodes as each breakaway rider seeks individual victory. In this critical interval, each breakaway rider must decide “Am I strong enough to go it alone from this point forward, or should I remain with the group a little longer?”

This ethical implications of this cycle from tentative agreement to trust to inevitable betrayal is understood and accepted by everyone. For a member of a breakaway to breach its tacit contract by jumping into the lead before his allies-of-the-moment is no real betrayal and is never blameworthy, because breakaway contracts are created to be faithfully performed and then to be ruthlessly broken.

 Does the parable of the peloton suggest anything about commercial contract law and its norms?

Frivolity Bonus Edition: A Cubs No-Hitter!!!!!

No reason, except that I bleed Cubbie Blue.

 

Weekend Frivolity: Sunday Celebration

It is important in these times to remember all that we have to be grateful for.  In this case, I'm grateful for talented, snarky young people who can celebrate and parody this uniquely American fusion of patriotism, religiosity, and sports.  Also, I can't get the song out of my head.

 

Sexism in Soccer or No Retroactive Bargaining?

In the movie RBG, Justice Ginsburg noted, "I ask no favor for my sex. All I ask from my brethren is that they take their feet off our necks."  For those of us who follow women’s opportunities in the workplace and beyond, it probably struck us as shocking when a judge famously dismissed the U.S. women’s soccer teams’ equal pay claim last week.

At first blush, the opinion seems very gender biased.  After all, female soccer players are said to be better than their male counterparts.  For example, they won the World Cup in 2019 whereas the men’s team did not even qualify in 2018 and has not placed in the top three since 1930 when it won bronze.  (The complaint sets forth many other wins by the women’s national soccer team not achieve by the men’s team.)

According to a Washington Post article, which cited copies of both agreements, female U.S. soccer players can sign contracts that provide an annual salary of $100,000 and additional bonuses for wins and ties.  The men do not get annual salaries, but they get larger bonuses per game — including a guarantee of $5,000 even if they lose (free version here). Under these structures, a female player who played (and won) 20 exhibition matches would receive just 89% of what a male player would get under the exact same circumstances.  If both players lost all 20 matches instead, the payment would be the same for both groups: $100,000.  However, FIFA awarded $30 million in total prize money for the 2019 World Cup, with the champion — the U.S. — netting $4 million. That's 10.5% of what the men's World Cup champions received.

Also upsetting for many was how U.S. Soccer defended itself earlier in the equal pay lawsuit filed by the U.S. Women’s National Team (USWNT), claiming that the World Cup champions’ male counterparts have “more responsibility” and their job “requires a higher level of skill.” 

Title VII prohibits employers from discriminating against any employee “because of sex.”  42 U.S.C. § 2000e-2(a)(1).  This of course also prohibits paying females less than men for the same work.  However, J. Klausner’s ruling pointed out how the men’s and women’s contracts were structured differently before agreed upon in collective bargaining.  This history, wrote J. Klausner,

demonstrates that the WNT [Women’s National Team] rejected an offer to be paid under the same pay-to-play structure as the MNT [Men’s National Team], and that the WNT was willing to forgo higher bonuses for other benefits, such as greater base compensation and the guarantee of a higher number of contracted players.  Accordingly, Plaintiffs cannot now retroactively deem their CBA [Collective Bargaining Agreement] worse than the MNT CBA by reference to what they would have made had they been paid under the MNT’s pay-to-play structure when they themselves rejected such as structure ….  One of the defining features of the WNT CBA is its guarantee that players will be compensated regardless of whether they play a match or not.  This stands in start contrast to the MNT CBA, under which players are only compensated if they are called into camp to play and then participate in a match.

In other words, the CBA was, according to the court, a contract that could not be changed after the fact when it turned out to be less lucrative overall than that for the men’s team.  In fact, J. Klausner went further and found that “the WNT has been paid more on both a cumulative and an average per-game basis than the MNT over the class period.”  Thus, he held, the WNT did not even demonstrate a triable issue that their players are paid less than men….  That seems to be debatable, but I will not do so here for space reasons.

I’m sure there are also more contractual details at issue than what I have outlined here.  It is difficult to discern exactly what is going on here.  Is this truly a matter not of gender differences, but “only” of how the initial CBAs were negotiated and drafted, or are there truly gender issues at play here, so to speak?  Comment below!

The spokesperson for the WNT noted that an appeal will be filed and, “We have learned that there are tremendous obstacles to change.  We know that it takes bravery and courage and perseverance to stand up for them.” 

Incidentally, the Equal Measures 2030 gender equality report, which collects data on gender equality, rates Denmark as the best country in which to be a woman with a score of 89.3/100. The USA ranks at number 28, tied with Bulgaria, with a score of 77.6/100. 

What you should do if you want your Super Bowl party to be able to last until 4 a.m. (hint: not this)

A recent case out of New York, PJAM Prods., LLC v. M Light, LLC, 652409/2018, stems from a Super Bowl party. PJAM licensed M Light's venue to hold a party coinciding with Super Bowl weekend. There were discussions about the party being allowed to go on until 4 a.m., even though local law required the party to shut down by 2 a.m. PJAM claimed that M Light talked about being able to get permission from the city to keep the venue open until 4 a.m.  

No such permission was ever received, however, and PJAM sued for breach of contract. The problem was there was nothing in the contract requiring M Light to get such permission. The contract required M Light to have the proper government permits for the party, but did not specify that those permits should allow the party to extend until 4 a.m., and PJAM acknowledged that the law in the city was to close by 2 a.m., so that's what the proper government permits would have said, too. There was nothing in the Agreement about M Light lobbying the city to keep the venue open until 4 a.m. 

PJAM's fraudulent inducement claim also failed, because there was no allegation that M Light was lying about its intention to lobby the city when it said that it was going to. As for allegations the M Light led PJAM to believe its connections with the city were such that the lobbying would be successful, the court called those "mere puffery." The court said it was not justifiable for PJAM to rely on M Light's statements to believe that the 4 a.m. permission would definitely be obtained; rather, PJAM was taking a risk, and there was no indication that things would have turned out differently if M Light had lobbied harder or had better city connections. 

Basically, if PJAM wanted M Light to bear the risk of the 4 a.m. permission not coming through, it should have been put in the contract, and it wasn't. The contract was integrated, with a merger clause, so the court did not allow parol evidence of this as an additional term. 

The moral of the story is: If you're signing a written contract, don't rely on oral representations different from the contract. 

The Two ships Peerless, the Two Players Brooks, and “The Deal that Never Really Was”

Dear readers:

The below guest blog was shared with us by Oren Gross, the Irving Younger Professor of Law with the University of Minnesota Law School:

Who amongst us has not taught the 1864 case of Raffles v. Wichelhaus, a.k.a. the two ships Peerless? The story of the ships (by some accounts there have been up to eleven ships bearing the same name!) has tantalized and captured the imagination of numerous generations of students learning about meeting of the minds.

You can imagine my delight when, taking a much-needed break from grading exams, I came across a modern version of the story involving three NBA teams and two players named Brooks.

The Washington Wizards, it seems, wanted to strengthen their roster by adding the Phoenix Suns forward Trevor Ariza. For its part, Phoenix was interested in Memphis Grizzlies players and the Grizzlies – in Wizards players. And so, the Wizards’ general-manager concocted a three-team trade and served as the go-between the Suns and the Grizzlies. As part of that trade, the Suns were to get two players from Memphis, namely Selden and Brooks.

Simple enough. Or so it seems. However, as Chris Herrington reported in the Daily Memphian on December 15, 2018, the deal fell apart or, in an insight worthy of contracts’ scholars, “maybe never quite was.”

The problem is that Memphis currently has not one, but two, players on its roster whose last name is Brooks. And whereas the Suns thought they were getting Dillon Brooks, the Grizzlies intended to trade MarShon Brooks. Thus, while “two Grizzlies sources confirmed to The Daily Memphian that it was MarShon Brooks, not Dillon Brooks in the deal. Media in Phoenix, however, insisted it was Dillon, not MarShon.”

As the two teams negotiated through the Wizards as the go-between, the miscommunication as to the identity of the player actually to be traded was not revealed until news of the deal leaked to the media.

The outcome? The three-team deal collapsed. As Herrington put it “the deal that never really was was nixed.”

In honor of the Red Sox, some baseball contracts

Hello! I was away at a conference last week and then the Red Sox* decided to win the World Series, which threw off all productivity for a while. As I ease back into blogging, I thought I'd link you to this piece from Business Insider, analyzing some of the terms set forth in the 2011-era version of Major League Baseball's uniform contract. I find my students always love to look at real-life contracts, and this is a nice point in the year to do it, as it's a nice way to demonstrate that they are now able to (or should be able to!) understand more of the contract than they might have on the first day of class. 

Of course, I always try to impress upon my students that contracts can be negotiated, so here's a list of some more unusual contract clauses baseball players were successful in getting teams to agree to. 

*(not the Red Sex)