|Oregon State Bar Bulletin OCTOBER 2010|
Stephanie Vardavas grew up loving baseball. The Baltimore native earned a bachelor’s degree in American studies at Yale University and knew she wanted a career that somehow included baseball. During her senior year of college, opportunity came knocking louder than the crack of a bat.
Vardavas was invited to a dinner where the guest list included then-Major League Baseball Commissioner Bowie Kuhn and his legal staff. She arrived early, scoped out where Kuhn might sit and spent the evening chatting with him. That evening, she learned about a new executive development program the MLB had started in New York City.
After a series of interviews, Vardavas was one of two people chosen to participate. “It was just an amazing opportunity and a really fun job,” she says.
It also was the start of a 30-year career that allowed Vardavas to work in baseball for many years before joining Nike’s legal team. Vardavas is one of several Oregon legal professionals who, by practicing or teaching sports law, have been able to combine their passion for sports with their interest in legal issues.
Sports law has evolved rapidly over the years, becoming more complex and multifaceted as sports — collegiate and professional — have grown into a multibillion-dollar business. The umbrella term “sports law” now covers myriad practice specialties that encompass an increasingly diverse array of legal issues and considerations.
Five Oregon legal professionals who specialize in sports law recently shared their reasons for choosing this area of expertise, the legal matters they encounter in their work and the issues impacting the profession today. While they do different types of work from one another, they each share a love of sports that inspired them to pursue sports law as a career.
The Business of Baseball and Beyond
About a year in the MLB’s executive development program, Vardavas joined the American League as manager of waivers and player records in 1980. Her job was to administer and enforce major league rules as they related to contract signings and roster transactions such as waiver requests, assignments and disabled-list placements.
While working full time, Vardavas enrolled in Fordham Law School’s evening program and graduated in 1985. After passing New York’s bar exam, she joined the American League commissioner’s legal staff and advised major league clubs on player transactions and stadium leases, among other things, while also working on league-wide sponsorship, television and licensing agreements.
In 1989, Vardavas joined the sports agency ProServe, where she led the endorsement, sponsorship and television rights contracting process for the firm’s athlete clients and event properties.
“That was great in terms of my career development and personal and professional development, because it exposed me to a huge number of people and a range of sports and issues that I would not have encountered in baseball,” she says.
Vardavas worked with the professional tennis circuit and represented elite swimmers, gymnasts and basketball players. Her clients included figure skater Nancy Kerrigan, among other sports celebrities.
“I had exposure to the sort of multifarious aspects of sports that I never would have encountered otherwise,” Vardavas says.
After eight years with ProServe, Vardavas grew disillusioned with the work she was doing. One particularly bad day, she shared her frustrations with Gary Way, an old friend who worked for Nike. He recommended she apply for an open position on Nike’s legal team.
In 1997, Vardavas headed west to Nike’s Beaverton headquarters. Since then, she has negotiated agreements with high-profile athletes sponsored by Nike, and worked to improve the product safety and sustainability of the company’s footwear, apparel and equipment. In May 2009, Vardavas began overseeing the legal issues presented by Nike’s brand marketing, advertising and trademarks.
Among the biggest changes she has seen over the last 30 years is the explosion of sports as a business.
“There is so much more money in the business now and the stakes are so much higher,” she says, noting the growing number of media outlets — from cable television to the Internet — make sports available to viewers nearly all the time and from nearly anywhere.
“That has contributed to an enormous explosion in the volume of professional sports that exist,” Vardavas says. “A lot of sports that might not otherwise have access to television now do, and that exposes sports to new fans.”
Along with serving as a guest speaker and teaching CLEs on topics related to sports law, Vardavas has served as a board member of the national Sports Lawyers Association since 1995. She says the group’s biggest priority is to provide continuing legal education during its annual conference and to serve as a neutral forum for its members.
“Our goal is to foster civil relationships between people who often are on different sides of very contentious issues,” she says.
Unique Mix in Sports Poses Challenges in Legal Realm
Jeffrey Standen, an ’86 University of Virginia Law School alum, began his legal practice with an interest in sentencing. After law school, he clerked for Judge Robert Chapman of the U.S. Court of Appeals for the Fourth Circuit, went into private practice and then served as deputy general counsel to the U.S. Sentencing Commission.
As a law professor at Willamette University since 1990, Standen found a way to combine his interest in criminal law with his love of sports by teaching Remedies, Evidence, Criminal Law and Procedure, and Sports Law. His website, thesportslawprofessor.blogspot.com, focuses on the integration of sports and law.
“Sports law is just a fascinating topic and one that has long interested me,” Standen says. “The thing about sports law that makes it interesting is that it’s a unique mix of competition and cooperation.”
For example, he notes, without cooperation among sports teams there would be no games, tournaments or rules. Yet, without competition, few people would want to watch the games.
However, that mix poses challenges within the legal sector because there are few models for such a combination.
“The law always wants to categorize everything we do into one of those two models, but sports combine the two and that just befuddles the law,” Standen says, adding that tension between cooperation and competition impacts everything teams do, from contracts and merchandising to franchise and player movement.
That tension concept plays a central role in Standen’s teaching, which he then illustrates with current examples. Real-world dilemmas are not hard to find, particularly in the often-conflicting realms of federal and state law.
Standen refers to an ongoing case involving the National Football League’s anti-doping policy. The policy is intended to prevent drug use throughout the league, but two players for the Minnesota Vikings contested the policy on the grounds that it violated state laws regarding employee drug testing.
According to information about the case on the NFL’s website, the Minnesota Court of Appeals in June rejected the league’s request to expedite its handling of the case of players http://www.nfl.com/players/kevinwilliams/profile?id=WIL407346 and http://www.nfl.com/players/patwilliams/profile?id=WIL462033, who tested positive for a banned diuretic in 2008 after taking a weight-loss supplement called StarCaps. StarCaps contains bumetanide, which the NFL bans because it can mask the presence of steroids.
As the case wends its way through the courts, Peter Ginsberg, the Williamses’ attorney, has said he is confident the players will prevail because the courts have consistently found that the NFL violated their rights.
The NFL, backed by other major league sports, contends that its collective bargaining agreement with the players’ union and the contract’s drug testing language should trump state law.
Standen says intriguing issues such as these, as well as the array of potential career opportunities related to sports law, are driving increased interest among law students.
“It’s an interesting practice area, and it’s different because it’s not a place students would come looking for the classic law firm job. Sports law really appeals to new lawyers who are entrepreneurial,” he says.
From athlete representation and sports marketing to organizing leagues, teams and tournaments, those who choose to specialize in sports law are likely to find a successful niche in a growing sector.
“It’s a very hot area of law right now and there’s a lot going on,” Standen says. “In some respects, sports law shows our future. As American businesses come together and compete on an international level, increasingly I think the way sports issues are resolved through this blending of cooperation and competition creates a model for resolution in other business areas.”
Collaborative Sports Law Seminars Serve as a Model
Paul Ehrlich, who earned his law degree from the University of Notre Dame, launched his legal career by doing
“Then I decided to do something completely different so I became a prosecutor, which was a tremendous experience but wasn’t going to be a long-term career for me,” he says.
After serving as a deputy district attorney for Multnomah County, Ehrlich returned to Davis Wright Tremaine. In 1998 he was offered his dream job, providing legal counsel for Adidas Group America’s sports marketing department.
Now general counsel for Adidas, Ehrlich has taught the Sports Law Seminar at Lewis & Clark College’s Northwestern School of Law since 2001. Ehrlich and Portland attorney Matt Levin began co-teaching the course four years ago, and the seminar’s interactive format includes 20 students engaged in a series of lively discussions.
“It’s been a fantastic experience,” Ehrlich says, adding drug testing is a common hot topic, along with labor issues and various rules involving amateur athletes. “We had an interesting discussion last year about fantasy leagues and online gambling and the legality of it.”
During the seminar the students are divided into four “law firms” and each tackles a different side of an issue. Ehrlich and Levin present the facts associated with a particular issue, and the student teams then discuss them, prepare briefs and present their oral arguments. The students also pair up to co-author a paper on a sports law topic of their choice.
“The goal is to prepare them for what they will face after law school — a lot of collaboration,” Ehrlich says. “It’s really a pleasure to teach and it’s so interesting because there are so many things to talk about.
“There’s also so much energy from the students that we get as a reward, and it helps us keep current on the issues,” he adds.
Nuances of Sports Law Often Learned on the Job
Nike’s Gary Way played sports throughout his childhood and was a Rutgers All-American in lightweight football. As an English major with a minor in history, Way was drawn to the research, reading and writing that a legal career promised.
A 1983 graduate of New York University’s law school, Way began practicing sports law before it was a defined area or even a topic of study in many law schools.
“I really learned sports law on the job,” says Way, who launched his legal career in 1986 with the National Basketball Association.
Now managing attorney for Nike’s Sports Law Practice Group, Way is charged with drafting and negotiating the company’s contracts with iconic athletes such as Michael Jordan, Tiger Woods, LeBron James, Dwyane Wade and Kobe Bryant.
One of Way’s biggest personal accomplishments, according to a 2008 article in the Rutgers Alumni Association magazine, was his role in organizing the U.S. Soccer Federation (USSF) soon after joining Nike in 1996. The U.S. had yet to catch soccer fever and its team was ranked last in the international standings.
Way was behind a deal in which Nike agreed to pay the USSF a multimillion-dollar “rights fee,” which allowed Nike to use USSF trademarks, logos and footage for advertising and marketing and provide uniforms for the players, both men and women.
Nike also signed endorsement deals with individual players on the teams, such as Mia Hamm and Brandi Chastain, which defrayed their living expenses and allowed them to focus on their training full time, according to the RAA article.
Perhaps most significantly, the article notes, is that Nike’s sponsorship helped the USSF establish a program called Project 40, an official U.S. soccer training academy for top young players.
And, while Nike can’t directly take credit for the U.S. team’s stellar performance at the 2010 World Cup, the company most likely does deserve some kudos for the increasing popularity of soccer in the U.S. over the last decade.
Along with his work at Nike, Way is a board member for the National Sports League Institute at Marquette University Law School. He calls the institute a “virtual think tank” that provides commentary on various issues related to sports law, organizes an annual conference and advises the university on its sports law certification program.
Way says the program’s growth is testament to the increasing popularity of sports law.
“Marquette’s certification program has grown dramatically in the 10 years since it has been offered, and the number of law schools offering sports law programs has grown exponentially,” he says.
As a reflection of the national trend, the James Warsaw Sports Law program at the University of Oregon is thriving some 15 years after it was founded. The U.O.’s Sports and Entertainment Law Forum (SELF), which offers law students a way to get involved in the world of sports and entertainment law, also enjoys strong student support.
Last year, the U.O.’s Law and Entrepreneurship Student Association (LESA) hosted its first “Sports Business and the Law” conference to expose graduate students and Oregon sports business professionals to various legal aspects of the sports industry.
Intellectual Property Protection a Key Aspect
of Sports Business
Of the broad array of issues covered by sports law, intellectual property is one that holds center stage. Peter Bragdon, who serves as vice president, general counsel and secretary for Columbia Sportswear, says the need to protect innovative ideas and processes through patent and trademark law has never been greater.
“People have been climbing mountains for a long time, but the needs and the technology that go along with the products to do that have changed over time,” he says.
Bragdon, who served as senior counsel and director of intellectual property for the company from 1999 to 2003, says the market not only has become more sophisticated, but also more competitive over the last decade or so.
“I also think there’s more interest in outdoor activities generally, so there is a lot more competition and bigger competitors filling the space,” he says.
Bragdon, a ’93 Stanford law school alum, has worked in the corporate securities and finance group at Stoel Rives, and served as special assistant attorney general in the Oregon Department of Justice in 1996. He was chief of staff in the Oregon governor’s office from January 2003 through June 2004.
What he enjoys most about what he is doing for Columbia Sportswear is the innovation involved in continually improving products for customers who — by striving for personal bests in a variety of recreational pursuits — push the standards even higher.
“I want to be in a place where I can do new things that have never been done before,” Bragdon says.
Plenty of Intriguing Issues Ahead
Each of the five agrees that what they appreciate most about sports law is its ever-constant generation of new and complex issue to consider.
For example, Vardavas notes, a group of retired professional football players claiming they should receive workers’ compensation for permanent injuries sustained on the field present a particularly troublesome scenario for the NFL and for California, where the law potentially allows any retired professional athlete to make a valid claim.
“Needless to say, this is something that the NFL in particular is really struggling with because there are a large number of players with potential claims,” she says. “And this could potentially bankrupt California’s system.”
Fan behavior is another emerging issue following recent incidents such as the young man who ran onto the field during a Philadelphia Phillies game and was tasered by police.
“We’re also seeing a lot of activity around disaster and crisis scenarios and what happens if your arena is essentially destroyed or damaged, like in New Orleans,” Vardavas says.
Ehrlich says legal issues surrounding a team’s move to another city, such as the Seattle Sonics’ move to Oklahoma City, continue to be a predominant consideration in sports law.
Another hot-button issue is the line between penalties and criminal behavior when athletes react violently during games. For example, Ehrlich asks, when one hockey player hits another with a stick, an NFL player is overly aggressive in tackling another or a player runs into the stands and attacks a spectator who is heckling him, should criminal charges be pursued, or are those behaviors amply punished by penalties?
Sports gambling is a topic that intrigues Willamette University’s Standen, who notes a growing number of states are testing whether sports games can be offered as part of the lottery. Currently, every state is prevented from doing so except for Oregon, Delaware, New Jersey and Nevada, which have exemptions to the 1992 Professional and Amateur Sports Protection Act.
New Jersey and Delaware want to broaden the range of lottery games they can offer to include sports games, and have initiated litigation to do so. Given the country’s economic situation, other states also are exploring legal avenues that would allow them to generate revenue through sports lottery games, Standen says.
Oregon, for example, used to offer parlay games, but quit doing it in order to meet a National Collegiate Athletic Association requirement to host a portion of the NCAA basketball tournament.
Considering that Delaware earns $1 million a year by offering a limited parlay bet, Standen says, Oregon may soon realize that reinstituting a sports lottery would generate substantially more revenue than hosting NCAA March Madness games.
“Oregon has to be eyeing that litigation closely because we’re potentially sitting on a lot of money that could be raised if we went back to offering those lottery games,” he says.
Another emerging issue Standen finds notable is a case pending in federal court in California in which Ed O’Bannon, who played basketball for UCLA, has sued the NCAA for royalties on a video game in which one of the automated players bears a striking resemblance to O’Bannon.
Though NCAA scholarship agreements allow the association to use player images for publicity and marketing purposes, many players believe the NCAA should not be able to hold those rights indefinitely.
“That case could be very interesting in terms of intellectual property,” Standen says. “To me it brings up the interesting question of whether athletes own their performances.”
One thing that is without question is that, as the business of sports continues to grow and become even more multifaceted, so will the practice of sports law.
ABOUT THE AUTHOR
Melody Finnemore is a Portland-area freelance writer and a frequent contributor to the Bulletin.
© 2010 Melody Finnemore