In case you live under a rock, there was a big football game last night, and both Madonna and the NY Giants won.  It was a good game, a close game, with a great halftime show.

I am rarely interested in the Super Bowl halftime shows.  The Who?  Bruce Springsteen?  Tom Petty?  The Rolling Stones?  Um, not so much.  But Madonna is something entirely different.  I am the Madonna generation.  I remember seeing "Borderline" on MTV  in 9th grade and thinking "I have got to have that haircut."  Madonna's music is truly the soundtrack to my youth.  The summer I was 16 my favorite song was "Into the Groove," and on Mondays, "Teen Night" at Midnight Rodeo, I would wait and wait for that song to play.  I remember being in London in 1989 when "Express Yourself" was released.  In 1991, I had the most argumentative car ride from Houston to Austin, but I was listening to The Immaculate Collection in the background.

So, I did look forward to halftime, and I was not disappointed.  In fact, it was better than the pessimist in me had predicted.  She did not dress like a 17 year-old (just because you can, doesn't mean you should).  She sang mostly old favorites.  She was great.  I especially loved ending with "Like a Prayer."  Interesting how a song that spawned protests and a Pepsi boycott was the finale of a Super Bowl halftime with hardly a mention.  She must have loved that.

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Not Mitt Romney. He got it in 2008. 

It's Jimmer! See Times & Seasons. 

Last week T&S cited to a court case, Kiewit Power Constructors Co. v. NLRB, 10th Cir., pg. 10 (Aug. 3, 2011), in which DC Circuit judge Tom Griffith -- who also is an adjunct professor at BYU -- quotes a news story "describing college basketball phenom Jimmer Fredette as 'destroy[ing]' an opponent with his combination of longrange proficiency and acrobatic drives." This is the only case currently in the Westlaw "allcases" database referring to Fredette. It's only a matter of time, I suspect, before other cases get jimmered.

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Fran Tarkington, prompted by Tim Tebow, asks that question in a WSJ editorial.

I can answer definitively: No. And I know this because of Fran Tarkington.

When I was young, I was a passionate Minnesota Vikings fan in the heart of Packer Country. (Even though I don't follow the NFL anymore, I still hate the Packers. Blech!)

Fran was our quarterback, and, after Alan Page, was my favorite player on the team. Fran led the Vikings to three Super Bowls during my formative years. Each time I prayed fervently that the Vikings would win, and each time my request was denied.

Not surprisingly, Fran had the same experience with prayer and those Super Bowls:

I prayed fervently before each of the three Super Bowls we Minnesota Vikings played in. We played against the Dolphins, the Steelers and the Raiders. I don't know about the first two games, but I was sure God would be on our side for the game against the Raiders! After all, they were the villains of the league, and it was hard to believe they had more Christians on their team than on our saintly Vikings. We lost. 

If you need further proof that God doesn't care about the outcome of football games, just look at the result of last year's Super Bowl.

QED

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Bret Bielema called for his quarterback to spike the ball with two seconds on the clock and said after the game that he never gave a thought to running a play.

David Shaw had the best college quarterback in a decade driving for the winning score, and he took the ball out of Andrew Luck's hands, placing it instead on the foot of a freshman kicker.

In both cases, I was trying to help them make the right decision, but they couldn't hear me.

UPDATE: As long as we are talking about CFB coaches, this is a keeper from Nebraska coach Bo Pelini, whose team lost to South Carolina 30-13:

I’ll say it straight out, our football team feels we are better, even after the game, feels we were the better football team than them.

Ok, I understand the concept of an upset, but this wasn't an upset. South Carolina was favored to win, and they did. Time to stop talking, coach.

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It seems like it is a pretty good year for Detroit.  At least comparatively speaking.  In 2008, Detroit didn't appear to be able to catch a break.  Who can forget the outrage generated by the CEOs of the Big Three Detroit car companies when they flew to DC on private jets to ask Congress for billions of dollars in bailout funds?  The outrage notwithstanding, it was relatively clear that the Detroit car companies were in severe distress.  In 2008 Ford experienced its worst year ever, reporting some $14.6 billion in losses, yet seeking to remain afloat without federal aid.  And it seemed like Detroit sports were going the way of their auto industry.  In 2008, the Detroit Lions made NFL history with their perfectly winless 0-16 record.  In baseball news, even though so were saying they could win the World Series, the Detroit Tigers finished last in the AL Central and with one of the worst records in the league.  And in basketball news, the Detroit Pistons ended the season with a losing record after being swept in the first round of the playoffs.  So the sports woes and the corporate woes seemed to be piling on.

Which is why (even as a Red Sox and Patriots fan), I will admit to rooting for Detroit these days, as it seems to be making a dramatic climb back.  Indeed, while Detroit's auto industry is not yet out of the woods, there are signs that the auto industry is experiencing a recovery, with companies reporting increases in sales and profits as well as increases in worker benefits and plant investments.  And the sports teams appear to be experiencing a serious comeback.  The Detroit Lions are 5-0 for the first time since 1956.  And after beating the Yankees in game 5 of the ALDS, the Detroit Tigers beat the Rangers yesterday in the AL playoffs, keeping their World Series hopes alive though they are down 3-2. I have found myself pulling for them.  Partly because the optimism about Detroit sports' teams seems to impact optimism about the city and its economy.  In that regard, it certainly feels like all the industries are seeking to rebound together, which could mean that the city, its auto industry, and its economy could be looking at happier times--even if they cannot manage to bring home any titles.  Game 6 is today though. . .so Go Tigers!

Oops--looks like Game 6 is tomorrow. So one more day to wait it out.

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Another college football scandal, another round of calls for the NCAA to get tough on schools.

Why can’t we just admit that the NCAA is doomed to perpetual failure? Enforcing amateurism in big revenue sports is just a price control on the labor of college-age athletes. Price controls succeed mainly in creating black markets. Although, if they are effectively enforced, price controls can reduce supply.

But does the NCAA really want to reduce supply? Does it really want to enforce its rules? Miami won’t be treated like SMU and have its football program shut down because that would hurt television revenue.

There are really three explanations for why the NCAA seeks to enforce price controls:

1. It sincerely believes that doing so will encourage schools to provide the students who are generating the billions of dollars in revenue to NCAA schools with an education. (This focuses only on the supply side of education and ignores the demand side.  It also is only lightly tethered to reality.).

2. It wants to prevent rising labor prices for student athletes from eating into the revenue to schools.

3. It needs to protect the “amateur” brand that it thinks creates such strong demand for its product.

If this last assumption is true, it leads to a perverse result: demand for amateurism threatens to undermine that amateurism. As a result, the NCAA would have to do just enough enforcement to maintain a perception of amateurism.

Likely some combination of all three of the above explanations accounts for the continuing NCAA game: being “shocked, shocked” to find that college athletes are getting paid under the table and then imposing some penalties on schools, but not enough to actually hurt the egg-laying goose.

So let’s be frank. Division 1 football and basketball is about gobs and gobs of money. If universities would like to engage in a little less hypocrisy and actually serve the interests of its money-generating athletes, isn’t it time to actually test the premise of reason number three above? Is amateurism really essential to rabid demand for college football and basketball? Let’s pay college athletes a market rate for bringing in revenue to their schools. Better yet, let’s have schools sponsor professional athletic teams.

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When it is a somewhat quiet period for business law developments, one's thoughts are drawn to sports, which appear to always pursue collusion among competitors, to the general acquiesence of fans and players.  Why is that?  There is a literature, even a journal, on sports finance.  Perhaps it will suffice here to observe that salent consumer goods are often heavily regulated and that it is possible that sports finance, with its salary caps in football, baseball, and soon, soccer, represent a challenge to market afficianadoes. 

• Here's why, via Marginal Revolution, the NBA lockout will settle.
• Here's some of the legal implications of said lockout.
• Why do sports support a  paradigm of overly generous owners who must lose money to succeed?

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Earlier, we asked whether fixing costs in a European sport that is broadcast in the United States might run afoul of American antitrust law.  Sports law expert Michael McCann, who has been covering the antitrust and other angles presented by the current NFL labor dispute for Sports Illustrated (he teaches at VLS too) is the guy to ballpark such a question, so we reached out to him.  Here's his quick take:

I agree with you that U.S. antitrust law could reach European football, for the reasons you noted.  In terms of the legality of salary caps, while we don't have a clear-cut holding stating that pro sports league salary caps violate Section 1 of the Sherman Act, the behavior of those leagues suggests that they believe that salary caps are vulnerable to antitrust rebuke.  After all, leagues have not unilaterally imposed their caps, instead they have obtained them through collective bargaining, thereby enjoying the corresponding labor exemption.  Even baseball's luxury tax system was obtained through collective bargaining.  I think a court reviewing a pro league's salary cap would be inclined to conclude that while the cap probably helps to promote competitive balance among teams -- the NFL's hard salary cap has certainly promoted competitive balance among NFL teams -- and financial sustainability among those teams, it is probably not the least restrictive means of obtaining those goals.  For instance, a luxury tax would be a less restrictive, albeit less effective, means of obtaining competitive balance, while revenue sharing would probably be a less restrictive means of obtaining financial sustainability.  Perhaps the cap as designed by European football might pass such scrutiny -- back in 1994, in the NBA v. Williams case, the SDNY said that the NBA's salary cap, which is a soft cap in that teams can spend more than the cap but pay a tax on their excess spending, would probably pass rule of reason.  Also, as you note, a U.S. court might find it important that European football cannot collectively bargain and obtain protection from the labor exemption because there is no players' unit with which to bargain.  Still, I find it telling that U.S. leagues seem wary of exposing their caps to antitrust law and in the unlikely event the European football's salary cap was exposed to the Sherman Act, it would probably be a source of concern.

It would be interesting to hear from experts on European law, and specifically European antitrust law, on whether the salary cap might violate antitrust provisions of the EC Treaty.  I believe Article 81 is the relevant provision and has been used to prevent restrictions on competition.  I don't know enough about EU law to opine, but that seems like another potential hurdle.

Interesting stuff.  Agreed that EU competition law would be the first thing to look at - but we American parochialists want to know whether the usual suspects should be drumming up a class action on these shores.  I suspect the fans would have a hard, but colorable, go of it.  But what about the American players abroad?  Clint Dempsey, the two Adus, Stuart Holden, all those goalies?  That seems quite a bit more promising, though none of them would be looking at pay cuts, probably.

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European football is about to institute a weak salary cap on teams, requiring them to limit player wages and other costs to a percentage of turnover.  Not exactly pro-competition, it seems to illustrate the differences between European and American business cultures, in that everyone over there, the players, the liberal newspapers, the fans, and of course the owners, are breathing a sigh of hopeful relief.

Over here, if the, say, investment banks got together and agreed to limit compensation to a percentage of turnover, I suspect you'd see an antitrust class action toots sweet.

There are Americans who pay to see European football games on various cable networks.  Can they get rich suing for treble damages as the end users of a sport fixing costs?

I'm not the ideal person to answer such a question - I leave antitrust to the antitrust lawyers if I think there might be a problem.  But I do think there might be at least an issue here.  Here's some ballparking of some salient issues:

• Can US law reach conduct that occurs abroad, with foreign owned and foreign traded firms?  NAB v. Morrison appeared to change the long presumption in favor of extraterritorial application of the antitrust laws into something less clear (it was, to be sure, a securities law case, and antitrust appears to have a better statutory language case).  But many of the firms affected by financial fair play, AS Roma, Liverpool, Manchester United, Aston Villa, Sunderland, &c, are owned by American principals.  And if the conspiring firms are selling their products into the American marketplace, intentionally, it would ordinarily pass that test.
• Are salary caps illegal, given that the NFL and NBA have them?  Sports are different, to be sure. And the question in antitrust is always whether the consumer is harmed by the collusion.  Fixing player costs might not harm the consumer, if that consumer is an American TV viewer.  But in the US, part of the reason salary caps are okay is because they occur in the context of collective bargaining with a union.  That's why the NFLPA decertified, to sue the NFL on antitrust grounds.  There isn't a European players' association cognate.
• So I think there are antitrust and European competition law issues to think about here.  The European Champions League final is on Saturday at 2:00, and it will be broadcast live on Fox.  I'd be interested in knowing which law firm UEFA hired to advise it on American antitrust compliance. 

But possibly I'm missing something obvious, and if there's a post on this, my very brief internet search didn't find it.  We'll check in with Michael McCann and see if he has thought about adding extraterritoriality to his already busy sports antitrust oeuvre. 

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I haven't been following this story very closely, and got up to speed via WSJ Law Blog, which itself got the skinny from my friend and "sports law guru" Michael McCann (Vermont).  A taste:

What is decertification and why did the union need to do it prior to filing suit?

Decertification simply refers to the act of disbanding the union by the union members, i.e, the players. McCann explained to us that the former collective-bargaining agreement included a stipulation that said that the union couldn’t file an antitrust suit against the league. So the union had to disband in order to sue.

The owners have since then claimed that the decertification move was bogus. What’s that about and how will that be resolved?

McCann explained that a move to decertify a union has to be approved by the National Labor Relations Board. In this story, the WSJ’s Matthew Futterman explains that he owners amended a complaint they filed with the NLRB  in February, in which they claimed the players union wasn’t bargaining in good faith. The amended complaint alleges that the decertification is a sham.

The players union denies that and said a settlement in a previous lawsuit with the NFL prohibits the league from opposing the decertification.

The NLRB must conduct an investigation into the matter before deciding whether to file a complaint on behalf of the NFL with an administrative law judge, whose decision could take six months.

In the meantime, what does the antitrust lawsuit look like? And why do the players’ grievances fall under the umbrella of antitrust law?

Well, first things first. The league really operates as a classic cartel — 32 individual entities working in concert with one another. (It’s a view of the NFL that was largely supported by the U.S. Supreme Court in the American Needle case.) The lawsuit challenges the amateur draft, salary cap, free agency restrictions and other elements of the current structure as violating Section 1 of the Sherman Antitrust Act.

McCann explains that the structure was exempt from antitrust challenge under the old collective-bargaining agreement, but that now the CBA has expired, the exemption no longer applies.

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Amber Branson coaches basketball in a tiny town in Texas, Lipan, population 425.  The team is away at the regional tournament, in Abilene, lets say less than two hours from where she lives, give or take.  The team wins the semifinal game, so she whips over to the hospital in Abilene and gives birth to her third child in about an hour.  The next day, about 15 hours later, she is no the bench, coaching her team in the final game, which the team wins.  She then returns to the hospital.  The team goes on to the state tournament for the first time since 2003.  (They did not win the state championship, or even play in the finals.  This is real life, not a Disney movie.)

So, the media is having a heyday about how much of a miracle this is and how tough 34 year-old Coach Branson is.  I'm glad.  I love sports, particularly women's sports, so let's shine a little more media attention on great women's teams and great women's coaches.  Admittedly, a lot of moms also have to get right back to real life after having a baby.  Branson had a complication-free delivery in less than an hour, without drugs, did not have to stay up all night to have it, then was sitting up somewhere in street clothes by the next afternoon.  (The street clothes would be the hardest part for me.)  A not miniscule number of women go home within 24 hours of a nonsurgical birth, and a lot of them are walking around, picking up, cooking, etc., particularly with two other children at home.  So, I think showing up for the final game is admirable, and noteworthy, but not a miracle (or a dereliction of maternal duty to the baby sleeping away at the hospital a few minutes away).  Now, if she paced up and down the sideline and yelled, that's more than I can fathom!

In this amazing story, the media seems to be leaving off what is truly incredible to me.  Branson took her team to the regional tournament when she was obviously fairly close to her due date (the baby girl weighed in at over 8 1/2 pounds).  During at least the semifinal game, she had to suspect she was in labor.  But, she finished the game.  I'm all for handing out medals, and I think the medal should be for coaching while in labor, not coaching while post-partum!

My favorite part of the story is that the team's motto this season was "If it's easy, I don't want it!"

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BYU has been much in the news lately, first for beating San Diego State in basketball last Saturday, and then for suspending starting forward Brandon Davies the following Tuesday. At the time of this writing, the BYU basketball team is on the front page of ESPN, Fox Sports, Yahoo! Sports ... and the Wall Street Journal! After being poised to get a #1 seed in the upcoming NCAA tournament, the Cougars looked very bad in losing last night to New Mexico, and their tournament hopes will depend on whether they can get their act together over the next two weeks.

I was at that game last night, and I follow BYU sports closely. Passionately, even. I was anticipating a deep tournament run by the Cougars, and I was excited about that. But this story is not about basketball for me. It's about Brandon Davies.

Many people at BYU stumble over the Honor Code. (If that surprises you, I suspect you have a very loose grip on reality.) In most instances, the transgressions are minor, and the sanctions are informal, like the social sanctions we might impose for bad manners. When the transgressions are more serious, a university administrator or church authority may become involved, usually in a counseling role. In rare instances, the transgression is serious enough to warrant a more dramatic intervention.

Despite the rumors, we do not know what Brandon Davies did to merit suspension from the basketall team, but my first thought on hearing the news was for Brandon. Even though I don't know him, I care about him, and I was grateful for the comments of his teammate, Charles Abouo: "Everyone makes mistakes in their life. We are reaching out and trying to help him get through this." And Jimmer Fredette: "He is like a brother to us.... He told us everything. He told us he was sorry and that he let us down. We just held our heads high and told him it was OK, that it is life, and you make mistakes, and you just got to play through it." At the game last night, when a clip of Brandon flashed on the screen during the pregame introductions, the student section cheered a little louder. The students are supporting him.

Blog friend Ashby Jones asks, Has BYU Done Right by Brandon Davies? While I was not involved in any aspect of Brandon's suspension, I can guarantee you that those who made the decision were thinking, among other things, about the effect of this decision on Brandon. You may not like the standards in the Honor Code, but do you really think Brandon would be a better person if he had been given a pass? That hasn't been my life experience. I am grateful to work at an institution where values are more important than success at sports, and I suspect that Brandon feels that way, too.

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• I participated in the Penn Journal of Business Law/Journal of International Law symposium on Friday, on a panel with Bill Bratton, Chris Brummer, Eric Pan (academics all), and former SEC Enforcement chief counsel Joan McKown.  Joan relayed the discomfort the business community has with Dodd-Frank's whistleblower provisions, which basically turn the statute into a qui tam arrangement - that is, the uncoverer of fraud gets a chunk of the recovery.  When paired with foreign corrupt practices practice - Siemens just paid out a billion dollars in fines to various regulators for an Italian bribe - you can see how you're talking about real money.  Anyway, the Times has an overview of the implementation issue - my own sense is that qui tam arrangements work worst when quasi-wrongdoers (someone who saw the bribery, but didn't say anything about it) or corporate compliance officers (once you discover wrongdoing, should you tell your bosses, or try to retire on the news, via the government?) get to recover.  You can imagine the conflicts, and the SEC has proposed exempting these sorts of people from recovery.  We'll see if that's what Congress wanted.
• And of course, there's this litigation finance story too.
• I think that David Post is late to the Mike Tanier admiration club, which I've belonged to since he started at the Times, and others in the olden, Football Outsiders days.  He's totally right, though - Tanier can really write.

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For those unfamiliar with batttles for corporate control in the UK, the efforts of the lenders to Liverpool FC to seize the company and sell it to the owners of the Red Sox has been extremely educational as well as entertaining.  That all of this is being done over the objections of the owners, including private equity slickster Tom Hicks, make it look somewhat similar to the way that insolvency litigation works here - you've got the business loaded up with debt, missed payments by the owners, and the easily victimized lenders trying to pull the trigger.  Enter the lawyers.  As is de rigeur in English football, you've also got a late, rich bid for the team by someone from Asia.  And the particular mechanism of the suit - the lenders told the board to proceed with a sale, so the owners replaced two board members with loyalists, allegedly in breach of an agreement with the lenders to leave the board alone - sounds vaguely Delaware.

Anyway, the Guardian liveblog of yesterday is absolutely worth your time, and the best place to go for this story (of course, it's the best place to go for everything soccer).  You'll find it most engaging if Liverpool is the team you've followed since you were seven, but if you haven't (and I'm sorry for you if that's not the case), you'll still enjoy it.  The video of the supporters breaking into "You'll Never Walk Alone" outside the high court once the verdict was announced brought a tear to my eye ... but then, so did the video of long-time Liverpool supporter Chris "The Lady In Red" DeBurgh.  Here's a taste of the legal analysis:

Andrew Nixon, Associate at Thomas Eggar LLP, said:

This ruling means that there will be no need for Mr Broughton and the board to bring their own declaratory proceedings seeking an Order that they are entitled to push ahead with the deal.

Hicks and Gillett do have a right to appeal the ruling against them and given the amount of cash they are set to lose on a sale to NESV, they are likely to do so. Should they decide to take that option, then there will be further delay. If an appeal is launched then RBS may extend the loan deadline. Regardless of Justice Floyd's assertion in this morning's judgment that it would be "inappropriate" to appeal it seems likely that there is still considerable mileage in this case.

Gerald Krasner, Partner at insolvency and recovery specialist Begbies Traynor and former Chairman of Leeds United Football Club (before selling to Ken Bates in 2005), said:

This morning's announcement means that the possibility of Administration is now highly unlikely and the smart money is on the deal with NESV now going through. Even though there are obviously other parties now looking to muscle in, the chances of them being able to usurp John Henry's bid are remote although, if Hicks and Gillett look to appeal against today's ruling, that will delay things somewhat.

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Gary Player describing his first trip to The Open Championship:

I go to a hotel and I can't get a room. Forty or 50 pounds. I had 200 pounds in my pocket. That was my world earnings. My total assets. I went and slept on the beach the first night. It was just like tonight. I put my waterproofs on and my sweater and I slept on the beach.

You don't think of golfers as poor, but some of them started that way, including Louis Oosthuizen, another South African who now knows the thrill of winning The Open.

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