Blog Archive

I would think that equity here would not demand sp...

Message posted on : 2006-09-05 - 23:14:00

I would think that equity here would not demand specific performance, as monetary damages could arguably be given to Branch...and then he would get paid to not play any football? Hardly seems like a court would uphld this, and it almost seems more fair to order specific performance in this case.
Posted By : Taylor

I don't see how Branch could obtain monetary damag...

Message posted on : 2006-09-05 - 23:19:00

I don't see how Branch could obtain monetary damages for salary that he could have only theoretically earned from another team if the Patriots are found to have done nothing wrong in their dealings with him.

Even if the Patriots and Branch no longer want to have a relationship, why should the Patriots have to pay him for the difference in contract value between what the Patriots offered and what he could have gotten from the Seahawks if the Patriots had agreed to the trade?

I just don't see a legal claim here, or at least one that would be taken seriously.

Posted By : Steve Botts

Kessler is a clown. He's just throwing things aga...

Message posted on : 2006-09-06 - 09:32:00

Kessler is a clown. He's just throwing things against the wall hoping the Patriots will get fed up enough to trade Branch. He has no claim.
Posted By : john

Yea, it seems to get lost that Branch is the one w...

Message posted on : 2006-09-06 - 12:02:00

Yea, it seems to get lost that Branch is the one who is breaching his contract here, not the Patriots.
Posted By : Taylor

I think that golf is becoming a worldwide phenomen...

Message posted on : 2006-09-06 - 12:49:00

I think that golf is becoming a worldwide phenomenon and it is growing day by day. More and more people are playing golf and I am sure that it has a benefic effect both for players and for economy.
Posted By : flower delivery

I'm troubled by a rule that requires every player ...

Message posted on : 2006-09-06 - 12:54:00

I'm troubled by a rule that requires every player to have an at bat when the number of at-bats in a game isn't a set number.

I'm troubled more by the "innings played" rule in a game that can be shortened.

Yes, all kids should play. But let the rule apply to fielding, too. Sheesh. We never had that rule when I played Little League... and I'm not that old.

Posted By : tim in tampa

I'm similarly troubled. If you have no certainty o...

Message posted on : 2006-09-06 - 13:55:00

I'm similarly troubled. If you have no certainty over how many innings are actually going to played, how can you reasonably plan around that?

Let's assume the game is tied going into the 5th inning, and then one team scores 10 runs to invoke the "Mercy" rule. This player should have had his 2 innings, but now you've lost that last inning. It wasn't like you were TRYING not to play him.

If the winning team can't refuse to offer mercy, then the losing team should at least have to waive these forfeit rights to accept mercy. Forget ethics - it just doesn't seem "fair" otherwise.

Posted By : Tim Marman

The CBA provides that the price for a franchise pl...

Message posted on : 2006-09-06 - 14:30:00

The CBA provides that the price for a franchise player is two #1 picks. NE can franchise Branch for the 2007 and 2008 seasons, and so, with a straight face, can purport that two #1's is reasonable value for Branch. Neither Seattle nor NY offered two #1's. As for Coles, he was signed by the Redskins as a free agent, and then traded back to the Jets for Moss, in an exchange of players who were headaches to their respective teams. NE can honestly say that Coles would not constitute a portion of a reasonable value total.
The CBA is not favorable to oral modifications of contracts, either. Modern contract doctrine superseding a specific provision of a collective bargaining agreement sounds to me like an argument which succeeds at the appellate level, and that would be several seasons down the road, during which time Branch's window of athletic opportunity is likely to dwindle without any injunctive relief. He is getting bad advice, unless one of the two teams bidding for his services raised the stakes, in which case, Branch and NE both win!

Posted By : Anonymous

Wow. This is really an ethical issue! I suppose Ma...

Message posted on : 2006-09-06 - 15:08:00

Wow. This is really an ethical issue! I suppose Mark Richt would ask, "WWJD" and then go from there....
Posted By : Anonymous

Ole Miss was certainly wise to admit Jerrell Powe ...

Message posted on : 2006-09-07 - 00:26:00

Ole Miss was certainly wise to admit Jerrell Powe as a part-time student last week. At the end of the day, Chancellor Roberts clearly ruled that Ole Miss, which had admitted Powe as a student, had to let him attend classes. The NCAA simply said that he could not play football because he failed to meet clearinghouse requirements. Even if Powe pays his own way to attend college, which he will do if he stays in school, the NCAA will drop the proverbial hammer on Ole Miss if Powe suits up for the Rebels this season. Not only is Powe not eligible to receive athletic financial aid because of failing to meet clearinghouse standards, but also he is simply not eligible to play. The NCAA Clearinghouse standards apply to all student-athletes (scholarship or non-scholarship) across all divisions and across all sports. A student-athlete has to be cleared by the clearinghouse in order to play. I doubt the NCAA will change its mind in this case, and Ole Miss should re-evaluate its academic standards for all students, not just student-athletes.
Posted By : Jeffrey R. Mitchell - Redwood City, CA

Though it seems one would take the easy way out an...

Message posted on : 2006-09-07 - 02:36:00

Though it seems one would take the easy way out and follow the orders of Judge Roberts, one must consider the University's track record. The Chancellor of the university will not allow Jerrell to play because if Ole Miss goes over the NCAA's head, the NCAA will further investigate not only the plight of Powe, but also other question marked players on the team. One player is not worth another 4 years of probation. The 90's were plagued with sanctions due to players and off the field workings of greedy alumni.
Posted By : Jack from MS

Unrelated -- how about Ron Goldman's father going ...

Message posted on : 2006-09-07 - 09:50:00

Unrelated -- how about Ron Goldman's father going to court seeking to obtain OJ's right of publicity. Now there's a novel legal issue.
Posted By : john

Branch cannot say he would have gotten that money....

Message posted on : 2006-09-07 - 10:15:00

Branch cannot say he would have gotten that money. Who is to say the Jets did not just say they would have game him the money to keep him off the field for two divisional games. Or Seattle had a similar motive? There was never any binding contract signed by the Jets or the Seattle with Branch. There was never any contract, that is like a player seeking trades and finding several teams that would give him substantially different amounts and the current team trading him to a totally different team because of a better compensation package. I just do no see it happening.
Posted By : tommie

I think a decision like this may have been spurred...

Message posted on : 2006-09-07 - 13:07:00

I think a decision like this may have been spurred by the infamous Janet Jackson incident. The important thing, though, is that this will turn out to be another unpopular policy created by the NFL. From what I read and saw in the media, the decision to ban certain end zone celebrations was extremely unpopular; and now this. The NFL realizes their entertainment value, and similar to many other entertainment outlets they are attempting to regulate it.

Another example of this comes from the NHL. Although it may have not been made public, it was quite obvious that the networks covering the NHL last year (OLN and NBC) did their best to withhold from showing fights during games. By the end of the season, when they realized that fighting is a part of the game and people want to see it, they stopped going to commercial or giving long shots of the coach and fans during the fights.

Posted By : Anonymous

What is the truth? Did Jerrell Powe complete the r...

Message posted on : 2006-09-07 - 13:48:00

What is the truth? Did Jerrell Powe complete the requirements? People that have dyslexia aren't stupid and are capable of learning in fact their path to learning is completly unique from the average learning able person. This incident may be just what other dyslexic's need. If Jerrell can do it. What a book this kid could write. What a kick in the pants for education. Why did it take so long to diagnos this problem? At least they did do something about it in the Wayne County School system.
Posted By : David from Star

Even if Branch doesn't have a claim, what does Kes...

Message posted on : 2006-09-07 - 13:57:00

Even if Branch doesn't have a claim, what does Kessler lose by saying so? At worst, someone thinks he's a scummy lawyer. They probably think that anyway. Plus, no one is going to be talking about Deion Branch's holdout a year from now, and even if they do, Kessler's name won't be the one they remember.

On the upside, maybe the Patriots think "What does he know that we don't." Or maybe it's pure PR. Little Deion Branch, the working man, has a claim for damages against the big, bad, corporate Patriots. The message is: "Fans, please don't be angry with Branch once he signs with a team. He's not a bad man. He's just getting screwed by a greedy NFL team."

Posted By : ChapelHeel

in all fairness, Branch signed the contract. He co...

Message posted on : 2006-09-07 - 14:18:00

in all fairness, Branch signed the contract. He could be a man and honor it. The Patriots are under no obligation to renegotiate. And they are being more than generous with the extension they offered him. If another team is stupid enough to sign him to all that money then when he earns his unrestricted status he can go to those teams. That is why the Patriots have been winners with their current management. You cannot argue with their success and their system. The Patriots are not being greedy, they have no duty owed to Branch. Branch is the greedy one. Holding out of training camp, disrupting team chemistry and asking for a lot of more money than he is worth.
Posted By : tommie

From a business standpoint does the NFL believe th...

Message posted on : 2006-09-07 - 14:25:00

From a business standpoint does the NFL believe that NFL football is such a national presence that the local stuff does not matter anymore? Or is it something else?

It's curious that you mention fantasy sports. In one way this decision is similar to the attack on fantasy stats. In another, it is inconsistent.

The presence of fantasy sports draws huge numbers of fans who might not otherwise pay quite as much attention. A fantasy owner's loyalty is to the players on his fantasy team, and those players are a cross-section of players from NFL teams all over the country. In that way, the NFL is celebrated as a league and at a national level.

Non-fantasy interest in the NFL tends to be localized with a particular team. It is rare that you meet someone who isn't focused on fantasy football and who says they love the NFL but don't have a favorite team. That's the core NFL fan.

ESPN highlights are fun, but if you are from Baltimore and you want more coverage than ESPN's NFL Primetime can alot to the Ravens, as participants in only one of the 15 games that day, you've got to look to the local station. Why risk depriving the core, non-fantasy fans of the opportunity to learn more about their local teams?

It's almost as if the NFL expects its fans to focus on the total league product, and less on a particular team. Fantasy leagues have made this plausible, but is it wise?

Perhaps it simply image-making? We, the NFL, will decide what image fans have of our game. We will package everything with a league-focus, not a team focus. We will not leave our image to chance, in the hands of local videographers.

But if that's the motive, why ban television cameras and not still cameras from local papers?

Is the motive simply money? They want local stations to have access, but perhaps this is the first step to the NFL selling the footage to local stations, who have little choice but to pay up to compete. After all, what product does your local sportscast get to offer you anymore, except the big games every weekend? High school sports?

I don't buy arguments about quality of the video content, at least not in any technical sense. The networks, and network cameramen, are the best in the business. That being said, there are some very talented videographers at local stations, particularly in the large media markets in which most games are played.

This is the sort of rule I believe the Bush administration would love to implement, it if wasn't for that pesky Constitution. :)

Posted By : ChapelHeel

I know Powe is attending school, but not participa...

Message posted on : 2006-09-07 - 15:05:00

I know Powe is attending school, but not participating with the footabll team. There was a hearing today to have him back on the team. Not sure of the outcome.
Posted By : Anonymous

I believe Ole Miss comes out ahead if the NCAA den...

Message posted on : 2006-09-07 - 15:11:00

I believe Ole Miss comes out ahead if the NCAA denies the University's appeal of the NCAA's decision not to qualify Powe as eligible. I am building a career in collegiate athletic administration, and I certainly want what's best for the student-athlete. I'm not sure that Powe will be best served as trying to play football and receive an education at the same time. Powe needs help with his learning disability above anything else. Moreover, as an alumnus of the University of Mississippi School of Law, I want Ole Miss to make intelligent decisions when it comes to collegiate athletics and the student-athletes who wear the Red and Blue. Ole Miss is in the business of educating its students, and I believe athletics is a critical part of education. In this case, Ole Miss exists to benefit Jerrell Powe and not the other way around. But the school's hands will be tied if the NCAA grants Powe eligibility. First, the school will really have no choice but to let Powe play, which means that he'll have to enroll as a full time student. But since the deadline for enrolling as a full time student has passed when Powe has a full slate of classes he will essentially have received an extra benefit because he is a student- athlete. The average John Doe Student won't get similar treatment in the registrar's office. The University may have a built in exception to this rule that applies to all students. Let's hope so. But, in any event, I agree with Jack from MS that Ole Miss must be careful in the event the NCAA changes its mind. NCAA investigators certainly know their way to Oxford.
Posted By : Jeffrey R. Mitchell - Redwood City, CA

I understand the rules for everybody has to play i...

Message posted on : 2006-09-08 - 11:12:00

I understand the rules for everybody has to play in the regular little league games, because parents are paying good money and the goal is to teach and have fun more than winning, but the LLWS teams are "All-Star" teams.

These are the best kids, who played a lot during the regular season. Sitting on the bench for an entire game isn't a travesty.

Posted By : Michael

"ranks of dissenters"....yes indeedy

Message posted on : 2006-09-08 - 11:53:00

"ranks of dissenters"....yes indeedy
Posted By : Anonymous

Could someone explain this question?

Why do...

Message posted on : 2006-09-08 - 13:43:00

Could someone explain this question?

Why doesn't the NCAA adopt a similar policy for basketball as it has for the MLB draft? Guys can get drafted w/o losing eligibility, go draft-and-follow, go for pro ball, or wait and enter the draft again. Lots of details not mentioned, but why not make it easier on the kids? College baseball players don't have to gamble so much with their future. If they don't like where they went in the draft, just come back to school and re-enter the draft.

Thoughts?

Posted By : cj

CJ

I think it has to do more with the NBA's...

Message posted on : 2006-09-08 - 15:10:00

CJ

I think it has to do more with the NBA's policies than with the NCAA.

Posted By : Anonymous

Under Krzyzewski, 90% of Duke's scholarship basket...

Message posted on : 2006-09-08 - 15:48:00

Under Krzyzewski, 90% of Duke's scholarship basketball players have graduated, among the highest graduation rates of any NCAA Division I program.
Posted By : Mr drug rehab

It is easy to get swayed by the likes of the top p...

Message posted on : 2006-09-08 - 18:19:00

It is easy to get swayed by the likes of the top payers who made it out of high school to the NBA. Isnt the rule to protect the 2nd tier players from getting into the league and then fallng. I think the biggest problem is that there is now minor leagues. I have said this before but that portects these young guys more than anything.
Also I have a question for Mike. Why cant an Employer protect himself from waisting money? If the rule means anything it is that teams dont trust themselves and need a rule to protect them.
Kenny

Posted By : Anonymous

Parsing out the 2 grievances, Branch/Chayut seem t...

Message posted on : 2006-09-09 - 07:14:00

Parsing out the 2 grievances, Branch/Chayut seem to say: (a) that NE failed to negotiate in good faith in a situation where they had no obligation to negotiate at all (1 yr left on conrtact); and (b) that they somehow formed a legal obligation to Branch once they proposed letting him shop himself.

On (b), I gather this is a straight-forward promissory estoppel argument - Pats promised to trade him for satisfactory consideration from other teams, and Branch relied on it in rounding upoffers, to his detriment - combined with an implied duty of good faith and fair dealing - allowing NE to exercise unfettered discretion in deciding what's 'satisfactory' will defeat Branch's reasonable expectations.

Am I reading this correctly? If so, what is the 'detriment' or 'injustice' that Branch will have to establish for promissory estoppel? Is there another theory out there to support this grievance?

I don't have a clue on the first grievance. Is there an obligation under the CBA to negotiate in good faith when a player still under contract asks for restructuring and extension? Or does NE step into that duty once it begins that dialogue, even though it had no obligation to discuss restructuring in the first place?

If it's the latter, doesn't that mean that any team that wants to extend a player before his free agency year assumes a significant legal risk in doing so?

And assuming that Feerick finds there was a quasi-contractual obligation that was breached, what kind of relief can he grant? Outside of this arena, specific performance might be difficult because money damages would be a sufficient legal remedy. Is this somehow different?

And most critically, why did NE make the 'shop yourself' offer, thereby incurring another dimension of risk? Did it ignore or overlook the estoppel issue, or did it evaluate the issue with counsel and decide that it could make 'absolute discretion' stick?

It will be interesting to see what Kessler does with this. Everyone is writing it off as a desperation move with no chance of success, but while I see lots of unanswered questions, I'm left wondering.

Posted By : Anonymous

Can anybody tell me if it's legal to use college a...

Message posted on : 2006-09-09 - 14:33:00

Can anybody tell me if it's legal to use college athlete's names on an internet business?
Posted By : Anonymous

I've enjoyed this threat very much. It's raised a...

Message posted on : 2006-09-09 - 14:49:00

I've enjoyed this threat very much. It's raised a question in my mind though for Prof. Karcher; what are the legal implications of using a college athlete's name/likeness for fantasy sports?
Posted By : Anonymous

I'm never going to like Coach K, but good on him h...

Message posted on : 2006-09-09 - 21:23:00

I'm never going to like Coach K, but good on him here. It's nice to see a college coach speaking out for the greater good even if it goes against his own self interest. I wish it happened more often.
Posted By : Anonymous

Is there a similiar list of NFL players?

Message posted on : 2006-09-11 - 01:09:00

Is there a similiar list of NFL players?
Posted By : Anonymous

The NFL is protecting their video content from wha...

Message posted on : 2006-09-11 - 09:50:00

The NFL is protecting their video content from what, exactly? Local TV provides pre-game talking head reports and post-game highlights (from field-level, I would add). From a purely business perspective, I fail to see how either of those threaten the value of the game content. Has the NFL provided a clear explanation of their stance on this? Something must have spurred this move.
Posted By : Matthew Saunders

Regardless of whether the terrorists would actuall...

Message posted on : 2006-09-11 - 18:31:00

Regardless of whether the terrorists would actually want to plan an attack against a stadium, I feel safer knowing that there are people there protecting me in case they are.
Posted By : Anonymous

I'm just wondering if one needs a college degree t...

Message posted on : 2006-09-11 - 18:41:00

I'm just wondering if one needs a college degree to serve as a screener at the stadium. Or, better yet, do they have to be at least one year out of high school and at least 19?
Posted By : Anonymous

To my mind, the Pats are looking worse and wors...

Message posted on : 2006-09-12 - 17:55:00

To my mind, the Pats are looking worse and worse as this thing continues. Tampering? Seriously? They're acting petulant every step of the way. They got a great deal -- a deal that they shouldn't have even been entitled to demand, as I have argued in prior posts -- and now they want to gin up the waters a little more.

Explain again why they shouldn't have been entitled to demand the deal they got. He was under contract, and they're under no obligation to free him without acceptable third-party consideration. If Seattle was convinced that NE 'had no right' to do that, The Sea Hawks could have waited till the grievances were determined, because the Feerick grievance addressed exactly that point - did NE make a binding legal obligation to exercise reasonable discretion in determining what was 'appropriate' consideration.

As for the fines, good lord! If you keep quiet about such a monumental factor during negotiations, allowing the other party to rely on industry custom and standard practice, then you generally lose the right to bitch about it later. Now, I don't know what is customary in these situations, but if the Pats are making ex post demands that come as a shock to everyone, then I'm guessing that they're not exactly arguing from industry standard.

Someone was asleep at the switch on this one, and it may have been Chayut. As part of the deal with Seattle, he could have insisted that NE waive any claims to fines. 'Industry standard' is a euphemism that people use when they haven't been careful enough to spell out their own expectations. If you don't protect yourself, don't expect others to do your job for you.

Whatever sympathy I had for their position has evaporated because they have clearly been negotiating in bad faith.

That's an inductive leap. You conclude that they're acting in bad faith based on - what? Because they are pursuing fines that they're entitled to collect under the CBA, and that DB and Chayut forgot about? This isn't exactly slow-pitch softball. DB filed his grievances and was prepared to drive NE to the wall - which was his right. He didn't cut the Pats a great deal of slack, and there's no reason that he had to, so if he receives it back in kind, there shouldn't be any whining.

And perhaps you never had much sympathy for NE in the first place.

Bad faith, bad faith, bad faith. Doesn't that take it out of the realm of the CBA and into the courts where someone can get punitive damages?

In a word, no. Negotiating a contract in bad faith is a violation of the CBA, which is what the second grievance was all about. Bad faith in the exercise of seemingly-unlimited discretion to put the screws to the other party - what is acceptable consideration from Seattle - is a basis for reviewing the Pats rejection of a second-round choice, which is what the Feerick grievance was about in part. But exercising your legal rights because you dislike the way the other party has treated you isn't actionable in and of itself, and hardly constitutes 'bad faith'.

Posted By : Anonymous

1) Considering how much I've made betting on the P...

Message posted on : 2006-09-12 - 18:45:00

1) Considering how much I've made betting on the Pats the past few years, I've developed quite a bit of sympathy for them.

2) While you may consider "industry standard" a euphemism, it is one that is recognized by the courts. The party that didn't protect themselves here is not Branch, but the Pats.

3) Yeah, it's a leap to say that the Pats were negotiating in bad faith, but it's a leap I'm willing to make because I think that its the reasonable conclusion to draw from their actions. First, they tell Branch he ain't worth squat. Then, they tell him that if he thinks he's worth more than squat, go out and find a better deal and they'll make a trade. Then, when he finds a better deal, they suddenly decide he's worth more than any other receiver in any trade, ever, and refuse to trade him. They let him twist in the wind and file his grievances, and finally let him go. And then, after the deal is made and everyone is out of everyone's hair, they come back for another bite of the apple and tell him they're not through with him, that he's gotta pay more than half a million dollars in fines. And what's more, after they denied they made this oral deal with him, they then admit that they had the deal because they claim that the limits of that deal prevented the Jets from telling him what they offered for him. Yeah, I'm making a leap to claim bad faith. I'd be a fool not to.

4) But thanks for the CBA analysis.

Posted By : Collin

Looking again at my comment, I realize that the la...

Message posted on : 2006-09-12 - 20:14:00

Looking again at my comment, I realize that the last point came off snarkier than I had intended. I really didn't know whether this would take it out of the CBA realm or not, and I really do appreciate someone else doing the thinking.
Posted By : Collin

Seth,

Thanks for your comment. I believe b...

Message posted on : 2006-09-12 - 21:41:00

Seth,

Thanks for your comment. I believe both the league and stadium operators (and also perhaps the hosting team) could face tort liability in the event a security mishap, so it would seem that they share a collective interest in seeing the stadium secure. Whether they are accomplishing that goal is clearly up for debate, and as you note, fans who attend games know that security is limited in what it can do, particularly given the practical need of getting people into the stadium and not having humongous lines outside of the stadium.

Posted By : Michael McCann

Racist and sexist remarks are obviously offensive ...

Message posted on : 2006-09-12 - 23:03:00

Racist and sexist remarks are obviously offensive to some people but not to others; the one's making the remarks likely do not take offense at them. The same situation obtains for "bad language" and swearing; it is offensive to some but not to others.

Therefore, I'm not sure that I could easily agree that racist/sexist remarks should be banned/punished if foul language is to be ignored. It seems to me that rules of this type seek to avoid offending people and the logical extension of that is to ban any utterances that might offend someone.

And therein lies the rub... There are far too many people who are spring loaded to be pissed off about anything and everything. Recall that some people have protested the name of the Green Bay Packers because that name conjures up in their minds images of animals being slaughtered. Those folks claim to be offended by that. Should those views be accommodated by a ban on cheers that evoke images of what someone might think is animal cruelty?

This is not only a slippery slope; it's a steep one too.

Posted By : The Sports Curmudgeon

Rice is absolutely wrong. The nature of football m...

Message posted on : 2006-09-13 - 05:34:00

Rice is absolutely wrong. The nature of football means your value (and hence salary) can plummet with one ACL tear, especially for WRs.Players get pressured to reduce salaries all the time. This isn't a moral issue.Branch had to pay the negotiated CBA fine b/c of the hold out. If the owners don't like it, they should've negotiated a stiffer penalty for holdouts. Just like the players should have negotiated better guaranteed contracts provisions.
Posted By : Anonymous

Rice is absolutely wrong. The nature of football m...

Message posted on : 2006-09-13 - 05:35:00

Rice is absolutely wrong. The nature of football means your value (and hence salary) can plummet with one ACL tear, especially for WRs.Players get pressured to reduce salaries all the time. This isn't a moral issue.Branch had to pay the negotiated CBA fine b/c of the hold out. If the owners don't like it, they should've negotiated a stiffer penalty for holdouts. Just like the players should have negotiated better guaranteed contracts provisions.
Posted By : Anonymous

Michael,

Has it been confirmed that Branch ...

Message posted on : 2006-09-13 - 07:48:00

Michael,

Has it been confirmed that Branch has or is about to sign an extension with the Seahawks for 6 yrs at $39M? I read that that was the "alleged" oral discussion between Branch and Seattle to any trade. But the trade deal between NE and Seattle would only obligate Seattle to the remaining salary owed on the final year of his contract (approx. $1M). If they haven't agreed on the terms of a contract, presumably Seattle could wait until the end of the season to determine what they want to do with Branch, which puts Branch in the same position he's been in all along.

Posted By : Rick Karcher

The ideal solution appears to be to allow differen...

Message posted on : 2006-09-13 - 09:14:00

The ideal solution appears to be to allow different types of behavior in different parts of the stadium. Thus, certain areas are "family friendly" in that alcohol is not served and security polices language, but fans in other areas are allowed to do pretty much as they please.

Of course, the smaller the stadium the less effective these policies will be, but I presume that this wouldn't be a problem in a stadium the size of the Horseshoe in the Columbus.

Posted By : PK

Rick,

According to the Associated Press, Br...

Message posted on : 2006-09-13 - 09:25:00

Rick,

According to the Associated Press, Branch did sign the rather enormous contract yesterday:

KIRKLAND, Wash. -- Deion Branch doesn't mind his almost $600,000 in New England Patriots fines anymore. His holdout-turned-honeymoon has fixed that.

Branch can now write off the fines like a large phone bill after signing a $39 million, six-year contract with the Seattle Seahawks on Tuesday.

''I was losing a lot of money,'' Branch said.

Not anymore.

Branch will receive $13 million in a bonus and other guarantees, according to a person in the league close to the negotiations who requested anonymity because the terms had not yet been announced. About $23 million is due to Branch over the first three years of the deal, likely making him a fixture in Seattle's currently crowded passing game.

Posted By : Michael McCann

The Jets and Patriots are playing mind games with ...

Message posted on : 2006-09-13 - 09:58:00

The Jets and Patriots are playing mind games with each other. That is all this is about, and that is all this has been about. The Jets new they were never going to get Branch. Typical Bill Belichick ala Bill Parcells.
Posted By : tommie

It's in Coach K's best interest to get as many non...

Message posted on : 2006-09-13 - 10:11:00

It's in Coach K's best interest to get as many non-college players out of the NCAA. This will drain the talent pool and play into his recruiting strenghts, you'll either learn the skills to play pro-ball anywhere or you'll have a Duke degree.
Posted By : Michael

Sounds like an impermissible content based restric...

Message posted on : 2006-09-13 - 10:12:00

Sounds like an impermissible content based restriction on speech. Reminds me of when those fascists in Texas tried to clean up cheerleading dance routines. Nothing says "go team" like a well choreographed hip gyration.
Posted By : Anonymous

Good post Mike...interesting topic. While I'm gen...

Message posted on : 2006-09-13 - 11:51:00

Good post Mike...interesting topic. While I'm generally in favor of the policy, particularly regarding the racist/sexist remarks, another issue is who defines an obsenity. I can think of the several words that one person would find vulgar that another would not consider as such.

-Chad

Posted By : Chad McEvoy

Hmmmmm. Does this apply to the student-athletes an...

Message posted on : 2006-09-13 - 13:11:00

Hmmmmm. Does this apply to the student-athletes and coaches or just the fans? If it applied to the student-athletes and coaches, I'm sure that the games would have to be forfeited. Wow. Would allowing student-athletes to speak in vulgar terms be considered an "extra benefit" thereby rendering them ineligible? Actually, I have a better idea: just don't keep score, and let them play for the "love" of the game. This will show that there do not have to be winners and losers in sports.
Posted By : Anonymous

Its about time someone steps up to bring purity an...

Message posted on : 2006-09-13 - 13:51:00

Its about time someone steps up to bring purity and family atmosphere back to sports. Somewhere along the way when fighting and chanting obsenities became a namesake at sports ruined the atmosphere. Legally or not, in a private place such as a pricate stadium, they should be able to deicde what is obscene and what is profanity. They have the power here, let's hope they use it correctly.
Posted By : Anonymous

The University of Michigan's men's hockey team is ...

Message posted on : 2006-09-13 - 13:52:00

The University of Michigan's men's hockey team is a top tier college program. The team also enjoys a great home rink advantage at Yost Arena. Part of the advantage is the rabid chanting of students. In particular, there's one chant that's caused a huge uproar, resulting in the Administration removing and banning students from the arena. It's the so-called C-Ya chant. The students, in stunning uninson, scream this after an opposing player gets sent to the penalty box, "Chump, dick, wuss, douche bag, asshole, prick, cheater, bitch, whore, slut, cocksucker.' Each year, the students add another epitaph to the list. It's caused a huge problem at the arena, as parents are uncomfortable bringing their kids to games.
Posted By : Anonymous

Michigan State's team is better. If you don't agre...

Message posted on : 2006-09-13 - 14:45:00

Michigan State's team is better. If you don't agree, you can kiss my AXX.
Posted By : Anonymous

Well, so they will suck for 15 years. Wang (the ow...

Message posted on : 2006-09-13 - 19:04:00

Well, so they will suck for 15 years. Wang (the owner) is wrong on this one (or has the inside scoop on how to get out of Steve Young's USFL contract or Magic Johnson's 25 year deal). Or, maybe they will file bankruptcy like the Pens and the contract will be discharged?
Posted By : Anonymous

Assuming some sort of standard increase in the amo...

Message posted on : 2006-09-13 - 19:32:00

Assuming some sort of standard increase in the amount of salaries, won't this guy be getting severely underpaid in six or seven years, by comparison to his peers?
Posted By : Collin

Also, slightly off topic, but what is the obligati...

Message posted on : 2006-09-13 - 19:34:00

Also, slightly off topic, but what is the obligation of an individual solvent team to a contracted player if the entire league goes under?
Posted By : Collin

Collin,

You raise a good point about incre...

Message posted on : 2006-09-13 - 19:57:00

Collin,

You raise a good point about increasing salaries. However, the median salary for the 2005-06 season is about the same as it was for the 2000-01 season. If I was running an NHL team, I guess the prospect of increasing salaries wouldn't sway me to enter long term contracts anyways. The last thing you want is to have a player on your team who thinks he's underpaid. And at that point, good luck trying to convince the player that he's benefitting because he has a long term contract.

I'm not sure what you mean by the league going under. Do you mean bankruptcy? In that case, the contract is between the player and the team, and if the team is solvent, maybe the team could discharge its obligations by arguing impossibility/frustration of purpose?

Posted By : Rick Karcher

Rick,

Isn't a comparison between 2005-6 an...

Message posted on : 2006-09-13 - 20:19:00

Rick,

Isn't a comparison between 2005-6 and 2000-1 a somewhat skewed comparison, considering what happened to the NHL in between those dates?

But let's take the issue out of the NHL, though, since there's so many variables. Lets consider baseball, and the glory that is Alex Rodriguez's contract. How many folks who are substantially worse than him will be earning more than him by the end of that contract? Or put that contract aside, since it's always used as a stalking horse. Look at Jeter's contract. Isn't he tied in for many more years? Won't there be a sizable number of folks worse than him who're earning more by that point? (Arguments that he's actually not any damn good outside of some good hitting this year aside)

I understand the point that the team wouldn't want to tie itself to a franchise player for that long. I just think that the long-term contract is equally bad from the star player's perspective. It is, however, excellent for the non-star whose buddy becomes a GM.

Posted By : Collin

The insurance on this deal--or lack of insurance--...

Message posted on : 2006-09-13 - 21:11:00

The insurance on this deal--or lack of insurance--only adds to the Islanders' risk. According to an article on TSN, "The Islanders only have insurance on the first six years of the deal. If DiPietro is healthy at the end of that six-year term, they can purchase another six years of insurance."

So what happens if DiPietro blows out a knee in year 4 of the deal, but instead of retiring, tries to recover and basically stays in constant rehab for the next 11 years? The Islanders would not have insurance on 9 of those 11 years, so they would be on the hook for $40.5 million. I know the NHL has a long-term injury exemption policy that would provide the Islanders with salary cap relief (the Boston Bruins recently used the long-term injury exemption on Alexei Zhamnov), but they would still have to pay DiPietro his $40.5 million. Yikes.

Posted By : Michael McCann

Steve Young's USFL deal was for 45 years, not that...

Message posted on : 2006-09-13 - 21:20:00

Steve Young's USFL deal was for 45 years, not that it mattered, the USFL folded in one year.
Posted By : Chris

Right after this was announced, I heard the rumor ...

Message posted on : 2006-09-13 - 21:21:00

Right after this was announced, I heard the rumor that the NHL was trying to find a way to void it, and that their lawyers were already working on it.

Which brings up the question - as ridiculous as the contract is, should the NHL do anything about it, or should they just let Wang toss his money away?

Posted By : Satchmo

Not for nothing, but this is one of the most ridic...

Message posted on : 2006-09-13 - 21:40:00

Not for nothing, but this is one of the most ridiculous contract announcements I've ever heard. Average contract increases over the life of the deal make absolutely no difference whatsoever. None. There is no doubt that this contract will hamstring the Islanders, it may not be in the next two or three seasons, but no player in the NHL not named Gretzky could possibly be worth a 15-year commitment, regardless of the money involved. Not to mention the fact that DiPietro could hardly be considered the best goalie in his division, (that would be Martin Brodeuer), let alone the league.

Absurd.

Posted By : John J Perricone

Thank you all for these excellent comments.

Message posted on : 2006-09-13 - 22:13:00

Thank you all for these excellent comments.

I want to highlight Chad's and Sports Curmudgeon's important contextual points above. And with their comments in mind, there seem to be two interrelated questions: 1) Who should define what is and is not an obscenity and what is and is not offensive?; and 2) What standards should be employed when doing so? There's no question that while some words are clearly swears, others are on the borderline. Will Boston University make a list of "bad words" and what methodology will they use in doing so?

I also agree with PK that a family-friendly section may be the best solution, although if there is an obscenity-laced chant going through the arena/facility, the family-friendly section or really any section may not be immune from it (such as in Fenway Park with the popular chant "Yankees suck"--everyone in the Park can hear it).

Posted By : Michael McCann

BU can do what it wants as a private university no...

Message posted on : 2006-09-13 - 22:28:00

BU can do what it wants as a private university not bound by the First Amendment. But if Ohio State, the University of Wisconsin, or any other public university attemped to enforce such a policy, any fans punished would have pretty strong First Amendment claims.

The University of Maryland tried all this a couple of years ago, after the infamous "Fuck Duke"/"Reddick is a fag" game in 2004. The school backed down because administrators knew they were treading on dangerous First Amendment territory.

As several commentators have pointed out, the inherent subjectivity of what is or is not offensive is a problem. Another problem is that, even if we agree that some speech is profane, sexist, or racist, most such expression is constitutionally protected.

A t-shirt reading "Fuck Duke" is protected as an emotional, passionate, emphatic way of expressing my dislike for that team. Similarly, a poster reading "Women Stink at Sports" is sexist. But one would be hard-pressed to suggest there is no right to say it (and recognizing that the sporting event is the best forum for saying it).

Posted By : Howard Wasserman

Michael, Satchmo, John,

I think the moral o...

Message posted on : 2006-09-13 - 22:48:00

Michael, Satchmo, John,

I think the moral of the story is that an owner hiring a GM to negotiate multi-million dollar deals should probably first look for somebody with experience, as opposed to his backup goalie last year.

Posted By : Rick Karcher

I'm not sure it's a 15 year deal so much as a way ...

Message posted on : 2006-09-14 - 01:02:00

I'm not sure it's a 15 year deal so much as a way of circumventing the salary cap by essentially deferring a good chunk of the contract to a time when it will take up less of the salary cap. As I understand it, the contract does not have escalators, and the team guarantees it unless DiPietro chooses to retire. It's for a little over $4 million a year - which is about two-thirds of what an elite goalie makes right now, with prices escalating again. If they think he's their goalie for the next 8 years and will be significantly above average for that time the deal makes sense for the Islanders. The question is, does this sort of quasi-deferred payment violate the spirit (or even the letter) of a hard salary cap? If it's allowed to stand, will it encourage teams to get into a mess of deferred contracts that will drive down their ability to sign players to new contracts?
Posted By : Swordsmith

This is why hockey is what it is. This is why hock...

Message posted on : 2006-09-14 - 09:38:00

This is why hockey is what it is. This is why hockey had a whole season cancelled. People who run hockey and the teams are not doing a good job.
Posted By : tommie

Swordsmith,

He gets exactly 4.5M per year, ...

Message posted on : 2006-09-14 - 10:02:00

Swordsmith,

He gets exactly 4.5M per year, which pays him a little more than 2/3 of what the "elite" goalies make -- and my guess is that he's not considered as one of the elite. 4.5 is definitely a better than avg. salary for a goalie, put it that way. Regarding the cap, there is a deferral mechanism with respect to salary applied to the cap in the event of a buyout -- but if it comes to that, then the Islanders obviously made a bad deal. And as far as the possibility of a rising market of escalating salaries in the future that, in theory, puts the team at an advantage, I understand what you're saying if we were talking about mortgages or stocks. The problem is that you're dealing with emotions and relationships here. How often do we see players complain that they are tied to a contract in which they are undervalued? Lots -- and when that happens, the player demands a renegotiation, trade, etc. and the team usually does something because it doesn't want an unhappy player. But on the flip-side, when players are clearly overpaid under long term contracts due to injuries, decline in performance, etc., the team gets stuck with the bill.

Posted By : Rick Karcher

Rick -

I agree that it's a stupid deal, an...

Message posted on : 2006-09-14 - 11:39:00

Rick -

I agree that it's a stupid deal, and if DiPietro does turn into an elite goalie he'll insist on renegotiating; I'm just saying there was a rationale for it beyond the many media "why do they think he can play for 15 years?" comments. As a salary deferral scheme I think it's falwed and likely to blow up in their faces (which is nothing new for an Islanders contract) but it's flawed in a more creative way than has been the Islanders norm.

Posted By : Swordsmith

Yeah, it's a leap to say that the Pats were ...

Message posted on : 2006-09-14 - 13:52:00

Yeah, it's a leap to say that the Pats were negotiating in bad faith, but it's a leap I'm willing to make because I think that its the reasonable conclusion to draw from their actions. First, they tell Branch he ain't worth squat.

They offered him a $31 million deal with $11 million in bonus money. If the difference between that and what he signed for indicates that the Patriots offer is "squat" then I suppose you have a point.

Then, they tell him that if he thinks he's worth more than squat, go out and find a better deal and they'll make a trade.

They made no guarantees that he'd be traded. If the only trade offer they received for him was a 7th round pick in the 2012 draft, should they be forced to do that?

Then, when he finds a better deal, they suddenly decide he's worth more than any other receiver in any trade, ever, and refuse to trade him.

At least 2 receivers (Galloway and Keyshawn Johnson) have been traded for 2 first round picks. Your statement is patently false.

They let him twist in the wind and file his grievances, and finally let him go. And then, after the deal is made and everyone is out of everyone's hair, they come back for another bite of the apple and tell him they're not through with him, that he's gotta pay more than half a million dollars in fines.

He's not twisting in the wind because of their permission. They were powerless not to "let" him twist in the wind.

Why should they forfeit the right to collect fines that is bargained for in the CBA? Image?

And what's more, after they denied they made this oral deal with him, they then admit that they had the deal because they claim that the limits of that deal prevented the Jets from telling him what they offered for him. Yeah, I'm making a leap to claim bad faith. I'd be a fool not to.

Again, this is a fundamental misunderstanding of their oral agreement. They didn't promise to trade him at all costs. And they didn't give him permission to negotiate their compensation, only his.

Posted By : Anonymous

Sports Law Blog,

Want to draw a lot of atte...

Message posted on : 2006-09-14 - 14:24:00

Sports Law Blog,

Want to draw a lot of attention to your jounarlism and to your blog? Want to do something great for athletics, education, the State of Mississippi and our society in general?

Here's a suggestion:

Travel to Wayne County, take a picture of every teacher that "taught" Mr. Powe grades 1 - 12. Beside the teacher's pictures, type their names, the subjects they taught, and the grades that Mr. Powe received from them. Then publish this on your blog.

Mr. Powe's so-called teachers deserve some credit for their work.

To the extent that Mr. Powe will not reach his full potential and will not become as effective as a citizen of our State that he could have become, Mr. Powe's teachers should be ashamed of themselves.

The presence of a learning disability does not mean an absence of intelligence. With proper diagnosis and proper instruction a student with a LD can still have academic success.

With timely diagnosis and instruction, Mr. Powe may well have been able to enter college and be eligible for football without all of this controversy. Who knows, with the platform of college football to showcase his apparent talent, Mr. Powe may well have obtained gainful employment (in the NFL), earned wages, paid taxes, and all those other things that effective citizens do.

If Mr. Powe does not get these opportunites who does he have to thank? Let's start with his father (apparently absent), his mother (apparently too busy), and his so-called teachers (what's their excuse? apathy?)

These pitiful circumstances cause me to be embarresed for our State, our educational system, and our society. Most of all I am very sad for Mr. Powe. I hope he does eventually reach his full potential, whether that potential is in sports or some other more worthy endeavor.

Perhaps Mr. Powe's most important contribution will be that his circumstances inspire us to start the long process of correcting the problems with sports and education in Mississippi.

Posted By : David

I know you guys are attorneys, but let me give you...

Message posted on : 2006-09-14 - 15:13:00

I know you guys are attorneys, but let me give you a little Finance 101 lesson:

The longer you spread out expenditures the better. It makes all the sense in the world to just stretch this out as long as possible. Also, over 15 years, inflation (or a discount rate) will take effect and in today's dollars this will look like a steal.

However, as with the USFL, can we be sure that the NHL will last 15 years?

Posted By : Bill

or MIAMI OF OHIO

Message posted on : 2006-09-14 - 17:50:00

or MIAMI OF OHIO
Posted By : SDRedhawk

Bill,

This isn't an issue of whether the te...

Message posted on : 2006-09-14 - 20:39:00

Bill,

This isn't an issue of whether the team should pay the player now or defer it. So it's not about how long the team can spread out payment of the $67.5. Maybe you could explain yourself better? -- that's just something us attorneys like to do :)

Posted By : Rick Karcher

I just want DiPietro to win some games for USA Hoc...

Message posted on : 2006-09-14 - 21:19:00

I just want DiPietro to win some games for USA Hockey. He's pretty much the only hope for USA goaltending.

As for legal matters, I agree that this contract is way too risky for the Islanders. Does anyone know if the language in the contract includes anything involving trades? This would obviously be an issue if he did not turn out to be the franchise player Garth expects him to be.

Also, do they really expect Dipietro to be the next Hasek and play until he is 40 years old? I would not count on it.

Posted By : Anonymous

I love the new Nike contact lenses. They are prett...

Message posted on : 2006-09-14 - 22:56:00

I love the new Nike contact lenses. They are pretty cool, made especially for sports. I've played better on my football team since using them too.

http://varsitylens.com/products/nikemaxsight/

Posted By : Anonymous

Have these activities become too intense and compe...

Message posted on : 2006-09-14 - 23:42:00

Have these activities become too intense and competitive? Sadly, yes they have.

The good news is that this kind of "adult behavior" is way out on the fringe of the bell curve. There aren't thousands of parents/coaches out there plotting how to injure kids on their team in order to win games. Hopefully the publicity and the punishment here will have some deterrent effect?

However, the tactic of "losing" a less than talented player is not a new phenomenon. I officiated basketball for 37 years and did a lot of time in youth recreation leagues. There was a coach in one of the leagues who - when his team had to play one of the "good teams" in the league - would call his two worst players and tell them that the site of the game had been changed to a gym in another part of the town. The kids would go to "the other gym" and miss the game. So, he would not have to play them. When the league director caught on, he "fired" the coach and got someone else to do the job.

The major problem with youth sports is the adults who are involved - - not the kids.

Posted By : The Sports Curmudgeon

One thing I have learned from the USA Hockey Coach...

Message posted on : 2006-09-15 - 17:59:00

One thing I have learned from the USA Hockey Coaching Education Program that is in direct correlation with your post is that 70% of youths drop out of their organized sport by the time they are teenagers.

There are many factors as to why this is, but one of the main ones is because of parents. Unfortunately, more than half of my seven hour class had to deal with "parental control" because the sport of hockey is losing so many participants due to the conduct of parents.

During the class, we viewed a PowerPoint presentation that showed an annoying amount of headlines, from various sports, which dealt with parental violence in sports.

I hope and assume that other sports are doing as much as USA Hockey is doing to derail this problem, especially after last week's incident in a youth football game.

Posted By : Anonymous

As far as I can remember, seeing as how I attended...

Message posted on : 2006-09-17 - 22:08:00

As far as I can remember, seeing as how I attended U of Maryland, during the crackdown, They would vacate anyone with the Fuck Duke shrits from the arena. The real reason was not becasue it offended the family atmosphere, which I am sure it did, but because the TV could not show the fan section without bluring out Tshirts. This has everything to do with TV money and little to do with trouncing on your fun at a Basketball game.
Posted By : Seth

Philadelphia coach Ken Hitchcock signed a new thre...

Message posted on : 2006-09-18 - 16:29:00

Philadelphia coach Ken Hitchcock signed a new three-year contract with the Flyers through 2008-09.
Posted By : Drug rehabilitation

I'd guess it depends on whose eligibility standard...

Message posted on : 2006-09-18 - 17:34:00

I'd guess it depends on whose eligibility standards and what aid we're talking about. I haven't researched this, but my guess is that a lot of the federal aid (pell grants, stafford loans, federal PLUS loans) involves eligibility standards set by the federal government in the form of Dept. of Education regulations. I can't imagine that an institution could declare someone ineligible if the federal regs consider that student eligible without getting in trouble with the feds and, perhaps, losing some federal aid support.

If we're talking about private aid (grants and loans that come from the college funds and not in any way from the feds), then my guess would be that schools could declare athletes inelible.

But why a school would want to do that. Aren't DII shoools still competing with one another for athletes, even if they may not be competing for superstars? I can't imagine an athlete would accept a scholarship offer if that meant their total aid package would be lower than they would get as a walk-on student. (Even if there is some cache to being a "scholarship athlete").

Posted By : Geoffrey Rapp

I'm a little confused by the question...

As...

Message posted on : 2006-09-18 - 18:37:00

I'm a little confused by the question...

As a former scholarshiped athelete I was capped at receiving the amount of one scholarship. I qualified for academic aid but could not receive it because it would have put me over the limit.

I assume that the NCAA is worried about schools being able to provide "extra" benefits by giving an athletic scholarship and then adding on "academic" scholarships on top of that. Would seem to be an easy way around "extra benefit" rules in place?

Posted By : Anonymous

The whole method of calculation used by NCAA needs...

Message posted on : 2006-09-18 - 18:47:00

The whole method of calculation used by NCAA needs some work. I came into school as a walk on. I later earned an athletic scholarship. This past year I also earned an academic scholarship and need-based grants. Rather than getting more money overall, I get the same amount.

Let me explain: an athlete's total scholarship is set at the amount of the athletic scholarship. For instance, if I was awarded $10k athletic scholarship and $3k academic scholarship, I would only receive $10k. Of that money, $7k would come from the athletic department and $3k would come from the school/federal scholarship. I understand the basic reasoning behind this (they don't want schools to slip athletes money through fake academic scholarships), but is also hurts athletes who perform well academically. They do not have as many incentives to perfrom well academically. There has to be a better way to run this system.

Posted By : Martin

Why do you people care if other people are doing t...

Message posted on : 2006-09-18 - 19:50:00

Why do you people care if other people are doing this to themselves? Its not your mouth, it shouldn't be your business. Chewing tobacco is American as the game itself and if we want to keep it 'America's pasttime', then we should let the game be, and focus on those who use steroids. I have chewed since I was twelve and it had nothing to do with baseball, i'm a farmer.
Posted By : RebelPride

Ovechkin plays for the Washington Capitals, not th...

Message posted on : 2006-09-18 - 20:59:00

Ovechkin plays for the Washington Capitals, not the Washington Nationals
Posted By : Anonymous

I played baseball at a division II school. At my s...

Message posted on : 2006-09-18 - 22:05:00

I played baseball at a division II school. At my school your athletic scholarship was a percentage. If tuition was raised you would not loose money you would get your percentage based on the increase. I also was elligible for academic scholarship, this was a set dollar amount. Also, there were fellow teammates who were receiving federal grants along with their athletic scholarship money. I thought Their need was based on the support they would be getting from their parents.
Posted By : Justin

Daria,

I'm not an international law expert,...

Message posted on : 2006-09-19 - 12:02:00

Daria,

I'm not an international law expert, but the federal district court in the Dynamo case I mentioned in the post applied the Convention I mentioned in assessing the case, which involved the same arbitration committee.

But regardless, none of that has any bearing on the Russian team's claim against the Penguins for tortious interference (it only goes to the Russian team's ability to get an injunction against Malkin for breach of contract to prevent him from playing for any other team).

Posted By : Rick Karcher

Anonymous,

Thanks for catching that. I'm a...

Message posted on : 2006-09-19 - 12:19:00

Anonymous,

Thanks for catching that. I'm a baseball guy, what do you expect?

Posted By : Rick Karcher

We have to be careful because every stadium is a p...

Message posted on : 2006-09-19 - 14:31:00

We have to be careful because every stadium is a possible target for terrorists and that is why we must improve the security stadiums. Although sport is one of the most popular ambassadors from the world and theoretically, we do not have to worry about our safety, we must be able to prevent and stop the possible terrorist attack even before they start.
Posted By : baby

An agreement would be nice, but I do not see it be...

Message posted on : 2006-09-19 - 16:06:00

An agreement would be nice, but I do not see it beeing a friendly meeting of terms. From the comments coming from Russian officials, coaches, and management, they don't seem to like the fact that their players are coming to "democratic America" to play hockey.

I just don't see them aligning with the IIHF's $200,000 agreement. I think they will want more money, and more regulation (whatever that entails).

Posted By : Anonymous

The fact that he is a foriegn player, from Latin A...

Message posted on : 2006-09-19 - 16:20:00

The fact that he is a foriegn player, from Latin America, is significant. It's no secret that after 9-11, MLB teams had to do some work to provide correct information to the government. This may just be a case which was never followed through on because he went back to Nicaragua and was not considired to be a valuable asset.

On the other hand, it may be that his real age is unknown (a circumstance that is not uncommon in many modernizing nations), which would be extremely convenient for Hansack.

Posted By : Anonymous

This was actually a big problem when the Atlanta B...

Message posted on : 2006-09-19 - 17:34:00

This was actually a big problem when the Atlanta Braves traded Wilson Betemit this year for Willy Aybar.

All the news outlets were reporting that Aybar was three years younger, and could in fact develop to be more valuable than Betemit.

But what the Braves organization may heve not accounted for (somehow) is the fact that Betemit is not in fact 3 years old than Aybar.

Willy Aybar was born on 3/9/83, making him 23. Wilson Betemit's birthday in a lot of places is 7/28/80, which would make him 26 (for example, ESPN.com and MLB.com).

But Betemit's real birthday (which is on thebaseballcube.com and baseballreference.com) is really 11/2/81, which makes him only 16 months older than Aybar and not 32.

The reason for this was that Betemit was not really 16 when he signed with the Braves, but 14.

This makes the trade a lot worse for the Braves, since Betemit is basically playing above average full-season ball at 24, and is significantly further along the prospect developmental ladder than Aybar.

The Braves will be lucky if Aybar can turn into Betemit, and even then, they'll have lost player development time in the trade (not to mention the fact that they would have gotten more for Betemit than Aybar and Baez).

Posted By : Satchmo

Imagine if difficulties with age verification had ...

Message posted on : 2006-09-19 - 17:36:00

Imagine if difficulties with age verification had repercussions in player eligibility, regarding the restriction on young kids going directly to the professional leagues. Far fetched Michael?
Posted By : Luis Cassiano Neves

Sorry about the grammatical errors in the previous...

Message posted on : 2006-09-19 - 17:46:00

Sorry about the grammatical errors in the previous post.

The Braves were actually barred from scouting in the Dominican Republic for 6 months when Major League Baseball found out about Betemit's age.

Also, Betemit sued in 2000 in Florida to get out of his contract with the Braves and become a free agent, since he had signed it when he was 14 and a 1/2. I guess he didn't win though? Can someone provide more details on that?

Posted By : Satchmo

This guy looks really really familiar ... wait a s...

Message posted on : 2006-09-20 - 07:15:00

This guy looks really really familiar ... wait a second, wasn't he a starter for the 2002 Little League World Series team from the Dominican?
Posted By : Bill

Why is this "obviously tortious"? The statements ...

Message posted on : 2006-09-20 - 12:44:00

Why is this "obviously tortious"? The statements of Woods and Dubliner are not mutually exclusive. A porn site could could have non-pornographic material, such as bikini photos. If Dubliner is referring to a site like this, how is it "obviously tortious" to point out something already in the public domain?
Posted By : Anonymous

I wonder if this is the example to use in order to...

Message posted on : 2006-09-20 - 13:28:00

I wonder if this is the example to use in order to pose the question you do. While she is indeed Tiger's wife, the photos in question -- and where they are posted -- are either tortious or not based on facts entirely separate from her status as his wife. Of course, "Look at Tiger Wood's Hot Wife" is a selling point, but the photos are or are not of her and a case would be decided on those grounds.

Of course, I can't really come up with a hypothetical situation now to illustrate the difference, but I imagine there is one, where a person's "public figure" status is based entirely on who they're married to (or who they are related to by blood, since you can't actually choose that part).

Posted By : Collin

Some of the Negro League players had the same issu...

Message posted on : 2006-09-20 - 13:57:00

Some of the Negro League players had the same issues in the late 40s and 50s.

It is interesting that Bill James is employed by the Red Sox and this pitcher is in the organization. James was one of the first to statistically analyze at what ages players peak. Since he is advising the Red Sox on salary issues, relative to future predictions of performance, his proposed compensation figures would be much lower for a 28 year old pitcher (exiting his peak) than a 24 year old pitcher entering the sweet spot of his career.

Posted By : ChapelHeel

Perhaps the closest analogy for this situation is ...

Message posted on : 2006-09-20 - 14:00:00

Perhaps the closest analogy for this situation is defamation law where the question arises over who is a "public figure."
Posted By : Anonymous

I wish I were a professional golfer. :)

Message posted on : 2006-09-20 - 14:00:00

I wish I were a professional golfer. :)
Posted By : ChapelHeel

Athlete's spouses (or partners) should implicitly ...

Message posted on : 2006-09-20 - 17:22:00

Athlete's spouses (or partners) should implicitly waive their privacy rights--kind of like "coming to the nuisance."
Posted By : Anonymous

Uh, yeah, and should a limo be provided as well as...

Message posted on : 2006-09-20 - 17:25:00

Uh, yeah, and should a limo be provided as well as free drinks, individual seats, and someone to hold the umbrella when it rains?
Posted By : Anonymous

How about buying a game program? Or, better yet, h...

Message posted on : 2006-09-20 - 17:51:00

How about buying a game program? Or, better yet, how about watching the big screen for the replay? There has got to be some sort of personal responsibility here--this is clearly an attempt to extort money from the team.
Posted By : Anonymous

Thanks for these comments. WMUpsci Stude...

Message posted on : 2006-09-20 - 18:56:00

Thanks for these comments.

WMUpsci Student: That's an interesting take on what might have happened with Hansack. And you're right: the more ambiguity with his age, the more he may be able to take advantage of the uncertainty.

Satchmo: Great points about the Wilson Betemit-Willy Aybar trade. It just goes to show how while age matters a great deal, teams worth hundreds of millions of dollars can still make mistakes (and perhaps through no fault of their own).

Luis: Great point. Ambiguity over players' age can also affect eligibility issues, and in that instance, a player would likely have an incentive to claim to be older than he is.

Bill: I believe you are mistaken!

Chapelheel: Really interesting points. I didn't know this was also an issue for Negro League players, and Bill James' employment with the Sox is a neat connection to Hansack's situation.

Posted By : Michael McCann

I can only remember one torts case that dealt with...

Message posted on : 2006-09-20 - 23:22:00

I can only remember one torts case that dealt with this, and someone with a little more knowledge and free time on their hands might be able to find additional (and more recent) cases.

Anyway, this was addressed by Johnny Carson's wife in Carson v. Allied News Co., 529 F.2d 206 (7th Cir. 1976) held that "one can assume that the wife of a public figure such as Carson more or less automatically becomes at least a part-time public figure herself." So, at least one court out there has ruled on this issue.

Just my 2 cents.

Posted By : Tammy Thomas

Despite his inherent ability to play football at a...

Message posted on : 2006-09-21 - 00:43:00

Despite his inherent ability to play football at a high level against high school athletes in a relatively productive state football association, it seems utterly amusing to believe that Powe would think about possible entering the NFL Draft based on his size and experience thus far.

As to the comment of testing the waters with a rival school such as Alabama or Auburn, I don't think it would be in the best interest for these teams to push their luck in trying to admit Powe.

What these athletes don't realize is that school actually matters and until they (as well as the faculty of the high schools they attend) realize that their livelihood may depend on something other than football, they will realize that there is a reason everyone is not a professional athlete.

Everyone growing up around athletics as a child once has dreamed of achieving such a status as a professional something or other and these kids should realize that the Lord has blessed them with something that you or I may not have and that they don't need to waste it on a measly Algebra I class or a remedial course.

What I am trying to get at is that parents, as well as kids, need to realize that schooling develops you in ways that athletics never will.

Posted By : bhbarron1

Message posted on : 2006-09-21 - 06:48:00

This comment has been removed by a blog administrator.
Posted By : Rick Karcher

There's more to this. The publication included a n...

Message posted on : 2006-09-21 - 06:50:00

There's more to this. The publication included a nude photograph of another woman who resembled Tiger's wife, with a statement indicating that it was in fact his wife.

But the public figure/waiving rights issue has always intrigued me. Why does a professional athlete, simply by being exceptional in his field, under the law assume the risk that somebody may publish nude photographs of a woman resembling his wife and then actually lie that it is his wife? That makes zero sense to me.

What's even more ludicrous is that a person who marries a professional athlete assumes that risk as well.

Posted By : Rick Karcher

It makes no sense to me, either, why the legislatu...

Message posted on : 2006-09-21 - 11:24:00

It makes no sense to me, either, why the legislature seems to encourage freedom of the press in this manner. And then to take it even one step further by allowing Internet services immunity from liability for publishing defamatory material as long as the info was given by another party, makes even less sense. But that's a topic for another day.

It seems to me that a line has to be drawn somewhere and that most people in the general public would agree that any publication of a nude photo that was not of the person it was claimed to be would have crossed that line. This seems to be a complete reckless disregard for truth if there ever was one.

Posted By : Tammy Thomas

First of all, if this gentleman does not have to l...

Message posted on : 2006-09-21 - 16:19:00

First of all, if this gentleman does not have to listen to the nonsense being blared at the crowd over the PA sytstem in FedEx Field, he is very fortunate indeed. But I don't think the ADA takes that kind of good fortune into consideration; he probably has a good case.

Remember when the golf people tried to claim that the rules of golf superceded the ADA in the Casey Martin suit? Remember how that turned out?

Posted By : The Sports Curmudgeon

At least in the 5th Circuit, equal access does not...

Message posted on : 2006-09-21 - 18:20:00

At least in the 5th Circuit, equal access does not mean equal enjoyment.

A pretty good article on whether movie theater operators are obligated to provide deaf people the technology required in order to show closed or open captioned movies as a form of access under Title III of the ADA:

23 J. Marshall J. Computer & Info. L. 159 (2004)

Posted By : Anonymous

Thanks. Good post. Journalists are not heroes, nor...

Message posted on : 2006-09-22 - 11:27:00

Thanks. Good post. Journalists are not heroes, nor are they above the law, nor is this the same era as "All the President's Men." When ordered by a court, a jounralist must comply or face the consequences. If one disagrees, the lawyers can appeal and debate. Talk of creating a federal media shield law has ensued. Maybe it will succeed, maybe it will fail. However, outright refusal to comply makes one, indeed, a bonafide criminal. ON THE OTHER HAND, I feel their pain and they certainly added value to American society in their expose about what really goes on in pro sports and the BALCO case. Ironic that a California judge's decision appears so conservative. At that same time, one simply looks at his or her calendar and counts down the days until the 9th Circuit will overturn the trial court's decision to jail the authors for non-compliance with an order and the authors enhance their profile and sell their story to Hollywood.
Posted By : Anonymous

Great post. I like how you bring out both sides o...

Message posted on : 2006-09-22 - 11:38:00

Great post. I like how you bring out both sides of this issue in a very understandable way, and after reading your post, both sides actually make a lot of sense. This is a tough call.
Posted By : Steven P.

I'm just not sure that the same policy implication...

Message posted on : 2006-09-22 - 12:12:00

I'm just not sure that the same policy implications abound with respect to providing a shield law for this story as opposed to the instances where reporting involved national corruption implications. The underlying principles are the same but to argue that this story equates to those more serious instances where reporters uncovered and published on matters of great governemental importance is probably not legitimate.
Posted By : Anonymous

Amen to the FIRST part of the FIRST comment.

Message posted on : 2006-09-22 - 14:51:00

Amen to the FIRST part of the FIRST comment.
Posted By : Anonymous

With the caveat that I don't know anything about t...

Message posted on : 2006-09-22 - 15:07:00

With the caveat that I don't know anything about the history of the Illinois civil rights statute or Illinois courts' interpretations of it, the concurring opinion seems clearly correct. Mere offense at the dress, comment, or symbolism of a public official should not considered "discrimination" as that term is generally used. In essence, this claim would be similar to a claim that a state's incorporation of the Confederate flag into their state flag violated Equal Protection. Whatever the merits of the claim as a matter of policy, general anti-discrimination statutes simply don't cover state action like this.
Posted By : PK

Oh, don't worry. The Chief is going down hard, kin...

Message posted on : 2006-09-22 - 15:32:00

Oh, don't worry. The Chief is going down hard, kind of like their football team. However, this suit was simply to continue to put immeasurable pressure on the University.
Posted By : Anonymous

I think nascar is a sport and Im totaly a big fan!...

Message posted on : 2006-09-23 - 14:14:00

I think nascar is a sport and Im totaly a big fan!

Much Love


Kristina

Posted By : Kristina

Someone has a chip on his shoulder. What about an...

Message posted on : 2006-09-25 - 08:08:00

Someone has a chip on his shoulder. What about an NFL game, seen live, needs captioning?

Penalties? No, that's what the refs signals are for. I've known the refs signals since I was about 5 years old.

Replays? There's no play-by-play in the stadium anyway.

Scores? Duh.

I'm not unsympathetic to the disabled -- but don't the accommodations have to be "reasonable"? What is the plaintiff's real motive here?
Is it to make an example of a high profile organization?

Surely the National Association of the Deaf has better things to do than worry about hearing-impaired spectators at an event that is almost entirely visual.

Now if they are complaining that hearing-impaired people won't know the PA announcer just yelled "There's a bomb. Please move safely to the exits" then I can understand.

Posted By : ChapelHeel

Although sports corruption is actually less...

Message posted on : 2006-09-25 - 08:14:00

Although sports corruption is actually less important than Watergate, Iran/Contra, etc., Congress thinks drugs in sports are important enough to hold hearings.

No comment on whether sports corruption is or isn't as important as Monica Lewinsky.

Personally I hope the journalists stick to their guns. However, compelling them to reveal the grand jury leak isn't about protecting Barry Bonds' rights, in my view. It is about protecting the integrity of the grand jury process. If the journalists are protected in this case, will it encourage grand jury leaks?

Posted By : ChapelHeel

Good post.

Message posted on : 2006-09-25 - 08:15:00

Good post.
Posted By : ChapelHeel

There's a secondary benefit to curbing crowd noise...

Message posted on : 2006-09-25 - 08:17:00

There's a secondary benefit to curbing crowd noise: the NFL won't have to figure out how to close-caption crowd noise to satisfy the National Association of the Deaf.
Posted By : ChapelHeel

So were ALL the NBA players tested before the WC b...

Message posted on : 2006-09-25 - 10:10:00

So were ALL the NBA players tested before the WC by WADA?
Posted By : Anonymous

Good point! ("hearing impaired").

Message posted on : 2006-09-25 - 10:50:00

Good point! ("hearing impaired").
Posted By : Anonymous

Real simple: follow judge's order or go to jail. Y...

Message posted on : 2006-09-25 - 10:57:00

Real simple: follow judge's order or go to jail. You don't follow order, you go to jail. If you want to say that journalists should have the same privileges as lawyer-client or priest-penitent, etc., that is fine. Say it in jail or change the law.
Posted By : Anonymous

ChapelHeel pretty much summed it up well. The real...

Message posted on : 2006-09-25 - 11:28:00

ChapelHeel pretty much summed it up well. The real motive is money for the plaintiffs and the attorneys. It's not to change anything for real. Don't kid yourself. Personally, I think the deaf should have mandatory NFL referee penalty signal training as a prerequisite to attend.
Posted By : Anonymous

Come on now. The guy didn't read the contract bef...

Message posted on : 2006-09-25 - 14:05:00

Come on now. The guy didn't read the contract before advising his client to sign it. That's about as clear a case of negligance as there is. The fact that they were in different cities is a red herring. Have the Redskins fax or email the document. It's not that hard.

It's the NFLPA's job to make sure registered agents have at least a minimum competency. That's what they are doing here.

(And I seem to remember that Poston didn't realize that the bonus language wasn't included in the contract until many months later. That's inexcusable.)

Posted By : john

Here's what I do not understand in this whole Post...

Message posted on : 2006-09-25 - 17:09:00

Here's what I do not understand in this whole Poston/Arrington/Redskins/NFLPA matter:

The only party who was injured in all of this was LaVar Arrington; he didn't get the $6.5M bonus he thought he was supposed to get. And he got crosswise with the Redskins and eventually had to "buy his way out" of town.

Nevertheless, the "only injured party" here does not feel very injured; in fact, he wants to support Carl Poston in the actions pending against Poston.

So, if the "only injured party" isn't claiming that Poston injured him, why is the NFLPA doing what it's doing?

Posted By : The Sports Curmudgeon

Actually, it's not true that Arrington was the onl...

Message posted on : 2006-09-25 - 17:41:00

Actually, it's not true that Arrington was the only injured party. Each contract sets a precedent for every other deal negotiated thereafter. So, the fact that Arrington's deal was $6.5M light because Poston didn't bother to check the agreement, hurt every other player in the league, particularly every other linebacker.

Also, these players often have close relationships with their agent. The fact that a player doesn't want to pursue his agent in a case like this, should be binding on the union. They have a larger constituency to protect.

Posted By : john

Rick, I think the reason the NFLPA is after Poston...

Message posted on : 2006-09-25 - 20:12:00

Rick, I think the reason the NFLPA is after Poston is now most likely because Poston filed the lawsuit in Federal Court.

This is a complicated matter, but I'm guessing if Poston had went along and agreed for the case to be heard by an arbitrator as the NFLPA agent regulations stipulate,the union wouldn't be so ticked off now, what with Arrington continuing to be so supportive of Poston.

What happened to Poston could so easily happen to any agent, particularly if it's true the Redskins lied. An agent should be able to trust representatives of a team and what they are "verbally" communicating.

If indeed the Redskins lied, they are far more to blame in this whole incident than Poston is. That said, Poston should have read the contract. I am not a Poston supporter generally, but let's be fair to the agents.

Posted By : Dave Burkey

This is pretty ridiculous. Even the restriction o...

Message posted on : 2006-09-25 - 20:46:00

This is pretty ridiculous. Even the restriction on "stadium-led chants" is pretty brutal. Will this be the end of the decibel meter graphic on stadium big screens?
Posted By : Anonymous

It's obvious after reading the ESPN article from J...

Message posted on : 2006-09-25 - 21:07:00

It's obvious after reading the ESPN article from July regarding the NFLPA's decision to suspend Poston for 2 years, that I was correct in that union Pres. Gene Upshaw was highly "ticked off" that Poston decided to take the union to court over the arbitration matter.

However, who can blame Poston for doing so as the recommendation for his 2 year suspension had come as early as this past March from the association's disciplinary committee.

It's highly likely they would have ended up suspending him anyway, though now we'll never know for sure.

Posted By : Dave Burkey

John, I disagree that this is about ensurin...

Message posted on : 2006-09-25 - 22:21:00

John,

I disagree that this is about ensuring a minimum competency level. Carl Poston has signed players to some of the richest NFL contracts ever -- and that's obviously a good thing for the constituency. Also, it's not "6.5 light" as you suggest because the settlement Arrington reached with the Redskins included a new contract. But in any event, I completely disagree that this is affecting the contracts of other linebackers any one bit. And you talk about the larger constituency the union needs to protect, how about protecting their constituency from the millions of dollars lost by players as a result of fraudulent and negligent investments made by investment advisors certified by the union?

Dave,

The Disciplinary Committee initially suspended him for 2 years. Poston has the right to appeal the decision to an arbitrator, which he did right away, but it appears as though he views the appeal as a waste of time because the arbitrator is not truly neutral, especially since it's just a factual issue involved here. Maybe he believes that he has a better chance in court right now without having had an arbitrator rule against him on the matter. He wouldn't be able to get any court to overturn an adverse ruling by an arbitrator, and so he'd be stuck with it.

But I'm sure it's not just the lawsuit that has Upshaw "ticked off" as you suggest. You could probably throw in the fact that Poston sued the union in 2002 and, according to Poston's attorney as quoted in the article, the fact that he has gone to Congress.

Posted By : Rick Karcher

Rick --

The union's right to regulate inves...

Message posted on : 2006-09-26 - 15:01:00

Rick --

The union's right to regulate investment advisors is tenuous at best. That is not at all analgous to a player contract advisor who DIDN'T READ THE CONTRACT HE ADVISED HIS CLIENT TO SIGN. If that doesn't call into question an agent's competence, I don't know what would.

And as for player contracts affecting the market, it's hard to believe you are serious. Do you really believe that agents and GMs don't frame their negotiations based on other contracts that are out there? That's exactly why the union has an interest in pursuing cases like this even if the player doesn't want to pursue it.

Posted By : john

btw, the Kellen Winslow contract is another incide...

Message posted on : 2006-09-26 - 15:02:00

btw, the Kellen Winslow contract is another incident that calls into question Poston's competence. It wouldn't surprise me if that also played a factor.
Posted By : john

Rick, You are grossly misunderstanding the ...

Message posted on : 2006-09-26 - 15:50:00

Rick-

You are grossly misunderstanding the Union's role in this whole affair. The NFLPA's job is to protect its clients. Poston is a certified agent of the NFLPA. Just because Arrington is not upset has nothing to do with whether the NFLPA should discipline Poston in this matter.

Your analysis seems as though an outside arbitrator has stepped into a dispute between family members. Yes, acts within a family can be forgiven, but can't the NFLPA step in and look out for future Poston clients that may not have been a part of that family? That seems to be the purpose behind the suspension.

By certifying Carl Poston as an agent the NFLPA, in effect, places their stamp of approval on him as an agent. If they do nothing to punish him then the Reggie Bush's of the world will have no idea that Poston might not be quite as competent (put lightly) as other agents.

Let's not forget that regardless of Arrington's personal relationship with Poston, that this contract dispute is what began Arrington's alienation with the Redskins. The NFLPA not only has a right, but also a duty to take action against Poston. If they should, then while else should they even have a regulation process?

Posted By : Robert

Players moving to the front office poses no more o...

Message posted on : 2006-09-26 - 15:58:00

Players moving to the front office poses no more of a COI than when player-agents do it (see Jeff Moorad).
Posted By : Anonymous

How about Garth Snow from Back up to GM. Who gets ...

Message posted on : 2006-09-26 - 17:14:00

How about Garth Snow from Back up to GM. Who gets the next big contract? the Starting Goalie 15 years. little Sketchy. At the same time, this is why the sports industry is the way it is. It is a closeknit family where you help out your own kind.
Posted By : Anonymous

Interesting story about Brian Urlacher's custody b...

Message posted on : 2006-09-26 - 18:58:00

Interesting story about Brian Urlacher's custody battle.

http://sportsillustrated.cnn.com/2006/writers/lester_munson/09/26/urlacher/index.html

Posted By : Anonymous

First of all, to Robert-- It's clearly stated in N...

Message posted on : 2006-09-26 - 21:45:00

First of all, to Robert-- It's clearly stated in NFLPA agent regulations that certification in no way means they are giving any agent their "stamp of approval".

Secondly, to John --

The Winslow contract ?? I have read more than once that in his contract, it specifically prohibited "motorcycle riding". Come on, an agent can only do so much , he can't hold the hand of all his clients at the same time.

I'm a big Browns fan and Winslow has no one to blame but himself. I think at this point he might even admit that himself. Make the players be accountable !!

Posted By : Dave Burkey

I think you may be right that a player-turned-exec...

Message posted on : 2006-09-26 - 23:34:00

I think you may be right that a player-turned-exec might be more likely to reward friends and/or punish enemies, but . . . so what?
Posted By : Anonymous

The above comment should be given consideration in...

Message posted on : 2006-09-27 - 08:17:00

The above comment should be given consideration in the annual top ten sports law blog comments! Really, so what? Life isn't fair. If you want to avoid this situation, become an independent farmer.
Posted By : Anonymous

John and Robert, You both raise an excellent...

Message posted on : 2006-09-27 - 08:51:00

John and Robert,

You both raise an excellent question that goes directly to the heart of this dispute: How is an agent's competence measured? In theory, the answer is based upon what a reasonable agent would have done under similar facts and circumstances. The next question is, who is the proper party to answer that question? Typically in society, an impartial judge, jury or arbitrator decides that question based upon prior case precedent, and a review of all of the evidence (including documents, witnesses, etc.).

I did not state that Poston was not negligent -- in fact, I asked the question, "Is that negligent?" [I then raised a couple of questions that a jury would most likely consider at a trial.] It's not a legal question, it's a factual question that typically is determined by a jury. The NFLPA, and the both of you, have determined that Poston was negligent without having heard his case and all of the witnesses, etc. The agent regulations essentially permit the union to first make a unilateral determination about liability, and if the agent contests liability, an arbitrator chosen and paid for by the union makes the ultimate determination.

Now, whether good, bad, right or wrong, the union's disciplinary process does not work in a way that the rest of society resolves disputes. First, there is no case precedent by which to measure agent competency (nothing is published). Secondly, while an agent can appeal the union's suspension, the arbitrator is selected and paid for by the union -- which calls into question impartiality. Thirdly, Poston did not negotiate the agent regulations with the union -- he must consent to the process if he wants to represent players. This is just the reality -- I'm not choosing one side over the other.

Posted By : Rick Karcher

"reasonable agent"...."impartial judge"....that is...

Message posted on : 2006-09-27 - 11:06:00

"reasonable agent"...."impartial judge"....that is not reality, that is fantasy.
Posted By : Anonymous

Well, it's not a system that is completely without...

Message posted on : 2006-09-27 - 12:01:00

Well, it's not a system that is completely without parallel. The securities industry maintains an arbitration forum that they pay for, and if you have a claim against a broker, you submit yourself to that process. You're right, it's probably not the fairest manner of resolution, but I think Poston will have an uphill battle fighting. It was something he agreed to when he became certified.
Posted By : john

Agreed. Either CITGO owns the land upon which the...

Message posted on : 2006-09-27 - 17:45:00

Agreed. Either CITGO owns the land upon which the sign sits and also the sign, or someone leases CITGO the sign. If a private entity were so inclined, buy it out. But keep gov't out of it.
Posted By : Anonymous

So a co-worker (such as a professor) is "promoted"...

Message posted on : 2006-09-27 - 18:35:00

So a co-worker (such as a professor) is "promoted" to associate dean. Is there now a conflict of interest with the former department and professors?
Posted By : Anonymous

Well, Poston's complaint is still pending and it w...

Message posted on : 2006-09-27 - 19:12:00

Well, Poston's complaint is still pending and it was filed over 6 months ago. If the court wanted to dismiss it for lack of jurisdiction, you would think it would have done so by now.
Posted By : Rick Karcher

The best-selling book chronicling University of Al...

Message posted on : 2006-09-27 - 20:22:00

The best-selling book chronicling University of Alabama football fanaticism faces a lawsuit from one of those supporters. Sportsbook A rabid Alabama fan has sued author Warren St. John and two divisions of Random House publishing company, claiming they used a picture of his recreation vehicle as a book cover for "Rammer Jammer Yellow Hammer: A Road Trip into the Heart of Fan Mania" without being paid.

A lawsuit filed March 15 in U.S. District Court claims Ron St. John was verbally promised compensation by Warren St. John and the publishers for using his green 1972 Dodge Champion, nicknamed "The Toad," but did not receive any.www.enterbet.com

Posted By : nfl betting

I personally have nothing against players moving o...

Message posted on : 2006-09-28 - 01:28:00

I personally have nothing against players moving onto front office jobs after their tenure. It would seem to be a case of players trying to turn a page in a chapter of their lives. As long as said player is not a member of the players association executive committee, board, etc., such a move into sports management doesn't seem to be a conflict of interest both legally and ethically speaking.

I think that a more salient point is whether such a move would be beneficial from the team's point of view. Hiring a team icon like Stevie Y may be great press but if Yzerman, for instance, wanted a degree of control over player personnel matters, it could be detrimental in the functioning of the team. As anonymous #2 points out pro sports tends to be a "closeknit family where you help out your own kind" and objectivity could sometimes suffer from past loyalties.

It seems as if most team icons are cunningly (and correctly) given fancy titles but little player personnel responsibility. This isn't a bad way to reward a productive career and to keep the team popular with the fanbase (for instance, the Raptors hired Jerome Williams as a community relations director). A gradual transition into more responsibility over player personnel matters as the team evolves is perhaps the most advisable method of conduct from the teams' perspective.

Posted By : Jason Chung

It would seem as if some NFL teams are intent on d...

Message posted on : 2006-09-28 - 01:44:00

It would seem as if some NFL teams are intent on destroying the in-game fan experience for the benefit of television viewers. In the process, the NFL may be putting its long term viability in some danger.

Part of the fan experience during sporting events is to be able to cheer (civilly) and feeling like you have some effect on your teams, primarily through morale.

In this instance, football is at a great advantage - there is an incentive for fans to A) show up at the games and B) be involved in the game (eg. making noise at the appropriate times) because there will be a DIRECT and PROVEN causality between their noise and the teams' performance on the field (unlike hockey and even baseball where such extrapolations are impossible). This means that fans of well-supported teams will have to be football-knowledgable (to know when to make noise) and to actually give a damn thereby creating a sense of community for fans within the stadium. This enthusiasm generally translates into increased fanaticism by proxy (classic example being the father-son bondage via a trip to a game) which, in turn, leads to sustainable support over generations.

The NFL must also believe that lessening crowd noise will result in higher quality football (less muffed snap counts and offsides) which would presumably please TV viewers. However, I would posit that part of an engaging TV experience is feeling that you are part of said larger community (hence the emphasis on watching the "big game" together). Crowd noise is welcome and creates ambience - I personally enjoy watching the enthusiasm of fans at Arrowhead, Qwest and Lambeau while watching the Cards is difficult due to the apathy of the crowd which comes through the TV (at least that was the case at Sun Devil stadium). After all, who didn't get goosebumps while watching Saints fans finally having celebrating and blowing the roof off the Superdome?

Posted By : Jason Chung

It would seem to me that this decision by the judg...

Message posted on : 2006-09-28 - 02:05:00

It would seem to me that this decision by the judge is not so curious under the principle of stare decicis. I was under the impression that Branzburg v. Hayes made it very clear that reporters were not shielded from testifying (and divulging sources) before a grand jury.

Now whether Branzburg v. Hayes was a wise decision is another matter.

Posted By : Jason Chung

(Sorry, I accidentally hit publish before I was re...

Message posted on : 2006-09-28 - 02:17:00

(Sorry, I accidentally hit publish before I was ready)

I would argue that Branzburg v. Hayes is an uncomfortable but necessary decision. While I am an advocate for the freedom of the press, I view Branzburg as more of a protection for average citizens. Via Branzburg, the Court clearly reminded the press corps that they were subservient to the law and could be called upon to divulge their methods and sources in the context of the search for justice. By reinforcing judicial power, it is likely that the Court mitigated the likelihood of libel or slander of a press armed with the explosive power of "anonymous sources".

Clearly, Stephen Glass and Jayson Blair are good examples of the fallacy of human nature, even among professional reporters, and of the necessity for courts to retain the right to question reporters regarding their tactics and acquisition of information. The interest of protecting the Fourth Estate cannot outweigh the protection of citizens FROM the press.

Posted By : Jason chung

In the age of electronic immediacy, the danger of ...

Message posted on : 2006-09-28 - 02:24:00

In the age of electronic immediacy, the danger of "Dr. Phil syndrome" is preeminent. Instant psychological profiles, distance diagnosis and amateur pop psychology (with time for commericial breaks!) seem to be par for the course by today's "experts" and journalists. I wonder if anyone caught in the media hoopla bothered to stand back and wait for the facts prior to writing the psychobabble I saw throughout the day.

I also wonder if we haven't forgotten, as a society, that psychological diagnosis and healing is meant to take time and effort.

Posted By : Jason Chung

Jason: EXCELLENT comments!!!

Message posted on : 2006-09-28 - 10:32:00

Jason:

EXCELLENT comments!!!

Posted By : Richard Mock

Just wait for his first game in Philly, where the ...

Message posted on : 2006-09-28 - 10:44:00

Just wait for his first game in Philly, where the fans will probably throw pill bottles onto the field.

Do you think T.O. will work a suicide routine into an end zone celebration, to poke fun at the media attention?

Posted By : ChapelHeel

I am agree in awe at the fact that all of this spe...

Message posted on : 2006-09-28 - 12:00:00

I am agree in awe at the fact that all of this speculation happened so quickly. Yes, it is very newsworthy that Owens was taken to the hospital, afterall he is a premier figure in sports today. And I couldn't agree with Jason more, that it is the need for immediate answers. I think it goes deeper than the "Dr. Phil syndrome". I think it derives from our ability to have answers 24-7 in the form of constant communication with cell phones and internet, 24-hour cable news like CNN, FOX, and even ESPN. It is like we are driven to be the first to know and the first to understand the new "Breaking News Story". I found it humerous (and slightly disturbing) that last night on ESPN they were already discussing the implications this had for the Cowboys and whether they should play him.... WHO CARES! We dont even know exactly what happened, and its between Owens and Parcells. I mean, if he DID try to commit suicide, how shallow are we, as a society, that the next question we wonder is what impact this will have on the cowboys!! Even if not, I hope we as a society learn our lesson soon, because, as we all know... Curiosity Killed the Cat!
Posted By : Aaron E.

I understand that Terrell Owens claims that this i...

Message posted on : 2006-09-28 - 12:21:00

I understand that Terrell Owens claims that this incident was just a mistake and that he is a healthy and stable person. And I DO believe him. Say what you will about the man, he is not one to lie. In fact, how many times has he gotten in trouble because he told the truth about someone or something? Don't get wrong, 'T.O.' irks me as much as any other spoiled-know-it-all athlete, but I have to say he's honest.
Posted By : Michael Capers

When you consider the real story yesterday (the hi...

Message posted on : 2006-09-28 - 12:37:00

When you consider the real story yesterday (the high school in Colorado) you just have to laugh at T.O. and his agent and publicist. Laughing at Parcells and Jerry would not hurt either. At the end of the day, isn't the real issue whether or not to keep T.O. in your fantasy football lineup this week?
Posted By : Anonymous

I think I now understand why Terrell Owens has a g...

Message posted on : 2006-09-28 - 13:34:00

I think I now understand why Terrell Owens has a generally negative perception with the public. He has who is officially the worst publicist in the world.

Did you see his press conference at which she also spoke? "Terrell has TWENTY-FIVE MILLION REASONS to be alive," delivered with a self-congratulatory smirk by his publicist. Sure, there are zero rich people out there who are depressed or contemplating suicide. Plus, athletes bragging about how rich they are is always good publicity, Ms. Publicist.

Then there was "when I see a man of his statue (sic)." Ms. Etheridge, if you want to be a publicist, learn the English language.

I found Owens believable and sincere, but I found his publicist quite the opposite. Find a new PR person, Terrell.

Posted By : Anonymous

Like we've discussed on this blog before - when we...

Message posted on : 2006-09-28 - 15:23:00

Like we've discussed on this blog before - when we have little information about an athlete's situation, we're prone to making assumptions based on their image, background and performance record.

Given TO's end zone dances and off-the-field contract tantrums, it's easy to assume that this was a publicity stunt. Of course, just because it's easy doesn't necessarily have any bearing on its accuracy.

Even with the new information being released (by a "trainer" and confidant who apprently introduced him to hyperbaric chambers and is at least in some part responsible for Terrell taking 30 supplements a day) that he didn't get to go to his kid's birthday in California and that his fiance just broke off their marriage, I would still be extremely reticent to throw terms like depression and bipolar disorder around.

Incidentally, Mike Celizic is one of the worst sportswriters in the business - I'm guessing he wikipedia'd Owens, read his bio, and projected some kind of psychoanalysis on the whole situation. Notice how quickly he had to turn to an anecdote from his personal experience (and did he compare TO with a child molester??). He's prone to doing similar things with baseball statistics as well.

Last, I'm shocked that anyone is saying anything about TO "blowing his career" - if TO retired tomorrow, he would go down as one of the best wide receivers ever to play the game.

Posted By : Satchmo

Thanks for these comments. Just to respond to the...

Message posted on : 2006-09-28 - 18:18:00

Thanks for these comments. Just to respond to the last two:

Western Michigan, I'm not sure about the future of the decibel meter graphic on stadium big screens. I guess the NFL could say that it--like the chant "de-fense"--can still be used at appropriate times, whatever "appropriate" actually means.

Jason, I agree, crowd noise is very much a part of the experience, and it's in part what makes attending games much more fun than watching them on TV.

Posted By : Michael McCann

Thank you all for these outstanding comments. Som...

Message posted on : 2006-09-28 - 19:17:00

Thank you all for these outstanding comments. Sometimes a post makes the comments, but sometimes, as we see here, the comments really make the post. Here are my thoughts:

Jason, I agree with Richard: excellent comments. I also think your idea of a "Dr. Phil Syndrome" is very true and extremely apparent with how the media and public perceive Terrell Owens.

Chapel Heel, You're right, it would be interesting if T.O. does something on the field to effectively denounce how so many media and sports fans have treated him in the last 48 hours. And, yeah, you never know what Philly fans will do!

Aaron E., Great point about our craving for immediate information. And I think that invites the question of how we would respond to the exact same situation if it occurred back in, say, 1990 when people didn't have on-line resources and when cable TV was much more limited. In a way, I think the existing technological medium has shaped how we look at T.).

Michael Capers, That's a good point: for whatever faults T.0. may have, a lack of veracity doesn't seem to be one of them.

Anonymous 1, You're right. I think a surprisingly large number of people were interested in the T.O. story because of its fantasy football implications. I won't name names, but two people who I know very well were interested in the story mainly because of that reason.

Anonymous 2, That's a good point: a lot of people seem to think that T.O's publicist didn't do a good job at a crucial time in her client's career.

Will (Satchmo), You make a number of outstanding points and this one is especially worthy of highlighting: "[W]hen we have little information about an athlete's situation, we're prone to making assumptions based on their image, background and performance record.". That simply couldn't be said better. It is 100% right on.

Posted By : Michael McCann

The New York Convention applies to decisions of an...

Message posted on : 2006-09-28 - 23:52:00

The New York Convention applies to decisions of any court of arbitration.
Posted By : Anonymous

I think that Professor Haagen's idea is an intrigu...

Message posted on : 2006-09-29 - 00:07:00

I think that Professor Haagen's idea is an intriguing one and a proactive solution to the Duke lacrosse situation which arose from a clear lack of interplay between the university and the sports teams. By marrying the twin collegiate experiences of academia and athletics, Haagen is clearly trying to enhance the overall college experience for both faculty and students by creating bridges between the two communities. Professors can benefit by keeping abreast of student life and student-athletes can quiz their professors on a wide range of academic and career-related concerns.

I am concerned by the shortsightedness of Professor Paula McClain. It is precisely at a time when sports teams are so maligned at Duke that the greatest openness to change is present. In an effort to rehabilitate their images, I suspect that the majority of sports teams, such as Kerstin Kimel, would agree to accept such oversight.

If sports teams continue to be pushed into the shadows, I believe that situations such as the Duke lacrosse scandal will repeat themselves because student-athletes will feel less accountable to their university and community. A more long-term and inclusive approach would definitely mitigate against future scandals as well as raise the consciousness of student-athletes - which is what I suspect Professor Haagen's ultimate goal to be.

Provided that the increase in interaction between student-athletes and professors does not adversely affect the attention professors can attribute to "regular" students, I have no problem with such an initiative. In fact, I hope to see such initiatives take place in all North American universities and colleges.

Posted By : Jason Chung

I don't know if I should laugh or cry, but how "sa...

Message posted on : 2006-09-29 - 11:02:00

I don't know if I should laugh or cry, but how "sad" is it that professors have to be assigned (on a voluntary basis) to communicate with athletic department personnel. Sounds like this affirms the idea that college athletics is a run-away train and the term student-athlete is one of the greatest oxymorons of our time.

In the end, none of this will matter. As long as athletic departments can continue to generate millions of dollars, all of this other stuff is just a smoke screen. A feel good story, yes, but just a smoke screen.

Posted By : Anonymous

The co-director for the Center for the Study of Ra...

Message posted on : 2006-09-29 - 14:52:00

The co-director for the Center for the Study of Race, Ethnicity, and Gender in the Social Sciences at Duke wants to build a wall between academics and athletics. Isn't that kind of behavior sometimes called "exclusionary" and/or "demeaning" and/or "stigmatizing" and/or "elitist"?

I'll wager that courses taught in the Center for the Study of Race, Ethnicity and Gender in the Social Sciences paint those kinds of behaviors in a very negative light.

As Arte Johnson used to say on Rowan and Martin's Laugh In "Verrry interesting... but stupid."

Posted By : The Sports Curmudgeon

And once again: The arbitration committe is not a ...

Message posted on : 2006-10-02 - 03:37:00

And once again: The arbitration committe is not a court of arbitration within the meaning of the Convention. It has not been constituted in a due course, in accordance with Russian legislation. Hence its decisions are not enforceable in Russia. Moreover, in Russia labour disputes are of an exclusive state courts jurisdiction.
Or American courts may enforce decisions which do not have legal effect in a state of issuance?

Posted By : Daria

Anonymous, Thanks for your comment.

Message posted on : 2006-10-03 - 10:23:00

Anonymous,

Thanks for your comment.

I have not yet taken it under exam conditions, and I imagine those conditions can greatly influence performance. As I continue in my research, I plan to take it under those conditions.

Have you, or anyone else reading this, taken the Wonderlic, and if so, 1) for what purposes did you take it? 2) what were the exam conditions like? and 3) what were the sources of stress that you felt, if you felt any stress?

I would greatly appreciate any kind of feedback on the testing experience itself. Thanks.

Posted By : Michael McCann

Daria, why do you think the New York Convention ha...

Message posted on : 2006-10-03 - 10:25:00

Daria, why do you think the New York Convention has a particularly narrow interpretation of what constitutes an "arbitration"? I don't recall any award being refused enforcement because it did not meet the requirement of the decision-makers being an arbitration. If this is just a question of Russian domestic law--that the panel was not duly constituted--does this have any effect for an American court? If so, under what basis?
Posted By : Anonymous

If you have a decision by a tretskii sud in Russia...

Message posted on : 2006-10-03 - 13:30:00

If you have a decision by a tretskii sud in Russia, it is not enforceable in Russia under the New York convention because it is a domestic award. This is true.

However, the mere decision to now try to enforce that award in another country (such as the US) provides the arbitral decision with an international quality such that it now qualifies for enforcement under the New York convention.

Posted By : Anonymous

To me, Terrell Owens is biggest jerk of all time. ...

Message posted on : 2006-10-03 - 21:12:00

To me, Terrell Owens is biggest jerk of all time. First off, for as much money as he makes, he shouldn't be allowed to run his mouth as he does....regardless of how talented he is. I would love to see him get barred from the NFL for being such an ass! Hey Terrell, there have been, and I'm sure there will be, better recievers out there so get off your soapbox and face reality.
I'm a psychology major in my junior year, and it seems to me that this "incident" was obviously an attempted suicide. Ok, if it if were a "reaction" to herbal supplements, who in the hell takes 30 pills anyway? This idiot should be stripped from all NFL records and be barred from the league. I personally would absolutely LOVE to see him serving burgers at McDonald's. In closing, shut up Terrell....your a piece of shit!!
-Matt Lambert

Posted By : Matt Lambert

In a very perverse sort of way, city council seizu...

Message posted on : 2006-10-03 - 22:50:00

In a very perverse sort of way, city council seizure of the land/leasehold where the Citgo sign is should make Chavez smile. It's what he would do if he wanted to.
Posted By : BlueDevilMayes

Under this basis: Article V. 17 1. R...

Message posted on : 2006-10-04 - 03:27:00

Under this basis:
Article V 17

1. Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that:
(a) The parties to the agreement referred to in article II were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made.
As I have said in Russia labour disputes are of an exclusive state courts jurisdiction.

Next:(e) The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.

The Regulations on The Arbitration Committee state that its decisions are subject to appeal to the Court Arbitration for Sport in Russia.

Posted By : Daria

Actually, arbitrators can do whatever they want as...

Message posted on : 2006-10-05 - 00:26:00

Actually, arbitrators can do whatever they want as long as it abides by the arbitration agreement. Arbitration only operates in the shadow of the law and is not bound by the law unless in the agreement.
Posted By : The Fan's Attic

What is the time frame used for the data? It would...

Message posted on : 2006-10-05 - 08:22:00

What is the time frame used for the data? It would be difficult to confirm if a 'recent' arrest was missed without at least a start date. Also, several people seemed interested incomparing this list to other sports. The number of arrests sport to sport can't be compared without knowing if this covers five years, ten years, etc.
Posted By : Ted

This is hilarious. Anyone (including a professor o...

Message posted on : 2006-10-05 - 13:15:00

This is hilarious. Anyone (including a professor of tax at a University that discriminates against Native Americans) who actually believes that the NCAA will remain a non-profit organization onder tax laws truly lives in an ivory tower. I hate to say it, but this is a money issue, not a political one (not that they are mutually exclusive). You see, the federal government $ee$ lots of potential tax revenue from a $6B television contract from CBS and the NCAA. The NCAA's smoke screen has run out: the diversions related to Native American Indians, Confederate flags, and so on have finally caught up with this cartel of impropriety. Remember this the next NCAA football game you watch and as they are raising the "Allstate" net behind the goal posts--that's how a non-profit organization comes under scrutiny (regardless of how many commercials the NCAA wants to try to brainwash the public that student-athletes are really students).
Posted By : Anonymous

I hope this woman gets run out of the blogosphere ...

Message posted on : 2006-10-05 - 13:17:00

I hope this woman gets run out of the blogosphere like she did at Iowa.
Posted By : Anonymous

As a former Brit and past member of the Ontario So...

Message posted on : 2006-10-05 - 13:37:00

As a former Brit and past member of the Ontario Soccer Association .. most definitely competitive balance is an oxymoron .. it promotes limiting competition and will never allow equalisation of income which equates to competitiveness. The free access to leagues of sucessfull lower levels of competition create the addition of new blood and guarentees the competitive nature of the teams .. with the possibility of demotion, comes a more careful business plan, and a refocussing to a longer term plan for growth than the typical US "business by quarters". It's the very reason why US soccer has not grown .. no relegation/demotion and no professional youth teams in development.
Posted By : Anonymous

A copy of the complaint may be accessed at http://...

Message posted on : 2006-10-05 - 13:45:00

A copy of the complaint may be accessed at http://gregskidmore.net/documents/chelios_complaint.pdf
Posted By : Rick Karcher

I don't support 'pregnancy policies' that dictate ...

Message posted on : 2006-10-05 - 18:34:00

I don't support 'pregnancy policies' that dictate strict prohibitions on pregnant athletes. Besides the fact that it is demeaning to take the choice of when to withdraw from a sport away from the athlete, there isn't medical science to back it up. Old wives' tales that you need to "take it easy" during pregnancy are being discounted. New studies show that by maintaining your exercise regime you will have a healthier pregnancy and easier child birth. Women used to be told to keep their heart rate below 140, but now doctors are recognizing that this has to be an individual decision. I am 16 weeks pregnant and the goalie for my university's club lacrosse team. I plan on playing as long as I fit in my protective pads.
Posted By : Anonymous

Is it really 40 years of "precedent"? Seems to me...

Message posted on : 2006-10-05 - 19:39:00

Is it really 40 years of "precedent"? Seems to me the IRS granted tax-exempt status when the NCAA applied for it. The IRS does not examine the issue every year.

Now it has decided to study the issue, as it decides to do with all sorts of not-for-profit entities (hospitals, etc.) from time to time.

I dare say the NCAA is quite a different organization than it was when its status was granted. College athletics is a business, and more and more it seems to be a business that has deviated from any educational goal. The NCAA is even further removed from those goals than the individual athletic programs.

It may be a money grab by the federal government, but why shouldn't it? The tax laws say what they say. If the NCAA is not operating as a charitable organization, it should pay taxes.

Or will we give the NCAA the tax code equivalent of the baseball antitrust exemption?

Posted By : ChapelHeel

Floyd Landis has not been "proven to be a liar". ...

Message posted on : 2006-10-06 - 00:37:00

Floyd Landis has not been "proven to be a liar". In a blog that purports to have some legal savvy, you really ought to be more sensitive to such things. He's been accused of something which he denies, and the matter has not been resolved. Legally, and factually, there is no public conclusion. If you want to say that you think he's a liar, fine,
but that has not been proven as you assert.

TBV trustbut.blogspot.com

Posted By : Anonymous

wonder if, now that UND is suing the NCAA over the...

Message posted on : 2006-10-06 - 14:05:00

wonder if, now that UND is suing the NCAA over the Indian logo/nickname issue, the North Dakota reps on the House Ways and Means Committee (1 rep) and the Senate Finance Committee (1 senator) will step up the pressure on the NCAA. I would if I were them.
Posted By : Dean V. Wermer

Thanks for the comment. I obviously don't know wh...

Message posted on : 2006-10-06 - 14:30:00

Thanks for the comment. I obviously don't know what the parties agreed to regarding arbitration, but I did read a N.Y. Times article a couple months ago which stated that Stern is permitted to award any dollar amount between $0 and $40 million. But again, typically parties agree to have a neutral arbitrator resolve the legal and factual issues between the parties, and for it to be binding. Sometimes the parties agree that the rules of evidence will be more relaxed in the arbitration proceeding, but they typically don't agree to discard substantive law such as contract principles. This is different from mediation, in which the mediator hears both sides and points out the weaknesses in each side's case, with the goal of reaching a settlement prior to having an arbitrator or judge rule on the matter.
Posted By : Rick Karcher

This case is not necessarily suggestive of the nee...

Message posted on : 2006-10-07 - 09:31:00

This case is not necessarily suggestive of the need to re-visit the way "the legal system" handles domestic violence cases. The rosecutor is obviously an integral part of the legal system and yet he didn't just surrender to the "system" once his victim announced she would be un-cooperative. As a matter of fact prosecutor Conley did all he could to forge ahead despite opposition from Myers and his attorney, the judge, much of the sports media, and even his own victim.
Posted By : Paul D

I know that I am late on this subject, but I would...

Message posted on : 2006-10-07 - 18:45:00

I know that I am late on this subject, but I would like to say that I admire Byron for going back to school. I went through grade school and high school with him and he is truely an amazing person. I never lost track of him, and although Detroit is in the playoffs right now, i think he made a very comendable choice, considering where we are from. I have a masters degree, but the majority of the people we graduated high school with never went or finished college and Byron got to go to the big leagues, like we all knew he would. Sure he wasn't there long, but no one from this town ever seems to succeed, and i am so glad that someone I know and love (although i haven't seen him in a few years) did! Congrats to Byron. Too bad he didn't come to Southern Illinois University Edwardsville (there is no football team) so i could be his instructor!
Posted By : tracey hayes

Do they really think a known terrorist is going t...

Message posted on : 2006-10-07 - 20:33:00

Do they really think a known terrorist is going to travel under his own name? You'd also think that they would include some sort of id info with the names on the list, like middle initial, race and height. I have a friend with the same as a known drug dealer in his region. It usually doesn't cause him much problems as the dealer is African-American and my friend is white.
Posted By : Anonymous

I agree that it's hard to conclude that there is b...

Message posted on : 2006-10-07 - 23:45:00

I agree that it's hard to conclude that there is battered wives syndrome at play without more knowledge, but Kim Myers is certainly not setting a very good example by simply walking away from the case.

If her primary interest was preserving the marriage, couldn't she have continued with the case and plead leniency with the judge? Wouldn't that potentially make an impact on the decision?

As it is, she's preserving her marriage at the cost of absolving her husband of any legal consequences for his acts, which were witnessed, apparently, by a number of individuals. One might point out that such capitulation hardly makes for a good relationship.

And furthermore, there is enough of a stigma that exists already for battered women and the abused, that too many incidents go unreported. The last thing we need is individuals like Mrs. Myers dropping the charges against her husband and giving the impression that after one violent incident, everything can go back to being hunky-dory, which we know is often not the case.

Posted By : Satchmo

Olga, Thank you for your kind words about S...

Message posted on : 2006-10-08 - 17:38:00

Olga,

Thank you for your kind words about Sports Law Blog. We appreciate them.

Posted By : Michael McCann

Without subpoena power this investigation has litt...

Message posted on : 2006-10-08 - 20:52:00

Without subpoena power this investigation has little chance for success.

Competitive individuals are going to to what is necessary to compete with others they perceive to be attempting to gain an advantage.

Baseball has made some strides in the issue of performance enhancing substances but they have a way to go.

For now, technology is on the side of the athletes.

Posted By : Richard Mock

I think that John Smith should be on the list. Th...

Message posted on : 2006-10-09 - 00:54:00

I think that John Smith should be on the list. Think abouit how much safer we would be if airport security scrutinized that many additional people.
Posted By : Anonymous

Nice post.

Message posted on : 2006-10-09 - 01:18:00

Nice post.
Posted By : Lummpy

I am not sure if your last night is sarcastic or n...

Message posted on : 2006-10-09 - 10:07:00

I am not sure if your last night is sarcastic or not, but low budget teams do have a salary cap it is called a low budget. So the fact that they are spending more less money and succeeding doesnt mean that you dont need a salary cap. A salary cap will insure the Yankees that they dont need to waste 208 or so million dollars and can still make the playoffs. A salary cap will also make people maybe concentrate more on more bang for the buck instead of just more bang.
Also, just a side point.. In 5 years assuming the Marlins keep all the players that they have now, which is not goig to happen, this will be a team of all stars. The Marlins were an a amazing example of Players beign good before there major contract, and then they will all get traded. Unless there is some form of cap on salaries this rotation of players will conitinue forever.
Kenny

Posted By : Anonymous

Yes, and think how much better MSU would be if he ...

Message posted on : 2006-10-09 - 11:26:00

Yes, and think how much better MSU would be if he were held for interrogation.
Posted By : Anonymous

Boston's "supposed 'boy wonder'" didn't do too bad...

Message posted on : 2006-10-09 - 11:30:00

Boston's "supposed 'boy wonder'" didn't do too bad two years ago.
Posted By : Michael McCann

My last point about the salary cap is just that th...

Message posted on : 2006-10-09 - 13:54:00

My last point about the salary cap is just that there appears to be competitive balance in baseball without one, which is the primary purpose for having a cap. I definitely don't want to debate whether there should be a cap in baseball. So you think the Yankees want to be prohibited from spending a certain amount?
Posted By : Rick Karcher

What the hell shirt is Dukakis wearing?

Message posted on : 2006-10-09 - 14:28:00

What the hell shirt is Dukakis wearing?
Posted By : Collin

In defense of the Atlanta Braves, this list is not...

Message posted on : 2006-10-09 - 14:49:00

In defense of the Atlanta Braves, this list is not entirely accurate. The list gives full value for Edgar Renteria ($9 mill) when they're really just paying him about $6 per after Boston sent over a heap of money with him. It also gives the full value of Mike Hampton, as it does every year, despite the fact that this is the first year they're paying him more than a couple of million dollars and 3/4 of that they got back in insurance when he didn't play. Chipper Jones restructured at the beginning of the season, dropping his 2006 salary by $6 mill. The team's payroll is limited to about $80 million, which puts them at the middle of the pack at 15th, which is where they were in the standings.
Posted By : Jason

Jason,

I'm always willing to defend the Bra...

Message posted on : 2006-10-09 - 15:57:00

Jason,

I'm always willing to defend the Braves. But on the flipside, the USA Today salary database does not include deferred payments, incentive and award clauses and depreciation. I think it probably all evens out in the end, and gets you to a pretty accurate number for the year.

Posted By : Rick Karcher

In your opinion, from 1995 to 2005, who was better...

Message posted on : 2006-10-09 - 18:42:00

In your opinion, from 1995 to 2005, who was better ran – the Braves or the Marlins?

Braves- won the division all 11 years, 1 WS, 3 WS appearances

Marlins- 2 WS and whole lot of self-destruction and rebuilding.

Posted By : Anonymous

"My last point about the salary cap is just that t...

Message posted on : 2006-10-09 - 21:46:00

"My last point about the salary cap is just that there appears to be competitive balance in baseball without one..."

How do you define competitive balance? Without specifying exactly what you mean by this vague term, it's impossible to argue that there isn't competitive balance.

Posted By : PK

Competitive balance is not quite the same thing as...

Message posted on : 2006-10-10 - 00:40:00

Competitive balance is not quite the same thing as having "the biggest spending team" lose the championship for the last six years in a row.

The KC Royals are eliminated from the playoffs sometime around April 15 if you allow reality to be your guide to baseball analysis. The same goes for the Pittsburgh Pirates who have now had 13 consecutive losing seasons. BTW, the Orioles have been losers for nine straight years now. That is not competitive balance.

I don't know if a salary cap would usher in an era of "parity", but what we have now is not "parity".

Posted By : The Sports Curmudgeon

PK, What I mean is that out of 8 teams that...

Message posted on : 2006-10-10 - 07:38:00

PK,

What I mean is that out of 8 teams that made the playoffs this year, only 3 of them were in the playoffs last year. You may disagree, but I think that is some evidence of competitive balance.

TSC,

I agree that teams spending below $60M pretty much take themselves out of the race (with some rare exceptions). The point of my post is basically the last statistic I revealed. I'm just a lawyer with some corporate and sports law experience, and played in the best farm system for a few years (the Braves), and I have zero financial/business experience, but if I owned a team right now, there is no way I would spend $90M or more when only 3 of 10 teams that did so made the playoffs! It just doesn't make sense to me -- and much of why it doesn't make sense to me has to do with my views about baseball as a sport as compared with other sports (which would take me all day to discuss). Plain and simple, any team can get to the playoffs in the $60 to $90 range with the right decisions being made (5 of 12 teams did).

Posted By : Rick Karcher

Rick: You just gave what you thought was ev...

Message posted on : 2006-10-10 - 08:45:00

Rick:

You just gave what you thought was evidence of competitive balance, rather than a definition of competitive balance. But I think you're saying that competitive balance is a situation in which every team has a reasonable chance of making the playoffs within a relatively short time period, e.g., 3-5 years. In other words, in any given five year span, every team should have a reasonable chance of making the playoffs at least once. If that's what you're saying, then I'd agree.

Does baseball have that? Well, off the top of my head the following teams have not made the playoffs within the last five years: Toronto, Baltimore, Tampa Bay, Kansas City, Philadelphia, Washington/Montreal, Cincinnati, Milwaukee, Pittsburgh, and Colorado. So that's 1/3 of the league. Taking a closer look though, Philadelphia certainly has had a reasonable chance, perhaps Cincinnati as well. So that brings us down to 8 teams. Of those 8, at least 1 appears to be the result of gross mismanagement (Baltimore) and another at least partly the product of the difficulty of winning at high altitude (Colorado). In addition, one has just moved and is getting a new stadium in its new location (Washington), so we don't know what its results will be yet.

That leaves five: Toronto, Tampa Bay, Kansas City, Milwaukee, Pittsburgh.

On this list you have four of the smallest markets in baseball and Toronto. Toronto is on here because it plays in the same division with the Yankees and Red Sox and simply cannot spend with those teams. Tampa Bay has the same problem plus much lower revenue. The other three teams are very low revenue clubs, even with new stadiums in Pittsburgh and Milwaukee.

So I'd say that the lack of a salary cap has not destroyed competitive balance for most teams, but it has left a handful of teams without any real chance of making the playoffs.

Perhaps the best solution to this is not a salary cap but realignment. Instead of having Tampa Bay and Toronto in the same division as the Yankees and Red Sox, why not move the Mets and Phillies in there? As for Pittsburgh, Milwaukee, and Kansas City, why not group them in a division with two other low-revenue clubs, such as Minnesota and Cincinnati? I realize this would break up the integrity of the National and American leagues, but it certainly seems to make more sense that having the players bear the burden of ensuring competitive balance through a salary cap.

Posted By : PK

PK, I'm not saying that every team should h...

Message posted on : 2006-10-10 - 09:42:00

PK,

I'm not saying that every team should have the opportunity to make the playoffs within a 3-5 yr. period. Why should we feel sorry for the small number of teams you mentioned that choose to spend in the $30 to $50 range? So I guess I'm willing to say that every team that spends in the 60 to 80 range should have a reasonable chance of making it at least once in a 3-5 yr. period -- and I think that's exactly what you have right now when 42% of the teams that spent in the $60 to $89 range made the playoffs this year.

Posted By : Rick Karcher

When people do t hings privately that is one thing...

Message posted on : 2006-10-10 - 11:01:00

When people do t hings privately that is one thing. However when they are wearing the jersey of a team or a country, what they do in effect represents that team or country. Therefore in a private organization, the owners shuold have the ability to make those decisions for them. If not they can take there services somewhere else
Posted By : Anonymous

First thing in answer to Anonymous... well, no, th...

Message posted on : 2006-10-10 - 13:51:00

First thing in answer to Anonymous... well, no, they certainly can not take their services someplace else. Not, unless they're traded, before their contract expires.

Second, there is no employer anywhere (in the U.S.) who can circumvent an employee's political speech. If you don't like that, it is not the employee who should be thinking of heading for distant lands.

Third, even if the ballplayer's "owner" is allowed to make important decisions for them, that still leaves the cases of athletes in individual sports -- like boxing, golf, tennis, track, etc. Your post suggests that these athletes represent their country, (and indeed they do in international competition) and therefore the country should be allowed to make decisions for them, in a manner, I suppose, paternalistically similar to the "owner" of a team. Well, the country did make that decision, and has reaffirmed it many times through the years -- they can talk.

Posted By : Collin

Thanks for these comments. Richard : ...

Message posted on : 2006-10-10 - 13:57:00

Thanks for these comments.

Richard: I agree, the lack of subpoena power might derail MLB's efforts, especially given the context of a separate criminal investigation taking place.

Lummpy: Thanks for your kind words.

Collin: I had a similar reaction! But I still think it's a cool picture, considering who's in it.

Posted By : Michael McCann

It's kinda interesting -- although I don't know ex...

Message posted on : 2006-10-10 - 14:01:00

It's kinda interesting -- although I don't know exactly what it means -- that of the examples used in the post only one (Black Power salute) had anything much to do with racial issues. Of course, there are more examples, but the examples you cite are certainly the most well-known and oft-referred to. When race is a factor in the examples used, it is more often a reason to criticize the athlete for not taking a controversial stance.

And does it mean anything that golf and tennis -- international sports unbeholden to local commissions or national leagues -- would have a tougher time dinging an athlete for insufficiant patriotism? Didn't Arthur Ashe do anything ever that drew criticism?

Posted By : Collin

Collin: Good point on Arthur Ashe; he is an...

Message posted on : 2006-10-10 - 14:30:00

Collin:

Good point on Arthur Ashe; he is another athlete as known for his political and expressive stances as for his athletic prowess. As I follow this up in future work, I am trying to gather more examples of athlete speech and Ashe is a good one. I do not know what criticism Ashe did or did not receive, but it is an interesting avenue to pursue.

Your point about athletes being criticized for not taking a stand on racial issues reflects the way that times have changed. Both Ali and Smith/Carlos were speech on racial issues (remember Ali's comment about why he had no quarrel with the Viet Cong) and they were villified. Twenty years later, Jordan is criticized for not taking a stand on behalf of an African-American trying to unseat a (perceived) racist.

Posted By : Howard Wasserman

Prof. Wasserman: Regarding offensive chants...

Message posted on : 2006-10-10 - 15:43:00

Prof. Wasserman:

Regarding offensive chants at professional sports events (leaving aside state university sporting events) that are held at publicly owned stadiums, does the First Amendment still apply if the government rents the facility to the team, which provides its own security and sets its own rules. I would think it does not. Therefore, cannot leagues and individual teams adequately police this, as the Europeans are doing by having UEFA and FIFA punish teams or countries rather than relying on governments to police this activity.

Posted By : PK

Rick: I'd take issue with you saying that s...

Message posted on : 2006-10-10 - 15:51:00

Rick:

I'd take issue with you saying that small market teams "choose" to spend in the $30 to $50 range. These teams are businesses and a run for profit. Unless you want to claim that these teams should be run at a loss, teams will only incur expenses that have a positive expected return. I think teams like KC argue that they simply cannot turn a profit if they spend $60-70 million a year because they don't have the revenue streams to justify that kind of spending.

Of course, there's a chicken and the egg problem here in that you can argue that if the teams spend it the fans will come. But I think in certain markets that may not be the case.

What should be done about these markets (and I'm thinking Tampa Bay, Kansas City, Pittsburgh, and perhaps Milwaukee)? Contraction is an option, but that's going to be very difficult to achieve. Other than realignment or a salary cap, how will these franchises become competitive? Or do you feel that the real problem with these teams is incompetent management in that you can be competitive at $45 million a year if you know what you doing, see, e.g., the Marlins?

Overall, however, I do generally agree with you that the competitive balance problem in baseball is overblown.

Posted By : PK

I've always found it amusing that media folks will...

Message posted on : 2006-10-10 - 16:07:00

I've always found it amusing that media folks will criticize a minority athlete for not taking a stand on something that the media folks think is both righetous and important.

When they chastise a minority athlete in these situations, I find it amusing because it is about as patronizing as one can get. The media criticism often takes the form of: "How can this person not see the importance here; it's perfectly obviously to us?" Translation: "I guess we'll have to explain it to the big dummy...". It sort of reminds me of the description of "white man's burden" in Moby Dick.

There is also a huge element of stereotyping here. If the athlete is African-American, then he/she must absolutely be a champion for any "cause" espoused by any other African American or endorsed by other African Americans. How could it be otherwise? Yet, those same media folks will generally rail against anyone who engages in "racial profiling", but that's just what the media does much of the time.

Posted By : The Sports Curmudgeon

I may be a minority in that I'm totally uninterest...

Message posted on : 2006-10-10 - 16:26:00

I may be a minority in that I'm totally uninterested in interviews with either athletes or entertainers. If I want political commentary I'm not going to look for it from Vanna White... or Etan Thomas, Carlos Delgado, or for that matter Sean Penn or Madonna or Curt Schilling.

If I pay to watch them I'm only interested in exactly what I have paid to watch them do.

Posted By : ignacio

I spend about 1/3 of the Pittsburgh article on thi...

Message posted on : 2006-10-10 - 16:31:00

I spend about 1/3 of the Pittsburgh article on this and it is the major open question. I argue, in essence, that the team is "converted" into a state actor, at least for purposes of operating the stadium, under a number of different "state action" tests that courts use. The key is the close relationship between the government that builds/owns the stadium and the team--teams demand the stadiums because they want the revenue and cities and states build them because they want to keep the team in town and because they hope to reap economic, social, and symbolic benefit from keeping the team around. This close relationship between public and private has the effect of making the team and government "joint actors", both subject to First Amendment limitations.

Note, by the way, that this is not even issue in Europe, where private actors as well as governments are bound by First Amendment principles. State action is a U.S. fetish

Posted By : Howard Wasserman

I believe there's a recent district court opinion ...

Message posted on : 2006-10-10 - 17:56:00

I believe there's a recent district court opinion re: validity of searches under the 4th Amendment at Buccaneers games. Since these seems to be more of a hot button issue, the state action question may well be decided in that context.
Posted By : PK

That actually was an easy case for state action--a...

Message posted on : 2006-10-10 - 18:13:00

That actually was an easy case for state action--a public entity (the stadium authority) owned and operated the stadium, provided personnel, and made all the rules. It agreed to follow NFL rules regarding searches, which made the NFL rules government rules by incorporation.
Posted By : Howard Wasserman

In Schilling's case, it was a particularly...um......

Message posted on : 2006-10-10 - 18:29:00

In Schilling's case, it was a particularly...um...impolitic decision to use his platform as the hero of Boston to declare his allegiance to the Texan who was running against a Massachusetts Senator. Only way it could've been worse was if they'd just beaten the Rangers.

But still...rude, not worthy of censure.

Posted By : Collin

If truth be told, there are probably a lot of peop...

Message posted on : 2006-10-10 - 19:39:00

If truth be told, there are probably a lot of people(fans)who resent Curt Flood because what he did, the stand he took, ultimately resulted in FREE AGENCY.

I say, give the man credit, give him his due, it took a lot of guts for him to take the stand he took and to stick to his guns amidst pressure from some players no doubt, not to mention ownership.

I would say any resentment should be aimed at Marvin Miller, if anyone.

Posted By : Dave Burkey

I agree with Rick that a Salary Cap is NOT really ...

Message posted on : 2006-10-10 - 20:02:00

I agree with Rick that a Salary Cap is NOT really needed and the proof is that the Yankees haven't even made it to the WS lately.

Boston, with the 2nd highest payroll finished behind the Toronto Blue Jays ; Oakland with a relatively small payroll keeps winning year after year.

Don't tell me the Pittsburgh Pirates and Kansas City Royals are doomed to failure every year because of the rules of baseball. They are doomed because of their own poor scouting, poor trades, poor player development and so forth.

Just look at what the Cleveland Indians did last year with a $42 mill. payroll. They spent more this year and were dreadfully lousy.

The Angels this year spent over $100 mill. and look where it got them. Seattle 2 years ago went out and got Richie Sexson and the 3rd baseman from the Dodgers. Where has it gotten them !!?

Posted By : Dave Burkey

PK and Dave Thanks for the great comments....

Message posted on : 2006-10-10 - 21:00:00

PK and Dave,

Thanks for the great comments. I don't think we can say whether the smaller market teams "can't afford" a $60M payroll. But does it really matter whether they can afford it or not? I mean, it's their decision what they want to do from a business standpoint given the landscape of the industry they are in. If they can't compete economically, then, like any business, they need to decide what they want to do (sell, increase expenses, reduce expenses, etc.). I'm definitely not willing to say they are mismanaged from a player personnel standpoint when the owner is only giving them $30 to $50 to work with. If we are going to say that they are mismanaged, then I think we definitely need to say the Yankees and Red Sox are mismanaged too. In any event, it's impossible to say whether any team is doing well from strictly an economic standpoint because there are so many variables involved (including the appreciation value of the franchise). The purpose of my post is really just to demonstrate that, as you both noted in your comments, the competitive balance problem in baseball is overblown.

Posted By : Rick Karcher

While I agree that the law and constitutions shoul...

Message posted on : 2006-10-10 - 23:06:00

While I agree that the law and constitutions should decide these cases, I think that European or Croatian (I'm not sure if the Croats are willing to place sanctions on their own team) officials are simply embarrassed by their fans. European League officials are looking for someone to be held accountable, and they find that the Croatian team should be held accountable because holding anyone else accountable would either be unrealistic or would not accomplish anything. I think that they feel if they let this go without action that they will be ridiculed and condemned by different organizations.

Your example/comparison using a popular American sport definitely puts it into perspective.

Posted By : Anonymous

I think that any person may have his/her own opini...

Message posted on : 2006-10-11 - 02:47:00

I think that any person may have his/her own opinion. And a person is not obliged to express it publically even if he/she is a sportsman/sportswoman. In my point of view, the right to have own opinion is not the obligation to exprees it.
Posted By : Olga B.

In fact, a team is not guilty for fans behaviour. ...

Message posted on : 2006-10-11 - 03:01:00

In fact, a team is not guilty for fans behaviour. But it is widely used practice to punish teams for fans behaviour. I can't say is this practice right or wrong. For me it's very controversial question.
Posted By : Olga B.

Howard, Regarding that last passage whereby...

Message posted on : 2006-10-11 - 06:00:00

Howard,

Regarding that last passage whereby you state that rules governing expression in the stands should be no different than expression occurring in any other expressive forum: isn't that dimishing the social impact of sports events? I can see the legal argument sustaining such an approach, but shouldn't the legal assessment of any issue be based on the material impact or potential material impact arising thereof?

Olga,

Punishing the individuals remains a highly unattainable end. The fans care, above all, about their team (even if in a twisted way). It is controversial but perhaps the one way to secure any sort of relevant "punishment"?

Posted By : Luis Cassiano

Luis: Actually, I think it enhances the soc...

Message posted on : 2006-10-11 - 07:12:00

Luis:

Actually, I think it enhances the social impact of sporting events by elevating them as forums to the equivalent of public streets and parks--the historically traditional forums where "time out of mind" public expression has occurred. I think it recogizes sports and sporting events as important places/events at which expression is important.

Posted By : Howard Wasserman

You should have a Sports Law Blog contest to see w...

Message posted on : 2006-10-11 - 09:08:00

You should have a Sports Law Blog contest to see which of your readers can accurately judge the collective eyebrow weight of the people pictured in the photo (could be tricky, since Teddy Ballgame's eyebrows are not clearly depicted).

I still wonder whether Selig cares whether he gets an end-product from this investigation. Baseball men, like politicians, seem to have elevated the value of perception over reality. If it appears baseball is trying to solve the problem, we'll all slump back in our easy chairs and watch the Tigers crush the Yankees without any wry comments about Jason Giambi.

Posted By : ChapelHeel

Interesting hot stove project: read Marvin Miller...

Message posted on : 2006-10-11 - 09:11:00

Interesting hot stove project: read Marvin Miller's book "A Whole Different Ballgame" and then read Bowie Kuhn's autobiography "Hardball."

Compare and contrast.

Posted By : ChapelHeel

Have you ever juiced Howard?

Message posted on : 2006-10-11 - 10:11:00

Have you ever juiced Howard?
Posted By : Anonymous

Howard: You raise a very interesting questi...

Message posted on : 2006-10-11 - 10:30:00

Howard:

You raise a very interesting question.

I go back and forth on this issue. The more I think about the use of performance enhancing substances compared to the medical advances today the more your comments make a lot of sense.

One other additional point for now: Barry Bonds has NOT been convicted of anything!!!

Posted By : Richard Mock

Interesting question - I think the biggest distinc...

Message posted on : 2006-10-11 - 11:16:00

Interesting question - I think the biggest distinction between using steroids and other forms of performance enhancement to which you refer is their effect on "normal" body function. Nutritional and other modern-day training advancements, while certainly improved from where they were 50 years ago, simply enable to the body to function "better" within a "normal" range of performance opportunity. In other words, the Jeeter of 2006 may be be functioning closer to his athletic potential than the Jeeter of 1946 would have been able because of his exposure to nutritional and other modern training advancements. As for surgery, there's little to suggest that people ever come back "better" from surgery. And even the odds of them coming back from surgery "as good" as they were before are long. I would not classify surgery as performance enhancement. Laser eye surgery corrects an abnormality - the same as other forms of surgery. Maddox didn't get better because of the surgery - he got normal.

Steroids, on the other hand, produce physical and performative effects well outside the "normal" or physiologic range for almost any athlete who takes them. I think the collective opinion of steroid users as cheaters lies in this sense of abnormality - and this creates a divide between the consumer and the athlete. The same divide, by the way, that makes professional wrestling entertainment, and not sport.

Posted By : Caseycro

Caseycro: well said!!!!

Message posted on : 2006-10-11 - 11:17:00

Caseycro: well said!!!!
Posted By : Anonymous

I am a athletic trainer and we have been dealing w...

Message posted on : 2006-10-11 - 11:42:00

I am a athletic trainer and we have been dealing with this question for a while. Athletes find ways to use the drugs regardless of rules or law, so it is my opinion that professional athletes should sign a risk waivor if they wish to take the drug and let controlled reseach on the affects pertaining to health and performance. So that maybe one day it can be safely implemented into the world of sports.
Posted By : jlock,atc

I think steroids and other performance-enhancing s...

Message posted on : 2006-10-11 - 14:02:00

I think steroids and other performance-enhancing substances which thrust human capabilitity far beyond the "normal" body function is considered cheating from a much different perspective: it's not about cheating, but rather it's about money. Think about it...
Posted By : Anonymous

While Bonds' career is good, even excellent is it ...

Message posted on : 2006-10-11 - 15:31:00

While Bonds' career is good, even excellent is it better overall than the 7 outfielders included: Ruth, Aaron, Mays, Ted Williams, Cobb, Mantle, and Dimaggio? He might belong with the second teir of Mantle and Dimaggio but I don't think he is/was necessarily better than any of those listed. Homeruns are not everything in baseball. On a side note of the outfielders mentioned only Cobb and Williams didn't win a World Series (This list would include Bonds)
Posted By : B.C. Barnes

Steroids is illegal in the United States for peopl...

Message posted on : 2006-10-11 - 15:55:00

Steroids is illegal in the United States for people who do not need it. That I think should be a good enough reason for it to be banned. AAs I believe CASEYCRO pointed it, there is a fine line between going to normal, and going to supernormal.
Also why does everyone forget that Bonds admitted to using steroids. He just said that "he didn't know what it was".

Posted By : Anonymous

Former Georgetown University men's basketball coac...

Message posted on : 2006-10-11 - 16:03:00

Former Georgetown University men's basketball coach Craig Esherick was a graduate of the Georgetown University Law Center. Given the play of the Hoyas while he was coach, it was clear that GU Law doesn't teach "basketball plays and the law" or "how to win, rather than lose, a game in the closing moments (and the law)."
Posted By : Michael McCann

Luis, I fully agree with you. But fans not always ...

Message posted on : 2006-10-11 - 16:03:00

Luis, I fully agree with you. But fans not always change their behavior after their favorite team was penalized. Yes, this way helps. But I think that every situation has at least two (or more) solutions.
Posted By : Olga B.

I tend to disagree with caseycro's description of ...

Message posted on : 2006-10-11 - 16:18:00

I tend to disagree with caseycro's description of laser eye surgery as a return to some kind of normal state. The normal state is deterioration, not perfection. I had Lasik, and as a result, I have far superior vision than I ever had. There was no return to "normal." It leapfrogged normal.

But that's just anecdotal. The point is, though, that laser surgery allows people to halt normal -- to halt the deterioration of their faculties that surely plagued other generations. And forget about the past -- Lasik gives batters an advantage over their contemporaries who have not had the surgery. Moreover, there is every reason to believe that better vision would be even more helpful to a batter than bigger muscles.

Also, caseycro's argument seems to suppose that steroids do something that is abnormal. They don't. It is not abnormal to grow muscle. In fact, it is not abnormal to grow lots of it. It's simply rare. While some of us who are not blessed with a particular natural chemical makeup have a tougher time pursuing this "normal" body than do others, the final product of steroid use is no more "abnormal" than the vision of the Lasik patient who was not blessed with genetically superior eyes and now can have them. Caseycro's argument for Lasik can therefore be used to justify steroid use.

Posted By : Collin

Why these substances and methods are in prohibited...

Message posted on : 2006-10-11 - 16:30:00

Why these substances and methods are in prohibited list? You need to ask the question to WADA or other anti-doping structures, which compose the prohibited list. Of course, there are some important reasons for it. May be we even don't know about these reasons. I think that there are 2 aspects of prohibition. Both were discussed above. First, the advantage of one sportsman in comparison with others. Second, using prohibited substances and methods are very harmful to man's health.
Posted By : Olga B.

One misconception here--baseball had banned steroi...

Message posted on : 2006-10-11 - 16:32:00

One misconception here--baseball had banned steroids in, I believe, 1991 when it adopted a drug policy that proscribed the use of any illegal substances. Steroids have been illegal in the United States since prior to 2002. Although steroids were not named specifically by baseball, the ban by reference would be adequate to label Bonds or anyone else a "cheater" by the letter and spirit of MLB's rules since the early 1990s.
Posted By : Anonymous

Rick Neuheisel had a law degree from USC. He was ...

Message posted on : 2006-10-11 - 16:50:00

Rick Neuheisel had a law degree from USC. He was the former Washington and Colorado head football coach. He is now the quarterbacks coach with the Baltimore Ravens.

Like Quinn Snyder, the degree did not help him avoid NCAA snactions. As a husky, I know this all too well.

Posted By : bingisser

In response to Collin: While your Lasik sur...

Message posted on : 2006-10-11 - 17:22:00

In response to Collin:

While your Lasik surgery gave you vision far better than you ever had - it didn't give you super-human vision. It gave you excellent vision - but vision that is within normal limits for humans. Arguably, your vision prior to Lasik was below normal - and so you would have been competitively disadvantaged

Steriods do do something completely abnormal - they allow someone to gain muscle mass, recover from athletic competition, and train, at levels that are completely abnormal. This isn't a "rare" phenomenon - it's a completely unnatural phenomenon. If this weren't true, we wouldn't be having this conversation. Barry Bonds was a work-out freak prior to his alleged steroid use - and yet his physique and performance changed markedly only after steroid use. Consequently, the steriod-induced change he experienced could be characterized as abnormal for his physiology. I'm sorry, but if you believe that the muscle mass found on the typical Mr. Universe contestant is "normal" - you're sadly mistaken.

Posted By : Caseycro

Former Cal Bears and Arizona Wildcats tennis coach...

Message posted on : 2006-10-11 - 17:54:00

Former Cal Bears and Arizona Wildcats tennis coach Bill Wright has a JD and practiced law before coaching. I was the graduate assistant coach for the men's tennis team at University of Washington while in law school there and learned about Coach Wright's background while speaking with him during an Arizona-Washington dual match. Interesting career track...
Posted By : Ryan Rodenberg

I always found it ironic that the one MLB manager ...

Message posted on : 2006-10-11 - 18:03:00

I always found it ironic that the one MLB manager with a law degree (La Russa) is the one with the worst reputation as far as ordering his pitchers to throw beanballs.
Posted By : Rick Karcher

Collin, I'm sorry. You are simply out of your mind...

Message posted on : 2006-10-11 - 21:02:00

Collin, I'm sorry. You are simply out of your mind. You must have never used steroids or you must never have known someone to use steroids or even better you must have truly never seen someone that you don't know use steroids. They are ANABOLIC steroids. They not only accelerate muscle growth, they rush the recovery time at inhuman speeds. Forget all your philosophy buddy: you are blabbering on about this and that and have no true knowledge of the effects of these potent drugs. Yes, drugs. They are designed to create abnormal growth whether you opine differently big guy.
Posted By : Anonymous

Not really a coach or manager, but Hall of Famer 4...

Message posted on : 2006-10-11 - 21:25:00

Not really a coach or manager, but Hall of Famer 49er Steve Young did law school during the offseason
Posted By : Chirs

Gary Bettman, Paul Tagliabue, David Stern BUT NOT....

Message posted on : 2006-10-11 - 21:55:00

Gary Bettman, Paul Tagliabue, David Stern BUT NOT.......SELIG
Posted By : Anonymous

I must have missed something here . . . if schools...

Message posted on : 2006-10-11 - 23:45:00

I must have missed something here . . . if schools or the NCAA set a standard, it does apply equally to everyone.

EVERYONE.

That, to me, is true equality--not "except for (fill in the blank) because of (fill in the blank) reason[s]".

Or did I miss something in all the debates over ADA, school admissions, who can and can't play sports, etc.?

Melvin H.

Posted By : Anonymous

"Gary Bettman, Paul Tagliabue, David Stern BUT NOT...

Message posted on : 2006-10-12 - 02:31:00

"Gary Bettman, Paul Tagliabue, David Stern BUT NOT.......SELIG"

Finally a point in Bud Lite's favor!

Posted By : John Salmon

I think that Joe Paterno from Penn State has a JD....

Message posted on : 2006-10-12 - 08:05:00

I think that Joe Paterno from Penn State has a JD.
Posted By : Anonymous

Nice Public Enemy reference Geoffrey! In a ...

Message posted on : 2006-10-12 - 10:47:00

Nice Public Enemy reference Geoffrey!

In a related note, Rick Karcher's office number at the law school is Room 411. No word yet on whether he did that in an effort to demonstrate that he is the preeminent source of information on campus. :)

Posted By : ChapelHeel

I always found it ironic that the one MLB manag...

Message posted on : 2006-10-12 - 10:50:00

I always found it ironic that the one MLB manager with a law degree (La Russa) is the one with the worst reputation as far as ordering his pitchers to throw beanballs.

Rick, you find those two things inconsistent? :)

Perhaps LaRussa did poorly in Professional Responsibility, and on the MPRE.

Speaking of which, wouldn't you love to know what his grades were?

Posted By : ChapelHeel

According to Wiki, Paterno had planned to go to la...

Message posted on : 2006-10-12 - 11:26:00

According to Wiki, Paterno had planned to go to law school after a brief stint as an assistant coach, but never did.
Posted By : Geoffrey Rapp

Former Auburn University head football coach Terry...

Message posted on : 2006-10-12 - 11:44:00

Former Auburn University head football coach Terry Bowden has a J.D. from Florida State.
Posted By : Anonymous

Former law school classmate and diehard Cubs fan B...

Message posted on : 2006-10-12 - 11:48:00

Former law school classmate and diehard Cubs fan Bryan Stroh tells me that former Cubs GM (now special assistant to the GM) Ed Lynch also has a JD, from the University of Miami School of Law.
Posted By : Michael McCann

Anonymous, as a high school and college ath...

Message posted on : 2006-10-12 - 13:23:00

Anonymous, as a high school and college athlete...yes, I did see plenty of steroid use and abuse. I even reported some of it. And I stand by what I said, because it's not philosophy, "buddy", but the simple truth: that Lasik and steroids do the same thing in different ways.

Caseycro: yes, my vision is not superhuman -- but it's better than 20-20 (well, it was for five years, I think it's slipped since then). But then, the strength of someone on steroids is not superhuman either, not by any reasonable definition of the term. It is at the high end of human ability, sure, but it is still well within the range of human capability. "Normal" does not mean "average." Does steroid use put an already genetically gifted athlete beyond the reach of other mere mortals? Absolutely. It's abnormal in the sense that that specific person would likely not have achieved that same level of muscle mass, but it is not supeprhuman.

The genesis of this argument in the original post was the position that this puts contemporaty players with respect to the old timers. In this respect, Lasik is exactly like steroids. If DiMaggio had Lasik, what would be the record for hitting streaks? Indeed, I'd argue that the only baseball records in danger from steroids are those to do with home runs. RBI records, hitting streak records, batting average, pitching, stolen bases, etc., all of these are subject to numerous other conditions on the field and in the capabilities of the player. Steroids may play a part, but in most of these, the player's eyes play a greater role.

Look, I'm not arguing for steroids. I'm not arguing against them, true, but I'm certainly not arguing for them. They are illegal, as one of the anonymous' pointed out, and have been for a long time. There's lots of non-performance-enhancing drugs that a player can use that'll get him kicked out of the sport. Any sport. What I'm saying is this: to make the argument that steroids in and of themselves make a mockery of the game, you need to do better than "it turns normal people into the unholy spawn of Superman and Spiderman!" Harold is right in that "normal" is a mutable construct, and efforts to situate an argument by using "normal" as a baseline are pretty much doomed.

Posted By : Collin

Didn't Ditka go to Yale Law and clerk for Thurgood...

Message posted on : 2006-10-12 - 13:29:00

Didn't Ditka go to Yale Law and clerk for Thurgood Marshall before a stint in the U.S. Attorney's Office convinced him to return to football? Or am I thinking of Tom Coughlin?
Posted By : Collin

Collin: My whole point is that the results of ster...

Message posted on : 2006-10-12 - 14:48:00

Collin: My whole point is that the results of steroid use ARE NOT "well within the range of human capability", as you argue. If humans were capable of that level of muscle development and recovery without steroids, we wouldn't be having this debate. Barry Bonds on the finest performance-enhancing diet and most scientifically sound workout regime WOULD NEVER develop the muscle mass of Barry Bonds on steroids - never!
It's also why the winners of "natural" body building contests are never as large as the abnormally large winners of standard body building contests.

Furthermore, we know that steroid-induced muscle mass is "abnormal" because of the joint and tendon injury issues that typically develop in steroid abusers because of "abnormal" forces across the soft tissue and joint structures caused by "abnormal" muscle mass and levels of resistance during training - levels they WOULD NEVER be able to handle if they weren't using steroids.

And if you agree that steroid use puts a person "beyond the reach of mere mortals", haven't you made my point?

Posted By : Caseycro

This being the "Sports Law Blog" I find it interes...

Message posted on : 2006-10-12 - 15:18:00

This being the "Sports Law Blog" I find it interesting that especially in this article, you neglected (willingly) to mention any references to "precedence".

First and foremost, beyond any sport rule book, IT IS AGAINST THE LAW! IT IS NOT LEGAL! (Doctors notes excluded)


The fallback arguement is less about those from the past (as they too could have used them) as much as it's about those who choose to obey the law and play as the spirit of the sport intends, which is, bring all the you (and only yourself has to bring) - I'll bring mine, and the best man will win. When steroids are introduced, the man cheating brings a bench player while the other meets the challenge head on. The terms coward/Peter Pan syndrome come to mind.

As far as eye-surgery's go... it's not any other improvement that the guy already had wearing glasses in the first place. And Greg DID wear glasses but mostly wore contacts. Get the facts straight.

HGH, Andro, etc are in the same bucket.. the "meaningful difference" isn't justified, rather the (knowingly) strong Baseball Players Union was able to keep that off the negotiating table. You should be asking, "why hasn't the union OFFERED these things to the banned substance list?" -- Simple, the union knows that there are too many guys using this right now which would put them out of the game, not by violation, but because those things keep them from the minors.


Back to precedence, the spirit of sport and competition is about fair play (hence rules). Rules are there for those who don't have the integrity within themselves to play for the competition, the betterment, etc. To those who excuse onfield behavior by coining the phrase "If you're not cheating, you're not trying"... you know who you are, you should be ashamed to think you belong being mentioned in the same breath as Montana, Mayes, West, Robinson...

Posted By : M Jackson

If I argue that steroid use puts one beyond the re...

Message posted on : 2006-10-12 - 15:19:00

If I argue that steroid use puts one beyond the reach of mere mortals, then no, I have not made your point. As I said, there's a differnece between "normal" and "average." Barry Bonds, Lyle Alzado, Sammy Sosa, etc. were already beyond the reach of mere mortals before they juiced.

And the fact is that humans are capable of the kind of development without steroids -- you just have to be a particularly genetically gifted human. It's not within the range of everyone, but then neither is being able to pick up the spin of a slider and distinguish it from the spin of a fastball.

Posted By : Collin

What better point do u you need to make against Co...

Message posted on : 2006-10-12 - 17:14:00

What better point do u you need to make against Colin that presteroids, they werent hitting that amount, and during the steroid period they were. I think that is evident enough taht it was beyond there reasonable ability.
Posted By : Anonymous

M Jackson:

I did not neglect (willingly or ...

Message posted on : 2006-10-12 - 20:15:00

M Jackson:

I did not neglect (willingly or otherwise) to mention precedenT. If you look at the original post, my question was "why should they [steroids] be prohibited." In other words, what justified the ban on steroids and what was the basis for making them illegal? The answer to that question cannot be "it's against the law." Rather, the question requires us to figure out why steroids are different than other advancements.

Posted By : Howard Wasserman

Michael, this reminds me of the domestic abuse tri...

Message posted on : 2006-10-12 - 20:48:00

Michael, this reminds me of the domestic abuse trial of Warren Moon, when he physically assualted his wife. She refused to press charges, but under Texas law (where they resided at), prosecutors automatically pressed charges on Moon for battery, whether Mrs. Moon wanted to file them or not.

During the trial, as the prosecutor presented his case, Moon and his wife were seen smirking, to the point of laughing because they felt the trial was a waste of time. That is equally as embarrassing as Myers being let go. It continues to be a sad legacy that domestic abuse continues to leave in it's wake.

Posted By : Anonymous

Howard, I know this doesn't really answer ...

Message posted on : 2006-10-12 - 21:56:00

Howard,

I know this doesn't really answer your pilosophical question, but WADA does have an allegedly rational basis for deciding what goes on the prohibited list. A substance (or method) is prohibited if it meets two of the following three criteria:

1) it's performance-enhancing
2) it's bad for your health
3) it's contrary to the "spirit of sport"

I know that's got a few holes in it -- a few more of my thoughts here

Posted By : Anonymous

Howard: Your post of 10/12/06 is right on p...

Message posted on : 2006-10-12 - 22:10:00

Howard:

Your post of 10/12/06 is right on point.

It is not a question if steriods are legal or not (we know the answer to that) but should they, along with other technological advances, be ruled out of bounds?

I favor as much freedom as possible, without hurting others.

If I may, I believe this is one of your main points in broaching this issue.

I do not mean to put words in your mouth but this discussion is long over due and your post is helping nring this topic to light.

Very "interesting" post!!!

Posted By : Richard Mock

Everybody knows that Al "The Mad Hungarian" Hrabos...

Message posted on : 2006-10-13 - 00:18:00

Everybody knows that Al "The Mad Hungarian" Hrabosky has a JD from Northwestern, made Law Review, clerked for Byron White, and tried criminal cases on days when he knew he wouldn't be pitching.
Posted By : John Salmon

The belief by some that MLB banned the use of ster...

Message posted on : 2006-10-13 - 01:01:00

The belief by some that MLB banned the use of steroids by MLB players in 1991 is simply false. Both Fay Vincent's 1991 and Bud Selig's 1997 Steroids Policy Letters only applied to personel in baseball not subject to the Collective Bargining Agreement which means that the only players effected where minor league players not yet on their Major League Team's 40 man roster. These policy statements could not and did not have any effect on MLB players because the off field behavior of MLB players can only be regulated thru the CBA.

In addition even the 2002 CBA prior to the 2003 season did not really ban steroid use during the 2003 season but rather just did some annonymous testing to determine if it was a problem that justified banning in 2004 and beyond.

What this all really means is that any MLB player (including Barry Bonds) that may have used steroids prior to and including the 2003 season did not cheat (break any of baseball's rules that applied to them.

In addition, the arguement the steroid use was against US Law even if it wasn't against MLB's rules for MLB's players is also false. Under this arguement it would then have been OK for a player to train and use steroids in the off season in the Dominican Republic where steroid use is still legal but cheating for a player to train and use steroids in the off season in the US. Clearly this arguement is just silly.

Posted By : giantsrainman

I believe the answer is that there is a discernabl...

Message posted on : 2006-10-13 - 08:48:00

I believe the answer is that there is a discernable pattern among athletes to commit violent crimes that you just don't see among members of the marching band. And, of course, the head of the marching band doesn't face the same pressure to win (whatever that means in a marching band context), and therefore isn;t as inclined to allow students charged with a violent crime to continue to participate. And finally, name one member of the Ohio State marching band. Exactly. So, not sure marching bands represent their schools to the same extent as football programs.
Posted By : john

Is there any empirical demonstration that athletes...

Message posted on : 2006-10-13 - 10:00:00

Is there any empirical demonstration that athletes are statistically more likely to commit violent crimes than the rest of the university community, marching band or otherwise? What evidence is there of a "discernable pattern" of violent crimes, beyond anecdotes and media stories? I have never seen such a study. Does anyone know?

In any event, it sounds as if some members of the Wisconsin band got pretty rowdy at Michigan a few weeks ago.

And while I cannot name one member of the Ohio State band, I also cannot name one member of the Grossmont College football team. This law applies to more than just the famous athletes at the top D-IA football schools. Below that level, fame is not a divider.

Posted By : Howard Wasserman

I wont root for a school if there marching band ha...

Message posted on : 2006-10-13 - 10:15:00

I wont root for a school if there marching band has dirty players on it. Sure they can sing, but they are sex abusers and drug users and I just cannot tolerate it. While I am being sarastinc, you understand the double standard. At the same time, there should be equal priviledge standards. I am a big advocator of equal punishments for athletes and "mathletes" but you must realize why the fans dont care about "matheltes"
Posted By : Anonymous

It seems odd to have to explain the ethics of litt...

Message posted on : 2006-10-13 - 10:45:00

It seems odd to have to explain the ethics of little league but here goes. Violation of the participation rule is clear. Every tournament team coach understands this and the penalty is forfeit. It does not matter if it is intentional or an accident. An accident is very possible if you have ever coached youth sports. That, of course, does not make it acceptable.

The important issue here is making a mockery of the game which is addressed in Little League tournament policy. You cannot ask your team to intentionally lose a game to 'win' by another team's forfeit for violation of the participation rule. This would be to strike out or pitch erratically for the purpose of losing. This is in violation of the Little League pledge.

The penalty for making a mockery of the game is much more severe than a simple forfeit. It is alleged that the New Hampshire coach was in the process of intentionally losing the game to end the game and force the participation rule violation on the Vermont team. The Vermont coach recognized this and responded by attempting to force a tie to extend the game so his player could participate according to the rules.

What a mess. If media reports are correct and they were there to watch it, then the New Hampshire coach violated the mockery policy of Little League which is the ethical transgression. Reports from the field are that the Vermont team may have satisfied the participation rule if the New Hampshire team had 'played their best' as dictated by the Little League Pledge. At worst, both teams violated the pledge. The best course of action would have been for the Vermont coach to play it out as they planned and protested the actions of the New Hampshire coach prior to the umpires leaving the field. As it stands, the only one punished was Vermont. In truth, both teams should have been disqualified and the most severe punishment should have been handed to New Hampshire for instigating the mockery and setting an example to the boys that it was acceptable because they 'won' and made the big trip to Williamsport. This situation occurs with regularity in Little League and unfortunately the ethics suffer all too frequently at the hands of the officials. Please excuse the pun but Little League dropped the ball on this important ethical challenge.

Posted By : Anonymous

I've never been a fan of call review by instant re...

Message posted on : 2006-10-13 - 11:49:00

I've never been a fan of call review by instant replay. Officials are as much a part of any sporting event as the athletes; quarterbacks throw interceptions, pitchers throw wild pitches, nobody is challenging those plays. Mistakes are an integral part of the human experience. Sports are a part of that experience; we should accept mistakes and get on with the game!
Posted By : gblakney

Why aren't athletes protected by the 4th amendment...

Message posted on : 2006-10-13 - 12:36:00

Why aren't athletes protected by the 4th amendment? Most of them play in stadiums that are owned by the public.

And aren't those that play in Canada protected from unwarranted searches at any level, be it from public or private industries?

Posted By : Anonymous

Anonymous:

What examples do you cite that t...

Message posted on : 2006-10-13 - 13:33:00

Anonymous:

What examples do you cite that they are not protected?

Posted By : Richard Mock

What this law appears to indicate is that lawmaker...

Message posted on : 2006-10-13 - 14:29:00

What this law appears to indicate is that lawmakers do not trust sports coaches and school administrators to mete out sufficient or appropriate punishment to student athletes.

There may be several reasons for this

- Competitive drive may prevent coaches from barring integral players from high profile contests.

- The coaches or administrators do not want to be seen as excessively punitive in fear of driving away prospective students.

- Like we see with academic controversies, there is the inclination to treat athletes differently from other students, absolving them of responsibilities outside the sporting arena.

Why should the California Assembly be addressing this? Shouldn't this be governed by the NCAA?

What this shows me is not that there is a bias against athletes, although I believe a bias against athletes does exist, but rather that, if this kind of legislation is necessary, then the NCAA is an extremely weak institution in need of significant reform.

Posted By : Satchmo

Actually, there are studies measuring the frequenc...

Message posted on : 2006-10-13 - 14:34:00

Actually, there are studies measuring the frequency of violent and sexual crimes by male athletics versus the general population. And there is a higher incidence among male athletes.

Howard may have missed my point about the Ohio State marching band member. It was simply that football and basketball players, as a rule, have a higher profile than band members or chess club members, etc., regardless of the level of competition (NFL, college, junior college, high school). I don't think there's any disputing that. But the other point, and one that Howard didn;t address, is that coaches of athletic teams are under different kinds of pressure than band coaches, and that can lead to skewed decisions as to participation.

Posted By : john

Good post. Can you imagine if these guys are on th...

Message posted on : 2006-10-13 - 15:45:00

Good post. Can you imagine if these guys are on the juice, too, and have "abnormal" or super-human (Spawn-like) strength and now have sticks on skates?
Posted By : Anonymous

Some random thoughts: I think Judges do get...

Message posted on : 2006-10-13 - 16:12:00

Some random thoughts:

I think Judges do get sanctioned when they get it "wrong." They get overturned on appeal. Talk to any trial or appellate judge, and they'll tell you - being overturned is punishment to them.

Also, insofar as punishment preventing further mistakes - I think this is probably more analogous to criminal law rather than civil, in that sometimes punishment is the point, whether or not the punishment deters further incidents. Plus, it makes those who were "wronged" feel better. Which I guess falls under retribution, another idea borrowed from the criminal arena.

Posted By : curlygc

Curlygc: First, once a judge's decision bec...

Message posted on : 2006-10-13 - 16:24:00

Curlygc: First, once a judge's decision becomes final (at whatever point that is), the case is over. So while a judge can be reversed on appeal, if there is no appeal, the case ends and the judge's rulings stand. Since there is no process of "appeal" of a football game that undoes the outcome, the judgment is "final" when the clock shows 0:00. Baseball has a limited appeals process, but it does not apply to judgment calls.

Second, while I know judges do not want to get reversed, reversal on appeal does not in any way compare with being suspended or removed from the job. Under a scheme of an independent judiciary,j udges expect to occasionally be reversed on appeal once in a whie; they do not expect to lose their judgeship.

Posted By : Howard Wasserman

Professor Wasserman: Excellent points. This is ...

Message posted on : 2006-10-13 - 16:56:00

Professor Wasserman:
Excellent points. This is why you're the law professor, and I am a county attorney who graduated solidly in the middle of my class.

I guess my point, for what it's worth, is that in my perhaps limited and provincial experience, judges are hesitant and they do err, because they are afraid of getting overturned - which they see as a punishment when it occurs.

But rarely if ever do they lose their jobs, which is your point and I get that.

Posted By : curlygc

A suggestion : Have the players wear clear plastic...

Message posted on : 2006-10-13 - 18:01:00

A suggestion : Have the players wear clear plastic goggles to protect their eyes.

Not so many years ago barely any players ever wore helmets. Now I think they all do as I believe it's a league rule. Adopt a rule for mandatory wearing of goggles.

As for the new curve with the sticks...I like it if it's going to increase control of the puck, thereby increasing scoring.

Posted By : Dave Burkey

This is a classic example of greed vs. prudence. ...

Message posted on : 2006-10-13 - 18:48:00

This is a classic example of greed vs. prudence. The reason why the NHLPA undervalues its workplace safety regulations is due to the fact that its voting members are, due to the composition of teams, majoritarily A) non-goalies (who obviously disapprove of any pro-goal scoring measure) and B) forwards. Forwards and many offensive defencemen stand to make considerable amounts of money during free agency if they can score even a few more goals a season.

If the NHLPA was a responsible union, it would point out to its members that A) blinded hockey players do not command high market value and B) that MOST offensive players would similarly benefit from such a change which, in effect, means that all increases in goal-scoring would be but relative.

Of course, one may argue that the NHLPA has repeatedly shown that really doesn't care if members are hurt as long as it doesn't affect the bottom line.

Posted By : Jason Chung

One last point, related to what curlygc said.

Message posted on : 2006-10-13 - 20:19:00

One last point, related to what curlygc said.

One thing that makes sports different is that a decision can be, in an objective sense, wrong. The replay showed that the ball was touched on the onside kick before it traveled 10 yards and the officials' decision otherwise therefore was incorrect in every sense.

But the same is not necessarily true with law. The fact that a trial court judge's decision is reversed on appeal does not necessarily mean the judge was wrong. It only means the appellate court had a different view. That view controls because one view has to prevail (the old adage about the Supreme Court: "We are not final because we are infallible; we are infalllible because we are final.") But that does not mean the trial court judge's decision was not the "better" approach.

I know many a trial court judge who still believes her decision was correct, no matter what the higher court says.

Posted By : Howard Wasserman

Can you be more specific about the punishment Carl...

Message posted on : 2006-10-13 - 22:31:00

Can you be more specific about the punishment Carlos and Smith underewent?

No offense, but that sounds like hyperbole.

Posted By : John Salmon

Thanks for the insight into Peter Norman. When I w...

Message posted on : 2006-10-13 - 22:51:00

Thanks for the insight into Peter Norman. When I was a kid I had a collage of pictures from Sports Illistrated on my bedroom wall. This was one of the pictures in the collage. Funny, I can't remember ever thinking of the third guy on the podiums. Now I know.

Cheers!

Rob

Posted By : Anonymous

As I said in the original post on the subject and ...

Message posted on : 2006-10-13 - 22:53:00

As I said in the original post on the subject and as the article to which I link here says: They were kicked out of the Olympic Village (and thus kicked out of Mexico) and banned by the USOC from Olympic Competition (a ban that apparently remains in place today). That, I think, qualifies as a form of punishment (the concept is not limited to imprisonment). They also apparently received death threats and had an apparently hard time moving forward with their lives--which counts, I think, as being "ostracized."
Posted By : Howard Wasserman

Jay Bilas was an assistant at Duke for a while, an...

Message posted on : 2006-10-14 - 02:53:00

Jay Bilas was an assistant at Duke for a while, and got his law degree from Duke at the same time.
Source: http://www.mvalaw.com/AttDetails.php?id=19

Posted By : Milbarge

Could not agree more with what Satchmo said! Forge...

Message posted on : 2006-10-14 - 08:14:00

Could not agree more with what Satchmo said! Forget all the other "high brow" commentary. Oh, and don't forget it's all about money one way or another.
Posted By : Anonymous

Might not be a bad idea if the only service that a...

Message posted on : 2006-10-14 - 09:50:00

Might not be a bad idea if the only service that an agent provided was salary negotiation. I suppose agent-client services could still exist separate and apart from any salary negotiation component but at greatly reduced fees thereby eliminating any incentive for an agent to provide such services.
Posted By : Anonymous

Three things as to the Fourth Amendment:

Message posted on : 2006-10-14 - 09:52:00

Three things as to the Fourth Amendment:

First, I doubt the concept of state action extends so far that the mere fact the team plays in a publicly owned arena makes it a state actor for purposes of dealing with its employees. While I agree that playing in public ballparks imposes some constitutional limits on teams (see the post and comments on regulating fan speech), I think it is limited to how the team operates the park, not much else.

Second, courts have held that random drug-testing programs do not violate the 4th Amendment under what has come to be called the "special needs" exception. So I doubt the testing program violates the 4th Amendment--at least so long as the ban on steroids for which MLB is testing is a valid one, which was my original question.

Third, and in any event, it really does not matter whether testing would violate the 4th Amendment because the MLBPA agreed to the program, essentially waiving whatever 4th Amendment objection the players might have. But it could be that part of why MLB does nothing without the union's OK is, in part, a 4th Amendment concern.

Posted By : Howard Wasserman

Steroid use is cheating because:

Message posted on : 2006-10-14 - 10:56:00

Steroid use is cheating because:

1. It costs money and some athletes cannot afford;

2. States cannot trust each other and the "spirit" of competition is undermined in an arms race, so to speak(USSR, GDR, etc.);

3. Use of steroids has turned some women into men; (oh, if you don't believe me? Go here: http://www.amg-lite.com/?view=http://www.muscleladies.org/NicoleP/Pics/Nicole2103.jpg (that's from diet and nutrition I'm so sure)

4. Use of steroids sends the wrong "message" to the youth of today ("win at all costs"; "end justifies the means"; "do what you have to do to win");

5. Public's confidence in what is real and what is not is shattered (so, are the races rigged? are the games rigged? who do I bet on?);

6. Government cannot control production, distribution, regulation, and therefore tax!; and finally...

7. The medical profession's proclamation that the latest "disease"....not ADHD.....but IED (Intermittent Explosive Disorder) may be enhanced by the use of steroids therefore the concept of "road rage" might turn into demolition derby on the various American roads leading to serious injury, illness or even death. Therefore, the "cheating" turns into a public health issue.

Posted By : Anonymous

For more on the events in 1968- read Frank Murphy'...

Message posted on : 2006-10-15 - 12:41:00

For more on the events in 1968- read Frank Murphy's fine new book- The Last Protest- Lee Evans in Mexico City. It focuses on Lee Evans who won the 400 meters and how he dealt with the IOC.
Posted By : Craig K

What types of agent-client services are you referr...

Message posted on : 2006-10-15 - 17:57:00

What types of agent-client services are you referring to? Most legitimate services are in addition to, and billed separately from, the contract negotiation services (i.e. legal services, endorsements, investment planning, etc.), and these services would not be performed by the unions under my proposal. Granted, agents also perform the "babysitting" services, like sending a player cleats when he forgets to take them with him on a roadtrip, and these services are included in the agent's commission fee (but clearly are not worth that much). You raise an excellent point: If you take out the commission component, it would eliminate any incentive for agents.
Posted By : Rick Karcher

All the more reason to conduct criminal background...

Message posted on : 2006-10-15 - 18:14:00

All the more reason to conduct criminal background checks for theses "student"-athletes at Miami. Half the team would be ineligible.
Posted By : Anonymous

A) I don't understand the above comment.

Message posted on : 2006-10-15 - 20:05:00

A) I don't understand the above comment.

B) I'm somewhat shocked that Miami hasn't already been disqualified for post-season play. I'm fairly certain South Carolina and Auburn(?) had a brawl a few years ago and neither accepted a bowl bid though they were otherwise eligible.

Posted By : Josh

Josh, go here: http://www.msnbc.msn.com/id/7160258...

Message posted on : 2006-10-15 - 20:15:00

Josh, go here: http://www.msnbc.msn.com/id/7160258/site/newsweek/

Also, it was South Carolina and Clemson.

Posted By : Anonymous

Comment #3 (Anonymous) - There's nothing in your l...

Message posted on : 2006-10-16 - 00:21:00

Comment #3 (Anonymous) - There's nothing in your link that suggests that half the Miami team would be ineligible.
Posted By : Satchmo

Howard, FIU does not play Alabama next week.

Message posted on : 2006-10-16 - 06:52:00

Howard, FIU does not play Alabama next week.
Posted By : Anonymous

Anonymous, I don't mind you expressing your...

Message posted on : 2006-10-16 - 08:59:00

Anonymous,

I don't mind you expressing your opinion on my blog, but if you feel the need to take it to a personal level with other commentators, take your comments elsewhere. Thanks.

Posted By : Rick Karcher

strictly speaking, this incident puts FIU on the m...

Message posted on : 2006-10-16 - 09:07:00

strictly speaking, this incident puts FIU on the map. .

the joe schmoe's of the world will look at Miami's reputation and figure it was their fault. they were "picking on" the smaller school and, on top of that, FIU suspended more people even though it appeared that both schools were equally at fault.

any legal sanctions outside the lines of sport? do things change when police officers are involved?

Posted By : Anonymous

The endorsement side is where the real money is, s...

Message posted on : 2006-10-16 - 11:31:00

The endorsement side is where the real money is, so I'm not sure your solution would solve the majority of problems out there. The Reggie Bush situation, for example, dealt solely with the endorsement side. And since his marketing agent isn't even registered with the union, there's nothing they can do.
Posted By : john

Pinella speaks Spanish (sort of) and Lyons says ...

Message posted on : 2006-10-16 - 12:15:00

Pinella speaks Spanish (sort of) and Lyons says "I don't understand him, and I don't want to sit too close to him now."

That could certainly be interpreted as Lyons saying he doesn't want to sit next to Pinella because he is speaking Spanish. If that is what he meant then yes, that is offensive.

But when you add in the "hablaing" and the "I still can't find my wallet", I think its clear that Lyons was basically saying - "I don't know what this guy is talking about, he sounds a little bit crazy, I don't want to sit next to a crazy person". Of course I guess that is offensive to crazy people anyway.

Posted By : Joe A.

During the radio broadcast of the "Brawl" over the...

Message posted on : 2006-10-16 - 13:26:00

During the radio broadcast of the "Brawl" over the weekend, Lamar Thomas (analyst) said that after the game the teams should meet outside and take care of business. Let's see: Steve Lyons is insensitive and gets FIRED but Lamar Thomas promotes violence and criminal misconduct on the air, and he is just fine. Nothing to worry about. Hmmmmmm. I wonder why?????
Posted By : Anonymous

I'm pretty sure Northwestern did not play in the R...

Message posted on : 2006-10-16 - 14:24:00

I'm pretty sure Northwestern did not play in the Rose Bowl in 2006 ...
Posted By : Anonymous

I think the good professor must have lost a decade...

Message posted on : 2006-10-16 - 14:55:00

I think the good professor must have lost a decade somewhere. No problem -- happens to the best of us.

Northwestern played in the Rose Bowl in 1996, not 2006. I was there in my purple as well. Friggin' Keyshawn Johnson...

Also, I feel old now, since you seem to have graduated a year behind me at NU. And I ain't no professor or nuthin'.

Posted By : Collin

John, Thanks for the comment.

Message posted on : 2006-10-16 - 18:42:00

John,

Thanks for the comment. First, there is a very small number of players that get "real money" by way of endorsements. In fact, most of the first rounders in all sports don't make a lot by way of endorsements. Most of society has never even heard of the number one draft pick in baseball each year. Nor have they ever heard of the first rounders in football, with the exception of one or two players. Secondly, the union can and does regulate agents in the context of their endorsement activity if the agent also negotiates player contracts, and most of them do both (Bush's marketing guy is an exception). I see a lot more problems as a whole that flow from the player contract side of things than from the endorsement side.

Posted By : Rick Karcher

Thomas is far from off the hook about his comments...

Message posted on : 2006-10-16 - 19:08:00

Thomas is far from off the hook about his comments just yet, so let's not go opening that can of worms.
Posted By : Anonymous

anonymous #1 to anonymous #2: read this http://spo...

Message posted on : 2006-10-16 - 19:33:00

anonymous #1 to anonymous #2: read this http://sports.espn.go.com/ncf/news/story?id=2628184

Rumor has it that the firing came after a sports law blog posting. There is hope.

Posted By : Anonymous

Let me try this again

Message posted on : 2006-10-16 - 22:31:00

Let me try this again . . .


Hmmmm...Miami in a brawl/on-field melee? What else is new? Can anyone name another football school who has had as many of these fights in games as Miami? Not likely:

** TWO fights against Oklahome (at Norman and at Miami).
** ONE fight at Colorado.
** ONE fight at San Diego State (remember "the Rock" chasing the SDSU mascot up the stairs of the stadium?)
** ONE fight vs. LSU last year in the tunnel at Atlanta.
** ONE fight vs. Florida International last Saturday.
>> Plus "stomping on the Cardinal logo" at Louisville.
>> Wasn't there also an incident a few years back against either Florida or Florida State?

All that in the last 12-13 years.

Anyone else remember one that I missed? Add it in!!

Two words apply here, and would apply if I were Miami president and not the spineless Donna Shalala: "Death penalty"--program dissolved, start from ground zero. Tomorrow.
Failing that: "Season over"--no more games, all players suspended for the rest of the semester, those swinging, kicking, etc. would be arrested.

Enough is enough. One-game suspensions aren't enough. No bowl game wouldn't be enough.

End the program.

NOW. Start all over again--with CLASS.

Thoughts?

Melvin H.

Posted By : Anonymous

One more thing: If I were president, before any o...

Message posted on : 2006-10-16 - 22:38:00

One more thing: If I were president, before any of this would happen, I would invite the media in and televise this live. Bring in the players in to, say the basketball arena or somewhere large enough . . . and to their faces launch into the worst tirade those @#$W$#% ever had [long overdue], then take their jerseys, toss them all into a large trash can, kick the can all over the place, and tell them their season's over. THEN I would do some suspensions.

And if "someone's feelings were hurt" . . . TOUGH!! YOU were in the brawl, YOU did all that we saw on our TV screens, now YOU pay the ultimate price for YOUR @$#$ STUPIDITY!!!!

After that, after the former players were escorted out (think of the movie about the principal, Joe Black[?], then I would resign.

WHEW--that felt good and I am not even Miami's president!! :-)

Melvin H.

Posted By : Anonymous

Since when was the Golden Age about everyone winni...

Message posted on : 2006-10-17 - 07:27:00

Since when was the Golden Age about everyone winning? The Golden Age was jus amazing years of baseball, or so I thouhgt. I always thought that dynastys were good because it provided you with a clear overdog to try and beat, whether they won or not. Competitive Balance is important, and there stilll needs to be a salary cap.
Posted By : Anonymous

WAAAAAAA.

Message posted on : 2006-10-17 - 09:44:00

WAAAAAAA.
Posted By : Anonymous

In addition to looking at playoff trips and World ...

Message posted on : 2006-10-17 - 10:34:00

In addition to looking at playoff trips and World Series wins, which payroll does influence to some extent, but certainly does not guarantee, we should look at wins in a season.

There was an excellent article at The Baseball Analysts, and I'd like to quote a section of it.

"Contrary to popular perception, payroll in professional sports is not strongly linked to wins. A $100 million team does not win twice as many games as a $50 million team - not even close. Our own work has shown that only about 18% of a team's regular season wins can be attributed to its payroll.

In other words, more than 80% of a team's regular season record cannot be tied to team spending. We would add that this is what we see when we look at teams in Major League Baseball from 1988 to 2005. In other words, the lack of a link between spending and wins is not a recent phenomenon. Across time more spending is not an elixir that leads automatically to success on the field. As the saying goes, games are not won on paper. Moreover, they are not won just because you spent a pile of paper."


One of the reasons I like studying baseball so much is that you can really get a good look at the strategies governing a team's baseball operations through player development, offseason spending and trades.

We may despise Jeffery Loria's actions as owner of the Marlins, but we also have to applaud Larry Beinfest's ability to trade for and utilize young talent.

That said, I agree with the first commenter regarding the "Golden Age" - a large part of it is due to the exciting postseasons we've had, the influx of young, talented players who hit the ground running, and the increased efforts to market the game differently.

Posted By : Satchmo

If you go to an Ivy League school, does that guara...

Message posted on : 2006-10-17 - 10:57:00

If you go to an Ivy League school, does that guarantee you that you will do better than everyone else. No, but it does give you a better chance. That is all this proves.
Posted By : Anonymous

Daria, what is your argument

Message posted on : 2006-10-18 - 09:41:00

Daria,

what is your argument-

that employment disputes are per se inarbitrable under Russian law

or that because it is subject to "natural" appeal--unlike most arbitrations, the Russian Hockey arbitration is not actually an "arbitration" within the meaning of the New York Convention?

Posted By : Anonymous

But a high payroll in baseball, eg. the yankees, m...

Message posted on : 2006-10-18 - 09:56:00

But a high payroll in baseball, eg. the yankees, might mean that you field a highly competitive team much more than lower payroll teams. The Yankees are competitive every year. While some teams with low payrolls are not, like the tigers (once every 20 years). There are some low payroll teams that are fairly competitive every year like oakland and minnesota, but the Yankees are competitive (for a division title) every year and in the playoffs EVERY year.
Posted By : tommie

Help. A general inquiry: Would anybody out there ...

Message posted on : 2006-10-18 - 10:24:00

Help. A general inquiry: Would anybody out there care to share an idea for an interesting law review topic??? I'm in desparate need of finding one and I can't see myself writing about anything other than sports.
Posted By : Anonymous

I don't think Lyons was fired for this comment. I...

Message posted on : 2006-10-18 - 13:28:00

I don't think Lyons was fired for this comment. I think it was a totality of the circumstances argument instead. I will say that I thought the apology for the digital camera comments seemed sincere, well said and I was actually pretty impressed. I have to admit that I didn't even realize what Lyons was saying with the whole hablaing espanol thing. It all kind of passed over me while I was watching the game. Just more reparte between broadcasters. I don't think that comment, in and of itself, was noticeable or particularly insensitive. BUT, I do think if you have to continually worry about what might come out of his mouth, who he might offend next, and it seems to be a chronic issue....you might be better off cutting bait. And I'm sure it isn't fair across the board, and i'm sure there is some sliding scale as to who can get away with saying what. That's just life. One person gets deference, the other gets fired. I think Lyons' prior acts came back to haunt him here. He still keeps his Dodgers broadcasting job, though.
Posted By : robin

thanks for the insite. My question is why are othe...

Message posted on : 2006-10-18 - 20:32:00

thanks for the insite. My question is why are other sites still up and operating. I was a long time player of partypoker and recently switched to full tilt. Many players on full tilt are commenting on how they are recent transplants from partypoker, so while partypoker suffers, other sites have gained an increase in players. Is full tilt waiting the 270 days before the law is implemented before shutting down?
Posted By : Anonymous

you have to be very careful. baseball has a lot o...

Message posted on : 2006-10-18 - 22:09:00

you have to be very careful. baseball has a lot of apologizing to do. having idiot announcers is not one of them. there apparently is not enough announcers to go around. any sport i watch has someone who says things or has no idea what to say so they just babble. don't fill space with whatever
Posted By : Anonymous

What was the issue sportsbetting.com (?) was froze...

Message posted on : 2006-10-19 - 09:28:00

What was the issue sportsbetting.com (?) was frozen? I have friends with several thousands of dollars still trapped; however, with the promise of future refund.
Won't there always be a way around direct American deposits (i.e. depositing moneys via neteller, or any number of third party financial resources).

Posted By : Anonymous

Well, the players did issues apologies, so maybe t...

Message posted on : 2006-10-19 - 10:17:00

Well, the players did issues apologies, so maybe their misconduct was out of the ordinary. Try this link, for example http://www.signonsandiego.com/sports/college_football/20061018-0845-fbc-miami-brawlfallout.html
Posted By : Anonymous

I really won't be sorry to see poker off ESPN 2. ...

Message posted on : 2006-10-19 - 12:28:00

I really won't be sorry to see poker off ESPN 2. It will make room for the real sports that they used to show like world's strongest man, lumberjack competions, demolition derbies, car rolling and pro putt putt. I have missed these since poker starting taking over the off time slots.
Posted By : ziggyz

This is really an excellent post. The article said...

Message posted on : 2006-10-19 - 13:55:00

This is really an excellent post. The article said that he has to attend "sensitivity training" as a condition of his next opportunity. Always nice to follow up on a story like this and nice to see Lyons gets a second chance.
Posted By : Anonymous

I agree with Tracey. I grew up with Byron, he liv...

Message posted on : 2006-10-20 - 11:20:00

I agree with Tracey. I grew up with Byron, he lived about 50 feet down the road from my house, and we even played sports together regularly. It truly is difficult where we come from to be successful. As a matter of fact, most people drop out of college and work dead end jobs after they graduate. Byron always went above and beyond. Not only was he our star athlete at Cahokia High School, but he was an outstanding student as well. Naturally, when I heard that he made it into the big leagues, I was ecstatic. No one deserved it more in my opinion. Though he was only there a short time, just to have been able to experience that must have been awesome. I'm proud of him, and I know wherever life takes him from here he will succeed. Congratulations Byron! Hope to see you again soon.
Posted By : Aaron Jones

Why not - like Solomon and the baby, like the endl...

Message posted on : 2006-10-20 - 19:02:00

Why not - like Solomon and the baby, like the endless splinters of the True Cross - cut the ball in two? Give half to the Hall of Fame, and let the kid keep the other.

Unlike the baby Solomon targeted for splitting, the ball could well survive the process. It's not like the ball is going to be used again, is it?

Posted By : Collin

Congratulations Michael and all. A very informati...

Message posted on : 2006-10-21 - 11:40:00

Congratulations Michael and all. A very informative site that takes a look at another side of sports rather than just on field play.

I look forward to "reading" this site in the future.

Posted By : Richard Mock

Please help settle a dispute on this topic.

Message posted on : 2006-10-21 - 13:13:00

Please help settle a dispute on this topic.
Two posters in the Lions Fan Forum are disputing that the NFL has an age limit.
One poster says that the NFL was able to circumvent the LAW's of states that prohibit "age discrimination" when the NFLPA agreed to the age limit clause as part of the collective bargaining agreement.

Another poster says it is NOT an age limit and that there is no loophole. Here is his argument.

"No ... labor unions are also violating the law if they agree to a discriminatory practice. There's no loophole.

The NFL does NOT have an age discrimination rule. It requires a player be 3 years out from when he ordinarily would have graduated high school.

The Clarett challenge wasn't concerning age discrimination. Instead, it tried to attack the rule on the basis of antitrust: teams acting in collusion to come up with a rule that prevents him, an adult, from making a living in his chosen field. That rule can be fine if just one company/employer does it -- but he challenged whether it was lawful if 32 teams work together and impose the rule. The involvement or acquiesence of the union was apparently one issue in the NFL's favor. But -- again -- that was with respect to ... an ANTITRUST claim.

Not ... an age discrimination claim.

Warning to the NBA: if they eventually implement an age rule -- as has been reportedly contemplated at times in the past-- it WILL violate Michigan law -- and the law of some other states. But -- again -- tying the rule to high school graduation or whatever -- rather than directly to age -- has been consistently viewed by courts as cleansing the rule of being age-based.


The reach of the weight prohibition in employment has not really been tested much in the courts. But in age discrimination, Michigan courts have viewed the statute as saying what it says: you can't discriminate based upon age. It rejected the notion that this provision was intended to protect only against discriminating based on "old" age. Nope --- that statute says "age" --- so "age" cannot be a lawful or legitimate consideration in an adverse employment decision -- even young age (for an adult). That much has been made clear in Michigan courts.

Whether they would read the weight discrimination portion of the same statute so literally is unknown. But, on its face, the statute prohibits weight discrimination -- and that prohibition extends to unions.

The statutory sections (Michigan Compiled Laws -- Elliott-Larsen Civil Rights Act):

37.2202 Employer; prohibited practices; construction; nonapplicability.

Sec. 202.

(1) An employer shall not do any of the following:

(a) Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status.

(b) Limit, segregate, or classify an employee or applicant for employment in a way that deprives or tends to deprive the employee or applicant of an employment opportunity, or otherwise adversely affects the status of an employee or applicant because of religion, race, color, national origin, age, sex, height, weight, or marital status.

(c) Segregate, classify, or otherwise discriminate against a person on the basis of sex with respect to a term, condition, or privilege of employment, including, but not limited to, a benefit plan or system.

(d) Until January 1, 1994, require an employee of an institution of higher education who is serving under a contract of unlimited tenure, or similar arrangement providing for unlimited tenure, to retire from employment on the basis of the employee's age. As used in this subdivision, 'institution of higher education' means a public or private university, college, community college, or junior college located in this state.

(2) This section shall not be construed to prohibit the establishment or implementation of a bona fide retirement policy or system that is not a subterfuge to evade the purposes of this section.

(3) This section does not apply to the employment of an individual by his or her parent, spouse, or child.





37.2204 Labor organization; prohibited practices generally.

Sec. 204.

A labor organization shall not:

(a) Exclude or expel from membership, or otherwise discriminate against, a member or applicant for membership because of religion, race, color, national origin, age, sex, height, weight, or marital status.

(b) Limit, segregate, or classify membership or applicants for membership, or classify or fail or refuse to refer for employment an individual in a way which would deprive or tend to deprive that individual of an employment opportunity, or which would limit an employment opportunity, or which would adversely affect wages, hours, or employment conditions, or otherwise adversely affect the status of an employee or an applicant for employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status.

(c) Cause or attempt to cause an employer to violate this article.

(d) Fail to fairly and adequately represent a member in a grievance process because of religion, race, color, national origin, age, sex, height, weight, or marital status.

A link to the site is here:

http://mb14.scout.com/flionsfansfrm1.showMessageRange?topicID=80905.topic&start=21&stop=28

Please let me know your thoughts.

raddyeric@yahoo.com or you can answer directly at the site by posting a response.

thanx so much.

Posted By : Anonymous

I also live in Iowa where certain private/parochia...

Message posted on : 2006-10-21 - 14:30:00

I also live in Iowa where certain private/parochial schools dominate athletics year in and year out. Can someone give me an example of how Illinois or another state uses multipliers? What is the "magic number" and how is that established?
Posted By : Anonymous

Richard, Thank you for your kind remarks an...

Message posted on : 2006-10-21 - 23:05:00

Richard,

Thank you for your kind remarks and also your excellent comments to our posts.

Posted By : Michael McCann

That ball belongs to Jon Fenlon and there should b...

Message posted on : 2006-10-22 - 12:28:00

That ball belongs to Jon Fenlon and there should be absolutely no litigation regarding its owner. A Solomonic decision won't cut the ice. JON, as I have told you in not a few freep.com, hang on to that previous gift the angels directed towards you.IT'S YOURS TO HAVE AND TO HOLD.
BLESS YOU AND BLESS THOSE BOYS!

Posted By : Rev. Richard M. Mackowski, s.j.

Isn't the Section 1 claim against the NHL based on...

Message posted on : 2006-10-22 - 15:50:00

Isn't the Section 1 claim against the NHL based on its refusal to deal with the Russian clubs with respect to transfers of players under contract? It seems there could be a claim here in that the NHL is engaging in a group boycott of Russian clubs. I'd make an analogy to ketchup produces that agree to refuse to deal tomato growers for the first X number of days after the tomato harvest. Then, when the growers are desperate and have to sell because their crop is about to spoil, the ketchup producers can swoop in and get a bargain. The NHL group boycott is eve worse because they've agreed not to negotiate until the players frees himself from his contract, which leaves his team with nothing at all.

You're quite right that it's not an antitrust violation to agree not to negotiate with players under contract, but the claim is that the NHL teams are refusing to deal with the teams that have those players under contract, which is different.

Of course, if the NHL teams were considered a single entity, section 1 would be irrelevant, but we've had that discussion before.

Posted By : PK

Message posted on : 2006-10-22 - 16:53:00

This comment has been removed by a blog administrator.
Posted By : Rick Karcher

PK, Thanks for the comment.

Message posted on : 2006-10-22 - 16:55:00

PK,

Thanks for the comment. Your ketchup example is definitely a violation of Section 1. But this is different because the Russian hockey league, unlike your tomato growers, is in competition with the NHL.

So change the facts. Let's say, instead of tomato growers, another ketchup producer sues a group of other ketchup producers claiming a Section 1 violation because those other producers refused to COLLECTIVELY enter an agreement with it regarding the hiring (or non-hiring) of its employees. Let's say that the other producers got together and said, "it doesn't make sense for us all to agree to this because we can legally hire this producer's employees if we want upon the expiration of their employment contracts, and it just doesn't make sense for us economically to do this collectively as this one producer wants us to do." And then after that meeting breaks, one of those ketchup producers (i.e the Penguins) goes and hires one of the plaintiff's (i.e. Metallurg's) employees under an existing employment contract (i.e. Malkin). There's no agreement to restrain trade by the ketchup producers in that situation. And I think that's all that can be said by the NHL not entering into a transfer agreement. But if the NHL told the teams to go solicit and sign Russian players under existing contracts with Russian teams, then you'd have a different case.

While there's an argument that can be made under Section 2, that's a loser as well I think. To me, this is an interference with contractual relations case against the individual NHL teams, and that's it.

Posted By : Rick Karcher

I think the claim is different than you're describ...

Message posted on : 2006-10-22 - 21:51:00

I think the claim is different than you're describing. The claim is that the NHL teams agreed that they would not collectively negotiate with Russian teams AND they agreed that no individual NHL team would bargain with Russian teams. It's the latter agreement that would be a section 1 violation, not the agreement not to bargain with the Russian clubs as a group.

Oh, and I agree that there clearly seems to be a tortious interference claim here.

Posted By : PK

I live in Napa California and was following LIVE S...

Message posted on : 2006-10-23 - 00:34:00

I live in Napa California and was following LIVE SPORTS from BYU. I went from comcast to Dish about 5 years ago through the Deseret Book Store because I wanted all the programing that comes from BYU. All of a sudden, in the middle of this season, following girls volleyball, soccer and football, we can not get it anymore. How would you like to watch sports that are 10 years old? That is like watching news that is 10 years or older! PLEASE, I WANT the Live broadcast back! From the comments that I hear at church, there are a lot of people that feel thIS way. We are trying to figure out, do we all cancel our dish and go to comcast? or cancel both? I HAVE contacted the Dist Network and they seem to not know anything about this. Many of us from California subscribed to the Dish Network because it was advertised that we could see these programs and that is the only reason we changed from comcast to the dish network. HELP, we want to see the live programing and hopefully pick back up following the teams that we have been watching all fall. HELP, HELP, HELP
Posted By : Anonymous

But there's no restraint on trade. In your tomato...

Message posted on : 2006-10-23 - 07:54:00

But there's no restraint on trade. In your tomato example, the agreement restricted the grower's ability to sell tomatos. The alleged refusal to negotiate with the Russian hockey league is not restricting the Russian league or teams from competing. The Russian league is not prevented or hindered from competing with the NHL or NHL teams with respect to players already under contract with Russian teams or those that are not under contract.

With respect to those players not bound by contracts with Russian teams, Russian teams compete with the NHL teams over signing those players, which is healthy competition (Russian teams just can't or don't want to pay them as much as NHL teams).

And with respect to those players bound under contract with Russian teams, NHL teams can't legally solicit and sign those players, so why is it an antitrust violation for the NHL to refuse to negotiate a transfer agreement to sign those players? Basically, the Russian league is irritated that the NHL teams are paying their players more money -- that's not a restraint on trade and not a Section 1 antitrust violation. [If anything, maybe the transfer agreement is a restraint on a free market for players' services.] If Russian teams have rights under existing player contracts, it can't be an antitrust violation when a third party refuses to enter an agreement to purchase those assets (that would be terrible precedent). Russian teams can enforce those player contracts against the players and sue third parties for interfering with those contracts.

Posted By : Rick Karcher

You state: "If Russian teams have rights under exi...

Message posted on : 2006-10-23 - 11:32:00

You state: "If Russian teams have rights under existing player contracts, it can't be an antitrust violation when a third party refuses to enter an agreement to purchase those assets (that would be terrible precedent)." Of course that's right, but that's not the claim. The claim is that the NHL teams have agreed among themselves not to allow any individual team to negotiate transfers. So it's not just that a third party won't buy your asset, it's that a group of third parties have collusively decided to engage in a group boycott of your products.

In short, Russian teams have assets - players under contract. The NHL teams have agreed among themselves not to boycott those assets. As a result, the Russian teams are injured.

Posted By : PK

Sort of interesting that the Russians didn't file ...

Message posted on : 2006-10-23 - 14:08:00

Sort of interesting that the Russians didn't file a claim against Malkin's agent (CAA), too, under a tortious interference theory. Wouldn't surprise me if they are added later.
Posted By : john

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Message posted on : 2006-10-23 - 16:50:00

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Posted By : Vicoprofen

PK,

If true, that would mean that the NHL c...

Message posted on : 2006-10-23 - 17:59:00

PK,

If true, that would mean that the NHL could never say no to anybody! If I have a truckload of hotdogs and call the NHL to enter an agreement with me for the purchase of my hotdogs by the NHL teams, then the NHL better negotiate or else it's an agreement to restrain trade by the individual teams under Section 1?

John,

You could be right, I hadn't even thought about that.

Posted By : Rick Karcher

Congratulations on the recognition you and your te...

Message posted on : 2006-10-23 - 18:37:00

Congratulations on the recognition you and your team so richly deserve.
Posted By : IntrinsicBent

Kudos on a most worthy blog Professor McCann et al...

Message posted on : 2006-10-23 - 20:20:00

Kudos on a most worthy blog Professor McCann et al. And kudos to the vibrant community of commenters who keep this site so great.
Posted By : Jason Chung

Six comments:

1) can foreign plaintiffs mak...

Message posted on : 2006-10-23 - 20:43:00

Six comments:

1) can foreign plaintiffs make use of US antitrust law to complain of conduct which is felt abroad? I know that US plaintiffs can use US antitrust laws against extraterritorial conduct and foreign defendants, but might there be a limitation that harm be felt within this country?

2)the NHL is terrified by the prospect that they might be felled by an antitrust suit (as are other professional sports). As a consequence, it tries to settle these cases where possible--as in 1985 with Purina concerning the sale of the St. Louis Blues. What Magnitogorsk is trying to do is to get the NHL to stop flashing the green light to North American agents to use the labor code argument to induce Russians to leave their team mid season.

3)it is true that the NHL is prohibitting its members from negotiating individually with Russian teams, but this is similar to a labor union. The union prohibits its individual members from negotiating directly with management--it would seem that some labor or collective group exemption might apply to the antitrust claim.

4)still, the antitrust claims are only half the game--and as it seems to be are being used just to make the NHL "think about it." The other half of all of this are the individual actions against Mikhnov, Tara-whatever in Calgary, and Malkin, wherein Magnitogorsk is trying to enforce Russian PHL arbitration awards to enjoin their play. This is a question of the New York Convention, and it seems to me--regardless of Daria's past comments--that there is no valid reason from failing to enforce these things. That being said, I think there are grounds for defending these claims, and it is unlikely that Magnitogorsk will get preliminary injunctions on them in the next 30 days. Rather, I think if Berkovich sees this thing through all the way, he can get a permanent injunction for the term of the contracts as in force.

5) I have researched whether the tortious interference claims have merit. I think the NHL will rely on the Kozlov or Samsonov precedents from the late 1990s, where the Red Wings/AHL relied on the claim that they believed their Russian players to have been not under contract, and hence because there was no subjective intent to interfere with valid contractual relations, there could be no tortious intereference. Here there is a more than plausible argument that the Russian labor code article 80, entitles the Russian players to leave upon two weeks notice. With this argument, the teams can claim a good faith basis for their action, and escape liability on this count.

6) with regard to how compelling the article 80 argument is, it should be known there is a pending statutory amendment before the Duma that the labor law (article80) should not apply in the context of the Russian sports law. If the article 80 argument was garbage, why would Russia's parliament be trying to overturn the very loophole it is said to create?

Ben

Posted By : Anonymous

Ben:

The labor exemptions to the antitrust ...

Message posted on : 2006-10-23 - 20:56:00

Ben:

The labor exemptions to the antitrust laws protect union conduct. Assuming the NHL is not a single entity, they do not have similar protection.

Rick: You must carefully state who is agreeing on what. My claim isn't that the NHL as an organization can't say "Go negotiate with individual teams." That is not the issue. The issue is whether NHL teams can agree among themselves to boycott a product. This is not Russian teams going to "the NHL" whatever that means, and demanding a global transfer agreement. It's a Russian team approaching an NHL team, and that individual NHL team refusing to consider negotiating because of an agreement it has with other NHL teams to boycott the Russian teams products.

Posted By : PK

Ben,

Thanks for the comments. The labor ex...

Message posted on : 2006-10-23 - 23:40:00

Ben,

Thanks for the comments. The labor exemption is not applicable because the alleged restraint affects a party outside the collective bargaining relationship and the alleged restraint did not arise out of collective bargaining negotiations.

PK,

The complaint alleges that the NHL teams "were directed and instructed that they were free to sign NHL contracts with Russian hockey players under contract with Russian hockey clubs should the Russian hockey players secure 'releases' pursuant to Russian labor law." The complaint also states that the NHL did this in order to play "hardball" when the Russian league and the NHL did not come to terms after good faith negotiations on a transfer agreement.

I just don't see the Section 1 violation. The NHL teams are not required under any law to compensate Russian teams when they sign their players, and without a transfer agreement in place they are not contractually obligated to compensate Russian teams. The only reason NHL teams paid transfer fees in the past is because there used to be a transfer agreement in place between the NHL and Russian hockey league that provided for such fees to be paid. How can there be any problem with the NHL's telling the teams that they don't have to pay or negotiate transfer fees to Russian teams when they are not legally required, or contractually obligated, to do so? All the NHL did was say, "If you're going to sign Russian players, just make sure the players get valid releases from those contracts in accordance with Russian law first."

Posted By : Rick Karcher

"with regard to how compelling the article 80 argu...

Message posted on : 2006-10-24 - 03:23:00

"with regard to how compelling the article 80 argument is, it should be known there is a pending statutory amendment before the Duma that the labor law (article80) should not apply in the context of the Russian sports law."

It has been already withdrawed.
But there is a pending amedmend to the "On phisical culture and sport in the Russian Federation" law, which stipulates a one year (!) walk out notice.

Posted By : daria

1. Employment disputes are per se inarbitrable und...

Message posted on : 2006-10-24 - 03:38:00

1. Employment disputes are per se inarbitrable under Russian law.
2. The Russian Hockey arbitration panel is not actually an "arbitration" within the meaning of the russian law, hence its awards are not binding.

Posted By : daria

Rick:

I have not read the complaint. I'm ...

Message posted on : 2006-10-24 - 09:01:00

Rick:

I have not read the complaint. I'm just going off what I've read secondhand. If the complaint merely states that the NHL teams were signing players that may or may not be free agents under Russian law, then I agree there is no Section 1 violation.

Question: Does the NHL team require its teams not to bargain with Russian clubs over players that the Russian team has under contract? If so, that would be the Section 1 violation to which I referred and that is the Section 1 claim the Russian clubs should bring if they can.

Posted By : PK

Congrats to you all for this well-deserved recogni...

Message posted on : 2006-10-24 - 09:22:00

Congrats to you all for this well-deserved recognition!

Katrina Robinson

Posted By : Anonymous

Two threads here:

re Russian law
Regardl...

Message posted on : 2006-10-24 - 09:41:00

Two threads here:

re Russian law
Regardless of which amendment is being used to fix the loophole existing between the Labor Code and the Sports Law, are we in agreement that a loophole exists nonetheless?

That tomorrow--because of insufficiencies in Russian law--the entire roster of Khimik, Avantgard or whoever, can technically get up, send in letters of resignation, and 14 or 15 days later be in Philadelphia, significantly improving the playoff prospects of the Flyers?

Now regardless of whether this is 100% true or merely "likely," based on this, the NHL (teams) lack the subjective intent to interfere with contracts necessary to give rise to a tortious interference claim. Moreover, with regard to the arbitration awards, this makes their legitimacy more dubious for a US court--I agree though that review on the merits though is not a basis for vacating an arbitration award.

re antitrust
does it make any difference that the plaintiff in this case is foreign and the harm he is claiming is entirely foreign as well? My cursory knowledge of the F. Hoffmann-LaRoche Ltd. v. Empagran S.A. (2004) suggest it does. There the Supreme Court found that victims injured by a worldwide price-fixing conspiracy could not bring suit under U.S. antitrust law because they suffered no injuries dependent on effects on the domestic U.S. market. In this case, no one before the court claims a U.S. injury. Therefore, perhaps the appropriate action might be an antimonopoly suit before a Russian arbitrazh (commercial)court. That being said, perhaps Russian antimonopoly law does not have extraterritorial application. In that case GATT?
Still, if this kind of thing was truly actionable, would it not have happened long ago, involving US Japanese baseball, or European countries in soccer? I think that, while interesting, this [antitrust] case needs to be recognized as merely a pressure tactic by Magnitogorsk, not something that has a legitimate chance at success. The real event is the arbitration enforcement.

Posted By : Anonymous

A recent NY Times article (last Thurs or Fri) disc...

Message posted on : 2006-10-24 - 10:34:00

A recent NY Times article (last Thurs or Fri) discussed Ticketmaster lobbying the states to outlaw resales of tickets among fans (through e-Bay, etc.), and to allow Ticketmaster to have the exclusive portal for fans to resell tickets (with fees paid to Ticketmaster, of course).

Two states, Connecticut and another one (can't remember) have adopted the legislation already, according to my memory of the article.

Posted By : ChapelHeel

Didn't Empagran deal with no US injury and no US c...

Message posted on : 2006-10-24 - 11:26:00

Didn't Empagran deal with no US injury and no US conduct? Here, the conduct - agreements among NHL teams, to the extent such agreements exist - occurred in the US.
Posted By : PK

PK,

The answer to your last question is no....

Message posted on : 2006-10-24 - 11:57:00

PK,

The answer to your last question is no. I enjoyed the discussion.

Posted By : Rick Karcher

I can't help but say I've always enjoyed this blog...

Message posted on : 2006-10-24 - 19:11:00

I can't help but say I've always enjoyed this blog and will continue to for hopefully a long time.
Posted By : Ron Jumper

Thank you all for these very kind remarks. You al...

Message posted on : 2006-10-25 - 01:54:00

Thank you all for these very kind remarks. You all share a part in this award, as all of you regularly make great comments, and I think the comments are what brings the readers back. Thank you again.
Posted By : Michael McCann

Congratulations! Your blog is helpful. That's true...

Message posted on : 2006-10-25 - 07:14:00

Congratulations! Your blog is helpful. That's true. I read it every day.
Posted By : Olga B.

Why not? He can go on active police duty and raid ...

Message posted on : 2006-10-25 - 07:22:00

Why not? He can go on active police duty and raid people's homes, even if he has a lot of money and fame. I agree - "that might disorient the defendant and maybe make him more likely to talk to Shaq than other uniformed officers".
Very interesting post.

Posted By : Olga B.

"Can anyone with a lot of money and fame go on act...

Message posted on : 2006-10-25 - 09:37:00

"Can anyone with a lot of money and fame go on active police duty and raid people's homes?"

Shaq went to the police academy to become a reserve officer. He is fire-arms certified and, as of '05, he was only a few hours short of being able to make arrests.

His intentions seem legit. He wants to be a cop after retiring from the NBA, which is certainly respectable for a multi-bazillionaire.

I would go as far to say that he is a professional when going on these raids, and if his popularity, can assist the officers in any way then I'm all for it.

If it hinders the police procedure, then that's another story. It appeared that he just tagged along in this botched raid.

But, yes, I would certainly agree that random famous people shouldn't have privileges to get involved with police procedure.

Posted By : Adam W.

i'll take opinions...

shaq is hard to miss....

Message posted on : 2006-10-25 - 09:50:00

i'll take opinions...

shaq is hard to miss. if he was there at the raid then the guy will recognize him.

if he sues for emotional distress, can he go after shaq's money? the guy said he was "scared beyond description."

The Bedford Sheriff's Office enlisted O'Neal to be the spokesman and public face of its anti-child pornography and child predator campaign, making him a deputy last year. (http://www.usatoday.com/sports/basketball/nba/2006-10-24-shaq-raid_x.htm)

If he's a spokeman and not an "officer" of that police department, then can they separate shaq from the Bedford PD in a lawsuit?

Posted By : Adam W.

i guess they made him a deputy of the department. ...

Message posted on : 2006-10-25 - 09:52:00

i guess they made him a deputy of the department. does my question still apply?
Posted By : Adam W.

police raids get "botched" all the time, so what? ...

Message posted on : 2006-10-25 - 11:25:00

police raids get "botched" all the time, so what? Whether the Shaq daddy was there or not it would have happened, this story sounds rather sensationalized...I would venture to say that more raids will get jacked up in the future, it just goes with the territory and job description...if Shaq wants to work in law enforcement more power to him...
Posted By : Anonymous

Side question... When these raids go wrong in such...

Message posted on : 2006-10-25 - 15:32:00

Side question... When these raids go wrong in such a horrible way, it usually opens the Police Department up to severe civil liability. People like to sue when they get, you know, arrested for being child pornographers in front of their family when, in fact, they are not. Don't know why that would be, but whatever.

I would think that when folks sue under normal conditions, they include the police officers who participated, but their real target is the Department. Maybe they can't even sue the officers individually -- I don't know.

But here you have a case where the reason it's in the news nationwide is because of Shaq's involvement. In other words, his presence at the scene of a botched raid made this poor guy become todays face of child porn. If Shaq hadn't been there, it would've been bad enough, but now? Wow.

So the question is, in a case like this where an individual officer's presence is the key reason for additional humiliation above and beyond the "oops...sorry" kind, can the guy go after Shaq individually?

Offhand, I'd say no...but I'm not quite sure why.

Posted By : Collin

Message posted on : 2006-10-25 - 19:28:00

This comment has been removed by a blog administrator.
Posted By : M Jackson

If you try to make the case (which I don't agree w...

Message posted on : 2006-10-25 - 19:31:00

If you try to make the case (which I don't agree with) that the player has ownership of it because his effort put value behind it... then the player would also be liable for damages incurred by said fan in the event that a bat/ball impacts a fan.
You might argue back that the fan releases all liablity by the purchase of the ticket and assumes all risk (which is also bunk), but that is only to the stadium and team owners.

To take it an extra length, who would Chicago fan Bret Bartman owe damages to for trespassing when he interupted play of the homerun/or fielded ball during the playoffs.

I think that in the end... street rules apply -- "Finder's Keeper's... Loosers Pay"
http://www.marcajackson.com/

Posted By : M Jackson

I personally like letting the marketplace do its t...

Message posted on : 2006-10-26 - 13:28:00

I personally like letting the marketplace do its thing. Let's assume the real goal is preventing clearinghouses from buying up all the tickets and reselling them at a higher cost, thus skewing the market. Can't we come up with better ways to address this than arbitrarily limiting someone's right to sell their property?

And while I can't say I blame the Tigers for exploiting this loophole, it does seem unfair that they have a legislatively-created monopoly around this market now.

Another option for working around this might be for the Tigers to set the face value arbitrarily high but sell the tickets to the holders at a "discount". My landlord did something similar for a rent-stabilized apartment in NYC - they couldn't get the regulated rent price, so they offered a 15% discount - but preserving the right to later go back to that higher price.

And TicketMaster is in my "Axis of Evil". Like the public would benefit at all from giving them another monopoly. (My favorite is that I still have to pay the non-refundable fees for canceled concerts, which works out to be 40% of the ticket price anyway. In other words, they get $40 for a concert THAT NEVER HAPPENED. Someone sick Spitzer on them so they don't have time to go after more monopolies.)

Posted By : Tim Marman

Actually, police reports say that Travelle Gaines ...

Message posted on : 2006-10-26 - 21:36:00

Actually, police reports say that Travelle Gaines was aiding agent C.J. LaBoy of Octagon. Taplin may have also been involved with Mr. Gaines, though.
Posted By : Darren Heitner

I'll be very grateful to people, who tell me, what...

Message posted on : 2006-10-27 - 04:01:00

I'll be very grateful to people, who tell me, what a sports agent mainly does? Why a sports agent can't communicate with an athlete? How it can influence sports agent and athlete? Why such prohibitions exist?
I really didn't catch the whole situation. It seems that we don't have such rules.

Posted By : Olga B.

I don't think that pregnant athletes should be abl...

Message posted on : 2006-10-27 - 12:41:00

I don't think that pregnant athletes should be able to retain their scholarships. What kind of message is it sending out? That you can do whatever you want and there are never any consequences for your actions? That it's okay to be promiscuous because you know that you can keep your scholarship and collect welfare and not be there for the baby who happens to be your responsibility because you're too busy taking classes and competing in sports?
Posted By : Anonymous

Darren,

Thanks for the info. If Gaines is ...

Message posted on : 2006-10-27 - 15:01:00

Darren,

Thanks for the info. If Gaines is introducing multiple agents to student-athletes, I suppose that's better than just steering them to one agent. But I still want to know what justifies any arrest, when there hasn't been any violation (or even close to a violation) of any state laws.

Olga,

There are state laws that govern agent contact with student-athletes (i.e. must be registered with the state, can't enter agreements with students to represent them, and prohibitions on certain contacts with student-athletes). These laws exist because agents are not subject to the NCAA rules that govern student-athletes and collegiate institutions. If you are interested in the NCAA rules regarding use of agents, my article linked on the blog would be helpful to you.

Posted By : Rick Karcher

So how many agents does it take to bust an agent, ...

Message posted on : 2006-10-27 - 16:09:00

So how many agents does it take to bust an agent, anyway?

Do they have a standing unit to monitor these things, or is it the kind of situation where they set up an investigation based on a tip?

Gathering cell phone records, etc.? Honestly, is this an efficient use of resources?

Posted By : Wha?

Gaines had only been employed at LSU since July an...

Message posted on : 2006-10-28 - 13:53:00

Gaines had only been employed at LSU since July and it makes one wonder if he took the job with the intent of luring the players to his agent friend.
Posted By : brandon

This may be mentioned in the Globe obit, but on ES...

Message posted on : 2006-10-29 - 11:36:00

This may be mentioned in the Globe obit, but on ESPN last night they were airing some pieces of Auerbach interviews, and he came out very much against a hard age floor.

His quote was something to the effect of "if they have the talent, let them play."

Posted By : Satchmo

Brandon,

Gaines was apparently introducing ...

Message posted on : 2006-10-29 - 14:35:00

Brandon,

Gaines was apparently introducing players to more than just one agent. Are you suggesting that he was getting paid by the agents? -- because that has not been alleged as far as I'm aware. Maybe he was just inexperienced and didn't know what he should and shouldn't do. But I guess I'm not sure what bearing the length of time on the job has in his being arrested. Introducing players to agents, and even getting paid by the agents if that was in fact going on, is simply not a crime. Gaines is not an agent, and the statute he was arrested under doesn't apply to him.

I'm outspoken about all the problems associated with agent misconduct. The problem is that state laws and NCAA rules are just not effective in resolving these problems. This situation is an example of unwarranted and unjustified enforcement of a state agent regulation.

Posted By : Rick Karcher

LSU didnt have anyone arrested. This is the State ...

Message posted on : 2006-10-29 - 14:48:00

LSU didnt have anyone arrested. This is the State of Louisiana vs. the AC NOT LSU. Those involved at LSU are nothing more than witnesses in the states case. I am not familiar wih how it works in Louisiana but in most states the guy would probably have been indicted by a grand jury before he was arrested.
Posted By : Brian Cuban

Obviously no one knows these young men, their stel...

Message posted on : 2006-10-29 - 15:44:00

Obviously no one knows these young men, their stellar reputations...except maybe some other coaches at LSU. Is this a put up or smoke screen for what has been going on at LSU for a long time?
Posted By : Anonymous

Rick Karcher, thank you for the explanation!
Re...

Message posted on : 2006-10-29 - 16:07:00

Rick Karcher, thank you for the explanation!
Respectfully, Olga.

Posted By : Olga B.

Rick:

I agree that these laws are silly. T...

Message posted on : 2006-10-29 - 18:02:00

Rick:

I agree that these laws are silly. The state should have a better use for its police resources than enforcing NCAA rules. But why isn't the coach guilty of aiding and abetting a violation of the statute?

Posted By : PK

Brian,

It was university police, not the st...

Message posted on : 2006-10-29 - 18:46:00

Brian,

It was university police, not the state. Do you think the police were patrolling campus one day and said, I think I'll check out that house over there for LSU players being introduced to agents? Here's a statement made by the LSU chancellor: "At LSU, we will not tolerate this predatory behavior, and in particular we will not abide those who seek to infiltrate our athletic department." When the LSU athletic dept. speaks, the campus police are going to listen. So yes, LSU had this guy arrested.

PK,

I'm not a criminal lawyer. What are the elements of aiding and abetting? If it requires specific intent to engage in an unlawful enterprise, my guess is that Gaines wouldn't know what the state agent regulations prohibit. Even if it meets the elements, he still shouldn't have been arrested and booked in jail -- that much I know.

Posted By : Rick Karcher

Will (Satchmo),

Thanks for the comment. I ...

Message posted on : 2006-10-29 - 19:02:00

Will (Satchmo),

Thanks for the comment. I didn't see the ESPN piece on Auerbach, but that is interesting that he supported allowing prep players the opportunity to declare for the NBA draft, rather than, like so many of his peers, endorsing a simplistic and absolute age ban. Auerbach always seemed like a bright guy, and one who would rather consider facts than dwell in popular fiction, so I guess I shouldn't be surprised. He was truly a legend and often one step ahead of his time.

Posted By : Michael McCann

Yes, he certainly was ahead of his time and was a ...

Message posted on : 2006-10-29 - 20:54:00

Yes, he certainly was ahead of his time and was a model citizen. As far as popular fiction, well, seems to me that the simplistic and absolute age ban prevails as of today despite his attitude toward the "hard age floor."
Posted By : Anonymous

There has got to be more to this story. I mean, ar...

Message posted on : 2006-10-29 - 20:58:00

There has got to be more to this story. I mean, are you kidding me? A guy is arrested for, uh, sports agent introduction? I mean I know that Louisiana still uses the Napoleonic Code, but please: this is utterly ridiculous. This is either a set-up or a scare tactic. Either way, if you know how LSU works, well, don't put anything past their athletic director if it will a)hurt them financially and b)affect the ability to win games in any sport. There simply has got to be more to this. I wonder if the NCAA has any statement on this? Maybe we will find out more in coming days.
Posted By : Anonymous

Rick, I admittedly have no idea how things are don...

Message posted on : 2006-10-29 - 23:21:00

Rick, I admittedly have no idea how things are done in Louisiana but in general there is not a seperate judicial system for crimes committed within a university structure in the criminal setting. There is a criminal statute violated. It is the state that proceeds. If someone mugs a student on the University of Texas campus and that mugger is arrested by campus police-it is not The University of Texas vs. the mugger. Obviously if the people at LSU dont cooperate the case probably will not go forward BUT they are just witnesses! If the state could make the case without their cooperation they would still proceed if there was an indictment. There are a million different analogies that could be made but hey, if I am wrong, someone tells me how it works in Louisiana.
Posted By : Brian Cuban

I am curious as to the contract implications this ...

Message posted on : 2006-10-30 - 01:54:00

I am curious as to the contract implications this might have on Shaq. Should the Heat be able to stop Shaq from going on such raids? If he were to get hurt outside the scope of basketball what would be the effects? Isn't this just another Roethleisburger (sp)on a motorcylce?
Posted By : James

Rick:

Accomplice liability usually requires...

Message posted on : 2006-10-30 - 09:41:00

Rick:

Accomplice liability usually requires knowingly assisting in the crime or encouraging it. But "knowingly" here does not mean knowing that the conduct is unlawful. All that's required is that you are aware of the conduct you're assisting. In other words, it is enough that the coach knew he was assisting an agent meet players. It is not necessary for the coach to also be aware that that conduct was unlawful.

Posted By : PK

I think the position of "Should we cut the farm sy...

Message posted on : 2006-10-30 - 11:53:00

I think the position of "Should we cut the farm system in half, reduce the number of draft rounds and impose a college draft age rule in return for increased benefits to major league players? Can anybody guess what their answer will be?" would be closer to that of the Union than anything Management wants. Reducing the minor leagues and the mecahnisms for procuring players at that level would undoubtedly free up more money for teams to spend on major league players. Think about it, less money to be sepent on player development and scouting altogether, equals more money to be spent on major league free agents.

Also, I don't think that the Teams would want to give up their monopolistic hold on draft picks by reducing the draft. Although, the elimination of draft-and-follow picks theoretically eliminates the need for teams to draft beyond the 20-30 players they plan on signing throught the draft in any one year.

Posted By : Anonymous

For those interested, I did a reasonably long stor...

Message posted on : 2006-10-30 - 13:01:00

For those interested, I did a reasonably long story on these changes the night the agreement was announced for Baseball America that can be found at:

http://www.baseballamerica.com/today/draft/news/262720.html

I also, just this morning, did a sit-down interview with Rob Manfred and Michael Weiner (two of the main negotiators) together on the draft and minor league changes that will appear in the next issue, and be posted online probably within a week.

--Alan Schwarz
Baseball America.

Posted By : Alan Schwarz

I was under the impression that minor league baseb...

Message posted on : 2006-10-30 - 14:06:00

I was under the impression that minor league baseball players made $18,000 --> $30,000 per year if they were lucky. Am I reading it correctly that if you are a minor league player that you will have a minimum salary of $60,000? If that is correct, does it apply to all levels including A, AA, AAA, etc. or just one level in particular? If it is across the board, well, then I think that the new baseball CBA is NOT worse for minor leaguers.
Posted By : Anonymous

Recess Petition Launched Nationwide
by: WhereDi...

Message posted on : 2006-10-30 - 16:47:00

Recess Petition Launched Nationwide
by: WhereDidRecessGo.com

North Port, Florida

http://www.WhereDidRecessGo.com

Fumed Father launches Web Site Targeting Little Or No Recess In Schools in retalitaion to a note sent home with 1st. grade son stating: "Your son was jittery and loud while in line to go out to recess" so he was put in timeout for 5 minutes.

He became un-controllable and would not calm down.

After questioning his son, Dad found out that his son gets only (1) 15 minute recess a day and that comes at 2:45 (End Of The Day.

Read More: http://www.WhereDidRecessGo.com

RECESS PETITION: http://www.gopetition.com/online/9960.html

Posted By : Ken Goodin

First Anonymous,

Thanks for the comment, an...

Message posted on : 2006-10-30 - 17:08:00

First Anonymous,

Thanks for the comment, and you've demonstrated my point. The answer is that the players would agree to it and the owners would save a ton of money and use the NCAA as a farm system. Not much "bargaining" there, but the 2nd Circuit (Clarett) says that's just fine.

Alan,

Thanks for the reference, and, as usual, it's very informative.

Anonymous,

The $60k is only for the limited number of 40-man roster players sent back down to the minor leagues.

Posted By : Rick Karcher

I wonder if the precedence for messing with the mi...

Message posted on : 2006-10-30 - 17:40:00

I wonder if the precedence for messing with the minor leaguers, colleges, and high schoolers from the new CBA of the NBA which also messed with the non-members of the union.
Posted By : Anonymous

"Reynolds contends that, at the time of the 'brief...

Message posted on : 2006-10-31 - 15:21:00

"Reynolds contends that, at the time of the 'brief hug,' the intern 'never expressed any discomfort' and that she had dinner with him that same evening at a Boston Market restaurant."

HR makes $1 million a year and he takes her to dinner at Boston Market?

Posted By : Anonymous

actually gaines was only aiding laboy.

gain...

Message posted on : 2006-10-31 - 22:09:00

actually gaines was only aiding laboy.

gaines played at utah state, cj laboy's younger brother travis laboy started his career at utah state before transfering to hawai'i.

travis laboy and gaines were good friends, very good friends, so this was gaines doing a favor to his best friends brother.

taplin was there, reportedly just knocking on doors trying to find a certain player, or two, to try and speak with on his own.

Posted By : Anonymous

This news is very interesting. How strong was the ...

Message posted on : 2006-11-01 - 03:03:00

This news is very interesting. How strong was the berating of the coach? For example, in Russia a case may be run against coach or teacher if he/she humiliates CHILDREN (till 18) and brings them physical damage. I'm not sure that it's possible to sue if he/she just shouts. It seems that such situation more likely to be usual.
If team or school are not satisfied with coach's work, they may just discharge this coach.

Posted By : Olga B.

My condolences. It is a pity, when young and talen...

Message posted on : 2006-11-01 - 03:13:00

My condolences. It is a pity, when young and talented people die.
Posted By : Olga B.

Now, this sounds more like the criminal law and sp...

Message posted on : 2006-11-01 - 08:43:00

Now, this sounds more like the criminal law and sports agents, not this LSU thingy: http://www.usatoday.com/news/nation/2006-10-31-cuban-baseball-agent_x.htm
Posted By : Anonymous

I wonder if they were considering heading to Louis...

Message posted on : 2006-11-01 - 12:12:00

I wonder if they were considering heading to Louisiana, too, until that GA got arrested? Personally, this is just too exciting for me: up next will be a network mini-series called "The Agent" and it will portray Sonny and Crocket as fed agents in Miami who go undercover to assimilate into the underground world of sports agency, peformance-enhancing drugs, and illegal immigration...stay tuned...
Posted By : Anonymous

To answer the question, "no" it is not on the rise...

Message posted on : 2006-11-01 - 12:21:00

To answer the question, "no" it is not on the rise. One should note that the individual who make the Mutombo comment is not white. In fact, "after further review, video evidence revealed that the call on the court was the correct call and the ruling stands"--the removal of the fan (as shown on ESPN) did not qualify him as a racist caucasian (visit this professor's blog on the issue which implies that the one making the statement was not a "minority" and the responses below it). Anyway, I thought Lapchick was the expert on this issue, not this professor? Look out, competition for the authority on racism! Anyway, I would love to hear someone actually step up to the plate and actually proclaim that there is only one race: the human race. I suppose that would not make those who have made race a political issue too happy, though. Many people in government would lose jobs, too, and private organizations which are set up to promote racism would file bankruptcy (under the new act, of course, which is also racist)...
Posted By : Anonymous

Of course, racism in politics is another matter al...

Message posted on : 2006-11-01 - 15:47:00

Of course, racism in politics is another matter altogether....http://news.yahoo.com/s/ap/20061101/ap_on_re_us/lawmaker_racist_remark
Posted By : Anonymous

Given the account of the actions taken here, it se...

Message posted on : 2006-11-01 - 20:44:00

Given the account of the actions taken here, it seems pretty clear that at least some immigration laws were "circumvented". However, I find something else interesting here.

The use of the phrase "Human Trafficking" usually implies that the human being trafficked has been taken somewhere for nefarious purposes where they will live out a life of slavery or forced debauchery or something of that nature. The end state for the person being smuggled around is not so good.

These individuals may not have been living like A-List celebrities, but they probably had living conditions that were better than a typical UN Refugee Camp and their life focus was to play baseball which has to be a better existence than a sex-slave.

Interesting use of the language...

Posted By : The Sports Curmudgeon

Definitely an obscure case to be termed "Human Tra...

Message posted on : 2006-11-01 - 22:08:00

Definitely an obscure case to be termed "Human Trafficking."

Do federal statues use the same definition of human trafficking which the UN uses?

"Trafficking in persons" shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;

In this case, the players are definitely being exploited, assuming the agents will recieve funds for representing them. However, I doubt the players are being forced to play, unless there was some agreement that they must play professional baseball in return for the agents getting them into the country.

Posted By : Anonymous

What a shame.

Message posted on : 2006-11-02 - 10:44:00

What a shame.
Posted By : Chad McEvoy

Unless the soccer team is from a certain Ivy Leagu...

Message posted on : 2006-11-02 - 10:56:00

Unless the soccer team is from a certain Ivy League school in New York, I think there's a typo in the headline.
Posted By : Anonymous

Yes, I am going to quibble with an appropriately h...

Message posted on : 2006-11-02 - 16:40:00

Yes, I am going to quibble with an appropriately hedged point that is irrelevant to the subject matter of the post. But that's what happens when blogs and sports meet, no?

Bill Belichick is most certainly not the most "successful" current coach in pro sports. Whether his coaching abilities are unsurpassed is another question for another day.

His Super Bowl wins are impressive (and unmatched), but many people seem to forget his inauspicious 5 years in CLE where he presided over 4 of 5 losing seasons. As a result, I think Mike Holmgren and Bill Parcells need to at least be in the discussion for most successful NFL coach.

On the baseball side, Bobby Cox's teams have come up short in 4 of their 5 World Series appearances, but, shoot, 15 straight divison titles and 5 pennants is not too shabby in its own right.

But we all know where this is going. In my opinion, Phil Jackson -- without debate -- has to be considered the most successful current coach in all of pro sports. Over a period of 11 years coaching, his teams won 9 titles. In 15 years, his teams have posted less than a .670 winning percentage only three times. 15 playoff appearances, winning at least one series in his first 14 (and if Kwame grabs that rebound, all 15). 72 wins in '96. Again, whether each coach's accomplishments should be viewed through the talent they had is another issue, but when it comes to winning, regular season and playoffs, Phil is undoubtedly the King of the Mountain.

Posted By : RPS

2 points --

Apparently this intern wasn't t...

Message posted on : 2006-11-02 - 18:05:00

2 points --

Apparently this intern wasn't that uncomfortable if she had dinner with him that night.

ESPN has a lot of explaining to do. They hired Steve Phillips AFTER he was accused of sexual harrasment. They extended Michael Irvin's contract after he was arrested for a crack pipe.

And most egregious is the actions by Mike Tirico that have been well documented over the years. They must have a standard.

One final point...If they aren't transparent after mediation discussions with Harold Reynold's personnel file they must have made a blunder.

Posted By : Anonymous

Nice catch (for posterity's sake, the post origina...

Message posted on : 2006-11-02 - 20:07:00

Nice catch (for posterity's sake, the post originally read "Columbian"). Snarkasm is appreciated!
Posted By : Geoffrey Rapp

Good post. Sad situation.

Message posted on : 2006-11-03 - 08:12:00

Good post. Sad situation.
Posted By : Anonymous

rumors are swirling that belichick and bonnie bern...

Message posted on : 2006-11-03 - 10:21:00

rumors are swirling that belichick and bonnie bernstein are dating. no facts to back it up. bill belichick...a playa?
Posted By : Anonymous

Brees absolutely has a right of publicity claim. ...

Message posted on : 2006-11-03 - 13:36:00

Brees absolutely has a right of publicity claim. She is using his name and likeness without permission to secure a job for which she will be paid. That is commercial advantage. If she is elected, she will realize a commercial advantage (her salary as an elected official). There is no requirement that there be pecuniary loss to the individula whose name and likeness has been misappropriated.

Your argument, taken to its logical conclusion would allow any politician to use photos of celebrities without permission or compensation in his or her campaign materials.

Posted By : john

Actually, Brees' agent missed a much better and ea...

Message posted on : 2006-11-03 - 14:12:00

Actually, Brees' agent missed a much better and easier way of handling this. He should have had the NFL's licensing arm contact Mom. The picture of Drew in his San Diego uniform, without paying a licensing fee to NFL Properties, is arguably a violation of the NFL's trademarks.
Posted By : Gary

John,

I disagree with your last statement t...

Message posted on : 2006-11-03 - 15:57:00

John,

I disagree with your last statement that the logical conclusion is that it would allow any politician to use celebrities identities. The only benefit for a politician to even use the identity of a celebrity is if they could also say that the celebrity endorses their campaign. This is a unique situation in that, by using Drew's identity, Mina is not saying that Drew endorses her. She is using it and saying, "Drew is my son and I come from a football family that has a strong work ethic, etc. etc." Many would question whether Mina's use here even helps her when running for judge. I actually think it's detrimental -- we should vote for you as judge because your Drew's mom?

But I do see your point that it could amount to a commercial advantage, because it is definitely not necessary that the defendant use the celebrity's identity in an endorsement context (which, by the way, is why the fantasy league case was decided wrong). I'm just not sure that a court would agree that the potential of being elected as a judge in the future constitutes commercial advantage. If she loses then there is no commercial advantage. So then would Drew only have a claim if she wins the election?

Posted By : Rick Karcher

I'm in Austin. I saw the ad run last weekend and ...

Message posted on : 2006-11-03 - 17:11:00

I'm in Austin. I saw the ad run last weekend and it's pretty lame. It is basically his mom saying "vote for me, I'm Drew Brees' mom." I thought it was pretty weak ad at the time, and this was before I saw that Drew objected. If she did link in any of that other football background it was lost in the clear purpose of the message: to identify herself as linked to Brees.

Drew Brees is actually a hometown hero here in Austin, led his high school to a state championship. His mom was clearly was piggy backing this celebrity.

I don't know what that does for the legal analysis but the commercial was a sham.

Posted By : Anonymous

Interesting dynamic of a real year vs. a "sports y...

Message posted on : 2006-11-03 - 20:42:00

Interesting dynamic of a real year vs. a "sports year" (i.e. a season). Here CBS is "out" 8 months of salary--January-August, 2005. I use "out" in reference to those months that Jones was being paid during the offseason and was presumably doing jack squat for CBS. Had Jones been a NASCAR commentator (i.e. season that starts in Feb.) who quit 4 weeks into the season, CBS would have only "been out" a month and change in salary...I presume this will prompt CBS to make some alterations to the language in their contracts for the talent (though I am a little curious as to how they couldnt have predicted this and therefore wonder if there is some reason the language is the way it is)
Posted By : Anonymous

Geoffrey:

Should not CBS have specified a s...

Message posted on : 2006-11-03 - 22:47:00

Geoffrey:

Should not CBS have specified a start date and end date (on a yearly basis) for this contract?

Other ambiguous ( as you pointed out) appear in this document.

Sloppy work gets sloppy results.

Posted By : Richard Mock

Rick:

Even if Texas recognized false light,...

Message posted on : 2006-11-04 - 11:49:00

Rick:

Even if Texas recognized false light, the described use of Drew Brees's name seems to be protected by the First Amendment. All that is said here is that Mina Brees is Drew Brees's mother. While it is likely that many will assume Brees supports his mother's campaign, they would assume that anyway even if his name wasn't in the commercial. To say that the mere mention of his name could be a tortious act is to say that a mother cannot mention the identity of her own children. For example, Mrs. Brees might want to name her children so that her constituents could see how good a mother see was, as evidenced by how nice her children are, etc. Because Mrs. Brees is merely reporting facts, not making claims about Drew Brees's views, I think the commercial would be protected, especially because it's core political speech.

In addition, aren't nominal damages presumed in misappropriation cases? See, e.g., Petty v. Chrysler (2003), 343 Ill.App.3d 815, 826, 278 Ill.Dec. 714, 799 N.E.2d 432 ("A claimant alleging misappropriation of identity need not prove actual damages, because the court will presume damages if someone infringes another's right to control his identity"); accord Town & Country Properties, Inc. v. Riggins (1995), 249 Va. 387, 457 S.E.2d 356; Haith v. Model Cities Health Corp. of Kansas City (Mo.App.1986), 704 S.W.2d 684.

If so, and if the First Amendment did not protect Mrs. Brees's speech, and if TX adopted this position, and if Brees could prove misappropriation, Drew Brees could seek punitive damages if Mrs. Brees continued to run the commercial after being asked to stop, even if Drew suffers only nominal emotional injury.

Posted By : PK

PK,

I agree that Drew most likely loses on ...

Message posted on : 2006-11-04 - 16:43:00

PK,

I agree that Drew most likely loses on the false light (if Texas recognized a cause of action for false light that is). In my post, I said Drew "could" argue that the ad falsely implies that he endorses his mom. But I don't think he would be successful arguing that for much of same the reasons that you stated (see my earlier comment to John).

Posted By : Rick Karcher

Rick --

Right of publicity only requires t...

Message posted on : 2006-11-06 - 10:40:00

Rick --

Right of publicity only requires the image to be used for commercial advantage. It is the intent that matters here. Mrs. Brees intended to use it for commercial advantage, the fact that she might lose, doesn't matter, much like if someone uses Drew image in advertising a product that (ultimately) doesn't sell, it is still a violation of Drew's right of publicity. The relevant inquiry is whether or not the image was used to achieve some sort of commercial advantage (in this case, to win a $100,000/year (or whatever) job).

As for the implied endorsement, you can't convince me that Mrs. Bress wasn;t using Drew's image to imply that Drew endorses her campaign.

Posted By : john

John,

Thanks for the great comments. I und...

Message posted on : 2006-11-06 - 13:05:00

John,

Thanks for the great comments. I understand what you are saying about intent, but I don't see how attempting to get a job amounts to a commercial advantage. Shouldn't the election as judge be the focus -- which is clearly not "commercial" -- as opposed to the salary she will make in return for doing the work as judge after she gets elected? That's just how I see it.

On the endorsement issue, she never said in the ad that Drew supports her. She is saying, "I'm a football person with determination and drive." Candidates show pictures of their families in campaign ads all the time to evidence that they are "good family" people with family values, etc. etc.

Posted By : Rick Karcher

Thanks, Rick. I guess I just don't agree that run...

Message posted on : 2006-11-06 - 13:52:00

Thanks, Rick. I guess I just don't agree that running for the position of judge is not commercial. I mean, would you consider running for President as a commercial activity? Running for U.S. Senate? I think they all clearly fall within the heading of "commercial activity." And given that judges are typically elected to multi-year terms with six-figure salaries, it's a pretty significant commercial endeavor at that(as evidenced by the significant fund-raising done by most judicial candidates).
Posted By : john

I like your description of the list as an example ...

Message posted on : 2006-11-07 - 12:34:00

I like your description of the list as an example of the "sickening sentiment" which surrounds sports jurisprudence. I'd only add that it extends beyond the bounds of jurisprudence, and is a major reason why players consistently need to resort to the courts -- because there are always those who parlay that sentiment into an excuse to curb player rights.

If anyone is interested, I'd say that the best portrayal of this tendency is by John Sayles in "Eight Men Out." But then, those who read this blog are probably the group of Americans most likely to have seen that movie already, so I'll go now.

Posted By : Collin

Having read the paper now, it seems odd that the a...

Message posted on : 2006-11-07 - 17:30:00

Having read the paper now, it seems odd that the author doesn't draw some pretty obvious conclusions from his examination of the list. It seems that he treats the list as more of a jumping-off point to look back on baseball history, but in reading his descriptions of the lives of the players on the list, it becomes ever more apparent why Flood is incorrectly decided. These players who were touchstones for Blackmun seem to emphasize how unjust the system was, so it is doubly odd that Blackmun invokes them apparently in order to create a golden-hued air of springtime around the opinion, the better to slide the objectionable nature of the decision by the unsuspecting reader. A spoonful of sugar, as Mary Poppins sang.
Posted By : Collin

Mike,

Thanks for recommending the article o...

Message posted on : 2006-11-08 - 10:09:00

Mike,

Thanks for recommending the article on Ron Artest. It is an excellent read, and accessible to a layman like me.

Please accept my condolences on Jeff.

Glenn

Posted By : gblakney

I was under the impression that if negotiations we...

Message posted on : 2006-11-08 - 10:30:00

I was under the impression that if negotiations weren't in good faith, Bud Selig could step in and give negotiation rights to another team (with a lower bid). Link


Among other actions that he may deem appropriate and in the best interests of baseball, the U.S. Commissioner shall have the authority to revoke a U.S. Major League Club's exclusive negotiation rights with respect to a Japanese Player (and, subject to the Japanese Club's approval pursuant to paragraph (11) above, to award such rights to the next highest bidder, if any)

There's a lot of vagueness in there, but I could see Selig stepping in if the contract offer is too weak (or indicates that the team never intended to sign him). That's not easy to determine though.

In fact, I wonder if Boras could use it as a negotiation tool (i.e. "come closer to our demands or I call shenanigans and we get Selig to bring in a different team"). Doesn't seem that likely to me, but with all this hype, it would be in MLB's interests to make sure Matsuzaka gets signed somewhere.

Posted By : Satchmo

Having lived in Japan for 9 years, I think that th...

Message posted on : 2006-11-08 - 10:48:00

Having lived in Japan for 9 years, I think that the potential growth of the fan base and media attention that Matsuzaka can generate both in the United States and in Asia (particularly in Japan) is so huge that I don't think the club with the winning bid could afford NOT to negotiate in a good faith. Recently the MLB announced that they are opening an office in China. I think the decision to bring in a caliber like Matsuzaka is perfectly consistent with their international expansion strategy in Asia.
Posted By : sokkichen

In baseball there is no Salary cap, just a luxury ...

Message posted on : 2006-11-08 - 10:50:00

In baseball there is no Salary cap, just a luxury tax, which only the Yankees are paying now, and probably will ever pay therefore a 50 mill. bid and then a low ball offer is still 100 mill. out of the pocket of the owner, and salary cap doesnt ake a difference. That is from the owners side. From the players side, this sucks for him, but then maybe he should just play out his contract in Japan and test the free waters and let the MLB overpay forhim.
Posted By : Anonymous

I agree with your overall point about Boras, but I...

Message posted on : 2006-11-08 - 10:55:00

I agree with your overall point about Boras, but I wouldn't call Jeff Weaver one of the top 3 pitchers available - Clemens, Pettitte, and Schmidt should probably get consideration first, and then I'd take guys like Ohka and Wolf before Weaver.

I know Weaver increased his value dramatically in the postseason, but he didn't elevate himself into the top 3.

And Maddux's stock has dropped quite a bit, although in this thin market, he is one of the top FA pitchers.

Schmidt's not a Boras client, is he?

Posted By : Satchmo

Very interesting stuff. However, I ran over the da...

Message posted on : 2006-11-08 - 19:43:00

Very interesting stuff. However, I ran over the data and found that the average age of (first) arrest for players completing less than 4 years of college was about 25 years old while the average age for those completing 4 years was about 30 years old. So the players not completing college get into trouble a little earlier than those who do complete college. These stats are obviously kind of biased becuase leaving college early (or not going at all) is a rather new trend, so guys like Kobe and Jason Richardson haven't had a chance to reach 35 to get arrested just yet.
Posted By : Ben

Message posted on : 2006-11-08 - 22:20:00

This comment has been removed by a blog administrator.
Posted By : Anonymous

I'm excited to read your new article. Also, I will...

Message posted on : 2006-11-08 - 22:23:00

I'm excited to read your new article. Also, I will be directing interested students to the link so they can prepare for the sports law panel here at WMU, which I am really excited for.
Posted By : Anonymous

That actually is a good business strategy that a t...

Message posted on : 2006-11-09 - 08:18:00

That actually is a good business strategy that a team like Toronto or Baltimore should use. They would have an extremely tough time proving good faith, especially since there is no guaranteed success in the translation from Japan to America, as there have been some huge busts before.
Posted By : tommie

Rick,

I have not read your paper yet but am...

Message posted on : 2006-11-09 - 12:14:00

Rick,

I have not read your paper yet but am sure to do so in the next few days. I'm wondering if your thoughts on the use of players' identities by fantasy leagues extends to the use made by betting companies, that use players' identities for bets on the best goalscorers, assists, touchdown's, etc.?

If you already address this issue in your paper, I apologise.

Posted By : Luis Cassiano Neves

Luis,

I'm not sure what you mean by a "bett...

Message posted on : 2006-11-09 - 18:09:00

Luis,

I'm not sure what you mean by a "betting company".

Posted By : Rick Karcher

Not to put words in his mouth, but I assume Luis w...

Message posted on : 2006-11-09 - 18:22:00

Not to put words in his mouth, but I assume Luis was referring to online and Las Vegas sports books. How would your theory address the use of a player's name in sports gambling? For example, is it a violation of a boxer's right of publicity for the sports book at the Mirage to take bets on fights without permission from the fighters?
Posted By : Anonymous

Some would argue that fantasy leagues are akin to ...

Message posted on : 2006-11-09 - 19:57:00

Some would argue that fantasy leagues are akin to gambling, so the uses of the identities are very similar. In my paper I discuss a spectrum of commercial advantage, with non-commercial use at one end of the spectrum [uses protected by the First Amendment, which are newsworthy purposes, entertainment (i.e. films, movies) and literary (fiction and non-fiction)], and pure commercial use at the other end of the spectrum(sponsorship, advertisements and endorsements). There are many uses that fall somewhere in-between (trading cards, video games, fantasy leagues), and in those situations courts should look at whether the defendant's product or service is dependent upon the players' identities for its existence. Fantasy league operators simply don't have a product to sell without the players.

In my paper, I distinguish Trivial Pursuit and Jeopardy (i.e. "How many home runs did Hank Aaron hit?"). The success of a fantasy team over the course of the season and the outcome of the fantasy league game is totally dependent upon the players' actual on-field performances, whereas the outcome of the Trivial Pursuit game is determined based soley upon the participant's knowledge of baseball's historical facts. Also, Jeopardy still exists without asking questions about Hank Aaron. So while one could argue that Jeopardy and Trivial Pursuit are still obtaining a "commercial advantage" by using the identities, it's de minimus. Casinos would then be more analogous to Jeopardy and Trivial Pursuit, but an online betting company that is solely dependent upon the players for its existence obtains a commercial advantage in using the players' identities.

But if you cut through it all, this fantasy league issue is simply a case of somebody not having to pay for the content that makes up the product it is selling. In our society, anybody who sells a product or service must buy the components and supplies that form the basis of his product or service. Why do we feel so strongly that there is some great public interest here that needs protection such that the content doesn't need to be paid for? If the mom and pop drug store can't compete with Walgreen's because it can't pay the fees that aspirin companies charge, we don't feel sorry for it -- and I would argue there's a much greater public interest at stake in aspirin than there is in fantasy leagues and gambling.

There's this notion that the names and stats are in the newspaper and are thus out in the public domain for anybody's use. But public domain is irrelevant for right of publicity purposes. All "public domain" means by definition is that certain information is not protected by copyright, trademark, patent -- and, believe it or not, the RIGHT OF PUBLICITY. So, the more a celebrity's name or identity is out in the public domain, the more famous that person is, and the more we should be scrutinizing third party use as opposed to justifying the use on the basis of public domain.

Posted By : Rick Karcher

"I discuss a spectrum of commercial advantage, wit...

Message posted on : 2006-11-09 - 21:02:00

"I discuss a spectrum of commercial advantage, with non-commercial use at one end of the spectrum [uses protected by the First Amendment, which are newsworthy purposes, entertainment (i.e. films, movies) and literary (fiction and non-fiction)], and pure commercial use at the other end of the spectrum(sponsorship, advertisements and endorsements)."

I don't think you've adequately defined the non-commercial aspect of your spectrum. You cite protected First Amendment activity as the classic example, but the interplay between the First Amendment and the right of publicity is far from clear. After all, Zacchini itself held that part of a newscast was not protected by the First Amendment from a right of publicity claim.

You hang your hat on the Topps case from 1953, but this case is undertheorized. After all, what does the baseball card do that MacMillan's Baseball Encyclopedia doesn't? You cannot say that the latter is meant for informational purposes, because they both convey the same information. In addition, both are sold for a profit, but this is admittedly not controlling, see Time Inc. v. Hill. So why is the book protected under the First Amendment and baseball cards not?

Also, you are wrong to say that public domain interests are relevant to the right of publicity question. As the comment to Sec. 46 of the Restatement to Unfair Competition makes clear, the right to control your identity must be balanced against the public's interest in the free flow of information.

Posted By : Anonymous

Message posted on : 2006-11-10 - 06:02:00

This comment has been removed by a blog administrator.
Posted By : Rick Karcher

Anonymous,

I've made a proposal about how t...

Message posted on : 2006-11-10 - 06:12:00

Anonymous,

I've made a proposal about how to bring more clarity to a confusing area of law. Your response is basically saying, I'm wrong because it's a confusing area of law.

The First Amendment protects "newsworthy purposes". It is also very well-established that making a profit does not destroy a newsworthy purpose. Now whether that should be the case is an interesting debate, but that's an entirely different paper in and of itself. My paper just assumes that's a dead issue, because it is.

Your MacMillan book is protected all day long because it's a literary purpose. There is really no debate about whether books and magazines deserve protection. The PURPOSE of books is to encourage free expression and to inform the public. That's not the purpose of fantasy leagues. You open up the encyclopedia book because you want to know how many homeruns Hank Aaron hit in a particular year. You log in to your fantasy league website because you want to buy players, make trades and see how the team you created is doing. You buy trading cards because you want to obtain the complete set, get your favorite player, put it away in your closet and sell them 20 years from now, or whatever. The more I discuss this, the more I'm starting to think that fantasy leagues serve even a greater commercial purpose than trading cards.

You're focusing on the information and not how that information is being used, which is what the court did and which is contrary to right of publicity law and the First Amendment as well. The First Amendment essentially protects certain USES of information. The First Amendment does not protect "the free flow of information" -- that's too broad and that's how you want to define it. Not only is that standard not the law; to me, that's creating less clarity.

Athletes and celebrities don't have copyright or trademark protection in their names and likenesses. Right of publicity law is their only protection, and it should be analyzed in the same light as copyright and trademark law, which permit certain "fair uses". Fantasy league use would not qualify as a fair use. You could write the sequel to Harry Potter today (my 4th grade son is doing that in school), but the minute he sells it, he's not protected. We could say Harry Potter is in the public domain too. I can discuss Harry Potter on this blog, and CNN can do that too because these particular uses are protected.

You could also get 20 of your buddies together and gather and compile all the stats from newspapers or the internet, and have your own fantasy game. You could have each person contribute $100, and the winner at the end of the season gets to keep the pot. Once you market it to the public, start charging fees (or don't charge fees but profit from advertising revenue), or use it as a way of drawing consumers to other business lines, you're done.

Will somebody just explain to me why the players shouldn't be entitled to negotiate a license fee at whatever the market will bear? There is no monopoly concern here. In fact, it's very pro-competitive. Yahoo, ESPN and CBS Sportsline are all paying fees at negotiated market rates, and it's a very efficient market. I don't hear any consumers complaining!! The only one complaining is the one that can't (allegedly) compete.

Posted By : Rick Karcher

Rick,

Anonymous correctly interpreted my qu...

Message posted on : 2006-11-10 - 06:53:00

Rick,

Anonymous correctly interpreted my question (thank you!).

I basically agree with your position even though my knowledge of american law is weak at best. Nevertheless, the exact same issues arise here in Europe and the relevant general legal principles are similar.

Even though we've had some decisions that were favorable to the athletes, there is great resistance to the idea that "image rights" (akin, I belive, to your right of publicity) may in fact correpond to a broad scope of protection.

My initial question was not innocent. I am currently working on the subject and your views, as well as that of Anonymous, have proved invaluable.

Thank you.

Posted By : Luis Cassiano Neves

Milanot,

If the E channel is just saying wh...

Message posted on : 2006-11-10 - 08:42:00

Milanot,

If the E channel is just saying what has happened recently with Madonna and her adoption, then the PURPOSE of the show is newsworthy because it tells the world what happened. It's not a matter of determining what is "worthy". It's like a told Anonymous, the focus is on the use and the purpose for the use. Madonna would not appear on the show without a fee. But if she doesn't appear, and the purpose is not to tell the world what happened, then you could still argue that the show is akin to a film or book which contains an element of artistic expression and creation. You can't say that fantasy leagues have that element.

The point I make about fantasy leagues being solely dependent upon the use of players' identities just goes to whether (once you are in the "commercial" realm of non-protected F.A. uses) you want to draw the line somewhere between fantasy leagues and jeopardy -- because they are both commercial uses.

Anything on the blog is protected because the PURPOSE is to express ideas, akin to books.

Posted By : Rick Karcher

Rick:

You make a persuasive case, but two c...

Message posted on : 2006-11-10 - 09:44:00

Rick:

You make a persuasive case, but two comments.

1) Your theory does not explain Zacchini. The U.S. Supreme Court held that the local news channel had a newsworthy purpose, but the replay of Zacchini's human cannonball act was not protected under the First Amendment. Why?

2) I disagree with your no-monopoly argument. You state that granting the players a property right here is "pro-competitive," presumably in the antitrust sense. How is that possibly true? Something is pro-competitive if it expands consumer choice. Granting a property right here LIMITS consumer choice as evidenced by the facts of this case.

Your theory gives the players the right to create a monopoly over fantasy sports leagues. In fact, they have exercised that right by granting one entity (MLB) the exclusive rights to use players' names in connection with fantasy leagues. That MLB has chosen to allow multiple competitors today does not mean that they won't eliminate competition in the future. If you want a similar example of this, look at video games, where the NFLPA granted EA Sports (maker of the Madden game) an exclusive license over player likenesses, effectively destroying the competing game.

Before society grants such a monopoly-creating property right, it should have a sound reason for doing so. For example, patent and copyright grant monopolies to incentivize private innovation, which overall, the theory goes, more than compensates for the costs associated with limitations on the free flow of ideas.

What corresponding benefit does society get here from granting the players the property right at issue? There is simply no need to incentivize athletes to become athletes. They make millions as it is and any revenue generated from fantasy sports would be a pittance compared to their salaries. See Restat. of Unfair Competition. As you note, Yahoo pays $3 million for their MLB fantasy license. Three million dollars divided up among all MLB players is indeed a pittance.

Thus, we have a real cost associated with this property right - monopolization - and no corresponding benefit. Because I view this case as essential a policy question about the allocation of intangible property rights, that settles it for me.

Posted By : Anonymous

One more thing:

You state: "If the E channe...

Message posted on : 2006-11-10 - 09:55:00

One more thing:

You state: "If the E channel is just saying what has happened recently with Madonna and her adoption, then the PURPOSE of the show is newsworthy because it tells the world what happened."

Doesn't a baseball card to exactly? You've just defined a PURPOSE as newsworthy if "tells the world what happened," which I presume you mean conveys historical facts. That's exactly what a baseball card does. It conveys the historical facts of a player's career. How is that not newsworthy then under you definition?

What you are doing is taking how consumers use baseball cards and extrapolating newsworthiness or non-newsworthiness from that, i.e., because people collect them they're not newsworthy. So, under that theory, if people started collecting and trading old editions of Sports Illustrated (and people already do this by the way), then it would no longer have a newsworthy purpose?

At bottom, both baseball cards and newspapers package information and sell it. The latter is in a form we recognize, so its protected. The latter is simply seen as a "kid's toy," and therefore not protected. But that does not mean there's a real theory underlying the distinction.

(I note that some people argue that the difference is that the "press" deserves special constitutional protection, but that's just question-begging about what constitutes the "press.")

Posted By : Anonymous

So exclusive licenses constitute illegal monopolie...

Message posted on : 2006-11-10 - 10:02:00

So exclusive licenses constitute illegal monopolies? I'm just not following what you are saying. And the mere "threat" of monopolization gives a third party a claim? And courts should be determining how much money people can make? So what are your proposed legal standards to aide courts in making all of these determinations?
Posted By : Rick Karcher

Rick,

Sorry i still can agree with your cla...

Message posted on : 2006-11-10 - 10:07:00

Rick,

Sorry i still can agree with your claim,

A newspaper is making money from the names of the people who are mentioned in it, the same appeals with the fantasy games.

you gave me an example about drawing the line between Fantasy and jeopardy, but about drawing the line between fantasy and Newspapers?

That was my point, a newspaper makes money from people names (off course it has a larger inventory and not only needs some players names, he can use names from all industries),
I can't see the differences between the two cases.

Posted By : Milanot

"So exclusive licenses constitute illegal monopoli...

Message posted on : 2006-11-10 - 11:30:00

"So exclusive licenses constitute illegal monopolies?"

Is that in any way what I said? I think my argument was clear that society should carefully examine whether or not the benefits of granting a monopoly outweigh the harms. Implicit in that is the recognition that some monopolies, i.e., patents, are, on the whole, beneficial.

With respect to licenses, an exclusive license is not an illegal monopoly, but there is an antecedent question: should society grant the licensor an exclusive property right in the first place?

You have not presented ANY policy rationales for why the property right should be granted here. At best you've hinted a mishmash of different theories that do not appear to withstand scrutiny here. I have presented a downside to recognizing the property right: the threat of monopolization. The threat of monopolization does not, in your words, "give third party's a claim" against the athletes. What it does is present a policy reason for not granting the athletes the property right in the first place. Until you clearly articulate a policy reason that outweighs the danger of monopolization, there's no reason to recognize the property right.

My preferred solution is simple: An athlete should have the exclusive right to goodwill associated with his name in that his name or identity cannot be used in the endorsement or advertisement of products without his consent. This not only reflects a balance of the societal interests just discussed, it also creates an interested third party to police fraud against consumers.

Other than exclusive endorsement rights, athletes (and anyone else) should have no other cognizable "right of publicity" claims. They do, of course, retain the other privacy torts, which relate to mental distress, not the allocation of property rights.

Posted By : Anonymous

Thanks for all the great comments. Robby, I'm loo...

Message posted on : 2006-11-10 - 17:50:00

Thanks for all the great comments. Robby, I'm looking forward to your conference.
Posted By : Rick Karcher

Lobel getting rankled and suing a notriously crass...

Message posted on : 2006-11-11 - 19:07:00

Lobel getting rankled and suing a notriously crass and obnoxious cartoon borders on the absurd. Your defense of Lobel goes well beyond that line.

Any respect I ever had from Lobel was lost with this act. Both Bob and you need to lighten up.

Posted By : Anonymous

It is apparent to me that his work is "transformat...

Message posted on : 2006-11-13 - 00:39:00

It is apparent to me that his work is "transformative" just from the NY Times writer's description of it. "... it shows an encounter between a Notre Dame quarterback and a human locomotive in crimson and white." As to the issue of journalism, I think the artist is right on. After all, the University had already taken that "leap" by giving him sideline media/photographer's passes for years. If it walks like a photojournalist, talks like a photojournalist, it must be . . .
Posted By : Anonymous

Sorry to arrive so late but just a couple of comme...

Message posted on : 2006-11-13 - 11:33:00

Sorry to arrive so late but just a couple of comments and questions from someone who has never been to law school:

1. Someone said earlier on here gues "might" be considered a form of gambling. It would seem to me that any organized activity with fixed rules which offers money to the winners is gambling - - particularly if the money to the winners comes from the losers.

2. Might I get around the right of publicity conundrum if I started a fantasy league and did not use the NAMES of the players but used their statistical achievements. In an obviously oversimplified example, suppose I "identified for the purposes of my league" the QB for the Indianapolis Colts as gninnaM notyeP. It's an admitedly thin veil, but it isn't his name.

3. When a baseball card company signs a contract with a player - or a union representing all players in a sport? - what are they paying for? The right to publish a picture? The right to put the "stats" and biographical info on the back? Or the association of the picture with the "stats" and bio information on the back? Or something else?

Posted By : The Sports Curmudgeon

Geoffrey,

I'm sorry about the question, whi...

Message posted on : 2006-11-13 - 13:10:00

Geoffrey,

I'm sorry about the question, which is likely to have an obvious answer. But was is the university's underlying right here? Is it the copyright on the pictures taken and used as models by Moore? Is it any other right on any image arising from the spectacle organised at the university's stadium?

Would it make any difference if Mr. Moore watched the games live and was able to paint from the vision he retained of the game?

I can understand the reasoning under which Mr. Moore is displaying a predatory behaviour towards the show organised by the Uni and that it is eating away at the Uni's merchandising revenues. What I cannot fully understand is what sort of right does the Uni hold on an image arising from a public spectacle (assuming it is not depicted in a Uni-owned picture)?

Posted By : Luis Cassiano Neves

Not sports law scholarship, but new sports law: t...

Message posted on : 2006-11-13 - 14:29:00

Not sports law scholarship, but new sports law: the University of North Dakota obtained a preliminary injunction against enforcement of the NCAA's ban an Native American nicknames, which would have prevented UND from hosting a Div. II championship game.

See http://www.orlandosentinel.com/sports/college/orl-colbeat1306nov13,0,1862767.story?track=rss

Posted By : PK

First, a bb is not a ball bearing in the sense of ...

Message posted on : 2006-11-13 - 14:49:00

First, a bb is not a ball bearing in the sense of what is shot out of an air rifle.

Second, there's about 3.2 million BB guns sold each years, with 4 deaths per year.

There are about 12 million bicycles sold each year, with about with 200 deaths (under the age of 14). That makes bicycles a 12x more dangerous than BB guns.

Just to put things in perspective, about 114 children under the age of 14 died in falls from windows in 2002.

Drowning and poisoning are far ahead of BB guns. The family pool is one of the greatest danger. Fire and burns is a huge killer.

4 deaths a years is tragic, but insignificant. About the same number of children die each year playing baseball. 859 died in swimming accidents.

Life is dangerous. Better get used to it or stop living.

Posted By : Anonymous

Alabama's claim is for trademark infringement (und...

Message posted on : 2006-11-13 - 16:11:00

Alabama's claim is for trademark infringement (under the Lanham Act) and unfair competition. The idea is that consumers are being confused or deceived into believing the products are from UA, rather than another source. The plaintiff also has some contract and unjust enrichment claims in the complaint, although I'm not sure the status of those claims.
Posted By : Geoffrey Rapp

And apparently the cartel will not appeal the deci...

Message posted on : 2006-11-13 - 16:20:00

And apparently the cartel will not appeal the decision...FARGO, N.D. -- The NCAA won't appeal a district judge's decision allowing the University of North Dakota to host a playoff game despite its Fighting Sioux nickname. Judge Lawrence Jahnke's order granting a preliminary injunction was formally released Monday. Attorneys had been notified by e-mail late Saturday, hours before the North Dakota football team was chosen for a home playoff game next weekend. "We're disappointed," NCAA spokesman Chuck Wynne said Monday. "But it's not totally unexpected. "For all practical purposes, there really isn't time (to appeal). UND is going to host a playoff game and they will wear their normal uniforms."
Posted By : Anonymous

The guy should charge Belichick for the paternity ...

Message posted on : 2006-11-13 - 17:07:00

The guy should charge Belichick for the paternity tests for his two children, maybe they're not even his!
Posted By : Anonymous

Huh? Anybody have a copy of the 'For Dummies' cha...

Message posted on : 2006-11-13 - 20:09:00

Huh? Anybody have a copy of the 'For Dummies' chapter on this?
Posted By : wha?

I would think the players would have a stronger cl...

Message posted on : 2006-11-14 - 09:30:00

I would think the players would have a stronger claim here. They would need to get past the (awful) Tiger Woods case, but obviously, that decision is not precedent for a court in Alabama. And this case seems more eggregious with the images being on coffee mugs, etc.

You're probably right that this will settle (with the "artist" agreeing to some sort of licensing arrangement with the university), but that won;t insulate him from claims from the players.

Posted By : john

Rick,

Do you know who owns the right of pub...

Message posted on : 2006-11-14 - 21:18:00

Rick,

Do you know who owns the right of publicity for college athletes? The school? Is it in the "contract" somewhere (letter of intent)? Obviously the rules prohibit a player from profiting on it while their in college, but could a player prevent a school from doing the same?

Posted By : Anonymous

Hi Mike, I've thought about it, and it still doesn...

Message posted on : 2006-11-15 - 01:06:00

Hi Mike, I've thought about it, and it still doesn't make sense to me. At least, I'm going to decline the invitation to let Randy off the hook here despite understanding your more general point about the very real impact of emotional injuries and performance.

Maybe Randy Moss is just a bad (strike that: really bad) illustration of your point. This is a guy who has a history of openly declaring that he plays hard only when he wants to no matter what the circumstances. Remember the famous "I'll play when I want to play" episode? Or Peter King's column documenting that Moss either jogged or walked off the line of scrimmage 39% of his snaps?

Without taking anything away from the general point you are highlighting here re: emotional injuries, the more likely explanation here is simply that Moss is immature, and is threatening to not play hard because he wants a trade out of Oakland.

Posted By : Josh

That's a great question regarding amateur athletes...

Message posted on : 2006-11-15 - 10:05:00

That's a great question regarding amateur athletes. My take on it is that (as you said) the player, via the scholarship and the NCAA regs., is clearly prohibited from receiving endorsement income. I don't see any legal argument that the school or the NCAA owns the rights to their names and likenesses. The NCAA licenses to the video game companies the right to use the team logos, stadiums, uniforms, numbers, etc. So the NCAA would argue they are not licensing their identities, and I think the better claim is against the video game manufacturer that when it creates computer graphic images that look exactly like the individual players, it is using the players identities without the players' consent. It definitely wouldn't surprise me if one or more star amateur players challenge it in the near future.
Posted By : Rick Karcher

Ticket prices are ONLY determined by supply and de...

Message posted on : 2006-11-15 - 11:16:00

Ticket prices are ONLY determined by supply and demand. This being true, what this paper really shows is that somehow, having a publicly funded stadium somehow effects one of those two things. I didn't read the paper, but does it explain how this might work?
Posted By : Taylor

That quote of Bill Parcells' reminded me all over ...

Message posted on : 2006-11-15 - 14:39:00

That quote of Bill Parcells' reminded me all over again what I hate about the guy, and why it is always a mystery to me why coaches get praised for doing exactly the same things that athletes get dinged for.

The stupid thing (well, one of the many stupid things) about remarks like Parcells' is that after you make a remark like that, you're never going to have his respect again, and you're not going to be able to trade him for value, because even if all the GM's in the league think that Glenn is tougher than leather, they know that his coach doesn't think he is, and therefore they should be able to get him on the cheap.

Posted By : Collin

Taylor:

You know this how?

As for th...

Message posted on : 2006-11-15 - 22:38:00

Taylor:

You know this how?

As for the study, two potential problems:

1) the study assumes that there is no systematic variation in non-ticket attendance costs that correlates with the type of financing involved. (pg. 20). This assumption may be incorrect. For example, it might be that cities are more willing to invest money in inner-city stadiums where parking is more expensive. If so, then ticket prices will be cheaper.

2) The study does not take into account changes in non-ticket related prices. (see pg. 24) There may be a correlation between increases in non-ticket related prices and the percentage of public financing.

Either or both of these factors could account for the small positive result found.

Posted By : PK

Sorry "Math Guy" you're off by 100%. If the avera...

Message posted on : 2006-11-16 - 02:46:00

Sorry "Math Guy" you're off by 100%. If the average NBDL player makes $35,000 and the average NBA player makes $4,900,000 then the average NBA player makes 14,000% more than the average NBDL player. 13,900% of $35,000 is $4,865,000.

And "Real Math Guy," 139,000% of 35,000 is 48,650,000. But I agree with you about anonymous "Math Guy" being both arrogant, wrong and probably not a good math teacher, also his use of "your" instead of "you're" makes him look like a tool. Sounds like the teacher that inspired Roger Waters of Pink Floyd to write the song "The Happiest Days Of Our Lives/Another Brick In The Wall, Part II," from "The Wall."

Posted By : Social Science Guy

There's a remedies problem with an amateur athlete...

Message posted on : 2006-11-16 - 08:36:00

There's a remedies problem with an amateur athlete suing. While he's an amateur he accept any monetary judgment. He could perhaps get an injunction, but what is the benefit in that, especially because the players probably feel it's pretty cool to be in a video game.

Of course, once the players graduate, turn pro, or otherwise lose their eligibility they can sue for monetary damages. But if they won it would screw over their teammates who are still in college who would no longer get to be in a video game.

Posted By : Anonymous

Anonymous,

I assume you meant to say that a...

Message posted on : 2006-11-16 - 09:51:00

Anonymous,

I assume you meant to say that an amateur player "can't" get a monetary judgment while he's an amateur? If that's what you meant to say, why do you say that? I assume you would argue that the judgment is the equivalent of endorsement income? I'm not sure that it is.

Secondly, even if you're right, the judgment wouldn't come for years following the filing of suit. Thus, a player could file suit as a soph. and be graduated by the time he receives the monetary judgment.

Posted By : Rick Karcher

Rick:

You're quite right that my objection ...

Message posted on : 2006-11-16 - 14:48:00

Rick:

You're quite right that my objection is most likely moot because the case would probably not end before the player loses eligibility. But do NCAA rules also forbid asking for money that if received would be against the rules? E.g., is it also a rules violation if a player requests money from an agent, but the agent refuses?

As for whether a player could accept a monetary judgment like this and maintain amateur status, it's probably an unsettled question of NCAA "law." But I doubt the NCAA would allow because it appears to be money obtained on account of athletic status.

Posted By : Anonymous

Was this decision reported? I've been having diff...

Message posted on : 2006-11-17 - 10:03:00

Was this decision reported? I've been having difficulty finding it in the usual places.
Posted By : Stephen

Heya,

It's not rocket surgery :)

I c...

Message posted on : 2006-11-17 - 13:24:00

Heya,

It's not rocket surgery :)

I can talk you through it on skype if you like.

Send me a mail, there's a link on the front page of my blog, and I'll give you my skype name.

Al.

Posted By : sportcrazy.net

Anonymous,

The NCAA rules prohibit players ...

Message posted on : 2006-11-17 - 17:45:00

Anonymous,

The NCAA rules prohibit players from receiving money from agents, they don't specifically address requests. And there is no NCAA rule prohibiting receipt of monetary judgments. One could also argue that such a judgment represents compensation for a wrong that was committed against them (i.e. theft of their identities), and not money received on account of their athletic status.

John,

Thanks for the kind words, and good catch!

Posted By : Rick Karcher

Great post. Some good points in taking us to issue...

Message posted on : 2006-11-20 - 09:51:00

Great post. Some good points in taking us to issue of performance and wages, in this case at "superstar" level. American sports have this great feature: you can virtually know how good a player is by analysing his stats (superstars tend to have the best numbers at some point), which for some reason does not happen in Europe. Apart from goals or tries or whatever score, which can hardly be described as a relevant item for all positions in the field, players in Europe are paid and transferred on the basis of their perceived value and not whether they have delivered the goods (which is apparent from stats).

It would be a great development if European Sport paid attention to stats as Americans do. Not least because it would probably be a telling factor in changing the way clubs are run. After all, investments should be justified.

Posted By : Luis Cassiano Neves

It seems like Soriano and his agent based his dema...

Message posted on : 2006-11-20 - 10:04:00

It seems like Soriano and his agent based his demands on what Beltran got in 2004 (7/119 for average annual value of 17 million/year).

That he ended up getting the contract, plus an extra year, is ludicrous.

First of all, Beltran is a better player (more walks, for starters).

Second, Beltran is about 3 years younger and his contract expires after his age 34 season (I believe). The Mets essentially locked up Beltran's peak years.

And last, the Cubs are likely going to play him in center, where he's never played, but may be average, and bat him leadoff, which will be a poor use of his power, in addition to being a bad place to place a guy with a career OBP of .325.

It's almost as if the Cubs were using Soriano's old birthday (he "aged" 2 years upon being traded to the Rangers).

Posted By : Satchmo

Pro sports throw away money...literally. There's n...

Message posted on : 2006-11-20 - 12:06:00

Pro sports throw away money...literally. There's no way that his salary should've increased by that much. So what if he had a "breakout" season or whatever.
Posted By : ADB251

Thanks for these excellent comments.

Lui...

Message posted on : 2006-11-20 - 21:54:00

Thanks for these excellent comments.

Luis,

Great points. I had no idea that the "Moneyball"/statistics-based approach to sports hasn't caught on in Europe. I wonder what might be some sociological explanations for it being popular in the U.S. but not in Europe? Might it be that American sports lend themselves better to statistical analysis, or is there something else going on? I really don't know, but it would make for a thought-provoking examination.

Satchmo (Will),

Great contextual points about Soriano's contract. I think you've hit on a number of reasons why the Cubs might regret this deal.

ABD251,

I agree, the increase in Soriano's pay is jarring and not seemingly rational. But I guess a player's market-value truly is the most a team will pay him when he is available.

Posted By : Michael McCann

How much credit should Soriano's agent be given fo...

Message posted on : 2006-11-20 - 22:50:00

How much credit should Soriano's agent be given for this contract? I am guessing during negotiations his agent avoided the issue of age as much as possible. Also, I would assume that in contemporary athletics, athletes are playing sports for a longer period of time and at a higher level. Many good examples of this come in "low-contact" sports like baseball, but other good examples come from hockey with players such as Chris Chelios, Nicholas Lidstrom, Brendan Shanahan, Dominik Hasek, Jaromir Jagr, and Rob Brind'Amour all performing among the best in the NHL at an older age. I think it is players such as these who justify general managers' decisions to offer and agree to contracts like Soriano's.
Posted By : Anonymous

http://sports.yahoo.com/mlb/news?slug=matsuzakamig...

Message posted on : 2006-11-21 - 15:33:00

http://sports.yahoo.com/mlb/news?slug=matsuzakamightnotendupin&prov=tsn&type=lgns
Posted By : aw

A couple of things come to mind.

First, Hun...

Message posted on : 2006-11-21 - 18:35:00

A couple of things come to mind.

First, Hunter is not a particularly honest person and his disinguousness is pretty darn common knowledge. It's like the ACLU- everything he says has an ulterior motive.

Second, a lot of this is based on third hand reporting. How about some quotes from the "marquee" players.

Look, if the players and their union continues to want to insist on the gansta, bling-bling, hip-hop, ho on every arm identity as the means to "sell" the NBA product, then the NBA's reputation will continue to circle the bowl and float out to sea. While I may not always agree with Stern, he's the #1 reason players make what they do. It's like biting the hand that feeds them.

What a bunch of babies. Starting with Hunter.

Posted By : Anonymous

Do not forget that baseball, like all pro sports t...

Message posted on : 2006-11-21 - 18:38:00

Do not forget that baseball, like all pro sports today, is furiously working on drugs, HGH, masking agents... that will continue to extend the "shelf life" of these players. When looking at a baseball player today, their prime easily extends into their 40's. Barry Bonds and Roger Clemens are prime examples.
Posted By : Anonymous

I remember when the great RB Dickinson stated that...

Message posted on : 2006-11-21 - 18:41:00

I remember when the great RB Dickinson stated that he'd fumble less if he made more money. His coach, Robinson, sat his very sorry fanny for a couple of games. Curiously, that ended the fumbling woes.

I think Moss needs to gather a few splinters in his fanny to see if his attitude improves.

Posted By : Anonymous

Rather than looking at David Stern as a dictator o...

Message posted on : 2006-11-21 - 18:45:00

Rather than looking at David Stern as a dictator or bad man, wouldn't it be prudent to take the approach of praising this man for his ability to take personal responsibility and control over a league in which the union insists on a gangsta, bling-bling, hip-hop persona? Or, is it easier to take the approcach (from a critical academic point of view) that he is a dictator? I would say that it takes more guts to write about the former (that he is doing so much good by "imposing" as sense of civility).
Posted By : Anonymous

Blazer Prophet

It seems that the "bling-bli...

Message posted on : 2006-11-21 - 18:47:00

Blazer Prophet

It seems that the "bling-bling, hip-hop" identity you describe is highly profitable in other segments of the economy, why can't it be as profitable here? If a team's owner has no problem with the image of his team or players ala Bob Johnson, why not let him market his team and players how he wants. These are highly accomplished business men who own teams, I think they know how to make a profit without someone telling them.

I hardly think Stern is the #1 reason players make what they do and would challenge you to back up such an assertion.

Posted By : Anonymous

To Anonymous #2: The reason it is less likely to ...

Message posted on : 2006-11-21 - 22:02:00

To Anonymous #2: The reason it is less likely to be economically successful here is simply this. The stands at NBA games are predominently made up of people who are NOT part of the hip-hop gangsta culture. And the customers are the ones who foot the bill for the humongous guaranteed contracts.

The same goes for TV audiences. If hip-hop/gangsta shows were able to corral the top ratings in TV, then shows like Seinfeld would never have made it for all those years and Moiesha and whatever other sitcoms WB Network tried to put over on the audiences would be the pop culture icons of this society. The fact is, they are not!

That may not be the inclusive/politically correct position to take, but it happens to correlate with something called "reality".

David Stern is indeed a megalomaniacal control freak who has the upper hand in a labor/management dynamic for the moment. He will eventually go so far overboard in his actions that he loses his grip and the pendulum will then swing wildly to the other side of the spectrum. And then it will swing back again...

That's the nature of life in a conflict environment.

Posted By : The Sports Curmudgeon

Sports Curmudgeon

Your right, Bob Johnson d...

Message posted on : 2006-11-21 - 22:53:00

Sports Curmudgeon

Your right, Bob Johnson didn't make about $3 billion dollars catering/serving the needs of African Americans. Clearly, the hip-hop culture can't produce a product that America would be interested in.

I think you are the one that needs to take a look at "reality."

Posted By : Anonymous

the sports curmudgeon

Please tell me you ar...

Message posted on : 2006-11-22 - 09:08:00

the sports curmudgeon

Please tell me you aren't serious with your argument. As Anon 10:53 mentioned, the Johnson made billions marketing hip-hop culture. The truth of the matter is he made those billions catering to a mostly white audience (up to 70% of rap cd sales are from white people). So while you may not like it (I am assuming you're a older white male), your children are eating it up for breakfast, lunch, and dinner.

Posted By : Anonymous

Regardless, we know that corporate America, the su...

Message posted on : 2006-11-22 - 09:55:00

Regardless, we know that corporate America, the suits "emphasis on suits", are the ones that dish out the big bucks to the games.
Plus whats the big deal to look respectful, or to not yell and curse, and to not wave around guns at strip clubs. This isnt about black or white, this is about whats deemed respectful in the USA.

Posted By : Anonymous

Anon 9:55

If it's not black and white, then...

Message posted on : 2006-11-22 - 10:48:00

Anon 9:55

If it's not black and white, then why does the NFL get a complete free bass on all of it's issues? Cursing and yelling? Issues with guns? Being respectful? Have you been to an NFL game? The NFL has much more of a problem with it's players getting into off-field issues, but nobody says a word. While it's true that the majority of NFL players are black, the nature of the sport (pads, full length uni's, and wearing a helmet) does not have their "blackness" out in full view for the world to see. MLB with it's rampant steriod abuse and endemic cheating ingrained into the game (Kenny Rogers anyone)?

Also, to be quite frank, professional sports are not corporate America. It's nothing like it. In corporate America, everyone can be replaced. These men are entertainers, without whom the league could not/would not exist. Is it asking too much for the union to be consulted on issues such as changing the ball they use? Imagine MLB arbitrarily changing the baseball from rawhide to some synthetic material without consulting anyone.

Posted By : Anonymous

Anon. 10: 48
Well I'll start by aying that I th...

Message posted on : 2006-11-22 - 14:15:00

Anon. 10: 48
Well I'll start by aying that I think the new ball thing is a joke, and needs to be changed back. However, I dont look at the issues as black and white, I htink it is hip-hop vs. I do not know what you would call it. I am not if you were the anon. before who gave us the quote about 70% of rap is bought by white people, but that shuold prove the point it is not about white and black but a clash of cultures.
If you dont think corporate America is the people that Stern is trying to appease, than who is he.
As for the NFL vs. NBA and MLB;
Kenny Rogers got ripped, the whole steroids things got ripped, people are holding baseball to a much a higher standard then both. Football, everyone has already given up on and that may be why they get a free pass.

Posted By : Anonymous

Ayatollah Stern is way off base here. What made t...

Message posted on : 2006-11-22 - 17:36:00

Ayatollah Stern is way off base here. What made the NBA great in its hey-day was the individuals who played the game. Magic, Bird, Jordan. Those guys made the NBA great.

Stern seems to want to clamp down on individualism and sell the product. No individual is bigger than the game. But in doing so the NBA will lose what sets it apart from the other leagues. Tony Romo could walk into any room right now and I would have no idea who he was (unless Jessica Simpson was on his arm but then I wouldn't really care he was in the room). The NBA gives us up close shots of players as individuals but Stern seems to want to eliminate any individuality. Not so sure it is such a great idea on his part.

Posted By : Anonymous

Let's set the record straight. I am indeed Caucas...

Message posted on : 2006-11-22 - 22:49:00

Let's set the record straight. I am indeed Caucasian; I am indeed older than most of the folks who have embraced hip-hop culture as the most significant thing to happen in the last 15 minutes.

Yes indeed, Bob Johnson did make a bunch of money with BET catering to that demographic.

Now, name all the other folks who made that kind of money in that kind of way and then compare all those folks to people who made LOTS more money by following different socio-economic trends such as:

Warren Buffet
Bill Gates
Steve Jobs
Jack Welch
Sam Walton (RIP)
You Get The Idea Here.

The fact that one man made a whole lot of money on hip-hop culture does not make that demographic the only or even the best way to make money.

The NBA needs to attract audiences to its games and viewers to its telecasts to make money. The more of them that they attract, the more likely they are to get huge corporate sponsorship dollars for advertising/promotions/partnerships/naming rights.

Now, take a deep breath and deal with some reality here - - most, not all but most, of the big time corporations that will spend tens of millions of dollars on NBA "sponsorships" are looking to make money on a demographic base far wider than the hip-hop culture base. So, if the NBA is being "business smart" it will try to tailor its image toward those kinds of corporate interests.

Or, it could try to follow the BET business model which worked for one company to the tune of about $4B. But divided among 30 teams, $4B isn't all that much. It wouldn't even buy a single struggling franchise. The value of NBA franchises today totals about $10B and to grow that business takes a customer base that has lots of "discretionary spending power". That's the customer that has to look favorably on the NBA.

It has nothing to do with race; it has to do with "money to be spent". Sure, young folks can spend lots of money on their icons. But those numbers are dwarfed by what the NBA might get by appealing to other demographics.

Having said all of that, I still think David Stern is a megalomaniacal control freak who has gone overboard...

Posted By : The Sports Curmudgeon

Hello,

I recently published an article on ...

Message posted on : 2006-11-24 - 12:16:00

Hello,

I recently published an article on the dangers and benefits of student loans and other forms of college financial aid – here is a quote from it, in case you are interested:
Student loans repayment can be a real nightmare without adopting some strategies that would help the new graduates to organize their social and financial life. Here are some strategies they can use to do this:
- An additional part-time job;
- Freelancing is another option (meaning that they can do particular pieces of work for different organisations, without working all the time for a single organisation);
- They should try to keep their living expenses as low as possible (live in a smaller apartment, live with a roommate to share some of the expenses, find an apartment that is closer to the job, to eliminate the extra-expenses for transport etc.);
- To apply for forbearance (this is an immediate solution for hard times when the new graduate is in impossibility to re-pay the amount of money and the need for student loan consolidation becomes apparent; it is a temporary period, when the graduate can postpone or delay his or her re-payments until a later time on a federal or direct loan after the beginning of the re-payment, and when the student doesn't qualify for deferral). The forbearance must be applied through the lenders of the loans.
- To consolidate the payments.
If you feel this helps, please drop by my website for additional information, such as federal student loans information or additional resources on private student loans .

Regards,

Michael

Posted By : 100Student

It seems that many people are falling into the tra...

Message posted on : 2006-11-24 - 15:14:00

It seems that many people are falling into the trap of associating the NBA with hip-hop just because the majority of players are Black. When it comes down to the business of the NBA, Stern's been very uneven lately. The way he has implemented these new rule changes is dictatorial and he's creating discord with the owners and the players. But the idea that it cleans up the image of the league totally sends the wrong message to the viewer. I don't have a problem with the NBA's image. I may be a Black male but I watch basketball because I like it. When the Phoenix Suns play I watch. Creating that type of loyalty is the duty of the individual owners in their target markets.

But the NBA doesn't seem to want to sell the teams. They want people to idolize their stars and buy endless supplies of jerseys and shoes. The NBA has been majority Black for a long time and saying the league has image problem now is absurd. They had coke busts and league bans in he 80s and 90s. I think the issue they are confused on is how to sell basketball to a football audience. Bigger stadiums, bigger fanbase on every level of play, shorter season, more violence. Marketing the sport to white people is a red herring because I'm sure if you did demographic study of who attends basketball games the numbers haven't changed much over Stern's tenure. High ticket prices put poorer audiences in front of the TV. So just look at the ads during an NFL game and an NBA game. With football, we've been bombarded with 'This is our country' truck ads and 'Man Laws' for beer drinkers. With the NBA we get D Wade and Barkley hocking cell phones. The NBA doesn't have an image problem. The NBA's audience is an urban audience, meaning city dwellers with urban sensibilities. The NBA clearly needs a leader who understands that fact, who understands the players and can take the game in a new direction. The NBA needs a Black commissioner.

Posted By : Anonymous

Legend has it that in 1962, when Brazil was going ...

Message posted on : 2006-11-27 - 08:50:00

Legend has it that in 1962, when Brazil was going to play Chile in the World Cup, in Chile, the Brazilian team went out and bought a ton of cold cuts and bread so as not to risk food poisoning. Brazil 4, Chile 2, by the way.
Posted By : Cisco

Professor McCann,
I've read and enjoyed your re...

Message posted on : 2006-11-28 - 07:09:00

Professor McCann,
I've read and enjoyed your recent article, "The Reckless Pursuit of Dominion." I have written a lengthy response on my blog, www.michaelreddyourboatashore.blogspot.com.
Please check it out if you have time. Thanks so much, TJ

Posted By : Anonymous

Berthelson's "interesting remark" after Weinberg's...

Message posted on : 2006-11-28 - 13:40:00

Berthelson's "interesting remark" after Weinberg's decertification appears to be extremely invalid, in reference to Weinberg's case, at least. After reading Weinberg's lawsuit, it becomes clear that he did everything possible to keep the players from becoming involved, and even seeked help from NFLPA officials to prevent that from happening. However, the NFLPA didn't lift a finger or give even one suggestion.
Other cases - yes, definitely - but if you have time, read the lawsuit, you'll find out Berthelson's remark wasn't so "interesting" in Weinberg's case.

Posted By : Anonymous

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Message posted on : 2006-11-29 - 05:57:00

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Posted By : Anonymous

Aren't these autonomy losses rather transient? Fo...

Message posted on : 2006-11-29 - 09:33:00

Aren't these autonomy losses rather transient? For instance, the dress code is surely at least a permissive topic of collective bargaining. If the players choose to accede to it during negotiations for the next CBA, has the loss of autonomy been eliminated?

On a related note, isn't the dress code a mandatory subject of colletive bargaining? It certainly seems to be a "term or condition" of employment in the NBA.

Also, many of these autonomy arguments seem to rest on questionable assertions. For example, you state:

"[I]f players object to a league-instituted dress code and believe it is a mixture of condescension and overbearingness that infringes upon their right to be who they are in ways that don't affect the lives of other people (i.e., the clothing other people wear should not bear on other people around them, perhaps save for not wearing any clothing or clothing that contains expletives), and they have no choice but to abide by it--it's not, for instance, a team rule or a collectively-bargained one, and pro basketball isn't a sport where there are rival and equivalent leagues offering substitute employment opportunities--that can be suggestive of autonomy."

The assertion underlying this argument is that Allen Iverson's clothes do not affect other people, but is this true? If parents would like their children to dress a certain way, but their children want to dress like Allen Iverson, isn't Iverson's clothing affecting parents in a significant way? Now, one can certainly argue that Iverson's autonomy interest should outweigh the parent's interest, but that is not obvious, especially when it is a private employment regulation rather than a government regulation at issue.

Finally, the entire autonomy argument is undercut by the fact that players chose to engage in a profession that they knew was controlled by a monopoly with the power to impose these sorts of regulations, subject to collective bargaining. When examined at this level of generality, the dress code is a risk the players voluntarily assumed by choosing to become professional basketball players.

Posted By : PK

I don't know what's "off putting" about discussing...

Message posted on : 2006-11-29 - 10:19:00

I don't know what's "off putting" about discussing labor rights in the context of professional athletes. Whether the NLRA should be amended to limit its reach to only "blue collar" workers may be a worthy debate, but until amended, professional athletes have the right to join a labor union and collectively bargain. Their salaries are irrelevant to the assertion of that right. These issues of "autonomy" are, for the most part, really issues of collective bargaining. I'm not familiar with the NBA CBA and thus am intrigued as to exactly how David Stern can unilaterally impose a dress code or even, for that matter, how Scott Skiles can ban headbands. Perhaps there are grievances pending or perhaps the CBA has a broad management rights clause. If that's the case, then the "assumption of risk" argument makes sense. It that's not the case, then the union needs to step forward and assert its legal rights. This may seem ridiculous to the average worker, but the issues there are really no different then any employer under a CBA unilaterally imposing a new work rule without first bargaining.
Posted By : Anonymous

An even bigger concern: How about a nice hamburger...

Message posted on : 2006-11-29 - 12:14:00

An even bigger concern: How about a nice hamburger laced with something that will make that upcoming PED test come out positive?
Posted By : Anonymous

I've tried to respond to some of Michael McCann's ...

Message posted on : 2006-11-29 - 12:19:00

I've tried to respond to some of Michael McCann's comments on my blog. Check it out if you're interested. Thanks, TJ
Posted By : Anonymous

Definitely the most thoughtful piece I've read on ...

Message posted on : 2006-11-29 - 13:56:00

Definitely the most thoughtful piece I've read on the politics of baseball in a long time. It's interesting to think about the effect of the Matsuzaka-frenzy in other international baseball hotbeds.
Posted By : Anonymous

I think there would be a serious conflict of inter...

Message posted on : 2006-11-30 - 02:16:00

I think there would be a serious conflict of interest if union representatives represented players in contract negotiations. The goal/mission/purpose of the union is to protect and champion the interests of all of the league's players, current, former, and future, as a collective group. The goal of an agent is to get whatever his client wants, which is typically the best combination of money and career stability/job security. Getting a client the most money is not necessarily consistent with doing right by the general union constituency.

It would probably be fine for minimum-salary players, so perhaps it would work in most cases if it were optional as you suggest, but there's a lot of danger that the union would get sued for breach of fiduciary duty. If the union started getting sued for that or negligent representation, it would defeat your entire rationale for doing this -- to deregulate the agents and save money.

Posted By : Tim Gerheim

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Message posted on : 2006-11-30 - 05:58:00

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3. Live Soccer:
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We donot stream live football from this server or blog. There are thousands of High Quality Channels streaming live football from around the world. We are here to show you how to find them.

Check it Once
http://www.soccerlivematches.blogspot.com/

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Posted By : Anonymous

Re: Skip Oliva. But the NBA is not a publicly-hel...

Message posted on : 2006-11-30 - 11:13:00

Re: Skip Oliva. But the NBA is not a publicly-held enterprise, and privately-held companies/joint ventures/partnerships enter into shareholder or partnership agreements all the time that restrict shareholders.

Even in a publicly-held corporation, the shareholders may be restricted in their communications for certain reasons, e.g., proxy communications, confidential business information, etc.

Posted By : Senator Blutarski

"But the NBA is not a publicly-held enterprise, an...

Message posted on : 2006-11-30 - 13:54:00

"But the NBA is not a publicly-held enterprise, and privately-held companies/joint ventures/partnerships enter into shareholder or partnership agreements all the time that restrict shareholders."

Understood. I'm not saying it's per se wrong; I'm suggesting it may not be good corporate governance. Unlike other partnerships or joint ventures, a sports commissioner has no equity in the league itself, which I believe distorts his incentives.

Posted By : Skip Oliva

Dallas Mavericks owner Mark Cuban was on ESPN's Pa...

Message posted on : 2006-12-01 - 19:58:00

Dallas Mavericks owner Mark Cuban was on ESPN's Pardon the Interruption television show today wearing a t-shirt with the words "David Stern University" across the chest. Michael Wilbon was interviewing Mr. Cuban about the NBA's recent rule changes.
Posted By : Ryan Rodenberg

Normally, I'd be on the side of StubHub on this on...

Message posted on : 2006-12-03 - 11:05:00

Normally, I'd be on the side of StubHub on this one, but for the fact that the Pats have the ticket exchange program in place and operating.

However, on the larger issue, I've always wondered about the negative/positive effects of scalping. Seems a classic arbitrage situation -- little guy exploiting chinks in the system created to satisfy the big guy's needs.

Posted By : Collin

Couldn't access the complaint, but two questions:<...

Message posted on : 2006-12-03 - 12:09:00

Couldn't access the complaint, but two questions:

1) Does the Massachusetts ticket resale statute contain a private right of action?

2) Do the Patriots have a provision in their contract with season ticket holders that forbids resale in any venue other than the Patriots ticket exchange?

Posted By : PK

PK -- I can email you a copy of the complaint if y...

Message posted on : 2006-12-03 - 18:15:00

PK -- I can email you a copy of the complaint if you wish. To answer your questions, the Massachusetts statute does not create a private right of action. I believe the Patriots, either on the tickets themselves or in the season ticket holder agreement state that it is illegal to resell the tickets in violation of Massachusetts law. In addition, in their lawsuit, they rely on the statute and on the common law claims of misappropriation and interference with advantageous relations. The team makes no money on the exchange program. It is an additional service provided to season ticket holders and wait list members to be able to recoup the costs of tickets for games they can't attend in a legal way.
Posted By : Chris Callanan

Howard,

Very interesting post, and somethin...

Message posted on : 2006-12-04 - 16:36:00

Howard,

Very interesting post, and something I've been wondering for quite some time. It is an extremely unpopular view, but I have no problem with steroids in sports. I have a lot of reasons for my opinion, one of which you highlight quite well - I don't think there is any rational basis for banning steroids. Distasteful as this opinion surely seems to many, I think the example of professional football is instructive here.

Little fuss was made over Shawn Merriman's steroid suspension, and you'll recall the Carolina Panthers scandal from earlier this season. Why doesn't anyone care? My assumption is that most people (myself included) assume that many, if not most, NFL players are on some form of steroids. I've yet to hear another plauisble explanation for why football steroid use leads to such little outrage. If you look at the NFL, the government paternalism argument regarding the health risks of steroids really breaks down.

That steroids allow you to do things you otherwise could not seems self-evident, but I agree, the same is true of Tommy John surgery - it's well documented that fastball velocity increases after the surgery.

My view is that steroid use bothers people because it threatens one of sports fans most cherished pastimes - debating the relative value of players, using numbers as evidence. But steroids (we think) affects statistics so dramatically that it sucks the fun out of comparison, almost akin to comparing a minor leaguers stats with major league players (clearly no one does that). I doubt most casual fans know how many tackles Merriman has - "he hits opponents hard and frequently" seems to do just fine for analysis.

As frustrating as this may be for sports fans, it doesn't constitute rational basis.

Posted By : Eric M.

Today ESPN highlighted a stylistic companion to th...

Message posted on : 2006-12-04 - 18:07:00

Today ESPN highlighted a stylistic companion to that study--one that looks at racial disparity within the BCS graduation breakdown, noting that "the overall discrepancy between white and black players' graduation rates for top bowl teams was nearly twice the 13-point difference on average."


http://sports.espn.go.com/ncf/news/story?id=2685881

Posted By : gorjus

Michael:

Very enlightening post.

O...

Message posted on : 2006-12-04 - 23:53:00

Michael:

Very enlightening post.

Other statistics that would be interesting are those that leave the team prior to graduation for other "reasons" such as on-campus problems, off-campus issues, issues "covered-up" by coaches and other inappropriate activities such as not attending classes, accepting money for "employment" and other activities engaged in by those with special athletic skills.

Leadership is lacking here and this behavior starts a the very top of the university/college hierarchy.

Posted By : Richard Mock

How about the top 25 teams with highest number of ...

Message posted on : 2006-12-05 - 07:13:00

How about the top 25 teams with highest number of arrests (and that would include coaching staff, too)? I mean come on, off-campus issues? Let's just call a spade a spade.
Posted By : Anonymous

One additional trend that might help show some of ...

Message posted on : 2006-12-05 - 08:50:00

One additional trend that might help show some of the discrepancy is the number of players from those low graduating teams that leave early for pro football as many of those players do not ever go back (interesting article in a recent SI about Carolina basketball players who do finish their degree). LSU has had 24 drafted since 2000, Georgia had 34, Texas 17 and Cal 19. This obviously doesn't look at a senior v. underclassmen difference but could be telling.
Posted By : B.C. Barnes

I say, who has time for class when you're busy try...

Message posted on : 2006-12-05 - 09:30:00

I say, who has time for class when you're busy trying to win a championship...
Posted By : Anonymous

If I could ask the questions, I would ask the foll...

Message posted on : 2006-12-05 - 10:09:00

If I could ask the questions, I would ask the following (for some reason, my system won't let me into the section of the article to ask questions of the author of the article):

(1) The "OSU" is Oregon State, I assume, but which "USC" are we talking about--Southern Cal or South Carolina?

(2) If Navy is at the top of the graduation poll, where's Air Force and Army?

(3) I'd be curious to see another Top 25 poll--this one, to counter the so-called graduation gap between whites and blacks, would compare the ratio of African-American players on the football team to the ratio of African-Americans on the campus as a whole.

(4) Last, one question I would address is why are we using "graduation rates" at all? Many student-athletes leave for different reasons--early entry (something hard to do at the military academies), transfer to another school, family situations, grades, and yes even suspensions/expulsions (not just from the school, but just off the teams), and never return. Is that the fault of the coaches and the schools?

Posted By : Anonymous

It's not my post but I think I can answer a few of...

Message posted on : 2006-12-05 - 11:54:00

It's not my post but I think I can answer a few of the last guys questions. No Army or Air Force b/c this poll only reflects teams receiving top 25 votes (of which do not include Army, Air Force, Duke, etc.). Also I believe USC refers to Southern Cal as South Carolina is spelled out in both polls. I also believe OSU refers to Ohio State as Oregon State is spelled out in both polls.
Posted By : B.C. Barnes

Those are interesting numbers, but they may not me...

Message posted on : 2006-12-05 - 14:39:00

Those are interesting numbers, but they may not mean anything. The reality is that graduation rate is an extremely flawed metric when comparing academics across institutions. At first glance, we automatically equate higher graduation rates with being better, and there is some truth behind this. We all want to see our students graduate, student-athletes included. The problem is that, in comparing schools, higher isn't always better. One could very easily argue that the school (as a whole, athletics notwithstanding) with the higher graduation rates has less academic rigor than the school with the lower rate. In other words, the school with the higher graduation rate may simply have professors giving out more A's and B's for the same quality work that occurs at another institution, where the prevailing ethos is that a C represents satisfactory work and that A's and B's are difficult to come by. For example, many private schools have long been reputed to give out A's and B's rather easily because a student that fails out of school doesn't equals tens of thousands of dollars in lost tuition revenue. The University of Texas, mentioned in Mike's post, is required by state law to automatically except any applicant from a Texas high school ranking in the top ten percent of their graduating class. As a result, UT has for decades been over-subscribed and has been rumored to pressure faculty to "fail out" students in order to keep enrollment down at a more managemeable level.

Sorry for the lengthy comment, but I hope this adds some context to the graduation rate discussion.

Posted By : Chad McEvoy

I really appreciate this compilation. I'm applying...

Message posted on : 2006-12-05 - 17:29:00

I really appreciate this compilation. I'm applying to law school now, and I definitely have sports law in mind.

If you had the time, I think another great list would be which schools actually offer sports law courses. I've gotten lost in websites looking for their course guides (many aren't available to prospective students) and if you had access to different information, which would be really helpful to anyone out there looking into the field.

Posted By : Andrew

I, also, have had the same problem. It is extreme...

Message posted on : 2006-12-05 - 20:36:00

I, also, have had the same problem. It is extremely frustrating when a law school does not list, or make it remotely easy to find, the different classes they offer.

I also try to look for schools that offer something more than just a single sports law class; I look for international sports law or a separate entertainment law class or an amatuer sports law class. These are even hard to find at schools besides FCLS, Marquette, and Tulane.

Posted By : Anonymous

Thank you all for these outstanding comments.

Message posted on : 2006-12-05 - 22:08:00

Thank you all for these outstanding comments.

I agree that it would be helpful to know why students do not graduate. As several of you note above, some reasons might to have little to do with a school, while others may ascribe greater "blame" on the part of a school.

It would similarly be useful to know whether there is any connection between graduation rates and arrest propensity or breaking school rules.

As to graduation rate as a metric, you all make some great points, and Chad's comment about some schools having grade inflation or simply more grade-friendly professors is a good one.

In fact, it looks like "graduation rate" as a measurement would make for a very interesting study by an enterprising law student or grad student.

Posted By : Michael McCann

Someone may have said this or done research on thi...

Message posted on : 2006-12-06 - 07:40:00

Someone may have said this or done research on this already, but maybe less emphasis should be on graduating and more on selecting appropriate majors? What I really mean is I have heard that on some campuses (maybe a lot) there are majors (such as sport management) which have become crutch (almost default) majors for football and basketball players. While that might be great for those programs, is it really helping the student-athlete by pushing them into a major that really serves little benefit to them other than to keep their progress rates (and graduation rates) looking so good, especially everyone knows that those kinds of majors are taught by professors with rarely any real world experience?
Posted By : Anonymous

William Mitchell (MN) added a Sports Law course th...

Message posted on : 2006-12-06 - 09:19:00

William Mitchell (MN) added a Sports Law course this year. The school hired Clark Griffith: former owner, Executive Vice-President and Treasurer of the Minnesota Twins Baseball Club. He was Chairman of Major League Baseball Properties and a member of the Player Relations Committee among several Major League Baseball assignments.
Posted By : Andrew L. Smith

Andrew and WMU student,

UVa has two sports ...

Message posted on : 2006-12-06 - 09:21:00

Andrew and WMU student,

UVa has two sports law classes and a journal dedicated to sports and entertainment. We're also getting an entertainment law professor back soon (I believe).

Posted By : Anonymous

Anonymous 7:40 a.m.

Isn't that a knock on a...

Message posted on : 2006-12-06 - 09:33:00

Anonymous 7:40 a.m.

Isn't that a knock on all of academia, that professors rarely have real world experience?

I think most undergraduate majors are useless, heck, I even think most law school classes are useless from a "real world" legal practice perspective.

Perhaps a better way to look at the athletic graduattion rates would be to compare them to the overall graduation rates of the respective schools.

Posted By : Anonymous

Unfortunately, it's very difficult to say which sc...

Message posted on : 2006-12-06 - 11:12:00

Unfortunately, it's very difficult to say which schools offer courses in particular years, and which don't. Most law school offerings change from year to year, and particularly at a small school, sports law (and other upper level "elective" courses") are only offered every other year. That means you may be assured of the chance to take it in either your second or third year, but might not get to choose.

Many schools have sports law taught by an "adjunct professor" -- someone who has a full time job outside of the school but comes in, typically in the evening, to teach the class. Many sports law adjuncts are great -- and have even more industry experience (and contacts) than tenured or tenure-track professors. Others are not so good. Although it's difficult to generalize, one might suspect that classes taught by adjuncts will likely focus more on practical, nuts-and-bolts considerations associated with sports law (e.g., how to negotiate a contract), and less on "academic" or intellectual questions (e.g., should sports leagues be exempt from the antitrust laws).

Having an in-the-building, full-time, tenure-track person has its advantages for students, particularly when it comes to getting counseling and advice on papers.

I would add that taking sports law may not be key to getting a sports law job -- there are other courses, like estate planning, tax, labor law and antitrust that can be equally, if not more useful. I had a post that included some discussion of useful classes here, http://sports-law.blogspot.com/2006/03/how-do-i-get-job-in-sports-law.html.

It might also be true that one's job prospects in sports law are enhanced by attending the "best" law school one can (and getting the best grades).

What's a prospective student to do? I think the list above (which schools have tenure track professors who self-identify as "sports law" professors) is at least a partial indication of a school's attitude towards sports law (i.e., whether they consider it a legitimate or serious field of study), and the likelihood that sports law classes will be availalble. There are also schools like Marquette, Tulane, and Florida Coastal that have strong certificate programs in the field; and schools like UVA and Duke that have long traditions of turning out sports lawyers and agents.

Posted By : Geoffrey Rapp

Thomas M. Cooley offers a Sports Law class each fa...

Message posted on : 2006-12-06 - 15:13:00

Thomas M. Cooley offers a Sports Law class each fall taught by tenured faculty, but I agree with Mr. Rapp that "taking sports law may not be key to getting a sports law job."

Graduating from a Tier 1 law school certainly might increase the job applicant's marketability, but landing a sports law job is not any different than landing a job in any other field: build your resume while in law school and make as many sports law contacts as possible during law school. If the candidate doesn't end up with a job in sports law, take another job, but don't give up on sports law.

Posted By : Tammy Thomas

Doesn't Congress have more important things on whi...

Message posted on : 2006-12-06 - 18:03:00

Doesn't Congress have more important things on which to focus?
Posted By : john

This also happened on an episode of "Coach" once. ...

Message posted on : 2006-12-06 - 19:04:00

This also happened on an episode of "Coach" once.

http://www.tv.com/coach/wings-over-buffalo/episode/22232/summary.html?tag=ep_list;ep_title;184

Posted By : tim

Well it is the lame duck session.

Message posted on : 2006-12-06 - 23:16:00

Well it is the lame duck session.
Posted By : Skip Oliva

This is no longer a country of patriotism. Also, w...

Message posted on : 2006-12-07 - 10:26:00

This is no longer a country of patriotism. Also, with all due respect to liberal democrats, they have a type of mistrust of the military and this bill is clearly doomed.

As to how it would effect sports... clearly thru ammendment or litigation, there would be a host of exceptions that in some way would include pro sports athletes. Either they would be allowed to be both a member of the military and play their sport for massive amounts of bling or find some sort of exception.

Ya know, I understand Rangel's position and it's an interesting one- but very unpractical.

Posted By : Anonymous

I can't believe they're using Poston as the test c...

Message posted on : 2006-12-07 - 12:50:00

I can't believe they're using Poston as the test case. Poston's handling of the Arrington situation is one of the worst in the history of sports. The NFLPA is right to discipline him.
Posted By : john

According to rotoworld.com, Yahoo!has a fantasy fo...

Message posted on : 2006-12-07 - 16:33:00

According to rotoworld.com, Yahoo!has a fantasy football license from the NFLPA and the NFLPA holds licensing rights wherever six or more players are used. If this were true, I would think Orrick would have considered that.
Posted By : Anonymous

Here's the full Roto post: Tom Brady ha...

Message posted on : 2006-12-07 - 17:05:00

Here's the full Roto post:

Tom Brady has filed a lawsuit against Yahoo for their use of his image and likeness in fantasy football advertisements both in print and online.

In late summer, Yahoo ran a fantasy football print ad in Sports Illustrated with the images of Randy Moss, LaDainian Tomlinson, Jeremy Shockey, Steve Smith, Larry Johnson and Tom Brady. Since Yahoo has a fantasy football license from the NFLPA and the NFLPA holds licensing rights wherever six or more players are used, we aren't sure how Brady has much of a case.


Roto hasn't explained where they get the idea that Yahoo has a license from the NFLPA. If you look at the NFLPA's list of licensees, available at http://www.nflplayers.com/fantasy/main.aspx, Yahoo isn't on it. Since roto hasn't cited its source, I can't verify the claim.

Posted By : Geoffrey Rapp

George Gmelch, a former minor-league baseball play...

Message posted on : 2006-12-07 - 17:08:00

George Gmelch, a former minor-league baseball player and an anthroplology professor at Union College, presented a paper a couple of years ago discussing how MLB organizations during Viet Nam monitored the draft status of players within the organization. And if you look at baseball cards from that era, it often shows 1-2 years not playing because "In Military Service."
Posted By : Howard Wasserman

I think roto's point is still valid whether or not...

Message posted on : 2006-12-07 - 17:16:00

I think roto's point is still valid whether or not Yahoo has a license. If the NFLPA holds licensing rights wherever six or more players are used, then Brady does not have a claim not matter what. If Yahoo in fact does not have a license, the NFLPA would have the claim rather than Tom Brady.
Posted By : Martin

It seems to me that there has to be some mechanism...

Message posted on : 2006-12-07 - 17:37:00

It seems to me that there has to be some mechanism to prevent a team from making a ridiculously high bid only to block another team from signing the player (where the high bidder has no intention of trying to sign him). I would propose that the high bidder be required to pay the next highest bid if it does not sign the player by the end of the allotted period. While I've thought out how this would work in practice, I won't bother to describe all the possible scenarios here. However, I haven't come up with any that render this proposed model any worse than the status quo.
Posted By : Anonymous

This list needs some caveats. I go to Miami and al...

Message posted on : 2006-12-07 - 18:03:00

This list needs some caveats. I go to Miami and although we may have two sports law professors, during my two years (after 1L year -- the years in which I am allowed to choose classes), the school has offered exactly one two-credit sports law class. And the professor has zero experience in the realm of sports law. I have no idea how he is qualified to teach sports law other than that he likes sports and they need someone to teach the class. Actually, the class is "Sport and the Law" not sports law per se. This professor's scholarly writing relates to evidence and criminal law, not sports law.
Posted By : Anonymous

Thanks for the list. However, I wonder how many bu...

Message posted on : 2006-12-07 - 19:18:00

Thanks for the list. However, I wonder how many business schools have sports law professors? I am curious since I teach the subject to MBA and undergraduate business students.

Thanks

Posted By : Anonymous

You state: "[T]his means that even a fan in the no...

Message posted on : 2006-12-07 - 19:42:00

You state: "[T]his means that even a fan in the nosebleed seats who shouts a racist slur at a player far below (something that could not be 'fighting words' towards the player under the generally understood definition)might become fighting words for anyone sitting around the fan who hears the word. That is what is potentially different about racial epithets and slurs."

Surely you do not really believe this. If this statement were true, then such words could not ever be said because someone could perceive them to be "fighting words."

Do you even agree with the "fighting words" doctrine? Chaplinsky, after all, is one of the most egregious cases in the U.S. reports!

Posted By : Anonymous

Subject to the caveat that NFL licensing is not my...

Message posted on : 2006-12-07 - 20:23:00

Subject to the caveat that NFL licensing is not my area of expertise...

...The NFLPA acquires publicity rights when a player, in the standard contract, signs them over to the NFLPA. The clause in the standard contract making that assignment can be deleted at the player's request. Typically, marquee players are the ones who delete that clause, since they are the ones who can earn more on their own than as part of a group; Brady would certainly qualify and I would be extremely surprised if he agreed to any such assignment.

Even where a player has signed over publicity rights to the union, as I read the language of the standard player contract, that only applies in "group licensing" activities. Since I believe Yahoo isn't a licensee, the assignment would not apply in Yahoo's case.

Here's the contract provision I'm referring to (Section 4b of the Standard Player Contract):

Player hereby assigns to the NFLPA and its licensing affiliates, if any, the exclusive right to use and to grant to persons, firms, or corporations (collectively "licensees") the right to use his name, signature facsimile, voice, picture, photograph, likeness, and/or biographical information (collectively "image") in group licensing programs. Group licensing programs are defined as those licensing programs in which a licensee utilizes a total of six (6) or more NFL player images on or in conjunction with products (including, but not limited to, trading cards, clothing, videogames, computer games, collectibles, internet sites, fantasy games, etc.) that are sold at retail or used as promotional or premium items. Player retains the right to grant permission to a licensee to utilize his image if that licensee is not concurrently utilizing the images of five (5) or more other NFL players on products that are sold at retail or are used as promotional or premium items. If Player's inclusion in a particular NFLPA program is precluded by an individual exclusive endorsement agreement, and Player provides the NFLPA with timely written notice of that preclusion, the NFLPA will exclude Player from that particular program. In consideration for this assignment of rights, the NFLPA will use the revenues it receives from group licensing programs to support the objectives as set forth in the Bylaws of the NFLPA. The NFLPA will use its best efforts to promote the use of NFL player images in group licensing programs, to provide group licensing opportunities to all NFL players, and to ensure that no entity utilizes the group licensing rights granted to the NFLPA without first obtaining a license from the NFLPA. This paragraph shall be construed under New York law without reference to conflicts of law principles. The assignment in this paragraph shall expire on December 31 of the later of (a) the third year following the execution of this contract, or (b) the year in which this contract expires. Neither Club nor the League is a party to the terms of this paragraph, which is included herein solely for the administrative convenience and benefit of Player and the NFLPA. The terms of this subparagraph apply unless, at the time of execution of this contract, Player indicates by striking out this subparagraph (b) and marking his initials adjacent to the stricken language his intention to not participate in the NFLPA Group Licensing Program.

Posted By : Geoffrey Rapp

BB guns are considered toys by a lot of people. H...

Message posted on : 2006-12-07 - 22:21:00

BB guns are considered toys by a lot of people. However when I was a child, I was given one for christmas at the age of 12. The first thing my dad told me after I opened the gift was "This is not a toy". He went on to say that supervision was required and that I would be allowed to shoot only at targets and milk cartons. It was my first step in learning to handle regular firearms. I am in agreement with others that have posted here; Parents are responsible for the safe handling and shooting of these "toys". I live in a state that allows me to own and use firearms without permits and my state does not require permits for concealed carry. It is a matter of responsibility. Children need to learn firearm safety and BB guns are a good place to start.
Posted By : radtravler

Thanks for these comments.

Blazer Prophe...

Message posted on : 2006-12-07 - 22:34:00

Thanks for these comments.

Blazer Prophet,

I think Rangel is more distrustful of his colleagues in Congress (and the White house) than those in the military. He seems to be arguing that those who decide when we go to war don't have to internalize the human costs of the war, at least not nearly as much as families with loved ones over there. His critique is neither new nor unique to the United States' armed forces, but a powerful one nonetheless.

Howard,

That's a fascinating note on George Gmelch and baseball cards from the Vietnam era. I'd like to see his paper, I bet it is a great read.

Posted By : Michael McCann

Well, I believe it in the descriptive sense that t...

Message posted on : 2006-12-08 - 06:56:00

Well, I believe it in the descriptive sense that there is a fighting words doctrine. And given the societal reaction (on very different scales) to Richards and to the heckler and the use of racist epithets, I believe in the descriptive sense that a court could hold that where a person shouts an epithet at one person far away (assume for the moment they are divorced from an obvious political message), it might constitute fighting words as to a member of the targeted race standing nearer to the speaker.

Not to say I would agree with such an outcome (I would not); only that it is possible.

Posted By : Howard Wasserman

I hope Rick shows Congress that the ability to rep...

Message posted on : 2006-12-08 - 08:45:00

I hope Rick shows Congress that the ability to represent a college or professional coach and at the same time represent former-student athletes or current professionals is the most gross, most unethical form of breach trust. Players unions have not done enough to prevent this from sports agents, while attorneys can be disbarred for such misconduct. It is disgusting and yet check out various college and professional coaches who have the same agent as do their players (or former student-athletes). It's organized crime!
Posted By : Anonymous

Here's an article about the hearing, if anybody is...

Message posted on : 2006-12-08 - 09:00:00

Here's an article about the hearing, if anybody is interested: http://news.yahoo.com/s/ap/20061208/ap_on_sp_fo_ne/fbn_congress_nflpa_2

John,

The way I look at it is that, like any dispute, there are going to be factual issues. I wasn't there during the Redskins negotiations, nor were you, so we don't know what happened. The reason I was at the hearing was to discuss whether agents should have their "day in court" in front of a true nuetral arbitrator like everyone else in society, which I argued that they should.

Anonymous,

You raise an interesting point, one of a number of conflicts of interest in the agent business.

Posted By : Rick Karcher

HI, CONGRATULATIONS FOR YOUR SITE!! VISIT US AT ht...

Message posted on : 2006-12-08 - 11:14:00

HI, CONGRATULATIONS FOR YOUR SITE!! VISIT US AT http://www.enterbet.com
Posted By : FRANK

Using one of Webster's definitions for sport - An ...

Message posted on : 2006-12-08 - 15:12:00

Using one of Webster's definitions for sport - An amusing pastime or diversion - NASCAR is a sport! So is Golf, Bowling, Curling and Watching Afternoon Soaps.

Webster's second definition of sport is: A physical activity, especially one with a set form and body of rules. By that definition we can add Horse Shoes, Poker, Tiddly Wink's and Mall Walking to the growing list of "Sports."

The original question, it seems, should have been, "Are NASCAR driver's athletes?"

If we limit the definition of "Athlete" to superior hand-eye coordination, I submit that yes, all successful participants in NASCAR and the other sports listed above are athletes!

But if we broaden the definition of athlete to include: superior aerobic condition, muscle strength and flexibility, speed, agility and endurance it is hard to make the claim that NASCAR drivers are athletes. I'll give 'em hand-eye coordination and fearlessness. Athlete? Not even close.

Jeff Gordon?
Hollywood - yes.
Athlete - no.

Dale Earnhart (3)?
Aggressive Red Neck - Yes. Athlete - No.

A. J. Foyt (race car driver - same NASCAR skills)
Fat, smoking, race champion - yes.
Athlete - no.

And while we're on the subject; please don't call Golfers athletes. Any sport that would claim that a cart driver has an unfair advantage over walkers strolling across manicured grass fields is not a sport of athletes. Is a short walk really so taxing? Only to the chronically out of shape, non-athlete.

Past golf champions tell the story:

John Daly
Drunk, obese, smoker - yes
Athlete - no

Craig "The Walrus" Stadler
Obese, smoker - yes
Athlete - no

‘Nuff said.

Posted By : Rod

Yes, the blackmail paradox...

1. Free speec...

Message posted on : 2006-12-08 - 16:39:00

Yes, the blackmail paradox...

1. Free speech rights allow me to publish embarassing information about someone (in many cases).

2. There's nothing immoral or illegal about asking for money in exchange for a service (in most cases).

3. But when 1 and 2 are combined, we call it blackmail and make it illegal. How can it be that the combination of two legal acts could make something illegal?

Posted By : Anonymous

But does perception shape the law here, or the oth...

Message posted on : 2006-12-09 - 11:19:00

But does perception shape the law here, or the other way around? Doesn't recognizing fighting words legitimate physical violence based on only words?
Posted By : Anonymous

North Carolina did lose a sports law professor to ...

Message posted on : 2006-12-10 - 02:52:00

North Carolina did lose a sports law professor to William and Mary (Prof George, whose husband became dean of students there), but I believe there is a faculty member (and lawyer) from another department who plans to teach sports law in Prof George's stead.
Posted By : Anonymous

I think it would be certainly interesting to see i...

Message posted on : 2006-12-10 - 10:06:00

I think it would be certainly interesting to see if there are certain "default" majors for student-athletes at particular colleges. That might be a very interesting area for exploration.
Posted By : Anonymous

This pitcher never pitcehd in the Major leagues, b...

Message posted on : 2006-12-10 - 11:34:00

This pitcher never pitcehd in the Major leagues, before, he like, all imports from there should take low year, avg. pay so if they are good, they can leave in three years or sign a big deal, ala Ichiro, or they can stink and the team can get rid of them ala Kaz Matsui. Boras should realize this in negotioations.
Why should stupid owners, or teams that need players for different value, determine the market, when it is clear, that each player is woth different for each team.

Posted By : Anonymous

Damn, now I can't find the evidence that I was rig...

Message posted on : 2006-12-10 - 11:52:00

Damn, now I can't find the evidence that I was right when I posted back when this story first broke that there was no way the Sox were going to reach a deal. However, my speculation was that the Sox would be the ones who would not negotiate in good faith, since it would be more valuable for them to basically use the time to build rapport with Matsuzaka, and to imply that if he waited in Japan for a couple of years, he'd be in for a really rich deal at the end of that time. In the meantime, the Yankees wouldn't be able to get their grubby paws on the guy. Boras is just a handy scapegoat for what the Sox were going to do anyway.

I despise Boras as much as the next guy, but even taking everything the paper says at face value, it doesn't seem that Boras is negotiating in bad faith. He knows that the posting fee weighs heavy on the mind of the Sox, and he knows that, because of it, his client may not get paid commensurate with his market value. He's making arguments that reflect that position. In the end, though, his duty is to his client, and if his client is better served by two more years in Japan and then a big fat contract, then he's negotiating in good faith. He's laid his cards on the table. He doesn't not want a deal to get made, which would seem to be a preliminary requirement for bad faith in any circumstance --- he just doesn't want his player negotiating on the basis of money paid that he won't see a dime of: a reasonable position.

Posted By : Collin

I still don't see what is preventing Matsuzaka fro...

Message posted on : 2006-12-10 - 12:12:00

I still don't see what is preventing Matsuzaka from getting a kick-back from his Japanese team? Just because MLB says you can't doesn't mean that the posting system doesn't allow it.

Also, for the Sox to offer "Jason Marquis" money is ridiculous. Matsuzaka has been referred to as one of the top 5 pitchers in baseball and a "National Treasure." Such high praise for an individual is recognition that he is well worth what Boras is asking for.

Sending Matsuzaka back to Japan might affect Boras' reputation over-seas but only until Matsuzaka cashes in for that 7 year $140 million deal two years from now. Then I suspect that clients will be lined up trying to ride the Boras train.

Posted By : Anonymous

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Message posted on : 2006-12-11 - 07:22:00

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Posted By : Anonymous

This issue will place lots of high school girls an...

Message posted on : 2006-12-11 - 10:10:00

This issue will place lots of high school girls and boys at a disadvantage.
This not only affects those who play sports that will now be in the same season i.e. volleyball, football cheerleading, and girls golf, but also boys that play golf that have been told by the golf courses that host them they will not longer be golfing there if their season is switched to the spring. Take girls and boys basketball, with their season running at the same time smaller school districts will not be able to handle scheduling gym time for all of the teams.
These are just a couple of reasons you need to leave the seasons the same.
Think about this, what are we saying to these athletes?

Why would you change something that has worked for our state and it benifits so few?

Posted By : Anonymous

Mr. Oliva again (second time in a few days) makes ...

Message posted on : 2006-12-12 - 10:39:00

Mr. Oliva again (second time in a few days) makes a very ill-fitting analogy between Stern and the CEO of a publicly-traded corporation. If you insist on using this poor representation, then you must rather look at the players and team executives as "employees" of the NBA organization, rather than shareholders, as the league is not in any way a publicly-traded organization, but rather a private one. Clearly if the employees (not shareholders) of a company were to come out in the media and take shots at the CEO, they would be penalized. Period. And not just nominal fines, but likely terminated in most cases.

"His policies are designed to do little more than consolidate his own power without benefiting the league or its customers. One example is the off-the-court dress code imposed on all players starting in 2005..." It seems very apparent to those of us with sport marketing backgrounds that Commissioner Stern instituted this policy for marketing/branding purposes, reflecting concerns about the image of the league and its players given the demographic makeup of the league's customer base. Now, Mr. Oliva, if you have some proof to support your argument that Stern is more concerned with his own power than in benefitting the league that employs him, I'd be interested in hearing it.

Posted By : Chad McEvoy

Interesting. Another in the long list of things I...

Message posted on : 2006-12-12 - 10:40:00

Interesting. Another in the long list of things I would have never thought of.
Posted By : Chad McEvoy

Interesting post. Most NCAA Division I athletic p...

Message posted on : 2006-12-12 - 10:54:00

Interesting post. Most NCAA Division I athletic programs I'm familiar with utilize university counsel for these purposes, meaning that the athletic dept. doesn't have its own internal attorney, but rather uses the larger university's in-house counsel.

I believe you're absolutely correct Rick with regard to the negotiating leverage issue. The reason so many high-profile coaching contracts look one-sided (i.e. favoring the coach vs. the school) is that they are. The high-profile coaching candidate has employment options and, via simple supply-and-demand, can use that to pressure the potential employer into drafting a contract that strongly favors the coach's position.

Posted By : Chad McEvoy

The MLB need's to end Boras association with the l...

Message posted on : 2006-12-12 - 14:22:00

The MLB need's to end Boras association with the league and prevent him from representing anymore mlb clients.
Posted By : Anonymous

he's heating up...

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Message posted on : 2006-12-13 - 01:07:00

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Posted By : Anonymous

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Message posted on : 2006-12-13 - 04:52:00

Soccer Live Matches At Your Desktop
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There are thousands of High Quality Channels streaming live football from around the world. We are here to show you how to find them. Receive live match links in your mail account. English Premiership Football and European Soccer Streams. Note all matches are as per BST.

Special Introductory offer:
Live match links in your mail account at only £1.00 GBP. Free for First Day if you subscribe it now.

1. Free Software:
We will provide you all software you need to get live match at your desktop.

2. Low Cost:
Free for the first day, Receive live match links in your mail account @ £1.00 GBP for each 2 weeks.

3. What's Needed:
Just need is to click on the link, start the software and match is on your desktop.

3. Live Soccer:
Watch live soccer online on your PC no need of buying Sky or Cable?

4. Is It Legal?
We donot stream live football from this server or blog. There are thousands of High Quality Channels streaming live football from around the world. We are here to show you how to find them.

Check it Once
http://www.soccerlivematches.blogspot.com/

Soccer Live Matches At Your Desktop

Posted By : Anonymous

The exerpt below is flawed. The reason Topps need ...

Message posted on : 2006-12-13 - 10:03:00

The exerpt below is flawed. The reason Topps need players consent is because their pictures are used on the front of the card. A whole different ballgame :)

"Judge Medler's decision appears to be at odds with existing case precedent holding that Topps is not allowed to print and sell cards without the players' consent. How is the use of players' names and stats on trading cards any different from their use in fantasy leagues?"

Posted By : Anonymous

Professor,

Great point in this issue. At t...

Message posted on : 2006-12-13 - 12:59:00

Professor,

Great point in this issue. At times, university clients of ours have used our firm for these purposes, but they have not been consistent and it has resulted in problems when coaches move on or are terminated. Often, university counsel are not sensitive to many of the important issues that arise in athletic contracts.

Posted By : Anonymous

Is this a sports law blog or just a "ranting forum...

Message posted on : 2006-12-13 - 19:26:00

Is this a sports law blog or just a "ranting forum" regurgitating stuff that has been said before. Why doesnt someone write on how the NLRB grievance could have influenced the decision? Cuts on hands resulting in injury to union members therefore providing an unsafe working enviorment? Anyone want to write on some real legal issues?
Posted By : Brian Cuban

Collin, why is the fact the Pats have an exchange ...

Message posted on : 2006-12-14 - 03:23:00

Collin, why is the fact the Pats have an exchange relevant to who is right or wrong, or legal? If you look at the much lower number of tickets on their exchange vs. StubHub or eBay it is clear where fans are on the issue. Chris, how can you say that the Pats don't benefit - the exchange has a cover charge - the $100 a seat to be the waiting list. Plus, once they wipe out the competition what is to stop them from raising prices? (hint: google "Ticketmaster fees" for a little glimpse of the future)
Posted By : TG

Excelent post and excelent final comment on the na...

Message posted on : 2006-12-14 - 05:32:00

Excelent post and excelent final comment on the nature of Charities.

It is refreshing to discuss whether a Foundation is being well run, with its end and social purpose a given.

In other countries, charities held by athletes serve the dubious purpose of tax evasion. So this post is perhaps the reflexion of how well things are, by comparison to the rest of the world.

Posted By : Luis Cassiano Neves

"In other countries, charities held by athletes se...

Message posted on : 2006-12-14 - 07:58:00

"In other countries, charities held by athletes serve the dubious purpose of tax evasion."

LCN, this is exactly what the NCAA has become, in addition to its extended family of networks known as intercollegiate athletic departments which now (according to R.K.'s post) will (or should or might) hire a barrage of lawyers to protect their own legal interests.

Certainly, protecting non-profit status would be part of the college lawyer's job description in addition to drafting simple coaching contracts which could actually prevent college coaches and their agents from running the roost (to reflect M.Brand's concern).

Of course, using the word "nepotism" in the title of this article is not politically correct as it only refers to the male "species" which, too, is now under attack by the NCAA and the CWA for providing voluntary and free practice services for/with women's basketball teams in violation of title ix. Yes, we're talking about practice (A.I.).

No doubt this will be addressed in the title-ix blogspot and this sports law website will be accused of being insensitive to females, then a study will be done in central florida on racial injustices in sports law blogs and there will be a scorecard each year on it as well.

In the end, we can all blame Andy Roddick's mother.

Posted By : Anonymous

I'm sure Boras advised Matsuzaka to return to Japa...

Message posted on : 2006-12-14 - 09:49:00

I'm sure Boras advised Matsuzaka to return to Japan and wait out his free agency to either challenge the posting system or just to wait the two years and reap the $100 million payday for himself.

I'm also equally sure that Matsuzaka wanted to get the deal done now, which Boras was happy to do.

Boras extracted what he could given the nature of the one team bidding process. But in the end, it is always up to the player.

Posted By : Anonymous

I think you made an extremely important point. Pu...

Message posted on : 2006-12-14 - 11:44:00

I think you made an extremely important point. Putting the client first seems to be but a faint thought among many of today's agents. Agent's should be more focused on adequately representing their clients (to the client's satisfaction)than about power, money and being regarded as the "tough-guy." According to Mark Twain, "virtue has never been as respectable as money," and I regretfully believe that this is the disposition of many of the high profile agents.
Posted By : Paul Williams

...interesting

Message posted on : 2006-12-14 - 12:43:00

...interesting
Posted By : Anonymous

Amazing post. Great summary.

Message posted on : 2006-12-14 - 12:57:00

Amazing post. Great summary.
Posted By : Anonymous

I agree - great post. Lamar Hunt is the answer to...

Message posted on : 2006-12-14 - 15:15:00

I agree - great post. Lamar Hunt is the answer to the following trivia question: "Who is the only person to be inducted to the hall of fame for both football and tennis?"
Posted By : Ryan Rodenberg

Maybe the schools shouldn't sign agreements in pri...

Message posted on : 2006-12-14 - 18:05:00

Maybe the schools shouldn't sign agreements in principle. Anyone know which parts of these AiPs with coaches are made binding, if any?

Apparently there's no "joint public disclosure" clause that's binding, in the way that you'd see in an AiP between two parties to a merger...either that or the clause doesn't say what it should.

Posted By : ChapelHeel

I like this quote: "She and Andy are classless wh...

Message posted on : 2006-12-14 - 18:08:00

I like this quote: "She and Andy are classless when it comes to dealing with celebrities."

Is "class" somehow dependent upon the recipient? Perhaps celebrities demand more class than us mortals.

Perhaps in this context "class" is a refined word for ass-kissing.

Posted By : ChapelHeel

Don't forget McConnell v. Hunt Sports Enterpriz...

Message posted on : 2006-12-14 - 18:27:00

Don't forget McConnell v. Hunt Sports Enterprizes, 725 N.E.2d 1193 (Ohio 1999).

McConnell and Hunt formed an LLC for purposes of getting an NHL franchise in Columbus, OH. They were negotiating with Nationwide Insurance regarding building an arena, but Hunt kept rebuffing them (without consulting other LLC members).

The LLC Operating Agreement said "Members shall not in any way be prohibited from or restricted in engaging or owning an interest in any other business venture of any nature, including any venture which might be competitive with the business of the Company."

Uh-oh. McConnell decides that since Hunt is unilaterally turning down Nationwide's proposal, McConnell would meet with Nationwide personally -- not on behalf of the LLC, but on behalf of himself and an investment group. The NHL expansion committee then awarded the Columbus franchise to the McConnell group, and not the LLC, leaving Hunt out in the cold.

McConnell sought a declaratory judgment to establish his group's right to the NHL franchise outside of the LLC. After a jury trial, McConnell won on a directed verdict. Hunt appealed in the case cited above.

Hunt emphasized the word "other" in the language quoted above...any business venture OTHER than the business of obtaining an NHL franchise for Columbus.

McConnell emphasized the words "of any nature" in the language quoted above.

The court agreed with McConnell, since "of any nature" was clearly intended to be broad permission to compete. In addition, the court found McConnell's actions not to breach any fiduciary duties, because the operating agreement specifically allowed competition.

The court does not so say, but in the absence of the Operating Agreement, the duty of loyalty would prevent what McConnell did. However, while the LLC Acts in most states do not permit the parties to eliminate the duty of loyalty, they permit the Operating Agreement to "identify specific types or categories of activities that do not violate the duty of loyalty." See Uniform LLC Act s.103(b)(2).

I'm not sure a clause that permits competition "of any nature" with the business of the LLC satisfies the "specific type or categories" language, since it isn't very specific...quite to the contrary. A clause that permits competition "of any nature" is dangerously close to eliminating the duty of loyalty altogether.

Or is it? The duty of loyalty isn't limited to corporate opportunities. Arguably you can eliminate the corporate opportunity doctrine through the Operating Agreement and leave the other aspects of the duty of loyalty intact (e.g., self-dealing). Voila...no elimination of the duty of loyalty...just one aspect of it.

Posted By : ChapelHeel

I enjoyed your analysis Michael, but I have two qu...

Message posted on : 2006-12-14 - 20:06:00

I enjoyed your analysis Michael, but I have two questions for you. First, will this make Boston a winner in 2007? And, second, do you see A-Rod going to the mets? Ian H.
Posted By : Anonymous

Excellent post.

Thanks for showing us more ...

Message posted on : 2006-12-15 - 02:14:00

Excellent post.

Thanks for showing us more sides to this issue. I read the source article earler and found myself cringing at the author's see-through agenda.

Posted By : Anonymous

I'm of the opinion that we need a journalist shiel...

Message posted on : 2006-12-15 - 10:27:00

I'm of the opinion that we need a journalist shield law on the federal level. As demonstrated in the Lance Williams/Mark Fainaru-Wada case, government bullying has the potential to have a chilling effect across the board on reporting, including stories within the world of sports.

The contempt of court charge strikes me as being a violation of the First Amendment, which states that Congress shall make no law abridging the freedom of the press. Any action that limits that freedom, in my estimation (short of issues like action against libel) is in direct violation of the First Amendment.

Posted By : Lou P.

Thanks for these excellent comments. In response ...

Message posted on : 2006-12-15 - 12:15:00

Thanks for these excellent comments. In response to the two questions asked by Ian H.:

1) I believe the Red Sox will be a contender in 2007, particularly if they sign Roger Clemens, as is being rumored. Even as presently constituted, the rotation looks formidable:

Curt Schilling
Daisuke Matsuzaka
Josh Beckett
Jonathan Papelbon
Tim Wakefield

I do have concerns about the bullpen and the lack of a closer, but that's a very good rotation, especially if Beckett improves and Papelbon transitions well into the rotation.

The lineup also looks good

Julio Lugo
Kevin Youkilis
David Ortiz
Manny Ramirez
J.D. Drew
Mike Lowell
Jason Varitek
Coco Crisp
Dustin Pedroia

2) In terms of A-Rod going to the Mets, it's an interesting idea, but I don't see the two New York teams working out such a deal.

Posted By : Michael McCann

Thank you for these thoughtful comments, and I app...

Message posted on : 2006-12-15 - 12:17:00

Thank you for these thoughtful comments, and I appreciate the kind words about the post.
Posted By : Michael McCann

The Sports Aficionado,

Thank you for your k...

Message posted on : 2006-12-15 - 12:19:00

The Sports Aficionado,

Thank you for your kind words about this post, I appreciate them.

Posted By : Michael McCann

I think Rocker is a lot smarter than we give him c...

Message posted on : 2006-12-15 - 15:01:00

I think Rocker is a lot smarter than we give him credit for. It's easy to dismiss him as an ignorant redneck, but the man is obviously using inflamatory rhetoric to promote his new book or at least a desire to find a publisher. He has gotten his name in the paper again at least.
Posted By : Anonymous

What constitutes "substantial risk of personal inj...

Message posted on : 2006-12-15 - 16:07:00

What constitutes "substantial risk of personal injury?"

Being a fan of Guitar Hero, while it's not much like playing a real guitar, I think it is like any repetitive motion (think anything from sports to music), in that if you perform it many times in the incorrect manner, or without proper time to rest, it can lead to injury.

I feel that if you broaden dangerous activities beyond other sports (no basketball clauses like Aaron Boone's), motorcycles and other high-risk vehicles, or extreme activities (sky-diving, rock-climbing, BASE-jumping, etc.), you'll run into a lot of activities you might not have anticipated.

Guitar Hero, in terms of risk to the user, is probably as dangerous as typing on a keyboard or playing a musical instrument - if you don't rest and have improper technique, you can get injured. Carlos Zambrano claimed injury from instant messaging his brother too much, and as far as I know, the Cubs didn't tell him to curtain his AIM usage.

I feel that video game injuries have to be treated like the freak injuries (washing car, carrying deer meat up stairs, AIM etc.). Otherwise, we'd have to probably take Bronson Arroyo's guitar away, as well as the drumsticks of any drummer in the MLB - drumming can be murder on the wrists, I hear.

Posted By : Satchmo

While I have no objection to a journalist shield l...

Message posted on : 2006-12-15 - 16:12:00

While I have no objection to a journalist shield law, I believe this case assures that any such law should be carefully drawn with significant limitations.

Investigative journalism - once called muckraking - has brought an end to more than a few illegal behaviors and created famous scandals - Teapot Dome, Watergate, Iran/Contra to name a few. That's not exactly what happened here.

In those cases, the journalists found out that laws were broken and revealed the fact and got the perpetrators punished. In this case, the law was broken (leaked grand jury testimony) and the journalists are now protecting the identity of the person who broke the law by giving them the copies of the testimony.

If I were to try to paint the reporters in a really bad light I would say they were in receipt of stolen property, were aiding and abeting the criminal behavior here, and had profited by the criminal behavior since they wrote a book using the testimony garnering fame and fortune for themselves.

I don't think that's the kind of protection that Jefferson and Madison and their colleagues thought needed to exist.

Oh, and if reporting on this case is correct, all persons who had access to the testimony have been deposed under oath and all have denied leaking it. If indeed the perpitrator is in that group of folks, then that person is also a perjurer and remains unidentified by the silence of these reporters.

I'm not sure this is the world's best case for justifying or crafting a journalist shield law.

Posted By : The Sports Curmudgeon

We should broaden the clause to include any use of...

Message posted on : 2006-12-16 - 05:43:00

We should broaden the clause to include any use of consumer electronics or musical instruments, as well as social dance. Why not?
Posted By : Anonymous

death metal neo-fascist rave DJ???

Don't he...

Message posted on : 2006-12-16 - 20:00:00

death metal neo-fascist rave DJ???

Don't hear about that very often =.O

Posted By : Anonymous

how many of those arrested were not african americ...

Message posted on : 2006-12-17 - 12:23:00

how many of those arrested were not african american?
Posted By : BRIAN

Your post was as well written and logical as any I...

Message posted on : 2006-12-17 - 15:09:00

Your post was as well written and logical as any I have read in quite a while. I think your last sentence sums up your strong argument and my thoughts on this issue: "But in a society where alcohol and sporting events go hand in hand, and effective monitoring is not really an option, it seems ridiculous to hold the beer vendor responsible for the consequences of one man's senseless act."
Posted By : Anti Alcoholism Guy

I've been running a blog on the possibility of Was...

Message posted on : 2006-12-17 - 18:53:00

I've been running a blog on the possibility of Washington re-instituting the draft for a year now. It's scary how close these guys are to it, though I doubt anyone with any kind of serious athletic/money-making potential would have much to worry about.

http://drafted.blogspot.com/

Posted By : Trevlin

Thanks, Michael for your excellent response. Do y...

Message posted on : 2006-12-17 - 21:16:00

Thanks, Michael for your excellent response. Do you know if it's true that the manager that traded Babe Ruth got punched in the nose by a taxi driver because he traded Babe just because he wanted to go to a Broadway show in New York? And do you know what team Trot Nixon is going to, or is he going to retire? (These are some of my last questions -- unless something big happens in Red Sox nation.) Thanks. Ian H.
Posted By : Anonymous

ChapelHeel,

You raise some good points, and...

Message posted on : 2006-12-18 - 07:12:00

ChapelHeel,

You raise some good points, and that's why I said maybe an in-house attorney on staff in the athletic dept. could be helpful to aide the process at the front-end when the agreement is reached in principle. For the most part, I don't think they are signing AiPs or LoIs as usually happens in the context of mergers and acquisitions.

But regardless, I think that in the merger/acquisition negotiation context, one party doesn't typically have greater leverage over the other in threatening to walk away (to the extent they legally can) after the AiP is reached like the coach does in the negotiations with the university, which makes it somewhat unique that way.

The other dynamic here is that you have an employer-employee relationship, with provisions that are not very typical in this type of relationship (liquidated damages, buyout clauses). I guess the closest analogy would be a high profile CEO hired from outside the company, but it's still different in that the company would have no problem telling its shareholders and customers that they just couldn't agree on the terms of the contract -- he wanted too much money or whatever. When the company says the CEO wanted too much money, that actually can make the company look like it is making sound business decisions. But when the university complains it makes them look like they don't want to win.

Posted By : Rick Karcher

Thanks Ian H. I didn't know that about The Babe, ...

Message posted on : 2006-12-18 - 20:03:00

Thanks Ian H. I didn't know that about The Babe, thanks for sharing. He had quite an effect on people while he was alive, and maybe also, given the "Curse of Bambino," quite an effect long after he died.

In terms of Trot Nixon, I heard the Pittsburgh Pirates are interested in signing him. I think Trot would rather return to the Red Sox and finish his career with the team that he has always been with. And maybe he'll get that opportunity--it will be interesting to see what happens with J.D. Drew. He still hasn't officially signed with the Sox, as apparently the team is concerned about his health after he took a physical. I imagine they would consider signing Trot if they back out of the Drew contract.

Posted By : Michael McCann

The online casino is an improvement in convenience...

Message posted on : 2006-12-20 - 12:55:00

The online casino is an improvement in convenience of the brick and mortar casino. Online Casinos Extreme today offer a complete software solution to all of gaming desires. You may download and intstall the casino software on your PC, but many online gambling sites also provide the player with the option very quick flash or java games.
Posted By : ciscoblog

How ironic that a post about Mcpherson is spammed ...

Message posted on : 2006-12-20 - 13:16:00

How ironic that a post about Mcpherson is spammed by an on-line casino.
Posted By : Anonymous

I believe that the Titans have a very good argueme...

Message posted on : 2006-12-20 - 20:56:00

I believe that the Titans have a very good arguement in this situation. McPhearson was hurt however, it seems to have been a huge accident by whoever was the mascot. Of course for the involvement in this accident it is only fair that the person who was acting as the mascot receive huge punishment for their involvement in this incident. I just do not beleive that this accident is worth five million dollars.
Five million dollars is a huge amount to ask for for a fourth string quarterback. McPhearson is presently playing in the Arena League which doesn't show much for an injury. If someone was injured five million dollars worth they would not be able to play any type of football. I jujst do not think this injury is worth 5 million dollars because McPhearson is now playing football.

Channing Brown

Posted By : Anonymous

On the issue of vicarious liability, was the masco...

Message posted on : 2006-12-21 - 11:02:00

On the issue of vicarious liability, was the mascot entertaining the crowd with some stunt or was it just driving around? Could the club be held liable at all for some stupid action by its mascot that had nothing to do with its job description?
Posted By : Anonymous

For vicarious liability, the test is whether the e...

Message posted on : 2006-12-21 - 14:04:00

For vicarious liability, the test is whether the employee was acting within the scope of employment at the time. The incident occurred during halftime, and the mascot was carrying out his job duties as a mascot when he was driving around on the golf cart as well as carrying out stunts. It doesn't matter whether he was performing a stunt or not at the time. Doing something "stupid," as you mentioned, is another way of saying he was negligent. But if he intentionally hit McPherson, then there would be no vicarious liability.
Posted By : Rick Karcher

Chris Shayes transferred from the Intelligence Com...

Message posted on : 2006-12-21 - 18:21:00

Chris Shayes transferred from the Intelligence Committee; there were alot of leaks or covert financing issues - to steroids?
Posted By : Anonymous

I believe that whatever really happened that 5 mil...

Message posted on : 2006-12-24 - 19:05:00

I believe that whatever really happened that 5 million dollars is way to much to ask for. It sounds like McPherson is probably never going to make the big bucks again. In response to him being cut he is taking advantage of the legal system and trying to get his retirement money the easy way.

I personally have being seriously injured in a car accident. I was almost killed by a drunk driver. All I am asking for is that the drunk in the other car pay for all damages and be put in jail for being a irresponsible person. I will probably only get 10,000 dollars, if I'm lucky. Now, this McPherson guy got a bruise on his knee, in my eyes he is just a big baby that looks to no longer have a career in the NFL.

Posted By : Philip Brauer

Two points:

1) Why is the evidence related ...

Message posted on : 2006-12-28 - 20:43:00

Two points:

1) Why is the evidence related to other players not seizable under the plain-view doctrine? The court didn't reach this question because it found the evidence seizable under the terms of the warrant, slip op. at 19818 n.39, but surely evidence of a positive drug test found while legally on the "premises" searching for evidence covered by a warrant should be seizable, should it not?

2. Why do the players have standing to contest the search and seizure? The majority brushes cursorily holds that they do, slip op. at 19801, but it is not obvious to me why that is the case.

Posted By : Anonymous

That would be very interesting indeed if President...

Message posted on : 2006-12-29 - 02:13:00

That would be very interesting indeed if President Bush became commissioner. Its something I have never thought of, but it makes perfect sense. Remember when Paul Tagliabue retired and rumours were going around the Jeb Bush would be the next NFL commish? Wouldn't that be interesting if that had happened and Dubya took over baseball. Hmmm......
Posted By : Anonymous

Anonymous,

I'm glad you raised the plain vi...

Message posted on : 2006-12-29 - 07:29:00

Anonymous,

I'm glad you raised the plain view doctrine. Interestingly, the government relied on that doctrine at the district court level and lost, and the reason the govt. lost is because the doctrine is simply not applicable. And I believe the reason the 9th Cir. didn't address the question at all is because the court knows that if it justified the seizure on plain view, it wouldn't stand a chance of being upheld on appeal. So instead, the court is upholding the seizure on the grounds that the initial warrant covered all of the computer files and data on non-targets because "it's difficult and impracticable to segregate". But that, by definition, means that any incriminating evidence on non-targeted individuals is not in plain view! If the govt. must take it off site in order to parse through it all, and do further searches in order to piece it all together, how can that possibly be in plain view?

But hypothetically speaking, even if there was evidence of positive test results linked to the names of non-targeted individuals in plain view on site, there is an assumption here that the medical records on these non-targets in and of themselves constitute "incriminating" evidence that would allow the govt. to seize it. Does a positive test result give the govt. probable cause that a crime has been committed? Maybe it's a false positive, or maybe the positive test is the result of taking a legal steroid.

Bottom line is that the reason this seizure is so egregious is because the govt., at the time of the search, KNOWS it is seizing confidential records on thousands of individuals for which it KNOWS it has no probable cause. If the govt. is correct that all of the electronic data is impracticable to segregate on site (because it is disputed whether that was even the case), there is no reason why the govt., in this situation, can't put the records under seal with the court and have a magistrate oversee the segregation process to ensure confidentiality and privacy of the non-targets. Can you tell me why that wouldn't be the right thing to do? Such a procedure would not prejudice the govt. because it allows the govt. to obtain the evidence on targets for which it has probable cause, but would also preserve the Fourth Amend. privacy rights of the non-targets.

Regarding the standing issue, I don't see why there should be a concern. The affected players all have identical interests. What would be the point in requiring each individual to bring a separate suit?

Posted By : Rick Karcher

Thanks for the reply.

1) I'm unconvinced ...

Message posted on : 2006-12-29 - 09:44:00

Thanks for the reply.

1) I'm unconvinced by your argument against plain view. The government took the evidence off-site because it was too time-consuming to search on-site. But it's clear that the government could have waded through those files on site file by file. Assuming that's correct, then as the government went through the Tracey directory file by file, each file would be in "plain view." To take a non-digital example, imagine the police are looking for certain paper records in a giant warehouse. They cannot be sure where in that warehouse those papers are, so they leaf through each page. As they're leafing through each page, that page is seizable under the plain view doctrine, is it not?

2) I think you're putting too high a burden on what qualifies as seizable evidence under the plain view doctrine. There only needs to be probable cause to suspect that you've discovered evidence of a crime. Under the circumstances, a positive drug test, even given the possible meanings you've described, would qualify as probable cause.

3) I agree with you that "best practices" would be to have a magistrate go through the material first and I believe the AG's manual recommends this procedure. The difficult question is whether this procedure is required by the Fourth Amendment. Surely the Constitution does not require that "best practices" be used in all cases. Though you make a good point; with the increased use of electronic databases, the plain view doctrine as I've described it seems to give the government carte blanche to go through any electronic record it wants.

4) I should have been clearer on my standing point. I completely agree that the players association has standing of the individual players have standing. But why do the individual players have standing? For example, if the police illegally search Person X's house but happen to find evidence that incriminates Person Y, then Person Y cannot suppress the evidence, correct? How is that different than this situation? (There may very well be good reasons and precedent to distinguish this case, but the majority didn't cite to anything and I'm not a Fourth Amendment buff.)

Posted By : Anonymous

Anonymous,

Thanks for the great comments. ...

Message posted on : 2006-12-29 - 11:02:00

Anonymous,

Thanks for the great comments. I do see your point on number 2), but I do think it's a secondary argument that's worth discussion.

The real issue pertains to what you said in number 1). In this case, the lab personnel informed the investigators that the electronic data was fairly easily segregable, but the investigators didn't believe them. The 9th Cir. held that the govt. has full discretion to make that determination despite whether it was actually segregable and despite what the lab had told the investigators. To me, that's where the court is wrong because it gives the govt. unfettered discretion. Why not let the magistrate make the determination?

As you said, the govt. took all the files off-site because it was too time consuming. There's no such thing as the "too time consuming" exception to the Fourth Amendment. In your example, if those in charge of storing the records at the warehouse had told investigators that the two boxes on the shelf are the records that pertain to the targets, then no, the investigators would not be able to look through the other boxes. And if there are records pertaining to the targets that are intermingled in the other boxes along with the records of non-targets, then those in charge of keeping the records can give the govt. those records (and if the govt. doesn't trust the keeper of the records or the keeper says I have no idea how to segregate them, then a magistrate can do it). The way I understand this case is that the govt. was only able to link individual names of the non-targets to positive test results because it had access to and was able to extensively "search" off-site multiple files that didn't even contain any evidence whatsoever pertaining to the targets. So in other words, the govt. not only seized "intermingled" evidence that they said could not be segregated, but they also seized evidence that was not even intermingled! -- But that's the danger if the courts give the govt. that much discretion to make the determination.

One issue that I haven't discussed is why there is even a need for a warrant involving test results. Typically, medical records are obtained via subpoena because there isn't the urgency like there is with drugs in a house, which allows objections to be heard through motions to quash, etc. Why is this situation so compelling that it requires a raid on the computers?

Posted By : Rick Karcher

This is destined for an en banc rehearing. The rul...

Message posted on : 2006-12-29 - 14:06:00

This is destined for an en banc rehearing. The rule set out by the majority is truly scary. Suppose that the government has a warrant for someone's phone records. Because the inidividuals records at the phone company are contained in a database and "intermingled", the government under the majority rule can search ALL OF THE RECORDS in the database for evidence of criminality and the evidence will be admissible, although it has no probable cause, particularized reasonable suspicion, or any suspicion at all for anyone other than the original person. (This rule allows the entire illegal NSA telephone surveillance, for example, to be used as admissible evidence as long as you can get a warrant for one phone call in the entire database.)

Rick, as to the warrant v subpoena issue, the dissent goes into great detail about the lengths the government went to avoid having its subpoena quashed, including shopping the warrant to magistrates in the Northern, Central, and Eastern Districts, not telling the various courts about the MLBPA's pending motion to quash, outright lying to opposing counsel about various agreements, etc. etc.

Posted By : ABP

Wow. Great, great comments. I'm not a lawyer, or ...

Message posted on : 2006-12-29 - 16:15:00

Wow. Great, great comments. I'm not a lawyer, or in law school, but I downloaded the entire document, and, while most of it was a bit dense; the dissents and opinions were illuminating, as was the exchange I highlighted on my website where the Judge seems incredulous that the government (was it Novitzky?) didn't wait for due process.

Here's a question for you legal beagles:

How can the government get away with so many apparently shady moves? Don't the judges involved have the ability to either censure them for their actions? What about the defense attorneys? How come they haven't filed a motion to do so?

Is that just a layman's ignorance? There appeared to be multiple instances where the government appeared to be caught with it's proverbial hand in the cookie jar. Nothing appeared to happen because of this. Why?

Posted By : John J Perricone

Forgive my ignorance and naivety, but if a decisio...

Message posted on : 2006-12-30 - 01:26:00

Forgive my ignorance and naivety, but if a decision to have the magistrate supervise the segregation was clearly the right move, why didn't the court rule that way?
Posted By : Jeff

Jeff,

I don't know how to answer your quest...

Message posted on : 2006-12-30 - 08:03:00

Jeff,

I don't know how to answer your question, other than to say that I think the court made the wrong decision. Just because a court makes a decision, doesn't mean it's the right one.

John,

You raise some interesting questions. From what I gather from the opinion, the govt. issued subpoenas and there were outstanding motions to quash them. The govt. also sought and obtained search warrants. The problem is that the govt. abused its discretion and authority in seizing information on site that went beyond the initial search warrant. When that happens, affected individuals can assert Fourth Amend. violation claims after the fact by attacking the validity of the warrant or the seizure of the evidence. The Ninth Cir. said the warrant was valid even though there were pending motions to quash the subpoenas, and that the seizure was valid because of the impracticability (according to the govt.) of segregating the data on site. If the court held the opposite way, then all of the evidence pertaining to the non-targets would be suppressed and could not be used as a basis for probable cause in further investigatory efforts against them. I think the court made the wrong decision, what can you do?

ABP,

You raise some good examples as to how this ruling, if upheld, would have such an expansive impact. The more I think about it, I don't understand why electronic data poses such a unique "intermingling" problem that the court had to make an exception here. It's really just another way of saying that the search is inconvenient, time consuming, etc., which has no bearing on the Fourth Amendment. Furthermore, the concept of intermingling can apply in many other contexts besides just electronic data, and if this opinion could be used as precedent in those situations, it's definitely scary as you say.

Posted By : Rick Karcher

From your last reply I think I've identified the c...

Message posted on : 2006-12-30 - 10:31:00

From your last reply I think I've identified the crux of our disagreement: how much should the government have to defer to searched persons who identify relevant materials when executing a search warrant? In your view, once the lab offered to identify the relevant files, the government, as a matter of the Fourth Amendment, must take their word for it, or have a magistrate go through the records first.

I think the first suggestion is untenable. The difference between a search warrant and a subpoena is that a search warrant allows the government to search without relying on the good faith of the other party to produce relevant the evidence sought. But I think you're second point has real merit. In these circumstances, it may well have been "reasonable" to require a magistrate to review the records first, without first requiring the players to make a motion to that effect. There must be some line drawn here, with the threat to privacy interests properly weighed. I need to see some other cases on this issue to see how other fact patterns shake out. Needless to say, reasonable minds can disagree on a given case and you've made a strong argument for your view.

I'm still curious about the standing issue though.

Posted By : Anonymous

How about we move away from former owners being co...

Message posted on : 2006-12-30 - 17:21:00

How about we move away from former owners being commissioner? Perhaps a little balance would be good.
Posted By : Anonymous

I always thought it was interesting that, until th...

Message posted on : 2006-12-30 - 17:21:00

I always thought it was interesting that, until the recent appointment of Roger Goodell, three of the four major sports commissioners were attorneys. It's unusual to see lawyers as CEOs in any industry outside the legal profession.
Posted By : Skip Oliva

To Anonymous:

The Commissioner is managemen...

Message posted on : 2006-12-30 - 18:34:00

To Anonymous:

The Commissioner is management, so it perhaps makes some sense that owners, who select the commissioner, would pick from their own ranks. The players have their own rep through the union head. During the big labor disputes in the '80s and '90s, there was talk of needing to restructure the league so that there was a "commissioner for all of baseball," chosen by the players and owners, with separate representation for the owners in labor and other negotiations.

Skip:

Not sure why, but the people attracted to sports business seem to come from the legal ranks.

Posted By : Howard Wasserman

I do like your thoughts of Bush as the head of MlB...

Message posted on : 2006-12-30 - 20:53:00

I do like your thoughts of Bush as the head of MlB to raise dispute. However, I do not understand how you believe that his political hatred in office will not carry over to a new high profile position. Bush has an approval rating of some 30%, and America is not going to suddenly adore his executive decision skills as another president. The CEO of Enron would not be suddenly loved in the position of President of America. People would absolutely protest Bush as the commissioner. I me come on, the liberals of America would be wondering if Bush was going to liberate the San Fran Giants for suspected steroids. I know you are just throwing the idea out there, but Bush as commissioner would be bad news baseball.
Posted By : Daddy

I do like your response, but let me say a few thin...

Message posted on : 2006-12-31 - 12:27:00

I do like your response, but let me say a few things in defense. First, the CEO of Enron doing illegal things, such as escalating the values in his accounting books, in my eyes is doing a bad job. Second, I understand that Bush is not popular, but popularity in presidency shows a direct connection between practices and decisions. Therefore, if baseball makes "unpopular" Bush the commissioner, they are setting themselves up for failure. The first wrong decision he makes will be scrutinized 10 times worse any wrong mistakes previous commissioners have made (David Stern new basketball). I am personally not a fan of president Bush, but I am smart enough to realize that baseball and presidency are mutually exclusive and even though I think he has failed as a president he could make it as baseball commissioner. With that said, I do not believe the rest of America is that smart, we live in a society of what have you done for me lately.
Posted By : Daddy

Bush will never be the owners choice for Commissio...

Message posted on : 2007-01-01 - 11:58:00

Bush will never be the owners choice for Commissioner for the same reason they let Peter Ueberoth go. A strong figure with a mind of his own, who can figuratively push the owners around if need be will never be a desirable candidate in the owners eyes. They will want another yes-man, lap-dog type.
Posted By : Charles Slavik, CPT*D

I'm a Vietnam veteran. Has anyone researched the ...

Message posted on : 2007-01-01 - 20:14:00

I'm a Vietnam veteran. Has anyone researched the percentage of professional athletes drafted in the mid-1960s to 1973? I'm sure the percentage is minute. How were they able to avoid the draft?

Lowell Carpenter

Posted By : Lowell Carpenter

Umm..... Are you guys out of your minds?

Bu...

Message posted on : 2007-01-02 - 15:39:00

Umm..... Are you guys out of your minds?

Bush is unpopular not because he is a bad President. He is unpopular because he has been a criminally negligent, greedy, stupid and completely incompetent, lying boob. He and the group of criminals he brought with him to the White House should be sent to jail. Any conversation about what Bush is gonna do after his term is up needs to start with the multitude of investigations that need to be undertaken to expose and prosecute him and his cronies for the virtually untrammelled corruption they have been guilty of FROM THE MINUTE HE TOOK THE OATH.

Posted By : John J Perricone

Excellent point, but what about the flip side to b...

Message posted on : 2007-01-03 - 14:33:00

Excellent point, but what about the flip side to buyout clauses? If a coach has an expensive buyout and he WANTS to take another job, he can be hampered because his prospective employer doesn't want to pay the heavy price tag. Case in point: John Beilein, basketball coach at West Virginia. He was up for a couple of jobs last year but couldn't go anywhere because he has a $3 million buyout. That's a lot of security, but it comes with a price.
Posted By : Seth Davis

I would suggest that perhaps Beilein's agent wasn'...

Message posted on : 2007-01-03 - 14:54:00

I would suggest that perhaps Beilein's agent wasn't overly successful in negotiating a more advantageous (i.e. lower) buyout during his last contract negotiations (he renegotiated an extension after his tournament success a couple years ago if I recall). I don't think its a coincidence that WVU football coach Rich Rodriguez has also long been rumored to have one of the most restrictive buyout clauses in the business.
Posted By : Chad McEvoy

Umm...where did I make any reference to Bush's pop...

Message posted on : 2007-01-03 - 16:27:00

Umm...where did I make any reference to Bush's popularity John? Be careful when you cast a wide net. I made mention of the fact that MLB owners will not pick a strong, populist, outside candidate. Although Bush and George Will have some insider traits. For the same reason, a guy like Bob Costas would never be acceptable. He would be feared as someone who could and would go over their heads directly to the people if he had to circumvent the owners wishes.
Posted By : Charles Slavik, CPT*D

Mind sending me a copy of that complaint? Can't s...

Message posted on : 2007-01-04 - 14:21:00

Mind sending me a copy of that complaint? Can't seem to find it anywhere else on the net
Posted By : Anonymous

what about a clause in a pro coaches contract that...

Message posted on : 2007-01-04 - 14:38:00

what about a clause in a pro coaches contract that prevented them from terminating their contract with their pro team to take a college job, would that work? is there an anti-trust issue there?
Posted By : Anonymous

"your mistake" is correct - not "you're" - unless ...

Message posted on : 2007-01-04 - 22:18:00

"your mistake" is correct - not "you're" - unless I'm misunderstanding what you meant. I really don't want to extend this error streak. Social science guy - correct me if I'm mistaken.
Posted By : Amused reader

Regardless, they deserve basic human rights and a ...

Message posted on : 2007-01-05 - 10:01:00

Regardless, they deserve basic human rights and a natural course of justice. The problem with tennis umpiring around the world is that you are flavour of the month one minute and kicked in the teeth the next!
Posted By : Anonymous

Anonymous,

What you are discussing is refer...

Message posted on : 2007-01-05 - 10:40:00

Anonymous,

What you are discussing is referred to as a restrictive covenant, and is actually quite common in many industries. It is typical, for example, for a coach's contract to include a list of schools that he/she may not terminate the current contract early in order to take, typically conference and/or geographic rival institutions. Outside of sport, restrictive covenants are common in industries such as the media, where television or radio personalities might be restricted from leaving to take a job at the rival station across town.

Posted By : Chad McEvoy

Actually a restrictive covenant is a term used in ...

Message posted on : 2007-01-05 - 11:58:00

Actually a restrictive covenant is a term used in real estate law. The correct term is a covenant not to compete or no compete clause. However, those will only be enforced if they are reasonable. That, of course, would be up to a court to decide. Further, this is not an antitrust issue unless you want to cap coaching salaries. Of course that will not work. Agents and A.D.s and college counsel all know what they are doing. No one has the guts to enforce any of these provisions out of fear or public criticism and to protect their OWN jobs. The truth is that buyout clauses are meaningless today in this environment since the colleges which "take" a coach from one school to another frequently will pay any "penalty" or "buyout clause." That way, no one is hurt and the agents and coaches laugh all the way to the bank. Myles Brand had better be prepared for the Congressional inquiry....
Posted By : Anonymous

If stadium related revenue (or a significant part ...

Message posted on : 2007-01-05 - 14:06:00

If stadium related revenue (or a significant part of it) is not included in revenue sharing in the NHL, then the whole stadium hunt is twice as important.
Posted By : Luis Cassiano Neves

Saban's contract should light another fire under B...

Message posted on : 2007-01-05 - 20:02:00

Saban's contract should light another fire under Brand. I agree that outside counsel (or on staff at larger universities) could help but Chad's comment about supply and demand seems more on point in driving the issue. In most of these cases, the coaches are in control.

Also, Rick touched on the public relations aspect towards the end of the post, but the pressure put on athletic departments to get their guy may outweigh desires of fiscal responsibility or a "fair contract".

Face it, most of the uprising over Saban's deal wasn't over the money, it was over how Saban dealt with the process.

Posted By : Joshua Golka

Likewise, the "if you build it, they will come" st...

Message posted on : 2007-01-06 - 00:46:00

Likewise, the "if you build it, they will come" strategy has also failed in the past.

When a city is trying to lure a team to town, the public financing costs go even higher because the team has the leverage of having multiple cities compete against each other. Moreover, if the team is not part of the construction design process, then once the owner does decide to move into the arena, there are millions of dollars of upgrades and changes that are made which are paid for by the public. For example, in 1990 the Suncoast Dome was opened in St. Petersburg at a cost of $138 million with the hopes of luring a MLB team. Finally, in 1998 the Tampa Bay Devil Rays began play in the facility and required upgrades of $70 million, 50% of the original cost.

Not only were there significant public costs above and beyond the original construction costs, but also the public was paying for a facility that did not have a major tenant for many years. There are other similar recent examples in New Orleans and San Antonio where the NBA owner required publicly financed upgrades of approximately 20% of the original cost.

It is a risky strategy for sure, especially for a city that is nearly tapped out on being able to support a new franchise, like Kansas City. A prospective owner will learn in their feasibility study that the population of the Kansas City metropolitan statistical area (needed for ticket sales, premium seating, merchandise, concessions, parking, and local media revenues), corporate depth (needed for premium seating, luxury suites, and sponsorship) is too low, and there are already two major pro sports franchises.

Breaking out certain factors (based on a study of NBA markets; http://www.humankinetics.com/JSM/viewarticle.cfm?aid=3975):
• Measured by population, Kansas City ranks 21st out of the 27 markets that have one or more NBA franchises.
• Four of the 7 markets ranked below Kansas City in terms of population now host only one major pro sports team. The other three markets host only two major pro sports teams. If Kansas City were to host an NBA or NHL team, it would be the only city to do so with such a low population base.
• Kansas City ranks 19th out of 27 in average household income. There are 6 non-NBA cities ranked above Kansas City.
• Out of 48 markets either with an NBA team or as potential markets, Kansas City is 2nd to last in terms of the ratio of the population per major pro sports franchise if it were to get an NBA or NHL team.

While not a perfect measure of the supply of potential customers, the other sports teams in town are certainly competitors for the local sports entertainment dollars. Only Milwaukee has a lower ratio of population per major sports franchise. With so few customers to go around, Milwaukee is consistently way below average in Major League Baseball attendance (although less so recently because of the current honeymoon from the new stadium) and way below league average in ticket prices – thus exhibiting lower than average ticket revenues. The Milwaukee Bucks are below the league average in ticket revenues also. In other words, the Milwaukee market is already saturated with sports entertainment and is having difficulty supporting its teams.

Moreover, the support for the Royals is well below average and the support for the Chiefs (while high in terms of attendance) is average in terms of dollars spent (tickets, concessions, sponsors, etc.).

When the NHL expanded in 1998-2000, the four expansion cities were chosen from a pared down list of six cities. The final two that were eliminated prior to choosing Nashville, Atlanta, Minneapolis-St. Paul, and Columbus were Oklahoma City and Houston, not Kansas City.

Of course...Pittsburgh has many of these same problems in terms of being able to support its teams.

Good luck Mario!

Posted By : Youre Kidding

Look I played basketball for a small D-2 school in...

Message posted on : 2007-01-08 - 03:33:00

Look I played basketball for a small D-2 school in florida and we generated plenty of money for our school because we made it to the tournament every year. Most of the money from schools like mine was generated from radio deals and tv deals with the conference. The crooks at the NCAA can't side with us(athletes) because they didn't live in an era when they needed to be paid. The NCAA back then could not charge 5,000 for Final four Tickets which is roughly the norm for decent seats at the championship venue. These idiots at the NCAA have forgetten what got them to this point, the athlete's themselves. For instance, College Football, they have made CFB so commercialized that it's no longer about the competition, it's about who sells out the stadium tickets. How many 6-6 football teams were in CFB this year, all of them could not be selected so it comes down to who can fill the seats. When the NCAA first started, cost of living was cheaper and the enconomy was practically nothing to what is is today. We will probably never see our athlete's being paid in our time, however something needs to change. Centainly, you have to look at the committee's that are putting these policies in place. How many minorities are on these committee's looking out for our athlete's. If you look at the top 3 sports(football, basketball, baseball) at each major D-1 University, you will notice one trend. IT IS DOMINATED BY MINORITIES, especially young black males. Until we can somehow get more representation in those board rooms that are implementing these policies nothing will be accomplished in terms of paying these athletes.
Posted By : bryant

Geoffrey,

Interesting post. I have not rea...

Message posted on : 2007-01-08 - 19:11:00

Geoffrey,

Interesting post. I have not read the opinion but it appears that the court, as often happens in this area of the law, is confusing the concept of vicarious liability with direct causes of action against the employer. When the court said that the league shouldn't be responsible under the exception if the player isn't responsible, that's a vicarious liability analysis. A direct claim can always be brought against the employer for negligent supervision, hiring, etc. I agree with you, it's a questionable ruling.

Posted By : Rick Karcher

Rick and Geoffrey,

Great post, and certainl...

Message posted on : 2007-01-09 - 22:44:00

Rick and Geoffrey,

Great post, and certainly confusing for those of us practicing in IL. One of my partners was involved in this matter. Let me see if I can dig up some additional insight.

Tim Epstein

Posted By : Tim Epstein

The baseball Hall's rules say voters may consider ...

Message posted on : 2007-01-10 - 10:22:00

The baseball Hall's rules say voters may consider character and other outside factors, while the football Hall specifically limits consideration to on-the-field activities.

On the larger point, it seems to me that media-only voting is riddled with conflicts of interest. There are numerous stories of voters punishing players who weren't good with the press. With the steroid issue, it appears that many writers are punishing McGwire for, in effect, exposing the media's own slow uptake. Bill Simmons of ESPN noted that Mike Lupica, one of the harshest anti-steroid crusaders, made a good deal of money from his book lionizing McGwire during his pursuit of the home run record. Lupica, Simmons noted, didn't exactly return the money he made from his book.

Simmons made another good argument that the Hall of Fame is a museum, and as such it should not be sanitized to include only players deemed morally perfect. The Hall should include players of great historical significance, not just those deemed ethically worthy by the media.

Posted By : Skip Oliva

Excellent post, and I think too many outlets—inclu...

Message posted on : 2007-01-10 - 11:04:00

Excellent post, and I think too many outlets—including ESPN's magazine—are focusing more on a 'moral police angle,' and less a 'greatness + integrity to the sport' rule.

That's what I actually think the inherent formulation might be (even if it is not). We might call it the Cobb/Rose Rule. That is, even before the specter of enhancement methods like steroids (as opposed to methods like pine tar or sandpapering the ball), a player made it into the HoF if a) their play was at a legendary level and b) they did not bring (i) disrepute to the sport or (ii) cause the integrity of the games to be questioned.

Cobb and Rose did both (i) and (ii) (although we can see how only (i) could be fulfilled—i.e., if an Albert Haynesworth-type event were to occur, but with more tragic results—the player committing the act would likely be banned from HoF and further play). Rose's gambling had the same effect under this analysis as did Cobb's actually throwing of a game, as both actions cause the integrity of the game to be questioned. Thus they are precluded from the HoF.

I think we can also apply that same rule to McGwire or others who we know to have used enhancement drugs. It brought disrepute to the sport—he went before Congress, fer chrissake—and also caused the integrity of the games to be challenged (for distortion's sake: in one corner, Cal Ripken, who weighs a little over a buck thirty; in another, McGwire, who put on over a buck thirty in muscle weight in five years).

This analysis also avoids the so-called 'moral police' angle—it's somewhat quantitative and simple. It also allows for 'forgiveness' if the player commits an (i) or (ii), as some of the sting from these actions may lessen over the years. Again to use an NFL analogy, I think Haynesworth is well on his way to redemption, but 'the stomp' will always haunt him (and justifiably).

The real problem with McGwire is that we just don't know how long he was doping, and—as with the Palmeiro issue you bring up—MLB's outright 'don't ask don't tell' policy brought this upon itself.

Great post! For what it's worth—I am against Rose and McGwire being admitted to the Hall of Fame, even though Mark McGwire was very much my hero as a kid (I was 11 in '86).

And contra Skip Oliva's and the Sports Guy's point, I have never thought the Hall of Fame was just about "historical significance." It's a distortion to pretend it's just a "baseball museum." It's not been treated like that historically, and is exactly what it says it is--a place where players of great worth are honored for their service to the game (even if that service is not to the same extent as others; for instance, Ripken's place in the Hall is disproportionate to many others who may have stronger stats, because he brought a type of prestige and integrity the game "wants").

Posted By : gorjus

Does anyone know that the steroid issue kep...

Message posted on : 2007-01-10 - 11:17:00

Does anyone know that the steroid issue kept McGwire out of the Hall of Fame this time around? That seems to be the assumption, but is it true? I wouldn't vote for McGwire simply because I don't think he was a Hall of Fame player, any more than Roger Maris was. OTOH, I would vote for Barry Bonds.
Posted By : Ralph Hickok

Skip,

I would be interested in reading the ...

Message posted on : 2007-01-10 - 15:12:00

Skip,

I would be interested in reading the exact language, if there is any. If anybody has it, please forward it on. If the standard is "character and other outside factors" then that could mean anything.

gorjus,

If the standard is as you suggest, they did not bring disrepute to the sport or cause the integrity of the games to be questioned, how is that defined? I don't know anybody who would argue that betting on your sport meets that definition. But isn't this different? There is plenty of disagreement whether using performance-enhancing drugs even impacts the integrity of the game. Furthermore, it hasn't been determined that McGwire did it, and it was determined that Rose gambled--he was banned from baseball. So what is the standard? Is it when somebody is accused by a third party and doesn't deny it? Is it being hauled into congress? Is it that the player is the subject of controversy (whatever that means)? Or is the standard that "we just know it when we see it"?

Ralph,

Great question. A number of sports writers who voted have actually stated that the sole reason, or one of the reasons, that they didn't vote for him is because of the steroid controversy. But you're right that there really is no way to know if alleged steroid use is the reason or not, if the standard is so loosely defined.

Posted By : Rick Karcher

Hmm, interesting point. I automatically assumed t...

Message posted on : 2007-01-10 - 16:47:00

Hmm, interesting point. I automatically assumed that McGwire's strength, which arguably came from enhacement drugs, necessarily equals better ability. That's not necessarily true, although I think it has popularly shadowed both his and Bonds' home-run performance.

I know that some guys have said they like taking certain chemicals because it improves competiveness (i.e., agression spikes) and seems, to some at least, to defray or deter injuries greater. These would be, in my mind, good reasons that don't cause people to suspect they're cheating to win.

That's what it comes down to, and that's what we don't say enough. "Cheaters." It's not about morals, it's about valuing a player who is perceived to have performed great in the midst of greatness (Ripken, Gwynn) versus one who is perceived as breaking the curve due to cheating.

And to be more clear, I think the formula I suggest is actually what many sportswriters have been using, in HoF and other categories (think Maris' *) when they think it is necessary to protect the supposed integrity of the sport.

Posted By : gorjus

Rule 6 of the Baseball Hall of Fame's election rul...

Message posted on : 2007-01-10 - 17:19:00

Rule 6 of the Baseball Hall of Fame's election rules states, "Voting shall be based upon the player's record, playing ability, integrity, sportsmanship, character, and contributions to the team(s) on which the player played."

I don't have the actual language of the Pro Football Hall of Fame's bylaws, but the AP has written that, "The Hall's voting bylaws preclude consideration of non-football issues."

Posted By : Skip Oliva

The problem with the Simmons argument about the Ha...

Message posted on : 2007-01-10 - 19:40:00

The problem with the Simmons argument about the Hall as a museum is that it conflates the building and the honor. The Hall of Fame serves a dual purpose. It tells the history of the game and it honors a select group of players. Thus, the building does include a museum, which has all manner of baseball lore from many players who are not Hall of Famers. Failing to induct McGwire will not whitewash a piece of baseball history because his story will always have a place in the museum. However, the honor of induction requires satisfaction of certain criteria - criteria that many voters apparently feel McGwire does not meet.
Posted By : ChinMusic

McGwire is being scapegoated (is that a word?), si...

Message posted on : 2007-01-10 - 19:47:00

McGwire is being scapegoated (is that a word?), simple as that. Any talk about what we "know" about his use is pure nonsense, only slightly more speculative than wondering how Ripken could have played over 2000 consecutive games without help.

For those of you outside of the world of baseball, Ripken put on at least twenty-five pounds of muscle between his rookie season and retirement. Baseball-Reference lists him as 6' 4", 225 pounds. It is a well-known aspect of his legacy that he was a fitness fanatic, he built and maintained a full gym on his home property, one that included a full court baseketball court, and was very much into weight training throughout his career.

I'd also like to correct the misunderstanding that even HoF voters have been falling victim to; that McGwire mysteriously got bigger in 1996-97. McGwire was also a huge fan of weight training from an early stage of his career (when he met Canseco), but was notably huge even as a rookie, when he set the record for most home runs by a rookie, with 49.

I am the same age as McGwire, barely an athlete at all, and am a solid 30 pounds heavier (not fat, either) than I was as a 20 year old, and I am 5'8". If a 6'5" uber-athlete, with state of the art physical abilities and training methods were unable to match that, I'd say he wasn't trying. The opposite is true with McGwire. He was a workout fanatic, as Barry Bonds, Roger Clemens, and virtually any modern athlete that is commited to being the best have been. To say that it is their muscularity that makes them suspicous is absurd, and has been proven to be fallacious from the minute the first positive tests came back.

Alas, facts have taken a back seat to speculation, and the moralizing and posturing by our sportswriters as they battle for the title of he who is most willing to save our children is more than distasteful.

Posted By : John J Perricone

Unfortunately, Hall of Fame voting has gotten so m...

Message posted on : 2007-01-11 - 16:48:00

Unfortunately, Hall of Fame voting has gotten so much attention that the process is bigger than the actual induction at this point.

What this means is that some sportswriters have taken the initiative to use their votes for the Hall of Fame as a platform to convey their personal opinions.

This is not limited to steroid suspicions and moralizing; it extends to personal friendships and feuds with players, market bias and overall nostalgic sentiment for certain players and the values they embody.

One might argue that this is inevitable, since the pool of voters is so distinct (baseball writers with more than 10 years of experience) and yet has little semblance of organization (just look up the BBWAA online - their website is a shell).

Each voter is not receiving the same information. Voters are allowed, even encouraged, to use personal recollections and intangible traits (personality, sportsmanship, etc.) in their vote.

Thus, we have some sportswriters who read Rich Lederer's and Bill James's articles on Bert Blyleven who vote accordingly and change their opinions. And we have others who don't read them, or read them and say "yes, but I don't remember Blyleven that way."

One of the problems with the vote right now is undoubtedly that the individuals some sportswriters dismiss for one reason or another, are viewed very differently by more statistically minded individuals. (Albert Belle, Will Clark, and Alan Trammell for example seem to be borderline candidates who deserve more consideration than they've gotten, and two of the three are off, while the last, Trammell, has seen declining support)

On the other hand, the exact opposite (using some kind of absolute statistical marker to determine Hall of Fame worthiness) is also probably unfair. The Hall of Fame is based largely on nostalgia, so why shouldn't we let nostalgia determine its occupants?

I honestly don't think we can tell voters to disregard McGwire's alleged use just because nothing has been proven - writers will have their opinions, and McGwire, in many people's eyes, is already guilty. That many voters believe so and voted accordingly is potentially indicative of how history will view McGwire.

And if in five years, writers look back differently and say "he helped us get over the strike, he and Sosa made the game interesting, and well, he did hit a lot of home runs," then perhaps that nostalgia will override the moralizing that dominates now.

Thus, I don't think giving the writers guidelines would be the right thing. Nor do I think giving fans the vote would really solve the problem. If there were a better way to keep all the writers informed of player histories, some kind of Hall of Fame Ballot Press Packet with both statistical and photographical evidence (and by statistical I don't mean number of All Star selections or MVPs or Gold Gloves, which are extremely subjective to begin with), I believe it would make a some kind of a difference.

Posted By : Anonymous

I thought the Hall of Fame was for the Elite. I th...

Message posted on : 2007-01-11 - 20:25:00

I thought the Hall of Fame was for the Elite. I think there should be a higher percentage requirement to get in. We are talking about the best to ever play the game. The players voted in should be in a class with everyone else in the Hall.
Posted By : tommie

Gorjus mentions that Cobb is not in the HOF. (unle...

Message posted on : 2007-01-11 - 22:36:00

Gorjus mentions that Cobb is not in the HOF. (unless I'm misreading something) I was under the impression that Cobb was in fact in the HOF.

Do any of you wonder if McGwire cares one way or the other about the HOF? By most media reports, he had become a recluse living in a gated community in the OC.

And, as a few comments have mentioned, the relationship between the press and the player does impact the vote. JIm Rice may or may not belong in the HOF, but his strained relationship with the press (imho) isn't helping him any.

Posted By : Anonymous

Joe - Cobb is absolutely in the Hall of Fame - he ...

Message posted on : 2007-01-12 - 01:41:00

Joe - Cobb is absolutely in the Hall of Fame - he garnered 98.23% of the vote in 1936, the inaugural year, more than Babe Ruth, Honus Wagner, Christy Mathewson and Walter Johnson.

That said, he is often cited as an example of a bad human being in the Hall - people cite his racism and his throwing of one or more baseball games as prime examples of why we should not punish people like Rose who remain on the outside.

But you have to look at context - were sportswriters really considering Cobbs racism when they voted? Likely not, given the time period.

I have to feel similarly with McGwire. The current atmosphere is one in which sportswriters (and fans and the government) have focused on steroid usage and cheating through steroid usage. Whether he deserves it or not is something to be debated, but McGwire finds himself in such a context.

Voters may feel differently down the line. But just as we can't exactly kick Cobb out of the Hall for being a racist, or punish those who voted for him for not considering his racism and his race fuelled physical assaults of African Americans, not to mention helping keep his assaults at that time out of newspapers, I don't think we can proscribe rules for sportswriters voting today.

Voters are always going to be biased one way or another. Forget about players who made enemies of writers. Even players who weren't considered interesting are biased against in Hall of Fame voting.

For instance, consider "Sweet" Lou Whitaker. He played for a lot of poor teams, although he was on the World Series winner Tigers in 1984, a team that hasn't properly been appreciated even to this day, and was an intensely private person, to the extent that he rarely talked to sportswriters.

His #1 statistical comparison on BaseballReference.com is Ryne Sandberg, who made the Hall after three tries in 2005. In comaprison, Lou got 2.9% of the vote in his only year, and then was dropped from the ballot for receiving less than 5% of the vote.

Ryno had a bigger profile in a bigger market and was more popular with reporters. This first led to more All Star appearances and Gold Gloves, which subsequently helped his Hall of Fame chances.

So even if both of them are borderline candidates statistically, their personalities and profiles led to one player getting into the Hall, relatively easily, and another failing to garner even more than 5% of the vote in his first year of eligibility, leaving him to the mercy of the Veterans Committee.

Posted By : Anonymous

Aren't there insurance policies designed to protec...

Message posted on : 2007-01-12 - 14:28:00

Aren't there insurance policies designed to protect athletes for just this type of situation?
Posted By : Anonymous

Walker could have been in the NBA already. He's o...

Message posted on : 2007-01-12 - 14:34:00

Walker could have been in the NBA already. He's older than Lakers' 2nd year player Andrew Bynum. But he was held back in school so he could play basketball against younger kids. He played last summer in "under 17" tourneys even though he was nearly 19 (the AAU ridiculous "grade exemption" rule).

If he'd had his choice, he'd be in high school this year with his buddy, fellow 19 year old OJ Mayo. But he was ruled ineligible because one of his redshirt years was too late and they ruled he'd already reached his limit in high school. So he took off to K State.

It's history revision to claim that he would have been in the NBA by now if not for the rule. He was a high junior last year and only tried to get graduated when he was ruled ineligible for another year.

The injury may be tragic for him, but draft eligibility issue is a consequence of his (and his handlers') manipulation of the system so he could earn a reputation by dominating younger players. Don't blame everyone else.

see: "age groups" at http://myspace.com/tomscott99

Posted By : Tom Scott

Bill Walker whether he plays in the NBA or not kno...

Message posted on : 2007-01-12 - 14:41:00

Bill Walker whether he plays in the NBA or not know will probably get a free education form Kansas State, becuase of this injury. That is one benefit he gets form going to college this year. Yes, probably he would ahve millions had he gone, but this way he porbably wont have to pay for college
Posted By : Anonymous

Thank you for these excellent comments. I apprecia...

Message posted on : 2007-01-12 - 17:30:00

Thank you for these excellent comments. I appreciate each of you taking the time to respond.

Anonymous 1,

That is a good point. There are insurance polices designed to protect star amateur athletes for injuries while in school. However, my understanding is that these policies are quite expensive to purchase. I have no idea if Bill Walker and his family could afford such coverage.

Tom,

I'm not sure if Walker could already be in the NBA. Significantly, the NBA claims that he could not. While I agree with you that he would have a good argument under the existing rule, it would take some effort and cost on his part to obtain eligibility. As to his eligibility under the old rule, Article X(5)(A), he needed a high school degree or its equivalence, and he obviously needed to satisfy that rule by the 2005 NBA Draft (the last draft in which the old rule was in effect). What in the record suggests that he could have obtained either by that draft?

Anonymous 2,

That is a good point, he probably will be able to obtain a free education from Kansas State. But is he academically-prepared for a college education? I imagine his success in school will largely reflect how much focus he has put on school up to this point. And perhaps the best measure would be to assess the academic and professional success of other college athletes who got hurt while playing.

Posted By : Michael McCann

I bought tixs from stubhub for the jet-patriot gam...

Message posted on : 2007-01-12 - 20:06:00

I bought tixs from stubhub for the jet-patriot game. My envelope stated what I bought. My tix were not the same. I didnt realize until we were at the gate. After making a complaint stubhub told me the seller told them the tixs were comparable They also told me that I shouldn't have use the wrong tixs. With 10 min. to game time I went and sat in the worst seats.I dont think 45 yrd line tix in the sun are the same as 25 yrd line tixs in the shade. On top of it all e-bay buys stub hub so no one cares over there anymore. they are all getting paid. Forget stubhub. I hope the Pats put them out of biz!!!!!!!1
Posted By : Anonymous

Tom,

Good points and thanks for the clarifi...

Message posted on : 2007-01-13 - 12:57:00

Tom,

Good points and thanks for the clarification. I would add that Walker being held back to play against younger players (if, in fact, that was the only reason why he was held back--were his academics also at issue?) seems sadly indicative of the Hoop Dreams culture in which many of these players find themselves.

Along those lines, it's tough to blame Walker, at whatever age he was held back, when presumably there were older and more responsible persons he entrusted to look out for his best interests. Was it really his decision to stay back a year?

And I can only imagine what Walker must have felt when he was held back: yeah, he was probably excited at the prospect of enhancing his performance by playing against younger others, but I wonder if he also felt that his entire future and perhaps even the futures of those same persons he entrusted were now based on his basketball development? That seems like an awfully big burden for anyone, and one that almost always leads to great disappointment, even bitterness.

Posted By : Michael McCann

All the more reason to invest in the certainty of ...

Message posted on : 2007-01-15 - 11:39:00

All the more reason to invest in the certainty of education than gamble on the vagaries of professional sports. You're very right to ask who's going to care about him if he can't play basketball. I might, if he could construct a sophisticated financial analysis model, or write 6,000 words on the implications of a fight between Hamas and Fatah, or if he could sell several million dollars worth of software to a Fortune 500 company. We've seen many times that the sudden wealth that a professional sports contract bestows is no guarantee of financial independence. I'm no expert on the fine points of sports farm teams and scouting, but I can see that it's the rare athlete who can negotiate a successful career and continue to succeed afterwards.

Glenn

Posted By : Anonymous

Why are you being such an alarmist? We're talking...

Message posted on : 2007-01-16 - 21:28:00

Why are you being such an alarmist? We're talking about 2016--ten years from now. Don't you think the Dept. of Homeland Security will be working towards a solution to these deficiencies--regardless if Chicago hosts the Olympics or not--before then? Plus, by hosting the Olympics, Chicago will actually be "fast tracked" by all applicable entities to get "up to speed" even quicker. To play to the fears of the people of Chicago is irresponsible without mentioning these points.

Finally, in my opinion, your post also loses sight of a very important aspect--regardless of what U.S. city may host the Olympic Games--it is the Feds (not the locals as were the subject of the low scoring you referenced) that will oversee all security aspects. To act as though the City of Chicago would be anything less than safe (compared to any other U.S. host city) is really poor journalism in my opinion.

And, personally speaking, I find it ironic how many Americans cite security concerns as why they don't want their city to host the games. To me, and it's just my opinion, isn't that letting the "bad guys" win?

Bring the Olympics and World Cup back to American cities. We have the security detail to handle it. (Just as we do for the Super Bowl, Final Four, BCS Championship, etc.)

Posted By : NYC2012 Supporter

NYC2012 Supporter,

Thank you for your comme...

Message posted on : 2007-01-17 - 22:53:00

NYC2012 Supporter,

Thank you for your comments. The reason that we are talking about 2016 is that the decision between LA and the Windy City takes place in less than three months, and the article directly addresses one of the issues along with financing, existing structures, political stability, and appeal to the international community (i.e. likelihood of bid success before the IOC) that the USOC will be evaluating: security.

The federal government is not involved in the USOC bid process. Each city forms a committee to make its bid as LA and Chicago have done.

The solution is put on Chicago, Cook County, and the various municipalities to remedy the communications issues. I have seen no evidence to presume that Chicago or LA would be "fast tracked".

Security for prior games, including LA, Atlanta, and Salt Lake had the majority of security work undertaken by state and local authorities, as is the case at other major events that you cite (bowl games, Superbowl, conventions), and not the "Feds". I am, however, welcome to see evidence to the contrary.

I consider myself, a Chicago resident, to be one of the most ardent supporters of the City of Big Shoulders getting the Games. Feel free to reference a past post in which I suggested an alternative funding solution to bring the Games to Chicago using a casino.

Coming from a family that counts Chicago police among its members, I don't doubt the City's ability to adequately secure the Games or improve on DHS's scorecard. We will.

Surely pointing out an area that could use improvement through constructive criticism so that my hometown can host the Olympics is not "irresponsible".

Posted By : Tim Epstein

If the law permits the AG to do what his political...

Message posted on : 2007-01-17 - 23:52:00

If the law permits the AG to do what his political opponents accuse him of doing, then the political opponents need to change the law. Or they need to move on to other issues. The Democrats are in charge on the Hill now; it is time for them to stop complaining about things and move to change the things the feel the need to complain about. If they don't, then they are no better than the folks they replaced as the majority on the Hill.

Given the time and taxpayer money spent on this BALCO investigation over the past 5 years or so, does anyone really think that the taxpayer has gotten the proper bang for the buck? I surely don't.

In terms of "setting an example", folks like Victor Conte made/sold/distributed illegal substances and made millions of dollars doing so. Their penalty as a result of this intensive investigation/prosecution was to spend about 4 months in "Club Fed". There are lots of folks who might look on that and say that Conte et.al. got the better end of that deal.

I don't know who will replace the head of this investigation/prosecution team. Assuming that he/she isn't a complete legal bozo, how much worse off might we be?

Posted By : The Sports Curmudgeon

Hi Tim,

First, to compare security structur...

Message posted on : 2007-01-18 - 00:55:00

Hi Tim,

First, to compare security structures for LA & ATL (pre-9/11) and Salt Lake (post-9/11) is a fallacy. One's an apple. The other's an orange.

A 2016 Olympics would no doubt be classified by the Dept. of Homeland Security (DHS) as a "National Special Security Event." (NSSE) (http://en.wikipedia.org/wiki/National_Special_Security_Event) This means that in fact the Feds would oversee all security aspects--not state & local agencies. This will occur regardless if L.A. or Chicago is chosen.

Further, common sense tells us that if DHS is going to have a NSSE in a U.S. city, it will no doubt "fast track" the implementation/upgrading of that city's security infrastructure. (I'd also argue that the USOC senior officials know full well that Chicago, the #3 largest metro area in the country, will be "up to speed" by 2016 regardless of this spring's vote.)

Again, in my opinion, your column was beyond "constructive criticism" and in fact took on an unnecessarily alarmist tone for the readers of Chicago. While I appreciate your support of your city's bid--I think the full facts should be reported. And that is the Feds will oversee the security of a U.S. based Olympic games regardless if the games are in Chicago or L.A., so to bring it up as a "concern" to Chicago's bid is misleading without explaining more fully the federal government's involvement with the security structure of any U.S. based Olympic games.

Posted By : NYC2012 Supporter

Great guest! I'm looking forward for a 1st post. M...

Message posted on : 2007-01-18 - 12:32:00

Great guest! I'm looking forward for a 1st post. M.
Posted By : Maria Figueiredo Almeida

Ryan's firing (and make no mistake, he was fired) ...

Message posted on : 2007-01-18 - 13:10:00

Ryan's firing (and make no mistake, he was fired) has more to do with the 130 or so Bush administrated officials he was investigating.

Also, sports curmudgeon or anyone for that matter, can you tell me - what was seized in the way of illegal substances from BALCO on that fateful day where there were helicopters with agents hanging from the copter doors and armed with semi-automatic weapons pointed at the lab?

Posted By : D-Wil

I wonder if the Honorable Sports Judge has any cle...

Message posted on : 2007-01-18 - 13:53:00

I wonder if the Honorable Sports Judge has any clerkships open. I've got a resume on deck!
Posted By : Jonathan M.

Again, I appreciate your comments, but the thrust ...

Message posted on : 2007-01-18 - 14:50:00

Again, I appreciate your comments, but the thrust of my article was based on the competition for the US bid between LA and Chicago. My sense is that things are pretty even with LA being ahead on existing structures and people (almost the entire 1984 committee is still intact!), with Chicago having more appeal with the IOC (first time, centrally located in the US, O'Hare, away from Hollywood's influence...the IOC still has a bad taste in its mouth from the overly commercial Atlanta games).

The point of the article was that LA has much higher scores on security communications between different first responder units.

Your comments are directed at what DHS will do if Chicago or LA gets the games. When we get to that point, I will be happy to comment. My concern is that the DHS report was released as the USOC is choosing between LA or Chicago.

Once a city is chosen, I am sure that LA or Chicago metro officials will continue to work with DHS to get communications down.

Posted By : Tim Epstein

Jonathan:

The Court of Fantasy Baseball is ...

Message posted on : 2007-01-18 - 23:39:00

Jonathan:

The Court of Fantasy Baseball is not traditionally known as a feeder to the Supreme Court, but if you are truly interested, feel free to send me an email at info@sportsjudge.com

Best,
Marc Edelman

Posted By : Marc Edelman

The problem with players hiring their own bodyguar...

Message posted on : 2007-01-22 - 15:20:00

The problem with players hiring their own bodyguards is that the bodygaurds are often friends that just happen to be larger/more intimidating members of the player's entourage who may not be the most qualified people for the position and may end up getting the player into more trouble than he would have gotten into otherwise (see Tank Johnson).
Posted By : Tim Epstein

Actually, the point Speed scored was taken away fo...

Message posted on : 2007-01-22 - 15:32:00

Actually, the point Speed scored was taken away for overtaking Coulthard under yellow.

The point that the linked article refers to was scored by his teammate.

Posted By : Anonymous

The NBA has security forces?!? But seriously, doe...

Message posted on : 2007-01-22 - 16:00:00

The NBA has security forces?!? But seriously, does anyone want to live in a world where our employers can ban us from leisure activities of our choice because it might be 'dangerous'? And no thank you to my mandated bodyguard as well, I'm sort of a private type of guy and I'd rather not be shadowed 24/7...
Posted By : Anonymous

I am very disappointed with this post. I have come...

Message posted on : 2007-01-22 - 16:26:00

I am very disappointed with this post. I have come to regard the Sports Law Blog as a valuable resource to find logical, reasoned analysis of LEGAL issues. But this post spends most of its time assuming ulterior motives on the part of the doctor and Chris Nowinski that are pure speculation. Don't you think the Times (i.e., me) checked out Dr. Omalu's standing among other experts in this field? And Nowinski, a Harvard graduate who has devoted much of his last three years toward researching this area, has forfeited his credibility simply by having been a professional wrestler? By extension, that means that all actors are liars, too. I also find it ironic that you publicly question the knowledge of these principals when, in fact, you have no knowledge of them. This is mostly an analysis of journalism, not law, and a poor/uninformed one at that. Your readers deserve better.
--Alan Schwarz.

Posted By : Alan Schwarz

What I don't understand is why Stern would be acti...

Message posted on : 2007-01-22 - 17:29:00

What I don't understand is why Stern would be acting on this - it strikes me that if there is enough concern with the nightlife posing a significant danger to players, we might start seeing it in contracts.

They already prevent players from engaging in risky behavior in terms of sports (and potentially Guitar Hero, as we've discussed here before) - wouldn't it be pretty easy for a team to stipulate that their player is prohibited from entering X Y and Z bars?

Instead, Stern is using his power as Commissioner to impose a league-wide list of prohibited bars? Collective bargaining issues aside, I'm not sure how this isn't just some kind of attempt on Stern's part to emphasize the power of the Commissioner's Office and his position. It goes back to the points we've seen before about paternalism and control.

Posted By : Anonymous

Alan:

So you basically believe that the Tim...

Message posted on : 2007-01-22 - 22:23:00

Alan:

So you basically believe that the Times is above reproach and we should just take your background checks for granted? Do you recall a reported named Blair?

Posted By : Anonymous

I'm sorry to have to join the party of those who a...

Message posted on : 2007-01-23 - 04:00:00

I'm sorry to have to join the party of those who are criticizing you, but there is precedent for Waters' case. Please go here:

http://www.post-gazette.com/pg/05257/571077.stm

There, at the Pittsburgh Post-Gazette, you will find an article titled, "Wecht: Long Died from Brain Injury," about former (and deceased) Pittsburgh Steeler lineman Terry Long.

Posted By : D-Wil

I stand corrected. Thank you for this.

Message posted on : 2007-01-23 - 05:57:00

I stand corrected. Thank you for this.
Posted By : Luis Cassiano Neves

John,

That is very interesting indeed, and ...

Message posted on : 2007-01-23 - 07:06:00

John,

That is very interesting indeed, and has gone unoticed here in Europe. I gather CAA stands for Creative Artists Agency, I'm I correct?

It could have been a group of corporations, but I guess it makes sense that it came down to a payment from the middleman.

Some people have questioned the length of the contract, but there is an easy explanation. CAA will be looking to maximize exposure and revenue over the two first seasons, before all the hype cools down. And Beckham got himself another 4 years on a competitive team. It will be interesting to follow his last seasons in L.A.

Posted By : Luis Cassiano Neves

It's nice to see that the author of comment No. 2 ...

Message posted on : 2007-01-23 - 07:11:00

It's nice to see that the author of comment No. 2 was so confident of its worthiness as to keep his or her name anonymous. But far more disturbing, any interpretation of my post as claiming, suggesting or intimating that I "believe that the Times is above reproach" is not just patently ludicrous, but a sign that the logic and reasoned thought that once reigned in this space has degenerated into the same knee-jerk, presumptuous crapola that fuels other blogs. When you get back to law, please let me know.
--Alan Schwarz.

Posted By : Alan Schwarz

I just do not see it because of the fan base in Am...

Message posted on : 2007-01-23 - 08:37:00

I just do not see it because of the fan base in America. There is a world of differences between the interests of American fans and international fans. He may have a minor impact for diehard soccer fans but it will not turn the "average" sports fan away from the likes of football and baseball to favor soccer.
I also believe that it will have a negative impact on the International fan base as many international fans will look at Beckham as being a "traitor" for playing in the U.S. Also, the style of American soccer and international is different and is just not as exciting watching soccer in America as in Europe. Soccer is a way of life in Europe and in America it will always be a "kid's" game.
Just as american football will never be as huge of a hit in Europe as it is in the states, soccer will never be as huge in the states as it is overseas.

Posted By : tommie

Alan - I hope you agree with me when I say that th...

Message posted on : 2007-01-23 - 08:54:00

Alan - I hope you agree with me when I say that this blog is subject to the same problems (and strengths) of any other open forum on the internet - sometimes you'll have anonymous individuals engaging in the "knee-jerk crapola" that you discuss.

I'm willing to discuss Dr Omalu's qualifications, but I agree we shouldn't discredit him or his research without some more evidence of his ulterior motives first.

A quick and dirty search reveals that he has 17 citations in PubMed (unfortunately not being at a University, I can't access the full-texts), and two appear to be related to the study this post is discussing.

I think a better way to say that he's trying to "push a theory" is to say that Dr. Omalu has a documented interest in the intersection of law, medicine and forensics. Which is not surprising, given his field of study. Nor do I believe it is enough to discredit him.

On the legal matter, from what I understand about assumption of risk, football players take the field with the understanding that their bodies will be subjected to strains that are unique to their sport.

Many players talk about guaranteed money on their contracts with the understanding that their careers will be shorter than that of other athletes for example.

I read several opinions that applauded Jeff Samardizja's decision to stick to baseball due to the opinion that football is simply a more damaging sport and reduces the both the active playing time and lifespan of the player.

But on the matter of repeated concussions, there may be something there. I believe there was a study a few months ago that showed that NFL players don't get enough off-time after sustaining a concussion, and that the rapid return to the field (with or without medical clearance) increases their risk of further injury. Are the players capable of assuming that risk without proper consultation?

Posted By : Anonymous

Alan, while I appreciate your comment (and very mu...

Message posted on : 2007-01-23 - 11:56:00

Alan, while I appreciate your comment (and very much enjoyed reading your article) I think your critique is a bit unfair. Your write that "most of the post" concerns the motives of Nowinski & Omalu -- but to my eye, an equal amount of space in the post is actually about the potential legal issues raised by the case. As for your general attack on this blog--please keep in mind that this blog has multiple contributors, and this post is my reaction alone. I take full responsibility for the arguments I've made; I don't think it's fair of you to attribute anything I've said to my fellow contributors who have neither edited nor contributed to my post, or to slander "this space" as a whole.

As for Dr. Omalu, I'm still not sure I understand how being a "volunteer" at a university makes one "of the university". It would have been more accurate to describe him as a county coroner, if that is in fact his main employment. In any event, my point isn't that he's not qualified, just that your article does seem to overstate his credentials or at least his professional affliation. If an argument is sound, it should stand on its own and shouldn't require questionable characterization.

As for Nowinski...As a Harvard graduate, I guess I'm qualified to say that being a Harvard graduate alone is not much of a qualification. The fact that he clearly has a horse in the race matters and SHOULD affect our reaction to his efforts.

In any event, my point about Dr. Omalu & Nowinski's involvement is that both of them were predisposed to reach the conclusion they reached here. That makes the claims less persuasive. Good science and good research explores a question without a "desired" or predetermined answer; that doesn't seem to have been done here.

That's not to say your article hasn't brought attention to a meaningful developing issue in science. I am told that there is exciting work being done to try to document the connection between concussions and mental disorders. But that research is still ongoing -- it may very well substantiate Dr. Omalu's claims but I think it's a bit too soon too soon to draw reliable conclusions about individual cases, including that of Waters.

Posted By : Geoffrey Rapp

Tommie: It's entirely possible for a person to be ...

Message posted on : 2007-01-23 - 13:29:00

Tommie: It's entirely possible for a person to be a fan of more than one sport. Beckham will surely bring in curiosity seekers to MLS stadiums and A few of them will become fans of the game. He's already had an impact - there are tons of people who are only now aware that the US has a pro soccer league.
Posted By : Oscar M.

Alan, there are some worthy legal issues in the ar...

Message posted on : 2007-01-23 - 15:32:00

Alan, there are some worthy legal issues in the article. Maybe you do not have the proper legal background to understand them.
Just about all media outlets have credibility issues in one way or another, even the Times.

Posted By : tommie

tommie - I'm not sure I understand your comment - ...

Message posted on : 2007-01-23 - 16:02:00

tommie - I'm not sure I understand your comment - why are you assuming Alan doesn't understand the legal issues and potential discussion behind the article he wrote?
Posted By : Anonymous

"You need to crawl before you can walk". It seems...

Message posted on : 2007-01-23 - 16:40:00

"You need to crawl before you can walk". It seems we Americans have always been rather elitist in the way we support professional sports, as we demand the best in everything. I believe that is part of our culture and I don't forsee that changing.
MLS is building the infrastructure needed to make this transition eventually take place. The more credible the league becomes the easier it will be to bring over and produce top talents. People aren't jumping on board now or in the past because those that truly love the game are watching the best leagues (english, italian, spanish) in the world on TV. However you eventually get these players to come to the US, combined with the fact that the US is not a bad place to live in the world, and you just might eventually (within 10 to 15 years) have a sport that can hang with the "big three - b-ball, football, and baseball" in this country. But it will take time and money to get it there.

Posted By : Anonymous

Folks--
I have a pretty good non-attorney's und...

Message posted on : 2007-01-23 - 16:43:00

Folks--
I have a pretty good non-attorney's understanding of the legal matters, but I'm truly looking forward to reading this forum's analysis of the issues -- class action, liability, indemnity, assumption of the risk, etc. Consulting your blog has always been a useful resource for me, and I'm hoping it can be here.
--Alan Schwarz.

Posted By : Alan Schwarz

Satchmo:
I was not referring to the article he ...

Message posted on : 2007-01-23 - 18:29:00

Satchmo:
I was not referring to the article he wrote, I was referring to the blog.
However, as for the article, anytime there is a serious problem in the medical world, most people get at least a second opinion on the issue. Just because someone is a doctor and conducts a so called "study" does not make his study right or wrong. There clearly needs to be more research done in this area and this is only preliminary findings.
The article was hyped up and beefed up to put down the NFL. The player never reported the concussions to the team. If all these players in the past played through concussions without telling anyone, how can the NFL be held liable?
The article also calls Nowinski a star, he was not a star in WWE.

Posted By : tommie

I believe some of Stern's interests are proper. He...

Message posted on : 2007-01-23 - 18:36:00

I believe some of Stern's interests are proper. He wants the NBA to avoid a Tank Johnson episode. However, if you ban a few places the players will always find a new place to go and trouble to get into. They just need harsher penalties for players who violate rules.
Posted By : Anonymous

tommie - We can debate the semantics of one being ...

Message posted on : 2007-01-23 - 20:18:00

tommie - We can debate the semantics of one being a WWE "star," but that's not really what this site is about.

I don't know that the article is "hyped up . . .to put down the NFL" - the article does fairly state that Dr. Omalu's claims "have not been corroborated and reviewed."

It does points out the potential criticism in the NFL study that looked at active players in a relatively short window of time, but this is hardly a new criticism, and I believe it's a valid one.

While Dr. Omalu's claims are not supported by new research, the Center For the Study of Retired Athletes research does appear to show that TBI (Traumatic Brain Injury) and concussions have a significant effect on post-retirement life for NFL players.

I don't see how the evidence presented by Alan is inherently biased against the NFL.

Speaking to your point about players reporting concussions, I believe that while some players do not report them and go on to play, and put themselves at risk, there is a vocal community of individuals that faults the NFL for

a) underestimating the time of recovery for concussions

b) downplaying the immediate and long term effects of traumatic brain injury that athlete absolutely do sustain on the field of play

While the players' desire to "play through it" must certainly be taken into account, I believe the NFL does need to take a closer look at their medical evaluation policies which may put athletes in more risk than they are aware.

Isn't that one of the key legal issues we're talking about? If a team doctor allows a player to keep playing, or only keeps them out for a week, when to lower risk, they should be out for longer, who is responsible when the player gets injured again?

Is there a threshold to be reached? As I understand it, there is increasing risk with every concussion - it may not be fair to the NFL to expect them to sit players until their risk for future injury has returned to pre-concussion levels.

If the NFL is at fault for this, can they be found liable for the risks associated with say, players over a certain weight limit, or players attempting to return after a serious injury (say, Teddy Bruschi after his stroke, or, if he's lucky, David Pollack after his vertebral fusion)?

Posted By : Anonymous

Satchmo,
i just hate to see the NFL getting bl...

Message posted on : 2007-01-23 - 22:57:00

Satchmo,
i just hate to see the NFL getting blamed for other people's mistakes. Even if you do not report one concussion, that could throw off the doctors. It just seems like the media in general, not just this article, is trying to blame the NFL for much of this. If a player had that many concussions, and kept playing through them, how could you righteously blame the NFL or its doctors.

The players also know the risk they are up against every week and the chance they take playing football. Some players are smart enough to call it quits before the concussions build up too much. As for the the serious injuries and tragic outcomes, some have to be expected in a sport of football. Considering all of the players who have played football over the years, this is not a major problem. It is definitely something the NFL wants to limit, however look at how many games are played between different teams and players and it is surprising there have not been more concussions.

Also I am sure the NFL has changed some rules over the years that have lightened up on concussions. There are new rules in place that offer great protection to players that older players never had.
I do not know much about Andre Waters, but all the talk about him being a notoriously hard hitter makes me wonder if he used his helmet when hitting while playing? That would not have been beneficial for preventing head injuries.

Posted By : tommie

Legal issues aside, I think it's fair to point out...

Message posted on : 2007-01-23 - 23:11:00

Legal issues aside, I think it's fair to point out that Omalu and Nowinski are not alone in criticizing the NFL's position on concussions. And there are just as many questions surrounding the qualifications of Elliot Pellman, who heads up the league's committee on concussions. See the article from ESPN The Magazine (linked).

I don't have the medical expertise to judge the merits of any of these studies, but given the obvious conflict of interest of the NFL's committee and how uncooperative they apparently have been with outside researchers in the medical community, it's difficult not to think of the research institute funded by the tobacco industry.

Posted By : Jim A

If your in a position, say medical advisor to the ...

Message posted on : 2007-01-23 - 23:16:00

If your in a position, say medical advisor to the NFL and you know a product of procedure is working with one team, your statistics indicate thst and you don't investigate why. You repel requests from doctors to grant money to study the procedure. All the while the rest of the league is kept in the dark about a device that is responsible for preventing concussion on a scale never before seen. Yet other teams are reporting betweenn 16-25 concussions a year, the Patriots 2.

ESPN "See no Evil"
"Dr.Yes"
"NFL won't bite"

"There is the potential for bankrupting the league pension and disability plan if the NFL had to honor claims of disability brought by players who have concussions," says Michael Kaplen, a New York lawyer who specializes in brain injuries.
Some doctors and former players have long suspected that the NFL has always intended to use the MTBI committee's work as a bulwark against just such liability. One of the scientists who reviewed the committee's work for Neurosurgery told ESPN The Magazine: "They're basically trying to prepare a defense for when one of these players sues. ... They are trying to say that what's done in the NFL is OK because in their studies, it doesn't look like bad things are happening from concussions."
But as the concussion committee's studies turn out to be flawed or incomplete and outsiders are linking concussions to serious illness and even death, the NFL is going to need a new strategy. Its same old dismiss-and-wait statement on Andre Waters shows it's still looking for one.
Peter Keating writes about sports business for ESPN The Magazine.

www.mahercor.com

Posted By : Anonymous

Tommie - I agree completely that concussions are h...

Message posted on : 2007-01-24 - 00:29:00

Tommie - I agree completely that concussions are hard to judge because they're not, say, a twisted ankle or a broken bone. And players can probably suffer low grade concussions and assume that it's just "part of the game" and that they should "shake it off" when medically speaking, they should be taking precautions or sitting out.

This also makes me wonder if we might not see liability claims go further back. Even if they aren't getting hit as hard, are children more or less likely to sustain sports related concussions? Is there any correlation between age and future exhibition of permanent brain damage as a result of sports related TBI?

Can someone with more knowledge of policies speak about NCAA (or youth sports league) concussion rules vs. NFL policy? Is anyone being proactive in being more protective of players?

Posted By : Anonymous

Has anyone thought about the obvious here? Rememb...

Message posted on : 2007-01-24 - 00:29:00

Has anyone thought about the obvious here? Remember, each NBA team visits the other 28 cities (Los Angeles twice) at least once a year--why not have a list of "go/no go" bars and nightclubs that everyone can look at?
Obviuosly you can't prevent problems, even if the place might not be on the list--but shouldn't the NBA be worried about its players, especially after Darrent Williams, Stephen Jackson, Tank Williams, etc.?

--Melvin H.

Posted By : Anonymous

Henry-

The reason there has been a rash of ...

Message posted on : 2007-01-24 - 01:50:00

Henry-

The reason there has been a rash of this lately is because while there are 30 NBA teams, there are only 29 NBA cities, like the article says. Los Angeles has two teams (Lakers and Clippers)

Posted By : Anonymous

It seems more people are working with impact testi...

Message posted on : 2007-01-24 - 07:32:00

It seems more people are working with impact testing, a way of telling you how bad a concussion is but the NCAA and the NFL have been hesitant to examine any positive data on mouth guard protection because the NFL has had its focus on developing a helmet for Riddell. The put the mouth guard aside because it would have interfered with the data or grant cash flow, take your pick. The NFL's own stats indicated the Patriots were doing something right and failed to be proactive in investigating why.
The NCAA takes all its ques from the NFL and their tenticles are far reaching. The problem is, the example they set, trickles down to the pop warner level and kids are told to toughen up. Thats very dangerous. Its been suggested kids do suffer more long term problem from concussion, nobody really knows execept the head and neck specialist for the Patriots. He is dead set on his procedure and the statistics prove it. Riddell developed their new helmet because they found 70% of concussions originate at the jaw level. The U.S. Marines regimental surgeon feels the chin strap relationship to the jawbone is worth looking into further. Yet when the military hospital looked to the NFL for advice they were not told of the Patriots success for the past two decades. It would be an admission of having withheld information from the players like Wayne Crebet. Who has had four concussion since the NFL was formally told of the mouth guard. He is now retired and is now waiting to see what hid future will bring. When you know something and you don't tell others, thats bad.

Posted By : Anonymous

I'm not sure that there really is all that much sp...

Message posted on : 2007-01-24 - 07:45:00

I'm not sure that there really is all that much space for football to grow in the States and stand up to the three long-established national sports. Yes, you can, in theory, be a fan of more than one sport: but how many europeans do you know that follow football AND any other colective sport?

Football will only find it's place in America on the long-term, when the demographic shift that is now under-way (more latinos and asians) consolidates itself.

Posted By : Miguel Portela

Satchmo,
Good points, I also think we need mor...

Message posted on : 2007-01-24 - 16:03:00

Satchmo,
Good points, I also think we need more experts to speak about concussions in general. Besides children I am sure some adults are more prone to concussions than others. It is also interesting to see the differences between minor v. major and low grade v. high grade concussions, and all of the different types and symptoms for these. It must be hard for the doctors to make these judgement calls as I am sure there is a fine line often crossed when diagnosing.

Posted By : tommie

These impact tests are a good way of getting the k...

Message posted on : 2007-01-24 - 18:44:00

These impact tests are a good way of getting the kid to tell the trueth about how bad the concussion is. They put the kid in front of a computer and have them answer some orchestrated questions. The bone on bone contact a "glass Jaw" produces will result in minor dizziness, the sensation of seeing stars, headache, things usually refered to as dings. These are cumulative and are connected to producing white spots on the top of the brain. The retired NFL research at UNC has now found to be precursers to Parkisons and more.
Posted By : Anonymous

What about the growing international community in ...

Message posted on : 2007-01-25 - 07:30:00

What about the growing international community in the States? Could they be targeted as the MLS fan-base?

Mexicans love football, Europeans love football, Brasilians even more so... And reportedly, there are more and more foreigners living in the U.S.

Posted By : Luis Cassiano

Luis, I think a major dent that needs to be ironed...

Message posted on : 2007-01-25 - 08:28:00

Luis, I think a major dent that needs to be ironed out (if it can) is the style of soccer. For some reason the games are just plain boring in the U.S. (college or pros). Even the the lower level Euro leagues are fun to watch.
Posted By : tommie

Reminds me of some prior posts on the blog that br...

Message posted on : 2007-01-25 - 08:31:00

Reminds me of some prior posts on the blog that brought up the issue that athletes get different treatment than non-athletes. Maybe the Judge was a Bears fan?
Posted By : tommie

Tommie,

Very possible. My question is with...

Message posted on : 2007-01-25 - 09:40:00

Tommie,

Very possible. My question is with regard to the enforceability of restrictions of this type outside of a jurisdiction. Certainly if Tank breaks the law while in Miami that will impact his probation/house arrest. My question is with regard to the court's authority to restrict Tank to the hotel, practice facility, and game while in Miami.

Posted By : Tim Epstein

Well, I'm sorry Tommie but this "boring" argument ...

Message posted on : 2007-01-25 - 11:44:00

Well, I'm sorry Tommie but this "boring" argument I can't agree with, and it's one that Americans really like to use.
If football is boring, what can we say about baseball!? And American Football!? Even basketball, except for the last quarter of tight matches, can really be quite un-exciting.
So this is very, very subjective, and probably a cultural issue which is why there is a general opinion that football's future in the U.S. has to focus on the (growing) minorities rather than on the average white-male american.
Now wanting to change football rules, as Americans repeatedly seem to do (who can forget those running-ball shootouts from midflied to untie matches : ), will never be well taken by the worldwide football community, who likes to be pondered and take their time when changing the game - not revolutionizing it.

Posted By : Miguel Portela

Is there anyone familiar with an NFL player's stan...

Message posted on : 2007-01-25 - 11:56:00

Is there anyone familiar with an NFL player's standard contract? I'm assuming the contracts have been negotiated to include provisions regarding injuries and the NFL's liability. Is this a correct assumption? Do the players sign waivers to release the NFL from liability for certain injuries that would bar suit in addition to the general assumption of risk? If so, this brings us back into the old realm of freedom of contract vs. negligence/providing a safe environment.
Posted By : Erick Thomson

Soccer is not a real sport...

It's art...

Message posted on : 2007-01-26 - 06:50:00

Soccer is not a real sport...

It's art...

Posted By : Siam Sport

Personally, I think the limit isn't enough. One ye...

Message posted on : 2007-01-26 - 15:22:00

Personally, I think the limit isn't enough. One year to me is like a slap in the face to the fan. It's saying "Here's what you could have. But guess what, it's going to be gone at the end of the year. Sit there and wonder what if." People will like to talk about other reason why the league has been declining in domestic popularity, but I think you can look at the college game. Over the last few years, it's looked pretty weak as far as overall talent goes. Games have gotten less dynamic and the magnitude of high school players that have left to go straight to the NBA has seriously hurt college basketball.

I believe that you can use the college sport to enhance the pro sport. Colleges are such a community thing. I'm from Columbus, Ohio and I've seen first hand how much people are willing to get behind the college team, whether or not they really like the sport, and how much they feel like they identify with the players. With high school players going straight to the league, or only sticking around one year, there's not that connection. Lebron James is from Ohio, but how many people can you say from Ohio identify with him, feel like he's one of their own. That he represents their cities and state? There aren't many. Now think of how many more people would feel that closeness to him and want to watch more of his games if he went to, say Ohio State.

. I think if you keep the star players in the colleges for 3 years minimum, it would lead to a bigger college support, which could lead people that weren't fans of the sport previously to gain a more in depth liking for it.

In short, I think that while the the age limit is a start, a longer one would be beneficial to basketball, overall. People will argue that kids that come straight from high school half success in the league, but to me that's not what it's about. The reason these players even make the money that they do is because of the fans. Who's really in charge here? We're the reason they can go out and drive a hundred thousand dollar cars and have shoe deals. The fans should be put first, and extending the NBA age limit would help basketball as a whole.

These players need to understand who's putting them where they are and that they're just entertainers.

Posted By : Patrick

Was already a fan of SLB, and now a huge fan of th...

Message posted on : 2007-01-26 - 22:14:00

Was already a fan of SLB, and now a huge fan of the The Situationist. Best wishes from Boston.
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Message posted on : 2007-01-29 - 10:31:00

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Posted By : prince

"For Harvard to boast a 75th percentile LSAT of 17...

Message posted on : 2007-01-30 - 20:16:00

"For Harvard to boast a 75th percentile LSAT of 175, just like Yale, requires Harvard to recruit nearly three times as many students as Yale with those credentials."

There is a serious flaw in Professor Leiter's reasoning here. Specifically, he is not taking into account both that Harvard and Yale are recruiting from the same pool.

For example, assume that in a given year 50,000 people apply to law school. Of those 50,000, perhaps 1,000 have LSAT scores about 75%. If Harvard wanted fill an entire class year with students who have LSAT score above 175, they could simple mail acceptance letters to, say, all 1000. (Let's assume, unrealistically, that both Harvard and Yale have an offer-acceptance rate of 50%). To fill its class of 200, however, Yale need only mail acceptances to 400 people out of this group of 1,000--which means that Yale, unlike Harvard, would need to use extra criteria to narrow this group. In this scenario, Yale is clearly the more selective school, and (if Yale's criteria are merit-based) Yale is accepting better students than Harvard.

Posted By : Anonymous

I think you've identified the key difference betwe...

Message posted on : 2007-01-31 - 08:06:00

I think you've identified the key difference between the leagues and an appellate court: the league reviews a different "record" than what the officials saw, but appellate courts are confined to the record built in the trial court. So more deference is due in the appellate court situation because is already looking at exactly that the court is looking at. In the league context, no official might have seen what the camera saw, and certainly no official saw what the camera caught from the angle that the camera caught it.
Posted By : Anonymous

Anon, interesting points, but I differ. I love ...

Message posted on : 2007-01-31 - 11:19:00

Anon, interesting points, but I differ.

I love the idea of the NFL as appellate court--and in this situation, it did exactly what some appellate courts can do. It's an overstatement to say they're wholly confined to the record; some things can be raised for the first time on appeal (such as subject-matter jurisdiction) and some things are just so important (certain constitutional and ethical issues) that an appellate court can address them sua sponte.

Additionally, no appellate court has ever seen "exactly" what the trial court looked at--indeed, far from it, and deference is often granted because the appellate court "cannot smell the smoke of battle, see the look on witnesses' faces," and so forth as the idea goes.

The Reggie Bush situation is more like attorney misconduct that an appellate court takes judicial notice of. As you note, different factors may have resulted in the officials at the game not calling the penalty (perhaps they thought in context it wasn't bad, the angle was obscured, Saints were losing . . . ), in the same way a trial court may not sustain a valid objection or curtail certain behavior.

However, the NFL noticed, and doesn't need an official to say "we saw what you did, and we don't like this." I think this serves an important function for the sport as a further disincentive towards misconduct (the primary one being a penalty during the game).

Great post! By the way, that run was AWESOME.

Posted By : gorjus

This situation is very simiilar to what happened t...

Message posted on : 2007-01-31 - 12:23:00

This situation is very simiilar to what happened to Kobe Bryant two nights ago against San Antonio, when he was suspended for last night's game against the Knicks in New York for elbowing Manu Ginoboli after taking a jumper in the corner at the end of the ball game. There was no foul called on the play, (maybe because the refs did not want the game to end at the foul line). However, the NBA stepped in and suspended Kobe. Shouldn't a Leauge Office look at what happend on the play, and what the official's call was before assessing a fine and/or suspension?
Posted By : Anonymous

Gorjus - To clarify my post, appellate courts ar...

Message posted on : 2007-01-31 - 13:33:00

Gorjus -

To clarify my post, appellate courts are confined to the record with respect to facts, though they entertain new legal arguments on appeal. The issues you raised are legal arguments.

In the sports league context, the league examines different facts (camera evidence vs. what the officials saw) and that's what separates them from an appellate court.

Posted By : Anonymous

I'm not an attorney, but I do know that the NFL co...

Message posted on : 2007-02-01 - 02:54:00

I'm not an attorney, but I do know that the NFL commissioner has final and foremost authority as the self-governing arbiter of the wishes of his membership, meaning the owners. Correct me if I'm wrong, but is not the commissioner the only figure in any sport who can take action to cancel a game? I strongly believe that no chief official or referee can make such a unilateral decision in any professional sport. This has to represent more than mere circumstantial evidence that the league, vis-a-vis the commissioner, is not bound by the situational interpretation(s) of its on-field officials, and that the league is well within acceptable boundaries to determine itself, using whatever legitimate means at its disposal, which is right and which is wrong. The post-game review is not so much an appeal, but more to the point a reverse presidential pardon, for lack of a better analogy.
Posted By : Law-yore

The decision is probably correct. The sports asso...

Message posted on : 2007-02-01 - 09:07:00

The decision is probably correct. The sports association is a state actor and thus must provide constitutional due process before depriving people of benefits. See TSSAA v. Brentwood Academy (note cert. again granted here on January 5, 2007). What process is due to a high school basketball player suspended for disciplinary should be similar to the protections afforded to students when they are suspended for disciplinary reasons. At a minimum, students have a right to be heard on their side of the story. See Goss v. Lopez, 419 U.S. 565 (1975). Because Mayo was not given an opportunity to be heard before his suspension, the association was properly enjoined from suspending him.

Perhaps you could argue that, because attending school is a more important right than playing high school sports, more process is due regarding school suspensions than sports suspensions. I do not find this argument compelling.

Posted By : PK

I think the answers to these questions are, unfort...

Message posted on : 2007-02-01 - 10:27:00

I think the answers to these questions are, unfortunately, no. As Dungy himself said, there are plenty of black coaches who are great at what they do, but many were never given a chance. But while the process may be getting easier for pro coaches, it's still an uphill battle for minority coaches at other levels.

Will Donerson, coach at Compton Dominguez High, was reported in the LA Times as saying "We have guys applying for jobs in different areas, and they have as much chance as a snowball in hell...It's been that way for quite some time."

Posted By : john

Constitutional due process analysis looks, in par...

Message posted on : 2007-02-01 - 11:04:00

Constitutional due process analysis looks, in part, to what process is due--that is, what level of hearing or process a person is entitled to, whether before or after the deprivation (he need not be pre-deprivation). The entitlement to process is grounded in the need to avoid erroneous deprivations. So, in part, we look to whether a hearing could have any practical effect on the outcome in the sense of helping to avoid an error under the applicable rules.

The opportunity to "be heard on their side of the story" applies only if there is a story to tell that might affect the decision. That is not likely here. The rule says if a player is ejected, he is suspended. So what could Mayo's "side of the story" be? That he was not suspended? There no dispute about that. That he should not have been ejected and the game official was wrong to do so? That is precisely the inquiry that I am suggesting governing bodies should not make and should not be allowed to make.

Suppose a school had a rule that if you are absent more than 5 days in a semester (regardless of the reason for the absence) you are suspended for two days. There is no question that Student A was absent more than five times. Under the rule, he should be suspended. There is no story he could tell and nothing he could say to change the application of the rule.

Posted By : Howard Wasserman

Isn't the increase in African American coaches a l...

Message posted on : 2007-02-01 - 11:38:00

Isn't the increase in African American coaches a likely result of the influx of African American players in the 70s. As more African Americans were integrated into the sport isn't it likely that we are now seeing the fruits of those players moving through the ranks from players to coaches?

It will be interesting to see if the trend continues as the sport becomes increasingly dominated by African Americans on the field. You would expect to see those players continue to move into the coaching ranks.

Posted By : Anonymous

The Rooney Rule works only to the extent teams tak...

Message posted on : 2007-02-01 - 12:14:00

The Rooney Rule works only to the extent teams take it seriously and do not treat it as a formality on which to go through the motions before hiring the already-identified person (often a white coordinator who previously had not done well as a head coach) they really want to hire.

I am not sure how much you can glean about progress from the Rooneys hiring Tomlin, because the Steelers are a unique organization when it comes to coaches -- who else keeps a coach for 15+ years in this day and age?

Consider the Cowboys interview of Mike Singletary the other day, in which the interview was held even though everyone knew that Jerry Jones wants to hire Norv Turner. Singletary reportedly did so well (the interview lasted 7 hours, so it went beyond perfunctory) that it changed some things. But Turner still seems to be the guy.

Ironically, this is the second straight times Jones has seemed to play fast-and-loose with the Rooney Rule. Three years ago, he had settled on Bill Parcells and did a quicki interview with a minority candidate (I forget who). Of course, the league did not come down on Jones, saving all its venom for Matt Millen whose only mistake was not going through the motions before hiring Steve Mariucci.

Posted By : Howard Wasserman

As Tony Dungy and Lovie Smith both said in intervi...

Message posted on : 2007-02-01 - 13:28:00

As Tony Dungy and Lovie Smith both said in interviews after the Conference Championship games, progress will not be made for African Americans until we are no longer discussing the historical impact of African Americans coaching in the Super Bowl. The lack of African American presence in managerial and coaching positions in the NFL is astonishing given the number of African American players in the League.

Charlotte Westerhaus, chair of diversity of the NCAA talked about the extreme lack of African American coaches on the collegiate level. West Virginia University has the only African American soccer coach in Men's Division I soccer. For the 120 institutions that support a Division I football program (also with large percentages of African American players), there are a very small number of minority coaches.

This old boys club of rich white men has to be broken up in order to make way for larger percentage of minorities - women, Hispanics, Asians, etc.

Posted By : Stacey

Anon, again I must disagree. There are at least t...

Message posted on : 2007-02-01 - 14:29:00

Anon, again I must disagree. There are at least two times when a finding of fact will not be followed by an appellate court. First, let's say we're in a judgment notwithstanding the verdict position. If the appeals court determines that no reasonable juror could have determined a certain fact in a certain way, it can refuse to obey that finding.

Similarly, when reviewing a trial without a jury (as in a Mississippi chancery court), there is a general deference to the trial court's findings of fact, but they can be dismissed if they are manifestly wrong or clearly erroneous. See generally Saliba v. Saliba, 753 So. 2d 1095, 1098 (Miss. 2000).

Again attempting to make the analogy work, I think we can say that the NFL/appellate court decided that the "finding of fact" by the trial court/referees was "manifestly wrong or clearly erroneous." In other words, they shoulda called the penalty. They didn't, but the NFL did.

Posted By : gorjus

Stacey Isn't your logic slightly flawed. As anon...

Message posted on : 2007-02-01 - 14:36:00

Stacey

Isn't your logic slightly flawed. As anonymous stated earlier, as more minorities became players in the 70s and 80s, wouldn't you just now start to expect to see those same players becoming coaches.

Sure, 60% of the players in the league are African American, but if percentages were lower in the past wouldn't the number of current African American coaches be lower to reflect that. This of course assumes that the better or more qualified coaches actually played the game. I would suspect that in the next 20-30 years you would see more minority coaching candidates just because of the percentages of minorities on the playing field today. You state that only 1 NCAA soccer coach is an African American but 10 or 15 years ago, how many African Americans were playing soccer on the Division 1 level?

Posted By : Anonymous

Well done. I agree with your analysis. The rule ...

Message posted on : 2007-02-01 - 14:46:00

Well done. I agree with your analysis. The rule being applied, the suspension was automatic, there was no discretion. There was no valid grounds for a TRO, except for the bright lights of a basketball game. Sad commentary on life at this point.
Posted By : qtlaw24

Howard: It is a question of fact whether he recei...

Message posted on : 2007-02-01 - 15:19:00

Howard:

It is a question of fact whether he received two technicals. It is a question of fact whether he bumped the referee. The fact that IN THIS CASE the technicals were observed by everyone, even a "busload of twenty passing bishops" does not change that fact those are questions of fact which Mayo could in theory dispute at a hearing. Procedural due process ensures that he gets that opportunity, even if observers are sure what the result of that hearing will be.

Essentially, you're argument is that when the evidence is overwhelming a hearing is unnecessary. That is not the law.

Posted By : PK

"Under the temporary restraining order, O'Hanlon a...

Message posted on : 2007-02-01 - 15:23:00

"Under the temporary restraining order, O'Hanlon also barred the WVSSAC from imposing a rule that says if a student plays under the terms of a court restraining order that is subsequently reversed, the WVSSAC could force the team to forfeit victories in which the student played." Bryan Chambers, The Herald-Dispatch, 1.31.07

Not only did Judge O'Hanlon allow Mr. Mayo to play, but also put the results of the game beyond the reach of the WVSSAC should his decision be reversed by a higher court.

A judge has taken the consequences out of a rule designed to protect equity and safety in play. I agree with Mr. Wasserman that this will set a bad precedent. Coupled with some of the conclusions from "Flagrant Foul: Racism in the Ron Artest Fight" by Jeffrey A. Williams(which you can find in the archives of SLB), this has wider implications for the health of the game.

Glenn Blakney

Posted By : gblakney

gorjus - You have exposed my sloppy terminology,...

Message posted on : 2007-02-01 - 15:25:00

gorjus -

You have exposed my sloppy terminology, but I'm not convinced. Rather than "facts," substitute evidence in my original post. An appellate is always confined to the evidence in the record, even if draws different "findings of fact" from them than the trial court.

In a football league setting, the evidence the "trial court" sees what the official actually saw. But the "appellate court" sees what the television camera saw. In other words, it sees different evidence than the offical says. Contrast actual appellate courts, who are confined to the same evidence reviewed by trial courts.

Posted By : Anonymous

While I do feel it is having an impact in the leag...

Message posted on : 2007-02-01 - 22:58:00

While I do feel it is having an impact in the league, I'm going to have to agree with Howard that it all depends how it is being used.

The one positive that is assured from the process is publicity. As bad as the Singletary interview in Dallas is being exploited as abuse of the Rooney Rule, it is still newsworthy. Many people will attest that there is no such thing as bad news. Job or not, Singletary has now been shot to the forefront of possible African-American hirings.

The Tomlin hiring has managed to stay completely under the radar. As a Steeler fan I was shocked until I researched Tomlin and realized he fits the system perfect. He's a hard-nosed coach that believes in running the ball and playing tough defense. I'm not sure the Rooney Rule made the difference in this hiring, unless the only reason he was brought in was to fulfill the requirements, but I'd like to think the Steelers simply did their homework.

It will be interesting to see if something like the Rooney Rule gets implemented into NCAA football. Like the NFL (maybe worse), college football is still being run by the "good ole boy" network where those who donate to the school still call the shots (i.e. Nick Saban at Bama). Unfortunately, this includes many who still live in the past.

Posted By : Shawn

According to the talking heads here in West Virgin...

Message posted on : 2007-02-01 - 23:43:00

According to the talking heads here in West Virginia, the main reason for allowing Mayo to play was that in the contract to play at Cameron Indoor it was written that barring injury Mayo MUST play in the game.

Basically, allowing him to play was more important money wise than enforcing the rules.

Posted By : Shawn

i love the site... very interesting. By the way, ...

Message posted on : 2007-02-01 - 23:55:00

i love the site... very interesting.

By the way, I was wondering if you would like to link my nlog to yours. I'll do the same with yours on mine. Let me know. Thanks.

http://www.thesportsflow.blogspot.com

Posted By : ming01

I disagree with everybody who says two African-Ame...

Message posted on : 2007-02-01 - 23:55:00

I disagree with everybody who says two African-American coaches in the Super Bowl represents "progress."

This just falls into the "African Americans need to be twice as good to be considered average as a White guy."

When will equality be reached? When Dennis Green is on his fourth team, when somebody other than the Raiders hires Art Shell, when Ray Rhodes takes over another coaching job.

Not until we can describe an African-American coach as "retreads," can equality truly be achieved.

Posted By : Michael

A few quick points: >>> In almost every league a...

Message posted on : 2007-02-02 - 11:31:00

A few quick points:

>>> In almost every league at every level--high school, college, international, Olympic, NBA/professional--two technical fouls is AUTOMATIC ejection from the game for players. (There are exceptions at some levels for coaches; for example, it takes three bench tecnicals to eject a coach in college.)

>>> Suspensions for actions after ejection usually can be appealed; automatic suspensions for ejections can't be appealed.

>>> Why wasn't the player on the other team, who threw a forearm/elbow into Mayo's chest after Mayo was "T" 'd up, also given a "T" (and possibly ejected)?

>>> The other question is whether Mayo bumped the official sending the ref to the floor. That suspension CAN be appealed (would love to see a view from another angle), but even the "supporters" of Mayo's "rights" should have know that bumping a ref is one of the absolute "no-no's" in sports!!!

Melvin H.

Posted By : Anonymous

I would have to say that the whole thing was a hug...

Message posted on : 2007-02-02 - 12:39:00

I would have to say that the whole thing was a huge conflict of interest, esp when Ron Bamberger took the owners box at the Derby and forced the children of Mr. Hines to use other boxes. Not to mention the money Bamberger made on promotional deals for himself, the traveling he did with the horse and as the executor, should he really have been gambling the estates money?

-An Owensboro Native

Posted By : Anonymous

Luis, I think the dilemna that you noted in your ...

Message posted on : 2007-02-02 - 12:43:00

Luis,

I think the dilemna that you noted in your post (Regulatory vs. judicial) will continue to be a big challenge for these international governing bodies of sport and governments. Did you recently see the Kenyan dilemna? (Kenyan Government Accuses FIFA of Interference Over International Ban, see Reuters 2/1/07)

Just another example. Thanks for using the "world's game" as a variable, I think as more american owners (now Hicks with liverpool)continue to invest in foreign clubs (soccer's elite) the american people will have more and more impressions to the sport at the spectator (highest) level.
Thanks and good luck to you.
-PS

Posted By : Anonymous

The question is not whether Mayo's side of the sto...

Message posted on : 2007-02-02 - 14:33:00

The question is not whether Mayo's side of the story is worth hearing, it is
whether a high school basketball player who has been suspended from a
government sponsored activity's story is worth hearing. It is, and so is
Mayo's, regardless whether anyone believes he has much of one. A right to
be heard for a class of folks (high school athletes) does not depend on the
substance of an individual case. One can't even know whether there is
substance to his argument unless you allow him to be heard.

TRO's also look at the interests and harms involved. Anyway this case
shakes out, there is absolutely no harm to the athletic association. A two
game suspension is a two game suspension, tomorrow, next week, a month from
now; unless of course we are trying to harm Mayo in a special way.

My good friend Howard's point depends on his assertion that sports is
ungovernable if referees decisions can be reviewed by athletic associations,
and those decisions by athletic associations being required to follow a
consistent and regularized process, as contemplated by the Constitution. I
disagree. The interest of referees to be free from scrutiny cannot
supersede a citizens right to Constitutional protections. Too often in our
history, justice is to individuals denied for too flimsy a reason. That
Constitutional protections encroach on the freedoms of others is simply a
fact and a cost to be lived with.

Plus, its not much of an encroachment. In fact, its not an encroachment at
all. To seriously put on quality sports contest, one needs quality
referees. That requires review and supervision. Sports associations review
referee decisions all the time. They are even penalized by their leagues.
Musn't they, even if just from a quality control standpoint? That hasn't
destroyed the game. Or made it unrefereeable.

It is doubtful that the referee said to Mayo, "I am going to get you out of
this game, and your next one two." But if he had, my dear colleague's rule
would prevent Mayo or any other high school athlete from doing anything
about it.

Also remember, it is not the courts that will review the referee's
decisions, the question is what process does the high school association
have in place for the association to review those decisions when they
penalize a participant (who has neither millions of dollars nor a union),
and whether that process ventilates the issues and protects from erroneous
deprivations. If they have no process at all, this is another in what will
be a long history of slam dunks for Mayo.

Posted By : SmittyBanton

First, I think that this blog and the comments are...

Message posted on : 2007-02-02 - 15:05:00

First, I think that this blog and the comments are very thoughtful and insightful. This was a great article! I tend to agree with most of the comments made thus far.

I would agree that the Rooney Rule has made a difference in opening doors of access for African-Americans to enter NFL coaching ranks. I hope that the majority of teams will begin to take the Rooney Rule seriously and stop paying "lip service" to diversity in the managerial and coaching ranks.

The bottomline is that there are a number of stereotypes and institutional barriers blocking access for African-Americans and other people of color in society. I hope to live in world where we can judge a person by their character, intellect, ingenuity, and contributions without regard to race. The NCAA and other major league sports should take a cue from the NFL. How do we change the culture and knock down more doors?

Posted By : Joseph

To me, the Rooney Rule is all about opportunity an...

Message posted on : 2007-02-02 - 15:50:00

To me, the Rooney Rule is all about opportunity and exposure. As shown in Dallas, Mike Singletary has been presented an opportunity thanks to the Rooney Rule. Regardless of what happens in Dallas, Singletary has demonstrated to the entire league that he is capable of being a head coach in the NFL.

However, there is still a long, long way to go. Tony Dungy and Lovie Smith coaching in the Super Bowl is a great storyline. And it shows that advancement is being made. However, the real step will be made when it is no longer headline news when African American hirings take place around the league.

Mike Tomlin's hiring is a tremendous stride. This is a 34 year-old guy who has only been a defensive coordinator for one year. He's not much older than the majority of players on his own team. Plain and simple, there aren't too many head coaching hires that have had this little experience, regardless of race. Dan Rooney, one of the most respected owners in all of professional sports, has shown his commitment to his own rule. Hopefully, others around the league will take notice and do the same.

For me, the ultimate test for the hiring of Mike Tomlin will be in 5 years. When he won't be measured by the color of the skin, but by his win-loss record.

Posted By : Josh

Josh, I totally agree with your comments. For me,...

Message posted on : 2007-02-02 - 16:44:00

Josh, I totally agree with your comments. For me, the day of total equality will be reached when it's no longer a headline as to what advancement an African-American has made.

I can appreciate the efforts of Mr. Rooney in effecting the Rooney Rule and those by the NCAA to ensure a more diverse collegiate body; however, by just requiring a minority to be interviewed, there is no guarantee he/she will be hired. I think the efforts being made by these individuals shows the problem is being acknowledged, but one has to ask when substantial changes will be made. Sure, there are now five African-American head coaches in the NFL, but what about the other minorities present in this country. I could accept the fact that the white man got the job if he truly was hired for his superior record and background; however, I have a hard time believing that the "good old boy" network will die anytime soon.

In the meantime, we can only hope that more people like Dan Rooney will come into decision-making positions in professional teams and hire individuals not based on their race, sex, religion, etc.

Posted By : Bethany

This seems like a basic economic issue. If demand...

Message posted on : 2007-02-02 - 20:02:00

This seems like a basic economic issue.

If demand to watch a given program is so high, its producer should be able to obtain whatever the equitable price for that programming is for the given demand level.

A baseball game on TV has a specific value, and in a free market firms should be able to charge whatever they feel balances price versus demand.

I love sports as much as anyone I know, and I wish I was a subscriber to all the special services. I'm not, because I'm apparently not "that big" a fan. Kerry and others are off-base in their assumption that organizations somehow owe us free access to their programming.

Posted By : tim

SmittyBanton's initial point is a good one--from t...

Message posted on : 2007-02-02 - 21:55:00

SmittyBanton's initial point is a good one--from the SSAC's standpoint, it does not matter which two games Mayo sits out. And that perhaps played a role in the "balancing of the equities" that the trial judge performed in deciding whether to issue the TRO. Although what do we do if Mayo gets two technicals in the state semi-finals during his senior year, when he only has one game left in his career . . .

But as to the other point: I am not suggesting that game officials should be free from scrutiny. Their decisions and their performance should be scrutinized and evaluated. And, if necessary, they should be sanctioned, reprimanded, or even dismissed for poor performance. But that is not the same as saying their in-game discretionary decisions should be subject to review and reversal by what is essentially a legislative/executive body.

To take it out of sports for one second: One core principle in the discussion over judicial accountability/judicial independence is that we should not interfere with decisions already made and finalized. We should not re-open a final judgment, decide that some discretionary decision was incorrect, and therefore undo that final judgment.

Back to sports: SSAC could say "this ref was wrong in giving Mayo those technical fouls and the fact that he did so suggests that he is not a good official and we should not hire him back next year." That is subjecting his decision to scrutiny and holding him accountable.

But SSAC should not say "he was wrong to give Mayo those technical fouls and therefore we will re-open that decision and retroactively revoke the T's, treating them as if they never were assessed, thus taking away the basis for suspending Mayo."

This is what I think would make games ungovernable. Not accountability and scrutiny, but this type of scrutiny.

Posted By : Howard Wasserman

But Tim, we have to consider the amount of Taxpaye...

Message posted on : 2007-02-03 - 12:49:00

But Tim, we have to consider the amount of Taxpayer support each MLB team receives and various Government Sponsored Advertising (Rose Garden Appearances, Congressional Resolutions, mayoral bets, Championship Parades) and laws (see the enforcement of the Draft).

It is not unreasonable to expect in exchange for all this public financed support, that every so often, the sports leagues sometimes need to leave money on the table and do something for the General public.

Posted By : Michael

Tim-- The level of output (and price) set by ...

Message posted on : 2007-02-04 - 13:33:00

Tim--

The level of output (and price) set by a single firm is a basic economic issue. When the single firm enters into an agreement with one or more of its competitors to set the level of output (and price), it becomes a (potential) antitrust issue under Section 1 of the Sherman Act.

If the leagues are a collection of competing entities (the individual teams), then league-wide agreements to restrict output and set prices are exactly the type of agreement Section 1 of the Sherman Act was designed to prohibit, and are much more than basic economic issues. If, however, the leagues are "single entities," at least with respect to the market for televised sporting events, then there is no "agreement," and therefore no potential Section 1 issues under the Sherman Act, and this is in fact just a basic economic issue (putting aside, of course, and potential Section 2/monopolization claims)

Posted By : Gabe Feldman

Good post and blog, it's in and you're linked, tha...

Message posted on : 2007-02-05 - 00:52:00

Good post and blog, it's in and you're linked, thanks!

absurd thought -
God of the Universe says
forbid women to play sports

or at least not with men
and no photographs either
.

Posted By : USpace

I hope that the city of Baltimore can, once and fo...

Message posted on : 2007-02-05 - 10:14:00

I hope that the city of Baltimore can, once and for all, drop the notion that they somehow still should have the rights to the Colts. They have a new team (the Ravens) that has brought the city a Super Bowl. The Colts belong to Indianapolis now. As Eminem one said: "Let go -- it's over!"
Posted By : Lou P.

How does antitrust standing work in these types of...

Message posted on : 2007-02-05 - 21:26:00

How does antitrust standing work in these types of cases? Can any consumer sue MLB for moving its games to DirectTV?

Also, given the emphasis on textualism in the courts, I can't imagine any court extending the SBA to soccer.

Posted By : Anonymous

Well, the Browns don't belong to the city of Balti...

Message posted on : 2007-02-06 - 18:33:00

Well, the Browns don't belong to the city of Baltimore. Thank god for that ! They are back in Cleveland where they belong.
Posted By : Dave Burkey

Arguably, yes, any consumer who had to pay more fo...

Message posted on : 2007-02-06 - 19:21:00

Arguably, yes, any consumer who had to pay more for the DirecTV package (or did not have access to the DirecTV package) would have the requisite antitrust injury/standing to bring an antitrust suit. Consumers brought the suit against the NFL in 1998...
Posted By : Gabe Feldman

The "defection" of the two teams from the two citi...

Message posted on : 2007-02-06 - 21:34:00

The "defection" of the two teams from the two cities is not all that different. Both teams left their long-term homes and their "roots" because they were not making all that much money where they were and had a deal in place to make lots more money in the place that was to be their destination.

The Cleveland situation was really pretty simple. The city built a stadium for its baseball team and an arena for its basketball team; when its football team suggested it was the football team's turn, the city said they couldn't afford to do that. Amazingly, right after the team left, the city fathers found a way to come up with the money to build a new stadium for its "new" version of the Browns.

It's easy to blame greedy owners and they deserve plenty of blame. But don't absolve the politicians in these cities; as Ricky Ricardo would say, they got a lot of "splainin' to do".

Posted By : The Sports Curmudgeon

I believe in the power of the individual fan! My ...

Message posted on : 2007-02-07 - 11:36:00

I believe in the power of the individual fan! My team loses if I celebrate to early, or if I don't properly perform pregame rituals. I've known these powers to be true ever since I was a child and the Phillies never lost when me, my Dad and brother attended.

Now, even if we don't have mystical powers, my efforts are otherwise grounded in fairness. It is not fair for me to yell and curse those who perform for my entertainment, unless I too have given my all!

Posted By : SmittyBanton

Though Lasik eye surgery may improve a number of a...

Message posted on : 2007-02-07 - 18:55:00

Though Lasik eye surgery may improve a number of athletes performances, I feel it cannot come close to being compared to something like Steroids. Lasik surgery corrects poor vision, which is something that cannot be corrected simply from working harder.
Posted By : sdfsbo

This is similar to the studies they did back in th...

Message posted on : 2007-02-08 - 11:06:00

This is similar to the studies they did back in the 80's how they describe the Black vs. White players.

Natural, Athletic, Gifted vs. Intelligent, Hard Working, Hustling.

Could the Genius tag also help explain away the white coaches bad behavior? It's OK for Belichick to not shake a coaches hand, insult another player, quit a job after one day, break up a marriage because he's a genius. You know those guys aren't really good at social situations.

Posted By : Michael

I fail to see how this posting, and its related co...

Message posted on : 2007-02-08 - 13:46:00

I fail to see how this posting, and its related comment, is a direct comment on sports law. Instead of being a rant couldn't it, and the related comment, focus on some type of lawsuit or action taken on behalf of minorities, rather than just getting up on a soapbox with an opinion and no legal relation?
Posted By : Tag

At least he's not gay...not that there's anything ...

Message posted on : 2007-02-08 - 14:32:00

At least he's not gay...not that there's anything wrong with that.
Posted By : Corey

tag: the relationship to sports law is subtle, ye...

Message posted on : 2007-02-08 - 14:40:00

tag: the relationship to sports law is subtle, yet critically important. the ncaa, ever since the tarkanian case, has been given great autonomy by the federal courts to regulate, run and dictate exactly what its member institutions can and cannot do. justice stevens suggests in tarkanian, that if the member institutions do not like the law the ncaa lays down, they are free to disassociate themselves from the ncaa.

the post asks the question bluntly: what is the ncaa doing to resolve centuries old racism and discrimination against african american coaches? certainly the ncaa has the power to "order" something. yet, it continues to stand idly by while the nfl and nba lead the way in hiring and promoting minority coaches.

Posted By : dre cummings

Howard, I loved Diner. My wife is from the D.C. a...

Message posted on : 2007-02-08 - 15:34:00

Howard, I loved Diner. My wife is from the D.C. area and I have to hear her sing "Hail to the Redskins."
Posted By : qtlaw24

Real USC Football Scandal

For the real stor...

Message posted on : 2007-02-08 - 15:35:00

Real USC Football Scandal

For the real story of what USC football is about.

Copy & paste this link below in your browser:

http://home.comcast.net/- spytime/index.html

P.S. ... I need a co-author :-)

Posted By : SpyTime

dre - While Dungy and Lovie weren't called "articu...

Message posted on : 2007-02-08 - 15:41:00

dre - While Dungy and Lovie weren't called "articulate," there were countless remarks by Jim Nantz during the Super Bowl, and other broadcasters throughout the playoffs, about how they coached differently, that they were quiet family men who didn't swear.

I'm willing to believe that these are in fact traits possessed by both men, but I was very uncomfortable with the amount of attention their "politeness" and perceived demeanor got them.

I like the DL Hughley quote in the NY Times article as well. I might also add that we're often afraid of attaching the word racism to an action or a person, not because it's negative, but because we associate racism with the KKK and acts of violence based on race, just to give a couple of examples. This is why people respond so fervently when asked "are you a racist?"

If those in sports and covering sports were more willing to talk about racism, and if more people understood that racism isn't just Michael Richards or Paris Hilton making overtly hateful statements, it would be much easier to make progress. Does the NCAA do anything right now to promote dialogue and understanding? It might be a good place to start.

Posted By : Satchmo

Real USC Football Scandal

For the real stor...

Message posted on : 2007-02-08 - 15:47:00

Real USC Football Scandal

For the real story of what USC football is about.

Copy & paste this link below in your browser:

http://home.comcast.net/- spytime/index.html

P.S. ... I need a co-author :-)

Posted By : SpyTime

"America's media jumped on Biden for perpetuating ...

Message posted on : 2007-02-08 - 16:46:00

"America's media jumped on Biden for perpetuating an age old stereotype that surprise should accompany a black man who is 'articulate' or 'clean.' 'When whites use the word [articulate] in reference to blacks, it often carries a subtext of amazement, even bewilderment.'"

I agree that "articulate" is a particularly egregious example of such a subtext. However, couldn't any laudatory adjective carry the same subtext? I don't see how "classy" is any better than "articulate." Taken to an extreme, any adjective used to complement an African-African can carry a negative connotation of surprise and bewilderment.

Posted By : Michael

Hey Mike, unfortunately I can't make the trip for ...

Message posted on : 2007-02-08 - 18:40:00

Hey Mike, unfortunately I can't make the trip for the TJSL's Sports Law Conference, but I thoroughly enjoyed the Virginia CLE seminar.
Posted By : Christian Gesue

Hi Christian: thanks for your comments about the U...

Message posted on : 2007-02-09 - 00:05:00

Hi Christian: thanks for your comments about the UVA Law symposium--I agree, it was a great event. I will be sure to pass your comments along to the symposium's organizers.
Posted By : Michael McCann

Bill Belichick - creator of a modern day "dynasty"...

Message posted on : 2007-02-09 - 12:57:00

Bill Belichick - creator of a modern day "dynasty"

Mike Holmgren - 3 Super Bowl rings and known for his "genius" offense (Walsh protege)

Bill Walsh - responsible for putting together and running one of the best offenses the NFL has ever seen, again an offensive "genius"

Bill Parcells - Ok, I don't have much of an excuse for him, he's not a genius, however, he has been successful with a multiple of teams.

Eric Mangini - His "genius" simply comes from his name and being a Belichick protege

While I will agree that there seems to be an unwillingness to add Dungy in the same category as the above mentioned because of the refusal to classify him as a "genius," I feel as though it could mostly be because he doesn't have a central focus of his coaching style for it.

First off, Dungy has a way to go before reaching the status of Walsh, Holmgren, and Belichick. The common thread of all of them is their offensive minds. Dungy is a defensive minded coach and I don't think the Colts defense showed this year that any "genius" was involved.

Dungy is a genius in the sense he has the ability to bring the team together as one and create a chemistry that no one else can achieve. However, that is completely different than the meaning behind the term "genius" as used in descrbing the above coaches. I feel the word belongs to a minded-scheme, not a collaborative effort that ends in winning and Dungy simply does not fit the category that the term is used to describe.

Also, I can think of at least one African-American coach that was known for being a genius. The one and only John Thompson of Georgetown.

Posted By : Shawn

"since officials need a certain degree of discreti...

Message posted on : 2007-02-09 - 13:42:00

"since officials need a certain degree of discretion -- was there enough contact on a given play that one player gained an advantage, warranting a foul? -- that is lost if they know they could be fired because the league disagrees with one or a few calls."

I'm not sure this makes sense. How could discretion be "lost"? No matter what the league does after the fact, officials have to make the call on the field. Thus, even not calling a foul is an act of discretion subject to review. (Or are you claiming that only foul calls are reviewed, but not non-foul calls?) The only way that officiating could be affected is if certain classes of decisions are more likely reviewed for error than other types of decisions, e.g., foul calls are more likely reviewed than the decision not to call a foul. (Note the similarity here with the argument regarding the cert. pool driving down the number of cases heard by the Supreme Court.) If that is true, then officials will call less fouls. But if that becomes a problem, the obvious remedy is to start reviewing more disputed non-foul calls. More importantly, is there any evidence that foul calls are reviewed more harshly than non-foul calls? (For procedural reasons, I could understand why technical fouls leading to suspensions might be reviewed more often due to the players' right to appeal a suspension, but I'm not sure about run-of-the-mill fouls.)

Posted By : PK

Sorry to have to use the least sports-like example...

Message posted on : 2007-02-12 - 19:50:00

Sorry to have to use the least sports-like example here, but I can't think of property rights in personal names without thinking of Elizabeth Taylor.

Granted, Liz trademarked her name because she has entire perfume and cosmetic lines under "Elizabeth Taylor," but she tried to enjoin NBC from making a TV movie based on her life because she had "branded" herself, making an argument of trademark dilution.

Elizabeth Taylor and other domains:
http://www.wipo.int/amc/en/domains/decisions/html/2006/d2006-0800.html

Elizabeth Taylor and NBC:
http://www.rcfp.org/news/1994/0920a.html

So I wonder if the real Peyton Manning had similarly created some kind of business enterprise under his name (not a far stretch); whether the dude's use of the name would be considered trademark dilution. Moreover, if the new Peyton Manning started a business under his new assumed name, would that violate a legally cognizable property interest if it hasn't yet been protected through trademark?

There is commercial value in the name which the real one should have a right to (being the actually famous and talented one) and the new fake one could exploit in the future (being the bonehead). Kind of a mess, and kind of stupid.

Posted By : Belle Lettre

A genuinely fun analogy! In contrast to my dogmat...

Message posted on : 2007-02-14 - 14:35:00

A genuinely fun analogy! In contrast to my dogmatic views against performance-enhancing drugs in sports, I kind of love the ingeunity put into NASCAR tricks. A fun book called Driving with the Devil really details the early origins of the sleight-of-hand, hollowing out parts and casting pieces in aluminum . . .
Posted By : gorjus

Contracts weighing in: in no way is he bound base...

Message posted on : 2007-02-14 - 14:49:00

Contracts weighing in: in no way is he bound based solely on a bet. No consideration for his pledge, and no reliance by his buddies that could serve as a ground for promissory estoppel.

Suppose, however, his buddies bought him beer all night long in return for the promise. Then we have a contract with consideration. So what? He should breach it and pay restitution in the amount of beers he consumed. That's a much smaller hassle.

As for the name issue, how is this different than a guy who was born "Peyton Manning" in Nome, Alaska and works on the pipeline? If our bettin' man changes his name to "Peyton Manning" and otherwise leads a normal non-exploitive life, no problem, right?

What if he changed his name to "Peyton A. Manning"? Same concern?

What if he changed his name to "Richard Karcher"? :)

Posted By : ChapelHeel

Better than former congressman Dick Army.

Message posted on : 2007-02-14 - 14:51:00

Better than former congressman Dick Army.
Posted By : ChapelHeel

I agree with the post about Bush and Biden, etc., ...

Message posted on : 2007-02-14 - 15:04:00

I agree with the post about Bush and Biden, etc., but I don't think omitting "genius" from Dungy's descriptors is the same issue.

I can't comment on why Mangini is on the list, but Dungy's accomplishments do not rival those of the other coaches, IMO. Not yet.

And besides, this same Tony Dungy has been called a "defensive genius" frequently. (Google it, you'll see). And that's true notwithstanding that the Colts were a poor defensive team last year, and until the playoffs this year, were one of the worst defensive squads in the entire NFL.

The problem is that in the media, superlatives have no intrinsic meaning. Everyone is a genius or bright. Every play is "absolutely incredible" or "fantastic." We're running out of things to say. All such labels are watered down.

In my own head, Parcells and Belichick are football geniuses. They repeat performances over and over, regardless of personnel turnover. But Holmgren loses a lot of big games. Shanahan does too. I couldn't pick Mangini out of a police lineup.

I think using the terms "classy" and "intelligent" to describe Dungy are closer to the insidiousness of "articulate" than the absence of the term "genius".

Posted By : ChapelHeel

Nascar is NOT a sport!!!!! Let's hope the governm...

Message posted on : 2007-02-15 - 11:07:00

Nascar is NOT a sport!!!!! Let's hope the government never wastes its time on any issue related to Nascar.
Posted By : Anonymous

It's the same in every racing category. F1 has a l...

Message posted on : 2007-02-15 - 11:46:00

It's the same in every racing category. F1 has a long history of cheating, but it's kept under wraps or named something else. In F1 it's mostly about aerodynamics, like in this case with Nascar. But in F1 teams are "asked" to push the envelope in a certain sense, aren't they? It's all about who is one step ahead, although that could change in order to make the series more competitive.

The difference is, of course, that NASCAR, like champ car racing, features cars that are almost identical to one another when compared to F1 cars. So while technical break-through is a condition of F1 racing, could it be that conformity is more of a value in NASCAR and hence the vigorous application of these rules?

Posted By : Luis Cassiano Neves

Last night I had a dream. I saw a horse standing o...

Message posted on : 2007-02-15 - 16:01:00

Last night I had a dream. I saw a horse standing on a hill against the setting sun. A beautiful chestnut colt seemed to beckon me. Clouds started to gather as I started up the hill to where the horse was. I sensed a deep sadness from the horse. I can't explain it but I've always had a special gift of empathy. This majestic creature appeared so strong and powerful and yet I sensed in it pain. I arrived at the fence that separated us and opened the gate. The horse turned and looked straight at me. For a moment we just looked at one another. But it was a look like no other. I looked into his eyes and I understood. I believe that I saw his soul and he mine.

In an instant, I knew it was Barbaro. And this magnificent beast, which had looked so healthy, was hurt - a deep, profound wound. Don't ask me how, I just knew.

I thought, Barbaro, you courageous, valiant steed, Equus, friend of man. How can I help? Barbaro bowed his head; my power of empathy in instant told me Barbaro had made a decision. It was a good decision, a decision that sadden me and would sadden many other people, but the right decision. Just then there was a break in the clouds above and a golden beacon of light shone down, illuminating Barbaro. He looked up and whinnied. Barbaro was going home. The gate I had opened, he now trotted through. Barbaro soon increased his pace to a gallop. He kicked up his heels in joy like when he was a young foal with naught to fret about but laying in the soft grass on a lazy, warm day and nestling at his mother's teat for sweet milk. He was afire with the joy of freedom of movement and of flying. He was fiercely alive - alive with all that was good and holy between man and beast, beast and God. Run Barbaro, run, mighty being and true friend. I watched as the proud champion ascended into heaven atop a sunray, his hooves aflame, his mane and tail alight and shining. I whispered, 'Godspeed, Barbaro, and thank you for your gift to all of us.'

I woke in the morning a found out that Barbaro had been put down. This is a true story.

There is one more part to the dream that I know sounds crazy but I have to say it because I know that's what Barbaro wanted me to do. He asked me to tell the world he was happy, at peace and thank everyone for all their prayers.

Posted By : Anonymous

Sounds extremely exciting should be very interesti...

Message posted on : 2007-02-15 - 20:34:00

Sounds extremely exciting should be very interesting to hear both these speakers!
Posted By : Anonymous

Probably the MLB is caught up in that "Master-Agen...

Message posted on : 2007-02-16 - 22:29:00

Probably the MLB is caught up in that "Master-Agent" construction for how they view their players. If their players (agents, i.e. multi-million dollar servants) endorse a product or engage in offensive conduct, would it appear to have been done under the imprimatur of authority of the master?

If we think of players as free agents, maybe not--except that they're still wearing the team colors. I'm also thinking here of "aided in agency relation," that without the benefit of being associated with a team the players would not have as much endorsement power. Aided in agency relation--that uniform sure helps in recognizability and cognitive association. "I like this team, this guy who's a part of the team likes this product, I like this guy and this team, I like this product."

I guess the question is, do MLB teams own their players? If they could be stuck with vicarious liability, couldn't they also be stuck with attenuated endorsement?

But you raise really interesting points about whether there's really any point given the corporate sponsorship of sports (in which case the teams are the agents) and if this is all just hair-splitting moralization.

Posted By : Belle Lettre

I wanted to add a gloss on Howard's remarks. I ha...

Message posted on : 2007-02-17 - 16:14:00

I wanted to add a gloss on Howard's remarks. I have the pleasure of being his colleague at FIU and he came in yesterday as I was writing David Stern a grateful letter for his exceptionally swift and – in my opinion – proportional response to Hardaway's comment. More reactions like Stern's would go a long way toward reducing homophobia in professional sports. At the same time, they would also make 'better bigots' who – out of self-preservation rather than conviction – would watch what they say for the sake of their careers. That's a speech cost, though, because the issue is probably best thrashed out in the public sphere through sincere arguments, not self-serving ones.

Which brings me to the main point: one 'unfair' cost which Hardaway is now stuck with is being the victim of the pervasively heterosexist social arrangements which require – as one of their flying buttresses – the segregation of the sexes in public places (like bathrooms and showers). My sense is that sex segregation of this sort flows from some version of the following:
1. males are straight
2. straight males are sexually attracted to females but not to other males
3. seeing attractive examples of the objects of your affection naked and wet may lead to sexual stuff
4. sexual mischief in public should be avoided
5. so, let's segregate males from females in public spaces.

This makes perfect sense if everyone is straight. (Although this kind of segregation may stunt a certain kind of emotional and sexual maturity.) But if gay people exist in these spaces, the logic breaks down because gay people in these spaces develop a different consciousness: one, we get windfall benefits to the extent that we see beauty in a form that sex-segregation severely limits for heterosexuals (I think that this is the only windfall that we get except maybe for escaping federal tax rules that limit the deductibility of losses between married parties etc.); and, two, we learn to sublimate our reactions to who may be the objects of our desire into socially appropriate behavior, i.e. restraint and a sense of decorum. There are breakdowns of this decorum, e.g. some of the shenanigans that go in on bathrooms sometimes, but these seem relatively isolated given the scope of the opportunity for mischief.

I do a thought experiment sometimes with my straight guy friends in which I ask them to imagine what it would be like to grow up showering among…all kinds of women…including female athletes. How would that play out? (There's a great scene in Starship Troopers to this effect.) Survey says: 'we would lose control,' 'I would never want to be seen by a woman,' 'the hot females wouldn't shower,' and other honest answers. The point is that it would be big deal and that it could lead to significant uncomfortableness.

Gay people have already developed coping skills for this situation but some straight people may not have. Only it's not their individual fault, in the same way that it's not Hardaway's individual fault that he's a product of heterosexist sex-segregation and has never developed the presence of mind to deal with this situation. It's not just homophobia, although that is certainly part of it.

Posted By : jose

The problem is that by attributing any positive qu...

Message posted on : 2007-02-17 - 17:44:00

The problem is that by attributing any positive quality at all to Hardaway's statement, it justifies it in the minds of America's bigots.

My local (tampa) PM drive sportstalk host has been defending Hardaway all week, while maintaining the "sick" nature of homosexual behavior. The more attention these kinds of attitudes get, the more people see them as normalized attitude. It would be better to interrogate where this bigotry comes from than appreciate his candor.

I agree with jose that our country's bizarre sexual segregation contributes greatly to our puritanical attitudes (which then erupt in true perversions) and I've made the point every time I go through the security line at the airport and get patted-down by a man. How do I know the man isn't gay and deriving physical pleasure from the experience? How does he know I am not gay and am not deriving physical pleasure from the experience? The entire concept is ludicrous if one contemplates it for more than five minutes.

Posted By : tim in tampa

The only safe time to use the word "hate" is when ...

Message posted on : 2007-02-17 - 19:32:00

The only safe time to use the word "hate" is when refering to the weather.
Posted By : The Dancing Bear

1)Is the point of the argument Jose, that men and ...

Message posted on : 2007-02-17 - 19:38:00

1)Is the point of the argument Jose, that men and women should shower together. I do not think that is fair for all the people who deem against their religion to shower be in those situations with the opposite sex. So maybe the best solution to this issue is to have curtains in the showers. This way, you can get rid of both problems. men who are gay do not have to look at guys in the shower (I am not implying that they do) and people who are homophibic dont have to be afraid to shower with gay people.
2)Concerning the issue of gay players I htink t his is strictly a player issue, nothing to do with fans. Fans ultimately care about performance, and unlike black players when they came into the league and people were racists and able to see that they were black. Today, even if you know that a player is gay, you cannot tell on the court.

Posted By : Anonymous

I am not sure fans only care about performance. I...

Message posted on : 2007-02-17 - 19:58:00

I am not sure fans only care about performance. It took people a long time to see past Blackness (see, e.g., the mail that Henry Aaron received when he was on the verge of breaking Babe Ruth's record) and just focus on performance. If and when a high-profile active player comes out, it will take many fans a long time to get past it.
Posted By : Howard Wasserman

What would be the implications out of curiousity i...

Message posted on : 2007-02-17 - 20:14:00

What would be the implications out of curiousity if it became that 2 guys on one team were seeing eachother? There must be some legal issues, and I dont think that is something that fans will ever except.
Posted By : Anonymous

Anonymous raises an interesting question. I would ...

Message posted on : 2007-02-17 - 21:17:00

Anonymous raises an interesting question. I would imagine (and I do not do employment law) that the legal issues would be no different than the legal issues surrounding any workplace relationship. The more interesting issue is extra-legal, going to how it would fly in the uniquely close-knit workplace of a professional sports team--especially in a sport like basketball, with only 12 players.

The only comparison we have at this point is coach/player relationships. This generally involves individual female athletes (Marion Jones, Jackie Joyner) and male coaches, but I recall hearing stories about it happening in team sports (again, male coaches/female athletes). It seems untoward, but it happens. Compare that with the fallout in 2000, Nancy Lieberman-Cline, then coach/GM of the WNBA Detroit Shock, was fired amid stories of a relationship with Anna DeForge, one of her players.

Of course, both examples should be the same: both raise generalized concern about romantic relationships within a small workplace. The fact that it is a same-sex, rather than opposite sex, relationship should not matter as to whether such relationship is a good idea or whether it should be subject to discipline. The only reason it becomes more than that (and that Lieberman was fired, where male coaches generally are not) is our basic discomfort with homosexuality. That is the point.

Finally, an anecdotal point. I had a friend in college (a woman) who was a cheerleader--the only sport in which men and women are on the same team. She told me they generally did not date within the team, largely out of trust and cohesiveness issues (how comfortable am I seeing another male cheerleader holding my girlfriend under her skirt). But, again, I am not sure there is or should be an analytical difference between same-sex and opposite-sex relationships.

Posted By : Howard Wasserman

Tim:

We cannot interrogate bigotry such as ...

Message posted on : 2007-02-17 - 21:30:00

Tim:

We cannot interrogate bigotry such as Hardaway's unless who get such candor so that we know who holds such views and why. As for your talkshow host: Assuming that someone, somewhere is talking back to him, I do not think his attitude is being normalized--I think it is being exposed for the ignorance that it is.

Posted By : Howard Wasserman

Was Tim Hardaway waaay off base saying what he sai...

Message posted on : 2007-02-17 - 21:36:00

Was Tim Hardaway waaay off base saying what he said? You bet!

Is he wrong in holding those beliefs within himself? Well, that's a totally different question.

Assume he said what he truly believes - whether or not anyone else agrees with him. So, that makes him a pariah?

It seems to me that the intrinsic value of "free expression" is that views which are totally antithetical to one's own views are readily available for contemplation or confrontation. Tim Hardaway said some things that just don't resonate with many other folks. But, on the other hand, they express quite clearly the views of others in American society.

I suggest that Tim Hardaway should be "punished" for the horribly less than constructive way in which he expressed himself - - thereby framing this entire debate. But to say that there are no positive attributes to his thoughts is tantamount to saying that he should not have those thoughts. And that's not a vector heading I think we need to be on ...

By the way, part of free expression and free thinking is that one is free to "hate" whatever it is that one chooses to hate. As soon as someone else decides what are the bounds and the circumstances under which one can "hate", one has bounded "free thought" and "free expression." The more odious the expression; the more vigorously one must seek to defend its right to be heard.

Bottom Line: Tim Hardaway committed career hara-kiri. His days as a network commentator are in the rear-view mirror. That's his punishment for SAYING what he did. But there is no sin in his thinking what he did or what he thinks today or what he might think in the future - - so long as he does not ACT OUT on his hatreds.

Posted By : the sports curmudgeon

Ditto, Tim, on the patting issue. It's part and p...

Message posted on : 2007-02-18 - 00:39:00

Ditto, Tim, on the patting issue. It's part and parcel of the same thing.

Re: Anonymous' #1: I think that not being viewed as a sexual object is a privacy interest that deserves protection, so I like the curtain idea. Maybe a 'cafeteria' plan approach? Imagine a single cross-sex locker room with zones for people want their own stall and zones for people who don't. That would seem to leave the most options open to people, including for straight men and women who did not favor sex-segregation. That said, I often think that – if you are heterosexual – this sex segregation is a good thing because it promotes peace of mind: you have your guy spaces where you can relax and not think about sexual competition and you have the world of women, where you may have different objectives. When you're gay you can't really organize the world that way, for better or worse.

I'm hostile to the idea of 'hate speech' so I like Sports Curmudgeon's defense of what some see as 'bad' speech. I think that you do the world a favor when you stake out a position clearly because that lets people figure out where they really stand, maybe with you, maybe against you.

Posted By : jose

I dont know about u but I know that some people fi...

Message posted on : 2007-02-18 - 10:16:00

I dont know about u but I know that some people find it hard to urinate in front of other men, I can only imagine what it would be like to o it next to a woman. Or going #2 in the bathroom, I do not think many men or women would like to do that next to someone of the opposite sex. Jose I like your idea of peace of mind becuase that is a good thing. Are you admitting to the fact that Heterosexuality is a normative activity than? Herego saying that bathrooms should be according to heterosexuality. Also I think separate bathrooms makes peole respect the opposite sex so much more. Not many guys want to hear about a gril using the bathroom. I realize I a not married, but I still am willing to wait.
Posted By : Anonymous

Anonymous,
I don't think it's normative in the ...

Message posted on : 2007-02-18 - 12:30:00

Anonymous,
I don't think it's normative in the sense that it's better or more socially worthwhile; straightness is just numerically more frequent. And I do think that it's harder for a gay person to find peace of mind in a (normatively) straight word; but a homosexual who is psychically successful accomplishes something that straight people are not called on to do, i.e. to develop a sense of self that survives consistent patterns of attack and criticism from family, judges, religious leaders, politicians, teachers, and other social institutions that are supposed to reflect the best of human values. Run that gauntlet successfully and your powers of critical reflection increase, which I think is a good thing for anyone who takes values seriously.

Athletes are a special case because they are sort of the totems of heterosexual masculinity, which gives them the power to change attitudes overnight in a way that a thousand activists working for a thousand days could never do. Rock Hudson did this in the context of AIDS when he came out. I hope that professional athletics has someone like that soon (God willing without being sick)

Posted By : jose

everybody knows as the athletes are persecuted by ...

Message posted on : 2007-02-18 - 20:45:00

everybody knows as the athletes are persecuted by many anxious women of fame and fortune… leaves them in the street, but follow without understanding… hurts what this happening to him to the Sr.Brady for being a person appreciated and with high rating at world-wide level, walked too much time with this old Woman trims, the one that plays with fire is burned….
Posted By : Anonymous

With the intelligent thing that is Mr. Brady like ...

Message posted on : 2007-02-18 - 20:47:00

With the intelligent thing that is Mr. Brady like is possible that so much neglected? tremendous problem comes to him above…
Posted By : Anonymous

Moan which estapasando and what it waits for to To...

Message posted on : 2007-02-18 - 20:49:00

Moan which estapasando and what it waits for to Tom Brady to him, that to him happens to him through hot, not if to give the condolence him or to congratulate it…
Posted By : Anonymous

That graph is fascinating. Roe v. Wade must have h...

Message posted on : 2007-02-19 - 03:37:00

That graph is fascinating. Roe v. Wade must have had SOME impact retarding the rise of children to unwed mothers, but I don't see it there.

I am also fascinated by the previous three comments.

Posted By : tim in tampa

Michael,

Excellent and thought provoking po...

Message posted on : 2007-02-19 - 06:52:00

Michael,

Excellent and thought provoking post! Everybody should take the time to read both the Akerlof and Fagan studies you provided links for -- fascinating stuff.

Posted By : Rick Karcher

I would distinguish Brady's situation (or Matt Lei...

Message posted on : 2007-02-19 - 12:47:00

I would distinguish Brady's situation (or Matt Leinart's)--a pregnancy arising from an ongoing relationship--from, say Shawn Kemp's--multiple children by multiple women, none (or many of which) were not relationships of any kind. I think they raise different issues about out-of-wedlock births, especially in the world of professional sports.

One answer as to why athletes (or other male celebrities) father more children out of wedlock may just be opportunity to meet and have sex with more women in more places. If there is anything to the allegations by Jason Kidd's soon-to-be-ex-wife, such opportunities abound.

http://www.thesmokinggun.com/archive/years/2007/0216073kidd1.html

Posted By : Howard Wasserman

I don't think Randolph's comment is of the same ch...

Message posted on : 2007-02-19 - 22:08:00

I don't think Randolph's comment is of the same character as Hardaway, and not just because Hardaway's is so bad.

There are lots of people in America who are fine with gay people living a gay lifestyle, but do not want to be personally involved. Call it a middle ground of acceptance.

Let's assume Randolph is Jewish (based on his first name), and let's also assume he is heterosexual. Now suppose he said he was fine with Christians "as long as you don't bring you Christianity on me." Would we be upset? I doubt it.

So why do we get upset if we substitute "gayness" for Christianity when Randolph is heterosexual? Because it is the hot topic of the day.

I don't find his comment unenlightened. It is not as accepting as it could be, but it isn't non-acceptance. It is non-participation; and that's different.

Posted By : ChapelHeel

Come by our blog on how to legally recover your ga...

Message posted on : 2007-02-20 - 09:26:00

Come by our blog on how to legally recover your gambling losses: http://recovergamblinglosses.com
Posted By : keith nelson

As a first year law student I found this article e...

Message posted on : 2007-02-20 - 12:21:00

As a first year law student I found this article extremely informative and interesting. Grat job and keep them coming.
Posted By : Jeff

I agree with Howard, the fact that there are certa...

Message posted on : 2007-02-20 - 18:20:00

I agree with Howard, the fact that there are certainly many more "opportunities" out there for professional athletes and celebrities, has to play in to the picture (its a numbers game, if you will). We're generally talking about young men who are paid an enormous amount of money and are given an enormous amount of fame and access, which leads to a sense of entitlement. Add that to the fact that there is generally a lack of a sense of responsibility, or consequence in their lives. Many of them are protected from when they were in high school, once they show promise as being a star athlete.

It also makes them a target to self serving women, with agendas, that want to be apart of their world. Obviously Brady and Leinart's situations are a little different than Shawn Kemp's (both being in long term relationships with their respective partners), but the results are the same.

Posted By : Christian Gesue

Jeff, thanks for your comments. As a first-year, ...

Message posted on : 2007-02-20 - 20:00:00

Jeff, thanks for your comments. As a first-year, you might be interested in this post (and comments) from last year about what courses to take and other tips for building your "sports law" resume: http://sports-law.blogspot.com/2006/03/how-do-i-get-job-in-sports-law.html
Posted By : Geoffrey Rapp

I'm sorry, but I see no difference between Brady/L...

Message posted on : 2007-02-21 - 11:45:00

I'm sorry, but I see no difference between Brady/Leinart and Kemp. The bottom line is that neither Brady or Leinart are currently dating the mother of their child, and have in fact moved on to other relationships. If anything, Leinart has been linked to multiple women since the birth of his child, none of whom is the mother of his child.
Posted By : Anonymous

first off, moynahan is almost 40 years old. she ne...

Message posted on : 2007-02-21 - 18:58:00

first off, moynahan is almost 40 years old. she needs to stop acting like a teenager and just get on with her life. sure he's off with someone else but from what i read she was off with someone else too after the breakup. she and TB should provide DNA to compare to the baby when it's born to answer any question about who the father and mother are because stuff is going to be said to this kid. you never know, maybe she's faking the pregnancy. there are some crazy women out there. crazy men too.

the baby's welfare (health and financial) should be top priority for moynahan. both so-called adults need to stop talking to the press.

Posted By : Anonymous

Perhaps some of the difficulty here is that all we...

Message posted on : 2007-02-21 - 22:03:00

Perhaps some of the difficulty here is that all we have is a short quotation from Shavlik Randolph with no context?

Since speculation is all we have to go on, maybe what he meant was, "I don't care if a teammate is homosexual so long as I don't have to deal with that as a topic of discussion with him."

If that is the case, then I really don't have much of a problem with Randolph's statement. Frankly, I never want to have any discussions with any of my professional colleagues about their sexual preferences/practices no matter what they might be. That is a very inclusive position; I don't want to discuss that kind of thing with anyone in the workplace.

I'd have to stretch a bit to believe that Randolph was saying he feared that homosexuality was contagious.

I might be convinced that if someone were "ambivalent" about one's own sexuality they might not want to have to confront an openly gay individual in their workplace every day wherein that might become a topic of discussion/exchange. But that scenario requires an axiomatic belief in a lot of facts that have no basis at the moment.

I'd give Randolph a pass here. I believe someone asked him a question about this subject out of the blue and he had no solid basis of thought upon which to construct his response.

"Don't ask/Don't tell" has gotten a negative connotation attached to it in the last decade. But that model has worked very well for a very long time when it comes to social interchanges within a work environment. Maybe there's not much more than that in the remarks here...

Posted By : The Sports Curmudgeon

Two Things
1. I am 99 percent postive that Shav...

Message posted on : 2007-02-22 - 00:00:00

Two Things
1. I am 99 percent postive that Shavlik is A. not a Jewish name but Russian, and B. That he is not Jewish.
2. I was listening to Max Kellerman the other day and I think he made the opposite point that you made. You try to say that if you were standing next to a heterosexual women she isnt thinking about you however if I was the girl, it is almost a scientific fact that a guy is most likely thinking that he wants to have sex with the girl. Guys think of girls as sexual objects, and the logic would be that gay guys would think of their "prey" as sexual objects, herego, guys. So therefore, I think this is another possible explanation to what he meant. If heterosexual guys want to sleep with any decently looking girl they see, than I would think he is imagining that a gay guy would think the same to a guy.

Posted By : Anonymous

I'm with anon - it' sbeen my experience as a woman...

Message posted on : 2007-02-22 - 04:29:00

I'm with anon - it' sbeen my experience as a woman that the mindset of the men who get upset about homosexuality is that they seem to think that men should be wanting to bonk, so if it's men they are into it's men they want to bonk.

Add to that the weirdness that their focus is always on penetration. The derogatory terms are always about the passive partner. And sure enough, men who get upset about homosexuals instead of "meh, not my thing" also seem to be ugly towards women.

I've learned that a man who shows fear or antipathy towards homosexuals is a man who doesn't much like women either.

Posted By : Anonymous

Conversations with gay friends suggest that Anonym...

Message posted on : 2007-02-22 - 07:18:00

Conversations with gay friends suggest that Anonymous # 1 and Anonymous # 2 are right about heterosexual men always thinking they want to have sex with the woman standing next them (and therefore the gay man standing next to them wants to have sex with them). But I think that mindset is (generalizing broadly, I admit) less prevalent among gay men.

So the fact that heterosexual men assume that homosexual men share the same ideas about sex does two things: 1) It explains the discomfort many men (especially athletes) have with gay men; and 2) It shows the misunderstanding of sex differences that may be at the heart of the problem.

Posted By : Howard Wasserman

Arent you implying then that gay men have somefemi...

Message posted on : 2007-02-22 - 11:04:00

Arent you implying then that gay men have somefeminine tendencies, therefore they do not think like a "normal" man and therefore he is different, which may be the problem too. Admiting that they dont want to sleep with every guy they see is sayign that they dont act like herterosexual men and therefore, by being gay you loose some "manship". This may be a reason why people are homophobic.
Posted By : Anonymous

I was not making a normative point that wanting to...

Message posted on : 2007-02-22 - 11:59:00

I was not making a normative point that wanting to sleep with everyone you see (of the class to which you are attracted) to is more "manly" or more "normal." It simply is a different way of seeing and approaching the world. And to the extent that difference from "normal men" is the basis for homophobia, it is inconsistent with the "don't hit on me" attitude reflected in Randolph's statement.
Posted By : Howard Wasserman

If these athletes are cool with having female repo...

Message posted on : 2007-02-22 - 12:11:00

If these athletes are cool with having female reporters in the locker room, what is the big deal with having a gay male in their midst?
Posted By : Anonymous

Eperience counts for something. But it's the old ...

Message posted on : 2007-02-22 - 12:20:00

Eperience counts for something. But it's the old circular argument, how can you get experience if no one will give you experience.

I still think this "problem" will work itself out as more and more minorities have moved into the game. There was a greater influx of minority players in the 70s-80s. Those players have now moved into and up the coaching ranks. It is only now that you would expect to see those players turned coaches begin to be hired as head coaches. Sure, there are some hires of coaches lacking experience, but if the question is why not turn over a "win now" team to minority coach, it may be due to lack of experience of minority coaching candidates.

I understand that it is hard to look around the league made up of a "majority of minority" players and see only a small fraction of the teams with a minority head coach, but again, I would argue that it is a product of the system of grooming coaches. Most coaches are well aged and seasoned before getting that head coaching job. And, for what it's worth, experience still counts, whether its getting a head coaching job or whether its moving up into an executive position in the corporate world.

Posted By : Anonymous

One could argue that Turner is getting a better op...

Message posted on : 2007-02-22 - 16:51:00

One could argue that Turner is getting a better opportunity than he ever had elsewhere. With Phillips, however, management experience carries only so much weight if you're always unsuccessful -- he wasn't exactly taking over sinking ships in Denver and Buffalo.

As for the "greater influx" factor, I'm not sure it holds water when you consider the average length of a NFL career, about three or four years.

By that measure, a player entering the league in the early 1970s would have been up for consideration by the late '80s. That simply wasn't in the cards for former African-American at that time, or for most of the next decade.

That tells me that it was probably pressure of some sort, and not influx that led teams to take African-American coaching candidates seriously.

Posted By : Anonymous

The Supreme Court has agreed to review its Brentwo...

Message posted on : 2007-02-22 - 17:15:00

The Supreme Court has agreed to review its Brentwoos ruling. The Case No.06-427. The oral arguments areset for March 2007

No. 06-427
Title: Tennessee Secondary School Athletic Association, Petitioner
v.
Brentwood Academy

Docketed: September 26, 2006
Lower Ct: United States Court of Appeals for the Sixth Circuit
Case Nos.: (03-5245, 03-5278)
Decision Date: March 17, 2006
Rehearing Denied: June 27, 2006
Questions Presented

- - - Date- - - - - - - - - - Proceedings and Orders- - - - - - - - - - - - - - - - - - - - -
Sep 25 2006 Petition for a writ of certiorari filed. (Response due October 26, 2006)
Oct 4 2006 Order extending time to file response to petition to and including November 27, 2006.
Oct 13 2006 Order further extending time to file response to petition to and including November 30, 2006.
Oct 20 2006 Consent to the timely filing of amicus briefs in support of either party received from counsel for the petitioner.
Nov 29 2006 Brief amici curiae of Michigan High School Athletic Association, et al. filed.
Nov 30 2006 Brief amicus curiae of National Federation of State High School Associations filed.
Nov 30 2006 Brief amici curiae of Colorado High School Activities Association, et al. filed.
Nov 30 2006 Brief of respondent Brentwood Academy in opposition filed.
Dec 12 2006 Reply of petitioner Tennessee Secondary School Athletic Association filed.
Dec 13 2006 DISTRIBUTED for Conference of January 5, 2007.
Jan 5 2007 Petition GRANTED.
Feb 5 2007 SET FOR ARGUMENT ON Wednesday, April 18, 2007.
Feb 15 2007 Brief amici curiae of Interscholastic Association, Inc. et al. filed.
Feb 19 2007 Brief amicus curiae of National Collegiate Athletic Association filed.
Feb 20 2007 Joint appendix filed.
Feb 20 2007 Brief of petitioner Tennessee Secondary School Athletic Association filed.
Feb 20 2007 Brief amicus curiae of United States filed.

Posted By : Anonymous

Correction to my previous post. The oral arguments...

Message posted on : 2007-02-22 - 17:31:00

Correction to my previous post. The oral arguments have been set-moved to April 18, 2007
Look up the previous Supreme Court ruling on Brentwood Academy v. TSSAA. This time TSSAA is the petitioner.


BRENTWOOD ACADEMY V. TENNESSEE SECONDARYSCHOOL ATHLETIC ASSN. (99-901) 531 U.S. 288 (2001)
180 F.3d 758, reversed and remanded.
Syllabus
Opinion
[ Souter ] Dissent
[ Thomas ]
HTML version
PDF version HTML version
PDF version HTML version
PDF version

--------------------------------------------------------------------------------

Thomas, J., dissenting

SUPREME COURT OF THE UNITED STATES


--------------------------------------------------------------------------------

No. 99—901

BRENTWOOD ACADEMY, PETITIONER v.
TENNESSEE SECONDARY SCHOOL
ATHLETIC ASSOCIATION et al.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[February 20, 2001]

Justice Thomas, with whom The Chief Justice, Justice Scalia, and Justice Kennedy join, dissenting

Posted By : Anonymous

I took "don't bring your gayness on me" to have a ...

Message posted on : 2007-02-22 - 18:58:00

I took "don't bring your gayness on me" to have a different meaning.

Possibility 4: Don't expose me to your homosexual lifestyle, for example by holding hands with a man in public.

That interpretation gives the original comment a less benign meaning.

Posted By : Anonymous

To anon 12:11pm, are athletes accepting of women r...

Message posted on : 2007-02-22 - 19:14:00

To anon 12:11pm, are athletes accepting of women reporters in the locker rooms or is that something that is forced upon them? I seem to remember a bit of an uproar when women reporters first got that sort of access.
Posted By : km

ummmm... Art Shell was hired back in Oakland after...

Message posted on : 2007-02-22 - 20:21:00

ummmm... Art Shell was hired back in Oakland after a coaching career with a "pedestrian career won-loss record" of 56 wins and 52 losses.

Was that any different than Wade Phillips or Norv Turner?

Norv Turner and Wade Phillips ended up being "retread" coaches for 2 very specific reasons. Phillips because of his experience with a 3-4 scheme and Turner because of his creativity on offense.

These were two situations in which owners/gms were looking for coaches with Head coaching experience knowing that they could win next season. With the talent on their teams, they could not afford to give the time necessary to allow rookie head coaches a chance to mature (like the Raiders are clearly doing with Lane Kiffin or the ).

If you're going to advocate for Denny Green in this case, you may have a point (he is an experienced coach who did some fine work in Minnesota), but pushing Mike Singletary and Ron Rivera, two coaches with NO head coaching experience, seems to be wrong headed.

Should people be similarly complaining for Rex Ryan or Russ Grimm, two white coaches with NO head coaching experience who did not get head jobs?


Now I grant that there are fewer minority individuals out there with "head coaching experience", but that will obviously change over time. Claiming that there is "probably not" any progress, insults the strides that have clearly been made.

You seem to want a revolution and complain that change is coming more slowly. But you should acknowledge what has been done and how things are different than they were before.

Posted By : Anonymous

KM:

There was an uproar initially, not to m...

Message posted on : 2007-02-23 - 09:40:00

KM:

There was an uproar initially, not to mention some wildly inappropriate behavior. Then, the athletes got over it.

They realized:
a) Women had as much ability to do this job as men;
b) Women had as much right to do this job as men; and
c) These women did not care what the players looked liked naked, were not in the locker room so they could look at the players naked, and did not want to have sex with the players--they wanted to do their jobs and go home.

Is there a moral in there somewhere?

Posted By : Howard Wasserman

First, I was 100% unenlightened about Shavlik Rand...

Message posted on : 2007-02-23 - 14:59:00

First, I was 100% unenlightened about Shavlik Randolph's religion, and the origin of his first name. I could have researched it, but I was too lazy on that particular occasion. I think the point I made stands, irrespective of Randolph's particular religion, but I wish I had done the research.

Second, Howard's point about homosexuality not being a "choice" -- as a distinction from my religious analogy -- is a good one. I think it is worth pointing out, though, that many people do not view their religion as a true choice. In some literal sense there is a choice, but many people are so tied to their religion that it is a part of their very being.

Also, there is a more subtle point to my example that is not based on whether Randolph is capable of being "converted" to homosexuality or another religion. Most people value personal space...not just physical space, but something more intangible. People do not like being put in uncomfortable positions in their personal space.

Suppose a non-Christian is approached by a Christian trying to save him (by bringing his "Christianity" on him) or a heterosexual male is approached by a homosexual male trying to seduce him (by bringing his "gayness" on him). In each case the non-Christian or heterosexual will likely feel uncomfortable because his personal space has been invaded. (Obviously it is more likely a Christian will talk to a non-Christian without saving him and more likely a homosexual male will talk to a heterosexual male without seducing them. I am just using an example in which fears are aroused.)

That is, of course, a commentary on how we react to other people's orientations, lifestyles and/or beliefs. Perhaps it even rises to the level of unenlightened. It is not perfect behavior, but nor is it unusual or particularly egregious, in my view. I am guessing that every reader and writer on this blog (including liberal law professors like myself) are unenlightened with respect to some aspect of our personal space.

Again, I think a person in this position can feel comfortable with the concept of homosexuality in the world as long as that does not trickle into his personal space, because his personal space is just that.

I still believe that acceptance, and participation, are mutually exclusive.

Third, if Randolph was presuming he was attractive enough to be hit on by other men, then he should "get over it," to use Howard's phrase. But presumably Randolph is attractive to SOMEBODY (aren't we all?). Perhaps he is just saying "don't bother," to foreclose having to feel uncomfortable in his personal space.

Fourth, I agree that the Christian right would complain if an athlete said "don't bring your Christianity on me." But would it get this level of attention and would the general public complain? I don't think so, at least not to the same degree. I don't get the impression that the only people complaining about Randolph's comments were gay men. The complaints seem to come from a broader group.

Finally, it is indeed hard to defend Randolph, because he is a "dookie". :) He never really had a great game against UNC, though, so I can forgive him. It's not like he's Christian Laettner!

Also, irrespective of the alma mater, in a soundbite society I find that the media, and then the public, tend to jump (and judge) too quickly based on one soundbite alone. I tend to give the benefit of the doubt to the speaker if the only evidence I have is an off-the-cuff blurb -- and one which has likely been edited in one way or another to ensure it has some sensationalist appeal.

I see Hardaway's comments and Randolph's as distinct, and I am glad Howard noticed the comment and cared enough to respond.

Posted By : ChapelHeel

How is it "confounding" that a coach with a 48-39 ...

Message posted on : 2007-02-23 - 17:36:00

How is it "confounding" that a coach with a 48-39 career record would get another shot? That's an average record of 9-7 - a borderline playoff team. And he was perceived as a key reason for the success of San Diego this past season - the team with the best record in all of football.

I'm not sure how thrilled I am about Phillips as a coach, but there's certainly nothing surprising about him being hired or about his qualifications. Granted, his coaching pedigree makes him a charter member of the old boy's club, but that doesn't automatically make him a retread.

And given that Dallas expects to contend for a championship, and given the very unsatisfying experience of the last couple of coaches without NFL experience Jerry Jones hired, it seemed very unlikely they'd go in the direction of a first-time head coach.

Posted By : Leigh

Michael,

Great post, and you raise some int...

Message posted on : 2007-02-23 - 17:38:00

Michael,

Great post, and you raise some interesting questions. First of all, the baseball arbitration system is a total crapshoot because the arbitrator is only permitted to choose either the team's or the player's figure (there is no in-between award). The system is set up that way to encourage settlement and thus few cases go to arbitration because it's so risky. So Cordero's arbitration award could have easily gone the other way.

But I think sometimes we tend to forget that the player is the principal in the player-agent relationship, not the agent. In other words, if the player wants to sign a multi-year deal with his team, the agent has a fiduciary duty to negotiate the best possible deal within the range of direction that his principal has provided to him. I don't believe it's the agent's role to "talk his client out of it" just because the agent thinks it's not in his client's best interest.

As you know, I'm always advocating in the best interest of the player. The union's position is understandable because it is looking after the collective interests of all the players, but the reason the union delegates authority to agents is because the union does not want to be charged with looking after the interest of each individual player (which sometimes conflicts with the collective interest). Cordero's agent also has an incentive for Cordero to make more money because the agent's commission is based upon what Cordero makes. But the question is, what is in the best interest of Cordero, not the union or his agent.

Now suppose that Cordero gets injured next year. What's he going to be worth the following year? He would have been guaranteed 7M or 8M, but instead he would only have 4.15. Would he have a claim of malpractice or breach of fiduciary duty against his agent for providing him bad advice? Maybe not, because Cordero ultimately made the decision to go to arbitration instead of signing the two year deal.

I could talk for days about this stuff, but those are my initial thoughts.

Posted By : Rick Karcher

Great post and comment from Rick.

I believe...

Message posted on : 2007-02-23 - 19:12:00

Great post and comment from Rick.

I believe the agent and the Player's Association did their job in this instance. They talked Cordero out of signing a bad deal. At the same time this deal prevented the market from being "capped" for other similar/comparable players.

Even assuming that Cordero is hurt his next year, he still makes as much if not more than he would have with his 2-year deal. It is highly unlikely that the Nationals would non-tender him, even if he suffered a shoulder or elbow injury requiring surgery. Worst case scenario, the team would only be permitted to cut his salary 20%. Still quite a pay day.

Posted By : Anonymous

Anonymous,

In my original comment, I meant ...

Message posted on : 2007-02-23 - 20:44:00

Anonymous,

In my original comment, I meant to say, suppose that Cordero gets injured THIS year (not next year), which only gets him the 4.15. He would most likely be non-tendered if he had a serious enough injury this year.

Posted By : Rick Karcher

While I'm not entirely sure how this might have be...

Message posted on : 2007-02-24 - 20:15:00

While I'm not entirely sure how this might have been weighed by the MLBPA or Cordero's agent, how might have trade rumors affected his arbitration process?

I've heard numerous rumors about the Red Sox targeting Cordero, and many Sox fans think it nearly a done deal. While I don't know about that, the fact is that the Nationals aren't playoff bound anytime soon, and Cordero is a valuable asset in trade talks.

Posted By : Satchmo

The concern here seems quite overblown. A grown m...

Message posted on : 2007-02-25 - 10:35:00

The concern here seems quite overblown. A grown man does not lose his autonomy (a amazingly vague word) because someone gives him advice. This is simple a risk-reward scenario: Take a chance now for more money later. People do this all the time and I'm sure Cordero understood what he was doing. Yet this posts seems to imply that nobody should even give Cordero advice for fear that it would override his "autonomy/" That's an untenable position.
Posted By : Anonymous

Maybe the question should be turned around: Can t...

Message posted on : 2007-02-26 - 00:51:00

Maybe the question should be turned around: Can the non-homosexual NBA players bring an action, claiming hostile work environment (or, for that matter, can a majority group bring action on a similar basis against its non-majority group?)?

If something goes one way, it sure should apply the other. (For example, somewhat off-topic [but relating to the comment]: Imagine if NCAA schools had to have teams that represent the racial mix of the school on their athletic teams--in effect the reverse of the "there's not enough black head coaches" argument in D-IA football and basketball. If the argument applies one way [not enough coaches of a race], it sure should apply the other [not enough players of a race compared to the school's racial makeup].).

Posted By : Anonymous

Prof. McCann:

I may underestimate the compl...

Message posted on : 2007-02-26 - 09:51:00

Prof. McCann:

I may underestimate the complexity of the decision, but that only supports my point. The more complex a decision, the more appropriate it is that Cordero is getting advice from people that know what they're talking about.

Further, you underestimate the fact that Cordero is a grown man, not a child. What, exactly, would have been the consequences for Cordero if he had simply told his agent he was signing the contract that he originally wanted to sign? Would be have been ostracized by his fellow players? I assume the answer is no. In fact, I assume there would be no real consequences at all. Unless there are serious consequences for bucking the union on this issue, then I do not see any real "pressure" on Cordero to do anything.

I view this situation as similar to an average investor who is talked into a riskier stock by a broker. After the fact, the investor wishes he had invested in bonds. But that doesn't mean there was any real "pressure" to invest in the higher risk stock.

Posted By : Anonymous

Anon -

Except, of course, that there is no ...

Message posted on : 2007-02-26 - 10:13:00

Anon -

Except, of course, that there is no "union of average investors" let alone a "union of investors" that looks out for "market setting" stock buys.

And as for your Cordero is a "grown man" points, I think you vastly vastly underestimate the impact of the MLBPA, let alone of agents, on a player. In the abstract, the "grown man" argument seems valid, but the realities of the baseball world are much different - a fact born out both by Karcher's excellent work on the subject, AND by the fact that I don't think any of us here can name the last time that an individual player went against the union's wishes about any topic at all. It just doesn't happen.

Posted By : Anonymous

I think this situation does illustrate why having ...

Message posted on : 2007-02-26 - 13:12:00

I think this situation does illustrate why having the MLBPA as the exclusive representative for all players would present an untenable conflict. The MLBPA's role is to look out for the interests of the collective whole. It is the individual agent's responsibility to look out for the individual player's interest.
Posted By : john

Note that, strictly speaking, this is not a questi...

Message posted on : 2007-02-26 - 13:30:00

Note that, strictly speaking, this is not a question of personal jurisdiction (that is, where the defendant may be sued), which does look to availing oneself of a forum. It is a question of choice of law (that is, the law that will be applied), which looks to the situs of the events at issue. The relevant "event" for the claim is the employer's hostile environment, the situs of which is the home-base locale of the employer, even if the employer sends people on the road as part of the job.

Note that it might be different if one employee could sue a co-employee for sexual orientation harassment (as opposed to suing on the employer). Then, if the acts took place in Washington, Washington law might control.

Posted By : Howard Wasserman

Anonymous:

I think we agree on almost every...

Message posted on : 2007-02-26 - 14:47:00

Anonymous:

I think we agree on almost everything. I assume by loss of "autonomy" Prof. McCann is referring to the loss of right to make your own choice about important decisions in your life. A core violation of decisional autonomy would be barring a choice that free adults should be able to make, e.g., Lawrence v. Texas. I will grant that actitivy other than outright pressure can be problematic if it affects decisional autonomy. But those activities must at a minimum be coercive in some meaningful sense to implicate autonomy concerns. Cf. Lee v. Weisman.

Therefore, whether the Cordero situation amounts to a loss of autonomy depends entirely on the coercive force of the MLBPA, i.e., the consequences for saying no the the MLBPA. I cannot answer that question. But I assume that the pressures are not that great. In fact, I think there should be a strong presumption that that is the case, at least where adults are involved. Accordingly, I would want strong evidence that there are real consequences to bucking the union on this issue.

Reasonable minds could certainly disagree about whether sufficient evidence has been produced, but I haven't seen any clear statement about what the exact consequences to Cordero would have been. Until we see that evidence, I don't see how anyone can say that serious autonomy concerns have been implicated. (The post-signing dissonance by Cordero is not compelling evidence to me. People re-think their decisions all the time.)

Posted By : Anonymous

I doubt it. Look at the perks they enjoy. getting ...

Message posted on : 2007-02-26 - 18:12:00

I doubt it. Look at the perks they enjoy. getting to shower naked with other men after every practice & game... Maybe it's the 'straight' players that should file suit against the gays...
Posted By : BLAZER PROPHET

John,

I understand the conflict issue prese...

Message posted on : 2007-02-26 - 20:11:00

John,

I understand the conflict issue presented by the proposal in my article. I discuss all the conflict issues in my article and provide some proposals for how to address them. But note that the union does represent the interests of individual players in other contexts (e.g. player grievances), so it's not that far-fetched. Also, there are many conflicts that currently exist in the 3rd party agent system.

In any event, in my article, I discuss many reasons why the unions should consider giving players the OPTION to be represented by a salaried union-employed agent, and those agents hired by the union would be isolated from collective bargaining negotiations. I think all of the pros and cons need to be evaluated and I don't think you should dismiss the idea just because there is one potential problem (the conflict) that needs to be addressed or overcome.

Posted By : Rick Karcher

yes man you are right.this will do lot of good for...

Message posted on : 2007-02-27 - 05:01:00

yes man you are right.this will do lot of good for football in america.Mainly with beckham coming to LA the fan support for football in US will increase in great number.

Most important is being the law.I am not sure where fifa is going with this laws

Posted By : football news

As a Cowboys fan, I followed the hiring of Phillip...

Message posted on : 2007-02-27 - 12:14:00

As a Cowboys fan, I followed the hiring of Phillips with great interest. Here is my take of some of the candidates.

Ron Rivera: Not at all interested in Rivera primarily because he would have been a step back on the defense. He is a 4-3 coach coming to a team that is just now getting accustomed to the 3-4.

Mike Singletary: I was very interested in Singletary because of his enthusiasm and intensity. I have some doubts of his X and O experience, but that could have been taken care of with good coordinators.

Wade Phillips: He and Singletary were my two choices. I don't know if Phillips is as enthusiastic and intense as Singletary is, but I think Phillips has done a fantastic job with the 3-4 defense. I look forward to the Cowboys attacking more.

Norv Turner: I had 0 interest in him being here, especially since Jones got Jason Garrett.

Jason Garrett: A great choice as O-Coordinator, but a little inexperienced as head coach.

There were some other interviews, but these were the top five. I don't see how Phillips having coached before and being white makes the Cowboys discriminatory. The Phillips 3-4 defense is very exciting to me, and I'll bet it was exciting to Jones. Singletary's intensity will get him a job soon, I just think that Jones felt Phillips would bring more in 2007 than Singletary.

Posted By : Anonymous

Great post. The talking heads on ESPN spent the m...

Message posted on : 2007-02-27 - 15:20:00

Great post. The talking heads on ESPN spent the majority of last week slamming Tim Hardaway and it is highly likely that this story won't even get mentioned. I appreciate the insight and look forward the the ensuing discussion.
Posted By : Jeff

michael, do you see a correlation between nba dres...

Message posted on : 2007-02-27 - 17:58:00

michael, do you see a correlation between nba dress code enforcement and the banning of religious headware in government and public scools.
Posted By : john c. morgan

No indication of legal sources/case law. Is it jus...

Message posted on : 2007-02-28 - 09:51:00

No indication of legal sources/case law. Is it just your personal view that players must be subject to criminal liability? Poorly drafted article.
Posted By : Tjushev

If the plaintiff is awarded damages I see this hav...

Message posted on : 2007-02-28 - 15:20:00

If the plaintiff is awarded damages I see this having ramifications on professioinal all-star games. Just one month ago Sean Taylor, of the Washington Redskins, laid a vicious hit on a punter during the Pro-Bowl. What if he sustained a career ending concussion? Is it a reasonable expectation that a player will be going at full game speed during the Pro-Bowl, or should players be informed of the expected level of play before hand?
Posted By : Jeff

Ever since Jimmy the Greek decided to give his fam...

Message posted on : 2007-03-01 - 11:52:00

Ever since Jimmy the Greek decided to give his famous genetics lesson, the standard sanction for a sportscaster that makes on-air remarks that could be considered offensive along racial, religious, gender, and other such (read: constitutionally protected classes) lines seems to be summary firing. To the broadcasting company, it makes sense: to allow such comments is to spoon-feed the entire universe of plaintiffs attnys public evidence of an atmosphere of discrimination at that particular company. It gives weight to claims of discrimination by employees (or passed-over candidates), who can say "look what XYZ allows it's broadcasters to spew out over the airwaves - it's evidence that they condone this sort of attitude, even encourage it!". Whether that's right or wrong, it seems to be the case, even for wildly popular sportscasters.

What then, motivated Maxwell's employers to accept this seemingly unnecessary risk of liability keep thier money-maker without increasing thier risk of being viewed in a bad light as an organization? Can you imagine if Dick Vitale said the same thing - "Get back to the kitchen, ba-by!" "Bacon, eggs, etc., baa-by!!" Fired. What's different here? I think one of Pres. Bush's speechwriters coined the perfect phrase: "the soft bigotry of low expectations."

Maxwell is black. Palmer is black. I posit the theory that those who employ Maxwell are predominantly white. In thier minds, the dangerous question isn't "Can we fire/retain him after he tells a female ref to 'get back to the kitchen.' The real dangerous question is : Can a bunch of white men fire a black man for telling a black woman to 'get back to the kitchen'. Isn't that the way 'they' talk to each other? If there isn't any outrage, then why should we rock the boat by firing him? What if he claims that we're unjustly firing him BECAUSE he's black (even though we, as a society, accept summary firings of sportscasters for disproportionately small, even first-time, PC offenses)?

It's a conondrum; they've taken the gamble that their listening audience, (and the folks who hear about it later) won't hear a sportscaster talking about a ref - they'll hear a black man demeaning a black woman - and that's a black thing, so we'll just leave it alone.

This is one of those strange instances where the best possibility for racial progress comes from one offended group standing up and demanding one of thier own be held accountable to the same ridiculously disproportionate punitive standard that the 'privileged' class is held to - because the 'privileged' class doesn't have the guts to do it.

Sadly, this all boils down to which possible offended group could or would cause more legal headaches for the employer if they suddenly stood up and took offense. If you were the broadcasting CEO what would you do? Offend along gender lines or offend along racial lines? Neither, if possible, but gender if you gotta pick one - have him apologize and for god's sake don't rock the boat anymore.

Finally: WHY IN THE HELL ISN'T THERE OUTRAGE IN THE BLACK COMMUNITY THAT THIS MAN GOES BY THE MONIKER 'CORNBREAD'?!? I know damn well that as a young white man, there's not a black person in my entire state of Mississippi that would allow me to call him/herself, or any other black person 'cornbread'. Reaction would be quick, and possibly violent. And I imagine any joe-blo regular black man that allowed anyone but his closest friends to call him 'cornbread' would be labelled an Uncle Tom. Here's a Racist Open-Secret: His moniker IS obviously Uncle-Tomish (whatever reason he came by it, or how long he's used it before getting famous don't matter - he knows damn well that the vast majority of african-americans would find it demeaning to be publicly called that, but he chooses to use it publicly anyway), and that's exactly why white college kids (and others) love him so much. In a sport clearly dominated by blacks, it's nice to have one that will shuck-and-jive for you.
Pathetic.

Posted By : wha?

The previous comment is a wondrous confection of i...

Message posted on : 2007-03-01 - 12:34:00

The previous comment is a wondrous confection of ignorance and self-righteous arrogance. "Cornbread" Maxwell got his name from a popular Afro-American movie of the 1970s, "Cornbread, Earl and Me." So spare me the talk of racism and Uncle Tom. You haven't even the rudiments of historial awareness necessary to use such references.

As for Violet Palmer, she has indeed been considered one of the least proficient NBA referees for years. But this is the NBA, where every ref is suspect in the eyes of fans. What might we unearth if we studied broadcast sound bites about any number of male referees? Plenty, I'm sure.

Posted By : Anonymous

Spanish is a language, not a race.

Message posted on : 2007-03-01 - 12:48:00

Spanish is a language, not a race.
Posted By : Anonymous

Anonymous-

I'm not sure you can call "Cornb...

Message posted on : 2007-03-01 - 13:20:00

Anonymous-

I'm not sure you can call "Cornbread, Earl, and Me" an afro-american movie. It was about a black kid that witnessed the police killing of a friend who was misidentified due to racial profiling. It's true that the majority of the main characters were black, but it was directed not by Spike Lee, but by a white man (Joseph Manduke - who helped produce the tv spider-man series, and also directed the spy-thriller "The Omega Man", and a slew of B-movies). It was the film adaptation of the novel "Hog Butcher" by famed black author, sculptor, and poet Ronald Fair. But so what? Just because a fictional character's in a movie is called 'cornbread' and that character is a loveable kid caught in a bad predicament brought about by the racist attitude of both white AND black cops, has nothing to do with the fact that if you say "What up, cornbread" to a black man on the street, you'll get a scowl at best, but maybe a punch in the face.

The point is not how or why a person wears the moniker or acts a certain way, it's the understanding that the behavior is demeaning to others as a group, and making the decision to go ahead and do it anyway that is offensive. And if you're black and go around acting in a way that other blacks find demeaning or offensive for the sake of boosting yourself, then you get called an Uncle Tom (Which, like cornbread, was also a fictional character from a literary work featuring african-americans and will also earn you a punch in the face if you run around appling it to african-american strangers on the street).

That was the only point of mine that you addressed (and it wasn't even my main one), so I'll ask that you withdraw your 'ignorant' comment in regards to the rest of my post; to insult somebody's viewpoint but not give any reason for it is kind of dick, don't you think?

It is duly noted that you think Palmer sux as a ref. You're in good company there, but as Prof. McCann explained, that's not the relevant issue. I don't think Maxwell ought to be fired; but then again, I didn't think Jimmy the Greek ought to have been fired, either. Since the sports broadcasting community as a whole seems to think the proper punishment for saying something stupid is instantaneous shit-canning, then let's stand up and be equitable about it, or explain why we aren't.

Posted By : wha?

I'm for the firing. It's outdated speech that sho...

Message posted on : 2007-03-01 - 15:19:00

I'm for the firing. It's outdated speech that should be rewarded in the way our modern market rewards such unwanted speech--by firing.

Let's run through the analogies. Would "get back in the fields!" been accepted? No. "Get back to Mexico!" Hells no. "I HATE GAYS"--well, maybe. But Hardaway has been exposed as being painfully out of touch with 2007.

The only reason this has been accepted--indeed, even fought over--is that Ms. Palmer is a particular class of persons who have little political power. I.e., Latinos have a growing political power base that often "patrols," for lack of a better word, negative speech, and African-Americans, gays and lesbians, and fundamentalist Christians have quite sophisticated "machines" that combat negative (or perceived negative) speech.

There no longer seems to be the same feminist presence in patrolling unwanted speech. Much of the commentary here has focused on Ms. Palmer's ability as a referee--that has NOTHING to do with whether the speech was appropriate. "VIOLET, YOU SUCK" is fine. "Violet, head back to the kitchen"--that's not appropriate.

In contrast to the commentary provided by the generally white, generally male sportscolumnists/blogosphere, see the recent ESPN the magazine column on Ms. Palmer, where she spoke about acceptance in her job (she seemed comfortable). Cornbread was reacting like so many other men in male-dominated industries do--with prejudice against the person unlike them (whether Latino, Black, female . . . ) and that conduct should be deterred.

Posted By : gorjus

Give me a break! You guys are taking this entirely...

Message posted on : 2007-03-01 - 16:02:00

Give me a break! You guys are taking this entirely too seriously, which perhaps is not surprising coming from a bunch of lawyers. The guy made some stupid, jokey comments about Palmer - so what? For this you fire a guy? This is PC thinking run amok.
Posted By : Anonymous

Gorjus:

I agree that descriptively you are ...

Message posted on : 2007-03-01 - 16:24:00

Gorjus:

I agree that descriptively you are right--You suck is OK, get back in the kitchen is not OK. But I still think we have to consider why that is so and whether that is the way it ought to be. Also, what if the statement was "You suck and that just shows that women cannot do this job because they cannot keep up." Now it is more than an insult about her being a woman, but a suggestion about what women should and should not be able to do--which at least is a point of debate.

Anonymous:

This is not PC thinking run amok. The "stupid, jokey" comments also were offensive to her and perhaps to a lot of people listening to the game. But why shouldn't Maxwell be subject to criticism for what he said? Don't people have the same right to criticize him for making offensive comments as he has to make them? And why shouldn't that criticism (possibly) include the radio station's determination that it does not want him speaking on its behalf?

Posted By : Howard Wasserman

Maxwell's comments were merely perpetuating a ster...

Message posted on : 2007-03-01 - 20:05:00

Maxwell's comments were merely perpetuating a stereotype which merely shows the shallowness of his thoughts.

If he wanted to be witty, he should have been prepared to use a gender neutral criticism.

Do you want your mother/sister/grandmother/wife subjected to that type of comment?

This is not PC run amok. Its about raising the standard of common decency. We need to demand more from those in the media and society in general; the best way to do it is subject them to ridicule.

Posted By : qtlaw24

On the issue of comparing Lyons and Maxwell's comm...

Message posted on : 2007-03-02 - 14:07:00

On the issue of comparing Lyons and Maxwell's comments, could it just be that Feminism lost its edge and Racism is the new thing? Women have come a long way in securing their rights. And in doing so, they perhaps have lost their place as "typical victims" of certain very poor comments.

Of course this should all be irrelevant in a legal assessment. But the fact remains it is not.

Posted By : Luis Cassiano Neves

This was an interesting post. I can only say my vi...

Message posted on : 2007-03-02 - 14:34:00

This was an interesting post. I can only say my view on this is to each their own and that Hardaway should not have been punished. This is like the old saying: "shoot the messenger, not the message", or something to that effect.
Posted By : Gerik

Thanks for writing. I had no idea what was meant b...

Message posted on : 2007-03-03 - 16:21:00

Thanks for writing. I had no idea what was meant by the term in regards to signing restricted free agents.

Seems like a smart way to pry players away. There would seem to be some way to write in a "Poison Bill" that specifically hurts the player's current team but isn't as relevant to what their situation will be with the new team for every contract.

Posted By : Anonymous

Jeff Samardzija broke two bats in an eight-pitch i...

Message posted on : 2007-03-05 - 00:18:00

Jeff Samardzija broke two bats in an eight-pitch inning against the A's on Saturday.
With his fastball reportedly averaging 97 mph, Samardzija retired all three batters he faced and broke the bats of Mark Ellis and Travis Buck. The right-hander is expected to begin this season at low Single-A Peoria.
Source: Arlington Heights Daily Herald http://www.dailyherald.com/sports/story.asp?id=287313

Posted By : Anonymous

I agree with you and Anonymous--Hazelwood v. Kuhlm...

Message posted on : 2007-03-06 - 23:54:00

I agree with you and Anonymous--Hazelwood v. Kuhlmeier has language that would support the school's regulation, if it construes "collegiality" a legitimate pedagogical concern, e.g. a negative harassment free learning environment:

'A school need not tolerate student speech that is inconsistent with its ‘basic educational mission,' even though the government could not censor similar speech outside the school…because the school was entitled to ‘disassociate itself' from the speech in a manner that would demonstrate to others that such vulgarity is ‘wholly inconsistent' with the ‘fundamental values' of public school education."

However, I'm troubled about the slippery-slope-ness of this. While I'm not a First Amendment absolutist, I've backed away from some CRT theories for aggressively regulating hate speech (see Matsuda, et. al, Words that Wound; Charles Lawrence, Unconscious Racism). However, hate speech is at at least very serious (particularly symbolic hate speech or "fighting words") and could be considered more tortious than "booing" against the opposition. To regulate the latter would diminish the seriousness of the former.

There is enough opposition against campus hate speech codes, which do serve valuable goals of making students feel safer in their learning environments--this goes too far into ridiculousness.

Posted By : Dana

I agree with Dana that I generally favor hate spee...

Message posted on : 2007-03-07 - 11:09:00

I agree with Dana that I generally favor hate speech codes, but I feel any "anti-booing" measure is doomed to fail. Howard notes (hilariously) the "salad-tosser" remark--and how can one ban sarcasm? A chanted "you're so awesome," with gagging noises, would not be prohibited (I am a little embarassed that I automatically had to think of a way to get around the proposed rule).

Students are always going to be ahead of such prohibitions, layering their remarks in code and pop culture references. My dad called me excitedly the other day about the UK student sign picked up on ESPN: "Tim Hardaway Hates LSU." That's an incredibly subversive (and darkly funny, no matter my feelings against Hardaway) statement that would be difficult to regulate.

http://deadspin.com/sports/college-basketball/espn-we-pan-the-crowd-you-decide-238690.php

Posted By : gorjus

The reason why these college athletes are getting ...

Message posted on : 2007-03-07 - 21:22:00

The reason why these college athletes are getting paid so much, and money on the side is because being a college athlete is like a job. These coaches want their players to have full attention on the task at hand,and to worry about having a job.

Click on this link to view my blog about college athletes.

http://beingacollegeathlete.blogspot.com/

Posted By : Richard Turnerer

this is really good but how do i know that your in...

Message posted on : 2007-03-08 - 11:50:00

this is really good but how do i know that your information is accurate??
Posted By : Anonymous

Should high school teams that use an Indian tribe ...

Message posted on : 2007-03-08 - 11:53:00

Should high school teams that use an Indian tribe as a mascot also be banned from continued use of the mascot? Where does the level of being "offended" end. These Native Americans, if really offended, should go after every institution that uses an "offensive" mascot, not just the college teams.
Posted By : Anonymous

Should high school teams that use an Indian tribe ...

Message posted on : 2007-03-08 - 11:53:00

Should high school teams that use an Indian tribe as a mascot also be banned from continued use of the mascot? Where does the level of being "offended" end. These Native Americans, if really offended, should go after every institution that uses an "offensive" mascot, not just the college teams.
Posted By : Anonymous

Are you really asserting this rule has no rational...

Message posted on : 2007-03-08 - 17:01:00

Are you really asserting this rule has no rational basis? I think the injury justification surely qualifies as one. Although the school does not bar simultaneously playing in a non-school sport, that part of the rule is easily justified by a concern that it would be overstepping the bounds of the school board's authority and an unjustified intrusion into parental control to regulate what students do in non-school sponsored activities.
Posted By : Anonymous

I am not concluding it lacks a rational basis; I a...

Message posted on : 2007-03-08 - 18:19:00

I am not concluding it lacks a rational basis; I am saying that the rule is so under-inclusive in service of the stated interested that I am questioning its justification. And while I do not think the school could prohibit a student from participating in out-of-school sports, it could prohibit students who participate in out-of-school sports from playing on school teams.
Posted By : Howard Wasserman

Sports had been on my mind since i came to this wo...

Message posted on : 2007-03-08 - 21:07:00

Sports had been on my mind since i came to this world. it is also in my blood because my father is sporty and i know that before he started Dating my mom, sports was already on his mind.

I also love to venture in Extreme Games because i found it very challenging. Aside from that, pets can also be an alternative. Now i have tips if you ould like to venture Outdoor Activities like me. Sports is the best way to enjoy aside from blogging .

http://onlineprom.blogpot.com

Posted By : teody

Anonymous,

Everything meets the rational ba...

Message posted on : 2007-03-09 - 08:41:00

Anonymous,

Everything meets the rational basis test. Maybe it's time for a new standard when something defies logic, like this rule. Playing multiple sports at school is not a new phenomenon. Is there some new development in safety now that shows that we just had it wrong for all of these years? So a kid that just plays football is going to study harder during basketball season because he can't play basketball?

Here's another one for you, in a non-sports context. A couple of months ago, a school implemented a complete ban on talking during lunch. The school justified the ban because a kid choked on some food. Rational basis? -- you bet. Logical? -- no way because kids (including adults) have been choking on food ever since people started eating food, not to mention the socialization benefits from engaging in conversation during meals. The more logical thing to do would be to teach kids not to talk with their mouths full.

Posted By : Rick Karcher

Prof. Karcher:

I agree the no-talking rule ...

Message posted on : 2007-03-09 - 09:52:00

Prof. Karcher:

I agree the no-talking rule is silly. But if a majority of the people in the jurisdiction in question want the rule, then what's the problem? And if they don't, why should the answer to that principal-agent problem be judicial review?

I think the no two-sport rule can also be justified on another ground: sports are an important extracurricular in which all students should be encouraged to participate. The no-double-particpation rule furthers this goal by preventing star athletes from gobbling up multiple spots.

Posted By : Anonymous

I'm not following the principal-agent reference. ...

Message posted on : 2007-03-09 - 14:54:00

I'm not following the principal-agent reference. But in any event, what makes you say that a majority of the people in the jurisdiction want the rule?
Posted By : Rick Karcher

Prof. Karcher:

The people in the jurisdicti...

Message posted on : 2007-03-10 - 08:12:00

Prof. Karcher:

The people in the jurisdiction are the "principals" and the school board their "agents." If a majority of the people support the rule, then the system is working as it should. To the extent that the school board is advancing its own policy preferences rather than those of its principals, then there is a principal-agent problem.

The premise of your argument is that judicial review is a good way to monitor this potential principal-agent problem. What is the basis of that premise? Why would judges be better suited to determining whether a rule is good or bad than the school board?

Prof. Wasserman:

I think you've now moved far away from thinking in rational basis terms. Your critique of my rationale is based purely on your opinion that students "should" be able to participate in two sports and that participation in sports is no different than any other extracurricular. Surely it's rational to think that sports might be the most important because of its special characteristics and thus warrants special treatment. Just because you think that argument is silly does not make it irrational. Or do you agree with Prof. Karcher's apparent embrace of Lochner v. New York?

Posted By : Anonymous

Anonymous,

Let's back up for a second. You...

Message posted on : 2007-03-10 - 11:10:00

Anonymous,

Let's back up for a second. You started by saying that the one-sport rule meets the rational basis test. I replied that everything meets that test, and that maybe it's time for a new test when something defies logic, which I think this rule does. I also noted another rule (the no talking at lunch rule) that defies logic and you also agree that it defies logic because you said it's a "silly" rule. Presumably you and I also agree that the no talking at lunch rule satisfies the rational basis test. So, the question is why should silly rules govern our society?

I also asked you how you know that a majority of the people support the one sport rule. In your response, you just assume that a majority of the people support it because otherwise the system wouldn't be working as it should. So you didn't answer the question. There's also another assumption you're making --that the system is working as it should. What if you are wrong on both assumptions?

Posted By : Rick Karcher

Prof. Karcher:

I never said a majority of p...

Message posted on : 2007-03-10 - 13:08:00

Prof. Karcher:

I never said a majority of people support the rule. I said IF a majority supports then rule then there's no problem. And IF a majority doesn't, judicial review is not the solution.

While you and I agree that the no-talking rule is silly, obviously a majority of the school board disagrees, or else the rule would never have been enacted. Therefore, what standard, exactly, should a court apply in reviewing the rule? The rational basis test protects democratic self-governance. Your proposed standard, which you have not articulated, would empower judges to conduct general reasonableness review of all laws. This is the standard embraced in Lochner and rejected in Nebbia, West Coast Hotel, and Williamson v. Lee Optical. It should stay buried.

As an aside, saying something is silly is not the same as saying it is illogical. The merits of the no-talking rule depend entirely on weighing the costs of not allowing students to talk with the benefits of avoiding a few incidents of choking. The idea that this balance can somehow be answered as a matter of pure "logic" is nonsense. Any answer necessarily depends on normative judgments about risk-taking and the value of speech, not inescapable logic.

Posted By : Anonymous

It is a thought that sounds good in principle but ...

Message posted on : 2007-03-10 - 15:38:00

It is a thought that sounds good in principle but will never pan out.

During a game, there are times when booing an official for a terrible call is unavoidable. That being said, I don't see a problem with that because the crowd isn't fighting or causing chaos, rather they are all in agreement as to what is going on in the game.

In the case of booing a player for making a bad play, I agree the whole "keep it positive" thing would be a good idea. However, most of the time fans cheer on their own players even when something bad happens. This is where high school is different than college and professional sports. In high school, there are very rarely personal attacks on individuals, while in college and the pros players are at the fans mercy.

As far as chants of "airball" and things of nature, that is more of a fun traditional activity that the crowd participates in and is not so much a personal attack.

If you take away these priviledges, you take away from the game. As a former player at the high school and college level, I fed off the crowd and loved every minute of it. Turning the crowd into a bunch of cheerleaders takes the fun out of rivalry games and playing on the road in hostile environments. If that happens, then the games are less exciting due to the lack of emotion and excitement thus making them less desirable to attend.

What happens then if attendance goes down? Somebody loses money, and don't pretend like money doesn't play the major factor in whether things like this ever ultimately happen.

Posted By : Ron Jumper

Anonymous,

Good points, but I don't think i...

Message posted on : 2007-03-10 - 17:54:00

Anonymous,

Good points, but I don't think it's as complicated as you make it out to be. I don't care what you want to call these rules: "illogical," "silly," or "devoid of common sense". We have become a "rule happy" society in which the response to any problem is to quickly enact some rule that attempts to get rid of the problem in the most convenient manner, and in the process there is no consideration whatsoever as to the impact the rule has on the interest of the people who are directly affected by it.

There are local govt. agencies and school boards, state and local athletic associations, school principals, etc., enacting rules and implementing policies that, quite frankly, a majority of the people don't even know are being enacted and if they did know about it, could care less. The only people who do care are the small number of people who are directly affected by these rules, i.e. kids who want to play two sports and can't, or the kids who can't talk at lunch (and I have a whole list of "illogical" rules that have been enacted lately). The people making these rules do not ask the people who are directly affected and the rational basis test doesn't even require their interests to be considered. If the rational basis test authorizes boards to abuse their power and make rules that advance their own self interests and agendas, then, yes, I think we need a new standard. I'm not a constitutional law expert by any means, but maybe that standard would consist of a balancing test in which the interest of the state is weighed against the interest of the individuals directly affected by the rule.

Posted By : Rick Karcher

I am not questioning the constitutional validity o...

Message posted on : 2007-03-11 - 13:08:00

I am not questioning the constitutional validity of the rule, which I concede, given the rational-basis standard. I am arguing that the rule is stupid and bad policy, based on its under-inclusiveness and my view (apparently not shared by the MIAA or by Anonymous) that sports are not so different from other extra-curricular activities.
Posted By : Howard Wasserman

I think that Native Americans who oppose the team ...

Message posted on : 2007-03-11 - 15:24:00

I think that Native Americans who oppose the team names are making a bad move. Apparently, they would prefer obscurity. They would rather be forgotten than revered, remembered and - yes - cheered for.

Team names can serve an important historical function by stirring public awareness and memory. Consider the Oklahoma Sooners, or the Tennessee Volunteers.

Of course, mascots and traditions that are intentionally demeaning should be disposed of, or better, yet reformed. Native Americans and colleges should get together and recognize that there is an opportunity here to preserve these names but to ensure that it is done in a respectful manner. The school could start a committee to improve relations with the tribe, form a secret society honoring the mascot, teach a class dedicated to the tribe's history - any of these are better than just flushing the name and trying to erase the past.

What's the alternative? If you abandon the name, teams will just choose another generic bird or cat, and in a generation or two, and most people's exposure to Sioux Indians will end with 5th grade history books.

Posted By : Anonymous

Prof. Wasserman:

I think you're assessing u...

Message posted on : 2007-03-11 - 17:31:00

Prof. Wasserman:

I think you're assessing underinclusiveness in the abstract. A legislature (or a school board as the case may be) addresses the problems it sees. If the problem is students spending too much time on sports and not other extracurriculars, then it's sensible that the rule applies only to sports. A rule that addresses actual problems is not underinclusiveness merely because it does not address every hypothetical.

Posted By : Anonymous

This case exposes the circularity problem in the N...

Message posted on : 2007-03-11 - 17:46:00

This case exposes the circularity problem in the NCAA's amateurism justification. Basically, the NCAA claims that it provides a unique product - "amateur" sports - but also claims that "amateur" means whatever the NCAA says it means. Thus, if the NCAA allows schools to pay only tuition and books, then that's what makes its ptoduct unique. But if the NCAA also allows schools to give stipends, that becomes the definition of "amateur" that makes the product unique.
Posted By : Anonymous

Mark:

I agree the plaintiffs' claims are fl...

Message posted on : 2007-03-14 - 17:45:00

Mark:

I agree the plaintiffs' claims are flawed for the reasons you state, but they obviously framed their claims to avoid taking the NCAA's amateurism rationale head-on.

I haven't read the case in awhile, but is there any support in the Third Circuit's opinion in Brown University that this could be framed as a purchaser's case?

I disagree that input cases are traditionally about predatory buying. There are many cases about buyers colluding to drive down costs. Further, it's not obvious that the NCAA's rules will increase competitive balance, as you imply. There are decreasing marginal returns to talent; as a team stockpiles talent, it will pay less for other superstars. By capping compensation, the NCAA may exacerbate competitive imbalances by limiting the effect that diminishing marginal returns to talent would have on stockpiling. Indeed, studies of competitive balance in NCAA football show that competitive balance (admittedly a vague term that could mean many things) decreases as NCAA enforcement increases.

Posted By : Anonymous

Excellent point regarding Brown.

My opinion...

Message posted on : 2007-03-14 - 22:32:00

Excellent point regarding Brown.

My opinion for what it is worth is that unless it can be made a Brown case where the player is the consumer, it probably isn't winnable.

I think the flaw in a Brown analysis is two-fold.

First each institution has its own GIA value. A smaller regional state institution could see the GIA value as low as $10,000 while some private institutions could see that value easily exceed $40,000. If players are Brown consumers, pricing for the GIA component becomes interchangeable so that the cost of books, fees and tuition to the consumer can be a Ball State Cardinal or Stanford Cardinal at an identical price, and an excellent savings for the Stanford player.

The more important differential is that Brown turned on a conspiracy to limit the only source financial assistance. DOJ basically concluded that the involved schools conspired to eliminate any price "discount" other than need based aid across the board. The NCAA rule limits one form of "discount". A player could forego athletic ability aid and still be a consumer of a college education eligible to receive academic merit aid or financial need based aid.

Posted By : Mark

Not only are the umpires' strike zones different, ...

Message posted on : 2007-03-15 - 01:54:00

Not only are the umpires' strike zones different, so are the players' strike zones. The example I often use is this: while the width of the strike zone is the same, the height is different player-to-player. Randy Johnson's (6'10") zone starts higher, ends higher, and is larger vertically, than the zone of someone like Kirby Puckett (5'8"). Their stances at the plate also make quite a difference, too.
Posted By : Anonymous

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Message posted on : 2007-03-15 - 05:18:00

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Posted By : stephe

How about this for a baseball analogy?

The ...

Message posted on : 2007-03-15 - 09:42:00

How about this for a baseball analogy?

The umpire only resembles a judge when a judge is sitting on a bench trial. The rest of the time the umpire is more like the jury.

The umpire takes the evidence presented. Applies the rules (law) as he has had them explained to him, to what he's seen and makes a decision. An umpire is almost always a trier of fact, not law. Only in weird situations where a decision has to be made by determining which rule applies is he a trier of law.

My favorite rules story comes from the NHL. A puck split in half, one portion landed in the goal, the other portion missed. If any part of a puck crosses into the goal, it is a score. The referee ruled that when the puck split it no longer met the definition of a puck, so no goal because the portion that crossed in was no longer a puck. That is being a trier of law and it doesn't happen often in sports.

Posted By : Mark F

The point is that umpiring, particularly balls ...

Message posted on : 2007-03-15 - 12:40:00

The point is that umpiring, particularly balls and strikes, is not a perfectly objective determination

Of course, it could be if baseball would join the 21st Century and allow Questrec are some other computerized caling of balls and strikes.

Posted By : James

Mark:

That is a great point, one that too-o...

Message posted on : 2007-03-15 - 19:46:00

Mark:

That is a great point, one that too-often gets lost in throwing this analogy out for the benefit of a non-legal public. It can be a bit more complicated because in most constitutional cases (which is where the analogy most-often gets used) the facts are uncontested and the question is what a constitutional provision allows or not. But in general I like this notion and I think it gets to the heart of why the "we follow the rule book" does not work at any meaningful level.

James:

First, no sport relies entirely on a computerized system to make calls and entirely removes the human element and I have never heard of a proposal to do so in any sport. QuesTec is an evaluative system--how are the umpires doing as compared with the computer's supposedly more accurate call?

Second, I am not sure QuesTec makes things more OBJECTIVE in the sense of uniform from ump to ump. Calling balls and strikes necessarily depends on physical positioning and perception--depending on where and how one is positioned, what once perceives may change. That is as true of a computer or camera as a person--its position, its calibration (or whatever) affects how it "sees." And if the machine at Wrigley is positioned even slightly differently from the machine at Busch, the resulting strike zone may be quite different.

Posted By : Howard Wasserman

since the NCAA is essentially a monopoly, does thi...

Message posted on : 2007-03-16 - 00:05:00

since the NCAA is essentially a monopoly, does this affect the obligations of that organizations. Also, insupreme court case Dennis vs sparks it was found that a private organization can be found to be a 'statae actor" and there fore subject to 1st and 14th ammendment if a state actor 9in this case the UIUC) acts in conjunction with the private organiztion to implement the action or policy in question. this is a grey area but worth looking into??
Posted By : Anonymous

this blog is awesome, i love the layout! if you're...

Message posted on : 2007-03-16 - 17:09:00

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Posted By : Anonymous

this blog is awesome, i love the layout! if you're...

Message posted on : 2007-03-16 - 17:09:00

this blog is awesome, i love the layout! if you're interested, there's some great postcards at http://www.postcards.com
Posted By : Anonymous

Great discussion. This can't be a consumer case. ...

Message posted on : 2007-03-17 - 06:35:00

Great discussion. This can't be a consumer case. Sellers don't care WHO the buyer is, their sole motivation is to get the maximum $$ for their product and they will sell to anybody willing and able to pay it. That's obviously not the case here because schools are only willing to sell a scholarship to a very small percentage of the population and they are very selective about who they sell it to. Most importantly, that determination has absolutely nothing to do with how much $$ the consumer is willing to pay for it -- it's based upon talent, position, age, work ethic, high school GPA etc.

Thus, college players are clearly selling their services in return for a form of compensation. If this is a consumer case, then Law v. NCAA could be characterized as a consumer case (and any input case really). The difference between this case and Law is basically the form of compensation -- the assistant coaches were receiving a salary, and here the players are receiving tuition, books, room and board. In other words, one could also say that the assistant coaches in Law were purchasing a salary with their services.

For an antitrust claim, there must be a restraint on TRADE. Therefore, I've always thought that this case should turn on whether scholarship players are legally "employees" by definition (which is really just a policy issue and another whole discussion in and of itself). If the court says they are not "employees" selling their services (which will most likely be the case), then there is no "trade" involved.

Posted By : Rick Karcher

Prof. Karcher:

I think your emphasis on the...

Message posted on : 2007-03-17 - 10:59:00

Prof. Karcher:

I think your emphasis on the fact there must be a restraint of "trade" may be captured in the commercial/non-commercial distinction that some courts have developed under Section 1. Several courts have invoked the fact that the NCAA's activities are "non-commercial" and thus wholly exempt from antitrust review. See, e.g., the Third Circuit's Smith decision.

I think it clearly lacks merit in the context of a money-making enterprise like big-time college athletics. As Einer Elhauge noted in his article, The Scope of Antitrust Process, Section 1 should apply anytime parties are colluding in a way that could advance their own economic interests. There's no doubt that universities are advancing their own economic interests by colluding on player compensation.

Posted By : Anonymous

NO, no, NO!!!!! The MLB uniforms are FAR WORSE n...

Message posted on : 2007-03-18 - 04:14:00

NO, no, NO!!!!! The MLB uniforms are FAR WORSE now than those '60's/'70's/'80's uniforms. At least with those, one had an idea of which teams wore what colors, like other sports. Almost all of the teams' uniforms today [except Yankees, Red Sox, A's (green shirts), Orioles (orange/black), and a couple of others], all look alike. As I said, name another sport where most of the teams' uniforms look virtually identical to each other. (If anything, some of the NBA uniforms--i.e. Indiana, Charlotte, Sacramento, yes even Denver [the "baby blue" you cry about]--are far more hideous than even the Padres' brown from 1984.)
Posted By : Anonymous

Sorry, but I must disagree...

Bowie Kuhn wa...

Message posted on : 2007-03-18 - 23:38:00

Sorry, but I must disagree...

Bowie Kuhn was probably a good man and a virtuous man based on everything that has made its way into the public record. But as baseball commisssioner, he was feckless.

During his "reign" the MLB owners - the ones who hired him and paid his salary - started on a twenty year path as a pinata for the MLBPA. And his "internal actions" reagrding the game made it clear that Charlie Finely could not run his team as he saw fit to do. Except in the LONG run, Finley may have been far closer to "right" than "wrong".

Saying that Kuhn was akin to Commissioner Landis in terms of rectitude in terms of baseball history is damning by faint praise indeed. Landis - by his actions as commish - delayed the integration of baseball by at least 3 years an perhaps a few more years. Bill Veeck was ready to sign and play more than a couple of Negro League players to be part of MLB in 1943 when Landis ordered the sale of the Phillies - - but opposed any deal that brought Veeck into the fold of the owners.

Kuhn was not a racist in terms of his actions by any means. But Kuhn was hardly effective or efficient in his job as a custodian of the game or as an agent to expand the scope of the game beyond its established borders at the time he became commish.

I hope he rests in peace; I have no animosity towards him. But as a man of greatness in his profession - - - I'll have to abstain from those hosannahs.

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Posted By : Monica

I have to confess.

I hate the scholarship u...

Message posted on : 2007-03-19 - 14:36:00

I have to confess.

I hate the scholarship updates because I really have a hard time justifying the number of subscriptions it would take to get all the articles that would be of interest.

I suspect most are printed at a loss to the university or sponsoring associations and many if not most copies end up in a law library to rarely if ever be opened up.

Of course the ad supported model wouldn't be of much help online simply because there aren't enough of us out here who would bother to visit, meaning low traffic.

I do wish a different model would emerge though, that allows for cost-efficient purchase of articles of interest.

And with that, I apologize for the off-topic rant.

Posted By : Mark F

Bowie Kuhn took a stand on the Finley "sales" of h...

Message posted on : 2007-03-19 - 17:36:00

Bowie Kuhn took a stand on the Finley "sales" of his players based on the "integrity of the game" but did little else.

His lack of competence was highlighted when Giamatti took office. That was when it became apparent that a strong commissioner could have strong impact. However, given the group of owners during Kuhn's times, they probably just wanted someone to keep the $$ coming in.

I do not think it is appropriate to lay fault for free agency on Kuhn. That was caused by the changing legal dynamics and the greedy owners. Had they been more cognizant of the legal landscape, they would have hired better counsel to deal with Marvin Miller. Instead, Mr. Miller's brilliance led to true free agency and the best pension benefits around.

Posted By : qtlaw24

Mark F's NCAA "March Madness" team was obviously e...

Message posted on : 2007-03-19 - 18:29:00

Mark F's NCAA "March Madness" team was obviously eliminated over the weekend...
Posted By : Anonymous

Not hardly.

They were eliminated before Sel...

Message posted on : 2007-03-19 - 18:48:00

Not hardly.

They were eliminated before Selection Sunday.

Posted By : Mark F

The Celtics???? I know the Celtics had two shots...

Message posted on : 2007-03-19 - 21:05:00

The Celtics???? I know the Celtics had two shots at getting Tim Duncan that year, but . . . Professor McCann, try being a Denver Nuggets fan in the '90's--twice the Nuggets had the worst record, twice the Nuggets didn't even get a top-three draft pick.
Posted By : Anonymous

Maybe its time to go after the networks as well--h...

Message posted on : 2007-03-19 - 21:12:00

Maybe its time to go after the networks as well--how many TV commentators have implied both Kevin Durant and Ohio State's Greg Odin "would be coming out this year"? One has to wonder if those comments also are having an effect on both of them--more so than Danny Ainge talking to Durant's mom. (Heck, why shouldn't she take advantage of a rare opportunity? How often do we get a chance to talk to a former NBA player, almost one-on-one, about what's it like in the league now, and whether he should come out early or stay in school.)
I understand the league's position; staying or going could decide what team drafts him and what affect he has on the league, depending on where he goes.

Posted By : Anonymous

Ayatollah Stern strikes again.

Message posted on : 2007-03-20 - 09:31:00

Ayatollah Stern strikes again.
Posted By : Anonymous

I guess I understand the strict liability standard...

Message posted on : 2007-03-20 - 11:17:00

I guess I understand the strict liability standard, but I would think the rule is geared for the guys who won't be drafted.

With the NBA's short draft, a kid coming out as a free agent could be a big deal if a team thinks they can get a steal.

Posted By : Mark F

hi guys
Celtics is my best team in the nba i ...

Message posted on : 2007-03-20 - 12:05:00

hi guys
Celtics is my best team in the nba i wish i could go to watch all their games i found a good web site where you can compare your Boston Celtics tickets an found cheap tickets http://www.ticketwood.com/nba/Boston-Celtics-Tickets/index.php
really is a good site

go go Celtics

Posted By : Anonymous

Seems like the whole thing hinges on how unintenti...

Message posted on : 2007-03-20 - 17:24:00

Seems like the whole thing hinges on how unintentional it was that Ainge ended up sitting with the Durant family. I'm prepared to believe it's true, but how do we know it to be so?
Posted By : Henry Abbott

Great post, Mike!

Message posted on : 2007-03-20 - 20:34:00

Great post, Mike!
Posted By : SmittyBanton

Mike, I would also add that the NBA and Players As...

Message posted on : 2007-03-20 - 20:40:00

Mike, I would also add that the NBA and Players Association probably believe they benefit financially from the rule. The longer Durant and others are ringers in the NBA, the more press and goodwill value they accumulate. So by the time the player gets to the league he is a better known, more marketable commodity. And since the pay scale is rigged, teams have every incentive to maximize the rents inuring to them from this closed market in every possible way including fining one of its members for contravening the stategy. I don't like it one bit, but it is rational and what makes David Stern the don he is.
Posted By : SmittyBanton

QTLaw:

I am not sure I would describe Giamm...

Message posted on : 2007-03-20 - 21:51:00

QTLaw:

I am not sure I would describe Giammatti as an example of a strong commissioner having a strong impact. Beyond suspending Rose (a correct decision that may have sped up his heart attack), Giammatti was not in the office long enough to have an impact.

Generally:

My point was about Kuhn's impact and significance as commissioner, which is not necessarily the same as his effectiveness or his rectitude. Kuhn is important simply because of the dramatic amount of nature of the changes that occurred on his lengthy (by MLB commissionerhsip standards) watch, regardless of whether or not he was the motive force behind those changes. I think he helped bring some about, while others (notably free agency) were thrust upon him by changes to the legal landscape and Kuhn found a way to make them work and to get the owners to make them work.

I do not know enough about the internal relationships and bargaining dynamics to say whether Kuhn should be blamed for starting the owners' string of defeats at the hands of the MLBPA or whether the owners as a group should be. The Commissioner works for management, but does he wield negotiating authority or do the owners collectively wield it? I do not know the answer to that question.

Posted By : Howard Wasserman

Mark F:

You're free to hate what you want, ...

Message posted on : 2007-03-21 - 14:44:00

Mark F:

You're free to hate what you want, but I will continue to put up these updates. A number of our readers are law students, who (luckily?) have free access to various on-line databases at which these articles can be obtained at no charge.

You're certainly right that subscribing to such databases is quite pricey, but you can always stop by the local law school library (wherever you live). Nearly all of these will be available there, if not through a hard copy, then via a "public access" password the law school can offer you.

This will at least be true, I suspect, for state university law schools. I am not as sure about private schools. If you're a lawyer, though, you should be able to get access.

Good luck and I'm sorry about your teams (Drexel?).

Posted By : Geoffrey Rapp

"NBA rules prohibit team executives from contact w...

Message posted on : 2007-03-21 - 18:41:00

"NBA rules prohibit team executives from contact with college players until they officially declare for the draft."

Is this similar to NCAA rules about football recruiting (or any NCAA sport for that matter)? Despite what many people say about the enforcement, am I correct in thinking that those rules are more codified than the NBA recruitment rules? Like you point out, there's a reason the rules exist on the amateur level.

Also, where do they come up with $30,000? Can one assume that if it was Mark Cuban in the seat, the fine would have been ten times that?

Posted By : Satchmo

The WSJ Law Blog had a nice posting yesterday that...

Message posted on : 2007-03-22 - 08:33:00

The WSJ Law Blog had a nice posting yesterday that also received responses from both the NFL and Seltzer.

http://blogs.wsj.com/law/2007/03/21/law-professor-wendy-seltzer-takes-on-the-nfl/

Posted By : Chris

Good link. Thanks!

Message posted on : 2007-03-22 - 09:36:00

Good link. Thanks!
Posted By : Geoffrey Rapp

Great story -- there are some who seek to take awa...

Message posted on : 2007-03-22 - 12:44:00

Great story -- there are some who seek to take away (or at least severely curtail) the Fair Use rights enjoyed by all Americans.

Good luck to Wendy Seltzer.

Posted By : Lou P.

Mark, thanks for these excellent comments. I hope...

Message posted on : 2007-03-27 - 03:10:00

Mark, thanks for these excellent comments. I hope there will be webcasts or podcasts of these panel discussions up at Memphis, and if there are, I will post links on the blog.
Posted By : Michael McCann

Professor Southall told me yesterday that he expec...

Message posted on : 2007-03-27 - 08:00:00

Professor Southall told me yesterday that he expected some sort of post-seminar materials will be available, possibly a dvd containing video of the seminars plus the power point presentations.

The tax debate should be quite interesting, but then I do a lot of tax work.

The tax code may be the last shot at saving inter-collegiate athletics from itself, so that should be a dandy.

Posted By : Mark

Very interesting post, Mike. A good read during M...

Message posted on : 2007-03-27 - 16:10:00

Very interesting post, Mike. A good read during March Madness, and the pictures are an added bonus.
Posted By : Tim Epstein

Thanks Tim, I appreciate you reading it and your k...

Message posted on : 2007-03-28 - 00:13:00

Thanks Tim, I appreciate you reading it and your kind words about it.
Posted By : Michael McCann

My daughter plays for Yucaipa Ca. High School JV s...

Message posted on : 2007-03-28 - 00:35:00

My daughter plays for Yucaipa Ca. High School JV softball team. The Varsity coach has a daughter on the varsity team. My daughter take his daughter spot on a travel team 2 years ago, so he quit the team. He now will not let her make the varsity team and has his friend, the JV coach harassing my daughter. The Coach is a school teacher and the school won't do anything about it. Now that I have complained she was moved to 2nd string JV and suspended for a game. Help!!
Posted By : Big Daddy

I too feel like I would probably take an image off...

Message posted on : 2007-03-28 - 10:23:00

I too feel like I would probably take an image off of my site if the rightful owner asked me to. On the other hand, I feel like the NFL or any other large corporate entity has only hostile intentions when they attempt something like this. Is it really hurting them in any way if Wendy Seltzer has their copyright notice on her site?
Posted By : Anonymous

Article from the Memphis Commercial Appeal about t...

Message posted on : 2007-03-28 - 23:43:00

Article from the Memphis Commercial Appeal about the 26th for those who are interested.

http://www.commercialappeal.com/mca/business/article/0,1426,MCA_440_5446590,00.html

Posted By : Joshua Golka

Looks like a very exciting event! Kudos to all in...

Message posted on : 2007-03-29 - 20:09:00

Looks like a very exciting event! Kudos to all involved. Now, if FSU can get back up to the level of Florida University's sports teams, that would be the ultimate sports event!
Posted By : jacklalane

Today celebrities such as actors and musicians see...

Message posted on : 2007-03-31 - 21:10:00

Today celebrities such as actors and musicians seem to have taken the lead from athletes in terms of social and political activism.
Posted By : Peter

This is a very sad story. It's not just about the...

Message posted on : 2007-03-31 - 21:26:00

This is a very sad story. It's not just about the pressures uncompensated athletes feel to earn extra cash through illicit activities, but also about the psychology of a player suddenly out of the limelight. As I understand it, most of Scooter's contacts with "Gary" came during a year in which he sat out. The year prior, he had emerged as a key player and fan favorite. If the allegations are proven, I wonder if his role might have had something to do with wanting to still be a part of the "action."

I will add one thing to your story -- based on what I've read elsewhere, it's not clear that McDougle is alleged to have been involved in point shaving -- instead, in most of the games that are at issue, Toledo covered the spread. I had been under the impression the claim against him was that he might have tried to influence other players to help the team _beat_ the spread. Should we view point inflating the same as point shaving?

Posted By : Geoffrey Rapp

Musicians always have been at the forefront of soc...

Message posted on : 2007-03-31 - 23:07:00

Musicians always have been at the forefront of social activism, probably even more so than athletes. Think Arlo and Woodie Guthrie or, in his own way and from a different perspective, Irving Berlin. And that trend obviously took off in the 1960s. Besides, popular music is the generational fault line--what the old generation (i.e., those in power) do not "get" about the younger generation. What was different then was that more athletes were involved in those same movements.

I think dre has hit on one important factor in the decline of athlete activism. But I think it is important to avoid the implication that athletes, especially African-American athletes, have some special obligation or duty to use their fame, fortune, power, and influence to take political stands. Jim Brown suggested as much of Michael Jordan several years ago.

Posted By : Howard Wasserman

Typically, anti-gambling rules do treat them the s...

Message posted on : 2007-03-31 - 23:15:00

Typically, anti-gambling rules do treat them the same. Pete Rose got in trouble for betting on Reds games--it did not matter whether he bet on them to win or lose.

I had not seen a report showing which specific games are at issue. I know that Toledo failed to cover in six games and covered in six games last year. But given that Geoffrey is living in the heart of the story (a fact I forgot when I wrote the post), I will defer to him on that fact.

Posted By : Howard Wasserman

Wasn't there also a point-shaving scandal involvin...

Message posted on : 2007-04-01 - 01:00:00

Wasn't there also a point-shaving scandal involving Tulane's basketball program in (I think) the early 1980's?
Posted By : Anonymous

Yes, good addition. John "Hot Rod" Williams was c...

Message posted on : 2007-04-01 - 07:38:00

Yes, good addition. John "Hot Rod" Williams was charged with shaving points in three games; his federal trial ended in a mistrial and the charges were dropped, at which point a successful NBA career began. I had forgotten there was point-shaving involved there; I had only remembered that as an improper-benefits situation. Tulane actually suspended its basketball program for four years or so after that.
Posted By : Howard Wasserman

I must say congratulations! Wonderful changes and...

Message posted on : 2007-04-01 - 08:43:00

I must say congratulations! Wonderful changes and new opportunities. All these people are glad for you.. me too.
chattr team

Posted By : textilemill

Well guess I owe a friend a cold one as a result o...

Message posted on : 2007-04-01 - 08:46:00

Well guess I owe a friend a cold one as a result of this. I had done my own wager predicting that the next college betting scandal would be a player, trainer, manager, or assistant coach selling injury information gamblers. With so many schools refusing to release injury information I just figured that was the next scandal.

We've been overdue for a points shaving scandal though, seems like each decade brings one or two, though usually in basketball.

I listened to a radio talk host the other day say it was always going to happen because the players resent the huge money the schools make off them. Toledo wouldn't be the school I use to prove that theory, they generally lose a million or so a year on a budget that a Big 10 or SEC athletic director would blow through in a few months.

Posted By : Mark

Great post. I think there are several elements at...

Message posted on : 2007-04-01 - 11:53:00

Great post. I think there are several elements at work, including the ones you mention - corporate dollars, the desire to remain out of controversy . . .

But I have to ask - does the public WANT outspoken athletes?

Increasingly, we see that the public is more willing to accept whatever image the league markets - athletes like Gilbert Arenas who create their own cult of celebrity are increasingly rare in this day.

And one of the first criticisms of celebrities or athletes who speak out against a political or economic issue is that they are ill-informed, and thus ill-suited to be taking their position.

If you're an athlete, it's not hard to see that the easy path is just to stay quiet. One is shielded from criticism, bad publicity, can protect one's endorsements, and can avoid running afoul of the league.

So I would add a few factors to yours - first and foremost is the increased role of the league in marketing its own players.

This lessens the perceived need for players to express their own opinions, and when they do come out with strong stances, they risk rejection and criticism.

That said, I would like more players to speak out on issues. But I do think it takes more effort, and dare I say, courage, than it used to.

Posted By : Satchmo

Here's some updated information. WTOL, a local TV...

Message posted on : 2007-04-01 - 15:28:00

Here's some updated information. WTOL, a local TV station, has posted a copy of the FBI's criminal complaint here: http://www.wtol.com/Global/Link.asp?L=235135

Two things seem clear. First, in contrast to my initial information and previous comment, it does seem like the scheme involved here was a traditional "shaving" scheme. Second, McDougle has certainly made statements and is likely cooperating with the FBI in this case -- I would not be surprised if this complaint is followed in short order by a plea agreement.

Posted By : Geoffrey Rapp

Another factor may be the increasing consolidation...

Message posted on : 2007-04-01 - 21:07:00

Another factor may be the increasing consolidation of power in leage offices, particularly with the commissioners. It's now routine for players and coaches to be fined for even mild criticisms of the league. While it's unlikely a commissioner would fine a player for speaking out on a non-league-related political issue, there is nonetheless a culture of self-censorship within the leagues that punish any lack of conformity to the established marketing plan.
Posted By : Skip

Thought-provoking posts. It's interesting to note...

Message posted on : 2007-04-01 - 21:20:00

Thought-provoking posts. It's interesting to note that the greatest social impact was made, not by activist athletes, but by those athletes who simply showed up and competed despite and often against the forces aligned against them, e.g. Jackie Robinson, Jessie Owens. This could be a product of changing social conditions: perhaps as things get better (or as the perception that things are getting better becomes entrenched) it takes more of a statement to make the public aware of injustices.

I am just naive enough to think that some things have gotten better, lessening, to an extent, the need for athletic activism when other venues for the promotion of good causes exist.

Athletes, now wealthier than any of their activists predecessors, may be reluctant to risk their good names and fortunes, but I would suspect that some use their fortunes to further just causes. Perhaps less consciousness-raising, such an approach need not be less effectual.

While not nearly as dramatic as gloved fists, in protest of "the current political situation," I seem to recall the reigning 2-time NBA MVP wearing an anti-war t-shirt.

Posted By : Starcher Manchin Caperton

excellent posts. a few thoughts:

to dana,...

Message posted on : 2007-04-03 - 03:26:00

excellent posts. a few thoughts:

to dana, thanks for remembering perhaps my favorite activist athlete image ever, the tommie smith and john carlos black glove and fist salute during the national anthem in the 1968 olympics. what a powerful image even today, forty years later.

to peter and howard, do you think that artists and musicians are more apt to take political or controversial stands because they have less to lose in the corporate marketplace? are the activist musicians really speaking to one side of the generational fault line, and risking less in doing so?

also, to howard's point, i think it critical to avoid the implication that the athlete of color bears special activist responsibility. i think others would argue that point (like jim brown), but in the law school classroom, unless critical mass is acheived with minority students, it is difficult to avoid the "one person represents the views of the entire race" conundrum.

to satchmo and skip's points, i think you both directly confront a major problem by identifying the slickly marketed professional sports leagues today. the problem is the heavy handed disapproval of anything controversial that might make the leagues marketing efforts more difficult. fines for speaking out against referees or the league are frequently handed down. again, is this just league acquiesence to the corporate marketplace?

and to the question as to whether the general public WANTS outspoken activist athletes, i would have to agree with you that they probably do not. that said, kareem and muhammed ali faced serious backlash for their activism year's ago. today, i think both are honored, but ali lost year's on his career for his activism and opposition to the vietnam war.

finally, to the good governors/supreme court justice of west virginia, manchin starcher caperton, your post brings to mind one of my most respected nfl athletes, warrick dunn. as you probably know, dunn each year provides the funds to build a home for a single mother in memory of his own mother who was a police officer shot and killed in the line of duty. dunn goes about his charitable work in a mostly unheralded fashion and uses his fortune to do great work.

thanks for all of the great comments.

Posted By : dre cummings

here's a question: why doesn't baseball have set ...

Message posted on : 2007-04-03 - 12:59:00

here's a question: why doesn't baseball have set dimensions for the maximum distance to the outfield fence outlined in the rules? I've already tried to make the argument that this provides a hint of romanticism to the game, but my fellow combatant wasn't convinced.
Posted By : Yost

The Sony Ericsson Open is currently the largest t...

Message posted on : 2007-04-03 - 18:09:00

The Sony Ericsson Open is currently the largest tournament in the world with Title Sponsorship. When Butch Buchholz established the event in 1985, it marked the first time in 56 years that a new two-week tournament featuring men and women was launched. Located in Delray Beach (Laver's International Tennis Center) in 1985 and Boca Raton (Boca West) in 1986, the tournament found a permanent home in 1987 on Miami's Key Biscayne. In 1994, Miami-Dade County christened the Tennis Center at Crandon Park, a 30-acre expanse that is transformed each year from a public tennis facility into a full-fledged festival for the Sony Ericsson Open. The Sony Ericsson Open was awarded 'Tournament of the Year' by the ATP for four consecutive years and seven of the last eight years and in 2004 by the Sony Ericsson WTA Tour and is considered one of the most prestigious titles in professional tennis. In 1999, the tournament was purchased by IMG.

The only combined 12-day Tennis Masters Series event on the ATP and Sony Ericsson WTA Tour calendar, the Sony Ericsson Open features the world's top-ranked pros – 96 men and 96 women in singles competition, and 32 men's teams and 32 women's teams in doubles action. The men's final is best 3-out-of-5 sets with every other match in both men's and women's singles and doubles will be best 2-out-of-3.

Known as Tennis' 5th Grand Slam, the Sony Ericsson Open is second only to the US Open in attendance for American events.Championship Tennis Tours since 1987 sells Sony Ericsson Open Tennis Tickets and Sony Ericsson Open Tennis Packages. Well also sell tickets to the French Open, Wimbledon, Sony Ericsson Open, Australian Open, Pacific Life Open and the Sony Ericsson Open.
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Posted By : Sony Ericsson Takes Over Title

Cool info about the NBA, but I was also thinking o...

Message posted on : 2007-04-04 - 16:55:00

Cool info about the NBA, but I was also thinking of shedding some more light on the WNBA, which doesn't get much publicity, although it should. Here are some interesting facts about the WNBA:

On February 15, 2005, NBA Commissioner David Stern announced that Donna Orender, who had been serving as the Senior Vice President of the PGA Tour and who had played for several teams in the now-defunct Women's Pro Basketball League, would be Ackerman's successor as of April 2005.

The WNBA awarded its first expansion team in several years to Chicago (later named the Sky) in February 2005. In the off-season, a set of rule changes was approved that made the WNBA more like the NBA.

The 2006 season was the WNBA's tenth; the league became the first team-oriented women's professional sports league to exist for ten consecutive seasons. On the occasion of the tenth anniversary, the WNBA released its All-Decade Team, comprising the ten WNBA players deemed to have contributed, through on-court play and off-court activities, the most to women's basketball during the period of the league's existence.

In December of 2006, the Charlotte Bobcats organization announced it would no longer operate the Charlotte Sting. Soon after, the WNBA announced that the Charlotte Sting would not operate for the upcoming season. A dispersal draft was held January 8, 2007, with all players except for unrestricted free agents Allison Feaster and Tammy Sutton-Brown available for selection. Teams selected in inverse order of their 2006 records, with Chicago receiving the first pick and selecting Monique Currie.

For more info on NBA, NFL, MLS and NASCAR you are welcome to visit my future blog.

Michael S.
USA Sports News

Posted By : Anonymous

One of the most consistent last-ditch "explanation...

Message posted on : 2007-04-05 - 11:27:00

One of the most consistent last-ditch "explanations" for keeping women out of certain jobs is some variation on the theme of the "physical demands" of the job. Seeing as how most male umps are fat-asses who probably have to stop for breath on the way out the the plate, I am just cringing waiting for the day that this old warhorse is trotted out again.


Hell, at least the NBA refs have to run for 48 minutes, and the women seem to do at least as well as Dick Bavetta in that regard.

Posted By : Collin

I've officiated more than a half-dozen sports in m...

Message posted on : 2007-04-05 - 14:29:00

I've officiated more than a half-dozen sports in my lifetime and spent 37 years officiating basketball. I think the reason there are more women as basketball officials at the pro level is that more and more women are playing basketball. Most - not all but most - of the officials I have worked with over the years also played the sport they now officiate.

There are fewer women playing baseball than basketball; there are fewer women playing football than basketball. I believe this situation is an important part of why there are fewer women as umpires or football officials at the highest levels of the game.

I really don't think that "physical limitations" really apply to most officiating situations. On of the best basketball officials I ever worked with was a woman whose physical strength was very limited. But she could run and she knew the game and she was always in position and she did an outstanding job on the court - - even though she could not have beaten your average 12-year-old boy in a game of "one-on-one".

Posted By : The Sports Curmudgeon

The problem is that all umpires are hated. They h...

Message posted on : 2007-04-05 - 14:32:00

The problem is that all umpires are hated. They have no fans and the best they can hope for is that no one even notices that they are there.

You add to the equation a female umpire, which the majority of baseball players would think underqualified, and it is a dangerous recipe. I suspect the charge that Postema was throwing too many people out of games was a result of the lack of respect players and managers showed her. The ejected players probably dropped some comments on her about her gender and she was probably justified in tossing them, but I'm sure this didn't engender any support for her around the league.

I would think, although I have no proof, that most of the umpires in the minor and major leagues played baseball in high school, which gives them a leg up in the understanding of the game and rules. It would seem to be an easier transition to the role of umpire from this background than a background lacking in on-field exposure to the sport.

Posted By : Anonymous

Whlie your suggestion to make the lottery more equ...

Message posted on : 2007-04-05 - 20:07:00

Whlie your suggestion to make the lottery more equal for all teams, I believe that i against the anti-trust laws. I am not sure under what statute, but I believe that in order for a draft to be allowed in competitve bargaining is that a draft enhances a more equal and competitive play. If the draft had a team that finished not in the bottom, the team would definitely do better, but it is not neccesarily true that the worse teams will do better in the draft, which would loose there ability to collectively bargain.
Kenny

Posted By : Anonymous

not if the players agree to it.

Message posted on : 2007-04-05 - 20:45:00

not if the players agree to it.
Posted By : Anonymous

no there are some rules that are nonbinding even w...

Message posted on : 2007-04-05 - 21:13:00

no there are some rules that are nonbinding even with a collective bargaining agreement. This is one of them. Kenny is right
Posted By : Anonymous

Just a small correction: I went to that game after...

Message posted on : 2007-04-05 - 21:56:00

Just a small correction: I went to that game after which Doc Rivers said that he wasnt tanking the game. It was against the Charlotte bobcats not the atlanta hawks.
I think the current kind of draft order, like in the nfl, discourages good sportsmanship and def needs to be changed!

Posted By : Andrew

Andrew,

Thanks for the correction a...

Message posted on : 2007-04-05 - 23:13:00

Andrew,

Thanks for the correction and sorry that you had to witness that game! :)

Kenny and the other two commentators,

Thanks for your comments, they raise an interesting issue on the legality of a non-weighted lottery, as detailed in option #1.

But I'm not sure that it would violate antitrust laws for a draft lottery to provide equal chance to the worst 14 teams to obtain picks 1 through 14, while the order for the remaining 16 teams would continue to be based on record. And I think that is true even if the players' wouldn't consent.

For one, most of the first round (16 out of the 30 picks) would still be based strictly on re-distributive grounds (i.e., records of the playoff teams). Plus, presumably all 30 picks in the second round would remain based on those same re-distributive grounds. So 46 out of the 60 draft selections in a non-weighted lottery would remain based on re-distributive considerations, meaning that the weakest teams in those 46 selections would still have the first crack at the best available talent.

Having said that, I fully understand that the lottery features the best talent--especially among the top 5 selections--and that a non-weighted lottery would probably not re-distribute that talent to the weakest (or "most needy") teams, but courts have been very deferential (too deferential in my opinion) to leagues in how they operate drafts, and I suspect that courts would be sympathetic to leagues like the NBA that have teams deliberately trying to lose games. But if you find case-law that would support your point, I would be extremely interested reading it. It's a neat topic and sounds like a good area for an enterprising law student to research for a student note project.

Thanks to you all for commenting.

Posted By : Michael McCann

The only problem with tanking games is that there ...

Message posted on : 2007-04-06 - 04:35:00

The only problem with tanking games is that there are NO guarantees you get what you are trying to get!!! You mentioned the Celtics in 96-97, when they had two shots in the ping-pong ball lottery to land Tim Duncan and missed both times (they ended up with # 3 and # 10 picks if I remember right). More such evidence:

>> Just ask Denver Nuggets fans about tanking to get the #1 pick! Twice the Nuggets had the worst record in the NBA, and neither time did they get the #1 pick (ending up FOURTH both times).

>> Who said that either Odin &/or Durant are even coming out FOR SURE? It seems like no one has bothered to ask THEM about THEIR plans; both are freshmen, and remember Odin only played just over half the season due to work on his wrist. Seems to me another year for both would not be a bad idea, to see if they are not flashes-in-the-pan's. By the way, who would be the #1 pick if NEITHER Odin nor Durant come out?

P.S. This draft may also be a little better than thought, with four Florida starters coming out for this year's draft.

Melvin H.

Posted By : Anonymous

I love the idea of naming all players to be free a...

Message posted on : 2007-04-06 - 08:57:00

I love the idea of naming all players to be free agents. Perhaps you could throw in some first rights of refusal to lower-placed teams (they have the right to match any price offered from a higher ranked team, so the higher ranked teams end up having to pay more to get rookies).
Posted By : greg oden

I have sneaking admiration for the notion that the...

Message posted on : 2007-04-06 - 09:33:00

I have sneaking admiration for the notion that the lottery team with the BEST record ought to get the most ping pong balls, because the assumption that bad teams will become competitive given enough high lotto picks is illusory. When has that ever happened since the introduction of the lottery system? ? Look at teams like the Clips and the Hawks, who have been awarded high picks year after year but are still lousy.

Unfortunately, I doubt if the "inverse order" approach would fly with the league. Instead, how about a simple system of escalating fines? These would be similar to the fines Stern imposes for criticizing the officials. If Stern thinks a team has tanked a game, it's a $100,000 fine for both the coach and the GM. The second offense costs $250,000 each, the third $500,000, and so on. A team could appeal these fines, but it would have the burder of proving that it was not trying to lose, including affidavits from the team physicians that allegedly injured players were, in fact, injured, and explanations for unusual substitution patterns.

My guess is that the tanking would stop in a hurry if Stern took this approach.

Posted By : Anonymous

Pro sports drafts help to artificially lower a pla...

Message posted on : 2007-04-06 - 10:26:00

Pro sports drafts help to artificially lower a player's initial salary, particularly in situations where a "rookie cap" exists.

I like how Randolph Morris was able to go directly from the NCAA Tournament into the NBA (because of having passed through the draft once before), though obviously his situation was the exception and not the rule.

Posted By : Lou P.

Glad to see a return to an issue near and dear to ...

Message posted on : 2007-04-06 - 10:35:00

Glad to see a return to an issue near and dear to my heart. Why not institute a draft of the best law students from the firms around the country in reverse order of partner profitability. It will even the playing field. Students may lose their choice to work where and with whom they want but, hey, it will only be for the first four years of their career. For many athletes, their whole career is over in less time. Alan Milstein
Posted By : Alan Milstein

What evidence is there that the draft "redistribut...

Message posted on : 2007-04-06 - 11:02:00

What evidence is there that the draft "redistribute[s] talent in a way that benefits the league as a whole?"

Arguably, Mr. Milstein's point has nothing to do with the draft, but rather with the fact that leagues have been allowed to become monopolies. No one would argue that, once a law student joins a law firm, it can assign him to whatever practice of the firm it wants. So is the problem that a league can assign a player to a single team the real problem, or is that there's only one league?

Posted By : Anonymous

While the NBA should adopt a more European Soccer ...

Message posted on : 2007-04-06 - 11:09:00

While the NBA should adopt a more European Soccer view on how to develop their players (Having their own youth academies owning the rights to the players that they developed, being able to sell them/trade them when they want to or if the player wants out) would solve a myriad of problems in the league (including the whole NCAA profiting greatly off of what is basically uncompensated labor) but that is never going to happen.

Since that system will never be implemented the system that is in place now is as good as you can get. In any situation where you reward losing with a prize organizations will tank. They are motivated to tank and will keep as many necessary players out of the game to do so.

We are stuck with the best situation until the NBA truly embraces player development instead of letting other organizations do it for them.

Posted By : Gregg

Certainly a difference between assigning a player ...

Message posted on : 2007-04-06 - 11:19:00

Certainly a difference between assigning a player to a position and giving him one and only one choice about where he will work. The league is not the employer; the individual teams are. The point is really to dispel the myth, which fans have bought into, that the purpose of the draft is parity because, without it, all the players would gravitate to the good teams. Many players would choose to work in their home or college towns as evidenced by players like Randy Wolf who left the Phillies to go play for the Dodgers.
Posted By : alan milstein

This suggestion may be received as heresy in this ...

Message posted on : 2007-04-06 - 11:28:00

This suggestion may be received as heresy in this forum, but, I suggest that the current system is actually pretty good for two reasons: (1) the probabilistic nature of the rankings makes the decision to lose on purpose a much riskier one; and, (2) losing on purpose, while wrong, is not as bad as people think.

(1) is self-evident, I trust. If you decide to tank in the hopes of getting #1, you may instead get burned and alienate fans in the meantime.

(2) what is the point of losing on purpose to get a high draft? It is to get better in the future. It's a strategic decision, a retreat, if you will, with the idea of regrouping and eventually winning. This is not the greatest sin. In fact, whatever is wrong with it can be cured by the market pressures noted above: you may lose your fan base, revenue, etc.

There is something to be said for always trying your best, never throwing in the towel, and so forth. Those are indeed admirable virtues. Yet, we admit their limits in other aspects of life: sometimes planning for the future means sacrificing now. Is there something about professional sports that makes them immune to such strategic decisions? Do we expect professional sports to exhibit the highest human virtues? Professional sports leagues are comprised of businesses that have sold their fans down the river countless times. Apply the same business pressures to sanction them and look elsewhere for your models of virtue.

Posted By : Bob-Wise Gansey

imo the problem is that the step down from last to...

Message posted on : 2007-04-06 - 11:45:00

imo the problem is that the step down from last to 2nd last to 3rd last is too large. this provides motivation for tanking... why not use a smaller step size, with all 14 non playoff teams having a chance at the #1 pick and all first 14 picks being drawn.

30th 11%
29th 11%
28th 11%
27th 11%
26th 10%
35th 9%
24th 8%
23rd 7%
22nd 6%
21st 5%
19th 4%
18th 3%
17th 2%

or something similar to that (as mine dont add up to 100%).. but you get the picture. This would stop teams from trying to move down a spot of two cos it makes very little difference to their chances..

Posted By : Michal

Alan:

Your arguments seem to be question-be...

Message posted on : 2007-04-06 - 14:34:00

Alan:

Your arguments seem to be question-begging or without evidentiary support.

"Certainly a difference between assigning a player to a position and giving him one and only one choice about where he will work."

This problem arises only because leagues are monopsonies. If there were multiple leagues, each having a draft, then a player would have an option about where to play. See the days of the AFL/NFL and ABA/NBA.

"The league is not the employer; the individual teams are."

You're begging the question. The point is that, for antitrust purposes, should the leagues be treated as a single entity?

"The point is really to dispel the myth, which fans have bought into, that the purpose of the draft is parity because, without it, all the players would gravitate to the good teams."

Undoubtedly drafts have the effect of cutting costs by creating a property right in a player's services. But the idea that a draft necessarily has only that purpose is silly, without further evidence.

"Many players would choose to work in their home or college towns as evidenced by players like Randy Wolf who left the Phillies to go play for the Dodgers."

Maybe yes, maybe no. One anecdote does not make a statement true.

Posted By : Anonymous

The question is not one of legality. The league an...

Message posted on : 2007-04-06 - 16:43:00

The question is not one of legality. The league and the union have agreed in arms legnth negotiations to a term that effects primarily those in the union and concerns wages. So it is shielded by the labor exemption. End of story. What goads me is that the draft is sold as a parity issue and not a vehicle to control wages. And that fans and commentators--and even players--buy that rationale.
Posted By : alan milstein

Humm what about a pick your poison lottery that wo...

Message posted on : 2007-04-06 - 18:34:00

Humm what about a pick your poison lottery that would muck things up so good the fans could never figure it out?

The bottom 7 teams get three choices.
1. Compete for one of the first picks.
2. Compete for one of two $5 million league bonus payments that can only be used for player salaries and is exempt from the cap and the tax.
3. Compete for two bonus picks to be taken just before the championship series participants pick.

Each team sends a letter to the commissioner of their choice of pool.

Commissioner opens the 7 envelopes.
If only 1 or 2 pick option 2 they get it and go in the hopper for the first pick lottery. Same for option 3 with a drawing to determine the order of the bonus pick. If more teams pick option 2 or 3 than there are slots there is a drawing for each slot the winners are held out of the 1-7 lottery until the other slots are taken.

Totally crazy BUT, some teams might risk giving up a shot at the top pick for some immediate cap help that doesn't come out of the owner's pocket, while other teams might risk not being the top pick in order to have the added player of a bonus pick or by being able to take that pick and trade it.

Brings some game play to the process as well. If you go for the cap help or bonus pick and more teams pick that option than there are slots, those teams are guaranteed to be out of contention for the earliest picks, but if you choose one of those options and few other teams do, you are still in the unweighted competition for spot #1.

Posted By : Mark

I've got an idea. Put the lottery teams in 3 tiers...

Message posted on : 2007-04-06 - 18:51:00

I've got an idea. Put the lottery teams in 3 tiers: Group A. teams that made the playoffs last season - let's say there are 5. They pick in random order 10-14. Group B. teams that missed the playoffs last season but made it the year before- let's say there are 5. They pick in random order 5-9. Group C. teams that missed the playoffs the last 2 seasons. They pick in random order 1-4. I can't find a single reason why a team would tank. This season a team like Memphis would be screwed since they were a playoff team. A team like the Warriors (if they miss out) would benefit for missing the playoffs annually.
Posted By : ACC

Well, I have an idea. If a team cannot win 1/3 of ...

Message posted on : 2007-04-07 - 04:46:00

Well, I have an idea. If a team cannot win 1/3 of games it plays (28 wins in a 82-game schedule), that team cannot participate in the upcoming lottery. Therefore at current pace, Memphis will not get a pick higher than 4, Boston 5, and Milwaukee 6 repectively.
Posted By : Dai Lung Liu

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Message posted on : 2007-04-07 - 06:25:00

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Posted By : evden eve nakliyat

The best solution is a European- style elimination...

Message posted on : 2007-04-07 - 11:12:00

The best solution is a European- style elimination system that relegates the worst teams to a minor league every season. If only there was a minor league basketball league . . .
Posted By : Anonymous

rookie salaries are capped, right?

So, how...

Message posted on : 2007-04-07 - 11:25:00

rookie salaries are capped, right?

So, how about if they capped a player out of high school for one year at x amount of dollars.

someone out of high school for two years at x2 amount of dollars.

someone out of high school for three years at x3 amount of dollars.

someone out of high school for four years at x4 amount of dollars.

have the players agree to it, give them something else in return that they want and maybe you'll have players with longer collegiate careers.

Posted By : Anonymous

hope to see you cover the ESPN/Colin Cowherd/Schru...

Message posted on : 2007-04-07 - 12:30:00

hope to see you cover the ESPN/Colin Cowherd/Schrutebag mess.

http://deadspin.com/sports/espn/this-hurts-us-more-than-it-hurts-you-colin-249956.php

Posted By : sallypierre

Although all the major sports leagues have drafts,...

Message posted on : 2007-04-07 - 15:02:00

Although all the major sports leagues have drafts, I think that the NBA is the only one that has a lottery/weighted system. In all the other leagues (NFL, MBL, NHL, and even MLS), the team with the worst record gets the 1st choice and so on. In the NBA, the team with the worst record only has a chance - a 31.5% chance - of getting the first pick. I would argue that the NBA's system does the most to discourage the tanking of games to gain draft position. In other leagues, the team will know for certain what draft pick they will have but under the NBA's system, there is only a chance that they will get any particular pick.

If teams tanking games to gain draft position is a problem, perhaps the solution is NOT to play around with the draft but to attempt alter/emphasize/highlight other incentives. For example, if a team is tanking, I would think that fans would be less likely to buy tickets, buy concessions, and watch the games on TV. Hopefully, this would be enough of a disincentive. But perhaps the NBA could increase the rewards for playing competitive games later in the season; for example, teams that play late season games on national TV (ESPN and ABC) could receive additional TV money.

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Message posted on : 2007-04-08 - 13:04:00

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Posted By : Celia

How about we get rid of the lottery all together? ...

Message posted on : 2007-04-08 - 14:29:00

How about we get rid of the lottery all together? Just adopt the NFL system, the worst record gets pick 1, second worst gets pick 2, etc. I think it's the best draft system around, and it certainly gives the best chance to redistribute the talent.

It may not solve the "tanking" issue. But there's no real way to do anything with the draft to defend against that. It's just so hard to believe that the coach could get an entire team of competitive athletes to lose on purpose.

John

Posted By : Anonymous

I can see why the management and ownership would w...

Message posted on : 2007-04-09 - 07:46:00

I can see why the management and ownership would want to tank the games, but what incentive do the players have?

I'm not sure who the center of the boston celtics is, but I bet you he doesn't want boston to get the first pick in the draft

Posted By : Anonymous

I'd go with the guaranteed contract phenome...

Message posted on : 2007-04-09 - 14:28:00

I'd go with the guaranteed contract phenomenon. Not only do NBA players have guaranteed contracts, but they are also for large amounts of money and tend to be for extended periods. So the player may not have to fight for a job or a new contract for 3-4 seasons.

On the other hand, NFL contracts are both much smaller and not (typically) guaranteed. Thus it is easier to either steal a starting job or a substantially improved contract by performing well, and equally easy to lose a job and a salary by performing poorly. So the players are hungrier.

Posted By : Mike

The real solution is a completely random draft. Al...

Message posted on : 2007-04-09 - 15:04:00

The real solution is a completely random draft. All 30 teams have an equal chance at the top pick regardless of record. We would all be astounded at what little difference it makes in terms of competitiveness. Remember when the Clippers got the top pick every year and destroyed lots 'n lots of NBA careers? A pathetic organization can't be fixed with high draft picks and frankly doesn't deserve them.
Posted By : Anonymous

It comes down to one main thing: Press control. Th...

Message posted on : 2007-04-09 - 15:09:00

It comes down to one main thing: Press control. The NFL controls its press like no other because it is the top dog sport and the media know it can and will revoke their access. No one dares turn on the NFL. The NBA on the other hand is constantly being scrutinized by the very network that carries it, because that makes for better ratings in their eyes than uplifting the league, and burying negative stories. Baseball also has this beef with the NFL coverage (see: steroids).

I suppose there's an undercurrent of racism to it as well. With the lack of a white superstar face in the NBA and its perception as a "black league", maybe most of America wants to believe more negative things about the NBA more than they want to about their beloved NFL. Would things be the same if there were no Tom Brady, Peyton Manning etc, and all the titles were being won by flashy black Michael Vick types? Who knows? The height of ridiculousness came when the NBA was excoriated for the Las Vegas debacle caused by an NFL player acting like a jackass. With no lottery and fewer games in the NFL, I think tanking happens quite a lot. But as with all things, it's about perception.

Posted By : Anonymous

I suppose there's an undercurrent of racism to ...

Message posted on : 2007-04-09 - 15:44:00

I suppose there's an undercurrent of racism to it as well. With the lack of a white superstar face in the NBA and its perception as a "black league", maybe most of America wants to believe more negative things about the NBA more than they want to about their beloved NFL.

Steve Nash? Dirk Nowitzki?

In percentage terms, the NFL is almost as much a "black league" as the NBA.

Posted By : Peter

Two things I can think to add:

1. NBA teams...

Message posted on : 2007-04-09 - 15:44:00

Two things I can think to add:

1. NBA teams play five times as many regular-season games as the NFL: if a team in each league decides to tank with, say, 20% of the season left, that means three games for an NFL team and 16 for an NBA team. It stands to reason that a pattern of tanking becomes more obvious over a larger number of games.

2. The rookie salary rules of the NBA (along with restricted free agency) restrict player movement to the point where teams can't rebuild through the free agent market.

In a practical sense, a LeBron James or Carmelo Anthony is tied to the team that drafted him for seven years--the first half of his career. So, if an NBA team wants a particular star player, it will generally have two chances to acquire him, once on draft day and once during his prime.


It seems to me that NBA teams should look to tank much more than they actually do. Look at the Ray Allen trade from a few years back--one medicore team sends its best player to another mediocre team and received almost nothing in return.

The result? Seattle (drafting in "no man's land" every year) hasn't improved at all, and also doesn't have prospects for doing so in the immediate future. Meanwhile, Milwaukee got the #1 overall pick two years ago and is one of the favorites for a top-two pick this summer.

Looking back, which team actually did better from that trade?

Posted By : Anonymous

I think it comes down to one thing in the end: tic...

Message posted on : 2007-04-09 - 16:27:00

I think it comes down to one thing in the end: ticket sales.

In the NBA, individual performances are a lot more noteworthy. Yes, in the NFL a QB can have a legendary game (for example, Brett Favre's performance after his father's death). But even the QB is rarely involved in half the plays of the game, since a third-to-half of the time on offense he's handing the ball off to a running back, or on the sideline watching his defense play. In the NBA, though, a star player can be on the court for the entire game (or close to it). And when they're on the court, they can create more 'ooh' inspiring plays -- vicious dunks, half-court threes, amazing steals, etc.

And people love to see that kind of individual achievement, and they'll pay to see it.

To use another sports example, I lived in Boston at the end of the 90s, so I got to see Pedro pitch in person. And every time he pitched, you believed -- even if you weren't a Red Sox fan -- that a phenomenal performance might be seen that night. And you wanted it to happen, just so you could say you were there.

In the NBA, that opportunity exists every single game. You never know when Jordan is going to put up 63, or Wilt 100, or Rasheed Wallace hitting a 60-footer to send a game to overtime.

So when a team sees two potential blue-chip superstars just waiting to be drafted, they're going to want them. They know that if they get Oden or Durant, their ticket sales will spike. Not necessarily because the fans think they'll win a championship, but because they're hoping to see Oden or Durant put in the kind of effort that they'll be able to tell their kids about.

Everyone cares that Jordan scored 63 points in a playoff game. No one cares that the Bulls lost the game.

Posted By : ChrTh

I think it's the power structure between general m...

Message posted on : 2007-04-09 - 16:59:00

I think it's the power structure between general managers and coaches. Coaches are evaluated on win-loss record in both leagues. General managers are often evaluated on how well they draft (among other things).

In the NBA, general managers usually hire and fire coaches. In the NFL, coaches usually hire and fire general managers.

Posted By : ken

really a side point... but 2002 draft... jay willi...

Message posted on : 2007-04-09 - 17:46:00

really a side point... but 2002 draft... jay williams was definitely projected to be a star... steve francis was worried about the Rockets taking jay instead of yao

2003: you're right about dwade... people were surprised when riley "reached" for him at 5... but bosh was seen as only a half-notch below the top 3

Posted By : Michael Bloom

Quite simply, it's not why teams tank in the NBA, ...

Message posted on : 2007-04-09 - 18:12:00

Quite simply, it's not why teams tank in the NBA, it's that there's little reason for teams to tank in the other leagues. The draft means next to nothing in MLB and NHL - so few prospects make it to the big leagues that teams are willing to trade first round draft picks like they mean next-to-nothing (for the MLB, I mean they'll take slightly above average free agents and give up first rounders rather than gamble on a draft pick.) And the NFL season is just too short to tank: most teams aren't out of the playoff race until the last few weeks of the season, and there's so much parity that if you're that bad, you're going to lose anyway.
Posted By : Jason

Let me pose another analogy which seems to fit the...

Message posted on : 2007-04-09 - 20:36:00

Let me pose another analogy which seems to fit the circumstances.

Suppose we have a someone standing on a soapbox on a street-corner. He's asking those listening to take hammer, nails, and boards and close up a book store that sells a book he doesn't like. Or perhaps he just doesn't like the color of the store. Or, more fitting with Cowherd's statements on the air, the bookstore is new and he wants to show them who the big boys are.

If the listeners do it, the shop owners remove the boards and open for business again, and the man on the soapbox encourages the mob to do it again, it seems there is clear indication of incitement.

Ads are sold on the thebiglead.com. It is a revenue earning business and Cowherd's negligent (or intentional) actions deprived the owner of the ability to provide the service.

Ignorance of the law isn't an excuse to break it, right?

Posted By : prufrocker

I don't think your analogies are correct. Presuma...

Message posted on : 2007-04-09 - 21:26:00

I don't think your analogies are correct. Presumably the Big Lead loses out on advertising money, which may or may not be tort. However, because of the obscene increase in bandwith costs that The Big Lead now owes, this not only deprived them of business, but also hurt them financially. It's more akin to a "violent" protest where the contents of the store get vandalised and destroyed then peaceful picketing.
Posted By : Anonymous

Prufrocker:

The analogy you describe is the...

Message posted on : 2007-04-09 - 22:08:00

Prufrocker:

The analogy you describe is the paradigm case that the Court had in mind in establishing the modern incitement test. The illustration I use in class is a person standing in front of a poorly guarded county jail in front of crowd of people w/ torches and pitchforks and shouting "Let's make that guy pay." But the hypo you give fits that view.

In the past, I would not have thought that analogy works for a broadcaster because the immediacy of action is absent. But given that the web site could be attacked by people while they sat and listened to the show, maybe it is.

Anonymous:

I am not sure that financial harm necessarily means the analogy must be to violent protest rather than peaceful picketing. Either one could deprive a physical or virtual place of business and hurt it financially. Imagine if, in response to peaceful picketing, the landlord increased a store's rent to pay for additional security around the building (comparable to the increased bandwidth costs). There is financial harm but no violence.

Posted By : Howard Wasserman

Thank you for addressing this topic, Mr. Wasserman...

Message posted on : 2007-04-09 - 23:16:00

Thank you for addressing this topic, Mr. Wasserman. I'm curious as to how difficult it would be to quantify the damages involved in this case, which is relevant since 18 U.S.C. 1030 calls for criminal sanctions in events where the "loss result(ed) from a related course of conduct affecting 1 or more other protected computers aggregating at least $5,000 in value."

I very much wanted to see someone with legal understanding beyond mine address this situation, and I'm glad that you took the time to do so. It's appreciated.

Posted By : Lou P.

I think the more apt analogy is a radio host angry...

Message posted on : 2007-04-09 - 23:35:00

I think the more apt analogy is a radio host angry at a newspaper columnist telling listeners to go put their 50 cents in the newspaper machine and then grab out all the copies.
Posted By : Mark F

We seem to be talking about tanking more this year...

Message posted on : 2007-04-10 - 11:31:00

We seem to be talking about tanking more this year than we have in the past. That may have two explanations:

1) The increased number of mass-media voices talking about tanking. This is not a "blame the media" thing, but the reality that the increased number of public voices means an increased number of issues to be discussed and more people picking up on those different voices.

2) This is a unique draft because Oden and Durant are regarded not just as potential superstars but as once-in-a-generation talents who are going to revolutionize the game. So the incentive to tank (and commentators' willingness to assume tanking) is that much greater. If you look at the list of past drafts, the only people viewed in the same way were LeBron, maybe Duncan, and perhaps Yao.

Posted By : Howard Wasserman

The NBA has a bigger issue with tanking because th...

Message posted on : 2007-04-10 - 15:56:00

The NBA has a bigger issue with tanking because the team consist of 5 starters that play 75% of the game. The baseball draft doesn't matter for several years and is really a giant crap shoot. Football has 22 people splitting time. Even if you consider the QB or RB to be a difference maker half the time, they cannot do anything without an offensive line. Meanwhile, an NBA player can change the fortune of the team by himself. If the Spurs end up with Van Horn instead of Duncan, they do not have 3 rings right now. If the Lions had the number 1 pick this year, they would still be the Lions. What more do you need to know?
Posted By : Anonymous

Not to join the analogy parade, but I think the be...

Message posted on : 2007-04-10 - 16:24:00

Not to join the analogy parade, but I think the best analogy would have to encapsulate both of the following:

1) the individual acts were apparently lawful (assuming this was the case, and no programs were used); and
2) the individual acts, en masse, were intended to, and did, cause harm.

I think a better analogy than any I've seen here would be something like 100 people piling into an elevator with a designated weight limit, at the urging of a commentator who wanted to damage the elevator. Any individual act of getting into the elevator would not be unlawful or even, perhaps, tortious. However, each individual had the intent to damage the elevator, as did the commentator, and collectively they did so.

I would think this is not criminal, but clearly tortious.

Posted By : Nuke LaDouche

Also, I don't see the need to use the federal stat...

Message posted on : 2007-04-10 - 16:30:00

Also, I don't see the need to use the federal statute here. I know it's somewhat unprecedented, but I would think classic common law tort (as codified in state statutes, perhaps), would be sufficient. You have intent, you have causation, and you have injury.

It's also legal to pour water on the sidewalk (I think). However, if you urged a bunch of people to pour water on the sidewalk in front of a businessplace, in freezing temperature, because you wanted to show that business who was boss, and then injury occurred, you would be liable. I don't see how this is any different, other than the means of causing harm.

Posted By : Nuke LaDouche

I don't think the "buying up every copy" analogy w...

Message posted on : 2007-04-10 - 20:02:00

I don't think the "buying up every copy" analogy works at all. In that case, the "victim" actually receives revenue from all of the sales. Hurt me very much! This case is more like stealing every copy, only worse. It is a loss of revenue and increased costs--sort of like stealing all the copies and doubling the invoice for paper and ink.

Although "Coward" may not have intended to have his listeners cause the extent of damage that they did (knocked out for two days), that is probably not relevant. His intent to do harm-based on his own words and the explicit request to repeat the attack after he had actual knowledge that the first attack was succesful--is probably sufficient for liability to attach. It is not permissible to say "I only meant to hurt you this much so that is all I am liable for." You are liable for the damages you cause. If I was ESPN, I would be making a settlement offer to The Big Lead.

Also, I'm not sure why ESPN is getting a pass on the whole "we didn't have a policy against this" position. I've never seen an employment contract that every possible eventuality had to be spelled out or you couldn't discipline the employee. I call bullshit. I am sure that there is a general provision about "conduct unbecoming" or something that would allow ESPN to suspend (or worse) Coward if they wanted to. The fact that ESPN has chosen to do nothing is telling.

Posted By : Anonymous

Has anyone thought about the impact of losing fina...

Message posted on : 2007-04-10 - 20:05:00

Has anyone thought about the impact of losing final games on the coaches? Winning the last 4 out of 5 games in the NFL means a coach can keep his job...winning the last 4 out of 5 NBA games means nothing to a coach in the NBA
Posted By : Anonymous

How about player reaction? If your an NBA superst...

Message posted on : 2007-04-10 - 20:11:00

How about player reaction? If your an NBA superstar, do you really care if you get to rest an extra 15 minutes in a game that doesn't matter? Try pulling a star QB or RB in the final games (with incentive contracts) and playing only 1 game after a week of practice...you can bet they would go public and cause a PR nightmare.
Posted By : Anonymous

"Also, I'm not sure why ESPN is getting a pass on ...

Message posted on : 2007-04-10 - 21:14:00

"Also, I'm not sure why ESPN is getting a pass on the whole "we didn't have a policy against this" position. I've never seen an employment contract that every possible eventuality had to be spelled out or you couldn't discipline the employee."

Yes, yes, and yes. This is the argument I've yet to hear, but totally agree with.

As stated earlier, ignorance of the law isn't an excuse. Does not having a policy = Ignorance? To me, it does. Alas, I'm not a lawyer.

Quality read and I have enjoyed the comments. I think as long as this stayed in the realm of, "fuck you, Coward," or "let's think of a new name for him (Schrutebag)," this incident was going to get a whole lot of respect.

Anon II

Posted By : Anonymous

While it might be hard to say that a reasonable pe...

Message posted on : 2007-04-10 - 21:15:00

While it might be hard to say that a reasonable person would have known that his listeners would actually act on what he said, it would be very easy to say that after they had done it once, and he told them to do it again, that he should have known they actually would shut the site down again.
Posted By : Anonymous

eh gads...

"this incident was NOT going to ...

Message posted on : 2007-04-10 - 21:18:00

eh gads...

"this incident was NOT going to get a whole lot of respect.

Posted By : Anonymous

My deepest apologies. I have been referring to th...

Message posted on : 2007-04-10 - 21:50:00

My deepest apologies. I have been referring to the perp as "Coward" when I should have been using "Schrutebag."

Again, I apologize for this inexcusable error.

8:02pm

P.S. And, again, it's the second attack that should really hang Schrutebag.

Posted By : Anonymous

I heard that show--boy is it bad, but I was in the...

Message posted on : 2007-04-10 - 22:19:00

I heard that show--boy is it bad, but I was in the car and it was on...he doesn't seem to even like sports, but I digress. Cowherd and his producer (?) named Amanda discussed the then unnamed website and she mentioned that she went to it from time to time, etc. He then prepped the action. I'd like to know what words were exchanged prior to the show that led to the selection of The Big Lead and what, if nothing criminal, they thought they were doing. Listening to that show, I knew EXACTLY what he was doing.

Kent

Posted By : Anonymous

Outstanding post and great comments! I lean towar...

Message posted on : 2007-04-10 - 22:50:00

Outstanding post and great comments! I lean towards the "immediate impact player" theory. Since the NBA only can have five people on the floor at any given time and only 12 active players on any roster, the impact of a rookie is more easily identifiable than in other sports and can consequently drastically alter the success of a team. After all, the average number of players per NBA active roster is easily AT LEAST half of that of other pro sports leagues.

I can also see the point of view of those who believe that "nobody cares" is a valid argument. Given the fact that there currently exists a great chasm in skill level between the top NBA teams (Suns, Spurs, Mavs, Pistons) and other playoff qualifiers, many fans may prefer to see their teams tank the season and draft a more attractive prospect if a championship is not likely. This abnormal lack of parity in the NBA coupled with the near-mandatory requirement of prospects to play in college (thereby creating a deeper pool of proven college talent) has given rise to the sentiment, as Bill Simmons calls it, of "fantanking" - where FANS actively root for their teams to fail. Once parity returns to the NBA via the periodic redistribution of talent which takes place every decade or so, we should see less tanking and a more competitive atmosphere in games.

Posted By : Jason Chung

The NBA is a business and any suggestion that the ...

Message posted on : 2007-04-10 - 23:08:00

The NBA is a business and any suggestion that the weighted lottery system should be done away with is a dangerous proposition in that sense. Part of the success of major sports leagues is predicated on the events of the off-season. A quick look at NBA and NFL draft websites can show us that a significant amount of free advertising for the leagues is generated during the off-season. Thus the silver lining for horrible regular-season teams is that, at the very least, the off-season will bring a high draft pick and much-needed exposure and excitement to their team's product. Consequently, even badly run teams can keep themselves afloat financially via ticket and merchandise sales by invigorating their fan base by promising new talent and energy and trumpeting the prospect of better results in the near future.

This process is crucial as any sports league is as successful as its most poorest club.

Posted By : Jason Chung

I truly love this blog and visit often, but this p...

Message posted on : 2007-04-11 - 07:39:00

I truly love this blog and visit often, but this particular topic appears to me to be about little or nothing. All the provided 'evidence' regarding tanking is giving playing time to less than the best players on the team, after becoming ineligible for the playoffs. Well, that appears to me to be the best strategy for these teams to make future playoffs, regardless of the draft. Using the end of the season as an extension of training camp could reveal those suited for the next season's roster and provide needed experience. It also decreases the chance of losing the best players to injury in a meaningless game. IMHO, bigger issues include: NBA's bias towards marketable players; crushing of any of the players' free speech; and the retention of their monopoly by destroying all competition (women's, men's, and minor leagues).
Posted By : SkepSys

What would the host's liability/culpability have b...

Message posted on : 2007-04-11 - 09:25:00

What would the host's liability/culpability have been if he'd encouraged his listeners to call up a store constantly and keep their phones busy during business hours?
Posted By : Anonymous

Anon 9:25, that's the way I looked at it. It's li...

Message posted on : 2007-04-11 - 09:50:00

Anon 9:25, that's the way I looked at it. It's like telling 100 people to crowd into a small store (which prevents any actual patrons from being able to go in).
Posted By : SoFlaDave

From an organizational standpoint, the contract te...

Message posted on : 2007-04-11 - 17:43:00

From an organizational standpoint, the contract terms of top draft picks play an enormous role in the value of tanking. In the NBA, nearly every lottery pick is vastly underpaid relative to his performance for the duration of his initial contract. Lebron James, Carmelo Anthony, and Dwyane Wade have been among the best players in the league since their rookie seasons and were all selected in the top 5. Now in their fourth seasons, none of them rank among the four highest-paid players on their own teams. This is a product of the NBA salary structure, with fixed contract terms for first-round picks stipulating that even the #1 pick overall will fail to earn the amount of the veteran mid-level exception. Considering the immediate impact of top rookies in the NBA, this policy results in high draft picks having significantly more value than the vast majority of established veterans in the league.

This is not true of the other major sports. Rookie contracts for the top picks in the NFL draft are typically larger than any subsequent contract the player will sign. Though the impact of a standout prospect for the NFL is seemingly less substantial and less projectable than that of an NBA prospect, the pay scale reflects the opposite. By virtue of being drafted among the first few picks, Vernon Davis immediately became the highest-paid tight end in the NFL. He had just 20 receptions for 265 yards last year. Studies have shown that second-round picks in the NFL draft are actually more valuable to a franchise than high first-round picks, owing to the huge difference in contract terms and the relatively smaller gap in expected output. The MLB amateur draft is closer to the NFL draft in that the top picks are as much liabilities as they are assets. The teams at the top of the draft frequently refuse to select the best player available due to signability concerns. Given that the player is likely several years from making a contribution at the big league level, if he makes it there at all, the large signing bonus he commands can be difficult to justify.

If you look at the top draft picks in each sport on an impact v cost basis, it is clear that the NBA draft features a much better ratio from the team perspective. NBA rookies selected in the first few picks of the draft have a significant and immediate impact on the team's fortunes, yet they are very inexpensive relative to the league standards established by free agents. Essentially, every lottery pick signs a well below-market contract. In the NFL, the impact of top prospects is lower and the cost is substantially higher. There is no need for a lottery in the NFL to dissuade teams from tanking because there is no clear incentive to playing for a higher pick. Obviously teams would prefer to select a player they believe to be better, but the rapidly escalating contracts and the relatively lower and more variable contributions of the top picks in the NFL make tanking a questionable strategy. In baseball, the impact of a high draft pick is exceedingly low, to the extent that many of them never even become regular performers on the Major League team. The cost is not high relative to the contracts given to recently-drafted players in the NBA and NFL, but it is very high relative to the player's expected contribution to improving the team. Thus, there is little merit to tanking in professional baseball from this point of view. The NBA should experience much more of the tanking phenomenon because, unlike the NFL and MLB, its structure with regard to player salary and performance rewards it.

Jeff M

Posted By : Anonymous

A big explanation that is overlooked is time.

Message posted on : 2007-04-11 - 19:09:00

A big explanation that is overlooked is time.

The NBA season is so long that, with two months left, teams are already eliminated from the playoffs, practically if not mathematically.

In the NFL, a 2-6 start followed by a 7-1 finish can easily get you in the playoffs, and is not unheard of. By the time you've figured out that you're not going to finish the season on a tear, there's not enough time left to tank.

Teams do tank (playing youth for experience sake) in the NFL, but only for 1-3 games at most. Well, that's up to a fifth of the season, or 16 NBA games.

The NHL and MLB have long seasons, but the talent evaluation/impact player analysis kicks in there.

Posted By : Alan

Arent they similar. In both cases, there are white...

Message posted on : 2007-04-11 - 19:56:00

Arent they similar. In both cases, there are white and black people involved, and the White person is being attacked by the media for something he did to the black person. I am not condoning what Imus said, but Ithink in both cases there was judgements made too quickly.
Posted By : Anonymous

The NFL plays only 16 games in its regular season,...

Message posted on : 2007-04-11 - 20:00:00

The NFL plays only 16 games in its regular season, meaning that "ties" for a particular draft pick are much more commonplace than in other sports. Then their byzantine tiebreaking system kicks in. Therefore "tanking" in the NFL is no guarantee that you'll get the draft pick you want.

So why, then, isn't "tanking" an issue in Major League Baseball, which plays even more regular-season games? First, for all we know they are tanking, but still occasionally win anyway. Even the worst MLB teams can typically be counted on to win at least one-third of their games. Blind squirrels finding the occasional acorn and all that. Teams in sports that play fewer games naturally have fewer opportunities to stumble upon those acorns.

Another factor is that in team sports, late season is when bad teams typically empty their benches and call up prospects from the minors to see how good those players are. Those players obviously have every incentive to play hard in order to impress their coaches and team execs. The thing is, the NBA doesn't have a traditional minor-league system, and NBA teams have only seven non-starters, as opposed to over forty per NFL team. Hence, NBA starters have less competition for late-season playing time than their counterparts in other major leagues.

Posted By : Joshua

did the old system that guaranteed that the nba te...

Message posted on : 2007-04-11 - 21:05:00

did the old system that guaranteed that the nba team with the worst record would receive the number one pick actually encourage less, rather than more tanking? under the current system, sure the worst team is not guaranteed the number one pick, but now, all of a sudden, there are a bunch of teams that can get a shot at the number one pick, and vary their chances on getting that pick depending on how bad they are. I seem to recollect that in the old system there were generally only two teams fighting it out for worst. at the very least, it seems to me that the press in more cities now talk about tanking because more teams have a shot (however small percentage-wise) at that number one pick
Posted By : bob r. uncle

While I am inclined to economic explanations, I th...

Message posted on : 2007-04-11 - 21:46:00

While I am inclined to economic explanations, I think you cannot avoid a cultural dimension to this analysis. The NBA is just a different animal than, say, MLB. To see why, just go to their games. In the NBA, the sports presentation is immersed in a whole set of other entertainment. Half court shots, sumo-suit wrestling, what have you. As a result, the pure sports aspect of it is diminished and, with it, I think the basic ethos of sportsmanship. This is exacerbated by the chipping away of basic rules of the game (the lack of travelling calls, for instance). In the end, the NBA functions as pure entertainment, and as a result the players and teams take the RESULTS of the games far less seriously.

MLB is a very different kettle of fish. It is the most pure of any of our major sports. No TV timeouts, for instance. I think this contributes to a far more pervasive ethos of sportsmanship within the game. Even UNsportsmanlike behavior (plunking the other team after a HPB or scuffing the ball) has its own implicit code of conduct.

Posted By : George

I don't think they're at all similar. The Duke cas...

Message posted on : 2007-04-11 - 21:47:00

I don't think they're at all similar. The Duke case was continuously pursued despite a complete lack of evidence and the team was demonized solely on the base that they were privileged athletes. Conversely, Imus stated outright on the RADIO a blatantly racist comment directed towards a group of female student-athletes that did not deserve it. The only thing the two have in common, which is pointed out in the blog post, is that the two groups were undeserving of the criticisms/accusations/comments they received.
Posted By : Anonymous

My bad, I meant to say "I don't think THAT makes t...

Message posted on : 2007-04-11 - 21:48:00

My bad, I meant to say "I don't think THAT makes them at all similar". There are obviously similarities; I just don't think that judgments on Imus were made "too quickly".
Posted By : Anonymous

The NBA is completely different in a way you may h...

Message posted on : 2007-04-11 - 22:33:00

The NBA is completely different in a way you may have missed here. As noted in this and many of the other articles, the NBA is a superstar league, the best players on each team are far more impactful than the best players in other sports, both in terms of winning, and losing. It is much easier to tank an NBA game, all you have to do is bench or list as "injured" your best two players to essentially guarantee that your team will lose.

In the NFL, tanking could only truly occur if the QB is involved, or perhaps the running back for some teams. In baseball, teams play too many games, and the rewards for individual acheivement are far too obvious for players to just abandon hitting .300, or 30 home runs, or 15 wins so that the team could somehow draft better.

In the NBA, if Jordan wanted the Bulls to lose, they'd lose, regardless. All the coach has to do, (or GM, or owner), is convince the team's better players that they are better off blowing this season off and trying to get the best player available in the next draft.

Posted By : John J Perricone

Also, from my understanding of the situation, the ...

Message posted on : 2007-04-11 - 22:39:00

Also, from my understanding of the situation, the Rutgers players were already a story because they were underdogs who overcame adversity and won the women's championship. Imus then insulted them.

Duke's situation had nothing to do with anything that occurred on the field, but rather an ill-planned party.

Posted By : Anonymous

Re: the "impact players" thesis.

Basketball...

Message posted on : 2007-04-12 - 00:47:00

Re: the "impact players" thesis.

Basketball is an individual sport disguised as a team sport. Baseball, at least for hitters, is more of a team sport, while top baseball pitchers have the the individual impact one sees in basketball. Football is a game of teams, not talented individuals.

Proof? Consider the impact of one player joining a team in the NFL, MLB and the NBA.

Rare indeed is the free agent signing or draft choice that transforms an NFL team from 2-14 to 14-2.

Baseball lies between football and basketball when it comes to the impact of one player.

The best MLB pitchers are more like NBA players (rare), while MLB hitters have more in common with football players (fungible).

Major league hitters who fail seven out of every ten times at bat are superstars. Major league pitchers who lose seven out of every ten starts soon become minor leaguers.

Sign an accomplisher pitcher like Jack Morris or a Curt Schilling and win a World Series. Sign an accomplished hitter like Alex Rodriguez and win zero World Series championships, at least to date.

Individuals matter in basketball, at all levels of the game, the way pitchers do in baseball. One right guy can turn your team into an instant title contender.

One player can get a high school coach a major college job (see Jarvis, Mike). One player can help a college coach get a far better job next season. And one player is a big step toward an NBA championship.

This is why basketball is so consumed by recruiting and free agency: one player really can make all the difference.

Posted By : Jim

Good site would be back soon.. for more on law rel...

Message posted on : 2007-04-12 - 06:20:00

Good site would be back soon.. for more on law related articles and books you can reach me at

Law Articles and Books

Posted By : Anonymous

I hate to say it, but I think The Big Lead would h...

Message posted on : 2007-04-12 - 09:48:00

I hate to say it, but I think The Big Lead would have a hard time getting damages in a civil claim. Sure, they lost two days worth of ad revenue. But they've also undoubtedly seen a spike in traffic since. Depending on their ad agreements, they probably have actually made more since this incident, and the worldwide leader would be sure to point that out.

I think the FCC is the only logical route for any legal action.

Posted By : Hawkeye State

Bill Simmons (ESPN's the Sports Guy), original...

Message posted on : 2007-04-12 - 09:54:00

Bill Simmons (ESPN's the Sports Guy), originally a Boston sports writer, has been discussing the NBA's tanking phenomenon for the past couple of months on his basketball blog (http://sports.espn.go.com/espn/page2/blog/index?name=simmons). Yesterday, he wrote an article in response to the Celtics-Bucks game in which he proposed a system to eliminate tanking in the NBA (http://sports.espn.go.com/espn/page2/story?page=simmons/070411&sportCat=nba).
Posted By : Wes

I'd be innocent too if the police didn't show at m...

Message posted on : 2007-04-12 - 09:55:00

I'd be innocent too if the police didn't show at my house for 48 hours after the a police report was filed.

It's always amazing to witness facts get tossed to the wind when the "machine" begins its insidious whirring.

Posted By : D-Wil

I'd be innocent too if the police didn...

Message posted on : 2007-04-12 - 10:21:00

>>I'd be innocent too if the police didn't show at my house for 48 hours after the a police report was filed.

It's always amazing to witness facts get tossed to the wind when the "machine" begins its insidious whirring. <<

Yes it has been conclusively established that within 48 hours you can change your very DNA to prevent tying you to multiple contributers of DNA and hack into bank computers to create fake ATM photos and records showing one identified perpertrator being at a different location at the time of the crime and then use mind control to get the victim to be incapable of telling a consistent story.

The Duke situation was very different to me from Rutgers. With the Duke case many were ready to rush to judgment because of stereotypes about rich boys at a rich school. We've all seen the movies, Animal House, Revenge of the Nerds, and so on that play to that stereotype. The claims made fit a preconceived notion so it obviously must be true. Around Duke it was probably more likely to ring true because of resentment toward the outsiders. A case less about race and much more about class and status. I grew up in a small community with a private college and know there was a great deal of resentment against the students who arrived from all over the country. I'm told that in the most recent election that one county office was determined by a run-off election where one candidate went negative by bringing up the fact the opponent (and eventual narrow victor) was a graduate of that college.

Rutgers, a very different situation. One person sparked a firestorm that took away from one of the better feel good stories in sports recently. Unlike Duke, very little division in public opinion, the statements have been rather uniformly condemned with debate centering on what the appropriate consequences should be and whether Imus should be at the center of a firestorm for saying things that can be heard in "comedy" shows and in popular music without drawing any notice.

Posted By : Mark F

What have we learned? Well, I've learned that peop...

Message posted on : 2007-04-12 - 11:31:00

What have we learned? Well, I've learned that people outside of Pajamas Media still use the term "liberal media" with, apparently, no irony whatsoever.

Who knew?

Posted By : Collin

How about this: Locals vs. Outsiders.

The ...

Message posted on : 2007-04-12 - 13:20:00

How about this: Locals vs. Outsiders.

The basketball team was made up of mostly local girls from NJ & NYC. So Imus attacked the New York, New Jersey Community, Rutgers Alumni not just the girls.

The Duke players are from all over the country, and the victim was local. If Duke and their students did a better job with the community, this would not have happened.c

Posted By : Michael

Reason #1 tanking doesn't seem to occur in the NFL...

Message posted on : 2007-04-12 - 17:12:00

Reason #1 tanking doesn't seem to occur in the NFL: because there are too few games. If a team tanks the last 3 games, no one notices.

Reason #2: Very high draft picks cost WAY too much in the NFL to sign. In the NBA, there's a rookie cap. No such thing in the NBA.

Reason #3: 22+ players are starters in the NFL, while only "5-6" are starters per team in the NBA. So a top pick is - 20% of your team, while in the NFL its just - 5%. So in the NFL the experience of winning outweighs the improved level of play by getting a top tier player.

Also be aware: the NHL has tanking all the time!

Posted By : Anonymous

why do they tank? its simple, just think about it ...

Message posted on : 2007-04-12 - 18:26:00

why do they tank? its simple, just think about it in a pie chart diagram. nba has 5 players on the floor meaning each player has a value of 20% of the pie, baseball has nine meaning a value of 11.11% & football has 11 players at a time meaning a value of 9.09%. but you have to figure offence & deffence so you might even consider cutting that in 1/2 and making it 4.54%. There is the answer, one player in basketball has a larger significance on a playing field thank in any other sport.
Posted By : beto_42

I'll add my one and only reason I think tanking ha...

Message posted on : 2007-04-12 - 18:34:00

I'll add my one and only reason I think tanking happens more in basketball than in football or baseball. I think it is mostly because you can evaluate pro basketball talent to a much higher degree than you can football or baseball. In baseball, if you land the #1 pick, you have about a 5-10% chance of your guy being even a very solid major league player. As Billy Beane once said, if 3 picks out of your 50 make the big leagues then it was a success.

In football, the draft is a huge crapshoot as well, but there you find more hits in the first round than baseball. Still, the fact remains that in football there are multiple guys drafted after round one that go on to pro bowl careers.

But in basketball, the talent is very well identified at the top. Consider that from 1997 to 2003, only two college guys made the allstar game picked after the 15th pick(Redd, Arenas). Even better, go back and look at picks 16-30 and tell me how many of them play meaningful minutes in the NBA. The second round is a wasteland of players who aren't in the NBA anymore. The only guys who fall late in the draft and do well are over seas players and the occassional high schooler. Still, there are only 3 of those(AK 47, Parker, Ginobli) and one high school guy who fell late(Harrington). Yes, the draft still has busts, but most of the all star picks come in the top 10 and even more in the top 5. This means that in order to really land yourself a franchise guy, you need to be in the top 10, but probably more in the top 5 to have a chance to get a great player. There is very little chance of the 12th or 13th team getting a great player, so as a franchise you are much better off being terrible than mediocre.

Posted By : Anonymous

Sometimes the tanking seems to be obvious. Howeve...

Message posted on : 2007-04-12 - 20:06:00

Sometimes the tanking seems to be obvious. However, I know of one instance when it was the de facto institutional plan.

I lived in Cleveland the season prior to the draft of LeBron James. During that season, I watched or listened to portions of 60-70 games. Even though the Cavs were creamed during many games, the team always appeared to play its best.

The trick was that management did not have a very good team. While Zydrunas Ilgauskas made the all-star team, he was injury-prone that year. Carlos Boozer was drafted and made an impact. Otherwise, the players were below average (and mostly gone from the team the following season). Also, they had a mediocre coach in John Lucas. To help ensure the "tank" they replaced Lucas with assistant Keith Smart. Lucas and Smart both did their best, but they knew they would be out of their jobs by the end of the year.

Granted, Cleveland's situation with LeBron was unique. LeBron was from Akron (40 minutes from Cleveland) and therefore, a hometown player. Local talk shows were promoting LeBron from his freshman year of high school. During the "tanking" season, all the talk shows were talking about the tanking in a wink, wink, nudge, nudge sort of way. One host even railed against the Cavs for winning the meaningless final game of the season that put them into a two-team tie for the league's worst team.

In the end, Cleveland won the lottery (and LeBron). Therefore, the behavior was vindicated. It shows that to get ahead in the NBA, you have to strip your team of all talent and build around your superstar draft pick.

Posted By : Hutch

There's also a "prepare for next season" component...

Message posted on : 2007-04-12 - 20:53:00

There's also a "prepare for next season" component. If you are a team that has no prospect of reaching the finals then it becomes rational for a coach/front offie to make decisions about what will be good for the team next year as opposed to this year, regardless of draft considerations.

1) If you have a superstar with a nagging injury and you do not have prospects of reaching the finals you are better off giving that superstar enough time off to fully heal than risk serious aggravation of that injury.

2) There's incentive for the coach to give more game time to young up and coming players over established veterans, especially over veterans who won't be around next year for whatever reason.

On the cost-benefit analysis it costs you little this season (you're not making the finals anyway) and the benefits can be very significant for next season (your current players will be better next year).

Posted By : Anonymous

These answers are all great and well thought out. ...

Message posted on : 2007-04-12 - 23:07:00

These answers are all great and well thought out. I'll submit one more, sport-specific: In the NFL, if you tank, you risk serious injury. If a running back hits a hole slow or wide receiver runs a lazy route over the middle they both risk ending their careers right then and there. In baseball, each play is so focused on one player and the margin for error is so small. It would simply be impossible for a batter to slow down on his swing and not have the world notice. Same with a fielder not hustling out a ground ball or fly ball. There will always be lazy players, but certainly no one could tank in baseball without it being noticed.
Posted By : Brian

Tanking happens in every sport, every job, every a...

Message posted on : 2007-04-13 - 04:47:00

Tanking happens in every sport, every job, every aspect of life where the incentive to work with other people to a specific goal becomes futile. Players do it playing more lazily, stupidly, and selfishly. Management assists by "shutting down" key components to the future of the team when they can.
NFL teams sit their starters the last game of the season when their playoff outcome becomes locked, how is that any different? They are in effect saying "Why bother trying to win this game? It doesn't matter."
Try this one as well: this September, find a MLB team that is out the race and compare their current roster with that of their opening day roster. At least half the starting lineup will be different. NHL as well, since both sports comprise the "minor-league system."
The question is why the NBA is the one sport that gets vilified for it.

Posted By : Yo Yo Mother

Great point.

Outsider perceived rich kids c...

Message posted on : 2007-04-13 - 07:23:00

Great point.

Outsider perceived rich kids come to town and they aren't going to have the support of the community and at least down here in the south, folks just aren't overly sympathetic to you for a bad result when you hire a stripper for your party.

Imus on the other hand attacked the local pride and joy.

Posted By : Mark F

I think a whole bunch of this is a matter of pure ...

Message posted on : 2007-04-13 - 08:11:00

I think a whole bunch of this is a matter of pure perception. A few things.

1) With the NFL seeming more physical, people are more willing to buy into dubious injuries. If someone sits out an NBA game with a sore knee, people shout "tank". Not so with the NFL, even though that's probably not fair.

2) The size of NBA teams, combined with the "superstar" factor make people notice who exactly is playing. In the NFL, who notices whether someone is sitting their right guard? While most fans know the normal lineup for their MLB team, sitting players is expected due to the extreme length of the baseball season.

Due to these two factors, tanking behavior is MUCH easier to hide in the NFL. There may be more tanking in the NBA, but I don't think the difference is as great as we think.

Posted By : Josh Hitch

Hey Mike this is a favoire topic of mine, however ...

Message posted on : 2007-04-13 - 09:26:00

Hey Mike this is a favoire topic of mine, however I cannot make it. Do you think you could give a description of it when it is over?
Kenny

Posted By : Anonymous

I have not read all the comments, so I hope I am n...

Message posted on : 2007-04-13 - 10:00:00

I have not read all the comments, so I hope I am not being redundant, and on that great start to a comment let me begin. It was stated earlier by another reader that NBA players, like football players do not want to hinder future individual successes by intentionally tanking, and thereby damaging their stat line. There are two reasons I believe that this argument explains a NFL players, but not a NBA players reluctance to tank.

Firstly, in the NBA, as in Major League Baseball, there are a whole lot of games, as a result one stats normalize over the course of a season. One poor shooting night will not damage a player's field goal percentage significantly, just like an 0 for 5 night by a hitter in baseball will not significantly impact his batting average. However, in the NFL, with only 16 regular season games, one poor game, or even one poor offensive possession can impact a player's stat line quite significantly. Also, with only 16 games, each game is extensively scrutinized by the entire league during the week, which would explain a defensive player's reluctance to tank a game. This, added in to the incredible player turnover from year to year, and the importance GM's place on a player's game film, and stat line, essentially eliminate tanking from the equation, where one play could mean the difference between a signing bonus, and a real world job.

The second reason a player in the NBA is able to tank without affecting his stat line, is that a player can try his hardest over the course of the game, and then simply miss a free throw in the closing seconds, or throw the ball away, or barely miss a shot. His stat line is undamaged, and over the course of a long season few will remember or care about a missed shot, with five minutes to go in the game. Even last second shots; clutch performers are created during great clutch moments. Hitting a shot in the closing moments of game 61 on the second night of a back to back on the road is hardly a great clutch moment.

Lastly, for those who say that tanking in basketball hurts an individual because it brings higher talent on the floor, thus limiting minutes, is missing a very important point. It is a given that the NBA is a superstar driven league, so from that it can be said that it is basically unimportant what the other players do, because the teams superstar, and every team has one, perhaps go to guy might be a bit more appropriate, will have the ball in his hands at the end of the game. You give me Jordan, I'll give you Pippen and Rodman. You give me Shaq, I'll give you Kobe and Fisher, and Fox. I'll give you Kevin Garnett, and I'm pretty sure he would absolutely love to give me Greg Oden.

Firstly, in the NBA, as in Major League Baseball, there are a whole lot of games, as a result one stats normalize over the course of a season. One poor shooting night will not damage a players field goal percentage significantly, just like an 0 for 5 night by a hitter in baseball will not significantly impact his batting average. However, in the NFL, with only 16 regular season games, one poor game, or even one poor offensive possession can impact a players stat line quite significantly. Also, with only 16 games, each game is extensivly scrutinized by the entire league during the week, which would explain a defensive players reluctance to tank a game. This, added in to the incredible player turnover from year to year, and the importance GM's place on a player's game film, and stat line, essentially eliminate tanking from the equation, where one play could mean the difference between a signing bonus, and a real world job.

The second reason a player in the NBA is able to tank without affecting his stat line, is that a player can try his hardest over the course of the game, and then simply miss a free throw in the closing seconds, or throw the ball away, or barely miss a shot. His stat line is undamaged, and over the course of a long season few will remember or care about a missed shot, with five minutes to go in the game. Even last second shots; clutch performers are created during great clutch moments. Hitting a shot in the closing moments of game 61 on the second night of a back to back on the road, is hardly a great clutch moment.

Lastly, for those who say that tanking in basketball hurts an individual because it brings higher talent on the floor, thus limiting minutes, is missing a very important point. It is a given that the NBA is a superstar driven league, so from that it can be said that it is basically unimportant what the other players do, because the teams superstar, and every team has one, perhaps go to guy might be a bit more appropriate, will have the ball in his hands at the end of the game. You give me Jordan, I'll give you Pippen and Rodman. You give me Shaq, I'll give you Kobe and Fisher, and Fox. I'll give you Kevin Garnett, and I'm pretty sure he would absolutely love to give me Greg Oden.

Posted By : David

Hi Kenny,

Thanks for your note and you sugg...

Message posted on : 2007-04-13 - 10:42:00

Hi Kenny,

Thanks for your note and you suggest a very good idea on a recap after it's over. I will write one and publish it the next day (Thursday of next week).

Posted By : Michael McCann

There's plenty of tanking in the NHL when there's ...

Message posted on : 2007-04-13 - 11:46:00

There's plenty of tanking in the NHL when there's a can't miss superstar in the upcoming draft. The Penguins tanked to get Lemieux (the general manager at the time, Eddie Johnston, even admits this). Ottawa and San Jose were expansion teams at the time, but they raced to finish last in order to get Alexander Daigle, who was perceived to be a can't-miss superstar, with Ottawa's owner reportedly saying, "it's in the bag, boys" after they clinched the #1 pick. Quebec tanked to be able to draft Eric Lindros, which prompted the NHL draft lottery. If there had been a 2005 season, you would have seen teams going down quicker than a two-dollar hooker.

Here's what I don't remember. Was there any tanking to draft Shaquille O'Neal? Seems like there would have been, but I can't remember it.

Posted By : Mone Peterson

Something else that hasn't been mentioned here is ...

Message posted on : 2007-04-13 - 20:07:00

Something else that hasn't been mentioned here is that the difference between the upper echelon players and the weaker players in the NBA is much much greater than in other sports.

In the NFL, the backup QB is completely capable of throwing for 300 yards and 3 TDs. The backup RB can break out at any time. The Denver Broncos have proven that running backs are basically interchangeable in the NFL anyways. Drew Bledsoe and Trent Green (on multiple occasions) would like to point out that a backup who never got a chance can come in and turn out to be better than the starter. There is nobody on the Lakers bench who can step in and take Kobe's place. As the Celtics proved this year, without Paul Pierce, they couldn't even luck their way into a win. Watching the Suns play without Steve Nash is almost depressing to watch.

The point here is that in the NBA if you sit or otherwise handicap your best players, you stand a much higher likelihood of losing. In the NFL it's much harder. The backup could (and probably will) come in and give you 90% of the starter's performance.
Plus the NFL requires advance notice when you're going to sit a player because of injury/discipline reasons. Meaning that if you planned to tank an NFL game by saying that LaDanian Tomlinson, Antonio Gates and Phil Rivers were all "nursing injuries", first off there would be a huge investigation into it by the league (probably controlled by gambling interests) and a giant advertisement that you are planning to lose this game. Neither of which would fly well.

Since sports are so driven by money and players are so driven by contracts, expecting the players to tank a game is going to be pretty complicated. Someone is going to give his best effort trying to cash in, pad his stats or whatever. The decision to tank in terms of gaining higher draft status comes from above. Since the NBA is most easily influenced from above, it will have the most tanking.

Also while I'm posting I wanted to address MLB tanking. As other people have said, since the MLB draft is such a crapshoot, nobody really cares if a team wants to tank to get the 1st pick. Most of the biggest stars in the game weren't drafted first. Looking at the list of #1s might surprise you. Some never made the majors, others were subpar pros at best. For every Griffey or A-Rod, you get 3 Brien Taylors.
http://en.wikipedia.org/wiki/List_of_MLB_first_overall_draft_choices

Posted By : Viscant

Maverick LeBron's agent? I'm not sure about that. ...

Message posted on : 2007-04-14 - 01:57:00

Maverick LeBron's agent? I'm not sure about that. He's the marketing director and CEO.

Leon Rose represented LeBron during his recent contract negotiations, didn't he? Maverick just handles the marketing aspects through their company.

Posted By : Lachlan

Great article. I have linked to it at my website, ...

Message posted on : 2007-04-14 - 12:57:00

Great article. I have linked to it at my website, The Legal Scoop, which can be found at www.thelegalscoop.com

Thanks for all the great posts...
Scott

Posted By : Scott

Mark F-
Given the circumstances surrounding the...

Message posted on : 2007-04-15 - 00:43:00

Mark F-
Given the circumstances surrounding the crime - and I do believe there were sex crimes committed by Duke lacrosse players that night - your argument is specious, at best.

I have never seen a district attorney draw inferences concerning a sex-crime case where there is potentially plenty of evidence as did Mike Nifong without some evidence of wrong-doing; and I challenge you to do so.

I never heard the results of the testing of the prophylactics found in the bathroom trash can at the house - did you? I never heard the DNA results of any of the other objects initially thought to be used in the rape - did you? Those are just two obvious questions.

Then we turn to the "dance partner's" table-turning 60 Minutes portrayal of that night. I need to only comment on this one portion of her tale to show the vast potential for her "tale" of the evening to be just that: this woman felt physically threatened by the young men in the house, stopped dancing, dressed, and began to leave the house with the rape accuser.

Then she somehow allowed her trashed partner to talk her back into the house against her own fear, because, as she said, her partner said there's more money to be made (as if this didn't occur to her already). Wait, I'll add something else from her tale. She described her dance partner as sober one minute and inexplicably drunk a scant few minutes later. This has all the signs of "date-rape" drug; plus she remembered that her partner was given a couple of shots by the young men - shot which she refused to drink... hmmmmm.

Finally, I'll turn to the media portrayal of the accuser with a question: How often did you hear the accuser described as a single mother and full-time student at North Carolina Central University who worked as an exotic dancer to care for her child and pay for tuition? Hello??? When did you say - never? I thought so.

From the basic premise that the investigation was botched from the beginning - as an aside, if Nifong pursued the case, the first mal-conduct he'd have to address is that of the Durham police force - and that media images grossly swung support toward the lacrosse players, I surmise that a whitewash - no pun intended - was in effect.

Posted By : D-Wil

Just would like to add a few comments;

The ...

Message posted on : 2007-04-15 - 12:36:00

Just would like to add a few comments;

The draft is so important not just because it contains that ugly U-word, "upside" which goes far beyond just putting a superstar on the court and fans in the seats. Look carefully at the teams who have won championships recently, they all have a superstar sure, but they also have the most affordable veteran position players. Veterans who havent won flock to superstar teams for a chance at a title. Robert Horry and countless others to the Spurs, Shaq to Miami with Wade, Malone and Payton to the Lakers a few years ago. Those moves have major ramifications. Organizations know that if you can get an impact player, you will win the free agency war and get great players for cheap. Cleveland has been trying to do this with LeBron and its beginning to show some results as he improves. Obviously this has limits though - see Kevin Garnett freezing by himself in Minnesota.

Secondly, basketball is about 5 guys on a court, not 9, 11, or 12. You can look at a team like Boston and know immediately that adding a 6'8 power forward will win them 10 more games in the East. The NBA is not a parity league like the NFL where for all we know the Bengals could win it all next season.

So, tanking although hard to stomach is a chance you take when you cant see any other way to improve your team in the long run. When you are over the cap, stuck in long contracts with young players who arent developing, ala Boston, I guess you take that risk. Or you end up like the Knicks, surfing the bowl of mediocrity wishing they hadnt given up picks just to tread water.

Posted By : Suedesstar

I still have a tough time believing that tanking i...

Message posted on : 2007-04-15 - 13:56:00

I still have a tough time believing that tanking is a rational choice. I just don't know if the improvement in odds you get from finishing an extra spot worse is actually worth it. If they use the same weighting as last year then the Celtics just clinched having a 19.9% chance instead of a 13.8% chance. Attendance, merchandise, TV ratings, goodwill, heck even the teams overall value (or at least it's growth rate) could take a hit. Is that really worth a 19.9% shot at the top pick? Granted there is two potential stud types in this draft, but the odds of getting either aren't great, and neither of them is a lock to be a franchise saver.
Posted By : Anonymous

I would love to be there, unfortunately I cannot. ...

Message posted on : 2007-04-16 - 11:50:00

I would love to be there, unfortunately I cannot.

I hope the sanity of this discussion remains intact. To dissolve into an Imus thing would be unfortunate.

Jason is surely making his rounds.

I hope he uses this exposure to truly work on solutions instead of calling out his own race (I'm holding Blacks accountable too), in such a polarizing fashion.

I'm not so sure he has the back bone to do this. I hope I'm wrong.

Posted By : Michael Tillery

Just remember everyone--

(a) Remember when...

Message posted on : 2007-04-16 - 13:58:00

Just remember everyone--

(a) Remember when Tim Duncan came out? These same Celtics (under the incompetent Danny Ainge) had TWO picks in the lottery, their own at #1 or #2 and a pick by trade at about #10-11 . . . and MISSED on both counts (the Celtics' own 1st-round pick ended up being a #4 after the lottery).

(b) Remember also that the Denver Nuggets had the worst record in the NBA TWICE(!!) and ended up with the #4 pick . . . TWICE.

(c) On the other hand, Orlando had ONE ball in the draft one year . . . and ended up with #1 overall (Shaquille O'Neal).

So there is NO guarantee that "tanking" will get the #1 overall pick or Kevin Durant (at the time I write this, Greg Odin had not decided on declaring for the draft).

As for possible punishment on the Celtics . . . how about loss of three #1 picks (including this year's), $2.5 million, and the requirement to fire Ainge?

Melvin H.

Posted By : Anonymous

One factor you left out is how physically difficul...

Message posted on : 2007-04-16 - 14:34:00

One factor you left out is how physically difficult it is to tank in the NFL. By that I mean, you can't play football half speed, or you will get hurt. Basketball you can. NFl also will have a hard time starting a team full of second string guys, as the Celtics and Bucks did recently, because without having played cohesively and NFL team could barely function without significant practice time as a unit. The respective all-pro/all-star games are a good example. The NFL pro-bowl has always been and always will be a joke, because the players are going half speed and the schemes are so simple. Meanwhile the NBA all-star game is traditionally an exciting game (although recently its been bad for other reasons). you can throw 5 guys together and play a cohesive, interesting basketball game, with minimal effort. Doesn't work in the NFL which is why its basically all or nothing all the time in the NFL.
Posted By : Anonymous

Why didn't the TSSAA moot this issue by banning sp...

Message posted on : 2007-04-16 - 16:29:00

Why didn't the TSSAA moot this issue by banning spring practice altogether?
Posted By : Anonymous

How does the age limit relate to the topic being d...

Message posted on : 2007-04-16 - 16:38:00

How does the age limit relate to the topic being discussed? Is the argument that NBA enacted the age limit in part because younger players were more likely to engage in inappropriate on/off-court expression?

Also, I hope the panel discusses the NFL's recent disciplining of Pacman Jones and Chris Henry. I'd be interested to hear how NBA players (or at least their representatives) view the punishments.

Posted By : Anonymous

Terrific post here. These explanations are bang on...

Message posted on : 2007-04-16 - 20:07:00

Terrific post here. These explanations are bang on.

I have a Toronto-area sports blog of my own and was working on a tanking post when I stumbled upon your piece. I'll definitely add your blog to my list of links. Please feel free to do the same with mine.

http://thesplog.wordpress.com

It's in the early stages but feel free to check it out and let me know what you think.

Keep up the solid writing,
Josh

Posted By : Josh Gold-Smith

The TSSAA did change the spring practice rules by ...

Message posted on : 2007-04-16 - 20:55:00

The TSSAA did change the spring practice rules by preventing non-students from participating (while continuing to allow spring practice). But that does not moot the case because a) Brentwood is challenging a previously imposed punishment, rather than challenging the existence of the rule ad b) Brentwood is seeking monetary damages, which cannot be mooted by defendant's change of policy.
Posted By : Howard Wasserman

I am still of the opinion that tanking at an indiv...

Message posted on : 2007-04-16 - 22:21:00

I am still of the opinion that tanking at an individual level is irrational, but I can't really argue with this comment. And yes, Gomes needs a PR man bad.
Posted By : Garrett

Thanks for the case links, the distinctions drawn ...

Message posted on : 2007-04-16 - 23:24:00

Thanks for the case links, the distinctions drawn between Brentwood and Tarkanian are interesting.
Posted By : Mark

Genetic counseling and sickle cell disease

...

Message posted on : 2007-04-17 - 07:25:00

Genetic counseling and sickle cell disease


We at The Patient Connection are currently running a research blog or online discussion on the subject of the subject of genetic counseling and sickle cell disease

In particular we are interested in your experience of genetic counseling or those of family members

We would love it if you could share your story or just post useful resources for fellow sufferers.

If you would like to join us please go to

http://www.thepatientconnections.com/blog.asp?uid=31

Thanks and remember your opinion counts

Best wishes

Belinda

PS The link will give you an option to join our formal research community and participate in research into the opinions of the sickle cell community later on in the year.

Posted By : The Patient Connection

Someone may have already said this, but I think th...

Message posted on : 2007-04-17 - 11:25:00

Someone may have already said this, but I think the question should be phrased the other way around. That is: why doesn't tanking occur in other leagues? This especially goes for the NFL, where the selection of high draft picks is immensely important (e.g, first pick and Super Bowl champion Peyton Manning), and there is no minor league system so top rookies (besides quarterbacks) are expected to contribute almost immediately.

I think this is because there are so many coaches and players in the NFL, that a large number of them are marginal. They have no job security, and thus every game is, in essence, an audition for future employment. So marginal players unestablished coaches have a huge incentive to perform as well as possible every game.

In baseball, the answer to why tanking doesn't occur is simple--the reward for tanking is too delayed. First round draft picks hardly ever produce immediate results, and instead toil away in the minors. And because so many draft picks never pan out, moving up a slot or two is not seen as very important. Also, baseball success is largely measured by personal statistics, given every player constant motivation to personally perform well, regardless of how poor their team is.

Posted By : Mr.Man

A few people touched on it, but I think the bigges...

Message posted on : 2007-04-17 - 13:40:00

A few people touched on it, but I think the biggest reason for the difference in tanking is the difference between the two leagues salary caps. In the NBA there is the rookie cap (mentioned previously) as well as a cap on veteran players. I don't think the rookie cap makes that much of a difference because in the long run, you are only paying that rate for a couple of years. The veteran cap however, makes the elite players much more valuable. Also, since the current team can pay about 10% more to sign their own free agents than other teams. This makes it that much easier for teams to keep their own elite players coming off of rookie scale contracts. Compare that to the NFL with no individual player cap and a hard cap. This forces players salaries to be more in line to what they can do for your team. This also makes it more likely that you will have to cut your own great draft picks because you can't afford them anymore (see Edgerin James). I can't think of one time this has happened in the NBA.
Posted By : b1gdon

Listen... I think the biggest reason that tanking...

Message posted on : 2007-04-18 - 01:23:00

Listen... I think the biggest reason that tanking is talked about a lot in the NBA is due to the reason that the NBA draft has only two rounds. In other words, a team only has two chances on getting the right player(s) for itself. The NFL has 7 or 8 rounds (remember, Tom Brady was a 6th round draft pick) and MLB has an INSANE amount of rounds. And of course, MLB makes players go through the minor leagues, so there really is very little immediate help (not to mention that MLB's draft occurs in the middle of the following season instead of the off-season, and as such, there is no "automatic big name" that a team would be going for). In addition, teams in the NFL who are drafting high need a LOT of help at many positions, so while drafting an elite QB or RB may help, in most cases, the immediate impact will be small. In the NBA, however, fewer players on the court means more individual impact per player. Put together a) less margin for error in the draft and b) more individual impact per player, and you have a recipe for tanking games.
Posted By : powerofk

I think you are spot on in asking these questions....

Message posted on : 2007-04-18 - 12:34:00

I think you are spot on in asking these questions. I will be interested to see how long Tank Johnson will be suspended for. One would think that after the pacman suspension that Tank would be looking at upwards of a two year suspension since at this moment he is in prison while Pacman has not been convicted of anything yet. Goodell might have backed himself into a dangerous precedent of such severe penalties.
Posted By : Nick

How will the new NFL player conduct policy apply t...

Message posted on : 2007-04-18 - 14:06:00

How will the new NFL player conduct policy apply to players who have already had multiple run-ins with the authorities? Will there be any retroactive measures taken for someone like Koren Robinson who is currently serving jail time for his various past indiscretions while playing for Seattle, Minnesota, and Green Bay?

More specifically, I know the policy will use a player's history as a tool in deciding on punishment for recent conduct issues, but can the league retroactively go back and punish players who were in trouble previously but have had a clean record within the past one or two seasons? What are the limits of Roger Goodell's power here, or are there any limits to his power to suspend players?

Posted By : David

Where's the data to suggest that incidences of...

Message posted on : 2007-04-18 - 16:05:00

Where's the data to suggest that incidences of off-field misconduct are influencing the decisions of consumers in purchasing the NFL's product?

If the NFL somehow found it way to staff team rosters entirely with Death Row inmates on work release, every game would still be a sellout. TV ratings and merchandising revenues would still be enormous.

As the world's wealthiest and most successful sports league, the NFL doesn't have to do anything to boost its image.

Posted By : Peter

All the provided 'evidence' regarding tanking ...

Message posted on : 2007-04-18 - 19:05:00

All the provided 'evidence' regarding tanking is giving playing time to less than the best players on the team, after becoming ineligible for the playoffs. Well, that appears to me to be the best strategy for these teams to make future playoffs, regardless of the draft. Using the end of the season as an extension of training camp could reveal those suited for the next season's roster and provide needed experience. It also decreases the chance of losing the best players to injury in a meaningless game.

I absolutely agree with this point. I'll admit upfront that I'm a diehard Celtics fan, so obviously I'm a tiny bit jaded. That being said, I bristle at all of these complaints that the team is taking, and players are giving up in return for a shot to draft a "superstar" in the draft.

Allow me to couch my explanation in a specific analysis of the Celtics. They were mathematically eliminated from the playoffs at least a month or so ago. At that point, Paul Pierce, arguably the lone superstar they had, was badly injured. What, may I ask, is the point of bringing Pierce back? They knew there was no way that they could make the playoffs. Pierce has 4 years and something like $57 million left on his contract. Why risk injuring your star and making him a salary-cap albatross around the team's neck for the sake of . . . what? Pride? What's more, the Celtics have half a dozen young players whose contracts all expire within the next season or two, and we certainly can't afford to keep all of them. Wouldn't it make sense, when you have nothing really to lose, to give them extended playing time and see if they're worth giving another contract to? If they succeed, we know they're worth it; if they fail . . . well, it's not like the Celtics were going to get a reward for being the 9th team in a 8-team playoff field.

Look, I'm about as die-hard a Celtics fan as it gets. I bleed green and white. But the goal of a sports franchise isn't to win A championship; it's to win MANY championships. You honor your faithful stars, sure, but holding blind loyalties to players well past their prime, scraping and risking the future to win an extra 3-5 games that don't really matter . . . that's simply not strong business management. So, when you know you can't win, you start planning for the future. Even if the Celtics don't get Durant or Oden, even if we get the worst possible pick we can (which I believe would be the 5th pick), I still believe the end of the season wasn't a waste because we know better who to keep and who not to.

As a final point, what I find particularly galling about those who stand up and criticize the NBA for "tanking" is that they turn a blind eye to all the other leagues doing the same thing. Where was the outrage in Arizona when Denny Green put Matt Leinart in, or Tennessee when Jeff Fisher played Vince Young? Where's the stones thrown at the MLB teams out of the race at the end of July who call up young players to throw them into the fire? What's good for the goose IS in fact good for the gander. Either we penalize all teams who do that, or we penalize none. Personally, I vote for the latter.

Posted By : Andrew

David,

Good questions. Because player disc...

Message posted on : 2007-04-18 - 22:05:00

David,

Good questions. Because player disciplinary action constitutes a mandatory subject of collective bargaining, it must be negotiated and the authority of league commissioners is limited to the extent of the provisions in the CBA. In the NFL, the owners have fought hard to retain the commissioner's exclusive authority and for the commissioner to basically serve as the arbitrator over his own decisions. I think when you have a commissioner in place for so long (as was the case with Tagliabue), there evolves somewhat of a comfort level over time that the commissioner is going to act in a certain manner. But now that there is a new commissioner, it's a complete unknown. To answer your question, the commissioner's new conduct policy, which the union purportedly assented to and which is linked to my post, gives the commissioner the discretion to do whatever he wants (i.e. to define what constitutes misconduct and to impose "larger fines and longer suspensions").

Posted By : Rick Karcher

Howard,

I'm not following this case as clos...

Message posted on : 2007-04-19 - 11:07:00

Howard,

I'm not following this case as closely as you are, but regarding your comment above, how has Brentwood been damaged monetarily? And if they have been, then how are the damages to be calculated?

Posted By : Rick Karcher

Brentwood was placed on probation for four years a...

Message posted on : 2007-04-19 - 12:03:00

Brentwood was placed on probation for four years and the football team was barred from tournament play for a year or so, so it probably can show some monetary loss as a result of that. There may be some loss of reputation as a result of the penalty, which gets calculated the same way courts calculate non-economic damages in tort cases.
Posted By : Howard Wasserman

With handicapped access in general the usual pract...

Message posted on : 2007-04-19 - 13:24:00

With handicapped access in general the usual practice is to provide more access than is ever likely to be needed. Have you ever been in a large parking lot in which all the handicapped spaces are taken, at least by vehicles with the proper license plates or placards? Didn't think so.
Posted By : Peter

Nice blog. I enjoy it. Your writing style is smoot...

Message posted on : 2007-04-19 - 15:51:00

Nice blog. I enjoy it. Your writing style is smooth and easily understood for this layperson.

However, you probably need to brush up on your Latin, or someone like Richard Bernstein will come after you. He is not an alumna if he is, indeed a he. Alumna is feminine. Alumnus is masculine. Alumni is plural masculine (or mixed). Alumnae is plural feminine. Got it? Go forth. E Pluriba unum!

Posted By : Anonymous

Gratia, anonymous.

Correction made.

Message posted on : 2007-04-19 - 17:23:00

Gratia, anonymous.

Correction made.

Posted By : Geoffrey Rapp

This just isn't speech that the First Amendment is...

Message posted on : 2007-04-20 - 08:42:00

This just isn't speech that the First Amendment is designed to protect. Where is the "expression" of ideas, personal inner thoughts, feelings (i.e. literary works, paintings, burning the flag, etc.) that is worthy of any protection?

Let's say I send a letter to all of the students enrolled in my sports law class next fall inviting them all to meet with me a week or two before classes commence next fall semester. If my school has a rule prohibiting professors from pressuring the students to meet before classes commence, do I have a First Amendment claim? -- I sure hope not. The reason is because there is no interest there that's worthy of any protection whatsoever. But I guess this holding is consistent with the Sixth Circuit's overall concept of First Amendment protection -- it also decided that 5000 reprints of a Tiger Woods painting sold at $100 a piece was protected by the First Amendment (the original painting should be protected by the FA, but surely not the reprints).

Posted By : Rick Karcher

Rick:

I think there is value to this inform...

Message posted on : 2007-04-20 - 09:46:00

Rick:

I think there is value to this information and that the First Amendment is designed to protect this information. At the most basic level (putting the question of undue pressure to one side for a second), the letter contained truthful information that would enable the students and their parents to make decisions about the ordering of their lives and participation in an important activity. On any sort of individual liberty theory of the First Amendment, that would be protected.

More broadly, the school must have a right to inform people, truthfully, about itself and the opportunities (academic, athletic, and extra-curricular) it affords. Several justices went after the TSSAA and the U.S. to ensure that, for example, the recruiting rule could not be applied to an advertisement or brochures sent to prospective students or to the public highlighting opportunities at Brentwood. The implication in the questions was that must be protected expression. Again, on any individual liberty model of free expression, we want the public to be able to receive this truthful information for use in ordering life.

Now, what might change things is the one-to-one contact between coach and prospective player--the degree of pressure or undue influence in *this type* of communication. But it seems to me that is a question of context, not content.

Posted By : Howard Wasserman

I understand why the FA should protect news report...

Message posted on : 2007-04-20 - 11:38:00

I understand why the FA should protect news reporting about current events and historical factual information because there is a substantial public interest there. This letter doesn't do that. You're saying that there is value to this information and therefore the FA is designed to protect this information. But has the Supreme Court ever held that the FA protects "information" or the "free flow of information"?

I also don't understand any analogy to commercial speech in this case. Commercial speech just means speech that proposes a commercial transaction. Commercial speech is not always protected by the FA. Maybe the justices were just trying to make the point that if Brentwood had used general advertisements and brochures it clearly would not constitute "undue influence" in violation of the association's rule -- not, as you suggest, to imply that it is necessarily protected by the FA.

Posted By : Rick Karcher

I think the justices were getting at a broader poi...

Message posted on : 2007-04-20 - 12:23:00

I think the justices were getting at a broader point: If the TSSAA tried to enforce against brochures, etc. under the rule, it might run into some 1st Amendment problems. Kennedy accepted that allowance as providing Brentwood alternative ways to get its message out--which is an important element of the constitutional analysis.

The whole purpose of the commercial speech rules is protecting the flow of information that the public will use to order its life, including what products and services to purchase.

As for 1st Amendment protection: Truthful, nonmisleading advertising for a legal product or service (such as a private school and the athletic opportunities it provides) is protected by the First Amendment, subject only to a balancing test that is, essentially, intermediate scrutiny--substantial government interest, regulating no more speech than necessary to serve the interest.

So if the TSSAA decided that any contact w/ student-athletes was "undue influence," even in a general brochure, I think (based on the argument) that some justices would see a 1st Amendment problem.

Posted By : Howard Wasserman

I agree that the value of the speech in question h...

Message posted on : 2007-04-20 - 14:56:00

I agree that the value of the speech in question here is low, but the court has never wholeheartedly adopted Justice Stevens' approach of beginning FA analysis with the value of the speech in question.
Posted By : Anonymous

But how would you feel if you are on the waiting l...

Message posted on : 2007-04-21 - 12:41:00

But how would you feel if you are on the waiting list for a number of years, only to see several hundred people "jump ahead" of you to get seats . . . only because they are disabled?

Sounds like a "reverse ADA lawsuit" to me--"I'm discriminated against under ADA because I'm NOT disabled"! (think ADA version of the Bakke case).

Melvin H.

Posted By : Anonymous

I'd imagine that the majority of Boston Celtics fa...

Message posted on : 2007-04-21 - 17:46:00

I'd imagine that the majority of Boston Celtics fans wouldn't mind seeing the team lose to the Memphis Grizzlies in April if it means there is a greater likelihood of Greg Oden playing center for the next decade.
Posted By : Anonymous

in a sport where 1 player makes a difference, why ...

Message posted on : 2007-04-21 - 18:57:00

in a sport where 1 player makes a difference, why not? once you are mathematically eliminated from the playoffs, the best thing you can do is start losing games. the "lebron" and "oden" argument goes a lot farther than the "integrity" argument.

could you liken tanking games to point shaving? the vegas odds have to be skewed if some people know you are going to be tanking for a pick. i'd say that would be a great bet at the end of a season if you know that a team needs to lose to say get a lebron or oden.

worst example of anti-tanking in football is the jets' justin miller returning a kick against the bills late in the season to win the game the season before last. this cost the jets either the 2nd or 3rd pick (perhaps reggie bush or vince young).

Posted By : Anonymous

(a) Remember when Tim Duncan came out? These sa...

Message posted on : 2007-04-21 - 22:44:00

(a) Remember when Tim Duncan came out? These same Celtics (under the incompetent Danny Ainge) had TWO picks in the lottery, their own at #1 or #2 and a pick by trade at about #10-11 . . . and MISSED on both counts (the Celtics' own 1st-round pick ended up being a #4 after the lottery).

That's ridiculous. If you want to criticize Ainge, be my guest, but at least get the facts straight. That was 1997. Rick Pitino was the president, GM, and coach of the Celtics (and I believe he was preceded as GM by ML Carr). They may have missed on Duncan, but if you're arguing that they "missed" on the 10-11 draft spot, you're right . . . in that they "missed" it up to 6th (along with their own pick, which was 3rd). They picked Ron Mercer from Kentucky with the #3, and Chauncey Billups from Colorado with the #6. Ainge, if I recall, was still coaching in Phoenix at that point.

As for possible punishment on the Celtics . . . how about loss of three #1 picks (including this year's), $2.5 million, and the requirement to fire Ainge?

Again, ridiculous. Why would you punish Ainge for something he had no control over? He's not coaching the team; Doc Rivers is. If you watch even one Celtics game this year, any basketball fan will notice that Rivers' defensive schemes are TERRIBLE. He doesn't have the players rotating to guard right, and his defensive matchups are downright head-scratchers. This isn't like in Minnesota, where McHale deliberately circumvented the CBA with Joe Smith. Ainge has done nothing wrong.

Gomes is a whiner, and I personally think the front office should take him out to the woodshed and whack him with a two by four. I love his hustle, and I'm happy he's so dedicated to the game that he gets pissy when he gets taken out. But, as I said a few days ago, the Celtics have nothing of any circumstance to play for. Gomes' roster spot isn't even remotely in question. So, if you know you're going to gain nothing, why on earth WOULDN'T you take the guys you know are staying out, and use it to audition young players and those on the bubble? Why not try new lineup combinations in the hopes one clicks (as it did that night, by the way)?

The fans are being hurt by the lower quality of play? Fine. I'll buy that. But you know what? Real fans of a team want dynasties, not one-year wonders. Sure we're pissed; we want a perfect season every year. But it's not as though the Celtics are just handing the ball to the opposing team and stepping aside. They're auditioning the lower half of the bench, and that means we're going to lose.

All I'm saying is that any fan of a team who gets ticked off because they didn't win the third-worst record instead of the second-worst isn't really looking at the situation clearly, and anyone who pores over every comment with a magnifying glass is bound to find circumstantial evidence supporting a theory of "tanking." But would you really rather a player be so delusional that they say after a close loss, "Yeah, it was fine. It happens"? Because, me personally, I'd rather they got pissed that they didn't do all they could.

Posted By : Andrew

I think people overestimate the "positive" impact ...

Message posted on : 2007-04-22 - 01:45:00

I think people overestimate the "positive" impact tanking has on lottery chances. To me it seems like a situation where you can apply a sort of prisoner's dilemma. You have the situation where nobody tanks, then if the Celtics tank, but their closest lottery competitor(s) doesn't, the Celtics will improve their position, but if the both teams (or all teams involved) tank nobody gains an advantage, assuming that tanking has a uniform effect. So the end result is likely that no team gains any advantage as per lottery odds, and in the process alienates their fans and risks hurting their revenues.
Posted By : Anonymous

It's not so much a "value" issue, because its valu...

Message posted on : 2007-04-22 - 10:17:00

It's not so much a "value" issue, because its value would depend upon who you ask. I think another way (and a better way) to ask the question is, what is the purpose of the speech? I'm not aware that the Supreme Court has ever held that "valuable information" or "the free flow of information" is always protected speech. If so, please tell me the case and the issue presented in the case. The Supreme Court has held that speech is protected in certain contexts (or as I put it, with certain purposes) -- i.e. news reporting purposes, literary purposes, expression purposes (e.g. political speech, art, possibly speech on Myspace, etc.). However, my syllabus hypo doesn't meet it, nor does this letter from Brentwood inviting prospective students to spring practice.

A great example is the N.Y. Times Privilege applicable to speech pertaining to public officials and public figures, and the Court's rationale for applying it -- to encourage robust, free and open debate about important political and social issues that affect our society.

Posted By : Rick Karcher

I really disagree that a fan can't root for his te...

Message posted on : 2007-04-22 - 11:11:00

I really disagree that a fan can't root for his team to tank. As a fan, I think you're rooting for your team to win a championship, first and foremost. Therefore, you root for the best possible situations for this to take place. It's why a Mavericks fan (like myself) would rather see the L.A. Lakers in the conference finals than the Suns or Spurs. Sure those are more interesting matchups for the Mavs, but I'd rather have the easier path to the Finals.

It's the same thing here. The best possible situation to get a championship is to get one of the top two picks. Rooting for tanking in this situation is rooting for what's best for your team.

I do see the complaint of the season ticket holder, though. If you're paying to go to these games every night, I think you deserve to see the teams you're paying for try their hardest.

Posted By : Anonymous

New York Times does not exhaust the scope of First...

Message posted on : 2007-04-22 - 12:55:00

New York Times does not exhaust the scope of First Amendment protection. The contexts in which the Court has held speech is protected are much broader than New York Times or the list in Rick's most-recent comment. And context is not everything--some news reporting may not be protected, some literature may not be protected. And much advertising, handbilling, and solicitation (not on the list) is protected.

I do not believe that Coach Flatt's letter informing the players about spring practice is meaningfully different from a pharmacy, casino, or liquor store advertising the availability and prices of its products and services. The Court has held that all of these are protected (assuming the information is true). And the basis for those cases has been that government cannot "protect" the listening audience from information--which I think translates into a recognition of protection for the flow of truthful, non-misleading information to the public.

This is not to say that Brentwood should or will win. But it is a question of starting point. There is nothing wrong with a letter such as this or the information it communicates and there may be some value to it for the recipient; it is only if the government can show some interest that justifies prohibiting the letter (which I think the TSSAA has) and that interest prevails in the balance (which it probably will here).

Posted By : Howard Wasserman

Howard, a point has been missed here: the letter ...

Message posted on : 2007-04-22 - 13:41:00

Howard, a point has been missed here: the letter (re: spring practice at Brentwood) that was sent to the players was sent at a time that they WEREN'T students at the school (if I understand the case right, the students were in eighth grade and Brentwood starts at ninth grade; the letter was sent in the students' eighth-grade fall or spring semester). THAT usually consitutes "recruiting" in most states; had that letter been sent while these 12 students were going to Brentwood, no "recruiting" would take place--they're already there.
To me, this is open and shut; it's no different from the coach at Florida, say, sending the same letter to 11th-or 12th-grade students (not going to Florida at the time) "inviting" them to spring practice--this is recruiting, plain & simple. It is not allowed under the rules of the high-school association in Tennessee, which Brentwood is a member of (if I understand right); therefore, Brentwood is under the authority of the TSSAA, which can set down discipline against the school.

Posted By : Anonymous

Howard,

I didn't say that the NY Times Priv...

Message posted on : 2007-04-22 - 14:19:00

Howard,

I didn't say that the NY Times Priv. exhausts the scope of FA protection by any means, I was just using it as an example of protected speech. The only situation I can think of in which news reporting would not be protected is if the information was false and it defamed somebody (and with actual malice if public officials and figures). It would seem that the govt. should not be able to prohibit pharmacy, casino, liquor, etc. advertisements because they constitute legal products, not because it's protected by the FA. Why shouldn't somebody be able to advertise about a legal product/service they provide?

So my syllabus example above is protected by the FA? I mean, it sounds as if the way to get around any rule/regulation/law is just for one to argue that they have a FA right. Let's say I send a letter to select people inviting them to engage in prostitution at my home tonight. If the state attempts to charge me with a crime, do I have a FA defense?

Posted By : Rick Karcher

IIRC the draft lottery was put in place precisely ...

Message posted on : 2007-04-22 - 15:33:00

IIRC the draft lottery was put in place precisely to discourage tanking. If teams are still tanking anyway, methinks a stronger deterrent is needed.

Here's a thought: Hold parallel playoffs for the teams that don't make the regular playoffs. The first-place team gets the #1 pick; the remaining first-round picks are distributed as usual. The worst teams would get the first-round byes, but winning the #1 pick would still be quite a challenge, so the bye probably wouldn't be a strong enough incentive for the teams to tank.

(I thought about also giving the worst teams home-court advantage, but then tanking might be encouraged by the extra money a team makes by hosting a playoff game.)

Posted By : Joshua

What are the legal implications of tanking? When ...

Message posted on : 2007-04-22 - 19:57:00

What are the legal implications of tanking? When I pay my $$ for a ticket--what exactly am I paying for? Am I paying for the chance to see two teams throw the ball around for 60 minutes, or am I paying for the opportunity to see to teams use all of their resources the win the game? In other words, could there be backlash from fans who think they have been "cheated"/that the team did not perform their end of the bargain by tanking?
Posted By : Anonymous

Change the word tanking to rebuilding and it is a ...

Message posted on : 2007-04-22 - 20:02:00

Change the word tanking to rebuilding and it is a completely differnt story
Posted By : Anonymous

Anonymous:

Your understanding of the facts ...

Message posted on : 2007-04-22 - 20:58:00

Anonymous:

Your understanding of the facts is accurate and there is no question that what Brentwood's coach did falls within the TSSAA's recruiting rule. But the issue is whether that rule is permissible under the First Amendment. Now, your analysis (Brentwood voluntarily joined the TSSAA, so it can be subject to any reasonable rules of the TSSAA) probably is some version of where the Court will go in deciding this case. But the point is that it is necessary to subject the rule to some degree of constitutional scrutiny. And several judges in the lower courts saw this speech as subject to a different analysis.

Rick:

Even if a product or service is legal, it still may be subject to government regulation, including regulations intended to deter use of the product or service by trying to decrease demand, even if the product/service is not outlawed. If advertising is not potentially within the ambit of the First Amendment, then a permissible regulation to decrease demand would include prohibitions on advertising for the product so that fewer people will want to use it. The theory would be "We could have banned the product, but we are taking the lesser step of trying to decrease demand through reasonable regulations, such as by not allowing producers to advertise." This actually was the state of things until 1974 (when the Court first held that commercial speech received some level of protection) and even until about 1998, when the Court changed its commercial-speech doctrine to make it more protective. Otherwise, the mere fact that the product/service was lawful did not mean advertising had to be allowed.

All of which is beside the point for this case, because I do not see the Court treating this as a commercial-speech case. I think your soliciting-prostitution hypo comes close to the mark, because the general view is that private, person-to-person expression receives less protection than mass-distributed speech.

The problem with the analogy for these purposes (and this goes to Anonymous' argument that this is "recruiting plain & simple") is that the conduct discussed in the Brentwood letter--8th graders participating in spring practice--was permitted under TSSAA rules at the time. So the letter was solicitation (or recruitment) to engage in a legal/permissible activity. That does not mean the First Amendment bars the enforcement of the recruiting rule here, of course; only that the prostitution analogy is not on point.

And to hit on your broader point (in brief): Yes, at some level the First Amendment may give me an exemption from otherwise applicable laws. The point in most First Amendment cases and scholarship is figuring out when that exemption is required.

Posted By : Howard Wasserman

I disagree with the claim that being a fan is a "s...

Message posted on : 2007-04-22 - 22:37:00

I disagree with the claim that being a fan is a "short term commitment." Many people follow their teams for years and years through good seasons and bad. Fans in that category may indeed be willing to accept a few more late-season losses in the hopes of getting a franchise player in the draft.
Posted By : Peter

I enjoyed the discussion. I'm going to close by a...

Message posted on : 2007-04-23 - 11:25:00

I enjoyed the discussion. I'm going to close by again asking which Supreme Court case held that "the free flow of information" is protected speech, which is an all-encompassing standard that would completely swallow the FA protected speech categories of news reporting and the expression of ideas.

Also, in your view, would this case turn out different (strictly from a FA analysis, not undue influence) if the exact same letter to these parents was placed in a brochure or on a billboard? In my prostitution letter hypo, would I be protected if I instead put the same exact invite letter on a billboard?

Posted By : Rick Karcher

Try this. It is from a 4-Justice plurality in "44...

Message posted on : 2007-04-23 - 12:42:00

Try this. It is from a 4-Justice plurality in "44 Liquormart v. Rhode Island" that captures the idea.

"The text of the First Amendment makes clear that the Constitution presumes that attempts to regulate speech are more dangerous than attempts to regulate conduct. That presumption accords with the essential role that the free flow of information plays in a democratic society. As a result, the First Amendment directs that government may not suppress speech as easily as it may suppress conduct, and that speech restrictions cannot be treated as simply another means that the government may use to achieve its ends."

Or, in a different context, from Press Enterprise II:

"Neither our elected nor our appointed representatives may abridge the free flow of information simply to protect their own activities from public scrutiny."

The general idea is that the First Amendment reflects and protects an interest in maintaining the free flow of information and ideas between speakers and listeners. That is not the be-all of First Amendment protection, but it is an aspect of it. And it means that, at least as a default, the dissemination of truthful information about lawful things is protected, again subject to some balancing.

If Brentwood's message about spring practice truly were sent to the public at large as on a billboard or in a flier sent to all prospective parents, I think it would be constitutionally protected. Or at least the TSSAA would have to come up with a different interest to support prohibiting that message.

Again, participation in spring practice was permissible in 1997. Thus, unlike your prostitution hypo, the underlying conduct being solicited is lawful. That makes the recruiting rule a rule targeted at expression qua expression, rather than an add-on to a general ban on conduct.

Posted By : Howard Wasserman

I don't want to belabor the point, but in the firs...

Message posted on : 2007-04-23 - 14:24:00

I don't want to belabor the point, but in the first quote you provided(Liquormart), I'm assuming that was a commercial speech case? I see commercial speech cases as unique because the govt. is really trying to prohibit/reduce permissible conduct by doing indirectly (advertising restrictions) what it can't do directly (ban the conduct).

With the second quote, I can't tell what speech is at issue, but it sounds like it pertains to either criticism of public officials (protected political speech) or dissemination of news about public officials (also protected speech).

Posted By : Rick Karcher

The second case was a right-of-access-to-open-cour...

Message posted on : 2007-04-23 - 14:56:00

The second case was a right-of-access-to-open-courts case. The first was a commercial speech case. But the principle behind the protection of commercial speech applies fairly readily to non-commercial speech. Government could

On a Westlaw search, I found 34 cases (that used the phrase "free flow of information" or "free flow of information and ideas." These included commercial-speech cases, access-to-proceeding cases, and some copyright cases. None of them state "We hold that the First Amendment protects the free flow of information," but nothing is ever that obvious (unfortunately).

But I think the cases establish the underlying point that the First Amendment does exist, in some part, to ensure the free flow of information and ideas to the public (what ideas precisely can be a distinct subject of debate) and that a government regulation that targets speech, and thus reduces that flow of information, is at least going to be subject to some First Amendment scrutiny. Whether it survives that scrutiny or not is a different issue.

Posted By : Howard Wasserman

I think you need to look at the dynamics of each s...

Message posted on : 2007-04-23 - 15:00:00

I think you need to look at the dynamics of each sport. The NFL has 22 starting positions (excluding special teams) that it needs to fill. You could argue that within those 22 posiitons, there are 8 really "different" positions each needing a different skill set (QB, WR/TE, RB/FB, OL, DL, LB, Safety, CB). So a team like the Lions does not neceassrily need the #1 or #2 pick in a certain draft to get the best QB or RB because they can still grab the best OL or LB with the 5th, 6th, or 7th pick. And one could argue that the best OL or LB in a draft may be just as valuable to a team then the best RB. In the NBA there are five positions that need to be filled with at most three different skill sets (G, F, C). So an NBA team drafting in the 8 position is getting maybe the 3rd best guard of forward. Therefore, NBA teams are more likely to want to get in one of the top spots than NFL teams.

Another explanation is that the best college player in a given year has a legitimate shot of helping the worst NBA team in his rookie season to the playoffs (especially now in the Eastern Conference). Whereas the best collge football player has a very slight chance of ever helping the worst team in the NFL make it to the playoffs in his rookie season. Therefore, there is much more incentive for an NBA team to grab a top pick.

Posted By : Bobby Z

I think you need to look at the dynamics of each s...

Message posted on : 2007-04-23 - 15:05:00

I think you need to look at the dynamics of each sport. The NFL has 22 starting positions (excluding special teams) that it needs to fill. You could argue that within those 22 posiitons, there are 8 really "different" positions each needing a different skill set (QB, WR/TE, RB/FB, OL, DL, LB, Safety, CB). So a team like the Lions does not neceassrily need the #1 or #2 pick in a certain draft to get the best QB or RB because they can still grab the best OL or LB with the 5th, 6th, or 7th pick. And one could argue that the best OL or LB in a draft may be just as valuable to a team then the best RB. In the NBA there are five positions that need to be filled with at most three different skill sets (G, F, C). So an NBA team drafting in the 8 position is getting maybe the 3rd best guard of forward. Therefore, NBA teams are more likely to want to get in one of the top spots than NFL teams.

Another explanation is that the best college player in a given year has a legitimate shot of helping the worst NBA team in his rookie season to the playoffs (especially now in the Eastern Conference). Whereas the best collge football player has a very slight chance of ever helping the worst team in the NFL make it to the playoffs in his rookie season. Therefore, there is much more incentive for an NBA team to grab a top pick.

Posted By : Bobby Z

rIGHT oN ! wE HAVE SO MANY VALUEABLE PEOPLE shadow...

Message posted on : 2007-04-23 - 15:23:00

rIGHT oN ! wE HAVE SO MANY VALUEABLE PEOPLE shadowing society ,pure genius ,yet the disablity prevents inablility , to seek legal justice & social awarness ,,
Posted By : taken care of buisness

bobby z -
Tanking is also less likely in the NF...

Message posted on : 2007-04-23 - 22:27:00

bobby z -
Tanking is also less likely in the NFL because teams often are in playoff contention until very late in the season. A team like the Celtics, in contrast, was pretty much out of contention with 15 or 20 games to go.

Posted By : Peter

"Taken care of business" . . . PARDON ME? What ar...

Message posted on : 2007-04-24 - 00:59:00

"Taken care of business" . . . PARDON ME? What are you saying or trying to say?

Anonymous 3:51: I wonder if this Bernstein's office is handicapped-accesible like he wants the "Big House" to be . . . with "adequate" parking, wide doors, no steps, etc.?

Posted By : Anonymous

Both posts are interesting but I wonder why a team...

Message posted on : 2007-04-24 - 11:27:00

Both posts are interesting but I wonder why a team would draft a player that is not a good fit for that team's situation. For example, why did the Washington Wizards draft Kwame Brown several years ago? Wrong coach, wrong teammates (Jordan included), wrong style of play, and perhaps the wrong city.

Do teams draft the wrong player because they do not scout well? Because they believe they can alter the player to their system ("I can change him")? Because they just want to draft "the best player available"?

(Oh, and you can ask the same question in other sports. For example, look at most of the Washington Redskin's free agent signings ever since Dan Snyder bought the team.)

Posted By : David

David,

Thank you for your comments, you rai...

Message posted on : 2007-04-24 - 11:42:00

David,

Thank you for your comments, you raise several excellent points.

I agree with the explanations you've identified for why teams would draft players who become poor fits (i.e., bad scouting; overly-optimistic coaches/staff; best player available). Maybe another one is a disconnect in basketball philosophy between the coach and the general manager.

I also agree that these same reasons apply to other sports, and the Redskins seem like Exhibit A on that front. That reminds me of when Bill Parcells was coaching the Patriots and he felt that he didn't have enough input on the draft and he said, "If they want you to cook the dinner, at least they ought to let you shop for some of the groceries." Great quote, isn't it?

Posted By : Michael McCann

That discretion wielded by the Commissioner is one...

Message posted on : 2007-04-24 - 13:06:00

That discretion wielded by the Commissioner is one of the byproducts of the immense $$$ that the players enjoy. The owners and players collectively bargained for that provision and the Commish is rightly using his discretion to address this very issue. The players most probably got for $$ in return for this provision during the CBA negotiations and the owners perceived that this provision was crucial to keep the image of the NFL as clean as possible.

Let's not forget the fundamental point, the opportunity to play in the NFL is a privilege, not a right. As such, with that privilege comes conditions.

Posted By : qtlaw24

This is the reason that bottom feeders specificall...

Message posted on : 2007-04-24 - 22:59:00

This is the reason that bottom feeders specifically in the NBA stay as bottom feeders. They keep on drafting the best player instead of the best player that fits their situation. This is why I aplauded the Texans this year when they took Mario Williams over Reggie Bush because he was a better need, fit, than Bush. Obviously everything that could have went wrong went wrong, so it ended up being bad for them, but idealy I think it was a great move. If in the NBA, organizations started picking the best player for the system, instead of the best athlete, with the most potential.
Posted By : Anonymous

On the part of the NCAA, this is very disturbing. ...

Message posted on : 2007-04-25 - 13:56:00

On the part of the NCAA, this is very disturbing. The selective contolling of scholarly works is intolerable in my opinion.
Posted By : Garrett

I'm sure a chemistry professor will give Dr. Brand...

Message posted on : 2007-04-25 - 14:30:00

I'm sure a chemistry professor will give Dr. Brand the kind of scholarly insight he wants.

"I've found that the water the athletes here drink here is slightly acidic, a pH of 6.6, but other than that they seem to come to class, at least the one I had ten years ago did."

Brand is right we should let the true 'experts' on college athletics do the talking.j/k

Posted By : Anonymous

The solution to this travesty is for anyone who is...

Message posted on : 2007-04-25 - 18:59:00

The solution to this travesty is for anyone who is "invited" to politely decline. Does anyone need an extra line on their vita that badly?

For Myles Brand to pretend that he is a scholar ... oh, I know that he was once a professor, but in the words of Hazard Adams, "Real academic power deteriorates from the moment of an administrator's first act."

Posted By : Glenn

I think economic theory (coase) would suggest that...

Message posted on : 2007-04-26 - 10:50:00

I think economic theory (coase) would suggest that teams should draft the most highly valued player on the board, irregardless of any particular team needs. They could then trade that player to a different team that values him more, presumably for more value in return.

For example, Reggie Bush was clearly the most valued player in last year's draft. The Texans, given their situation, seemed to prefer Mario Williams. They could have drafted Bush, then dealt him to, say, whoever picked Williams, plus another player or cash or something. This makes the Texans better off because now they have Williams + some other form of added value.

Posted By : Anonymous

Here's a nice article I found online relevant to t...

Message posted on : 2007-04-26 - 10:57:00

Here's a nice article I found online relevant to the discussion on your blog:

Are you dreaming about a career in baseball? Dreaming is the first step, just so you know, together with ambition and determination. But if your dreams and goals are serious and if you are convinced that you belong among the top USA Baseball players, then here are some tips that can help you achieve what you desire! Or maybe you are the parent of a child who presents a great interest in USA Baseball, both in watching it and practicing it. So make sure you don't waste your child's potential!

The first thing you need if you want to become a baseball player is the right equipment, what else? Sure, this means spending money, but all hobbies and talents come with a price. After all, this is not such a financially-demanding hobby.

So, what do you need? First of all, you need to go to a large specialized store, such as Athletics Galore, Akadema (where you can find a wide range of items for juniors) or Just Bats. We all know that the baseball glove is the most important and valuable equipment item in this sport, but is it the only necessary one? No. Your shopping list should include: baseball bats, baseball gloves, softball bats, batting gloves, baseball cleats, chest protectors and batting helmets.

If you are an amateur, you can spare the batting gloves, for example, but if you want to be a professional, all these pieces will be actual must-haves. When selecting the needed equipment, make sure that you choose the best of the best, in case you are really aspiring to be a professional baseball player.

The equipment has to feel right, to fit you and this is why you need to be advised by a specialist when you shop and try the equipment on before you purchase it. The cheap equipments are not the best choices, so make sure you choose reputable brands that can offer you the performance and protection you need when playing the game.

If you are asking yourself whether there are certain academic requirements in order to become a USA Baseball player, the answer is simple: no. However, this does not mean that we all have equal chances of becoming baseball players. First of all, you need the right muscle tone, the fit and strong body type, lots of talent and you need to join a sportive club, a local team - some great sportsmen started from the smallest baseball teams and managed to become true professionals.

But there is one more thing that you need in order to become a professional baseball player and that is... luck. Besides the goals, ambition, equipment, hard work and training, you need that luck ingredient in order to obtain that successful USA Baseball player recipe.

You can also find more resources on the following MLB teams on our website: Tampa Bay Devil Rays, Detroit Tigers, Kansas City Royals, Minnesota Twins, Los Angeles Angels, Oakland Athletics, Seattle Mariners.

Mike

Posted By : Anonymous

I'm late in weighing in on this, but with the news...

Message posted on : 2007-04-26 - 13:10:00

I'm late in weighing in on this, but with the news that Michael Vick is in trouble again, this time for possibly running an illegal animal fighting ring (no, seriously - via Deadspin), I'm wondering how Roger Goodell will act on this.

Ultimately, I think the vague nature of this policy will come back to haunt the Commissioner - in my opinion, the new conduct policy is not only bad for the players, but will be bad for the Commissioner as well.

By not codifying the new rules, each suspension and fine he sets down will more than likely impact public opinion on NFL player discipline and vice versa.

For example, how do we (and perhaps the Commissioner) judge the Vick case? Inevitably, whatever suspension or fine Vick receives is going to be compared and analyzed against the discipline Pac-man got. But how do you compare the actions of the two individuals when they are so different (even if they are both criminally liable)?

Does this seem dangerous to anyone else but me? Because ultimately, the fines and suspensions will be based on morally relativistic judgments, and will be subject to a host of biases, ranging from player prominence, level of public/media outcry, special interests (animal rights groups in the Vick case, potentially), even time of year (off-season, playoffs . . . ).

I don't see how the commissioner can hand down "fair and consistent" decisions when all he has to go on is previous disciplinary actions and public opinion. Such a disciplinary system does not seem very sustainable to me, and could end up reducing the credibility of the Commissioner's role.

Posted By : Satchmo

qtlaw24:

You are correct that the union and...

Message posted on : 2007-04-26 - 20:30:00

qtlaw24:

You are correct that the union and the league agreed in the CBA that the commissioner would be the arbitrator over his own decisions (i.e. not afford the players a right of appeal to a neutral arbitrator). But this new conduct policy was not "bargained for". What did the players get in return for it?

Your comment actually raises an interesting question as to whether the new conduct policy was properly bargained for between the league and the players. Disciplining players for misconduct is a mandatory subject, and therefore the new policy must be negotiated with the players. Does the commissioner's consultation with a panel of only 6 players satisfy the requirement?

Posted By : Rick Karcher

Actually, the NCAA reminds me of the "Land of the ...

Message posted on : 2007-04-26 - 21:22:00

Actually, the NCAA reminds me of the "Land of the Lost"....
Posted By : Anonymous

I have limited time to much research on the topic,...

Message posted on : 2007-04-26 - 23:39:00

I have limited time to much research on the topic, but I don't feel that it is the Commissioner's duty to hand down "fair and consistent" judgments.

In my humble opinion, the commisioner has the following responsibilites:
1) to preserve the integrity of the league;
2) to operate and preside over the best professional sports league in the world; and
3) to prevent the criminal activity of players from ruining either of the first two responsibilities.

Gooddell keeps it vague to prevent players from weighing criminal activity to a codified punishment. Plain and simple, it really should be a no tolerance policy and Gooddell is reserving the right to make it that way.

Regardless if Vick gets convicted or not, I think ATL should stop worrying about trading up to get Calvin Johnson and start thinking about taking Drew Stanton, John Beck or Kevin Kolb in the middle rounds. In fact, why not Troy Smith?

Prediction: Vick is not the starting QB for the Falcons on Opening Day.

Posted By : Adam

Indeed, whoever is responsible faces up to a year ...

Message posted on : 2007-04-27 - 10:06:00

Indeed, whoever is responsible faces up to a year in prison for each offense.

Some of those pictures are more jarring than the descriptions in Gonzales v. Carhart.

Posted By : Peter

If Vick were to actually be charged and even convi...

Message posted on : 2007-04-27 - 11:58:00

If Vick were to actually be charged and even convic