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All Bets Are Off: Future of Sports Gambling in New Jersey in Doubt

By [Thursday, May 8th, 2014]

NJ Sports GamblingBY ANTHONY COHEN, CLASS OF 2015

The Professional and Amateur Sports Protection Act defines the status of sports betting throughout the United States. The federal law allows the states of Nevada, Oregon, Montana and Delaware to have various forms of sports gambling, while keeping sports gambling out of other states. These four above states all had some form of sports gambling at the time PASPA was passed and were allowed to continue the sports betting programs. However, the 3rd U.S. Circuit Court of Appeals in Philadelphia has ruled that New Jersey’s sports betting law conflicts with federal law and will not allow the state of New Jersey to proceed with sports gambling.

In the above case, the court halted New Jersey’s efforts to legalize sports gambling, upholding a ruling that New Jersey’s betting laws conflict with the PASPA and therefore cannot be implemented. The majority in this case held that as a matter of constitutional law, New Jersey’s betting laws must yield to the PASPA.  The Supremacy Clause of the U.S. Constitution states that federal laws shall prevail over state laws and that is the reason for the majority’s holding in this case.  Conversely, the dissent in this case stated that PASPA attempts to implement federal policy by telling the states they may not regulate an unregulated activity and Congress does not have that power.

The NFL, NBA, NHL, MLB, and NCAA all sued the state of New Jersey last year, claiming that the New Jersey betting law harmed the integrity of the game. The difference between New Jersey and the aforementioned states with sports betting laws is that unlike New Jersey, the other states had already implemented state betting laws prior to PASPA being passed.

Does the Federal Government have a specific interest in protecting the integrity of the game? Does the PASPA violate the authority of state legislatures under the 10th Amendment?

The 10th Amendment of the U.S. Constitution protects state sovereignty. State sovereignty is protected by granting states power that was not prohibited by the Constitution. The Supreme Court has declared laws in the modern era unconstitutional that compel states to enforce federal statutes. However, the Federal Government can regulate state activity under The Commerce Clause. The Commerce Clause authorizes Congress to regulate commerce in order to ensure that the flow of interstate commerce is free from local restraints imposed by various states. A state has the right under the 10th Amendment to regulate its domestic commerce. However, that right must be exercised in a manner that does not interfere with, or place a burden on, interstate commerce, or else Congress may regulate that area of domestic commerce in order to protect interstate commerce from the unreasonable burden.

New Jersey has the largest gaming capital on the east coast within its state border known as Atlantic City. Atlantic City is one of the most popular tourist destinations in the United States with over 30 million visitors a year and $1.7 billion dollars in investments in casino resorts. It is likely these casino resorts would produce even greater revenue to the state of New Jersey with the addition of sports betting in the casino resorts.

It would appear that the major sports leagues do not want the state of New Jersey to profit from their respective activities and the leagues claim integrity of the game would be harmed. Sports betting is a legal activity in states like Nevada and Congress has not acted under the Commerce Clause to invalidate Nevada state law. This can be considered as evidence that the Federal Government viewed sports betting as an activity that can be regulated by state legislature. Should the state of New Jersey be treated differently solely because it did not have state laws allowing sports betting prior to the enactment of PASPA?

Gov. Chris Christie has already appealed to the U.S. Supreme Court on behalf of New Jersey. However, the odds are not in Gov. Christie’s favor due to the fact only 100 arguments are agreed to be heard out of 10,000 petitions. Nevertheless, the Court of would have to decide where the line between Federal and State Governments is drawn, which has historically been a keen issue. By resolving this constitutional law issue, the Court can determine if all sports bets are off in the state of New Jersey.

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.”

After the Whistle Blows: Criminal Liability in Sports Law

By [Tuesday, March 25th, 2014]

Colorado Avalanche v Boston BruinsOn December 7, 2013, Shawn Thornton of the Boston Bruins sucker punched Brooks Orpik of the Pittsburgh PenguinsThe result is that the National Hockey League (NHL) gave Thornton a 15-game suspension for the hit. Will a prosecutor press charges?  Probably not.  The media fully covers when athletes get charged with crimes like domestic violence, rape and murder.  But they do not always pay attention to excessive violence in sports, because that is not a crime.  Excessive violence includes hits that are unrelated to the game and hits that are outside the scope of the game, and they should be crimes.

Athletes should be subject to the criminal justice system, not just for criminal behavior off the field (rape, murder, dog fighting); rather prosecutors should be able to bring charges against athletes who are criminally violent on the field.  Prosecutors should not be able to bring charges for any and every hit, as they should not interfere with the game.  Instead, they should have guidelines to follow in order to press these charges, such as the proposed Sports Violence Act of 1980.  The point of the Act was to protect athletes from excessive violence in the game, and provide prosecutors with guidelines to exercise their discretion in bringing criminal charges against game-time conduct, to ensure even-handed enforcement of the criminal laws.  Without these guidelines, prosecutors who press charges for game-time conduct might be criticized for interfering with the game or the leagues’ own discipline.

But the Act never passed, and the result is an even greater disparity in treatment of game-time versus off-field acts of aggression.  Currently, an otherwise criminal act in hockey results in a mere 2- or 5-minute penalty, while athletes who commit similar acts outside the game risk convicted of a crime and incarceration.  For example, former footballer, Alonzo Spellman, served 1 year in prison for simple assault when a similar act on the field would have been met with at most a flag and a fine.  Former baseball player, Milton Bradley spent almost 3 years in prison for assault with a deadly weapon, when stabbing someone with his spikes during a game would at most have resulted in him being ejected.

Aside from the lack of guidelines for bringing charges against athletes, another problem with applying criminal law to sports is that athletes consent to the expected behavior in the game and assume the risks that are inherent in the game they are playing.  However, they should not be expected to assume the risk and consent to hits and injuries that are not inherent in the game.  When an athlete acts beyond the scope of the game, whether it is swinging a hockey stick at a player’s head, tackling someone after the play is over or tackling someone who is totally separate from the play, that athletes should be open to criminal liability.

Athletes are often considered role models for our youth.  In fact, Kadence Otto, in an article from the Journal of Legal Aspects of Sport, writes that “[s]port sociologists have noted that sport is a microcosm of society; namely, the behavior exhibited by athletes is reflective of the behavior exhibited by those in society in general.” People look up to athletes as people they would like to emulate, so when athletes commit any crimes, on-field or off-field, they should be punished, as anyone else is, to show that this is not proper behavior.  People use sports to help them decide how to treat others, how to conduct themselves, and even when illegal conduct is okay if it gains them undue advantages.  For some reason though, we ignore the criminality of something when it happens on the field.  While under the protection of their uniforms, we pay no mind to athletes’ otherwise criminal acts.  It then becomes okay for a person to act beyond the scope of the rules of the game as long as they are within the confines of the game.  Jeffrey Standen in Taking Sports Seriously: Law and Sports in Contemporary American Culture, notes that “The philosophy behind criminal law is based on society’s need to be free from harmful conduct.”  While “society” is not usually in harms direct way during a sporting event, one could argue it is indirectly in harm when children look up to their role models.  Society can also be directly harmed when on-field violence escalates, and makes its way into the stands, especially in basketball, where brawls have broken out.

We should not expect athletes to act like people they are not just because they are role models.  The role they are modeling, though, is professional athlete.  According to Standen, “Athletes display the athletic virtues:  diligence, perseverance, the value of training, fair play and sportsmanship, grace under pressure, and the pursuit of excellence.  The best of our athletes exhibit these virtues abundantly, in full public display.”  We should, however, expect them to be treated the same way as everyone else.  Just as anyone else who commits a crime at work should be charged with that crime, so should athletes.  Says Standen, “We can’t fairly ask our sports stars to be especially kind or honest, but we can ask them to exhibit good sportsmanship and a commitment to fair play.”  When they fail, we should be able to fairly expect them to pay for their actions, just as the people looking up to them have to do.

Cuba to the Major Leagues: A Home-Run Solution!

By [Tuesday, November 19th, 2013]

Cuban baseball playersBY AUSTIN COHEN, NYLS ’15

With Cuba’s relaxing of restrictions on ballplayer movement, now is the time to reconsider federal legislative and Major League Baseball policy restrictions on encouraging Cuban participation in Major League Baseball. Relations between Cuba and the United States have remained contentious at best in the past 50 years. However, baseball has been one constant thread that has ultimately connected the two countries. Major League Baseball has a rich tradition of great Cuban ballplayers ranging from past players such as Luis Tiant and Tony Perez to current stars such as Yasiel Puig and Yoenis Cespedes. Unfortunately for Cuban ballplayers, the United States placed an embargo on Cuba after the 1959 Cuban revolution that put restrictions on the country directly affecting baseball.

However, there is reason to be optimistic as Cuba recently announced that it is going to allow Cuban ballplayers to play overseas in Europe and Asia. Commissioner Selig and Major League Baseball should work relentlessly with Cuban authorities on reaching an agreement that would also allow Cuban ballplayers to play in the United States. Today, Cubans that wish to leave their homeland face significant risks. However, if an agreement were to be reached, those risks could be limited. This will result in a more reasonable and safer pursuit of happiness for Cuban ballplayers who aspire one day to play Major League Baseball in the United States.

Since the revolution in 1959, more than a million Cubans have fled to the United States in pursuit of a better life. Fidel Castro, the leader of Cuba, replaced professional baseball with an amateur Cuban national team that emphasizes Cuban pride and revolutionary ideals. Cuban ballplayers are paid a salary that is comparable to the earnings of the majority of the labor force. In 2005, the monthly government salary of Cuban baseball players ranged from the equivalent of approximately $10 to $15 per month. The extremely low salaries leave Cuban ballplayers eager to leave Cuba and chase the dream of playing in the MLB and garnering multi-million dollar contracts.

After the revolution, the United States placed an embargo on Cuba. Specifically relating to baseball, the embargo prohibited Major League teams from scouting any player in Cuba. In 1977, Major League Baseball added complications for Cuban ballplayers that wished to play in the Majors by instituting the “Kuhn Directive” which provided that United States teams could not recruit from Cuba or negotiate with Cuban players who were in Cuba. In June of 1999, the Los Angeles Dodgers was the first team to violate these rules when they were caught scouting in Cuba. As a result, the Los Angles Dodgers lost the contractual rights to Josue Perez and Juan Carlos Diaz and MLB fined the team $200,000.

The fact that Cuban ballplayers have to become residents of another country before signing with a Major League team is another reason why the current rules should be changed. To be able to sign with a major league team of choice, a Cuban ballplayer must first flee Cuba and establish residency in another country before coming to the United States. If the Cuban ballplayer comes straight to the United States, that player must enter the baseball’s amateur draft, which prevents the player from negotiating the terms of a contract that he wants and with the team of his choice. The amateur draft limits both the amount each drafted player can be paid and when the player can enter the league, as the draft occurs only once a year in June. For talented Cuban players entering the draft means that millions of dollars are potentially lost as well as precious time wasted.

Castro has not made it easy for Cuban ballplayers, as Cuba has implemented tough immigration laws that restrict Cubans from traveling or immigrating to another country. In 1991 Rene Arocha became the first Cuban ballplayer to defect to the United States. Since then, over 200 Cubans baseball players have defected from Cuba in hopes of chasing the same dream. It is inevitable that Cuban ballplayers will continue to defect but defecting is extremely dangerous. Defecting is dangerous because of the possibility of being captured and being sent back to Cuba. Also, it is dangerous because of a multitude of factors such as the small boats and rafts that are commonly used, stormy weather, shark infested waters, and lack of food and water.

The story of Orlando “El Duque” Hernandez illustrates the dangers of defecting and the difficulty for Cuban ballplayers of negotiating  a fair contract with a team that they want. Hernandez, along with seven others, defected Cuba for the United States in a small sailboat. After 4 days on sea, the boat was damaged and sharks started circling. Hernandez and the others were forced to stop in the Bahamas where the U.S. Coast guard delivered the entire party to the Bahamian authorities. After lengthy negotiations and persuasive arguments from people in the Hernandez camp, everyone including Hernandez and his wife were offered asylum in Costa Rica, which allowed Hernandez to negotiate as a free agent. After two months in Costa Rica, Hernandez entered the United States and signed a four-year, $6.6 million contract with the New York Yankees. Hernandez went on to win four World Series champions and will always be remembered in New York as a clutch postseason pitcher. There are many other cases similar to Hernandez that exemplifies the dangers and struggles it takes for a Cuban ballplayers trying to make it to the Major leagues.

The recent shift in Cuban policy has had a positive impact on Cuban baseball players and their ability to freely leave Cuba. Commissioner Bud Selig and Major League Baseball should repeal the Kuhn Directive and announce a policy encouraging scouting and negotiating with Cuban players who are still in Cuba. Such an agreement would be consistent with the 2009 U.S. lifting of certain restrictions on travel to and communications with Cuba.  The MLB revised policy could avoid problems with the U.S. prohibition against transactions involving Cuban nationals by continuing to prohibit actually signing players who are still in Cuba.  Major League Baseball and its teams could then help facilitate safer travels from Cuba to the United States for these players. Moreover, the agreement should also allow Cuban ballplayers to become free agents instead of having to enter the amateur draft if they come straight to the United States. Without these changes, Cuban ballplayers will continue to risk their lives and go through the difficulties of making it to the United States because the promise of baseball in America and multi-million dollar contracts are too much to pass up. With these changes, the world might be reacquainted with Cuba as a country rich in baseball.

If found to be A-Roid, is Yankees Contract Void?

By [Sunday, November 17th, 2013]

RodriguezBY TREVOR KILDUFF, NYLS ’15

Alex Rodriquez (A-Rod) is quite the mercurial figure; he either inspires fervent admiration or deep-seated distaste.  At no time has that statement been truer than now.  A-Rod is in the midst of appealing a 211 game suspension handed down by Major League Baseball (MLB) for his alleged use of performance-enhancing drugs (PEDs) and his connection with  Biogenisis.  The suspension raises the issue of the future of A-Rod’s contract with the New York Yankees.  If the suspension is upheld, then the Yankees are going to look to void A-Rod’s contract, a contract that still has 4 years and $114 million left on it.

While this may seem like a dream come true to Yankee fans and the organization itself, that is exactly what it is, a dream.  There is no MLB precedent for voiding a players’ contract for PED use.  The MLB drug policy for PEDs provides for a 50-game suspension for a first violation, a 100-game suspension for a second violation, and permanent suspension (lifetime ban) for a third violation.  However, the drug policy does not permit voiding a player’s entire contract when, as in A-Rod’s case, he has never tested positive for PEDs, and is being disciplined for the first time.

The Yankees may try to void the contract by relying on helpful language in the MLB Uniform Player Contract, the mandatory agreement between each player and his team.  Paragraph 7(b)(1) allows a team to terminate a contract

  • if  the Player shall at any time . . . fail, refuse or neglect to conform his personal conduct to the standards of good citizenship and good sportsmanship or to keep himself in first-class physical condition or to obey the club’s training rules.

Paragraph 3(a), titled “Loyalty,”  further states

  • The Player agrees to perform his services hereunder diligently and faithfully, to keep himself in first-class physical condition and to obey the Club’s training rules, and pledges himself to the American public and to the Club to conform to high standards of personal conduct, fair play and good sportsmanship.

The team could rely on this language to show that A-Rod breached his contract by “failing to obey the club’s training rules” prohibiting use of PEDs.  The team could also claim that the use of PEDs go against ‘the standards of citizenship and good sportsmanship.”  While this argument relies on sound logic it is unlikely to be successful due to the fact that no MLB contract has ever been successfully voided on the grounds that PED use violated these contract provisions.

The Yankees could also argue that A-Rod’s use of PEDs made him more injury prone.  The UPC’s “Player Representations” include that, “The Player represents that he has no physical or mental defects known to him and unknown to the appropriate representative of the Club which would prevent or impair performance of his services.”  It has been proven that using PED’s can lead to physical impairment, and in particular weakening of the tendons.  This argument may hold some weight because of the medical proof behind it coupled with the fact that A-Rod has in recent years suffered through a series of serious injuries, most notably his hip.  Again however this argument is still weak because A-Rod’s hip injury has been linked to a congenital deformity and he regained his health sufficiently to return to his usual roster position with the Yankees at the end of the 2013 season.  His previous health issues, once fully resolved, are likely to be immaterial when evaluating whether the Yankees owe him the remaining money on his contract.  Again, no contract in baseball history has been successfully voided due to health concerns from steroids.

What also helps A-Rod’s case in this situation is that all MLB players are represented by the MLB Players’ Association.  This union is considered the most powerful union in professional sports and has been able to stop or reverse the decision to void contracts in a number of circumstances, some being more serious than even the use of PEDs.  For example: Lamarr Hoyt, a pitcher for the Chicago White Sox during the 1980’s.  He was arrested three times for drug-related incidents.  After his third arrest MLB imposed a lifetime ban from baseball and the White Sox attempted to void his contract.  However, after the initial ruling of a lifetime ban the case went before an arbitrator who reduced the ban to 60 games, and reinstated his contract.  The arbitrator was swayed by the findings of psychiatrist Dr. Thomas Rodgers who diagnosed Hoyt’s drug episodes as the result of a sleep disorder known as intractable insomnia.  While the Hoyt situation is not necessarily analogous to A-Rod’s case, it does help to show how difficult it is to void a player’s contract, no matter what the infringement.

The only contract of an MLB players that has been successfully voided over the last 30 years was that of Shawn Chacon, when he was with the Houston Astros.  The incident that led to the voiding of Chacon’s occurred in 2008.  Chacon was trying to speak to Houston Astros General Manager, Ed Wade.  Wade asked Chacon to have the conversation with him in private in his office, and Chacon refused.  This led to a heated argument that culminated in player Chacon grabbing GM Wade by the neck, forcibly throwing him to the ground and not allowing him back to his feet.  As a result of this physical confrontation, the Astros voided Chacon’s contract.  The MLBPA’s appeal of the club’s action was rejected.  So short of choking your employer it is very difficult to void a player’s contract.

And even then, attacking your boss doesn’t necessarily justify voiding your contract; just ask Latrell Spreewell, a basketball player for the Golden State Warriors who choked his coach at the time, P.J. Carlesimo.  At first the Golden State Warriors looked to void his contract and David Stern (NBA commissioner) agreed.  However, an arbitrator reduced this discipline to 7 months without pay and Spreewell was able to obtain the rest of the money left on his contract.  The arbitrator in the Spreewell case, John Feerick, explained his ruling based on the fact that the lifelong ban for Spreewell had no precedence, and was harsh and unfair.  While it occurred in a different sport, Mr. Feerick’s decision bodes well for A-Rod.  It shows that arbitrators do not take the issuance of lifetime bans lightly and, when no precedent exists for a ban, it will be difficult to uphold one.

PED use goes against what the principles of fair play and good sportsmanship that the MLB and the Yankees strive to promote.  However that fact should not be enough to allow the Yankees to void A-Rod’s contract when there is no legal precedent in any sport for such an action.  The fact that nearly every lifetime ban of a professional athlete has been reversed will embolden an arbitrator to relieve the player of such a penalty, as well as to reinstate any contract the team attempts to void.  While A-Rod’s use of PEDs is inexcusable, the Yankees will not and should not be successful in any attempt to void his contract based on the dearth of legal precedent and inconsistency with the disciplinary options in the MLB’s drug policy.