2017 Sports Law Hot Topics To Watch
Sign from ESPN's College Gameday at the 2016 Big Ten Championship between Wisconsin & Penn State.
In retrospect, 2016 was not half bad. Well, it was more like 60-65% bad overall, but the year undoubtedly had its moments, good and bad!
I believe in many ways that 2017 will be a continuation of things in one direction or another rather than a birth of entirely new topics, especially in the sports law realm. Part of the reason I believe this is because of the incoming US President's opinions and involvement in certain areas. Another part is due to the basic timeline of league and player contracts in the "Big Four" (NFL, NBA, NHL, and MLB) so that instead of big changes in the relationship statuses taking place, upcoming practices acting upon and interpreting those contracts will create news and continue to add to existing sentiment. Without further ado, here are six hot topics we should keep an eye out for throughout 2017:
1. The NFL vs. NFLPA Showdown
The Deflategate Saga finally met its maker in 2016, but that is no reason to brush aside the growing tension between the NFL & the NFLPA. If anything, Deflategate fructified that already strained relationship, showing that no one is immune from the commissioner's persistent wrath. 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.
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. 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. 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. 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.
2. Public Funding For Professional Sports Facilities
Source: The District Detroit website homepage.
Personally, I agree with Bill Simmons when he states at the intro to his HBO show, "I believe that billionaires should pay for their own f***ing football stadiums, " but it has been the trend for a few decades now for professional sports franchises to strike agreements with cities to fund a portion of new facility costs with taxpayer money. This trend will stick around whether we like it or not because the practice has turned into an arms-race. Team owners play it off by accentuating the so-called inevitable economic growth a new facility or "entertainment district" like in Detroit brings - construction work, facility staffing, parking fees, restaurant and retail patrons. City councils vote to approve or deny the team owners' requests. The approval processes for new professional sports facilities is one big legal dance typically filled with presentations, negotiations, and commentary. Something has changed about these processes, though.
It is hard to point to a tangible difference. The processes we saw taking place in 2016 and that are still being handled or just beginning as we enter 2017 will have long-term effects that differ from earlier in the trend. Certain cities are striving for their comeback a decade after the recession and are almost rushing through the motions to keep up in the arms-race. Here are a few example situations that will be interesting to follow this upcoming year, most of which I believe are not being handled appropriately:
Las Vegas' Arena for the Raiders: The city approved a $1.9 billion funding plan for a football stadium if the Raiders wind up relocating from Oakland. Nevada's governor signed into law a bill that sets aside a massive amount of public funds that includes the stadium project. Public funding would cover approximately 40% of construction costs (i.e., $750 million), and private funding would cover the remaining 60%. More specifically, the franchise would only cover approximately 26% (i.e., $500 million) while a local billionaire, Sheldon Adelson, would cover 34% of construction costs. It is hard to determine whether the locals truly want an NFL team, but it is clear that city lawmakers are ready for one and do not want to pass up an opportunity since Oakland lost the Los Angeles move.
Atlanta's Mercedes-Benz Stadium for the Atlanta Falcons: The stadium's website touts itself as "a model example of a public-private partnership" and actually provides a page detailing how the stadium is being funded, which is pretty cool. I appreciate the transparency and the confidence it has in its actions relative to other cities *cough Detroit cough*. Private funding will cover 70-80% of construction costs as well as construction costs overruns. Public funding through Georgia's pre-existing hotel-motel tax, which is also explained on the website, will cover the remaining 20-30% of construction costs.
Detroit's Little Caesars Arena originally for the Detroit Red Wings & now includes the Detroit Pistons: Take a look at the image at the top of this section. How could Detroit turn down or counter such a proposition?! Well, clearly, it could not resist. Little Caesars Arena, the crown jewel of the upcoming "entertainment district" in Detroit, is no doubt a work of art, but from what I have gathered, the Downtown Development Authority's (DDA's) actions during negotiations equated to total weak sauce in order to have the new infrastructure. [Note: Unlike the case in Atlanta, nothing is expressly posted on The District Detroit's website about funding. I had to find a Bill Shea article in Crain's to get the details.] Private funding by the Red Wings' owners would cover 44.4% of construction costs (i.e., $200 million) as well as anything beyond the initial $450 million estimate in construction costs plus the district's ancillary development and interest on the bonds. Public funding though property taxes in the "development district" would cover the remaining 55.6% of the construction costs (i.e., $250 million). Oh, by the way, the Pistons owner as of now will pay $0 for the stadium itself while taxpayer money is expected to increase an additional $34.5 million to finance the move. In truth, the DDA is currently being sued for allegedly breaking state law to bring the Pistons downtown. The deal is not finalized.
- Phoenix's Chase Field for the Arizona Diamondbacks: Be sure to have your popcorn at the ready because this situation will surely be a unique dramatic affair. The Diamondbacks have been playing here since 1998 when the stadium was built as the first one with a retractable roof over a natural grass field. Moreover, public funds covered more than 65% of the $364 total costs - that is $238 million in Maricopa County taxpayer dollars 18 years ago & equates to more than $352 million today given inflation! Now, the Diamondbacks are suing the county to get out of this lease and enter into a new stadium deal. Maricopa County and the team have been aruing over repair costs. The county denied the team's request for $65 million in upgrades in 2016 because, according to the county, the request does not meet the requirements for funding that their lease agreement provides. The drama appears to be even worse than the Jed York-Jim Harbaugh bad blood looking at the letters exchanged! The Diamondbacks' legal temper tantrum & the county's responses should be entertaining to follow. [click here to read the county board's letter to the team & here to read the Diamondback's president's response, both in full]
3. Transgender In Athletics
So, this was in my list of 2016 predictions as well, and while it received some focus thanks to the Olympics hype, the topic did not receive too much attention outside Caitlin Jenner. I believe that now more than ever it will be in the spotlight largely because of the president-elect and his cabinet taking office and making moves. Last year, we saw the International Olympic Committee finally embrace transgender athletes' request to compete as the gender they were not given at birth without having surgery. Meanwhile, in sharp contrast, the United States, which is so often at the forefront of social movements, could be moving in the opposite direction depending on how far our President-elect Donald Trump decides to take his word.
Lawsuits involving transgender plaintiffs who were prohibited from using the bathroom/locker room of the gender they associated with caught media attention. A federal judge in Texas went so far as to block the Obama administration's attempt to enforce "new guidelines that were intended to expand restroom access for transgender students across the country." With deep divides among the states as to how to treat this subject, surely the year where Donald Trump and his dramatically conservative band of advisers in Washington have their hands in legislation will be the year transgenders in athletics gets the discussion and care the topic is warranted.
4. College Athletes' Market Value
My friend (and fellow Wolverine!) Marc Edelman does a nice job discussing the college athletics stories to follow. So, feel free to read them. Here is the short version: the O'Bannon case was not the end-all, be-all for college athletes fighting to receive their value. Jenkins could have broader implications implementing a free-market model, and I believe this route is the more appropriate route compared to the employee status route that some student-athletes are electing to follow.
5. The Fantasy Sports Industry's Evolution
All we want is clarification in the law. Some states are answering our plea while others are either taking two steps forward followed by one step back or passively waiting for federal clarification that will be a long time in the making because they are afraid of ticking someone off. Our 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. Who knows!
6. Electronics & Technology as the Source of Competition
If you have flipped through your TV guide in the sports channels, you have most likely seen drone racing and e-sports competition broadcasts on a major network that happens to be the king of sports programming (or so it would argue). Both the Drone Racing League and e-sports have courses being paved and arenas being built for their growing followings here in the United States. Colleges out west are beginning to give out athletic scholarships for e-sports student competitors. League of Legends, a worldwide e-sports phenomenon, sold out Madison Square Garden! To be honest, I do not know a lot about either of these competitions so I cannot form an educated opinion yet on whether these competitions fit the definition of a "sport", but you can bet that I am going to start learning.