1. ##2-3: The Office of Commissioner

2. The Unique Role of Sports League Commissioner Arises out of: –need for competition to be well-organized, especially with regard to principles of integrity –owners’ inherent conflict in role as competition participant and competition organizer

3. Overview Materials cover following topics: –gambling –roster control & player development –cash sales of players –tampering –intra-league structure All seem to focus on long-term business interests

4. Rose v Giamatti What is the source of the Commissioner’s authority to discipline Rose for gambling? Is gambling in favor of your own team contrary to the “best interests of baseball”? Substantive legal issue is whether Giamatti breached Rules of Procedure requires proceedings to be conducted "w/ due regard for all the principles of natural justice and fair play”

5. Rose, contd. What is the punishment if the Commissioner determined that Rose gambled? –Doesn’t the permanent ban in Rule 21(a) for throwing games suggest that a permanent ban is NOT appropriate for betting on own team? What is/ should be the scope of judicial review?

6. Why give this authority to the Commissioner? Why not let Reds discipline Rose? Why not an outside arbitrator? How about a public official?

7. Gambling & Hockey Suppose Alex Ovechkin is suspected of betting in favor of the Penguins against the Capitals? Suppose his bets were always in favor of the Caps?

8. Yankees v Johnson AL President Ban Johnson suspended Carl Mays under§20 of A.L. Const [9] for "conduct detrimental to the general welfare of the game Judge Wagner says Johnson exceeded authority: §24 governs Does the last clause in §24 suggest that it does NOT preempt §20? Why should Ban Johnson care about what Mays did if the Yankees don’t?

9. Course of Performance and the Commissioner’s Authority Does doctrine of course of performance support Johnson's interp of the A.L. Const? Do you agree with Judge Wagner that unauthorized acts do not become authorized through repetition? Agree with Wagner that course of performance trumped here by a violation of “fundamental concepts of law”? Why do the courts in Turner/Cubs reject prior precedent as support for the Commissioner’s challenged decision?

10. The Waiver Rule Each club has a roster limit –Players released from roster ordinarily must be “waived” – their contract can be claimed for a low- fixed price by another team –If multiple claimants, lousier team wins –Does not apply to optional agreements Purposes –Competitive balance –Optimal talent allocation –Fairness to players Why exempt options in the first 2 years?

11. Milwaukee v Landis Background facts: - signed by Browns and optioned to Tulsa (A) - then cancel option (to retain 2 option rights) and waive/ assign to Milwaukee (AA), who then waived and assigned to Wichita Falls (A) - Pirates seek to purchase from Wichita Falls for $10K, but WF instead sells Bennet back to Browns for $5K - in ‘30, Browns waive, but Pirates and Yankees claim, so Browns then invoke 1st alleged option - Landis vetoes after learning that Milwaukee and Wichita Falls were owned by Browns’ owner Challenge to Landis’ decision –What is the source of Landis’ authority? –Does the Commissioner’s authority cover these type of cases where Browns violated the “spirit” of a rule?

12. Finley v. Kuhn Was Kuhn’s decision arbitrary & capricious and discriminatory? Should the Commissioner be able to block acts “not in the best interests of baseball” if they were not barred by prior precedents and Commissioner’s rulings? Should his authority be limited to acts contrary to rules, morality, or honesty?

13. Other cash sales Should the NHL Commissioner have barred the Gretzky or Lindros cash sales? Are these deals distinguishable from the ones that Kuhn vetoed?

14. Turner v Kuhn Kuhn finds Turner’s tampering to be contrary to best interests of baseball Art. II, §3 provides: In the case of conduct by Major Leagues, Major League Clubs, officers, employees or players which is deemed by the Commissioner not to be in the best interests of Baseball, action by the Commissioner for each offense may include any one or more of the following: (a) a reprimand; (b) deprivation of a Major League Club of representation in joint meetings; (c) suspension or removal of any officer or employee of a Major League or a Major League Club; (d) temporary or permanent ineligibility of a player; and (e) a fine, not to exceed Five Thousand Dollars ($5,000.00) in the case of a Major League Club and not to exceed Five Hundred Dollars ($500.00) in the case of any officer, employee or player. Do you agree that limits the Commissioner’s discretion to the expressly listed punishments? {note §3(g) added later} Does the maxim “expresio unius est exclusio alterius” accurately describe the parties intent? Note penalty clause rationale

15. Cubs v Vincent Why does the Commissioner need to intervene here? Why won’t the parties, per the Coase Theorem, reach the same result? Absent the other specific provisions of the MLB Const giving owners authority to determine league alignment and giving owners’ vetoes, would Comm’r have the power to intervene to re-align leagues? Does the specific language barring a club’s transfer to another division without its consent narrow the Commissioner’s Best Interests Power?

16. New amendment to Art II §4 Should major business decisions fall within the Commissioner’s authority? Do you agree with the NBA’s constitutional provisions that important decisions, like intra- owner disputes, are left to the Board of Governors rather than the Commissioner?

17. Judicial Review Should courts enforce the waiver of recourse clauses in league constitutions? Note judicial limit on actions “beyond scope of authority” [23]