Volume 5, Number 2 Spring 2014 Contents ARTICLES Both Sides Win: Why Using Mediation Would Improve Pro Sports Mark Grabowski ................................................... 189 Personal Foul: Conduct Detrimental to the Team. Penalty Declined? Darren A. Heitner & Richard Bogart .................................. 215 Riding the Bench – A Look at Sports Metaphors in Judicial Opinions Megan E. Boyd .................................................... 245 Minor League Baseball and the Competitive Balance: Examining the Effects of Baseball’s Antitrust Exemption Russell Yavner ..................................................... 265 Copyright © 2014 by the President and Fellows of Harvard College. 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 (18th 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 5, Number 2 Spring 2014 EDITORIAL BOARD Editor in Chief Kelly Donnelly Executive Editor Executive Editor Executive Editor Kim Miner Kyle Schneider Albert Zhu Online Chair Technical Chairs Submissions Chair Jaimie McFarlin Daniel Ain Jay Cohen Joo-Young Rognlie Submissions Committee Michael Brandon Ryan Issa Daniel Nessim Sam Cortina Keith James Hillary Preston Jonathan Diaz Natalie Jay Nick Purcell Laura Escalona Jason Joffe Adam Rosenfeld Tim Fleming Tilak Koilvaram Harry Rudo Patrick Gutierrez Marissa Lambert Sam Straus Rob Hickman Cody Lawrence Courtney Svoboda Jeffrey Huberman Matthew Lee Carson Wheet Megan Michaels Article Editors Tim Fleming Kristen Spitaletta Jeremy Winter Eitan Ulmer Line Editors Jonathan Diaz Cody Lawrence Nick Purcell Patrick Gutierrez Kat Lanigan Sam Straus Ryan Issa Matthew Lee Sam Stuckey Keith James Jaimie McFarlin Marisa Weisbaum Editors Michael Brandon Paige Griffiths Adam Rosenfeld Willimina Bromer Jeffrey Huberman Harry Rudo Angela Chan Georgino Hyppolite Robert Seitz Michelle Elsner Jason Joffe Zhikai Wang Laura Escalona Marissa Lambert Carson Wheet Jason Fixelle Jamie Levine Scott Winston Jonathan Gartner Tristan Manley Sharon Wu Allie Maron Online Content Committee Marissa Lambert Jaimie McFarlin Sam Strauss Matthew Lee Marisa Weisbaum Faculty Advisor’s Introduction Professor Peter Carfagna Former Covington Burling Distinguished Visitor and Visiting Lecturer on Sports Law Harvard Law School It is my great pleasure to welcome you to this year’s two-volume edition of Harvard Law School’s Journal of Sports and Entertainment Law. Since JSEL’s inception and first publication in 2009, it has been my distinct honor and privilege to serve as the Faculty Supervisor for this exciting HLS extracurricular opportunity that allows so many students to get involved at the grass roots level of seeking and vetting for publication the very best in cutting-edge articles in the ever-expanding areas of Sports and Entertainment Law. This year was no exception. Under the outstanding leadership of Editor in Chief Kelly Donnelly and her Executive Editors Kim Miner, Kyle Schneider, and Albert Zhu, I can confidently assure our readers that the quality and quantity both of the submissions and of the Articles ultimately accepted and published by JSEL represent the finest volume of work ever achieved by any JSEL staff. Special thanks are also owed to Submissions Chair Jay Cohen; Online Chair Jaimie McFarlin; Technical Chairs Daniel Ain and Joo-Young Rognlie; Article Editors Tim Fleming, Eitan Ulmer and Jeremy Winter; and all of the other staff members for their contributions to these editions. For that reason, I especially want to thank Kelly, Kim, Kyle and Albert for their diligent work throughout the academic year and for maintaining a very strong line of communication with me throughout the publication process. So, with their continuing assistance, I proudly include a brief description of the Articles that JSEL has published this year, as described below: Volume 5.1 included an article by Russell T. Gorkin examining the sorts of antitrust claims that can be brought against NFL teams in the context of disputes with players, along with the various defenses available to ownership against such claims, and a brief discussion of these issues as they relate to the decision in Brady v. National Football League. This edition also included a piece by Lisa Milot probing the increasingly glaring dissonance between government and athletic governing bodies’ attempts to regulate performance-enhancing substances, public perception, and the actual athletes’ use of such substances. Milot examines the current regulatory regime and its success or lack thereof, then draws on economic and psychological research to suggest modifications to the current regime. Finally, this volume concluded with a piece by Brandon Hammer ’13 exploring the surging success of Indian cinema in the face of massive digital piracy. After examining current Indian intellectual property law and its effectiveness in curbing piracy, Hammer looks at creative ways Indian producers have sought to protect their creative works, both in cooperation with and external to the legal system. The unique status of cinema within Indian culture is then considered as a possible contributing factor to the enduring profitability of the industry. Volume 5.2 included several sports-focused pieces, including an article by Mark Grabowski analyzing mediation in the context of the 2012-13 National Hockey League labor strike, arguing that it should be used more often across professional sports in disputes between management and athletes. Darren A. Heitner and Richard Bogart contributed a piece using the recent controversy surrounding Richie Incognito’s alleged bullying of Jonathan Martin to examine the concepts of “conduct detrimental to the league” and “conduct detrimental to the team” as they appear in the National Football League’s newest collective bargaining agreement, exploring the impact of the CBA’s use of these concepts on players’ rights. Megan E. Boyd contributed an article chronicling the use of sports metaphors in judicial opinions, from the most popular borrows from Americans’ favorite sports to more obscure uses. Finally, Russell Yavner ’14 rounds out this volume’s pieces with a thorough look at both the history of Minor League Baseball’s antitrust exemption and related rules and infrastructure surrounding the development of professional talent, arguing that the resultant system is a net positive contributor to the merits of Minor League Baseball. In closing, I would like to thank Kelly again for her relentless dedication to ensuring that JSEL’s publications continued to improve this year, as she most certainly did in 2013-14. She has now set a very high bar for next year’s Co-Editors in Chief Kim Miner and Kyle Schneider to aim at. Nonetheless, it will be my pleasure to continue to work with Kim and Kyle to attempt to achieve even loftier goals in 2014-15, as JSEL begins to take its place among the most respected journals of its kind in both of its targeted law school and practitioner communities. Both Sides Win: Why Using Mediation Would Improve Pro Sports Mark Grabowski1 [email protected] Abstract Mediation, a type of alternative dispute resolution that utilizes a neutral outsider to facilitate a resolution for a conflict between two parties, is sel- dom used in American professional sports disputes. But the unique nature of such disputes, along with mediation’s success in ending the 2012-13 Na- tional Hockey League labor lockout, indicate that mediation should be used much more often, as opposed to the commonly used resolution methods of arbitration, litigation, and protracted negotiations. Mediation offers a fast, cost-saving method for settling virtually any kind of conflict. Its confiden- tial nature promotes open communication between the parties, which helps preserve, if not enhance, their working