The Fordham Sports Law Forum 2021 Symposium

Friday, March 19, 2021

Fordham Law School Via Zoom Webinar

Online Event

CLE Course Materials

Table of Contents

1. Speaker Biographies (view in document)

2. CLE Materials

Fordham Sports Law Forum 24th Annual Symposium

Morning Fireside Chat – Branding Rights https://www.winston.com/en/thought-leadership/jeffrey-kessler-tells-law360-ncaa-athlete-case-is-part-of-social-justice-push.html

https://www.espn.com/college-sports/story/_/id/10620388/anti-trust-claim-filed-jeffrey-kessler-challenges-ncaa-amateur-model

https://bleacherreport.com/articles/1966856-sports-labor-attorney-jeffrey-kessler-files-suit-against-ncaa

https://www.law.columbia.edu/news/archive/sports-lawyer-jeffrey-kessler-77-paying-college-athletes-social-justice

http://www.fordhamiplj.org/2020/03/31/qa-jeffrey-kessler-discusses-alston-v-ncaas-ninth-circuit-appeal-and-the-fight-to-compensate-student-athletes/

https://www.weil.com/articles/weil-wins-landmark-decision-for-cbs-in-student-athlete-name-image-and-likeness-class-action

https://www.cbsnews.com/news/supreme-court-ncaa-case-athlete-compensation/

https://www.forbes.com/sites/karenweaver/2021/02/22/three-key-ncaa-rules-may-violate-us-antitrust-laws-2021-could-bring-monumental-change-to--organization/?sh=6fd041e621df

https://www.natlawreview.com/article/game-are-new-opportunities-opening-brands-to-use-student-athletes-name-image-and

https://www.forbes.com/sites/michaelrueda/2021/02/11/why-college-athletes-must-prepare-for-the-name-image-and-likeness-era/?sh=17217f212634

https://www.forbes.com/sites/marcedelman/2021/01/12/why-the-department-of-justice-should-bring-immediate-antitrust-charges-against-the-ncaa/?sh=1dc1facd6081

https://blog.harvardlawreview.org/challenging-the-ncaa-cartel-when-consumer-welfare-equals-worker-exploitation/

https://www.jdsupra.com/legalnews/supreme-court-to-weigh-in-college-13406/

https://www.natlawreview.com/article/scotus-sets-argument-case-nil-implications

https://www.cbssports.com/college-football/news/breaking-down-the-ncaas-forthcoming-supreme-court-battle-with-its-big-brother-status-and-amateurism-at-stake/

Panel 1 – Examining the Evolution of Athletes’ Rights & Advocacy https://www.facinghistory.org/educator-resources/current-events/understanding-takeaknee-athlete-activism

https://www.cbssports.com/nfl/news/why-the-sports-world-has-seized-this-moment-to-recognize-that-black-lives-matter/

https://www.si.com/soccer/2020/05/02/uswnt-equal-pay-lawsuit-decision-analysis

https://www.natlawreview.com/article/covid-19-three-legal-issues-leagues-teams-and-stadium-operators-live-sports-return

https://www.nytimes.com/2020/12/01/sports/soccer/USWNT-equal-pay.html

Patrick C. Coyne, A Huge Win for Equal Pay: Women's National Teams Grab Their Biggest Victories Yet in Recent Contract Disputes, 25 Jeffrey S. Moorad Sports L.J. 315 (2018). (view in document)

Edelman, Marc. Standing to Kneel: Analyzing Players’ Freedom to Protest During the Playing of the U.S. National Anthem. Fordham Law Review Online. Vol. 86 (2018) (view in document)

The International Sports Law Journal (2020) 20:115-119. The impact of Covid-19 on sports: a mid-way assessment (view in document)

Panel 2 – The Role of In-House Counsel https://www.lawinsport.com/topics/features/item/why-do-sports-organizations-need-in-house-legal-teams-a-point-of-view-from-a-general-counsel https://m.acc.com/docket/articles/david-kelly-profile.cfm https://www.law.com/corpcounsel/2020/09/24/top-sports-in-house-lawyers-discuss-working-with-their-legal-teams-amid-covid-19/ https://www.suffolk.edu/law/alumni/suffolk-law-magazine/spring-2019/theyve-got-game https://www.natlawreview.com/article/managing-commercial-impact-coronavirus-implications-sports-entertainment-industry Christopher R. Deubert; Glenn M. Wong; Kevin Hansen. Sports & Entertainment Law Journal Arizona State University. Volume 6. Spring 2017. Issue 2 (view in document) Panel 3 – Negotiation 101 – Breaking Deadlocks & Resolving Ugly Conflicts Edward W. Miles. In Practice. Developing Strategies for Asking Questions in Negotiation. Negotiation Journal (2013) (view in document) Keith G. Allred. Distinguishing Best and Strategic Practices: A Framework for Managing the Dilemma between Creating and Claiming Value. Negotiation Journal (view in document) Lawrence Susskind. Four value-creating moves (view in document) Adam D. Galinsky; William W. Maddox; Debra Gilin; Judith B. White. Psychological Science. Why it pays to get inside the head of your opponent. (view in document) Remigiusz Smolinski; Yun Xiong. Teaching Note: In Search of Master Negotiators: A Negotiation Competency Model. Negotiation Journal (Summer 2020) (view in document) James K. Sedenius. Negotiating in Three Dimensions. (view in document) Negotiation: Theory and Practice (n101). (view in document) Lawrence Susskind. Stubborn or Irrational? How to Cope with a Difficult Negotiation Partner. (view in document)

Dear all: On behalf of the Fordham Sports Law Forum (“Forum”), I would like to thank you for joining us to attend the 24th Annual Fordham Sports Law Symposium sponsored by Winston & Strawn LLP. The Forum was created in 1996 and is a student-run organization at Fordham University School of Law. It consists of over 100 members comprised of both day and evening students across all years of legal study. The Forum hosts two major sports law events each Spring: (1) our Sports Law Symposium, and (2) our National Basketball Negotiation Competition, in which schools from across the country compete. The Forum is fortunate to have many incredibly accomplished and generous alumni and friends who serve as speakers at our Symposium and judges at our negotiation competition. Additionally, the Forum sends teams to various sports law competitions around the country, including the Tulane International Baseball Arbitration Competition and Tulane Professional Football Negotiation Competition in New Orleans. The Forum also maintains a regular blog on sports news in the legal world and has recently started its own sports law podcast. Attached, please find the biographies to all of the wonderful speakers participating in this year’s symposium. If you have any questions concerning the event, please do not hesitate to contact the Forum Board. We thank you again. Sincerely, Joseph Buonadonna Fordham Sports Law Forum, Symposium Chair On behalf of Fordham Sports Law Forum jbuonadonna@law.fordham.edu Fordham University School of Law

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Jeffrey L. Kessler Partner at Winston & Strawn LLP Co-Executive Chairman & Co-Chair, Antitrust/Competition & Sports Law

Jeffrey L. Kessler focuses his practice on all aspects of antitrust/competition, sports law, intellectual property (IP), complex litigation, and government criminal and civil investigations. He has been lead counsel in some of the most complex antitrust, sports law, and intellectual property law cases in the country, including major jury trials, and has represented a number of U.S. and international companies in criminal and civil investigations in the antitrust, trade, and Foreign Corrupt Practices Act (FCPA) areas. He successfully defended Matsushita and JVC against claims of a worldwide conspiracy in the landmark U.S. Supreme

Court case Zenith v. Matsushita and is regarded as a leading commentator on international antitrust law. He has also been the lead counsel in numerous IP cases involving frontier issues of IP law and lead counsel in numerous government criminal and civil investigations.

Jeffrey is also one of the most prominent lawyers in the country regularly engaged in high-profile sports litigation. He has litigated some of the most famous sports-antitrust cases in history, including McNeil v. the NFL, the landmark antitrust jury trial which led to the establishment of free agency in the National Football League (NFL), and Brady v. NFL, which led to the end of the 2011 NFL lockout. Some of Jeffrey’s clients in the sports law area have included the NFL Players Association (NFLPA), the National Basketball Players Association, the Arena Football League (AFL) Players Association, the National Hockey League Players Association, the Major League Baseball Players Association, the National Invitation Tournament (NIT), Wasserman Media Group, SCP Worldwide, MVP Sports, the Women’s National Soccer Team, the NFL Coaches Association, Players, Inc., the Women’s Tennis Benefit Association, Excel Sports, Endeavor, Super Slam Ltd., Activision Blizzard, and Adidas. Jeffrey has also represented various classes of Division 1 basketball and football players - NBA, NFL, AFL, and MLS players, the North American Soccer League, the United States Football League, and the Cities of San Diego and Oakland, as well as Alameda County, in various sports law disputes. Jeffrey negotiated the current free agency/salary cap systems in the NFL and NBA, and successfully represented Latrell Sprewell in his controversial suspension arbitration. In the area of NFL discipline, he represented the Union on behalf of Ray Rice, Tom Brady, Ezekiel Elliott, and the “Bountygate” players. He also represented pro bono Oscar Pistorius, the double amputee athlete, in his successful arbitration to obtain the right to compete against able-bodied athletes around the world.

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Jim Quinn Of Counsel at Berg & Androphy Jim Quinn is an accomplished trial lawyer who served for many years as head of the Litigation Department of the international law firm of Weil, Gotshal & Manges. Mr. Quinn specializes in high stakes commercial disputes. He has practiced in all areas of complex litigation and alternative dispute resolution, with particular emphasis on antitrust, securities, false advertising, sports, entertainment, patent and related complex intellectual property litigation. Clients call upon him in matters that are high-profile, high-stakes and, often, international in scope.

Mr. Quinn’s most recent notable engagements include obtaining for CBS the dismissal with prejudice of a landmark putative class action in which current and former NCAA Division I college football and basketball players alleged that CBS, along with a host of college athletic conferences, other networks and licensors, profited from the broadcast and use of those Student-Athletes’ names, likenesses and images without permission; winning for CBS Corporation the dismissal, affirmed on appeal, of a putative securities fraud class action relating to a $14 billion impairment; obtaining a complete dismissal for ESPN, Inc. and certain Walt Disney Co. companies in a $130 million suit brought by Echostar concerning alleged contract breaches relating to rights to ESPN and Disney’s high-definition television networks; securing a complete dismissal for CBS Corporation in a $70 million breach of contract, fraud, and breach of fiduciary duty suit filed by its former anchorman and correspondent Dan Rather stemming from his departure from the network in 2006; on behalf of ExxonMobil, defeating class certification of a purported national class alleging that major petroleum companies conspired to restrict the supply of gasoline; and securing summary judgment for ESPN, Inc. in litigation against boxing promoter Don King who alleged defamation and false light invasion of privacy and sought $2.5 billion in damages.

Mr. Quinn has earned a reputation with his clients for his unmatched experience in sports and entertainment litigation. He is the most successful and influential litigator of sports antitrust cases in the quarter-century that these cases have been played out in the national arena. Mr. Quinn has counseled and represented players associations in Major League Baseball, the National Football League, the National Basketball Association, the National Hockey League and Major League Soccer. Mr. Quinn served as the lead counsel for the NFL players in their successful antitrust challenge to the player restrictions in the League (McNeil v. NFL). In this three month jury trial, Mr. Quinn ensured that a fair jury was chosen for his clients, and his winning strategy secured for his clients a multi-million dollar treble damage verdict as well as the right to free agency. The New York Times labeled Mr. Quinn’s participation at trial as “instrumental in helping change the face of major professional sports.” In 2016, Mr. Quinn was named as one of 17 “Elite” Power Players for sports law by Sports Business Journal. Among many honors and awards, Mr. Quinn was selected in 1993 and 2004 by The National Law Journal as one of the ten top trial lawyers in the United States in its annual feature, “Winning: Successful Strategies From 10 of the Nation’s Top Litigators” (only a handful of lawyers have ever been selected twice for this prestigious award). Chambers USA has also ranked Mr. Quinn as a leader in nationwide sports law and New York commercial litigation since 2005, and as a top U.S. trial attorney since 2010. Mr. Quinn has also recently published a book entitled “Don’t Be Afraid To Win (How Free Agency Changed the Business of Pro Sports)” that is available on Amazon.

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Moderator: Dean John Feerick Former Dean and Norris Professor of Law, Fordham University School of Law A graduate of Fordham College at Rose Hill, Feerick earned his law degree at the University’s School of Law, then located at 302 Broadway. As editor-in-chief of the Fordham Law Review, he wrote an article about presidential succession, which later served as the foundation of the 25th Amendment to the Constitution, an amendment Feerick helped draft at the invitation of the American Bar Association in 1964. His efforts led to a Pulitzer Prize nomination and established his reputation as one of the sharpest legal minds of his generation.

In 1982, following a 21-year legal career at Skadden, Arps, Slate, Meagher & Flom, he became dean of Fordham Law. During his 20-year tenure, he built the law school’s ethics and dispute resolution curriculum, public service and clinical programs, as well as various centers and institutes. His dedication to the Jesuit philosophy of service to others led to the establishment of nationally recognized programs in legal ethics, public interest law, clinical legal education, and international human rights. Widely respected for his mediation and arbitration skills, Feerick served as the inaugural chair of the ethics committee of the Dispute Resolution Section of the American Bar Association. He also chaired a joint committee of legal, arbitration, and conflict resolution professionals that generated national standards for mediation, and he adjudicated several high-profile labor cases, including the 1994 transit negotiations in New York and the 1999 National Basketball Association lockout. Feerick has also held a number of public positions. He served as a member of the New York State Law Revision Commission and the New York State Committee to Promote Public Trust and Confidence in the Legal System, and he was chair of the state’s Commission on Public Integrity. In 2006, Fordham University established the Feerick Center for Social Justice at Fordham Law School. The center’s mission reflects that of its founding director: to protect the underprivileged from a wide array of social ills, while working to bolster workers’ rights and access to legal services.

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Anthony J. Dreyer Partner at Skadden, Arps, Slate, Meagher, & Flom LLP Intellectual Property Litigation; Sports Mr. Dreyer has extensive experience counseling clients on a wide range of sports matters. He has counseled numerous sports leagues and organizations on league and sponsorship issues arising out of the COVID-19 pandemic. He also is handling several player-related system arbitrations disputes for the National Football League. He also has advised the Brooklyn Nets in two separate lawsuits challenging the Nets’ ticket sale practices. He successfully represented the PGA TOUR in two

separate lawsuits: one brought by golfer Vijay Singh relating to discipline imposed against Mr. Singh under the TOUR’s anti-doping program, and the other brought by a putative class of TOUR caddies challenging the alleged use of the caddies’ names and likenesses. He also successfully represented Madison Square Garden in a challenge to its ticket sales policies. Mr. Dreyer is representing the NCAA, NBA, NHL, NFL and MLB in a lawsuit arising out of a challenge to New Jersey’s sports betting laws. He represented the NBA in connection with its imposition of discipline against former team owner Donald Sterling and successfully obtained dismissal of claims Mr. Sterling brought against the NBA. He successfully represented golfer Rory McIlroy in a lawsuit brought against him by Oakley, a former sponsor, over an endorsement agreement Mr. McIlroy entered into with Nike. Mr. Dreyer routinely counsels clients on gambling- and integrity-related matters. He also represented the NBA in litigation relating to the league’s lockout of its players following expiration of the NBA’s collective bargaining agreement with its players. He has litigated player discipline and salary disputes on behalf of the NBA, the NHL and teams in both leagues. He also has counseled both the NBA and the NHL in connection with disability insurance coverage matters. He represented the NHL in a dispute arising out of its sponsorship agreement with daily fantasy sports site DraftKings. Mr. Dreyer also has advised the United States Tennis Association in connection with the US Open and US Open Series tennis tournaments. He recently served a three-year term as chair of the New York City Bar Association’s Sports Law Committee. Mr. Dreyer has been recognized by Chambers USA: America’s Leading Lawyers for Business as a top nationwide practitioner. In 2020, he was named as a Sports & Entertainment Trailblazer by The National Law Journal and as an IP Star for 2020/21 by Managing Intellectual Property. He has repeatedly been named to the WTR 1000 by World Trademark Review as a leading trademark practitioner and as one of its Global Leaders: Private Practice. He was named by the SportsBusiness Journal as a sports law Power Player, has been named to The Best Lawyers in America for Sports Law, and was named by Lawdragon as one of the 500 Leading Lawyers in America each of the last two years. He has served as adjunct professor of law at Fordham University Law School, teaching courses on Advertising Law and Advanced Trademark Law, and at Cardozo Law School, teaching Sports and the Law.

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Jessica Berman Deputy Commissioner & Executive Vice President, Business Affairs, National Lacrosse League Jessica C. Berman is Deputy Commissioner and Executive Vice President of Business Affairs at the National Lacrosse League where she provides strategic direction on all growth initiatives and legal matters facing the NLL. Among her areas of responsibility, Berman oversees human resources, team services, marketing and communications, lacrosse operations, community engagement and the governance of the League. When hired in 2019, she became and continues to be the first female Deputy Commissioner of a men’s professional sports league.

She previously served as Vice President, Community Development, Culture & Growth at the National Hockey League, and was also the Executive Director of the NHL Foundation. In this role she participated in the design and execution of the League’s strategic corporate social responsibility goals, initiatives, policies and programs in the areas of importance to the League, NHL Clubs, NHL’s business partners and the hockey community generally. The focus of her work was to ensure the initiatives are properly aligned with the League’s overall objectives and to change the global conversation about hockey, making it the acknowledged standard for sports experiences that are inclusive, accessible, enjoyable and community-friendly. In her philanthropic role, she worked to increase access and reduce barriers to the game of hockey, with an emphasis on the life skills and positive values learned through the sport. Prior to this position, she was Vice President & Deputy General Counsel for the NHL. She was a member of the collective bargaining team for the 2012 NHL/NHLPA Collective Bargaining Agreement, which involved crafting the League’s labor strategy, negotiating with the NHLPA, drafting the Agreement, and analyzing the impact of proposed changes. Prior to working for the NHL, Jessica was an Associate in the Labor & Employment Department at Proskauer Rose LLP. At Proskauer, she represented employers in collective bargaining, mediations, arbitrations and litigations. While at Proskauer, she also handled pro bono matters, mostly relating to domestic violence, sexual assault and military service. Jessica graduated from Fordham University School of Law where she was the Editor-in-Chief of the Fordham Sports Law Forum and an Associate Editor of the Urban Law Journal. She graduated from the University of Michigan, School of Kinesiology with an undergraduate degree in Sports Management and Communications with distinction. During her years in Ann Arbor, Michigan, she worked as the Assistant Manager for the Men’s Ice Hockey team and the Men’s Football team through the Sports Information Department. In 2009, the University of Michigan School of Kinesiology awarded her the Early Career Achievement Award, and in 2015 she delivered the University of Michigan School of Kinesiology Commencement Address. Jessica has lectured on sports league operations and business, corporate social responsibility, social impact, youth sports, diversity & inclusion, labor law, collective bargaining in sports, immigration law in sports, sports arbitration and breaking into the sports industry. Jessica remains active with the University of Michigan having served on the University of Michigan School of Kinesiology Alumni Board, and currently serving on the Board of Advisors of the Michigan Sports Business Conference and on the UM Sport Management Advisory Board. In 2012, she was elected to the Board of Directors of the Sports Lawyers Association. In 2014 she was selected to receive the Sports Business Journal’s 40 Under 40 Award. In 2015 she was presented with the Burke Award, the highest honor bestowed by the Board of Directors of the Burke Medical Research Institute and Burke Rehabilitation Hospital for her commitment to helping people with brain injuries. She has also served as a judge for SBJ New Voices Under 30 and Front Office Sports Rising 25. Jessica is also a member of the UJA Sports for Youth Committee and is on the Fordham Sports Law Forum Board of Advisors. In 2020, Jessica became one of the founding Advisory Board Members for the Pro Sports Assembly, dedicated to advancing diversity & inclusion in the professional sports industry.

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David Foster Deputy General Counsel, National Basketball Players Association Since joining the National Basketball Players Association (NBPA) in 2015, David has played an important role in a variety of legal issues facing the NBPA and its members. In 2016, he was a part of the NBPA negotiating team that worked on behalf of the players to secure a new collective bargaining agreement with the National Basketball Association (NBA). Additionally, David’s responsibilities include the regulation of NBPA certified agents, mediation of disputes between agents and players, as well as representing NBA players during disciplinary proceedings before the NBA and providing general legal advice to NBA players on a variety of issues.

With the recent changes in the gambling laws across the United States, David has been given the responsibility of crafting and advocating the NBPA’s position on this issue. He has spoken before state legislatures and on numerous panels regarding the legalization of sports gambling and its potential impact on athletes. He also provides the NBA players with guidance on the use of wearable technology and the potential impact such devices may have on player health and performance. David was recently names to Sports Business Journal’s Class of 2019 Forty under 40 and well as the National Bar Association’s 40 under 40. Prior to joining the NBPA, David was an assistant district attorney in Queens County, New York, and also an assistant U.S. attorney in New Jersey. When not working he frequently participates in triathlons and has completed nine Ironman races.

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John Gerba Associate Counsel of Labor, National Hockey League Players’ Association Mr. Gerba is Associate Counsel at the National Hockey League Players’ Association. He is involved in most of the organization’s operations, including collective bargaining, administering the collective bargaining agreement, representing players in grievances against the NHL or NHL Clubs, as well as advising on other matters that could impact NHL players. Prior to joining the NHLPA, Mr. Gerba spent over ten years at Weil, Gotshal & Manges in New York as a member of the firm’s Sports Law practice and

Complex Commercial Litigation group. Mr. Gerba received his J.D. from Fordham Law in 2006 and his undergraduate degrees from The College of William and Mary in 2001.

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Moderator: Marc Edelman Professor of Law at the Zicklin School of Business, Baruch College, City University of New York

Marc Edelman is a tenured Professor of Law at the Zicklin School of Business, Baruch College, City University of New York, where he writes and teaches on sports law, antitrust law, intellectual property law, and gaming / fantasy sports law. He also serves as the Faculty Athletics Representative for Baruch College. In addition to his full-time role as a law professor, Professor Edelman is the founder of Edelman Law, where he provides legal consulting and expert witness services to businesses in the commercial sports, entertainment and online gaming industries. Some of Professor Edelman’s recent clients include a Major

League Baseball team, the Arena Football League Players Union, and several online fantasy sports providers. Professor Edelman is regularly cited by the media on a wide range of topics including how the Sherman Act applies to professional sports leagues, how gaming laws apply to fantasy sports contests, and how both labor laws and antitrust laws apply within the college sports industry. A magna cum laude graduate of the University of Pennsylvania’s Wharton School and a cum laude graduate of Michigan Law School, Professor Edelman began his professional career by practicing antitrust and sports law with the law firm Skadden, Arps, Slate, Meagher and Flom LLP. Thereafter, Professor Edelman has practiced both litigation and transactional law in the sports and intellectual property practice groups at Dewey Ballantine LLP.

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David Kelly Chief Legal Officer, Business and Basketball, Golden State Warriors David Kelly joined the Warriors during the 2011-12 NBA season as vice president and general counsel and is beginning his 10th season with the team. He was named general counsel and vice president, basketball management & strategy during 2016 and was then named chief legal officer, business and basketball in 2018.

In his current role, Kelly is responsible for all legal matters affecting the company (including transactions, disputes and compliance), manages player development, salary cap management and luxury tax planning for the team, oversees the organization’s human resources and public/governmental affairs departments, assists with college player scouting, and oversees many of the company’s key projects and initiatives on both the business and basketball

sides of the company, including legal matters related to the real property acquisition, entitlement, construction and operation of Chase Center and ancillary mixed-use development in San Francisco’s Mission Bay neighborhood.

Prior to joining the Warriors, Kelly was a partner at Katten Muchin Rosenman LLP where he advised clients in connection with public and private acquisitions, securities law compliance, and corporate governance matters. Kelly also provided legal counsel to a variety of sports teams and related clients with respect to television, radio and internet rights agreements, arena/stadium matters, intellectual property issues, and sponsorship and naming rights agreements.

Kelly has a passion for music and his work as a musician has been featured on the CBS Evening News and CNN, and in Time Magazine, the New York Times, the Chicago Tribune and the Wall Street Journal. He has released 8 albums and has toured in the United States, Canada, England, the Netherlands, Sweden, Portugal and Brazil.

A native of Chicago, Kelly earned his Bachelor of Arts degree from Morehouse College in 1996 and his Juris Doctor degree from the University of Illinois College of Law in 2004. He and his wife, Zeenat, have three children.

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Jeff Gewirtz Executive Vice President, Chief Operating Officer and General Counsel, BSE Global Jeff Gewirtz is Chief Operating Officer, Executive Vice President, and General Counsel of BSE Global (BSE). From 2010 through 2020 Gewirtz served as BSE’s EVP of Business Affairs and Chief Legal & Compliance Officer. Gewirtz joined BSE in May 2007 as Senior Vice President and General Counsel. In coordination with ASM Global, Gewirtz oversees operations at Barclays Center and he advises BSE’s ownership and his executive management colleagues on key business and legal matters for BSE’s holdings, including the Brooklyn Nets, Barclays Center, the New York Liberty, the NBA G League’s Long Island Nets, the NBA 2K League’s

Nets GC, and, through 2019, NYCB LIVE, home of the Nassau Veterans Memorial Coliseum, and Webster Hall. Gewirtz also works closely with Barclays Center management on live event programming initiatives and he has oversight for BSE’s external affairs function. Gewirtz was a key member of the negotiating team for BSE’s most significant commercial initiatives over the past several years, such as: the 2012 relocation of the New Jersey Nets to Brooklyn; development of the $1 billion Barclays Center; the 2015 relocation of the New York Islanders to Barclays Center and oversight of all legal affairs for the Islanders’ business operations through 2019; team and arena ownership transfer transactions in 2010, 2016, 2018, and 2019; re-development of NYCB LIVE, home of the Nassau Veterans Memorial Coliseum; development of the Brooklyn Nets’ state-of-the-art practice facility, the HSS Training Center; acquisition of the Webster Hall business; and BSE’s media rights alliance with YES Network. Gewirtz was named to the 2019 United States GC Powerlist by The Legal 500 and in 2015 his legal department was named one of the top 50 in-house legal departments in the United States by The Legal 500. In addition, Gewirtz was named 2014 Sports Counsel of the Year by the Association of Media & Entertainment Counsel, and in 2009 Gewirtz was selected to the prestigious “Forty Under 40” by Sports Business Journal as one of the 40 top sports executives under the age of 40 in the United States. Gewirtz sits on the Board of Directors of the Sports Lawyers Association and he is a past Sports Committee Chair of the American Bar Association’s Forum on the Entertainment and Sports Industries. In 2017 he was appointed to the Board of Directors of the Brooklyn Volunteers Lawyers Project and in 2018 he was appointed to the Board of Trustees of the Women’s Sports Foundation. Prior to BSE, Gewirtz served as the United States Olympic Committee (USOC) General Counsel and Chief Legal & Government Affairs Officer where he was responsible for all USOC legal matters, as well as the USOC’s government relations activities with Congress and federal government agencies. Gewirtz has also held positions with: The Coca-Cola Company’s Corporate Legal Division – as Global Marketing Counsel – where he negotiated many of Coca-Cola’s most significant sports industry transactions such as its $500 million+ NCAA Corporate Champion sponsorship and media alliance with CBS Sports; IOC Television & Marketing Services SA – as Director of Legal Affairs – where he served as lead counsel for the International Olympic Committee’s global sponsorship Olympic Partner (“TOP”) Programme in connection with the 2002 Salt Lake Olympic Winter Games and 2004 Athens Olympic Games; the LPGA Tour as General Counsel; and the WTA. He began his legal career as a corporate associate at the New York City law firm of Dunnington, Bartholow & Miller LLP. A native of Baldwin Harbour, New York, Gewirtz is a graduate of Tufts University, where he was a four-year member and Captain of the Tufts Varsity Tennis Team his senior year, as well as a member of its New England Championship team. In 2016 he was appointed to the Tufts Athletics Board of Advisors. Gewirtz received his law degree from Brooklyn Law School, where he was the recipient of a three-year merit scholarship, from which he is a two-time recipient of its Alumni Achievement Award in Sports Law, and at which he previously served as an Adjunct Professor of Sports Law.

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Mandy Petrillo Senior Club Counsel, Boston Red Sox and Fenway Sports Management Mandy Petrillo joined the Boston Red Sox and Fenway Sports Management legal team in February 2008. She began her career with the organization as a Senior Paralegal, moved into a Legal Operations role in 2011, was elevated to Club Counsel in 2015, and to Senior Club Counsel in 2020. In her capacity as Senior Club Counsel, Petrillo is responsible for drafting and negotiating a variety of agreements, including sponsorship, consulting and event agreements for the Red Sox, Fenway Sports Management (FSM) and New England Sports Network (NESN). In addition to her transactional responsibilities, Petrillo also manages the company’s intellectual property portfolio and related matters.

A native of Foxboro, MA, Petrillo earned her B.A. from Arizona State University in 1999. She received her J.D. from Suffolk University Law School in 2006 and is admitted to the Massachusetts Bar. Petrillo is an Adjunct Professor teaching Sports Law at Suffolk University Law School and is Co-Chair of the Boston Bar Association Arts, Entertainment and Sports Law Committee. Petrillo is also a member of the Sports Lawyers Association and currently resides in Beverly with her husband and two children.

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Jill Kelley Vice President of Legal Affairs, New York Jets Jill Kelley is in her second year with the New York Jets as the team’s Vice President of Legal Affairs. Kelley joined the club after an almost 15-year legal career with broad experience in tax, commercial, and entertainment law, including sports wagering. Prior to the Jets, Kelley served as general counsel of PointsBet USA, where she was the lead counsel for all United States sports book operations and strategic commercial development, working with professional sports leagues while overseeing gaming partnerships, corporate sponsorship contracts, and all federal and state regulatory compliance. She previously served as senior legal counsel for the Mashantucket Pequot Tribal Nation and their Foxwoods Resort Casino,

one of the world’s largest resort casino hotel properties, providing legal advice on a range of commercial transactions, economic development initiatives, and federal, state and tribal tax and regulatory matters. Beginning her career with PricewaterhouseCoopers in 2006, Kelley later moved to Withers, LLP as an international tax attorney for eight years. There, she focused on strategic corporate and tax planning for businesses, family offices, investment funds, and private foundations. A graduate of Villanova University, Kelley earned law degrees from Suffolk University Law School (JD) and Boston University Law School (LL.M.). She has also served as an Adjunct Professor of Law at the University of Connecticut School of Law.

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Moderator: Professor Mark Conrad Director, Sports Business Program, Gabelli School of Business, Fordham University

Mark Conrad is Associate Professor of Law and Ethics at Fordham University’s Gabelli School of Business, where he directs its sports business concentration. In addition to his full-time responsibilities at Fordham, Professor Conrad has served as an adjunct professor at Columbia University’s master’s program in Sports Management where he teaches international and comparative sports law. In addition, he is adjunct professor at St. John’s University School of Law, where he has taught sports law for J.D. and LL.M.

students. He has lectured at Northwestern University’s campus on Doha, Qatar. Prof. Conrad has appeared on panels and symposia at leading institutions outside of Fordham, including Harvard Law School, and the law schools at Duke University, the University of Virginia, NYU and Arizona State. Internationally, he presented at the Asser Sports Law Institute in the Hague in the fall of 2019.

Professor Conrad’s books and articles have appeared in academic, legal and general circulation publications. His book “The Business of Sports -- Off the Field, In the Office, On the News,” (Routledge/Taylor and Francis, 2017) has been cited in leading journals as one of the most comprehensive texts on the subject. He has also published in numerous academic and non-academic journals on various sports law topics, including governance issues, intellectual property, collegiate and international issues. His current research focuses on a need to improve governance, transparency, and funding for the U.S. Olympic bodies, particularly the USOPC and USA Track and Field. In addition to teaching sports law, he has also taught courses covering contracts, business organizations, legal issues involving the arts and media law.

Professor Conrad has been quoted in the New York Times, Boston Globe, and Chicago Tribune and has

appeared on CNN and Bloomberg TV. Professor Conrad received his B.A. from City College of New York and his J.D. from New York Law

School. After receiving his law degree, he earned an M.S. from Columbia University’s Graduate School of Journalism. He is a member of the New York and District of Columbia bars and resides in New York City. He served as president of the Sport and Recreation Law Association from 2014-15 and president of the Alliance for Sport Business from 2016-18.

A lifelong resident of New York City. Prof. Conrad points to running the New York City Marathon as one

of his memorable achievements. He may be followed on Twitter on @Sportslaw1.

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Charles H. Baker Partner at O’Melveny & Myers LLP Co-Chair of the Sports Industry Group Charles Baker is Co-Chair of O’Melveny’s Sports Industry Group. Chuck’s corporate practice encompasses mergers and acquisitions, private equity, and venture capital transactions, with a core focus in the sports, media and consumer sectors. Chuck has represented buyers and sellers of sports franchises in the National Football League, National Basketball Association, National Hockey League, Major League Baseball, Major League Soccer, National Women’s Soccer

League and many of the European football leagues. Recently, Chuck represented David Tepper, founder and president of global hedge fund Appaloosa Management, in his acquisition of the NFL’s Carolina Panthers and Charlotte FC, MLS’s 30th expansion team. Chuck has been featured by dozens of national publications and other media outlets as a thought leader in the fields of sports and entertainment law, and is also a frequent public speaker on those topics. Most recently, Law360 named Chuck to its 2020 list of Sports & Betting MVPs. The American Lawyer named Chuck to its prestigious 2019 “Dealmakers of the Year” list and he was also profiled in Variety’s 2018 and 2017 “Dealmakers Elite New York,” a feature spotlighting the most important players in the fields of law, finance, representation, and executive leadership. Chuck has been recognized nationally for sports law in the last six editions of Chambers USA: America’s Leading Lawyers for Business, which has described him as a “very strong practitioner” who is “well connected, incredibly bright and just able to get the deal closed” with “tremendous experience and know-how in the sports space.” He was also recognized by Law360 in 2015 and 2016 for his stellar M&A and sports law work, and by the Global M&A Network for his work on the sale of the Atlanta Hawks NBA team, naming it the “2015 USA Deal of the Year” at its prestigious M&A Atlas Awards. In 2016, he was featured in Sports Business Journal’s “Power Players: Sports Lawyers & Outside Counsel” 2016 list. Chuck, who holds a JD from Cornell University, is a Distinguished Lecturer at NYU’s Tisch Institute for Sports Management, Media, and Business. He is also a member of the University of Miami School of Law’s Entertainment, Arts, and Sports Law board. Chuck also served as a staff associate for former Senator Bill Bradley. He is active at the board level with the March of Dimes and the Leukemia & Lymphoma Society, and previously with USA Triathlon.

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Alex Rosen Senior Counsel of Global Media, Major League Baseball Alex Rosen is Senior Counsel for Global Media at Major League Baseball. In his role, Rosen is responsible for negotiating domestic and international rights agreements relating to both digital and offline content and serves as a liaison to Club front offices on media-related issues. Recently, Rosen played a key role in negotiating MLB’s seven-year renewal with Turner Sports, extending one of the longest-running relationships in sports broadcasting. In his previous position, Rosen reviewed and approved ownership transactions, assisted Clubs with obtaining financing through the league-wide credit facility and counseled on issues related to stadium leases, youth development initiatives and the

league’s various rules and regulations. Notably, Rosen helped facilitate Bruce Sherman and Derek Jeter’s successful bid to purchase the Miami Marlins for $1.2 billion in 2017. Before joining MLB, Rosen worked in the New York office of Proskauer, an international law firm known for its preeminent sports law group. Rosen’s representations included the NHL in its expansion to Las Vegas, the Los Angeles 2024 Exploratory Committee in its efforts to eventually land the 2028 Summer Olympic Games, NASCAR in its new charter agreement and associated restructuring of the sport and the Wilson family in connection with the $1.4 billion sale of the Buffalo Bills. A graduate of Villanova University and Harvard Law School, Rosen was named to Forbes Magazine’s 2018 30 Under 30 Sports list, which honored the top athletes and executives in the industry under the age of 30.

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Jared Fox NFL Agent, Sportstars, Inc. Jared Fox, Esq. is an NFLPA Certified Contract Advisor at Sportstars, Inc. He began his career at Sportstars in 2005, working on contract research, client marketing, and day-to-day client management. Jared’s knowledge of the Collective Bargaining Agreement and Salary Cap provide him a deep comprehension of player compensation and valuation. As an NFL agent, he truly understands the duty to always place the best interests of the client above all,

and to work tirelessly to secure his clients’ futures. Jared has personally negotiated over $500 million in NFL player contracts. In March 2020, Jared negotiated a contract that made his client Byron Jones the highest-paid cornerback in the NFL. In July 2017, Jared negotiated a deal that made his client Brandon Linder the NFL’s highest-paid center. According to ‘Inside the League’ Jared currently represents the #5 most active clients on current NFL rosters. Amongst this impressive list of clients includes David Montgomery (Running back for the Chicago Bears), Blake Martinez (Linebacker for the NY Giants), Jimmie Ward (Safety for the San Francisco 49ers), and JC Tretter (Center for the Cleveland Browns and the current President of NFL Players Association). Jared earned a B.S. in Finance with High Honors from Pennsylvania State University before attending Fordham University School of Law in New York City, where he received his law degree.

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Jason Belzer President/Founder, GAME, Inc. Jason Belzer is founder and President of GAME, Inc., an agency that specializes in the career management and marketing of coaches and the creation of collegiate sporting events. The firm represents more than 35 head Division I college basketball and football coaches and has negotiated more than $100 million in contracts to date. Jason is also founder of AthleticDirectorU, a transformative digital media and professional development platform for college athletic administrators and

coaches. His sports business column, Wicked Jump Shot, in Forbes Magazine has been read by more than 7 million people since its inception in 2013. Belzer graduated from Rutgers University, earning degrees in Sport Management and Political Science. He went on to receive his MBA from the University of Illinois and a JD from Rutgers University School of Law and is a licensed attorney in New York and New Jersey. Jason teaches both Organizational Strategy and Organizational Behavior at his Alma mater.

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Paul Greene Founder, Global Sports Advocates Paul J. Greene, the Founder of Global Sports Advocates, is recognized as one of the world’s leading sports lawyers. Paul has handled sports law matters around the world, including numerous hearings before the international Court of Arbitration for Sport in Lausanne, Switzerland known as the “Supreme Court for Sports Law.” Paul has represented athletes from more than 20 countries and more than 30 different sports. Paul even represented an Olympic gold medal winning horse. Paul has also successfully represented multiple sports federations and national

Olympic committees in governance matters. Paul is a well-known speaker and author in the area of sports law both nationally and internationally and a professor of sports law. He has taught “Law and Sports” at the University of Maine School of Law and as a member of the faculty at the Instituto Superior de Derecho y Economía’s (ISDE) International and Comparative Sports Law LLM Program in Madrid, Spain and New York City. Paul has also taught “Legal Ethics” and guest lectured at many law schools and universities. Paul is an Editorial Board member of leading sports law publications LawinSport and Football Legal and a long-time member of the Sports Lawyers Association. Paul is a member of RexSport, an international association of sports lawyers. Paul is a member of the Immigration Legal Advocacy Project, a group committed to protecting the rights of immigrants by providing pro bono representation in asylum matters. He is admitted to practice in the States of Maine, Massachusetts, New York and the District of Colorado. Paul attended the University of Maine School of Law (cum laude, Managing Editor, Maine Law Review, Interned for the Honorable Kermit Lipez, United States Court of Appeals for the First Circuit). He earned a master’s degree in communications from Syracuse University and his undergraduate degree from Brandeis University, where he captained the cross country and track teams.

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Moderator: Joshua Gordon Senior Instructor of Sports Business, Lundquist College of Business, University of Oregon, Founder of the Sports Conflict Institute A conflict management professional for more than twenty-five years, Mr. Gordon is an experienced mediator, arbitrator, facilitator, educator, and organizational capability builder. Mr. Gordon specializes in sports related conflict management building on a history of contexts that have included business-to-business, organizational change, energy, environmental, real estate and housing, family, and gang-related conflict and disputes. He especially appreciates and enjoys complex, multi-party conflict that requires non-traditional solutions to impasse. Mr. Gordon has developed creative organizational solutions to ensure competitive

success for a number of teams and leagues from collegiate through the professional levels. He has presented to audiences that have included individuals and teams from the NCAA, NBA, NFL, MLS, NRL, MLB, USATF, USTA, PGA, LPGA, and ATP. Mr. Gordon founded the Sports Conflict Institute (SCI) after previously directing the Competition Not Conflict (CNC) project at the University of Oregon School of Law Appropriate Dispute Resolution Center. Mr. Gordon sees the importance of supporting competitive goals in athletics through understanding, preventing, and resolving destructive conflicts that occur both inside and outside the lines. He is dedicated to minimizing destructive costs of conflict in sports, by looking far below the tip of the iceberg, and fostering the positive value sports can provide to athletes, coaches, supporters, and administrators. Mr. Gordon has created a number of cutting-edge conflict management tools and curriculum, including, the Play-By-Play Model™, Outside the Box / Inside the Ring™, Stop Bully!™, Sports Conflict Observations Tools (SCOTs)™, and myriad others. He takes a systemic approach to problems that arise in sport through the use of powerful assessment instruments and interventions designed to specifically address the challenge at hand. Mr. Gordon has a track record of bringing innovative solutions to problems in sports. Examples include establishing one of the first sports ombuds programs in the country; facilitating the introduction of digital trainers to promote cognitive skills associated with competencies such as high-speed decision making, emotional regulation, and feedback mechanisms to Oregon Football, Softball, and Baseball in coordination with Axon Sports; and developing positive reward and accountability systems for Oregon Football program including testing against 500+ cases to ensure behavior outcomes consistent with Coach Chip Kelly’s values, expectations, and goals. Mr. Gordon has trained thousands of students in mediation, negotiation, and conflict management. As part of the Massachusetts Office of the Attorney General, he Instituted mediation and conflict resolution training programs in school systems throughout Massachusetts and was a member of the Conflict Intervention Team designed as first responders to gang violence. Mr. Gordon continues to teach undergraduates and graduates at the University of Oregon in Eugene, OR on courses related to negotiation, law & sports business, sport brand management, sport & society, sports conflict management, and dispute resolution. He has served the negotiation coach for the ABA Moot Court Negotiation Competition where he successfully coached multiple teams to the National Competition, including the 2013 ABA National Champion which then competed in the International Negotiation Competition as the United States representative. Mr. Gordon is an arbitrator with the Court of Arbitration for Sport, based in Lausanne, Switzerland, where he is on both the Football List and the General List. Mr. Gordon also serves on the Editorial Board for LawInSport, a knowledge hub and global community that provides expert analysis and commentary on the latest legal developments in sport. In addition to his career in conflict management and dispute resolution, Mr. Gordon is a competitive runner with recent Masters All-American performances in the mile, 3K, 5K, and 10K distances. He competes as part of the University of Oregon Running Club and the Bowerman Track Club with consistent top 1% finishes. Mr. Gordon received his Juris Doctor from Suffolk University Law School, both his Master of Arts and a Graduate Certificate in Dispute Resolution from the University of Massachusetts Boston, and his Bachelor of Arts in Psychology / Sociology with an Certificate in Criminal Justice from the University of Massachusetts Amherst. Mr. Gordon is currently authoring a new book on negotiation titled, Alignment Is Power: Building Negotiation Excellence (Expected publishing April, 2022).

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Bill Daly Deputy Commissioner, National Hockey League William (Bill) L. Daly, was named the National Hockey League’s first-ever Deputy Commissioner by Commissioner Gary B. Bettman on July 22, 2005 – an appointment that was unanimously endorsed by the NHL’s Board of Governors. Daly’s appointment came after serving for more than eight years as the League’s Chief Legal Officer during which time he played a major role in helping to shape the National Hockey League’s identity on the global sports landscape.

In his current role, Mr. Daly is the chief consultant to Commissioner Bettman on virtually every topic impacting the League. Principal among his duties is negotiating and administering the League’s Collective Bargaining Agreements (CBA) with the NHL Players’ Association (NHLPA) and with the NHL Officials’ Association (NHLOA). In 2004-05, and again in 2012-13, Mr. Daly was the League’s lead

negotiator in CBA negotiations with the NHLPA. Due in large part to the economic framework established and later improved upon in collective bargaining, the NHL has experienced unprecedented competitive balance and record revenue growth, and has reached an all-time high in terms of the health and popularity of the game. In addition to his continued oversight of the NHL Legal Department, Mr. Daly is involved in, and ultimately responsible for, many other areas of the League’s business and hockey operations.

Mr. Daly played a major role in two of the largest and most significant commercial contracts with television rightsholders in the history of the League. In 2011, he oversaw negotiations on a historic 10-year U.S. national rights agreement with NBC Sports Group, which delivers more NHL regular season games nationally than ever before to U.S. fans via a combination of the NBC over-the-air platform and NBC Sports Network, NBC’s newly created sports cable channel. In addition, the NBC Agreement provides NHL fans in the U.S. full national coverage of every Stanley Cup Playoff game for the first time ever. In 2013, Mr. Daly again played a lead role in negotiating a 12-year Canadian national broadcast and new media deal with Rogers Communications pursuant to which NHL fans in Canada will have access to more NHL content delivered on more platforms than ever before in the history of the game in that country.

Mr. Daly is the principal liaison and caretaker for the NHL’s relationship with the international hockey community. He oversees the NHL’s participation in all international hockey competitions, including the Olympics, the World Cup of Hockey, the IIHF World Hockey Championships, NHL Global Series and NHL China Games. Mr. Daly is responsible for the NHL’s involvement in the 1998, 2002, 2006, 2010 and 2014 Olympic Winter Games, brokering all of the necessary agreements with the International Ice Hockey Federation and NHL Players’ Association that were needed to facilitate NHL player participation in each of these tournaments. In addition, Mr. Daly brokered the NHL negotiations that led the League to cohost, alongside the NHLPA, the 2016 World Cup of Hockey after a 12 year hiatus. In 2017, Mr. Daly spearheaded the League’s international strategy that brought NHL players to China for the first- ever preseason games in Beijing and Shanghai as well as the League’s return to Europe to play regular season games in Sweden for the first time since 2011. Mr. Daly also negotiates and administers the NHL’s Player Transfer Agreements with nearly all of the major European Ice Hockey Federations pursuant to which international players wishing to transfer to North America to play in the NHL are able to do so.

Mr. Daly leads the League’s dealings with the NHL Alumni Association, American Hockey League, the Canadian Hockey League, Hockey Canada and USA Hockey and is responsible for negotiating and administering the necessary working agreements related to those relationships. Mr. Daly supervises the NHL/NHLPA Program for Substance Abuse and Behavioral Health and serves as the NHL’s representative on the Program Committee responsible for governing the League’s Performance Enhancing Substances Program. Mr. Daly serves as President of the NHL Foundation – the organization responsible for administering and directing charitable dollars and initiatives for the League and its Clubs – and also serves on the Board for the NHL Players’ Emergency Assistance Fund. Mr. Daly also represents the NHL on the Board of Directors for the Hockey Hall of Fame and the Board of Directors for USA Hockey.

Mr. Daly played a major role in founding and administering the first-ever NHL/NHLPA Rookie Orientation Program in 2013. Jointly developed and executed by the NHL and NHLPA, the Program is designed to assist young NHL Players in

22

becoming better professionals on and off the ice. In addition, Mr. Daly pioneered the launch of the NHL/NHLPA Core Development Program, which aims to promote and facilitate healthy and productive lives for all Players during their NHL careers, and assist in their transition to life and their post-playing careers.

Beyond his duties with the NHL, Mr. Daly serves as a board member for the Sports Lawyers Association and has also served on boards for the Sports Development Corporation of the City of New York, and the Sports Law and Antitrust Law Committees of the Association of the Bar of the City of New York. Mr. Daly regularly lectures on, and has authored a number of articles addressing, legal issues relating to professional sports.

In September 2013, Mr. Daly was selected as one of the Legal 500’s Corporate Counsel 100; and in September 2014, he was awarded the Legal 500 Individual of the Year: Sport. Also in September 2014, Mr. Daly was named a recipient of the Lester Patrick Trophy for outstanding service to hockey in the United States. He was recognized by the Irish Voice publication on its “Irish Legal 100” List (2010 and 2011) and its “Irish Sports 50” List (2013), as well as by the SportsBusiness Journal as a three-time Forty Under 40 Award winner (2002, 2003, 2004).

Prior to joining the NHL on December 13, 1996, Mr. Daly spent six years as an attorney with the New York law firm of Skadden, Arps, Slate, Meagher & Flom, LLP. His focus with Skadden was litigation, antitrust and labor issues relating to sports. While at Skadden, Mr. Daly represented the National Football League, the National Basketball Association and the National Hockey League on a variety of legal and collective bargaining matters.

Mr. Daly, 56, is a graduate of Dartmouth College, where he played varsity football, and New York University School of Law. He is married to his wife Gloria and has three children, Taylor, Brendan and Liam. Mr. Daly is a life-long resident of New Jersey and currently resides in Montville, NJ. He is a big fan of the Miami Dolphins.

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Moderator: Warren K. Zola Carroll School of Management, Boston College Warren K. Zola serves as the Executive Director of the Boston College Chief Executives Club, a program of the Carroll School of Management at Boston College. Long recognized as one of the world’s premier business forums, the Boston College Chief Executives Club gathers keynote speakers to address Boston’s business leaders. The speakers are the world’s most influential CEOs drawn from the top echelons of their fields—thought leaders who welcome the opportunity to address an audience of their peers. Prior to his promotion to the Boston College Chief Executives Club, Zola served as Assistant Dean for Graduate Programs in the Carroll School of Management at Boston College for 10 years. In addition, Zola is an adjunct

faculty member in the Carroll School’s departments of Business Law and Operations teaching two graduate courses—Sports Law and the Business of Sports. As an attorney and key opinion leader in the business of sports and sports law, Zola is frequently relied upon by the national media for his insight and perspective. In addition, he has provided scholarly articles for legal textbooks, books, law reviews, and newspapers. Zola earned a B.A. with Honors from Hobart & William Smith Colleges, a J.D. from Tulane University, and an M.B.A. from Boston College. He has been an active member of the Sports Lawyers Association and Massachusetts Bar since 1993. Zola serves on the Board of Directors of three non-profit organizations: Mass Mentoring Partnership, You Can Play, and his alma mater, Hobart & William Smith Colleges.

Volume 25 Issue 2 Article 3

8-1-2018

A Huge Win for Equal Pay: Women's National Teams Grab Their A Huge Win for Equal Pay: Women's National Teams Grab Their

Biggest Victories Yet in Recent Contract Disputes Biggest Victories Yet in Recent Contract Disputes

Patrick C. Coyne

Follow this and additional works at: https://digitalcommons.law.villanova.edu/mslj

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Recommended Citation Recommended Citation Patrick C. Coyne, A Huge Win for Equal Pay: Women's National Teams Grab Their Biggest Victories Yet in Recent Contract Disputes, 25 Jeffrey S. Moorad Sports L.J. 315 (2018). Available at: https://digitalcommons.law.villanova.edu/mslj/vol25/iss2/3

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A HUGE WIN FOR EQUAL PAY: WOMEN’S NATIONAL TEAMSGRAB THEIR BIGGEST VICTORIES YET IN

RECENT CONTRACT DISPUTES

“It’s not about the money, it’s about the message we send. We are send-ing the equality message out that this is the right thing to do.”1

I. INTRODUCTION

The gender-based pay gap in the American workforce is no se-cret.2 The gap has narrowed over time, but persistent and system-atic pay inequality remains impossible to deny despite thenarrowing gap.3 The pay gap covers virtually all industries, andsports are not immune either, as reports suggest pay gaps exist tovarying extents in sports like golf and basketball.4 In the realm ofsports, the equal pay discussion often deteriorates due to the as-sumption that women’s sports are less popular than men’s, with op-ponents of equal pay arguing that women should be paid in

1. Kira Cochrane, Billie Jean King: ‘It’s Not About the Money, It’s About the EqualityMessage’, THE GUARDIAN (June 23, 2013) (quoting Billie Jean King), https://www.theguardian.com/sport/2013/jun/23/billie-jean-king-equality-message [https://perma.cc/8N4C-2494] (discussing story of Billie Jean King, champion of equal payfor women in tennis during 1970s and her famous “Battle of the Sexes” matchagainst Bobby Riggs, whom she defeated, in 1973).

2. See Anna Brown & Eileen Patton, The Narrowing, but Persistent, Gender Gap inPay, PEW RES. CTR. (Apr. 3, 2017), http://www.pewresearch.org/fact-tank/2017/04/03/gender-pay-gap-facts/ [https://perma.cc/4ATC-P38D] (tracking genderpay gap among workers, annually and estimating that “17-cent gender pay gap forall workers in 2015 has narrowed from 36 cents in 1980,” but also that, “[i]n 2015,women [still only] earned 83% of what men earned”).

3. See id. (discussing potential reasons for gender gap persisting may includemore women taking significant time away from work to care for family than menand overrepresentation by women in lower-paying occupations). The article alsodiscusses how “part of the pay gap may also be due to gender discrimination. Inthe 2013 survey, women were about twice as likely as men to say they had beendiscriminated against at work because of their gender (18% vs. 10%).” Id. Thearticle also explains that “77% of women and 63% of men said this country needsto continue making changes to give men and women equality in the workplace.”Id.

4. See John Walters, Taking a Closer Look at the Gender Pay Gap in Sports, NEWS-

WEEK (Apr. 1, 2016, 12:23 PM), http://www.newsweek.com/womens-soccer-suit-un-derscores-sports-gender-pay-gap-443137 [https://perma.cc/TTV7-GYJ4](comparing alleged disparities in Women’s Soccer pay, after filing of their com-plaint with Equal Employment Opportunity Commission, with women in othersports, and noting tennis is “by far the most lucrative sport for female athletes, andalso the most gender-equitable”).

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accordance with the popularity of their sports.5 However, despitethose overly-broad assertions, several well-grounded arguments sup-port equal pay, including, but not limited to: “[e]qual pay for equalwork,” the moral justification and the underlying policy for protec-tion against pay discrimination in U.S. law; women playing the samesports as men for the U.S. and performing better than their malecounterparts; and, women’s team players may bring more eco-nomic benefit to their league or governing body than their malecounterparts do to their equivalent organizations.6

Until recently, the National Teams for Women’s Soccer andIce Hockey were not immune to this phenomenon of pay disparity.7The United States’ Women’s National Soccer and Hockey Teamshave existed and competed internationally since the mid-1980s andearly 1990s, respectively.8 Each Team has been highly competitive

5. See Andrew Das, Pay Disparity in U.S. Soccer? It’s Complicated, N.Y. TIMES (Apr.21, 2016), https://www.nytimes.com/2016/04/22/sports/soccer/usmnt-uswnt-soccer-equal-pay.html (discussing rationales given by U.S. Soccer President SunilGulati for compensation to Women’s players, including how even though Women“broke viewing records” related to television ratings during most recent WorldCup, “ratings for men’s games have been more than double those for women’sgames, on average, since 2012,” and “[e]xcluding World Cup games, the men’steam’s ratings are almost four times as high”).

6. U.S. EQUAL EMP. OPPORTUNITY COMM’N, FACTS ABOUT EQUAL PAY AND COM-

PENSATION DISCRIMINATION, https://www.eeoc.gov/eeoc/publications/fs-epa.cfm[https://perma.cc/3JZF-X5U4] (last visited Dec. 30, 2017) (“The right of employ-ees to be free from discrimination in their compensation is protected under sev-eral federal laws enforced by the US Equal Employment OpportunityCommission.”). For further discussion on the rationales for equal pay based onrevenue and performance, especially as it relates to the Women’s Soccer dispute,see infra notes 76–81 and accompanying text. R

7. See Kevin Allen & A.J. Perez, U.S. Women Agree to New Deal with USA Hockey;Will Play at World Championships, USA TODAY (Mar. 28, 2017, 11:08 PM), https://www.usatoday.com/story/sports/hockey/2017/03/28/usa-hockey-women-dispute-world-championships/99538056/ [https://perma.cc/B2AC-ESDM] (detailingnewly agreed contract between United States Women’s National Hockey Team andUSA Hockey, and including details such as that “players will make around $70,000each per year, although they could make more than $100,000 in Olympic years ifthey win gold”); see also Graham Hays, U.S. Soccer, Women’s National Team Ratify NewCBA, ESPN (Apr. 5, 2017), http://www.espn.com/espnw/sports/article/19082314/us-soccer-women-national-team-ratify-new-cba [https://perma.cc/E2RW-VSHW] (reporting on newly ratified collective bargaining agreement betweenUnited States Women’s National Soccer Team and United States Soccer Federa-tion, which “is expected to cover a five-year period that includes both the 2019FIFA Women’s World Cup in France and the 2020 Olympics in Tokyo”). For fur-ther discussion on the resolution of the Women’s Soccer deal, see infra notes133–138 and accompanying text. For further discussion of the resolution of the RWomen’s Hockey deal, see infra notes 139–145 and accompanying text. R

8. See IIHF World Women’s Championships, INT’L ICE HOCKEY FED’N, http://www.iihf.com/iihf-home/history/all-medallists/women.html (last visited Aug. 21,2017) (listing each IIHF World Women’s Championship played, by year, begin-ning in 1990); see also U.S. WNT Flashback—20th Anniversary of First-Ever Match: Who

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and successful since its formation, with both winning multiple pres-tigious medals, including gold, in their respective World Champi-onship and Olympic competitions.9 All the while, equal pay issueshave also been a backdrop to the Teams’ successes, and players,such as Women’s Soccer captain Carli Lloyd, have taken strongstances on the issue.10 Equal pay issues have existed alongside thesuccesses of each Team almost since their respective formations,but greater revenue and growth of each sport in the near future areexpected because of the most recent successes of each Team, mak-ing the time ripe for the female athletes to receive the pay com-mensurate with their economic value they provide to theirgoverning bodies.11

Scored First?, U.S. SOCCER (Aug. 18, 2005), http://www.ussoccer.com/stories/2014/03/17/12/57/u-s-wnt-flashback-20th-anniversary-of-first-ever-match-who-scored-first [https://perma.cc/7GJQ-X67X] (detailing early history of U.S. Wo-men’s Soccer, such as first U.S. Women’s Soccer games that took place in 1985 andthat it was either Emily Pickering or Michelle Akers who scored first goal in Team’shistory).

9. See History: U.S. Soccer Team Honors, U.S. SOCCER (last visited Aug. 29, 2017),https://www.ussoccer.com/about/history/awards [https://perma.cc/3C67-NYZ2](recounting historical achievements of Women’s and Men’s Teams, including fourOlympic gold medal wins for Women and four FIFA World Player of the Year Indi-vidual Award winners); see also U.S. Women’s Hockey Olympic History and Records, USAHOCKEY, http://teamusa.usahockey.com/page/show/2906622-u-s-women-s-olympic-history-and-records [https://perma.cc/82CB-P2CU] (last visited Aug. 29,2017) (stating Women’s National Ice Hockey Team has played in every WinterOlympic Games since competition began in 1998, winning gold medal in 1998Olympic games, three silver medals since then, and one bronze medal as well).The Women’s National Ice Hockey Team also won its most recent gold medal, andits first at the Olympics since 1998, in February of 2018, when it defeated Canada 3-2 in a shootout. See Matthew Futterman, U.S. Women Break Canada’s Grip on HockeyGold, N.Y. TIMES (Feb. 21, 2018), https://www.nytimes.com/2018/02/21/sports/olympics/usa-womens-hockey-canada.html (reporting on Women’s HockeyTeam’s gold medal victory, in which it defeated Canadian team that had won previ-ous four gold medals).

10. See Carli Lloyd, Carli Lloyd: Why I’m Fighting for Equal Pay, N.Y. TIMES (Apr.10, 2016), https://www.nytimes.com/2016/04/11/sports/soccer/carli-lloyd-why-im-fighting-for-equal-pay.html?_r=0 (explaining that while improvements havebeen made since days of no salaries and no health benefits for players, team stillconsidered striking two years prior over equal pay issues). In her piece, Lloyd alsoadded that she and fellow players filed the complaint with the Equal EmploymentOpportunity Commission (“EEOC”) because they felt they had, “gotten nowherenegotiating with [their] federation for years, and it became clear to us that noth-ing had changed.” Id.

11. See Das, supra note 5 (discussing context surrounding timing of EEOC Rcomplaint being filed by several Women’s National Team players, including recordlevels of profit and popularity following World Cup victory and ongoing collectivebargaining negotiations taking place at time); see also Alan Taylor, USA Wins the2015 Women’s World Cup, THE ATLANTIC (July 6, 2015), https://www.theatlantic.com/photo/2015/07/usa-wins-the-2015-womens-world-cup/397763/ [https://perma.cc/3NQW-NFJE] (describing U.S. Women’s National Team’s 5-2 victoryover Japan to win its third FIFA World Cup title in 2015, in which midfielder Carli

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The United States Women’s National Soccer Team Players As-sociation (“the Players Association”) was no stranger to conflict withits governing body, the United States Soccer Federation (“the Fed-eration”), prior to their most recent contract dispute.12 The partieshad litigated in prior years, and their ongoing dispute came to ahead in the spring of 2016.13 Similarly, the Women’s NationalHockey Team settled its own contract dispute with its own gov-erning body, USA Hockey, just days before the Soccer Team’s reso-lution.14 While the history between the parties in the hockeydispute may not have been as contentious as relations between theparties in the Soccer dispute, the Hockey Team was still able tomake a very real threat of boycotting an upcoming World Champi-onship event.15 The subsequent resolutions of the disputes be-tween the players and their governing bodies were each huge stepsforward for achieving the goal of equal pay for women in sports.16

There are still disparities between the earning potential of femaleplayers and their male counterparts, but the new deals give the play-ers pay that is far more equitable in light of what the Men’s Team

Lloyd scored three goals and which was estimated to be watched by more thanmore than twenty-five million viewers on television).

12. See generally U.S. Soccer Fed’n, Inc., v. U.S. Women’s Nat’l Soccer TeamPlayers Ass’n, 190 F. Supp. 3d 777 (N.D. Ill. 2016) [hereinafter USSF v. USWNT].See also id. at 787 (holding that Memorandum of Understanding between partiesincorporated unmodified terms of expired CBA first agreed to in 2005, and thusplayers could not strike based on “no-strike clause” that was included).

13. See id. at 781–83 (discussing factual background and dispute between par-ties); see also Andrew Das, Top Female Players Accuse U.S. Soccer of Wage Discrimination,N.Y. TIMES (Mar. 31, 2016), https://www.nytimes.com/2016/04/01/sports/soc-cer/uswnt-us-women-carli-lloyd-alex-morgan-hope-solo-complain.html (discussingfiling of EEOC complaint by players and describing details included in it, whichwas larger part of National Team’s ongoing legal battle with Federation). For fur-ther background on the buildup to this dispute, see infra notes 69-75 and accom- Rpanying text.

14. See Allen & Perez, supra note 7 (“Members of the U.S. women’s national Rhockey team agreed to a four-year contract with USA Hockey on Tuesday night.”).

15. See Scott Allen, U.S. Men’s Hockey Players May Boycott World Championships inSolidarity with Women’s Team, WASH. POST (Mar. 26, 2017), https://www.wash-ingtonpost.com/news/early-lead/wp/2017/03/26/u-s-mens-hockey-players-may-boycott-world-championships-in-solidarity-with-womens-team/?utm_term=.28456c29d40e [https://perma.cc/JLR2-SK5Q] (discussing how Men’s National HockeyTeam planned to boycott their own World Championship event alongside wo-men). The same article also discussed a statement by the NHL Players Associationfollowing USA Hockey’s efforts to recruit other women to play in the tournamentin the event of a boycott. Id. The statement read, in part, as follows: “It is impor-tant that the best American women players be on the ice for the World Champion-ship and the notion of seeking replacement players will only serve to makerelations, now and in the future, much worse.” Id.

16. For further discussion on the progress made by the resolution of thesedisputes as it relates to broader equal pay efforts, see infra notes 180–211 and ac- Rcompanying text.

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players receive, and represent strong first steps toward true equalityin the future.17

This Comment examines, from a legal standpoint, whethereach dispute represents an equal pay issue based on gender dis-crimination, and how the resolution of each dispute resulted in “eq-uitable pay” that represents affirmative steps toward potentiallyachieving true equal pay in the future.18 Part II of this Commentdiscusses the laws regulating equal pay in America, as well as thelegislation and the contracts that established the relationships be-tween the players and their respective governing bodies.19 Part IIIof this Comment argues that, while neither Team achieved thesame pay, dollar-for-dollar, as their male counterparts, theyachieved “equitable pay” and put their sports in better positions togrow in coming years at the professional and grassroots levels.20 Fi-nally, Part IV of this Comment provides a summary of the key issuesdiscussed and conclusions made based on the new deals, and whatthe deals might mean for the ultimate goal of truly equal pay.21

II. BACKGROUND

A. Look at Equal Pay Laws in America: The Equal Pay Act of1963 and Title VII of the Civil Rights Act of 1964

Two separate laws allow private rights of action alleging gen-der-based discrimination to be brought against another party, suchas those the players on the US Women’s National Soccer Teambrought in their Equal Employment Opportunity Commission(“EEOC”) complaint: The Equal Pay Act of 1963 and Title VII ofthe Civil Rights Act of 1964.22

17. For further discussion on how the new deals will impact players outside ofthose who play for the National Teams and how the new deals stand to improvetheir situations, see infra notes 111–211 and accompanying text. R

18. For further discussion on whether each resolution can be said to haveachieved “equal pay” in a dollar-for-dollar legal sense, see infra notes 146–179 and Raccompanying text.

19. For further discussion on the background of the disputes and laws rele-vant to them, see infra notes 22–93 and accompanying text. R

20. For an analysis on how each Team can be considered to have achieved“equitable pay” and the potential broader impacts that may come of the new deals,see infra notes 95–211 and accompanying text. R

21. For a summary of the key issues and conclusions made in this Comment,see infra notes 212–224 and accompanying text. R

22. See Amy Steketee Fox, U.S. Women’s Soccer Team’s EEOC Charge SpotlightsWage Discrimination Issues, 26 NO. 5 IND. EMP. L. LETTER 5 (2016) (discussing eachlegal avenue, and main difference between two being that while successful showingof discrimination under Title VII requires showing of intent on employer’s part,there is no intent requirement under EPA). See generally Equal Pay Act of 1963, 29

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1. The Equal Pay Act of 1963

The Equal Pay Act (“the EPA”) is codified at 29 U.S.C. Section206(d) and is part of the Fair Labor Standards Act (“FLSA”).23

Generally, the EPA prohibits employers, who are subject to it, fromdiscriminating “between employees on the basis of sex by payingwages to employees” of one sex at a rate less than employees ofanother sex, when such employees perform “equal work on jobs theperformance of which requires equal skill, effort, and responsibil-ity, and which are performed under similar working conditions.”24

Importantly, the EPA only applies to relationships between“employers” and “employees,” under the Act, and not, for example,to relationships held by independent contractors.25 Moreover, ac-cording to sections of the Code of Federal Regulations applicableto the EPA, “[t]he equal work standard does not require that com-pared jobs be identical, only that they be substantially equal.”26

The EPA protects men and women equally, but was “motivated byconcern for the weaker bargaining position of women.”27 It is alsoof note that an employer who violates the EPA may not reduce thewage rate of any other employee in order to comply with it, andplaintiffs bringing EPA claims are not required to show that an em-ployer intended to discriminate.28

U.S.C. § 206(d) (2012); Title VII of the Civil Rights Act of 1964, 42 U.S.C.§§ 2000e(1)–2000e(17) (2012).

23. See 29 C.F.R. § 1620.1 (2017) (discussing basic applicability of Equal PayAct as it is part of Fair Labor Standards Act under 29 U.S.C. § 206(d)). The FairLabor Standards Act is codified at 29 U.S.C. §§ 201–219 (2012).

24. 29 U.S.C. § 206(d)(1) (prohibiting sex discrimination against employeesin workplace).

25. See 29 U.S.C. § 203(d) (“‘Employer’ includes any person acting directly orindirectly in the interest of an employer in relation to an employee and includes apublic agency, but does not include any labor organization (other than when act-ing as an employer) or anyone acting in the capacity of officer or agent of suchlabor organization.”); see also 29 U.S.C. § 203(e) (defining “employee” as “any indi-vidual employed by employer” and by public agency in certain circumstances, butnot at other times, such as when individual volunteers “their services solely forhumanitarian purposes to private non-profit food banks and who receive from thefood banks groceries”).

26. 29 C.F.R. § 1620.13(a) (defining what “equal work” means under EPA);see also 1 DANIEL B. ABRAHAMS, ET AL., FAIR LABOR STANDARDS HANDBOOK FOR

STATES, LOCAL GOVERNMENT, AND SCHOOLS ¶¶ 710–14, 1998 WL 35159406 (notingthat “substantially equal” test permits finding that two jobs are equal for EPA pur-poses even though one job involved tasks not required by other).

27. 29 C.F.R. § 1620.1(c) (“Men are protected under the Act equally with wo-men. While the EPA was motivated by concern for the weaker bargaining positionof women, the Act by its express terms applies to both sexes.”).

28. See 29 U.S.C. § 206(d)(1) (“[A]n employer who is paying a wage rate dif-ferential in violation of this subsection shall not, in order to comply with the provi-sions of this subsection, reduce the wage rate of any employee.”); see also Fox, supra

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A “plaintiff must make a prima facie showing that the employerpaid different wages to an employee of the opposite sex for substan-tially equal work” when bringing an EPA claim.29 There are fouraffirmative defenses that an employer may raise after a plaintiff hasasserted a prima facie case of gender-based discrimination under sec-tion 206(d)(1).30 The four exceptions include when a employerpays employees based on: “(i) a seniority system; (ii) a merit system;(iii) a system which measures earnings by quantity or quality of pro-duction; or (iv) a differential based on any other factor other thansex.”31 Under the EPA, an employee who prevails on a discrimina-tion claim stands to recover the money that was withheld fromthem as a result of the gender discrimination.32

2. Title VII of the Civil Rights Act of 1964

42 U.S.C. Section 2000e provides Title VII of the Civil RightsAct of 1964 and offers another avenue for bringing causes of actionrelated to gender-based discrimination claims.33 The same statutealso created the EEOC, the governmental agency with which theWomen’s Soccer Team filed their wage discrimination complaint.34

Title VII prohibits several forms of discrimination, including wagediscrimination on the basis of sex.35 A key difference betweenclaims brought under Title VII and the EPA is that after establish-ing a prima facie case under Title VII, an employee must demon-strate the employer intended to discriminate based on gender forthe case to succeed on its merits, rather than simply showing that

note 22 (“Unlike in Title VII wage discrimination claims, an employee filing an REPA lawsuit is not required to demonstrate that the employer intended todiscriminate.”).

29. Byrd v. Ronayne, 61 F.3d 1026, 1033 (1st Cir. 1995) (citing Corning GlassWorks v. Brennan, 417 U.S. 188, 195 (1994)).

30. See id. (listing affirmative defenses).31. Id.; see also ABRAHAMS, ET AL., supra note 26, at ¶ 714 (noting that EPA fails R

to define what constitutes “any other factor other than sex,” and that while legisla-tive history of EPA indicates term is to be broad in nature, few defendants haveprevailed when invoking this defense).

32. See 29 U.S.C. § 206(d)(3) (“For purposes of administration and enforce-ment, any amounts owing to any employee which have been withheld in violationof this subsection shall be deemed to be unpaid minimum wages or unpaid over-time compensation under this chapter.”).

33. See 42 U.S.C. §§ 2000e(1)–(17).34. See 42 U.S.C. § 2000e-4 (creating Equal Employment Opportunity Com-

mission and establishing it be composed of five members appointed by Presidentwith advice and consent of Senate).

35. See 42 U.S.C. § 2000e-2(m) (“[A]n unlawful employment practice is estab-lished when the complaining party demonstrates that race, color, religion, sex, ornational origin was a motivating factor for any employment practice, even thoughother factors also motivated the practice.”).

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discrimination occurred, as is the case for claims brought under theEPA.36 While Title VII requires a showing of intent to discriminatewhere an EPA claim does not, case law suggests Title VII is other-wise far broader in the discrimination it covers.37 For example, andpotentially crucially for the pending Women’s Soccer EEOC com-plaint, plaintiffs bringing Title VII causes of action are not requiredto show “equal work” was performed by employees of each sex,which could make it easier to succeed, if a case were to reach themerits stage, under Title VII if intent to discriminate can beshown.38 Moreover, Title VII is friendlier to plaintiffs in the dam-

36. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252–57 (1981)(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)) (refining ap-proach taken in McDonnell Douglas, and providing three-step, burden shiftingframework to be applied in disparate treatment cases brought under Title VII).Under this approach, “first, the plaintiff has the burden of proving by the prepon-derance of the evidence a prima facie case of discrimination.” Id. at 252–53. If theplaintiff makes that showing, “the burden shifts to the defendant ‘to articulatesome legitimate nondiscriminatory reason for the employee’s rejection.’” Id. at253 (quoting McDonnell, 411 U.S. at 802). Finally, if the defendant meets theirburden, then the burden shifts back to the plaintiff again, who must show by apreponderance of the evidence that the reasons offered by the defendant were notthe true reason, but rather that the defendant intended to discriminate against theplaintiff based on some characteristic like race or gender. Id. See also 42 U.S.C.§ 2000e-2(h) (establishing that it shall not be unlawful for employer to providedifferent standards of compensation or different terms pursuant to bona fide se-niority or merit system “provided that such differences are not the result of anintention to discriminate because of race, color, religion, sex, or national origin”);see also Fox, supra note 22 (“Unlike in Title VII wage discrimination claims, an Remployee filing an EPA lawsuit is not required to demonstrate that the employerintended to discriminate.”).

37. See, e.g., Washington Cty. v. Gunther, 452 U.S. 161, 170 (1981) (holdingTitle VII’s prohibition of discrimination is to be read broadly, and incorporation ofEPA’s affirmative defenses into Title VII do not limit claims brought under it tothose based equal pay for “equal work”). The majority opinion in Washington Cty.also cited past interpretations of Title VII as “prohibit[ing] all practices inwhatever form which create inequality in employment opportunity due to discrimi-nation on the basis of religion, sex, or national origin.” Id. at 180 (quoting Franksv. Bowman Transp. Co., 424 U.S. 747, 763 (1976)). It further noted Congress’sintent when passing Title VII was “to strike at the entire spectrum of disparate treat-ment of men and women resulting from sex stereotypes” when petitioners soughtto interpret Title VII more narrowly. Id. (quoting L.A. Dep’t. of Water & Power v.Manhart, 435 U.S. 702, 707 (1978)).

38. See id. at 168 (affirming judgment of Court of Appeals that held “claimsfor sex-based wage discrimination can be brought under Title VII even though nomember of the opposite sex holds an equal but higher paying job, provided thatthe challenged wage rate is not based on seniority, merit, quantity, or quality ofproduction,” or “any other factor other than sex”). Compare 29 U.S.C. § 206(d)(1)(describing how “[n]o employer having employees subject to” the act shall discrim-inate by paying less wages to employees of the opposite sex when such employeesperform “equal work on jobs the performance of which requires equal skill, effort,and responsibility, and which are performed under similar working conditions”)with 42 U.S.C. § 2000e-2(a) (including no requirement of showing of “equalwork”). See also U.S. EQUAL EMP. OPPORTUNITY COMM’N, TYPES OF DISCRIMINATION,

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ages it makes recoverable, as plaintiffs who succeed on Title VIIclaims may recover back pay, compensatory damages, attorney’sfees, and even punitive damages in certain circumstances.39 Be-yond those distinctions, the options are fundamentally similar inthat they serve as prohibitions against discrimination in the work-place and allow for the same affirmative defenses.40

B. Players and Teams: The Working Relation Between EachTeam and Its Governing Body

With the relevant laws identified, it is also necessary to under-stand the relations between the Teams and their governing bodiesto understand how the law might apply to their disputes.41

1. “Employee” or “Independent Contractor”?

Employment law makes a distinction between “employees” and“independent contractors” that is relevant for the purposes of dis-putes between athletes and their governing bodies.42 It can be un-

https://www.eeoc.gov/laws/types/equalcompensation.cfm [https://perma.cc/T3G7-AMS7] (last visited Sept. 22, 2017) (“Title VII, the ADEA, and the ADA pro-hibit compensation discrimination on the basis of race, color, religion, sex, na-tional origin, age, or disability. Unlike the EPA, there is no requirement underTitle VII . . . that the jobs must be substantially equal.”).

39. 42 U.S.C. § 2000e-5(g)(1) (“[T]he court may . . . order such affirmativeaction as may be appropriate, which may include, but is not limited to, reinstate-ment or hiring of employees, with our without back pay, or any other equitablerelief as the court deems appropriate.”); see also 42 U.S.C. § 1981a(b)(2) (“Com-pensatory damages awarded under this section shall not include back pay, intereston back pay, or any other type of relief authorized under section 706(g) of theCivil Rights Act of 1964.”); Fox, supra note 22 (noting also that punitive damages Rwill be “subject to caps based on the employer’s size”).

40. See 42 U.S.C. § 2000e-2(a)–(d) (stating general prohibition against dis-crimination); id. § 2000e-2(h) (listing same defenses as found in EPA).

41. For a discussion on the employment relationships between each of theTeams and their governing bodies, see infra notes 49–68 and accompanying text. R

42. See, e.g., Judith E. Kramer, Employee or Independent Contractor? Pitfalls of Mis-classification, 11 NO. 7 FED. EMP. L. INSIDER 7 (2014) (discussing importance ofproperly classifying workers as “employees” for ability to make use of certain bene-fits, including that “[e]mployees, but not independent contractors, are protectedby federal workplace protection laws such as the Fair Labor Standards Act (FLSA),the Occupational Safety and Health Act (OSH Act), the Family and Medical LeaveAct (FMLA), and similar state workplace laws”). See also HR Series, § 1:70.Indepen-dent Contractors, 1 FAIR EMP’T PRACTICES § 1:70 (2018) (“The EPA excludes inde-pendent contractors from coverage because the person working for an employermust be an employee for his or her employment to be covered.”); Michael B. Sny-der, § 6:135.Title VII, ADEA, and ADA, 1 COMP. AND BENEFITS § 6:135 (2018) (“TheADEA and Title VII do not cover independent contractors as there is no employer-employee relationship.”). For a discussion on the Soccer Team’s status as employ-ees of the Federations, see infra notes 49–57 and accompanying text. For further Rdiscussion on the Hockey Team’s status as independent contractors, but also how

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clear at times whether actors are categorized as “employees” or“independent contractors.”43 When trying to make this categoriza-tion, a greater degree of certainty that players are employees putsthem more neatly under the reach of the FLSA, EPA, and Title VII,providing them protection under employment discrimination law,while less certainty makes the issue far more convoluted, generallyonly able to be saved by a court’s broad reading of the applicablelaw if the issue reaches that point.44

Courts apply an “economic reality” test to determine whetheran individual is an “employee” or an “independent contractor,” fac-toring whether the relationship between an individual and an em-ployer demonstrates “economic dependence.”45 Courts weighseveral factors when applying the “economic reality” test, but “eco-nomic dependence” is the main focus of any inquiry.46 To deter-mine whether the relationship demonstrates economicdependence, courts have examined “whether an individual is ‘in

that might change with their new deal, see infra notes 176–179 and accompanying Rtext.

43. See, e.g., Michelle L. Evans, Establishing Employee or Independent ContractorStatus, 108 AM. JUR. PROOF FACTS 3D 247 § 2 (2009) (explaining intricacies of em-ployee-independent contractor distinction and explaining “when clarification ofthe worker’s status is not made at the beginning of the relationship, problems canarise in the future surrounding the worker’s status” and that when this happens,“and there is no agreement to review to clarify the relationship of the parties,courts will look to certain factors to determine the worker’s status with thecompany”).

44. For further discussion on the application of each statute, see supra notes23–40 and accompanying text. R

45. See, e.g., Scantland v. Jeffry Knight, Inc., 721 F.3d 1308, 1311 (11th Cir.2013) (citing Bartels v. Birmingham, 332 U.S. 126, 130 (1947)) (“To determinewhether an individual falls into the category of covered ‘employee’ or exempted‘independent contractor,’ courts look to the ‘economic reality’ of the relationshipbetween the alleged employee and alleged employer and whether that relationshipdemonstrates dependence.”).

46. See id. at 1311–12 (listing factors). Factors include:(1) the nature and degree of the alleged employer’s control as to themanner in which the work is to be performed;(2) the alleged employee’s opportunity for profit or loss dependingupon his managerial skill;(3) the alleged employee’s investment in equipment or materials re-quired for his task, or his employment of workers;(4) whether the service rendered requires a special skill;(5) the degree of permanency and duration of the working relationship;(6) the extent to which the service rendered is an integral part of thealleged employer’s business.

Id. at 1312 (footnote omitted). The Eleventh Circuit further noted that all factorswere relevant to determine a worker’s status, but none were dominant, and ap-plied them while ultimately seeking whether there was “economic dependence”and if they indicated “usual path” of employee or independent contractor. Id.(citing Usery v. Pilgrim Equip. Co., 527 F.2d 1308, 1311–12 (5th Cir. 1976)).

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business for himself,’” and thus an independent contractor, “or is‘dependent on finding employment in the business of others,’” andis an employee instead.47 Ultimately, if the workers in question actlike or have tendencies of “employees” in the course of their work,an employer’s effort to nonetheless label them as “independentcontractors” will not be dispositive, and the FLSA and available pro-tections of Title VII and the EPA may still protect the workersunder the “economic reality” test.48

2. Collective Bargaining Agreements: Women’s Soccer

Players for the U.S. Women’s National Soccer Team are “em-ployees” of the Federation based on the collective bargaining agree-ment between the parties, and, as a result, the National SoccerTeam’s dispute avoids the potential complexities of determiningthe players’ statuses under EPA and Title VII.49 The National La-bor Relations Act (“NLRA”) is the main body of law governing col-lective bargaining at the federal level between employers andemployees, and by explicitly excluding “independent contractors”from its definition of protected “employees” the Act makes it clearthat only “employees” may collectively bargain.50 In general, theNLRA governs collective bargaining at the federal level, but statelaws regulate collective bargaining and collective agreements aswell.51 Given that collective bargaining is governed by federal and

47. Id. (quoting Mednick v. Albert Enters., Inc., 508 F.2d 297, 301–02 (5thCir. 1975)).

48. Cf. Rutherford Food Corp. v. McComb, 331 U.S. 722, 729 (1947) (holdingthat employees of slaughterhouse labeled as “independent contractors” were actu-ally employees, and thus protected by FLSA, and that relationship was not depen-dent on label they were given nor isolated factors, “but rather upon thecircumstances of the whole activity”).

49. See Complaint for Anticipatory Breach of Contract and for DeclaratoryRelief [hereinafter Complaint] at 4, USSF v. USWNT, 190 F. Supp. 3d 777 (N. D. Ill.Feb. 3, 2016) (No. 1:16-cv-01923), 2016 WL 462452 (“The Players Association is theexclusive collective bargaining representative of all players selected to play for theWomen’s National Team, who are, therefore, employees of US Soccer.”).

50. See 29 U.S.C. § 152(3) (2012) (“The term ‘employee’ shall include anyemployee, and shall not be limited to the employees of a particular employer . . .but shall not include . . . any individual having the status of independentcontractor.”).

51. See generally National Labor Relations Act, 29 U.S.C. §§ 151–169 (2012);Collective Bargaining, CORNELL L. SCH. LEGAL INFO. INST., https://www.law.cornell.edu/wex/collective_bargaining [https://perma.cc/J7UQ-QRFN] (last visitedApr. 25, 2018) (providing definition of “collective bargaining”). (“The main bodyof law governing collective bargaining is the National Labor Relations Act (NLRA).It explicitly grants employees the right to collectively bargain and join trade unions. . . . State laws further regulate collective bargaining and make collective bargain-ing enforceable under state law.”).

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state statutory laws and administrative agency regulations, the afore-mentioned labor laws apply to collective bargaining agreementsand the relationships between parties to them.52

The U.S. Women’s National Soccer Team is relatively youngcompared to the Federation and the Men’s National Soccer Team,but the players and the Federation share an employer-employee re-lationship nonetheless, based on their history of collective bargain-ing.53 The Federation “has served as a member of the FederationInternationale de Football Association (“FIFA”) since 1914 and isrecognized by the U.S. Olympic Committee as the national gov-erning body for the sport of soccer in the United States.”54 TheU.S. Women’s National Soccer Team has only collectively bar-gained with the Federation since 2001, but had competed as a teamfor over a decade before that point, and a court would likely havefound the team to be independent contractors during that time pe-riod.55 The Players Association is a labor organization that hasserved as the “collective bargaining representative of all players onthe Women’s National Soccer Team” in each of the negotiations,and thus the players have been employees of the Federation since2001.56 The employer-employee relationship has been lengthy andis firmly established today, as the Players Association and the Feder-ation have agreed to two more CBAs since 2001, including one in2005, which ran through 2012, and, most recently, in April 2017.57

52. See CORNELL L. SCH. LEGAL INFO. INST., supra note 51 (discussing applica- Rble laws to collective bargaining agreements).

53. See USSF v. USWNT, 190 F. Supp. 3d at 780–81 (providing undisputed factsin 2016 litigation between Federation and Players Association that demonstrateexistence of employer-employee relationship between parties through collectivebargaining agreements). In its complaint, the Federation acknowledges that U.S.Women’s National Team players are employees. See Complaint at 4, USSF v.USWNT, 2016 WL 462452 (stating U.S. Women National Team players are employ-ees of federation).

54. USSF v. USWNT, 190 F. Supp. 3d at 781 (discussing also how Federation“oversees and fields numerous national soccer teams, including the Women’s Na-tional Soccer Team”).

55. See id. at 780 (describing how first agreement was entered into in March2001 and was in effect through December 31, 2004); see also History: Timeline, U.S.SOCCER, https://www.ussoccer.com/about/history/timeline [https://perma.cc/3WR2-AZNL] (last visited Aug. 28, 2017) (showing that team won first-ever FIFAWomen’s World Championship in 1991, as well as CONCACAF championships in1991 and 1995).

56. USSF v. USWNT, 190 F. Supp. 3d at 781 (noting Players Association is also“governed by a Constitution and By-Laws, which were enacted on March 23, 2001,”and, “[u]nder Article IV of the Constitution and By-Laws, the Players Association isgoverned by three Players’ Representatives and, at the discretion of the member-ship, one Executive Director”); see also Complaint at 4, supra note 49.

57. See id. (“A second collective bargaining agreement (“the 2005 CBA”) wasexecuted on January 12, 2006, covering the time period from January 1, 2005

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3. The Ted Stevens Olympic Amateur Sports Act: Women’s NationalHockey Team

The status of players for the U.S. Women’s National IceHockey Team is less clear, on the other hand, because first, theyhave a very different relationship with their governing body, USAHockey, and second, they were seeking a “living wage” rather than“equal pay.”58 Congress enacted the Ted Stevens Olympic and Am-ateur Sports Act (“Ted Stevens Act”) in 1998 and effectively reorga-nized the U.S. Olympic Committee, chartering the Committee as afederal corporation.59 The Ted Stevens Act has many enumeratedpurposes, but dictating that athletes are covered employees of theirgoverning bodies is not expressly one of them.60 The Ted StevensAct, however, provides for the general duties of the governing bod-ies it recognizes, including that the national governing bodies, andin this case USA Hockey, shall “provide equitable support and en-couragement for participation by women where separate programsfor male and female athletes are conducted on a national basis.”61

USA Hockey is the governing body for ice hockey in America and isrecognized by the U.S. Olympic Committee as such under the TedStevens Act.62 In terms of the soccer dispute, the Federation is alsothe governing body of soccer in the United States, but from this

through December 31, 2012.”); see also Hays, supra note 7 (discussing newly ratified RCBA and that “the deal replace[d] a working arrangement that was a source ofcontention long before it officially expired on Dec. 31”).

58. See Update on Women’s National Team Issues, USA HOCKEY (Mar. 17, 2017,3:15 PM), http://www.usahockey.com/news_article/show/771106?refer-rer_id=752796 [https://perma.cc/ZS8A-LRF9] (addressing issues surroundingcontract dispute, such as how players sought “living wage” from USA Hockey,which would imply USA Hockey employed players, in March 2017, and also whatUSA Hockey sees its role as in developing game of hockey).

59. See Ted Stevens Olympic and Amateur Sports Act, 36 U.S.C.§§ 220501–220529 (2012). The act notes that the corporation has “perpetual exis-tence” and that within statute “United States Olympic Association” is synonymouswith “United States Olympic Committee.” Id. § 220502.

60. See id. § 220503 (noting purposes of corporation include, but are not lim-ited to: “(1) establish[ing] national goals for amateur athletic activities and en-courage[ing] the attainment of those goals; . . . (5) promot[ing] and support[ing]amateur athletic activities involving the United States and foreign nations; . . .promot[ing] and encourage[ing] physical fitness and public participation in ama-teur athletic activities”). To see all fourteen listed purposes, see § 220503.

61. Id. § 220524(6). For further discussion of the relevance of this provisionof the Ted Stevens Act, see infra notes 170–171 and accompanying text. R

62. See § 220523(a)(7) (granting authority to “designate individuals andteams to represent the United States in international amateur athletic competi-tion” but not Olympic games, and allowing governing bodies to make recommen-dations as to who should represent the United States at these games).

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point the relationships the Federation and USA Hockey have withits players appears to differ.63

Whereas the Federation and the Women’s Soccer Players Asso-ciation have openly had collective bargaining agreements for muchof their history, USA Hockey has taken a much different approachto its relationship with its players and has been adamant during ne-gotiations that it is not an employer of the players.64 In a statementreleased during the dispute, USA Hockey re-asserted that “[t]heU.S. Women’s National Team is not a standing team, meaning thatit is not a full-time team with a full-time commitment” and that“[a]ll participation is voluntary.”65 The time commitment by theplayers selected for the team and rigor of the work they do is highlydemanding, to the point that for many it is nearly impossible tohold full-time jobs.66 Prior to the resolution of their dispute withUSA Hockey, however, most signs—such as the contents of USAHockey’s March 17 statement, and the fact that the Women’sTeam’s contract before the 2014 Sochi Olympic Games acknowl-edged their status as independent contractors—generally suggestedthat the law categorizes the players as independent contractors in-stead of employees.67 As discussed previously, labels are not dispos-itive in independent contractor-employee distinctions, and the newdeal could carry implications on these players’ statuses as workers.68

63. U.S. Soccer Reaching New Heights, U.S. SOCCER http://www.ussoccer.com/about/ [https://perma.cc/MAQ2-YTC7] (last visited Aug. 28, 2017) (“As the gov-erning body of soccer in all its forms in the United States, U.S. Soccer has playedan integral part in charting the course for the sport in the USA for more than 100years.”).

64. See USA HOCKEY, supra note 58 (asserting in statement, stance that R“[f]rom the outset USA Hockey has been clear it will not employ players; however,that does not mean USA Hockey is opposed to a yearly agreement which outlinesallocation of direct athlete support and other training resources that USA Hockeyis willing to provide to players”).

65. Id. (noting that players are identified from pool and invited to participatein U.S. Women’s National Team activities from there, with participation lastingroughly sixty to seventy days per year).

66. See Seth Berkman, U.S. Women’s Hockey Team Sees ‘A Lot of Progress’ Toward aDeal, N.Y. TIMES (Mar. 20, 2017), https://www.nytimes.com/2017/03/20/sports/hockey/us-womens-hockey-team-sees-progress-toward-deal.html?mcubz=0 (updat-ing on status of negotiations three days after USA Hockey’s statement was releasedand discussing difficulties women’s players have balancing rigors of time-commit-ment to Team with maintaining their own livelihoods, including that some playersuse U.S. Olympic Committee stipends “to pay rent or buy groceries”).

67. See id. (noting same contract also “granted USA [H]ockey a royalty-freeworldwide license for the organization and third parties to use their names andlikenesses, and left USA Hockey with no liability for taxes”).

68. For further discussion on determining whether a worker is considered anemployee or an independent contractor, see supra notes 42–48 and accompanying R

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C. Recent History of Each Team and Buildupto Each Resolution

1. Women’s Soccer

The dispute between the Federation and the Women’s Na-tional Team’s Players Association took place over several years, andthe two parties have met in court before.69 In 2013, during negotia-tions for a new Collective Bargaining Agreement (“CBA”) betweenthe parties, the Federation filed suit against the Players Association,seeking damages for anticipatory breach of contract as well as a de-claratory judgment after the Soccer Team threatened to boycott itsupcoming world championship tournament.70 The Federation ar-gued that a Memorandum of Understanding (“MOU”) the partieshad agreed to prior to the expiration of their 2005 CBA had incor-porated unmodified terms of that 2005 CBA, including a pivotal“no strike, no lockout” provision.71

The parties had agreed to a CBA in 2005 (“old CBA”) that cov-ered through December 31, 2012, and as it was expiring in the fallof 2012 the parties agreed to and executed a MOU that was essen-tially a placeholder until a new CBA could be reached.72 The MOUwas also to “encompass all terms of the 2005 CBA that were notmodified or amended by the MOU.”73 Despite several contentions

text. For further discussion on the implications of the new deal as it relates to thisissue, see infra notes 175–179 and accompanying text. R

69. See USSF v. USWNT, 190 F. Supp. 3d 777, 781–83 (N.D. Ill. 2016) (detail-ing factual background of dispute between parties).

70. See id. at 780 (addressing procedural background and basic context ofcase, including that case arose “out of the parties’ disagreement about the terms ofthe collective bargaining agreement” and that “[f]ollowing expedited discovery”each party “filed cross-motions for summary judgment”).

71. See id. at 782 (noting that in 2005 CBA, “no-strike, no lockout” clause“barred the Players Association from authorizing, encouraging, or engaging in anystrike, work stoppage, slowdown or other concerted interference with activities ofFederation during the term of the agreement and barred the USSF from engagingin a lockout during term of the agreement”).

72. See id. at 781–82 (explaining MOU was implemented when negotiationsbecame complicated by “the need to address the integration of the Women’s Na-tional Team into the newly-formed National Women’s Soccer League” and asdeadline to launch that league approached, “several issues remained unresolved”).

73. Id. at 784 (deciding terms of MOU demonstrated it was partially inte-grated contract, in large part because “[i]n contravention of the parties’ practicein all of their prior CBAs, the MOU [did] not contain an ‘integration’ clause de-claring it to be a fully integrated contract.”). The MOU also contained “substantialgaps” that demonstrated “it was intended to be supplemented by external docu-ments.” Id. These gaps included use of terms like “floater” and “tier I player” usedin the MOU without being defined (but which were defined in the 2005 CBA), andproviding terms for sponsorship appearance requests by the Federation withoutdefining “sponsorship appearance.” Id.

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by the Players Association that they were not bound to the MOU,the court ultimately concluded that the players were indeed boundto the MOU, and the MOU incorporated the unmodified terms ofthe 2005 CBA, including the no-strike, no-lockout provision.74 Ac-cordingly, if the Soccer Team was going to negotiate a new CBAthat provided equal pay, it could no longer threaten to strike asleverage in the process.75

In March of 2016, five players filed a complaint with the EEOC,“the federal agency that enforces civil rights laws against workplacediscrimination.”76 In doing so, their contract dispute was fully setin motion by their allegations that “they earned as little as 40 per-cent” of what players on the United States Men’s National Teamearned.77 The players provided compelling figures in their com-plaint that, despite becoming the Federation’s “main economic en-gine,” they are usually only paid “half as much-or less” than playerson the Men’s Team.78 Moreover, the Federation’s position becameincreasingly difficult when the female players linked their pay tothe Men’s pay, because it “has collective bargaining agreementswith both teams, but the financial terms differ widely.”79 In re-sponse to the complaint, the Federation argued “that not only wasthe players’ pay collectively bargained, but that the players had in-sisted more than once on a salary-based system as a means of eco-nomic security,” instead of a “bonus-centric plan” like the Men’s

74. See id. at 784–85 (arguing, for example, that MOU was not binding be-cause it was not in form of signed writing and that it “constituted an unenforceablesecret side agreement”).

75. See id. at 787 (“Because the undisputed material facts establish that theMOU incorporates the unmodified terms of the 2005 CBA, including the no-strike,no lockout provision . . . this Court will grant summary judgment on USSF’s declar-atory judgment claim.”).

76. Das, supra note 13 (describing details included in Team’s EEOC com- Rplaint, as well as counters by Federation such as figures cited which it said “showedthe men’s national team produced revenue and attendance about double that ofthe women’s team, and television ratings that were ‘a multiple’ of what the womenattract”).

77. Id. (“The five players, some of the world’s most prominent women’s ath-letes, said they were being shortchanged on everything from bonuses to appear-ance fees to per diems.”).

78. Id. (adding how players said “they exceeded revenue projections by asmuch as $16 million in 2015, when their World Cup triumph set television viewer-ship records and a nine-game victory tour in packed stadiums produced recordgate receipts and attendance figures”). For further discussion on these figures, seeinfra notes 103–120 and accompanying text. R

79. Das, supra note 13. For further discussion on the significance of the col- Rlective bargaining agreement as it relates to the difference between the soccer andhockey disputes, see infra notes 172–174 and accompanying text. R

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players have.80 The players “made vociferous demands for ‘equalpay’ with the men’s national team” for much of their dispute beforeshifting to using the phrase “equitable and fair” to describe theirgoals later in the negotiation. Nonetheless, the female players havegenerally sought fair compensation and equal treatment on issuesof “travel, accommodations, per diem payments and inclusion indecision-making.”81

Ultimately, ratification of a new CBA took place and the dis-pute was mostly resolved, except for the five players’ EEOC com-plaint, about a year later on April 5, 2017.82 The exact terms of thedeal remained private for the most part but “is expected to includesignificant increases in both direct and bonus compensation for na-tional team players,” as well as other improvements such as “en-hanced travel benefits” and “per diems equal to the men’s nationalteam.”83 However, despite all the improvements, the five playershave not withdrawn the EEOC complaint, and the dispute still re-mains unresolved, which could carry further equal pay implicationsgoing forward.84

2. Women’s Hockey

The Women’s National Hockey Team resolved their own con-tract dispute just days before the Soccer Team.85 Similar to Wo-men’s Soccer, the Women’s Hockey Team threatened to boycott

80. Das, supra note 13. Russell Sauer who is outside counsel for Federation Rfurther noted that “[t]he truth is, the players are claiming discrimination based ona more conservative structure, based on guaranteed compensation rather than payto play, which they themselves requested, negotiated and approved of not once,but twice.” Id.

81. Andrew Das, Negotiations Intensify over New Deal for U.S. Women’s Soccer Team,N.Y. TIMES (Apr. 2, 2017), https://www.nytimes.com/2017/04/02/sports/soccer/negotiations-intensify-over-new-deal-for-us-womens-soccer-team.html (discussingbuildup to ratification of new Women’s Soccer CBA and differences between wo-men’s and men’s respective CBAs).

82. See Hays, supra note 7 (“Members of the U.S. women’s national team and RU.S. Soccer ratified a new collective bargaining agreement, both sides announced[on April 5, 2017].”).

83. Id. (reporting available terms of new deal). Concerning the new deal,midfield Megan Rapinoe stated, “I am incredibly proud of this team and the com-mitment we have shown through this entire process.” Id. Rapinoe further notedthat “[w]hile I think there is still much progress to be made for us and for womenmore broadly, I think the [Women’s National Team Players Association] should bevery proud of this deal and feel empowered moving forward.” Id.

84. See id. (“The EEOC complaint has yet to be resolved, and it was not imme-diately clear what effect the new agreement would have on that process.”). Forfurther discussion on the potential implications of the EEOC complaint’s resolu-tion, see infra notes 148–162 and accompanying text. R

85. See Allen and Perez, supra note 7 (“Members of the U.S. women’s national Rhockey team agreed to a four-year contract with USA Hockey”).

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their own World Championship tournament just weeks before itwas set to begin.86 Whereas players on the Women’s Soccer Teamwere clearly employees of the Federation and were bound by a “nostrike, no lockout” provision in their own agreement, the Women’sHockey Team employment relationship with USA Hockey was notas clear, and the players were not bound by a “no strike, no lock-out” agreement, making their threat of a strike much more legiti-mate than the Soccer Team’s.87

Technical labels of the players aside, before the contract dis-pute was resolved there were significant pay disparity issues betweenthe Women and Men’s Hockey players.88 Fundamentally, the Wo-men’s Team sought a “living wage,” based on how much time theydevote to the Team and the lower earning potential they have rela-tive to the Men’s National Team players outside national competi-tion.89 With Men’s Team players receiving the same medal bonusesfrom the U.S. Olympics Commission as women, and without theplayers being considered “employees” of their governing body likethe Soccer Team is, their situation was a bit different than that ofthe female soccer players.90

86. Jackie Wattles & Ahiza Garcia, Pay Fight Between USA Hockey and Women’sPlayers Intensifies, CNNMONEY (Mar. 18, 2017, 6:42 PM), http://money.cnn.com/2017/03/18/news/usa-womens-hockey-equal-pay/index.html [https://perma.cc/AP6W-9TLC] (discussing what players were asking for from USA Hockey, roughly$68,000 per year with other benefits, and what USA Hockey was offering, $24,000annual base salary with $7,500 gold medal bonus, as dispute was ongoing andTeam was set to boycott upcoming World Championship event).

87. See USA HOCKEY, supra note 58 (making point in official statement, one Rthat was consistently made, that players are not employees of USA Hockey,through language such as follows: “[p]roviding players a living wage implies USAHockey employs players and it does not. Simply, USA Hockey does not pay playersa salary—women or men—and instead provides training stipends and support tohelp put athletes that participate on our national teams in the best possible posi-tion to compete”). For further discussion on the reality of the boycott threatenedby the women’s hockey Team, see supra note 15 and accompanying text. R

88. See Wattles & Garcia, supra note 86 (“The players say USA Hockey doesn’t Roffer them a living wage, and that the men’s hockey team is afforded more benefitsand marketing help.”).

89. See id. (discussing also that players “want the opportunity to compete inmore games throughout the year,” as right now, “they only engage in about nine-competitions during a non-Olympic calendar year”). For further discussion of dis-parities in pay between the male and female National Hockey Team players, seeinfra notes 121–132 and accompanying text. For further discussion on the impact Ra “living wage” could have on the female players’ status as “employees” versus “in-dependent contractors” of USA Hockey, see infra notes 175–179 and accompany- Ring text.

90. Id. (“Players on the USA Men’s Hockey team are offered the same amountin medal bonuses from the U.S. Olympics Commission. But most USA Men’sHockey players also have the chance to earn big money in the NHL, where theminimum contract is $650,000.”).

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At bottom, there was a disparity that the women sought to elim-inate, and they did just that by reaching a new contract in March of2017.91 In early April, the Women’s Team defeated Team Canadain the Gold Medal Game for the 2017 International Ice HockeyFederation Women’s World Championship 3-2 in overtime, theTeam’s fourth consecutive championship and its seventh in eightyears.92 In a matter of weeks, the Team had scored massive victoriesboth off-ice with its new contract, and on-ice with its most recentgold medal.93

III. ANALYSIS

New collective bargaining agreements and contracts for theWomen’s Soccer and Hockey Teams, respectively, resolved majoraspects of each dispute.94 However, with the Soccer EEOC com-plaint still being investigated, and considering the reported termsof the new contract in Hockey, there are still potential equal payissues at play.95 While, even after their new deals, Women’s Na-tional Soccer and Hockey Team players will generally have lessearning potential than their male counterparts, because of factorslike the availability of lucrative professional leagues in which toplay, the resolutions of each dispute represent affirmative steps for-ward toward closing this gap one day.96

The statutes, regulations, and case law that provide a frame-work for analyzing equal pay issues are well established, but whereeach of these disputes fall within that framework is less clear at the

91. See Allen & Perez, supra note 7 (discussing resolution of dispute and its Rreported terms).

92. See Johnette Howard, U.S. Women Didn’t Bend Under Pressure, They Flour-ished, ESPN (Apr. 8, 2017), http://www.espn.com/olympics/hockey/story/_/id/19109408/iihf-women-world-championship-2017-us-women-win-fourth-straight-worlds-title [https://perma.cc/M7Z9-XZMF] (discussing Women’s victory in lightof their recently ended boycott and after their loss to same Canadian team in goldmedal game of 2014 Sochi Olympic games).

93. See id. (discussing World Championship victory in light of recently settleddispute, and that “[i]t was the Americans’ seventh world title in eight years, and itput a perfect capstone on an unprecedented journey that they never believedwould end any other way”).

94. For further discussion of the resolution of these disputes, see supra notes82–93 and accompanying text. R

95. For further discussion of the EEOC complaint and the implications itsresolution might carry, see infra notes 163–167 and accompanying text. For fur- Rther discussion on the potential implications of the Women’s Hockey contract res-olution, see infra notes 168–179 and accompanying text. R

96. For further discussion on how the deals represent affirmative steps takentowards equal pay and places the parties in better bargaining position for futurenegotiations, see infra notes 192–196 and accompanying text. R

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outset.97 An analysis of each dispute requires an understanding ofwhat compensation players received before each dispute was re-solved, especially as it compared to their male counterparts, to de-termine whether there was a disparity in pay that could have beenthe result of discrimination.98 Terms of each new deal were keptprivate, but reports have allowed for insight into some of the keyprovisions.99 An evaluation of the presumed terms will allow an as-sessment of the improvements made, and how compensations nowcompare to male counterparts.100 Further, assessing the terms ofthe new deals will determine whether the equity-based goals of eachTeam were met.101 Finally, each new deal and their terms, bothindividually and taken together, will have equal pay implications inthe future for each respective party, and for women in the sportsthey play more broadly.102

A. Pay Structures Before Each Deal for theSoccer and Hockey Teams

1. U.S. Women’s National Soccer Team

The reported contents of the EEOC complaint filed by fivemembers of the Women’s National Team provide the clearest in-sight as to disparities that may have historically existed between payfor male and female players.103 The overarching complaint by theplayers is that they earn far less than the Men’s National Team play-

97. For a discussion on the framework of equal pay law, see supra notes 23–40 Rand accompanying text.

98. For a discussion on Women’s Soccer compensation before their new col-lective bargaining agreement, see infra notes 103–120 and accompanying text. For Ra discussion on Women’s Hockey compensation before their new contract, see infranotes 121–132 and accompanying text. R

99. See Allen & Perez, supra note 7 (reporting on terms of new Women’s Na- Rtional Hockey Team contract); Hays, supra note 7 (reporting on terms of new Wo- Rmen’s National Soccer Team CBA).

100. For a discussion on Women’s Soccer compensation after their new col-lective bargaining agreement, see infra notes 133–138 and accompanying text. For Ra discussion on Women’s Hockey compensation after their new contract, see infranotes 139–145 and accompanying text. R

101. For further discussion on whether equitable pay goals were achieved ineach dispute, see infra notes 146–179 and accompanying text. R

102. For further discussion on implications related to the resolution of theWomen’s Soccer contract dispute, see infra notes 133–138 and accompanying text. RFor further discussion on Women’s Hockey implications in light of their contract,see infra notes 139–145 and accompanying text. R

103. See Das, supra note 5 (dissecting reports of inequalities based on contents Rof EEOC complaint and other available data, such as financial reports of Federa-tion which players say shows, “their team’s on-field success had produced millionsof dollars in revenue for U.S. Soccer in 2015 and was projected to do the same [in2016]”).

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ers, even though they have historically been more successful thanthe Men, and bring in greater revenue for the Federation.104 Theoft-alleged disparity is that Women are paid about a quarter of whatMen’s National players are, but a comprehensive look at the datasuggests this assertion is too broad of a stroke.105 A report by theNew York Times found that the six top-paid male and female play-ers each made at least $1 million between 2008 and 2015.106 How-ever, when ranking players by compensation and gender in thattime period, any equality there is diminishes down the list.107 Ulti-mately, while there was a level of equality among the top players ofeach gender in terms of compensation, that list was top-heavy.108

On these figures alone, a disparity appears to exist, but becauseeach Team has their own CBA with the Federation, matters of“equal work” and agreed compensation require a deeper look.109

For example, whereas most regular players on the Women’sSoccer Team receive a base salary and a bonus for each game won,players on the Men’s Team are part of a “pay-for-play” system.110

Men’s Team players are only paid when they are called to play formatches, but when they do play, their compensation is much loftierthanks to their “bonus-centric” plan.111 Fundamentally, the Wo-men’s Team pay structure is “a more conservative structure, based

104. See Das, supra note 13 (reporting Women’s Team cited following dispar- Rity and rising revenue numbers in filed complaint: “[t]he men’s team has histori-cally been mediocre. The women’s team has been a quadrennial phenomenon,winning world and Olympic championships and bringing much of the country to astandstill in the process”).

105. See Das, supra note 5 (“In a wage-discrimination complaint filed with the REqual Employment Opportunity Commission in March, five top players on thewomen’s team accused U.S. Soccer of paying them and their teammates about aquarter of what their counterparts on the men’s national team receive.”).

106. See id. (“According to figures provided by U.S. Soccer, since 2008 it haspaid 12 players at least $1 million. Six of those players were men, and six werewomen.”).

107. See id. (finding also that “the best-paid woman made about $1.2 millionfrom 2008 to 2015, while the top man made $1.4 million in the same period”).

108. See id. (finding that twenty-fifth best paid “female player made just under$341,000, while the corresponding male player made about $580,000” in sametime period, and also that number fifty ranked men’s player was found to haveearned ten times as much as fiftieth ranked female player).

109. For further discussion of the standards for claims brought under theEPA and Title VII, see supra notes 23–40 and accompanying text. R

110. See Das, supra note 5 (noting most Women’s players receive base salary of R$72,000 and bonus of $1,350 for each game won, but that bonus is not received ifmatch ends in tie or loss).

111. Das, supra note 13 (“A men’s player, for example, receives $5,000 for a Rloss in a friendly match but as much as $17,625 for a win against a top opponent.A women’s player receives $1,350 for a similar match, but only if the United Stateswins; women’s players receive no bonuses for losses or ties.”).

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on guaranteed compensation rather than pay to play.”112 Moreo-ver, the Women’s CBA does include other benefits that the Men’sdoes not, such as severance and injury pay, as well as “maternityleave at half pay.”113 The Federation “also pays the salaries of na-tional team players who compete in” the National Women’s SoccerLeague (“NWSL”) which is the recently formed women’s profes-sional soccer league in the United States.114 So, while the Women’sTeam players receive some benefits and a more predictable methodof compensation that the Men’s Team players do not, the Men stillhave far more lucrative options in professional leagues and do notrely on the Federation the same way many Women’s players do.115

Beyond the different pay structures, there were further dispari-ties in compensation for the female and male players as well.116 Forexample, disparities complained about in the EEOC complaint, in-cluded differences in per diem payments received by members ofeach Team, as well as differences in compensation for sponsorshipappearances.117 To be fair, the per diem disparity did not occur untilthe Men’s Team negotiated their most recent CBA in 2015, and theFederation did discuss making increases for the women to achieveequality—albeit ultimately failing to do so—in this respect beforethe new CBA was even negotiated.118 The last, and potentially mostglaring, disparity of note comes from the difference between whatplayers on each team receive as bonuses for their performance in

112. Id. The Federation’s outside counsel, Russell Sauer, noted Women’sPlayers Association had “negotiated and approved” of this structure in two previ-ous collective bargaining agreements. Id.

113. Das, supra note 5. R114. Id. (noting “[t]he pay plans differ for the men’s and women’s national

teams, who have their own players’ associations and their own collective bargainingagreements”).

115. See Brad Tuttle, Women’s Soccer Gets a Parade & Huge TV Ratings, but NotEqual Pay, TIME MONEY (July 10, 2015), http://time.com/money/3952058/womens-soccer-money/?xid=frommoney_soc_socialflow_twitter_money [https://perma.cc/B7Z6-E6S8] (noting in 2015 minimum and maximum pay for NWSL play-ers was $6,842 and $37,800, respectively, whereas average men’s salary in MajorLeague Soccer was over $300,000, with median salary around $100,000).

116. See Das, supra note 5 (addressing differences in per diem, sponsorship, Rand bonuses from FIFA World Cup, specifically $15 difference each day for perdiem, $750 less per sponsorship appearance, and $7 million difference whenMen’s Team made it to second round of 2014 World Cup, but when Women won2015 World Cup).

117. See id. (noting Federation paid women $60 day for per diem expenses and$75 to men, as well as $3,750 for sponsorship appearance for men and $3,000 towomen).

118. See id. (explaining how problem only arose because women’s CBA neverincluded clause “that would ensure that the payments remained equal in the eventthat the men . . . received a bump”).

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the FIFA World Cup.119 Because the bonus amount is determinedby FIFA, which pays far more to participants in the Men’s WorldCup than in the Women’s tournament, the U.S. Women’s Teamsought a larger share of domestic revenue from the Federation intheir EEOC Complaint.120

2. U.S. Women’s National Hockey Team

The contract dispute between the Women’s National HockeyTeam and USA Hockey involved a different equal pay issue be-cause, in USA Hockey, the women and men receive the same com-pensation from the U.S. Olympic Committee in terms of medalbonuses.121 Here, the need for better pay for the women in thisdispute was rooted substantially in the lower earning potential thatWomen’s National Team players have each year than Men’s Na-tional Team players.122 Whereas the National Hockey League(“NHL”) is a firmly established professional league, the NationalWomen’s Hockey League (“NWHL”) “is a young enterprise andstruggling to stay afloat.”123 As a result, female players, if they evenchoose to play in the NWHL, generally have a much lower earningpotential throughout the year compared to male players, and abouthalf the Team works “one or two jobs in addition to training andcompeting” for the National Team.124

119. See id. (noting Federation “received $9 million when the men’s team ad-vanced to the second round of the 2014 World Cup in Brazil, but only about $2million when the women won the 2015 World Cup in Canada”).

120. See Das, supra note 13 (noting women sought more revenue from sources R“like sponsorships and television contracts,” and that “U.S. Soccer financial reportshint at a richer future involving the team: The federation’s budget projections for2016 include $2.3 million for a 10-game victory tour after this summer’sOlympics”).

121. See Wattles & Garcia, supra note 86 (comparing $68,000 base salary wo- Rmen’s national players sought from USA Hockey as negotiations took place inMarch 2016, with what players for USA Men’s Hockey Team earn playing profes-sionally in NHL, “where the minimum contract is $650,000”).

122. See id. (discussing lower earning potential that women have compared tomen who can play in NHL, where salaries are far more lucrative and secure than inNWHL).

123. Id.; see also Seth Berkman, Champion for Women’s Hockey Wills Pro Leagueinto Third Year, N.Y. TIMES (Mar. 19, 2017), https://www.nytimes.com/2017/03/19/sports/hockey/national-womens-hockey-league-dani-rylan.html?action=click&contentCollection=Hockey&module=RelatedCoverage&region=Marginalia&pgtype=article (detailing efforts by founder Dani Rylan to establish NWHL and strug-gles to fund it since its inception, including trying to secure sponsors and sellingtelevision networks on the league, as well as lawsuit from one businessperson seek-ing return of investment they made).

124. Wattles & Garcia, supra note 86 (discussing how in NHL minimum con- Rtract is $650,000 while in NWHL contracts range from just $14,000–$18,000 forplayers per year).

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Prior to their new contract, the Women’s Hockey Team re-ceived “up to $2,000 dollars per month in training stipends fromthe United States Olympic Committee,” each year, as well as an ad-ditional $1,000 per month from USA Hockey in the six-month pe-riod leading up to the Games during Olympic years, and the playerssought an increase in the stipend provided during the months lead-ing up to the Games.125 During the dispute, female hockey playerstook the stance that they deserve a more consistent paycheck be-cause they are not committed to a professional league throughoutthe entire year, and, therefore, “perform more duties and spendmore time training with USA Hockey.”126 They also sought moresupport to grow the game of women’s hockey in general in theUnited States in the form of a more well-funded developmentprogram.127

Smaller yet perhaps more troubling disparities existed in termsof how Women and Men’s players were treated by USA Hockey it-self, which the players sought to rectify through negotiations.128

For example, in previous years, male players had been allowed tobring a guest to world championship games, have their transporta-tion paid for, and stay in their hotel rooms until the end of theevent, all while receiving “breakfast, game tickets and an apparelpackage.”129 On the other hand, female players were not allowed

125. Seth Berkman, No Resolution in Pay Dispute Involving U.S. Women’s HockeyTeam, N.Y. TIMES (Mar. 27, 2017), https://www.nytimes.com/2017/03/27/sports/hockey/usahockey-womens-team-boycott.html (describing growing support forWomen’s Hockey Team as dispute intensified, including from United States Sena-tors and major figures in professional sports).

126. Wattles & Garcia, supra note 86 (noting during negotiations USA Hockey Roffered to increase its $1,000 per month stipend to $3,000 per month during six-month lead up to Olympics, but had not made concessions for increases outsidesix-month window).

127. See Kevin Allen & Christine Brennan, Examining Dispute Between USAHockey, Women Players, USA TODAY (Mar. 16, 2017, 8:13 PM), https://www.usatoday.com/story/sports/hockey/2017/03/16/usa-hockey-womens-team-boycott-world-championship/99281294/ (“The NHL gives USA Hockey an $8 million grant an-nually, and the women want to see some of that money go into women’sprograms.”).

128. See Ahiza Garcia, While the U.S. Men’s Team Sat Business Class, the WomenSat in Coach, CNN MONEY (Mar. 24, 2017, 11:22 AM), http://money.cnn.com/2017/03/24/news/companies/usa-hockey-womens-pay-dispute/index.html[https://perma.cc/QQC3-6Q98] (discussing disparities revealed by USA Hockeyplayer handbooks for 2013 and 2014 IIHF competitions and perks Men’s Teamreceived but Women’s Team did not, such as ability to bring guest to competitionswho had transportation paid for and could stay in same room as player).

129. Id. (discussing one reason for disparities was how cost-prohibitive provid-ing equal accommodations would be, such as how player demands “would result intotal player compensation in an Olympic year of approximately $210,000 perplayer if the team attains a silver medal and $237,000 for a gold medal”).

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to bring a guest and, instead, had to share a room with a teammate,and while Men’s Team players traveled to their games in businessclass, the Women’s Team players were seated in coach class.130

Ultimately, however, players on the Women’s and Men’s Na-tional Teams were receiving the same medal bonuses from the U.S.Olympic Committee, which may have made the Women’s positionduring the dispute seem better than it really ever was, even if thosemedal bonuses were never actually a form of guaranteed income.131

Although the pay structure of the NHL and NWHL are beyondUSA Hockey’s control, there was clearly room to grow in terms ofhow players of each gender were being treated by USA Hockey incorresponding competitions, and the players had a strong argu-ment that the time they put into preparing to compete for the Na-tional Team and supporting USA Hockey should have resulted in a“consistent paycheck.”132

B. New Deals: Terms of Resolution for Each Dispute

1. Women’s Soccer

The Players Association and the Federation finally struck adeal, after years of negotiations, on April 5, 2017.133 While terms of

130. See id. (adding also that according to handbooks, “USA Hockey paid forthe disability insurance of players on the men’s team but not for players on thewomen’s team,” as additional disparity); see also Norah O’Donnell, Team USA Mem-bers on Historic Fight for Equal Pay in Women’s Soccer, CBS NEWS: 60 MINUTES (Nov. 20,2016), https://www.cbsnews.com/news/60-minutes-women-soccer-team-usa-gen-der-discrimination-equal-pay/ [https://perma.cc/JM77-PHFV] (interviewing play-ers for CBS special on US Women’s National Soccer Team in which it was revealedthat Women travel to games flying in coach class, but Men have in their agreementto fly first class).

131. See Wattles & Garcia, supra note 86 (noting players had said USA RHockey’s offers were “misleading because they conflate[d] USA Hockey’s pay-ments with money that comes from the U.S. Olympic Committee, which offers thesame medal bonus to athletes across all sports and genders”); see also Allen & Bren-nan, supra note 127 (noting players did not count USOC bonuses or Direct Athlete RSupport as part of any deal USA Hockey offered, and providing following exampleto illustrate point: “By comparison, in 2016, USA Swimming gave star KatieLedecky $75,000 for each gold in addition to the $25,000 that she received fromthe USOC for each gold”).

132. Wattles & Garcia supra note 86 (“And because the women’s team players Raren’t tied up in a professional league all year they perform more duties and spendmore time training with USA Hockey. That’s why, the team says, they deserve aconsistent paycheck.”); see also Garcia, supra note 128 (“[T]he players say their case Ris about more than money. They want better job benefits for IIHF games—equalto those given to their male counterparts.”).

133. See Grant Wahl, U.S. Women, U.S. Soccer Agree to New CBA, End Labor Dis-pute, SPORTS ILLUSTRATED (Apr. 5, 2017), https://www.si.com/planet-futbol/2017/04/05/uswnt-us-soccer-women-cba-labor-talks-agreement [https://perma.cc/J3Y6-YW3Q] (reporting on new deal that had been struck and basic terms of it, such as

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the deal have mostly remained private, reports so far indicate sub-stantial improvements that should allow players to live far morecomfortably as they compete for the National Team and continueto grow the game domestically.134 Moreover, the new deal also in-cludes terms that will create a stronger relationship between U.S.Soccer and the NWSL, which should further strengthen the natu-ral, symbiotic relationship between the two organizations and helpgrow the game of women’s soccer domestically.135

Significant gains with respect to compensation, one of themore divisive issues during the dispute, were made as well.136 Thenew CBA reportedly includes an increase in base pay of over thirty-percent, as well as improved bonuses, which was one area where paydisparity had been most glaring previously and that was most im-portant to the players to rectify.137 While this was one of the mainpoints of contention for the bulk of the dispute, it seems, based onthe details that have been made available, that at this point themore conservative, salary-based structure has stayed intact with thenew CBA, albeit with significantly increased compensation.138

“ability of the WNTPA to control group likeness rights for licensing and non-exclu-sive rights in sponsorship categories where U.S. Soccer does not have a sponsor”).

134. See id. (including, for example, “[e]nhanced ‘lifestyle’ benefits for theplayers with respect to travel and hotels; per diems that are equal to those of themen’s team; and greater financial support for players who are pregnant and play-ers adopting children”).

135. 133 See id. (“The new CBA includes: A commitment from U.S. Soccer topay the NWSL salaries for allocated players; a return commitment by the players tocompete in the NWSL; a requirement for the improvement of NWSL standards.”).For further discussion on how these terms should help grow the game of Women’sSoccer domestically, see infra notes 184–191 and accompanying text. R

136. See Andrew Das, Long Days, Google Docs and Anonymous Surveys: How theU.S. Soccer Team Forged a Deal, N.Y. TIMES (Apr. 5, 2017), https://www.nytimes.com/2017/04/05/sports/soccer/uswnt-us-soccer-labor-deal-contract.html?smid=tw-share&_r=0 (describing how Women’s Soccer Team worked together to findsuccess at bargaining table, such as by collaborating “to propose changes as smallas a single word in page after page of precise contract language,” and then rehears-ing “what they would say at each negotiating session, and even decid[ing] whowould say it”).

137. See id. (“The agreement includes a sizable increase in base pay for theplayers . . . and improved match bonuses that could double some of their incomes,to $200,000 to $300,000 in any given year.”). For further discussion on the issue ofbonuses, see supra notes 105–115 and accompanying text. R

138. See O’Donnell, supra note 130 (discussing why prior deals were agreed to Rwhen players may have felt they were unfair, and including commentary fromTeam co-captain Becky Sauerbrunn on this matter who said, “[w]e didn’t knowhow to fight and in which ways we could fight”). When asked whether the playersthought they should be paid more than the Men’s Team, Carli Lloyd, also a co-captain, replied, “[y]eah, absolutely,” because “[w]e win. We’re successful.Should get what we deserve.” Id. For a discussion on this salary based pay struc-ture, see supra notes 110–115 and accompanying text. R

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2. Women’s Hockey

Just days before the Women’s Soccer Team struck its new deal,the Women’s Hockey Team struck a new deal of its own with USAHockey on March 28, 2017.139 Much like the Women’s Soccer deal,the Hockey Team’s deal made significant improvements to com-pensation and lifestyle benefits for the players, while also makingstrides to foster further growth of the game.140 The deal reportedlyassures the players will earn “around $70,000 each per year, al-though they could make more than $100,000 in Olympic years ifthey win gold,” and given that this is a base salary the players re-ceived the consistent paycheck they sought.141 The minimum com-pensation also does not include medal bonuses from the U.S.Olympic Committee, just as the players sought to avoid.142 Further-more, the players saw their monthly training stipends from USAHockey increase and come in at a consistent, year-round basis withtheir new deal, and will now receive a $2,000 monthly training sti-pend year-round regardless of whether it is an Olympic year.143

As for the glaring disparity that had existed between travel ac-commodations for the Men’s and Women’s Teams to competitions,the new deal is also reported to include terms for improved and

139. See Allen & Perez, supra note 7 (reporting on available terms of new deal Rjust weeks after threat by Team to boycott upcoming World Championships, andhow team’s IIHF World Championship title defense would begin just three dayslater against Canada).

140. See id. (“The deal also includes the formation of a Women’s High Per-formance Advisory Group that will contain former and current members of thewomen’s national team. This group will offer advice in helping USA Hockey ad-vance girls and women’s hockey.”). For further discussion of the new Women’sSoccer CBA, see supra notes 133–138 and accompanying text. R

141. Allen & Perez, supra note 7 (reporting “[t]he breakdown includes USA RHockey creating an annual fund of $950,000 to be divided among the 23 players. . . . The range for the fund in 2017 is $850,000 to $950,000”); see also AhizaGarcia, Women’s National Team Agrees to 4-Year Deal with USA Hockey, CNN MONEY

(Mar. 29, 2017, 12:38 AM), http://money.cnn.com/2017/03/28/news/usa-hockey-womens-pay/index.html [https://perma.cc/VD44-968X] (“The women’s play-ers were asking for a $68,000 annual salary as well as for benefits like child care,maternity leave, and the ability to compete in more games throughout the year.”).

142. See Allen & Brennan, supra note 127 (explaining during negotiations RUSA Hockey was offering “deal that would allow players the opportunity to pocket$85,000 if they win the gold medal,” but how much of that increase came fromUSOC raising gold medal bonus to $37,500, and how “players don’t count theUSOC bonuses, or the Direct Athlete Support, as being part of what USA Hockeyis offering”). For further discussion of the negotiations between players and USAHockey and the terms each side was seeking, see supra notes 125–130 and accom- Rpanying text.

143. See id. (noting that $2,000 amount is maximum of range from $750 to$2,000 players would receive from USOC, so USA Hockey has agreed to makeupdifference each month, year-round).

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equal accommodations going forward.144 The new deal also in-cludes the formation of a “Woman’s High Performance AdvisoryGroup” to assist in efforts to grow girl’s and women’s hockeydomestically.145

C. Did Either Team Achieve Truly “Equal Pay”?

There can be no question that after each agreement the teamsand their players are in a far better and more equitable positionthan they were before the disputes were resolved.146 Yet, the newdeals gave each party of players a form of “equitable pay,” ratherthan truly “equal pay,” and certain signs, such as the EEOC com-plaint not being withdrawn, indicate some issues still remainopen.147

1. Equitable Pay Resolution in Soccer

Based on the available remedies for violations of Title VII orthe EPA, it makes sense why five players have not withdrawn thecomplaint.148 If the players who filed the complaint can show viola-tions under either of those causes of action, assuming that theirclaims were brought under each, compensation may be availablefor the discrimination and resulting unequal pay prior to their newdeal.149

Broadly speaking, making those showings turns on a few keyissues.150 In a successful claim brought under the EPA, the players

144. See id. (“In addition, the women’s players will receive the same accommo-dations as men’s players for the world championships.”). For further discussion ontravel disparities prior to the new deal, see supra notes 128–130 and accompanying Rtext.

145. USA Hockey & USWNT Moving Forward Together, USA HOCKEY (Mar. 28,2017, 6:13 PM), http://www.usahockey.com/news_article/show/773291 [https://perma.cc/BD34-57EN] (discussing how Group will be composed of “former andcurrent players from the U.S. Women’s National Team program, along with volun-teer and staff leadership” and will grow game in areas “including programming,marketing, promotion, and fundraising”).

146. For further discussion on aims of “equitable pay” held by the teams, seeinfra notes 160–164, 168–171 and accompanying text. R

147. See Hays, supra note 7 (reporting on ratification of new CBA and that Rfollowing new deal “[t]he EEOC complaint [had] yet to be resolved, and it was notimmediately clear what effect the new agreement would have on that process”).

148. See 29 U.S.C. § 206(d)(3) (providing relief for claims brought underEPA); 42 U.S.C. § 2000e-5 (providing relief for discrimination claims broughtunder Title VII). For further discussion on remedies available in each cause ofaction, see supra notes 32 & 39 and accompanying text. R

149. For further discussion on remedies available in each cause of action, seesupra notes 32 & 39 and accompanying text. R

150. For a discussion on bringing a successful claim under the EPA or TitleVII, see supra notes 23–39 and accompanying text. R

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would have to show that their employer paid them less than menfor a job that required equal work performed under similar work-ing conditions.151 Strictly evaluating the Federation’s past compen-sation to the male and female players, this much seems easy toestablish: at bottom, female players have made far less than compa-rable male players.152 There has been some question aboutwhether they can be considered to be performing “equal work” forEPA standards, but that factor should not be dispositive given thelanguage and purposes of the statute.153 Ultimately, the male andfemale athletes are each players for the U.S. competing virtuallyyear round with the aim of winning World Championships andOlympic medals, and it would seem unequitable to hold the “equalwork” standards against the female players when standards for howand when they compete are set by third parties.154

Rather, if the Women’s Soccer players were to run into anytrouble with making their EPA claim, it should, and probablywould, be with respect to the fourth affirmative defense availableunder the Act, which is “a differential based on any other factorother than sex.”155 In this case, the fact that the Players Associationagreed to CBAs and the terms therein twice before makes a compel-ling case that the differential is “based on any factor other thansex.”156 Thus, while tying their pay to the Men’s pay allowed thefemale players to shed light on the issue of pay disparities in the

151. See 29 U.S.C. § 206(d)(1) (prohibiting sex discrimination against em-ployees in workplace). For further discussion on required showings for a successfulclaim under the EPA, see supra notes 23–32 and accompanying text. R

152. See O’Donnell, supra note 130 (quoting goalkeeper Hope Solo during Rdispute who described general disparity in pay between men’s and women’s com-pensation, and said, “[w]hen you break it down per game, I think it’s about threetimes as much”); see also § 206(d)(1) (listing one defense to EPA claim as “a differ-ential based on any other factor other than sex”). For further discussion on thealleged disparities between compensation for Women’s and Men’s team players,see supra notes 103-120 and accompanying text. R

153. See Das, supra note 5 (explaining how qualification for Women’s World RCup requires playing five games in single two-week tournament, whereas qualifyingfor Men’s tournament requires playing sixteen games over two years). But see 29C.F.R. § 1620.14 (“What constitutes equal skill, equal effort, or equal responsibilitycannot be precisely defined. In interpreting these key terms of the statute, thebroad remedial purpose of the law must be taken into consideration.”).

154. See Das, supra note 5 (noting how “the women play more games on a Ryear-to-year basis and must win them to claim their bonuses, effectively requiringthem to work harder and perform better just to keep pace”).

155. 29 U.S.C. § 206(d)(1). For further discussion on the affirmative de-fenses available to a claim brought under the EPA, see supra notes 30–31 and ac- Rcompanying text.

156. Id.; see also O’Donnell, supra note 130 (“The federations’ lawyers re- Rsponded to the EEOC complaint saying ‘any differences in the compensation paidmen and women players are driven by factors other than gender.”).

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first place, the fact that they have two separate CBAs will make itdifficult for them to show that the unequal pay was on the basis ofsex, rather than something like independent negotiations betweeneach of the parties and the Federation separately.157

Proving a Title VII claim is unlikely to be any easier either,given the requirement to show intent as a part of a successfulclaim.158 In the case of a Title VII claim, it is not clear what theplayers thought they might be able to show to prove the discrimina-tion was intentional, but gathering such evidence is no easy task.159

Without clear direct or circumstantial evidence to establish that theaim was to discriminate the players based on gender, the otherwisebroad nature of Title VII will not be of much use to the players.160

The EEOC will either decide that there was employment-based dis-crimination against the female players and that there was an equalpay issue, or that there was no provable gender-based discrimina-tion at the time the complaint was filed.161 Because of the fourthaffirmative defense that the Federation could raise and because theFederation could argue that the difference in pay was based on thestructure agreed to in the 2005 CBA, while the complaint to the

157. Das, supra note 13 (“[I]n linking their compensation to the men’s pay, Rthe women’s players put U.S. Soccer in a difficult position. The federation hascollective bargaining agreements with both teams, but the financial terms differwidely.”).

158. See 42 U.S.C. § 2000e-2(h) (establishing that it shall not be unlawful foremployer to provide different standards of compensation or different terms pursu-ant to bona fide seniority or merit system “provided that such differences are notthe result of an intention to discriminate because of race, color, religion, sex, ornational origin”). For further discussion on the standards to prove a claim broughtunder Title VII and the importance of showing intent, see supra notes 36–39 and Raccompanying text.

159. See ALEXA ASHWORTH, ET AL., FEDERAL PROCEDURE, LAWYER’S EDITION, TI-

TLE VII CASES; WHEN PROOF OF INTENT IS REQUIRED § 50:966 (Feb. 2018 update)(providing background on intent requirement of Title VII claims, such as howburden of proof is on plaintiff to show intent, and “[e]mployers are unlikely toleave a smoking gun admitting discriminatory motive”).

160. See, e.g., Washington Cty. v. Gunther, 452 U.S. 161, 170 (1981) (holdingTitle VII’s prohibition of discrimination is to be read broadly, and incorporation ofEPA’s affirmative defenses into Title VII does not limit claims brought under it tothose based on equal pay for “equal work”). For a discussion on the broad natureof claims Title VII covers, see supra note 37 and accompanying text. R

161. See U.S. Soccer Asks EEOC to Dismiss U.S. Women’s Wage Complaint, SPORTS

ILLUSTRATED (June 1, 2016), https://www.si.com/planet-futbol/2016/06/01/us-soccer-uswnt-eeoc-wage-discrimination-equality [https://perma.cc/8GHU-LLRW](reporting just over one year before contract dispute was resolved that Federationhad asked EEOC to dismiss players’ wage complaint, which it ultimately did notdo).

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EEOC was valid it seems unlikely the players will succeed on it atthis time.162

However, while the new CBA did not achieve “equal pay” to theMen’s Team players, in that it does not provide the same compensa-tion, dollar-for-dollar, and follows a different structure than theMen’s compensation, it did achieve “equitable pay.”163 In fact, astalks progressed, the conversation shifted to one focused on “equi-table pay” rather than “equal pay,” in large part because the salarystructure the players sought from the Federation “was fundamen-tally different from the Men’s structure.”164 The new deal suggeststhat base and bonus compensation was not ultimately the only goaland that differences that continue to exist in areas such as FIFAbonus payments that are beyond the control of either party are mit-igated by progress in other areas.165 For example, the new CBAprovides for the Federation to pay the Women’s professional clubsalaries, where the men do not receive that same treatment in theirCBA.166 The EEOC complaint was pivotal in the negotiation pro-cess regardless of whether gender discrimination took place or notbecause the complaint demonstrated how serious the players wereand creating the legitimate chance of legal consequences for theFederation.167

162. See 29 U.S.C. § 206(d)(1) (stating employer’s fourth affirmative defenseis that “payment is made pursuant to . . . a differential based on any other factorother than sex”). For further discussion about the holistic impact of the dealstaken together, see infra notes 180–211 and accompanying text. R

163. Das, supra note 136 (“Yet while the women’s players can claim significant Rgains, including on noneconomic issues like travel and working conditions, thenew deal does not guarantee them equal pay with the men’s national team, whichthe women had made the cornerstone of their campaign for much of the pastyear.”).

164. Wahl, supra note 133 (reporting on newly agreed to CBA and including Rcomments from interview with Women’s Soccer co-captain Becky Sauerbrunnfrom U.S. Women’s Team Strikes podcast).

165. See Das, supra note 136 (discussing how reality of not achieving truly Requal pay with men was viewed as consequence of different pay structures andeight-figure gap in FIFA bonus payouts, but also how this reality was “balanced byprogress elsewhere”).

166. See Wahl, supra note 133 (elaborating on notion that new deal was one of R“equitable” rather than “equal” pay, by co-captain Becky Sauerbrunn explaininghow salary structure sought includes Federation paying for club salaries, treatmentMen do not receive, which makes their structure “fundamentally different” fromMen’s structure).

167. See Lloyd, supra note 10 (discussing how filing EEOC complaint was not Rabout “how much [Lloyd] love[s] to play for [her] country,” but rather, “[i]t hadeverything to do with what’s right and what’s fair, and with upholding a fundamen-tal American concept: equal pay for equal play”).

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2. Equitable Pay Resolution in Hockey

In the case of the Women’s Hockey Team, it is not clear thatthere was ever any gender discrimination issues at play in a legalsense under the EPA or Title VII, unless the perks the Men’s playersreceived were to be counted as pay discrimination.168 The U.S.Olympic Committee was paying Men’s and Women’s Team playersequally, but the men also had a far more lucrative and secure pro-fessional league to fall back on than the women did during the dis-pute.169 However, there is a compelling case to be made that priorto the deal, USA Hockey was not fulfilling its duties as a governingbody to provide equitable support to the female players, given thesecircumstances and the language of the Ted Stevens Act.170 Moreo-ver, the women absolutely received different, lesser travel accom-modations than the Men’s Team, furthering the argument insupport of the notion that inequality was present, at least to someextent.171

In the case of the Women’s Hockey Team compared to thesituation of the Women’s Soccer Team, though, it was always goingto be the case that in terms of potential legal remedies availabletheir options were always going to be more limited because they arenot technically employed by USA Hockey.172 By not technically be-ing “employees” of USA Hockey and thus not being covered by thesame laws as the Women’s Soccer Team, the Women’s HockeyTeam actually had increased flexibility in their dispute to take mea-

168. For a discussion on pay structure for Women’s Hockey before the settle-ment of their dispute, see supra notes 121–132 and accompanying text. R

169. For a discussion on the stability and security of the NHL as compared tothe NWHL, see supra notes 122–124 and accompanying text. R

170. See 36 U.S.C. § 220524(6) (“For the sport that it governs, a national gov-erning body shall—provide equitable support and encouragement for participa-tion by women where separate programs for male and female athletes areconducted on a national basis.”); see also Travis Waldron, 16 Senators Back U.S. Wo-men’s Hockey Fair Pay Boycott, HUFFINGTON POST (Mar. 27, 2017, 4:21 PM), http://www.huffingtonpost.com/entry/senators-womens-hockey-boycott_us_58d95e6be4b0f805b3222a51 [https://perma.cc/3STG-GZDQ] (discussing letter sent by six-teen United States Senators in support of Women’s Hockey Team during negotia-tions and boycott, and citing Ted Stevens Act to demonstrate USA Hockey was“legally required to provide equitable support and encouragement for participa-tion by women”). For further discussion on the Ted Stevens Act and its purposes,see supra notes 58–68 and accompanying text. R

171. For a discussion on disparities related to travel and lifestyle accommoda-tions, see supra notes 128–130 and accompanying text. R

172. See USA HOCKEY, supra note 58 (providing USA Hockey’s stance that Rplayers were not employed by USA Hockey while contract dispute was ongoing).For further discussion on the distinction between “employees” and “independentcontractors,” see supra notes 42–48 and accompanying text. R

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sures like threatening a boycott.173 And while this distinction willprevent them from potentially recovering back pay from USAHockey like the Soccer Team may be able to from the Federation,they were ultimately still able to leverage their threat to boycott tohelp achieve a new deal, the same way the Soccer Team did withtheir EEOC complaint.174

There is no doubt that the new contract between the playersand USA Hockey is a huge improvement on the previous one, as itshould allow the players to earn the consistent paycheck and livingwage they deserve based on their commitment to the NationalTeam and growing the game in the United States.175 What will bereally interesting to see going forward, though, is what impact thisnew contract will have on the Women’s Team players status as inde-pendent contractors to USA Hockey, or whether they might insteadbe able to be considered as “employees” to the governing body in-stead.176 Based on the consistent paychecks that the players willnow be getting from USA Hockey going forward, it could very wellbe the case that in future negotiations or disputes the Team’s play-ers will find themselves protected by the FLSA based on an “eco-nomic reality” test.177 The new contract will present an interesting

173. For an analysis on why the Hockey Team’s players are not technically“employees” of USA Hockey but rather “independent contractors,” see supra notes64–68 and accompanying text. For further discussion on why the Women’s Soccer RTeam could not legally carry out their threat to boycott their Olympics, see supranotes 72–75 and accompanying text. R

174. See O’Donnell, supra note 130 (providing transcript to interview with sev- Reral players from Women’s Soccer Team, and asking why EEOC complaint wasfiled, to which Becky Sauerbrunn answered “[w]e wanted to put pressure on themand so with the EEOC complaint it seemed like a no brainier for us”). For furtherdiscussion of potential remedies available to the Soccer Team through their EEOCcomplaint, see supra notes 32 & 39 and accompanying text. For further discussion Ron the Hockey Team’s planned boycott, see supra notes 86–87 and accompanying Rtext.

175. See Isabel Angell & T.J. Raphael, The US Women’s National Hockey TeamWent After Equal Pay and Fair Treatment—and Won, PRI (Mar. 30, 2017, 10:30 AM),https://www.pri.org/stories/2017-03-30/us-womens-national-hockey-team-went-af-ter-equal-pay-and-fair-treatment-and-won [https://perma.cc/3SD9-CR8F] (quot-ing forward Jocelyne Lamoureux-Davidson after completion of deal, who said,“[a]ll those things they were providing the men, we felt by the Ted Stevens Ama-teur Sports Act, they’re obligated to provide that for us. We were able to accom-plish that in the agreement”). For further discussion on the new contract and thereported terms therein, see supra notes 139–145 and accompanying text. R

176. For further discussion on women’s hockey team’s status as “independentcontractors,” see supra notes 58–68 and accompanying text. R

177. See, e.g., Scantland v. Jeffry Knight, Inc., 721 F.3d 1308, 1311 (11th Cir.2013) (citing Bartels v. Birmingham, 332 U.S. 126, 130 (1947)) (discussing “eco-nomic reality” test). For further discussion on the distinction between “employ-ees” and “independent contractors,” as well as the “economic reality” test used todetermine the appropriate label, see supra notes 42–48 and accompanying text. R

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question of whether the Women’s players will have “economic de-pendence” on USA Hockey in the future, especially if NWHL sala-ries remain low and players rely on USA Hockey as their primarysource of income.178 In that respect, the Women’s Hockey Team’snew contract could hold significance in addition to the improved,consistent paychecks, and could allow them further legal protec-tions as actual employees of USA Hockey in years ahead, similar tothose of the Soccer Team.179

D. Continuing to Grow, Together

Taken together, each of the new deals puts women in generalin a better position with respect to closing the gender pay gap oneday.180 Despite the differences in legal nuances involved with eachdispute, there were several similarities between them, and even asense of mutual support among the players of each Team, beforethey were ultimately resolved days apart from each other.181 In ad-dition to the improvements made in compensation and lifestylebenefits with each deal, observers should not overlook the largerimpact each of these deals should have on the games of women’s

178. For further discussion of the “economic dependence” factor, see supranotes 45–48 and accompanying text. For further discussion of the NWHL and the Rtroubles it has had financially so far, see supra notes 122–124 and accompanying Rtext. For a discussion on the Women’s Soccer Team’s status as employees of theFederation based on their collective bargaining agreements, see supra notes 53–57 Rand accompanying text.

179. For further discussion of USA Hockey’s stance that the players are notemployees of USA Hockey during the dispute, see supra notes 64–65, 85–87 and Raccompanying text.

180. See Frank Pingue, Ice Hockey-U.S. Women’s Team Settle Pay Dispute, AvoidBoycott, REUTERS (Mar. 28, 2017, 12:50 PM), http://www.reuters.com/article/us-icehockey-usa-dispute/ice-hockey-u-s-womens-team-settle-pay-dispute-avoid-boy-cott-idUSKBN16Z2DV [https://perma.cc/5A6Z-HFVC] (quoting USA Hockey ex-ecutive director, Dave Ogrean, after resolution of hockey contract dispute, “[w]elook forward to the future with great anticipation. This process has, in the end,made us better”).

181. See Seth Berkman, U.S. Women’s Team Strikes a Deal with USA Hockey, N.Y.TIMES (Mar. 28, 2017), https://www.nytimes.com/2017/03/28/sports/hockey/usa-hockey-uswnt-boycott.html?mcubz=0 (discussing support Women’s HockeyTeam received leading up to resolution, including “from not only the NationalWomen’s Hockey League but also the N.H.L., the N.B.A., the W.N.B.A. the N.F.L.,Major League Baseball and the United States women’s soccer team”); see also BarrySvrluga, The U.S. Women’s Hockey Team Fights the Good Fight—and Wins, N.Y. TIMES

(Mar. 29, 2017), https://www.washingtonpost.com/sports/olympics/the-us-womens-hockey-team-fights-the-good-fight—and-wins/2017/03/29/28bce0ce-1432-11e7-ada0-1489b735b3a3_story.html?utm_term=.38515343c202 [https://perma.cc/6AMR-AE7Q] (discussing how Women’s Team won contract battle, receiv-ing support during process from women’s tennis icon, Billie Jean King, and formerU.S. Women’s Soccer star, Julie Foudy).

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soccer, women’s hockey, and even for women’s sports in general.182

Most obviously, in two of the country’s major women’s sports it isnow the case that the top players have achieved far more equitablepay compared to their male counterparts and have also taken af-firmative steps towards potential equal pay down the line.183

Each new deal included major provisions to help foster thegrowth of the game for players outside of those at the highest levelof competition, in addition to the significant gains made in com-pensation.184 These provisions, which will provide the opportunityfor the NWSL and girl’s hockey in America to continue to grow,provide unique opportunities to improve the positions of femaleathletes of all skills and ages nationwide.185 In the case of the Soc-cer Team’s dispute, the Federation agreed to subsidize the NWSLsalaries for players who take time away from that league to play forthe National Team, in return for commitment by those players to

182. See Brown & Patton, supra note 2 (finding that while wage gap is smaller Rfor women ages twenty-five to thirty-four, where women earn ninety cents for everydollar a man in same group earns, gender pay gap for all workers is still estimatedto be of seventeen cents). For further discussion of the gender pay gap, see supranotes 2-6 and accompanying text. R

183. For further discussion on the resolutions of each dispute, see supra notes133–145 and accompanying text. R

184. See Allen & Perez, supra note 7 (discussing formation of “Women’s High RPerformance Advisory Group” to advance game of hockey for women of all agesand skill levels across country); see also Wahl, supra note 133 (reporting on newly Rratified CBA in Women’s Soccer dispute including provisions related to commit-ment by National Team players to play in NWSL, and commitment by Federationto subsidize those salaries to support NWSL financially). For further discussion onthe specifics of these provisions, see supra notes 135 & 145 and accompanying text. R

185. See generally 20 U.S.C. §§ 1681–1688 (2012) (covering part of EducationAmendments of 1972 referred to as “Title IX” and generally prohibiting that anyperson be denied benefits or discriminated against on basis of sex when takingpart in “any education program or activity receiving Federal financial assistance”).See also Beth Brooke-Marciniak & Donna de Varona, Amazing Things Happen WhenYou Give Female Athletes the Same Funding as Men, WEFORUM (Aug. 25, 2016), https://www.weforum.org/agenda/2016/08/sustaining-the-olympic-legacy-women-sports-and-public-policy/ [https://perma.cc/R6C8-HXHM] (presenting findingson importance of girls being provided opportunities to play sports, based on bene-fits that include “stay[ing] in school longer, suffer[ing] fewer health problems,enter[ing] the labor force at higher rates, and [being] more likely to land betterjobs”). The same article considers Title IX to be the public policy “catalyst” thathas increased “funding and institutional opportunities” for girls and women insports, that has led to “a 545% increase in the percentage of women playing col-lege sports and a 990% increase in the percentage of women playing a high schoolsport.” Id.; see also Barbara Kotschwar, Women, Sports, and Development: Does It Pay toLet Girls Play?, PIEE (Mar. 2014), https://piie.com/publications/pb/pb14-8.pdf[https://perma.cc/LD5L-TFTE] (advocating for Title IX to serve as instructivemodel for other countries to increase participation of female youth in sports basedon empirical evidence that such increase in participation contributes to broadergender-equity and overall economic growth).

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continue playing in the NWSL outside of the National Team.186

Moreover, the CBA also requires improvements to be made in theNWSL, so while the agreement is between the Players Associationand the Federation, even those players in the NWSL who mightnever come close to playing for the National Team will reap bene-fits of the new deal based on these improved standards.187 It fol-lows, then, that while the negotiating focused mostly on players atthe top of the game who compete at an international level, the do-mestic game should grow for women as well, and players therecould stand to see larger contracts for themselves as the sport growsin popularity and as revenues increase.188

On the same note but as applied to the case in the HockeyTeam’s dispute, their deal contained a provision to form a “Wo-men’s High Performance Advisory Group” that will be focused togrow their game domestically for women in general as well.189 Thenew steps being taken after the resolution of the Women’s Hockeydispute are a testament to a commitment to grow the game for play-ers of all levels and skills.190 Just as in the case of the Soccer Team’sdispute resolution, while the negotiations here focused on playersat the top of the game for the most part, the provisions includedshould, in effect, allow the game as a whole to benefitdomestically.191

186. See Wahl, supra note 133 (discussing terms of new deal including provi- Rsions related to NWSL commitment by both parties, such as requirement for im-provement of NWSL standards).

187. See id. (quoting USWNT co-captain Becky Sauerbrunn on her hopes tohear EEOC findings soon, and adding that “from there, along with a CBA, wehope that gender equity will occur in this CBA and will benefit the player pool formany years going forward”).

188. See Das, supra note 136 (“In addition to seeking improved, but not neces- Rsarily equal, pay, the players began to press for changes that they saw as vital to thelong-term growth of their game.”).

189. See Seth Berkman, Contract Fight with U.S.A. Hockey Over, Hard Work Beginsfor Women’s Team, N.Y. TIMES (Apr. 1, 2017), https://www.nytimes.com/2017/04/01/sports/hockey/usa-hockey-womens-team.html (suggesting formation of Wo-men’s High Performance Advisory Group was “key component” of new contractagreement, and also that group is similar to Canada’s Women’s High PerformanceAdvisory Group that has also “fostered development on the youth level”). For fur-ther discussion of the resolution of the Women’s Hockey dispute and the Women’sHigh Performance Advisory Group, see supra notes 139–145 and accompanying Rtext.

190. See USA HOCKEY, supra note 145 (quoting Donna Guariglia, who is trea- Rsurer of USA Hockey and former chair of USA Hockey’s Girls’ and Women’s Sec-tion, in statement by USA Hockey after completion of deal, “[t]he action takentoday is an important statement of USA Hockey’s commitment and support of ourwomen’s national team program and female hockey overall”).

191. See id. (including quotes from several players and parties to negotiations,such as Team captain Meghan Duggan, “[o]ur sport is the big winner today,” and

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Each of the new deals also puts the Teams in stronger bargain-ing positions for their next negotiations in coming years.192 Thenew Hockey and Soccer deals cover four- and five-year periods, re-spectively, and it stands to reason that the successes of each of thesedeals will allow each Team to make even more gains with their nextdeals.193 With both deals including provisions to foster growth ofeach game at the lower levels, the professional soccer and hockeyleagues could see increases in stability and popularity, and, ulti-mately, revenue.194 Empirical evidence supports that an investmentin girls’ and women’s sports supports greater gender-equity andgeneral economic growth.195 So, if this happens over the next sev-eral years, a positive feed-back loop could be established whereineach team will have a higher likelihood of being composed of thestrongest players in their games, allowing them to continue theirsuccesses at the highest level and building stronger cases for evenbetter deals the next time around.196

Of course, all parties are happiest right after the completion ofany new deal, but meeting potential for the growth of each sport

executive director of USA Hockey, Dave Ogrean, “[w]e look forward to the futurewith great anticipation”).

192. See Das, supra note 136 (quoting Becca Roux, the Women’s Soccer Runion’s executive director, “[w]e tried to completely change the methodology forhow to define our value, and we made progress in that regard, and it changes theequation for the future”).

193. See Allen & Perez, supra note 7 (“Members of the U.S. women’s national Rhockey team agreed to a four-year contract with USA Hockey on Tuesday night toavert a threatened boycott of the upcoming IIHF Championship in Plymouth,Mich.”); Hays, supra note 7 (“The new deal is expected to cover a five-year period Rthat includes both the 2019 FIFA World Cup in France and the 2020 Olympics inTokyo.”).

194. For further discussion on the Women’s Soccer provisions, see supra note135 and accompanying text. For further discussion on the Women’s Hockey provi- Rsions, see supra note 145 and accompanying text. R

195. See Tara Parker-Pope, As Girls Become Women, Sports Pay Dividends, N.Y.TIMES (Feb. 15, 2010, 4:05 PM), https://well.blogs.nytimes.com/2010/02/15/as-girls-become-women-sports-pay-dividends/ [https://perma.cc/LNT3-FAEV] (ana-lyzing studies that had recently been released to determine whether improvementsin quality of life for young women could be direct result of athletic participationand concluding they provide “the strongest evidence yet that team sports can re-sult in lifelong improvements to educational, work and health prospects”).

196. See Hays, supra note 7 (including comments by Federation president RSunil Gulati on new CBA, including that deal will, “over time strengthen the eliteplayer development process at the grassroots level. We believe our continued part-nership will ensure a bright future for our sport for years to come”); see also USAHOCKEY, supra note 145 (including comments from Jim Smith, president of USA RHockey in statement after completion of deal, who said, “[t]oday reflects everyonecoming together and compromising in order to reach a resolution for the better-ment of the sport. We’ll now move forward together knowing we’ll look back onthis day as one of the most positive in the history of USA Hockey”).

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presented by each deal can only become realities through constantcommitment to achieving these ends in coming years.197 Particu-larly in the case of the Women’s National Soccer Team, whose 2015World Cup championship fueled TV ratings and revenues for theFederation, it could be easy for decision-makers in soccer to getcomplacent and be satisfied with the sport’s rising popularity as theNational Team continues to dominate its competition.198 Espe-cially compared to women’s hockey, which is comparatively a muchsmaller game in America, this potential stance, misguided as itwould ultimately be, may even have some merit given that the Fed-eration is simply so much larger than USA Hockey.199 The Federa-tion and game of soccer will likely only keep growing each year, and

197. See Berkman, supra note 189 (suggesting that with completion of new Rcontract in Hockey dispute comes more difficult task of continuing to grow gamedomestically for female players of all ages, and describing that “[a]mid celebra-tions of Tuesday’s news, players recognized that their work was incomplete”); seealso Steven Goff, New U.S. Women’s Soccer Complaint Includes More Pay, Better TravelArrangements, PHILLY.COM (Apr. 5, 2017, 10:25 AM), http://www.philly.com/philly/sports/soccer/US-womens-soccer-CBA-salary-per-diem-NWSL-travel-preg-nancy.html [https://perma.cc/EY97-L573] (reporting on newly ratified CBA be-tween Federation and Players Association, and including quotes from players likemidfielder Megan Rapinoe, who said of deal, “I am incredibly proud of this teamand the commitment we have shown through this entire process. While I thinkthere is still much progress to be made for use and for women more broadly, Ithink the [players] should be very proud of this deal and feel empowered movingforward”).

198. See Robert Tuchman, Girls Soccer on the Rise Due to USA World Cup Victory,FORBES (July 8, 2015, 7:15 PM), https://www.forbes.com/sites/roberttuchman/2015/07/08/girls-soccer-on-the-rise-due-to-usa-world-cup-victory/#c7341be5d5fd(providing statistics on television viewership of Women’s World Cup Final andgrowth of girls’ club soccer participation in last twenty years). Tuchman’s articleexplains that the World Cup Final match had about twenty-three million Americanviewers, far more than the roughly seventeen million viewers who watched theMen’s World Cup final between Germany and Argentina the previous year. Id.This viewership put the event on the same level as Game 7 of the 2014 WorldSeries and Game 6 of the 2015 NBA Finals, and “blew out other ‘elite’ women’ssporting events like the Olympics and the WNBA Playoffs completely out of thewater.” Id. Moreover, the article also noted that, “[a]ccording to U.S. Youth Soc-cer, girl’s club soccer participation is up 37% in the last twenty years, while partici-pation in high school soccer programs has also seen a boost of 45% between 1999and 2014.” Id.

199. Compare 2016-2017 Season Final Registration Reports, USA HOCKEY, http://assets.ngin.com/attachments/document/0127/0883/2016-17_Final_Report.pdf[https://perma.cc/VP2R-2WNX] (last visited Oct. 17, 2017) (providing “Registra-tion Comparison by Group” to show 75,832 total females had registered with USAHockey 2016-17 period, of which 18,040 were adults over age of nineteen and57,792 were ages eighteen and under), with US Youth Soccer at a Glance, U.S. YOUTH

SOCCER, http://www.usyouthsoccer.org/media_kit/ataglance/ [https://perma.cc/Q5SF-X44H] (last visited Oct. 17, 2017) (listing statistics about membership inU.S. Youth Soccer organization, such as group having three million members whoare ages 5-19, and of which 48% are females, thus indicating an estimated partici-pation of 1,440,000 females in US Youth Soccer).

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the Federation could, at least in theory, be less inclined than USAHockey to take the affirmative steps necessary to actively grow itsgame.200

Yet, in between the grassroots and the international levels ofeach sport lie professional leagues that leave the bulk of the sports’best players in a limbo that can be unforgiving.201 Female athletestoday are getting chances to compete and make money that theirpredecessors could have only imagined, but as it stands both theNWSL and NWHL are far from perfect in terms of the time theydemand and the compensation for that time they provide, on topof the underlying instability that is inherent to each.202 It will be

200. Compare U.S. SOCCER, FINANCIAL STATEMENTS YEARS ENDED MARCH 31,2016 AND 2015 (2016), available at https://www.ussoccer.com/about/federation-services/resource-center/financial-information [https://perma.cc/9DN9-Q5X3](follow “2016 Audited Financial Statements” hyperlink) (providing audited finan-cial statements of Federation and listing “Total Assets” for 2016 at $121,939719, upfrom $104,124,735 in 2015), and U.S. SOCCER, U.S. SOCCER 2016 ANNUAL GENERAL

MEETING 57–58 (2016), available at http://resources.ussoccer.com/images/160127-AGM-PDF-FINAL.pdf [https://perma.cc/NT5Q-C3HU] (providing budgetfor Fiscal Year 2017 and projecting Total Revenue of $17,588,500, and Surplus of$5,187,838 for Women’s National Team, but just $9,049,500 in Total Revenue, andDeficit of $963,523 for Men’s National Team), with USA HOCKEY, INC., ET AL., FI-

NANCIAL STATEMENTS AND SUPPLEMENTAL SCHEDULES FOR THE YEAR ENDED AUGUST

31, 2016 5 (2016), http://assets.ngin.com/attachments/document/0113/4775/USA_Hockey_Inc_Financial_Stmts_8-31-16_FINAL.pdf [https://perma.cc/HED3-4BM8] (providing financial statements for USA Hockey and listing Total Assets in2016 as $74,146,736, up from $73,479,937 in previous year).

201. See Berkman, supra note 123 (reporting how after NWHL cut “player sal- Raries by 40 to 50 percent six weeks into” its previous season, “the players released astatement demanding more transparency, directly addressing what many considerthe N.W.H.L.’s biggest shortcoming”); Kevin McCauley, NWSL Has Survived LongerThan Any Other Women’s Soccer League. When Do Players Get Paid?, SBNATION (Apr.15, 2016, 7:59 AM), https://www.sbnation.com/soccer/2016/4/15/11409908/nwsl-2016-season-wages-cap-salary-minimum [https://perma.cc/HSK4-CLV9](describing how while NWSL is longest running women’s professional soccerleague, quality of life for players is still lacking because of compensation, and that“[u]ltimately, the value proposition the NWSL offers non-allocated players is verylow pay in exchange for platform to potentially make a national team”). For adiscussion on the rigors of player schedules as part of USA Hockey and the chal-lenge that presents while being considered “independent contractors,” see supranotes 66–68 and accompanying text. R

202. See Berkman, supra note 123 (quoting Megan Duggan on challenges for RRylan to develop NWHL and challenges that came with it after salary cuts, whosaid, “I don’t envy the hurdles [Rylan has] to jump through and the tasks she hasto complete, but we really wanted to know the future of the league, what we wereinvesting all our time and energy into”); McCauley, supra note 201 (explaining Rtensions presented by NWSL being part-time work, which enables many to defendits practices of low compensation, but in which many players are not “encouragedto treat it like part time job and find other opportunities to make money in theoffseason”). Kevin McCauley, in his article, also included a quote from HoustonDash midfielder, Rebecca Moros, who articulated the problem:

There are some coaches that don’t want players other jobs [sic], but inthe men’s league if they paid that little, they’d be expected to get other

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essential in coming years that non-player leaders stay committed tothe provisions in the new contracts and work to implement newinitiatives that will continue to grow the games not just at the high-est and lowest levels, but also at the professional level which hasgone largely overlooked until recently.203

Leaders at the highest level of each governing body must takeactive steps to continue growing the games across all levels, ratherthan the Federation or USA Hockey simply relying on internationalsuccess to interest audiences and achieve growth passively thatway.204 A recent partnership between the Metropolitan Riveters ofthe NWHL and the New Jersey Devils of the NHL is the premiereexample of the type of initiative that parties should strive to takegoing forward.205 The deal is “the first of its kind” in hockey andwill result in the Devils offering “the Riveters ice time along withback-end support in sales, marketing, and promotion.”206 The deallasts three years, and not only gives the NWHL enough of a chance

jobs. In a women’s league, it’s not expected that they’re breadwinners. . . . They’re not trying to encourage players to have jobs outside of thegame.

Id.203. See Berkman, supra note 123 (quoting star Women’s Hockey player Hil- R

ary Knight, who said, “[t]here are mentalities that need to be changed, becausepeople aren’t changed enough,” and also explained that “[s]ome within women’shockey believe more action is needed from the International Ice Hockey Federa-tion, which holds influence over every participating nation’s governing body”); seealso McCauley, supra note 201 (“Current Orlando Pride and former USWNT head Rcoach Tom Sermanni advocates for more owner investment and a fully profes-sional league.”).

204. McCauley, supra note 201 (“It’s everyone’s hope that someday NWSL Rstands on its own and club play is taken as seriously as international play; thatwinning club trophies will matter as much as winning international ones. But rightnow, NWSL and other leagues are very much secondary to the internationalgame.”).

205. See Carol Schram, NWHL Partnership with NHL’s New Jersey Devils Aims toBoost Profile of Women’s Hockey, FORBES (Oct. 10, 2017, 8:30 AM), https://www.forbes.com/sites/carolschram/2017/10/10/nwhl-partnership-with-nhls-new-jersey-dev-ils-aims-to-boost-profile-of-womens-hockey/#80479d538a94 (summarizing three-year deal between NHL and NWHL team in New Jersey that is set to “help supportthe growth of the National Women’s Hockey League and increase visibility of girls’and women’s hockey in New Jersey and across the metropolitan area”); see also DanRice, Why the New Jersey Devils Deal is Massive for the NWHL and Women’s Hockey,NWHL (Oct. 6, 2017, 12:00 PM), http://www.nwhl.zone/news_article/show/841383 [https://perma.cc/Y9EL-HZ4Y] (quoting NWHL Commissioner Dani Ry-lan on goal of partnership, “[f]or us to be able to leverage the Devils marketingengine to educate more people in the metropolitan area that there’s a professionalwomen’s team as well, we believe that will continue to accelerate the girls grass-roots growth of the game”).

206. Schram, supra note 205. The author further noted that “[t]he two orga- Rnizations also plan to collaborate on events that will support local girls’ hockeyprograms.” Id. Hugh Weber, president of Harris Blitzer Sports and Entertain-ment, which is the parent company of the New Jersey Devils stated that “([t]he

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for it to continue to get its feet off of the ground, but also for thepotential of other NHL franchises to follow suit with the NWHLteams in their cities.207 In a similar vein for soccer, improvementsmade in the NWSL minimum salary, efforts by NWSL players tounionize, and the commitment by top players and the Federationto the NWSL through their CBA demonstrates incremental stepstowards a more stable league that has ample room to grow.208

The partnership is only one of many more moves that must bemade in coming years for other professional players to truly feel thebenefits of the new deals achieved by the National Teams, but eventhen, it is helpful to keep in mind that even some of Title IX’s bene-fits have taken as long as decades to be felt.209 With continued suc-cesses by the top players in each sport, and continued commitment

deal) aligns with so much of what we stand for on so many bases, in terms ofgrowing the sport and using athletics to change people’s lives.” Id.

207. See Rice, supra note 205 (quoting Dani Rylan, who said, “[w]e really be- Rlieve that this will be a great domino for the league, not only as a blueprint for theother NHL clubs in our (current) markets, but also expansion opportunities inother markets”).

208. See Corey Roepken, Source: NWSL Minimum Salary to More Than Double,HOUS. CHRON. (Jan. 25, 2017, 4:54 PM), http://www.chron.com/sports/dynamo/article/Source-NWSL-minimum-salary-to-more-than-double-10883469.php [https://perma.cc/8CQ9-JS6M] (reporting on sources who shared minimum salary inNWSL would increase from $7,200 in 2016 to about $15,000, which was increase ofover one-hundred percent); Das, supra note 136 (“The agreement also reinforces Rthe national team players’ commitment to the N.W.S.L. through their league sala-ries, while at the same time establishing a mechanism for them to pursue opportu-nities abroad.”); USWNT Makes $16,000 Donation to Help Launch NWSL Union, NBCSPORTS (Sept. 28, 2017, 3:50 PM), http://soccer.nbcsports.com/2017/09/28/uswnt-makes-16000-donation-to-help-launch-nwsl-union/ [https://perma.cc/2QWV-8QHC] (detailing how one month after ratification of Women’s NationalTeam’s CBA, non-allocated NWSL players approved new constitution and bylawsfor their own players’ association, and how U.S. Women’s National Team PlayersAssociation recently donated $16,000 raised by selling T-shirts as part of their“#equalpayforequalplay” campaign during their own labor disagreement, to helpget NWSL union off ground).

209. See Greg Myre, U.S. Women Will Rule in Rio (You Can Thank Title IX), NPR(Aug. 4, 2016, 9:19 AM), http://www.npr.org/sections/thetorch/2016/08/04/487765827/u-s-women-will-rule-at-the-olympics-you-can-thank-title-ix (analyzinghow during 1972 Summer Olympics, which was same year Title IX was passed, U.S.women won twenty-three medals compared to seventy-one for men, but also howin 2012 Summer Olympics U.S. women won fifty-eight medals to men’s forty-five,and were set to outnumber men 292 to 263 with respect to participation in 2016Summer Olympics); see also McCauley, supra note 201 (outlining practical solutions Rfor NWSL to continue growing, including, but not limited to picking players in“educated way” instead of “to trade them,” so as to “[h]elp them become passion-ate about the club they pay [sic] for,” and commitment by NWSL owners to keepplayers in one market and helping them find offseason jobs). NWHL’s Commis-sioner, Dani Rylan, believes that in five years, “I see this league thriving. At thatpoint we’ll have two Olympic cycles under our belts . . . . In five years, biggergoals—hopefully we have a linear broadcast deal, a handful more teams in theleague, and more NHL team partnerships.” Rice, supra note 205. R

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by officials in each governing body to support the other profes-sional athletes outside the highest level, the professional leaguescurrently in place can gain more stable footing and financial secur-ity.210 Therefore, while each new deal resulted in “equitable pay”rather than truly “equal pay,” each team has effectively put itself,and its sport, in the best position to keep growing across all levels ofthe game; in the future, there is now the possibility that financiallysuccessful professional leagues will be firmly established, and alsothat true “equal pay” among players of all genders might beachieved.211

IV. CONCLUSION

After long, and at times tumultuous, negotiating processes thatincluded litigation in federal court, threats to boycott, and anEEOC complaint, the Women’s National Soccer and Hockey Teamseach finally came to agreements with their respective governingbodies, resulting in significant improvements on their previous situ-ations.212 While they did not achieve truly “equal pay” to their malecounterparts, in large part because of the different salary structurein Women’s Soccer, and the disparity between the male and femaleprofessional leagues in the example of hockey, they can, andshould, be considered to have achieved a form of “equitable pay”that put each in much fairer positions relative to their male coun-terparts.213 Before their new deals were made, the Women’s Soccerand Hockey Teams were not receiving equal treatment by their gov-erning bodies as the corresponding Men’s Teams were.214 For ex-

210. See McCauley, supra note 201 (“Year four is here. NWSL has survived. RNow, the biggest question it has to answer is whether or not its capable of morethan just surviving.”); see also Rice, supra note 205 (underscoring broad aspirations Rby players that reach beyond just American game, by quoting player who was partof negotiations, who said that “[s]tarting a culture change in U.S.A. Hockey, that’sultimately at the end of the day what needs to happen to progress and move for-ward. Hopefully, other countries now will kind of follow suit. We’re a model tolook at”).

211. For further discussion of the resolutions of each dispute, see supra notes133–145 and accompanying text. R

212. For further discussion of the resolution of the Women’s Soccer dispute,see supra notes 133–138 and accompanying text. For further discussion of the res- Rolution of the Women’s Hockey dispute, see supra notes 139–145 and accompany- Ring text.

213. For further discussion on why these disputes should be considered tohave achieved “equitable pay,” see supra notes 146–179 and accompanying text. R

214. For further discussion of disparities in compensation that existed be-tween the U.S. Women’s and Men’s National Soccer Teams, see supra notes103–120 and accompanying text. For a discussion on the unfair position that the RWomen’s Hockey Team was in compared to their male counterparts, see supranotes 121–132 and accompanying text. R

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ample, while the Women’s Soccer compensation structure wassalary-based as opposed to the Men’s Team’s “bonus-centric”model, there were still glaring disparities related to the compensa-tion and benefits they received from the Federation.215

The disparities present between compensation for the Wo-men’s and Men’s National Hockey Teams took on a different formbecause of the contractor-independent contractor relationship theHockey Team had with USA Hockey compared to the employee-employer relationship in the case of the Soccer Team.216 USAHockey compensated Men’s and Women’s National players equally,but there was a glaring disparity in the fairness of how they werecompensated because of the lack of a stable professional league tofall back on, among other disparities in treatment by USAHockey.217 Each Team threatened to boycott major events as lever-age during their negotiations, but in the end only the Hockey Teamwas able to establish a true threat of boycott.218

The players found themselves, and their sports, in much im-proved situations after each team agreed to their new deals.219 Ontop of agreeing to more equitable compensation, each deal in-cluded provisions for the governing bodies to further assist in thegrowing of each game.220 Along with continued proactivity by deci-sion-makers in each league, such provisions will allow each game togrow domestically, creating further opportunity for players across abreadth of levels to play professionally and make money doing so,

215. For further discussion of the different compensation models that theWomen’s and Men’s Soccer Teams had with the Federation, see supra notes103–120 and accompanying text. R

216. For further discussion of the legal distinction between the independentcontractor relationship and the employer-employee relationship, see supra notes42–48 and accompanying text. For further discussion of why the Hockey Team Rwas considered an “independent contractor” during its dispute, see supra notes65–68 and accompanying text. R

217. For further discussion on the instability of the NWHL compared to theNHL, see supra notes 122–124 and accompanying text. R

218. For further discussion of why the Hockey Team was able to boycottwhere the Soccer Team could not, see supra notes 85–87 and accompanying text. R

219. For further discussion of the resolution of the Women’s Soccer dispute,see supra notes 148–167 and accompanying text. For further discussion of the im- Rproved compensation for the Women’s Hockey Team following the resolution oftheir dispute, see supra notes 168–179 and accompanying text. R

220. For further discussion of how the Women’s Soccer deal stands to helpwith the growth of NWSL, see supra notes 184–188 and accompanying text. For Rfurther discussion of how the Women’s Hockey deal will help to continue growingtheir game domestically, see supra notes 189–191 and accompanying text. R

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while assuring the National Teams will continue their traditions ofexcellence by being composed of the sports’ greatest talents.221

Continued successes and revenues therefrom should put eachof the teams in an even better bargaining position for their nextdeals, and bring each sport closer to true “equal pay” in comingyears.222 Achieving this success has not been easy up to this point,nor will it start to become any easier over the next several years, butwith increased willingness by new parties like the New Jersey Devilsin the case of the NWHL, and with further gains such as thosemade by increasing the minimum salary in the NWSL, change ispossible.223 In any event, there should at least be no more questionover “equal work” being performed in the case of the Women’s Soc-cer Team, as the Men’s National Team recently failed to qualify fortheir World Cup for the first time since 1986, while the Women areodds on favorites to repeat as champions of their World Cup in2019.224

Patrick C. Coyne*

221. For further discussion on the idea of a positive feedback loop being es-tablished to help foster growth in each game, see supra notes 194–196 and accom- Rpanying text.

222. For further discussion on improved bargaining positions for each teamin the future, see supra notes 192–196 and accompanying text. R

223. For further discussion on the steps that have been taken so far to im-prove conditions of professional leagues in each sport, see supra notes 204–208 Rand accompanying text.

224. See Ronald Blum, U.S. Men Fail to Qualify for World Cup for First Time Since1986, CHI. TRIB. (Oct. 10, 2017, 11:41 PM), http://www.chicagotribune.com/sports/soccer/ct-us-fails-to-qualify-for-world-cup-20171010-story.html (describinghow Men’s National Team’s loss to ninety-ninth ranked Trinidad and Tobago en-ded streak of making seven straight World Cups when team only needed tie toqualify); World Cup Future Odds, VEGASINSIDER (May 10, 2017), http://www.vegasin-sider.com/soccer/story.cfm/story/1795157 [https://perma.cc/4HNU-S2UK](listing odds to win 2018 FIFA Men’s World Cup and 2019 FIFA Women’s WorldCup, and listing USA Women’s Team as two-to-one favorites to win outright in2019).

* J.D. & M.B.A. Candidate Class of 2019, Villanova University Charles WidgerSchool of Law; B.A. in International Studies, Boston College, 2016.

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1

STANDING TO KNEEL: ANALYZING NFL PLAYERS’ FREEDOM TO

PROTEST DURING THE PLAYING OF THE U.S. NATIONAL ANTHEM

Marc Edelman* On September 22, 2017, U.S. President Donald Trump held a campaign

rally in Huntsville, Alabama, where he suggested that the National Football League (NFL) should “fire” all players who politically protest during the playing of the U.S. national anthem (“the national anthem”).1 President Trump then followed his statements with a series of tweets in which he declared that, if the NFL continued to allow its players to protest during the national anthem, the U.S. government should take away the league’s “massive tax breaks.”2

* Professor Marc Edelman (Marc@MarcEdelman.com) is a tenured Professor of Law at the Zicklin School of Business, Baruch College, City University of New York. He is also an adjunct professor at Fordham University School of Law and a columnist for Forbes SportsMoney. Professor Edelman advises numerous businesses on legal issues related to antitrust, gaming, intellectual property, and sports law. 1. Julie Hirschfeld Davis & Jonathan Martin, At Alabama Rally, Trump Toggles Between Republican Loyalists, N.Y. TIMES (Sept. 22, 2017), https://www.nytimes.com/ 2017/09/22/us/politics/trump-luther-strange-alabama.html [https://perma.cc/9Y43-Q8M3]; see also Mark Maske, NFL Owners Could Change Anthem Policy Next Season If Protests Continue, WASH. POST (Nov. 21, 2017), https://www.washingtonpost.com/news/ sports/wp/2017/11/21/nfl-owners-weighing-change-to-anthem-policy-for-next-season-if-protests-continue [https://perma.cc/AJ56-HSRY] (noting that President Trump specifically stated during his speech that NFL owners “should fire any player who protested during the anthem,” and referred to a protesting player as a being a “son of a bitch”). See generally Jenna Johnson, ‘I Love Alabama—It’s Special’: At Rally for Sen. Luther Strange, Trump Vents Frustrations in Rambling Speech, WASH. POST (Sept. 23, 2017), https://www.washingtonpost.com/news/post-politics/wp/2017/09/23/i-love-alabama-its-special-at-rally-for-sen-luther-strange-trump-vents-frustrations-in-rambling-speech [http://perma.cc/C23E-D3ZM] (noting the city of President Trump’s speech as Huntsville, Alabama). 2. Ylan Mui, Trump Threatens to End NFL’s ‘Massive Tax Breaks’ but His Tax Plan Would Be Great for Sports Teams, CNBC (Oct. 10, 2017, 2:56 PM), https://www.cnbc.com/ 2017/10/10/trump-threatens-to-end-nfls-massive-tax-cuts-but-theres-a-huge-one-in-his-tax-plan.html [https://perma.cc/92M9-BE9M]; see also Maske, supra note 1. Subsequent to these tweets, the White House clarified that when President Trump referenced “massive tax breaks,” he was actually “referring to public subsidies for sports stadiums.” Tracy Jan, Did Trump’s Tweet Make It Safer for NFL Players to Kneel for the Anthem?, WASH. POST (Oct. 15, 2017), https://www.washingtonpost.com/business/economy/did-trumps-tweet-make-it-safer-for-nfl-players-to-kneel-for-the-anthem/2017/10/15/d99f20ca-af44-11e7-a908-a3470754bbb9_story.html [https://perma.cc/PWM4-2FJN]; cf. Marc Edelman, Sports and the City: How to Curb Professional Sports Teams’ Demands for Free Public Stadiums, 6

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Since President Trump threatened financial harm to NFL owners, the NFL teams have cut at least two protesting players—former Green Bay Packers tight end Marcellus Bennett and former Dallas Cowboys defensive end Damontre Moore.3 In addition, none of the thirty-two NFL team owners have signed free agent quarterback Colin Kaepernick—the player who spearheaded the NFL players’ recent political protests.4

This Article analyzes whether an NFL player who protests during the national anthem has any legal recourse if he is fired—or not hired—as a result of his political protests. Part I of this Article describes the history of NFL players engaging in political protests during the national anthem. Part II explores whether the firing of an NFL player for his political protests would violate the player’s constitutional right to free speech. Finally, Part III discusses whether the firing—or not hiring—of an NFL player for his political protests would violate the player’s rights under the terms of the league’s collective bargaining agreement.

I. NFL PLAYER PROTESTS DURING THE NATIONAL ANTHEM

Although commercial sporting events in the United States operate primarily within the private sector, most contest organizers incorporate certain patriotic traditions, such as the playing of the national anthem, into their events.5 These patriotic traditions allow for professional athletes to

RUTGERS J.L. & PUB. POL’Y 35 (2008) (discussing sports teams’ demands for free public stadiums and measures that Congress could implement to curb such public funding). 3. See Packers Cut TE Martellus Bennett, FOX SPORTS (Nov. 9, 2017, 10:18 AM), https://www.foxsports.com/wisconsin/story/green-bay-packers-cut-martellus-bennett-110817 [https://perma.cc/2NHD-4SS2] (explaining that Packers management cited a failure to disclose a physical injury as their reason for releasing Martellus Bennett); Ari Gilberg, Cowboys Cut Damontre Moore, Who Raised Fist at End of Anthem, N.Y. DAILY NEWS (Oct. 25, 2017, 7:27 PM), http://www.nydailynews.com/sports/football/giants/cowboys-cut-damontre-moore-raised-fist-anthem-article-1.3588976 [https://perma.cc/V4PL-CZFZ] (discussing the Dallas Cowboys’ decision to cut defensive end Damontre Moore). 4. See Valerie Richardson, NFL Take-a-Knee Protests Make Comeback as 19 Players Refuse to Stand for Anthem, WASH. TIMES (Nov. 26, 2017), https://www.washingtontimes.com/news/2017/nov/26/nfl-take-knee-protests-make-comeback/ [https://perma.cc/P778-BK4Q]; see also Christopher L. Gasper, No Reason to Pass on Kaepernick, BOS. GLOBE, Nov. 19, 2017, at C1 (explaining that Kaepernick has not been able to find a new NFL team since he “knelt during the national anthem last season to protest police brutality and social injustice”). In response to the sudden lack of interest in his service, Kaepernick has filed a labor grievance against the NFL, alleging that the league’s thirty-two teams colluded not to sign him this past season. See Evan Grossman & Leonard Greene, Colin Kaepernick Files Grievance Alleging Collusion by NFL Owners, N.Y. DAILY NEWS (Oct. 15, 2017, 11:07 PM), http://www.nydailynews.com/sports/football/colin-kaepernick-files-grievance-alleging-collusion-nfl-owners-article-1.3565129 [https://perma.cc/8QTL-8SWN] (discussing the specifics of the collusion complaint that Kaepernick filed against the thirty-two NFL teams); see also Mark Maske, Colin Kaepernick’s Attorneys Seek Deposition of Roger Goodell in Collusion Grievance, WASH. POST (Nov. 5, 2017), https://www.washingtonpost.com/news/sports/wp/2017/11/05/colin-kaepernicks-attorneys-seek-deposition-of-roger-goodell-in-collusion-grievance [https://perma.cc/2BLN-US9X] (noting that attorneys for Kaepernick seek to depose NFL Commissioner Roger Goodell and various NFL team owners as part of their collusion grievance); Gasper, supra (arguing that the NFL is “collectively boycotting Kaepernick”). 5. See infra notes 6–10 and accompanying text.

2018] STANDING TO KNEEL 3

showcase their national pride. However, these traditions also unintentionally invite athletes to engage in political protests. Part I.A provides a brief history of playing the Star-Spangled Banner at U.S. sporting events, as well as the way in which U.S. professional athletes have responded to the anthem’s playing. Part I.B looks at the NFL’s practice of playing the national anthem before games, and NFL players’ responses to that practice.

A. Brief Historic Overview

Most U.S. sporting events today begin with the playing of our national anthem, the Star-Spangled Banner.6 Historians trace this tradition back to Major League Baseball’s 1918 World Series, when the Boston Red Sox played the Chicago Cubs.7 During the seventh inning of “a particularly depressing Cubs game,” a military band appeared on the Cubs’ home field and offered its rendition of the Star-Spangled Banner.8 The band’s performance energized both fans and players alike, with players on both teams turning toward the flag and offering military salutes.9

Other professional sports teams took notice and, by the end of World War II, most U.S. sports teams had adopted the practice of playing the Star-Spangled Banner before the start of each game.10 For some athletes, such as former Red Sox third baseman Fred Thomas, the pregame rendition of the national anthem invoked a feeling of camaraderie and patriotism.11 For others, the feelings were more equivocal.12 Meanwhile, for a very small

6. See Becky Little, Why the Star-Spangled Banner Is Played at Sporting Events, HISTORY (Sept. 25, 2017), http://www.history.com/news/why-the-star-spangled-banner-is-played-at-sporting-events [https://perma.cc/V8LM-CN2P] (discussing the history of playing the Star-Spangled Banner at professional sports games). 7. See Avi Selk, How the National Anthem—and Subverting It—Became a Pregame Tradition in America, WASH. POST (Sept. 24, 2017), https://www.washingtonpost.com/ news/retropolis/wp/2017/09/24/how-the-national-anthem-and-subverting-it-became-a-pregame-tradition-in-america/?utm_term=.7f3300d80774 [https://perma.cc/76AM-JDCF]; see also Little, supra note 6 (explaining that, at the time, the Star-Spangled Banner had not yet even officially become the national anthem). But see Olivia B. Waxman, Here’s How Standing for the National Anthem Became Part of U.S. Sports Tradition, TIME (Sept. 25, 2017), http://time.com/4955623/history-national-anthem-sports-nfl [https://perma.cc/5J5L-B6ND] (linking the earliest example of the playing of the Star-Spangled Banner at a baseball game back to a game played in Brooklyn on May 15, 1862). 8. Selk, supra note 7. 9. Id. (describing how the band’s performance of the Star-Spangled Banner led Fred Thomas, the Boston Red Sox third baseman and a Navy veteran, to launch into a military salute that was followed by other players and fans who sang along and burst into applause). 10. See Little, supra note 6 (explaining that, “by the end of World War II, NFL Commissioner Elmer Layden ordered [the Star-Spangled Banner] be played at every football game”). 11. See Selk, supra note 7 (describing how Fred Thomas launched into a military salute during the Star-Spangled Banner at Game Three of the 1918 World Series). 12. See Stephen Hewitt, Indifferent Reaction to NFL’s Anthem Memo in Patriots Locker Room, BOS. HERALD (Oct. 10, 2017), http://www.bostonherald.com/sports/patriots/the_blitz/ 2017/10/indifferent_reaction_to_nfls_anthem_memo_in_patriots_locker_room [https://perma.cc/2R2P-MTK6] (describing one New England Patriots player as “sound[ing] indifferent” about being required to stand for the national anthem).

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minority of athletes, the playing of the national anthem invoked a feeling of anger and the desire to protest.13

Perhaps the most prominent case of athletes protesting during the national anthem occurred during the 1968 Summer Olympics in Mexico City, Mexico.14 There, Black-American sprinters Tommie Smith and John Carlos turned their backs to the American flag and raised their fists to protest racial injustice as the national anthem played.15 In the immediate aftermath of their protest, both athletes were ostracized by the U.S. sporting community and received death threats.16 However, over time, much of this anger faded. Tommie Smith thereafter played a season as a wide receiver on the NFL’s Cincinnati Bengals, and later he became an assistant coach for basketball and track at Oberlin College and an esteemed member of his local community.17 Meanwhile, John Carlos went on to become a high school track coach, in-school suspension supervisor, and school counselor.18

Another, somewhat less publicized, athlete protest to the national anthem took place in March 1996 when Denver Nuggets basketball player Mahmoud Abdul-Rauf refused to stand for the anthem because he claimed the tenets of his Islamic religion disallowed “nationalistic ritualism.”19 At around the same time, Abdul-Rauf also described the American flag as “a symbol of oppression that went against his Muslim beliefs.”20 At first, the National Basketball Association suspended Abdul-Rauf indefinitely from

13. See Selk, supra note 7; see also Patrick Strickland, ‘Take a Knee’ Anti-Racist Protests Move Beyond the NFL, AL JAZEERA (Oct. 20, 2017), http://www.aljazeera.com/ news/2017/10/knee-anti-racist-protests-move-nfl-171019153538456.html [https://perma.cc/ MT46-SAQJ] (discussing the long history of protests in sports, especially among Black Americans, as “a platform for social justice activism”); Zach Johnk, National Anthem Protests by Black Athletes Have a Long History, N.Y. TIMES (Sept. 25, 2017), https://www.nytimes.com/2017/09/25/sports/national-anthem-protests-black-athletes.html [https://perma.cc/R9FR-YSWZ] (discussing the history of Black athletes protesting during the national anthem). 14. See Selk, supra note 7. 15. See id. 16. See David Davis, Olympic Athletes Who Took a Stand, SMITHSONIAN, https://www.smithsonianmag.com/articles/olympic-athletes-who-took-a-stand-593920/ [https://perma.cc/ZKR4-W6K2]. 17. See Alicia Smith-Tran, After Tommie Smith Took a Stand at the 1968 Olympics, He Took His Place as a Coach at Oberlin, OBERLIN ALUMNI MAG., Spring 2016, at 16 http://www2.oberlin.edu/alummag/spring2016/issue/html5forwebkit.html?page=16 [https://perma.cc/6NBY-XSQR]; see also John Fay, Anthem Protest at ‘68 Olympics Rocked the Nation: A Year Later, the Bengals Signed Tommie Smith, WCPO (Sept. 25, 2017, 12:47 PM), https://www.wcpo.com/news/insider/fay-anthem-protest-at-68-olympics-rocked-the-nation-a-year-later-the-bengals-signed-tommie-smith [https://perma.cc/AUZ5-APF8]. 18. Biography, JOHN CARLOS, http://www.johncarlos68.com/wp-content/uploads/2015/ 10/john-carlos-biography.pdf [https://perma.cc/6BUS-7KNX] (last visited Jan. 6, 2018). 19. Assoc. Press, Unmoved by Suspension, Abdul-Rauf Still Won’t Stand, ATLANTA J. & CONST., Mar. 14, 1996, at E5; see also Cindy Boren, Mahmoud Abdul-Rauf on Colin Kaepernick: ‘The Same Thing Happened to Me,’ WASH. POST (Jun. 26, 2017), https://www.washingtonpost.com/news/early-lead/wp/2017/06/26/as-his-own-national-anthem-protest-continues-mahmoud-abdul-rauf-says-the-nfl-is-blackballing-colin-kaepernick [https://perma.cc/M5CL-3TP9]. 20. See Boren, supra note 19.

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the league.21 However, after Abdul-Rauf missed one game under this suspension, a compromise solution was reached: Abdul-Rauf agreed to stand while praying with his head down during the playing of the anthem.22

B. NFL Anthem Policies and Political Protests

Whereas professional baseball and basketball players have historically stood at attention during the national anthem, until 2009 NFL players remained in the locker room.23 Then, nine years ago, NFL team owners changed their policy.24 The new NFL policy states that the national anthem “must be played prior to every NFL game.”25 The new policy, which appears in the NFL’s operating manual, also states that players “should stand at attention” during the anthem and “face the flag, hold helmets in their left hand and refrain from talking.”26

Although the NFL’s new national anthem policy does not appear anywhere in the league’s Collective Bargaining Agreement (CBA),27 there also is no public evidence of any players objecting to the policy change in 2009. However, during the 2016 NFL preseason, former San Francisco 49ers (“49ers”) quarterback Kaepernick captured media attention—both positive and negative—when he decided to kneel during the national anthem to protest police brutality against Black Americans.28 Kaepernick, who served as the starting quarterback for the 49ers during their 2012 to 2013 National Football Conference Championship season, hoped that his protests would bring attention to police officers’ disproportionate shooting of Black people in the United States.29 While it is uncertain whether Kaepernick’s protests ever fully accomplished their desired result, it is

21. See Jesse Washington, Still No Anthem, Still No Regrets for Mahmoud Abdul-Rauf, UNDEFEATED (Sept. 1, 2016), https://theundefeated.com/features/abdul-rauf-doesnt-regret-sitting-out-national-anthem [https://perma.cc/5X2D-A9VZ]. 22. See id. 23. See Maske, supra note 1. 24. Yaron Steinbuch, NFL May Tweak Rules to Make Players Stand for Anthem, N.Y. POST (Oct. 10, 2017), https://nypost.com/2017/10/10/nfl-may-tweak-rules-to-make-players-stand-for-anthem/ [https://perma.cc/9NKY-4PWA]. 25. Id. 26. Id. 27. See infra Part III. 28. See Gasper, supra note 4; Richardson, supra note 4; see also Sonja Bochow, Black Army Ranger Won’t Accept Colin Kaepernick’s Actions Against U.S. Anthem—Gives This Advice . . ., RIGHT WING NEWS (Aug. 27, 2016), http://rightwingnews.com/military/black-army-ranger-wont-accept-colin-kaepernicks-actions-u-s-anthem-gives-advice/ [https://perma.cc/PSQ2-VWU4] (quoting Kaepernick as stating that “I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color”). 29. See Strickland, supra note 13 (explaining that American police officers killed at least 1093 people in 2016, with almost 25 percent of those individuals being Black even though Black people make up roughly 12 percent of the U.S. population); see also Earl Ufari Hutchinson, Commentary: Kaepernick’s Sit-Down Aside, the Case of Whether to Stand for the National Anthem, CHI. TRIB. (Aug. 30, 2016, 8:25 AM), http://www.chicagotribune.com/ news/opinion/commentary/ct-colin-kaepernick-anthem-sit-down-blacks-stand-perspec-0830-jm-20160829-story.html [https://perma.cc/WVP3-5R2L] (opining that “Kaepernick showed guts in telling the world that he would not stand because of the continued abuse and killing of blacks by law enforcement officials”).

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undeniable that, by protesting, he angered certain segments of the U.S. military and police communities.30

Although Kaepernick was initially the only NFL player to kneel during the national anthem, a few other players soon began to join him.31 By the start of the 2016 NFL regular season, 49ers safety Eric Reid, Seattle Seahawks cornerback Jeremy Lane, and Denver Broncos linebacker Brandon Marshall had emulated Kaepernick’s kneeling posture during the national anthem.32 Then, on September 19, 2016, others, including Philadelphia Eagles safety Malcolm Jenkins, joined the protest movement.33 Yet, rather than kneel during the national anthem, Jenkins and others raised their fists in the air much like Tommie Smith and John Carlos had done during the 1968 Olympics.34

Several other Black football players also began to protest following the November 8, 2016 election of President Donald Trump—a law-and-order candidate who has a poor relationship with the Black community.35 Meanwhile, before the 2017 NFL regular season, other players began to protest based on numerous grounds including: Black NFL player Michael Bennett’s accusations that he had been a victim of police brutality,36 the death of a human rights protester during an August 2017 White supremacist rally in Charlottesville, Virginia,37 and President Trump’s overzealous attempts to use social media to insult many of the earliest NFL protesters.38

30. See generally Bochow, supra note 28 (explaining one Black army ranger’s disagreement with Kaepernick’s position on standing for the national anthem). 31. See Mark Sandritter, A Timeline of Colin Kaepernick’s National Anthem Protest and the Athletes Who Joined Him, SB NATION (Sept. 25, 2017, 10:28 AM), https://www.sbnation.com/2016/9/11/12869726/colin-kaepernick-national-anthem-protest-seahawks-brandon-marshall-nfl [https://perma.cc/95AU-S9CQ]. 32. Id.; see also Nicki Jhabvala, Broncos’ Brandon Marshall Kneels During National Anthem in Tampa Bay, DENV. POST (Oct. 3, 2016, 2:06 PM), https://www.denverpost.com/ 2016/10/02/broncos-brandon-marshall-national-anthem-buccaneers/ [https://perma.cc/3FRQ-ZG6R]. 33. T.J. Neer, Philadelphia Eagles Safety and Former OSU Football Player Malcolm Jenkins Joins Anthem Protests, LANTERN (Oct. 6, 2016), https://www.thelantern.com/ 2016/10/philadelphia-eagles-safety-and-former-osu-football-player-malcolm-jenkins-joins-anthem-protests-colin-kaepernick-nfl-national-anthem-pittsburgh-steelers-chicago-bears/ [https://perma.cc/RD9M-935V]. 34. See id. 35. See, e.g., Des Bieler, Bucs’ Mike Evans Kneels During Anthem to Protest Donald Trump’s Election Victory, WASH. POST (Nov. 13, 2016), https://www.washingtonpost.com/ news/early-lead/wp/2016/11/13/bucs-mike-evans-kneels-during-anthem-to-protest-donald-trumps-election-victory [https://perma.cc/T95J-ZNYV] (explaining that Tampa Bay Buccaneers wide receiver Mike Evans was the first NFL player to explicitly link his protests to Donald Trump’s election). 36. See Jarrett Bell, Michael Bennett’s Police Incident Illustrates Reason for Protests, USA TODAY (Sept. 6, 2017, 8:15 PM), https://www.usatoday.com/story/sports/nfl/columnist/ bell/2017/09/06/michael-bennett-police-incident-protest-seattle-seahawks/640041001/ [https://perma.cc/RST5-HTXB] (describing how the alleged police brutality against Michael Bennett reinforced the true reasoning for the NFL player protests). 37. See Ryan Wilson, First White NFL Player to Kneel During National Anthem Explains His Decision, CBS SPORTS (Aug. 22, 2017), https://www.cbssports.com/nfl/news/ first-white-nfl-player-to-kneel-during-national-anthem-explains-his-decision [https://perma.cc/EQB3-5VVB] (explaining that Seth DeValve, a 2016 fourth-round draft

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As recently as November 28, 2017, twenty-four NFL players continue to either kneel or lift their fists to protest police brutality and racial injustice during the national anthem.39 One such protestor is Tennessee Titans wide receiver Rishard Matthews—a player whose father and brother were both U.S. Marines, and whose brother tragically died while fighting for his country in Afghanistan.40 Although these protests remain highly controversial in their substance, the protests have always been nonviolent in nature, and they have never implied any hatred or disrespect for the United States.

II. NFL PLAYER PROTESTS AND THE U.S. CONSTITUTION

As President Trump has attempted to use strong-arm tactics to quell NFL players’ protests during the national anthem, many have wondered if NFL players have a legal cause of action if they are fired—or not hired—based on their political protests.41

Greatly oversimplified, there are at least two types of legal protections that may attach to NFL players who engage in political protests during the national anthem: those that arise under constitutional law and those that arise under the terms of the NFL CBA.42 This Part analyzes whether constitutional law protects an NFL player from being fired—or not hired—based on his expression of political protests during playing of the national anthem. Part II.A provides an overview of the First Amendment’s Free Speech Clause, including the notion that only “state actors” must not

pick from Princeton University, became the first White player to kneel during the national anthem in response to the race-based attacks on protesters in Charlottesville, Virginia). 38. See Benjamin Hoffman, Victor Mather & Jacey Fortin, After Trump Blasts N.F.L., Players Kneel and Lock Arms in Solidarity, N.Y. TIMES (Sept. 24, 2017), https://www.nytimes.com/2017/09/24/sports/nfl-trump-anthem-protests.html [http://perma.cc/9D3P-GB24] (explaining that on Sunday, September 22, 2017, “N.F.L. players across the country demonstrated during the national anthem . . . in a show of solidarity against President Trump, who scolded the league and players on Twitter [for earlier protests]”). 39. See Cindy Boren, Trump Tweets that NFL Is ‘Weak and out of Control’ Because of Players’ National Anthem Demonstrations, WASH. POST (Nov. 28, 2017), https://www.washingtonpost.com/news/early-lead/wp/2017/11/28/trump-tweets-that-nfl-is-weak-and-out-of-control-because-of-players-national-anthem-demonstrations [https://perma.cc/4LHT-AE7Y]; Jan, supra note 2. 40. See Jan, supra note 2 (noting that, despite the claims by President Donald Trump that kneeling during the national anthem is disrespectful to the U.S. military, among the players who continue to kneel in protest to racial injustice include Rishard Matthews, a player whose father is a Marine and whose brother died in Afghanistan in 2015). 41. See id. (addressing whether any freedom of speech grounds exist that would protect NFL players’ protest rights); see Des Bieler, Michael Bennett Says He’ll Continue to Sit During Anthem Despite NFL’s Preference, WASH. POST (Oct. 18, 2017), https://www.washingtonpost.com/news/early-lead/wp/2017/10/18/michael-bennett-says-hell-continue-to-sit-during-anthem-despite-nfls-preference [https://perma.cc/7B86-4JUC] (quoting NFL owner and Fordham University School of Law graduate John Mara as conceding that “one of the things our forefathers fought and died for, and that continues to be a principle that’s very important to most of us” is the right to protest). 42. See infra Part III.

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infringe free speech rights. Part II.B then discusses whether terminating an NFL player for protesting would constitute “state action.”

A. An Overview of the First Amendment Right to Free Speech

Under constitutional law, the strongest argument that certain NFL players enjoy a protectable right to protest comes from the Free Speech Clause of the First Amendment to the U.S. Constitution.43 In pertinent part, the First Amendment states that the government cannot engage in “abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”44

As explained by the U.S. Supreme Court in Texas v. Johnson,45 the term “speech,” as referenced in the U.S. Constitution, includes not only the spoken or written word, but also conduct with sufficient communicative elements to constitute expression.46 For example, the U.S. Supreme Court has held that both wearing black armbands to protest American military involvement in the Vietnam War47 and burning the American flag constitute forms of “speech.”48 Thus, kneeling or lifting a fist during the national anthem would likewise meet today’s Constitutional definition of “speech.”49

Nevertheless, the First Amendment does not protect all employees who are terminated based upon their speech.50 The First Amendment simply prohibits a state actor from limiting an employee’s right to speak on matters of public concern, so long as the employee’s interest in speaking is not outweighed by a substantial interference to the workplace.51 A private employer is typically not a state actor. Thus, a private employer typically would not have any constitutional obligation to afford its employees free speech rights unless there is a nexus between the private employer’s actions and the government.52

43. See U.S. CONST. amend. I. 44. Id. 45. 491 U.S. 397 (1989). 46. Id. at 404. 47. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 514 (1969). 48. Johnson, 491 U.S. at 420. 49. See supra notes 45–48 and accompanying text. 50. See infra notes 51–52 and accompanying text. 51. See Waters v. Churchill, 511 U.S. 661, 673 (1994) (noting, for example, that “a public employer may, consistently with the First Amendment, prohibit its employees from being ‘rude to customers,’ a standard almost certainly too vague when applied to the public at large”). 52. See Mary Becker, How Free Is Speech at Work?, 29 U.C. DAVIS L. REV. 815, 842 (1996) (stating that “[t]he Free Speech Clause of the First Amendment protects only against state action and thus affords no protection when private employers retaliate against private employees for speech”); see also Wickersham v. City of Columbia, 481 F.3d 591, 598 (8th Cir. 2007) (finding that a “close nexus” with state action—a private actor that acts under the color of state law—renders a private employer into a state actor).

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B. Is Terminating NFL Players for Protesting a Form of “State Action?”

To determine whether firing a protesting NFL player constitutes a form of state action, one must look at whether there exists a sufficient nexus between the player’s NFL employer and government activity.53 The simple, gut reaction to that question is there probably is not such a nexus. However, upon more careful analysis, one could construe two potential arguments for why an NFL team’s firing—or not hiring—of a political protester may constitute state action.

The first potential argument is that some NFL teams play their games in publicly-owned stadiums or, at least, in stadiums that are greatly subsidized by municipal governments.54 In the 1978 decision of Ludtke v. Kuhn,55 the Southern District of New York held that New York City’s ownership rights over the lease to Yankee Stadium transformed the Yankees’ ban against female reporters in the Yankees Clubhouse from a private employer action into state action under the Equal Protection Clause of the Fifth and Fourteenth Amendments.56 Based on this conclusion, there is at least some precedent, albeit under different clauses of the Constitution, to tie stadium ownership and funding to state action.57

Alternatively, and perhaps far more compellingly, President Trump’s repeated statements that threaten to remove “massive tax breaks” from NFL teams unless they “fire” protesting players also may amount to state action by the executive branch to curb political speech, applied through the instrumentality of the NFL team owners.58 Indeed, in the 1963 Supreme Court decision Bantam Books, Inc. v. Sullivan,59 the Court found state action where a government entity used the “threat of invoking legal

53. See supra notes 51–52 and accompanying text. 54. See Ludtke v. Kuhn, 461 F. Supp. 86, 93–96 (S.D.N.Y. 1978) (holding that a professional sports team that receives municipal aid toward the costs of use of a publicly-owned stadium engages in “public action” when it denies female reporters access to the team’s clubhouse facilities located within the stadium); see also Burton v. Wilmington Parking Auth., 365 U.S. 715, 722 (1961) (explaining that there is no rigid yardstick to determine whether state action in a given case exists, and that “[o]nly by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance”). 55. 461 F. Supp. 86 (S.D.N.Y. 1978). 56. Id. at 95. 57. Nevertheless, the situation here is not fully analogous to the situation in Ludtke. There, a public entity technically owned the facility in which the female reporter wished to gain access but, here, there is no bona fide argument that a public entity actually owns or controls any NFL team. See id. While the analogy with Ludtke might be very compelling if an NFL team sought to ban a player from a sports facility based on his political speech, the analogy is perhaps useful, but somewhat imperfect, where the underlying conduct in question entails the firing of a worker rather than denying facility access. 58. See Jan, supra note 2 (quoting legal scholars—including myself, American University law professor N. Jeremi Duru, and American Civil Liberties Union’s national legal director David Cole—for the position that President Trump’s efforts to financially bully the NFL teams into punishing players for protesting could constitute state action, giving rise to the claim of protection under the First Amendment). 59. 372 U.S. 58 (1963).

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sanctions and other means of coercion, persuasion, and intimidation” to induce private entities to act in a way that chills free speech rights.60 Subsequently, in Playboy Enterprises v. Meese III,61 the District Court for the District of Columbia similarly recognized that the federal government engages in state action that may violate the First Amendment where the government takes actions to facilitate private actors’ ability to blacklist private third parties.62 Based on these two decisions, one can make a reasonable argument that President Trump’s threat to strip “massive tax breaks” from team owners who allow players to protest the anthem serves as a form of “threat of invoking legal sanctions” that violates protesting NFL players’ First Amendment rights.

III. NFL PLAYER PROTESTS AND THE NFL COLLECTIVE BARGAINING AGREEMENT

In addition to the constitutional arguments in defense of the protesting NFL players, there is an entirely separate argument that the “firing” or “concerted not hiring” of an NFL player who protests during the national anthem gives rise to a cause of action. Namely, such firing or concerted not hiring may violate a player’s labor rights under the NFL’s CBA.63 In certain respects, the NFL players’ rights under the NFL CBA are more limited than similar rights under the U.S. Constitution.64 For example, the CBA does not necessarily protect all forms of speech that would be protected for public employees under constitutional free speech principles.65 Yet, in other respects, a claim of wrongful “firing” or “concerted not hiring” under the CBA is broader in scope because it would not require a player bringing a labor grievance under the CBA to prove state action.66

Part III.A provides an overview of federal labor law and the NFL CBA. Part III.B addresses protections in the NFL CBA that are relevant to protesting NFL players. Part III.C addresses whether firing an NFL player for protesting during the national anthem would violate the NFL CBA. Finally, Part III.D addresses whether not hiring an NFL player who

60. Id. at 67. 61. 746 F. Supp. 154 (D.D.C. 1990). 62. See id. at 156 (recognizing that the federal government’s creating of a list of stores that distribute what it considers pornographic material could violate the First Amendment if the list is intended to serve an “unconstitutional motive” such as the facilitation of a private boycott of these stores). 63. See infra Part III.A–D. For a full and current version of the NFL CBA, see NAT’L FOOTBALL LEAGUE, COLLECTIVE BARGAINING AGREEMENT (Aug. 4, 2011), https://nfllabor.files.wordpress.com/2010/01/collective-bargaining-agreement-2011-2020.pdf [https://perma.cc/T7GL-D7E4]. 64. See NAT’L FOOTBALL LEAGUE, supra note 63, at 5 (explaining that the only parties bound by the NFL CBA are the “players, Clubs, the [NFL Players Association], the NFL, and the Management Council,” and thus the NFL CBA does not provide any rights or remedies with respect to non-parties to the agreement). 65. See infra Part III.C–D. 66. See infra Part III.A.

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previously protested during the national anthem would violate the NFL CBA.

A. An Overview of Labor Law and the NFL Collective Bargaining Agreement

In the United States, most workers are “at-will” employees.67 “At-will” employees may be fired by their employer at any time for any reason or no reason at all.68 Under the National Labor Relations Act, however, employees in a unionized workplace enjoy the right to bargain collectively with their employees over “mandatory terms and conditions of bargaining”—hours, wages, and working conditions.69 Employers also must bargain over disciplinary procedures, including terms for terminating workers based on cause.70

Although it is often presumed that employees in the United States unionize primarily for purposes of obtaining higher salaries, in reality, unionized workers may benefit most from the opportunity to garner both substantive and procedural protections against being terminated.71 Indeed, unionized employees often represent some of the most difficult employees in the private workforce to legally terminate.72

67. See Kathleen C. McGowan, Note, Unequal Opportunity in At-Will Employment: The Search for a Remedy, 72 ST. JOHN’S L. REV. 141, 142 (1998). 68. See id. at 142 (stating that “most employees are at-will, which means they can be terminated by their employer any time, for any reason or for no reason”); see also Wendy L. Stasell, How Far Is the Boss’s Reach, ABA J., Dec. 2000, at 32 (explaining that “[a]n at-will employee can be fired for any reason, so long as the termination does not violate some other law, such as nondiscrimination or whistleblower statutes”). 69. See Marc Edelman, The Future of College Athletes Players Unions: Lessons Learned from Northwestern University and Potential Next Steps in the College Athletes’ Rights Movement, 38 CARDOZO L. REV. 1627, 1630 & n.7 (2017) (“Although parties are free to bargain about any legal subject, Congress has limited the mandate or duty to bargain to matters of ‘wages, hours, and other terms and conditions of employment.’” (first quoting First Nat’l Maint. Corp. v. NLRB, 452 U.S. 666, 674 (1981); then quoting 29 U.S.C. § 158(d) (2012))). 70. HARRY C. KATZ ET AL., AN INTRODUCTION TO COLLECTIVE BARGAINING AND INDUSTRIAL RELATIONS 261 (4th ed. 2008) (explaining that when employers implement discipline only for just cause, employees gain freedom from “arbitrary discipline, discharge, or denial of benefits”); see also Wendi J. Delmendo, Determining Just Cause: An Equitable Solution for the Workplace, 66 WASH. L. REV. 831, 831 (1991) (explaining that a majority of courts recognize that an employer’s promise to discharge an employee only for just cause represents an exception to the typical employment-at-will doctrine that allows the firing of an employee at any time, for any reason, except for an illegal reason). 71. See I’m a Professional. What Can a Union Do for Me?, DEP’T PROF. EMPS., AFL-CIO, http://dpeaflcio.org/survey/what-can-a-union-do-for-me [https://perma.cc/U3PR-EU3L] (last visited Jan. 6, 2018) (explaining that “[u]nions protect workers from arbitrary employer actions relating to discipline and dismissals,” and “[t]hat protection makes jobs better and often leads union members to stay at their jobs longer than non-union workers. Better training, lower turnover and a clear role for workers’ voices in making decisions about how work gets done also mean that unions increase productivity”). 72. See, e.g., The Benefits of Collective Bargaining for Professionals, DEP’T PROF. EMPS., AFL-CIO, http://dpeaflcio.org/programs-publications/issue-fact-sheets/the-benefits-of-collective-bargaining-for-professional-and-technical-workers/ [https://perma.cc/2VBA-6AB8] (last visited Jan. 6, 2018) (explaining that a “union job is not a ‘job for life’” but “a union job does afford employees greater protection against unfair unilateral actions by

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B. Protections in the NFL Collective Bargaining Agreement Relevant to Protesting Players

For most of the past fifty years, the NFL players have participated in a collective bargaining relationship with the league’s thirty-two teams, in which they bargain over their mandatory terms and conditions of employment.73 As part of the CBA, NFL players sign a Standard Player Contract for a term of one or more years.74 During the life of this contract, a team may only remove a player from its roster if his “skill or performance has been unsatisfactory as compared with that of other players competing for positions” or, arguably, if the player has “engaged in personal conduct reasonably judged by [a team] to adversely affect or reflect on [the team].”75 However, language in the CBA, which takes precedence over the NFL Standard Player Contract,76 limits the maximum penalty an NFL team may impose for “conduct detrimental to [an NFL club]” to a four-game suspension and a fine equivalent to one week’s salary.77

In addition, the CBA also includes an “Anti-Collusion” clause, which stipulates that no NFL club shall enter into any agreement with the league or any club as to whether to offer a contract to a particular player.78 Pursuant to the CBA’s “Anti-Collusion” clause, NFL teams are prohibited from jointly imposing discipline on a player and from creating a blacklist of players with whom the teams collectively choose not to negotiate.79

C. Does Firing an NFL Player for Protesting Violate the NFL Collective Bargaining Agreement?

When analyzing the language of the NFL CBA, it is doubtful whether an NFL team may simply “fire” a player who is under contract simply for failing to stand during the national anthem. First, there is not a single reference to the league’s national anthem policy anywhere in the league’s

employers—after all, a workplace dispute has the potential to cost a person their job and, as a result, their livelihood”). 73. See Marc Edelman & Joseph A. Wacker, Collectively Bargained Age/Education Requirements: A Source of Antitrust Risk for Sports Club-Owners or Labor Risk for Players Unions?, 115 PENN ST. L. REV. 341, 341 (2010); see also History, NAT’L FOOTBALL LEAGUE PLAYERS ASS’N, https://www.nflpa.com/about/history [https://perma.cc/APV8-BSC5] (last visited Jan. 6, 2018). 74. See NAT’L FOOTBALL LEAGUE, supra note 63, at 256–64. 75. Id. at 260 (further noting that a “Club may terminate this contract. In addition, during the period any salary cap is legally in effect, this contract may be terminated if, in Club’s opinion, Player is anticipated to make less of a contribution to Club’s ability to compete on the playing field than another player or players whom Club intends to sign or attempts to sign, or another player or players who is or are already on Club’s roster, and for whom Club needs room”). 76. See id. at 5 (stating that “[t]he provisions of [the NFL CBA] supersede any conflicting provisions in the Settlement Agreement, NFL Player Contract, the NFL Constitution and Bylaws, the NFL Rules, or any other document affecting terms and conditions of employment of NFL players”). 77. Id. at 180–86. 78. Id. at 119. 79. See id.

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301-page CBA.80 At best, a team might argue that a player who protests during the national anthem violates a general prohibition against engaging in “conduct detrimental to an NFL club” under the CBA or has engaged in conduct that could be reasonably judged as reflecting negatively on a club under the Standard Player Contract.81 However, even there, such a conclusion is far from certain.

In addition, even if one were to presume that protesting during the national anthem could constitute “conduct detrimental to an NFL club,” there is still a very strong argument that a team could not impose more than a “fine of an amount equal to one week’s salary and/or suspension without pay for a period not to exceed four (4) weeks.”82 The CBA explicitly notes that, in the context of a conflict between language in the CBA and that in the Standard Player Agreement, it is the CBA language that holds superseding weight.83

Furthermore, even if an NFL team were to argue that the NFL’s national anthem policy, which appears in the league operating manual, is referenced by implication in the league’s CBA, the express language included in the NFL’s national anthem policy still does not necessarily impose any mandatory duty on NFL players.84 This is because the language in the NFL’s national anthem policy merely states that players “should stand at attention.”85 It does not state that players must stand.86

D. Does Not Hiring an NFL Player for Protesting Violate the NFL Collective Bargaining Agreement?

Finally, if an unsigned NFL player believes that his lack of employment is due to an agreement among teams not to sign him,87 the player may attempt to allege a violation of the “Anti-Collusion” clause in the CBA.88 At the time of publishing this Article, former NFL quarterback Kaepernick had just filed a labor grievance against the thirty-two NFL teams, alleging that his unemployment resulted from collusion among the thirty-two NFL

80. See generally id. 81. Id. at 180–86, 260. 82. Id. at 181. 83. See id. at 5. 84. See id. (stating that the NFL CBA “represents the complete understanding of the parties on all subjects covered herein” and that “the [NFL Players Association] and the NFL waive all rights to bargain with one another concerning any subject covered or not covered in this Agreement for the duration of this Agreement, including the provisions of the NFL Constitution and Bylaws; provided, however, that if any proposed change in the NFL Constitution and Bylaws could significantly affect the terms and conditions of employment of NFL players, then the NFL will give the [NFL Players Association] notice of and negotiate the proposed change in good faith”). 85. Steinbuch, supra note 24 (noting that language says that teams “must” play the anthem before every game, but only that players “should” stand) (emphasis added). 86. Id. (emphasis added). 87. See NAT’L FOOTBALL LEAGUE, supra note 63, at 119. 88. See id.

14 FORDHAM LAW REVIEW ONLINE [Vol. 86

teams, with U.S. President Donald Trump serving as an “organizing force” behind the collusion.89

For Kaepernick or a similarly-situated player to prevail on a labor grievance of this nature, there would be a need for the grievant to produce actual evidence of an agreement among the NFL teams and not simply evidence of consciously-parallel behavior.90 Gaining such evidence would require the grievant to engage in extensive discovery under the CBA’s internal discovery process.91

CONCLUSION

It is difficult to predict whether a former NFL player who is fired—or not hired—based on his political protests would prevail in a resulting legal challenge. If a former NFL player were to file a lawsuit challenging his termination under the First Amendment, the player’s primary legal obstacle would entail proving that his termination represents “state action,” based on either public ownership of an NFL sports facility or President Trump’s attempt to coerce, persuade, and intimidate the NFL into quashing the player’s political speech. Among these two arguments, the second one—coercion from the U.S. executive branch—seems to provide significantly stronger grounds for finding state action.

In addition, if an NFL player—who is fired for protesting during the national anthem—wanted to bring a labor grievance against his team under the terms of the CBA, that player would need to successfully argue either: (1) his failure to stand at attention during the national anthem was not reasonably detrimental to his NFL club; or (2) his firing for such conduct lies outside of the permissible range of sanctions allowed under the CBA. 92

Finally, if a protesting NFL player—who cannot thereafter find new employment—brings a collusion-related grievance against the thirty-two NFL teams under the NFL CBA, he would need to prove his lack of employment was based on an actual collusive agreement among the teams.93 Under this scenario, the burden of proof would lie with the former NFL player to show the existence of such an agreement. Consequently, it

89. Michael Hiltzik, Kaepernick Blames Trump for NFL Collusion Against Him—And He Could Be Right, L.A. TIMES (Oct. 18, 2017, 9:35 AM), http://www.latimes.com/business/ hiltzik/la-fi-hiltzik-kaepernick-trump-20171018-story.html [https://perma.cc/7Q6Y-JE7S]. 90. See NAT’L FOOTBALL LEAGUE, supra note 63, at 120 (stating that “[t]he failure by a Club or Clubs to negotiate, to submit Offer Sheets, or to sign contracts with Restricted Free Agents or Transition Players, or to negotiate, make offers, or sign contracts for the playing services of such players or Unrestricted Free Agents, shall not, by itself or in combination only with evidence about the playing skills of the player(s) not receiving any such offer or contract, satisfy the burden of proof set forth [to prove collusion under the CBA]”). 91. See generally Marc Edelman, Explaining Colin Kaepernick’s Collusion Grievance Against the NFL, FORBES (Oct. 15, 2017, 8:29 PM), https://www.forbes.com/sites/ marcedelman/2017/10/15/explaining-colin-kaepernicks-collusion-grievance-against-the-nfl [https://perma.cc/PV6L-4ZT9] (discussing the need for Kaepernick, through his lawyers, to gather evidence of collusion in the discovery process); see also NAT’L FOOTBALL LEAGUE, supra note 63, at 113–14 (describing NFL discovery process). 92. See supra Part III.A–C. 93. See supra Part III.D.

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would be an uphill battle for any player to prove collusion and doing so would require the player’s attorneys to engage in a long and time-consuming internal discovery process.

Vol.:(0123456789)1 3

The International Sports Law Journal (2020) 20:115–119 https://doi.org/10.1007/s40318-020-00174-8

EDITORIAL

The impact of Covid‑19 on sports: a mid‑way assessment

Borja Garcia‑Garcia1 · Mark James2 · Dionne Koller3 · Johan Lindholm4 · Despina Mavromati5 · Richard Parrish6 · Ryan Rodenberg7

Published online: 23 July 2020 © T.M.C. Asser Instituut 2020

1 Introduction

The year 2020 will forever be remembered for the arrival of the novel coronavirus, SARS-CoV-2, and the Covid-19 pandemic that followed. It is not hyperbole to claim that Covid-19 has affected and is affecting pretty much everyone and every part of society. The pandemic and actions taken in response to the pandemic have brought with them severe trials and high-lighted pre-existing systemic weaknesses. In many parts of the world, the situation appears to be improv-ing as governments, organizations, and individuals are finding and implementing increasingly effective strategies. However this is far from true everywhere, the remaining uncertainty is substantial, and in the coming months many challenges will persist while new challenges will arise. It is thus too early to write a history of sports and Covid-19. With this co-authored, extended editorial the Editorial Board of the International Sports Law Journal seeks instead to take stock of what has happened thus far, as we now hopefully find ourselves, to echo Churchill, if not at the beginning of the end, at least at the end of the beginning. In doing so, we seek to address consequences in both the short-term and the long-term.

2 Testing the limits of the autonomy of sports

Covid-19 has exposed some of the complexities and the frail-ties of sports governance. The consequences of Covid-19 and the widely predicted economic crisis have exposed even more some of the critical junctures of sports governance systems, with stakeholders having diverging interests and policy solutions. Nowhere has this been more evident than in debates about how to conclude football seasons across Europe. With the information we have at this moment, there are probably two areas in which changes could be forthcom-ing as a result of the coronavirus crisis. These are the rela-tionships between sport organizations and public authorities (mostly national governments) and the so-called autonomy of sports.

The autonomy of sports is a widely challenged policy and legal concept, but it is undeniably championed by sports governing bodies in their “disputes” with public authori-ties. Sports organizations are conscious of the limits of that approach, though, and the International Olympic Committee (IOC) for instance has adopted a less dogmatic and much more practical, flexible, and realistic approach to autonomy lately.

Almost 20 years ago, Ken Foster challenged the concept of sports autonomy and proposed alternative frameworks to

* Johan Lindholm johan.lindholm@umu.se

Borja Garcia-Garcia b.garcia-garcia@lboro.ac.uk

Mark James mark.james@mmu.ac.uk

Dionne Koller dkoller@ubalt.edu

Despina Mavromati mavromati@sportlegis.com

Richard Parrish parrishr@edgehill.ac.uk

Ryan Rodenberg rrodenberg@fsu.edu

1 Loughborough University, Leicestershire, UK2 Manchester Metropolitan University, Manchester, UK3 University of Baltimore, Baltimore, MD, USA4 Umeå University, Umeå, Sweden5 SportLegis and University of Lausanne, Lausanne,

Switzerland6 Edge Hill University, Ormskirk, UK7 Florida State University, Tallahassee, FL, USA

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look at it, coining the widely used (at least academically) concept of “supervised autonomy.” Covid-19 is likely to accentuate the supervision, rather than the autonomy, as the crisis has exposed even more the limitations of sports gov-erning bodies. When governments around the world started to decide how to control the disease, organized mass sport activities were among the first casualties. Even if some fed-erations or clubs protested those early decisions, they had of course no other option than to abide by them. Similarly, the decisions of the Dutch and French governments not to allow sporting events until (at least) the autumn was an extreme reminder of the limitations that public and legal regulations impose on sports organizations.

Even as Europe starts to move away from the peak of the pandemic, sports can only put together plans to resume activity in the short to medium term under severe control from governments and public health authorities. For many, this naturally would be the logical thing to do given the public health situation, but the argument here is that these dynamics (as unavoidable as they might be) enhance the supervisory powers of public authorities over sports organi-zations, which in turn will have consequences worth antici-pating now.

The bargaining power of governments has increased with Covid-19, extracting compromises for more and wider redistribution of commercial income from La Liga (and, according to reporting, even from the Premier League) in return for a favorable look at the return of competitive foot-ball as soon as it was is safe to do so. In Spain, for example, both La Liga and the FA had to agree to distribute part of their commercial income to other smaller Olympic and non-Olympic sports in order to obtain a favorable view from the government to resume football competitions as soon as pos-sible. Even with those agreements, such as the one reached in Spain between La Liga and the government, the latter always had the upper hand, forcing the football authorities to modify their protocols and delay the restart date at least twice.

Finally, the impending economic crisis is likely to increase the dependency of medium to small size sports organizations on public funding, especially national gov-erning bodies. This is of course not new, but Covid-19 has the potential to increase that dependence. We are living in an era in which much more attention is paid to sports gov-ernance, with Codes for Good Governance for sports being designed in many countries and the EU also involved in that area. Governments now will have a diversity of objectives to support societal recovery post-Covid-19; hence, they can be even more demanding with their conditions to fund sports. In our view, whereas there might be no appetite for direct regulation under the new circumstances, it seems clear that Covid-19 might have shifted the relative bargaining power in favor of public authorities in this complex network.

3 Balancing health and the integrity of sports

One early consequence of the Covid-19 outbreak for global sports was the suspension of anti-doping testing. The first, major measure in this field was taken on 3 February 2020 when the China Anti-Doping Agency (CHINADA) sus-pended its testing in mainland China. Although CHINADA was able to resume testing relatively soon after, the sus-pension of doping testing quickly spread across the globe along with the virus. In many areas it has yet to resume.

The reasons for this are obvious. The global anti-doping regime involves relatively close physical contact with anti-doping officers who unexpectedly—and, at least for some athletes, frequently—go to homes, gyms, and other places where athletes are to administer tests. This requires anti-doping officers moving around and being in close proxim-ity to the athlete. The testing protocol is clearly problem-atic during the Covid-19 outbreak as it involves significant risks of transferring the virus between athlete and anti-doping officer and, by extension, a risk to their health. If infected, anti-doping officers may act as carriers spreading the virus to other athletes that they visit. As our knowl-edge of the novel coronavirus has improved, the World Anti-Doping Agency (WADA) has issued guidance to the national anti-doping agencies (NADOs) on how to con-duct at least some testing in a safe manner. Experiments have been made with such things as dried-blood-spot test-ing and virtual doping testing. It has nonetheless simply not been possible to safely continue the previous levels of testing. In many jurisdictions and for long stretches of time, the ability to carry out testing has been out of the anti-doping organizations’ control as governments have forbidden anti-doping officers and athletes from moving about to the extent required to conduct effective testing.

In all of this, WADA and the NADOs have struck a reasonable and proportional balance between, on the one hand, upholding the integrity of the anti-doping system (and by extension the integrity of sports) and, on the other, protecting health and lives. Nevertheless, there are obvi-ous consequences that follow from these choices. There are good reasons to fear that some athletes will unfortu-nately take advantage of the pandemic-induced gaps in the anti-doping system. Even if this is not actually the case—and we will never fully know the extent as some of these would-be violations will certainly go undetected—Covid-19 will unavoidably harm the perceived integrity of sporting competition, a very real negative consequence in its own right.

A distinct but related consequence of Covid-19 is the unexpected windfall for some doping-suspended ath-letes. In the wake of the pandemic, most major sporting

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competitions that were to take place in the summer of 2020 have been postponed, chief among them the Tokyo Summer Olympic and Paralympic Games. Consequently many athletes are now at the end of their doping suspen-sions and will be able, because of the postponement, to compete in those competitions. The ability of doping-suspended athletes to return to competition after their suspensions has been a difficult and controversial issue for some time, but the returns of these particular ath-letes in these particular competitions are exceptionally contentious.

Both of these situations raise questions regarding whether there should be some sort of response and, if so, what the response should be. There is no formal basis for taking actions: doping violations require more than a sus-picion and athletes that have served their suspension have a right to return. However, will that line be adhered to even if, for example, a would-be suspended athlete wins an Olympic event or beats a world record by a significant margin? In this regard, the Covid-19 pandemic poses a challenge to the integrity of sporting competitions remi-niscent of the recent Russian doping scandal.

4 Filling the sports betting vacuum

When top-level international sporting events were first suspended or cancelled in March 2020, sports betting operators had few wagering options to offer consumers. Indeed, many sportsbooks reported at least a 90% drop in amounts wagered in the subsequent months.

The sports betting market did not completely evapo-rate, however. Within 2 months, there was an increasing number of pop-up sporting events. In late May, ESPN reported that gambling on table tennis was “blowing up.” At the same time, multiple media outlets reported that certain data dissemination firms were helping start up short-duration tennis tours to create content for betting markets. Regulators reacted to such reports by question-ing the legitimacy of certain made-for-betting events.

Having companies in the sports betting industry organ-ize and/or fund sporting events could represent the “new normal” for how certain sports function. The symbiotic relationship between betting and sports—a textbook example of a dual market—will undoubtedly result in a litany of legal issues. Most notably, some jurisdiction will likely tackle the dispositive issue of whether a sporting event organizer can own or control the news and informa-tion emanating from the event and, in turn, monetize data that fuels the global sports betting industry.

5 Keeping costs under control

The widespread deployment of unprecedented lockdowns and social distancing measures effectively closed down sports across the globe. Despite the existence of govern-mental job retention and employment benefit schemes and the gradual unlocking of sport, much of the sector has been plunged into a financial crisis that could threaten the survival of clubs, leagues, tournaments, and even sports governing bodies. The crisis has brought into sharp relief pre-existing anxieties over the organization and sustain-ability of the sector and has heightened calls for sports to rethink its future. Whether the crisis demands change or not, there are some who will not allow the opportunities following an upheaval of such magnitude to go to waste. Change will come.

Should a reset be pressed, who will have their finger on the button, and will we see an explosion of altruism or an implosion of self-interest? Many governing bodies will attempt to steer sports out of the crisis by defaulting to one of their key functions—that of promoting solidarity. But governing bodies have been weakened as key revenues from event organization, broadcasting and sponsorship have been reduced. Business as normal is unlikely post-Covid-19 and this means governing bodies will have to rethink their relations with the sports stakeholders, public authorities, and commercial undertakings. Old assump-tions about the autonomy of sports might give way to new realities.

In some sports, particularly football, the reset button is likely to be pressed, not by governing bodies, but by powerful clubs and leagues. Will this usher in a new era of altruism, cross-subsidy, and solidarity—the strong help-ing the weak—or will the strong, who have themselves been weakened by Covid-19, default to self-preservation? Perhaps this is a false juxtaposition as self-interest might determine that helping the weak makes good sporting and financial sense. This has long been accepted in US sports. But this help will come at a price—and that will be a rethink about how sport organizes itself and who calls the shots.

This “bigger picture” contemplation is giving way to more immediate preoccupations. Of obvious concern in any financial crisis is cost control. In the short term, pay deductions and salary deferrals have been negotiated across a number of sports, and some football leagues and federations have established emergency solidarity funds for members. In the longer term, labor market interven-tions, such as the wider adoption of salary caps, are attractive but will require the involvement of unions to minimize the chance of subsequent litigation. Potential product market strategies, such as licensing and financial

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fair play regulations, are already on the books and could be strengthened, but the impact on competitive balance in sport must be considered, for without it interest will diminish and the financial crisis will be prolonged.

The crisis will also put pressure on existing sporting regu-lations. In football, for example, clubs are likely to want to secure greater inward investment and so club ownership regulations, third-party ownership (TPO) prohibitions, and restrictions on the individual selling of broadcasting rights might come under review. Clubs are also likely to support FIFA plans to impose a fee cap on agent remuneration and support efforts to break the practice of allowing players to discharge their liabilities to agents through clubs. More radi-cally, at the top of the competitive pyramid some clubs might agitate for the development of alternative structures such as cross-border or breakaway leagues, whereas further down the pyramid, cost cutting might necessitate the fragmenta-tion of national leagues into regional entities.

6 Resolving disputes from Afar

The Covid-19 pandemic had an impact on Alternative Dis-pute Resolution (ADR) in sports, and in particular sports arbitration. The effect was twofold. First, the entire process had to be remodeled in order to allow for a fully online, paperless procedure that included more flexible time limits and a shift toward electronic filings, online hearings, and remote deliberations. Second, the pandemic has created an even greater need for flexible solutions to legal problems, and this will likely lead to an increased use of negotiations, conciliation, and mediation in sports disputes.

With respect to the conduct of the proceedings, the single overarching principle is, as always, to ensure due process, even in times when the essential structures of an ADR sys-tem need to be rapidly modified. Numerous sports tribunals and arbitral tribunals have already issued guidelines and pro-tocols in order to adapt to this new reality. This included the use of already-existing but previously under-utilized soft-ware to establish new methods for filing submissions, as well as the use of electronic hearing bundles or pre-hearing protocols and online hearings.

Sports tribunals such as the Court of Arbitration for Sport (CAS) issued guidelines providing that hearings would be conducted exclusively online during the pandemic, allow-ing for the electronic filing of submissions, and providing increased flexibility with respect to time limits. Conducting online hearings carries some risks and poses some chal-lenges that are inherently linked to the remote character of the procedure, including issues relating to confidentiality, data security, connectivity, and caucus with the client or among arbitrators. The sporting world nevertheless seems to have adapted rapidly to this new way of resolving disputes.

On the plus side, remote hearings carry with them increased flexibility and speed with regard to scheduling. This will hopefully also bring increased diversity in the choice of arbitrators with the removal of the geographi-cal limitations that have long acted as an obstacle to their appointments.

What does the future hold? With the rate of adaptation and the convenience of software versus actual travel, it appears likely that remote hearings are here to stay. This will necessitate concrete directions by both the panel/tribunal and thorough preparation of the hearing schedule (including a pre-hearing meeting) in order to increase the chances of the smooth conduct of the hearing and, indirectly, to protect the parties’ due process rights.

7 Magnifying the problems with collegiate sports

The global pandemic has had an enormous impact on all forms of sport. From Olympic and professional to grass-roots youth sport, the need to socially distance and stop the spread of disease meant cancellation of events and practices, then the significant downstream effects of lost revenue, lost opportunities, and disappointed fans.

College sports in the USA are no exception. Embedding competitive sports teams within universities is known as the “American Model,” under which “student-athletes”—who receive, at most, a scholarship for the cost of attending the university—balance academics and athletics. This model is wildly popular, with sports such as men’s basketball and football generating billions in revenue and enjoying a pas-sionate fan base.

The model is not without significant critiques. Players do not share in the revenue generated by their teams. They do not have the same rights to market their name, image, and likeness as non-athlete students. Multi-million-dollar coaches’ salaries, bloated budgets in the so-called revenue sports of football and men’s basketball, and issues of player health and wellbeing all contribute to the perception that col-lege sports exploits, more than educates, athletes. To many, intercollegiate sports are a broken enterprise.

The global pandemic has amplified these concerns. Two issues in particular have emerged. The first is that colleges and universities are citing the pandemic as reason to cut so-called non-revenue teams, such as track and field and volleyball. Schools may seek waivers from the National Col-legiate Athletic Association (NCAA) rules that require at least sixteen teams, with additional requirements for sched-ules and tournaments. Cutting women’s teams can have significant implications under Title IX, the US federal law prohibiting discrimination on the basis of sex in most college sports programs. It also raises important questions about

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continuing to fund men’s basketball and football programs at unsustainably high levels while eliminating other, relatively inexpensive, sports.

The second issue raised by the pandemic is whether, and when, to resume college sports. The current focus is on foot-ball, which would have a fall start. Plans to bring back non-athlete students are still taking shape, with many colleges opting to hold at least some portion of their classes online. Training for and playing football, with large numbers of players and staff in close proximity, poses significant public health concerns, even if games are played in empty stadi-ums. Questions about testing, athletes’ ability to withhold themselves from practices and games to avoid exposure to the virus, and potential liability if players and staff become ill present a host of legal questions if there is a premature return to normal activity.

While ultimately universities may be able to avoid liabil-ity because of issues of causation, sovereign immunity (for public universities) and the use of liability waivers, public opinion may not be forgiving. Harm to athletes forced to return to play earlier than they should—especially while their non-athlete peers take classes online and away from campus—will only further erode the image of the NCAA and universities who are often accused of putting profits before athlete wellbeing.

8 Finding a way back

As sports around the world begins its journey back to nor-mality, national governing bodies and international federa-tions have published a range of return-to-training, return-to-play, and return-to-competition protocols. The aim of these protocols and the accompanying risk assessments is to ensure, as much as is possible, that the risk of spread-ing the virus that causes Covid-19 is reduced as much as is possible. Alongside clear directions on personal hygiene and the use of personal protective equipment, the proto-cols include directions on managing the spread of infec-tion in playing arenas and on shared equipment, reducing

interpersonal closeness and contact to a necessary minimum, and playing games in the absence of spectators. Despite these games being played behind closed doors, the English Premier League estimates that around 300 people will still be required at each game. Although these protocols seek to limit the potential for the virus to spread, none can prevent it altogether. As the Bundesliga’s guidance states, its aim is not to guarantee the 100% safety of all participants, as this is likely to be impossible, but instead to take a medically justified and managed risk in restarting.

The return to training, play, and competition of elite ath-letes has the potential to raise a wide range of legal issues. In particular, these will arise from situations in which an athlete contracts the virus, or where they have been injured during a truncated “pre-season” period, or by playing the remaining games in too short a period of time. Although each jurisdiction will differ in the specifics, in general these can be broken down into four main areas. First, health and safety-at-work laws will require an athlete’s workplace to be safe from known dangers and diseases. Such laws usually place a duty on the employer to ensure the safety of their workers while they are at work, the breach of which can lead to civil or criminal liability. Secondly, employer’s liability claims, usually based in negligence, will require the provi-sion of safe places and systems of work, appropriate equip-ment, and suitably trained co-workers. This will require the full implementation of the various protocols governing the return of sport. Thirdly, the availability of workers compen-sation which in some jurisdictions is barred to professional and student athletes. Finally, the difficulty in securing insur-ance coverage for employed athletes. Any litigation arising from the resumption of play is likely to be highly complex and focus in particular on issues related to causation and the difficulty in proving where the athlete became infected.

Publisher’s Note Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.

SPORTS & ENTERTAINMENT LAW JOURNAL

ARIZONA STATE UNIVERSITY VOLUME 6 SPRING 2017 ISSUE 2

GENERAL COUNSELS IN SPORTS: AN ANALYSIS OF THE

RESPONSIBILITIES, DEMOGRAPHICS, AND QUALIFICATIONS

Christopher R. Deubert* Glenn M. Wong**

Kevin Hansen ***1

ABSTRACT

This Article is the first ever in-depth analysis of the responsibilities, demographics, and qualifications for general counsels of clubs in the four major North American sports leagues: the National Football League (NFL); Major League Baseball (MLB); the National Basketball Association (NBA); and, the National Hockey League (NHL). As the highest-ranking attorney at each club, general counsels are prominent individuals in both the sports and legal industries. We sought to better understand their roles and experiences. Our analysis did not reveal any essential characteristic or qualification on the path to becoming a general counsel. Nevertheless, we did find several interesting pieces of information. Specifically:

(1) Prestige matters. Fifty-two general counsels (49.5%) attended a law school currently ranked in the top 25

* Senior Law and Ethics Associate, Law and Ethics Initiative for the Football Players Health Study at Harvard University. ** Distinguished Professor of Practice Sports Law, Sandra Day O’Connor College of Law, Arizona State University. *** Compliance Coordinator, Texas Tech University. 1 The authors thank Caleb Jay, Senior Director, Legal Affairs and Associate General Counsel, Arizona Diamondbacks, and Vicky Neumeyer, Senior Vice President/General Counsel, New Orleans Saints and New Orleans Pelicans, for reviewing and providing comments on a draft of this Article and the underlying data.

ARIZ. ST. SPORTS & ENT. L.J. [Vol. 6:229 230

and seventy-five of them (66.4%) previously worked at a law firm of at least 101 attorneys.

(2) Prior experience at a league office or at a major sports law firm helps, but is not essential. Only seventeen general counsels (15.0%) previously worked at a law firm with a substantial sports law practice, and only ten (8.8%) previously worked at a league office.

(3) More gender and racial diversity is needed in the roster of general counsels. Only twenty-one (18.6%) general counsels are female and only sixteen (14.1%) are non-white.

The Article includes other information about the backgrounds of general counsels, including their age, the industries in which they previously worked, and the amount of legal experience they obtained before becoming a general counsel. Ultimately, we hope that this Article helps shed light on an important role in the sports industry, and provides guidance for those who seek to aspire to such heights.

INTRODUCTION

Careers in the sports industry are highly sought after and competitive.2 Similarly, in recent years, careers in the legal industry have become highly competitive as the industry has undergone changes.3 It thus stands to reason that legal careers in 2 GLENN M. WONG, THE COMPREHENSIVE GUIDE TO CAREERS IN SPORTS 3 (Shoshanna Goldberg et al. eds., 2d ed. 2013) (“There is a high demand from people who want to work in the sports industry, and there is a limited supply of jobs.”). 3 See, e.g., Peter Lattman, Dewey & LeBoeuf Crisis Mirrors Legal Industry’s Woes, N.Y. TIMES (Apr. 25, 2012, 6:21 PM), http://dealbook.nytimes.com/2012/04/25/dewey-leboeuf-crisis-mirrors-the-legal-industrys-woes [https://perma.cc/4ZV4-ET82] (discussing the outlook and future for the legal industry); Elizabeth Olson, Burdened With Debt, Law School Graduates Struggle in Job Market, N.Y. TIMES (Apr. 26, 2015), http://www.nytimes.com/2015/04/27/business/ dealbook/burdened-with-debt-law-school-graduates-struggle-in-job-market.html [https://perma.cc/MHL6-3QN7] (discussing the difficulty law school graduates have in securing employment in the legal industry).

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the sports industry are extremely competitive. Nevertheless, skilled and intelligent individuals have managed to traverse these competitive challenges to reach the upper echelons of both the sports and legal industries. These individuals are the general counsels of professional sports clubs. This Article is the first ever in-depth analysis of the responsibilities, demographics, and qualifications for general counsels of clubs in the four major North American sports leagues: the National Football League (NFL); Major League Baseball (MLB); the National Basketball Association (NBA); and, the National Hockey League (NHL). This Article builds on prior work we have done analyzing the responsibilities, characteristics and qualifications of club general managers in the NFL,4 MLB, 5 and NBA,6 as well as of athletic directors at National Collegiate Athletic Association (NCAA) Division I institutions.7 Before proceeding, it is important to understand who we are talking about when discussing general counsels. Black’s Law Dictionary provides the following definitions for a general counsel:

1. A lawyer or law firm that represents a client in all or most of the client’s legal matters, but that sometimes refers extraordinary matters – such as litigation and

4 See Chris Deubert, Glenn M. Wong & Daniel Hatman, National Football League General Managers: An Analysis of the Responsibilities, Qualifications and Characteristics, 20 VILL. SPORTS & ENT. L. J. 427 (2013). 5 Glenn M. Wong & Chris Deubert, Major League Baseball General Managers: An Analysis of Their Responsibilities, Qualifications and Characteristics, 18 NINE: J. BASEBALL HIST. & CULTURE 74 (2010), https://papers.ssrn.com/sol3/ papers2.cfm?abstract_id=1587675. 6 Glenn M. Wong & Chris Deubert, National Basketball Association General Managers: An Analysis of the Responsibilities, Qualifications and Characteristics, 18 VILL. SPORTS & ENT. L. J. 213 (2011). 7 Glenn M. Wong, Christopher R. Deubert & Justin Hayek, NCAA Division I Athletic Directors: An Analysis of the Responsibilities, Qualifications and Characteristics, 22 JEFFREY S. MOORAD SPORTS L. J. 1 (2015).

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intellectual-property cases – to other lawyers. 2. The most senior lawyer in a corporation’s legal

department, usu[ally] also a corporate officer.8

We adopt the Black’s Law Dictionary definition for our purposes here with one clarification – we are interested only in those attorneys that are employed by the club (or the entity that owns the club) – not attorneys that act in a general counsel capacity but are employed by a law firm. Additionally, titles do not control the individuals included in our analysis. While individuals discussed in this Article often have a variety of titles, usually but not always including general counsel, for purposes of this Article we mean for the term “general counsel” to include any individual that is the highest-ranking attorney at a club, and who on a regular basis provides legal advice to the club. As a result of our definition, and as will be discussed further in Part II, not all clubs have a general counsel; these clubs instead rely primarily on outside counsel, i.e. attorneys that are not employed by the club, for legal matters.

***

This Article will proceed in four parts: Part I discusses the responsibilities of a club’s general counsel; Part II discusses those clubs that do not have a general counsel; Part III examines the demographics of club general counsels, including age, race/ethnicity, and gender; and, Part IV examines the qualifications of club general counsels, including information about their law schools, and prior work experience, including experience in the sports industry. Finally, we conclude with thoughts on the paths to becoming a general counsel for a club.

I. RESPONSIBILITIES OF GENERAL COUNSELS

General counsels, in all industries, “occup[y] multiple roles within the organization.” 9 In particular, these roles generally include: (1) providing legal advice to the corporation; (2) serving as a senior member of the executive team; (3) 8 Counsel, BLACK’S LAW DICTIONARY (10th ed. 2014); General Counsel, BLACK’S LAW DICTIONARY (10th ed. 2014). 9 Deborah A. DeMott, The Discrete Roles of General Counsel, 74 FORDHAM L. REV. 955, 955 (2005).

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administrating the corporation’s internal (or “in-house”) legal department; and, (4) managing external relationships, such as outside counsel.10 Below, we describe each of these roles as it relates to sports club general counsels.

A. PROVIDING LEGAL ADVICE TO THE CLUB

General counsels are not necessarily experts in any area of law, and are more likely to be experienced or knowledgeable about several areas of law. 11 The Association of Corporate Counsel, a professional association of attorneys working in-house at a variety of corporations and private sector organizations (such as general counsels), has conducted surveys of in-house counsel,12 that provide useful data on this issue. According to a 2015 survey, the ten primary practice areas for in-house counsel, listed in order of the number of counsel practicing in that area, are: (1) contracts; (2) general commercial/contracts; (3) corporate transactions; (4) compliance/ethics; (5) employment/labor; (6) generalist; (7) corporate governance; (8) intellectual property; (9) litigation; and, (10) law department management.13 The practices of general counsels for sports clubs are likely similar.

Writing and negotiating agreements for the club is one of the general counsel’s most important jobs. Sports clubs enter into a wide variety of agreements, many of which relate to the stadium or arena in which the club plays. The type of agreement 10 Id. at 957–58. 11 See Erik Spanberg, Teams Find Safety in Numbers When It Comes to Their Legal Staff, SPORTS BUS. J. (May 11, 2015), http://www.sportsbusinessdaily.com/Journal/Issues/2015/05/11/In-Depth/Team-counsel.aspx [https://perma.cc/N5M2-FKMV] (discussing the variety of areas in which sports club general counsels practice). 12 See ASS’N OF CORP. COUNSEL, 2015 ACC GLOBAL CENSUS A PROFILE OF IN-HOUSE COUNSEL (2015) [hereinafter 2015 ACC GLOBAL CENSUS], http://www.acc.com/vl/public/Surveys/loader .cfm?csModule=security/getfile&pageid=1411922&page=/legalresources/surveys/index.cfm&qstring=&title=2015%20ACC%20Global%20Census%20Executive%20Summary&recorded=1 [https://perma.cc/57X7 -MHFD]. The 2015 survey gathered data from 5,012 in-house attorneys, 59% of whom were located in the United States. Id. at 33. 13 Id. at 28.

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may vary depending on whether the club owns the facility, but typical contracts that need negotiating are financing arrangements, leases (including those with municipalities), vendor agreements with food service and maintenance companies, luxury box contracts, and agreements with companies looking to advertise in or around the facility.14

General counsels’ contract-related duties also extend into their employment and labor practice. General counsels will be involved in the drafting and negotiation of contracts for the clubs’ most important employees, including the general manager and coaches.15 Nevertheless, general counsels’ role in drafting or negotiating player contracts is generally limited. All the leagues have standard contracts, 16 and complex contract rules. 17 Conformity with these rules and addendums to the standard contracts are generally governed by the leagues’ attorneys.18

14 See Spanberg, supra note 11 (discussing types of contractual agreements General Counsels enter on behalf of the organization). 15 See, e.g., #15 – Jeff Gewirtz – EVP Brooklyn Nets & Barclays Center – Part 2, LAWINSPORT (Oct. 23, 2013), https://soundcloud.com/ lawinsport/jeff-gewirtz-part-2 [https://perma.cc/8S27-GM8L] (discussing Gewirtz’s role of aiding General Manager Billie King in drafting head coach, assistant coach, scouts, and assistant general manager contracts). 16 See, e.g., 2012-2016 Basic Agreement, MLB.COM 227–294 (Dec. 12, 2011), http://mlb.mlb.com/pa/pdf/cba_english.pdf; NBA Collective Bargaining Agreement, SCRIBD (Dec. 8, 2011), https://www.scribd.com/doc/172760974/NBA-NBPA-CBA-2011; NFL Collective Bargaining Agreement, NFL 256–264 (Aug. 4, 2011), https://nfllabor.files.wordpress.com/2010/01/collective-bargaining-agreement-2011-2020.pdf; Collective Bargaining Agreement Between National Hockey League and National Hockey League Players’ Association, NHL.COM 310–321 (Feb. 15, 2013), http://www.nhl.com/ nhl/en/v3/ext/CBA2012/NHL_NHLPA_2013_CBA.pdf. 17 See CHRISTOPHER R. DEUBERT ET AL., Comparing Health-Related Policies and Practices in Sports: The NFL and Other Professional Leagues, THE FOOTBALL PLAYER’S HEALTH STUDY AT HARV. UNIV. (forthcoming 2017), http://petrieflom.law.harvard.edu/research/fphs (discussing salary cap and compensation rules in the NFL, MLB, NBA, NHL, Canadian Football League and Major League Soccer). 18 See, e.g., NHL Rejects Kovalchuk Deal, ESPN (July 21, 2010), http://www.espn.com/new-york/nhl/news/story?id=5397588

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Beyond employment contracts, general counsels must ensure the club’s compliance with a wide variety of employment-related statutes, regulations and policies, including but not limited to those related to wages, 19 discrimination, 20 benefits, 21 and retirement plans,22 for both players and other club employees.

The area of intellectual property is one of significant and growing importance to general counsels. Licensing of league and club games for broadcasting on television and radio networks is one of, if not the, highest sources of revenue for leagues and clubs.23 While the NFL sells the television and radio broadcast

[https://perma.cc/EWX9-Y25X] (highlighting the role leagues play in governing collectively bargained standard player contracts). 19 See, e.g., Wage and Hour Division (WHD), U.S. DEP’T OF LABOR, https://www.dol.gov/whd/flsa/ [https://perma.cc/8NKL-5C2E] (last visited Feb. 22, 2017) (discussing the Fair Labor Standards Act regulating wages and hours of work). 20 See, e.g., Laws Enforced By EEOC, U.S. EQUAL EMP. OPPORTUNITY COMM’N, https://www.eeoc.gov/laws/statutes/ [https://perma.cc/G24Q-D7GH] (last visited Feb. 22, 2017) (discussing laws prohibiting various forms of discrimination in the workplace). 21 See, e.g., 26 U.S.C. § 4980H (2016) (obligating employers who employ an average of at least 50 full-time employees on business days to provide some basic level of health insurance to its employees or pay a financial penalty). 22 See, e.g., Employee Retirement Income Security Act (ERISA), U.S. DEP’T OF LABOR, https://www.dol.gov/general/topic/retirement/erisa (last visited Feb. 22, 2017) [https://perma.cc/AYQ3-ZS4T] (describing ERISA as “…a federal law that sets minimum standards for most voluntarily established pension and health plans in private industry to provide protection for individuals in these plans"). 23 See Kurt Badenhausen, New York Knicks Head the NBA’s Most Valuable Teams at $3 Billion, FORBES (Jan. 20, 2016, 9:57 AM) http://www.forbes.com/sites/kurtbadenhausen/2016/01/20/new-york-knicks-head-the-nbas-most-valuable-teams-at-3-billion/#79c3325d2d3a [https://perma.cc/H2U8-SEMQ] (discussing impact of media rights on NBA revenues); Maury Brown, MLB Sees Record Revenues for 2015, Up $500 Million and Approaching $9.5 Billion, FORBES (Dec. 4, 2015, 4:40 PM), http://www.forbes.com/sites/maurybrown/2015/12/04/mlb-sees-record-revenues-for-2015-up-500-million-and-approaching-9-5-billion/#2e3f48712307 [https://perma.cc/KJ5R-TNL6] (discussing impact of media rights on MLB revenues).

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rights to all of its games (except preseason) collectively,24 in MLB, the NBA and the NHL, the clubs are able to sell all games not included in national television packages to local television and radio stations on an individual basis. 25 These revenue streams are vital to the clubs’ operations. For example, in 2016, MLB clubs’ local television contracts brought in a mean of approximately $53.48 million.26 Also in the realm of intellectual property, another important source of revenue for clubs is the licensing of the club name and logos. 27 Clubs enter into agreements with a wide variety of companies that either want to sell items with the club name and logo, or want to be associated with the club, generally as an official sponsor of some kind.28 General counsels must ensure that these agreements comply with the law, protect the clubs’ rights and comply with league policies about such arrangements. For example, the NFL’s advertising policy prohibits advertisements containing firearms, ammunition, weapons, contraceptives, tobacco products, gambling, and fireworks.29

24 See Matthew J. Mitten & Aaron Hernandez, The Sports Broadcasting Act of 1961: A Comparative Analysis of its Effects on Competitive Balance in the NFL and NCAA Division I FBS Football, 39 OHIO N.U. L. REV. 745, 745–52 (2013) (discussing the collective sale of television rights by professional sports leagues). 25 Gabriel Feldman, The Puzzling Persistence of the Single Entity Argument for Sports Leagues: American Needle and the Supreme Court’s Opportunity to Reject a Flawed Defense, 2009 WIS. L. REV. 835, 886–87 (2009). 26 Craig Edwards, Estimated TV Revenues for All 30 MLB Teams, FANGRAPHS (Apr. 25, 2016), http://www.fangraphs.com/blogs/ estimated-tv-revenues-for-all-30-mlb-teams/ [https://perma.cc/949Y-2FJY]. 27 Feldman, supra note 24, at 888–89; John A. Fortunato & Shannon E. Martin, American Needle v. NFL: Legal and Sponsorship Implications, 9 DENV. U. SPORTS & ENT. L.J. 73, 74–75 (2010). 28 Id. 29 See Julia Ritchey, VIDEO: Super Bowl Ad Controversy Puts Georgia Gunmaker in Spotlight, SAVANNAH MORNING NEWS, http://savannahnow.com/exchange/2013-12-06/super-bowl-ad-controversy-puts-georgia-gunmaker-spotlight [https://perma.cc/HEE5-EG7K] (last updated Dec. 7, 2013, 9:54 AM) (discussing the NFL’s

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There is an important limitation to the advice general counsels provide. General counsels provide legal advice for the entity for which they work (through its employees), but not for the employees of the entity for which they work. 30 This distinction can become problematic if the general counsel believes a fellow employee has committed an act that violates a legal obligation of the entity. In such situations, the general counsel has an obligation to protect the interests of the entity – not the other employee.31 Non-lawyers are not always aware of this distinction, which has necessitated a practice whereby general counsels advise employees during internal or other legal investigations that the general counsel represents the entity, not the employee.32

B. SERVING AS A SENIOR MEMBER OF THE CLUB’S EXECUTIVE TEAM

A general counsel’s principal role, as explained above, is to provide the club with legal advice. Nevertheless, given the importance of their role as a trusted legal advisor, general counsels often take on broader responsibilities, including advising on and managing the club’s business and other non-legal affairs. A useful example of a general counsel that has taken on an expanded role is New York Yankees Chief Operating Officer and General Counsel Lonn Trost. Trost, who began working as the Yankees’ outside counsel in 1975, described his current responsibilities as follows:

policy that advertisements for “firearms, ammunition, and other weapons are prohibited”). 30 See, e.g., MODEL RULES OF PROF’L CONDUCT r. 1.13 (AM. BAR ASS'N 2016); Susanna M. Kim, Dual Identities and Dueling Obligations: Preserving Independence in Corporate Representation, 68 TENN. L. REV. 179, 190–94 (2001) (stating that the lawyer’s primary professional responsibility is to assist the organization entity to achieve its goals and objectives). 31 Id. 32 See Grace M. Giesel, Upjohn Warnings, The Attorney-Client Privilege, and Principles of Lawyer Ethics: Achieving Harmony, 65 U. MIAMI L. REV. 109, 110–12 (2010).

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As general counsel, I provide advice to the Yankees and its affiliates, handling everything from contracts and disputes to radio, TV, Internet, and social media issues…. As COO, I’m responsible for everything from personnel to events in the stadium. One day I may be concerned about a leaky joint in the stadium or how loud the music is being played, and the next day it may be player agreements.33

Trost is among the oldest and most experienced general counsels in sports. Thus, it stands to reason that he would ascend to more influential roles within the club. While Trost’s non-legal roles are of a business nature, some general counsels do evolve into roles that more directly affect the on-field/court/ice play of the club. In 2016, the Cleveland Browns promoted then-General Counsel Sashi Brown to Executive Director of Football Operations, providing Brown with control over the club’s roster.34 Brown’s direct involvement in player personnel decisions is a rare progression for an attorney, but nevertheless one that might occur on occasion.35 There are also potential complications that come with providing non-legal advice. While such advice is permitted by codes of ethics,36 it can create ethical dilemmas for general 33 Julie Edwards, Rallying Your Team Behind the Cause, MOD. COUNS., http://modern-counsel.com/2015/new-york-yankees/ [https://perma.cc/J5ZU-JAGE] (last visited Feb. 22, 2017). 34 Zac Jackson, Haslam Gives Sashi Brown Roster Control, Denies Marrone Interview Scheduled, PROFOOTBALLTALK (Jan. 3, 2016, 8:43 PM), http://profootballtalk.nbcsports.com/2016/01/03/haslam-gives-sashi-brown-roster-control-denies-marrone-interview-scheduled [https://perma.cc/CUB7-QJFU]. 35 See, e.g., Mike Tannenbaum, MIAMI DOLPHINS, http://www.miamidolphins.com/team/staff/Tannenbaum Mike/3994258c-8b67-43a8-b178-73bd76764b07 [https://perma.cc/DY4Q-FJ4Y] (last visited Feb. 22, 2017); Howie Roseman, PHILA. EAGLES, http://www.philadelphiaeagles.com/ team/staff/howie-roseman/930d39c9-7d61-4bd3-b061-85b8656e793e [https://perma.cc/8RE5-FPXC] (last visited Feb. 22, 2017). 36 See MODEL RULES OF PROF’L CONDUCT r. 2.1 (AM. BAR ASS’N 2016).

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counsel.37 By helping the corporation make business decisions, the general counsel might find it difficult to provide the independent and effective legal advice that the corporation needs.38 Additionally, blurring the types of advice provided by the general counsel potentially eliminates the attorney-client privilege for certain communications between the general counsel and the corporation where it might not be clear which type of advice the general counsel is providing.39 These are important considerations for attorneys that might progress from general counsel to senior executive positions.

C. ADMINISTRATING THE CLUB’S LEGAL STAFF

A general counsel is also responsible for overseeing other lawyers that work for the corporation. 40 While some corporations require tens or even hundreds of lawyers, 41 professional sports clubs are much smaller. Most clubs have two in-house attorneys – a general counsel and associate counsel – supplemented by outside counsel as needed. 42 Indeed, as discussed below in Section IV.B.6, many general counsels previously worked as associate or assistant counsels at the club for which they are now general counsel. There often are other lawyers working for the clubs that are worth mentioning. All four of the sports leagues employ 37 See Kim, supra note 30, at 226–45 (discussing the potential problems that can arise when representing an organizational entity). 38 See id. at 227–235. 39 See id. at 239–42. 40 Deborah A. DeMott, The Discrete Roles of General Counsel, 74 FORDHAM L. REV. 955, 969 (2005). 41 See, e.g., id. at 977 (discussing Enron’s 250 lawyers); Peter Robinson, Adam Satariaon & Monte Reel, Here Are the Legal Generals Behind Apple’s Brawl with the FBI, BLOOMBERG (Mar. 4, 2016, 5:00 AM), http://www.bloomberg.com/news/articles/2016-03-04/apple-defense-pairs-cyberpioneer-with-architect-of-samsung-brawl [https://perma.cc/DGR5-5CHD] (mentioning Apple’s 500 lawyers); Kathryn Kranhold, GE’s Key Lawyer Rewired the Game, WALL ST. J. (Oct. 31, 2005, 12:01 AM), http://www.wsj.com/articles/ SB113072236623783871 [https://perma.cc/DQ8E-TQ62] (mentioning General Electric’s 1,100 lawyers). 42 See Spanberg, supra note 11.

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some form of a salary cap and/or luxury tax system that restricts, in varying degrees of flexibility, the amount clubs can spend on player salaries.43 Concomitant with these systems are complicated rules governing player contracts, including, but not limited to, minimum and maximum salaries, maximum contract lengths, regulations over the types of bonuses permitted, and how a player’s salary counts against the salary cap or luxury tax system.44 As a result, most clubs employ someone responsible for these tasks; in the NFL, they are generally known as the director of football administration;45 in MLB, the NBA and NHL, such roles are often filled by assistant general managers,46 but it’s becoming more common that such roles are being combined with individuals handling statistical analysis (analytics) for the club.47 Some of these individuals have law

43 See DEUBERT ET AL., supra note 17. 44 Id. 45 See Front Office, TAMPA BAY BUCCANEERS, http://www.buccaneers.com/team/staff/mike-greenberg/c2f64209-be37-46de-9db7-f6bf0dc4777c [https://perma.cc/9WRD-ZCU2] (last visited Feb. 22, 2017) [hereinafter Mike Greenberg]; New York Jets Media Guide, NEW YORK JETS LLC (Aug. 11, 2016, 7:17 AM), http://prod.static.jets.clubs.nfl.com/assets/docs/New-York-Jets-Media-Guide.pdf [https://perma.cc/2PRT-B8HX] [hereinafter Jacqueline Davidson] (providing the biography of Jacqueline Davidson). 46 See, e.g., Executive Staff, CHARLOTTE HORNETS, http://www.nba.com/hornets/executive-staff [https://perma.cc/4TAJ-Q2UJ] (last visited Feb. 22, 2017); Front Office Biographies, ARIZ. DIAMONDBACKS, http://arizona.diamondbacks.mlb.com/ari/ team/exec_bios/minniti_bryan.jsp [https://perma.cc/YU2L-2X2N] (last visited Jan. 21, 2017); Ryan Martin, DETROIT RED WINGS, http://redwings.nhl.com/club/page.htm?id=43962 [https://perma.cc/2W3C-CYPD] (last visited Feb. 22, 2017). 47 See, e.g., Clippers 2015–16 Information Guide, L.A. CLIPPERS, http://i.cdn.turner.com/nba/nba/.element/media/2.0/teamsites/clippers/2015-16_LA-Clippers_Media-Guide.pdf [https://perma.cc/CLT4-8R7T] (last visited Feb. 22, 2017) (providing the biography of Jud Winton); Team, TAMPA BAY LIGHTNING, http://lightning.nhl.com/club/ page.htm?id=109144 [https://perma.cc/9KU3-DX5Z] (last visited Feb. 22, 2017).

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degrees.48 Nevertheless, the general counsel generally does not supervise these salary cap and contract professionals. While the general counsel may occasionally provide advice concerning a contract or the collective bargaining agreement, these professionals generally report to the general manager, who is responsible for the club’s roster. Consequently, the attorneys who the general counsel must supervise generally only include one or two associate counsels, and outside counsel, discussed next.

D. MANAGING EXTERNAL RELATIONSHIPS

One of the general counsel’s most important duties in any industry is to know when to seek additional legal help. As discussed above, general counsels must handle a wide variety of legal issues. However, if one matter becomes too complicated or time consuming, it is best to hire a law firm to handle the matter. In the 2015 Association of Corporate Counsel survey, in-house counsel were asked for what types of legal matters the corporation frequently consulted outside counsel; the top ten areas were: (1) litigation (consulted 67% of the time); (2) employment/labor (50%); (3) intellectual property (41%); (4) corporate transactions (36%); (5) mergers/acquisitions (34%); (6) antitrust/trade (26%); (7) tax (23%); (8) real estate (19%); (9) securities/governance (18%); and, (10) international (16%). Notably, some of the areas for which outside counsel are most frequently consulted are areas of frequent and particular relevance to the world of sports: litigation; employment/labor; intellectual property; and, antitrust/trade. Choosing outside counsel is an important and competitive process. 49 Law firms seek to impress general counsels in hopes of securing interesting and lucrative work,50

48 See, e.g., Jacqueline Davidson, supra note 45; Mike Greenberg, supra note 44; Ryan Martin, supra note 46. 49 See Deborah A. DeMott, The Discrete Roles of General Counsel, 74 FORDHAM L. REV. 955, 970–74 (2005). 50 See Melissa Maleske, How to Woo In-House Counsel in 2016, LAW360 (Dec. 24, 2015, 8:39 PM),

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particularly for professional sports clubs. Not surprisingly, clubs generally work with the biggest and best law firms in the country or their metropolitan area, including many that have long-standing sports law practices. Some of these firms are discussed at length in Section IV.B.4. Firms Practicing Sports Law. An additional external relationship that general counsels must manage is with the league and the league’s attorneys. Each of the sports leagues we discuss in this Article consists of member clubs that are individually owned and operated, with the league serving as a centralized, governing body. The member clubs, collectively and with the guidance of league staff, make decisions about the leagues’ policies and practices. The general counsel is sometimes among the club’s employees that represent the club at league meetings where potential policy and practice changes are discussed and voted upon. 51 Relatedly, general counsels frequently consult with league employees and attorneys about policies and practices, to better protect both the club's and league’s interests.52

*** With the above understanding of a general counsel’s responsibilities, we now move on to discussing those clubs without a general counsel before analyzing the demographics and qualifications of general counsels in Parts III and IV, respectively.

II. CLUBS WITHOUT A GENERAL COUNSEL

Clubs’ personnel structure for the handling of legal

http://www.law360.com/articles/738607/how-to-woo-in-house-counsel-in-2016. 51 See, e.g., Jim Owczarski, Bengals’ Katie Blackburn Holds Important Place in NFL, THE CINCINNATI ENQUIRER (Mar. 23, 2016, 7:10 PM), http://www.cincinnati.com/story/sports/nfl/bengals/2016/03/22/cincinnati-bengals-executive-vice-president-katie-blackburn-workplace-diversity/82138824/. 52 See, e.g., Villanova University, Moorad Speaker Series: Aileen Dagrosa, YOUTUBE (Apr. 29, 2016), https://www.youtube.com/watch?v=g-JgwfZVFDs [https://perma.cc/823K-VCDV] (discussing relationship with league office on intellectual property, sponsorship, venue management, security, and player conduct policies and issues).

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issues is not uniform. While most clubs have a general counsel as defined in this Article, i.e., handles a wide range of general legal matters for the club, some clubs do not have such a position. Many clubs have attorneys sprinkled throughout other departments who handle tasks that do not necessarily require a law degree, including player personnel, 53 salary cap, 54 and business matters.55 Nevertheless, these individuals generally lack the broad legal experience and duties of a general counsel and thus are not included in our analysis. Additionally, there are several attorneys who are employees of, and general counsels to, the entity that owns the club. As a result, these attorneys might handle legal matters beyond those exclusive to the club. For example, Giles Kibbe is General Counsel of Crane Capital Group,56 an entity principally owned and controlled by Houston Astros owner Jim Crane.57 Such arrangements are very common in the NBA and NHL, where an entity might own an NBA club and/or an NHL club, and the arena in which one or more clubs play. For example, Peter Miller is General Counsel to Maple Leaf Sports & Entertainment, an entity that owns the NBA’s Toronto Raptors, the NHL’s Toronto Maple Leafs, and the Air Canada Centre

53 See supra, note 35; see also Calgary Flames Executives, NHL.COM, http://flames.nhl.com/club/page.htm?id=40733 (last visited Feb. 22, 2017) [https://perma.cc/XPG4-SKQG] (including the biography of Brian Burke, President of Hockey Operations for the Flames and a graduate of Harvard Law School). 54 See, e.g., Chiefs 2016 Media Guide, KANSAS CITY CHIEFS 44 (2016), http://prod.static.chiefs.clubs.nfl.com/assets/pdf/2016/2016MediaGuide.pdf [https://perma.cc/29MR-HUJK] (providing background on Trip MacCracken, Director of Football Administration, including J.D. from Duke University School of Law). 55 Id. at 15. 56 See Giles Kibbe, LINKEDIN, https://www.linkedin.com/in/giles-kibbe-132031a8 [https://perma.cc/U8EU-PV6R] (last visited Feb. 22, 2017). 57 See Jim Crane Owner and Chairman, HOUS. ASTROS, http://houston.astros.mlb.com/hou/team/exec_bios/jim_crane.html [https://perma.cc/LQ4H-8ZBR] (last visited Feb. 22, 2017).

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where both clubs play.58 Because these attorneys provide the type of generalized legal services covered in this Article, and because there is a unity of interest between their direct employer and the club, we do include these individuals in our analysis. Table 1 below provides the number of clubs in each league that lack a general counsel. Instead, these clubs heavily rely on outside counsel for legal work. Table 1: Teams Without a General Counsel

League Clubs Without a General Counsel NFL 2 MLB 3 NBA 1 NHL 3 Total 9

The following is a list of those clubs without a general

counsel: Kansas City Chiefs;59 San Diego Chargers;60 Cincinnati

58 Annie Monjar, Maple Leaf Sports Has Serious Defense, ADVANTAGE (Mar. 15, 2014), http://advantagemagazine.ca/2014/mlse-2/ [https://perma.cc/8FZR-QTP4]. 59 As discussed in preceding footnotes, the Chiefs have two attorneys on staff, though their roles do not require a law degree. In a recent case that reached the Supreme Court of Missouri, the Chiefs relied on Polsinelli PC, the second largest law firm in Kansas City to represent them. See Cox v. Kansas City Chiefs Football Club, Inc., 473 S.W.3d 107 (Mo. 2015); see also Andrew McKeegan, Kansas City’s Top Law Firms, KAN. CITY BUS. J. (Jan. 22, 2016, 5:00 AM), http://www.bizjournals.com/kansascity/subscriber-only/2016/01/ 22/law-firms.html [https://perma.cc/6HVP-CW8S]. 60 Mark Fabiani, SAN DIEGO CHARGERS, http://www.chargers.com/ team/staff/roster/mark-fabiani [https://perma.cc/6VVA-W7EB] (last visited Feb. 22, 2017). Although the San Diego Chargers list Mark Fabiani as “Special Counsel” on their website, Fabiani’s job description makes clear that his role is limited to “finding a new permanent home for the Chargers.” Id. Moreover, Fabiani maintains his own consulting firm in addition to his work with the Chargers. See id.

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Reds;61 Cleveland Indians;62 Kansas City Royals;63 Oklahoma City Thunder;64 Calgary Flames;65 Chicago Blackhawks;66 and, St. Louis Blues.67 As described in the accompanying footnotes, all of these clubs rely on local law firms for their legal matters. Finally, it is important to understand how these clubs without general counsels affect our analysis. There are 122 clubs in the NFL, MLB, NBA and NHL combined. We are interested in the universe of clubs that have general counsels. Thus, by subtracting out the nine clubs that do not, the denominator for our analyses is 113 (unless otherwise indicated due to other circumstances).

61 The Reds rely on James A. Marx of the law firm Dinsmore & Shohl LLP. See James A. Marx, DINSMORE, http://www.dinsmore.com/ jim_marx/ [https://perma.cc/Y3E7-U5RA] (last visited Feb. 19, 2017). 62 The Indians rely on Joseph R. Znidarsic of the law firm Thrasher Dinsmore & Dolan. See Joseph R. Znidarsic, THRASHER DINSMORE & DOLAN, http://tddlaw.com/attorneys/joseph-znidarsic-chardon-oh-lawyer/ [https://perma.cc/N6ZZ-C9GS] (last visited Feb. 19, 2017). 63 The Royals rely on David W. Frantze of the law firm Stinson Leonard Street LLP. See David W. Frantze, STINSON LEONARD STREET, https://www.stinson.com/DaveFrantze/ [https://perma.cc/L47S-HJ97] (last visited Feb. 19, 2017). 64 The Oklahoma City Thunder’s legal matters are handled by Frank D. Hill of the law firm of McAfee & Taft. See Frank D. Hill, MCAFEE & TAFT, http://www.mcafeetaft.com/frank-d-hill [https://perma.cc/P7L4-59W5] (last visited Feb. 19, 2017). 65 The Flames rely on Brian Yaworski of the law firm DLA Piper. See Brian Yaworski, Q.C., ICD.D, DLA PIPER, https://www.dlapiper.com/en/canada/people/y/yaworski-brian/ [https://perma.cc/2EAH-99JE] (last visited Feb. 19, 2017). 66 The Blackhawks rely on David Americus of the law firm Godzecki, Del Giudice, Americus, Farkas & Brocato LLP. See David Americus, CHI. BLACKHAWKS, http://blackhawks.nhl.com/club/ page.htm?id=86122 [https://perma.cc/Y5VL-3JPN] (last visited Feb. 19, 2017). 67 The Blues rely on Christopher J. Schmidt and Ryan S. Davis of the law firm Bryan Cave. See Christopher J. Schmidt, BRYAN CAVE, https://www.bryancave.com/en/people/christopher-j-schmidt.html [https://perma.cc/V635-687Y] (last visited Feb. 19, 2017); Ryan S. Davis, BRYAN CAVE, https://www.bryancave.com/en/people/ryan-s-davis.html [https://perma.cc/RPV3-YXR2] (last visited Feb. 19, 2017).

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Also of note, included in the 113 statistic are general counsels that serve multiple sports clubs. For example, Brad Shron is General Counsel of both the Philadelphia 76ers and the New Jersey Devils. 68 Because we are interested in the demographics and qualifications of general counsels in each sports league, those working for two clubs are included in the analysis of each league.

*** Having identified the few clubs that do not have a general counsel, we can now analyze the demographics of general counsels in Part III, and their qualifications in Part IV.

III. DEMOGRAPHICS OF GENERAL COUNSELS

This Part provides the demographics of general counsels in the areas of age, race/ethnicity, and gender. Before providing this data, it is important to explain our methodology for its collection. In the summer of 2016, we created a database of all of the general counsels for NFL, MLB, NBA, and NHL clubs. That database was updated in January 2017. The general counsels were determined by visiting each club’s website, and sometimes consulting the club’s media guide. To gather personal and professional data about each general counsel, we reviewed biographies available from club websites and media guides, as well as the LinkedIn69 pages personally created by the general counsels. We considered these sources to be eminently reliable in collecting data. For a small minority of general counsels, additional information was gathered from other reliable sources, including reputable news outlets and state bar records. Additionally, in considering the aggregate data presented, bear in mind that because not all clubs have general counsels, the denominators in our analysis do not match the number of clubs in each league.

68 Brad Shron, LINKEDIN, https://www.linkedin.com/in/brad-shron-82538358 [https://perma.cc/NH3K-C4UG] (last visited Feb. 19, 2017). 69 LinkedIn is an online professional networking service where people can post their academic and professional biographies. See LINKEDIN, https://www.linkedin.com/static?key=what_is_linkedin (last visited Feb. 19, 2017).

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Examination of the data also requires context. In analyzing the demographics (and later the qualifications) of general counsels in sports, it is helpful to compare that data against lawyers generally and, more specifically, in-house counsel. We will again use the 2015 survey from the Association of Corporate Counsel, mentioned earlier. 70 The 2015 survey gathered data from 5,012 in-house attorneys, fifty-nine percent of whom were located in the United States.71 We will provide corresponding data from this survey where relevant. Nevertheless, to be clear, this survey collected data from all in-house counsel, not just general counsels.

A. AGE

Table 2 below provides the number of general counsels fitting into various age brackets. Table 3 provides the age ranges of general counsels when they first assumed the position of general counsel. In collecting data, if a birth year was not readily available, we assumed that the individual was twenty-two years old the year he or she graduated from college.

Table 2: Age72

NFL MLB NBA NHL Total Under 30 0 0 1 1 2 (1.8%)

30-39 8 1 8 5 22 (19.5%) 40-49 8 12 9 10 39 (34.5%) 50-59 7 4 9 8 28 (24.8%)

Over 60 7 10 2 3 22 (19.5%) Total 30 27 29 27 113

70 2015 ACC GLOBAL CENSUS, supra note 12, at 26. 71 Id. at 33. 72 The most recent data on the ages of American attorneys comes from a 2005 report by the American Bar Foundation. That report found the ages of attorneys to be as follows: 29 years or less – 4%; 30-34 – 9%; 35-39 – 13%; 40-44 – 13%; 45-54 – 28%; 55-64 – 21%; and, 65 or older – 13%. AM. BAR ASS’N, LAWYER DEMOGRAPHICS (2016), http://www.americanbar.org/content/dam/aba/administrative/market_research/lawyer-demographics-tables-2016.authcheckdam.pdf [https://perma.cc/VNC3-Z2FV] (citing The Lawyer Statistical Report, AM. BAR FOUND. (2012)).

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Table 3: Age When Hired As General Counsel

NFL MLB NBA NHL Total

Under 30 4 1 2 2 9 (8.0%)

30-39 14 12 16 13 55 (49.1%)

40-49 6 7 10 7 30 (26.8%)

50-59 5 5 1 3 14 (12.5%)

Over 60 1 2 0 1 4 (3.6%)

Total 30 27 29 2673 112 Not surprisingly, there are only two general counsels

under the age of thirty and only nine were hired before the age of thirty. Generally speaking, it is difficult to obtain the necessary experience in such a short period of time to obtain the position of general counsel. Nevertheless, the two general counsels believed to be under thirty years of age are Zachary Kleiman of the Memphis Grizzlies74 and Alana Newhook of the Dallas Stars.75 Kleiman joined the Grizzlies after briefly working as an attorney with Proskauer Rose LLP,76 which, as will be discussed in Section IV.B.4, is one of the preeminent law firms practicing in sports. Kleiman had also previously interned with the New York Knicks, Los Angeles Lakers, Oakland Raiders, and Charlotte Bobcats. 77 Newhook worked briefly at the Dallas office of

73 Information was not available for one NHL club general counsel. 74 See Zachary Z. Kleiman, LINKEDIN, https://www.linkedin.com/ in/zachary-z-kleiman-3064178 [https://perma.cc/L6TG-RHL9] (last visited Feb. 22, 2017) (indicating that Kleiman graduated from college in 2010). 75 Alana C. Newhook, LINKEDIN, https://www.linkedin.com/in/alana-c-newhook-82257839 [https://perma.cc/ZU7E-RGZR] (last visited Feb. 22, 2017) (indicating that Newhook graduated college in 2009 after only three years). 76 Zachary Z. Kleiman, supra note 74; see infra notes 176–188 and accompanying text. 77 Zachary Z. Kleiman, supra note 74.

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Wilson Elser Moskowitz Edelman & Dicker LLP, a large national law firm,78 before joining the Stars as Legal Counsel and Director of Contract Management.79

Otherwise, the ages of the general counsels are not surprising. The largest age bracket was that of 40-49, representing 34.5% of general counsels. Yet, the age distribution is fairly consistent among the other age brackets: 30-39 (19.5%); 50-59 (24.8%); and, over 60 (19.5%).80

Finally, the data suggests that the general counsel position is one in which people remain for an extended period of time. While the 40-49 age bracket makes up the largest percentage today, almost half of general counsels for whom data was available were hired in their thirties. Additionally, while twenty-two general counsels are over sixty, only four were hired at such an age. Thus, the data suggests that many general counsels were likely hired when they were at least one age range younger.

B. RACE/ETHNICITY

Table 4 provides the racial/ethnic demographics of general counsels. In creating this data, we acknowledge there are challenging issues around this topic, particularly trying to categorize increasingly multi-cultural populations into specific categories.81 It is certainly not within our expertise to wade into any such debate and thus, for our purposes here, we largely tracked the race and ethnicity standards used by the U.S. Census

78 See WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP http://www.wilsonelser.com/ [https://perma.cc/H9CM-BC5B] (last visited Feb. 22, 2017) (describing firm as having “[n]early 800 attorneys” and “30 strategically located offices in the United States and another in London”). 79 Alana C. Newhook, supra note 75. 80 Reliable data on the oldest and youngest General Counsels was not available. 81 See D’Vera Cohn, Census Considers New Approach to Asking About Race – By Not Using the Term at All, PEW RES. CTR. (June 18, 2015), http://www.pewresearch.org/fact-tank/2015/06/18/census-considers-new-approach-to-asking-about-race-by-not-using-the-term-at-all/ [https://perma.cc/NN2F-H9F9].

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Bureau.82 Nevertheless, we did supplement the Census Bureau’s categories with the category of Hispanic/Latino, a description that research indicates is preferred by a significant portion of Americans.83

To obtain the racial/ethnic data, we conducted research into the backgrounds of each general counsel and made certain assumptions based on the information available. We recognize this is not an ideal way to collect such sensitive and personal data and encourage additional research in this area. Nevertheless, we believe this data was important to collect and that there were no other reasonably feasible methods for its collection.

Table 4: Race/Ethnicity

NFL MLB NBA NHL Total

Asian84 1 1 1 1 4 (3.5%) Black/African-

American 4 2 4 0 10 (8.8%)

Hispanic/Latino 0 1 1 0 2 (1.8%) Native American 0 0 0 0 0 (0.0%)

Native Hawaiian/Pacific

Islander 0 0 0 0 0 (0.0%)

White 25 23 23 26 97 (85.8%)

Total 30 27 29 27 113 It is unfortunate but not surprising to find that the

general counsels of professional sports clubs are overwhelmingly white. These statistics also track those of attorneys and in-house counsel generally. For example, by analyzing data from the 82 See Race, U.S. CENSUS BUREAU, http://www.census.gov/ topics/population/race/about.html [https://perma.cc/K5XJ-NGT9] (last visited Jan 21, 2017). 83 See Ana Gonzalez-Barrera, Is Being Hispanic a Matter of Race, Ethnicity or Both?, PEW RES. CTR. (June 15, 2015), http://www.pewresearch.org/fact-tank/2015/06/15/is-being-hispanic-a-matter-of-race-ethnicity-or-both/ [https://perma.cc/2K2W-LR2Z]. 84 “Asian” includes the Indian subcontinent. See U.S. CENSUS BUREAU, supra note 82.

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United States Census, the American Bar Association found that in 2010, 88% of attorneys were white, 5% were black, 4% were Hispanic, and 3% were Asian.85 Similarly, the Association of Corporate Counsel’s 2015 census reported that 7% of in-house counsel were Asian, 5% Hispanic, and 4% Black. 86 Simple arithmetic tells us then that 84% of in-house counsel were white.

We think it is important to recognize general counsels that succeeded in this industry despite the racial imbalances and thus identify those general counsels here.

The Asian general counsels are: Meghan Parekh (Jacksonville Jaguars); Ashwin Krishnan (Miami Marlins); Ram Padmanabhan (Chicago Bulls); and, Andrew Koehler (San Jose Sharks).

The Black/African-American general counsels are: Brandon Etheridge (Baltimore Ravens); Myles Pistorius (Miami Dolphins); Kevin Warren (Minnesota Vikings); Ed Goines (Seattle Seahawks); Nona Lee (Arizona Diamondbacks); Damon Jones (Washington Nationals); Joe Pierce (Charlotte Hornets); David Kelly (Golden State Warriors); Rafael Stone (Houston Rockets); and, Nicole Duckett Fricke (Los Angeles Clippers).

Finally, the Hispanic/Latino general counsels are: Sam Fernandez (Los Angeles Dodgers); and, Bobby Perez (San Antonio Spurs).

C. GENDER

Table 5 provides the gender demographics of general counsels.

Table 5: Gender

NFL MLB NBA NHL Total Female 6 5 5 5 21 (18.6%) Male 24 22 24 22 92 (81.4%) Total 30 27 29 27 113 85 See Lawyer Demographics, AM. BAR ASS’N, http://www.americanbar.org/content/dam/aba/administrative/market_research/lawyer-demographics-tables-2016.authcheckdam.pdf [https://perma.cc/VNC3-Z2FV] (last visited Feb. 21, 2017). 86 2015 ACC GLOBAL CENSUS, supra note 12, at 26.

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It is not surprising that the vast majority of general counsels of men’s professional sports clubs are men. Nevertheless, the gender disparity among sports general counsels is greater than that of attorneys generally, and significantly greater when compared to other in-house counsel. According to the American Bar Association, in 2016, 64% of American attorneys were male and 36% were female.87 Moreover, the Association of Corporate Counsel’s 2015 census reported that 50.5% of in-house counsel were male and 49.5% were female.88 We return to this issue in the Conclusion.

***

With the above understanding of the demographics of general counsels, we now turn to their professional qualifications.

IV. QUALIFICATIONS OF GENERAL COUNSELS

In Part III we provided the age, race/ethnicity, and gender demographics of general counsels. Of course, none of these characteristics should be a factor in the hiring of general counsel. 89 What is relevant are the qualifications of the individual being considered for general counsel. This Part examines those qualifications, including information about their law schools and prior work experience, including experience in the sports industry.

It is important to recognize that collecting this data was challenging as there are some general counsels for whom there is little publicly available information. While we have endeavored

87 See Lawyer Demographics, supra note 85. 88 2015 ACC GLOBAL CENSUS, supra note 12, at 26. 89 Indeed, federal law prohibits discrimination in employment decisions based on age (if 40 or older), race/ethnicity, and gender. See About the EEOC: Overview, U.S. EQUAL EMP. OPP. COMM’N, https://www.eeoc.gov/eeoc/index.cfm [https://perma.cc/EBK7-WFJQ] (last visited Feb. 21, 2017) (discussing role of U.S. Equal Employment Opportunity Commission in “enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person's race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information.”).

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to provide the most accurate information that we can, the reader should bear in mind that our data cannot be considered perfectly complete. Indeed, our data should be considered a minimum, as it is possible more general counsels have met the qualifications examined than our research was able to uncover.

A. LAW SCHOOL

Law schools place considerable importance on their rankings, as determined by the U.S. News & World Report,90 as an indicator of their prestige.91 As a result, law schools have been accused of “gaming” the rankings by distorting certain information considered in the rankings. 92 In particular, law schools have been accused of not providing accurate information concerning the post-law school employment of its graduates.93 90 See Best Law Schools, U.S. NEWS & WORLD RPT., https://www.usnews.com/best-graduate-schools/top-law-schools/law-rankings?int=a1d108 [https://perma.cc/K4RK-ZU9Y] (last visited May 5, 2017). 91 See Vivia Chen, How Law Schools Game the Rankings, THE CAREERIST (May 5, 2016), http://thecareerist.typepad.com/ thecareerist/2016/05/the-brutality-behind-law-schools-rankings-.html [https://perma.cc/9WSM-43U4] (citing WENDY NELSON ESPELAND & MICHAEL SAUDER, ENGINES OF ANXIETY: ACAD. RANKINGS, REPUTATION, AND ACCOUNTABILITY 117 (2016)). 92 See Darren Bush & Jessica Peterson, Jukin’ The Stats: The Gaming of Law School Rankings and How to Stop It, 45 CONN. L. REV. 1235, 1238 (2013); Paul Campos, Served, NEW REPUBLIC (Apr. 25, 2011), https://newrepublic.com/article/87251/law-school-employment-harvard-yale-georgetown [https://perma.cc/764Z-MNV2]; Vivia Chen, How Law Schools Game the Rankings, THE CAREERIST (May 5, 2016), http://thecareerist.typepad.com/thecareerist/2016/05/the-brutality-behind-law-schools-rankings-.html (citing WENDY NELSON ESPELAND & MICHAEL SAUDER, ENGINES OF ANXIETY: ACAD. RANKINGS, REPUTATION, AND ACCOUNTABILITY 130–31 (2016)). 93 See Darren Bush & Jessica Peterson, Jukin’ The Stats: The Gaming of Law School Rankings and How to Stop It, 45 CONN. L. REV. 1235, 1253 (2013); Christopher Polchin, Raising the “Bar” on Law School Data Reporting: Solutions to the Transparency Problem, 117 PENN ST. L. REV. 201, 205 (2012); Paul Campos, Served, NEW REPUBLIC (Apr. 25, 2011), https://newrepublic.com/article/87251/law-school-employment-harvard-yale-georgetown.

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This information is significant considering that the highest ranked law schools generally have the best employment rates.94 It also stands to reason that graduates of high-ranking law schools achieve more prestigious employment, including potentially becoming the general counsel of a professional sports club.

Table 6 summarizes the current rankings of law schools from which general counsels obtained their Juris Doctorate. While the ranking of the law school at the time the general counsel attended the law school might be a more accurate indicator of the importance of the law school’s ranking, collecting historical data for every year that a general counsel graduated from law school would have been an unreasonably burdensome task. Current law school rankings, while not perfect, provide an interesting perspective into the importance of one’s law school education on the path to becoming a general counsel.

Table 6: Current Law School Ranking

NFL MLB NBA NHL Total Top 10 11 5 9 4 29 (27.6%) 11-25 4 6 5 8 23 (21.9%) 26-50 4 6 4 2 16 (15.2%) 51-100 8 5 5 3 21 (20.0%) Over 100 3 4 5 4 16 (15.2%)

Total 30 26 28 21 10595

94 See David Lat, Who Has the Best ‘Employed at Graduation’ Rate Among the Top 14 Law Schools?, ABOVE THE L. (Mar. 13, 2013, 10:30 AM), http://abovethelaw.com/2013/03/who-has-the-best-employed-at-graduation-rate-among-the-top-14-law-schools/?rf=1 [https://perma.cc/75JN-VKGB]; Staci Zaretsky, Which Law Schools Employed the Most Graduates as Real Lawyers Versus Real Baristas?, ABOVE THE L. (Mar. 27, 2013, 1:09 PM), http://abovethelaw.com/ 2013/03/which-law-schools-employed-the-most-graduates-as-real-lawyers-versus-real-baristas/?rf=1 [https://perma.cc/U3VJ-69DK]. 95 This data does not include General Counsels who attend Canadian law schools, of which there are eight: Matthew Shuber (Toronto Blue Jays); Peter Miller (Toronto Raptors/Maple Leafs); Keely Brown (Edmonton Oilers); France Margaret Belanger (Montreal Canadiens);

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Not surprisingly, law schools ranked in the top 10 are the highest proportion of law schools attended by general counsels. Nevertheless, the distribution between the different tiers of law schools is fairly equal. While fifty-two general counsels attended a law school in the top 25 (49.5%), thirty-seven general counsels attended a law school ranked 51 or lower (35.2%). The law schools with the most alumni working as general counsels are: Harvard (8);96 University of Pennsylvania

Wendy Kelley (Ottawa Senators); Chris Gear (Vancouver Canucks); and, Dan Hursh (Winnipeg Jets). See France Margaret Belanger, LINKEDIN, https://www.linkedin.com/in/france-margaret-belanger-833b6b41/ (last visited, Feb. 22, 2017); Keely Brown, LINKEDIN, https://www.linkedin.com/in/keely-brown-88590a64/ (last visited, Feb. 22, 2017); Chris Gear, LINKEDIN, https://www.linkedin.com/in/chris-gear-bb295a1/ (last visited, Feb. 22, 2017); Dan Hursh, LINKEDIN, https://www.linkedin.com/in/dan-hursh-79a48951/ (last visited, Feb. 22, 2017); Wendy Kelley, LINKEDIN, https://www.linkedin.com/ in/wendyakelley/ (last visited, Feb. 22, 2017); Peter Miller, LINKEDIN, https://www.linkedin.com/in/peter-miller-7293892/ (last visited, Feb. 22, 2017); Annie Monjar, Maple Leaf Sports Has Serious Defense, ADVANTAGE http://advantagemagazine.ca/2014/mlse-2/ (last visited, Feb. 22, 2017); Matthew Shuber, LINKEDIN, https://www.linkedin.com/ in/matthew-shuber-4447062/ (last visited, Feb. 22, 2017). 96 Harvard’s General Counsel alumni are: Brandon Etheridge (Baltimore Ravens); Mike Egan (Atlanta Falcons); Megha Parekh (Jacksonville Jaguars); Ashwin Krishnan (Miami Marlins); Damon Jones (Washington Nationals); Michael Zarren (Boston Celtics); and, Brad Shron (Philadelphia 76ers/New Jersey Devils). See e.g., Ashwin Krishnan, LINKEDIN, https://www.linkedin.com/in/ashwin-krishnan-936a17103/ (last visited Feb. 22, 2017); Brad Shron, LINKEDIN, https://www.linkedin.com/in/brad-shron-82538358/ (last visited Feb. 22, 2017); Damon Jones, LINKEDIN, https://www.linkedin.com/ in/damon-jones-95218312/ (last visited Feb. 22, 2017); Michael Zarren, http://www.nba.com/celtics/contact/michael-zarren.html (last visited Feb. 22, 2017); Megha Parekh, LINKEDIN, https://www.linkedin.com/in/meghaparekh/ (last visited Feb. 22, 2017); Ravens Hire General Counsel Brandon Etheridge, BALT. RAVENS (Sept.14, 2016), http://www.baltimoreravens.com/news/article-1/Ravens-Hire-General-Counsel-Brandon-Etheridge/0c65958f-889d-49b1-b013-87e007d2cf78; Staff: Mike Egan, ATLANTA FALCONS,

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(5);97 Duke (4);98 Stanford (4);99 Rutgers (4);100 Columbia (3);101

http://www.atlantafalcons.com/team/staff/Mike-Egan/58a65414-3b05-4c10-89e3-d00e6578a0aa (last visited Feb. 22, 2017). 97 The University of Pennsylvania’s General Counsel alumni are: William Heller (New York Giants); Ed Weiss (Boston Red Sox); Joe Pierce (Charlotte Hornets); and, Randall Boe (Washington Wizards/Capitals). See e.g., General Counsel File: William J. Heller, New York Football Giants, Inc., PRACTICAL L. (Jan. 15, 2017), http://us.practicallaw.com/3-596-2826?q=&qp=&qo=&qe =;%20Ed%20Weiss; Ed Weiss, LINKEDIN, https://www.linkedin.com/in/ed-weiss-62900110a/ (last visited Feb. 22, 2017); Joe Pierce, LINKEDIN, https://www.linkedin.com/in/joe-pierce-2333882/ (last visited Feb.22, 2017); Randall Boe, LINKEDIN, https://www.linkedin.com/in/randall-boe-4016132/ (last visited Feb. 22, 2017). 98 Duke’s General Counsel alumni are: Rick Strouse (Philadelphia Phillies); John Higgins (Tampa Bay Rays); Scott Wilkinson (Atlanta Hawks); and Zachary Kleiman (Memphis Grizzlies). See e.g., John Higgins, LINKEDIN, https://www.linkedin.com/in/john-higgins-a0124650/ (last visited Feb. 22, 2017); Richard L. Strouse Joins Phillies, PHILLIES (Dec. 1, 2009, 11:17 AM), http://philadelphia.phillies.mlb.com/news/press_releases/press_release.jsp?ymd=20091201&content_id=7733238&vkey=pr_phi&fext=.jsp&c_id=phi; Scott Wilkinson, LINKEDIN, https://www.linkedin.com/in/scott-wilkinson-90001522/ (last visited Feb. 22, 2017); Zachary Z. Kleiman, LINKEDIN, https://www.linkedin.com/in/zachary-z-kleiman-3064178/ (last visited Feb. 22, 2017). 99 Stanford’s General Counsel alumni are: Dave Koeninger (Arizona Cardinals); Ed Policy (Green Bay Packers); Hannah Gordon (San Francisco 49ers); and, Rafael Stone (Houston Rockets). See e.g., David Koeninger, LINKEDIN, https://www.linkedin.com/in/david-koeninger-ba441938/ (last visited Feb. 22, 2017); Front Office: Ed Policy, GREENBAY PACKERS, http://www.packers.com/team/staff/policy-ed/ba047611-d232-4f82-a6e3-6a67732c47fc (last visited Feb. 22, 2017); Hannah Gordon, LINKEDIN, https://www.linkedin.com/ in/hannahgordon/ (last visited Feb. 22, 2017); The Business Team, NBA 67, 69, http://www.nba.com/media/rockets/MediaGuide 0809_page67.85.pdf (last visited Feb. 22, 2017). 100 Rutgers’ General Counsel alumni are: Jason Cohen (Dallas Cowboys); Hymie Elhai (New York Jets); Katie Pothier (Texas Rangers); and, Jay Itzkowitz (New York Islanders). See e.g., Daniel Kaplan, Forty Under 40: Hymie Elhai, STREET & SMITH’S SPORTS BUS. J. (Apr. 4, 2016), http://www.sportsbusinessdaily.com/

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Duquesne (3);102 Georgetown (3);103 Marquette (3);104 University

Journal/Issues/2016/04/04/Forty-Under-40/Hymie-Elhai.aspx; Jason Todd Cohen, ST. B. OF TEX., https://www.texasbar.com/AM/Template. cfm?Section=Find_A_Lawyer&template=/Customsource/MemberDirectory/MemberDirectoryDetail.cfm&ContactID=339078 (click “Find a Lawyer”; then search first name “Jason,” last name “Cohen,” firm “Cowboys”); Evan Hoopfer, Rangers Name New Executive Vice President and General Counsel, DALL. BUS. J., (Sep. 28, 2016), http://www.bizjournals.com/dallas/news/2016/09/28/texas-rangers-katie-pothier-vice-president-counsel.html; Jay Itzkowitz, LINKEDIN, https://www.linkedin.com/in/jay-itzkowitz-3841243 (last visited Feb. 22, 2017). 101 Columbia’s General Counsel alumni are: Ted Tywang (Cleveland Browns); Myles Pistorious (Miami Dolphins); and, Richard Haddad (Detroit Pistons). See Front Office, CLEVELAND BROWNS, http://www.clevelandbrowns.com/team/front-office.html (last visited Mar. 26, 2017); see also Staff Directory: Myles Pistorius, MIAMI DOLPHINS, http://www.miamidolphins.com/team/staff/ Pistorius_Myles/8384c068-8126-4d59-97b8-8e16e63d5224 (last visited Mar. 26, 2017); see also Richard Haddad, MICH. SPORT BUS. CONF. (Oct. 9, 2013, 11:57 AM), http://umsbc.com/richard-haddadvice-president-general-counsel-palace-sports-entertainment-detroit-pistons. 102 Duquesne’s General Counsel alumni are: Art Rooney II (Pittsburgh Steelers); Travis Williams (Pittsburgh Penguins); and, Greg Kirstein (Columbus Blue Jackets). See e.g., Arthur J. Rooney II, BUCHANAN INNGERSOLL & ROONEY PC, http://www.bipc.com/arthur-rooney (last visited Feb. 22, 2017); Greg Kirstein, LINKEDIN, https://www.linkedin.com/in/greg-kirstein-82986825/ (last visited Feb. 22, 2017); Travis Williams, LINKEDIN, https://www.linkedin.com/ in/travis-williams-71883a37 (last visited Feb. 22, 2017). 103 Georgetown’s General Counsel alumni are: Bart Waldman (Seattle Mariners); Matthew Reece (Boston Bruins); and, John Keenan (Los Angeles Kings). See e.g., Bart Waldman, LINKEDIN, https://www.linkedin.com/in/bart-waldman-288462a1/ (last visited Feb. 22, 2017); John Keenan, LINKEDIN, https://www.linkedin.com/in/john-keenan-8830631/ (last visited Feb. 22, 2017). 104 Marquette’s General Counsel alumni are: Greg Heller (Atlanta Braves); Michael Sneathern (Milwaukee Bucks); and, Nyea Sturman (Orlando Magic). See e.g., Board of Advisors, MARQ. UNIV. L. SCH., https://law.marquette.edu/national-sports-law-institute/board-advisors (last visited Feb. 22, 2015).

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of Southern California (3);105 University of Virginia (3);106 and, Washington University in St. Louis (3).107

Also not surprisingly, many of the law schools with multiple general counsels are among the top ranked law schools in the country: Stanford (2nd); Harvard (3rd); University of Pennsylvania (7th); Virginia (tied for 8th); Duke (10th); Georgetown (tied for 15th), Washington University in St. Louis (18th); and, University of Southern California (19th).108

The presence of Duquense on the above list can likely be explained by other factors. Duquense is one of only two law schools in the Pittsburgh area (University of Pittsburgh being the other), and thus Duquense alumni are general counsel for two of the Pittsburgh sports clubs (Steelers and Penguins).109

Marquette’s presence on the list is likely, at least 105 USC’s General Counsel alumni are: Todd Davis (Los Angeles Rams); Lydia Wahlke (Chicago Cubs); and, Bernard Schneider (Anaheim Ducks). See e.g., Benjamin Gleisser, A Trojan Makes His Return to L.A. With the Rams, USC TROJAN FAM., https://tfm.usc.edu/ a-trojan-makes-his-return-to-l-a-with-the-rams/ (last visited Mar. 26, 2017).; Bernard E. Schneider, LAWYERDB.COM, http://www.lawyerdb.org/Lawyer/Bernard-Schneider/ (last visited Feb. 22, 2017); Lydia Wahlke, LINKEDIN, https://www.linkedin.com/in/ lydiawahlke (last visited Feb. 22, 2017). 106 Virginia’s General Counsel alumni are: Bryan Stroh (Pittsburgh Pirates); and, Stephen Stieneker (Denver Nuggets/Colorado Avalanche). See Brian Stroh, LINKEDIN, https://www.linkedin.com /in/bstroh/ (last visited Mar. 26, 2017); see also Executive Team, PEPSI CENTER, https://www.pepsicenter.com/kse/company/executive-team/ (last visited Mar. 26, 2017). 107 Washington University in St. Louis’ General Counsel alumni are: Michael Whittle (St. Louis Cardinals); Neil Kraetsch (Oakland Athletics); and, Steve Weinreich (Minnesota Wild). See, e.g., Michael Whittle, LINKEDIN, https://www.linkedin.com/in/michael-whittle-21043511 (last visited Feb. 22, 2017); Neil Kraetsch, LINKEDIN, https://www.linkedin.com/in/neil-kraetsch-632a859 (last visited Feb. 22, 2017); Steve Weinreich, LINKEDIN, https://www.linkedin.com/ in/steve-weinreich-2a23274 (last visited Feb. 22, 2017). 108 See Best Law Schools, supra note 90. 109 See, e.g., Art Rooney IV, LINKEDIN, https://www.linkedin.com/ in/art-rooney-iv-0654b864 (last visited Jan. 16, 2017); Travis Williams, LINKEDIN, https://www.linkedin.com/in/travis-williams-71883a37 (last visited Jan. 16, 2017).

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partially, attributed to a different factor. Marquette offers a sports law program considered to be one of the best in the country, including the opportunity to earn a certificate in sports law.110 It is thus not surprising that some of its alumni have become general counsels of sports clubs. Additionally, Milwaukee Brewers General Counsel, Marti Wronski, actually taught at Marquette University Law School prior to becoming general counsel.111 Tulane University also offers a well-regarded sports law program112 that has resulted in alumni throughout the sports world, including two general counsels: Aileen Dagrosa (Philadelphia Eagles); 113 and, Alex Winsberg (Los Angeles Angels).114 Additionally, Vicky Neumeyer, general counsel for the New Orleans Saints and Pelicans, earned a Master of Laws (L.L.M.) from Tulane’s sports law program.115

B. PRIOR WORK EXPERIENCE

Of course, one’s prior work experience is an important factor in obtaining future positions. For this reason, we are interested in examining the prior work experience that led general counsels to their current positions. In this section, we

110 Sports Law, MARQ. UNIV. L. SCH., https://law.marquette.edu/ programs-degrees/sports-law (last visited Jan. 17, 2017) [https://perma.cc/9YCS-U647]. 111 Marti Wronski, At Bat for the Brewers, ST. B. OF WIS., http://www.wisbar.org/NewsPublications/WisconsinLawyer/Pages/Article.aspx?Volume=88&Issue=7&ArticleID=24225 (last visited Feb. 21, 2017) [https://perma.cc/BUL6-NVJ4]. 112 Sports Law, TULANE UNIV. L. SCH., http://www.law.tulane.edu/ tlsAcademicPrograms/sportslaw_index.aspx (last visited Jan. 17, 2017) [https://perma.cc/NSQ8-VY64]. 113 Aileen Dagrosa Biography, PHILA. EAGLES, http://media.philadelphiaeagles.com/media/151268/dagrosa-aileen.pdf [https://perma.cc/T27D-D86B] (last visited Jan. 17, 2017). 114 Alex Winsberg, LINKEDIN, https://www.linkedin.com/in/ alexwinsberg [https://perma.cc/6YY3-J6FN] (last visited Jan. 17, 2017). 115 Vicky Neumeyer Biography, NEW ORLEANS SAINTS, http://www.neworleanssaints.com/team/staff/vicky-neumeyer/ ef944dcf-02d6-4569-94a4-ccc5efa5b458 [https://perma.cc/C4YW-NCCL] (last visited Jan. 17, 2017).

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will examine the industries in which general counsels previously worked, the number of years of legal experience before becoming general counsel, the size of the law firms where they previously worked, whether they worked at law firms with sports law practices, whether they spent time working at one of the professional sports leagues’ offices, and whether they previously worked as an assistant or associate general counsel.

We again remind the reader of the challenges in gathering position-by-position career data for general counsels, which is not the most public of professions. The data we provide here we believe to be correct (even if not entirely complete) and serves to provide a better understanding of the experiences of general counsels.

1. Industries

It stands to reason that general counsels of professional sports clubs would have considerable experience in the legal and/or sports industries. Table 7 shows the industries in which general counsels previously worked. Also, note that because most of the general counsels worked in more than one industry, the total prior industries in which they worked is well more than the number of general counsels. In addition to the total number of general counsels that worked in a particular industry, we provide the percentage of general counsels that has worked in that industry.

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Table 7: Industries Worked in Prior to Becoming General Counsel

NFL MLB NBA NHL Total

Academia 0 2 1 1 4 (3.5%)116

Government 4 10 10 5 29 (25.7%)

Private law practice 25 27 24 24 100

(88.5%) Non-profit

(legal) 0 1 1 1 3 (2.7%)

Sports (legal) 16 11 11 9 47

(41.6%) Sports (non-

legal) 3 4 5 5 17 (15.0%)

Other (legal) 7 5 11 11 34 (30.1%)

Other (non-legal) 3 4 3 5 15

(13.3%) Total 58 64 66 61 249 Not surprisingly, a strong majority of general counsels

(88.5%) previously worked in a private law practice. Working for a private law firm would provide an attorney the training and experience necessary to one day become the general counsel of an organization, including a professional sports club.

Initially, it might appear that many general counsels did not have previous sports-related legal experience. Table 7 shows that of the 113 general counsels in sports, only 47 (41.6%) had prior legal experience in the sports industry. However, when calculating prior legal experience in the sports industry, we did not include the attorney’s experience at a law firm. We know that many general counsels did sports-related work at their prior law firms. Nevertheless, the scope of many general counsels’

116 These percentages are calculated by dividing the total number of general counsels that worked in this industry by the 113 clubs with general counsels.

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prior law firm practice is not readily available information and thus we did not include it in the calculation. Instead, we focused on time spent working for the leagues, clubs and other sports-related entities.

Finally, it is interesting to examine the government experience of the general counsels. At least fourteen general counsels had the experience of either a clerkship or internship with a judge at some point. 117 Additionally, three general

117 The General Counsels who had judicial clerkships or internships are: Cliff Stein (Chicago Bears); Vicky Neumeyer (New Orleans Saints/Pelicans); Ed Weiss (Boston Red Sox); Lydia Wahlke (Chicago Cubs); Giles Kibbe (Houston Astros); Erik Greupner (San Diego Padres); Damon Jones (Washington Nationals); Michael Zarren (Boston Celtics); Ram Padmanabhan (Chicago Bulls); Richard Haddad (Detroit Pistons); Ben Lauritsen (Portland Trailblazers); Sam Harkness (Utah Jazz); Robert Carr (Detroit Red Wings); and Wendy Kelley (Ottawa Senators). See Front Office: Cliff Stein, CHI. BEARS, http://www.chicagobears.com/team/staff/Cliff-Stein/8dbdd7b5-9ffa-4612-8ddd-902086ec91a3 (last visited Mar. 27, 2017); see also Vicky Neumeyer, NEW ORLEANS SAINTS, http://www.neworleanssaints.com/ team/staff/vicky-neumeyer/ef944dcf-02d6-4569-94a4-ccc5efa5b458 (last visited Mar. 27, 2017); see also Ed Weiss, LINKEDIN, https://www.google.com/search?q=Ed+Weiss+(Boston+Red+Sox)%3B&rlz=1C5CHFA_enUS705US705&oq=Ed+Weiss+(Boston+Red+Sox)%3B&aqs=chrome..69i57j0l2.292j0j4&sourceid=chrome&ie=UTF-8 (last visited Mar. 27, 2017); see also Lydia Wahlke, LINKEDIN, https://www.linkedin.com/in/lydiawahlke [https://perma.cc/C4E2-FGD4] (last visited Feb. 20, 2017); see also Giles Kibbe, supra note 56; see also Front Office: Eric Greupner, SAN DIEGO PADRES, http://sandiego.padres.mlb.com/sd/team/exec_bios/greupner.jsp (last visited Mar. 27, 2017); see also Damon Jones, supra note 96; see also Michael Zarren – Assistant GM and Team Counsel, NBA.COM: BOS. CELTICS, http://www.nba.com/celtics/contact/michael-zarren.html [https://perma.cc/4ATE-KCBW] (last visited Feb. 19, 2017); see also Executive Staff, CHI. BULLS, http://www.nba.com/bulls/chicago-bulls-staff-directory/ (last visited Mar. 27, 2017); see also Richard Haddad, supra note 101; see also Ben Lauritsen - Vice President, General Counsel, NBA.COM, http://www.nba.com/blazers/staff/ben-lauritsen-vice-president-general-counsel [https://perma.cc/M5X8-LBME] (last visited Feb. 21, 2017); see also Contact Us: Sam Harkness, UTAH JAZZ, http://www.nba.com/jazz/contact/ (last visited Mar. 27, 2017); see also Robert Carr, LINKEDIN, https://www.linkedin.com/in/robert-carr-

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counsels are former prosecutors: Richard Slivka of the Denver Broncos, who previously worked for the United States Attorney’s Office for the District of Colorado;118 H. Russell Smouse of the Baltimore Orioles, who was previously an attorney for the United States Department of Justice and an Assistant United States Attorney for the District of Maryland;119 and, Bobby Perez of the San Antonio Spurs, who was an Assistant District Attorney in Bexar County, Texas.120 Finally, David Cohen of the New York Mets was previously an Associate Judge for the juvenile court in Fulton County, Georgia.121

2. Years of Legal Experience Prior to Becoming General Counsel

As discussed throughout this Article, legal experience is an important prerequisite to becoming a general counsel. But how much legal experience? Table 8 shows the range of general counsels’ legal experience prior to becoming general counsel.

44b8b87/ (last visited Mar. 27, 2017); see also Wendy Kelley, supra note 95. 118 Adam Mimeles, Gridiron Guidance, GW MAG., http://www2.gwu. edu/~magazine/archive/2009_law_winter/dept_alumni_profile1.html [https://perma.cc/KEM7-S3T9] (last visited Jan. 17, 2017). 119 H. Russell Smouse Biography, LAWYERDB.ORG, http://www.lawyerdb.org/Lawyer/Russell-Smouse/ (last visited Mar. 26, 2017). 120 Bobby Perez, LINKEDIN, https://www.linkedin.com/in/bobby-perez-75566740 [https://perma.cc/RKQ5-BRJB] (last visited Feb. 21, 2017). 121 Roger Adler, Batter Up! New York Mets GC, David Cohen, THE NAT’L L. J. (Jan. 16, 2007), http://www.nationallawjournal.com /id=900005553012/Batter-Up?slreturn=20160809023811 [https://perma.cc/7JB3-Z3Q6].

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Table 8: Years of Legal Experience Prior to Becoming General Counsel

NFL MLB NBA NHL Total

10 or less 14 12 12 12 50

(44.2%)

11-20 10 9 12 10 41 (36.3%)

21-30 3 4 4 3 14 (12.4%)

Over 30 3 2 1 2 8 (7.1%) Total 30 27 29 27 113

The data shown in Table 8 demonstrates that while

general counsels have prior legal experience, they generally are not among the most experienced attorneys – 80.5% of all general counsels had twenty years or less of legal experience prior to becoming general counsel. Moreover, the most common experience range of general counsels is that of ten years or less (44.2%).

There is, of course, also a relation between a general counsel’s age and years of legal experience. In Section III.A., Age, we showed that 55.8% of general counsels are less than fifty. When considered alongside the data in Table 8, it appears that there is something of an age/experience sweet spot at which attorneys have benefited from several (but not many) years of experience at a law firm and are then ready to move into an in-house position, including possibly that of general counsel. Some might also move into a position as an assistant or associate counsel, which is discussed in Section IV.B.6.

3. Law Firm Size

The size of the law firm at which an individual works can have a significant impact on an attorney’s career. Larger law firms tend to represent larger organizations and be involved in cases that are more substantial (both legally and financially).122

122 See Quintin Johnstone, An Overview of the Legal Profession in the United States, How that Profession Recently Has Been Changing, and Its Future Prospects, 26 QUINNIPIAC L. REV. 737, 759 (2008).

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Attorneys working at large law firms tend to have graduated from more prestigious law schools,123 make more money than their colleagues at smaller firms,124 and are generally considered to have more career options once their careers have begun.125 Undoubtedly, having worked at a major law firm is a significant resume enhancer that can propel attorneys to prominent legal positions, including being general counsel of a professional sports club. Table 9 summarizes the available data about the law firms at which general counsels have worked, divided into four general categories: mega-law firms with 500 or more attorneys; large law firms with between 101 and 499 attorneys; medium size law firms with between 26 and 100 attorneys; and, small law firms with less than 26 attorneys.126

123 See Anthony Ciolli, The Legal Employment Market: Determinants of Elite Firm Placement and How Law Schools Stack Up, 45 JURIMETRICS J. 413, 430 (2005). 124 See Steven Davidoff Solomon, Law School a Solid Investment, Despite Pay Discrepancies, N.Y. TIMES (June 21, 2016), http://www.nytimes.com/2016/06/22/business/dealbook/law-school-a-solid-investment-despite-pay-discrepancies.html?action=click& contentCollection=DealBook&module=RelatedCoverage&region=EndOfArticle&pgtype=article [https://perma.cc/T2SG-C5XJ]. 125 See Ciolli, supra note 123, at 430. 126 We recognize that the categorization of a law firm as “large” or “small” can vary greatly depending on the metropolitan area in which the firm practices. Nevertheless, sports clubs operate on a national scale and thus we have categorized the firms according to generalized national standards.

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Table 9: Prior Law Firm Employment by Size

NFL MLB NBA NHL Total 500+

Attorneys 14 11 12 16 53 (42.7%)

101-499 Attorneys 7 6 7 9 29

(23.4%) 26-100

Attorneys 3 4 2 1 10 (8.1%)

Less than 26 Attorneys 3 7 5 3 18

(14.5%) No Law

Firm Employment

4 1 6 3 14 (11.3%)

Total 127 31 29 32 32 124 Above, we described the impact of working at a large

law firm generally. The data in Table 9 also shows the importance of working at a large law firm if you wish to be a general counsel of a professional sports club – 42.7% of general counsels (53/124) have experience working at a law firm of at least 500 attorneys (mega-law firms). Similarly, 23.4% of general counsels (29/124) have experience working at a law firm of at least 101-499 attorneys (large law firms). In considering this data, it is important to know our research revealed that seven general counsels worked at both large and mega-law firms, resulting in duplicative data. By removing the double counting, we can calculate that seventy-five general counsels (66.4%)128 previously worked at a law firm of at least 101 attorneys.

In contrast, only eighteen general counsels (14.5%) ever worked at a small law firm, i.e., one of less than twenty-six 127 In considering the totals for the above data, it is important to remember that not all clubs have a General Counsel, and that some General Counsels worked for more than one size law firm and thus are counted twice in Table 7. 128 The 75 statistic was determined by adding the 53 general counsels that worked at mega-law firms to the 29 general counsels that worked at large law firms, and subtracting 7 for the general counsels that worked at both size law firms. The 66.4% statistic was determined by dividing 75 by the 113 clubs with general counsels.

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employees. Thus, it is clear that one’s chances of becoming a general counsel are positively correlated with the size of the law firms at which the individual worked. This correlation can, at least partially, be attributed to the fact that it is generally large, prestigious law firms that have sports clubs as clients and do other sports-related work. These law firms are discussed in the next section. Lastly, those fourteen individuals that never worked at a law firm (12.4% of all general counsels) have varied paths to their current position. Some, like Todd Davis of the Los Angeles Rams 129 and Nyea Sturman of the Orlando Magic 130 were fortunate enough to begin working with the club straight out of school. Moreover, some worked in business, such as Michael Zarren of the Boston Celtics who worked as a management consultant,131 while others worked in politics, such as Gregory Jackson of the Minnesota Timberwolves, who was staff counsel for the Republicans caucus in the Minnesota State Senate where he worked for then-Senate Minority Leader Glen Taylor, who later purchased the Timberwolves.132

4. Firms Practicing Sports Law

Not surprisingly, some of the largest and most prestigious law firms regularly provide legal services to the sports leagues and their clubs. The attorneys at these firms thus become intimately familiar with the legal issues of the leagues and clubs and develop relationships with league and club officials. Thus, it is logical that when looking to hire internal legal counsel, the leagues and clubs often hire attorneys from firms with which they have a working relationship. Below, we briefly discuss these firms (in alphabetical order) and some of

129 See Todd Davis, LINKEDIN, https://www.linkedin.com/in/todd-davis-75465a5 [https://perma.cc/FKE3-GLV8] (last visited Feb. 22, 2017). 130 See Nyea Sturman, LINKEDIN, https://www.linkedin.com/in/nyea-sturman-b32859 [https://perma.cc/VQ93-ULTG] (last visited Feb. 19, 2017). 131 Michael Zarren, supra note 117. 132 Gregory W. Jackson, LINKEDIN, https://www.linkedin.com/ in/gregory-w-greg-jackson-74466920 [https://perma.cc/9PGM-ET5P] (last visited Feb. 19, 2017).

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the attorneys that have transitioned from external to internal counsel for the leagues or clubs.133 Notably, this list does not include the law firms of Weil, Gotshal & Manges LLP and Winston Strawn LLP. While both firms have robust sports practices, those practices focus on representing athletes and their players associations134 – clients whose interests are generally adverse to the clubs and leagues which are the focus of this Article. Finally, Table 10 summarizes the number of club general counsels that worked for at least some time at one of these prominent sports law firms.

a. Akin Gump Strauss Hauer & Feld LLP

Akin Gump Strauss Hauer & Feld LLP (Akin Gump) is an international law firm based in Washington, D.C. with 20 offices135 and more than 931 attorneys worldwide.136 Led by attorney Daniel L. Nash, Akin Gump currently serves as the NFL’s principal outside counsel on labor matters.137 Akin Gump is listed as the NFL’s counsel in many reported case decisions,

133 See also GLENN M. WONG, supra note 2, at 264 (discussing the top sports law firms). 134 See Company Overview of Weil, Gotshal & Manges LLP: James W. Quinn, BLOOMBERG, http://www.bloomberg.com/research/stocks/ private/person.asp?personId=33102045&privcapId=1417124&previousCapId=1417124&previousTitle=Weil,%20Gotshal%20&%20Manges%20LLP (last visited Feb. 19, 2017); Sports, WINSTON & STRAWN LLP, http://www.winston.com/en/what-we-do/sectors/sports/index.html [https://perma.cc/96BT-3JPX] (last visited Feb. 19, 2017). Quinn, a seminal figure in sports law, recently left Weil, Gotshal & Manges but the practice he created largely remains. 135 Locations, AKIN GUMP, https://www.akingump.com/en/locations/ index.html [https://perma.cc/4TMX-W48Z] (last visited Feb. 19, 2017). 136 Akin Gump Strauss Hauer & Feld LLP, VAULT, http://www.vault.com/company-profiles/law/akin-gump-strauss-hauer-feld-llp/company-overview.aspx [https://perma.cc/7GBF-SZ3W] (last visited Feb. 19, 2017) (showing the firm’s overview, ranking, diversity/pro bono, reviews, firm information, etc.). 137 Daniel L. Nash, AKIN GUMP, https://www.akingump.com/en/ lawyers-advisors/daniel-l-nash.html [https://perma.cc/VUC6-X6CT] (last visited Feb. 19, 2017).

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dating back to 1988.138 Indeed, many of the NFL’s in-house counsel practiced first at Akin Gump. Michele Roberts, the Executive Director of the National Basketball Players Association, also previously worked at Akin Gump, but was not involved in sports matters.139 Despite Akin Gump’s prestigious record, only one current general counsel previously worked at the firm. San Francisco 49ers General Counsel Hannah Gordon was a summer associate at the law firm in 2007.140 Gordon later worked for the NFL before joining the 49ers in 2011.141

b. Covington & Burling LLP

Covington & Burling LLP is an international law firm based in Washington, D.C. with ten offices142 and 930 attorneys worldwide.143 Led by attorney Gregg H. Levy, Covington & Burling currently serves as the NFL’s principal outside counsel

138 See, e.g., Nat’l Football League Mgmt. Council v. Nat’l Football League Players Ass’n, 820 F.3d 527 (2d Cir. 2016); Matthews v. Nat’l Football League Mgmt. Council, 688 F.3d 1107 (9th Cir. 2012); Powell v. Nat’l Football League, 690 F. Supp. 812 (D. Minn. 1988). 139 Jared Dubin, Who’s That Executive Director? Meet the New Head of the NBPA, Michele Roberts, GRANTLAND (July 29, 2014), http://grantland.com/the-triangle/whos-that-executive-director-meet-the-new-head-of-the-nbpa-michele-roberts/ [https://perma.cc/5QJT-RSPJ]. 140 Hannah Gordon, LINKEDIN, https://www.linkedin.com/in/ hannahgordon [https://perma.cc/B5A6-W2T6] (last visited Feb. 19, 2017). 141 Id.; Coaches & Staff: Hannah Gordon, 49ERS.COM, http://www.49ers.com/team/staff/gordon_hannah/698be8c7-e484-4fe6-8520-93ea6daf5f4b [https://perma.cc/E5FN-6YFY] (last visited Feb. 19, 2017). 142 Offices, COVINGTON & BURLING LLP, https://www.cov.com/ en/offices [https://perma.cc/4M75-SABR] (last visited Feb. 22, 2017). 143 Covington & Burling LLP at a Glance, VAULT, http://www.vault.com/company-profiles/law/covington-burling-llp/company-overview.aspx [https://perma.cc/K8WQ-65P7] (last visited Feb. 22, 2017) (showing the firm’s overview, ranking, diversity/pro bono, etc.).

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on antitrust matters.144 Covington & Burling has represented the NFL in dozens of reported cases, dating back to 1961.145 Paul Tagliabue, who served as Commissioner of the NFL from 1989 to 2006, was an attorney at Covington & Burling prior to becoming Commissioner, and returned to the firm upon leaving the NFL.146 In addition to Tagliabue, several other prominent sports attorneys spent time working at Covington & Burling, including NFL General Counsel Jeff Pash,147 and NBA General Counsel Richard Buchanan.148 The only current general counsel to have worked at Covington & Burling is Baltimore Ravens’ General Counsel Brandon Etheridge. Etheridge worked at the firm from 2011 to 2014, before being hired as counsel at the NFL.149 Etheridge worked at the NFL for approximately two years before joining the Ravens.150

c. Foley & Lardner LLP

Foley & Lardner LLP is an international law firm based

144 Gregg H. Levy, COVINGTON & BURLING LLP, https://www.cov.com/ en/professionals/l/gregg-levy [https://perma.cc/GLX6-XVWP] (last visited Feb. 22, 2017). 145 See, e.g., Am. Needle, Inc. v. Nat’l Football League, 560 U.S. 183 (2010); Brown v. Pro Football, Inc., 812 F. Supp. 237 (D.C. Cir. 1992); Am. Football League v. Nat’l Football League, 27 F.R.D. 264 (D. Md. 1961). 146 Paul J. Tagliabue, COVINGTON & BURLING LLP, https://www.cov.com/en/professionals/t/paul-tagliabue [https://perma.cc/BD97-AS99] (last visited Feb. 22, 2017). 147 Jeffrey Pash, MIT SLOAN SPORTS ANALYTICS CONF., http://www.sloansportsconference.com/people/jeffrey-pash/ [https://perma.cc/6NVR-PM36] (last visited Feb. 22, 2017). 148 Interview with NBA General Counsel Rick Buchanan, HARV. L. SCH. J. OF SPORTS & ENT. L. (Feb. 26, 2016), http://harvardjsel.com/2016/02/interview-with-nba-general-counsel-rick-buchanan/ [https://perma.cc/7XUD-XR5H]. 149 Ravens Hire General Counsel Brandon Etheridge, BALT. RAVENS (Sept. 14, 2016), http://www.baltimoreravens.com/news/article-1/Ravens-Hire-General-Counsel-Brandon-Etheridge/0c65958f-889d-49b1-b013-87e007d2cf78 [https://perma.cc/2J5C-NDWK]. 150 Id.

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in Milwaukee with 20 offices151 and more than 839 attorneys worldwide.152 Led by attorneys Mary K. Braza and Irwin P. Raij, Foley & Lardner has specialized in providing counsel on the purchase and sale of professional sports clubs as well as stadium issues.153 Foley & Lardner’s sports experience began by advising former MLB Commissioner Bud Selig during his time as owner of the Milwaukee Brewers.154 Selig later hired Foley & Lardner partner Bob DuPuy as MLB’s Chief Legal Officer.155

Given the historical ties between the Brewers and Foley & Lardner, it is not surprising that the only current general counsel to have worked at the firm is the Brewers’ current general counsel, Marti Wronski, who was an associate at the firm from 1997-2001.156

d. Kirkland & Ellis LLP

Kirkland & Ellis is an international law firm based in Chicago with 12 offices and approximately 1,700 attorneys

151 FOLEY & LARDNER LLP, https://www.foley.com [https://perma.cc/RXD6-ASBE] (last visited Feb. 22, 2017). 152 Foley and Lardner LLP, VAULT, http://www.vault.com/company-profiles/law/foley-lardner-llp/company-overview.aspx [https://perma.cc/QJV6-EN2X] (last visited Feb. 22, 2017) (showing the firm’s overview, ranking, diversity/pro bono, etc.). 153 See Mary K. Braza, FOLEY & LARDNER LLP, https://www.foley.com/mary-k-braza/ [https://perma.cc/6SKW-WSSA] (last visited Feb. 22, 2017); Irwin P. Raij, FOLEY & LARDNER LLP, https://www.foley.com/irwin-p-raij/ [https://perma.cc/BX9K-9W92] (last visited Feb. 22, 2017). 154 Rich Kirchen, Despite Selig’s Retirement, Foley & Lardner Hopes to Keep MLB Work, MILWAUKEE BUS. J. (Oct. 2, 2013, 4:41 PM), http://www.bizjournals.com/milwaukee/blog/2013/10/despite-seligs-retirement-foley.html [https://perma.cc/S3FC-YLYM]. 155 Id. 156 Stephen Schumacher, General Counsel for the Brewers, Marti Wronski, to Appear on "Conversations from St. Norbert College” Television Show, SAINT NORBERT COLL. (July 22, 2011), http://www.snc.edu/news/pressrelease/1798/ [https://perma.cc/Z2JR-JQUM].

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worldwide.157 Kirkland & Ellis represents professional sports clubs in a variety of corporate and litigation matters.158

Given its prominence in Chicago, it is not surprising that the current general counsels of the Chicago Cubs (Lydia Wahlke) and Chicago Bulls (Ram Padmanabhan) previously worked at the firm. Wahlke was an associate at the firm from 2005-08, and 2009-10 (after completing a federal clerkship),159 and Padmanabhan was an associate at the firm from approximately 1996-2000. 160 No other general counsels previously practiced at Kirkland & Ellis.

e. Latham & Watkins LLP

Latham & Watkins LLP is an international law firm based in Los Angeles with 31 offices161 and more than 2,000 attorneys worldwide. 162 Latham & Watkins sports’ practice specializes in counseling professional sports leagues and clubs on media deals.163 157 Our Firm Offices, KIRKLAND & ELLIS LLP, https://www.kirkland.com/sitecontent.cfm?contentID=233. (last visited Feb. 20, 2017). 158 Law 360 2015 Practice Group of the Year: Sports, KIRKLAND & ELLIS LLP, https://www.kirkland.com/siteFiles/News/Law360 %20(Practice%20Groups%20of%20the%20Year_%20Sports)%202016.pdf [https://perma.cc/JAC7-V62W] (last visited Feb. 20, 2017). 159 Lydia Wahlke, supra note 117. 160 The estimate of Padmanabhan’s experience at Kirkland & Ellis is based on his appearances on behalf of the firm in reported case decisions. See March Madness Ath. Ass’n LLC v. Netfire,162 F. Supp. 2d 560 (N.D. Tex. 2001) (listing Padmanabhan as a Kirkland & Ellis attorney); Texas v. Am. Tobacco Co. 14 F. Supp. 2d 956 (E.D. Tex. 1997) (relisting Padmanabhan as a Kirkland & Ellis attorney). 161 Latham Around the World, LATHAM & WATKINS LLP, https://www.lw.com/officeSearch.aspx?officeViewMode=ListView [https://perma.cc/28DN-AA6Y] (last visited Feb, 20, 2017) [hereinafter Latham Around the World]. 162 Latham & Watkins LLP, VAULT, http://www.vault.com/company-profiles/law/latham-watkins-llp/company-overview.aspx [https://perma.cc/G8SF-QJ95] (last visited Feb. 20, 2017) (showing the firm’s overview, ranking, diversity/pro bono, etc.). 163 See Entertainment, Sports & Media, LATHAM & WATKINS LLP, https://www.lw.com/industries/entertainment-sports-media [https://perma.cc/6SB8-YX29] (last visited Feb. 20, 2017); Century

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Given that it has six California offices,164 it is thus not surprising that three current general counsels working for west coast clubs previously worked at Latham & Watkins: Hannah Gordon of the San Francisco 49ers was an associate at the firm from 2008-09;165 Sam Fernandez of the Los Angeles Dodgers was an associate at the firm from 1980-84;166 and, Ben Lauritsen of the Portland Trailblazers was an associate at the firm from 2005-07. 167 Additionally, Ashwin Krishnan of the Miami Marlins was a summer associate at the firm in 2009.168

f. Paul, Weiss, Rifkind, Wharton & Garrison LLP

Paul, Weiss, Rifkind, Wharton & Garrison LLP (Paul Weiss) is an international law firm with 8 offices169 and more than 940 attorneys worldwide.170 In recent years, Paul Weiss’ sports law practice has centered around representing the NFL in the class action lawsuit brought by former players concerning concussions, 171 and attorney Ted Wells’ handling of sports-

City Partners Named Among Sports Law “Elite”, LATHAM & WATKINS LLP, https://www.lw.com/awards/latham-century-city-partners-named-among-sports-law-elite [https://perma.cc/DMU3-TLYN] (last visited Feb. 20, 2017). 164 See Latham Around the World, supra note 161. 165 Gordon, supra note 140. 166 James Bradicich, Baseball Attorneys Swing Away at USC Event, USC NEWS (Nov. 16, 2011), https://news.usc.edu/28442/baseball-attorneys-swing-away-at-usc-event/ [https://perma.cc/D8X6-KJF5]. 167 Ben Lauritsen, supra note 117. 168 Ashwin Krishnan, LINKEDIN, https://www.linkedin.com/in/ashwin-krishnan-936a17103 [https://perma.cc/56V5-FXAN] (last visited Feb. 21, 2017). 169 PAUL WEISS, https://www.paulweiss.com/ [https://perma.cc/3XNH-ZN2Y] (last visited Feb. 21, 2017). 170 Paul, Weiss, Rifkind, Wharton & Garrison LLP, VAULT, http://www.vault.com/company-profiles/law/paul,-weiss,-rifkind,-wharton-garrison-llp/company-overview.aspx [https://perma.cc/B7FM-YUEY] (last visited Feb. 21, 2017). 171 See In re Nat’l Football League Players’ Concussion Injury Litig., 307 F.R.D. 351 (E.D. Pa. 2015), aff’d, 821 F.3d 410 (3d Cir. 2016); Brad S. Karp, PAUL WEISS, https://www.paulweiss.com/professionals/

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related investigations, including investigating the conduct of former National Basketball Players Association Executive Director Billy Hunter,172 the NFL’s investigation into workplace misconduct at the Miami Dolphins,173 and allegations that the New England Patriots intentionally deflated footballs prior to the 2015 AFC Championship Game, known as “Deflategate.”174 Additionally, NBA Executive Vice President and Deputy General Counsel Daniel Rube previously worked at the firm.175 Nevertheless, the only current general counsel to have worked at Paul Weiss is New York Islanders General Counsel Jay Itzkowitz, who was an associate at the firm from 1987-1991.176

g. Proskauer Rose LLP

Proskauer Rose LLP is an international law firm based in New York City with 13 offices177 and more than 700 attorneys worldwide. 178 Led by attorney Robert Batterman, Proskauer Rose is counsel to all of the major professional sports leagues,

partners-and-counsel/brad-s-karp.aspx [https://perma.cc/5MUQ-62L9] (last visited Feb. 21, 2017). 172 Ken Belson, Inquiry Questions Actions of N.B.A. Union Chief, But Finds No Criminality, N.Y. TIMES (Jan. 17, 2013), http://www.nytimes.com/2013/01/18/sports/basketball/report-questions-actions-of-nba-union-chief-billy-hunter.html [https://perma.cc/29RU-MURF]. 173 Jacob Gershman, NFL Taps Attorney Ted Wells to Lead ‘Deflategate’ Probe, WALL ST. J. (Jan. 23, 2015, 3:33 PM), http://blogs.wsj.com/law/2015/01/23/nfl-taps-attorney-ted-wells-to-lead-deflategate-probe. 174 Id. 175 Daniel Rube, NBA CAREER OPPORTUNITIES, http://careers.nba.com/leadership/#daniel-rube [https://perma.cc/HLQ9-KL9F] (last visited Feb. 21, 2017). 176 Jay Itzkowitz, LINKEDIN, https://www.linkedin.com/in/jay-itzkowitz-3841243 [https://perma.cc/LX7T-CB9G] (last visited Feb. 21, 2017). 177 Offices, PROSKAUER ROSE LLP, http://www.proskauer.com/offices (last visited Feb. 21, 2017). 178 Proskauer Rose LLP, VAULT, http://www.vault.com/company-profiles/law/proskauer-rose-llp/company-overview.aspx [https://perma.cc/C7EK-AZST] (last visited Feb. 20, 2017) (showing the firm’s overview, ranking, diversity/pro bono, etc.).

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particularly on labor matters, e.g., collective bargaining. 179 Several prominent sports attorneys began their careers at Proskauer Rose, including former NBA Commissioner David Stern, 180 NHL Commissioner Gary Bettman, NHL General Counsel David Zimmerman,181 MLB Chief Legal Officer Dan Halem,182 and NHL Vice President, Special Projects & Corporate Social Responsibility Jessica Berman.183

Proskauer Rose has more alumni working as general counsels for sports clubs than any of the other major sports law firms. In the NFL, Megan Parekh of the Jacksonville Jaguars was a Proskauer Rose associate from 2009-2013, 184 and Aileen Dagrosa of the Philadelphia Eagles was an associate at the firm from 2004-2007.185 In the NBA, Richard Haddad of the Detroit Pistons was a Proskauer Rose associate from 2006-2008 and 2009-2012 (after completing a federal clerkship), 186 Zachary 179 L Robert Batterman, PROSKAUER ROSE LLP, http://www.proskauer.com/professionals/bob-batterman/ [https://perma.cc/TK3Y-B8KX] (last visited Feb. 20, 2017); see also Michael McCann, Proskauer Rose is the Most Powerful Law Firm in Sports, SPORTS ILLUSTRATED (Mar. 7, 2013), http://www.si.com/more-sports/2013/03/07/proskauer-rose [https://perma.cc/9SCX-6H32]. 180 McCann, supra note 179. 181 Alex Vorro, David Zimmerman is a Team Player as GC of the NHL, INSIDECOUNSEL (Aug. 1, 2011), http://www.insidecounsel.com/2011/ 08/01/david-zimmerman-is-a-team-player-as-gc-of-the-nhl [https://perma.cc/6QC7-3JQ5]. 182 MLB Official Info: MLB Executives, MLB.COM, http://mlb.mlb.com/mlb/official_info/about_mlb/executives.jsp?bio=halem_dan[https://perma.cc/TLQ4-ACYN] (last visited Feb. 20, 2017). 183 Christopher Botta, Forty Under 40: Jessica Berman, SPORTS BUS. J. (Mar. 10, 2014), http://www.sportsbusinessdaily.com/Journal/Issues/2014/03/10/Forty-Under-40/Jessica-Berman.aspx [https://perma.cc/G5QG-GCQL]. 184 Megha Parekh, LINKEDIN, https://www.linkedin.com/in/meghaparekh [https://perma.cc/HCA6-R58L] (last visited Feb. 21, 2017). 185 Aileen Dagrosa, LINKEDIN, https://www.linkedin.com/in/aileen-dagrosa-082709b8 (last visited Feb. 21, 2017). 186 Richard Haddad, LINKEDIN, https://www.linkedin.com/in/richard-haddad-9060b368 [https://perma.cc/45YP-9J29] (last visited Feb. 21, 2017).

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Kleiman of the Memphis Grizzlies was a Proskauer associate from 2013-2015,187 and Brad Shron of the Philadelphia 76ers was an associate at the firm from 2005-13.188 Shron also serves as General Counsel of the NHL’s New Jersey Devils, as both the 76ers and Devils are owned by billionaire Josh Harris.189

h. Skadden, Arps, Slate, Meagher & Flom LLP

Skadden, Arps, Slate, Meagher & Flom LLP (Skadden Arps) is an international law firm based in New York City with 22 offices190 and more than 1,650 attorneys worldwide.191 Led by attorney Jeffrey A. Mishkin, former Chief Legal Officer of the NBA,192 Skadden Arps provides counsel to all of the major professional sports leagues on a variety of matters, particularly antitrust. 193 Several prominent sports attorneys began their careers at Skadden Arps, including NHL Deputy Commissioner Bill Daly,194 NHL Deputy General Counsel Julie Grand,195 and NBA Vice President and Assistant General Counsel David

187 Kleiman, supra note 74. 188 Brad Shron, LINKEDIN, https://www.linkedin.com/in/brad-shron-82538358 [https://perma.cc/NH3K-C4UG] (last visited Feb. 21, 2017). 189 Id.; #274 Joshua Harris, FORBES, http://www.forbes.com/profile/joshua-harris/ [https://perma.cc/3ESH-49UR] (last visited Feb. 21, 2017). 190 Offices, SKADDEN, https://www.skadden.com/the-firm/offices [https://perma.cc/57J5-JG7J] (last visited Feb. 22, 2017). 191 Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates, VAULT, http://www.vault.com/company-profiles/law/skadden,-arps,-slate,-meagher-flom-llp-and-affiliates/company-overview.aspx [https://perma.cc/2PDT-Y2MA] (last visited Feb. 22, 2017). 192 Jeffrey A. Mishkin, SKADDEN, https://www.skadden.com/ professionals/jeffrey-mishkin [https://perma.cc/L4CY-YVER] (last visited Feb. 22, 2017). 193 Sports, SKADDEN, https://www.skadden.com/practice/industry-related/sports [https://perma.cc/66MJ-D72L] (last visited Feb. 22, 2017). 194 Bill Daly Bio and Timeline, SPORTS BUS. J. (Sept. 23, 2013), http://www.sportsbusinessdaily.com/Journal/Issues/2013/09/23/In-Depth/Daly-timeline.aspx [https://perma.cc/P74G-J949]. 195 Peter Lattman, The WSJ Profiles an NHL Lawyer, WALL ST. J.: L. BLOG (Sept. 18, 2006, 8:40 AM), http://blogs.wsj.com/law/2006/09/ 18/the-wsj-profiles-an-nhl-lawyer.

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Weiss.196 As mentioned above, Michele Roberts, the Executive Director of the National Basketball Players Association, also previously worked at Skadden Arps, but was not involved in sports matters.197 Nevertheless, the only current general counsel to have worked at Skadden Arps is Miami Marlins General Counsel Ashwin Krishnan, who was a summer associate at the firm in 2008.198

Table 10: Prior Experience at Firms Practicing Sports Law

NFL MLB NBA NHL Total Akin Gump

Strauss Hauer & Feld LLP

1 0 0 0 1

Covington & Burling LLP 1 0 0 0 1

Foley & Lardner LLP 0 1 0 0 1

Kirkland & Ellis LLP 0 1 1 0 2

Latham & Watkins LLP 1 2 1 0 4

Paul, Weiss, Rifkind, Wharton & Garrison LLP

0 0 0 1 1

Proskauer Rose LLP 2 0 3 1 6

Skadden, Arps, Slate, Meagher &

Flom LLP 0 1 0 0 1

Total 5 5 5 2 17

196 John Lombardo, Forty Under 40: David Weiss, SPORTS BUS. J. (Apr. 4, 2016), http://www.sportsbusinessdaily.com/ Journal/Issues/2016/04/04/Forty-Under-40/David-Weiss.aspx. [https://perma.cc/WYN4-JMQV]. 197 Dubin, supra note 139. 198 Krishnan, supra note 168.

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In considering the above data, it is helpful to remember that while the firms listed above do have international offices, they are predominantly American law firms. Thus, it would not necessarily be expected that individuals working at these law firms would go on to become the general counsel for one of the nine Canadian sports clubs.199 Thus, if we remove the nine Canadian clubs from the calculus, we see that 16.3% of the general counsels previously worked at one of the major sports law firms.200 While this percentage is fairly substantial, the data nonetheless shows that the alumni of these prominent law firms do not control the market for general counsel positions with professional sports clubs. Instead, as discussed in Section IV.B.3, a more telling statistic appears to be the qualification that a general counsel had previously worked at a law firm of at least 101 attorneys, which includes all of the firms practicing sports law discussed above.

5. League Office Experience

It makes sense that part of the work experience for some general counsels would be time having worked in the league’s office. There, the future general counsel would have gained familiarity and experience handling many of the legal issues important to the league and clubs.

Similarly, experience in a league office other than the league in which the general counsel currently works can also be helpful. For example, an NBA general counsel might have worked in the NFL league office. This too makes sense. In Section IV.B.4 we discussed the law firms with the leading sports law practices. That discussion also revealed that the sports leagues often rely on the same law firms, in particular Proskauer

199 The Canadian sports clubs are: Toronto Blue Jays (MLB); Toronto Raptors (NBA); Calgary Falmes (NHL); Edmonton Oilers (NHL); Montreal Canadiens (NHL); Ottawa Senators (NHL); Toronto Maple Leafs (NHL); Vancouver Canucks (NHL); and, Winnipeg Jets (NHL). Canada’s Major-league Professional Sports Teams, ROUGH GUIDES, https://www.roughguides.com/destinations/north-america/canada/ spectator-sports/canadas-major-league-professional-sports-teams/ (last visited Feb. 22, 2017). 200 This statistic is calculated by dividing 17 by 104. 104 equals the 113 clubs less the 9 Canadian clubs.

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Rose and Skadden Arps. In this respect, there is a community of shared legal interests and perspectives among the leagues and their clubs. Consequently, it is not surprising that some club general counsels previously worked at a league office in a different sport.

Table 11 shows the number of general counsels in each league that have previously worked at one of the offices of either the NFL, MLB, NBA, or NHL. Table 11: League Office Experience

NFL General Counsel

s

MLB General Counsel

s

NBA General Counsel

s

NHL General Counsel

s

Total

Experience at NFL 5 0 0 1 6

Experience at MLB 0 1 0 0 1

Experience at NBA 1 1 0 0 2

Experience at NHL 1 0 0 0 1

Total 7 2 0 1 10 The above data shows that only 8.8% (10/113) of

general counsels spent at least some time working in a league office. Thus, while it can obviously help, having worked for a professional sports league does not appear to be significantly important in advancing to the role of general counsel. Though, also note that seven out of thirty NFL general counsels (23.3%) did work in a league office.

Four of the general counsels took the interesting path of having worked in the league office in one sport, and then becoming general counsel for a club in another sport. Those individuals are: Myles Pistorius of the Miami Dolphins, who was an executive for the NBA for 15 years before joining the

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Dolphins in 2015;201 Ted Tywang of the Cleveland Browns who was a legal intern at the NHL; 202 Miami Marlins General Counsel Ashwin Krishnan who interned at the NBA while an undergraduate at Harvard;203 and, Gregg Brandon of the Buffalo Bills and Sabres, who clerked at the NFL while attending law school.204

Six general counsels previously worked at the league offices for the sports played by their current employer: Brandon Etheridge of the Baltimore Ravens;205 Gregg Brandon of the Buffalo Bills; 206 Ted Tywang of the Cleveland Browns; Ed Policy of the Green Bay Packers;207 Hannah Gordon of the San Francisco 49ers;208 and, John Westhoff of the Detroit Tigers.209

6. Experience as Associate Counsel

In this Section, we have examined some of the possible steps that have led to becoming a general counsel. One logical step would be the position directly underneath a general counsel, that of an associate counsel. These individuals, who can also

201 Chris Perkins, Dolphins Hire Myles Pistorius as New Chief Lawyer, SUN SENTINEL (June 18, 2015, 3:04 PM), http://www.sun-sentinel.com/sports/miami-dolphins/sfl-dolphins-hire-myles-pistorius-as-senior-vpgeneral-counsel-20150618-story.html [https://perma.cc/U3J6-VSDF]. 202 Ted Tywang, LINKEDIN, https://www.linkedin.com/in/ted-tywang-43915414/ (last visited Feb. 28, 2017). 203 Krishnan, supra note 168. 204 Gregg G. Brandon, LINKEDIN, https://www.linkedin.com/in/gregg-g-brandon-5563974 [https://perma.cc/4TUA-TF2X] (last visited Jan. 14, 2016). 205 Ravens Hire General Counsel Brandon Etheridge, BALT. RAVENS (Sept. 14, 2016), http://www.baltimoreravens.com/news/article-1/Ravens-Hire-General-Counsel-Brandon-Etheridge/0c65958f-889d-49b1-b013-87e007d2cf78. 206 Brandon, supra note 204. 207 Ed Policy, GREEN BAY PACKERS, http://www.packers.com/ team/staff/policy-ed/ba047611-d232-4f82-a6e3-6a67732c47fc [https://perma.cc/86U5-VYMZ] (last visited Jan. 18, 2017). 208 Gordon, supra note 140. 209 John Westhoff, DETROIT TIGERS, http://detroit.tigers.mlb.com/det/ team/team_frontoffice_bio.jsp?loc=john_westhoff [https://perma.cc/HJT4-ZDDW] (last visited Jan. 18, 2017).

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have a variety of titles, perform in-house legal services for the club but would be under the supervision and direction of the general counsel or another club executive. Table 12 shows how many general counsels spent time as associate counsel for a professional sports club before becoming general counsel. Table 12: Experience as Associate Counsel

NFL

General Counsels

MLB General Counsels

NBA General Counsels

NHL General Counsels

Total

For an NFL Club

5 0 1 0 6

For a MLB Club

1 5 0 0 6

For an NBA Club

0 1 3 0 4

For an NHL Club

0 0 0 3 3

Total 6 6 4 3 19 The above data shows that while being an associate

counsel is a useful career path to becoming a general counsel, it is far from a prerequisite. The fact that only 16.8% (19/113) of general counsels previously worked as an associate counsel might also be attributed to the fact that the associate counsel position is one of more recent usage. For many years, sports clubs subsisted on one or no in-house counsel, but the increasing complexity of sports clubs’ operations has necessitated more in-house attorneys.

Perhaps the most interesting portion of this data are the three individuals that were associate counsel for a club in one sport before becoming general counsel for a club in another sport: David Cohen of the Tampa Bay Buccaneers who was

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previously Director, Legal Affairs and Risk Management for the Los Angeles Angels;210 Nona Lee of the Arizona Diamondbacks who was previously Associate General Counsel for the Phoenix Suns; 211 and, Joe Pierce of the Charlotte Hornets who was previously Associate General Counsel of the Jacksonville Jaguars.212

CONCLUSION

One of the principal purposes of this Article was to better understand the career paths that tend to lead to an individual being the general counsel of a professional sports club. An ideal method for collecting this data would be through surveys completed by the general counsels. While we recommend such research be done, we recognize that it would be challenging to obtain that type of access and cooperation. Thus, we believe this Article provides important and previously unknown data. In the Article, we examined a variety of different experiences and qualifications which we hypothesized might match the experiences of general counsels. Generally speaking, our research has not elucidated any one or two clear paths to becoming a general counsel. Nevertheless, we think our analysis has elucidated three themes.

First, prestige matters. This is not a novel conclusion concerning the legal industry but it nonetheless holds true in the sports law industry as well. Ultimately, if you want a highly-respected and highly-paid legal position – which includes being general counsel of a sports club – it helps to have attended a top law school and to then have worked at a top law firm. fifty-two general counsels (49.5%) attended a law school currently ranked in the top 25 and seventy-five of them (66.4%) previously worked at a law firm of at least 101 attorneys. These law schools and law firms tend to attract high quality students and lawyers and it is thus not surprising that sports clubs would gravitate towards individuals with such resumes. 210 David Cohen, LINKEDIN, https://www.linkedin.com/in/ davidcohenesq/ (last visited Feb. 28, 2017). 211 Nona Lee, LINKEDIN, https://www.linkedin.com/in/nona-lee-087114a9 [https://perma.cc/3RJP-AQPR] (last visited Jan. 14, 2017). 212 Joe Pierce, LINKEDIN, https://www.linkedin.com/in/joe-pierce-2333882 [https://perma.cc/7W2G-K8JN] (last visited Jan. 14, 2017).

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Second, prior experience at a league office or at a major sports law firm helps, but is not essential. Only seventeen general counsels (15.0%) previously worked at a law firm with a substantial sports law practice (Table 10), and only ten (8.8%) previously worked at a league office (Table 11). Undoubtedly the general counsels who worked in these positions gained important experience and contacts, but there are still many other paths to becoming a general counsel. Third, more gender and racial diversity is needed in the roster of general counsels. Only twenty-one (18.6%) of general counsels are female and only sixteen (14.1%) are non-white. Sadly, these racial demographics generally match those of lawyers nationwide. The proportion of female general counsels nevertheless is substantially less than the thirty-six percent of all lawyers that are female. While improvement is needed in these areas in the legal industry generally, the sports industry should seek to lead in diversity given the racial diversity of its player populations 213 and its prominent status in many aspects of American culture.

In closing, we hope that this Article sheds light on an important role in the sports and legal industries, and provides

213 See Richard Lapchick & Angelica Guiao, The 2015 Racial and Gender Report Card: National Basketball Association, INST. FOR DIVERSITY & ETHICS SPORT (July 1, 2015), https://nebula.wsimg.com/ 6e1489cc3560e1e1a2fa88e3030f5149?AccessKeyId=DAC3A56D8FB782449D2A&disposition=0&alloworigin=1 [https://perma.cc/Y6ER-VDS6] (discussing the racial populations of players in the NBA); Richard Lapchick, The 2016 Racial and Gender Report Card: Major League Baseball, INST. FOR DIVERSITY & ETHICS SPORT (Apr. 20, 2016), https://nebula.wsimg.com/811d6cc2d0b42f3ff087ac 2cb690ebeb?AccessKeyId=DAC3A56D8FB782449D2A&disposition=0&alloworigin=1[https://perma.cc/XD6K-KJ25] (discussing racial populations of players in MLB); Richard Lapchick & Leroy Robinson, The 2015 Racial and Gender Report Card: National Football League, INST. FOR DIVERSITY & ETHICS SPORT (Sept. 10, 2015), https://nebula.wsimg.com/91f862c7e055dd1842f9ceb52428ae2c?AccessKeyId=DAC3A56D8FB782449D2A&disposition=0&alloworigin=1[https://perma.cc/95YQ-UDRF] (discussing the racial population of players in the NFL);. To note, no such racial and gender report card has been generated for NHL personnel and players.

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guidance for those who seek to aspire to such heights.

***

In Practice

Developing Strategies for AskingQuestions in Negotiation

Edward W. Miles

Although negotiation writers often advise negotiators to have a strat-egy for asking their counterparts questions, the negotiation literaturedoes not currently provide a detailed discussion of how to develop astrategy for asking questions in negotiation. This essay begins thatdiscussion. In doing so, it draws from such disciplines as logic, linguis-tics, and cognitive psychology, in which the act of questioning hasbeen examined with the goal of developing theory. This article alsodraws from such applied disciplines as law, education, and journal-ism, in which questioning as a matter of strategy has also beenexamined. A common theme across these different domains has beenpotential resistance to answering questions on the part of the personbeing interviewed and explorations of the sources of that resistance.Therefore, in this discussion of questioning strategy, I have focusedparticularly on how resistance can be avoided or overcome.

Key words: negotiation, negotiation theory, questions, askingquestions, erotetic logic, interviewing.

IntroductionMany negotiation writers (e.g., Watkins 2002; Reardon 2005; Hames 2012;Thompson 2012) have advised negotiators to have a strategy for askingquestions of their counterparts. Asking questions is critical to gathering

Edward W. Miles is an associate professor of managerial sciences at Georgia State University’sRobinson College of Business in Atlanta. His e-mail address is emiles@gsu.edu.

10.1111/nejo.12034© 2013 President and Fellows of Harvard College Negotiation Journal October 2013 383

information. As Roy Lewicki, David Saunders, and Bruce Barry (2010: 190)explained, strategic questioning is essential to collecting and synthesizinginformation in a negotiation context:“Asking good questions enables nego-tiators to secure a great deal of information about the other party’s posi-tion, supporting arguments, and needs.” Asking questions (Lewicki,Saunders, and Barry 2010; Thompson 2012) is critical to both distributivenegotiations (e.g., learning information to refute the counterpart’s argu-ments) as well as to integrative negotiations (e.g., learning information tohelp discover beneficial trade-offs). Leigh Thompson (2008: 99) concluded,however, that most negotiators do not ask enough questions and do notgather sufficient information; she estimated that less than 10 percent of atypical negotiation conversation involves sharing information.

Although the importance of questioning in negotiation is accepted, thenegotiation literature has not yet treated the topic of strategic questioningin depth. The purpose of this article is to begin filling that void in theliterature.

Questioning comes under the broader category of information gather-ing. In this regard, information in a particular negotiation is analogous to afive-hundred-piece jigsaw puzzle. If we can place enough of the fivehundred pieces properly, we can start to see the bigger picture. In negotia-tion, we will not place all the pieces, but if we can use enough of them, theimage will come into focus.

Questioning is one activity that enables the negotiator to see thatpicture. Others include preparing for the negotiation, by, for example,conducting research on the market and on one’s counterpart. Additionalactivities come into play during the negotiation, such as waiting for infor-mation to be offered and offering information oneself to see if that offer isreciprocated.

In gathering information, negotiators seek to learn more about thesubstance and process of the negotiation, and about their emerging rela-tionship with their counterpart. Substance can include such elements as thedegree to which the negotiation has integrative potential or will be moredistributive. How likely is agreement, and how much room for agreementmight there be? What are the critical issues to be negotiated,and what is mylevel of expertise on those issues? Is my hand relatively stronger or weaker,and is that hand likely to change over time?

Regarding process, negotiators need to decide what approach to theconversation will be most beneficial. For example, should I make the firstoffer? How ambitious should the first offer be? Which issues should beintroduced in which sequence?

Regarding the relationship: what do I know about my counterpart? Forexample,is cooperation and openness likely to be reciprocated or exploited?What characteristics — conflict avoidance or introversion, for example —does this person possess that will have bearing on the negotiation?

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Effective information gathering will bring the five-hundred-piecejigsaw puzzle into focus. In a typical negotiation,we are unlikely to place allthe pieces. If we place enough of them, however, that will be sufficient.Questioning is one tool to increase the probability of bringing the pictureinto focus.

Questioning alone will not solve all the negotiator’s information-gathering needs. Counterparts can sidestep questions. In the extreme, theycan intentionally mislead through dishonesty. Additionally, even well-intended counterparts may be unable to provide articulate answers becausethey are not totally aware of their own biases and emotions. We may askthem for answers to questions they have not previously considered (e.g.,their priorities). Questioning is just one of several information-gatheringactivities. Ideally, multiple methods for gathering information can helpnegotiators triangulate and increase our confidence that the information wehave gathered is accurate.

The Role of Questioning in the Research LiteratureAlthough it has been largely ignored by negotiation scholars, questioninghas been studied as a theory in such disciplines as philosophy, logic,linguistics, and cognitive psychology (Dillon 1982; Brozek 2011), and insuch applied fields as education (e.g., questions in classroom discussion,Morgan and Saxton 1994), law (e.g., courtroom direct and cross-examination, Brown 2007) law enforcement (e.g., police interviews, Rabonand Chapman 2009), and journalism (e.g., interviewing in the media, Adams2009). Although little of this work has been synthesized (Dillon 1982), Ibelieve our understanding of negotiation can benefit from insights gainedthrough these multiple perspectives on questioning. (Asking questions isimportant in other applied domains, ranging from car sales to improvisa-tional theatre. There does not seem to be a critical mass of literature on thetopic from those domains, however.)

Philosophers use the term erotetic logic (from the Greek word,“erotesis,”meaning“questioning”) (Dillon 1982; Harrah 1984; Brozek 2011).David Harrah specified that erotetic logic encompasses a broader domainthan explicit questioning. It comprises explicit questions, implied ques-tions, and various other less-direct methods of calling for a reply. Therefore,any mechanism that calls for a reply or is vulnerable to a reply is within thescope of erotetic logic. In this article, I assume this broader definition as thedomain of questioning.

The Impact of Negotiation Type on the Negotiator’sQuestioning StrategyThe basic purpose of asking questions in negotiation is to gain informationfrom the other party, but as Laurie Weingart, Elaine Hyder, and MichaelPrietula (Weingart, Hyder, and Prietula 1996; Hyder, Prietula, and Weingart

Negotiation Journal October 2013 385

2000) noted, the role of questioning depends on the type of negotiation.One way of categorizing these types is on a continuum ranging fromdistributive to integrative. Purely distributive negotiations are zero-sum, andthe task is to distribute the available resources between the two parties. Aprototype distributive situation would be a one-time negotiation over pricewhen the parties have no preexisting relationship and anticipate no futurerelationship.

Integrative negotiations, on the other hand, are not zero-sum; multipleissues for which the parties have differing priorities may come into play.The primary focus of an integrative negotiation is to identify and structuretrades that can benefit both parties, to identify potential agreements thatallocate resources optimally between the parties such that items of lowervalue are traded in return for items of greater value and vice versa(Thompson 1990). Ideally, such agreements can be described as Paretooptimal — no additional possible trade exists that would advantage oneparty without disadvantaging the other party to an equal degree. A com-parison of questioning issues in distributive versus integrative negotiatingappears in Table One.

Hyder, Prietula, and Weingart (2000: 172) found that a primaryapproach to distributive negotiations is substantiation:“the generation ofarguments supporting one’s proposed negotiation solution.” Therefore, fordistributive negotiations, questioning has the purpose of gaining informa-tion in support of substantiation. Additionally, questioning seeks to gaininformation to challenge or refute substantiation offered by the otherparty.

The primary purpose of questioning in integrative negotiation is dif-ferent (Thompson 1991, 2012; Weingart, Hyder, and Prietula 1996): to gaininformation about the counterpart’s interests and priorities. Thompson(1991) found that information about interests and priorities is critical toidentifying potential trade-offs that benefit both parties. Without such infor-mation, Pareto-optimal solutions are less likely to be developed. Thompsonalso argued that the negotiator who asks questions about interests andpriorities is less likely to meet with resistance than the negotiator whoseeks information for purely distributive purposes (e.g., resistance point,potential alternatives).

Thompson (1991), however, also said that negotiators will often stillresist questions, even those about their own priorities and interests.Because of the fixed-pie bias (Thompson and Hastie 1990; Bazerman andNeale 1992), the assumption that all issues being negotiated are zero-sum, negotiators often believe that requests for information regardinginterests and priorities will be used for substantiation or to refute theirown substantiation. The dilemma of openness (Kelley 1966) — that nego-tiators realize both a need to share information and a risk to sharinginformation — suggests that negotiators are generally wary about sharing

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any information they believe has the potential to be used against them inthe distributive dimensions of the negotiation process.

Therefore, a central goal of a strategy for questioning in negotiationshould be to minimize and/or overcome resistance. This article proceedstoward that end,but first I lay the initial groundwork by describing differentpurposes of questions and by discussing resistance in greater detail.

Table OneThe Role of Questioning in Distributive versus

Integrative Negotiation

Distributive Negotiation Integrative Negotiation

Purpose of questioning: Purpose of questioning:Learn information in order to

assist substantiationUnderstand interests and

priorities of counterpartQuestion (challenge)

counterpart’s substantiationDiscover potential trade-offs

Identify trade-off issues, zero-sumissues, and compatible issues

Identify any Pareto inefficiencyremaining in tentativeagreement

Purpose of providinginformation:

Purpose of providinginformation:

Substantiate position Discover potential trade-offsChallenge counterpart’s

positionMake interests and priorities

known so that they are morelikely to be considered in theagreement

State or imply strength ofposition (e.g., desirableBATNA)

Gain information

Justify requested concessions Test understandingAnchor ambitiously Meet interests of both partiesGain advantageous proportion

of the resources availableAttempt to move closer to Pareto

optimal frontier

Key risk in answering questions: Key risk in answering questions:Sharing information that

undermines negotiator’sposition or substantiation

Missing opportunity to discoverbeneficial trade-offs

Based in part on categories developed by Weingart, Hyder, and Prietula (1996).BATNA = best alternative to a negotiated agreement.

Negotiation Journal October 2013 387

The Purposes of QuestioningThis section will introduce six possible purposes of questioning. These sixcan be plotted on a continuum based on the degree to which the questionactually functions as a request for information. Figure One illustrates thiscontinuum.

Cognitive psychologists (e.g., Harrah 1984; Graesser and Black 1985;Rescher 2000) have focused on the topic of questioning. Arthur Graesser(1985) developed a list of primary “pragmatic modes” or purposes ofquestioning, three of which seem to have relevance to negotiation. The firstmode is straightforward and what most negotiators would anticipate to bethe principal role of questioning, in the logic parlance. In compiling the list,cognitive psychologists have adopted the term from the field of logic. It isreferred to as the mode of “Make It the Case That I Know.” The questionerexpects that the respondent is more knowledgeable about the informationand seeks to gain that information.

A second pragmatic mode — “Make Me Know That You Know” — iscommon in the educational context. The interlocutor (e.g., the teacher) ismore knowledgeable than the answerer and seeks to verify the respon-dent’s (e.g., student) knowledge. This pragmatic mode can have utility in

Figure OneSix Pragmatic Modes of Questioning

Make It the

Case That

I Know

Make Me

Know That

You Know

Give Me an

Answer and

Claim That

It Is True

Norm-

establishingGreeting Rhetorical

Information seeking

High Low

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negotiation. For example, negotiators who want to be assured that theircounterparts are sufficiently knowledgeable about their own productsmight test the counterpart with a question such as “Will you tell me thedifferences between your premium product line and your standard productline?” even if the questioner actually knows the answer.

A third pragmatic mode — “Give Me an Answer and Claim That It IsTrue” — is common in legal settings (e.g., courtroom direct and cross-examination). In this mode, it is assumed that both parties know the answerto the question, but the questioner wants the answerer to make an explicitstatement for purposes of the answer being “on the record.” Many court-room questioning experts (e.g., Brown 2007) are adamant that attorneysshould never ask a question unless they already know the answer.

Again, although more common in other questioning contexts, thispragmatic mode has its place in negotiation. For example, if a negotiatorknows that long-term product durability is important to the counterpart, heor she could begin a planned sequence of questions with “So, as I under-stand, long-term product durability is important to your company. Is thatcorrect?” Such an opening to a questioning sequence puts the counterpart“on record” as having agreed to the first point in building the negotiator’slogical argument in the same way it could serve a courtroom attorney inbuilding a case.

These latter two pragmatic modes illustrate the fact that some ques-tions are asked for purposes other than the straightforward gaining of newinformation. The linguistics literature offers another perspective on theseadditional purposes. Esther Goody (1978) wrote that an extreme exampleof a question that serves these other purposes is the rhetorical question.The rhetorical question is not intended to obtain information or to evokea reply, although a reply is possible. From an erotetic logic perspective,the rhetorical question is a statement that is structured in the form ofa question.

Goody (1978) further described two levels of perfunctory questions.At one level, we find questions used in greetings. In the U.S., for example,a common greeting is the question “How are you?” or some similar varia-tion. Both parties understand that this is usually a perfunctory question, andthat the questioner does not desire to hear a summary of the answerer’scurrent health situation.Unlike the rhetorical question,custom dictates thata general and typically brief reply is in order.

The second form of perfunctory question is what Goody (1978) char-acterized as the “norm-establishing” question. An example is “The time isnow 5:15 p.m. What if we stop for the day and begin tomorrow at 9:00a.m.?” The norm-establishing question bears some similarity to both thegreeting question and the “Give Me an Answer and Claim It Is True” mode.It attempts to elicit the reply that the questioner both prefers and alsowants to be “on the record.” But he or she also hopes that the response will

Negotiation Journal October 2013 389

be perfunctory without actual deliberation. As the name implies, the intentis to control some element of the interaction by establishing a norm.Therefore, the stakes involved are greater than they are for the greetingquestion, and resistance (while often unexpected) is possible.

The six pragmatic modes listed in Figure One are situated in the figureaccording to degree to which the mode seeks actual information. Anotherdimension is the degree to which the mode seeks to limit the respondent’sfreedom in providing a response. The “Give Me an Answer and Claim It IsTrue” mode (e.g., used frequently in courtroom cross-examination) is thehighest in the level of control it seeks to impose. The questioner knows theanswer and seeks to shape it (e.g., degree of specificity) to best serve heror his own interests. The modes of “Make Me Know That You Know” and“Norm-Establishing” intend to exert some control, but not as much as isintended in the courtroom.

Likewise, the “Make It the Case That I Know” mode is moderatelycontrolling because some of the information the questioner seeks mayimpose some risk on the respondent (e.g., information that has the poten-tial to be used against him or her in a distributive negotiation). Therefore,the questioner tries to phrase questions that will increase the probability ofobtaining the information (i.e., controlling). The modes of “Greeting” and“Rhetorical” are the lowest in intended control; however, control is notabsent. For example, “Greeting” questions can have the intent of steeringthe conversation (e.g., opening on a positive note).

Resistance to Answering QuestionsNegotiators frequently encounter resistance from counterparts who arereluctant to provide information (Thompson 1991; White et al. 2004;Miles 2010). This resistance reflects the mixed-motive nature of negotia-tion: it comprises both cooperative and competitive elements (Lax andSebenius 1986). Because distinguishing whether a question has beenposed for cooperative or competitive reasons is often impossible, theprudent negotiator realizes that answering questions entails risk. Thus, aneffective negotiation questioning strategy will avoid or overcome resis-tance to answering.

The literature in erotetic logic acknowledges that resistance to ques-tioning is possible (e.g., Lehnert 1978; Walton 1989; Rescher 2000), but itdoes not place a primary emphasis on the problem. Applied disciplinesseem to have given much more consideration to resistance, with insightsthat seem to apply to negotiation.

Applied Disciplines’ Perspectives on ResistanceIn education, the typical pragmatic mode is “Make Me Know That YouKnow”(e.g., teachers asking questions in the classroom). Respondents (i.e.,students) may resist because they do not know the answer (Morgan and

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Saxton 1994) or because they have no desire to know it (Dillon 1982). Inthe classroom context, educators are warned of the risks of pursuingresistant answerers too aggressively: such an approach could embarrass thestudent and “poison the well” by causing other students to resist out of adesire to avoid similar embarrassment.

In journalism, a typical questioning context is interviewing news-makers (Adams 2009). These subjects may be newsworthy because theyare government officials, corporate executives, or celebrities, or becausethey were involved in a newsworthy event. Journalists may face resistancewhen the newsworthy event is negative or controversial, and the (poten-tial) interviewee does not wish to say anything embarrassing or to be linkedpublicly to the negative event. Resistance can occur when the stakesinvolved are high; for example, business leaders may fear making ill-advisedstatements with negative repercussions for their companies (e.g., lowerstock value) and their careers (Adams 2009). It can also occur when theinterviewee grants an interview to promote a specific agenda, and thenseeks to control the direction of the questioning. Common advice in jour-nalism when faced with resistance to questioning is to “back off” (Adams2009: 58–59):

Skillful interviewers can ask almost anyone anything and get areasonable response. Approach and style are what count. You canask tough or rude questions if you ask them in the right way. Youneed to be seen as sympathetic and understanding by the personyou are talking to. They must feel they can trust you. . . . If youwant to ask important questions that you sense your intervieweewill not wish to answer, approach gently and, if you meet refusal,anger, or aggression, quickly veer away . . . and return to thesubject later.

In legal contexts (e.g., courtroom cross-examination), answerers mayresist questions because they want to avoid being implicated in illegalactivities or revealing potentially embarrassing information.But the“rules ofengagement” in the legal context (testifying under oath, the penalties forperjury, etc.) typically favor the questioner. Therefore, in legal contexts, theinterrogator is often advised to meet resistance with more questions (Dillon1982; Brown 2007; Brozek 2011).

In summary, questioners in different contexts are advised to use oppo-site approaches when confronting resistance to their questions. The differ-ence in recommended approach seems to arise from the questioner’srelative power in these situations as well as his or her ultimate goal.

Power and ResistanceFirst, the amount of power he or she has over the context determines howmuch freedom the questioner has. According to William Donohue andPaul Taylor (2007), some negotiators are “one-up” (in comparison to their

Negotiation Journal October 2013 391

counterparts) in power. For example, attorneys cross-examining a witnessin court are “one-up” because courtroom protocol gives them much greaterpower (e.g., perjury is a punishable crime). The power differential may alsoreflect dependence. For example, a journalist may be “one-down” wheninterviewing a public figure because the journalist needs a story that theinterviewee feels no real need to tell, making him or her dependent on the(potential) answerer. In summary, questioners who are “one-up” have morelatitude in the questioning approach they use because they can overcomeresistance by figurative “brute force” (e.g., institutional power). Questionerswho are “one-down” may need to rely more on finesse if they are toovercome resistance.

Face and ResistanceSocial scientists have used the term “face” to refer to the image that indi-viduals present to the public (van Ginkel 2004). Erving Goffman (1967: 5)defined face as “the positive social value a person takes for himself [orherself] by the line others assume he [or she] has taken during a par-ticular contact.” Goffman asserted that face is not the sole possession ofthe individual, but is also lodged in interaction relationships with others— essentially, it is one’s reputation and sense of honor. Therefore,an individual’s face is “on loan to him [or her] from society; it will bewithdrawn unless he [or she] conducts himself [or herself] in a waythat is worthy of it” (1967: 10). When the public accepts that face, theperson has “maintained face.” Should the presented face be discredited ornot upheld during interactions with others, the person is said to have“lost face.”

Goffman wrote (1967: 12) that “to study face saving is to study thetraffic rules of interaction.” Once a person presents a face, he or she mustmaintain it (i.e., act consistent with the presented face) and provide othersthe opportunity to maintain their own presented face or risk breaking the“traffic rules,” which can lead to defensive and embarrassing exchanges. Insummary, both maintaining face and permitting others to maintain face arecritical to social interaction; most public actions are influenced by the needto maintain face (Goffman 1967).

In negotiation, the concept of face is embodied in what Roger Fisherand Daniel Shapiro (2005: 15) described as the five core concerns: “Coreconcerns are human wants that are important to almost everyone in virtu-ally every negotiation.” These five concerns are:

• Appreciation: Negotiators want the merits of their ideas and proposalsto be acknowledged.

• Affiliation: Negotiators want to be treated as colleagues rather than asadversaries.

• Autonomy: Negotiators want freedom in decision making.

392 Miles Asking Questions

• Status: Negotiators want others to respect their relative status.

• Role: Negotiators want to define their role in a manner that they findfulfilling.

Fisher and Shapiro asserted that, in contexts in which these core concernsare not met, participants are likely to experience such negative emotions asanger, disgust, humiliation, jealousy, and embarrassment. Negotiators mayreact to these negative emotions by protecting their egos in counterpro-ductive ways, by, for example, acting deceptively or rejecting deals that arebeneficial to both parties.

In general, negotiation is inherently an activity that threatens one’sface. Judith White and her colleagues (2004) noted that many of the tacticsof distributive negotiating (e.g., challenges to the other party’s substantia-tion, disagreements regarding the value of a proposed transaction) can posea threat to one’s face. In negotiation, people also often reject our ideas andproposals — rejection presents an inherent risk to face (Besson, Roloff, andPaulson 1998).

In negotiation, questioning is frequently interpreted as a threat to theface of the person being interrogated. In distributive negotiation, a keypurpose of questioning (Table One) is to challenge the other party’s sub-stantiation. Therefore, a negotiator may be justifiably wary that his or hercounterpart’s questions are designed to discredit him or her.

More generically, evidence shows that questioning can evoke a per-ceived threat to face even when none was intended. Sarah Tracy (2002)conducted a study of 911 emergency calls by interviewing 911 dispatchersand reviewing transcripts of phone calls. Interviewees reported that callersfrequently became belligerent when being questioned. Tracy concludedthat callers were defensively responding to a sense that their face was beingthreatened. For example, people want to be perceived as competent and ofgood judgment. The call taker will ask legitimate questions about theemergency intended to provide the police with useful information. In, forexample, a drive-by shooting, such questions could include “Can youdescribe the vehicle?”“Did you see the shooting or only hear it?” The caller,however, might feel he is being doubted, that the dispatcher questions thelegitimacy and urgency of his call.

Thus, the question that is asked is not necessarily the question that isheard. Because negotiation always carries a competitive as well as a coop-erative element (Lax and Sebenius 1986), respondents may tend to perceivequestions as challenges even when no challenge was intended and feel thattheir face has been threatened, making the relationship more difficult tomanage (Goffman 1967).

Across various contexts, resistance to questioning can arise from adesire to maintain face. In the courtroom, witnesses attempt to presentthemselves as reasonable, law-abiding citizens. In the classroom, many

Negotiation Journal October 2013 393

students seek to appear well prepared. In media interviews, politicians andexecutives present themselves as honest, forthright, and capable decisionmakers acting in the public interest. In job interviews, applicants presentthemselves as the ideal candidate. In each of these contexts, questioningcan undermine the image the individual seeks to present.

Several authors (e.g., Goffman 1967; Brown and Levinson 1987; Carsonand Cupach 2000) have suggested that the most straightforward method ofavoiding threat to face is to avoid the behavior that carries the threat. Forour purposes, that advice means to avoid answering questions. Thisexplains why some potential media interviewees decline to be interviewed:They are “one-up” because they are not dependent on the questioner, sothey decline. In other contexts, the respondents lack the power to totallyavoid being questioned. For those people, partial avoidance — providingincomplete, vague, or only tangentially relevant answers — is the next bestoption.

The Four Determinants of Questioning StrategyBased on this understanding of the limitations and obstructions that nego-tiators confront when asking questions in a negotiation, I have developednine propositions that I believe should guide the development of a nego-tiation questioning strategy. These nine propositions are built on four keyantecedents. Figure Two illustrates the relationship between the anteced-ents and the propositions.

The four critical determinants of a questioning strategy, I argue, are:

1. the questioner’s need to allow the respondent to “save face”;

2. the purpose/type of the negotiation (distributive versus integrative);

3. contextual/relative power of the questioner; and

4. the desire of the questioner to maintain his own face.

Proposition One: In negotiation, questioning strategy should betempered by the degree of anticipated resistance on the part ofthe person answering.

Proposition Two: In negotiation, higher anticipated resistance(from the respondent) should increase the questioner’s concernabout maintaining his or her counterpart’s face.

An exception to Propositions One and Two occurs when the ques-tioner has a “one-up” relationship with the person he or she is questioning.When the questioner has enough power over the respondent, he or shemay obtain the desired answer even when doing so may cause the respon-dent to lose face. As discussed previously, the courtroom cross-examinationis the prototype example of this exception.

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In negotiation, the “rules of engagement” are rarely such that question-ers hold that much power. But in some cases, one negotiator has justenough relative power that he or she will feel safe asking questions thatmight threaten his or her counterpart’s face. Examples could include abuyer who has a lot of options for obtaining that product from other sellers(i.e., she sees a “buyer’s market”) or a hiring manager who has receivedhundreds of applications from qualified candidates. These negotiators willfeel freer to ask pointed, possibly even aggressive, questions:“What couldyou do that would give me full assurance that you’ll meet the deadline?”

Proposition Three: In negotiation, the greater the questioner’scontextual power, the greater the potential to obtain the desiredinformation without providing the answerer sufficient opportu-nity to maintain face.

Proposition Four: In negotiation, the greater the questioner’scontextual power, the lesser the anticipated resistance from theanswerer.

In classrooms,where the purpose of questioning students is not alwaysto gain information, questioners (teachers) are usually “one-up,” but are not

Figure TwoA Model of Some Key Antecedents to Questioning Strategy

Contextual power of the questioner

Anticipated resistance

Concern for counterpart face

Concern for own face (as having integrative motives)

Questioning strategy

P5

P1

P8

P2

P7

P9

P4

P3

P6

Purpose of the negotiation (distributive or integrative)

Negotiation Journal October 2013 395

personally disadvantaged if the student does not respond adequately. There-fore, one of the teacher’s main concerns when meeting resistance can bemaintaining the student’s face so as not to damage the student–teacherrelationship. When negotiating in ongoing relationships, helping the otherparty to maintain face strengthens the relationship.

Proposition Five: In negotiation, questioning strategy should betempered by the degree of concern for providing the counterpartan opportunity to maintain face.

As noted previously, resistance to questioning in negotiation can occurbecause the answerer is often unable to determine whether the questionreflects cooperative motives or competitive motives. Therefore, questionerswill meet with less resistance if they appear to be seeking information toachieve mutual gains (integrative) rather than personal gain (distributive)(see Table One). Phrased another way, questioners who appear to beseeking to understand their counterpart rather than seeking to exploit thecounterpart will meet with less resistance This strategy will be especiallycritical to negotiators who are “one-down” in power.

Proposition Six: In negotiation, questioners should anticipateincreased resistance if the answerer perceives the questioner’spurpose to be more oriented toward distributive gain than forachieving an integrative solution.

Proposition Seven: In negotiation, the likelier the questioner is tomeet resistance, the more benefit he or she will derive fromadopting a problem-solving, mutual gains approach.

Proposition Eight: The degree to which the questioner perceiveshe or she must work to maintain the face of his or her counter-part will help determine his or her questioning strategy.

Questioners who are “one-down” have less capacity than those whoare “one-up” to ask questions and gain the desired information if theirquestioning threatens the respondents’ face; the respondent can oftensuccessfully resist providing the desired information. As discussed above,journalists often find themselves in this situation. Thus, when meetingresistance, they are often advised to be less assertive.

Proposition Nine: The weaker the negotiator is relative to theperson he or she seeks to question, the greater will be his or herneed to adopt an integrative approach.

This model, which illustrates the antecedents to questioning strategy andthe links to resistance, suggests ways in which the negotiator can anticipatewhen questioning is more or less likely to garner useful information.

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Typology of Questions: The Form of the QuestionSome disciplines have assembled typologies of questions. These typologiesseem generally to fall into two categories: the form of the question (e.g.,yes-no, why) and the use of the question (e.g., follow-up, clarification). Bothformats are combined here in a typology of questions I have synthesized forthe negotiation context.

The Presupposition of the QuestionBoth logicians and linguists have focused primarily on the form of thequestion, identifying two key criteria for classifying types of questions.First,a principal distinction focuses on the question’s presuppositions. Accord-ing to erotetic logic (Rescher 2000), every question embodies presupposi-tions — contentions that are inherent in the question and often implicit.For example, the question “What is the melting point of lead?” implies thatlead indeed does melt, and that it does so at a predictable, nonvariabletemperature.

The principal distinction in question form is whether the presupposi-tion’s truth is asserted or tested by the phrasing of the question (Lyons1977, 1995; Woodbury 1984). For example:

Example One: Who will be responsible for shipping our order?

Example Two: Will an identifiable person be responsible for ship-ping our order?

Example One asserts the presupposition that an identifiable party willbe responsible and asks for the identity of that party. Example Two tests thepresupposition of the first question, and the answer will confirm or denythe truth of the presupposition. All questions in the English language can beclassified as one of these two types (Woodbury 1984).

Wh-QuestionsLinguists (Lyons 1977, 1995; Woodbury 1984) classify the form of questionasked in Example One as “Wh-questions” because the majority of thembegin with “Wh”: who, whose, what, when, which, why, and how. Thesequestions state the presupposition and request that the answerer supplythe information.

Wh-questions are further subdivided into broad Wh-questions andnarrow Wh-questions. Questions that begin with which, who, whose,when, and where are narrow because they seek greater specificity. NarrowWh-questions are frequently useful as follow-up questions when theanswerer has provided a response and the questioner wants more details:

Example Three (Answer): Your order will be shipped by the endof April.

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(Narrow Wh-question) Who will be responsible for shipping ourorder?

Narrow Wh-questions generally imply that the questioner wants asspecific a response as the answerer is capable of making.Broad Wh-questionsinclude those starting with why,what, and how. They are classified as broadbecause, by comparison, they are broadly seeking information and are notconstraining the scope of what the answerer may view as an appropriateresponse. They often call for more complex, explanatory answers.

Yes-No QuestionsAnother form of question — the counterpart to the Wh-question — isillustrated by Example Two, above. The questioner states the presupposi-tion and requests for the answerer to either confirm or deny the proposi-tion. In linguistics, this form of question is also termed a yes-no or bipolarquestion.

Linguists (e.g., Hudson 1975; Woodbury 1984) have identified twoextensions of the yes-no question:

Example Four: You are able to ship the order by November 30?

Example Five: You aren’t able to ship the order by November 30?

Example Six: You are able to ship the order by November 30,aren’t you?

Example Seven: You aren’t able to ship the order by November30, are you?

Examples Four and Five are implied or prosodic questions. The phrasingtakes the form of a statement, but the vocal inflection signifies that thequestioner intends to ask a question. Examples Six and Seven are tagquestions. They are similar in form to the implied question,but end with anexplicit request (i.e., a “tag”) for a “yes” or “no” response.

As shown in Examples Four through Seven,both implied questions andtag questions can be phrased positively or negatively. Depending on thecontext, a positive or negative phrasing may seem more polite or deferen-tial, or may seem less presumptuous. These variations in phrasing can beused in negotiation to reduce resistance.

Alternative Wh-QuestionsExample Eight below illustrates a specific form of the Wh-question that alsoshares some similarity with the yes-no question:

Example Eight:Which is the most critical factor to your purchasingdecision — durability, pricing, or delivery schedule?

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This format is known as the alternative Wh-question. It is a narrowingquestion that attempts to narrow the domain of which. And, like theyes-no question, it asks the answerer to make a choice, but offers morethan two.

Table Two provides a list of question forms arranged according to thecategories just described. It begins with what writers in some disciplines(e.g., Huseman, Lahiff, and Penrose 1988; Rabon and Chapman 2009;Stewart and Cash 2011) describe as “open” questions — those that give therespondent considerable freedom in how to respond and in how much

Table TwoQuestion Categories and Forms

Open

Presupposition Category Example Forms

Asserted Broad Wh-question WhyWhatHow

Narrow Wh-question WhoWhoseWhichWhenWhere

Alternative Wh-questions WhoWhoseWhichWhenWhere

Tested Yes-No questions Did youDoes your companyWill youWould youHave you

Prosodic questions (implied)

Tag questions . . . did you?. . . didn’t you?. . . right?. . . is that right?

Closed

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detail to provide — and then lists “closed” questions, those that restrict theanswerer to fewer options.

Hybrid Question FormsAccording to erotetic logic (Harrah 1984), there are two closely relatedhybrid forms of questions. The first of these is the given-that question:

Example Nine:Given that your company has not sold your productin this configuration before,why should I have confidence in yourability to provide the quality standards you are quoting me?

The given-that form of question explicitly states the presupposition. It thenfollows one of the principal question forms listed in Table Two, hence theterm“hybrid.”In this example,the principal question is a broad Wh-question.It can be particularly useful in the pragmatic mode of“Give Me an Answer andClaim That It Is True” (e.g., courtroom direct and cross-examination). Forexample,initial questions may establish the“given”element,and the given-thatquestion will then limit the answerer’s response to one that is consistent withwhat has been established.

The other specifically identified hybrid form is the hypothetical ques-tion (Harrah 1984), in which the questioner asks a question based on apresupposition that may or may not be true (Rescher 2000). It is particu-larly useful in negotiation (Babitsky and Mangraviti 2011). For example, anegotiator interested in buying ten thousand units of a product could ask:

Example Ten: If I wanted to buy fifty-thousand units, what wouldthe price per unit be?

In this case, the negotiator seeks more information about the relationshipbetween price and volume; the presupposition that he actually wants toorder fifty thousand units is stated equivocally. Hypothetical questions helpthe questioner gain information even when the presupposition borders onthe absurd:

Example Eleven: If I wanted one million units, what would theprice per unit be?

In the negotiation context, this kind of question enables the negotiatorto obtain information without making a commitment (e.g., committing tobuying a million units). Like the given-that question, the hypothetical pre-supposition can be followed by a principal question from any of the listedcategories in Table Two.

Typology of Questions: The Use of the QuestionIn erotetic logic, a distinction exists between questions used for explainingand for completing (Brozek 2011). In the interviewing literature, parallel

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terms are primary and secondary questions (Stewart and Cash 2011: 59):“Primary questions introduce topics or new areas within a topic and canstand alone even when taken out of context.” Any of the question forms inTable Two could be used as either primary questions or as secondaryquestions. Additionally, Charles Stewart and William Cash have contrastedthese with “probes” — questions or implied questions — that can be usedspecifically as secondary questions. They wrote (2011: 60):

Questions that seek to discover additional information followinga primary question are called probing or follow-up questions. . . .They enable you to dig deeper into areas and discover what aninterview party may be implying or avoiding in answers. They areessential when a respondent . . . appears to be giving an incom-plete, superficial, vague, suggestible, irrelevant, or inaccurateanswer.

Of Stewart and Cash’s (2011) enumerated probes, five seem mostrelevant to negotiation. The first is the nudging probe. This probe takesadvantage of a clear norm in two-party conversation: when one personstops speaking, the other is expected to speak. If the questioner believesthe respondent’s reply is inadequate,or that she has left out a desired detail,a nudge such as“I see”or“Tell me more”can exert subtle social pressure onthe respondent to elaborate. More closed nudging probes such as “Thenwhat happened?” can be useful for guiding the conversation.

A variation of the nudging probe is the silence probe.The answerer stopsspeaking, but the questioner waits without speaking, perhaps making eyecontact or nodding his head,expectantly waiting for the answerer to continue.In effect, the questioner’s behavior implies that the answerer’s turn has notended and the questioner does not believe it is his turn to speak.

The third is the informational probe. It is a follow-up to a specificresponse that asks for clarifying or additional information. This probe canbe used when the questioner believes the initial response was superficial(e.g.,“Why do you think your boss set that price limit?”), when a responseseems too vague (e.g.,“When you say you need additional time to reviewour proposal, what do you mean by ‘additional time’ ”?), or when additionalinformation about feelings or attitudes may provide helpful insights (e.g.,“Tell me more about your fear that the proposal involves excessive risk.”).

Fourth is the summary probe. This involves summarizing answers tomultiple questions. In negotiation, the purpose of the summary probe canbe to confirm understanding of the counterpart’s information, especiallywhen some of it has been implied, or to confirm agreement on certainelements. An example could be “So as I understand, this project absolutelymust be completed in less than six months, and you would be willing to payan incentive for early completion in less than three months. Is that correct?”

Fifth is the clearinghouse probe. The intent of this probe is to ask ifany remaining relevant information has yet to be explained.Examples might

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be “Is there anything else about your pricing that I need to know?” and“What that I haven’t asked about might be important for my company toknow about your ability to meet our timetable?” In negotiation, this probeimplies:“We are about to close this segment of the conversation; if there isremaining important information, explain it now. If you withhold suchinformation and introduce it later, your credibility and trustworthiness willbe suspect.”

A number of writers (e.g., Adams 2009; Brozek 2011; Stewart and Cash2011) have referred to leading questions versus neutral questions. Leadingquestions implicitly or explicitly indicate the answer the questioner prefers;neutral questions do not signal the preferred answer. Leading questions cancause the respondent to skew the response to please the questioner, whichcould be problematic if the intent of the question (see Figure One) isgenuinely to seek information. When the questioner’s intent is more con-trolling, however, this potential bias may not pose a problem.

Developing Strategies for Asking Questionsin NegotiationMuch of the strategy for how to ask questions is determined by whether anopen versus a closed question, as shown in Table Two, is more likely toobtain the desired information. Each of these has advantages and disadvan-tages (Rabon and Chapman 2009; Stewart and Cash 2011). The closedquestion (e.g.,“yes-no”) helps the questioner control the conversation, butit does not solicit very much information and it inhibits the respondentfrom offering additional information.

The open question is often less threatening because it gives theanswerer more latitude about which and how much information toprovide. It puts less pressure on the questioner because the answerer doesmore of the talking in the conversation. The open question, however, givesthe questioner less control of the conversation and makes it easier for therespondent to fail to provide the information the questioner seeks.

As this comparison suggests, the effective negotiator will need to useboth forms of questions. Her choice will depend in part upon what infor-mation she already has.

The Questioner’s Current KnowledgeWhat the questioner knows will vary from issue to issue, and this variationshould influence his strategy. This variation is shown in Figure Three as acontinuum with four anchor points.

The first anchor point is the information that the questioner alreadyhas. Questions regarding this information may be norm-establishing ques-tions (see Figure One). They may be designed to test the answerer’s knowl-edge (“Make Me Know That You Know”). Often such questions seek todiscover if the respondent knows what information the questioner already

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possesses. For example, the questioner’s company has experienced recentproblems meeting delivery deadlines, but she does not know if theanswerer knows this. The questioner may prefer to phrase the question sothat it does not reveal the information. Example Twelve would not achievethat objective, but Examples Thirteen or Fourteen might.

Example Twelve: Did you know that we have had problemsrecently making timely deliveries?

Example Thirteen: What do you know about our company?

Example Fourteen: Which one of our current customers recom-mended us to you?

Note that Twelve is a closed question, while Thirteen and Fourteen arewh-questions.

Examples Thirteen and Fourteen are indirect approaches. These seekto obtain the desired information without revealing the questioner’s under-lying motives. But indirect approaches can be scattershot — they may notalways reach their target (e.g., answer the questioner’s “real” question.)

The second anchor point is the information that the questioner doesnot know, but for which he can describe parameters. For example, aquestioner seeks to negotiate daily delivery of a commodity to his compa-ny’s manufacturing facility. He realizes that the pricing agreement willinclude — among other parameters — the supplier’s proposed price perton and preferred delivery schedule. He knows the parameters or the formof the information held by the answerer (supplier), but does not know the

Figure ThreeDegree of Current Knowledge Held by the Questioner

I know the information.

I do not know the information, but I can describe the parameters.

I do not know the information, but I have some awareness of the topic.

I do not know the information, and I am unaware of the topic.

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values.Phrased another way,he knows what“blanks”he needs to“fill in”butdoes not yet know how to fill those “blanks.”

In this situation, the questioner may begin with broad wh-questions(e.g., How do you typically prefer to set delivery schedules?) to gain somebackground information, but the primary questions are likely to be specificnarrow wh-questions (e.g., What delivery schedule do you propose?) withsecondary closed questions (e.g., Would moving the daily delivery timefrom 2:00 P.M. to 1:00 P.M. be feasible?).

The third anchor point is information that the questioner knows isrelevant but for which she does not know specific parameters. Forexample, a supplier may understand that a current customer wants todiscuss possible expanded future business, but does not know precisely theform of future business the customer has in mind. Compared with theprevious situation, the questioner needs to follow a fairly similar strategy,but needs to focus more on broad wh-questions. In general, the strategyshould be to start with a more open approach because framing moreprecise questions is less feasible.

The fourth anchor point presents a quandary. This is informationrelevant to the negotiation that the questioner has no awareness of; sheconfronts the dilemma that “you don’t know what you don’t know.” Howshould a negotiator frame questions under these circumstances?

There are two potential methods.One is to always open a conversationwith broad wh-questions. Steven Babitsky and James Mangraviti (2011: 14)assert that, when opening conversations with new leads, sellers shouldtypically start with “How did you hear about us?” They also suggest (2011:15) that questions such as“So,how’s everything going?”or similar variationssuch as “So, how’s business?” are helpful. These broad wh-questions canoften yield beneficial information that the questioner would not haveknown to ask about.

Opening with broad wh-questions can also be beneficial becausethey can be phrased to evoke little resistance (see Figure Two) fromthe answerer, giving him the option to go in various directions andchoose what information to share. They do not threaten the answerer’sface nor do they imply that the questioner is acting out of self-interest. Tothe contrary, the answerer can interpret such questions as efforts to estab-lish rapport (a variation of greeting questions in Figure One) or as expres-sions of the questioner’s genuine interest in the answerer and hisconcerns.

A second approach to framing questions when “we don’t know whatwe don’t know” is to use the clearinghouse probe as a secondary question,as in Example Fifteen below.

Example Fifteen: Is there anything else I should know about yourability to deliver the shipment by the February 1 deadline?

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As explained earlier, the clearinghouse probe suggests that the questioner isplacing the responsibility for sharing relevant information on the answerer.Of course, as “we don’t know what we don’t know,” the questioner willtypically (although not exclusively) lack cues that a clearinghouse probewould be beneficial. Therefore, questioners should use this probe as amatter of course for high-stakes negotiations.

Direct versus Indirect StrategyAs introduced in the previous section, questioners may employ a direct oran indirect strategy in seeking information; by this I do not mean that thequestions themselves are direct or indirect, rather it is the strategy that isdirect or indirect. Direct questioning is intended to solicit specific informa-tion and has two key drawbacks. The first, which was noted earlier andillustrated by Example Twelve, is that some direct questions, because oftheir presuppositions, will reveal information that the questioner prefersnot to reveal. Therefore, the questioner must resort to the indirect ques-tioning strategy to avoid revealing the sensitive information.

Of course, as illustrated in Example Twelve, the indirect question maynot get to the desired information. In part, this disadvantage occurs becauseindirect strategies — attempting to utilize less specific presuppositions —often employ questions that are more open than a direct strategy wouldemploy.

The second drawback to direct questioning is that it may meet withsignificant resistance. For example, a questioner frequently wants to knowthe “bottom line” or resistance point of the other party, but she knows thatasking for that information directly will meet with resistance because theanswerer (rightly) assumes that the questioner has distributive motives (seeFigure Two). Additionally, this direct question may “poison the well” andcause the respondent to scrutinize future questions more carefully. (Whenthe questioner is “one-up” in contextual power [Figure Two], she mayprevail in obtaining the desired information regardless of how the respon-dent perceives her motives).

In summary, a direct questioning strategy risks revealing damaginginformation via its presuppositions and also risks meeting with increasedresistance, but an indirect questioning strategy may not yield full informa-tion. The negotiator must weigh the advantages and disadvantages of eachapproach.

Questioning SequencesStewart and Cash (2011) recommended that questioners develop asequence of questions. As shown in Table Two, questions can range fromopen to closed. Sequences can use questions from across the range of opento closed and are intended to exploit the advantages of both kinds ofquestions while overcoming their disadvantages.

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Two primary sequences (Stewart and Cash 2011) are the “funnel” andthe “inverted funnel.” The funnel begins with open questions and proceedsincrementally toward closed questions. The inverted funnel would followan opposite sequence. An example of a funnel sequence might be:

Example Sixteen (a): What do you know about our product line?

Example Sixteen (b): Which of our products seem to meet yourneeds the most?

Example Sixteen (c): How frequently do you normally placeorders?

Example Sixteen (d): Do you have a current contract withanother vendor?

The funnel sequence initially gives answerers the opportunity to providewhatever information they believe to be relevant. As discussed earlier, openquestions are usually perceived as less threatening and are a good way to getpeople talking.Closed questions risk being seen as leading questions, in partbecause the presuppositions are often more specific,so beginning with openquestions can make it easier to seek information without the questionerinferring a preferred answer.Also,some closed questions require the answererto take a position that they will be forced to maintain (i.e., in order to saveface).An example of this situation would be the question,“Is price or premiumservice more important to your company?”

On the other hand, the inverted funnel can draw out a reluctantanswerer by starting with questions that require simple “yes-no” answers.This sequence can also be beneficial when the answerer is not an expert onthe particular topic and feels uncomfortable answering open questions(e.g.,“If we put together a working relationship with your company, wheredo you see that relationship taking us in five years?”). The inverted funnelcan also be helpful in jogging an answerer’s memory.

I recommend that negotiators use the funnel sequence as the defaultand only use the inverted funnel when the specific advantages (listedabove) warrant a departure from the default. For negotiation, beginningbroadly (i.e., broad wh-questions) is beneficial for most points on thecontinuum illustrated in Figure Three. Even when it is the least critical —“Ido not know the information, but I can describe the parameters” — thereis still frequently a benefit to seeking broad background information, and attimes a benefit to using an indirect questioning strategy — both of whichare consistent with broad wh-questions.

Framing of QuestionsIn their landmark stream of research, Amos Tversky and Daniel Kahneman(1981) demonstrated that the way choices are phrased and presented —

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the way they are “framed” — influences the decisions people make. MaxBazerman and his colleagues (e.g., Bazerman and Neale 1992; Malhotra andBazerman 2007) have addressed the irrational ways in which negotiatorsreact to risk and to gains versus losses. Dealing specifically with requests,Robert Cialdini (2001) has found that a person can improve the probabilitythat his or her request will be granted by the way he or she phrases it. Forexample, a smaller request is more likely to be granted immediately follow-ing a larger request that has been rejected than it would be without thepreceding request.

Moving from the broader context of requests to the specific context ofquestions, the same logic holds that the framing of the question can influ-ence the answer. As Fisher and Shapiro (2005) noted, actions that donot address the counterpart’s core concerns (appreciation, affiliation,autonomy, status, and role) can receive negative responses. The samerequest for information can be framed in ways that are more or lessthreatening to the counterpart:

Example Seventeen: You don’t have the capacity to produce thisorder in two weeks, do you?

Example Eighteen: Can you produce this order in two weeks?

Example Nineteen: Moving quickly will help our client signifi-cantly. What is the feasibility of producing this order in twoweeks?

Permitting the answerer to save face makes for a smoother, less defen-sive conversation, and the phrasing of questions can be critical to achievingthat goal. Example Nineteen holds less risk of impugning the answerer’sneeds for appreciation, affiliation, and status.

Specific RecommendationsBased on all the dynamics and variables discussed so far, I have developeda concrete set of eight recommendations for negotiators preparing theirstrategies for asking questions in a negotiation.

Recommendation One: Use broad wh-questions vigilantly. Beginevery negotiation with them unless a compelling reason existsnot to do so.

As Thompson (2008) has argued, negotiators often do not gathersufficient information. Broad questions are essential to gaining a richness ofinformation, as Don Rabon and Tanya Chapman (2009: 52) argued. Theywrote: “If we were to compare a [questioning situation] to a meal, openquestions would be the main entrée. All of the other questioning types areside dishes. The side dishes are there to enhance the meal. As tempting as

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it may be, do not try to make a meal out of a side dish.” Closed questionshave a critical and essential role; they “fill in” specific “blanks,” but therichness of information transmitted by open questions is critical when theprimary purpose is to seek information.

Stewart and Cash (2011) have advised questioners not to fall victim tothe “open-to-closed switch,” a common pitfall in which a questioner beginswith an open question, but mistakenly follows it with a closed questionbefore the answerer can respond. They assert that answerers will typicallyrespond to the closed question but not the open question. Example Twentyillustrates a question that makes this strategic error:

Example Twenty: What has been your experience with yourcurrent vendor? Is their service response time what you need?

This switch may occur when the questioner becomes uncomfortablebecause the respondent does not begin immediately to answer the firstquestion. Stewart and Cash recommend being more tolerant of silence inthe conversation and not feeling compelled to fill it so readily.

Recommendation Two: Use hypothetical questions.

Hypothetical questions can gain information that is difficult to accessusing other question forms. The questioner can request informationwithout asserting that the presupposition is true. The hypothetical can bephrased so that the questioner solicits the information without making acommitment to follow through with the presupposition.

Recommendation Three: Use clearinghouse probes.

The questioner can fall victim to the“I don’t know what I don’t know”dilemma. Clearinghouse probes are one way to seek information when thequestioner does not know whether or not relevant information is held bythe answerer. Obviously, ending each question sequence with a clearing-house probe could become irritating to the answerer; the questioner shoulduse this probe when the stakes are sufficiently high, but should notoveruse it.

Recommendation Four: Think in terms of question sequences.Use a funnel sequence unless there is a compelling reason to usean inverted funnel.

Recommendation Five: Anticipate that open questions willusually need to be followed by probes and other forms of rela-tively closed questions.

Negotiators should realize that, while open questions are important(“the entrée”), they do have shortcomings and may need to be followed by

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a closed question. Negotiators should accept that, as a norm, single ques-tions are unlikely to uncover all the desired information and that questionsequences will be necessary. At times, the negotiator should plan to use thehybrid form of the “given-that” question in the building of a questionsequence.

Recommendation Six: Consider whether the situation dictatesthat an indirect questioning approach has a greater probability ofsuccess in seeking information on a particular topic.

An indirect approach can be beneficial under two scenarios: when adirect phrasing of the question (specifically the presupposition) wouldreveal damaging information and when a direct phrasing would meet withsufficient resistance to thwart the questioner’s attempt to gain the desiredinformation.

Recommendation Seven: Only use leading questions when theprimary purpose of the question is not to seek information thequestioner does not already know.

For some questioning purposes,such as norm-establishing and“Give Mean Answer and Claim That It Is True,”the leading question can be useful.Whenthe primary purpose is information seeking,however,leading questions carrythe risk that the respondent will skew responses to satisfy the questioner.

Recommendation Eight: As much as is feasible, plan questioningstrategy and question sequences before the negotiation begins.

Rabon and Chapman (2009), in the context of police interviewing,have advocated that interviewers plan their questioning approach beforebeginning, which will make the conversation more focused and more likelyto obtain the desired information. In the worst case, the interviewer losescontrol of the conversation to the interviewee,which is an even greater riskin negotiation because both parties are allowed to ask questions — some-thing the witness cannot do in a courtroom or police interrogation room,for example.

ConclusionInformation is critical to negotiation.Negotiators are unlikely to obtain all therelevant information they would like to obtain from their counterparts. Butas they gain information, similar to placing puzzle pieces together, a picturebegins to emerge.Effective questioning is an important tool that can improvethe probability of putting more pieces of the puzzle in the right places.

As negotiations open, aspects of both the substance and the processmay remain unknown. For example, negotiators are often unable to assess

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beforehand the degree to which integrative potential exists. Therefore, thenegotiator must ask questions to help him or her decide whether a dis-tributive strategy or integrative strategy is most desirable.

The nature or potential nature of the parties’ relationship may also besomewhat unknown. For example, will openness and cooperation be recip-rocated? Beginning with broad background questions can help the nego-tiator assess his or her counterpart’s degree of openness.

Likewise, beginning the conversation with broad wh-questions typi-cally seems less threatening than opening with closed questions. Negotia-tors often perceive threats where none were intended. Therefore,negotiators must guard against this bias in the way they frame questions. Inthe worst case, a negotiator will make initial choices (e.g., following adistributive strategy) that limit his future opportunities (e.g., discoveringtrade-off potential). Developing a strategic plan for how to ask questions,especially at the opening to a negotiation, can help avoid this problem.

Questioning is one of multiple ways of gathering information in nego-tiation. It has its limitations. One is that information is not static throughoutthe negotiation. Often, we begin negotiations by inquiring about interestsand priorities, but both can change in the course of a negotiation. Addi-tionally, respondents may not have thoroughly considered their interestsand priorities initially, and the negotiation conversation may cause them torethink and refocus.

Finally, although this essay has focused on asking questions, some ofthese ideas also have implications for answering questions. Just like a chessplayer, a negotiator plays both sides of the table and answers questions aswell as asks them. In answering, negotiators must be aware of reciprocity.If he wants his counterpart to answer his questions, he must give accept-able answers to most of his counterpart’s questions. Because negotiationalways has a competitive element, however, negotiators usually hold someamount of information they do not want to share. If they realize theircounterpart is likely to ask a particularly difficult question,one strategy is topreempt that question by offering information on the topic, but framed theway the negotiator prefers. That approach reduces the counterpart’scontrol of the conversation.

In answering questions, negotiators should keep in mind the generalprinciple from erotetic logic that all questions reflect a presupposition, butbe aware that not all presuppositions are warranted. For example, thequestion“Which is more important to your company – pricing or customerservice?” implies that one is more important than the other and that oneshould be willing to concede on the lesser priority to meet the higherpriority. Although the respondent may not need to do so explicitly, shegenerally has the right to reject the presupposition. For example, this replymight be in order: “We think we have reasonable expectations on both. Ithink reasonable terms on both will be a good foundation for a long-term

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relationship.” Most negotiators receive questions they prefer to sidestep orevade. Additionally, some questions are perceived as “traps” with thepurpose of “Make Me Know That You Know” or “Give Me an Answer andClaim That It Is True.” One way of coping with these questions is to rejectthe presupposition.

Negotiators should also remember that answering, as well as question-ing,can provide opportunities to unearth information.For example, WilliamUry (2007) argued that providing an answer of “no” can be an opportunityto frame the answer as a “yes” to something else. In effect, this strategy alsochallenges the presupposition of the question but with a potentially posi-tive outcome.

REFERENCES

Adams, S. 2009. Interviewing for journalists, 2nd edn. London: Routledge.Babitsky, S., and J. J. Mangraviti. 2011. Never lose again: Become a top negotiator by asking the

right questions. New York: Thomas Dunne Books.Bazerman, M. H., and M. A. Neale. 1992. Negotiating rationally. New York: The Free

Press.Besson, A. L., M. E. Roloff, and G. D. Paulson. 1998. Preserving face in refusal situations. Communi-

cation Research 25: 183–199.Brown, P., and S. C. Levinson. 1987. Politeness: Some universals in language usage. Cambridge:

Cambridge University Press.Brown, P. M. 2007. The art of questioning: Thirty maxims of cross-examination. Clark, NJ: The

Lawbook Exchange.Brozek, A. 2011. Theory of questions: Erotetics through the prism of its philosophical background

and practical applications. Amsterdam: Rodopi.Carson, C. L., and W. R. Cupach. 2000. Facing corrections in the workplace: The influence of

perceived threat on the consequences of managerial reproaches. Journal of Applied Com-munication Research 28: 215–234.

Cialdini, R. B. 2001. Influence: Science and practice. Boston: Allyn & Bacon.Dillon, J. T. 1982. The multidisciplinary study of questioning. Journal of Educational Psychology

74: 147–165.Donohue, W. A., and P. J. Taylor. 2007. Role effects in negotiation: The one-down phenomenon.

Negotiation Journal 23(3): 307–331.Fisher, R., and D. Shapiro. 2005. Beyond reason: Using emotions as you negotiate. New York:

Viking Press.Goffman, E. 1967. Interactional ritual: Essays in face-to-face behavior. Chicago: Aldine Publishing

Company.Goody, E. N. 1978. Towards a theory of questions. In Questions and politeness: Strategies in social

interaction, edited by E. N. Goody. Cambridge: Cambridge University Press.Graesser, A. C. 1985. An introduction to the study of questioning. In The psychology of questions,

edited by A. C. Graesser and J. B. Black. Hillsdale, NJ: Lawrence Erlbaum.Graesser, A. C., and J. B. Black (eds). 1985. The psychology of questions. Hillsdale, NJ: Lawrence

Erlbaum.Hames, D. S. 2012. Negotiation: Closing deals, settling disputes, and making team decisions. Los

Angeles: Sage.Harrah, D. 1984. The logic of questions. In Handbook of philosophical logic, Vol. II, edited by D.

Gabbay and F. Guenther. Dordrecht, The Netherlands: Reidel.Hudson, R. A. 1975. The meaning of questions. Language 51: 1–31.Huseman, R. C., J. M. Lahiff, and J. M. Penrose. 1988. Business communication: Strategies and skills,

3rd edn. Chicago: Dryden Press.Hyder, E. B., M. J. Prietula, and L. R. Weingart. 2000. Getting to best: Efficiency versus optimality in

negotiation. Cognitive Science 24: 169–204.

Negotiation Journal October 2013 411

Kelley, H. H. 1966. A classroom study of dilemmas in interpersonal negotiations. In Strategicintervention and conflict, edited by K. Archibald. Berkeley: University of California, Instituteof International Studies.

Lax, D. A., and J. K. Sebenius. 1986. The manager as negotiator: Bargaining for cooperation andcompetitive gain. New York: The Free Press.

Lehnert, W. G. 1978. The process of question answering. Hillsdale, NJ: Lawrence Erlbaum.Lewicki, R. J., D. M. Saunders, and B. Barry. 2010. Negotiation, 6th edn. Boston: McGraw-Hill

Irwin.Lyons, J. 1977. Linguistic semantics: An introduction. Cambridge: Cambridge University Press.— — —. 1995. Semantics, Vol. 2. Cambridge: Cambridge University Press.Malhotra, D., and M. H. Bazerman. 2007. Negotiation genius. New York: Bantam Books.Miles,E. W. 2010.The role of face in the decision not to negotiate. International Journal of Conflict

Management 21: 400–414.Morgan, N., and J. Saxton. 1994. Asking better questions: Models, techniques and classroom

activities for engaging students in learning. Markham, Ontario, Canada: PembrokePublishers.

Rabon, D., and T. Chapman. 2009. Interviewing and interrogation, 2nd edn. Durham, NC: CarolinaAcademic Press.

Reardon, K. 2005. Becoming a skilled negotiator. New York: Wiley.Rescher, N. 2000. Inquiry dynamics. New Brunswick, NJ: Transaction Publishers.Stewart, C. J., and W. B. Cash. 2011. Interviewing: Principles and practices, 13th edn. New York:

McGraw-Hill.Thompson, L. 1990. Negotiation behavior and outcomes: Empirical evidence and theoretical issues.

Psychological Bulletin 108: 515–532.— — —. 1991. Information exchange in negotiation. Journal of Experimental Social Psychology

27: 161–179.— — —. 2008. The truth about negotiations. Upper Saddle River, NJ: Pearson Education.— — —. 2012. The mind and heart of the negotiator, 5th edn. Boston: Pearson.Thompson, L., and R. Hastie. 1990. Social perception in negotiation. Organizational Behavior and

Human Decision Processes 47: 98–123.Tracy, S. J. 2002. When questioning turns to face threat: An interactional sensitivity in 911 call-

taking. Western Journal of Communication 66: 129–157.Tversky, A., and D. Kahneman. 1981. The framing of decisions and the psychology of choice.

Science 211(4481): 453–458.Ury, W. 2007. The power of a positive no. New York: Bantam Books.van Ginkel, E. 2004. The mediator as face-giver. Negotiation Journal 4: 475–487.Walton, D. N. 1989. Question-reply argumentation. New York: Greenwood Press.Watkins, M. 2002. Breakthrough business negotiation: A toolbox for managers. San Francisco:

Jossey-Bass.Weingart, L. R., E. B. Hyder, and M. J. Prietula. 1996. Knowledge matters: The effect of tactical

descriptions on negotiation behavior and outcome. Journal of Personality and Social Psy-chology 70: 1205–1217.

White, J. B., R. Tynan, A. D. Galinsky, and L. Thompson. 2004. Face threat sensitivity in negotiation:Roadblock to agreement and joint gain. Organizational Behavior and Human DecisionProcesses 94: 102–124.

Woodbury, H. 1984. The strategic use of questions in court. Semiotics 48: 197–228.

412 Miles Asking Questions

Keith Allred is Assistant Professor at the John F. Kennedy School of Government at Harvard Univer-sity, 79 John F. Kennedy St., Cambridge, Mass. 02138. Email: Keith_Allred@harvard.edu

0748-4526/00/1000-0387$18.00/0 © 2000 Plenum Publishing Corporation Negotiation Journal October 2000 387

Distinguishing Best and Strategic Practices:A Framework for Managing the Dilemma

between Creating and Claiming Value

Keith G. Allred

Most negotiation courses and textbooks focus a good deal of attention onthe tension between competitive moves to claim value and cooperativemoves to create value. However, relatively little empirically-based advice isoffered about how to manage that tension effectively. Drawing broadly onnegotiation research, this essay elaborates a framework of prescriptiveadvice for how negotiators can manage the tension effectively by distin-guishing between best practices and strategic practices. Best practices aredefined as those that tend to work well in all situations. Strategic practicesare defined as those that tend to work well in certain situations and poorlyin others. Best and strategic asserting, accommodating, integrating, andavoiding practices are elaborated.

Most courses and many books on negotiation describe a basic tensionbetween two dimensions of negotiation performance. The first dimension,named the distributive or claiming value dimension, concerns the extent towhich a party achieves an agreement that affords that party a favorable por-tion of the available benefits and burdens. The second dimension, typicallyknown as the integrative or creating-value dimension, concerns the extent towhich the parties craft an agreement that increases the benefits anddecreases the burdens to be distributed to both.

The tension between these two dimensions of negotiation performanceis that many of the moves to claim value for oneself are competitive and

assertive in nature and tend to drive out the cooperative moves that areeffective at creating value. Similarly, cooperative moves to create value oftenexpose one to exploitation in claiming-value terms (Lax and Sebenius 1986).Given how fundamental this dilemma is to the field, it is surprising how littlesound prescriptive advice exists for dealing with it. Although a few concep-tual frameworks for managing the dilemmas have been offered (e.g., seeMnookin, Peppet and Tulumello 2000; Rubin, Pruitt, and Kim 1994; Savage,Blair, and Sorenson 1989; and Walton and McKersie 1966), virtually noempirically tested frameworks exist.

A third dimension of negotiation performance has been receivingincreasing attention. Researchers have argued that beyond crafting a gooddeal in claiming and creating-value terms, effective negotiators seek to main-tain, and even enhance, the relationship with the other party, particularlywhen that relationship is ongoing, as is the case in most negotiations (e.g.,Greenhalgh and Kramer 1990; Kramer and Messick 1995). For the most part,a tension similar to the dilemma between claiming and creating value existsbetween claiming value and maintaining the relationship, while little tensionexists between creating value and maintaining the relationship.

Best and Strategic PracticesThis essay outlines a prescriptive framework for managing negotiation dilem-mas and briefly describes early empirical support for the model. Theprescriptive advice is based on drawing a distinction between “best prac-tices” and “strategic practices.” Best practices are defined as those that workwell in terms of one or more dimensions of negotiation performance with-out diminishing one’s performance on the other dimensions. For example,listening may be a practice that helps a negotiator create value and maintainthe relationship with the other party without posing much risk to that nego-tiator’s efforts to claim value. These are practices that pose no real dilemma.They tend to work well in most situations, regardless of what the other partydoes. The prescriptive advice is simply to use these practices in virtually allsituations, even though there may be a tendency not to use them in certainsituations. For instance, one may tend to listen less to an irritating and com-petitive other party, even though some situations could be handled moreeffectively by listening.

Strategic practices are defined as those that tend to work well in termsof one or more dimensions of negotiation performance, but that also tend todiminish one’s performance on other dimensions. These are the practices,such as sharing information, that pose classic negotiation dilemmas. Forexample, full and truthful information sharing increases the chances of dis-covering an agreement that creates value and tends to enhance therelationship, but that information may also be exploited by the other party togain a claiming-value advantage.

Accordingly, these practices work well in some situations and poorly inothers. The key to generating prescriptive advice regarding strategic prac-

388 Keith G. Allred Distinguishing Best and Strategic Practices

Negotiation Journal October 2000 389

tices is to specify the conditions in which negotiators should use such prac-tices more and those in which they should use them less. For example, anegotiator should probably share more information the more cooperativeand trustworthy the other party is and the more significant and long-termthe relationship is (Walton and McKersie 1966).

The proposed framework evolved through a three-stage process. First,several colleagues and I developed a questionnaire that consisted of 75 itemson which the participants could rate the extent to which they used a givenpractice in negotiation and conflict situations.1 Drawing on existing researchon negotiation and conflict, the practices that each item assessed were cate-gorized as either “best” or “strategic.” Many of the items were asked severaltimes, assuming different circumstances. For example, the questionnaireasked participants to rate how closely they listened to the other party whenthe other party was cooperative and when the other party was competitive.We designed the questionnaire this way to facilitate examination of theextent to which respondents are consistent in the use of best practices, as inthe listening example just given. Repeating items assuming different circum-stances also allowed us to examine the extent to which respondents areappropriately contingent in the use of strategic practices. For example, withthis questionnaire design, we could examine whether respondents sharedmore information with cooperative parties than with competitive parties.

Second, we conducted a pilot study. Sixty-five public policy graduatestudents enrolled in a negotiation course completed the questionnaire. Wethen examined whether these raters perceived the participant to be moreeffective – in terms of (1) claiming value; (2) creating value; and (3) main-taining relationships – the more consistent the participant was in the use ofbest practices and the more contingent he or she was in the use of strategicpractices. On the basis of these and other analyses, the original 75 items

TABLE ONEDual-Concerns Model of Best and Strategic Practices

High

Cooperation& Empathy

Low

Low Assertiveness High

Accommodating:Practices undertaken out

of regard for the other party

Integrating:Practices undertaken to seek solutions that serve both one’s own and the other party’s interests.

Avoiding:Practices aimed at evading

possible tensions and unpleasantness stemming

from conflict

Asserting:Practices undertaken to

see that one’s own needs and interests are served.

were reduced to 34. These 34 items can be organized in terms of the dual-concerns model, as seen in Table One (e.g., Rahim and Magner 1995;Thomas 1992). Thus, both best and strategic practices can be identifiedwithin each of the four facets of negotiation and conflict management —asserting, accommodating, integrating, and avoiding — defined by the dual-concerns model.

For the third stage in the development of the framework of best andstrategic practices, we used the 34-item questionnaire and the same multi-rater method in a subsequent study with 110 public policy graduate studentsenrolled in two sections of a negotiation course. We again examinedwhether raters perceived a participant to be more effective — in terms if thesame three criteria of success — the more consistent the participant was inthe use of best practices and the more contingent he or she was in the use ofstrategic practices. In addition, we examined whether participants more suc-cessfully claimed and created value in a scorable simulation the moreconsistent their use of best practices and the more contingent their use ofstrategic practices were.

I next discuss the logic and prior research that were drawn upon toidentify each best and strategic practice in each of the four facets that wereconfirmed in our pilot study. I then briefly describe the results of the sec-ond study.

A Framework and Prescriptive Advice

Asserting FacetWith respect to the asserting facet, the framework specifies three best prac-tices and two strategic practices, as seen in Table Two. The first bestpractice derives from prior work suggesting that working to develop andimprove one’s best alternative to a negotiated agreement (BATNA) is a prac-tice that is effective in claiming-value terms without harming one in terms ofcreating value or maintaining the relationship (Lax and Sebenius 1986). Thesecond asserting best practice is based on research by the Huthwaite groupindicating that effective professional negotiators, measured in terms of anumber of performance indicators, typically use a few of the most persua-sive arguments available in support of the positions they advocate ratherthan diluting their persuasion efforts with a number of additional butweaker arguments (Rackman [1980/1999]). The third asserting best practiceis derived logically. A minimally assertive practice of working to see that,where possible, one’s own needs and interests are met would seem to pre-sent claiming-value advantages at little cost in terms of creating value ormaintaining the relationship.

The first strategic asserting practice draws on research indicating thatasserting practices such as taking extreme opening positions and being slowto make concessions can be used to gain a claiming-value advantage. A sec-ond strategic asserting practice that is similar is using one’s power andauthority to win a favorable outcome. While these practices can be effective

390 Keith G. Allred Distinguishing Best and Strategic Practices

Negotiation Journal October 2000 391

in claiming-value terms, they can also compromise a negotiator’s ability tocreate value and maintain the relationship (Lax and Sebenius 1986; Lewicki,Saunders, and Minton 1999). Accordingly, negotiators should be less willingto use them the more important, cooperative, trusting, and long-term therelationship with the other party is and the less important the interests thenegotiator has at stake are (Walton and McKersie 1966).

Accommodating FacetThe framework identifies four best and one strategic practice with regard toaccommodating, as seen in Table Three. The accommodating best practicestend to involve accommodations in terms of the negotiation process ratherthan concessions on substantive issues. The first accommodating best prac-tice draws on research on procedural and interactional justice suggestingthat treating the other party with consideration and respect, even if onedoes not agree with the other party, will do a great deal to enhance the rela-tionship without costing one anything in terms of substantive concessions

TABLE TWOBest and Strategic Asserting Practices

Best Asserting Practices

1. Developing and improving one‘sbest alternative to a negotiatedagreement (BATNA).

2. Using a few of the best argumentssupporting the positions one advo-cates rather than diluting themessage with additional weakerarguments.

3. Working to see that, where possi-ble, one’s own needs and interestsare met.

In cooperative,trusting, long-

termrelationshipswith minorinterests at

stake:

Strategic Asserting Practices

1. Using forcefultactics such astakingextreme open-ing positionsand beingslow to makeconcessionsless.

2. Using one’spower andauthority towin a favor-able outcomeless.

In competitive,distrustful,

short-term rela-tionships withmajor interests

at stake:

1. Using forcefultactics such astakingextreme opening posi-tions andbeing slow tomake conces-sions more.

2. Using one’spower andauthority towin a favor-able outcomemore.

(Folger and Cropanzano 1998; Lind and Tyler 1988). In fact, justice researchsuggests that such procedural and interactional accommodations will, inmany ways, do more to prime the pump of trusting, cooperative interactionsthan will accommodation in the form of substantive concessions. Negotia-tors can provide the other party with a sense of procedural and interactional

fairness through such actions as listening and seeking to understand andappreciate the other party’s perspective.

The second accommodating best practice is drawn from research onattributional biases and anger in negotiation and conflict situations (Allred2000a). This practice involves resisting the tendency to hold others moreresponsible for problems that arise than one holds oneself and resisting the

392 Keith G. Allred Distinguishing Best and Strategic Practices

TABLE THREEBest and Strategic Accommodating Practices

Best Accommodating Practices

1. Treating the other party with con-sideration and respect whether oneagrees with him/her or not throughlistening and seeking to understandand appreciate the other party’sperspective.

2. Avoiding cycles of angry-retaliatoryconflict by not holding others moreresponsible for problems than youhold yourself and not acting onangry impulses to retaliate.

3. Not using positive words such as“reasonable” and “generous” todescribe one’s own proposals.

4. Not responding immediately to theother party’s proposal with acounter-proposal.

In cooperative,trusting,

long-term relationships

when you haveminor interests

at stake:

Strategic Accommodating Practices

1. More willingto make sub-stantiveconcessions.

In competitive,distrustful,short-term

relationshipswhen you havemajor interests

at stake:

1. Less willingto make sub-stantiveconcessions.

Negotiation Journal October 2000 393

tendency to retaliate angrily when one holds the other party responsible forproblems.

The third and fourth best accommodating practices are based on theHuthwaite group’s research on effective professional negotiators (Rackman1980/1999). That research indicted that effective negotiators do not use pos-itive words such as “reasonable” and “generous” to describe their ownproposals. This same research also indicated that effective negotiators do notimmediately respond to the other party’s proposal with a counterproposal.

Accommodation that takes the form of substantive concessions ratherthan process or interaction accommodations, logic would suggest, should bedesignated as strategic practices. While such substantive accommodationscan help maintain the ongoing relationship, they clearly come at a claiming-value, and even a creating-value, cost. Negotiators should therefore be morewilling to make such substantive concessions to the extent that the intereststhey have at stake are of limited importance and the relationship with theother party is important, cooperative, trusting, and ongoing.

Integrating FacetRegarding the integrating facet, the framework specifies three best practicesand two strategic practices, as seen in Table Four. The first integrating bestpractice is based on research on logrolling that suggests that one should bewilling to compromise on something of lesser importance in order to gainsomething of greater importance (Bazerman and Neale 1992; Lax and Sebe-nius 1986; Lewicki, Saunders, and Minton 1999). The second integratingbest practice is based on Pruitt’s work suggesting that one should be firm ininsisting that one’s interests and needs be fulfilled and flexible regarding themeans by which those interests and needs are fulfilled (Pruitt 1981). Thethird integrating best practice is based on Fisher, Ury, and Patton’s work indi-cating that one should engage in collaborative consideration of how to fulfillboth parties’ underlying interests rather than engaging in positional bargain-ing (Fisher, Ury, and Patton 1991).

The two strategic integrating practices involve the dilemmas of informa-tion exchange that Kelley identified (Kelley 1966). Full, honest informationexchange can facilitate the discovery of mutually satisfying solutions. How-ever, information exchange can be exploited by the other party to gain aclaiming-value advantage. Accordingly, two integrating practices regardinginformation exchange are strategic practices. First, one should be more will-ing to trust what the other party communicates the more cooperative andtrustworthy the other party is and the more important and long-term therelationship is. Second, the more cooperative and trustworthy the otherparty is, and the longer and more important the relationship with the otherparty, the more willing negotiators should be to divulge their true interests,preferences, and alternatives to the other party (Bazerman and Neale 1992;Walton and McKersie 1966).

Avoiding FacetFinally, with respect to the avoiding facet of conflict management, the frame-work identifies one best and one strategic practice, as seen in Table Five.Logic would suggest that it is almost always wise to avoid gratuitous, unnec-essary tension and unpleasantness, indicating that it is a best avoidingpractice. However, willingness to take a stand that will create tension withthe other party is probably a strategic avoiding practice. The more impor-tant, cooperative, trusting, and important the ongoing relationship, the lessimportant the negotiator’s interests at stake are, and the more importantother party’s interests at stake, the wiser it may be to avoid taking a positionthat might create tension with the other party (Walton and McKersie 1966).

Empirical SupportThe results of the study involving 110 public policy students indicate that themore consistent participants were in the use of best practices and the morecontingent they were in the use of strategic practices, the more successfullythey managed the tensions among the criteria of claiming value, creatingvalue, and maintaining ongoing relationships (Allred 2000b). The more contin-gent the participants rated themselves in the use of strategic practicesgenerally, and integrating strategic practices specifically, the more value theycreated in a scorable game without losing anything in claiming-value terms.

394 Keith G. Allred Distinguishing Best and Strategic Practices

TABLE FOURBest and Strategic Integrating Practices

Best Integrating Practices

1. Compromising on something oflesser importance in order to gainon something of greaterimportance.

2. Being firm in insisting that one’sneeds and interests are met andflexible regarding the means bywhich they are met.

3. Engaging in collaborativeconsideration of how to fulfill bothparties’ underlying interests ratherthan engaging in positionalbargaining.

In cooperative,trusting, long-

termrelationships:

Strategic Integrating Practices

1. More willingto trust whatthe otherparty says.

2. Divulgingmore aboutone’s trueinterests,preferences,andalternatives.

In competitive,distrustful,short-term

relationships:

1. Less willingto trust whatthe otherparty says.

2. Divulging lessabout one’strue interests,preferences,andalternatives.

The more highly raters rated the participants in the use of integrating andaccommodating best practices, the more effective these raters’ rated them interms of creating value and maintaining the relationship.2

A CaveatAn important caveat should be noted with respect to the advice to be con-tingent in the use of strategic practices. For most of the strategic practices,the primary contingencies are how cooperative and trustworthy the otherparty is. Executing this strategy effectively requires the negotiator to judgeaccurately how cooperative and trustworthy the other party is in any givensituation, and yet there is considerable evidence that people are not neces-sarily accurate in these judgments. People are prone to over-attributeanother party’s behavior, particularly when it is negative, to something aboutthe person and under-attribute that behavior to external circumstancesbeyond the other party’s control (Allred 2000a; Ross and Nisbett 1991).

Accordingly, negotiators may tend to assess the other party as morecompetitive and less trustworthy than the other party actually is. The resultwill often be that the negotiator emphasizes strategic asserting practicesmore and strategic integrating and accommodating practices less, either as astrategic but inaccurate calculation or out of an angry impulse to retaliate(Allred 2000a).

Negotiators should therefore be careful about their judgments of howcooperative and trustworthy the other party is. If there is some doubt, it may

Negotiation Journal October 2000 395

TABLE FIVEBest and Strategic Avoiding Practices

Best Avoiding Practices

1. Avoiding needless or gratuitoustension or unpleasantness.

In competitive,distrustful,short-term

relationshipswhen one hasmajor interests

at stake:

Strategic Avoiding Practices

1. Less willingto avoid takinga position thatwill createtension withthe otherparty.

In competitive,distrustful, short-

termrelationships

when when onehas minor

interests at stake:

1. More willingto avoid takinga position thatwill createtension withthe otherparty.

be wise to withhold on some of the integrating and accommodating strate-gic practices until a more certain judgment can be made. Because thestrategic asserting practices will often transform a cooperative, trusting rela-tionship into a competitive and distrusting one, it may be appropriate torequire a greater level of certainly that the other party is competitive anduntrustworthy before engaging in those strategic asserting practices.

ConclusionDrawing on prior negotiation research and new empirical investigations todistinguish best and strategic practices, the model offered provides a frame-work for prescriptive advice to negotiators that seeks to move beyondwhere most textbooks and courses leave off. It is hoped that by drawing onsuch a framework, instructors can move beyond identifying and articulatingthe tensions among claiming value, creating value, and maintaining relation-ships, and begin to offer more useful advice for managing those tensions.3

NOTES

1. I am grateful to Sarah Sandberg, who helped develop the questionnaire, and to Brian Man-dell, who helped conduct the empirical investigations. I also express my thanks to VictoriaChiongbian who helped conduct the statistical analyses.

2. A fuller report on the methods and results of this study is in preparation. The finding thatparticipants’ ratings of how contingent they were in the use of strategic practices was more pre-dictive than their raters’ ratings is consistent with the actor-observer bias research indicating thatpeople discern cross-situational variability in their own behavior better than they do in others(Ross and Nisbett, [1991]). The finding that raters’ ratings of participants consistency in using bestpractices is more predictive than their own ratings may be due to the fact that integrating andaccommodating practices are essentially cooperative, prosocial behaviors that are probably noteffective unless they are perceived as such by one’s counterpart.

3. Those interested in using a web-based tool for providing students with the kind of multi-rater feedback described in this essay can contact DynamicFeedback.com via the World WideWeb. The service is provided at cost when used in academic institutions.

REFERENCES

Allred, K.G. 2000a. Anger and retaliation in conflict: The role of attributions. In The handbook ofconflict resolution: Theory and practice, edited by M. Deutsch and P.T. Coleman. San Fran-cisco: Jossey-Bass.

Allred, K.G. 2000b. Distinguishing best and strategic practices: A model of prescriptive advicefor managing the dilemma between claiming and creating value. Presented at the annual confer-

ence of the International Association of Conflict Management, St. Louis, Mo., 20 June 2000.Bazerman, M.H. and M.A. Neale 1992. Negotiating rationally. New York: The Free Press.Fisher, R., W. Ury, and B. Patton 1991. Getting to YES: Negotiating agreement without giving in.

2nd ed. New York: Penguin.Folger, R. and R. Cropanzano. 1998. Organizational justice and human resource management.

Thousand Oaks, Calif: Sage.Greenhalgh, L. and R.M. Kramer. 1990. Strategic choice in conflicts: The importance of relation-

ships. In Organizations and nation-states: New perspectives on conflict and cooperation,edited by R.L. Kahn and M.N. Zald. San Francisco: Jossey-Bass.

Kelley, H.H. 1966. A classroom study of the dilemmas in interpersonal negotiation. In Close rela-tionships, edited by K. Archibald. San Francisco: Freeman.

Kramer, R.M. and D.M. Messick. 1995. Negotiation as a social process. Thousand Oaks, Calif.:Sage.

396 Keith G. Allred Distinguishing Best and Strategic Practices

Negotiation Journal October 2000 397

Lax, D. A. and J.K. Sebenius. 1986. The manager as negotiator. New York: The Free Press.Lewicki, R. J., D.M. Saunders, and J.W. Minton. 1999. Negotiation. 3rd ed. Boston: Irwin McGraw-

Hill.Lind, E. A. and T.R. Tyler. 1988. The social psychology of procedural justice. New York: Plenum.Mnookin, R H., S.R. Peppet, and A.S. Tulumello. 2000. Beyond winning: Negotiating to create

value in deals and disputes. Cambridge, Mass.: Harvard University Press.Pruitt, D. G. 1981. Negotiation behavior. New York: Academic Press.Rackham, N. 1980. The behavior of successful negotiators. Republished in Negotiation: Read-

ings, exercises, and cases, edited by R. J. Lewicki, D. M. Saunders and J. W. Minton, 1999.Rahim, M. A and R.A. Magner. 1995. Confirmatory factor analysis of the styles of handling interper-

sonal conflict. Journal of Applied Psychology 80: 122-132.Ross, L. and R. E. Nisbett. 1991. The person and the situation. New York: McGraw-Hill.Rubin, J.Z., D.G. Pruitt, and S.H. Kim. 1994. Social conflict. 2nd ed. New York: McGraw-Hill.Savage, G. T., J.D. Blair, and R.L. Sorenson. 1989. Consider both relationships and substance when

negotiating strategically. Academy of Management Executive 3: 37-47.Thomas, K. W. 1992. Conflict and negotiation processes in organizations. In Handbook of indus-

trial and organizational psychology, edited by M.D. Dunnette and L. M. Hough. 2nd ed.Palo Alto, Calif.: Consulting Psychologists Press.

Walton, R. E. and R. B. McKersie. 1966. Behavioral dilemmas in mixed-motive decision making.Behavioral Sciences. (May 1966): 370-384.

four value-creating moves

By Lawrence Susskind

What’s your reaction to the assertion that it’s possible to uncover hidden value that improves each

side’s outcomes in virtually every negotiation in which you participate? Does your past negotiation

experience bear out this optimistic notion, or are you skeptical?

At the Program on Negotiation at Harvard Law School, the mutual-gains approach to negotiation lies at

the center of much of the prescriptive advice that we offer practitioners. This way of thinking puts a

premium on “value creation”—that is, enlarging the pie before dividing it. Value creation hinges on

finding and making tradeoffs, or packages, that allow each party to meet their underlying interests. If

the package you invent helps both sides exceed their best alternative to a negotiated agreement, or

BATNA, it makes sense to do the deal.

Most professionals agree that value creation sounds like a good idea. Yet many also argue that their

negotiations can’t be handled that way, either because their counterparts are too committed to hard

bargaining or because no additional value exists. The presumption: most negotiations are “zero-sum”

games in which every bit of gain for one side equals a loss to the other, and vice versa.

It’s true that finding issues to trade is not always easy. If you are negotiating with someone over just

one issue, such as the price of a used computer on eBay, and you’re unlikely to have any future

dealings with this person, you may indeed be hard-pressed to create value.

Most of the time, however, the agenda can be expanded and then items can be packaged. For

example, a financial deal that seems to be exclusively based on price (Issue 1) usually also concerns

when the money will change hands (Issue 2) and the likely interest rate that will be charged in the

interim. (Issue 3). Suppose that a salesperson’s commission is determined by the price a buyer agrees

to pay, and that the amount the buyer is willing to pay depends on when that payment is due. “If you

sign the papers now, you won’t have to pay for a year,” the salesperson seeking a commission might

say. “We’ll extend you a line of credit at no interest.” If the client can’t afford the purchase

immediately, but knows that she’ll have the necessary funds in six months, the two sides can reach a

value-creating deal by exploiting their differing rankings of the three issues on the table.

When it seems as if there’s only one issue at stake in a negotiation, how can you uncover additional

value, make useful trades, and put together a package that exceeds each party’s expectations? In this

article, I present four value-creating moves that all negotiators should add to their toolkit.

1. Prepare to create value

When preparing to negotiate, you should always take time to consider these important questions:

What’s my BATNA—my walk-away option if the deal fails?

What are my most important interests, in rank order?

What is the other side’s BATNA, and what are his interests?

Careful analysis and estimation, as well as conversations with others in your organization, will help you

answer the first two questions. Next, spend as much time contemplating the other side’s BATNA and

interests as you spent thinking about your own. After all, you may not be able to propose a package

that he will accept if you haven’t thought about his outside options and his most important needs and

wants. In addition, be sure you have a mandate from your superiors to explore options for mutual gain.

Finally, get ready to propose packages that exceed the other side’s BATNA (if only slightly), meet their

interests (reasonably well), greatly exceed your BATNA, and elegantly meet your interests.

By preparing to propose multiple packages at the same time, in the spirit of what Roger Fisher, William

L. Ury, and Bruce Patton call “inventing without committing” in their seminal text Getting to Yes:

Negotiating Agreement without Giving In(Penguin, 1991), you can avoid having a preliminary offer

misconstrued as a final offer. Each package should be designed to probe whether your estimates of the

other side’s BATNA and interests are correct. The more extensively you prepare to address the other

side’s BATNA and interests, the more value-creating opportunities you are likely to find once talks

begin.

2. Explore interests and add issues

When seated at the bargaining table, what’s the best way to uncover your negotiation counterpart’s

hidden interests? Ask questions, then listen carefully to her answers. Even if you’ve decided to make

the first offer and are ready with a number of alternatives, the process of asking and listening to assess

interests should always come before proposing options.

Note that if your style of listening isn’t sufficiently empathetic, it won’t elicit honest responses.

Furthermore, you’ll have to ask a lot of questions to get a clear picture of someone’s interests. And to

model the type of response you’re seeking, you must be willing to reveal your own interests.

Practitioners often assume that exposing their interests will give the other side an unfair advantage,

but this is rarely true.

If your attempts to uncover the other party’s interests fail, even after you’ve revealed your own, try

probing in a different way. Suppose that you ask a potential client, “Are you more concerned about the

cost or the quality of the service we are proposing to provide? His reply: “Both!” You might then ask,

“Would you prefer that we assign our most senior attorney to your account, even though her hourly

rate is a bit higher than anyone else’s? She’s one of the best in the field, without a doubt.” The client’s

response will reveal whether he’s more concerned about price or quality.

Here’s another way to probe the same person’s interest: “Other clients have raved about how some of

our junior people, and we only take the best, have devoted themselves entirely to a single case. This

has allowed us to bill at a lower hourly rate than usual while giving them the attention they want.

Would you like to talk to some of our clients with whom we have used this approach ?”

Value creation can be especially difficult when parties snag on an underlying value difference. When

this happens, bridge the gap by identifying overarching values that could provide a motivation to work

together. Suppose that a community organization is challenging your company, a manufacturer, to pay

more attention to the health concerns of local residents. Rather than arguing that your company has to

stay focused on the bottom line, point out that you share the neighbors’ commitment to environmental

improvement. Then consider proposing an effort to replace aging, polluting equipment with more

efficient production technologies that save your firm money in the long run while simultaneously

reducing the community’s health risk. Such value-creating opportunities can be uncovered by searching

for a common interest, such as commitment to environmental improvement, rather than letting

differences between you dominate the discussion.

3. Play the game of “What if?”

The practice of value creation almost always means playing the game of “What if?” Specifically, to test

whether a trade genuinely creates value, try it out on the other side.

Imagine that you’re renegotiating a contract with a customer who is satisfied with the product you

currently supply. Your company, however, has invested heavily in a new, improved version of the

product, and your own interest lies in persuading the customer to switch to it. By questioning him

about his interests, you learn that he’s concerned about the rising costs associated with expanding his

business. Here’s one “What if?” scenario you might propose: “If I offered you a 10% rebate on every

new unit you purchase beyond the $50,000 mark, would you be willing to switch to our improved

version?”

Assuming you’ve agreed to brainstorm ideas before putting together a final deal, you can feel

comfortable testing a variety of packages. You can further reduce the risk that your customer will

assume prematurely that you’re ready to make one by offering more than one “What if?” proposal at

the same time. “I can either offer you free delivery,” you might say before he has had a chance to

respond to your first offer, “or give you a 10% rebate on orders of the new product that exceed

$50,000.” The other party’s response should reveal which trade he values more. If he appears to value

a rebate more than free delivery, follow up with two more proposals: “I could even give you a rebate

of 15% on orders above $100,000 if you buy the new version of the product, or I can extend the

payment due date by three months with no interest.” Each package is designed to create a little more

value by taking advantage of mutually beneficial trade-offs.

4. Bring new parties to the table

Make no mistake: there comes a time in every negotiation when the value you’ve created must be

divided or distributed. Sometimes, anxiety about this competitive dimension inhibits negotiators’

ability to create value. Sharing information and engaging in empathetic listening may seem like risky

behaviors when you anticipate a distributive battle.

What to do when little or no trust exists between negotiators? Consider recruiting an intermediary,

trusted by both sides, to serve as a go-between focused on creating value. This role could be filled by a

professional mediator or by someone with whom both sides have worked in the past, such as a banker

who has financed earlier deals. The neutral’s duties would include meeting privately with each side,

exploring their interests, and helping to identify mutually advantageous trade-offs. Adding a neutral to

your negotiation can assist you in overcoming any uneasiness or reluctance about revealing information

about your interests. (Both sides retain subsequent deniability if the go-between is unable to suggest

value-creating trades.)

When two parties have found little or nothing to trade, they can also create value by inviting still other

potentially interested parties to participate in the negotiation. Bringing in an additional equity partner,

for example, can close a gap between a buyer and a seller, though a third party would likely reduce

the original players’ profit. Similarly, a company seeking to buy a new technology through its global

purchasing department might find that involving its engineering staff in early discussions with the

license holder could lead to new ideas about how to test the technology (once it is in the buyers hands)

in ways that will give the seller new performance results and thus greater credibility with a far larger

market. While adding parties to a negotiation undoubtedly adds complexity, it can also help you

enlarge the pie before turning to traditional issues such as cost, delivery, and maintenance.

In sum, remember that situations that appear to be zero-sum rarely are. The key to value creation?

Bringing a degree of optimism about the chances of expanding the pie to every negotiation.

Lawrence Susskind is the Ford Professor of Urban and Environmental Planning at MIT, founder of

the Consensus Building Institute, and author of The Sweet Spot: Winning at Win-Win Negotiation

Research Article

Why It Pays to Get Inside theHead of Your OpponentThe Differential Effects of Perspective Taking and Empathyin NegotiationsAdam D. Galinsky,1 William W. Maddux,2 Debra Gilin,3 and Judith B. White4

1Northwestern University; 2INSEAD; 3Saint Mary’s University, Halifax, Canada; and 4Dartmouth College

ABSTRACT—The current research explored whether two re-

lated yet distinct social competencies—perspective taking

(the cognitive capacity to consider the world from another

individual’s viewpoint) and empathy (the ability to connect

emotionally with another individual)—have differential

effects in negotiations. Across three studies, using both

individual difference measures and experimental manip-

ulations, we found that perspective taking increased in-

dividuals’ ability to discover hidden agreements and to

both create and claim resources at the bargaining table.

However, empathy did not prove nearly as advantageous

and at times was detrimental to discovering a possible deal

and achieving individual profit. These results held re-

gardless of whether the interaction was a negotiation in

which a prima facie solution was not possible or a multiple-

issue negotiation that required discovering mutually ben-

eficial trade-offs. Although empathy is an essential tool in

many aspects of social life, perspective taking appears to

be a particularly critical ability in negotiations.

In October 1962, the United States and the former Soviet Union

came to the brink of nuclear war in the Cuban Missile Crisis. Yet

in the middle of this harrowing conflict, President John F. Ken-

nedy managed to devise a strategic plan to prevent potential

annihilation—a plan that also did not sacrifice his country’s long-

term interests. While publicly refusing to remove any of America’s

missiles placed near the Soviets (i.e., no quid pro quo on missile

removal), Kennedy offered that if all nuclear weapons were

removed from Cuba, the United States would pledge not to invade

Cuba in the future. This deal allowed Soviet Premier Nikita

Khrushchev to declare that he had saved Cuba from attack, and

therefore satisfied his core interests of saving face and retaining

power.

This example illustrates the powerful advantage of having a

deep understanding of one’s opponent. Kennedy’s proposal was

suggested by an advisor, Tommy Thompson, who had lived with

Khrushchev and had intimate knowledge of his fundamental

interests. In fact, in disparate domains such as chess, poker,

politics, and business, knowing the motives and likely behaviors

of an adversary can illuminate strategies to secure personal gain,

the downfall of one’s nemesis, and even long-term peace (Ax-

elrod, 1987; Findler, 1990; Lopes, 1976; Thagard, 1992). Ne-

gotiators, for example, must often understand the other party’s

interests to obtain the best outcome for themselves (Fisher,

Ury, & Patton, 1991; Thompson, 1990; Thompson & Hastie,

1990).

Given that understanding one’s opponent is valuable for

success in competitive interactions, it seems likely that indi-

vidual characteristics associated with such understanding

would prove advantageous. In this vein, two related but distinct

social competencies—perspective taking and empathy—have

been shown to motivate social understanding across a variety of

contexts. Although the terms perspective taking and empathy are

often used interchangeably, there is clear evidence of their

differences (Coke, Batson, & McDavis, 1978; Davis, 1980,

1983; Deutch & Madle, 1975; Hoffman, 1977; Oswald, 1996).

Perspective taking is a cognitive capacity to consider the world

from other viewpoints and ‘‘allows an individual to anticipate

the behavior and reactions of others’’ (Davis, 1983, p. 115).

Empathy, in contrast, is an other-focused emotional response

that allows one person to affectively connect with another.

Sometimes labeled sympathy or compassion, empathy is often

considered to be an emotion of concern experienced when

Address correspondence to Adam Galinsky, Management and Or-ganizations, Kellogg School of Management, Northwestern Univer-sity, 2001 Sheridan Rd., Leverone Hall, Room 389, Evanston, IL60208, e-mail: agalinsky@kellogg.northwestern.edu.

PSYCHOLOGICAL SCIENCE

378 Volume 19—Number 4Copyright r 2008 Association for Psychological Science

witnessing another person’s suffering (Batson, Fultz, & Schoen-

rade, 1987).

There is suggestive evidence that perspective taking and

empathy may not have the same effects in strategic interactions.

Perspective-taking ability is associated with personality char-

acteristics such as high self-esteem and low neuroticism,

whereas empathy predicts emotionality (Davis, 1980, 1983).

Perspective taking, but not empathy, predicts the tendency to

mimic other people’s nonverbal behaviors (Chartrand & Bargh,

1999), a behavioral tactic that can be helpful in negotiations

(Maddux, Mullen, & Galinsky, 2008). Perspective takers are

able to step outside the constraints of their own immediate, bi-

ased frames of reference (Moore, 2005) and reduce egocentric

perceptions of fairness in competitive contexts (though not at the

expense of their own self-interest; Epley, Caruso, & Bazerman,

2006). Empathy, however, leads individuals to violate norms of

equity and equality and to provide preferential treatments

(Batson, Klein, Highberger, & Shaw, 1995). Whereas perspec-

tive-taking tendencies predict extracting concessions from one’s

opponent (Neale & Bazerman, 1983), and considering an op-

ponent’s alternatives can counter the anchoring effects of the

opponent’s first offer (Galinsky & Mussweiler, 2001), empathy is

associated with cooperating in prisoner’s dilemma games (Bat-

son & Moran, 1999), even when the empathizers know that their

opponent defected previously and therefore that cooperation is

likely to be to their own detriment (Batson & Ahmad, 2001).

Although this panoply of research suggests that perspective

taking and empathy are distinct constructs, no research has

systematically explored their unique influences in strategic,

mixed-motive social interactions.

In the studies reported here, we both measured and manipu-

lated perspective taking and empathy to explore their influence

in two negotiation tasks that represent common and challenging

barriers to understanding: conflicting positions that mask the

compatibility of underlying interests (Studies 1 and 2) and dif-

fering preferences and priorities (Study 3). We sought to answer

the following question: For individuals involved in mixed-mo-

tive situations, is it more effective to empathize with an oppo-

nent (have the opponent inside their heart) or to understand the

opponent’s thoughts and perspective (get inside the opponent’s

head)?

We predicted that perspective taking would be a more valu-

able strategy than empathy in strategic interactions. First, we

believe perspective taking helps negotiators find the necessary

balance between competition and cooperation, between self-

interest and other-interest. Focusing only on self-interests tends

to lead to excessive aggression and obstinacy, whereas focusing

only on other-interests encourages excessive concession mak-

ing, to the detriment of one’s own outcomes. A balance of at-

tention to both self- and other-interests is critical for facilitating

creative problem solving in negotiations (Pruitt & Rubin, 1986).

Second, we contend that for purposes of securing economically

efficient outcomes, cognitive appreciation of another person’s

interests is more important than an emotional connection with

that person. Adam Smith (1759/2002) suggested that looking at

things from an outside perspective allows individuals to override

passions, such as excessive sympathy, that can impair the ability

to achieve efficient outcomes. Perspective taking should allow

individuals both to discover efficient, but hidden, solutions and

to capture more value for themselves. In contrast, we predicted

that empathy would be less effective, and might even tip the

balance too far in favor of the other side’s interests, leading in-

dividuals to miss opportunities for efficient exchange while also

sacrificing their own potential gains.

It is important to note that the current research is the first to

investigate the differential impact of perspective taking and

empathy in competitive, mixed-motive interactions and the first

to explore the effect of these social competencies in a negotia-

tion task involving conflicting positions that require discovering

hidden agreements. Although previous research has explored

the effects of perspective taking and empathy separately in nego-

tiations and prisoner’s dilemmas (Batson & Moran, 1999; Kemp

& Smith, 1994; Neale & Bazerman, 1983), none of these studies

compared perspective taking with empathy, and some conflated

these two constructs, both theoretically and empirically, making

it difficult to pinpoint which is more important for negotiators’

success. By independently manipulating and measuring per-

spective taking and empathy, we sought to document the dif-

ferential effects of these two social competencies in strategic

interactions.

STUDY 1

Study 1 involved a negotiation over the sale of a gas station. A

deal based solely on sale price was impossible. Specifically, the

buyer’s reservation price (the maximum he or she was authorized

to pay) was lower than the seller’s reservation price (the mini-

mum he or she was willing to accept), resulting in a negative

bargaining zone for sale price. However, the two parties’ un-

derlying interests were compatible: The buyer wanted to hire

managers to run the station, and the seller needed help financing

a sailboat trip and also needed to obtain employment after re-

turning from the trip. Thus, the parties could agree to a sale price

below the seller’s reservation price, but with a stipulation of

future employment. To reach a successful deal, participants had

to discover this alternative solution themselves during the

course of the negotiation. We predicted that, compared with

participants high in empathy, those high in perspective taking

would be more likely to reach an agreement that met both par-

ties’ interests.

Method

Participants

Participants were 70 full-time M.B.A. students (51 males, 19

females) who were enrolled in a negotiations course.

Volume 19—Number 4 379

A.D. Galinsky et al.

Procedure

Participants were randomly assigned to dyads, playing the role

of either buyer or seller in a dyadic negotiation involving the sale

of a gas station (Goldberg, 2000). They were given confidential

role instructions 1 week prior to the negotiation and were al-

lowed 50 min to negotiate a deal face-to-face. Negotiations took

place in separate rooms during class.

The main dependent measure was whether or not dyads were

able to negotiate a deal based on the parties’ interests. An out-

come was considered successful if the sale price was not greater

than the buyer’s reservation price and the deal involved at least

one additional term, such as a job for the seller upon return. An

outcome was considered unsuccessful if it involved only the sale

price of the station or if the parties reached an impasse. Thus,

the outcome measure was a dichotomous variable (successful vs.

unsuccessful or no deal) that was coded at the dyadic level.

Measures of Perspective Taking and Empathy

One week later, participants completed an on-line personality

inventory, which included Davis’s (1980) reliable and widely

used seven-item perspective-taking and seven-item empathy

scales. Items on these scales ask about tendencies toward per-

spective taking (e.g., ‘‘I believe that there are two sides to every

question and try to look at them both’’) and empathy (e.g., ‘‘Some-

times I don’t feel very sorry for other people when they are having

problems,’’ reverse-scored). We averaged the responses to items to

arrive at a single score for each participant for each construct.

Given that the main dependent variable was at the dyadic level,

perspective taking and empathy were also averaged for each

dyad. In addition, we assessed the Big Five personality traits

(Costa & McCrae, 1985), using the 10-item inventory (Gosling,

Rentfrow, & Swann, 2003), to ensure that any observed effects

were independent of other major personality variables.

Results and Discussion

Overall, 24 of the 35 dyads (68.6%) reached a successful deal in

this exercise.

Dyad-Level Analyses

Using simultaneous logistic regression, we examined the effects

of dyadic levels of perspective taking and empathy, the Big Five

traits, and gender on the likelihood of negotiating a deal. Only

dyads’ perspective-taking tendencies acted as a significant

predictor of whether or not a successful deal was reached (see

Table 1). Consistent with our prediction that empathy might

impede discovery of mutually beneficial opportunities, results

showed a negative relationship between empathy and discovery

of a deal, but this effect was not significant.

Individual-Level Analyses

We also examined perspective taking and empathy separately

for each role (again controlling for the Big Five factors and

gender). Results indicated that the buyer’s chronic level of

perspective taking significantly predicted whether or not a deal

was reached, b 5 0.37, Wald(1) 5 5.19, p 5 .023, whereas the

seller’s chronic level of perspective taking did not significantly

predict the outcome, p > .91. Chronic levels of empathy for

either role did not predict the outcome, ps > .34. In analyses of

the Big Five traits, the only trait that significantly predicted

whether or not a deal was reached was the station owner’s

openness to experience, b 5 0.30, Wald(1) 5 5.91, p 5 .015.

Perspective-taking tendencies (particularly in the buyer) in-

creased negotiators’ ability to arrive at a creative solution that

met both parties’ needs. Empathy, in contrast, did not prove

effective in the negotiations. The advantages of perspective

taking were independent of the Big Five personality variables—

evidence that perspective taking contributes unique explana-

tory variance in negotiations.

Although we had not predicted that the advantages of per-

spective taking would differ between buyers and sellers, only the

buyer’s perspective-taking tendency made a difference in pro-

ducing a deal. However, this result is consistent with recent

research showing the importance of the buyer’s role in soliciting

information in this gas-station negotiation (Maddux et al., 2008).

Although the seller needs to reveal personal information (not

surprisingly, the seller’s openness to experience mattered in the

current study), a deal cannot be achieved unless the buyer plays

an active role in soliciting and appreciating the value of the

seller’s disclosures. Thus, only the buyer’s perspective-taking

ability predicted deal making.

STUDY 2

We designed Study 2 to offer the first empirical manipulation

contrasting perspective taking and empathy in a negotiation

setting. In addition, we measured each participant’s satisfaction

with how the other side treated him or her during the negotiation,

to further elucidate the likely benefits of each social competency

in negotiations.

TABLE 1

Logistic Regression Results for Study 1: Individual Difference

Variables as Predictors of Whether or Not a Deal Was Reached

Predictor variable b SE Wald(1) p

Perspective taking 0.486 0.248 3.851 .050

Empathy �0.232 0.140 2.740 .098

Gender �3.103 1.958 2.511 .113

Extraversion 0.090 0.239 0.142 .707

Neuroticism �0.526 0.419 1.576 .209

Openness to experience 0.429 0.258 2.774 .096

Conscientiousness �0.875 0.493 3.157 .076

Agreeableness �0.653 0.409 2.552 .110

Note. Individual difference variables were averaged for each dyad. Genderwas coded according to the number of males in the dyad (0 for both female, 1for one male and one female, 2 for two males).

380 Volume 19—Number 4

Perspective Taking and Empathy in Negotiations

Method

Participants

Participants were 152 full-time M.B.A. students1 who were en-

rolled in a negotiations course.

Experimental Manipulations

Participants were given confidential role instructions (with

experimental manipulations) the same day they negotiated.

Because buyers’ perspective-taking ability proved crucial in

reaching a deal in Study 1, we experimentally manipulated per-

spective taking (and empathy) for buyers only, using the same

negotiation exercise from Study 1.

Buyers assigned to the control condition were simply told to

focus on their own role. Buyers in the empathy condition were

given the following instructions:

In preparing for the negotiation and during the negotiation, take the

perspective of the service-station owner. Try to understand what they

are feeling, what emotions they may be experiencing in selling the

station. Try to imagine what you would be feeling in that role.

Buyers in the perspective-taking condition were told:

In preparing for the negotiation and during the negotiation, take

the perspective of the service-station owner. Try to understand

what they are thinking, what their interests and purposes are in

selling the station. Try to imagine what you would be thinking in

that role.

Following the exercise, participants indicated how satisfied

they were with the way they were treated during the negotiation.

Responses were made on a 7-point scale from 1 (not at all sat-

isfied) to 7 (extremely satisfied).

Results

A chi-square analysis revealed that the percentage of successful

deals varied as a function of experimental condition, w2(2, N 5

76) 5 6.79, p 5 .03 (see Fig. 1). Dyads with a perspective-taking

buyer were more likely to achieve a deal (76%) than were dyads

in the control condition (39%), w2(1, N 5 48) 5 6.7, p 5 .01. In

contrast, empathizers (54%) had no advantage in deal making

compared with control participants, w2(1, N 5 51) 5 1.06, p 5

.30. The predicted advantage of perspective taking over empa-

thizing was in the expected direction, but not significant, w2(1,

N 5 53) 5 2.89, p 5 .089.

Condition also affected the station owners’ satisfaction with

how the buyers treated them, F(2, 73) 5 12.51, p < .001,

Zp2 ¼ :26. Sellers who negotiated with a buyer in the control

condition had the lowest level of satisfaction (M 5 5.0, SD 5

1.0), followed by sellers who negotiated with a perspective taker

(M 5 5.7, SD 5 0.85); sellers who negotiated with an empathic

buyer expressed the most satisfaction (M 5 6.3, SD 5 0.70). All

three means differed significantly from each other, t(73)s> 2.4,

ps � .02. Being empathized with led to the highest level of sat-

isfaction with the negotiation process.

In Study 2, buyers’ perspective taking increased the proba-

bility that a dyad would arrive at a solution that met both sides’

needs. In addition, perspective taking and empathy on the part

of buyers both led sellers to be more satisfied with how they were

treated. Although empathy had immediate affective benefits for

the other side, empathizers did not have an advantage over

control participants in producing deals that would provide long-

term value for themselves and their opponents. In contrast, per-

spective takers secured the most agreements and did so with

sufficient satisfaction on the part of their opponents.

STUDY 3

The first two experiments investigated whether perspective

taking and empathy would help negotiators discover the com-

patibility of underlying interests in the face of seemingly con-

flicting positions. Oftentimes, however, a negotiation explicitly

involves multiple issues for which negotiators have different

priorities; negotiators can improve their outcomes by conceding

on their low-priority issues in exchange for getting what they

want on their high-priority issues, a technique called logrolling

(Froman & Cohen, 1970). Mere compromise, or simply ‘‘split-

ting’’ all issues down the middle, results in less efficient agree-

ments compared with making mutually beneficial trade-offs

(Thompson, 1990, 2001; Tripp & Sondak, 1992).

Multi-issue negotiations highlight a dilemma negotiators face:

how to find a balance between capturing value for oneself (value

claiming) and maximizing the available resources for both par-

ties (value creating; Lax & Sebenius, 1986). To be most effec-

tive, negotiators must both create as large a ‘‘pie’’ of resources as

possible (to produce the most economically efficient agree-

ments) and claim as much of that pie as possible (to satisfy their

self-interest).

0

10

20

30

40

50

60

70

80

Control Empathy Perspective Taking

Set

tlem

ent R

ate

(%)

Fig. 1. Percentage of dyads reaching an agreement in Study 2 as a func-tion of experimental condition.

1Participants’ sex was not recorded in Studies 2 and 3; the student populationwas approximately 70% male.

Volume 19—Number 4 381

A.D. Galinsky et al.

In Study 3, we manipulated perspective taking and empathy to

explore how these social competencies affect the amount of both

joint (i.e., dyad-level) and individual gain. We predicted that

perspective taking would be more effective than empathy both in

creating value and in claiming more of that increased value. In

addition, we predicted that empathy might even decrease indi-

vidual gain, a measure of how well negotiators protect and pur-

sue their own interests.

Method

Participants

Participants were 146 full-time M.B.A. students who were en-

rolled in a negotiations course.

Negotiation Exercise

Individuals participated in a two-party negotiation exercise

involving a job candidate and a recruiter. Eight issues were

negotiated, and each negotiator was given a scoring system that

detailed how much each issue was worth to him or her and what

his or her preferences were on each issue. Two issues were dis-

tributive, meaning the parties’ preferences were in complete

opposition to each other (e.g., the candidate wanted a higher

salary and the recruiter wanted to pay a lower salary, and this

issue was worth the same number of points to each of them). Two

issues were compatible, meaning that the parties’ preferences

were identical (e.g., both the candidate and the recruiter wanted

the candidate to work in San Francisco, and this issue was worth

the same number of points to each of them). Finally, the re-

maining four issues were integrative, meaning negotiators had

different low- and high-priority issues. For example, the can-

didate wanted a higher bonus and the recruiter wanted to pay a

lower bonus, but the candidate cared more about this issue; that

is, bonus was worth up to 4,000 points for the candidate, but only

1,600 points for the recruiter. In contrast, vacation time was

worth 4,000 points for the recruiter and only 1,600 points for the

candidate. Negotiators could maximize their joint gain by

agreeing on the candidate’s preferred bonus and the recruiter’s

preference for fewer vacation days. The maximum joint gain was

13,200 points.

Procedure

The procedure was similar to that for Study 2 (participants were

given their role information and negotiated in the same class

session). Participants had 30 min to negotiate.

Experimental Manipulations

Participants playing the role of the recruiter were randomly

assigned to one of three conditions. As in Study 2, participants in

the control condition were asked to consider their own role

carefully. In the empathy condition, participants read:

In preparing for the negotiation and during the negotiation, take

the perspective of the candidate. Imagine what it would feel like to

be in their situation. Try to visualize yourself on the other side of

the table, in that different role.

In the perspective-taking condition, participants read:

In preparing for the negotiation and during the negotiation, take

the perspective of the candidate. Try to understand what they are

thinking in their situation. After reading your role, try to visualize

yourself on the other side of the table, in that role, thinking as the

candidate.

Dependent Measures

We had three outcome measures. To assess the discovery of

mutually beneficial trade-offs, we measured joint gain, the total

points each dyad achieved together. We also coded whether

dyads reached the maximum of 13,200 points or fell short. To

assess individual gain, we analyzed the total points that each

person obtained individually.

Results

Joint Gain

An initial one-way analysis of variance indicated a significant

main effect for condition, F(2, 72) 5 4.51, p 5 .014,Zp2 ¼ :115.

Dyads in the perspective-taking condition (M 5 12,150, SD 5

1,064) achieved significantly higher joint gain than dyads in the

control condition (M 5 10,961, SD 5 1,614), F(1, 45) 5 8.10,

p 5 .007, Zp2 ¼ :156. Additionally, dyads in the empathy con-

dition (M 5 11,711, SD 5 1,292) tended to achieve more joint

gain than dyads in the control condition, but this effect did not

reach significance, F(1, 52) 5 3.49, p 5 .067,Zp2 ¼ :064. Joint

gain did not differ between the perspective-taking and empathy

conditions, p 5 .22.

We next examined the proportion of dyads that maximized the

overall gain by achieving 13,200 points (the best possible col-

lective outcome). Twelve percent of dyads in the control con-

dition, 22% in the empathy condition, and 40% in the per-

spective-taking condition achieved this outcome. Although

these proportions did not differ overall, w2(2, N 5 73) 5 5.15,

p 5 .076, perspective takers were more likely to achieve the

maximum joint gain than were participants in the other two

conditions, w2(1, N 5 73) 5 4.31, p 5 .038.

Individual Gain

We examined individual gain as a function of experimental

condition (see Fig. 2), controlling for the effect of the opposing

party’s individual gain because each individual was embedded

in a negotiation dyad (see Maddux et al., 2008).

We first conducted a one-way analysis of covariance (ANCOVA)

on individual gain for participants in the recruiter role (who

received the instructions with the experimental manipulation).

In this analysis, condition was our independent variable, and the

job candidate’s (opponent’s) individual gain was a covariate.

Results showed a significant effect of condition, F(2, 69) 5 4.02,

382 Volume 19—Number 4

Perspective Taking and Empathy in Negotiations

p 5 .022, Zp2 ¼ :10. Perspective takers secured significantly

more points (M 5 6,220, SD 5 2,284) than control participants

(M 5 5,515, SD 5 2,365), F(1, 43) 5 7.33, p 5 .01, Zp2 ¼ :15,

whereas empathizers (M 5 5,092, SD 5 2,377) tended to

achieve even fewer individual points than control participants,

although this predicted effect was not significant, F(1, 50) 5

2.19, p 5 .145, Zp2 ¼ :04.

We next conducted a one-way ANCOVA on individual gain for

job candidates. Condition was our independent variable, and the

recruiter’s individual gain was a covariate. There was a signifi-

cant effect of condition, F(2, 69) 5 4.76, p 5 .01, Zp2 ¼ :12.

Candidates who negotiated with empathizing recruiters (M 5

6,619, SD 5 2,175) achieved higher individual gain than can-

didates who negotiated with control recruiters (M 5 5,446,

SD 5 2,091), F(1, 50) 5 5.82, p 5 .02, Zp2 ¼ :10. Candidates

who negotiated with perspective-taking recruiters (M 5 5,930,

SD 5 2,129) also achieved significantly more points than those

who negotiated with control recruiters, F(1, 43) 5 6.84, p 5 .01,

Zp2 ¼ :14. Candidates’ individual gain did not differ between

the perspective-taking and empathy conditions, F(1, 44) < 1,

p 5 .55, Zp2 ¼ :01.

In Study 3, taking the perspective of one’s opponent produced

both greater joint gains and more profitable individual out-

comes, compared with considering one’s own role carefully (i.e.,

the control condition). Perspective takers achieved the highest

level of economic efficiency, without sacrificing their own ma-

terial gains. In contrast, empathizing recruiters received the

poorest individual outcomes; the increases in joint gains in this

condition went mostly to the empathizers’ opponents. Extrapo-

lating from the current data, we propose that the negotiator who

achieves the best individual outcome is one who takes the

perspective of an opponent who already feels empathy toward

him or her.

GENERAL DISCUSSION

These three studies extend current knowledge about the relative

benefits of two important social competencies—perspective

taking and empathy—for navigating strategic social interac-

tions. Perspective taking consistently resulted in greater suc-

cess than empathy, regardless of whether these constructs were

measured or manipulated. Perspective takers were able to un-

cover underlying interests to generate creative solutions when a

prima facie deal was not possible (Studies 1 and 2) and crafted

more efficient deals with greater collective and individual gain

than did empathizers and control participants (Study 3). Thus,

understanding the interests and motives of opponents in com-

petitive decision-making interactions appears to be more valu-

able than connecting with them emotionally.

Empathy was generally less useful than perspective taking,

and was, at times, a detriment to both discovering creative so-

lutions and self-interest. However, it is possible that the positive

interpersonal capital empathizers build up in an initial negoti-

ation (as shown in increased levels of sellers’ satisfaction in

Study 2) could facilitate future agreements between negotiators,

such that the outcome benefits of empathy may emerge over

time. By increasing the other side’s satisfaction with the nego-

tiation process, empathy may be particularly helpful in types of

negotiation other than those examined in the current studies. For

example, in disputes, negotiators often come to the table angry

and with a desire to be heard, and empathy may help calm them

and soften outbursts that can escalate conflict. Similarly, em-

pathy may be particularly valuable in mediation, as negotiators

involved in mediation often need to be satisfied with the process

before agreeing to a deal.

It is also notable that having a perspective-taking partner was

advantageous for negotiators in all three studies. Thus, it may be

beneficial for negotiators to encourage their partners to do some

perspective taking, as well as empathizing. From a practical

standpoint, the effects of our perspective-taking manipulations

also indicate that individuals can learn to consider other view-

points. Even brief but active perspective taking while preparing

for a negotiation can yield improved individual and joint out-

comes.

The current research suggests that in mixed-motive interac-

tions, it is better to ‘‘think for’’ than to ‘‘feel for’’ one’s adversar-

ies—more beneficial to get inside their heads than to have them

inside one’s own heart. Given the current results, the peaceful

conclusion of something as volatile as a nuclear standoff between

two superpowers seems less like a surprise, and more like a

predictable outcome born of effective perspective taking.

REFERENCES

Axelrod, R. (1987). The evolution of strategies in the iterated Pris-

oners’ Dilemma. In L. Davis (Ed.), Genetic algorithms and sim-ulated annealing (pp. 32–41). Los Altos, CA: Morgan Kaufmann.

4,000

4,500

5,000

5,500

6,000

6,500

7,000

Recruiter Candidate

Indi

vidu

al G

ain

(Poi

nts)

Control Empathy Perspective Taking

Fig. 2. Individual gain (number of points) in Study 3 as a function of roleand experimental condition. The experimental manipulation was imple-mented in the instructions given to recruiters.

Volume 19—Number 4 383

A.D. Galinsky et al.

Batson, C.D., & Ahmad, N. (2001). Empathy-induced altruism in a

prisoner’s dilemma II: What if the target of empathy has defected?

European Journal of Social Psychology, 31, 25–36.

Batson, C.D., Fultz, J., & Schoenrade, P.A. (1987). Distress and em-

pathy: Two qualitatively distinct vicarious emotions with different

motivational consequences. Journal of Personality, 55, 19–39.

Batson, C.D., Klein, T.R., Highberger, L., & Shaw, L.L. (1995). Im-

morality from empathy-induced altruism: When compassion and

justice conflict. Journal of Personality and Social Psychology, 68,

1042–1054.

Batson, C.D., & Moran, T. (1999). Empathy-induced altruism in a

prisoner’s dilemma. European Journal of Social Psychology, 29,

909–924.

Chartrand, T.L., & Bargh, J.A. (1999). The chameleon effect: The

perception-behavior link and social interaction. Journal of Per-sonality and Social Psychology, 76, 893–910.

Coke, J.S., Batson, C.D., & McDavis, K. (1978). Empathic mediation of

helping: A two-stage model. Journal of Personality and SocialPsychology, 36, 752–766.

Costa, P.T., Jr., & McCrae, R.R. (1985). The NEO Personality Inventorymanual. Odessa, FL: Psychological Assessment Resources.

Davis, M. (1980). A multidimensional approach to individual differ-

ences in empathy [Abstract]. JSAS Catalog of Selected Documentsin Psychology, 10, 85.

Davis, M.H. (1983). Measuring individual differences in empathy:

Evidence for a multidimensional approach. Journal of Person-ality and Social Psychology, 44, 113–126.

Deutch, F., & Madle, R.A. (1975). Empathy: Historic and current con-

ceptualizations, measurement, and a cognitive theoretical per-

spective. Human Development, 18, 267–287.

Epley, N., Caruso, E.M., & Bazerman, M.H. (2006). When perspective

taking increases taking: Reactive egoism in social interaction.

Journal of Personality and Social Psychology, 91, 872–889.

Findler, N.V. (1990). Contributions to a computer-based theory of strate-gies. New York: Springer-Verlag.

Fisher, R., Ury, W., & Patton, B. (1991). Getting to yes: Negotiatingagreement without giving in (2nd ed.). New York: Penguin.

Froman, L.A., Jr., & Cohen, M.D. (1970). Compromise and logroll:

Comparing the efficiency of two bargaining processes. BehavioralScience, 15, 180–183.

Galinsky, A.D., & Mussweiler, T. (2001). First offers as anchors: The

role of perspective-taking and negotiator focus. Journal of Per-sonality and Social Psychology, 81, 657–669.

Goldberg, S. (2000). Texoil. In J.M. Brett (Ed.), Negotiation and de-cision making exercises [CD]. Evanston, IL: Northwestern Uni-

versity, Dispute Resolution Research Center.

Gosling, S.D., Rentfrow, P.J., & Swann, W.B., Jr. (2003). A very brief

measure of the Big Five personality domains. Journal of Researchin Personality, 37, 504–528.

Hoffman, M.L. (1977). Personality and social development. AnnualReview of Psychology, 28, 295–321.

Kemp, K.E., & Smith, W.P. (1994). Information exchange, toughness,

and integrative bargaining: The roles of explicit cues and per-

spective-taking. The International Journal of Conflict Manage-ment, 5, 5–21.

Lax, D.A., & Sebenius, J.K. (1986). The manager as negotiator: Bar-gaining for cooperation and competitive gain. New York: Free

Press.

Lopes, L.L. (1976). Model-based decision and inference in stud poker.

Journal of Experimental Psychology: General, 105, 217–239.

Maddux, W.W., Mullen, E., & Galinsky, A.D. (2008). Chameleons bake

bigger pies and take bigger pieces: Strategic behavioral mimicry

facilitates negotiation outcomes. Journal of Experimental SocialPsychology, 40, 461–468.

Moore, D.A. (2005). Myopic biases in strategic social prediction: Why

deadlines put everyone under more pressure than everyone else.

Personality and Social Psychology Bulletin, 31, 668–679.

Neale, M.A., & Bazerman, M.H. (1983). The role of perspective-taking

ability in negotiating under different forms of arbitration. In-dustrial and Labor Relations Review, 36, 378–388.

Oswald, P.A. (1996). The effects of cognitive and affective perspective-

taking on empathic concern and altruistic helping. The Journal ofSocial Psychology, 136, 613–623.

Pruitt, D.G., & Rubin, J.Z. (1986). Social conflict: Escalation, stale-mate, and settlement. New York: McGraw-Hill.

Smith, A. (2002). Theory of moral sentiments (K. Haakonssen, Ed.).

Cambridge, England: Cambridge University Press. (Original work

published 1759)

Thagard, P. (1992). Adversarial problem solving: Modeling an oppo-

nent using explanatory coherence. Cognitive Science, 16, 123–

149.

Thompson, L. (1990). Negotiation behavior and outcomes: Empirical

evidence and theoretical issues. Psychological Bulletin, 108,

515–532.

Thompson, L. (2001). The mind and heart of the negotiator (2nd ed.).

Upper Saddle River, NJ: Prentice Hall.

Thompson, L., & Hastie, R. (1990). Social perception in negotiation.

Organizational Behavior and Human Decision Processes, 47, 98–123.

Tripp, T., & Sondak, H. (1992). An evaluation of dependent variables

in experimental negotiation studies: Impasse rates and Pareto

efficiency. Organizational Behavior and Human Decision Pro-cesses, 51, 273–295.

(RECEIVED 7/16/07; REVISION ACCEPTED 9/27/07)

384 Volume 19—Number 4

Perspective Taking and Empathy in Negotiations

Negotiation Journal Summer 2020 365

Teaching Note

In Search of Master Negotiators: A Negotiation Competency Model

Remigiusz Smolinski and Yun Xiong*

Over the last four decades, the field of negotiation has become a fully recognized academic discipline around the world and negotiation courses and competitions have become increasingly popular. Although it is believed that negotiators may be trained and that negotiation is a skill that can be taught and evaluated, the question of how to assess negotiation performance systematically and comprehensively remains largely unanswered. This article proposes a negotiation competency model for evaluating negotiation performance. The model includes a set of selected negotiation competencies together with proficiency levels and their behavioral indicators. Our goal is to help scholars design more effective negotiation courses and fairer negotiation competitions, improve negotiation pedagogy, and train negotiators who are well prepared to handle conflicts in our increasingly complex society.

Keywords: negotiation, competency model, behavioral indicators, negotiation competition, negotiation pedagogy

10.1111/nejo.12332 © 2020 The Authors. Negotiation Journal published by Wiley Periodicals LLC on behalf of President and Fellows of Harvard CollegeThis is an open access article under the terms of the Creative Commons Attribution NonCommercial License, which permits use, distribution and reproduction in any medium, provided the original work is properly cited and is not used for commer-cial purposes.

*Corresponding author: HHL Leipzig Graduate School of Management, Stüttgerhofweg 15, 50858 Cologne, Germany.

Remigiusz Smolinski is a professor at HHL Leipzig Graduate School of Management. His e-mail address is remiguisz.smolinski@hhl.de.

Yun Xiong holds an MBA from HHL Leipzig Graduate School of Management. Her e-mail address is yun.xiong@hhl.de.

366 Smolinski and Xiong In Search of Master Negotiators

IntroductionSince the early 1980s the teaching of negotiation and conflict resolution has become a fully recognized academic discipline (Greenhalgh and Lewicki 2015), thanks to Roger Fisher and William Ury’s best-selling book Getting to Yes (1981) and the work of many other scholars. During that time the field has drawn great interest from scholars and academic institutions around the world, leading to a wide variety of specialized courses and programs focusing on mediation, reconciliation, arbitration, lawyering skills, and conflict and dispute resolution (Cobb 2000; Nolan-Harley 2003). These courses and programs emphasize the importance of joint problem-solving, aligning interests, and looking for mutual gains. The complexity of this interdisciplinary, dynamic, and interac-tive process has led many negotiation scholars (Menkel-Meadow 2009; Druckman and Ebner 2013; Bordone and Viscomi 2015; Greenhalgh and Lewicki 2015; Wheeler 2015) to ask questions about the effectiveness of negotiation pedagogy in terms of both the content of the offered courses as well as the pedagogical methods, and the extent to which they measurably improve students’ negotiation skills.

The last decades also have witnessed the emergence and popular-ity of negotiation competitions, organized to test the abilities and skills of student negotiators in role-play simulations (Smolinski and Kesting 2013). The emergence of negotiation competitions stems from scholars’ widely held beliefs that negotiation is a skill that can be developed through systematic training and that individuals’ proficiency in negotia-tion can be measured and compared (e.g., Fortgang 2000; Patton 2009; Fisher and Fisher-Yoshida 2017). While research has shown strong evi-dence for stable individual differences in negotiation performance (e.g., Gist, Stevens, and Bavetta et al. 1991; Elfenbein et al. 2008; Herbst and Schwarz 2011), the key question remains: How can we systematically and holistically compare negotiation skills and evaluate negotiators’ performance in negotiation competitions and other settings?

There is no general consensus among negotiation scholars on universally applicable evaluation methodologies for capturing a nego-tiator’s performance in classroom settings and/or during negotiation competitions. Therefore, it is difficult to select and compare the ped-agogical methods and approaches that most effectively help students become better negotiators. Although concepts such as value claiming, value creation, and Pareto efficiency can be measured on the basis of negotiated outcomes, the usefulness of such measures is limited to scoreable negotiation simulations and such numbers merely reflect out-comes rather than overall performance. Over the last decade scholars generally have agreed that students’ quantitative negotiation outcomes

Negotiation Journal Summer 2020 367

should not eclipse significant qualitative aspects of negotiation perfor-mance such as relationships, emotions, attitudes, and values (Coleman and Lim 2001; Movius 2008; Halpert et al. 2010). These factors cannot easily be measured and compared, but they certainly impact negotiation outcomes.

Thus, despite their importance, there is no sufficient method for systematically investigating the qualitative aspects of negotiation perfor-mance. Negotiation literature does provide some advice on improving qualitative skills (e.g., Malhotra 2008; Gates 2016), highlighting a set of behaviors that are important in negotiations, for example, “the four-teen behaviors that make the difference” (Gates 2016: 4). However, such guidance often lacks academic rigor and solid evidence of the effective-ness of suggested techniques.

Although more attention has been paid to quantitative rather than qualitative measures, only a few scholars have explored the connection between quantitative factors and how such connections impact nego-tiation performance (e.g. Poitras et al. 2015; Coleman 2018). Further research in this area holds much potential. Coleman (2018) put forward a conflict-resolution model involving two types of meta-competencies: the competencies to manage different types of conflicts and the com-petencies to navigate through systemic complexities to support con-structive problem-solving. Poitras et al. (2015) designed a competency scale for mapping out the most important managerial mediation com-petencies from four perspectives—cognitive, emotional, behavioral, and attitudinal.

We have thus identified a gap between the existing scattered em-pirically derived negotiation guidance and a systematic, comprehensive, and rigorous framework for evaluating negotiation performance in both classrooms and competitions. To bridge this gap, this article proposes a negotiation competency model that places selected negotiation com-petencies in a framework to which scholars, practitioners, and students can refer, together with proficiency levels and observable behaviors along which individuals can be evaluated across various negotiation settings. Measuring and comparing negotiators’ performance with our model can help one design and test more effective negotiation courses and curricula and train better negotiators.

Theoretical Basis and MethodologyThe term “competency” entered the field of applied psychology in the 1970s (e.g., McClelland 1973) and has gained much traction due to its cross-disciplinary application. The significance of competency models lies in the fact that they provide a systematic and holistic approach for assessing an individual’s skills in the context of a performance (Mansfield

368 Smolinski and Xiong In Search of Master Negotiators

2006). In “Testing for Competence Rather Than for ‘Intelligence,’” McClelland argued that competency tests should include “traditional cog-nitive [competencies] involving reading, writing, and calculating skills” and “what traditionally have been called personality variables” (1973: 10). Drawing on the definitions of other researchers (e.g., Parry 1996; Le Diest and Winterton 2005; Sampson and Fytros 2008), we define compe-tency as a set of observable and measurable knowledge and skills that may be distinguished as more or less inferior, average, or superior when individuals are acting within the same performance context.

While various definitions of “competency model” may be found in the literature, scholars agree that it is a collection of competencies that are needed for effective performance when, for example, training or working (Mansfield 1996; Campion et al. 2011; Suhairom et al. 2014; El Asame and Wakrim 2018). It is worth noting that a competency model is not merely a set of competencies. First, a competency model is an instrument that allows organizational leaders to assess members’ skills systematically and dynamically (Parry 1996). Second, the competencies included in the model usually represent an organization’s objectives and strategies. Therefore, we started constructing our negotiation compe-tency model with a definition of its goals and objectives. The purpose of the model is to help us comprehensively and consistently assess negotiation performance and train students and managers to become better negotiators.

Deriving Competency Models from Goals and ObjectivesAs noted, competency models are linked to the goals and strategies of an organization (Parry 1996; Drganidis and Mentzas 2006; Mansfield 2006). Hence, when it comes to negotiation pedagogy, the development of a competency model should start with a definition of the goals and objectives pursued by the relevant academic curricula and programs. As suggested by Campion et al., once the mission, vision, value, and strategy are made part of the core competency framework, “technical and leadership competencies can be derived and their measurable per-formance and metrics should have direct linkage to the top tier of goals and strategies” (2011: 232).

The mission and vision of negotiation pedagogy are typically to train negotiators who are equipped with the skills, self- and social awareness, and ethics necessary to create and claim value, while build-ing sustainable relationships in complex business, legal, or diplomatic environments (Wheeler 2006; Bordone and Viscomi 2015; Ebner 2016). Therefore, our model must encompass competencies that not only demonstrate effective negotiation skills, but also promote attitudes and

Negotiation Journal Summer 2020 369

values that help negotiators navigate complex processes with a high degree of integrity. The selection of competencies and/or behaviors for which proficiency levels are measured must align with the model’s spe-cific area of application and the goals and objectives that are most rele-vant to the particular context in which the negotiator is acting.

Top-Down Instead of Bottom-UpCompetency modeling should start with the gathering of information by an organization’s top executives, who have the clearest vision of the organization’s goals and its future direction (Campion et al. 2011). The following model was developed based on a review of relevant literature, feedback from experienced negotiation scholars and practi-tioners as well as organizers of negotiation competitions, and a review of the judging criteria used in selected international negotiation com-petitions. This top-down method ensures that the competency model captures the most essential aspects of effective negotiation, while clar-ifying and connecting the various terms and concepts of negotiation pedagogy.

MethodologiesAccording to Campion et al., competency modeling methods include the following:

multiple data collection methods such as observations, SME interviews, and structured brainstorming methods in focus groups to identify potential competency information; the use of clear construct definitions in the competencies and linkages to theory and literature; the use of survey methodology …; the use of sampling techniques; the use of appropriate statistical analyses; [and] the assessment of reliability and other psycho-metric quality checks. (2011: 236)

Accordingly, our modeling process started with a review of negoti-ation literature for definitions of skills, tactics, and strategies as well as other aspects of negotiation performance. While we reviewed the literature, we conducted interviews with negotiation professors, pro-fessional trainers, and organizers of negotiation competitions, gather-ing suggestions on how to assess negotiation performance. We then organized these suggestions into competency categories. We included in our model only those categories which, according to the literature, influence the effectiveness of negotiations. If our model is valid, it will apply to classroom and competition settings regardless of the simula-tions that are used. We hope that the model serves as a jumping-off point

370 Smolinski and Xiong In Search of Master Negotiators

for further discussion by negotiation scholars and practitioners about the systematic assessment and comparison of negotiation performance.

Defining the Competencies and Their Proficiency LevelsHaving analyzed the data gathered from our literature review and in-terviews, the next task was to define each competency and its different proficiency levels. Proficiency levels measure how accomplished some-one is in the development or performance of a competency (Parry 1996) and are essential for using the model in performance evaluations. When the levels are designed for training purposes, they can be defined in a way to motivate people by emphasizing how to advance and improve one’s skills (Mirabile 1997; Rodriguez et al. 2002). Although we have observed the use of proficiency levels in the judging criteria of some ne-gotiation competitions, the levels were not described in enough detail to allow for consistent judgments of proficiency within and between com-petitions. This is important because such detailed descriptions make it easier for observers such as teachers and judges to differentiate among performances and give more targeted guidance to students. Hence, we compiled a detailed account of behavioral indicators for each compe-tency in our model based on the data gathered in our literature review and interviews.

The Negotiation Competency ModelWe clustered a variety of negotiation skills and attitudes into four broader categories: language and emotionality, negotiation intelli-gence, relationship building, and moral wisdom. The logic of such an arrangement follows the ease with which one may observe these skills and attitudes during negotiations. Language and emotionality are the first and most easily observable part of negotiators’ behavior and create a direct impression about negotiators’ style and personal-ity. This category is then followed by the concrete skills and tactics a negotiator uses, summarized in our model under negotiation intel-ligence. Finally, the third and last categories, relationship building and moral wisdom, are more difficult to observe because negotiators’ motivations and values usually hide behind their various language patterns and skills. These four categories are distinct but comple-mentary, together constituting our negotiation competency model. They draw a structured and comprehensive picture of categories of competencies in which one must excel to become a master negotiator (see Figure One).

Negotiation Journal Summer 2020 371

Language and EmotionalityAs the first category and the top level of our competency model, lan-guage and emotionality refers to the language patterns and emotions that a negotiator exhibits and that we can evaluate from our observa-tions. To start with, language patterns refer to how negotiators construct meanings of their interests, goals, identities, and relationships. Glenn and Susskind (2010) emphasized the significant role that verbal com-munication plays in negotiation by highlighting the methodology of conversation analysis and discourse analysis. Putnam (2010) conducted discourse analysis on negotiation talks in order to show the degree to which language can reveal a negotiator’s identity, motivations, relation-ships, and values. Emotionality, as important as language, is the observ-able behavioral component of emotion, a measurement of a person’s reactivity to a stimulus, especially in a social and cultural context (Reber 2001). Negotiators can greatly influence each other’s emotions, posi-tively or negatively affecting them, and thus significantly shaping the negotiation. Emotions can even determine whether or not the parties reach agreement (Olekalns and Druckman 2014). The three most im-portant negotiation competencies within the category of language and emotionality are quality of expression, active listening and questioning, and managing emotions.

Figure One  Categories of the Negotiation Competency Model. [Colour figure

can be viewed at wileyonlinelibrary.com]

372 Smolinski and Xiong In Search of Master Negotiators

Quality of Expression. In this competency, we mainly look at two aspects. The first is the clarity and logic of negotiators’ expressions—whether they can express themselves in a clear, convincing, and logical manner. The second is the linguistic style of expressions, namely, whether demands and other communications are expressed in a positive (or at least neutral) and reasonable way even in intense situations, rather than in a threatening way that could hinder the parties from reaching an agreement. The focus of this competency is the actual speech of a negotiator, the “commonsense acquaintance with tacit conversational procedure” Maynard (2010). Quality of expression is the basis for other important competencies such as value claiming and value creation.

Active Listening and Questioning. Listening and questioning are important skills that help negotiators understand interests and gather relevant information. Negotiation scholars (e.g., Liss 2011; Miles 2013) have expounded on the importance of one’s style of questioning and have provided guidance on handling a counterpart’s potential resistance. In our model, this competency emphasizes a negotiator’s ability to understand and elicit information by observing if he or she (1) exhibits patient and focused active listening behavior when the counterpart shares information in any form, such as stating interests or making an offer or a counteroffer, and (2) asks questions to elicit information proactively to avoid confusion and probe alternatives. Here, we value behaviors such as asking a combination of direct and indirect, open and closed questions, and tolerating silence after questions.

Managing Emotions. Managing and regulating emotions is the underlying competency supporting negotiators’ performance (Olekalns and Druckman 2014). It is the ability to (1) take another’s perspective and show empathy for, and understanding of, another’s interests and emotional needs and behaviors, and (2) regulate one’s own emotions so as to minimize the effect of those that are negative. Empathy enables negotiators to take the counterpart’s perspective in order to discover opportunities for collaborative problem-solving that result in better negotiation outcomes (Kidder 2017). Different from empathy, self-regulation of one’s emotions concerns the negotiator him or herself. It goes beyond simply suppressing one’s emotional displays. Many scholars (Movius and Wilson 2011; Kim, Cundiff, and Choi 2014; Tng and Au 2014; Williams and Hinshaw 2018) have studied systematically the implications of different types of emotional expressions and recognitions, such as anger and gratitude. According to their findings, the effectiveness of leveraging these emotions

Negotiation Journal Summer 2020 373

influences the counterpart’s recognition and behavior.

Negotiation IntelligenceIntelligence is generally defined as “the ability to learn or understand or to deal with new or trying situations” (Gardner 2000). According to Gardner’s theory of multiple intelligences, several types of intelligence are especially useful in negotiation: linguistic, logical-mathematical, in-terpersonal, intrapersonal, and existential (2000). Following Smolinski and Kesting (2013), we define negotiation intelligence as the ability both to recognize the characteristics of one’s specific negotiation and the attitude of negotiation partners, and to apply efficiently the methods and techniques that optimize performance in such a setting.

To identify logically and practically the most consequential com-petencies in this category, we set up two structures. First, we divided fifteen significant negotiation skills into two broad types: value claim-ing and value creation. Value claiming skills are often referred to as distributive and competitive and related to insistence on one’s position, while value creation skills are integrative and cooperative and involve information sharing, empathy, and seeking opportunities for mutual gains (Weingarten et al. 1990; Brown 2012b; Ingerson, DeTienne, and Liljenquist 2015). Second, we deconstructed a typical multi-issue negoti-ation process into phases—a preparation phase, an ongoing phase, and an agreement phase—and ordered the skills chronologically.

Understanding Interests and Options. Many scholars have recognized the importance of preparation in negotiations. As Fisher and Ury (1981: 179) noted, “Strategy is a function of preparation.” When teaching classroom simulations, we tell students that before a negotiation begins, it is essential to analyze and understand their own and their counterpart’s interests, alternatives, and options. Such analysis is a basis for crafting a negotiation strategy. This competency can be observed during a negotiation’s preparation and at the beginning of a negotiation and may be evaluated based on the negotiators’ understanding of their interests, priorities, and BATNAs, and whether or not they have a plan for probing the counterpart’s BATNA by, for example, asking prepared questions.

Stage Setting. Once they sit down at the negotiation table, skilled negotiators often start with a friendly conversation and gradually glide into the topic by clarifying issues at stake and proposing an agenda, indicating their interests and goals. McKersie and Walton believe that this “constructive use of power” can promote issue development and create a basis for “an accommodating relationship” (2015: 495). By setting the stage, the negotiators can not only better structure the

374 Smolinski and Xiong In Search of Master Negotiators

development of issues, but also gain an upper hand in the parties’ power dynamics. Appropriate stage setting can also contribute to establishing a constructive atmosphere and building a positive relationship for cooperative joint problem-solving.

Making the First Offer. Most research finds that the advantage of making the first offer lies in its “anchoring effect” (Fisher and Ury 1981; Crump 2016). Fisher and Ury advise that by making a first offer, a negotiator tries to “‘anchor’ the discussion early around an approach or standard favorable” to him or her (1981: 82). According to Galinsky, “how we perceive a particular offer’s value is highly influenced by any relevant number that enters the negotiation environment” (2004: 3). The anchoring effect is hard to resist notwithstanding negotiators’ knowledge of it. However, there are limits to the first-offer effect. The effectiveness of a first offer depends on one’s preparation, confidence, and self-perception of power and control (Kim and Park 2017). An extreme first offer can be neutralized by a strong counteroffer, or by the counterpart’s questioning of the first offer’s validity and justifications (Galinsky and Mussweiler 2001).

Managing Concessions. A concession is usually a revision of a negotiator’s previous offer to the advantage of his or her counterpart (Thuderoz 2017). It could be a compromise, or a promise made in order to reach an agreement. “Systemic concessions”—the process of planned and controlled concessions or exchanging of offers—can have positive and negative impacts on various elements of the negotiation process and its outcome (Pruitt 1981). As suggested by Prietula and Weingart, concessions serve as “critical indicators” (2011: 78), revealing how negotiators communicate important information and achieve desired outcomes. Systematic concessions allow for a gradual revealing and refinement of important information regarding one’s interests and positions (Weingart et al. 1990). They also serve as psychological and moral signals of mutual reciprocity (Thuderoz 2017) that create preconditions for cooperative problem-solving. The interactive nature of concessions and the patterns of their progression shape negotiation outcomes and the relationship between the parties. Therefore, we believe that managing concessions is one of the significant competencies of a master negotiator. With this competency, we intend to capture the pattern, magnitude, and timing of concessions, investigating issues such as the effectiveness of concessions in facilitating an agreement, eliciting reciprocal counteroffers, and increasing satisfaction with the negotiation process; and the effect of concessions on the

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quality of the relationship between the parties.

Searching for Trade-Offs. The simplest value creation mechanism in negotiation involves identifying the relative importance of issues and making reasonable trade-offs between them. Reasonable trade-offs are concessions made on relatively less important issues in exchange for gains obtained in more important areas. This mechanism has been known to economists since at least 1817, when David Ricardo offered his comparative advantage theory. According to Raiffa (1982), an essential prerequisite for value creation through trade-offs is a valuation of the negotiated issues during preparation for a negotiation. To find reasonable trade-offs, the parties need to explore their valuations of issues and make exchanges that create value and move toward the Pareto frontier.

Generating Creative Options. Once the parties have understood each other’s interests, they can begin to identify value-creating options. This process can focus on dovetailing both parties’ interests within the set of known options and/or creating new options that are beneficial for both parties (Fisher and Ury 1981). In many negotiations, we have observed how this competency alone can break an impasse and bring about out-of-the-box, win-win solutions. Generating creative options requires many skills, including the ability to take another’s perspective. As Kidder noted, “perspective taking… can increase a negotiator’s ability to arrive at a creative solution that meets both parties’ needs” (2017: 257). Both in classroom settings and in negotiation competitions, we often observe that solutions that break impasses and serve both parties’ interests are possible only when negotiators are cooperative and willing to share information.

Using Objective Criteria. Examples of objective criteria are precedent, market value, professional standards, efficiency, and costs (Fisher and Ury 1981). A deliberate search for, and adoption of, objective criteria can make the negotiation process fairer and thus help sustain good relationships among the parties. This competency involves the negotiator’s ability to (1) justify his or her offers with criteria that are convincing to a counterpart and (2) use objective criteria to advance cooperative problem-solving.

Post-Settlement Settlement. Post-settlement settlement may be used by negotiators to increase the efficiency of an agreement that they have reached (Raiffa 1985). Raiffa believed that “an independent analyst would almost always be able to find ways of enhancing a deal, finding greater efficiencies, or suggesting to the parties smarter trades they could make

376 Smolinski and Xiong In Search of Master Negotiators

that would guarantee them more value than they had already secured” (Susskind 2017: 324). Therefore, we often encourage negotiators to reserve a few minutes at the end of a negotiation simulation to review together the agreement they reached, to see if there is any room to improve the outcome for one or both parties “without reducing in any way what everyone was already guaranteed” (Susskind 2017: 324). Again, this is only possible if the parties are committed to cooperative problem-solving and information sharing. If they cooperate with each other in seeking additional mutual gain, negotiators usually can add value to their agreement.

Strategic Adaptability. Strategic adaptability is a competency that enables a negotiator to apply, flexibly switch between, or combine his or her other competencies in value claiming and value creation. A skilled negotiator must demonstrate different negotiation strategies and styles in distributive, integrative, and multiparty negotiations. With the ability to distinguish and navigate between these paradigms, negotiators can generate better outcomes with positive long-term effects (Nisbett and Wilson 1977). In a move away from advising negotiators on skill improvement, researchers more recently have focused on understanding how negotiators’ styles, motives, and competitiveness/cooperativeness influence their strategy and outcomes. Many researchers (e.g., Weingart et al. 1990; Stuart 2011) believe that such adaptability is necessary due to the inherent tension between creating and claiming value in negotiation. Thus, we highly value the ability of negotiators to adjust their strategies and styles to the specific negotiation setting in which they find themselves and the behavior of their negotiation partner(s).

Team Performance. Many negotiations require team effort and turn on effective cooperation and leadership. In a discussion on the future of negotiation pedagogy, Susskind noted that one possible direction “would involve a shift away from individual decision making and emphasize, instead, facilitative leadership and group creativity” (2015: 462–463). Research has shown that negotiation teams generally outperform individuals, especially in integrative negotiations (Thompson, Peterson, and Brodt 1996; Morgan and Tindale 2002). One precondition for such performance is group consensus, which is important “for minimizing the effects of individual differences on negotiation outcomes” (Mohammed et al. 2008). Good leadership reconciles the disparate interests and motivations of team members so that they may work toward a common goal (Lamm 1973; Salacuse 2017). In addition, a well-

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functioning team depends on defining clear roles for team members according to their strengths and weaknesses. Therefore, we aim to observe: (1) the quality of leadership and cooperation as demonstrated by a clear group decision-making process and a group’s speaking in one voice, and (2) whether or not the group’s members have clearly defined roles to facilitate collaborative decision-making.

Trust and Relationship BuildingThe third category of our competency model, trust and relationship building, is an action, a skill, an attitude, and a mindset. It may start when negotiators first meet and shake hands, and can be shaped fur-ther by many competencies described above. For example, the parties’ degree of trust and the quality of their relationship are affected by whether or not issues are discussed in a structured manner and trade-offs are realized without hurting a party’s interests. The strength of the relationship and the degree of trust between the parties influence the substantive outcomes of their negotiations. A wide range of re-search has contributed to the theoretical development of this category. Explaining the necessity for trust and strong relationships, Mouzas (2016) noted that the resources we need to solve problems are dis-persed among parties within the network of business relationships. Trust and a good relationship are the keys to negotiating a successful outcome. Ingerson, DeTienne, and Liljenquist (2015) adopted a similar stand, proposing to look at negotiating behaviors through a relational approach—viewing negotiators as agents connected in a system of relationships and aiming to understand and act for the welfare of oth-ers. Katz (2015) noted that without a certain degree of trust, parties are trapped in the distributive fears of gains and losses, and therefore lack the ability to try out new options that could potentially generate larger benefits.

In this category, we emphasize the cross-cultural nature of trust and relationship building and recognize that cross-cultural negotiations are becoming the norm in the business world as well as in classrooms and competitions. As Salacuse (1998) noted, culture plays an essential role in negotiations. Other researchers in this area are Brett (2017), who explored the relationship between cultural differences and correspond-ing negotiation strategies; Lee, Brett, and Park (2012), who compared culturally influenced negotiation tactics from three Asian countries; and Bond (2013), who wrote about the conflicts and opportunities that cul-tural differences brought to an international competition.

Hence a good negotiator must be able to comprehend dispa-rate behavioral norms motivated by different cultural mindsets. Many

378 Smolinski and Xiong In Search of Master Negotiators

competencies mentioned previously can already shape the quality of the relationships and the degree of trust. So, with this competency, we focus mainly on evaluating the attitudes shown by negotiators—whether they are aware of cultural differences and the resulting tactics and can deal with these differences with tolerance and respect.

Moral WisdomA negotiation competency model must also include a moral compass for negotiators. Therefore, as the last category and the most deeply im-bedded competency in negotiators’ behavioral patterns, moral wisdom reveals negotiators’ ethics and values.

Ethics in negotiation is a well-researched topic centered on such aspects as deception, gender perception, power dynamics, and social awareness (e.g., Provis 2000; Hackley 2014; Lee et al. 2014; Gaspar and Chen 2016; Wertheim 2016; Tasa and Bell 2017). Although some negotiation scholars believe that deception or misrepresentation of in-formation should be recognized as an acceptable tactic (Lewicki 1983; Strudler 1995; Faure 1998), others question the costs of deception both on a moral and substantial level, as it could undermine negotiation out-comes (Provis 2000; Schweitzer, DeChurch, & Gibson, 2005; Hinshaw, Reilly, and Schneider 2013). We are convinced that negotiation instruc-tors have a moral duty to teach their students that it is possible to be an effective negotiator without compromising one’s moral and ethical standards.

Another aspect of moral wisdom that we can observe in negotiation behaviors is empathy—the ability to consider a counterpart’s feelings and give appropriate emotional responses (Cohen 2010). Literature on empathy in negotiation began to appear in the late 1990s. Mnookin, Peppet, and Tulumello (1996, 2000) addressed the tension between em-pathy and assertiveness and pointed out that the benefits of empathy lie in value creation and creative problem-solving. They also suggested that a balanced combination of empathy and assertiveness characterizes the most effective negotiators and is necessary for sufficient value claim-ing. Cohen (2010) demonstrated that an additional benefit of empathy is that it tends to deter unethical bargaining by a counterpart. Brown (2012a) looked at using value-based negotiation simulations to increase students’ empathy.

We believe that unethical negotiating behaviors can harm mutual gains and disrupt the building of long-term relationships and that em-pathy increases the possibility of mutual gains and long-term relation-ships. In Table One below, we have defined two aspects that are central

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to evaluating a negotiator’s moral wisdom: (1) whether or not the nego-tiator manages information ethically, and (2) whether or not the nego-tiator is able to consider the interests, concerns, and feelings of his or her negotiation partner.

This category of our competency model is more difficult to ob-serve than the competencies in previous categories. Still, we believe that it is beneficial to incorporate it into our model and to compile corresponding behavioral indicators. Ultimately, our underlying ped-agogical objective is to help students and practitioners develop into negotiators with an inner moral compass that helps them to navigate a negotiation’s complexities, to make sound decisions on many matters including how to allocate resources, and to treat others fairly (Coleman 2018).

Behavioral Indicators and Proficiency LevelsOur model includes a practical list of observable behavioral indicators that can be used to assess negotiators’ performance. We examined each competency, deconstructed it into different levels of proficiency, and described the observable behaviors characterizing that level of profi-ciency. These descriptions build on negotiation discourse analysis, our experience in assessing the negotiators’ performance, and observations from real-life and classroom negotiations. Discourse analysis scholars have revealed how language patterns and marked usage shape the collaborative interpretations of negotiating parties’ strategies, identi-ties, relationships, emotions, and issue development (Brett et al. 2007; Glenn and Susskind 2010; Putnam 2010). The use of sentence patterns, pronouns, verbs, and so on can be a key to distinguishing between various meanings, such as a threat, a suggestion, and a demand. These research findings influenced our identification and arrangement of be-havioral indicators, which rely heavily on the communication between the parties.

We adopted a typical five-point scale to evaluate levels of profi-ciency, from significantly below average (- -), below average (-), aver-age (0) to above average (+) and significantly above average (+ +). A five-point scale provides a wide enough range for performance differ-entiation while remaining manageable for the evaluators. As for the be-havioral traits, after testing the model, we decided to compile only three levels instead of five for the proficiency levels. This is because three lev-els of behavioral traits per competency offer a manageable and practical amount of instructions for evaluators without the risk of overwhelming and confusing them with too much information.

380 Smolinski and Xiong In Search of Master Negotiators

Table One  Behavioral Indicators

Competency Level Behavioral traits

I. Emotionality and language

1. Quality of expression

- --

Lack of clarity and logic in naming issues and explaining interests; use of coercive or threating expressions; excessive talking or insufficient explanation that hinders problem-solving; withholding relevant information

0 Objective and convincing presentation of issues and interests; suggestive and flexible; information sharing based on the counterpart’s reciprocal behavior

++ +

Consistent use of objective, confident, and convincing language even in emotionally intense situations and under time pressure; information shared strategically

2. Active listening and questioning

- --

Limited exchange of information concerning issues and interests; frequent interruptions; not asking enough questions; resistance to answering partner’s questions

0 Issues defined at the beginning and clear understanding of partner’s priorities; active listening without interrupting; asking questions to elicit information and identify interests

++ +

Clear understanding of issues and priorities results from asking questions and active listening; combination of direct and indirect questions, open and closed questions to elicit information; tolerance for silence; patience

3. Managing emotions

- --

Negative emotions (frustration, anger, dissatisfaction) hindering problem-solving and relationship building; a lack of understanding of, or respect for, partner’s emotions; inability to respond to partner’s needs

0 A regulated display of emotions, avoiding negative emotions; respect for partner’s emotions

++ +

Emotions are well-regulated and used strategically; partner’s emotional core concerns are well understood and addressed appropriately

(Continues)

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Competency Level Behavioral traits

II. Negotiation intelligence

4. Understanding interests and options

- --

Unclear about one’s own interests, priorities, and BATNA; insufficient understanding of partner’s interests, priorities, and BATNA

0 Clear understanding of one’s own interests and options; some assumptions regarding partner’s interests and options

++ +

Clear understanding of one’s own and a partner’s interests and options; clear strategy and plan for achieving one’s own negotiation objectives

5. Setting the stage

- --

Going straight to business; focus on most obvious issues; no clear agenda

0 Clearly stated issues and agenda++ +

Clearly stated prioritized issues and agenda; indication of interests and objectives; first attempts to build a positive relationship

6. Making the first offer

- --

First offer not ambitious or assertive enough; anchor too extreme with insufficient adjustment so that it hinders the negotiation progress

0 First offer calibrated and made appropriately or an appropriate counteroffer

++ +

Assertive and confident presentation of an ambitious first offer, which is well justified and defended; effective in debiasing the anchoring effect if the counterpart makes the first offer

7. Managing concessions

- --

Too large concessions without a clear plan; lack of adjustment that eventually leads to a deadlock

0 Planned concessions made based on reciprocal information-sharing activities and possibility for trade-offs

++ +

Strong control over the timing and magnitude of concessions; the ability to elicit concessions without damaging the relationship

8. Searching for trade-offs

- --

Issues discussed separately one by one; inability to differentiate between integrative and distributive issues; focus on value claiming

Table One (Continued)

(Continues)

382 Smolinski and Xiong In Search of Master Negotiators

Competency Level Behavioral traits

0 Seeking Pareto efficiency; ability to identify integrative issues and make value-creating trade-offs

++ +

Exploring interests and priorities for all issues and flexibly bundling issues to exchange the less important items for the more important ones

9. Generating creative options

- --

Focus on value claiming; making and/or demanding concessions to reach an agreement; lack of brainstorming or any other form of joint problem-solving

0 Understanding of both parties’ interests and active search for potential solutions

++ +

Engaging the partner in a collaborative problem-solving process; brainstorming effectively; proposing creative options that potentially enlarge the pool of benefits for all partners

10. Using objective criteria

- --

Unable or unwilling to justify one’s own demands/offers, or justifying them in a self-centered manner

0 Using certain common knowledge or external market information as fair standards

++ +

Taking partner’s perspective to offer mutually fair standards to create cooperative problem-solving atmosphere

11. Post-settlement settlements

- --

No attempts to look for Pareto improvements after arriving at a tentative agreement

0 Some attempts to look for Pareto improvements after a tentative agreement has been made

++ +

Creating value through Pareto improvements obtained through additional trade-offs identified and agreed on after a tentative agreement has been reached

12. Strategic adaptability

- --

Either too cooperative or too competitive regardless of the issue type; inability to differentiate between integrative and distributive issues and/or cooperative and competitive partners

Table One (Continued)

(Continues)

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Competency Level Behavioral traits

0 Firm on distributive issues, and competitive under unfavorable conditions or facing tough opponents; cooperative and flexible on integrative issues

++ +

Ability to recognize and match the strategy and methods to negotiated issues and partners; quick behavioral adjustments based on new information or changes in the situation

13. Team performance

- --

Unclear role division among members; lack of leadership and cooperation in decision-making

0 Some role division based on the strengths of each member; some cooperation in decision-making

++ +

Clear and complementary role division among members; each of them contributes fairly to the progression of the negotiation; decisions supported by all team members

III. Trust and relationship building

14. Trust and relationship building

- --

Inability to build trust and create a working relationship with negotiation partner; inability to deal with partner’s negotiation style

0 Some attempts to build trust; some understanding of partner’s negotiation style

++ +

Active trust building; deliberate efforts to improve the quality of the relationship; understanding of, and the ability to deal with, partner’s negotiation style

IV. Moral wisdom

15. Moral wisdom

- --

Little empathy for partner’s interests; outright deceptive behavior

0 Some empathy for partner’s interests; avoiding commission but occasionally accepting omissions

++ +

Appropriate level of empathy for partner’s interests; honest and transparent approach toward disclosing and withholding information

Table One (Continued)

384 Smolinski and Xiong In Search of Master Negotiators

Application and DiscussionWe attended a major international negotiation competition for two consecutive years and tested the negotiation competency model based on a slightly modified version of the behavioral indicators set forth in Table One. The negotiations were conducted between teams of three based on an integrative, non-scoreable simulation. The judges used our evaluation model in their assessments and we interviewed them after they evaluated the negotiators’ performance. Overall, the judges gave very encouraging feedback on our model. However, they raised three critical points related to team performance, adaptability, and ease of use, which we discuss below.

Team PerformanceAfter testing our model in the competition, we added a competency for aggregated team performance to the category of negotiation intelli-gence, making it an integral part of our competency model. We added this competency both to respond to the increasing need to measure ne-gotiation performance in team settings and to assess the level of cooper-ation and communication within teams. If the model is used to evaluate individuals, this competency is not assessed.

Adaptability to Different Types of NegotiationsSome judges noted that our model is better suited for assessing integra-tive negotiations than negotiations in which value creation is not possi-ble. Indeed, the negotiation intelligence category includes competencies that assess both value claiming and value creation. Therefore, in highly distributive negotiation simulations, the judges using this model should adapt the behavioral indicator list, retaining the competencies that are especially relevant for value claiming and removing those that evaluate value creation, which is not possible in distributive negotiations.

Ease of UseSome judges told us that it was difficult to assess over ten competen-cies in a sixty-minute negotiation. For this reason, we suggest that prior to assessing a negotiation that is neither lengthy nor complex, judges may select the competencies that are most applicable to the specific negotiation to be judged. Moreover, certain competencies for which the behavioral indicators are more difficult to judge—such as “relation-ship building” and “moral wisdom”—could be considered as “watch-out” competencies. Judges may choose to deduct from performance scores for negative behaviors such as outright lying rather than assess the competencies overall. Thus, judges could focus on more observ-able behaviors, noting only red flags in their assessment of “watch-out” competencies.

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ConclusionProfessionals in fields as difficult to judge as dance and figure skat-ing are assessed according to established criteria. Negotiation pedagogy lacks such standards. We hope that our negotiation competency model improves the teaching of negotiation by advancing a discussion about essential skills and behaviors; how to teach them; and how to evaluate them objectively, consistently, and efficiently. We are convinced that fol-lowing a uniform set of comprehensive, systematic, and practical stan-dards facilitates greater focus and innovation in negotiation pedagogy. We also hope that our model leads to a greater emphasis within nego-tiation pedagogy on factors such as relationship building and morality so that students receive training that is comprehensive and multifaceted.

Our model is a work in progress. We hope that others will use the model in classrooms, trainings, and competitions to determine if it omits essential competencies or contains redundancies, and how it may other-wise be improved. In addition to further testing of our model, it would be useful to develop a self-evaluation tool for negotiators and students to assess their own skill levels, strengths, and weaknesses. This would be especially valuable when there is no third-party observer or judge.

REFERENCES

Bond, G. 2013. Mediation and culture: The example of the ICC International Commercial Mediation Competition. Negotiation Journal 29(3): 315–328.

Bordone, R. C. and R. A. Viscomi. 2015. The wicked problem of rethinking negotiation teach-ing. Negotiation Journal 31(1): 65–81.

Brett, J. M..2017. “Culture and negotiation strategy.” Journal of Business & Industrial Marketing 32 (4): 587–590.

Brett, J. M., M. Olekalns, R. Friedman, N. Goates, C. Anderson, and C. C. Lisco. 2007. Sticks and stones: Language, structure and on-line dispute resolution. Academy of Management Journal 50(1): 85–99.

Brown, J. G. 2012a. Deeply contacting the inner world of another: Practicing empathy in val-ues-based negotiation role plays. Washington University Journal of Law & Politics 39: 189–230.

Brown, J. G. 2012b. Empowering students to create and claim value through the Thomas-Kilmann Conflict Mode Instrument. Negotiation Journal 28(1): 79–91.

Campion, M. A., A. A. Fink, B. J. Ruggeberg, L. Carr, G. M. Phillips, and R. B. Odman. 2011. Doing competencies well: Best practices in competency modeling. Personnel Psychology 64(1): 225–262.

Cobb, S. 2000. Negotiation pedagogy: Learning to learn. Negotiation Journal 16(4): 315–319.Cohen, T. 2010. Moral emotions and unethical bargaining: The differential effects of empathy

and perspective taking in deterring deceitful negotiation. Journal of Business Ethics 94(4): 569–579.

Coleman, P. T. 2018. Conflict intelligence and systemic wisdom: Meta-competencies for engag-ing conflict in a complex, dynamic world. Negotiation Journal 34(1): 7–35.

Coleman, P. T. and Y. Y. J. Lim. 2001. A systematic approach to evaluating the effects of col-laborative negotiation training on individuals and groups. Negotiation Journal 17(4): 363–392.

Crump, L. 2016. Toward a theory of negotiation precedent. Negotiation Journal 32(2): 85–102.Draganidis, F. and G. Mentzas. 2006. Competency based management: A review of systems and

approaches. Information Management & Computer Security 14(1): 51–64.

386 Smolinski and Xiong In Search of Master Negotiators

Druckman, D. and N. Ebner. 2013. Games, claims, and new frames: Rethinking the use of sim-ulation in negotiation education. Negotiation Journal 29(1): 61–92.

Ebner, N. 2016. Negotiation and conflict resolution education in the age of the MOOC. Negotiation Journal 32(3): 231–260.

El Asame, M. and M. Wakrim. 2018. Towards a competency model: A review of the literature and the competency standards. Education and Information Technologies 23(1): 225–236.

Elfenbein, H. A., J. R. Curhan, N. Eisendraft, A. Shirako, and L. Baccaro. 2008. Are some ne-gotiators better than others? Individual differences in bargaining outcomes. Journal of Research in Personality 42(6): 1463–1475.

Faure, G. O. 1998. Negotiation: The Chinese concept. Negotiation Journal 14(2): 137–148.Fisher, J. and B. Fisher-Yoshida. 2017. Educating negotiators: Using theory, practice, case

studies, and simulations in an integrated learning experience. Negotiation and Conflict Management Research 10(4): 286–305.

Fisher, R., and W. Ury. 1981. Getting to yes: Negotiating agreement without giving in. Boston: Houghton Mifflin.

Fortgang, R. S. (2000) Taking stock: An analysis of negotiation pedagogy across four profes-sional fields. Negotiation Journal 16(4): 325–338.

Galinsky, A. D. 2004. Should you make the first offer? Negotiation 7: 1–4.Galinsky, A. D. and T. Mussweiler. 2001. First offers as anchors: The role of perspective-taking

and negotiator focus.. Journal of Personality and Social Psychology 81(4): 657–669.Gardner, H. 2000. Using multiple intelligences to improve negotiation theory and practice.

Negotiation Journal 16(4): 321–324.Gaspar, J. P. and C. C. Chen. 2016. The unconscious conscience: Implicit processes and decep-

tion in negotiation. Negotiation Journal 32(3): 213–229.Gates, S. 2016. The negotiation book: Your definitive guide to successful negotiating. London:

Wiley.Gist, M. E., C. K. Stevens, and A. G. Bavetta. 1991. Effects of self-efficacy and post-training inter-

vention on the acquisition and maintenance of complex interpersonal skills. Personnel Psychology 44(4): 837–861.

Glenn, P., and L. Susskind. 2010. How talk works: Studying negotiation interaction. Negotiation Journal 26(2): 117–123.

Greenhalgh, L. and R. J. Lewicki. 2015. Evolution of teaching negotiation: The legacy of Walton and McKersie. Negotiation Journal 31(4): 465–476.

Hackley, S. G. 2014. Negotiation and the fight for social change. Negotiation Journal 30(4): 479–485.

Halpert, J. A., A. F. Stuhlmacher, J. L. Crenshaw, C. D. Litcher, and R. Bortel. 2010. Paths to ne-gotiation success. Negotiation and Conflict Management Research 3(2): 91–116.

Herbst, U. and S. Schwarz. 2011. How valid is negotiation research based on student sam-ple groups? New insights into a long-standing controversy. Negotiation Journal 27(2): 147–170.

Hinshaw, A., P. Reilly, and A. K. Schneider. 2013. Attorneys and negotiation ethics: A material misunderstanding? Negotiation Journal 29(3): 265–287.

Ingerson, M.-C., K. B. DeTienne, and K. A. Liljenquist. 2015. Beyond instrumentalism: A rela-tional approach to negotiation. Negotiation Journal 31(1): 31–46.

Katz, H. 2015. Reflections on trust in negotiations. Negotiation Journal 31(4): 355–357.Kidder, D. L. 2017. BABO negotiating: Enhancing students’ perspective-taking skills. Negotiation

Journal 33(3): 255–267.Kim, K., N. L. Cundiff, and S. B. Choi. 2014. The influence of emotional intelligence on nego-

tiation outcomes and the mediating effect of rapport: A structural equation modeling approach. Negotiation Journal 30(1): 49–68.

Kim, N. and H. Park. 2017. Making the most of the first-offer advantage: Pre-offer conversation and negotiation outcomes. Negotiation Journal 33(2): 153–170.

Lamm, H. 1973. Intragroup effects on intergroup negotiation. European Journal of Social Psychology 3(2): 179–192.

Le Diest, F. D. and J. Winterton. 2005. What is competence?. Human Resources Development International 8(1): 27–46.

Lee, S., J. Brett, and J. H. Park. 2012. East Asians’ social heterogeneity: Differences in norms among Chinese, Japanese, and Korean negotiators. Negotiation Journal 28(4): 429–452.

Negotiation Journal Summer 2020 387

Lee, M., M. Pitesa, , M. Pillutla, and S. Thau. 2014 Male immorality: An evolutionary account of sex differences in unethical negotiation behavior. Academy of Management Journal 60(5): 2014–2044.

Lewicki, R. J. 1983. Lying and deception: A behavioral model. In Negotiating in organizations, edited by Bazerman, M. H. & Lewicki, R. J.. Thousand Oaks, CA: Sage Publications.

Liss, J. 2011. Negotiating the Marcellus: The role of information in building trust in extractive deals. Negotiation Journal 27(4): 419–446.

Malhotra, D. 2008. Negotiation genius: How to overcome obstacles and achieve brilliant results at the bargaining table and beyond. New York: Bantam (reprint).

Mansfield, R. S. 1996. Building competency models: Approaches for HR professionals. Human Resource Management 35(1): 7–18.

Mansfield, R. S. 2006. Practical questions in building competency models. Workitect.Maynard, D. W. 2010. Demur, defer, and deter: Concrete, actual practices for negotiation in

interaction. Negotiation Journal 26(2): 125–143.McClelland, D. C. 1973. Testing for competence rather than for “intelligence”. American

Psychologist 28(1): 1–14.McKersie, R. B. and R. E. Walton. 2015. Reflections on negotiation theory, practice, and educa-

tion: A robust record and new opportunities. Negotiation Journal 31(4): 491–499.Menkel-Meadow, C. 2009. Chronicling the complexification of negotiation theory and practice.

Negotiation Journal 25(4): 415–429.Miles, E. W. 2013. Developing strategies for asking questions in negotiation. Negotiation

Journal 29(4): 383–412.Mirabile, R. J. 1997. Everything you wanted to know about competency modeling. Training

and Development 51(8): 73–77.Mnookin, R. H., S. R. Peppet, and A. S. Tulumello. 1996. The tension between empathy and

assertiveness. Negotiation Journal 12(3): 217–230. . 2000. Beyond winning: Negotiating to create value in deals and disputes. Cambridge,

MA: Harvard University Press.Mohammed, S., T. Rizzuto, N. J. Hiller, D. A. Newman, and T. Chen. 2008. Individual differ-

ences and group negotiation: The role of polychronicity, dominance, and decision rule. Negotiation and Conflict Management Research 1(3): 282–307.

Morgan, P. M. and R. S. Tindale. 2002. Group vs individual performance in mixed-motive situations: Exploring an inconsistency. Organizational Behavior and Human Decision Processes 87(1): 44–65.

Mouzas, S. 2016. A network perspective on negotiation: What is new and why it matters. Negotiation Journal 32(1): 7–21.

Movius, H. 2008. The effectiveness of negotiation training. Negotiation Journal 24(4): 509–531.Movius, H. and T. D. Wilson. 2011. How we feel about the deal. Negotiation Journal 27(2):

241–250.Nisbett, R. E. and T. D. Wilson. 1977. Telling more than we can know: Verbal reports on mental

processes. Psychological Review 84(3): 231–259.Nolan-Haley, J. 2003. New problem-solving scholarship: An historical tale with a happy ending.

Negotiation Journal 19(2): 169–182.Olekalns, M. and D. Druckman. 2014. With feeling: How emotions shape negotiation.

Negotiation Journal 30(4): 455–478.Parry, S. R. 1996. The quest for competence. Industrial and Commercial Training 33(7): 48–56.Patton, B. 2009. The deceptive simplicity of teaching negotiation: Reflections on thirty years of

the negotiation workshop. Negotiation Journal 25(4): 481–498.Poitras, J., K. Hill, V. Hamel, and F. Pelletier. 2015. Managerial mediation competency: A mixed-

method study. Negotiation Journal 31(2): 105–129.Prietula, M. J. and L. R. Weingart. 2011. Negotiation offers and the search for agreement.

Negotiation and Conflict Management Research 4(2): 77–109.Provis, C. 2000. Ethics, deception and labor negotiation. Journal of Business Ethics 28(2):

145–158.Pruitt, D. G. 1981. Negotiation behavior. New York: Academic Press.Putnam, L. L. 2010. Negotiation and discourse analysis. Negotiation Journal 26(2): 145–154.Raiffa, H. 1982. The art and science of negotiation. Cambridge, MA: Harvard University Press. . 1985. Post-settlement settlements. Negotiation Journal 1(1): 9–12.

388 Smolinski and Xiong In Search of Master Negotiators

Reber, A. S. and E. Reber. 2001. The Penguin dictionary of psychology. New York: Penguin Books

Rodriguez, D., R. Patel, A. Bright, D. Gregory, and M. K. Gowing. 2002. Developing competency models to promote integrated human resource practices. Human Resource Management 41(3): 309–324.

Salacuse, J. W. (1998) Ten ways that culture affects negotiating style: Some survey results.. Negotiation Journal 14(3): 221–240.

Salacuse, J. 2017. Real leaders negotiate: Gaining, using, and keeping the power to lead through negotiation. New York: Palgrave Macmillan.

Sampson, D. and D. Fytros. 2008. Competence models in technology-enhanced compe-tence-based learning. International handbook on information technologies for educa-tion and training (pp. 155–178), edited by H. H. Adelsberger, Kinshuk, J. M. Pawlowski, and D. Sampson. New York: Springer.

Schweitzer, M. E., L. A. DeChurch, and D. E. Gibson. 2005. Conflict frames and the use of de-ception: Are competitive negotiators less ethical? Journal of Applied Social Psychology 35(10): 2123–2149.

Smolinski, R. and P. Kesting. 2013. World championship in negotiation? The role of competi-tions in negotiation pedagogy. Negotiation Journal 29(3): 355–369.

Strudler, A. 1995. On the ethics of deception in negotiation. Business Ethics Quarterly 5(4): 805–822.

Stuart Jr., H. W. 2011. Value creation: A coordination game. Negotiation Journal 27(2): 171–190.Suhairom, N., A. H. Musta’amal, N. M. Amin, and N. A. Johari. 2014. The development of com-

petency model and instrument for competency measurement: The research methods. Procedia - Social and Behavioral Sciences 152: 1300–1308.

Susskind, L. 2015. The undecided future of negotiation pedagogy: An introduction. Negotiation Journal 31(4): 461–464.

. 2017. Balancing analysis and intuition. Negotiation Journal 33(4): 323–327.Tasa, K. and C. M. Bell. 2017. Effects of implicit negotiation beliefs and moral disengagement

on negotiator attitudes and deceptive behavior. Journal of Business Ethics 142: 169–183.Thompson, L., E. Peterson, and S. E. Brodt. 1996. Team negotiation: An examination of inte-

grative and distributive bargaining. Journal of Personality and Social Psychology 70(1): 66–78.

Thuderoz, C. 2017. Why do we respond to a concession with another concession? Reciprocity and compromise. Negotiation Journal 33(1): 71–83.

Tng, H. and A. K. C. Au. 2014. Strategic display of anger and happiness in negotiation: The moderating role of perceived authenticity. Negotiation Journal 30(3): 301–327.

Weingart, L. R., L. Thompson, M. H. Bazerman, and J. S. Carroll. 1990. Tactical behavior and negotiation outcomes. International Journal of Conflict Management 1(1): 7–31.

Wertheim, E. G. 2016. The truth about lying: What should we teach about lying and deception in negotiations: An experiential approach. Business Education Innovation Journal 8(2): 64–70.

Wheeler, M. 2006. Is teaching negotiation too easy, too hard, or both?. Negotiation Journal 22(2): 187–197.

Wheeler, M. 2015. Learning to teach negotiation. Negotiation Journal 31(4): 477–490.Williams, K. E. G. and A. Hinshaw. 2018 Outbursts: An evolutionary approach to emotions in

the mediation context.. Negotiation Journal 34(2): 165–186.

Negotiation: Theory and Practice

(N101)

Prof. Mary P. Rowe—MIT, Cambridge, MA 02139

Negotiation Quiz

Please check off on this sheet which of these situations represents a negotiation. (You may wish first to answer all those you find easy and then go back to the others.)

• Buying a rug in a West African market • Soliciting a new source of venture capital • Trying to capture/kill a warlord in a regional war • Trying to injure or ruin a competitor • Writing back and forth with someone you do not know on the Internet • Meeting your potential in-laws for the first time • Giving or receiving commendation and criticism • Deciding how the dishes will get done • Borrowing a wonderful piece of clothing from a family member • Deciding whether to stay late at work to finish up a project • Making up, or rebuilding a relationship with someone you love • Picking a successor for the CEO of a company where you are on the board • Getting a child to go to bed • Getting into a class or training program with limited enrollment • Courting your Life’s Companion • Laying off or firing someone • Discussing the outsourcing of a business function with the manager of the function • Deciding with a family member where to invest a small joint inheritance • Soliciting a major gift from a major donor • Soliciting bids for the new advertising campaign for your company • Talking with your parent(s) this weekend • Saying good-by to someone you will not see for a long time • Finding an advisor, or a mentor, or a counselor, or a new dentist • Discussing with a recruiter the salary and benefits you feel you deserve • Trying to get back to sleep when something is worrying you • Trying to shake off a stranger on the street who keeps walking with you • Getting an extension on a paper or a project • Apologizing to someone whose property you unknowingly damaged • Seeing someone you dislike and turning away at a party • Interviewing a potential baby-sitter • Accepting a bribe • Turning down a bribe • Getting another country to lower a trade barrier • Talking anonymously about an unsafe workplace condition with a Hot Line person • Meeting a new teammate for the first time • Struggling to stay on a diet or exercise plan or give up smoking

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A Butterfly's View of 15.667-Negotiations and Conflict Management

(see which questions you can answer?)

Is there one especially "rational way" to divide $2 with a stranger? (If you think there is not, what determines the family of "rational choices"?)

Do you think that most business decisions are made rationally? Is there usually one optimum decision?

You are facing a specified conflict or negotiation with someone about whom you know only demographics, style and job description. You have only an hour. What might you do to prepare?

In real life, in a super important case, how and when should you choose which strategies and tactics you will use in a negotiation? On what factors ought this choice to depend?

How can one try to prevent a "bad attitude death spiral" in a negotiation with someone you do or do not know well? Where does a desire for revenge come from?

Which of the ways of building trust appeal to you the most?

What is the difference between manipulating people and inspiring them (as a leader)?

If you or someone else has gotten painted into a corner, through a commitment that should never have been made, what could be done?

Can you tell when someone is lying to you?

How might you figure out the strategy and depth of strategy the Other is using in a negotiation?

Within a close team or a couple, if you have no time in each negotiation to pursue the best win-win solutions, where both sides gain simultaneously, how can A and B behave so that both are actually gaining, in the aggregate, over time?

How would you define effectiveness in a negotiation'? Are you effective? Who do you know that is effective?

Is it the choice of negotiating strategy that determines effectiveness? If so-which strategy is most effective?

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If not-which tasks and skills most fundamentally determine the effectiveness of a negotiator?

What proportions of all your negotiations and conflicts are "mixed motive"? What proportion is purely collaborative? and what proportion is purely competitive? After you take the Thomas Kilmann Questionnaire, assess the strengths, in the five basic strategies, that you bring to your negotiations. Are your skills in balance with the requirements of the negotiations you are engaged in? (Which of the tactics on the Tactics sheets in Negotiation 101 do you want to practice?)

Imagine you are assembling a team to start a project or a company. What would you look for, in the people you would choose for your team, with respect to the five sets of strategic strengths in negotiation?

Given that most people think they are ethical, and that people are not at all the same with respect to ethical standards, would you want to give your future employees or partners an Ethics test? :-) See if what they actually do is what they say they should do, when ethical questions arise? Just see if they do what they agree to do, in negotiations with you? Suppose they think different standards should apply to them than to "most people"'?

What is the likely effect of having an observer when you negotiate?

In complex negotiations what are some of the reasons for sidebar discussions with someone on the Other's team? Are there any reasons not to have sidebar discussions?

If you wanted to win over a ten-person decision-making group about a certain proposal, what are some of the ways you might do this successfully?

Please think of one or two negotiations that are truly vital to you-these could either be negotiations with yourself or negotiations with Others. What is it that is being negotiated? Think for example, about money, time, status and prestige, trust, space, family status, future growth possibilities, etc. Is money the most important subject? Name some ways you could find out how effective you are in this real-life negotiation that really matters to you.

The Last Task in a negotiation is: that all parties must come to see the outcome as the best possible under the circumstances. When is the last time you have seen the failure of the Last Task in a negotiation? Why did this happen?

Under what circumstances would you make the first offer in a competitive negotiation?

Under what circumstances would you lay out all your relevant real interests in a negotiation?

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Name some elements of process you would want to think about, if you were going to negotiate for your side on a two-person team.

In a setting with coalitions, would you prefer to be a "pivot'' person, o r the person with the most tangible resources, if those are not the same?

Some of the options for dealing with complaints are: listening, referring people to other resources, just giving or receiving needed information, helping people help themselves through developing choices and coaching, shuttle diplomacy, formal mediation, fact- finding, arbitration or adjudication (and managerial decision-making), systems change, generic approaches, agency complaints, lawsuits, going to the newspapers. Which of these are more likely to be collaborative? Which are more likely to be competitive? Which will likely be "mixed motive"?

Some sources of power in negotiations include: legitimate authority, rewards, sanctions, force, information, expertise, elegant solutions, commitment, moral authority, BATNA, relationships. Which of these sources of power do you need for each of the options above, for dealing with complaints?

Who should decide which complaint option or conflict management option is chosen? The manager? The complainant?

Which is the most cost-effective complaint handling option'?

Wha t does a person in a n organization think about first when he or she wants to raise a concern or make a complaint?

Is it possible to go outside the organization with a complaint and still have a normal work life thereafter within the organization? What does your answer mean for conflict management system design?

What is the first question to ask yourself when you face a dispute or a complaint as a manager?

Which sources of power do people turn to when they feel powerless? What is the effect?

Is there such a thing as a "frivolous" complaint? What would you want to try, if someone kept blaming problems on other people?

Under what circumstances is a Difficult Person not "difficult"?

Which sources of power are likely help the most, in dealing with a very Difficult Person?

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38) How do you manage your own emotions in conflict situations? (Do you consciously manage your emotions at all, or do you simply react?) What do you do if you start to feel yourself getting upset?

39) Do you try to affect the emotions of others in a conflict situation? How? For what purpose?

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Negotiation Styles/Strategies

Competition (A)

Compromise

Avoidance Accommodation (A)

Adapted from the work of Kenneth W. Thomas: Conflict and Conflict Management. in The Handbook of Industrial and Organizational Psychology. Edited by Marvin Dunnette. Chicago, IL: Rand McNally, 1976.

Prof. Mary P. Rowe—MIT, Cambridge, MA 02139

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Negotiation Styles/Strategies

Competition (A) Collaboration

Compromise

Avoidance Accommodation (A)

Adapted from the work of Kenneth W. Thomas: Conflict and Conflict Management. in The Handbook of Industrial and Organizational Psychology. Edited by Marvin Dunnette. Chicago, IL: Rand McNally, 1976.

Prof. Mary P. Rowe—MIT, Cambridge, MA 02139

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Negotiation Styles/Strategies

Competition (A)

Compromise

Accommodation(A)

Revenge (A)

Revengeand

Self-Injury Revenge (B)

Avoid ance

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Interestsvs.

Positions

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InterestsRightsPower

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Negotiation Strategies:Definitions

Distributive Strategy: Claiming all the profit or the maximum share for oneself -winning it all.

Integrative Strategy: Creating value (expanding the pie) and finding solutions that best fit the needs of all or most parties --especially over time.

Mixed-Motive Strategy: Expanding the pie and meeting the needs of all or most parties as much as possible while claiming an appropriate share.

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Negotiation Styles –Typology #1: Definitions

Competitive Style:

Cooperative Style:

Independent Style:

To try to do better than all others.

To try to be sure that the feelings of all are properly dealt with.

To try to find the best possible outcome regardless of the achievements and feelings of others.

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Negotiation Styles Typology #2: Definitions

Competitive Style: To try to gain all there is to gain.

Accommodative Style: To be willing to yield all there is to yield. Avoiding Style: To try to stay out of negotiation.

Compromising Style: To try to split the difference or find an intermediate point according to some principle.

Collaborative Style: To try to find the maximum possible gain for both parties - by careful exploration of the interests of all parties - and often by enlarging the pie.

Revengeful Style: To try to injure the other.

Self-Injurious Style: To act so as to injure oneself.

Revengeful and To try to injure the other and also act Prof. Mary P. Rowe -MITSelf-Injurious Style: so as to injure oneself. Cambridge, MA 02139

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Team BuildingInterests -

interests rather than positions

collaborative, cooperative learning styles

integrative and mixed motive strategies

informal problem solving rather than “justice”

Rights & Power -positions rather than interests

competitive (or avoiding) style

distributive strategy

justice orientation rather than problem-solvingProf. Mary P. Rowe—MIT, Cambridge, MA 02139

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TangiblesIntangibles

Prof. Mary P. Rowe—MIT, Cambridge, MA 02139

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Bargaining Range

Prof. Mary P. Rowe—MIT, Cambridge, MA 02139

Zone of PossibleAgreement

Seller’sReservation

Point

Buyer’sReservation

Point

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Prof. Mary P. Rowe—MIT, Cambridge, MA 02139

MORE TERMS IN NEGOTIATION Reservation Point: the point at which the Best Alternative to a Negotiated Agreement (the BATNA) becomes preferable to starting or continuing a negotiation. In a sale—or in any negotiation—this is the point beyond which a party will not go. Bargaining Range: The distance between the reservation points of the parties. This range can be positive or negative. If it is negative there will be no settlement unless one or both parties changes reservation points.

BUYING A HOUSE Bargaining range -0--------/\/\/\-------|------------------------------------------------------------------|---------- | | Seller’s reservation point Buyer’s reservation point Expanding the pie: The process of adding elements to a negotiation which help one or both sides to gain more—a basic task in making negotiations more integrative. These are usually elements which are valued differently by each party and often they have the characteristic that one side will gain a little, give up nothing or suffer only a small loss in return for great gain to the other. These elements can usually be added to almost any negotiation no matter how distributive the negotiation at first appears to be. As examples: the seller of a house may not care about taking the curtains or the lawn furniture. The buyer may greatly value these amenities because they will save a lot of time in moving in. The buyer might agree to a postponed moving date which does not affect him or her very much—in order to accommodate the seller’s staying until the end of a school year. In return, the seller may not mind if the buyer sends loads of books that will be stored in the garage months before transfer takes place. Both buyer and seller may enjoy introducing the buyer to the neighbors. Both may greatly value respectful and honorable treatment from the other—which usually costs nothing. Positions vs. Interests: A position is what you say you want or must have. Positional bargaining is usually distributive—and may be inefficient in the sense that value may be left on the table at the time of settlement because each party did not know what the other really wanted—but it may help one party gain more short-term profit. An interest is why you want what you want. Interest-based bargaining adds integrative potential.

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Strategy and Style

StrategyStyle

Distributive Integrative Mixed Motive

Competitive

Cooperative

Prof. Mary P. Rowe—MIT, Cambridge, MA 02139

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Ineffective Competitives

Obnoxious, complaining, rude

Unsure of the values at hand

Not realistic, perceptive, astute

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Ineffective Cooperatives

Unsure of self and interests

Not creative or perceptive

Not realistic or astute

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Effective Negotiators(both strategies)

Ethical, trustworthy

Appropriately courteous

Prepared

Creative, realistic

Perceptive, self-controlled

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Prof. Mary P. Rowe—MIT, Cambridge, MA 02139—1

Bargaining Tactics1 for Distributive, Integrative and Mixed Motive

Strategies Classic Distributive Classic Integrative

Maintain an inscrutable (or hostile) Be as professional and as pleasant as demeanor; bargain on your own turf and possible to deal with, whatever the do not be hospitable. Or, alternatively, substance of discussion; seek neutral be very charming. turf. If you cannot be pleasant, be scrupulously civil and respectful. Sacrifice relationship to gains. Build trust for a longterm relationship. Argue ad hominen. Discuss issues rather than personalities. Use humor at the expense of others. Use self-deprecating humor. Avoid discussions of the principles that should Seek agreement on the principles that should influence the decisions to be made. determine the decisions to be made. Conceal your own interests (appear to ignore Describe your interests; seek to understand the other's interests) while doing your best the other's interests — listen actively. to discover the reservation point of the other. Conceal all other relevant information as much Share information; it may help to expand the as possible. pie or discover joint gains. (Dissemble, mislead, lie if necessary.) Be truthful. Be unexpected, (retract former agreements or Be consistent, reliable. points of agreement without notice; rattle the other side). Bargain in terms of position, (your position). Bargain in terms of interests and principles. Talk about your rights. Talk about problem-solving. Take extreme positions. Seek reasonable possibilities. Hold these positions tenaciously. Make reasonable accommodation. 1These descriptions of tactics are not meant as endorsements of all of these tactics. In particular, this paper is not meant as a recommendation of unethical tactics, nor does the author believe that unethical tactics are necessary. (It is perfectly possible to be a principled, distributive bargainer, who uses some but not all of these tactics—just as it is possible to be an unethical integrative negotiator.) It is however important for all negotiators to be aware of the strategies and tactics that may be used by others; please therefore study carefully the tactics in brackets, so that you may recognize them if used against you, and take appropriate action.

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Prof. Mary P. Rowe—MIT, Cambridge, MA 02139—2

Give in only a little, and only if forced. Offer accommodation on occasion; make larger concessions if warranted. Widen the agenda so you will have Narrow the agenda to what's important, or bargaining chips you do not care about, seek other possible gains for the other side, to give up. as well as your own, by expanding the pie and/or constructing a "package". Set deadlines; create tension; repeat demands; Take as much time as you need; take time out; (push decisions through before the other side be sure the other side really understands the can assess the implications; conceal negative consequences of the decision and accepts consequences of the decision for the other them. side). Don't let anyone else in on anything if Brainstorm with as many wise heads as possible, except as below. possible. Generate more options. Refer all final decisions to another Let the real decision-maker bargain directly. unknown, or higher authority, (who may even renege if necessary).

Tactics Common to All Strategies

Forestall commitment by the other side to the other's initial position. Help the other side save face, if they do not or can not attain a position they've taken, and

especially if they move their position. Help both sides to come to feel that whatever settlement is reached, that it is the best

possible one under the circumstances.

Mixed Motive Strategies

In almost all negotiating situations you will have "mixed motives," where you wish

both to create value with your Other, and then to claim your share. In these situations you may use tactics common to both strategies, or switch at least a little from one strategy to the other. For example one would show respect at all times, be cautiously forthcoming about one's interests, share information as trust grows, be truthful and consistent, seek common ground and agreement on principle, generate as many options as possible, and in general pursue the integrative path as long as possible, while explicitly safeguarding your own interests. In many situations you will be able to expand the pie before having to divide it.

These ideas are drawn from the experience of the author and from Walton & McKersie, A Behavioral Theory of Labor Negotiations, McGraw-Hill, 1965. They also owe much to the work of Roger Fisher and of William Ury.

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Prof. Mary P. Rowe—MIT, Cambridge, MA 02139

BASIC NEGOTIATION AND MEDIATION TASKS

Basic Tasks for a Pure Distributive Strategy

l. Figure out your own interests and reservation point as well as you can. Keep reviewing these points while you negotiate.

2. Figure out the interests and reservation point of the Other (the other party or parties). Be alert to new data while you negotiate.

3. Seek to move the reservation point of the Other to widen the bargaining range especially if there is a negative range. (This process is often begun by “sowing doubt.”) However, if necessary for a settlement that you must achieve, move your own reservation point.

4. Seek a settlement as close as possible to the reservation point of the Other so that you win the maximum profit.

5. Do what you can to see that both you and the Other come to see this settlement as the best possible one under the circumstances.

Basic Tasks for an Integrative or Mixed Motive Strategy

l. Figure out your own interests and reservation point as well as you can. Keep reviewing these points while you negotiate.

2. Figure out the interests and reservation point of the Other. Be alert to new data while you negotiate.

3. Through judiciously shared information and brainstorming, seek to expand the pie so that each side may get as much as possible of what it would like. Explore moving the reservation points of each side.

4. Decide on fair principles to determine how to divide the pie.

5. Do what you can to see that both you and the Other come to see this settlement as the best possible one under the circumstances.

Basic Tasks for Mediation

l. Figure out the real interests — not the “positions” — and reservation point for each side as well as you can. Privately review your understanding of these points with each side. If appropriate, keep reviewing these points during the mediation. Stay alert for new data.

2. Through acquiring information and brainstorming, seek to expand the pie so that each side might get as much as possible of what it would like. Explore moving the reservation points of each side.

3. Help the parties decide on fair principles to determine how to decide the issues at hand.

4. Do you what you can to see that all parties come to see the settlement — if any — as the best possible one under the circumstances.

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Sources of Power in Negotiations

Positional Power or the Power of Legitimate Authority

“You do what I say because I’m the boss -that’s why!”

“Like it or not - that’s the law.”

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Sources of Power in Negotiations

Rewards“He bought his way in...”

“Do whatever he says - you’ll be glad you did.”

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Sources of Power in Negotiations

Sanctions“She said she would just sue me...”

“If you continue to make these mistakes - at very least it means a demotion.”

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Sources of Power in Negotiations

Force“I will get you…and your children, if you continue…”

“This assignment isn’t safe for a woman - we can’t send you there.”

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Sources of Power in Negotiations

Information“He was able to get us the information we needed about what our competition is planning for the next year.”

“You think you’re being paid fairly? Let me tell you what others are making.”

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Sources of Power in Negotiations

Expertise“She is the most important employee here - she is the only person who really knows how the data system works.”

“I don’t care if there’s a hiring freeze. Get me someone who knows about interoperability.”

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Sources of Power in Negotiations

An Elegant Solution“We were completely stymied. He walked in here with a magic wand - he fit together all the pieces of the puzzle and found us a workable answer that helps everyone at least a little and saves face for everyone.”

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Sources of Power in Negotiations

Charisma - referent authority - moral authority“People would just stop what they were doing and watch him and listen to him and do their best to support whatever he wanted done.”

“It was scary. But I got to my feet and said, ‘You must stop this.’ And he did.”

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Sources of Power in Negotiations

Commitment“She just never gave up. She camped outside his office night and day until finally he had to listen.”

“We will go to the mat on this one - let there be no mistake. It’s this or a strike.”

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Sources of Power in Negotiations

Relationship - power gained or power lost“Friends come and go - enemies accumulate forever.”

“I know her and she is the only person I will deal with on this matter.”

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Sources of Power in Negotiations

BATNA - the best alternative to a negotiated agreement

“They had all the time in the world and lots of other customers - they did not need us.”

“The worst that can happen is that I will just go back where I came from. I might even like that.”

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Preparing for a Negotiation

Questions to address before and during negotiation

1. Whose interests are at stake?

2. What are their interests?

3. What are the sources of power for each person whose interests are at stake?

4. What are all the possible options?

5. What strategy do I wish to adopt?

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1995 Prof. Mary Rowe. This exercise follows ideas from Bruce Patton, at Harvard University.

Dealing with Difficult Tactics

1. Play the aggressive strategy right back.

2. Ignore the aggressive strategy. Lead a change in the game by proposing objective criteria and principles that should be considered.

3. Ignore the aggressive strategy. Lead a change in the game by concentrating first on the interests of the Other and then on your interests.

4. “Name” the aggressive strategy of the Other and try to negotiate a change in the game by generating options, and concentrating on objective criteria and interest of all parties.

5. Propose a change in negotiators.

6. Go to your fallback position (your BATNA).

7. Go to your “micro-BATNA”.

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Prof. Mary Rowe—MIT, Cambridge, MA 02139—p1

Options for complaint-handling include problem-solving and

formal options: I. Problem-solving options, oriented toward the interests of all parties: A. Negotiation: problem-solving options include A (the complainant) choosing to negotiate directly with B (the apparent offender): • A could choose to learn how to write a civil, factual, private note or letter to B, laying out the facts as A sees them, A's feelings about these facts, and the remedies proposed by A. • A could choose to learn how to go talk directly with B, with or without presentation of the note or letter. Drafting a private letter is usually the most helpful first step for A to take, in deciding what to do next. This is especially true if A is angry and upset, in which case it may take a number of drafts to support A to deal with rage and grief, and come to a polite, factual version. Preparing a private letter, whether or not it is sent, is almost always helpful in choosing an option—and thereafter, in pursuing any option. A private letter may be a good approach for concerns that are in part a matter of perception, like arguments over who should get credit for a successful idea. In a sexual harassment complaint, a letter may also help, later on, to demonstrate that sexualized behavior actually occurred and that it was unwelcome. (Both of these points would be essential in making a finding of sexual harassment if the private approach did not work.) If a supervisor knows that a private approach is being chosen, the supervisor should follow up with the complainant, to be sure that the problem has ended. B. Informal third-party intervention: problem-solving includes having a third party go back and forth between A and B, or bring A and B together, to resolve the complaint. The third party could be a designated staff person, an HRM manager, an impartial line supervisor or department head, or other appropriate person. It is important in these

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Prof. Mary Rowe—MIT, Cambridge, MA 02139—p2

approaches that there should be no adverse administrative action without a process which is fair to the offended person, and to the alleged offender. And the third party go-between should follow up to be sure that the problem has stopped. C. Classic Mediation: problem-solving also includes a process of formal mediation in which A and B voluntarily choose to be helped by an impartial person to find their own settlement. These settlements often are put into writing, and may be on or off the record. Classic mediation has been relatively rare in sexual harassment cases but this option is now becoming more common. Mediation may be especially useful where there are differences in perception, and for cases where statements by the parties constitute the only available evidence. D. Generic Approaches: problem-solving also includes generic approaches which are intended to change the system, or to alert possible offenders to inappropriate professional behavior, in such a way that the alleged problem disappears. For example, a department head might choose to distribute and discuss copies of harassment policy, in order to stop a given problem. Or a department head might encourage harassment training, in such a way as to address and prevent inappropriate behavior. Generic approaches may be effective in stopping unprofessional behavior and help to support the effectiveness of individual approaches. Generic approaches may also prevent similar problems. Formal options, oriented toward right and wrong: E. Investigation and Adjudication: a supervisor, department head, human resources manager or other appropriate staff person may investigate and formally dispose of a complaint—or may appoint some other person or committee to do so. This is the option that is oriented toward win/lose—toward assessing "right and wrong." If adverse administrative action may ensue, fairness requires: an investigator who is impartial, notice to the alleged offender, and a reasonable opportunity for the alleged offender to respond to complaints and evidence against him or her.

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Changing Behavior

1) Reinforce and reward good behavior which, as it takes place, is inconsistent with, and blocks, the (bad) behavior that you hope will disappear....

2) Reinforce good behavior (role-modeling from senior people, performance reviews, etc.)

3) Punish bad behavior

4) "Name" what is good behavior and bad behavior

5) Ignore bad behavior (and good behavior)

6) Reward bad behavior

7) Alternately reward and punish bad behavior --- this will cast it in concrete forever

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2002 Mary Rowe - MIT

How would you know if vou are an effective Negotiator?

Who should decide? Should you decide, or should your supervisor? Your Significant Other?

What about the Other? And what about other stakeholders?

Is it all about outcome? Or process? Or both?

Can you tell right away if you have been effective? Or is it the long run that counts?

Do you have "ethical7' and "legal" on your list of required characteristics?

When would collaborative and when would competitive or mixed motive strategies be most effective?

How "wide" an effect do you want to have as a negotiator? Do well on one negotiation? Or improve a whole system?

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