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Fall came, and with it the full bloom of America’s obsession with major league sports. So we invited the franchises’ top legal officers and a few sports law specialists to their own skirmish. From drug testing to salary caps to the challenges posed by the Internet, they spoke about the sparks that fly when business and law collide with America’s favorite pastimes — and gave tips on how aspiring lawyers might someday join their ranks. Our sportsmanlike participants met September 13 at the Coleman Center in midtown Manhattan and included, from the leagues: Gary Gertzog of the National Football League; David Zimmerman of the National Hockey League; and Joel Litvin and Jamin Dershowitz, GCs of the National Basketball Association and the Women’s National Basketball Association, respectively. Rounding out our team: Bob Berry, professor at Boston College Law School (who’s advised, among others, the legendary Larry Bird), and Robert Raskopf, partner at New York’s White & Case (who advises ESPN and the NFL, among many other clients). Assistant editors Kelly Choi and Amy Fantini served as referees. An edited transcript of the groupthink follows. CORPORATE COUNSEL:Let’s talk a bit about drugs and athletes. It was big news during the Summer Olympics. It’s been very controversial in the major leagues, when, say, Mark McGwire took the over-the-counter drug Andro and other athletes routinely take the over-the-counter drug Creatine. Where do leagues — where do league lawyers — draw the line? How do they evaluate prescription drugs, illegal drugs, over-the-counter drugs? JOEL LITVIN, EXECUTIVE VICE PRESIDENT, LEGAL AND BUSINESS AFFAIRS, NATIONAL BASKETBALL ASSN: In the NBA it was only in the most recent contract we signed with our players association that our drug program covered performance-enhancing substances; it now covers a whole list of steroids. The penalties for using these substances aren’t quite as extreme as they are for using cocaine or heroin, for which you are automatically kicked out of the league for at least two years. But if you’re detected using any performance-enhancing substances, you’re subject to severe suspensions and placed into a treatment program. CC:Does punishment vary depending on which performance-enhancing drug is used? LITVIN:No, it depends on how many times you’ve been caught. In the case of steroids it’s a five-game suspension the first time you test positive; then it’s a 10-game; then it’s a 25-game suspension. We don’t have any reason to believe that our players are using steroids. But we and the union agreed that, because of the competitive and the health issues, there was no good reason not to include those substances in our drug program. JAMIN DERSHOWITZ, GENERAL COUNSEL OF THE WOMEN’S NATIONAL BASKETBALL ASSN. AND ASST. GC OF THE NATIONAL BASKETBALL ASSN:Because it’s a moving target, we have a panel of experts who can periodically add to the list of prohibited performance-enhancing drugs. CC:How about in the NHL? DAVID ZIMMERMAN, SENIOR VICE PRESIDENT AND GENERAL COUNSEL, NATIONAL HOCKEY LEAGUE:The worst of the prescription drugs are closely monitored by team doctors; they file reports with us, etc. But I don’t think any of the leagues come close to barring the range of substances that the Olympics do. The Olympics list is one of the most inclusive I have ever seen. LITVIN:It includes caffeine. ZIMMERMAN:I don’t think anybody sitting at this table could pass an Olympics drug test right now. That’s putting aside the worst 200 drugs you can think of. The Olympics list includes every cold medicine. I’m sitting here drinking a Diet Coke this morning … Anybody who had a cup of coffee — we all fail. That list is extremely, extremely onerous. The first time our players went to the Olympics, we worked to educate them to avoid embarrassing situations. Because the headline wouldn’t be: “Hockey Player Thrown Out of Olympics for Having a Cup of Coffee.” It would be: “Hockey Player Thrown Out for Failing Drug Test.” PLAYERS BEHAVING BADLY CC:How about misconduct on the field: Latrell Sprewell was out because of choking his coach. Roberto Alomar spat in the face of an umpire and was suspended for five games. Dennis Rodman was suspended for 11 games for kicking a cameraman. Are leagues developing standardized penalties, or will it always be handled on a case-by-case basis? ZIMMERMAN:I counted two NBA players in that question … [smiles at Litvin] LITVIN:In the NBA, under the uniform player contract, the players agree that for on-court misconduct a player can be fined up to $35,000 and suspended. There’s no limit to how long that suspension can be. But the player has the right to appeal. I should make the point — and this has been a critical part of our labor agreements for many years — that when it comes to on-court misconduct, a player has the right to appeal only to the commissioner. He can’t get an appeal in front of an independent arbitrator, which is the case with off-court misconduct. The reason for this distinction is simple. For the sake of the image and integrity of the game, it has to be that the commissioner controls what goes on in the court. If we were in a situation where an arbitrator was making a decision, for example, as to whether a player’s flagrant foul should result in a three-game suspension or five-game suspension, we’d have lost control of our sport. CC:And Sprewell? LITVIN:His incident took place during a practice. It was not, therefore, on-court conduct, and that’s why he had a right to appeal before an arbitrator [dean John Feerick of Fordham Law School in New York]. Had the incident occurred on the court — I think back to the Dennis Rodman incident a few years ago when he kicked the photographer — that’s the sort of thing that gets appealed only to the commissioner. I should make one other point. You mentioned the Robbie Alomar case in baseball. One other critical aspect of the NBA’s disciplinary system is that, although a player has the right to appeal a suspension, he must serve the suspension first. That’s very important, image-wise. As Knicks fans well know, we had players serve suspensions during the playoffs. Patrick Ewing and some of his teammates sat during a couple of crucial playoff games against the Miami Heat a few years ago. I think baseball suffered a real black eye when it had to wait for the following season to suspend Alomar. In our sport, the player has to sit [immediately]. If he ends up prevailing in his appeal, he will get his money back that was withheld during the suspension. CC:So the commissioner makes the call — but in consultation with whom? Who gets involved? LITVIN:The commissioner will consult with the head of our basketball operations, who is now Stu Jackson, and deputy commissioner Russ Granik. The commissioner knows an awful lot about the game, but we have some people in the office who played the game and whose input also is valued and solicited. CC:Speaking of major league baseball, do you see basketball going to a system like baseball’s, in which you have someone like Frank Robinson [former outfielder for the Baltimore Orioles and now Major League Baseball vice president for on-field operations, who] in effect acts as the disciplinary officer and whose calls are subject to appeal? LITVIN:We don’t. The way our system works is, the punishment gets meted out by the commissioner or his designee. I don’t see adopting the baseball method in which they have chief disciplinarians who act independently from the commissioner. CC:David, you did a great job of passing off to Joel, but when we think of hockey, we can think of a few instances of misbehavior. ZIMMERMAN:Actually, as I was listening to Joel, I realized that, maybe unsurprisingly, our systems are similar. Also, we don’t have standardized penalties — no mandatory sentencing guidelines, if you will. And I don’t see that happening for a couple of reasons. One: Colin Campbell, our executive vice president and director of hockey operations, is the person who reviews the acts in question, and metes out the discipline. Like the NBA, players can appeal to the commissioner. Colin will look at the total picture, not just the single act. Generally, for example, the commissioner will view a tape from every possible angle on the ice. Then he’ll look at a couple minutes before, a couple of minutes after. There’s no way to say, “Okay, a slash to the head is worth five games, and everybody will get that.” I can slash someone in the head in sort of a love-tap motion to get his attention. Or I can really slash him in the head and knock him out. The latter is going to get a heck of a lot more of a penalty. You also have to look at the overall environment in which the players are operating. We have in the past couple of years gotten the message out to the players and the clubs that hits to the head won’t be tolerated. If you looked at, from 1995 until now, you’d find that hits to the head (a) are more often scrutinized, and (b) are more severely penalized. CC:Let’s talk about the Marty McSorley case. He was criminally prosecuted in Vancouver, British Columbia, for behavior on the ice. Do all the leagues worry about that? That actions on ice or on the court or on the field are going to end up being charged as felonies and tried by the criminal justice system? [Editor's note: In October a judge in Vancouver convicted former Boston Bruins defenseman McSorley of assault with a weapon for hitting Vancouver player Donald Brashear with a stick during a game. The court gave McSorley a conditional release. The NHL suspended him for 23 games, but he was granted a hearing with commissioner Gary Bettman. As of press time, no ruling had been announced.] ZIMMERMAN:It won’t surprise anyone that I won’t discuss the McSorley case. But I will say that I strongly believe these cases don’t belong in court. I honestly believe that commissioners of sports leagues are best-suited for meting out the appropriate punishment for players who commit acts on the field, on the ice, on the basketball court. I don’t think a criminal court ought to be weighing in on what professional athletes are doing on the field of play. DISCIPLINING OWNERS? LITVIN:In terms of the legal issues — they’re not all that complex. We have a contract called the constitution of bylaws that all the teams are bound by. When an owner acquires a team, he has to sign a document saying he promises to live up to the league rules and agrees that the commissioner has the authority to discipline him in cases of misconduct. Fortunately, we haven’t had the need to discipline an owner for any serious matter, at least in my tenure at the NBA. GARY GERTZOG, SENIOR VICE PRESIDENT OF BUSINESS AFFAIRS AND GENERAL COUNSEL, NFL PROPERTIES:Does it have to relate to basketball, the wrongdoing or misconduct? LITVIN:The language is “conduct detrimental to the association.” If an owner were convicted of a felony, a sexual assault, a serious crime, maybe not-so-serious crime, that certainly would be an event that would have a detrimental effect on the league and wouldn’t necessarily involve basketball, per se. CC:The problem is owners can act in cabals … LITVIN:And we work for the owners. They employ us ultimately. CC:So it’s a tricky situation. LITVIN:Right. It raises some neat political issues that disciplining players does not raise. But if an owner got into enough trouble and embarrassed his franchise and the league based on his conduct, I think the rest of the owners would be on board with the commissioner disciplining the owner in an appropriate manner. CC:Your client is the board, correct? But perhaps the person you work with most is — I see smiles around the table — the person you work with most is the president of the board or, in most cases now there’s a commissioner, how do you deal with that? LITVIN:Well, my principal client day-to-day is the commissioner. CC:Not the board? LITVIN:No, but I’m not sure the distinction is meaningful. CC:It is if the board decides to can him. LITVIN:The commissioner is hired by the board of governors, and the commissioner can be fired by the board of governors, and the board can decide to clean out the whole office, including the lawyers. ZIMMERMAN:Exactly. LITVIN:It’s really that simple. GERTZOG:I don’t think it’s any different than a regular corporation. You have the chief executive who could be removed by the board. LITVIN:We’re officers of the company, and the board might decide to clean house, take the commissioner and all his lawyers down with him. CYBERSPACE CC:Okay, new topic: How are the leagues making use of the Internet? DERSHOWITZ:We at the NBA and WNBA license a lot of things on the Internet, our video, audio. Right now we’re also in the business of licensing fantasy-game content to third parties, and we do our own fantasy games on NBA.com and WNBA.com. We are out there. This should become an interesting, growing area: where sports and the Internet collide. CC:And the NFL? GERTZOG:We have a fantasy game on NFL.com for the first time this year. We’re working on a deal right now to create video games. We’re looking at that as another platform to have the content featured on the Internet. Trading cards are being moved online; an NFL site in conjunction with eBay, Inc., is a great vehicle to build that business. And we’re entertaining a number of other proposals for when our ESPN ventures expire at the end of the season. At that point we’ll take a hard look at all of our relationships. BOB BERRY, PROFESSOR, BOSTON COLLEGE LAW SCHOOL:I would be interested in hearing: What are the successes as far as the use of the Internet? The failures? The possibilities? And how are these going to be dealt with both from a business and a legal standpoint? GERTZOG:The Internet is a tremendous vehicle to market to fans one-on-one. There are so many ways you can do that. Under the old economy model, you put out a yearbook at the beginning of the season. By the time it reached most people’s hands, it was to some degree outdated. There are a lot of passionate people in this country who can’t get enough of sports. They want to know what’s happening up to the moment with the players on the team, what the teams are thinking about; they want interviews with coaches, interviews with owners. The amount of content that you can put on the Internet is limitless, and it can be changed frequently. The Internet also allows us to give the fans the opportunity to e-mail questions to owners and players. Some of our owners are very interested in making themselves available that way; some already are. It’s a great way to connect the fan to the sport. In our sport we have a real problem because most of our fans don’t get to go to a game. Teams have only eight home games a year, including the playoffs; there are 60-70,000 people in the stands at each game, most of them season ticket holders. So there’s an unfulfilled desire to get closer to the team. It could be satisfied in so many different ways: through video clips, e-commerce, auctions, games. Also, more people can actually attend games because of the Internet. Last-minute ticket requests can be billed on the Internet. Teams want to have a sold-out stadium. So 24 hours before the game, youth organizations can contact the league and try to get tickets at a discount rate, which engenders goodwill in the community. We’ve got a tremendously long list of things that we think can be done at the league level. We’re encouraging our clubs to innovate. Ultimately, and I’m sure everyone will nod their heads, we’re going to show the games themselves on the Internet — and at some point you’re going to be able to broadcast games differently. For example, if you’re a Jerry Rice fan, you may be able to watch what Jerry Rice does on every single play in a football game. It’s very exciting. Right now the broadcasters do not have Internet rights. But I’m sure in the next set of negotiations they will be given very critical rights. ROBERT RASKOPF, PARTNER, NEW YORK’S WHITE & CASE:It’s not necessarily that the Internet creates brand-new products — fantasy football games, trading cards, auctions — it’s the ability to aggregate, to involve so many people who may not have had an opportunity to participate. And the one-to-one that Gary’s been talking about is important. It’s a great time for lawyers, especially IP lawyers, because of the enormity and the ability to aggregate and to disseminate and to go global, all of which raise different issues. There is the DoubleClick litigation questioning the manner in which companies are aggregating data and what they’re doing with that data. There’s a U.S. model, and there’s a different European Union model. And when you have sports leagues attempting to go global, there are clashes between what can be done in one jurisdiction and another. CC:How do you go about pioneering through that? There isn’t much precedent. RASKOPF:It’s not necessarily the substance of the law has changed. Copyright infringement is still copyright infringement. The Internet doesn’t change basic legal principles. It’s just how the Internet changes the manner in which those laws should be applied to new facts. It requires a lot of thought — and probably a lot more interjurisdictional thinking. CC: Isn’t there a fundamental difference though because of the technology? There’s not only just trading cards; now I can make my own cards on my printer. I can actually steal your content, your whole game, and e-mail it to my friend without a central server. I can send her the game in Singapore. RASKOPF:You could always intercept a television broadcast. ZIMMERMAN:Somebody can always steal your satellite feed … grab your feed off the birds, hijack it. Continued: Face-Off Part II

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