Volume 8, Number 2 Spring 2017 Contents ARTICLE the Tom Brady
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Volume 8, Number 2 Spring 2017 Contents ARTICLE The Tom Brady Award and the Merit of Reasoned Awards John Burritt McArthur .............................................. 147 NOTES A Less Perfect Union: Why Injury Risk Prevents NFL Players from Driving as Hard a Bargain as MLB Players in CBA and Contract Negotiation Hamish Nieh ...................................................... 213 Putting Hurdles in a Marathon: Why the Single-Entity Defense Should Not Apply to Disputes Between Athletes and Non-Team Sport Leagues Garrison Shepard................................................... 245 Harvard Journal of Sports & Entertainment Law Student Journals Office, Harvard Law School 1541 Massachusetts Avenue Cambridge, MA 02138 (617) 495-3146; [email protected] www.harvardjsel.com U.S. ISSN 2153-1323 The Harvard Journal of Sports & Entertainment Law is published semiannually by Harvard Law School students. Submissions: The Harvard Journal of Sports and Entertainment Law welcomes articles from professors, practitioners, and students of the sports and entertainment industries, as well as other related disciplines. Submissions should not exceed 25,000 words, including footnotes. All manuscripts should be submitted in English with both text and footnotes typed and double-spaced. Footnotes must conform with The Bluebook: A Uniform System of Citation (20th ed.), and authors should be prepared to supply any cited sources upon request. All manuscripts submitted become the property of the JSEL and will not be returned to the author. The JSEL strongly prefers electronic submissions through the ExpressO online submission system at http://www.law.bepress.com/expresso. Submis- sions may also be sent via email to [email protected] or in hard copy to the address above. In addition to the manuscript, authors must include an abstract of not more than 250 words, as well as a cover letter and resume or CV. Authors also must ensure that their submissions include a direct e-mail address and phone number at which they can be reached throughout the review period. Permission to Copy: The articles in this issue may be reproduced and distributed, in whole or in part, by nonprofit institutions for educational purposes including distribu- tion to students, provided that the copies are distributed at or below cost and identify the author, the Harvard Journal of Sports & Entertainment Law, the volume, the number of the first page, and the year of the article’s publication. Volume 8, Number 2 Spring 2017 EDITORIAL BOARD Editors in Chief Elisa Hevia Rebecca Johnson Scott Sherman Managing Editor Nathan Abelman Executive Editor, Submissions Executive Editor, Online Online Interview Editor Content Samuel Lifton Loren Shokes Loren Shokes Online Content Contributors Nicholas Aquart Kendall Howell Libby Pica Tyler Bittner Prudence Ng Jacob Reinig Submissions Chairs Benjamin Hecht Maclen Stanley Submissions Committee Jeff Adler Kendall Howell Prudence Ng Heylee Bernstein Carol Lin John Quagliariello Jazzmin Carr Han Lee Rebecca Rechtszaid Michael Cunniff Colin Lubelczyk Matt Rosenthal Isabella Cusano Nic Mayne Benjamin Roth Alex Greenberg Miranda Means Ariel Shpigel Jordan Keeton Jake Meiseles Wonnie Song Erin Thomas Senior Article Editors Brooks Coe Jennifer Mindrum Marina Shkuratov Michael Cunniff Evan Omi Article Editors Jazzmin Carr Miranda Means Ahmed Sadik Editors Jeff Adler Carol Lin Rebeccca Rechtszaid Heylee Berstein Colin Lubelczyk Matt Rosenthal Tyler Bittner Stephanie Mazursky Benjamin Roth Molly Brown Jake Meiseles Wonnie Song Kendall Howell Rachel Narowski Jillian Tancil Jordan Keeton Prudence Ng Erin Thomas Gabe Levin John Quagliariello Dear Readers, I am Professor Peter Carfagna, the Harvard Law School Faculty Advisor to the Journal of Sports and Entertainment Law (JSEL). JSEL had a momentous year and I am exceedingly proud to write the preface to Volume 8. In our Fall Issue, JSEL published three articles and a note. Professor Steve P. Calandrillo and attorney Joseph Davison wrote Standards of Review in Law and Sports: How Instant Replay’s Asymmetric Burdens Subvert Accuracy and Justice. They argue that the current play review standards in professional sports are overly stringent and hamper fairness and propose adopting an alternative zero-deference policy for referees that would lead to further accuracy in professional sports’ games while maintaining pace of play. John Juricich’s piece, Freeing Buskers’ Free Speech Rights: Impact of Regulations on Buskers’ Right to Free Speech and Expression, analyzes how street performers (“buskers”) first amendment right to free speech is being curtailed by municipalities’ unlawfully vague ordinances. Our final article, Irrevocable But Unenforceable? Collegiate Athletic Conferences’ Grant of Rights, was authored by attorney Mark T. Wilhelm. It takes a critical look at the pitfalls of the Grant of Rights, a document enacted to prohibit collegiate conference realignment, and offers alternative mechanisms that would address the realignment issue while alleviating some of the current Grant of Rights’ shortcomings. We also published Sara Zerehi’s note, Valuating a Celebrity’s Right of Publicity for Estate Tax Purposes, which delves deeply into the various methodologies used to value celebrity’s posthumous right of publicity and examines their unique challenges. In a Special November Edition, JSEL published Chris Deubert, Professor Glenn Cohen, and Professor Holly Lynch’s groundbreaking article Protecting and Promoting the Health of NFL Players: Legal and Ethical Analysis and Recommendations. The report is the principal component of the Law and Ethics Initiative of The Football Players Health Study at Harvard University, a multi-million dollar and multi-year project focusing on the health and safety of NFL players. Specifically, the study addresses three questions: Who is responsible for the health of NFL players; Why?; and What can be done to promote player health? Many JSEL members played an integral role in the piece’s creation and the authors were this year’s recipients of the Weiler Writing Prize. In our Spring Issue, JSEL published one article and two notes. John Burritt McArthur’s article, The Tom Brady Award and the Merit of Reasoned Awards, utilizes the arbitration award arising from Deflategate to show that reasoned arbitration awards, as compared to awards that omit the rationale behind their final outcome, further the arbitration process’ legitimacy. Second, Garrison Shepard wrote a note, Putting Hurdles in a Marathon: Why the Single-Entity Defense Should Not Apply to Disputes Between Athletes and Non- Team Sport Leagues, which argues that the single-entity defense in sports leagues involving individuals competing against one another should be narrowly construed in order to allow athletes to bring antitrust suits against their leagues. Lastly, Hamish Nieh’s note, A Less Perfect Union: Why Injury Risk Prevents NFL Players From Driving As Hard a Bargain as MLB Players in CBA and Contract Negotiation, offers a comparison between collective bargaining negotiations in the NFL and MLB and explains how the risk of injury in the NFL leads to lack of leverage for players and short-term strategic thinking. I wanted to thank the students involved in JSEL who worked tirelessly to ensure its success. Specifically, I would like to thank Elisa Hevia, Rebecca Johnson and Scott Sherman for their superb work as Co-Editors-in-Chief. Nathan Ableman did wonderful work as Managing Editor, and we are excited for him to be the Editor-in-Chief for JSEL’s 9th Volume. Additionally, I would like to convey my thanks to other members of JSEL’s Executive Board: Loren Shokes (Executive Editor for Online Content and Online Interview Editor) and Samuel Lifton (Executive Editor for Submissions). Last but not least, thank you to Loren Shokes for her continued great work on JSEL’s interview series, including interviews with Spotify General Counsel Horacio Gutierrez, LVMH Mo¨et Hennessy Louis Vuitton Inc. Senior VP and General Counsel Louise Firestone, Major League Baseball Players Association General Counsel Dave Prouty, Jacksonville Jaguars’ Senior VP and Chief Legal Officer Megha Parekh, ABC’s primetime show Notorious Co-Creator and Show Runner Josh Berman, University of Massachusetts-Amherst Professor Steve McKelvey, and Travel Zoo General Counsel Rachel Barnett. Once again, fantastic work, and I look forward to next year’s issue! The Tom Brady Award and the Merit of Reasoned Awards John Burritt McArthur* Table of Contents I. Introduction ....................................... 148 II. The Brady Award: An Exemplary Reasoned Award ... 151 III. Point: Reasoned Awards Increase Appeals and Vacaturs and So Should Be Avoided ................. 161 IV. Counterpoint: Reasoned Awards Are More, Not Less, Defensible and Should Reduce, Not Increase, Appeals and Vacaturs ............................... 173 V. Was the Brady Award Reasoned Enough? ........... 189 VI. The Rest of the Appeal .............................. 202 VII. Reasoned Awards Build Arbitration’s Legitimacy ... 204 * John Burritt McArthur is a lawyer with 34 years of experience trying business cases for plaintiffs and for defendants, including many oil and gas cases, and 23 years of experience serving as an arbitrator. He received his first arbitrator appointment in 1994, devotes a substantial and increasing part of his practice to serving as an arbitrator, and is on, among other lists, the energy, oil and gas, and complex commercial lists of the AAA, CPR, and Fed-Arb of Palo