The NFL and Super Bowl Ticket Prices (Finkelman v. NFL)

The NFL and Super Bowl Ticket Prices (Finkelman v. NFL)

A few weeks ago, Josh Finkelman sat in the upper decks of MetLife Stadium watching the Seattle Seahawks defeat the Denver Broncos in Super Bowl XLVIII. The price for those nosebleed seats? $4,000 for two tickets.[1] Mr. Finkelman is now the lead plaintiff in a class action lawsuit filed last month against the National Football League (NFL) alleging unfair ticket distribution policies that drive up the price of Super Bowl tickets in violation of New Jersey’s consumer protection laws. The complaint in Finkelman v. NFL argues that the NFL’s method of distributing tickets forces most fans to buy through the secondary market of ticket resellers who charge well above face value.[2] The proposed class for the suit would consist of “all persons who purchased tickets, who will purchase tickets, or who cannot afford to purchase tickets to Super Bowl XLVIII at a ticket price that is higher than the face value of the ticket from a period beginning with the first day tickets went on sale through the present.”[3] 

Under the New Jersey Consumer Fraud Act, “[i]t shall be an unlawful practice for a person, who has access to tickets to an event prior to the tickets’ release for sale to the general public, to withhold those tickets from sale to the general public in an amount exceeding 5% of all available seating for the event.”[4] The complaint alleges, however, that the NFL only allocates 1% of tickets to the general public through a lottery system held the year prior to the game.[5] 75% of tickets are instead allocated to the 32 teams with the remaining 25% distributed by the NFL to “companies, broadcast networks, media sponsors, the host committee, and other league insiders.”[6] This system, Mr. Finkelman argues, results in tickets made available only at grossly inflated prices through the secondary marketplace in violation of New Jersey law.[7] The NFL has not yet filed a response to the complaint, but league spokesman Brian McCarthy stated to the New York Times that “[w]e strongly disagree with the plaintiff’s interpretation of the NJ Consumer Fraud Act and his claims” and noted that such a distribution system “has been in existence for years and is well documented.”[8]

Although the NFL has used this method for many years, this year is unique in that New Jersey, home to MetLife Stadium where this year’s Super Bowl was held, has much stronger consumer protection laws than any other state where the game has been held previously.[9] The case ultimately may turn on how the court interprets the “general public” language of the New Jersey law. The tickets that are distributed to teams do go to fans ultimately, and thus may not be interpreted as being withheld from the public as the law requires.[10] Should Mr. Finkelman be victorious, however, the Consumer Fraud Act provides that “the court shall…award threefold the damages sustained by any person in interest”[11] and the proposed class could include tens of thousands of members, according to Mr. Finkelman’s lawyer.[12]

Ultimately, it is unclear how the court will rule as this is the first such suit challenging ticket prices brought against the NFL.[13] The first hurdle Mr. Finkelman may have to face is getting his proposed class certified at all, which may depend on whether the court determines that the broad class of consumers cited by Mr. Finkelman all have similar enough grievances to warrant class status.[14] Even if the suit is to go forward, it is quite possible that the judge will read the New Jersey consumer law broadly in favor of the NFL. After all, New Jersey offered $8 million in tax incentives to attract the NFL in the first place[15], and should there be an unfavorable ruling, it’s a safe bet that the biggest game of the year is never coming back.

Marisa Weisbaum is a current Harvard Law School Student (Class of 2016).
Suggested citation:
Marisa Weisbaum, The NFL and Super Bowl Ticket Prices (Finkelman v. NFL), Harv. J.Sports & Ent. L. Online Dig., February 24, 2014,


[1] Alan Feuer, Lone Fan Tackles the N.F.L. Over Super Bowl Ticket Prices,

[2] Complaint at 2, Finkelman v. NFL (D.N.J. 2014)

[3] Id. at 3. Note that this lawsuit was filed on January 3, 2014, one month before the 2014 Super Bowl which was held on February 2, 2014.

[4] N.J.S.A. 56:8-35.1.

[5] Complaint at 2, Finkelman v. NFL (D.N.J. 2014)

[6] Id. at 6

[7] Id.

[8] Alan Feuer, Lone Fan Tackles the N.F.L. Over Super Bowl Ticket Prices,

[9] Id.

[10] Susanna Kim, NFL Sued for ‘Unfair’ Super Bowl Ticket System,

[11] N.J.S.A. 56:8-19

[12] Alan Feuer, Lone Fan Tackles the N.F.L. Over Super Bowl Ticket Prices,

[13] Id.

[14] Fed. R. Civ. P. 23

[15] Ted Sherman, NJ Gives NFL Super Tax Break for Super Bowl, and Pays for Security,

Macklemore and the Fear of the Minstrel Show

Macklemore and the Fear of the Minstrel Show

I. Introduction to Macklemore and the Pattern of Cultural Appropriation

The trajectory of Macklemore and Ryan Lewis (“Macklemore”) is where the complexity of the race in music debate begins.[1] Because Macklemore emerged on an independent label from Seattle, he has experienced a very peculiar sort of hip­hop fame, one that has little to do with approval from the center of hip­hop.[2] Rap culture is rooted in 1970’s Black and Latino youth. While it has long incorporated participants of every race and nationality,[3] Macklemore’s success has unfolded largely without Black gatekeepers[4], a traditional hallmark of White rappers through the years, such as Eminem, Beastie Boys, and MC Serch.[5] Instead, Macklemore jumped straight from the independent hip­hop underground to the pop charts.[6] But he is more than just a White artist who muscled his way into a historically Black genre and walked away with America’s greatest prize for music, a Grammy.[7] Macklemore represents a feared revival of cultural appropriation.

American popular music contains this pattern of Black musical innovation and communal creation, followed by a copying and/or imitation by the dominant culture, commonly referred to as cultural or racial appropriation.[8] Macklemore has exercised the “entire cycle of racial borrowing in an environment of white privilege: [B]lack art, White appropriation, White guilt, repeat until there’s nothing left to appropriate.”[9] We knew this was coming.[10] A strikingly consistent characteristic of cultural appropriation is its one-way direction — White performers obtaining economic and artistic benefits at the expense of minority innovators.[11] Macklemore acknowledges his musical roots in Black rap artists of the late ‘90s such as Digital Underground, Hieroglyphics, Reflection Eternal, and Raekwon.[12] He also openly and adamantly admits that he benefits from white privilege.[13]

In Copyright, Culture & Black Music: A Legacy of Unequal Protection, K.J. Greene identifies four distinct patterns resulting in inadequate intellectual property protection for Black music artists.[14] Macklemore’s music and acceptance into mainstream American culture fits the fourth pattern, which Greene labels the “Minstrel Show pattern,” defined by a period of innovation by Black artists, followed by white performers seeking to imitate and distort the genre. [15]  The distortion either (1) portrays Black culture in negatively stereotypical ways, such as the old Minstrel Shows, or (2) waters down the vitality of Black music to make it more palatable for white audiences, the so-called “cross-over” phenomena.[16] This crossover phenomena involves the absorption of African-American contributions as simply “American” or “universal” after being accepted by mainstream culture.[17]

II. The Reminder of Two Key Traits of Cultural Appropriation

On January 26, 2014, rap artist Kendrick Lamar lost every Grammy award he was nominated for, most infamously when Macklemore & Ryan Lewis won the Best Rap Album Grammy. The fallout from the American public and media pundits was heated.[18] The outcry from African-Americans was not simply that Kendrick Lamar’s album deserved to win the Grammy for Best Rap Album. Furthermore, the quality or suitability of Macklemore as a hip-hop artist is not at issue here.[19] By Kendrick Lamar failing to win the Grammy for Best Rap Album, the Black inner conscience is again haunted with echoes of past grievances.[20] The juxtaposition between the Seattle-born Macklemore and Kendrick Lamar’s Compton roots has revived feelings from “the historical pattern of cultural appropriation included the predisposition of the dominant culture to stereotype and demean minority cultures.”[21] Macklemore’s victory is another abrupt-band-aid-pulling-scab-opening reminder of the American music history of cultural appropriation, including two of its key traits.

First, cultural appropriation pushes out cultural trailblazers – perhaps in efforts to be “colorblind” – in creating this mainstream American music culture.[22] In similar circumstances, the great jazz composer Duke Ellington, a towering figure in American music, was rejected for a Pulitzer Prize in the 1960s. At the time the board claimed that Ellington’s music was insufficiently “serious”; it regularly awarded the prize to composers working in the European art music idiom descended from Haydn, Mozart, Beethoven, Brahms, Mahler, and Schoenberg.[23] Kendrick Lamar’s loss is a symbol of that historical ill, another prominent American artist passed over for justly deserved recognition from a White-dominated institution. The crossover of rap is not the problem; instead, it is the tendency for American music to reject the cultural origins of language and practices that it finds disturbing.[24] Because Macklemore won, a Black rapper from Compton could not win. It has happened before. America has witnessed cultural trailblazers like Little Richard, Chuck Berry, and James Brown squeezed out of their place in popular consciousness to make room for Elvis Presley, Mick Jagger, and others.[25] Macklemore symbolizes that it can happen again.

The second fear is broader: that African-American contributions to the arts are again being devalued. In genres historically considered Black, such as rap, a Black protectionist culture combats against the lingering results of a broad and pervasive social discrimination that both devalued Black contributions to the arts and created greater vulnerability to exploitation and appropriation of creative works.[26]

The Grammy snub was a reminder that even the social issues that Kendrick Lamar’s rhymes echo are not mainstream issues.[27] Both Macklemore and Kendrick Lamar are socially conscious rappers, using music as the currency to address current social issues. Kendrick harnesses the power of rap to discuss issues important to African-American culture through the lens of his complicated relationship with his hometown of Compton.[28] Macklemore appropriated his rapping style from Black culture, harnessing the story-telling features of the genre to address social issues closely affiliated with White America, such as gay marriage[29], materialism[30], and the suburbs[31].

The Grammy’s snub shows that Kendrick Lamar’s message and voice, his way of transmitting these issues into public space, are not accepted by the dominating White institution of music. Instead, Macklemore’s more mainstream message is more valued simply because it fits the agenda of the White majority. In failing to acknowledge Kendrick Lamar’s musical accomplishment, the Grammy’s have neglected his message and dismissed his music as “deviant.”[32] But worse, this snub occurred in a category defined and created by predominantly African-American artists and “gatekeepers”, representing a denial of the African-American voice. Furthermore, the economic value to an artist provides evidence that the Grammy’s serve as a mechanism for economic opportunity.[33] And while the economic exploitation of the African-American is well-documented, “the indignity of [economic devaluation] is not the sole one to which the [B]lack [artist] is exposed. [They] must also watch as less talented and but more palatable [W]hite imitators and popularizers reap the . . . benefits of [B]lack innovations.”[34]

III. Conclusion

Is Macklemore the next Vanilla Ice? Or has Macklemore opened the doors for White, post-Eminem rap artists to dominant the hip-hop landscape?[35] Regardless of the answer, America must remain aware of its history of ignoring cultural origins and devaluing Black artists.

Jaimie K. McFarlin is the Online Content Editor for the Harvard Journal of Sports and Entertainment Law. She is a second-year law school student and is originally from Monroe, New York.  Jaimie is an avid fan of hip-hop, Motown, country, and anything else that sounds like music.  She spends her free time consulting for a small independent EDM record label.

Suggested citation:
Jaimie McFarlin, Macklemore and the Fear of the Minstrel Show, Harv. J.Sports & Ent. L. Online Dig., February 3, 2014,

[1] On January 26, 2014, rap artist Kendrick Lamar lost every Grammy award he was nominated for, most infamously when Macklemore & Ryan Lewis won the Best Rap Album Grammy.

[2] Finding a Place in the Hip-Hop Ecosystem,

[3] Yohance Kyles, Hip Hop’s Anger Over Macklemore’s Grammy Win Is About Respect Not Race,

[4] See Grammys: Macklemore Almost Cut From Rap Categories, (detailing the controversy within the Grammy committee of labeling Macklemore and Ryan Lewis as a rap group).

[5] Yohance Kyles, Hip Hop’s Anger Over Macklemore’s Grammy Win Is About Respect Not Race,

[6] Finding a Place in the Hip­Hop Ecosystem,

[7] Id.

[8] K.J. Greene, Copyright, Culture & Black Music: A Legacy of Unequal Protection, 21 Hastings Comm. & Ent L.J. 339, 371 (1999).

[9] Yohance Kyles, Hip Hop’s Anger Over Macklemore’s Grammy Win Is About Respect Not Race,

[10] It is undeniable that the “appropriation of rap is readily apparent in pop culture.” K.J. Greene, Copyright, Culture & Black Music: A Legacy of Unequal Protection, 21 Hastings Comm. & Ent L.J. 339, 364 (1999).

[11] K.J. Greene, Copyright, Culture & Black Music: A Legacy of Unequal Protection, 21 Hastings Comm. & Ent L.J. 339, 368 (1999).


[13] See CRWN x Macklemore, Ep. 3: White Privilege and What’s Next, where Macklemore states:

“But it’s something that I absolutely, not only in terms of society, benefit from my white privilege but being a Hip Hop artist in 2013, I do as well. The people that are coming to shows, the people that are connecting, that are resonating with me, that are like, ‘I look like that guy. I have an immediate connection with him.’ I benefit from that privilege and I think that mainstream pop culture has accepted me on a level that they might be reluctant to, in terms of a person of color…”

[14] 21 Hastings Comm. & Ent L.J. 339, 373 (1999).

[15] Id. See also K.J. Greene, “Copynorms,” Black Cultural Production, and the Debate over African-American Reparations, 25 Cardozo Arts & Ent. L.J. 1179, 1187 (2008) (discussing the minstrel tradition that profoundly shaped cultural values in America and was based on “[W]hite performers trying to imitate [B]lacks.”

[16] K.J. Greene, Copyright, Culture & Black Music: A Legacy of Unequal Protection, 21 Hastings Comm. & Ent L.J. 339, 373 (1999).

[17] Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stan. L. Rev. 1241, 1288-89 (1991). For parallels in the jazz music context, see also K.J. Greene, “Copynorms,” Black Cultural Production, and the Debate over African-American Reparations, 25 Cardozo Arts & Ent. L.J. 1179, 1188-89 (2008) (asserting that “the most important effect that the advent of [W]hites had on jazz had nothing to do with the performance of the music at all . . . . [All] the [W]hite players did was to bring jazz into the American mainstream.”)

[18] For a summary of several critical responses, see Macklemore, the Grammys and race: An Internet tempest,

[19] Macklemore’s music itself is not at issue. He is a well-respected hip-hop artist within several circles. See;

[20] See K.J. Greene, Copyright, Culture & Black Music: A Legacy of Unequal Protection, 21 Hastings Comm. & Ent L.J. 339, 358 (1999) (documenting the legacy of racial and cultural appropriation in several music genres).

[21] K.J. Greene, “Copynorms,” Black Cultural Production, and the Debate over African-American Reparations, 25 Cardozo Arts & Ent. L.J. 1179, 1203 (2008) citing K.J. Greene, Copyright, Culture & Black Music: A Legacy of Unequal Protection, 21 Hastings Comm. & Ent L.J. 339, 358 (1999); see also Kimberlee Crenshaw, Race, Reform and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 Harv. L. Rev. 1331, 1380 (1988) (“White race consciousness, which includes the modern belief in cultural inferiority, acts to further Black subordination by justifying all the forms of unofficial racial discrimination, injury and neglect that flourish in a society that is only formally dedicated to equality.”)

[22] See Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stan. L. Rev. 1241, 1288 (1991) (discussing colorblind incorporation of African-American cultural traditions in Skyywalker Records, Inc. v. Navarro, 739 F. Supp. 578, 582 (S.D. Fla. 1990) rev’d sub nom. Luke Records, Inc. v. Navarro, 960 F.2d 134 (11th Cir. 1992)).

[23] K.J. Greene, Copyright, Culture & Black Music: A Legacy of Unequal Protection, 21 Hastings Comm. & Ent L.J. 339, 369-70 (1999)

[24] Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stan. L. Rev. 1241, 1299 (1991)

[25] Id. at 1299 (citing the “meteoric rise of [W]hite rapper Vanilla Ice [as] a contemporary example”).

[26] K.J. Greene, Copyright, Culture & Black Music: A Legacy of Unequal Protection, 21 Hastings Comm. & Ent L.J. 339, 356-57 (1999).

[27] For discussion of Kendrick Lamar’s socially aware music style, see;

[28] See Album Review: Kendrick Lamar’s good kid, m.A.A.d city.

[29] “Same Love”,

[30] “Thrift Shop”,

[31] “White Walls”,

[32] Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stan. L. Rev. 1241, 1288-89 (1991).

[33] Zack O’Malley Greenburg, Forbes, “The Grammy Bounce: How Much Is An Award Really Worth?” (sampling performers and producers to reveal a “Grammy Bounce” of at least 55% in concert ticket sales and producer fees during the year following a Grammy win); see also “How Important Are the Grammy Awards?”,

[34] See Frank Kofsky, Black Nationalism and the Revolution in Music (1970).

[35] In these patterns, the “appearance of [W]hites in a black musical form has historically prefigured the mainstreaming of the form, the growth of the [W]hite audience, and the resulting dominance of [W]hite performers.” K.J. Greene, Copyright, Culture & Black Music: A Legacy of Unequal Protection, 21 Hastings Comm. & Ent L.J. 339, 371 (1999).


“Unsportsmanlike” Conduct and That Richard Sherman Interview

“Unsportsmanlike” Conduct and That Richard Sherman Interview

Richard Sherman, star defensive back for the NFL’s Seattle Seahawks, has received severe public criticism for his comments in the immediate aftermath of his team’s victory over the San Francisco 49ers in the NFC Championship Game this past Sunday.[1] Many of these insults have attacked his intelligence, his character, his “class,” his humanity – not to mention others that are unquestionable instances of overtly racist and hateful speech.[2] These assaults are unjustified and based on an oversimplified analysis or hasty judgment that is consciously or subconsciously motivated by a desire or need to confirm race-based stereotypes.

Another strand of public commentary expresses concern that, regardless of the how Sherman’s interview should have come across, his interview will negatively impact American race relations because critics will use Sherman’s interview to “confirm” racial stereotypes.[3] To prevent such stereotype confirmation in this particular case – although I am completely unsympathetic to such conclusions in any and every event – I propose a more exacting review of an appropriate response to Sherman’s conduct, and hope that such analysis will illuminate that Sherman’s conduct reasonably should have been expected and did not deserve the degree and nature of personal insults that it generated.

A. The degree and nature of public outrage over Sherman’s interview is unjustified.

To determine whether Sherman’s conduct deserves criticism, strong or weak, there are at least four relevant and related questions. The threshold question is whether Sherman owed his opponent or the public some standard of conduct at all. The scope of this question is largely theoretical given how public this debate has become, and I will assume for the purposes of this article that Sherman owed such a duty. Therefore, the questions I address are as follows: (1) by what standard should we evaluate Sherman’s conduct; (2) did Sherman’s conduct overstep this standard; and if so, (3) was Sherman’s conduct so egregious to warrant the level of public outrage expressed?

1. Sherman’s conduct should be evaluated under a standard of sportsmanship owed a rival player in an NFL playoff game.

I begin by addressing the vocabulary of most critical responses to Sherman’s interview, which have decried Sherman’s lack of “class.” “Class” is a term loaded with historical and cultural value judgments; to say that someone is or is not “classy” imputes critical assumptions based on past-and-present racial and socioeconomic conditions and experiences. To avoid such deep, convoluted implications and a biased framing, rather than ask whether Sherman acted with “class,” we should ask how and to what degree Sherman departed from  “sportsmanlike” conduct in this context.

Additionally, I define the relevant context of the statements as a forced response in the seconds following an emotional and highly physical game of great importance, while facing an individual opponent with whom you have a history, in a sport defined by its violence and intensity. It may be argued that this is a biased framing that is built to support Sherman’s conduct, however any other framing would fail to give adequate weight to the underlying circumstances that made this interview exceptional.

Given the question presented and the context (or some variation thereof), I believe that Sherman only owed the public and his opponent the level of sportsmanship that fans demand during the game itself: near-absolute mental and physical dedication (including sacrificing short term and long term health[4]) to your team, its victory, other than that which would cause unpenalized physical injury to the opponent’s players. I believe this holds especially true for a team leader, which Sherman certainly is, in which case fans also require inspirational verbal and physical displays of emotion, including those that may disparage and vilify the opponent and its players.

I realize that my take on the relevant standard is contestable. One could argue athletes should be held to a higher standard of sportsmanship during the in-game context that I describe. Going further, one may argue that once a game ends a distinct post-game standard should apply. Further yet, it is arguable that a post-game standard should be higher for victors than for losers.

Nevertheless, any sportsmanship standard should reflect the context and timing of the interview. Former athletes should consider their own experiences and reflect on the type of comments made on the field, in the aftermath of a loss, or the heat of a hard-fought win. Similarly, fans should consider the comments they hear and make during a game, following a defeat, and while celebrating a victory. All evaluators should consider the unique emotional nature of play-off games and rivalry matchups. Similarly, should consider whether “bad-blood” between players renders attempts at sportsmanship more difficult.  Expectations of sportsmanship should depend on the situation that the player faces; in all reasonableness, you should not require players to act the same way in a controlled post-game environment that they would seconds after the final whistle blows.[5] Until these “professional” athletes step off of the field, they are still sweating and bleeding in helmets and pads, not polished and scrubbed clean in suits and ties.

2. Richard Sherman met or exceeded the applicable standard of sportsmanlike conduct.

Under my sportsmanship standard, I believe that Sherman clearly met the level of sportsmanlike conduct required under the circumstances. If anything, Sherman exemplified the qualities fans demand of a passionate NFL leader and athlete in a contentious play-off game. In addition to the nature of NFL football as described above, the gloss of a play-off game, Sherman made the game-sealing play seconds before the interview against none other than Michael Crabtree, with whom he has “bad-blood” and was matched up against in a physical contest for three hours. Each of these facts cut sharply against finding that Sherman demonstrated poor sportsmanship. As such, Sherman could only have overstepped his sportsmanship obligations with egregious personal attacks. As such, Sherman’s statements that he is “the best corner in the game,” that Crabtree is a “sorry receiver,” and that if Crabtree were to talk smack that Sherman would “shut [his mouth],” are far from incendiary. Although one could argue that Sherman’s external comments and actions, such as his history of “cocky comments” or smack-talk in game (including any judgments about his response to the Bowman injury – he prayed for Bowman [6] – which actually helps his case) are relevant to assessing the level of sportsmanship displayed, this query is off-point; the exacting public outrage has been directly aimed at this interview and not at Sherman’s previous statements or general conduct, which many (or most) offending fans were likely unaware of and unconcerned with prior to this incident. As such, I believe that Sherman did not violate the applicable sportsmanship standard.

Concededly, my analysis depends on my standard as applied, and the analysis would be different if a heightened standard were applied. I urge those who apply a different standard to consider three main elements: (1) Review Sherman’s conduct by strictly applying the previously set-out standard of sportsmanship; (2) ask whether the content of Sherman’s interview was really controversial under the standard (i.e. was saying that Crabtree is a “sorry receiver” truly inappropriate?); and (3) ask whether Sherman’s delivery – visceral, intense, and arguably violent – should impact your analysis at all. The third point largely implicates concern that the degree and nature of the public outrage inherently involves an implicit or explicit willingness to confirm racial stereotypes. On this element I do not claim that the third factor is irrelevant per se, but if you do consider it, ask yourself the following: would a similarly passionate response by a white player cause public uproar, or would he be perceived as a powerful leader, the archetype of a physical and  violent sport?

3. Even if Sherman did not meet the relevant standard of sportsmanship, the amount and type of blowback and public outrage was unjustified.

If you still believe that Sherman overstepped the applicable standard of sportsmanlike conduct, then I ask one final question: Did the degree to which Sherman’s conduct overstepped this standard warrant widespread attacks on his intelligence, character, and value as a person? The answer is absolutely not. While judging the content of a player’s public remarks as uninformed, inflated, or lacking tact may be an appropriate conclusion depending on the comment, judging a player’s overall personal intelligence, integrity, and character based on strictly game-related statements made in a single interview is an incomplete and unfair assessment. Particularly groundless in this case, these judgments have been employed to slander a highly educated and thoughtful individual.[7] Sherman’s comments were directed at his own ability, the ability of his opponent, and his opponent’s conduct. Even if Sherman made these statements in a manner perceived to be cocky or disrespectful, the content of his comments cannot be construed in good faith as indicating that he is not intelligent, not of high moral character, or not a dignity-deserving human being.

B. Conclusion: Sherman boldly displayed the on-field passion that fans demand from NFL players, and to disparage the same conduct is an inconsistent double-standard.

Richard Sherman made an incredible play against a rival opponent to win a down-to-the-wire game that gave the team he leads a chance to win the Super Bowl. If he owed a duty of sportsmanship to his opponents or the public in the seconds after completing the final play, the standard he is held to must be largely or completely reduced from the applicable standard in a post-game interview for which there is time to “cool off.” If that standard is applied with reason and without discriminatory prejudice, the largely mundane content of his comments should not have garnered significant criticism, despite his passionate delivery. Regardless, in no way did Sherman deserve the harsh and degrading personal insults hurled at him following his interview. Rather, his statements and delivery displayed exactly the spectacle fans require of NFL athletes playing this cruel and punishing game: power, dedication, and raw will to win. That critics attack Sherman for conduct they demanded mere seconds before and in those conditions is conspicuous, ridiculous, and ultimately invidious.

Sam Straus is originally from Santa Cruz, California, and is an avid fan of the San Francisco Giants and 49ers. Although he still expects to make the big leagues someday, he is currently working to complete his second year at Harvard Law School, just in case. 

Suggested citation:
Sam Straus, “Unsportsmanlike” Conduct and that Richard Sherman Interview, Harv. J.Sports & Ent. Online Dig., January 22, 2014,




[3] See

[4] See (NaVorro Bowman’s injury during the same game)

[5] Compare (Sherman’s staged press conference for “Beats by Dre”) with (A characteristic in-game reaction by the 49ers’ head coach, Jim Harbaugh)


[7] See Id..

University’s Attorney-Client Privilege Survives Basketball Coach’s Disclosure

University’s Attorney-Client Privilege Survives Basketball Coach’s Disclosure

In a whistleblower suit brought by a former athletic director, a New Jersey Appellate court recently held that a basketball coach’s disclosure to the NCAA of an email to the university’s counsel did not waive the university’s attorney-client privilege.  See Hedden v. Kean University, No. A-4999-12T2 (N.J. App. Div. Oct. 24, 2013).

Back in 2010, the Kean University (“Kean”) women’s basketball team took a trip to Spain.  The trip had both an academic and an athletic component, as the participants were to hone their basketball skills and earn Spanish credits.  The opportunity was available only to members of the team.  To fund the trip, head basketball coach Michele Sharp sought donations from fundraisers, and on January 29, 2010, she emailed a draft solicitation letter to Kean general counsel Michael Tripodi for review (the “Email”).

After the trip, Glenn Hedden, Kean’s athletic director, became aware that the trip potentially ran afoul of NCAA regulations.  The NCAA launched an investigation.  Sharp retained her own private counsel, and later disclosed the Email to the NCAA.  Kean claimed it was never consulted about, and never approved of, the production of the Email.

During the fallout of the NCAA investigation, Kean dismissed Hedden for failure to properly supervise subordinates, and Hedden in turn sued Kean for wrongful termination.  In discovery, Hedden requested the Email, and Kean refused, asserting attorney-client privilege.  The trial court ordered Kean to disclose the Email, and the University appealed.

The appellate court held that (1) the email was protected by the corporate privilege, and (2) that privilege had not been waived because Kean, the holder of the corporate attorney-client privilege, had not authorized Sharp to waive that protection.

The attorney-client privilege protects confidential communications between client and counsel made for the purpose of securing legal advice.  Where the client is a corporation, the privilege covers communications to counsel made by mid or lower level employees, so long as they are made for the purpose of soliciting legal advice.  See Upjohn Co. v. United States, 449 U.S. 383, 391 (1981).  The court found that the Email met this requirement.  Sharp emailed Tripodi for him to review a fundraising letter.  In the court’s view, “there would be no plausible reason for the request other than to solicit legal advice.”  Hedden, at 11.  Tripodi often reviewed similar letters for Kean, and he had no role in fundraising other than as legal counsel.

On the issue of confidentiality, the court determined that the Email satisfied that requirement even though another Kean employee received a courtesy copy.  The “privilege should not be defeated by some limited circulation beyond the attorney and the person” requesting the legal advice.  Hedden, at 13.  A single courtesy copy to another Kean employee did not rise to the level of broad internal dissemination that would undermine the confidentiality of the communication.  Thus, the Email, at the time it was made, was protected by the attorney-client privilege.

In this case, however, “the closer question is whether the University waived the attorney-client privilege upon Sharp’s disclosure of the email to the NCAA.”  Hedden, at 14.  That outcome depended upon Sharp’s authority to waive Kean’s privilege.

Where the corporation is the client, “the authority to waive the attorney-client privilege does not belong to each and every employee of the corporation, but rather is held by the organizational client, namely the officers and directors of the organization.”  Hedden, at 15 (citing Commodity Futures Trading Co. v. Weintraub, 471 U.S. 343, 348 (1985).  Sharp was never a Kean officer, director, or otherwise involved in Kean management.  She was not acting pursuant to Kean instructions when she produced the email to the NCAA.  Critically, “the University neither directed nor approved Sharp’s release of the e-mail.”  Hedden, at 16.  Thus, Sharp was not acting in the scope of her employment in releasing the email, but rather in her own interest.  The University did not have to “voice an objection at the time or take affirmative steps” to preserve the privilege in the face of Sharp’s disclosure.  Hedden, at 17.

The dissent argued that the Email was not sent for the purpose of securing legal advice, and thus was never privileged.  In the dissent’s view, the Email sought permission to fundraise, rather than legal advice.  The dissent wanted to see a more explicit appeal for legal advice before finding that the privilege applies.  Otherwise, any communication to an attorney would satisfy the “purpose of seeking legal advice” requirement.

On the issue of waiver, the dissent found it troubling that Kean did not object when Sharp disclosed the Email to the NCAA, and only asserted the privilege during Hedden’s lawsuit.  The dissent concluded it allowed too much gamesmanship.  Kean was able to use the Email advantageously in the NCAA investigation, when it was in its interest to disclose it, and then protect it in the course of Hedden’s lawsuit.  “The attorney-client privilege should not be the subject of such arbitrary, selective, and opportunistic enforcement and cannot be doffed and donned like a raincoat on a cloudy day.”  Hedden, dissent at 9.

Ultimately, Hedden reinforces the strength of the corporate privilege.  As a practical matter, it further incentivizes corporations to instruct employees to rely on corporate counsel, because of the presumption that such communications are made for the purpose of securing legal advice.


Jeffrey M. Monhait (Harvard Law School, Class of 2012) practices in the commercial litigation group at Cozen O’Connor in Philadelphia.


Suggested citation:

Jeffrey M. Monhait, University’s Attorney-Client Privilege Survives Basketball Coach’s Disclosure, Harv. J.Sports & Ent. Online Dig., November 27, 2013,

NCAA Football: Why the Big Guys Pay Their Little Brothers to Play

NCAA Football: Why the Big Guys Pay Their Little Brothers to Play

There is no question as to why the University of Michigan or the University of Alabama would pay an Appalachian State University or a University of Buffalo to come to their stadium and play a good ol’ game of football – another win, more profits, and no “home and home.”[1] But what incentives does this matchup provide to the little guy? Why would a university within a sub-Division I conference agree to travel to a powerhouse school and receive a beating? The answer lies where it commonly does in college sports: money.[2] Some teams, like University of Buffalo, reason that the money they earn from such matchups goes toward improving their athletic facilities, but others, like Florida Atlantic University, simply say that accepting losses from strong athletic programs brings exposure to its players and provides them with excellent experience playing against skilled opponents.[3] Furthermore, even these so-called “guaranteed-games” are no longer an ensured “W” on a team’s record.[4] For example, in 2007 the University of Michigan paid Appalachian State University $400,000 to come play at the Big House and to ensure a win for the Wolverines in their season opener, only to result in one of the biggest upsets in college football and the beginning of a terrible season for Michigan.[5]

The ultimate question becomes: Should the NCAA require that teams stick to their divisions when creating schedules instead of allowing top athletic departments to exploit weaker schools? This change could lead to a more exciting full season of games and also a more realistic view of a team’s performance throughout the season, as opposed to victories against un-matched opponents at the beginning of the year and then struggling when they meet their conference rivals later in the season.[6] In reality, this change is likely, at least in the Big Ten, with Commissioner Jim Delaney having publicly announced that he would like teams to begin banning Football Championship Series games starting in 2016.[7] However, this is just a suggestion by Delaney, not a Big Ten rule, and only time will tell if Big Ten teams actually follow his guidance and refrain from scheduling “guaranteed-games” and beat-downs on non-conference teams.

A different aspect of college football and profit-seeking athletic directors is the rise of teams traveling to neutral sites to kickoff their seasons. While teams incur a significant cost by going to play at the Cowboys’ Stadium or at the Rose Bowl in Pasadena, the payments they gain in terms of television rights, advertising, memorabilia, and the like are more than enough to draw them to these various locations. So while Michigan took a brutal loss against Alabama in the 2012 game opener in Dallas, there is no doubt that the university’s athletic director would make the same decision again, having gained $4.7 million for Big Blue.[8]

As long as athletic departments at large universities want to recruit the best prospects and turn a profit, and as long as they do not have to worry about paying their players in the process, games between mismatched opponents will continue and less famous teams outside of Division I will retain the opportunity to upset schools like Michigan and Oregon State University.[9] After all, getting paid to lose is what has helped teams like Florida State become relevant, so there may even be an upside in taking one for the team.[10]

Allie Maron is a current Harvard Law School Student (Class of 2015).
Suggested citation:
Allie Maron, NCAA Football: Why the Big Guys Pay Their Little Brothers to Play, Harv. J.Sports & Ent. Online Dig., November 20, 2013,

[1] Playing teams that are less than mediocre allows teams to become steps away from bowl eligibility before playing a division game. Also, by paying smaller schools to come play less money than bigger named schools, universities are able to drive a bigger profit from home games.

[2] See Discusses the evolution of college athletics into a profit-seeking industry and a “commercial athletic marketplace” and how coaches’ compensation may reflect the financial stability of an athletic institution. See also Derek Bok, Universities in the Marketplace: The Commercialization of Higher Education pages 35-57 discussing the commercialization of college athletics.




[6] Teams would then also face the challenge of trying to determine who plays at home, as teams want to have as many home games as possible to increase profits and revenue.

[7] Id.


[9] This year, seven FCS teams beat FBS teams that were paid to come play at their schools on opening day of college football.


Jay-Z’s Entry Into the Sports Agent Ring

Jay-Z’s Entry Into the Sports Agent Ring

Shawn Carter, popularly known as Jay-Z, is considered one of the greatest hip-hop artists of all time, having won seventeen Grammy Awards and placed three albums on Rolling Stone’s list of the 500 greatest albums of all time. [1] He is also a man of tremendous business acumen, with a net worth of almost $500 million[2], and the owner of the record label Roc Nation, which manages world famous acts such as Shakira, Rihanna, and Timbaland.[3] On April 2, 2013, Jay-Z dropped a bombshell on the athlete representation industry when he announced his intentions to create a subdivision of Roc Nation, Roc Nation Sports, and serve as a sports agent.[4] In that same press release, Jay-Z announced his first client, Robinson Cano, the second baseman of the New York Yankees and an impending free agent at the end of the 2013 season.[5] Having poached Cano from “super-agent” Scott Boras[6], Roc Nation Sports immediately began circulating contract demands of $300 million for Cano to resign with the Yankees.[7] In a recent interview conducted by Vanity Fair, Jay-Z proclaimed that his business acumen, and his belief in his future as a sports agent, arises from his past “business” experience working as a drug dealer.[8]

This is not Jay-Z’s first foray into the business of professional sports. In 2005, at the behest of team owner Mikhail Prokhorov, he became a minority share owner of the then New Jersey Nets with the expectation that he could earn a tremendous return on his investment.[9] He was given the authority to exert influence on the direction of the team, especially its marketing, beyond his voting share. Under his guidance, the Nets began the move to the Barclay Center in Brooklyn, which Jay-Z also partially owned, and to their branding as the Brooklyn Nets.[10] Jay-Z was also instrumental in creating the new logo used by the Nets upon their relocation.[11] Upon his decision to become a sports agent, however, it became clear that he would need to liquidate his shares in both the Nets and Barclay to be eligible to represent NBA players. The league has a strict policy against individuals serving as both owners and agents, stipulating directly that no individual affiliated with a player representation company can have any ownership stake in an NBA team.[12] Jay-Z would end up selling his stake in the Nets, one-fifteenth of one percent, to Nets head coach Jason Kidd for $500,000,[13] and his stake in Barclay, one-fifth of one percent, for $1.5 million.[14] These sales eliminated the direct potential for conflict of interest the NBA fears would occur should Jay-Z, or anyone, serve as both a part owner and agent within a single league.[15]

Roc Nation has accumulated several other big name clients, in a variety of major sports leagues. In addition to Cano (MLB), Jay-Z counts Kevin Durant (NBA), Skylar Diggins (WNBA), Victor Cruz (NFL), and Geno Smith (NFL) as clients.[16] Although ultimately unfruitful, Jay-Z was also in talks to represent top prospect Seth Jones of the NHL[17], who was potentially going to be the first African-American first-overall draft pick in NHL history.[18] Jay-Z is now burdened with becoming a certified agent in each sport, after expanding his reach into so many different leagues. For Major League Baseball[19], as well as for the NBA[20] and WNBA[21], the process involves a detailed application form, along with a sizeable application fee. While the application requests information regarding the educational attainment of each applicant, there is no requisite degree to become a certified agent. Jay-Z experienced little trouble becoming certified by the MLBPA.[22] Once the NBA was satisfied that Jay-Z had divested himself of his former shares in the Nets, it processed his application, allowing him to become a legitimate NBA agent as well.[23] Immediately after his accreditation, Jay-Z announced the signing of Kevin Durant, on June 24, 2013.[24] While he is a viable agent for Cano, Durant, and Diggins, however, Jay-Z does not meet the standards set forth by the NFL for its agents. Receiving certification from the NFL Players’ Association (“NFLPA”) would allow Jay-Z to actively recruit NFL players, and thus not run afoul of the “Runner Rule” discussed below; however, he would need to pass a certification test issued by the NFLPA. In addition, the NFLPA requires an undergraduate and a postgraduate degree for all its certified agents, which would need to be waived in order for Jay-Z, who lacks both degrees, to successfully become an NFL agent.[25]

However, Jay-Z and Roc Nation Sports nevertheless have NFL clients in Victor Cruz and Geno Smith.  The agency gets around this issue by employing a shadow agent, Kim Miale, who despite a lack of significant experience, is NFLPA certified. Jay-Z acts as the face of the agency, while Miale conducts the contract negotiations for Cruz and Smith. This relationship closely parallels how Roc Nation has operated for other sports as well. It has also struck a very lucrative partnership agreement with the Creative Artists Agency (CAA), a powerful industry leader in the field of athlete representation, which provides Jay-Z with access to vast resources, data, and manpower. The partnership raises the question of who truly runs Roc Nation Sports, as it is unheard of for a startup agent to receive such a partnership, where one party has more office locations (CAA with nine) than the other has clients (Roc Nation with five).[26] Indeed, a trend has emerged where players, such as Durant[27] and Cano[28], would have CAA handle their contract negotiations with the league, while designating Roc Nation as their clients for marketing and branding purposes. Indeed, it was a CAA agent who vocalized the $300 million demand for Cano to the media.[29] Similar to his involvement with the Nets, Jay-Z is the vocal leader and face of the partnership, with much more influence than someone of his standing, either as an extreme minority owner or a startup agent, would typically hold.

This arrangement has drawn its share of attention for Jay-Z and Roc Nation Sports. As a man of influence, and a tremendous sports fan, Jay-Z is at many high profile athletic events, with access to people and places that others would not. For example, during March Madness in 2011, Jay-Z paid a visit to the University of Kentucky’s dressing room following their Elite Eight victory over the University of North Carolina. However, as a part-owner of a team at the time, NBA regulations barred Jay-Z from having contact with amateur players who had not yet been drafted. As a result, following an investigation, the NBA fined Jay-Z $500,000.[30] In his new capacity as a sports agent, there are similar rules regulating interactions with NCAA players. It was reported in July that Jay-Z had been in regular contact with South Carolina defensive end Jadeveon Clowney, under the guise of recruiting Clowney for his marketability.[31] As an amateur athlete, Clowney is not allowed to receive any impermissible benefits from agents, and frequently NCAA member schools have self-imposed regulations preventing players from meeting with agents not previously approved by the school, or without the school’s knowledge.

Additionally, the NFL regulations sanction agents for using, being associated with, employing, or entering into a business relationship with any non-NFLPA certified person for the purposes of recruiting potential clients. Such an individual is defined as a “runner”, and the NFLPA has been investigating Roc Nation Sports for the possibility that Miale, the agency’s NFL agent, may be using Jay-Z as a runner to recruit players.[32] The investigation was spurred by the fact that Geno Smith hired Miale as an agent almost immediately after she was hired by Roc Nation, which made it appear that Smith was really signing following Jay-Z’s recruitment.[33] Because the alleged misconduct in this case was performed by Jay-Z, and the NFLPA has no jurisdiction over him, the potential repercussions implicate Miale instead. Investigations began in late May, and as of this writing there has been no findings released either absolving Miale of responsibility or sanctioning her.

Around November 6, 2013, Jay-Z was under investigation by the MLB Players’ Association for a watch, valued at $33,900, that he gave Cano as a birthday gift.[34] The Players’ Association has a regulation stipulating that “No Player Agent . . . shall provide . . . any money or any other thing of value to any player, . . . the purpose of which is to induce or encourage such player to use or continue to use any person’s or firm’s services as Player Agent.”[35] Exceptions exist for certain gifts given to existing clients, but any such gift worth over $500 has to be disclosed to the union. As the situation is just developing, it is unclear what information the MLBPA expects to find, or what would lead it to rule one way or another, but Jay-Z would face unspecified discipline if his action is found to have been in violation of the rule.

Clearly, athletes are intrigued by the idea of working with a superstar such as Jay-Z, who also has the ability to connect them to further superstars. Jay-Z utilizes his role as an agent to further enhance his involvement within the athlete industry, while simultaneously exploiting his involvement for his music career. Similar to how he rapped about owning the Nets in his hit single with Kanye West, N—- In Paris[36], he has dropped references to the sports agent business in his latest album, referencing his role in poaching Robinson Cano from Scott Boras, and the talent of an NBA shadow agent working with Roc Nation.[37] With his vast connections, his reputation among athletes, and the increasing fame that he brings to Roc Nation through his lyrics and personal brand, Jay-Z has set himself up to be a definite force in the athlete representation industry for years to come.


Matthew Lee is a current Harvard Law School Student (Class of 2016).

Suggested citation:
Matthew Lee, Jay-Z’s Entry Into the Sports Agent Ring, Harv. J.Sports & Ent. Online Dig., November 13, 2013,



[3] See


[5] Id.

[6] Boras is widely considered the most powerful agent in the game of baseball, and his clientele make over $225 million yearly altogether, far exceeding the total for any other agent.









[14] Id.

[15] Interestingly, the NBA does not consider it a conflict of interest for a coach to have an ownership stake in the team he coaches. There exists precedent here in the early 2000s, in the cases of Pat Riley and Phil Jackson.–nba.html



[18] He wound end up being drafted fourth overall by the Nashville Predators.





[23] Id.





[28] See supra at note 6







[35] Id.