Earlier this month, Jim Quinn sat down with members of the HLS community to discuss free agency, competition, and other topics covered in his new book, Don’t Be Afraid to Win: How Free Agency Changed the Business of Pro Sports. Jim fielded a variety of questions from the large and eager crowd over Indian food and a shared excitement of the future direction of the major sports leagues.  Below are some excerpts from the Q&A portion of his discussion on campus.

The interview was conducted by Madison Martin ’21 (Online Content Chair, Sports) and Daniel Alford ’20 (Executive Editor, Online Sports Content), from the Harvard Journal of Sports and Entertainment Law. It has been edited for clarity.

Q: Didn’t Curt Flood bring about free agency in baseball?

A: The answer is no, Curt lost the case. The Supreme Court continued the baseball exemption … but it did not apply to basketball, hockey, and football, so as a result, we pressed forward under the antitrust laws. The biggest issue was the non-statutory labor exemption – the owners said this was all part of collective bargaining, so it should be exempt from the antitrust laws. The issue got to be “when does the labor exemption end?” Various cases (including Powell) said – as long as there was a collective bargaining agreement in place and a union remained a union, it was exempt under the antitrust laws. As a result of the McNeil agreement, we entered into what was called the White Agreement. For further reading, see http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1068&context=sportslaw.

Q: Could you speak a little more on the history of lockouts and free agency?

A: Ironically, the first lockout we had in 1994 turned out to be a disaster for the owners, and the teams collapsed – this was the first instance of free agency in the NHL. The reality is, once you have some level of free agency, some level where the competitive market sets the price, it impacts everybody along the line, because a player still under contract will say, “So and so got 5 million, and I am a better player than him so I should at least get that much.” As a result, it set a bar that impacted hockey and led to the year-long lockout in 2005, where (Gary) Bettman insisted he needed to get a salary cap in order to survive, which is where we live today.

Q: Do you think any leagues are headed toward a lockout or strike?

A: I don’t think any of them are. The money now is so huge on both sides, that having a work stoppage that actually effects revenue streams is unlikely. You can’t get that money back, no matter what you do, whether you are an owner locking out or you are a player and going to strike and forego significant salaries, it is very difficult. Is it possible? It may be possible in baseball, because they have some complicated issues now with the “youth movement” and the way their system worked. It has worked for a long time, but there is a question of collusion because older players aren’t getting the same level of compensation, and you have this whole question now of all these younger players just starting and becoming stars immediately and the league has to figure out have to deal with that. The chief negotiator for the union is one of my former partners, and I know that these are issues that they are wrestling with.

Q: In Chapter 9 of your book, you further discuss salary caps. Was the argument against salary caps based on the fact that there was a trust in regards to employment? And how does it matter that it is sort of a non-essential industry?

A: The owner’s argument always was that they needed all the restrictions to maintain competitive balance. The argument has always been bullsh-t and it is for the next 100 years because if you have competent people running teams, with the Tampa Bay Rays as an example, in a system where you have free agency and the draft in some form — and as an aside, the draft has become a little bit of a farce, it is little more than a marketing tool than anything else — all of this has been a huge boom to professional sports because it keeps the different sports in front of the public the whole year, because something is always going on, then you can’t lose that competitive edge.

Q: Any opinions on recent NCAA litigation in CA?

A: I am sure you are aware now, at least three states have passed laws relating to the use of likeness, which is just a disaster – because you can’t possibly have fifty states regulating an industry that is essentially a national industry. What happens when Auburn plays UCLA? Can the Auburn players now get paid? Legislation has to be on a federal level, or the NCAA has to get its act together and craft rules that will allow this. I tend to agree with the view that stipends serve as a possible solution. Putting the names and likeness issues aside, for the D1 schools and perhaps others, to give players a stipend to offset their inability to work during the summer — they can’t get jobs and vacation and so forth —  this would go a long way to quelling this whole issue.  However, the NCAA still hasn’t gotten their act together, it’s a horrible organization, the problem is it has 1100 members, and little schools have the same voice as Michigan. It makes zero sense, and maybe eventually it will be done out by a conference by conference basis.

Q: But what about players that contribute significantly more?

A: You can’t do it that way, it’s college sports. Unless you want to decide that it is just professional football, and nobody really wants that, you have to guide out a different kind of system. It can’t be just the NFL without steroids. The name and likeness thing is more confusing, and I am not sure how this will ultimately play itself out – you are really talking about nationwide, a couple dozen players that people care about, it’s not a lot of players.

Q: You worked on the Florette age eligibility case (on safety issues with younger athletes). I am curious your thoughts on the Women’s Tennis Association and Coco Gauff being 15, with regards to restrictions on how much she can play?

A: If someone wanted to bring a lawsuit they would probably win it, because obviously she can play. There is no competitive rationale to bar someone like her from playing. It is paternalistic. Similarly, in the NBA, there should be no “one and done”. It is different than football because it is not a safety issue. If you can play at 17, I mean just look at Kobe Bryant.

Q: Are there one or two important issues for students to keep their eyes on?

A: The continuing issues of IP and in a broader sense, you know that there is the DirectTV litigation in the West coast, which is an interesting piece of litigation. The economics of these sports are likely to change over time. Right now, the live sports are the lifeblood of the networks. At some point, there is going to be bidding from Amazon and Netflix and maybe even Disney as they create these streaming services. These people have incredible amounts of money, certainly long term, and I know talking to the head of NBC Sports, they see that as a long-term serious threat to their business.

 

For more information on these topics and others, feel free to check out Jim’s book, Don’t Be Afraid to Win: How Free Agency Changed the Business of Pro Sports. https://www.amazon.com/Dont-Be-Afraid-Win-Business/dp/1635766788