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Yankees’ New Phenom: Tanaka’s First Pitch was to U.S. Immigration Agency

By [Thursday, April 10th, 2014]

Tanaka

BY AUSTIN COHEN, NYLS 2014

Masahiro Tanaka was a star pitcher in Japan putting together an impressive resume where he went 99-35 with a 2.30 ERA in seven seasons with his Japanese team, striking out 1,238 in 1,315 innings. This baseball season, however, the 25-year-old Tanaka agreed to a $155 million, seven-year deal to be the new prize pitcher in the Yankees rotation. (And if last night’s performance is any indication, he’s going to shine with his new team.)

Pitching in New York City, and specifically for the Yankees, can be a very daunting experience. However, it gave Tanaka the greatest financial opportunity as well as the competitive opportunity to play against the world’s best players. In order to get Tanaka over to spring training so he could start his new career in pinstripes, the Yankees had to get a member of Congress to intervene and expedite his visa process. Tanaka also teamed up with his agent Casey Close and lawyers with expertise in immigration law in order to facilitate the process. When it comes to foreign ball players looking to come play in the MLB, it is advantageous for the ballplayer to work with experienced immigration law professionals.

When foreign ballplayers come to the United States they usually apply for a P-1A visa. An athletic team that employs a P-1A alien must show he or she is “internationally recognized,” which the United States Citizenship and Immigration Services (USCIS) defines as “having a high level of achievement in a field evidenced by a degree of skill and recognition substantially above that ordinarily encountered, to the extent that such achievement is renowned, leading, or well-known in more than one country.” The biggest obstacle international athletes face is the “internationally recognized” test set forth above. For several of these athletes, however, this test is easily met, as long as they are signing a contract with a team within the major sports leagues in the U.S.

P-1A visas are awarded for an initial period of five years, renewable once for a second five-year period. In Tanaka’s case he signed for a 7-year contract and will have an initial period of five years on the visa and then will have to apply for an extension in order to complete performance of his Yankees contract. Moreover,  the P-1A  visa holder may arrive temporarily into the U.S., intending to depart voluntarily at the end of the contract and are required to have a residence abroad that they don’t intend to abandon. However, one with a P-1A visa may lawfully seek to become a permanent resident of the U.S.

Although the visa category requirements are quite specific, most athletes who play for major and minor league sports leagues may qualify. The P-1A visa also has benefits, because there is no limit on the number of athletes for whom a team may petition, and there is no national cap on the number of athletes who may enter the U.S. This flexibility allows teams to easily add players from abroad, assuming they encounter no difficulties from the USCIS or relevant consulate during the actual petition process. However, in 2005 Baltimore Orioles pitcher Sidney Ponson was scratched from a scheduled start and was not allowed to pitch in a game until he obtained a valid P-1A visa. Ponson was at the time on a visa waiver program, which allowed Ponson the ability to conduct business and travel to the United States for leisure for a 90-day period, but was not allowed to earn a salary in the United States. On the advice of his counsel Ponson did not apply right away for a P-1A visa because he had assault charges pending in Aruba after an altercation in which he punched an Aruban judge in the face. Ponson could have applied for the visa, even with the charges still pending. However, in order to obtain the work visa, you have to meet with an official from a U.S. and he would have been required to reveal the details of the incident. His representatives worried that the official could deny the visa request without a resolution to the case.

Like other visas available to individuals seeking to enter the U.S., the process of obtaining a visa can be time consuming, complex and stressful. Processing a P-1A visa application can take up to 30 days. With Tanaka scheduled to report on February 14, it was possible he wasn’t going to make it on time. The Yankees filed a petition for Tanaka’s P-1 with the USCIS, and wanted faster-than-normal approval of his case. The Yankees called New York Senator Chuck Schumer because they were worried about the length of time it can take for foreign players to get a visa. Senator Schumer contacted USCIS on behalf of the Yankees and requested that the pitcher’s application be processed quickly. This is something he has done previously with the New York Mets as well, when they had a visa issue with all-star shortstop Jose Reyes.

Members of Congress cannot require that USCIS approve a particular applicant’s case. However, Members of Congress can influence these administrative agencies to expedite certain cases that are under review. For the everyday applicant, expedites are typically considered only for humanitarian or pressing medical reasons. But to please the hometown fans/voters, the New York senator used his influence on behalf of Tanaka in time for spring training.  Tanaka received his visa to report to spring training on February 14, and take the mound for the first time in Yankee Stadium on April 9.  As Senator Schumer stated “As a lifelong Yankee fan who is hoping for another World Series this year, I could not be happier.”

Facing an Uphill Putt: Do Pro Golfers Have Legal Recourse Against the PGA for Banning Anchored Putters?

By [Tuesday, November 12th, 2013]

Anchored PutterBY CHRIS FRANKS NYLS ’14

The PGA Tour policy board (“PGA Board”) recently adopted rule 14-1b, which was previously adopted by the two governing bodies of professional golf, the United States Golf Association (“USGA”) and Royal & Ancient Golf Club (“R&A”). This rule “prohibits anchoring the club in making a stroke”in effect banning a putting method in which players use a long putter to anchor the end of the putter against a part of their body, usually their stomach or chest.  This putting method was used successfully to win all 4 of golf’s majors since 2011 by some of golf’s youngest rising stars: Keegan Bradley, Webb Simpson and Adam Scott. The PGA Tour has adopted this ban because it argues that anchored strokes are inconsistent with the principals of golf, an anchored stroke provides players a potential advantage, and the ban will benefit the game because it will force players to confront the “same basic challenge when they play the game.” By adopting 14-1b, which will go into effect on January 1, 2016, the PGA Board has essentially eliminated the style of putting that these and many other players rely on to succeed at their craft.  Furthermore this rule change significantly cheapens the putting skills that these players developed in the countless hours they spent practicing with an anchored putter. Players who are impacted by this are considering their legal options because this ban has the potential to impact their ability to earn a livelihood if they rely on an anchored stroke to putt.  Do professional golfers who rely on anchored putters for their livelihood have any recourse to stop this ban?

Collective Bargaining and Unionizing

The first avenue of recourse that professional golfers should consider is unionization. Professional golf is governed by the PGA Board.  Any policy that the PGA Board adopts is approved by 4 “player directors,” four independent directors, and the President of the PGA of America, Ted Bishop (9 members total). Therefore, even though players do have a voice in the decisions of the PGA Board via the player directors, they are a minority of 4 out of the 9 voting members, and can be overruled whenever the independent directors and Bishop agree.

One way to resolve this lack of player power would be for the players to unionize and collectively bargain for their interests. PGA players are likely to be considered “independent contractors,” and therefore not eligible to unionize. But there are several terms of their relationship with the PGA Tour that make their work analogous to employees, who are eligible to unionize. The Restatement (Second) of Agency, which is used by the Supreme Court and the NLRB to determine employee vs. independent contractor status, lists several factors to consider including: the extent the employer exercises control over the individuals work, the skill required by that occupation, and whether payment is provided in accordance with time spent on the job. PGA players are highly skilled, are paid for performance, and are required to play 15 events per year, undergo random drug testing, and play in pro-ams and other sponsor events.  If these factors can be used to establish that PGA players are employees and not independent contractors, a golfer’s union would benefit them in connection with not only the anchored putter ban, but all other rules governing play.

If golfers unionized they would be able to force the PGA Board to bargain over these rules because they would then have a credible threat of collective action through a strike against the PGA Tour. Players in other sports like baseball, have used strikes, such as the 1994 baseball strike to contest important player issues such as a salary cap, because of the threat the strike posed to Major League Baseball’s revenue and fan base. If pro golfers were unable to overturn the anchored club ban and went on strike, they would force the PGA Tour to decide whether an anchored club ban was more important than the potential loss of revenue and poor publicity that would follow a strike. This important labor law tool should be considered by the players as a potential tactic to help preserve players’ rights.

Antitrust

If labor law is not available to advance the players’ interest, professional golfers may be able to argue that an anchored club ban is an unreasonable restraint of trade under the Sherman Antitrust Act. The Sherman Act was implemented to ensure that business in the United States is served by free competition in trade and industry. The Act’s application has been extended to “associations which sanction and regulate professional sporting tournaments .” To succeed in an antitrust suit challenging the anchored putter ban, players would need to show that the PGA Board is part of a contract, combination or conspiracy that unreasonably restrains trade in a relevant market, and that the anti-competitive effects of the restraint outweigh any pro-competitive benefits.  This will prove difficult because courts have given considerable deference in the past to sports rule-making bodies in banning equipment.

One argument the pro golfers might make is that the PGA Board is conspiring with golf equipment manufacturers to limit the types of putters available to golfers. This tracks the equipment manufacturer’s claims in Gunter Harz Sports v. U.S. Tennis Association, which challenged the USTA’s ban on “double-strung” tennis rackets.  The court deferred to the USTA ban, even though “double-strung” rackets were preferred by players, noting the ban “bears a rational relationship to the goal of conducting organized competitions in an orderly fashion.” The court observed that “the need for collective action is inherent in organized sports,” thus requiring a rule of reason analysis for the rules and regulations of sanctioning organizations.  It then applied the rule of reason test articulated by the Supreme Court in Silver v. New York Stock Exchange:  “(1) whether the collective action is intended to accomplish an end consistent with the policy justifying self-regulation; (2) whether the action is reasonably related to that goal; (3) whether such action is no more extensive than necessary; and (4) whether the association provides procedural safeguards which assure that the restraint is not arbitrary and which furnish a basis for judicial review.”

In applying the Silver factors to the tennis racket ban, the Gunter Hartz Sports court noted that it will substitute its judgment over the powers of a governing body only if the powers used by the governing body are exercised “in an unlawful, arbitrary, or malicious fashion.”  The court  considered studies submitted by both sides to determine how arbitrary the governing body’s decision was, but eventually found no antitrust violation because the USTA’s decision to ban double strung rackets accomplished the “legitimate goal of preserving the essential character of the game.”  Affirming the Gunter Hartz Sports decision on appeal, the Second Circuit Court of Appeals endorsed the lower court’s rule of reason analysis because the “athletic association’s action serves to protect fair competition in the game and does not involve improper collusion with commercial interests or ‘an agreement with business competitors in the traditional sense.’”

In light of Gunter, pro golfers face an uphill battle in showing that the putter ban does not meet the Silver factors given the stated explanation for the adoption of rule 14-1B.  In that explanation, the USGA and the R&A prepared well for any antitrust challenge to the putter ban by detailing their objective to preserve the essential character of the game.  The explanation zeroes in on the “potential advantage”  that anchored putters create because they enable players to move and control only a portion of the club, rather than the entire club.  The explanation also devotes several paragraphs describing how freely swinging the entire club is the “essence of the traditional method of golf stroke.”  These factors weigh heavily against the players in attempting to refute the USGA and R&A’s legitimate goal of protecting fair competition in the game.

In support of the golfer’s case, several studies with large sample sizes show that only about 1/3 of players who use anchored putters think it makes putting easier. However, given the case precedent, it is unlikely that this type of data will overcome the organizing bodies’ claim that rule 14-1b bears a rational relationship to preserving the “essential character of the game of golf.”

Americans with Disabilities Act

In cases where a player uses an anchored stroke to combat a disability, such as a bad back like Fred Couples, the player may able to challenge the ban under the Americans with Disabilities Act. (the “ADA”) Title III of ADA prohibits public accommodations from discriminating against individuals because of their disabilities.  In the 2001 case PGA Tour, Inc. v. Martin, the Supreme Court held that PGA tournaments are public accommodations within the scope of the ADA, and noted that whether the PGA tour violated the ADA depends on whether a particular accommodation would fundamentally alter the nature of the game. With this rule in hand, the Court held that allowing pro golfer Casey Martin to ride in a golf cart during a tournament did not fundamentally alter the game because it viewed the game’s essence to be shot-making, not walking.

Under this analysis, however, an anchored stroke, would likely be deemed a fundamental part of the game of golf as it is a key part of shot-making, which is the “essence” of golf, according to the Court. Therefore, a disabled players’ ADA claim that the putter ban is discriminatory is likely to fail.

What’s next?

Professional golfers face several challenges in overturning the PGA Board’s adoption of the anchored putter ban. Their best chance of succeeding appears to be through unionization. Most players in other professional sports leagues unionize to accomplish their goals and it is time that PGA players consider this tactic.

Cuba allows Athletes to Sign with Foreign Teams but US law may block them

By [Wednesday, October 2nd, 2013]

Pro Golfers Behaving Badly (Towards Their Caddies) – Workplace Humiliation Law

By [Monday, July 1st, 2013]

Jessica Korda caddyProfessional golfer Jessica Korda made the news at the Women’s U.S. Open for the wrong reasons last week when she fired her caddie in the middle of a round.  She claims it was because of disagreements over club selection and strategy, but it stunned the announcers and audience, especially when she drafted her boyfriend to step in and finish the round as her caddie.  Bubba Watson similarly went off on his caddie last week at the Travelers Championship when he surrendered a two-shot lead and ultimately the tournament with his triple-bogie on 16.  The hole began with a tee shot into the drink, causing Watson to snap at his caddie: “Water. It’s in the water.  That club. Yes, the water.”  Later, after he overshot the green on the same hole, Watson berated his caddie: “So you’re telling me that’s the right yardage?”  Despite the players’ mea culpas to the media afterwards, their caddies have to live with the fact of being publicly humiliated by the boss.

These two incidents raise the question:  when does workplace humiliation rise to the level of legal concern?  Insulting or embarrassing an employee in front of other employees, clients, or the public not only makes working conditions uncomfortable, but can also lead to legal issues.  In the United States, two legal issues come to mind:  (1) Does the employee have some contractual or implied right to be free of verbal abuse and workplace humiliation?  (2) Is the abuse evidence of discriminatory treatment in violation of statutory protections?

As to contractual rights, if a caddie has a contract with his pro that limits how the pro can react or discipline the caddie, the public rebuke may constitute a breach of contract.   The PGA Tour rules may also imply an obligation of treating staff with respect, as the player handbook requires players to avoid “conduct unbecoming a professional golfer.”  It’s doubtful whether a caddie can assert rights as a third-party beneficiary under the the handbook.  However, pro-golfer misbehavior on the course has resulted in reprimands and fines, as when Tiger Woods was penalized for spitting on the 12th green at the 2011 Dubai Desert Classic.  So even if the caddie can’t demand satisfaction after being victimized by an unfair fairway outburst, the PGA Tour might come after the player.

As to statutory rights, no current U.S. law requires employers to be polite.  Employer humiliation and harassment of employees, while a bad management technique, is not illegal unless the employee is being treated differently based on age, race, ethnicity, gender, religion, or disability.  So a pro golfer’s treatment of his caddie would have to be examined for unlawful discriminatory animus.  If anything the pro said or did was motivated by the caddie’s membership in protected class, a discrimination claim could arise.

The legal ramifications of workplace humiliation may differ in other countries, a prospect of concern for athletes who tour internationally, as do most pro golfers.  Australia and Canada, for example, have enacted workplace harassment laws that impose liability for workplace bullying and verbal abuse that cause worker psychological harm.  The U.S. might not be that far behind.  At present, 16 U.S. states have proposed workplace bullying legislation that allows employees to sue their employers for creating an “abusive work environment.”  Whether caddies are protected under such laws might depend if the legislation intends to cover not only employees but also independent contractors, which is the typical status for a pro caddie.

The typical pro caddie does more than pull clubs and estimate yardage.  The caddie is often sidekick, psychoanalyst, coach, and unfortunately sometimes a punching bag.  Better behavior on the part of the golfers hopefully will avoid seeing caddies as litigants.