T he Journal on Sports and Entertainment Law recently sat down with Harvard Law School Professor Peter Carfagna to discuss current issues in sports law. A portion of that interview is transcribed here.
In addition to teaching several sports law related courses, Professor Carfagna serves as Chairman/CEO of Magis, LLC, a privately owned sports marketing, management and investment company, including family ownership of the Lake County Captains, Cleveland Indians Class A Affiliate. Professor Carfagna previously served as Chief Legal Officer & General Counsel of International Management Group (IMG) and as Senior Partner at Jones Day LLP. At Jones Day, he worked as outside counsel to the Cleveland Browns and Cleveland Cavaliers’ ownership groups. Professor Carfagna also serves as Faculty Advisor to JSEL.
The interview was conducted by Jason Fixelle, the Sports Highlight Editor for the Harvard Journal of Sports and Entertainment Law and a current second year student at Harvard Law School (Class of 2016). The interview is the first in JSEL’s new interview series with lawyers in the sports and entertainment field that will be featured on JSEL online.
JSEL: There has been a rash of negative PR associated with the NFL recently due to the Ray Rice/Adrian Peterson situations. Do you think the NFL would be best served with a change in the guard in the Commissioner’s Office? Or do you think Roger Goodell is not the problem, but rather something that can be fixed with the creation of a neutral arbiter?
PC: I think that they are headed toward a system of neutral arbitration, which has been the model the other leagues have been following for awhile. They’ve already done it with the drug policy. It’s the natural evolution from having the Commissioner as the judge, jury, and executioner. I think the Personal Conduct Policy (PCP) and the domestic violence issues will end up in front of a neutral arbiter after further appeal from the Commissioner’s decision. The natural evolution is bound to occur through the bargaining process. It’s good for the league, for the sponsors, for the fans. I don’t see any really good reason why the Commissioner would want to keep this power, except, like in baseball, where the Commissioner can act in an extreme case without a neutral arbiter. They have never bargained over the PCP meaningfully. It has only been incorporated by reference by the last Collective Bargaining negotiations. The players association never brought it up in the last CBA negotiations. They don’t have a leg to claim that it is an unfair labor practice for the PCP to exist because they have acquiesced to it as it is.
JSEL: The NFL has also received heat due to recent concussion related litigation, which culminated in a settlement that totals over $870 million. Is more the NFL should be doing to protect its players?
PC: You heard it when Isaiah [Kacyvenski] and Scott [Dragos] came to talk in class. They both have major issues from playing in the NFL. We are now taking meaningful steps in the NFL to try to ensure the safety the players. We don’t want to take the helmets off and play rugby. No, that isn’t the answer. We don’t want to take the pads off and play flag football. People don’t want that either. If you like the game the violence is going to come with it. Certainly more can be done with getting rid of punts and kickoffs. Those are among the most violent plays of the game, but people love them. To me, they are unnecessarily impactful and dangerous and if it were up to me I would get rid of them and make fair catches be the rule. Running 40 yards to crash into someone is a demolition derby.
People aren’t going to go for no hitting of the quarterback at all. Certainly we can be more stringent on the way the quarterback can be hit. Those are the easiest ways I think to help. Maybe we could make the field wider like it is in Canada, but I am not sure that would help. They still get concussions in Canadian football. I just think the ever-present concern is that we need to have more independent doctors involved and better return to play standards. The NFL has been successful in limiting the number of OTA [Offseason Training Activities] and limiting hitting during in-season practices. Now some players might say that there is a greater risk because they aren’t used to going full contact and now the arguments could get circular.
JSEL: There is a lot of controversy swirling at my alma matter, Florida State University, about the handling of Jameis Winston’s sexual assault allegations. Recently, Michael McCann has suggested that the best legal option for Winston is to drop out of school to avoid the ramifications of a student hearing. What do you think of FSU’s decision to adjudicate Winston through the student conduct violation hearing?
PC: What you sign up for is that you agree to abide by the rules of the university when you sign your scholarship. If this is consistent with the university’s rules and the Title IX requirements and this process would be employed for every other student who engaged in similar activity, then I see it as a function of being a Florida State University student. I don’t know if he is being singled out. I don’t know if he is being treated differently because he is an athlete. If that’s the case, then we should be on the look out for it. I don’t see the argument that this is biased against him. The university has an obligation to investigate any charge like this. The fact that it kind of looks like the opposite of the NFL in that the university let [criminal] due process run its course doesn’t really matter. As I understand it, the university has to act neutral to what has happened in terms of whether he has been found guilty of any criminal activity. I feel that they are probably being advised in what they have to do to fulfill the student code of conduct and their Title IX obligations.
JSEL: Jameis Winston has also recently been implicated, along with Todd Gurley, RB from Georgia, for a possible NCAA rules violation related to the sale of autographs. As lawsuits like O’Bannon get decided, do you think that the NCAA should take a proactive stance on the changing nature of the student-athlete?
PC: I think there is a realization that is happening among the Big Five Conferences. They are moving toward a full cost of participation as opposed to full cost of attendance for student-athletes. There are going to be Title IX issues that might arise as if you pay male athletes you will also have to pay female athletes. It doesn’t require that every dollar has to be matched, but the participation has to be substantially proportion for both male and female student-athletes.
The schools that can afford it will need better guarantees for multi-year grants of scholarship. Better insurances will have to be in place to protect the schools against injuries when student-athletes are paid more. These are all things that are being talked about and I think its fair when you think about all the millions and millions of dollars that some of these schools are making, especially in football and basketball.
For the memorabilia issue, I think there needs to be a capped amount an individual can receive. It should be in a trust fund that you can access after you graduate. Otherwise you could have boosters buying the program. Come to Oregon and I will buy a million dollars of autographed material. It would be a runaway train. Schools with big boosters could run wild in a system with uncapped benefits for student-athletes. I think it will turn that way. Jeff Kessler has the Jenkins case where he is seeking a free agency system for high school seniors as they prepare to enter college. I don’t think that the structure as we know it will persist, but I would be surprised if the Jenkins lawsuit doesn’t settle.
JSEL: The NFL just instituted a new drug testing policy that tests for HGH. The MLB has now been testing for HGH for the past two seasons, but has yet to field a positive test. Do you think that there is more the MLB and the MLBPA should be doing to police HGH in baseball? Or do you think that the increased testing and larger suspensions have done their job?
PC: That’s a real tough one. I think it all depends. There is a way that if you really want to have a designer drug you can really beat any test. A-Rod kind of proved that for us as the reports have shown that he was spending $12,000 a month on them.
I don’t think that the lack of positive tests has anything to do with lack of compliance with the program. There have been no HGH positives in the MLB. Being around the game in the summer, primarily the minor leagues where there is random testing as no union exists to protect them, I think that the effect of what happens to a star like A-Rod just rockets through the stream. People are saying they aren’t going to fool around with the stuff [HGH and PEDs]. Players think that it’s good when the cheaters get caught. Most of the players are good. They are glad there is a tough policy. They don’t want to be disadvantaged by someone who has HGH in their system. That’s one less job, one less pitcher, catcher or outfielder that they’re competing for. Eventually there will be a positive test, but it’s a long road and we will see where it ends up.
JSEL: What advice would you give someone who wants to enter the field of sports or entertainment law?
PC: Taking the offered courses are important. The courses allow serious students to take part in clinical opportunities where you can really get involved in the industry. The placement opportunity [the Sports Clinic] is really the chance for you to say “Aha!” and see that all that you have learned is quite helpful in practice. This is why I encourage students to try to get a placement because you will try something and most always students like it. Very rarely has there been a situation where the student and the clinical sponsor did not see a mutually beneficial relationship. Students who we have put in placements have done invariably well and that has led to an embarrassment of riches for the program. Now we have sponsors saying, “Give us two people; one wasn’t enough.” Then students can put the placement on their resume and that is helpful.
Paloma Zepeda, a former student, had a placement with MLB Labor Relations Department and now she is a Deputy General Counsel for that department. She worked for a firm for a few years, tried to do some sports law work, and kept networking and staying in touch with the people she did her placement with and the opportunity presented itself. Some people have gone straight through from here to sports law positions. Ashwin Krishnan, the founder of JSEL, actually went straight through to work for the Marlins Legal Department and he has been there happily ever after. There is no one pattern that is perfect. Getting active in the Symposium while you’re here is also very important, as its important to network with all the resources the Harvard Sports Law Program has to offer.