Reflecting on My "2017 Sports Law Hot Topics To Watch" Predictions
If Deflategate's courtroom battles placed "sports law" into mainstream conversation in 2015-2016, then 2017 gave sports law an entire fleet of those Wacky Waving Inflatable Arm Flailing Tubemen [Note: If you do not understand the reference, I encourage you to click the link.] As we step - no, run - into a new year embracing all the change that is more likely than not going to occur, I would like to put the past twelve months into perspective and reflect on what I predicted would be the sports law hot topics to watch in 2017, what happened and what did not, and see whether the topics attained some means of closure. All in all, I can proudly say that my umbrella picture that 2017 would be a continuation of prevalent sports law trends was pretty accurate.
1. The NFL vs. NFLPA Showdown
Maybe this topic was pretty easy to highlight as being of growing interest because of the NFL's popularity here in the United States, but I'm going to cite myself here to prove a point about the tension between these two parties: "Everything the world witnessed in 2016 - big or small - from the virtually ineffective domestic violence policies to silly fines will continue to be newsworthy and, at a deeper analytical level, show just how powerful the league was in its collective bargaining in the 2011 agreement and how the NFLPA has a tricky job representing players collectively."
WHERE DO I BEGIN? Let's move quote by quote through my predictions & see how neatly 2017's events fit.
"Both parties have been receiving public backlash for their legal strategies, representations, and stances (or lack thereof) as of lately as the public begins to learn about the CBA language and the legal interpretation that follows."
This year, the most highly publicized professional football court case concerned Ezekiel Elliott. Elliott was accused of, but never charged with, domestic violence in our legal system. The NFL then launched an investigation into the claims that lasted so long that the average fan likely even forgot it was happening. More than a year later, the League handed him a six game suspension for violating the CBA, which has attached to it a domestic violence policy that has received some inconsistent interpretations and applications over the course of its existence. After each side filed motions on motions on motions, Elliott ultimately served the six-game suspension, but the whole debacle added fuel to the already-rising flame.
"We know there will be more discussion as to the seemingly unlimited commissioner power to do what he believes is necessary to protect the integrity of the game against conduct detrimental."
Elliott's case was one of many cases that places commissioner power, specifically within the NFL as opposed to that in other professional sports leagues, in the hot seat. Notably, it is not the NFL Constitution and Bylaw's language per se that is receiving so much attention besides the fact that the language is equivalent to the "law" of professional football and, therefore, gets interpreted and applied in legal analysis. Rather, it is this particular commissioner's use of the power that is being scrutinized. Roger Goodell is a controversial figure who has made headlines regarding numerous player disciplinary determinations, the "National Anthem" peaceful protests across the country, and the fight with infamous Dallas Cowboys owner Jerry Jones. Article VIII of the NFL Constitution and Bylaws is getting analyzed at new lengths by sports attorneys everywhere (myself included), and those outside the legal field are becoming well-versed in the contractual details as well. There is more demand to become informed about commissioner power, which I think is a really cool thing. People are not simply satisfied to know about how the game is played on the field. Fans are craving a deeper understanding of the business of sport, the politics of sport governance, and the sources of why things are the way they are and whether anything should change about how the power is used or the source of the power - the rule - itself.
"We know there will be more discussion as to the adequacy of representation the parties have, especially relative to what Adam Silver and Michele Roberts have been able to accomplish for the NBA and the NBPA by learning from the parties' past actions."
This year, the union player leaders unanimously voted to keep DeMaurice Smith as the NFLPA Executive Director, and the committee of owners voted to extend NFL Commissioner Roger Goodell's contract. Both parties decided to keep who will represent them at the negotiation table when the collective bargaining agreement expires next year. To those of us on the outside, it might seem a bit odd that both sides voted to maintain the status quo within their respective entities because Goodell and Smith have outright messed up or have fallen short in representing their respective entity's best interests at one point or another. From a strategic perception, it makes sense. Keeping someone familiar who has been through the battles in the current CBA's lifetime is definitely a positive because everyone can sense that major issues will need to be addressed this time around.
"We know there will be more controversial events that unfold. We know there will be more denial by the league as to what it knew and when it knew it. We know we will dislike commissioner Roger Goodell even more. All we need to do is sit back and observe."
100% true. There is no denying it.
2. Public Funding For Professional Sports Facilities
Some beautiful new stadiums and arenas opened this year. Professional sports franchises and clubs are emphasizing the "fan experience" now more than ever and are spending a lot of money in doing so, and the split private-public funding trend further ingrained itself into our accepted sports and entertainment culture. A big, fat question mark remains, though: Is it all worth it? All the taxes, the increased ticket prices, and the increased concession prices (in nearly every case except Atlanta) are a major cost for fans and citizens to pay when they may not see an immediate benefit. There is a chance that they may never see any identifiable benefits, and if they do, it may not help the franchises' and clubs' cause.
For example, Detroit Pistons and Detroit Red Wings ticket prices are higher than in recent years because the teams moved into their new shared home, Little Caesars Arena. That home will cost taxpayers a great deal for the next couple decades if all goes well, and it costs more once you are inside the LCA as well. Despite its undeniable beauty, neither team can fill the stadium. In fact, I was part of the largest crowd at LCA when I attended the District Detroit NCAA Men's Basketball Games featuring the University of Michigan vs. the University of Detroit Mercy and Michigan State vs. Oakland University. Let me reiterate that - college basketball brought more people into the stadium than the Red Wings and Pistons home openers when there was so much hype about the new arena. Both teams' quality of play is so, so low that no one wants to go to the games for the price tag, and if they do, it is more or less to see the new arena, walk around the concourse, eat at one of the restaurants within it, and not plan to return for a while until the teams are good or a sick concert swings by.
3. Transgender In Athletics
As it turns out, I was a bit off on this one. I thought for sure this would be the year where, collectively, this group would press forward and make strides toward equality in sport at the very least, but aside from a couple of instances, this sports law topic wasn't so hot. We saw a handful of high school cases similar to those in 2016 where high school transgender athletes sought to participate in competition with the gender they were not identified at birth as being a part of.
I would say the most important story relating to transgender in athletics this year was Jillian Bearden being the first female transgender cyclist in U.S. Cycling. After her transition from male to female, she became the first professional cyclist to compete in a U.S. peloton. Bearden's story is so critical to this topic because (a) many people and entities are noticeably uncomfortable with the concept of someone with a male body composition competing against women, even after hormone treatments, (b) we are talking about the highest level of competition for cyclists accepting a transgender athlete without discounting her performance, and (c) cycling has been receiving a lot of critique for its numerous doping scandals, and we should applaud it from not backing away from taking a step toward human equality, which is something that could be a turn-off for many people.
4. College Athletes' Market Value
Just when the discussion about whether student-athletes should be allowed to receive some form of compensation beyond their grant-in-aid and tiny stipend (for Division I student-athletes) seemed to get stuck in a carousel going around and around without offering solutions attractive to all parties, one of the biggest bombs dropped with hours notice on a random Tuesday morning in October. The FBI filed federal charges against ten individuals for their alleged involvement in fraud and corruption schemes in college basketball. These allegations are huge and prove that some of the more popular student-athletes have market value so high that people would go to illegal lengths to benefit from it. This has the potential to force change in the collegiate athletics business model whether it be through the NCAA's "voluntary" actions, through federal legislation, or through a federal judicial holding influencing the model prospectively. Everyone knew that to some extent some college basketball players were getting paid to attend a particular school - everyone except the NCAA itself, supposedly - but now we have numerical values, planned endorsement deals, and facts to work with in developing a functioning, regulated model that could work to all parties' benefit. I could never have predicted that federal crimes may be the final thorn in the NCAA's obsolete "amateurism" ideal, but oh boy, I am anxious to see what develops within the story and beyond.
5. The Fantasy Sports Industry's Evolution
I wrote, "All we want is clarification in the law." Well, what we have not witnessed already, we are going to get, folks. States passed laws at a booming rate in 2017 that legalize fantasy sports and sometimes even expressly daily fantasy sports contests. Heck, we may even see legalized sports betting as part of the industry's evolution relatively soon. Where I went a bit amiss was in the part of my reasoning where I quickly mentioned how "[o]ur next president with his close business ties and history may be the one who gets rid of or amends the Professional and Amateur Sports Protection Act and who settles some of the fantasy sports legality questions we have," but it is not totally off! PASPA's future is in the Supreme Court of the United States' hands now in Christie v. NCAA after oral arguments took place in December.
If you are interested in this hot topic, Legal Sports Report is a marvelous resource where you can see what states are enacting laws one way or the other, the status of fantasy sports and sports betting, generally, and relevant news stories big and small. Dustin Gouker & his website should be your go-to source. Plus, he can be pretty witty on Twitter (@DustinGouker).
6. Electronics & Technology as the Source of Competition
2017 was a truly awesome year for this topic. Esports, generally, is mainstream. ESPN has a page dedicated to it on its website and writers who solely write on the industry, the NCAA is exploring whether it can take collegiate esports under its umbrella and govern it nationwide as a varsity sport (because it sees how profitable it could be, naturally), and we saw new levels of competition and new games emerge. Colleges across the nation are developing programs dedicated to gaming at an aggressive rate that range from varsity status to clubs to class offerings. Riot, the League of Legends developer, restructured the North American region's league and competition structure, which we get to see play out in 2018. Blizzard, the developer of Overwatch, created a league from scratch that will start its inaugural season in a matter of days. The Drone Racing League gained momentum in establishing a "professional" level and returned for a second season on ESPN. Oh, and I cannot forget to mention that esports attorney Bryce Blum founded the first law firm dedicated to esports, ESG Law (Electronic Sports and Gaming Law, get it?)!