12 research outputs found

    Conflicts of Interest at an Organization’s Highest Authority: How the District of Columbia’s Rules of Professional Conduct Can Fail to Protect Private Organizations

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    This Article examines how the District of Columbia’s incomplete incorporation of the Model Rules of Professional Conduct into its own Rules of Professional Conduct has created a scenario in which wrongdoing inside a private organization can flourish. In 2002, following the Enron scandal, the American Bar Association (ABA) revisited and revised its Model Rules of Professional Conduct. The ABA nevertheless took a conservative route, rejecting rules long proposed by experts which would have permitted attorneys aware of corporate crimes, fraud, and other wrongdoing to report their concerns to individuals or entities outside the organization’s reporting structure. Additional scandals unfolded contemporaneous with the ABA’s revisions, instigating federal legislation, the Sarbanes-Oxley Act of 2002. Regulations promulgated under that Act included the reporting out opportunity long sought by ethics experts. In light of the new federal legislation, the ABA, in 2003, finally passed a revised Model Rule 1.13 which requires attorneys to report wrongdoing up the ladder to an organization’s highest authority and permits those attorneys to report out such wrongdoing in the event the highest authority failed to respond appropriately. Unfortunately, the District of Columbia did not heed these lessons. Citing antiquated notions of client confidentiality, the District adopted an approach which requires an attorney to report wrongdoing up the ladder but then fully accept the results of that reporting, even if the highest authority to whom the attorney reports the misconduct is the one engaging in the misconduct. In so doing, the District has created a structure which incentivizes the termination of ethical attorneys in order to cover up corporate wrongdoing. This Article recommends changes to the District of Columbia’s Rules of Professional Conduct which will enable the District to take the lead in promoting a bar committed to ethical conduct and appropriate corporate governance

    The Combine and the Common Rule: Future NFL Players as Unknowing Research Participants

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    This Article analyzes the application of federal regulations governing human subjects research to the National Football League (NFL). More specifically, this Article examines research conducted via the NFL Scouting Combine. The NFL Combine is an annual event in which approximately 300 of the best college football players undergo medical examinations, intelligence tests, interviews, and multiple football and other athletic drills in the hopes of demonstrating their prowess and landing a spot in the NFL. Combine participants are under intense pressure to impress NFL clubs. Indeed, the Combine is routinely called the biggest job interview of their lives. The examinations, tests and drills provide a plethora of data for NFL clubs to analyze in considering which players to select in the NFL Draft. NFL club medical personnel scour the data on behalf of the clubs, looking for medical conditions that might affect a player\u27s short-term or long-term usefulness to the club. Many of these medical personnel have then also published studies utilizing the medical data from the NFL Combine. Such studies can provide a better understanding of the medical conditions faced by elite football players. At the same time, these studies help clubs predict how a Combine participant\u27s medical condition or history might affect his performance on an NFL field. Against this backdrop is the field of human subjects research regulation. Born out of some horrific historical incidents, bioethicists, doctors, lawyers and related experts constructed a paradigm setting forth the requirements for research-particularly medical research-involving humans as subjects. Included in this paradigm are federal regulations, known as the Common Rule, which typically require that research be reviewed and approved by an Institutional Review Board (IRB) and that the researchers obtain the participants\u27 informed consent before proceeding. Moreover, the Common Rule requires that additional protections be implemented where the population being researched is considered vulnerable. This Article examines whether 42 medical studies published using the medical records and data of NFL Combine participants comply with the Common Rule and other human subjects research guidelines. Given the intense pressure to please NFL clubs, and the precariousness of a career in the NFL, NFL Combine participants have significantly constrained choices about whether to participate in the research being conducted. Consequently, it is highly questionable whether informed consent-as required by the spirit and letter of the Common Rule-is being obtained. Additionally, given most players\u27 limited financial resources and the inequitable power relationship between players and NFL clubs, there is a strong argument that NFL Combine participants should be considered a vulnerable research population. This argument is bolstered by similarities between the workplaces of NFL players and military personnel-a population regularly recognized as vulnerable. The Article concludes with five recommendations for better protecting NFL Combine participants in the context of human subjects research: (1) requiring researchers and/or the Combine participants to read the consent form aloud and audio record the process; (2) requiring all research to be approved by the National Football League Players Association; (3) requiring consent forms to be provided to the Combine participants\u27 agents; (4) having IRBs engage the perspective of a player when evaluating research; and (5) requiring that Combine participants\u27 decision whether or not to participate in the research remain confidential. By requiring such protections, IRBs have the potential to ensure that NFL Combine participants are being subjected to research in the dignified and respectful matter required by the Common Rule

    Conflicts of Interest at an Organization’s Highest Authority: How the District of Columbia’s Rules of Professional Conduct Can Fail to Protect Private Organizations

    No full text
    This Article examines how the District of Columbia’s incomplete incorporation of the Model Rules of Professional Conduct into its own Rules of Professional Conduct has created a scenario in which wrongdoing inside a private organization can flourish. In 2002, following the Enron scandal, the American Bar Association (ABA) revisited and revised its Model Rules of Professional Conduct. The ABA nevertheless took a conservative route, rejecting rules long proposed by experts which would have permitted attorneys aware of corporate crimes, fraud, and other wrongdoing to report their concerns to individuals or entities outside the organization’s reporting structure. Additional scandals unfolded contemporaneous with the ABA’s revisions, instigating federal legislation, the Sarbanes-Oxley Act of 2002. Regulations promulgated under that Act included the reporting out opportunity long sought by ethics experts. In light of the new federal legislation, the ABA, in 2003, finally passed a revised Model Rule 1.13 which requires attorneys to report wrongdoing up the ladder to an organization’s highest authority and permits those attorneys to report out such wrongdoing in the event the highest authority failed to respond appropriately. Unfortunately, the District of Columbia did not heed these lessons. Citing antiquated notions of client confidentiality, the District adopted an approach which requires an attorney to report wrongdoing up the ladder but then fully accept the results of that reporting, even if the highest authority to whom the attorney reports the misconduct is the one engaging in the misconduct. In so doing, the District has created a structure which incentivizes the termination of ethical attorneys in order to cover up corporate wrongdoing. This Article recommends changes to the District of Columbia’s Rules of Professional Conduct which will enable the District to take the lead in promoting a bar committed to ethical conduct and appropriate corporate governance

    Labor & Employment Law Guidance for Professional Sports Teams

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    The Combine and the Common Rule: Future NFL Players as Unknowing Research Participants

    No full text
    This Article analyzes the application of federal regulations governing human subjects research to the National Football League (NFL). More specifically, this Article examines research conducted via the NFL Scouting Combine. The NFL Combine is an annual event in which approximately 300 of the best college football players undergo medical examinations, intelligence tests, interviews, and multiple football and other athletic drills in the hopes of demonstrating their prowess and landing a spot in the NFL. Combine participants are under intense pressure to impress NFL clubs. Indeed, the Combine is routinely called the biggest job interview of their lives. The examinations, tests and drills provide a plethora of data for NFL clubs to analyze in considering which players to select in the NFL Draft. NFL club medical personnel scour the data on behalf of the clubs, looking for medical conditions that might affect a player\u27s short-term or long-term usefulness to the club. Many of these medical personnel have then also published studies utilizing the medical data from the NFL Combine. Such studies can provide a better understanding of the medical conditions faced by elite football players. At the same time, these studies help clubs predict how a Combine participant\u27s medical condition or history might affect his performance on an NFL field. Against this backdrop is the field of human subjects research regulation. Born out of some horrific historical incidents, bioethicists, doctors, lawyers and related experts constructed a paradigm setting forth the requirements for research-particularly medical research-involving humans as subjects. Included in this paradigm are federal regulations, known as the Common Rule, which typically require that research be reviewed and approved by an Institutional Review Board (IRB) and that the researchers obtain the participants\u27 informed consent before proceeding. Moreover, the Common Rule requires that additional protections be implemented where the population being researched is considered vulnerable. This Article examines whether 42 medical studies published using the medical records and data of NFL Combine participants comply with the Common Rule and other human subjects research guidelines. Given the intense pressure to please NFL clubs, and the precariousness of a career in the NFL, NFL Combine participants have significantly constrained choices about whether to participate in the research being conducted. Consequently, it is highly questionable whether informed consent-as required by the spirit and letter of the Common Rule-is being obtained. Additionally, given most players\u27 limited financial resources and the inequitable power relationship between players and NFL clubs, there is a strong argument that NFL Combine participants should be considered a vulnerable research population. This argument is bolstered by similarities between the workplaces of NFL players and military personnel-a population regularly recognized as vulnerable. The Article concludes with five recommendations for better protecting NFL Combine participants in the context of human subjects research: (1) requiring researchers and/or the Combine participants to read the consent form aloud and audio record the process; (2) requiring all research to be approved by the National Football League Players Association; (3) requiring consent forms to be provided to the Combine participants\u27 agents; (4) having IRBs engage the perspective of a player when evaluating research; and (5) requiring that Combine participants\u27 decision whether or not to participate in the research remain confidential. By requiring such protections, IRBs have the potential to ensure that NFL Combine participants are being subjected to research in the dignified and respectful matter required by the Common Rule

    Bitter Beer Face: Are Beer Conglomerates Violating New York Consumer Protection Laws?

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    This Article examines the potential legal implications under New York consumer protection laws of the growth in the beer industry: specifically, the battle between the craft beer industry and its large corporate competitors over labeling and advertising. This Article proceeds in four Parts: Part II summarizes the growth and consolidation of the craft beer industry; Part III explains federal regulation of beer labeling; Part IV explains New York State\u27s regulation of beer labeling; and Part V examines the application of New York consumer protection laws to the labeling practices of the beer industry. This Article concludes with the determination that while the actions of certain breweries potentially violate New York law, private enforcement is challenging
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