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Matt Mitten, Director of the National Sports Law Institute

March 8, 2013

Matt Mitten, Director of the National Sports Law Institute:

First, can you tell readers how the National Sports Law Institute got started and what its mission is?

Founded in 1989, the National Sports Law Institute (NSLI) of Marquette University Law School is the first  Institute of its kind associated with an American law school. The Institute’s Mission is to be the leading national educational and research institute for the study of legal, ethical and business issues affecting amateur and professional sports from an academic and practical perspective.

The Institute sponsors local and national events including conferences and symposia for individuals in the sports industry, and disseminates information on the sports industry and sports law through its many publications, such as the Marquette Sports Law Review. As a part of Marquette University, a Catholic Jesuit University, the Institute is committed to searching for truth, discovering and sharing information, fostering professional excellence, developing leaders, and serving those in the sports industry.

The Institute is also affiliated with the Marquette University Law School Sports Law program, which provides the nation’s most comprehensive offering of sports law courses and student internships with local sports organizations as well as opportunities to become members of the Marquette Sports Law Review and National Sports Law Moot Court team. With the assistance of the Directors of the Institute, the Sports Law Program is designed to provide Marquette University Law School students with both a theoretical and practical education covering the legal regulation of amateur and professional sports industries, thereby enhancing their attractiveness to sports industry employers. Students who meet certain requirements before graduating from Marquette University Law School are also eligible to receive a Sports Law Certificate from the National Sports Law Institute.

The National Sports Law Institute is aided by its Board of Advisors. The Board of Advisors is a group of sports lawyers, sports industry executives and professionals, sports law professors and teachers, and others with a demonstrated interest in the field of sports law. The primary duties of the members of the Board of Advisors are: 1) to contribute to the advancement of knowledge regarding legal, ethical, and business issues affecting the sports industries; 2) to provide advice and guidance on matters affecting Marquette University Law School’s Sports Law Program; 3) to attend NSLI events and to participate in the governance of the NSLI; and 4) to assume other duties and responsibilities (including service on committees) that further the NSLI’s best interests.

For a listing of our Board members, see https://law.marquette.edu/national-sports-law-institute/board-advisors

How did you personally get involved with the institute and what are some of your goals for the NSLI in the upcoming years?

I’ve been the NSLI’s Director since August of 1999.

You may be surprised to know that I never took a sports law course in law school!  There was  a class when I was in law school but even though I was  a big sports fan I  didn’t take it – I thought it wasn’t something I would use in my professional career.

I became an antitrust, trademark, and commercial lawyer at a major firm in Atlanta and my first project was sports related. I had a client who was putting on an old-timers baseball game for former major league players.  I helped the company federally register its trademark.  I also did some work for a company that was considering licensing its trademark to shoulder pad manufacturer  that had some products liability concerns if it did so as well as represented  a Howard Johnsons franchisee that showed a Detroit Lions home game that was supposed to be blacked out. So, I dabbled in sports law before entering the academic world.

When I began teaching at South Texas College of Law in 1990, the Dean asked me to develop a sports law course in response to students’ interest.  While at South Texas, I  was one of the lawyers that represented Harris County, which owns the Astrodome, in litigation arising out of the Houston Oilers efforts to relocate to Nashville before the club’s lease expired. My initial sports law scholarship focused on sports medicine legal issues, including the role of the team physician and doping issues. I was there for ten years, then got a call from Marquette Law School inviting me to interview for my current position. I  had never been to  Milwaukee, but was fortunate enough to be offered the job.

Marquette Law School  offers fourteen sports law courses – more than any other school in the world. It’s one of only two U.S. law schools to offer a sports law certificate. Several of our Sports Law program alumni,  including the general counsel of the Atlanta Braves, the athletic director of the University of Miami and a number of university athletic department compliance directors, are employed in the sports industry. .

However, there are relatively few entry level sports industry jobs for young lawyers, and only a small number of graduates  are employed full-time in sports law immediately after graduation. Most of them are lawyers who represent clients in other industries, but the knowledge of numerous law (e.g., contract, antitrust, labor, and intellectual property) and  skills (e.g. , contract negotiation and drafting) they learned from Marquette’s Sports Law program  are readily transferable.

The NSLI holds a sports law conference every year – the upcoming one on October 19th  is on international and professional sports legal and business issues – covering issues like doping and corruption. The NSLI provides  a forum for discussion of current legal, business, and ethical issues impacting  the industry.  It also periodically gives its Master of the Game Award to individuals who make a significant contribution to the sports industry while doing so in an ethical manner.  This year’s recipient will be David Howman, the Director General of the World Anti-doping Agency.

The NSLI has a fifty-person Board of Advisors – including Major League Baseball Commissioner Bud Selig who helped fund the institute and now teaches at Marquette. I’ve had the pleasure of co-teaching Professional Sports Law with Bud Selig for the past four years. He gives a series of lectures  to our students and is always well-prepared and loves teaching. He’s been in the industry forty-plus years – to hear his perspective is phenomenal.

What would you like to achieve in the next few years?

I’d like our Sports Law program to continue providing the best possible education to those aspiring to be future sports lawyers and for the NSLI, which is Marquette’s bridge to the sports industry, to continue  providing a forum for a balanced discussion of the most important legal issues affecting the sports industry.  We’re not an advocacy group – that would not be consistent with the fact we’re part of a law school –  but we are looking to make a positive difference.

You’ve been involved on a number of sports law panels and cases. What have been some of your most memorable experiences to date and what’s made them so?

The work I’ve done on sports medicine legal issues – working with the NCAA’s Competitive Safeguards and Medical Aspects of Sports Committee. We monitored injury protection rates and  made recommendations to make  intercollegiate athletics safer as well as formulated the NCAA’s drug testing policy and adjudicated student-athlete appeals of positive tests. I’m privileged to be a member of  the Court of Arbitration for Sport, which resolves a wide variety of sports-related disputes, including doping and athlete eligibility issues.

One of my more interesting cases was one that happened 15 years ago in Chicago. A basketball player at Northwestern had a full scholarship ride suffered cardiac arrest while playing in a pickup game before enrolling and had to be defibrillated by paramedics.  allowed him to keep his athletic scholarship, but  wouldn’t let him play on its basketball team for health and safety reasons. He claimed his exclusion violated his rights under the Americans with Disabilities Act, and I  filed an amicus brief on behalf of two groups of sports medicine physicians advocating in favor of  the school’s position.  The United States Court of Appeals accepted our argument.

How does the rapid internationalization of the sports world affect your role and the role of sports lawyers in general? How does that complicate your roles and work?

At the college level, a lot of foreign-born athletes participate in the NCAA. We’re really the only country trying to retain the idea of “amateur” athletic competition. Most of the rest of the world has the club sport model, where young, elite athletes  are  are selected for  club teams and given economic support, which may adversely affect their eligibility to receive an athletic scholarship from a U.S. university.

With the Olympics, there are more countries in the Olympics than there are in the U.N.  I believe sports are a microcosm of society. Sports are perhaps the only thing that keeps us from killing each other – and the lessons we learn in sports can be applied to other world issues.

Professionally, sports like basketball, hockey, soccer and baseball all  have an international labor market. The United States has a significant number of players overseas, and many foreign athletes play here. And we’ll keep seeing much more of that. We discuss this in our classes.  The global market for professional players’ services in several sports raises many interesting  legal issues in areas such as labor, immigration, and taxation law.

What do you see as being some of the bigger issues facing sports leagues, legally, in the next few years, and how do you address them?

Labor relations issues have been front and center recently; for example, last year’s NHL and NBA player lockouts, and this year NHL lockout and NFL referees’ strike.  There will continuing issues of how the economic pie is divided between league clubs and the players (as well as referees).

Player health and safety issues, including sports doping,  are becoming increasingly important, along with the issue of compensating retired players who are facing  serious health issues arising out of  their playing careers.

Intellectual property issues – with new technologies and  games broadcast to different countries and all over the web: what’s in the public domain and what belongs to the league and its clubs is an important issue with different answers in different countries

What are your thoughts on the way the major sports leagues are handling concussion and related issues from a legal standpoint? Are they doing enough – why/why not?

I think they are going in the right direction. Players who have suffered a concussion must be medically cleared by a physician before resuming play. The NCAA has a new rule that if a football player’s helmet comes off, he  has to sit out a play, which enables a player to be evaluated for a head injury.  Although athletes assume the inherent risks of injury from playing a sport, including a concussion, they don’t assume enhanced risks created by a sports league’s negligence or fraudulent concealment.  The litigation brought by retired NFL players and former NCAA football players raises some interesting legal issues that will need to be resolved by courts.  It’s all about what can be proven.

We’ve seen another round of frustrating CBA negotiations in the NFL and NHL over the past couple of years. From a fan’s perspective, how do leagues allow things to get to this point and how could/should these negotiations be better addressed?

The fans’ interests are not taken into account adequately—if at all. The players unions focus on their players’ economic interests,  and the league and clubs their economic interests.  That’s the process the labor market provides. Both sides have  a legal duty to bargain in good faith, but neither side is obligated to agree to anything or to make a “fair” offer. With the exception of Major League Baseball, professional sports labor negotiations are essentially becoming  a no-holds-barred war of economic attrition.

As important as sports are to us, they are not an essential product or service like the police or fire protection, soe there’s very little direct government regulation of the sports industry. However,  sports leagues, clubs, unions, and players have to take into account how much labor strife that results in lost games that the fans will put up with. Both sides have to realize  that acrimonious, protracted labor disputes may kill the goose that laid the golden egg.

What do you say to fans that wonder how it gets to this point so often?

The current legal system breeds lockouts and strikes, because federal labor law doesn’t require either side to be objectively reasonable in labor negotiations and permits the parties to exert economic pressure through a lockout or strike as a means of achieving their respective economic demands. But ultimately, the fans collectively possess the greatest economic power by choosing how to respond labor disputes between players and league clubs.

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