Blog Archive

Hazing in the NCAA:

NCAAHazing.com

Message posted on : 2007-08-27 - 23:37:00

Hazing in the NCAA:

NCAAHazing.com

Posted By : Anonymous

I just discovered your blog. It's great. I tend to...

Message posted on : 2007-08-28 - 00:05:00

I just discovered your blog. It's great. I tend to view the LLWS as a joke these days; perhaps I am just too cynical. I think the wall-to-wall tv coverage has helped ruin the sport, with generous contributions from overzealous/insane/greedy parents.

Your comments on hazing are right on. I look forward to reading your journal article.

Posted By : muze

To all those who think Vick would have won, you ar...

Message posted on : 2007-08-28 - 02:12:00

To all those who think Vick would have won, you are telling us that his attorneys did not represent him well? During his court apprearance, the judge asked him if he WAS guilty. If he realized the evidence against him? His attorneys sought a plea, not the prosecutors.

The prosecution did not depend on the STATEMENTS by his "friends." They had boatloads of forensic evidence. Vick probably left his DNA all over the chains, ropes, electric cords, and shovels. They found tons of dead dogs that were buried, and 53 hurt and injured.

I do not think Vick is a fool when it comes to his freedom. I think his attorneys gave him good advice. Now he has agreed to be an informant--and he's a FELON.

Posted By : Anonymous

I really enjoyed you comment on the LLWS. I really...

Message posted on : 2007-08-28 - 02:23:00

I really enjoyed you comment on the LLWS. I really enjoyed watching the kids from a little town in GA. The team spent very few minutes celebrating and then went to the losing team.

My son played Little League and there was always the obligatory line up to shake the hands of the losing team. What I saw made me so proud. No handshakes or limp mid-fives (as opposed to high 5s). All the Georgia kids HUGGED the Japanese players. I saw some the the Americans kids taking the time to cosole their opponents. It was so touching. They took their time and did not rush to their deserved celebration. Great kids!

Posted By : Anonymous

I think that the article is interesting. However, ...

Message posted on : 2007-08-28 - 11:28:00

I think that the article is interesting. However, this subject is not novel at all and, unfortunately, the author summarily makes the conclusion that if you have a law license and you are an agent you are, therefore, governed by the MRPC. This is just not a fact, it is not a law, and will depend upon the facts of each case (e.g., did the person market themselves as a lawyer or a sports agent, for example). Additionally, the article fails to address those with J.D.'s who do not practice law, it fails to address that negotiation of a contract in the sport industry is not necessarily an adversarial process requiring traditional advocacy, it fails to address the concept of freedom of choice and freedom of contract (e.g., isn't it in the best interest of some athletes to sign with a high profile agent to get more exposure that otherwise would not have been there?), but it does address something long overdue: the hidden agenda and conflict of interest involving an agent who represents coaches and players on the same team or in the same league. In the end, this article sounds like someone who looks at athletes as "victims" of a system which is broken and fails to give credit to the players associations who have enacted rules in recent years to govern conflicts of interest. (PS-what about agents who represent numerous clients in non-union sports?)
Posted By : Anonymous

You are right about the press does not talk about ...

Message posted on : 2007-08-28 - 12:25:00

You are right about the press does not talk about the killing of people. Senator Obama was just here in Chicago and said he was surprised that in the area, more that 30 had been murdered this year. The killings were all gang killings and were black on black. If the press made a big thing out of it, they would say it was racist. Look at the crime rates. Most of the murders are done by blacks (%) and most of the victims are also blacks. It's a problem. Look at all the big cities. The bulk of the murders happen there, but everyone is afraid to say anything because they will be called racist. I'm glad the Senator brought it up--although his solution sucked.
Posted By : Anonymous

I agree. Besides...rather than go after this guy, ...

Message posted on : 2007-08-28 - 13:29:00

I agree. Besides...rather than go after this guy, why not go after the NCAA-instead-which actually does realize income, tax free!
Posted By : Anonymous

I wholeheartedly agree with you. The day followin...

Message posted on : 2007-08-28 - 14:57:00

I wholeheartedly agree with you. The day following the home run, every news and sports program ran a story on how Mr. Murphy instantly owed over $200,000 to the IRS. I'm no tax expert, but this seems intrinsically wrong to me, and I honestly haven't heard too many commentaries on the unfairness (for lack of a better term) of this. I think Mr. Murphy should be required to pay taxes if and when he sells the ball, but to demand payment before the ball is sold doesn't seem right. I know that the ball is worth around $500,000, but until he sells the ball, all he has is a $9 baseball. I know that Murphy was a NY Mets fan, but what if the person that caught the ball was a die hard Giants fan, never wanting to sell the ball? Would it be right to require him to pay an exorbitant amount of money for the right to put the ball on his mantle? I'm glad that someone finally wrote a scholarly opinion on this, because all I could say up until this point was “it's just not fair.�
Posted By : Alec Taylor

WE DO look at the background of someone...its call...

Message posted on : 2007-08-28 - 16:14:00

WE DO look at the background of someone...its called the hiring process. "Hey do you know that guy?"...Universities look at where you come from and your family background...as does the medical field (background checks)....everything you do in life..someone there knows who you are and where you come from..You CANNOT use your background as an excuse...BUT...Mike Vick has never used his upbringing as an excuse...his brother, who turned out a saint after all this, never used his background as a reference to his criminal intent...nor do I, being from the rural Appalachians...Eat up with drugs and poverty EVER, let that stop me from becoming the owner of a fortune 500 company. When it comes to where you were raised...let it be a blessing...and not an excuse...let it be a LESSON...and not a curse.

I support Mike Vick

Va tech Alumni 2001
James Eller

Posted By : Anonymous

The guy who caught the ball is the ONLY one who is...

Message posted on : 2007-08-28 - 16:38:00

The guy who caught the ball is the ONLY one who is talking about owing taxes on the ball, pre-sale. The IRS never said they'd go after him, no one in the govt. has either.

He wanted to make it seem like he "wanted" to keep the ball and that he wasn't out for a fast buck. He wanted people to believe he was a "true fan" so he told people that the IRS would be after him for it.

Good story, total BS.
He wants the money, just like most people would.

Posted By : Anonymous

I'm curious, does the judge know what was in the s...

Message posted on : 2007-08-28 - 19:37:00

I'm curious, does the judge know what was in the superseding indictment? I realize that it never became part of the charges, but can the judge use his knowledge in deciding how long Vick should serve?

I have heard that a first-time offender gets a break. But what if the offender is the whole brains and money in the illegal enterprise? I see all kinds of first-time offenders (usually white-collar), get very severe sentences, even when they are old. The Enron bunch, Michael Milikan, Martha Stewart, the hotel lady that just died (Queen of Mean).

It could be argued that this enterprise would never have existed to this extent if Vick had not bank-rolled it.

Three things about his speech I think looked a bit contrived. First of all, he found Jesus. I'll leave it at that.

Then he claimed he made a MISTAKE. Running an illigal operation that buys, trains, kills, and fights dogs across state lines for 6 years, is not a mistake.

Toward the end of his speech he tries to make the audience just like him or visa versa. He said "We've all made mistakes"

I just don't see how this nuance language makes points with this judge. From the comments made from the judge, he seems like a plain spoken man. I doubt he will be swayed by Vick's dialogue.

I think you make a good point about doing something for the community. Maybe Habitat for Humanity. I'd stay away from dog groups. Vick is a bit thin-skinned, and it might end up putting him back in the headlines.

Posted By : Anonymous

I guess we can only guess what the judge will do. ...

Message posted on : 2007-08-28 - 22:09:00

I guess we can only guess what the judge will do. The Associated Press 8-22-07 had a article "Vick Judge has tough-but-fair reputaion"

The article said in part: "Tough but fair" is the description most often heard from lawyers who appear before Hudson, who owns a bichon frise dog and declined to be interviewed.

"He's a good trial judge, but on sentencing he tends to be in the middle or upper range of the sentencing guidelines," said attorney Murray Janus. "A lot of judges start at the low end. Not Judge Hudson."

Still, Smallenberg was caught off-guard by how hard Hudson came down on his client. The judge sentenced Robert Evans to 10 years in prison -- double what was called for under federal sentencing guidelines -- declaring "the abuse of trust here is absolutely immeasurable."

"I wasn't surprised he went above the guidelines, but I was surprised he went that far," Smallenberg said Thursday.

I wonder how Judge Hudson would describe Vick? If I were Vick, I would not be too confident that it's going to be on the low side. It was a first offence for Evans.

Posted By : Anonymous

Professor:

PATA seems to be the pot calling...

Message posted on : 2007-08-29 - 03:06:00

Professor:

PATA seems to be the pot calling the kettle --well you know.


PETA (Still) Kills Animals

Posted On March 3, 2006

Washington, DC -- People for the Ethical Treatment of Animals (PETA) has just updated its animal-control statistics for 2005, and the numbers aren't pretty. According to the Virginia state veterinarian, PETA killed 1,946 cats, dogs, and other pets last year, in addition to 141 wild animals. In 2005 PETA managed a startling 90 percent kill rate (worse than the 86 percent the year before), adopting or transferring out only 215 animals. Added to PETA's earlier numbers, these new figures tell us that since July 1998 the group has killed over 14,400 cats, dogs, and other pets in Virginia.

“Pet lovers should be outraged,� said Center for Consumer Freedom Director of Research David Martosko. “PETA relies on the good will of compassionate Americans who will be shocked at its hypocritical angel-of-death routine. There are hundreds of worthwhile animal shelters that deserve Americans' support. PETA is not one of them.�

Virginia isn't the only place where PETA is killing animals. In neighboring North Carolina, two PETA staffers have been charged with felony animal cruelty and obtaining property (the animals) by false pretenses. Adria Hinkle and Andrew Cook allegedly killed cats and dogs in the back of a PETA-owned van, stuffed their bodies into trash bags, and threw them into a dumpster. The pair is currently awaiting trial.

Martosko continued, “PETA's president is on record saying that her organization is dedicated to ‘total animal liberation.' And her employees are following through by liberating adoptable animals from life itself. In September, PETA bragged about bringing 32 stray dogs back to Virginia from the Hurricane Katrina disaster area. I'm guessing at least 28 of them have already been put down.�


To view photos of the dead cats and dogs allegedly killed by PETA (Warning: These are graphic images of animal cruelty), or for more information about the group's massive euthanasia program, visit www.PetaKillsAnimals.com.

To schedule an interview contact Andrew Porter at (202) 463-7112.



The Center for Consumer Freedom is a nonprofit coalition supported by restaurants, food companies, and consumers, working together to promote personal responsibility and protect consumer choices.

For media comment, contact our media department at 202-463-7112 ext 115
URL: http://www.consumerfreedom.com/pressRelease_detail.cfm/release/148

Copyright © 1997-2007 Center for Consumer Freedom. Tel: 202-463-7112.

Posted By : Anonymous

(Cross-posted on Workplace Prof):

Thurman w...

Message posted on : 2007-08-29 - 14:53:00

(Cross-posted on Workplace Prof):

Thurman was suspended the second time (or his initial suspension extended) for a DUI, not specifically for using alcohol. So what is the rule if the suspension is based not on abusing alcohol itself, but on a violation of a specific legal rule, albeit a violation that occurred because of the disability of alcoholism?

Let's assume that six months of sobriety means someone no longer is actively abusing alcohol. If Thurman's argument flies, does it mean that a league punishment of longer than six months for a DUI (or any other alcohol-related misconduct by an alcoholic) violates the ADA, if the person has stopped drinking? Does it also mean that a criminal punishment of jail time or probation longer than six months for DUI violates the ADA, if the person has stopped drinking? That seems like a boundless argument.

Posted By : Howard Wasserman

i wouldn't be surprised to read a story in a coupl...

Message posted on : 2007-08-29 - 16:49:00

i wouldn't be surprised to read a story in a couple years that louisville slugger slid some money under the table to the new york city officials.

my main question/concern: who pays?

wood bats are an expense that many new york city high schools likely can't afford or didn't put in their budget. it appears that no alternate plan for funding has been implemented and, without a plan, what are the high schools in New York City that start play next Wednesday to do?

Posted By : Adam W

This is a fantastic sports blog. Its great that y...

Message posted on : 2007-08-29 - 18:21:00

This is a fantastic sports blog. Its great that you guys are combining the idea of law and sports together. Would you guys consider adding my site to your blog roll? I'll do the same for you!

The website I run is called American Legends: http://www.americanlegends.blogspot.com

Many thanks!

Posted By : J. Mark English

Professor McCann, I hate to use this term, but is...

Message posted on : 2007-08-29 - 19:38:00

Professor McCann, I hate to use this term, but is the EEOC not starting us down a "slippery slope" with the Tarpley ruling? If, by their determination, someone has an addiction that they have received treatment for, and will not affect their performance of their intended job, what is to keep any kind of addict from claiming the same kind of discrimination once they have received "treatment".

Could Pete Rose seek treatment for his gambling addiction, then ask Major League Baseball for reinstatement so that he may manage a minor-league team somewhere? And once MLB shoots him down yet again, he could turn around and file suit against MLB after claiming discrimination under ADA since the EEOC claims an addiction is protected?

Posted By : Ryan Kendall

Seattle would do itself a favor by working somethi...

Message posted on : 2007-08-29 - 20:45:00

Seattle would do itself a favor by working something out to try and keep the Supersonics in town. They need to find a way to build that team a new arena because Key Arena is a dump. Oklahoma City? Look, I know that they have built a new arena trying to lure a pro sports franchise to their city but I have been to Oklahoma City and it is not that big. It's maybe a little bit bigger than Jackson, MS for those of you in Professor McCann's Sports Law class to relate to. Plus, how well would an NBA team do smack in the middle of football country. Don't kid yourselves, Oklahoma (just like Texas and many other southern state) is football country. An NFL team in OKC? Maybe, if enough Cowboys fans can convert. But the NBA? I just don't see it being viable there long-term. But then again, I could be wrong. I'm from Nashville and people said that hockey would never work there. But now the Nashville Predators are rapidly gaining popularity there. It will be interesting to see how this plays out for the Supersonics if and when they move.
Posted By : John Biggs

It would be interesting to get Prof. Smith's comme...

Message posted on : 2007-08-30 - 14:55:00

It would be interesting to get Prof. Smith's comment on how the income would be taxed when realized (we discussed this in Prof Karcher's original post as well)? Clearly there will be taxes owed after he sells the ball and realizes a gain (either with a basis of 0, or price of admission) but should this be taxed as ordinary income or capital gains? Holding on to the ball is after all, an investment of sorts...
Posted By : Jimmy H

"wood bats are an expense that many new york city ...

Message posted on : 2007-08-30 - 16:01:00

"wood bats are an expense that many new york city high schools likely can't afford..."

Schools probably will use Baum or some other brand of composite wood bats. These bats, used by some in the minor leagues, are much more durable than wood (they would easily last a season or two).

Presuming school discounts, each Baum bat would cost in the range of $60-75, which is between a 1/2 to 1/3 the cost of a aluminum or ceramic bat.

Posted By : Anonymous

"I am surprised that - as far as I know - the p...

Message posted on : 2007-08-30 - 19:31:00

"I am surprised that - as far as I know - the players association has not appealed the denial of reinstatement or publicly commented on it. I would think the union would NOT take kindly to the league refusing to reinstate a player who has served his suspension and complied with its terms. If I was the union, this would be a major issue I would want addressed.

Fischer obviously has not seen this piece by ESPN.com's Howard Bryant. It is actually about the Vick case, but Bryant is calling out the NFLPA for not defending its players more vigorously. He believes the union values labor peace above all else - and given the prosperity of the league and its players (not to mention what a lead balloon the last players' strike turned out to be for the union) I can hardly blame them.

Posted By : Joshua

http://www.wral.com/news/local/video/1761187/
<...

Message posted on : 2007-08-30 - 21:48:00

http://www.wral.com/news/local/video/1761187/

For anyone who wants to see the entire hearing, just click on the appropriate tab.

Posted By : Anonymous

Wral will have a live stream tomorrow too.

Message posted on : 2007-08-30 - 21:49:00

Wral will have a live stream tomorrow too.
Posted By : Anonymous

If I owned an MLB team, i would lobby with the oth...

Message posted on : 2007-08-31 - 11:03:00

If I owned an MLB team, i would lobby with the other owners to finance wood bats to high schools and colleges.

Yes, it would be expensive, however, so is giving a prospect who has never picked up a wood bat a $6 million bonus, only to find he can't play.

Posted By : Anonymous

anyone have a cite for the case?

I'd like t...

Message posted on : 2007-08-31 - 11:06:00

anyone have a cite for the case?

I'd like to read the opinion

Posted By : Anonymous

I don't understand this post. How do George Stein...

Message posted on : 2007-08-31 - 16:07:00

I don't understand this post. How do George Steinbrenner and Drayton McClane owe an "ethical obligation" to prop up a failing business? And is there any end to this "ethical obligation," or are current (and future) MLB owners morally obligated to pour money endlessly down the (apparently) black hole that is Puerto Rican baseball?
Posted By : Anonymous

Actually, I had read the Bryant article. While I ...

Message posted on : 2007-08-31 - 18:42:00

Actually, I had read the Bryant article. While I think the NFL player's union has done a great job increasing the average NFL player's salary the last decade, that does not mean that a union should choose to never oppose the NFL. I heard a report on ESPN today that the union will seek to prevent Vick from losing his signing bonus. If they are doing this, why not help Thurman practice his trade?
Posted By : David

Is Andre still apologetic that a criminal tried to...

Message posted on : 2007-08-31 - 20:19:00

Is Andre still apologetic that a criminal tried to railroad three innocent people?

Idiocy.

Posted By : Anonymous

Marc, Excelent Post!!!

I fully agree, ther...

Message posted on : 2007-08-31 - 23:43:00

Marc, Excelent Post!!!

I fully agree, there is an ethical obligation here. US Pro leagues love to snatch foreign talent (especially MLB and NHL), they (MLB) should do all they can to support these leagues, if not for the clear reason of supporting a league that produces great talent, then for the very reason of the production of future talent. There is more than enough money going around to spend some overseas to ensure foreing talent in our pro leagues.

Also, kudos for informing us on the PR league's involvement and history in breaking the race barrier in sports, I was unaware of this and I allways appreciate a bit of genuine sports history!

Posted By : Jimmy H

"Deceptive advertising"????

Nope. It was k...

Message posted on : 2007-09-01 - 17:06:00

"Deceptive advertising"????

Nope. It was known that David Beckham had a bad left ankle; that's why it took so long to get him into a full 90-minute match. Now the knee on the other leg is hurt as well, and he's out for the season. No deceptive advertising;
it would be as if Landon Donovan wrecked his knee and was out for the season. That is a risk a fan buying a ticket takes.

This would be similar to buying a ticket in early October for a Utah-Cleveland January NBA game--only to have LeBron James go out for the season with a knee injury in late November.

There is no deceptive advertising here; anyone knows when one buys a ticket for an event--rock concert, sports game, etc.--that there is a possibility that the concert could be postponed or cancelled (refunds are offered) or a major player(s) you want to see may not be playing due to injury or suspension (the games still go on in either case).

Indiana fans, buying tickets before the season started on the premise that the Pacers were a possible "championship" winning team, I don't think got any refunds--I'm not sure about this!--after the Pacers went into the stands in Detroit four years back and blew their "championship" hopes up with every swing of a fist. (Now if they had sued the Pistons, the Palace of Auburn Hills, and the sherriff and police departments, claiming lack of protection . . . I don't know if the fans had a case, but I think the Indiana PLAYERS would have.)

Posted By : Anonymous

Here's a question and then a comment. First, the q...

Message posted on : 2007-09-01 - 19:19:00

Here's a question and then a comment. First, the question: did the ticket(s) have some kind of clause as part of the license agreement to use saying that there are "no refunds/cancellations" due to injuries or substitutions?

The comment: Before I became a lawyer, I was a free-lance writer covering classical music. There were certain artists who had a reputation for canceling performances due to illness (or in one case, the dislike of air travel to the US from Europe). Only if that person was scheduled to perform a solo recital and canceled, did the hall offer refunds. If the artist was performing as part of an orchestral program and canceled, then it was tough luck -- even if the person had a history of lack of performance. The evening's program would be changed either by use of a substitute person or no soloist at all.

As you said, legally, it's highly unlikely and I doubt there would be an deceptive ad argument.

Posted By : Mark Conrad

It seems to me that any ticket holder who seeks a ...

Message posted on : 2007-09-01 - 20:32:00

It seems to me that any ticket holder who seeks a refund would have a huge hurdle to overcome. Not only does the law not offer much support, but the ramifications that would occur from this precedent could be devastating. If a court held that MLS was obligated to refund ticket holders because Beckham was injured, then a precedent would exist giving support for ticket holders to seek refunds whenever a player is injured. One could allege that he or she purchased the ticket to the game to see "X" athlete, but now he or she is injured; therefore, in light of the MLS ruling, the ticket holder would be entitled to a refund. It seems that a ruling requiring refunds would open the door for a flood of litigation. If this does happen, then it is intuitive that ticket prices will more than likely increase. Teams will incur additional legal expenses and will pass the expenses on to the ticket holder. So, it's possible that a ruling might help ticket holders momentarily, but in the long run, leave ticket holders worse off.

The situation is very analogous an experience I had one time. I went to see the Broadway Play The Producers a few years ago. At the time, the cast members included Matthew Broderick and Nathan Lane. I purchased my ticket somewhat in anticipation of seeing Broderick and Lane. I arrived at the theatre and received my program only to learn that Broderick and Lane would not be in the cast that evening. Although they had been advertised as the main cast members, they were not present for my show. I saw the play with the roles being played by Broderick and Lane's understudies. However, I was not in anyway upset by this to the point of demanding a refund. I had paid the ticket price to overall see the play, not the two actors. I still was able to see the play. The same is true in a MLS, baseball, basketball, football, etc. You might purchase the ticket with the hope of seeing Beckham or Broderick, but the ticket allows you to see the game. One is still able to achieve what the ticket insures - soccer, baseball, etc. - just a certain player is not visible. All this being said, one is still disappointed to learn that Broderick or Beckham will not be playing for some reason, but a refund is not warranted because one still saw the overall production.

Posted By : Matthew Courtner

The Puerto Rican economy is in shambles. Even in ...

Message posted on : 2007-09-01 - 23:16:00

The Puerto Rican economy is in shambles. Even in the best of times it's a weak facade bankrolled by US taxpayers. People in Puerto Rico are not going to games, no matter how much money MLB may eventually shove into the league. And, yes, the young talent is in Arizona, Venezuela, the DR, and Mexico during the off-season

I lived there from 2001-2006 and found basketball and volleyball more popular (overall) than baseball. Yes, baseball's still popular and a great deal of talent comes off the island, but the Puerto Rican league of the 1950s and 1960s is long gone.

Kent

Posted By : Anonymous

I think it is clear that anyone seeking for a refu...

Message posted on : 2007-09-03 - 10:31:00

I think it is clear that anyone seeking for a refund would have a thin chance of success.

However, the post is very interesting because it contrasts very well with what happens in bigger, more established leagues. I mean no disrespect to the MLS, of which I am a fan, but the issue only arises due to the magnitude of Beckham's name in relation to all others. While only a marginal percentage would buy Barcelona tickets to watch Ronaldinho or Henry, because watching Barcelona and a Spanish League game is valuable on its own, in the US there are actually people that buy tickets just to watch Beckham. People that never went to a game, that aren't fans of the Galaxy. In that sense, Mark's comment regarding the Solo artists makes a lot of sense.

In any way, a tough claim.

Posted By : Luis Cassiano Neves

Your well reasoned opinion is appreciated. I agre...

Message posted on : 2007-09-03 - 12:55:00

Your well reasoned opinion is appreciated. I agree that college students who do not qualify as choir boys should spend thirty years in jail.
Posted By : Anonymous

Mr. Rapp, I'm an artist, not a lawyer, so hopefull...

Message posted on : 2007-09-03 - 18:56:00

Mr. Rapp, I'm an artist, not a lawyer, so hopefully this question makes sense. Would the players have a case even if all that identified them were their uniforms and numbers? Wouldn't the uniforms and numbers be owned by the university? And since they are used over and over again, each time a player leaves school, I would think it would be a harder case to prove?
Posted By : TD

I think any fan that would even think of trying to...

Message posted on : 2007-09-03 - 19:22:00

I think any fan that would even think of trying to get a refund should save their breath, as well as their legal expenses.

If someone were to win against the MLS for this "Deceptive advertising" claim, what is to keep any fan of any team from claiming the same thing.

What happens when you buy a ticket to say, a Yankees game, and when you get there, you are informed Derek Jeter or Alex Rodriguez were given the day off to rest?? Do you then have a claim against the Yankees?? NOOOOOOO....these "talking heads" on tv are just on there to get paid by saying what the media producers want to hear....

Posted By : Ryan Kendall

However, the post is very interesting because i...

Message posted on : 2007-09-03 - 20:49:00

However, the post is very interesting because it contrasts very well with what happens in bigger, more established leagues. I mean no disrespect to the MLS, of which I am a fan, but the issue only arises due to the magnitude of Beckham's name in relation to all others. While only a marginal percentage would buy Barcelona tickets to watch Ronaldinho or Henry, because watching Barcelona and a Spanish League game is valuable on its own, in the US there are actually people that buy tickets just to watch Beckham.

A situation similar to MLS and Beckham can arise when people buy tickets to PGA tournaments and Tiger Woods decides not to play. As far as many fans are concerned Tiger is the PGA.

Posted By : Peter

MLS would be setting a ridiculous precedent by ref...

Message posted on : 2007-09-04 - 00:26:00

MLS would be setting a ridiculous precedent by refunding ticket purchases due to Beckham's injury. As has already been alluded to on this forum, when a fan purchases a ticket to a sporting event (be it professional or college sports), he or she takes the risk their favorite player or the one everybody came to watch will not play due to injury or possibly a suspension. It's just a fact of sports.
I can relate to this situation somewhat. When I was in Tennessee a few weeks ago I purchased a ticket to a TN Titans preseason football game. While I am a Titans fan, it can definitely be argued that myself along with many other Titans fans who purchased tickets to that game did so to see Vince Young (the obvious franchise player of that team). When it was announced the day of the game that he was not playing that night due to a suspension, could we as Titans fans demand a refund for our tickets that night? Of course not. I know that the situations are different but the same premise applies. MLS should not set a damaging and dangerous precedent by issuing any kind of refunds related to Beckham's injury. Nor do I think they will do such a thing. Professional soccer is already a fringe sport in U.S. and around 5th to 6th in popularity. They would not want to further alienate themselves from the casual American fan or viewer by doing something so drastic and ill-advised.

Posted By : lambuthspe

That previous post should have been signed by John...

Message posted on : 2007-09-04 - 00:32:00

That previous post should have been signed by John Biggs. Apparently I have two Google accounts. I guess that's what I get for forgetting passwords.
Posted By : John Biggs

You were worried about a case resulting from a lat...

Message posted on : 2007-09-04 - 01:06:00

You were worried about a case resulting from a late hit in football. Take a look at Hackbart v. Cincinnati Bengals, Inc. (1979). Hackbart, a defensive back, was hit in the back of the neck by a forearm blow from Clark, an offensive lineman. It occurred after the play, it was interception, and Clark flagrantly hit Hackbart, though neither player complained at the time and no flag was thrown. Hackbart later discovered he had a neck fracture and sued Clark, there was clear video evidence of what he did. Circuit overturned the lower court's decision to dismiss the claim and remanded it for a new trial because "there are no principles of law which allow a court to rule out certain tortious conduct by reason of general roughness of the game or difficulty in administering it"
Posted By : Anonymous

I don't think there is any debate that it's a non-...

Message posted on : 2007-09-04 - 15:53:00

I don't think there is any debate that it's a non-starter from a legal standpoint.

Though not the focus of this blog, goodwill is mentioned and of course that is an asset that franchises take various steps to protect.

I am reminded of when PPV sportscasts were a little more wild west than now with a lot of independent operators in the field. The local media rights holder for the University of Arkansas put together a PPV package for one of their games (maybe South Carolina) and the Hogs played an absolutely dreadful game. Arkansas head coach Danny Ford sent a letter to members of the booster club apologizing for the terrible game and offered to refund the cost of the PPV purchase for anyone who mailed in a copy of their cable bill. A friend actually sent his in and got a check.

Posted By : Mark

fully realizing this is a legal blog, i still woul...

Message posted on : 2007-09-04 - 17:13:00

fully realizing this is a legal blog, i still would like to comment about the mls, as a viable sports alternative in the us.

personally, i do not feel the mls will ever make it with their current business model. as such, they are trying to be everything to everyone -- a fledgeling league, at that.

the mls should strongly cater to its base, true football supporters -- those dying to mimic the EPLs LaLiga's and Bundes of the world -- and stop catering to the soccer moms.

moreoever, television coverage (for the TRUE footy supporter) is, for lack of a better term, horrendous. i view matches in every major league weekly, and have never seen these idiotic extreme close-ups of players WHILST in the middle of game action. not talking about stopages, but WHILE the game is going on the pitch. not even going to mention the radio-announcer like calls of the match (beckham gets the ball, passes it over to jones..jones passes it over the left side to podunk...podunk passes it over to killmenow... killmenow passes the ball over to...) WE SEE THE SCREEN!

thank you.

Posted By : Anonymous

Mark's prior comment mentions pay-per-views. As a...

Message posted on : 2007-09-04 - 20:08:00

Mark's prior comment mentions pay-per-views. As a boxing fan I of course know quite a bit about PPV's because boxing is full of them - way too full, but that's another matter for another time. Watching a boxing PPV is always a somewhat risky proposition because the main bout can end very quickly. Even so, the caveat emptor doctrine always applies; it's understood by everyone that if you pay fifty bucks for a PPV and there's a first-round knockout, there are no refunds.
Posted By : Peter

I appreciate your blog..wat done to Nicholas was n...

Message posted on : 2007-09-05 - 11:19:00

I appreciate your blog..wat done to Nicholas was not fair...being forced to sit out for one week is ridiculous..thats the reason athletics should always wear the best athletic shoes which is comfortable for them.
Posted By : Lizy

And the touted undercard fights often change as we...

Message posted on : 2007-09-05 - 14:18:00

And the touted undercard fights often change as well.
Posted By : Mark

Are human beings more important than dogs? Or what...

Message posted on : 2007-09-05 - 21:49:00

Are human beings more important than dogs? Or what? Read below
Racial tension

Photograph of a tree outside Jena High School. This is not the tree from which the nooses were hung.Racial tensions resurfaced in Jena on September 1, 2006, when hangman's nooses were discovered in a tree in Jena High School's campus after a black student tried to sit with white students at lunch. The school head recommended that the noose-hangers should be expelled. The board of education overruled him and the three white student perpetrators received in-school suspension.[4] On November 30, 2006 an arson fire destroyed the main academic building at the school. On December 4, 2006 a fight broke out on campus, after which six African-American students, later dubbed the Jena 6,[5] were arrested and charged with attempted second-degree murder. Law enforcement officers told the Alexandria Daily Town Talk they have found no links between the noose incident, the arson fire, and subsequent fights[citation needed].

The six accused of attempted second-degree murder are black and were fighting a white student after a week of intimidation by white students, including the one who was assaulted.[6] Intimidation cited includes an incident in which a white student brandished a gun at a convenience store after a verbal exchange. Students allegedly wrestled away the gun and were then held in custody and charged with theft while no charges were made against the white student.[7]

On June 26, 2007 the first day of trial for Mychal Bell, one of the defendants, the prosecutor agreed to reduce the charges for Bell to aggravated second-degree battery and conspiracy to commit aggravated second-degree battery.[8] Bell was found guilty by an all-white jury, and will face the possibility of up to 22 years in prison when he is sentenced.[7] The sentencing was originally scheduled for July 30, but has been delayed. [9] However, the case is currently in dispute, as the black court-appointed public defender did not call a single witness in his attempt to defend Bell.[10] The other five students will be tried at a later date.

On August 24th, 2007, a bond hearing was held for Mychal Bell. Judge J.P. Mauffray ruled against Bell, citing four prior violent crimes in his past and three parole violations.

Mychal Bell's sentencing is scheduled for September 20th, when protesters in support of the Jena 6 are expected to gather from several parts of the country at the LaSalle Parish courthouse.

The town has gained international notoriety as an example of the alleged "new 'stealth' racism" that lives on in America[11] with national attention drawn to the events by a National Public Radio prime time story on July 30, 2007.[12] The town also featured in a BBC documentary, This World: "Race hate in Louisiana".[13]


[edit] References

I think it's obvious Chamberlain was throwing at Y...

Message posted on : 2007-09-06 - 19:26:00

I think it's obvious Chamberlain was throwing at Youkilis' head. The guy comes in with a 0.00 ERA and a strikeout to walk ratio of a little better than 4/1. That tells me he is pretty consistent around the strike zone. You don't just toss 2 pitches near 100 mph over a guy's head for nothing. He started him out with a breaking ball low and away, then moved a little further in with the next pitch, then went for the "earhole" pitch on two consecutive tries. I think it was a message that the Red Sox heard loud and clear. This was just another typical game in the greatest rivalry in baseball.
Posted By : Jason Canterbury

Professor McCann,
I know this is unrelated to ...

Message posted on : 2007-09-07 - 21:17:00

Professor McCann,
I know this is unrelated to your article, but you should read Jason Stark's article on espn.com about the double standard used to view professional athletes who have been linked to steroids or HGH. As you are probably aware, Rick Ankiel, an outfielder for the St. Louis Cardinals (my favorite team) has been linked to using HGH in 2004, which was just before baseball made it illegal. Stark's article is excellent because it provides a useful and thoughtful analysis of the double standard people use when talking about Barry Bonds vs. most other players linked to performance-enhancing drugs. Stark also examines the different treatment given to football players vs. baseball players by people who are discussing performance-enhancing drugs. It's an excellent article and I recommend giving it a read. Here the link: http://sports.espn.go.com/mlb/columns/story?columnist=stark_jayson&id=3009424

Posted By : John Biggs

great site, hey when you guys get time check out t...

Message posted on : 2007-09-09 - 22:51:00

great site, hey when you guys get time check out this nebraska cornhusker website.

www.huskerscoop.com

Posted By : Anonymous

I don't know where Ms. Cushman lives, maybe DC? Fo...

Message posted on : 2007-09-10 - 02:36:00

I don't know where Ms. Cushman lives, maybe DC? For one thing, maybe she has not noticed, American sport's fans will put up with murder, wife beating, gang shootings--but not DOG FIGHTING.

Next, how on G_D's green earth can she compare a one-time incident of burglary/trespass to 6 YEARS of buying, killing, fighting dogs, gambling, etc.? On top of that, who ever heard of Colt Brennan? I mean he's 24 and still in college. Millions of people had not investment in him. By the time he came into the limelight, he had cleaned up his life.

I'm not sure, maybe she did not read the plea, maybe she has not seen the polls against Vick, maybe she does not follow the NFL, etc.

Vick still has to resolve the issue of gambling. The NFL seems to think he gambled--(Goodell's letter)that may be the reason he will not play again. At any rate, I wish him well and hopes he does what he says he will.

Posted By : Anonymous

I think it's pretty terrible of Cushman to "out" t...

Message posted on : 2007-09-10 - 02:57:00

I think it's pretty terrible of Cushman to "out" this poor college kid. While I'm not a Hawaii fan,(UCLA for me) she told me something I did not need to know. This poor guy. This incident happened almost FOUR years ago!!Hopefully no one cares what she thinks.

Well, her father has not recovered well, he is still hated by many in his own party!

Posted By : Anonymous

I think your underlying assumption and your appell...

Message posted on : 2007-09-10 - 09:49:00

I think your underlying assumption and your appellate review analogy are wrong for at least some calls.

Take, for example, whether a wide receiver has both feet in bounds when he catches the ball in the NFL. This is a very difficult call to make in real time because you have to simultaneously look at the ball (is the receiver juggling it?) and the receiver's feet (has the receiver stepped out?). Further, the relevant officials must have the right angle to see all the things they need to see. Often, that's not the case.

I do not see how it can be seriously argued that reviewing a videotape of such a play will not improve the accuracy of calls. First, videotape allows an official to slow the play down and go frame by frame to determine where the receiver's feet were when he obtained possession of the ball. Further, replay gives the official numerous additional angles, and thus more information. Both of these factors are likely to improve accuracy by using video qua video, rather than simply having more sets of eyes viewing the very same thing that the official viewed.

Both of these factors also demonstrate why instant replay is not like appellate review. Generally, appellate judges look at exactly the same evidence as the trial judge; they do not accept new evidence. Instant replay, however, offers new evidence, e.g., new angles and better "vision" from closeups and slow motion video.

Another example is tennis's new automatic instant replay system, which does not rely on video at all. As Andre Agassi noted during the Federer-Roddick match last week, this system ensures that all calls are objective.

Posted By : Anonymous

Or, for that matter in:

&gt; Basketball, o...

Message posted on : 2007-09-10 - 10:08:00

Or, for that matter in:

> Basketball, on whether a shot beat the buzzer (get a shot of the clock over the basket and the player releasing the shot);

> Hockey, on whether the puck was all the way over the line or not (stationary camera over the goal);

> Also from football, on whether the ground caused a fumble or did a player step out of bounds before scoring [i.e. Utah-Air Force from this past Saturday).

Even soccer is thinking of using a system similar to tennis to determine goal/no goal--having already seen several matches in the top leagues (including a qualifier!) in the last month alone, in could help.

As long as there are set limits--what can replay be used for, how many times each team/player can call for it, how much time is spent on the review itself, etc.--and not on judgement calls (block/charge, pass interference, etc.), I don't see the problem.

Also, replay has already been used after the fact: Witness Kobe Bryant's two suspensions this past season (neither penalized at the time), Amare Stoudamire's suspension in the playoffs (tossed out of the game at the time, suspended later on), both in the NBA; and there have been several suspensions in soccer administered after the fact, without penalties or sanctions being applied at the time.

Posted By : Anonymous

I think we have to remember the fans too. After th...

Message posted on : 2007-09-10 - 10:31:00

I think we have to remember the fans too. After the scandal of the NBA, but even before that, fans often feel they are victims to unfair calls on their team.

Some athletes are not likable. Who could forget John McEnroe? This lets the fan have more confidence that fouls/out of bounds/time out/etc. can be verified. There are limits on the number, and there is a time limit on how long the tape can be review. The best part is that the fan gets to see the review. It restores confidence and this good, because after all, they are the ones paying paying the bills.

Posted By : Anonymous

In order for me to agree with you, I think I'd hav...

Message posted on : 2007-09-10 - 14:45:00

In order for me to agree with you, I think I'd have to believe two things:

1. All referees are unbiased, and don't let their emotions/feelings or subjectivity to affect their calls, knowingly or unknowingly.

2. All referees are truly trying to make the correct call, and don't have such factors such as how much money they have riding on the game, who their son's favorite player is, and which coach gave them a sweet trip to Cancun.

Since I believe neither, I don't think I can agree with you.

Posted By : Anonymous

Replay is not used for judgement calls in football...

Message posted on : 2007-09-10 - 14:51:00

Replay is not used for judgement calls in football. It's not used to determine whether or not there was pass interference, it isn't used to determine if a play should have been offsides rather than illegal procedure, it isn't used to determine personal fouls or illegal formations (sure could have used it in Austin on September 1 for illegal formation and wish it wasn't there on replaying fumble vs. incomplete pass).

It is limited to the hardest calls and those that are least likely to be distorted by slow motion. Possession of the ball, plays determined by the sideline, goal line, or end line, possession of the ball (and only the issue of complete/incomplete could be skewed by replay), resolving placement of the ball, resolving timing issues.

A quick whistle ruling a pass incomplete rather than a fumble or blowing a play dead rather than a fumble.

Replay is an important addition to the game.
1. It makes good public policy sense, especially in the college game where conference assignment of officials raises a perception of possible bias. It is better to delay a game a couple minutes and get it right than to not get it right and have it replayed all week or all season as an error that cost team X its shot at ______.
2. The video evidence has to be sufficient to show error. Replay begins with the presumption the call on the field is correct. In the NFL the man ultimately responsible for the call is the one who reviews it.

Posted By : Mark

Good comments all. I am assuming these comments ar...

Message posted on : 2007-09-10 - 15:12:00

Good comments all. I am assuming these comments are from four different people, despite the similarity in name.

Anonymous 4:

My precise point is that video review is not objective. It is just as influenced by subjectivity, perceptions, feelings, and emotions, because all those things affect how the official interprets the video. So if officials bring those things to the table, video review, subject to the identical influences, cannot be the solution.

And as to your belief that some refs are corrupt (a belief I do not share): What makes you certain that the ref reviewing the video is not just as corrupt? So again, since video is subject to the same problems you seem to be trying to avoid, it cannot be the answer.

Anonymous 1:

Everything you describe as an advantage to video review rests on the belief that what the video shows when we slow it down, go frame-by-frame, etc., reveals objective reality. And my precise point is it does not; it still remains subject to human interpretation, perceptions, and subjectivity, all of which will vary. Video is no more objective than live perception.

I stated in the original post that video can produce accurate results, but only because another set of eyes is looking, from different angles and for a longer period. But compare an appellate court judge, able to read a passage of testimony 10 times in understanding it, as opposed to a juror who hears it one time.

Also, I deliberately excluded tennis from the discussion because, as you said, that is a completely different system. It is a computer program that calculates, then illustrates, the flight and trajectory of a ball. And those reviews take all of about 15 seconds, between points, when everyone is standing around anyway. So tennis gives us the best of both worlds: It is, in fact, objective and accurate (assuming the program is installed and operating correctly) and it does not impose the same burdens of delay, interrupting the action, etc. No other sport has that, at least not yet.

Anonymous 2:

I also am not a fan of post-hoc video review for purposes of changing calls and punishments. I think it has the same negative effects on game officials, in terms of making them gun-shy about making certain decisions. And it still is not objective; we simply are valuing Stu Jackson's perception of what Kobe did (and what his *intent* was) than Violet Palmer's perception.

Posted By : Howard Wasserman

How can you cite the Rodney King case - the acquit...

Message posted on : 2007-09-10 - 15:17:00

How can you cite the Rodney King case - the acquittal there happened because of jury bias pure and simple. Identically the same as happened, by the way, in "Rodney King's revenge" a.k.a. the O.J. Simpson trial.

And how can you cite the United States Supreme Court on *anything* after Putsch v. Gore 2000?

JRB

Posted By : Anonymous

Professor Wasserman:

Would instant replay i...

Message posted on : 2007-09-10 - 15:36:00

Professor Wasserman:

Would instant replay in football work better for you if the penalty for an incorrect challenge were significantly higher than "losing a timeout?

Suppose when a team on offense lost a challenge, they lost possession of the ball wherever the previous line of scrimmage might have been. Suppose when a team on defense lost a challenge, they gave the offensive team first and goal at the defensive team's one-yard line. The penalty for being wrong in one's challenge here might be sufficient to discourage "strategic challenges" just to give players a breather, no?

Football does not use replay in some situations where it is probably well suited to "get it right". When a fight breaks out and multiple players are involved, replay is often very good at figuring out who started it and who retaliated and who left the bench to fan the flames and make the situation worse and ... That's when replay could be used very profitably as it would determine who really needs to be ejected from the game. The NFL doesn't seem to want to use it that way.

Instant replay isn't perfect by any means but it is good for assuring that some calls are confirmed or overturned when challenged. But if the price of a challenge were to be increased, there would be far fewer challenges "just for the heck of it"; and if replay were used more creatively, it might actually serve a real purpose on the field.

Posted By : The Sports Curmudgeon

Prof. Wasserman:

I do not understand your p...

Message posted on : 2007-09-10 - 15:44:00

Prof. Wasserman:

I do not understand your point. Video does reproduce objective reality. Officials then have to use their senses to interpret that reproduction of reality. The benefits of video, as you concede, are that it expands upon the limits of human perception by slowing down real events and allowing the same person to view things from different angles. Therefore, it produces, on average, more accurate calls. Though your post and comment are vague on this point, I do not think you disagree. Therefore, your argument seems to collapse into the claim that replay unduly interferes with the flow of the game. Have I misinterpreted your argument?

In addition, the benefits of replay accrue irrespective of whether the same official is also the official responsible for reviewing the replay. So contrary to your position, the benefits of replay do not depend on a different set of eyes viewing the replay. Rather, the same official who made the call could also be in charge of making the decision after reviewing the replay (though this would likely be more time-consuming).

Further, the benefits from instant replay do not come from spending more time on something, but from having better evidence. Instant replay simply comes from having different and almost always better evidence than the official had when he made the initial call. That's why replay is fundamentally different than appellate review.

Finally, an analogy to the Rodney King case makes no sense. Nobody cares about intent when examining whether a receiver is inbounds or not.

Anonymous 1

Posted By : Anonymous

Anonymous 1:

Video reproduces one perspec...

Message posted on : 2007-09-10 - 16:16:00

Anonymous 1:

Video reproduces one perspective or one view of reality, based on wherever the camera(s) happen to be situated and what they happen to capture. Move the camera two inches either way and you get a different view of reality (an important point that I left out of the original post). And then, yes, the video requires officials to use their senses to interpret that reproduction.

And that is my point: Replay relies on a human official (I never said anything about it being a different official, although that raises some interesting issues) interpreting events that he perceives on a video that, itself, is merely perceiving and recording events from one perspective. But that is very different from the belief of many replay supporters, which is that the video shows "what really and truly and objectively happened" on the play, that video does not lie and does not get it "wrong." Video just gives us a chance to look at the play more often and from more (still subjective) points of view. But we still are dependent on perceptions and perspectives. I still believe Ben Roethlisberger's knee was down before he crossed the goal line in the Super Bowl a couple of years ago. I may be the only person outside of Seattle who does.

Yes, part of my concern is interference with the flow of the game. But there are other negatives that I list in the original post. My point is that the benefits believed to come with replay--an objective and true view of the play--do not exist. What replay gives us is additional and repeated subjective views. Beneficial, perhaps, but I do not believe, on balance, that those benefits outweigh the delays and other costs.

I never said anything in the original post about feet inbounds; that was your contribution to the discussion. I mentioned Rodney King to illustrate that slowing the video down changes the story the video tells--maybe to make it more accurate, maybe less. And intent determination will become relevant with, for example, the NBA's plan to use video to evaluate flagrant fouls calls.

Posted By : Howard Wasserman

I think you're arguing against a straw man somewha...

Message posted on : 2007-09-10 - 17:09:00

I think you're arguing against a straw man somewhat. I don't think most people believe that replay will always give us the right answer because everyone (I think) has seen replays that are inconclusive. Rather, most people like replay because they realize the limits of human perception. In many circumstances, replay improves human perception by slowing things down and magnifying important areas. I will concede, as you point out, that replay is not omniscient; it only gives more information, not all information. Nevertheless, more information will generally lead to increased accuracy. So I think the debate really is about increased accuracy versus the downsides you raise.

There may be situations where replay does not increase accuracy (perhaps your flagrant foul example is one), but that's an issue of the proper scope of appellate jurisdiction, to use your analogy, rather than a dispute about whether we should have appeals at all.

As for how replay produces benefits, I understood the following passage from your original post to mean that it's important that a different official reviews the replay: "Having additional people (new "eyes") consider an issue, especially by spending more time with it (think about the time appellate courts have to analyze and decide issues compared with how long trial courts have), increases the likelihood that we will reach the best or most correct result." Perhaps I misinterpreted what you were saying.

Finally, I think most people (me included) would find the following comparison odd: "if we accept inevitable mistakes by players trying their best, why not also accept inevitable mistakes by officials trying their best?" Watching the success or failure of athletes is why people watch sports in the first place. Indeed, much of what we remember about sports could be characterized as mistakes, e.g., should Eckersley have thrown that backdoor slider to Kirk Gibson? I don't know of anyone that watches sports to see what officials do.

Anonymous 1

Posted By : Anonymous

Your argument sounds a lot like simple resistance ...

Message posted on : 2007-09-10 - 17:49:00

Your argument sounds a lot like simple resistance to technology and change. Replay itself has been improved over the years, and several of the points you bring up are out of date. In football, replay is much faster than it used to be. Furthermore, there now exist (minor) penalties in football and some other sports for making incorrect challenges. Whether the current penalties are strong enough is debatable, but that's an implementation issue.

Bringing up the argument that video is not objective is, frankly, silly. I could easily make the argument that you are a tomato. Any argument you make to the contrary would also be subject to interpretation.

Video replay may not be the whole story, but it provides much more of the story than there would be without it.

Posted By : Anonymous

Several years ago the NBA changed rules during the...

Message posted on : 2007-09-10 - 18:03:00

Several years ago the NBA changed rules during the playoffs to allow review of buzzer beater shots at the end of a quarter or game. At the press conference announcing the change, the rep from the NBA explained simply that it was not humanly possible for an official to tell whether a shot occurred .1 seconds before or after time expired. Thus any call he made was simply a guess. The NBA did not want a playoff game to be determined by a guess at the end so they went to replay to give them the best opportunity to be right.
Posted By : Anonymous

I'd like to start by adding a voice against all fo...

Message posted on : 2007-09-10 - 21:46:00

I'd like to start by adding a voice against all forms of instant replay. The officials are part of the game, essentially part of the field of play. Officiating errors are part of the game. A ball can bounce unexpectedly because the pitch was not level. A ball may be affected by a random gust of wind. We don't correct for such errors -- we just live with them. The same should apply to officiating errors.

Buzzer-beaters should be included in this. There is a measurement error inherent in the decision whether to allow the field goal or not -- but we should be able to live with it. If anything, the problem is the TV station attempting to second-guess the referee.

The Florida debacle of 2000 actually illustrates the problems of people who cling to notions of "objective reality". There is no "objective" result of that election -- the error of measurement (as seen by the differing results of all the recounts) is clearly greater than the effect that was to be measured (that is, the difference in votes between the two leading candidates). The solution is to abandaon the notion that "one of the candidates must have gotten more votes" [since we can't measure the number of votes gotten by a candidate to the requisite accuracy] in favour of the notion "we must have a definite procedure for selecting a winner", even if sometimes the result will not be very satisfying (I happen to dislike the candidate that ended up winning that election). As in sports, at the end one of the candidates had to win (but note that soccer used to have replays in case of draws), and just like the moments following a buzzer-beater there was an immediate rush to get various judges to decide who won. In reality, all the judges can do is declare that for _legal_ purposes, candidate X will be deemed to have gotten more votes -- the question of who "really" got more votes is meaningless. This is a bit different from sports where we expressly rely on the subjective view on the judge from the start. I'll end the analogy with the real divergence: that US appelate judges are political appointees, while sports refs are generally indepedent of the teams that play.

PS: The real issue with NBA officiating is the clear biases. Calls always go to the more famous player (the ``Dwayne Wade'' effect); there are different standards for fouls in the first quarter and in the last minute (the ''let the result be decided by the players'' effect); some rules are never enforced at all (the ''travelling is fine if you it leads to a dunk'' effet). Replays will never fixed that. I am not familiar with other US sports, but they likely suffer from similar problems.

Posted By : Anonymous

Anonymous 9:46--notice the next time a call is mad...

Message posted on : 2007-09-11 - 01:29:00

Anonymous 9:46--notice the next time a call is made late in a game, that the people who are crying "Why did the ref call that NOW??" may also be the person who says "Why don't the refs call the game the same early in the game and late in the game?"
(Holding my hand up--I'm guilty of that!!!)

Further using a soccer analogy: Are you telling me that a referee would not mind better help--tech or other--trying to determine whether a ball completely crossed the goal line, than an assistant referee 50 yards away looking from the far sideline and the ref himself 25 yards away on the field, but looking through several bodies? If the modified "Hawkeye" system (what is used in tennis--pretty good idea!) does work in soccer, I'm sure referees in top leagues all over would celebrate. (After seeing at least half-a-dozen matches in the last two weeks where the question of in-or-out was called wrong by the referees, anything should help.)

Posted By : Anonymous

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Message posted on : 2007-09-11 - 02:38:00

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Posted By : Marjan

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Message posted on : 2007-09-11 - 09:50:00

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Posted By : Tripodyssey

Anon 9:46:

Would you fix officiating errors...

Message posted on : 2007-09-11 - 10:06:00

Anon 9:46:

Would you fix officiating errors if it were costless to do so?

Posted By : Anonymous

The difference b/w the 2000 election and instant r...

Message posted on : 2007-09-11 - 10:18:00

The difference b/w the 2000 election and instant replay in sports is that it is far easier to reduce the measurement error in assessing calls in sports. In the 2000 election, there were simply too many people involved and too many steps involving transportation of ballots, ballot accuracy, etc. This made it effectively impossible to reduce the error to a level that would give a clear winner.

In sports, there are many cameras being pointed at the field already, and this makes it cheap to verify close calls. It would be incredibly lazy to not use such information.

Posted By : Anonymous

We don't accept that the police officer at the sce...

Message posted on : 2007-09-11 - 10:23:00

We don't accept that the police officer at the scene is part of the game and infallible nor do we deem charging decisions by prosecutor's or grand juries to be part of the game and infallible, we have a trial system to review those decisions.

We don't accept that the jury or judge are just part of the game or infallible and have an appellate system.

In criminal matters we don't even accept the appellate courts as the final say and have executive clemency.

The standard of review for replay reversal is high and not a burden easily met. What makes the college system interesting to me is that it is for the most part not a challenge system but one where the replay official is essentially a member of the officiating team who can raise the issue of reversal sua sponte.

In the college game the replay official is rarely an appellate court but part of the "trial".

Posted By : Mark

Mark:

Actually, we do accept that the judge...

Message posted on : 2007-09-11 - 11:18:00

Mark:

Actually, we do accept that the judge is part of the game. The system of appellate review is not nearly so comprehensive. Most decisions that do not dispose of a case (decisions about evidence, decisions about discovery and exchange of information, decisions refusing to dismiss or end a case), which is to say the majority of decisions that a trial court makes, virtually never can be immediately appealed. In many cases, they never will be subject to appellate review at all. And the decisions that sports officials make (were both feet in bounds, was the ball fair or foul, was it a flagrant foul) are more analogous to these sorts of individual, non-appealable rulings than to a final decision after trial or granting summary judgment.

We have made a value judgment that, whatever benefits an appeal gives us in terms of accuracy are outweighed by the drawbacks of this sort of piecemeal review of multiple individual, non-dispositive decisions that interrupt the flow of the case in the trial court. It also may be that the end result eliminates the need to review a particular decision. If I win the case despite that evidentiary ruling, there is no reason to appeal; if I win the game despite that call, I should be satisfied). And it is not certain that the appellate court, if it disagrees with the trial judge, is "right" (in any objective sense) while the trial judge is "wrong."

And that was the precise point I was trying to make in the original post. The accuracy benefits that come with replay are not so great as to justify the interruption in the game and the other efficiency costs that come with replay.

Posted By : Howard Wasserman

"And the decisions that sports officials make (wer...

Message posted on : 2007-09-11 - 12:21:00

"And the decisions that sports officials make (were both feet in bounds, was the ball fair or foul, was it a flagrant foul) are more analogous to these sorts of individual, non-appealable rulings than to a final decision after trial or granting summary judgment."

You've neglected to mention the collateral order doctrine. Even if your analogy holds up (and I do not think it does), why isn't the narrow category of calls currently subject to review on instant replay akin to the narrow category of appeals cognizable under the collateral order doctrine? (And why wouldn't a review system controlled by officials be analogous to certificates of appealability of non-dispositive issues in the federal system, another way around the final judgment rule? And what about review via a writ of mandamus of the types of decisions you mention?)

Trying to draw a direct analogy here is, I think, unhelpful, but the point is that even federal law recognizes many exceptions to the final judgment rule.

Interestingly, based on your last comment, Prof. Wasserman, you appear to favor the system of review that baseball has: playing games under protest. This system is, I think, very similar to the old writ of error, which examined only errors of law, rather than current right to an appeal, which also (narrowly) reexamines facts.

Anonymous 1

Posted By : Anonymous

Anonymous 1:

I noted the exceptions to fi...

Message posted on : 2007-09-11 - 12:35:00

Anonymous 1:

I noted the exceptions to finality in the original post. But those exceptions or interpretations are limited to such a small number of cases that they do not defeat the basic rule of finality. For example, the collateral order doctrine is basically used only for orders denying official and government immunity in civil rights actions. Trial courts rarely certify issues for appeal. And mandamus is explicitly supposed to be an "extraordinary" remedy. Prof. Steinman's article (which I link to in the post) does a good job of explaining the appeals system.

Your last point is a good one. I do like baseball's system of playing under protest. And your distinction between law and fact review as to the two systems is a good one.

Posted By : Howard Wasserman

Baseball's rule is more similar to law because it ...

Message posted on : 2007-09-11 - 13:15:00

Baseball's rule is more similar to law because it is about issues of rule rather than fact.

Football though has limited the scope of review to only those plays where video can help establish fact (feet in or out, ball over the plane or not, possession lost prior to being down by contact or after).

In baseball though the nature of the game and the playing field makes it easier for an official with good mechanics to have an unobstructed view of the play. Most plays involve two people and the ball and the instant of a catch in the infield often determined by sound rather than sight. At most you will have three people involved in a play in all but the most bizarre circumstance.

In football you can't use auditory clues to determine a catch. It is not uncommon on short yardage situations to have all 22 players piled up in a scrum with at least two players between every official and the ball.

The biggest flaw I see in replay is that no one else has adopted the Sun Belt's fixed goal line camera arrangement. I've seen a number of games where the ruling on the field had to stand in ruling on possession or scoring because it is all but impossible to make a cross the plane determination without a goal line camera and often in that situation the official making the call is behind the play.

The only situation likely to produce the King style concern of slow motion creating a different impression is in a catch/no catch situation where the play has the ball briefly and loses it.

Posted By : Mark

Very interesting take on the instant replay issue....

Message posted on : 2007-09-11 - 15:37:00

Very interesting take on the instant replay issue. Personally, I think instant replay is by far the most objective way to go about review. Notwithstanding this objectivity, I agree that it slows down the natural rhythm of the game; especially in the NFL with coach's challenges, etc. It seems that you are attacking this idea from a historical perspective, relaying the idea that the game should stick to its roots, and be portrayed as American Pastimes, not riddled with technology to slow the game down. Obviously, different sets of eyes will bring opposing interpretations, but what other method exists that can compete with film. I don't know of any other that can compete with the objectivity of live film.
Posted By : Jordan Bird

And we recognize the value of another set of eyes....

Message posted on : 2007-09-11 - 16:44:00

And we recognize the value of another set of eyes. We don't use four man umpire crews in minor league ball but do in the majors and expand that to six in post-season.

The NFL and the colleges started with three man crews calling games and that has gradually increased to seven.

Basketball went for years with a two person crew and now three is the standard.

Posted By : Mark

could we not have left this discussion until after...

Message posted on : 2007-09-11 - 20:28:00

could we not have left this discussion until after the season is over .... the umpires appear to have been made aware of this study and from what my DirecTV Extra innings subscription tells me, the umpires are over-compensating for the bias
Posted By : Anonymous

Guy is actually wearing a black shirt. Not green.

Message posted on : 2007-09-11 - 20:44:00

Guy is actually wearing a black shirt. Not green.
Posted By : 100% Injury Rate

Geoff,

What an excellent post. There are a ...

Message posted on : 2007-09-11 - 22:49:00

Geoff,

What an excellent post. There are a lot folks out there who have already convicted Bill Belichick of "something bad," but as you detail, it's not clear that any NFL rules were broken or that Commissioner Goodell has the requisite authority in this instance to remove Patriot draft picks.

Also, it's interesting how our instinct to punish apparent rule-breakers might be thwarted or at least moderated by the NFL's own rule book.

Posted By : Michael McCann

Quite a few folks on sports-related message boards...

Message posted on : 2007-09-11 - 23:29:00

Quite a few folks on sports-related message boards I frequent, and even one of the hosts of ESPN's NFL Live show, have suggested that losing draft picks isn't strong enough because it lacks immediate impact - instead, they argue, he should make the Pats forfeit the game to the Jets.

Now, I'm not so sure about game forfeiture as punishment for rule violation. For one thing, forfeiture is a meaningful punishment only if the offending team wins the game in the first place. If the Jets had won that game in spite of the Pats' cheating, what then?

More importantly though, forfeiture amounts to a gift for the other team, the one that couldn't win its game on the field. If the Pats had to forfeit the game to the Jets and it wound up costing them a playoff spot, I would have no sympathy for the Pats. I would, however, be very sympathetic toward any other team that got aced out of a playoff spot by the Jets because of the extra win the Jets were given by the league. If forfeiture is an option, it should be treated as a loss for the Pats but a tie, or perhaps even a no-contest (i.e. the game doesn't count in the standings at all), for the Jets.

But what say you about game forfeiture as punishment for this sort of thing?

Posted By : Joshua

It's being reported that all teams were sent a mem...

Message posted on : 2007-09-12 - 01:52:00

It's being reported that all teams were sent a memo warning them not to use video cameras or recording eqipment on the sidelines at all, and specifically not to steal signs. For instance, per cbs sportsline:

"The rule is that no video recording devices of any kind are permitted to be in use in the coaches' booth, on the field, or in the locker room during the game," the league said in a statement from spokesman Greg Aiello. "Clubs have specifically been reminded in the past that the videotaping of an opponent's offensive or defensive signals on the sidelines is prohibited.

A club employee was caught on the field taping during the game and the camera confiscated. (Reportedly, there had been a prior Patriot offense which presumably triggered the earlier warning memo.) Whether the footage on the camera actually shows Jet signals may not be material except to the level of punishment; the commissioner has wider latitude in punishing owners than players (as long as a majority of oweners support him) since there's no collective bargaining relationship.

Unless other circumstances come to light, a loss of draft choices seems appropriate. It's a deterrent to other teams, punishes the Patriots in a way that affects the team's future for an offense that also would have affected their future (sign stealing would have been useful for future games but not the current one, since the video would have to be analyzed after the game to be useful). It also doesn't reward the Jets , who weren't materially harmed by the Patriots' cheating.

Posted By : Leigh

These signs are fairly public. Most people on the ...

Message posted on : 2007-09-12 - 04:43:00

These signs are fairly public. Most people on the stands opposite the coaches will have a view of them. Anyone with a reasonable digital camera can video them, so if you are "stealing" why put a guy with a monster camera on his back on the sidelines where everyone can see him.

Buy some tickets to matches where your opposition is playing in the weeks before, video from the stands and know all their signs before you run on the field

Posted By : Jamie

I would think that the issue here is the sign-stea...

Message posted on : 2007-09-12 - 05:23:00

I would think that the issue here is the sign-stealing, and not the use of video, which is only a means to attain an end (and likely the best way to prove at least on the balance of probabilities - not enough for crime, enough for regulatory punishment?).

Anyone can see the signs and take notes. Does the use of video take it to another level? Do we not expect rivals to study to the level of exhaustion other teams' moves and calls?

Of course this all changes in light of Joshua's post...

Posted By : Anonymous

I am bothered more by the allegation (that I've re...

Message posted on : 2007-09-12 - 05:42:00

I am bothered more by the allegation (that I've read a couple of places, but seen no analysis) that the Pats were using "additional radio frequencies". THIS sounds like it has at least the potential of stealing the signals given to the QB, via radio, for every play. What's the story behind the story on that???

And it actually seems easier (and more effective) than stealing signs. What safeguards are there to prevent teams from doing that? I for one would like more info.

Posted By : Anonymous

On the argument of whether the "owners" of a sign ...

Message posted on : 2007-09-12 - 09:34:00

On the argument of whether the "owners" of a sign are making reasonable efforts to keep it private, I think we must distinguish between the sign itself, and the ability to translate the sign's meaning. The meanings are carefully guarded secrets; so much so, that the sport's sanctioning body has rules specifically in place to protect them.

The argument that displaying a signal on television renders it unprotectable as a trade secret is akin to saying a sender of a messages encrypted by PGP is not making efforts to safeguard their secrets because their messages (and public key for that matter) are viewable by the public.

Posted By : Anonymous

Let me start off by saying that I'm not a Patriots...

Message posted on : 2007-09-12 - 14:28:00

Let me start off by saying that I'm not a Patriots fan. However, these accusations are borderline at best and ridiculous at worst. First, there is a proof problem for the league becuase who really knows what the cameraman was videotaping unless he is actually examined in a deposition.
Second, the fact that the league is just now starting to address this is a joke. I realize that Roger Goodell has the league's image to protect due to all the recent criminal proceedings against NFL players. But does this seem like the best way to portray to the public that the league is serious about its image. The league rules concerning this videotaping are ambiguous and vague on their face and I certainly believe that the Patriots would have a fairly solid legal challenge based on that alone.
Finally, let's be real here, sign-stealing has been going on in sports for decades now. In baseball, teams steal each others' signs all the time and it is regularly accepted as a part of the game. The same thing occurs in basketball especially between teams that play each other frequently. So how hard is it to come to grips with the fact that it also occurs in football? Teams are always going to find ways to gain an edge over their opponents any way they can as long as they believe they are doing so within legal bounds. In this case I just don't believe the league has enough compelling evidence or the proper rule language to justify any penalties being levied here. But because Goodell is on a crusade to defend and protect the league's image and integrity (and I'm a Goodell supporter), he'll probably levy some sort of penalty on the Patriots and they will most likely challenge it.

Posted By : John Biggs

On another note, if the Patriots really wanted to ...

Message posted on : 2007-09-12 - 14:57:00

On another note, if the Patriots really wanted to steal signs or steal plays from a Team, one would think that they would have the resources to do so. There have been plenty of instances in sports where refs and players have been bribed to throw a game. If the Patriots really wanted to steal signs, there is probably some way to achieve their goal. On the flip side though, its probably not a very smart idea to try and steal signs when other cameras are rolling and when you could be seen by other people. I dont know if the Patriots are so concerned that they have to go steal information like Ben Stiller tries to do in Dodgeball, but I highly doubt it. The last time i checked the Patriots were one of the best teams in the league. Until the video leaks out, I am in the dark as much as anyone else.
Posted By : Buddy Handey

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Message posted on : 2007-09-12 - 15:33:00

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Message posted on : 2007-09-12 - 15:34:00

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Posted By : Celia Dávila

John Clayton as espn.com reports that:

The ...

Message posted on : 2007-09-12 - 16:30:00

John Clayton as espn.com reports that:

The "Game Operations Manual" states that "no video recording devices of any kind are permitted to be in use in the coaches' booth, on the field, or in the locker room during the game." The manual states that "all video shooting locations must be enclosed on all sides with a roof overhead."

(found at http://sports.espn.go.com/nfl/columns/story?columnist=clayton_john&id=3014944)

Posted By : David

David:

I see that the Game Operations Manua...

Message posted on : 2007-09-12 - 19:31:00

David:

I see that the Game Operations Manual sections are now being reported. A couple of things are interesting about this. First, if there is such a clear cut rule about this, why doesn't this appear in the Rulebook? Second, why does it take three days for the actual rule violated to be quoted? Third, what is the "Game Operations Manual" anyway, and how does it differ from a rulebook? This Manual -- which again, isn't publicly available on the web, so far as I can tell -- also talks about how many towels and cases of soda to give a visiting team (http://www.repworks.com/newsletters/1204.php) and when to put a tarp on a field when it rains (http://www.cincypost.com/bengals/2001/beng010101.html). Perhaps most notably, the Game Operations Manual also spells out size limits for Super Bowl rings, a rule that players violate at will without fear of sanction (http://www.post-gazette.com/pg/05013/441330.stm).

Regardless, it does seem that the league has communicated its view to teams in the past. But does that mean teams have to follow? Where, after, does the league get its authority?

Posted By : Geoffrey Rapp

When this allegation was first reported, I was sur...

Message posted on : 2007-09-12 - 20:07:00

When this allegation was first reported, I was surprised that actions such as this would even be at issue. First, could signal stealing even have much of an impact on the game? With the quickness that the game moves, is it even possible to take these somewhat broken plays and signals and turn them into a valuable competitive advantage? Is it possible for the Patriots to take somewhat hard to read, unclear camera footage and use it to exploit the Jets defense? It seems to me that whatever information the Patriots might have received from this camera footage would hardly have a bearing on the game. The game moves too quickly for the footage to be analyzed, and properly implemented. The Patriots would have to first analyze the film. Then the Patriots would have to recognize the defensive scheme when used by the Jets and then structure their play calling accordingly. I do not assert that it is impossible for these actions to have not impacted the game; it just seems a bit of stretch.

Beyond this, the Patriots are arguably the best team in the NFL, and it hardly seems that they would need to steal the plays of a mediocre team like the Jets. This is not to say that they would not have taken such measures, but the incentive to do so in a game against an opponent like the Chargers or Colts would be greater. Why would the Patriots risk getting caught stealing plays from someone like the Jets when it is not as critical as against a more competitive team? (I'm not trying to take away from the Jets, nor absolve the Patriots of any wrongdoing -- it just seems that the incentives were not present for such action in this game. However, I concede that people do not weigh the costs and benefits of their actions most of the time. Therefore, I guess, my analysis is more appropriate for an economic vacuum than the real world.)

By viewing past game footage, can the same end not be accomplished? Can a team not study the game footage of an opposing team from the current or previous season, and somewhat discern the team's defensive plays/strategy is? I concede that plays are changed from game to game and depending on the player available. However, could a team not ascertain a general strategy of an opposing team? (I'm sure there are plenty of variables that are absent here, but the idea is still the same – it is possible for a team to attain a sense of a team's offensive/defensive strategy by analyzing past game film.)

Posted By : Matthew Courtner

In fact, I don't like instant replay review under ...

Message posted on : 2007-09-12 - 20:07:00

In fact, I don't like instant replay review under any circumstances, because it has a negative effect on the perception of the referees.

It's true that some aspects of the game (when did the shot leave the player's hand?) might be reasonably decidable given good camera footage. However, many aren't and in any case not every call (or lack thereof) is subject to review. For example, failure to call a foul cannot be reviewed because the game has continued and the situation has changed.

When some calls are reviewed for "objectivity" but others aren't, the league is putting a message: "we don't accept errors in officiating", in the sense that they are willing to interrupt the game in order to overrule the call on the field. I prefer the message: "we stand by the calls on the field".

The situation with automated machines like Cyclops in tennis is different. There the machine is in effect an additional referee, and makes its calls together with the others. A soccer analogue would be a device that automatically decided if a goal has been scored or not. I'm not sure if I'll be happy with such a device, but it's something I'd think about.

As an aside, we should distinguish continuous games (soccer, hockey, basketball [more or less]) from stop-and-restart games (baseball, american football, tennis). When the game is a sequence of distinct plays with breaks it is much easier to reconsider calls and use replays. In case of uncertainty it's also easier to replay a disputed pitch/down/ball.

-- Anonymous 9:46

Posted By : Anonymous

Regarding the police/criminal court analogy. Note...

Message posted on : 2007-09-12 - 20:14:00

Regarding the police/criminal court analogy. Note that I'm not arguing that referees are infalliable -- just that it's better to live with them making errors.

The remark that most "calls" made during a trial are actually never reviewed is insightful. Going further, even in the criminal justice system goals such as "finality of judgements" and "economy of resources" sometimes trump the error-minimizing mechanisms (who here doesn't love the AEDPA?).

Posted By : Anonymous

The footage doesn't give an advantage in the curre...

Message posted on : 2007-09-12 - 23:32:00

The footage doesn't give an advantage in the current game - it gives an advantage the next time the two teams play, since conference opponents play twice each season. It's sounding like this is the culmination of many incidents, and many complaints from other teams, including at least two previous incidents with the same camaraman. See, for instance http://cbs.sportsline.com/nfl/story/10348383
Posted By : Leigh

Without much knowledge of the actual "law" behind ...

Message posted on : 2007-09-13 - 12:13:00

Without much knowledge of the actual "law" behind this matter I would still like to voice my opinion on the subject.
I understand why people would expect to get a refund at a sporting event if the game was canceled due to weather or technical difficulties. But giving a refund for "false" advertising because the "star" didn't play is ridiculous.
If you purchased the tickets and didn't get to see who you wanted to play that is your own fault. This would then mean that people would expect to get a refund if the player they wanted to see suddenly got ill and couldn't play in that game that they purchased tickets for. How can you control that?
Beckham obviously attempted to play on a hurt ankle and then he ended up getting hurt even worse. Why wouldn't the people who are now complaining have researched the health of their star player Beckham. If they would have been paying attention to the news they would have realized that he wasn't 100%.
So that being said if people are going to complain then they should do their research first, and waited to see Beckham play next year or whenever he is supposed to be healthy. The MLS is doing the right thing by keeping their money.

Posted By : Margaret227

The information might also be valuable in the seco...

Message posted on : 2007-09-13 - 12:34:00

The information might also be valuable in the second half if someone is attempting to analyze the material at halftime. I am not sure how complicated the defensive signals might be. If you see that every time the coach touches his cap with his right hand they play a "cover 2," and every time he puts his open palm to his side they blitz the middle line backer, it would not be hard to have a good idea of what is going on in the second half.
Posted By : Anonymous

One thing I don't follow, if as many posters and p...

Message posted on : 2007-09-13 - 12:53:00

One thing I don't follow, if as many posters and pundits claim that the signal stealing does not help the current game, why were most of the previous accusations from non-division foes (San Diego) and even non-conference (Green Bay)?
Posted By : Elusive1

Regarding the Commissioner's power to sanction unf...

Message posted on : 2007-09-13 - 15:48:00

Regarding the Commissioner's power to sanction unfair acts, the actual language you link to refers to "major effect on the result of a game", not, as you quoted it, "the" game. That's an important distinction, particularly given the argument that the taping rule is in place not to prevent it from impacting the outcome of the game at which it takes place, but future games.
Posted By : Matthew Saunders

elusive1, given the frequency with which coaches a...

Message posted on : 2007-09-13 - 15:51:00

elusive1, given the frequency with which coaches and coordinators switch teams, I expect stolen signs are put into a one big ol' database to be called up by the team when needed. Why not compile a master list if you can?
Posted By : Matthew Saunders

The NFL handed down their punishment to the Patrio...

Message posted on : 2007-09-13 - 21:15:00

The NFL handed down their punishment to the Patriots. For a list of the penalties please go to this site
http://sports.yahoo.com/nfl/news?slug=ap-nflspying&prov=ap&type=lgns

Posted By : Jordan Grant

Jets season ticket holders should file an $8 milli...

Message posted on : 2007-09-14 - 00:03:00

Jets season ticket holders should file an $8 million class action suit against the NFL, New England Patriots Coach Bill Belichick and the New England Patriots for fraud.
Ticket holders paid:
$75 per ticket
$25 for parking, gas, other incidentals.
total $100 per fan.
Multiple that by about 80,000 people at the the game.
$8 million.
We fans paid to watch a fair game and we were served a game in which the Patriots cheated. The NFL acknowledged the cheating by fining Belichick $500,000 and the team $250,000, in addition to the forfeiture of draft picks.
Jets fans could subpoena the Jets for the names of season ticket holders list. (Almost all tickets are owned by season ticket holders.)
It won't be hard for lawyers to find their clients. We'll all be at the next Jets home game, Sept. 23, ready to sign up.

Posted By : Anonymous

I feel that video evidence is useful in the quasi-...

Message posted on : 2007-09-14 - 02:23:00

I feel that video evidence is useful in the quasi-judicial setting of the league handing down penalties after the game, but that I wouldn't want any aspect of the referees' decision during the game subject to second-guessing. For example, in the FA unsportsmanlike behaviour can be penalized after the game, independently of the referee noticing it; video evidence is of course not required but it carries a lot of weight. But on-the-pitch decisions cannot be appealed.

I think the NBA should follow the same rule. Whatever pertains to the game at hand (is this foul flagrant or not? should the player be ejected?) the calls on the court should be final. After the game, the leauge needs to review the evidence anyway (for example, the automatic one-game-suspension following an ejection might not apply) -- and then they should use all the evidence they can get.

-- Anonymous 9:46 PM

Posted By : Anonymous

It's not true that the game operations manual is l...

Message posted on : 2007-09-14 - 09:28:00

It's not true that the game operations manual is less authoritative than the NFL rulebook. The rulebook covers the game as it is played on the field. The game operations manual covers off-the-field issues. The chief difference is that field officials enforce the rules contained in the rulebook, while officials in the NFL's front office enforce the rules in the game operations manual.
All major sports that I know of operate this way. For example, major league baseball has rules about pre-game fielding practice and batting practice and many other issues that are not in the official rulebook.
There's also another completely different set of NFL rules pertaining to what a team can and cannot do between games and in the off-season.
There are reasons for having different sets of rules in different documents. The official rulebooks applies primarily to players and, to a lesser extent, to coaches in the course of the game.
The game operations manual applies primarily to ancillary personnel (although, as in the Belichick case, the coaching staff may also be involved).
The third set of rules applies primarily to front office personnel such as the general manager, player personnel director, et al.

Posted By : rhickok1109

Greetings in St. Jerome!

The wonders of the...

Message posted on : 2007-09-14 - 10:25:00

Greetings in St. Jerome!

The wonders of the Catholic Treasures of Faith and Wisdom is plentiful even in a godless and sinful world. Today, more than ever, all men must seek ever more deeply to understand that Jesus Christ is Lord and Truth. For if man sincerely seeks what has been handed to him from a principle foundation of hallowed reason and invincible faith, it will necessarily follow that he will find what he is seeking by following that same path of truth.

No wonder in an age of moral decay and even outright indifference for holy things, is there still a ray of hope in the Catholic Catholic. For Jesus Christ who is the True Light made the ultimate sacrifice to His Father to make His promise of perpetual saving graces available to mankind a matter of fact. St. Jerome, a great Doctor of the Catholic Church, made great steps in that path of truth and was chosen by God to help codify the inspired and approved texts of Sacred Scripture into a single book that became known as the Sacred Bible. This book became a source of spiritual growth, theological study, and legal practice in a world really no different from our own. Rightly, did St. Jerome bellow at the world of his own time that "Ignorance of the Scriptures is Ignorance of Christ" (Ignoratio enim Scripturarum ignoratio Christi est), because it is only through the quest of truth will someone attain the true love of truth which will crown them with the gift of wisdom.

The good news from St. Jerome's Cave is that there is good plenty of Rare and Hard to Find Traditional Catholic Books available for those on this quest for truth and who will love these books to show the Pastor their goodness of wheat. Here is sample of a few of the great works of Christ's Church available to obtain:

Pontificale Romanum

Missale Romanum

Epistolae et Evangelia Totius Anni.

Evangelarium

Canon Missae ad usum Episcoporum

Mansi's Sacrorum Conciliorum Nova et Amplissima Collectio

Migne's Patrologiae Cursus Completus

Denzinger's Enchiridion symbolorum, definitionum et declarationum de rebus fidei et morum

Jerome's Biblia Vulgata Latina

Rare Pre-Vatican II Gregorian Chant and Sacred Polyphony

Rare Video of Popes Saint Pius X , Pius XI, Pius XII

Rare Video of a traditional Latin Solemn High Mass

And...so much more!

Please visit St. Jerome's Cave and have a look at the great treasures that he and all true Catholic scholars brought together for the Greater Glory of God, the edification of the Christian People, and the salvation of souls:


http://www.geocities.com/stjeromescave


In the Holy Lion,

A Catholic Caveman of St. Jerome

Posted By : JEROME

I have to disagree with that previous post. The ga...

Message posted on : 2007-09-14 - 12:20:00

I have to disagree with that previous post. The game operations manual IS less authoritative than the NFL rulebook because it concerns trivial in-game issues like the number of footballs the home team must provide, the number of towels and gatorade coolers they have to provide for the visiting team, and other miniscule matters of the like. The NFL rulebook is interpretted exactly for what it is, a rulebook. It's the same premise as the Federal Rules of Civil Procedure are used to guide civil lawsuits in the federal court system. Yet the NFL apparently does not see it that way. Nevertheless, that is the way it should be and I can't imagine many courts interpretting it the same way that the league does. Most judges or arbitrators would probably see the rulebook as analogous to a statute body or something similar to the Federal Rules of Evidence, Civil Procedure, Appellate Procedure, etc. I simply think that the amount of deference being given to this "game operations manual" is way too strong and makes the actual NFL rulebook seem somewhat trite and meaningless.
Posted By : John Biggs

I think the difference between the two is more lik...

Message posted on : 2007-09-14 - 15:47:00

I think the difference between the two is more like the difference between a city's traffic code and a city's building code.
The rulebook calls for rather minor penalties--mostly 5 yards or 10 yards of field possession--that are levied immediately by officials who are on the spot.
The game operations manual calls for penalties ranging from minor to major that are levied after the fact by the league's very highest official, the commissioner (or his staff, with his imprimatur).
The rules pertaining to what can be done between games and during the off-season call for mostly major penalties (i.e., large fines) that are levied after the fact by the commissioner. For example, the Denver Broncos lost draft choices and were fined about $1.25 million for salary cap violations that took place in the late 1990s, although the penalties weren't assessed until after 2000.
I don't see how "authoritative" enters into it. They are rules that cover different types of situations.

Posted By : rhickok1109

Geoff,
I have no idea what the Game Operation...

Message posted on : 2007-09-14 - 16:31:00

Geoff,
I have no idea what the Game Operations Manual is. So I can only speculate. The following is speculation:
My guess is that the rulebook focuses on the rules of the game. By that I mean things like 4 downs, ten yards for a 1st down, etc. The game operations manual is kind of like a set of by-laws to the rulebook. It covers stuff that happens outside of the field (the actual field with hashmarks on it). There is a long history of teams doing things in and around the stadium to gain advantages. Watering the field to slow down a fast team is a common one. On the college level, Iowa famously painted the visiting men's locker room pink. My guess is the manual was put into place in order to standardize team's experiences at all games and/or to reduce home field advantage so that it does not become a race into dirty tricks (for example, jamming radio frequencies so we land up with coach in the booth being unable to communicate with the sideline. Oh wait, the Pats are already accused of this.).

Again, just my speculation. And it would be interesting to know more about the Game Operations Manual.

Posted By : David

I am puzzled by the comment that the Operations Ma...

Message posted on : 2007-09-14 - 17:08:00

I am puzzled by the comment that the Operations Manual is less authoritative. The issue of whether one is more "authoritative" than the other only arises if one conflicts with the other.

Absent any conflict, the rule is the rule, and it matters little where it happens to be codified.

Posted By : Hoover

I'll have to agree with Mr. Biggs here on the rule...

Message posted on : 2007-09-14 - 17:12:00

I'll have to agree with Mr. Biggs here on the rulebook vs manual issue. I do however think Belichick got off fairly easily. Compared to Wade Wilson's suspension for 5 games for HGH and roids, he got a pretty fair punishment (we all know he won't have to pay the fine). He could be watching the next couple of games from his couch. Also, Belichick gave us a rather Giambi or McGwire type apology where he didn't truly apologize for "cheating," but just stated that a rule was misinterpreted. He knew what was going on was cheating, especially with the memo sent out to all teams. I think Goodell just had to draw the line here, but he could have gone further with a suspension in my opinion (especially since it wasn't the first time NE had done this). Hopefully for NE, this incident won't be a stigma on them.
Posted By : Jason Canterbury

Jason, what makes you think Belichick won't have t...

Message posted on : 2007-09-14 - 18:28:00

Jason, what makes you think Belichick won't have to pay that fine? My understanding is that the team is not allowed to pay the fine for him, and there's no appeals process that I'm aware of that might reverse the penalty.

And hey, if the team does pay Belichick's fine, does that amount to $500k in taxable income to him?

Posted By : Matthew Saunders

This is why I love golf. It's a gentleman's game. ...

Message posted on : 2007-09-15 - 13:19:00

This is why I love golf. It's a gentleman's game. Even if no one is looking, you don't cheat. And even if you accidentally write the wrong score, you disqualify yourslef--you don't wait for someone to snitch on you.

What a wonderful game!

sonja

Posted By : Anonymous

Because just about anytime anyone gets fined there...

Message posted on : 2007-09-15 - 17:21:00

Because just about anytime anyone gets fined there's someone with a pocketbook ready to pay off the fine. I'm sure someone will take care of Belichick. It may not be the team per se, but I would predict that someone will fork up the money.
Posted By : Jason Canterbury

tis tis tis

Message posted on : 2007-09-16 - 03:36:00

tis tis tis
Posted By : burchie

he's got fined a lot, but then again, he makes a l...

Message posted on : 2007-09-16 - 03:38:00

he's got fined a lot, but then again, he makes a lot.
Posted By : Dan Burcham

Sorry about your loss. Sounded like a truly great ...

Message posted on : 2007-09-17 - 13:53:00

Sorry about your loss. Sounded like a truly great person -- full of life.

The folks at NCAAHazing.com

Posted By : Anonymous

I find it rare when a father includes his daughter...

Message posted on : 2007-09-18 - 13:44:00

I find it rare when a father includes his daughter in anything involving sports. In my experiences, fathers favor attending and discussing sporting events with sons, not daughters. It is remarkable that your late father-in-law possessed the patience and kindness to share his passion for sports with his daughter. Sounds like he was a great man!!
Posted By : Jordan Bird

Great site, keep it up!

Would you consider ...

Message posted on : 2007-09-18 - 15:40:00

Great site, keep it up!

Would you consider a Link Exchange with The Internet Radio Network? At the IRN you can listen for free to over 30 of America's top Talk Shows via FREE STREAMING AUDIO!!

http://netradionetwork.com

Posted By : alohasteve

Michael, it was an excellent, comprehensive column...

Message posted on : 2007-09-19 - 08:11:00

Michael, it was an excellent, comprehensive column. Thank you, and well done.
Posted By : John Geer

It is a shame that a league that generates so much...

Message posted on : 2007-09-20 - 10:16:00

It is a shame that a league that generates so much revenue doesn't take care of it's former players. Donal Fehr to the rescue anyone?
Posted By : Brandon Greer

Sonny spoke at Duke Law last spring and was unbeli...

Message posted on : 2007-09-20 - 13:51:00

Sonny spoke at Duke Law last spring and was unbelievable. No matter what you think of him and/or his methods, the history of basketball cannot be written without mentioning the name Sonny Vaccaro
Posted By : Anonymous

Rick,

Thanks for the post. I have been fasc...

Message posted on : 2007-09-20 - 22:18:00

Rick,

Thanks for the post. I have been fascinated by the case since the lower court made it ruling. It's a great in-class example of what may constitute a material breach and it shows that a party with leverage (in this case the coach) may negotiate a contract that gives him a great deal of protection, despite conduct that ultimately was deemed an NCAA violation.

I happen to agree with the ruling and affirmance. Ohio State wanted O'Brien enough to negotiate limited rights of termination, and it hurt then.

Posted By : Mark Conrad

"It's a great in-class example of what may constit...

Message posted on : 2007-09-21 - 02:12:00

"It's a great in-class example of what may constitute a material breach" This case is the 2nd or 3rd case we read in my sports law class this semester.
Posted By : Scrumtrulescent

Mark,

I too agree with the decisions of the...

Message posted on : 2007-09-21 - 10:28:00

Mark,

I too agree with the decisions of the lower court and court of appeals. I have used the O'Brien decision in class as well. I also recommend reviewing the contract with the students in class because it serves as a great practical discussion in contract drafting regarding concepts of termination rights, liquidated damages, etc.

Posted By : Rick Karcher

Prof. Karcher,

Thanks for the update, I hav...

Message posted on : 2007-09-21 - 11:37:00

Prof. Karcher,

Thanks for the update, I haven't heard anything about this case since our seminar class in 2006.

What do you think the chances of an appeal are here?

Posted By : Jimmy H

Baseball's more generous pension benefits actually...

Message posted on : 2007-09-21 - 13:17:00

Baseball's more generous pension benefits actually make sense to a degree. The fact that NFL careers tend to be short, and come to definitive ends, means that most former players are still quite young when they realize that their playing days are over. Contrast that with baseball, where many people bounce around the minors for years, with occasional brief outings in the majors, and don't find themselves out of the sport for good until they're well into their thirties. It's usually a lot easier to start over in a new career if you're 25 than if you're 35.

Of course the disability issue is much greater with respect to football.

Posted By : Peter

Jonathan Lee Riches has now sued O.J. Simpson.
...

Message posted on : 2007-09-21 - 14:55:00

Jonathan Lee Riches has now sued O.J. Simpson.

http://dreadnaught.wordpress.com/category/jonathan-lee-riches/

yojoe

Posted By : yojoe

Most hunting generally occurs in the morning (i.e....

Message posted on : 2007-09-24 - 22:07:00

Most hunting generally occurs in the morning (i.e., deer hunting and duck hunting) when NASCAR races are going to start in the afternoon. I don't think the reason that the percentage of hunters has declined has to do with people staying home to watch a race.
Posted By : Chris Smith

Rick,

I really enjoyed your article regardi...

Message posted on : 2007-09-24 - 22:38:00

Rick,

I really enjoyed your article regarding the new personal conduct policy of the NFL. I came across it while doing research for my journal article, which has to do with the new conduct policy and arbitration. I was wondering if it was possible for you to somehow get in touch with me --- I actually just had some questions and thought you may be the best person to go to for your opinion.

Thanks.

Posted By : Matthew

Message posted on : 2007-09-24 - 22:39:00

This comment has been removed by the author.
Posted By : Matthew

Congrats on another great article!

This jus...

Message posted on : 2007-09-25 - 08:53:00

Congrats on another great article!

This just cracks me up:

...Sanders should have been less offended by the misbehavior of African-American male employees than if white male employees had engaged in identical behavior.

what was he thinking....

Posted By : Jimmy H

Prof Karcher:

I'm a bit out of the loop her...

Message posted on : 2007-09-25 - 09:00:00

Prof Karcher:

I'm a bit out of the loop here, but could the AD's request some kind of determination from the AG's office. I'm thinking something similar to a DOL opinion letter or IRS private letter ruling.

I would think these athletic programs deserve to have their names cleared if they indeed have nothing to hide. And I completely agree...what AD in their right mind would supply the smoking gun?

Posted By : Jimmy H

You may be right about this being a fishing expedi...

Message posted on : 2007-09-25 - 09:43:00

You may be right about this being a fishing expedition, but I think the possiblity of getting incriminating documents is more likely than you think. When a subpoena comes into a university, the general counsel's office (if not outside counsel) would oversee the production, rather than the athletic department. These lawyers would almost certainly turn over an non-privileged incriminating documents.
Posted By : Anonymous

Maybe the 2 are related in the (typical) type of p...

Message posted on : 2007-09-25 - 10:07:00

Maybe the 2 are related in the (typical) type of person the events attract, but I don't see any relationship in the decrease in 1 and the increase in the other.
Posted By : Sarah Johnson

Anon,

Good point. But the issue from my st...

Message posted on : 2007-09-25 - 10:12:00

Anon,

Good point. But the issue from my standpoint is not really whether it's the AD or the general counsel who is producing the documents. The issue is one of practicality. In other words, what is the reasonable likelihood that an incriminating document actually exists to evidence unlawful kickbacks being paid to department personnel? If the parties had that understanding, do you think they would put it in writing?

But more to the point, even if you argue that it is reasonably possible that the parties could put such an arrangement in writing, the fact that it happened at Dowling in and of itself does not seem to warrant such an overly broad investigation.

Posted By : Rick Karcher

Well, slow day at work today, so lots of time for ...

Message posted on : 2007-09-25 - 10:40:00

Well, slow day at work today, so lots of time for me to read the Blog and research topics to satisfy my hunger for knowledge...anyways...

Prof. Karcher,

I agree with you that the AG's office did not seem to have too much meat on it's bones before starting such a broad investigation, but:

Three schools did have contracts with lenders and have now entered into settlement agreements (Trinity College, Fairfield University and Sacred Heart University).

26 schools have committed to NY AG Cuomo's "Code of Conduct". 10 of these schools have agreed to reimburse students over $3 million for the cost of revenue sharing agreements.

http://www.oag.state.ny.us/press/2007/aug/aug27b_07.html

Granted, wether the athletic programs were specifically involved here is a completely different question. Perhaps it would have been more prudent of AG Coumo to direct the subpoena's to the each school as a whole instead of focusing on some schools athletic departments.

the fact that 13 schools have alreday admitted to this revenue sharing and agreed to settlements is pretty incredible. These schools (at least the three mentioned at the top) actually had written agreements, and I would assume that the other ten that offered settlements did so because there was some evidence of involvement.

Posted By : Jimmy H

Jimmy,

Thanks for the link. I see some imp...

Message posted on : 2007-09-25 - 11:13:00

Jimmy,

Thanks for the link. I see some important distinctions though. Kickbacks in the form of cash or other perks given to one individual in a position of authority and influence such as an AD in return for that individual referring students to one particular lender (as was the case at Dowling) does not have the same level of culpability as an institution receiving a discount on software in return for putting a lender on a list along with many other lenders for the borrower to choose from. Legally, there may not be a difference between the two (or maybe there is), but I think the Dowling situation is a unique and remote circumstance that doesn't provide a basis for the investigation of the 41 athletic programs. I don't see the Trinity, Fairfield and Sacred Heart settlements as grounds for the investigation either.

Posted By : Rick Karcher

While certainly there is some overlap between the ...

Message posted on : 2007-09-25 - 11:28:00

While certainly there is some overlap between the two. I think it is a bold over-generalization to state that NASCAR fans and hunters are one and the same. I consider myself to be a fairly avid deer hunter and also enjoy fishing out in the gulf with my dad. However, I do not enjoy watching NASCAR. It just does not interest me.
Posted By : Jared Carrubba

I can see how both sports pull from the same audie...

Message posted on : 2007-09-25 - 11:57:00

I can see how both sports pull from the same audience, but I know of several hunters who are not interested in NASCAR and vice versa. It would interesting to see the actual numbers who are interested and/or participate in both sports.
Posted By : Courtney Robbins

This is a clear example of how Gene Upshaw really ...

Message posted on : 2007-09-25 - 12:00:00

This is a clear example of how Gene Upshaw really is not the best person to be running the NFLPA. Upshaw seems to take the road that as long as you're in the league, its great and the league will take care of you, but once you are out, you're on your own. If he really had the players' best interest at heart, like a true union leader should, he would fight for these guys to be taken care of even well after they are done playing.

The fact these guys put their long-term health on the line to build this league into the multi-BILLION dollar entity it is today and for the league to almost turn its back on these guys is appalling.

Posted By : Ryan Kendall

Last time I checked, Nascar was very popular up No...

Message posted on : 2007-09-25 - 12:18:00

Last time I checked, Nascar was very popular up North and elsewhere in the U.S. Whenever you have a sport that big, of course there is going to be a crossover into hunting and other activities. One reason hunting numbers have declined (at least in the South) is because of several warm winters, which in short means that we haven't had as many ducks and geese as we typically would. I don't think Nascar is killing hunting.
Posted By : Clifford Ammons

It seems highly unprofessional for the head coach ...

Message posted on : 2007-09-27 - 10:59:00

It seems highly unprofessional for the head coach of a professional basketball team to be making sexual innuendos to a high ranking member of his own staff. It would seem like Thomas, a renowned professional basketball player could go "off the court" to find a lady friend, effectively keeping himself out of the spotlight and concentration attention on where it should be, his team. Nevertheless, it seems like he said she said. What about the plaintiffs background and credibility; are there any skeletons in her closet that could shed a little more light on this case.
Posted By : Jordan Bird

i dont think nascar is the reason it is on just su...

Message posted on : 2007-09-27 - 15:40:00

i dont think nascar is the reason it is on just sunday and there is 6 other days to hunt. And most Nascar fans tend to be hunters. It is vedio games and a lazy new genration who think hunting is to hard, which it can be at times but is worth it when you get that buck.
Posted By : Ryan

Y do white people care more about some fucking ani...

Message posted on : 2007-09-27 - 21:52:00

Y do white people care more about some fucking animals the they care about there own children? Did the man say he bought the house for a family member. It's killing you that he is a bomb ass quarteback. Get over it he's not the 1st and damn sure won't be the last AFRICAN AMERICAM that will out shine you sorry ass white people

I care about children of all colors, I don't smoke pot and I don't fight or kill dogs.

Vick deserves what he gets, kids don't.

Posted By : Anonymous

He "shined" us all right.

Message posted on : 2007-09-27 - 21:54:00

He "shined" us all right.
Posted By : Anonymous

I agree that the Post piece was an excellent overv...

Message posted on : 2007-09-28 - 00:10:00

I agree that the Post piece was an excellent overview for those who have not suffered from the dysfunctional set-up known as Madison Square Garden. The case is a loser for both sides. I do not think that the plaintiff's case showed some serious weaknesses regarding her job performance and attempts (if true) to get others to stick their necks out to vouch for her. But the organization comes off as a laughing stock, run by the son of a cable TV pioneer who consistently ranks as one of the worst sports execs around and a GM whose record is poor and whose judgment based on comments during his deposition are questionable.

I could not come up with a better case study on mismanagement, which is any normal business, would have gone: (1) belly up; or (2) would have had a front-office shake-up long ago; (3) faced a consumer revolt. Amazingly none of these options will happen.

How about a project for law students and MBAs on institutional change?

Posted By : Mark Conrad

"Judge Hudson may not consider Vick's use of marij...

Message posted on : 2007-09-30 - 22:39:00

"Judge Hudson may not consider Vick's use of marijuana relevant to a prison sentence for dogfighting conspiracy charges."
:::::

That statement does not make sense to me. If the judge did not consider drug use a big thing, he would not have specifically told Vick not to do it.
::::

"Vick could contest the test's results or perhaps provide a mitigating explanation. "
:::::

Judge Hudson has already told Vick that he may not appeal whatever sentence he gives him. Hudson asked Vick if he understood, and Vick said yes. Vick is a fool, he is at the mercy of a judge that has a reputation for being firm.
::::

I also think the State will pursue whatever charge they can vigorously. They tried to throw the book at Vick and the grand jury would not go for it, so I think the state will really pour their energy to get a conviction.

cp

Posted By : Anonymous

I heard that over the past weekend ESPN was showin...

Message posted on : 2007-10-01 - 10:29:00

I heard that over the past weekend ESPN was showing a NASCAR race when a driver used a four-letter word. No doubt the FCC will be raking in a big fat fine.
Posted By : Peter

Excellent!

Although when I read about compe...

Message posted on : 2007-10-01 - 14:30:00

Excellent!

Although when I read about competitive balance in anti-trust or event retraint of trade decisions (mind you I'm european) I always think about maintaining some sort of balance, as we know it, and not really an absolute parity.

Restrictions are put in place to prevent the gap from widening and not so much to ensure that it is shorten.

Perhaps I'm way off here...

Posted By : Luis

Geoffrey—

You raise a very interesting qu...

Message posted on : 2007-10-01 - 16:19:00

Geoffrey—

You raise a very interesting question, but I agree with Luis that “competitive balance� means different things to different leagues and associations. I don't think the NCAA would want a world where the App States of the country regularly beat the Michigans (though, for about 30 minutes on Saturday, I did enjoy a world where Tulane led LSU 9-7 late in the second quarter). In fact, in the NCAA case, the Supreme Court recognized that the NCAA never indicated any “intent to equalize the strength of teams in Division I-A with those in Division II or Division III.� I think the competitive balance the NCAA seeks is more akin to a system where the “top� football schools can compete with each other, while the “lesser� schools have an outside shot of pulling off an upset (or putting together a “top� team on occasion-- I'll leave it to others to define “top� and “lesser�) much like exists in NCAA basketball. The Supreme Court recognized this in the NCAA case, noting that “in the most closely analogous sport, college basketball, competitive balance has been maintained without resort to a restrictive television plan.� I realize that does not answer your question, but I'm not sure the NCAA truly wants a season full of “Insane Saturdays.�

And, in terms of antitrust scrutiny, I don't think the NCAA uses the “competitive balance� argument the same way the professional leagues use it. The NCAA's real arguments seem to be 1) that they need certain restraints—as do other sports leagues and associations—to “foster competition.� That is, they need rules, schedules, etc. to have a league; and 2) that they need certain restraints to maintain their unique identity as an association of amateur athletes competing in amateur sporting events. That is, they need restrictions on spending, coaching salaries, etc., not so that any team can win on any given Saturday, but to differentiate themselves from the professional sports, which is good for consumers, because it creates a new product. Most (all?) agree that the first argument is a legitimate justification, but the second one is certainly problematic on several levels…

Gabe Feldman

Posted By : Gabe Feldman

Great insights!!! I think sports fans do have equ...

Message posted on : 2007-10-01 - 16:42:00

Great insights!!! I think sports fans do have equity invested in competitive balance because without it, there would be no reason to keep playing. It becomes too predictable and boring. The plainness would inevitably lead to disinterest for the fans, loss of revenues, and eventually sports leagues shutdowns. Please read my publishing on cartels and fan equity in relation to your post and comments.
Posted By : rasdorfw

Actually not. The FCC indecency standards only app...

Message posted on : 2007-10-01 - 17:22:00

Actually not. The FCC indecency standards only apply to over the air broadcasters, not cablecasters.
Posted By : Mark Conrad

In response to the 25% decrease in Iowa's hunting ...

Message posted on : 2007-10-01 - 18:16:00

In response to the 25% decrease in Iowa's hunting population, I think that this statistic is a bit misleading. While it may be true that the number of Iowa citizens hunting may have decreased, the amount of hunting in Iowa is growing tremendously. For example, Iowa annually hosts more than 250,000 hunters from outside the state (compare this to the 180,675 resident big game hunters in Ms in 2005). Additionally, out of state hunters visit and hunt the 340 public hunting areas over 3.5 million times annually.

It is true that the number of Ms hunters has decreased in the past years. Dr. Sammy McDavid at Mississippi State University did a study that examined this in 2006. He found that “ Mississippi licensed big game hunters decreased from 211,063 in 1980 to 180,765 in 2005, or 14 percent and small game hunters have decreased from 255,932 to 185,478, or 27 percent during the same period.� This drop is due to several factors. Fewer and fewer adults are introducing hunting to the younger generation, and in the upcoming years, this will exponentially effect the number of hunters in the future. Furthermore, most people in the state travel long distances to hunt, and with the rising costs of fuel, hunting is becoming more expensive. In some instances, the game hunted is becoming harder to harvest. For example, duck hunting has decreased drastically in the past 10 years due to the warm winters we are having. Avid duck hunters are starting to hang up their shotguns or hunt in northern states because the ducks are not migrating south until after the season is over. I don't think NASCAR has anything to do with the decline of hunting. Is NASCAR the first weekend activity that could take away from hunting? I would think that if anything would take away from hunting, it would be college football (the two coincide perfectly). As evidenced above, there are a host of external factors that have attributed to the decline of hunting, but in my opinion, NASCAR has no effect on the decline in hunting.

Posted By : Alec Taylor

Responsible hunter's are the ultimate environmenta...

Message posted on : 2007-10-01 - 18:34:00

Responsible hunter's are the ultimate environmentalist/conservationalist.for example, because of hunting, the state of texas has, since the 1930's, imported animals from Asia, Africa, and South America. several of these species are now more numerous in Texas than in their native land (the nilgai antelope are from India and only 10,000 are left in India today, while there are over 15,000 in Tx alone). Because of hunting, these species are now protected from possible extinction. Furthermore, hunters help maintain healthy number of whitetail deer. Deer are very prolific animals and after a certain age, they do not have too many natural predators. If there are too many deer on a parcel of land, they will become severly malnourished, and hunting helps maintain a healthy herd. I think that hunters and environmentalist have been on the same page for a while. we both want to save the horned owl and the bald eagle. we both want what is best for the environment, and each has its own way of going about doing it.
Posted By : Alec Taylor

Another problem, from a marketing/fan base perspec...

Message posted on : 2007-10-01 - 19:51:00

Another problem, from a marketing/fan base perspective is the sheer number of teams in NCAA Div. I. If there was some kind of actual "competitive balance" where many smaller, 'unknown' schools could compete with the top schools, there then are just too many players, coaches, schools to keep track of.

How could you keep track of who is who in a world where 50 or 60 teams are all competitive

Posted By : Anonymous

I can see how the hunter/environmentalist alliance...

Message posted on : 2007-10-01 - 21:18:00

I can see how the hunter/environmentalist alliance may work to produce positive results in the beginning. But in the end their main goals still conflict with each other.
Posted By : Sarah Johnson

Marc,

Thanks for the comments. I'll be the...

Message posted on : 2007-10-02 - 11:10:00

Marc,

Thanks for the comments. I'll be the first to say that sports is big business and, as in any business, there are all sorts of factors that come into play in decisions that are made in operating the business. But when I say, "the 50-70 million range seems to make the most business sense," I'm just merely countering the notion that high payroll equals success on the field.

Posted By : Rick Karcher

I agree with the other comments that NASCAR is not...

Message posted on : 2007-10-02 - 11:20:00

I agree with the other comments that NASCAR is not responsible for the downfall of hunting. I think the key component is our society's need for instant gratification.

Hunting requires patience and work. Hunters spend countless hours preparing for the hunting season. They maintain the land on which they hunt, planting food plots, cutting back brush, etc. There are stands to be set up. Usually, a few trips to the shooting range are needed to sight in your gun. All these things take time, in addition to actually getting out there to hunt. Deer hunters, for example, can spend hours in the woods waiting for that one big buck to come along.

Our society is becoming more and more concerned with getting what we want when we want it (now). Want to watch a movie? You can run to the store to pick one up, click on Netflix to watch it now, or get on demand movies from your cable/satellite. Someone else has mentioned on-demand media, but I think this concept is bigger than just media - it's an overall societal trend. No one wants to sit around and wait for something to happen. There are countless hunting shows on TV (which apparently must be popular), which get straight to the point - skip the waiting and get to the part where the big game appears.

I agree with Alec, in that football probably has a greater negative effect on hunting than NASCAR. Someone should do a study to see if there's a correlation between the success of a southern football powerhouse (say Bama or UGa) to the number of hunts for a given year in that state.

Posted By : jackie bost

In that context, much agreed. And, it's been an e...

Message posted on : 2007-10-02 - 11:53:00

In that context, much agreed. And, it's been an especially painful week for me to acknowledge as much, being a die-hard Mets fan.
Posted By : Marc Edelman

Marc,

While I would agree with you that the...

Message posted on : 2007-10-02 - 13:32:00

Marc,

While I would agree with you that the Yankees definitely increased there equity regardless of whether Roger Clemens brought them wins or not, this hasnt always been the factor in bringing fans to the ballpark. Wins will bring people to the ballpark, which would bring mroe money to the ballpark. So if a Mark Shapiro can get more wins with less money spent on his players, it is essentiatlly saying he is bringing in more money at the gate, than spending on his players, because the fans will come for the wins. I hope I explained that.

See ya soon,

Kenny

Posted By : Anonymous

The only connection between Nascar and hunting wou...

Message posted on : 2007-10-02 - 14:01:00

The only connection between Nascar and hunting would be when there is a conflict of interest. Nascar races are at many different locations across the country now. Even the most die hard fan of Nascar will not travel to more than 2-3 events per year. Where is the conflict?

On the other hand, college athletics can clearly be seen as a conflict. Where a local team plays 6-7 home games per year, and many road games are within driving distance, many people have to choose how to spend Friday-Sunday. This creates a major conflict in interest.

For example, look at the attendance figures for small markets in the south on the opening day of deer season. The crowds are usually smaller, suggesting a direct conflict.

Posted By : Clint Martin

So there's an Idiot's Guide to the case ... I gues...

Message posted on : 2007-10-02 - 14:36:00

So there's an Idiot's Guide to the case ... I guess Dolan and Isiah might be able to understand it.

No, probably not.

Posted By : Peter

The competitive balance argument isn't just about ...

Message posted on : 2007-10-02 - 21:39:00

The competitive balance argument isn't just about fans having a preference for close games. Most, if not all fans, like their team/university/club to win. That creates a super-ordinate imperative for competition organisers to promote competitive balance.

Interesting post, there is a lot of economic research on this too.

Posted By : Robert Macdonald

The economics of baseball have grown so much since...

Message posted on : 2007-10-02 - 23:33:00

The economics of baseball have grown so much since the 80's and early 90's and have become more complicated every year. Baseball players are now making millions of dollars to do something that most of us would jump at the opportunity. It's not their fault the money they can receive has reached the million mark, even for some of the less talented of players. This has happened to all sports, but especially to the America's pastime, baseball. Baseball is more of a business than just a game and many things have made it this way. A lot of reasons have contributed to the rising salaries there is today and it will not stop there. The amount on baseball contracts will keep rising each year.
Posted By : Norb

Couldnt the fact be that CAA is so large that one ...

Message posted on : 2007-10-03 - 10:03:00

Couldnt the fact be that CAA is so large that one department wouldnt go near another department?

Ken

P.S Mark I liked your other post also about Roger Clemens, in the other thread. I responded.

Posted By : Anonymous

Your star employee, outside a strip club, on a pub...

Message posted on : 2007-10-03 - 10:29:00

Your star employee, outside a strip club, on a public street, late at night, persuades one of your interns to get in a car to service him.

What idiot would think that getting the intern to change her testimony from "she was forced" to "it was consensual" would make the situation seem acceptable?

What idiot would think that giving said intern a permanent job, then a promotion, AND she changes her testimony, wouldn't look suspicious?

What idiot wouldn't think that firing a whistle blower wouldn't look like a retaliatory termination?

What idiot would give someone a big bonus, then fire her while claiming she was incompetent? And then prepare a memo to that effect after the fact?

I don't think your IQ needs to be too much higher than room temperature to figure out that's not good.

And yet, there were many sports hacks and legal "analysts" who didn't think she'd made her case -- even after all this came out.

Hmmm... Maybe Isiah and Dolan aren't the only idiots around?

Posted By : cjsamms

Great post, and excellent questions you raised. U...

Message posted on : 2007-10-03 - 10:39:00

Great post, and excellent questions you raised. Unless the MLBPA authorized it, this is clearly a violation of the MLBPA's agent regulations, which prohibits an agent from "Being employed by, serving as an officer of, or representing, either directly or indirectly, Major League Baseball, the American or National Leagues, any Club or affiliated entity, or representing, either directly or indirectly, any management or supervisory level employee or official of them, without the prior written authorization of the MLBPA."

Regarding firewalls in this context, I think it can be done. But if a firewall is feasible within a large sports agency like CAA, why wouldn't a firewall also be feasible within the union if the union decided to hire agents to represent players in indvidual contract negotiations with the teams (in order to address the conflict between the collective and individual interests of the members)?

Posted By : Rick Karcher

Mr. Wasserman,

I agree. As a first year la...

Message posted on : 2007-10-04 - 09:20:00

Mr. Wasserman,

I agree. As a first year law student taking Torts and a former paralegal for a Criminal Defense firm, Isiah actions were found to be illegal. My Torts professor explained that the reason for the heightened standard (beyond a reasonable doubt) for guilt in a Criminal Case is because of the government's superior resources (most of the time) and punishment can include loss of freedom (prison) rather than just money. In this case the MSG had the money to hire the better attonreys and still lost. To me it speaks volumes of how strong Ms. Saunders' case was and is. As a Knicks fan, I want this case to go away as quickly as possible and still cannot imagine how they did not settle when she asked for $6 million after buying out Jalen Rose, Maurice Taylor and Shandon Anderson in recent years for much more.

Posted By : Angus Crawford

I agree that fans want wins and I agree that teams...

Message posted on : 2007-10-04 - 11:43:00

I agree that fans want wins and I agree that teams who are winning will be able to profit more from fan attendance, etc... However, as a person who doesn't particularly like baseball, I only watch baseball games when big name players are playing. In other words, I always watch the Yankees because they always have big name players on their team. I buy Yankee shirts, hats, etc... simply because they have big name players on their team. I know that my minor contributions are nothing compared to the hardcore fans who go to every game and spend lots of money, but I just wanted to point out that the Yankees are the only team that some of us watch or support because they always spend lots of money on big name players. Otherwise, I agree with with what this post is saying.
Posted By : Jordan Ash

This is one of the most problematic ethical and bu...

Message posted on : 2007-10-04 - 11:50:00

This is one of the most problematic ethical and business issues that sports agents seem to gloss over. It is a particularly troublesome thing, especially when so many of these agencies also are controlled by or employ attorneys who may be called upon to do work for both of these constituencies. Such a situation plausibly leads to a conflict of interest that would violate the code of ethics in every jurisdiction with which I am familiar.

The bottom line issue is a profound lack of control on athlete agent activity from the regulation of recruiting through the performance of duties. Until that gap begins to close, there will be no meaningful solution. Unfortunately, it seems until someone suffers significant and public monetary loss, there will be no meaningful control.

Posted By : bredden

This is a brilliant post, and something that needs...

Message posted on : 2007-10-04 - 15:55:00

This is a brilliant post, and something that needs to be clarified in the sports media right now. In my view, Stern's position that this is merely a "civil matter" is irrelevant.

O.J. Simpson was ruled innocent of criminal charges, but guilty of being liable for the death of Nicole Brown, etc. If O.J. were an NBA coach or owner would Stern have refused to act?

And the idea that sexual harassment is more tolerated than racial biases is dead-on. Great post.

Posted By : Anonymous

While I'm much more likely to view things through ...

Message posted on : 2007-10-04 - 19:40:00

While I'm much more likely to view things through a race/gender lens than you apparently are, I don't think this situation provides the right platform. After all, how did the whole thing arise? From Isiah Thomas referring to the plaintiff as a "bitch" and a "ho", treatment that comes straight from the "thug"/hip-hop/whatever world that Stern has worked so hard to fight against.
Posted By : Jason Wojciechowski

Thanks for posting, Marc. In light of the NFL's r...

Message posted on : 2007-10-05 - 10:05:00

Thanks for posting, Marc. In light of the NFL's recent success asserting the single entity defense in American Needle, I presume the NHL will itself try to revive the defense here. Although the 2nd Circuit has previously rejected the NFL's assertion of the defense in North American Soccer League, that opinion was issued before the Supreme Court's opinion in Copperweld, and did not involve a challenge from a league member-team. Both factors would arguably distinguish this current case from N.A.S.L.. I look forward to following this litigation.
Posted By : Anonymous

I think the truth of the matter maybe that David S...

Message posted on : 2007-10-05 - 11:01:00

I think the truth of the matter maybe that David Stern treats his employees in that manner. I have heard stories about his treatment of employees male and female which include a lot of curse words. I heard that at times he has made employees leave meetings in tears, so maybe David Stern is busy covering his tracks right now. And just a general statement, the term "bitch" and "ho" were not created by the hip-hop world.
Posted By : Anonymous

'MSG has attempted to limit its complaint to ...

Message posted on : 2007-10-05 - 15:33:00

"MSG has attempted to limit its complaint to the challenge of a narrow range of collectivized rights -- even conceding that "legitimate activities [for the NHL] include ... negotiating television broadcast arrangements" -> Didn't NCAA v. Board of Regents of Univ. of Oklahoma declare that this practice - for a league to negotiate TV broadcast arrangements - violates section 1 of the Sherman Act through a rule of reason analysis?

Rangers have a good point here. Standardizing and limiting the team website affects the consumers in a negative way and really has no business being regulated by the NHL.

Posted By : Adam W

To address both of today's comments:

I thin...

Message posted on : 2007-10-05 - 15:58:00

To address both of today's comments:

I think our first reader is right on target with his analysis about the NHL's defense strategy (or at least part of it); however, I would caution that there is a subtle difference between a "single entity" defense and a "joint venture with procompetitive effects" defense. Unfortunately, Judge Moran (who decided the American Needle case) seems to have mixed and matched the two terms. Therefore while the NHL might allege both defenses, it is not clear that American Needle would get the NHL anywhere with respect to a true "single entity" defense.

To explain in further, in the case that our reader is referencing, American Needle, Inc. v. New Orleans Lousiana Saints, 496 F.Supp.2d (2007), the court granted the NFL team defendants' motion for summary judgment, dismissing Section 1 claims filed by a coroporation that designed and manufactured NFL trademarked headgear. Based on some language in that case, American Needle Inc. was purporedly dismissed on the grounds that the NFL teams acted as a "single entity" in licensing their intellectual property through NFL Properties. However, what Judge Moran may have meant to say was that the joint venture in property licensing yielded procompetitive effects -- not that the league was a single entity. Moran even acknowledges within his opinion that "supposed efficiencies in economic arrangements are more the stuff of the rule of reason than of distinguishing between single entities and joint ventures." Id. at 944. However, in that case, the mixed-and-match terminology used by Judge Moran was largely irrelevant to the outcome.

The subtle difference in terminology, however, may become important in the MSG v. NHL, depending upon how the facts emerge. If a league were a single entity, it simply could not violate Section 1 of the Sherman Act because a necessary element of a conspiracy (two or more parties) would not be present. Conversely, if a league is a joint venture, the concerted conduct is only permissible if it yields a procompetitive effect.

* * *

With respect to Adam W.'s comments, two quick points:

First, the Sports Broadcast Act of 1961 allows professional sports teams to pool their broadcasting rights; whereas this statutory exemption does not apply to the NCAA.

Second, it is clear that the Rangers are carefully picking and choosing their battles. For various reasons (both internal and external), I doubt that Madison Square Garden would really want to the challenge pooled broadcasting system. Therefore, they are not.

Posted By : Marc Edelman

Consider the relative impacts on their teams of re...

Message posted on : 2007-10-06 - 07:13:00

Consider the relative impacts on their teams of removing Michael Jordan from the Bulls and Barry Sanders from the Lions, and the relative advantage of tanking in the NBA instead of the NFL becomes obvious.
Posted By : Anonymous

As a Michigan fan, I'm extremely disappointed by B...

Message posted on : 2007-10-07 - 15:12:00

As a Michigan fan, I'm extremely disappointed by Brady's behavior. He should have married her, not moved on to a younger face.

Oh, and it's du jour (of the day), not de jure (by the law).

Posted By : Anonymous

Howard,

The WSJ had the following link to t...

Message posted on : 2007-10-07 - 21:06:00

Howard,

The WSJ had the following link to the complaint:

http://media.mgnetwork.com/ncn/pdf/071005_duke.pdf

Thought this might help.

Posted By : Anonymous

Doesn't the Eleventh Amendment bar them from money...

Message posted on : 2007-10-07 - 22:06:00

Doesn't the Eleventh Amendment bar them from money damages?
Posted By : Anonymous

Thank you for this post. It is like a breath of f...

Message posted on : 2007-10-08 - 01:18:00

Thank you for this post. It is like a breath of fresh air to hear someone say that Nifong has become a scapegoat and is being completely railroaded for doing what DAs do in this country EVERYDAY (and are SUPPOSED to do). YES the evidence was shakey, YES he manipulated evidence to his favor, NO he did not have all his facts together before he opened his mouth and YES the victim changed her story (by all accounts, she was too drugged at the party to know what really happened), but these things happen all the time. It seems to me the high-riced lawyers on the Lacross players side successfully used the media to place their snotty, ill-mannered clients into the role of the victim, turning the tables on Crystal Gayle Mangum.

I, for one, appreciate Mike Nifong for trying to dw what he believed was right and am a bit ill at the whining I hear coming from the LaCross team.

Again, thank you for this post. I was beginning to wonder if our society had completely forgotten the value of diverse thinking. It seems EVERYONE is saying the same thing, and NO ONE sees the other side of this story.

Posted By : Anonymous

Thanks. Found it at NYT, but have not yet had a ch...

Message posted on : 2007-10-08 - 07:51:00

Thanks. Found it at NYT, but have not yet had a chance to read it. The thing is 154 pages long--which initially suggests it msy be a"kitchen-sink" complaint. As for the Eleventh Amendment, it protects states, not local government and not individual government officers.
Posted By : Howard Wasserman

For those who have not read the complaint, one has...

Message posted on : 2007-10-08 - 11:45:00

For those who have not read the complaint, one has to remember that getting your facts from the MSM is what fueled this event. The NYT still has not corrected the errors they made on the case. Neither has CNN, the LA Times, and others.

I find it a very curious comment on selective enforcement of the law in regards to Duke students. Though it's true that traffic enforcement officers cannot catch all speeders, if they only targeted blacks for speeding, I think most fair-minded people would think it was wrong. One only has to look at the crime rate in parts of Durham, were rapes, aggravated assults,robberies, and murders go unsolved year in and year out, and what are they doing? They are giving tickets for noise and drinking in private homes. The basketball team also had a party with stripers and drinking. No one complained. It looks like racial profiling (white, Duke, male athletes.)

The second point you make will be cleared up once you read the complaint. Under the color of law-they went after anyone who disagreed with Nifong and the DPD. Many of the students are still at Duke, and when you read the complaint, it's amazing how brazen Nifong and others were about denying students and other citizens their civil rights. The Durham bunch persecuted and prosecuted those who gave testimony that supported the innocence of the lacrosse players.

I can only hope the students get their $30M and even more. These people wanted to send 3 students to prison for a crime that never occured (according to the NC AG and evidence)-- and for 30 years!

Don't let the 150 plus pages deter you from reading the complaint. Once you start reading it, you cannot put it down. It is a very detailed anatomy of a fraud by the city of Durham, DPD, Nifong and the DA's office, the Meehan lab, etc.

Posted By : Anonymous

Interesting post and I'm excited to see coverage o...

Message posted on : 2007-10-08 - 12:06:00

Interesting post and I'm excited to see coverage of an issue arising out of European soccer. I don't really have input as to whether or not Caixa will be able to get out of the contract based on the morality clause. However, the point you raise about the bank knowing what it was getting itself into based on Scolari's history of outbursts and antics translates well to American athletes who get into trouble and are subsequently dropped by their sponsors. It would be interesting to see how an assumption of the risk defense would play out.
Posted By : JALSB

This situation reminds me of Glen Hoddle's sacking...

Message posted on : 2007-10-08 - 14:23:00

This situation reminds me of Glen Hoddle's sacking from the position of England Soccer Manager in the late 90's. On this occasion Hoddle's team had mixed success (like Scolari's) but his sacking was brought about not by the team's results but after he made remarks about disabled people, which the England team's sponsors publicly disassociated themselves from. In my opinion this illustrates the power businesses hold over regulatory bodies. Thus if Caixa decide to drop Scolari, it will be interesting to see if the Portuguese FA mirror their actions.

On the topic of whether Caixa should expect such behaviour from Scolari given his past record, the answer must surely be "no". There is a world of difference between a coach with a record of appearing excitable during a game and him striking an opposition player.

Posted By : Anonymous

Yanks might have started the year with a $190 mill...

Message posted on : 2007-10-09 - 15:46:00

Yanks might have started the year with a $190 million payroll, but the signing of Clemens brings it above $210.
Posted By : Anonymous

Thanks for the post. I have a question. Let's say ...

Message posted on : 2007-10-09 - 21:52:00

Thanks for the post. I have a question. Let's say that a court rules that single entity Copperweld standard does not apply. Couldn't the NHL still win out in a rule of reason analysis, since there may be good business reasons for limiting team control over web sites?
Posted By : Mark Conrad

Great investment opportunity in Costa Rica: costa ...

Message posted on : 2007-10-09 - 22:36:00

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Posted By : KAMILA

Mark:

Great question. Indeed, even if the ...

Message posted on : 2007-10-09 - 23:27:00

Mark:

Great question. Indeed, even if the NHL loses on the single entity defense, the NHL could still win its case under rule of reason if it can show a pro-competitive justification for these alleged restraints in the same markets as the purported anti-competitive conduct. (This is slightly different from just showing a "good business reason").

For case of illustration, while I thought Judge Moran was wrong to decide American Needle in favor of the NFL based on a single-entity defense, I think Judge Moran reasonably could have decided American Needle in favor of the NFL based on the pro-competitive effects of collective licensing.

Posted By : Marc Edelman

As the author of the law review note relied on by ...

Message posted on : 2007-10-10 - 09:01:00

As the author of the law review note relied on by Judge Moran I may be a bit biased, but I think the American Needle opinion has merit. While I agree with Marc that Judge Moran could have ruled on narrower grounds, and also agree that the opinion should have given greater consideration to the existing precedent, I believe that the Judge's ultimate conclusion that the NFL is a single entity is proper.

In an upcoming article, I analyze the seven prior opinions to consider the NFL's single entity analysis, finding that they were all either wrongly decided, or not reliable precedent. While Judge Moran should undoubtedly have taken greater care in explaining why the prior decisions were disregarded, I do believe the court ultimately decided the single entity issue correctly.

Posted By : Nathaniel

Very interesting news item. From a Portuguese law ...

Message posted on : 2007-10-10 - 09:44:00

Very interesting news item. From a Portuguese law standpoint (which I believe is the governing law of the agreement between Big Phil and Caixa), ultimately it will depend on the wording of the referred 'morality clause'.

Tiago M. Cruz

Posted By : Anonymous

Count me as a person who thinks rejection of singl...

Message posted on : 2007-10-10 - 10:03:00

Count me as a person who thinks rejection of single entity defenses has been error.

The league controls to a significant degree the markets franchises operate in.

In the NFL (unsure of the others) a portion of gate receipts are shared.

With salary caps and luxury taxes franchises either cannot just spend whatever it takes to assemble the greatest team or does so at financial penalty.

Bill Gates can't just write a check and compete in the league of his choice in the market of his choice. He must either purchase an existing franchise or obtain the rights to an expansion franchise.

Competition among franchises is limited. With a few exceptions, franchises within a league do not compete against one another for ticket sales, local media income, or local sponsorships.

As we have seen in Saint Louis, Houston, Baltimore, and Cleveland the local consumer is far more interested in the product NFL football than who is providing the local flavor of that product. I watched Memphis over the years try to enter the NFL via litigation (WFL), expansion, and franchise relocation. The interest was always NFL football not Grizzlies football, not Colts or Eagles football or expansion team football.

However in the end the case can be determined on pro-competitive impact. Today the consumer has greater access to licensed merchandise because of the collective licensing. That collective licensing makes it possible for the Blackhawks fan in Dallas to find Blackhawk products when individual licensing might mean merchants would carry only Stars merchandise.

Consolidating pay-per-view and online video simplifies the market for the consumer and creates an efficiency that is beneficial to consumer and seller.

Posted By : Mark

Nathaniel:

Thanks for posting on this board...

Message posted on : 2007-10-10 - 11:06:00

Nathaniel:

Thanks for posting on this board. Just to be clear, I think your law review note is very well done, and I look forward to reading your next piece. For those not familiar with Mr. Grow's first publication, it is available on Westlaw/Lexis at 105 Mich. L. 113 (2006). I consider it a "must read."

Just to be clear, I am not saying that the "single entity" defense has absolutely no merit in certain sports markets. All I am saying is that the merits of this defense, if any, are very complex, and some of our nation's most accomplished judges (i.e. Easterbook, J.) have avoided taking a stand.

Therefore, it was capricuous for Judge Moran to decide in favor of the single-entity defense without thoroughly explaining the scope of this defense, including both the defense's economic impact on sports, and its applicability in light of existing case law.

Hopefully, if/when this issue is revisited, a court (if it choses to uphold this defense) will not simply rely on American Needle, but rather render an opinion that serves as more useful precedent.

Posted By : Marc Edelman

Jalsb

Precisely the point I was trying to r...

Message posted on : 2007-10-10 - 11:53:00

Jalsb

Precisely the point I was trying to raise.

Anonymous

Something tells me you're an English fan... in any event, you are most probably correct. Punching is rather different. This said, I don't think they will give Scolari the boot. If they didn't in the aftermath of the punch-up, I don't think they will now.

Tiago

Too bad in Portugal these things tend to be kept under wraps. We can only guess

Posted By : Luis Cassiano Neves

Anon,

Great point about the Yankees' payrol...

Message posted on : 2007-10-10 - 13:04:00

Anon,

Great point about the Yankees' payroll this year. And they just got knocked out of the first round by a team with half the payroll....

Posted By : Rick Karcher

"They spent $13M more than last year, but made the...

Message posted on : 2007-10-12 - 01:44:00

"They spent $13M more than last year, but made the playoffs last year and were not even in the race this year finishing eight games behind Cleveland"

Hmm..IMO, the Tigers WERE in the CD/WC race nearly the entire season, until the latter half of September.

Posted By : Anonymous

the only reaon the yankees lost in cleveland becau...

Message posted on : 2007-10-12 - 09:46:00

the only reaon the yankees lost in cleveland because the indians had a bug problem so they migh want to fix that
Posted By : ben

Marc--your first point is precisely the analysis w...

Message posted on : 2007-10-12 - 10:04:00

Marc--your first point is precisely the analysis we used in determining to file the charge as a perceived disability case, as well as a more typical disabiity discrimination case. The employer's belief that the employee cannot perform in an entire industry should be enough to raise an issue of material fact regarding whether the player is "disabled" under the ADA. At least, we hope it is.
Posted By : John Michels, Jr.

Perhaps the young NASCAR driver Shane Hmiel who wa...

Message posted on : 2007-10-12 - 11:06:00

Perhaps the young NASCAR driver Shane Hmiel who was suspended for life for failing NASCAR's drug policy could employ a similiar strategy.
Posted By : Brandon Greer

With the trades and acquisitions made going into t...

Message posted on : 2007-10-12 - 13:38:00

With the trades and acquisitions made going into the draft, plus the bulk of the team that is carried over from last season, and the trades and draft picks made during the draft, it sure seems like the Pats are going to be the team to beat in the AFC this season, and perhaps in all of the NFL.

Considering the Pats were almost in the Superbowl last season with a pathetic receiving corps and that they've added very talented players into said receiving corps this season, barring some nasty injury(ies), they look to be the team to take it all.I say injury(ies) because I think they could survive an injury or two to some positions, but if they lost Brady they'd probably have a hard time recovering.


I wish I could say that the Redskins did well in the draft and/or in free agency but so many holes still exist that I'm not sure they'll be significantly better than last season. I suppose on face they should be if they can keep their corners healthy. With Landry (argh, hard to type that name as a Redskin!!) back there with a healthy secondary they might be able to cheat up more and put more pressure on opposing QBs. Might.

They still have what should be a lot of talent in the receiving positions, and Campbell should be better, but they don't have the quality on either line (offense or defense) that I wish they'd have, so it could be yet another year of .500 at best, or worse.

Still, the NFC East looks to be the NFC Least again this season. None of the teams there look like they'll be that good, and none really look ready to step up and take the division.

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Posted By : Anonymous

With the trades and acquisitions made going into t...

Message posted on : 2007-10-12 - 16:23:00

With the trades and acquisitions made going into the draft, plus the bulk of the team that is carried over from last season, and the trades and draft picks made during the draft, it sure seems like the Pats are going to be the team to beat in the AFC this season, and perhaps in all of the NFL.

Considering the Pats were almost in the Superbowl last season with a pathetic receiving corps and that they've added very talented players into said receiving corps this season, barring some nasty injury(ies), they look to be the team to take it all.I say injury(ies) because I think they could survive an injury or two to some positions, but if they lost Brady they'd probably have a hard time recovering.


I wish I could say that the Redskins did well in the draft and/or in free agency but so many holes still exist that I'm not sure they'll be significantly better than last season. I suppose on face they should be if they can keep their corners healthy. With Landry (argh, hard to type that name as a Redskin!!) back there with a healthy secondary they might be able to cheat up more and put more pressure on opposing QBs. Might.

They still have what should be a lot of talent in the receiving positions, and Campbell should be better, but they don't have the quality on either line (offense or defense) that I wish they'd have, so it could be yet another year of .500 at best, or worse.

Still, the NFC East looks to be the NFC Least again this season. None of the teams there look like they'll be that good, and none really look ready to step up and take the division.

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Posted By : Anonymous

the biggest punishment is going to be the release ...

Message posted on : 2007-10-15 - 09:59:00

the biggest punishment is going to be the release of names.
Posted By : aaron

Very interesting article and an excellent overview...

Message posted on : 2007-10-15 - 10:01:00

Very interesting article and an excellent overview on the possible implications of a case where politics and sports seem to be stepping in each others' toes. I would like to fuel the discussion by bringing to this topic similar (yet different) cases occurred a few years ago in Italian soccer: the first one relates to the fascist-like salute made by Italian international Paolo Di Canio. Upon his substitution during a Serie A (Italian Soccer League) match, he greeted his fans in the stand by raising his right arm and hand opened to the sky. The second case, also in the Serie A, revolves around Sinisa Mihajlovic. The former Yugoslavian international, with a track record of violent play and racism attitudes towards other players, publicly supported the Serbian military Arkan after a match thanking his fans for sharing his view on the Yugoslavian war. In either case, the players were penalised for their attitudes.
In my opinion, the underlying issue in these cases and in the one presented by the author of the news item, Luís Cassiano Neves, is whether such actions/conducts are within each person's freedom of speech and right to hold an opinion. And if so, whether they are violated or restrained when and if the players are penalised.

TMC

Posted By : Anonymous

Dejagah as I understand FIFA rules is eligible to ...

Message posted on : 2007-10-15 - 10:34:00

Dejagah as I understand FIFA rules is eligible to play for either the German or Iranian national team. He is lucky in that he can elect to play for a national team that will not travel to Israel or he can play for a national team that will not.

The fact that he can choose playing for a national team that is compatible with his belief or his practicality (and we do not know which is driving his situation) shifts the situation.

Dejagah has a choice, he can play for a national team that is likely to have great success and improve his skills at a personal cost of either his political belief or practical concern or he can choose to play for an inferior national team that may not raise his skill level without violating conscience or comfort.

It is a dilemma faced before by many other athletes. Former world record pole valuter Earl Bell was born in the Panama Canal Zone and could claim Panamanian citizenship and toyed with the idea of claiming it when the United States boycotted the Moscow Olympics. In the end he opted to honor the ban and picked up a bronze in the boycotted LA Olympics four years later.

The more troubling intersection of sports and politics is for the athlete who does not have such options.

Posted By : Mark

Well, to paraphrase Justice Holmes: While he has a...

Message posted on : 2007-10-15 - 11:21:00

Well, to paraphrase Justice Holmes: While he has a "right to freely profess a religion, to speak freely without censorship, to hold a personal view," he does not have a right to play for his country's national soccer team. While this no longer is the prevailing formal rule, government still has substantial leeway in deciding who can work and speak on its behalf.

The national team (and other sports teams and leagues) may have some leeway in two respects:

1) When a player's beliefs conflict with the formal beliefs that the team espouses as a speaker, such that having the player espouse those views *in the team context* interferes with the team's message.

2) When the team has to put forward the best unit on the field (or pitch or whatever), avoiding a player that it knows has beliefs that will cause the player to miss important matches.

no. 2 is a stronger argument than no. 1. But no. 2 as a rationale also allows the team to make some accommodation--e.g., allow him to avoid one particular game, so long as it is not too many games. But, in doing so, does the team give the impression that it is condoning/endorsing those political views? And does that, in turn, interfere with the message that the German national team (and the German government) want to espouse as to Israel and the Holocaust? In other words, in trying to be flexible with its power under no. 2, does the team undermine its rights under no. 1?

And take it into other contexts. Should an Iranian tennis player have the right to demand that the organizer of the U.S. Open not schedule her to play Shahar Pe'er of Israel in the first round? Should a liberal running back (if there were one) have the right to demand that he not be required to play a game in Texas because of the state's policies with respect to the death penalty? Should a devout Christian NBA player demand that he not be required to play in Salt Lake City because of the presence of the LDS Church (which many Christians regard as a cult)?

This case is ironic in light of the constant demands (at least in the U.S.) that athletes take stands on social and political issues. Something like this is Exhibit A in why players don't.

Posted By : Howard Wasserman

A lawsuit for defamation. But since any player nam...

Message posted on : 2007-10-15 - 12:03:00

A lawsuit for defamation. But since any player named almost certainly is a public figure, MLB, Mitchell, et al. only will be liable if they knew they falsely named players.
Posted By : Howard Wasserman

Buster Olney reports in his blog that MLB is cover...

Message posted on : 2007-10-15 - 12:06:00

Buster Olney reports in his blog that MLB is covering Mitchell for any liability that may result from naming names...

Could get interesting?

Posted By : Anonymous

What about FIFA's Kick Racism out of Football camp...

Message posted on : 2007-10-15 - 15:36:00

What about FIFA's Kick Racism out of Football campaign? Where will FIFA come down on this issue? I understand that it is just a U-21 match but fairly similar issues like this have been coming up in the UK for some time. Players having dual citizenship in Ireland, England, and North Ireland has in the past led to issues.

Excellent blog and a great topic today.

Posted By : Jeff

Mark

Excellent point and I agree with you. ...

Message posted on : 2007-10-16 - 05:28:00

Mark

Excellent point and I agree with you. I basically tried to raise the issue of the extent to which issues of conscience can actually limit participation, especially if such participation has a very real economic effect. It should be accepted that representing a national team is primarily about national interest, but has an increasing economic element to it. Therefore, participation in national teams has the potential to be more closely scrutinized by rules on freedom of movement and antitrust (especially EU rules). I guess it comes down to proportionality. And Howard addresses this issue brilliantly.

Posted By : Luis Cassiano Neves

It seems to me that the CBA should be followed, ot...

Message posted on : 2007-10-16 - 12:55:00

It seems to me that the CBA should be followed, otherwise bargaining is pointless, and the CBA is meaningless.

I personally read the 2005 steroid testing provisions as a limitation on the degree of intrusion and evidentiary standard that can be imposed by the commissioner. I think the fact that a positive test result is stressed in the CBA, clearly indicates the intent of an evidentiary threshold here.

In the CBA, the commissioner is granted some limited powers in the event of a positive drug test, the absence of any mention of limited owers in a case where there is no test should then be read as an absolute limition of powers, or in other words, no power at all.

At least this is what I believe to be the most reasonable interpretation of the CBA.

Posted By : Jimmy H

With the trades and acquisitions made going into t...

Message posted on : 2007-10-16 - 15:01:00

With the trades and acquisitions made going into the draft, plus the bulk of the team that is carried over from last season, and the trades and draft picks made during the draft, it sure seems like the Pats are going to be the team to beat in the AFC this season, and perhaps in all of the NFL.

Considering the Pats were almost in the Superbowl last season with a pathetic receiving corps and that they've added very talented players into said receiving corps this season, barring some nasty injury(ies), they look to be the team to take it all.I say injury(ies) because I think they could survive an injury or two to some positions, but if they lost Brady they'd probably have a hard time recovering.


I wish I could say that the Redskins did well in the draft and/or in free agency but so many holes still exist that I'm not sure they'll be significantly better than last season. I suppose on face they should be if they can keep their corners healthy. With Landry (argh, hard to type that name as a Redskin!!) back there with a healthy secondary they might be able to cheat up more and put more pressure on opposing QBs. Might.

They still have what should be a lot of talent in the receiving positions, and Campbell should be better, but they don't have the quality on either line (offense or defense) that I wish they'd have, so it could be yet another year of .500 at best, or worse.

Still, the NFC East looks to be the NFC Least again this season. None of the teams there look like they'll be that good, and none really look ready to step up and take the division.

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Posted By : Anonymous

With the trades and acquisitions made going into t...

Message posted on : 2007-10-16 - 15:04:00

With the trades and acquisitions made going into the draft, plus the bulk of the team that is carried over from last season, and the trades and draft picks made during the draft, it sure seems like the Pats are going to be the team to beat in the AFC this season, and perhaps in all of the NFL.

Considering the Pats were almost in the Superbowl last season with a pathetic receiving corps and that they've added very talented players into said receiving corps this season, barring some nasty injury(ies), they look to be the team to take it all.I say injury(ies) because I think they could survive an injury or two to some positions, but if they lost Brady they'd probably have a hard time recovering.


I wish I could say that the Redskins did well in the draft and/or in free agency but so many holes still exist that I'm not sure they'll be significantly better than last season. I suppose on face they should be if they can keep their corners healthy. With Landry (argh, hard to type that name as a Redskin!!) back there with a healthy secondary they might be able to cheat up more and put more pressure on opposing QBs. Might.

They still have what should be a lot of talent in the receiving positions, and Campbell should be better, but they don't have the quality on either line (offense or defense) that I wish they'd have, so it could be yet another year of .500 at best, or worse.

Still, the NFC East looks to be the NFC Least again this season. None of the teams there look like they'll be that good, and none really look ready to step up and take the division.

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Posted By : Anonymous

With the trades and acquisitions made going into t...

Message posted on : 2007-10-16 - 17:19:00

With the trades and acquisitions made going into the draft, plus the bulk of the team that is carried over from last season, and the trades and draft picks made during the draft, it sure seems like the Pats are going to be the team to beat in the AFC this season, and perhaps in all of the NFL.

Considering the Pats were almost in the Superbowl last season with a pathetic receiving corps and that they've added very talented players into said receiving corps this season, barring some nasty injury(ies), they look to be the team to take it all.I say injury(ies) because I think they could survive an injury or two to some positions, but if they lost Brady they'd probably have a hard time recovering.


I wish I could say that the Redskins did well in the draft and/or in free agency but so many holes still exist that I'm not sure they'll be significantly better than last season. I suppose on face they should be if they can keep their corners healthy. With Landry (argh, hard to type that name as a Redskin!!) back there with a healthy secondary they might be able to cheat up more and put more pressure on opposing QBs. Might.

They still have what should be a lot of talent in the receiving positions, and Campbell should be better, but they don't have the quality on either line (offense or defense) that I wish they'd have, so it could be yet another year of .500 at best, or worse.

Still, the NFC East looks to be the NFC Least again this season. None of the teams there look like they'll be that good, and none really look ready to step up and take the division.

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Posted By : Anonymous

I don't see why the case of a dual citizen of Iran...

Message posted on : 2007-10-17 - 00:51:00

I don't see why the case of a dual citizen of Iran and Germany and his half-cooked ideas of allegiance to any of them is "a very distasteful (and dangerous) topic". Unless you consider any discussion about recent German history, the Holocaust and the relationship of Germany with Israel distasteful and dangerous.

Since this is a law blog with readers who might not be familiar legal standards abroad, I like to point out article 130 of the German penal code, which states in its third paragraph that people who publicly deny or belittle war crimes and crimes against humanity crimes committed by the Nazis can be punished with prison sentences of up to five years. The article was enacted for a reason: to make sure that Germans will not flirt with revisionist ideas and question - under the guise of free speech or because of personal concerns regarding their family members or what have you - the findings of the Nuremberg trial and other war crime tribunals.

While the soccer player does not violate the letter of the law, the official position of his home country Iran regarding the Holocaust (and Israel) clearly has no respect for it. Dejagah may not know and understand this. But as a German citizen he is not free to ignore it and play dumb.

On most days nobody is forced to take sides on an issue of that importance. It is a quandary, for sure. But as a German who grew up in the post-war years and has visited concentration camps and other places where Germans committed atrocities, I don't find it hard to demand clarity. Because as a member of a German (or any national) soccer team you represent more than your own personal quest for money and fame.

Posted By : Jürgen Kalwa

Would this have any effect on the case of the NCAA...

Message posted on : 2007-10-17 - 01:15:00

Would this have any effect on the case of the NCAA's blogging policy where the Louisville reporter was thrown out for live blogging... Can the NCAA do the same and still own the facts of the game and limit how they can be reported or am I just stretching this a bit?

link: http://www.courier-journal.com/apps/pbcs.dll/article?AID=/20070621/SPORTS02/706210481 )

Posted By : Ryan

Hmmm. Indirectly, perhaps. The decision suggests t...

Message posted on : 2007-10-17 - 08:10:00

Hmmm. Indirectly, perhaps. The decision suggests that there is First Amendment protection for publication of information, even for purely entertainment purposes, where there is public interest and value in the information. That suggests a similarly pretty broad right in the reporters at games to publish the "facts" occurring at the game.
Posted By : Howard Wasserman

There is a huge difference between these two cases...

Message posted on : 2007-10-17 - 09:31:00

There is a huge difference between these two cases. The NCAA blogger concerns the live dissemination of a game in progress, dealing with the rights in the broadcast of the game. The MLB fantasy case concerns the right of publicity of the athletes (or in this case MLB Advanced Media who had purchased those rights from the MLBPA). This really turns on the fact that the stats and numbers are newsworthy and published in newspapers and other media formats anyways, the reasoning beeing that you cant have a protected interest in newsworthy information.

Personally I dont completely agree here, but I really didnt expect a different outcome...

Posted By : Jimmy H

I agree in that I don't see any notable overlap be...

Message posted on : 2007-10-17 - 11:52:00

I agree in that I don't see any notable overlap between this and the live blogger case.

The NCAA, or colleges or pro franchises can prevent live blogging as a condition of issuing media credentials or utilizing communications systems owned, leased or operated by or on behalf of them.

The stickier issue is whether it is broadcasting and interferes with the right of publicity as in Zacchini.

Posted By : Mark

Mark,

Good point, but I think that the blo...

Message posted on : 2007-10-17 - 12:30:00

Mark,

Good point, but I think that the blogger case is better compared to NBA v. Motorola. In Motorola, the technology at issue was "Sports Trax," a wireless paging device that provided users with up-to-the-minute information about any sports event in progress. STATS, Inc. hired people all over the country to watch games and send the updates to a satellite, which would then transmit that info to anyone who has a Sports Trax pager. The pitch was that fans would be able to "attend" any game they wanted to without buying tickets or sitting in front of the TV or radio all day. This sounds very similar to the NCAA blogger.
But as you pointed out, the NCAA could prevent live blogging by limiting its press passes.

Zacchini dealt with the right of publicity. But in Zacchini, the question was that of newsworthyness. The Zacchnii performance was certainly newsworthy, but even newsworthy items can be limited. In Zacchini, the act was shown in its entirety, which was held to be a violation. Along the same line, a news program can show a short clip from a baseball to recap what had happened, but they cannot show the game in its entirety and pass it off as simply newsworthy.

So in the case of the live blogger, the real time updates would be a motorola issue, and the amount of information would be a Zacchini issue.

granted its been a while since I read all this, but this is my recolection of it all.

Posted By : Jimmy H

But if live-blogging is not "broadcasting," that i...

Message posted on : 2007-10-17 - 12:50:00

But if live-blogging is not "broadcasting," that issue of broadcast rights falls away. It then becomes strictly a right-of-publicity/First Amendment/Zacchini issue, which is precisely what the CBC decision was about--and the CBC court found that balance to favor the First Amendment when dealing with names, stats, etc. I do not see that reporting how those stats were achieved (i.e., Sutton just scored a touchdown for Northwestern) is that much different.

And the NCAA cannot simply resolve this by limiting press passes for games played at public-university facilities. And even the NCAA recognizes this, which is why it backed-off its no-blogging policy over the summer in the wake of the Louisville/CWS situation.

Posted By : Howard Wasserman

Howard,

if live blogging is not broa...

Message posted on : 2007-10-17 - 15:14:00

Howard,

if live blogging is not broadcating, then yes, it would be a Zacchini issue. So in that case it would turn on what? How detailed the blogger is? The whole reasoning behind Zacchini is that its ok to report on the entertainers act, but not to the point where the entire act is shown/reported. Isn't that exactly what the problem with the live blogger is? The blogger describes in detail what is happening ni the game, and in theory this would replace the need for actual attendacne or watching your TV. In my view that is what makes this a broadcast, the detailed description of the game in real time or close to real time.

Posted By : Jimmy H

Ah yes... the old "athletes make enough money anyw...

Message posted on : 2007-10-17 - 15:55:00

Ah yes... the old "athletes make enough money anyways" argument. Isn't it nice to see legal reasoning backed up by the income standard of a few men and women in black...

at least it's nice to see the court agree that there is identification here, even if it then tosses it aside for an ever expandnig First Amendment over the right of publicity.

Posted By : Jimmy H

The NCAA and its members do restrict the issuance ...

Message posted on : 2007-10-17 - 16:00:00

The NCAA and its members do restrict the issuance of press passes. Big XII policy is that press credentials are issued only to those employed by organizations that print their content on tangible media or report for television or radio. Internet only publications are excluded.

Other institutions limit issuance to the largest news organizations based on readership/viewership and some limit the number of representatives any outlet may bring.

Off hand I don't recall any challenges to this system.

Posted By : Mark

It would be hard to challenge this wouldn't it? I ...

Message posted on : 2007-10-17 - 16:06:00

It would be hard to challenge this wouldn't it? I mean, it seems like a privilige not a right. Would be interesting to see someone try though.
Posted By : Jimmy H

The right/privilege distinction does not exist any...

Message posted on : 2007-10-17 - 16:28:00

The right/privilege distinction does not exist anymore. So if a blogger did challenge the Big XII policy at a public school, some First Amendment analysis would kick-in. Presumably, the school would have to come up with some neutral standard (for example, likely reach of the media outlet) for excluding or including.

As for broadcasting: I find it hard to understand the written word as broadcasting--and maybe that is the difference. If I wrote (in a real-time or after-the-fact medium) a detailed, step-by-step description of The Human Cannonball, do you think the court would uphold Mr. Zacchini's right of publicity claim? I seriously doubt it.

It seems to me "broadcasting" means something other than real-time; it also is the manner of communicating (visually/orally v. in writing). Because I do not see a difference between reading a written description of events in real time or ten hours later (assuming I still will be surprised by the outcome). Either one, by entailing a blow-by-blow description, "replaces" being at the event.

Posted By : Howard Wasserman

Great article. I think they have asked for a jury ...

Message posted on : 2007-10-17 - 16:40:00

Great article. I think they have asked for a jury trial to help overcome some of the problems you have outlined.

If you get a jury with folks who have any axe to grind about the police, city government, or govenment in general, I think this will tip the scales for a large reward. We all remember the OJ trials. Two different types of juries. Two different attitutes.

I have seen this in 2 civil juries I have served in. In one of them, the we awarded more than what had been asked.

elena

Posted By : Anonymous

Professor Wasserman, I think that in the end the a...

Message posted on : 2007-10-17 - 16:59:00

Professor Wasserman, I think that in the end the analysis would be that broadcasting is the oral or visual presentation of the game and live blogging would be considered a news story. A news story that updates frequently but still a news story.

There currently is one or more service out there that ties into the computer software used to compile stats in real time by the game statistician. The "feed" from that information is plugged into software that will create a graphical representation of the game with a field and a ball or other marker moving back and forth along the field and provides down, distance and time information.

Live blogging is quite different from that service because blogging is the writer's description and normally some opinions of the raw facts that the game track services provide. The live blog is more similar to a news article on the event than a broadcast.

While not a legal argument in and of itself, the typical consumer would forego a game track or live blog if given the opportunity to listen to an audio account or watch a video feed. A live blog is not going to damage the value of the "broadcast" product.

Posted By : Mark

This is all very fascinating information and defin...

Message posted on : 2007-10-17 - 17:32:00

This is all very fascinating information and definitely a big win for the fantasy sports industry.

Thanks everyone for such fruitful comments about the live blogging

Posted By : Michael

Is there any danger of this ruling being overturne...

Message posted on : 2007-10-17 - 19:50:00

Is there any danger of this ruling being overturned by the Supreme Court?
Posted By : themaroon

Except a lot of what is alleged in this case never...

Message posted on : 2007-10-17 - 19:53:00

Except a lot of what is alleged in this case never will reach a jury. The prosecutorial immunity will be resolved early; so will the issue of qualified immunity (which is a question for the judge). And as for damages, I do not think they will get anywhere close to $ 30 million, although they should recover a lot.
Posted By : Howard Wasserman

Virtually none. There is nothing that would cause ...

Message posted on : 2007-10-17 - 21:26:00

Virtually none. There is nothing that would cause SCOTUS to take this case. There is no split of lower authority, SCOTUS does not care about what Missouri law means, the 8th Circuit was not obviously wrong, and the lower court upheld the federal claim of right.
Posted By : Howard Wasserman

Howard,

I disagree. It's a First Amendment...

Message posted on : 2007-10-17 - 21:44:00

Howard,

I disagree. It's a First Amendment issue, not just a Missouri law issue. Also, there already was plenty of confusion in this area of the law, and the Eighth Circuit's opinion not only provides even more confusion but it also conflicts with the Second Circuit's opinion in Haelan Labs. Finally, and probably most importantly, it involves sports!

Posted By : Rick Karcher

This is interesting to me because I am trying to g...

Message posted on : 2007-10-17 - 22:00:00

This is interesting to me because I am trying to get clear in my mind how far either side could run with the ruling given if it is upheld or overturned.

Let's say it's overturned and the result is names and statistics can be covered by a right of publicity claim. Could Barry Bonds take action against the Las Vegas Sun for publishing his box scores? His name and statistics are published, and the newspaper is getting revenue for the publication, so it is being done for commercial advantage. Or, could Hollywood celebrities go after tour operators that are taking commercial advantage of the statistics of stars' addresses combined with their names (likenesses) for a commercial advantage? How about fact-based games like Trivial Pursuit or Jeopardy? Or, how about athletes going after Las Vegas sportsbooks for offering wagers on athletes performances?

Now if the ruling is upheld, how far can one go without losing the safe harbor of the First Amendment?
Can fantasy sports operators now do more than names and statistics? Can they offer near-real time commentary on games? How close can they go to a de facto replication of a broadcast?

Two other questions. The first deals with an issue that the 8th Circuit did not address and that was the possibility of the Copywright Act trumping the right of publicity. If the First Amendment claim fails at the Supreme Court, would the Copywright Act argument be considered concurrently and ruled upon?

The second question is the question more focused on MLB's wait to enforce their rights for about 20 years after it was known that fantasy baseball was being conducted on a for-profit basis. Is it possible that MLB could be right on everything, but lose because they waited too long to enforce their rights?

Sorry for the long post, but I can see how this discussion could spawn many others!

Posted By : Anonymous

It is the right decision (twice now). You don't ha...

Message posted on : 2007-10-17 - 22:21:00

It is the right decision (twice now). You don't have to be a lawyer or law professor to figure out why. You are thinking way too hard on this one.
Posted By : Anonymous

The Commissioner CANNOT discipline an individual p...

Message posted on : 2007-10-17 - 22:33:00

The Commissioner CANNOT discipline an individual player without an in dividual positive test result.

Lets say, an invoice named a player of purchasing banned substances, was sent to the players home address and individuals are willing to testify that the substances were delivered to the player, how do we know the player actually took/used the substances, without a positive test?

Posted By : Richard

How did Gaines gain employment at LSU or any high ...

Message posted on : 2007-10-18 - 02:05:00

How did Gaines gain employment at LSU or any high school? This is a convicted felon!

http://media.swagit.com/s/wbrz/The_Advocate/10252006-12.high.flash8.html

http://sports.espn.go.com/espn/wire?section=ncf&id=2641081

What ever happened in the LSU case? Any follow up?

Posted By : Anonymous

Anon,

In evaluating the First Amendment's a...

Message posted on : 2007-10-18 - 06:53:00

Anon,

In evaluating the First Amendment's application to right of publicity, the focus must be on the particular USE of the name or likeness. The use by news reporters is to report news, which is a non-debatable FA protection. That's why names in box scores do not afford a right of publicity cause of action. If you cut Barry Bonds' picture out of the paper, put it on a shirt and sell it, the use is no longer protected by the FA. If you and your buddies grab all of the players' stats out of the paper and play a fantasy league game among yourselves, there isn't a right of publicity problem unless you sell it to somebody. The use by fantasy leagues is not to report news, it's to sell a game to the public. The reason the public pays gobs of money for it is BECAUSE OF the fact that the game involves famous athletes. The game simply does not sell if operators were to use the local lawyers softball league. Therefore, the court was careful not to focus on the USE, because if it did, the court would be hard pressed to say it's protected by the FA. So instead, the court uses the phrase "public domain". Well, that simply cannot work in application to right of publicity claims (maybe it does in other contexts) because it essentially eliminates any right of publicity cause of action.

Technology/Internet has created a mindset that the public somehow has a right to use any information it wants. It's easily accessible and appears to be "free" (even though it's really not). So the initial inclination is to say, "who do these guys think they are wanting to profit off of this stuff?!" But online fantasy league games are the equivalent to packaging their identities within a board game and selling it (most would say there is no FA protection there).

In the examples you raised (and I've heard all of those before, with the exception of the Hollywood celebrity example which I'm not sure I understand), my response is to simply say, maybe they should have a right of publicity. Now, the claim may or may not be worth pursuing. But why do we just tend to assume that it is ludicrous to think that these examples do not afford a cause of action? Is it a concern that these products will no longer be offered? Is it a fairness issue, such that we don't think these people deserve a dime in this context?

If I was the President of Topps or EA Sports, I'd probably fax a copy of the Eighth Circuit's opinion to the union and demand a refund.

Posted By : Rick Karcher

How about this for a translation of the decision o...

Message posted on : 2007-10-18 - 07:44:00

How about this for a translation of the decision of the case (forget 1st amendment and right of publicity blah, blah, blah, and just cut right to the chase): "MLB and MLBPA make enough money. Let's allow private company and average Joe to enjoy fantasy sports without filling their swollen pockets any more. - So ordered." (Then the court adjourns and one of the judges goes back to his chambers and immediately drops Ben Watson from his fantasy football lineup while another judge ponders whether or not he should join a local fantasy hockey league).
Posted By : Anonymous

Anon,

Are you one of the Eighth Circuit jus...

Message posted on : 2007-10-18 - 09:07:00

Anon,

Are you one of the Eighth Circuit justices? Because that's basically what the opinion says :)

Posted By : Rick Karcher

Maybe :)

Message posted on : 2007-10-18 - 09:29:00

Maybe :)
Posted By : Anonymous

Anon 7:44,

Great comment, you really nailed...

Message posted on : 2007-10-18 - 12:20:00

Anon 7:44,

Great comment, you really nailed that one!

As for the Hollywood celebrity question raised by Anon 10:00:

I think what you are referring to are the open bus tours that drive tourists armed with cameras around holywood to look at all the celeb houses. I wouldn't think you would have a protected interest in your physical address, but i think you could have a claim if the company used the celebs pictures and names as the primary selling point on flyers, or put the celebs images on on the bus etc...

Posted By : Jimmy H

Mark,

If the name isn't really that importa...

Message posted on : 2007-10-18 - 13:49:00

Mark,

If the name isn't really that important, then the fantasy leagues that choose NOT to contract with MLB Advanced Media should be limited to say STL 1B no. 5, not Albert Pujols, 1B STL. I can guarantee you that the leagues that would not use player names would loose most if not all of their business to the leagues that could use the names...

Posted By : Jimmy H

But it's not the name of the player driving the bu...

Message posted on : 2007-10-18 - 15:55:00

But it's not the name of the player driving the business. It's the statistical information.

Is there more value if you have the names? Of course because it makes identification easier. Is it what drives the business? No, I don't think so.

Posted By : Mark

this is to the guy at the bottom, they may be dogs...

Message posted on : 2007-10-18 - 17:05:00

this is to the guy at the bottom, they may be dogs but they are living creatures. when they are brought some where to fight they dont have any other option but to fight. they cant just stand up and say, ya know what? im outa here like you may be able to. so think twice about this and bush didnt say,,,, hey vick, here is a couple of pit bulls go gamble off of em'. you disgust me.
Posted By : Anonymous

okay i made a mistake the comment above this, is n...

Message posted on : 2007-10-18 - 17:08:00

okay i made a mistake the comment above this, is not the one i am refering to the comment above that is the one i am refering to. SORRY MY BAD! but i dont take back what i said never in a million years
Posted By : Anonymous

Mark and Jimmy,

Even if the names were not ...

Message posted on : 2007-10-18 - 18:07:00

Mark and Jimmy,

Even if the names were not used, the players would be able to meet the identification element for a right of publicity cause of action. In other words, the actual name does not need to be used as long as it can reasonably be inferred that the plaintiff is the subject of the use by the defendant.

Posted By : Rick Karcher

Most of my friends at millionairematch.com cocerne...

Message posted on : 2007-10-19 - 03:15:00

Most of my friends at millionairematch.com cocerned whether it can bring negative effect.
Posted By : Anonymous

MLBPA entitled an exclusive right to control fanta...

Message posted on : 2007-10-19 - 03:20:00

MLBPA entitled an exclusive right to control fantasy stats while we discussed at millionairematch.com whether the MLBPA comply with its rightborder.
Posted By : Anonymous

Luis,

Excellent post. The problem as I see...

Message posted on : 2007-10-19 - 07:12:00

Luis,

Excellent post. The problem as I see it is that there are good agents and bad agents, and unions have set up a system in which: (1) players are expected to figure out on their own who the bad ones are and then pick out a good one, and (2) the union then permits the agents to be grossly overcompensated based on some percentage of the player contract. It's a formula for disaster! If unions truly want to be looking after the players' best interest, they need to have more direct involvement in the process.

The British union (PFA) has been proactive in this regard and established an internal player management agency in which it employs 9 agents that provide players with player management services: http://www.givemefootball.com/pfasection/PMA.html.

Posted By : Rick Karcher

I'm going to put the Eighth Circuit's holding in r...

Message posted on : 2007-10-19 - 07:43:00

I'm going to put the Eighth Circuit's holding in really simple terms. The term "public domain" means the public owns it. The sole question in the case is whether the players own it. The court says the reason the players don't own it is because the public owns it.
Posted By : Rick Karcher

Rick

Thank you very much. I obviously agree...

Message posted on : 2007-10-19 - 11:00:00

Rick

Thank you very much. I obviously agree with you. Your's is a very american proposal, and one that makes absolute sense. But I'm not sure how Players' Agents Unions/Associations would react to this.

I was unware of the initiative by the PFA in Britain. It is true they have one Players' Agents Association in England as well and seemingly, things have gone well with what seems to be an excellent idea. I'm thinking how well it can translate into other countries though, where the unions are still relatively weak institutions (any League other than Italian, Spanish and English).

It would be great if the Portuguese Players' Union came up with something like this...

Thank you.

Posted By : Luis Cassiano Neves

Should this ruling be interpreted such that board ...

Message posted on : 2007-10-20 - 15:15:00

Should this ruling be interpreted such that board game companies like APBA or Stratomatic (or their computer software versions) would no longer require licensing agreements to use MLB player names and stats (as long as they use no logos or photo likenesses)?
Posted By : Anonymous

I completely agree with the portion of this articl...

Message posted on : 2007-10-21 - 21:55:00

I completely agree with the portion of this article which refers to the different opinions regarding Torre among the "geniuses" running the Yankees. I thought about that when I heard the terms of the deal announced. However, even with the dysfunctional transition that is taking place with Yankees, if big George had really wanted Torre gone, Torre would have been gone immediately. It seems as if George sincerely wanted to keep Torre while others, Cashman specifically, wanted Torre to be sent packing. Maybe big George is losing a little bit of his edge in his old age. - Trent Lowry
Posted By : Trent Lowry

Hi Trent,

Thanks for your comments. I just ...

Message posted on : 2007-10-21 - 22:30:00

Hi Trent,

Thanks for your comments. I just wanted to hypothesize on your last point. I have no direct knowledge, so this is an educated guess (if such a concept really exists). I think that Steinbrenner the Elder is in greater decline that many may think and either could be more easily persuaded by others or simply not as strong-willed about quick decisions as he was. This transition has been so awkward to make it a case study in business schools. Everything seems very disjointed.

Posted By : Mark Conrad

Anon,

Whether the use involves pictures doe...

Message posted on : 2007-10-22 - 11:08:00

Anon,

Whether the use involves pictures doesn't make the case stronger than the use of just names. All that is necessary is that the "identification" element is met, and the element is clearly met when the use involves names (and the Eighth Circuit aknowledged that as well). Bottom line is that the Eighth Circuit's holding is inconsistent with Haelan Labs. (which held that players have a right of publicity when their identities are used in baseball cards), as well as other federal and state cases involving use of identities in board games. I'm not sure what the Eighth Circuit considers to be a violation of the right of publicity under its public domain standard. There is one statement in the opinion where the court seems to imply that unconsented use through advertisements and endorsements would constitute a violation, and I guess that's just because the court thinks the players "deserve" to make money in that context.

Posted By : Rick Karcher

Haelan Labs: Before Internet
This case: After I...

Message posted on : 2007-10-22 - 12:10:00

Haelan Labs: Before Internet
This case: After Internet
Haelan Labs: Pittance of $
This case: $$$$$$$$$$$$$$$$$
Consistent? No.
Changing times? Yes.
Fans win.
Players lose.
Get on with life...(and note that Cleveland is playing this week so put B. Edwards and D. Anderson back in already...)

Posted By : Anonymous

The claim that "each playoff team has an equal cha...

Message posted on : 2007-10-22 - 13:53:00

The claim that "each playoff team has an equal chance of winning the World Series. Once you get to the playoffs, it becomes a matter of timing, luck, molecular attraction and star alignment ... " is commonly made by apologists for the current unfair system of allowing George Steinbrenner to buy a playoff berth for his team every year, much like I buy a bag of onions every few weeks at the supermarket. If that's true, how come the low-payroll teams never advance? Oakland has gotten into the playoffs repeatedly but has never gotten past the big-spending Yankees and Red Sox. Cleveland eliminated the Yankees but could not get past the Red Sox. The current system is unfair, and bland assertions that any playoff team can win don't seem to match up with what really happens.
Posted By : Cleveland Okie (Tom Jackson)

I think this is a good analysis of what happened w...

Message posted on : 2007-10-22 - 14:31:00

I think this is a good analysis of what happened with Joe Torre. I am currently a 3L and just finished the book, "Getting to Yes" for ADR/Mediation class. Apparently George hasn't read that book...Maybe Steinbrenner is just so smooth that he purposely low balled Torre by at least offering an incentive laden contract rather than no contract at all in hopes that Torre would turn down the deal and they would then hire a new manager. Just a different spin on the PR aspects of what happened. I don't really think the Yankees or Steinbrenner would purposely do such a thing, but you never do know...
Posted By : Tim

Internet? Irrelevant

Fans win? No they don...

Message posted on : 2007-10-22 - 15:17:00

Internet? Irrelevant

Fans win? No they don't; they pay the same regardless of the outcome.

$$$$$$$$$$? Yep, and the only reason the fantasy league operators make it is because of the players -- use the local lawyers softball league if it's not because of the players

Posted By : Rick Karcher

I agree that it looked like an offer where the int...

Message posted on : 2007-10-22 - 16:35:00

I agree that it looked like an offer where the intention was to get a "no." They wanted to replace him but the fans wanted to keep him. I think the management wrongly believed that the fans would side with them if they offered him the job but he turned it down. The incentives at first blush give the appearance of wanting to win, i.e. bonuses for winning it all. But when you look at his history it does come off as an insulting way of suggesting that Torre didn't previously have incentive to manage well in the playoffs. So I believe the team got what they wanted--Torre out. But the PR fallout is not good.
Posted By : Anonymous

This case is about $$$ plain and simple. It is not...

Message posted on : 2007-10-22 - 17:00:00

This case is about $$$ plain and simple. It is not about 1st amendment or right of publicity (at least to the 8th Circuit). The players are sooooo being used by the fantasy operators that it amounts to complete and unbridled commercial exploitation. I feel so bad for all the players. NOT.
Posted By : Anonymous

It's an interesting system indeed, but I wonder if...

Message posted on : 2007-10-22 - 19:49:00

It's an interesting system indeed, but I wonder if it is not better suited for leagues that have a natural monopoly (NFL, NHL, MLB, NBA).

The problem to me is that the agent is supposed to look out for the players best interest. In europeean leagues (Soccer, Hockey and even team handball) talent often moves from counrty to country, league to league. Where is the players best interest here? One agent from one league claiming this, an agent from another league claiming that, etc... in that situation the player would need an advisor to figure out where to go... sound like an agent to anyone else?

I dont know, maybe I'm missing something here. Are the agents from the PFA allowed to negotiate with other leagues? It just sounds like the agents would be biased toward a certain league, which wouldn't be in the players best interest.

Any clarifiacatiowould would be much appreciated.

Posted By : Jimmy H

Jimmy

Excellent points raised. To the best ...

Message posted on : 2007-10-23 - 05:04:00

Jimmy

Excellent points raised. To the best of my understanding, the PFA agents would be able to negotiate with other leagues as well. They seem to be best equipped to deal on behalf the players because of the institutional status, which places greater pressure on them to adhere to the rules put in place by leagues.

But good point on the bias. It all comes down to the human quality of the people engaged in the business. But Agents from unions do seem like a step forward.

Posted By : Luis Cassiano Neves

Luis, Rick and Jimmy: Great topic!

Jimmy ha...

Message posted on : 2007-10-23 - 17:44:00

Luis, Rick and Jimmy: Great topic!

Jimmy has a very good point. We have seen that, when the player moves to another country, the compromise of the new country player´s union is not that strong with the foreing player as with a national player.

Regarding the payment of the agent´s fees, the FA regulations (contrary to the FIFA regulations) incorporated in the guidance notes (September 2007) a “DUAL REPRESENTATION & CONFLICTS OF INTEREST� chapter (access at http://www.thefa.com/NR/rdonlyres/0F41539B-05CC-4B24-94D7-5D6F931BB3F3/120799/GuidanceNotes.pdf)

Finally and regarding the 3rd party ownership of player´s rights. We might say that this is our not-to-be-proud-of invention, here in Argentina. The first CAS awards about this issue are from Argentinean clubs. In Español de Barcelona c/ Velez Sarsfield and Club Atletico Lanus c/ RCD Mallorca, the CAS defines the notion of economic rights, opposed to federative rights and recognized the validity of a co-ownership of a player´s economic rights between to clubs. I still don´t know if the CAS recognized the ownership of a third person or company that´s not a club.

In my experience, those funds always have a club under their control that they use as a masquerade to register the player in order to avoid any federative obstacle. But that´s just another future conflict focus. ¿Is the co-ownership of a player between clubs valid, even if the player actually never played for one of the clubs?

In Argentina, after a bunch of judicial decision against the validity of the 3rd party ownerships of those rights, because they where contrary to the regulations of the Argentine Football Federation, the federation passes a new regulation in December 2005 admitting the 3rd party ownership. There's a limitation, the club that owns the federative rights of the player must own also a 30% minimum of their economic rights. Also, the private owner can´t sell those rights to another person or club but to the holder of the federative rights (except if he gets the clubs consent).

Posted By : Ariel Reck

I am not at all surprised by the way these events ...

Message posted on : 2007-10-23 - 22:06:00

I am not at all surprised by the way these events unfolded. After all, we are talking about the Yankees here. If you're a fan of the Yanks (which I'm not), it's really a shame that one of baseball's most storied franchises is so poorly run. It has been poorly run for many years now. Steinbrenner has always been my way or the highway kind of guy, which is somewhat understandable since it is his hundreds of millions of dollars that have been thrown at big name free agents to try and buy championships. According to the Steinbrenner school of thought, the Yankees are "supposed" or "entitled" to win championships every year, not taking into account that there are 30 something other teams in professional baseball who might also have a shot. Ok, realistically that number is more like 5 or 6 on a yearly basis, but still you all get the point. And I have to disagree with Trent. From all accounts, it was Steinbrenner who wanted Torre gone and Cashman who wanted Torre back. It was widely reported that Cashman convinced Steinbrenner not to fire Torre after last season.
Certainly, this offer was a slap in the face to Torre and why wouldn't it be? He only brought the Yankees 4 world series titles in his first 5 seasons. Keep in mind that this was before the Yanks had A-Rod, Jason Giambi, or Bobby Abreu. The reason the Yanks have not been to the promise land recently is pretty simple: lack of starting pitching and general decline in the farm system. You can only buy so many wins by throwing millions at big-name players. Look at the Cardinals last year: they won the World Series with what many considered a 2nd rate pitching staff and only a decent offense. The difference, they played with heart and desire. I've seen neither of these recently from the Yankees and I don't blame that on Torre. There are simply too many big egos and agendas in the locker room. The Yanks starting pitching has been suspect at best for the past 5 seasons and has only gotten worse. Most of today's best pitchers are products of a team's development system and not has-beens like Mike Mussina or Roger Clemens. I'll concede that Pettite still has some gas left in the tank.
Lastly, Torre was well-liked by his players and has been known to be good at bringing a locker room together. He had to do that in New York because of all the Texas-sized egos in that locker room. His track record of being a player's coach is hard to dispute and goes back to some of his less-successful managing jobs. The Cardinals come to mind as he managed there for several years and was well-liked. The offer made to him WAS insulting and I don't know how anyone in their right mind can say otherwise given Torre's track record. I don't think the Yankees' fortunes will get any better until their ownership adopts a new philosophy, preferably one not nearly as arrogant or self-centered.

Posted By : John Biggs

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Message posted on : 2007-10-24 - 01:59:00

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Posted By : Anonymous

Being from California, I usually see thigs from th...

Message posted on : 2007-10-24 - 14:06:00

Being from California, I usually see thigs from that perspective. If you look at the Los Angeles Dodgers and the O'Malleys (Walter and Peter) and how they ran the team, you have to say CLASS.

Walter Alston was the manager for 23 years and only had one-year contracts. But there was mutual respect. And then came Tommy Lasorda and he also had one-year contracts--and when they (the O'Malleys)knew it was time to get a new manager, they kept Tommy with the team (50 years)in another capacity.

The Steinbrenners could have offered Torre a V.P. of something, (that way you don't have to give salary information) and Torre would not have had to have been embarrased. Then in a little while, Torre could let out of the bag that even though he had a good position with the Yanks, he missed being a manager. That would be a subtle way letting teams know he's looking for a job.

Off topic- It is a shame that Peter had to sell the team (family dynasty)to save his kids from a huge tax bill.

Posted By : Anonymous

Michael,

Another great article!

I r...

Message posted on : 2007-10-25 - 10:52:00

Michael,

Another great article!

I really like how you tied Luis and the international angle into the article, but I think there is a big distinction to be made when discussnig pat-downs here and in Europe. At europeean soccer games (both at the league and national levels), fan violence is very common. It is not uncommon for the organized fan groups to have unofficial groups within the fan base that are responsible for violent acts. Just this past season, the Swedish soccer league handed out severe penalties to several teams where fan violence had gotten out of control. these penalties included forcing some teams to play a few games with NO SPECTATORS! Pat-downs in europe are critically necessary to ensure the safety of spectators and players, since the culture of spectator violence is so deeply rooted.

Just wanted to throw my two cents in.

again, great article!

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Message posted on : 2007-10-25 - 11:57:00

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Posted By : Omar Cruz

Can anyone explain why the Sonics are so desperate...

Message posted on : 2007-10-25 - 19:15:00

Can anyone explain why the Sonics are so desperate to go to Oklahoma City? The place is half the population and I would have to imagine less wealthy than Seattle. I'm sure they want to extract a sweet deal on an arena, but that would seem to be a large windfall now that was acquired at the cost of poisoning the well in Seattle.
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Message posted on : 2007-10-25 - 19:48:00

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Posted By : Anonymous

Anon, attendance hasn't been stellar in Seattle so...

Message posted on : 2007-10-26 - 00:50:00

Anon, attendance hasn't been stellar in Seattle so issue no. 1 is ticket revenue. The lease is more expensive so that raises expenses. The arena is toward or at the bottom of the league in the "added value" seats that are sold at a big premium. There is stiff competition for sponsor dollars due to the wildly popular Seahawks and more popular than the Sonics Mariners along with the University of Washington.

Oklahoma City went nuts for the Hornets while they were there. They drew better in OKC than they did in New Orleans and the lease offered by OKC meant they made more per dollar of tickets sold.

There are six Fortune 500 companies based in Oklahoma, three in OKC and three about 90 minutes away in Tulsa. Washington has 15.

For business folks looking to entertain, college games can be problematic. You can end up offending a client by inviting the client to an OU game if the client is an Oklahoma State or Tulsa fan. A regionally supported pro team avoids that issue.

While OKC is only the 45th largest TV market, if you can bring Tulsa viewers along it climbs to 22nd.

Any NBA owners thinking of relocating a franchise or looking for the bonus that the possibility of relocation can add to their sale price if they want to get rid of their franchise would quickly vote for this shift because it means Las Vegas remains open and Seattle potentially could enter the fray to compete for a team.

Posted By : Mark

The NBA vs The NHL... who will win the battle of T...

Message posted on : 2007-10-26 - 04:38:00

The NBA vs The NHL... who will win the battle of THE THIRD BEST SPORT?

LaBron wearing a Yankees cap is more intriguing than this stuff... here is the take of a regular fan (also known as the Sports Jedi)...

If a city has to beg and fight for their team to stay it is pathetic. Forget the legal issues here... where is Seattle's pride? If the Sonics want to leave so be it people... they obviously don't think you are good enough fans to stay.

GET OVER IT SEATTLE!!!

And NBA if you keep this up the NHL might just slip by and take over third place... then you will have to fight David Beckham... oooh things could get nasty!

Posted By : The Sports Jedi

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Message posted on : 2007-10-26 - 08:00:00

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Posted By : Anonymous

Everyone will suffer pain at some point in their l...

Message posted on : 2007-10-26 - 13:03:00

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Celebrex medicine is a non-steroidal anti-inflammatory (NSAID) drugs, which relieves pain and inflammation (swelling). It is used to treat pain, swelling and stiffness due to arthritis. This drug works by blocking the enzyme in your body that makes prostaglandins. Reducing prostaglandin helps to reduce pain and swelling.
Fioricet pain relief drug is a sedative and pain reliever. It is used to relieve pain from mild to moderate and tension headaches.Tell your doctor your medical history, in particular: severe liver disease, alcohol or drug dependence, emotional / mental conditions, diseases of the heart (arrhythmia, recent MI), stomach / intestine ulcers, any allergies.
Imitrex pain relief drug is used for treatment of migraine and headache with or without aura (for example, flashing lights, wavy lines, dark spots). It is also used to treat headaches cluster. Imitrex is a serotonin 5-HT agonist 1receptor ( &ldquo;triptans&rdquo;). It works by restricting the blood vessels in the brain, which helps to alleviate migraine headaches and cluster.
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Tylenol medication is used to treat minor aches and pains due to headaches, muscle aches, backache, arthritis, the common cold, flu, sore teeth, menstrual cramps, and vaccinations, and to temporarily reduce fever.
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Posted By : Anonymous

I've posted the lease as text on my blog here:
...

Message posted on : 2007-10-26 - 14:54:00

I've posted the lease as text on my blog here:
http://theseattlesupersonics.blogspot.com/2007/09/sonics-owners-vs-seattle-xxv.html

Evereything is open to Arbitration, then it states that leaving early isn't.

Slade Gorden was there then, he's here now, that's not the only history repeating itsself.

Bennett also has a side letter with the prior ownership group to give a good faith effort for one full year.
Slowly the Sonics are becoming the Seattle Pilots, MLB paid legal fees and gave an expansion franchise to Seattle, the Mariners.

Would a new owner want to pay 250 million for an expansion franchise in Seattle, or 350 million for a team that plays like an expansion franchise?

Posted By : Supersonicsfan

mark, if they don't move then all of the wonderful...

Message posted on : 2007-10-26 - 15:21:00

mark, if they don't move then all of the wonderful things you've said about OKC are still open and the option could be between Vegas and OKC. The argument works both ways or it doesn't work at all.

The revenue in the lux box seats was split between the city of seattle and the team, 40/60.
Had the city given that up when Howard Schultz asked we wouldn't be having this conversation.

The potential revenue is higher in Seattle, I'm glad OKC has 6 Fortune 500 companies, but there are more owners of Fortune 500 Companies at Sonics games on any given night right now.

Posted By : Supersonicsfan

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Message posted on : 2007-10-26 - 18:53:00

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Posted By : Anonymous

Hi Jimmy,

Thanks for those kind words. I al...

Message posted on : 2007-10-26 - 22:42:00

Hi Jimmy,

Thanks for those kind words. I also appreciate the distinction you raise about European soccer.

Posted By : Michael McCann

I honestly feel the offer was made to allow Torre ...

Message posted on : 2007-10-27 - 03:14:00

I honestly feel the offer was made to allow Torre to reject it, making it appear as if he just decided to walk away with the offer on the table, instead of the Boss firing him. I was going to be surprised if Torre wasn't in NY next season, but I wasn't surprised at the outcome with the contract that was offered. I am also curious as to the affect this will have on certain players and their decisions to stay in NY or leave and go elsewhere.
Posted By : Jason Canterbury

You sure seem to be an avid lover of sports dude! ...

Message posted on : 2007-10-27 - 06:41:00

You sure seem to be an avid lover of sports dude!
Thats so true jason I too feel the same as i think palyers wont stay in Ny i guess.
www.jateeng.blogspot.com
looking forward for your reply dudes!

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Message posted on : 2007-10-28 - 15:22:00

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Message posted on : 2007-10-30 - 08:38:00

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Posted By : Anonymous

Arkansas State has been removed from the mascot sa...

Message posted on : 2007-10-30 - 08:52:00

Arkansas State has been removed from the mascot sanction list after the board of trustees voted to drop the Indians nickname after this academic year. Fortunately Arkansas State didn't spend the money on legal fees the Sioux spent.
Posted By : Mark

It's been ages since i posted here. Been sick, bus...

Message posted on : 2007-10-30 - 12:19:00

It's been ages since i posted here. Been sick, busy etc. There are not many games left this season. It has had it's up's and down's. Meet some new Reds i adore. Meet David Ross again. Knew of him when was a Dodger. Missed Sean Casey a lot. Reds then got rid of Austin Kerns. Seen the Reds 9 times this year at Busch Stadium. Saw the Phillies 3 times. Seen The Astros 3 times. Gonna see the Astros for my 4th time September 13th. Gonna go to games in 2 weeks to see Brian Giles.No idea who will make the playoffs.First Choice Reds. Second Choice Phillies. 3RD Astros. 4TH Choice Padres. Padres just because of Brian Giles, Geoff Blum and Trevor Hoffmann. I hope to at least attend one playoff game. But if the Cards don't make it won't go to any. Because i can't afford to travel. But if i had to choose. I'd rather the Reds win the Central and just have to watch them on tv.Seeing them on tv would be better than them not making the playoffs at all.
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Posted By : Anonymous

Rightly or wrongly, the administration and the alu...

Message posted on : 2007-10-30 - 13:49:00

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Posted By : Howard Wasserman

Isn't some of the issue that their biggest donor w...

Message posted on : 2007-10-30 - 14:06:00

Isn't some of the issue that their biggest donor will stop giving them money if they change the name?

He owns the hockey arena they play in, and leases it to them. He has made statements that inferred that if the name was ever changed, he'll kick them out of the arena and won't give it to them. As it stands now, they're just waiting for him to die (he's not a young man). Morbid, but it seems like this could be the truth behind pushing for an extension.

Posted By : Anonymous

Sorry, I researched this. He died, but left the ar...

Message posted on : 2007-10-30 - 14:09:00

Sorry, I researched this. He died, but left the arena in a trust, and didn't give it to them. He's made it really hard for them to change the name and keep using it.
Posted By : Anonymous

Of course the Yankees blame their playoff failures...

Message posted on : 2007-10-30 - 14:33:00

Of course the Yankees blame their playoff failures on A-Rod. That's easy because of the gigantic contract he's making. However, any reasonable baseball fan knows that the Yankees have failed in the playoffs recently because they are an aging team and have lackluster starting pitching. The Red Sox won their second world championship in the past 4 years with clutch veteran hitting, the emergence of youth like Pedroya, and dominant starting pitching from Beckett, Schilling, and the other young arms on their staff. The Yankees lack this balance and are thus coming up empty as of late. A-Rod is NOT the reason they have failed. In fact, it can be argued that his great regular season is one of the main reasons that the Yankees managed to put enough wins together to even make the playoffs. But blaming A-Rod is the easy way out because many people don't like to uncover the real reasons for the Yankees' recent shortcomings.
As for the Sox going after A-Rod...I can certainly see it happening, especially if Lowell begins to get lucrative offers from other teams (and he certainly will). It would also be a nice way for Boston to stick it back to New York and rub salt in the wound of losing in the playoffs and losing A-Rod in the same season. Johnny Damon will wish he'd stayed in Boston after all. Free agency should be very interesting this offseason as always.

Posted By : John Biggs

This guy was quite the character, if I am to belie...

Message posted on : 2007-10-30 - 15:21:00

This guy was quite the character, if I am to believe all that I have read about him, the university would be well advised to take the financial hit and build their own arena, with a new name and logo.

Engelstad no doubt had more than just school-pride on his mind when he made his demands of keeping the controversial name and logo.

His past include holding private parties at his Las Vegas hotel on Adolf Hitler's birthday. Bartenders wore shirts bearing the Nazi dictator's picture and the slogan "Adolf Hitler - European Tour 1939-45." He also had collection of Nazi memorabilia stored in a private room within the casino-hotel, including a painting of himself dressed in a Nazi uniform (captioned "to Adolf from Ralphie"), a painting of Hitler with the reverse caption, and a collection of antique cars which contained vehicles alleged to have once belonged to German Nazi leaders.

http://en.wikipedia.org/wiki/Ralph_Engelstad

http://www.lasvegassun.com/sunbin/stories/consumer/2007/apr/13/566676183.html

Is this really the kind of person an institution of higher education should take its "marching orders" from???

use of the name and logo may be right or wrong, but fighting to keep this guy's support is just plain wrong!

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Posted By : Anonymous

Also i'd like to mention that the Boston Red Sox w...

Message posted on : 2007-10-30 - 22:09:00

Also i'd like to mention that the Boston Red Sox won their 2nd World series in four years and have the second highest payroll in baseball. They dont spend to much if they can accomplish that. Please note that the Yankees didn't even make it past the ALDS this year and they spend the most out of anybody.
Posted By : Anonymous

No the Yankees just suck, that's why they lost to ...

Message posted on : 2007-10-30 - 22:11:00

No the Yankees just suck, that's why they lost to Cleveland. Also b/c Cleveland is the better team.
Posted By : Anonymous

i love michael VICK!!! I really do he is a great...

Message posted on : 2007-10-30 - 23:00:00

i love michael VICK!!! I really do he is a great qb but has a couple of problems so what????
Posted By : Anonymous

Even very casual fans know about Shaq's reputation...

Message posted on : 2007-10-31 - 11:12:00

Even very casual fans know about Shaq's reputation as a poor free-throw shooter. Only the more dedicated ones will know that it's mainly a playoff thing.
Posted By : Peter

Not to put too fine a point on it: A 53 % career f...

Message posted on : 2007-10-31 - 12:14:00

Not to put too fine a point on it: A 53 % career free-throw percentage stinks; a "decent" free throw shooter should be in the mid/upper 70s. This is not about reputation or just the playoffs; Shaq is, by any basketball definition, a bad free throw shooter. And how much worse is he in the playoffs? So the metaphor, although perhaps uncalled for, is not inapt.

The use of metaphors seems to come up throughout cases involving disputes from "lighter" industries--sports, music, entertainment. I think when the case relates to a popularly enjoyed and understood subject, judges want to show they can relate to the public enjoyment by speaking on a public (rather than a rarefied legal) level. It also may be the judge trying to have some fun in a less heavy case, although that ignores the seriousness underlying many of the legal issues. Geoff is right that it rarely works.

Posted By : Howard Wasserman

"Judge Martinez, with all due respect: A swing and...

Message posted on : 2007-10-31 - 12:26:00

"Judge Martinez, with all due respect: A swing and a miss."

I completely agree. The judge was apparently attempting to insert a little humor and maybe make a name for himself (which he apparently did, because you have now blogged about him and posted his picture).

This was a bad choice of metaphor, because although Shaq does miss lots of free throws, he is still successful more than half of the time he steps to the line, as you state. Sports statistics can be deceiving, as shown by the judge's interpretation: 53% at the free throw line is terrible, while in baseball, 33% at the plate for a career will get you into the hall of fame.

Bottom line? The judge should stick to what he knows - the law. There was no need to add the metaphor.

Posted By : jackie bost

The difference between this case and many other ma...

Message posted on : 2007-10-31 - 12:34:00

The difference between this case and many other mascot cases is that gaining the favor of the tribe leaders will be hard because the Sioux is a nation of first peoples. Typically school mascot names are individual tribes (i.e. Seminoles)
Posted By : Anonymous

53% last season would make a player 404th out of a...

Message posted on : 2007-10-31 - 12:41:00

53% last season would make a player 404th out of all NBA players. His season average of .422 last year put him at 428 of the 453 who made it on to NBA.com.

Sorry its an apt analogy.

Posted By : Mark

I have had Shaq on my fantasy team for the last tw...

Message posted on : 2007-10-31 - 13:16:00

I have had Shaq on my fantasy team for the last two years.

I have first hand knowledge that he has single-handedly assisted me in losing my head-to-head results primarily due to his poor free throw %age. It was always a clear loss every single week.

I rebounded, however, and this year avoided him altogether.

Mr. Rapp, you are no fantasy player...this is a fine analogy even if the judge wants to make a name for himself.

Posted By : Anonymous

Debating whether Shaq is a good or bad free throw ...

Message posted on : 2007-10-31 - 14:03:00

Debating whether Shaq is a good or bad free throw shooter is not the point. The question is, why do judges treat professional athletes different from people in other professions and industries? Another analogous situation is when judges say that players make enough money and don't deserve to make more...a judge would NEVER say that about somebody in another profession (not even Bill Gates). I'm not sure why the sports/entertainment industry is treated by judges differently (i.e. Howard referred to it as a "lighter" industry and one in which judges try to have some fun with it). The question is, should they be doing it? Another question is whether this sort of mentality influences the decision of the case or in other cases?
Posted By : Rick Karcher

Part of being a judge is writing an opinion. Key w...

Message posted on : 2007-10-31 - 15:04:00

Part of being a judge is writing an opinion. Key word: "opinion."
Making analogies is quite within that realm. This analogy to Shaq seems quite apt.

As far as the reference to the MLBAM decision (i.e., as you say "players make enough money") it seems to me that that is within the realm of their "opinion" as well whether you like it or agree with it or not (admittedly, it's not really an opinion based on law). If a party doesn't like it, well, appeal the decision.

Posted By : Anonymous

Wisonson and tribal names http://www.madison.com/w...

Message posted on : 2007-10-31 - 15:29:00

Wisonson and tribal names http://www.madison.com/wsj/home/sports/badgersOther/133389
Posted By : Anonymous

A judicial "opinion" is a statement of the court's...

Message posted on : 2007-10-31 - 16:13:00

A judicial "opinion" is a statement of the court's reasons for its decision. It is not supposed to be an "opinion" about Shaq's ability as a basketball player. Analogies are within the realm, but at least try to write well and with style. A clumsy metaphor such as what the judge used here is just bad writing, regardless of the merits of what he is saying.
Posted By : Howard Wasserman

"Clumsy metaphor." That's your opinion, not his. O...

Message posted on : 2007-10-31 - 16:51:00

"Clumsy metaphor." That's your opinion, not his. Once again you argue for the way things ought to be (how judges should write opinions), not the way things are. At least you are consistent in your idealistic vision of the judicial profession and the legal system.
Posted By : Anonymous

I'm wary of criticizing judicial writing styles, m...

Message posted on : 2007-10-31 - 18:17:00

I'm wary of criticizing judicial writing styles, mostly because most of them are so terribly dull - I don't want to discourage the next Cardozo or Hand or Scalia or Kozinski or (insert judge with distinctive and readable style here) from indulging their more artistic sides.
Posted By : Jason Wojciechowski

53% career (actually 52.5% according to nba.com) i...

Message posted on : 2007-10-31 - 22:50:00

53% career (actually 52.5% according to nba.com) is Shaq's regular-season percentage; it drops to 50.1% career in the playoffs.
Worse, Shaq's FT% has been below 50% for the last four seasons.

The judge was right on in the analogy.

Posted By : Anonymous

Anon 4:51,

What's your point? In the class...

Message posted on : 2007-11-01 - 08:38:00

Anon 4:51,

What's your point? In the classroom we question things: we discuss whether it makes good sense and policy, we ask if the judge is correct or incorrect, we discuss ramifications of statements made by judges and whether there is a better way or standard of resolving particular issues. We don't put up a powerpoint slide that merely provides what the judge said in a case, and then move on to the next case. On this blog, we engage in the same type of discussion and debate. That's just "the way things are" on this blog (to use your terminology). If you don't like what we do, then go to another site.

Posted By : Rick Karcher

The Shaq analogy does make the decision look a lit...

Message posted on : 2007-11-01 - 09:07:00

The Shaq analogy does make the decision look a little less classy, though it is right on point. It's kind of like academic freedom for judges, if you think about it (i.e., writing an opinion): it is part of the job of an academic (and arguably a "right") to question the status quo, the direction of the law, the role of the law, and express one's opinion even if it is corny or entirely way off base. I do not think many people would have even known about this Shaq analogy without Howard's keen eye. While one has the right to discuss their opinion on this blog and to be critical of a judge, putting forth a position exposes you to the same scrutiny that this judge now faces. If you cannot accept that maybe you should not post your position either.
Posted By : Anonymous

You want sharply written borderline clever writing...

Message posted on : 2007-11-01 - 10:25:00

You want sharply written borderline clever writing that stands out? You've got to get some stinkers too. The best entertainment writers swing and miss (sports analogy) so I'm hesitant to be too critical of attempts that fall as short as a weak air ball for the simple reason that no one bats a thousand and you can't hit it without swinging.
Posted By : Mark

Anon,

It's Geoffrey's post, not Howard's. ...

Message posted on : 2007-11-01 - 10:31:00

Anon,

It's Geoffrey's post, not Howard's. But in any event, all you've basically said so far is that Shaq is a bad free throw shooter, and therefore the analogy is right on point. [And also that Howard has an "idealistic vision of the judicial system" and that MLBAM can appeal the CBC decision if they don't like it].

The larger questions raised in this post are: what do metaphors like these add to the case; why do judges feel it is acceptable to criticize (or treat differently) people in the sports industry from people in other industries; is this a good thing and if so why; is this a bad thing and if so why. So why don't you articulate an answer to the question you raised in your last comment, e.g. whether criticizing Shaq's free throw ability addresses "the status quo, the direction of the law, and the role of the law."

Here's my answer: This metaphor does absolutely nothing but criticize Shaq. Are we suppose to read the judge's statement and say, now it's more clear to me why the owner's interpretation of the lease is so incorrect -- it's because Shaq is a bad free throw shooter! The fact that Shaq is a bad free throw shooter provides no clarification whatsoever as to why one party's interpretation of a lease is incorrect or how the lease should be interpreted. Is this a bad thing? Possibly, because it suggests that judges should be allowed to interject their own personal views about individuals and their performances, habits, etc. Here, it's actually worse because the judge isn't referring to a particular class of individuals, but is referring to a particular person by name who isn't even a party in the case.

Posted By : Rick Karcher

Maybe the judge had Shaq on his fantasy team last ...

Message posted on : 2007-11-01 - 11:33:00

Maybe the judge had Shaq on his fantasy team last year and is still bitter so he wanted to interject his personal feelings into the case? Maybe (probably) the judge wanted to be light-hearted? Maybe the judge was trying to show that he is "real"? Maybe the judge wanted to make a name for himself so he can get his on t.v. show? Maybe the judge is a fan of the sports law blog and wanted to instigate debate (probably not, but you never know!). Is all that wrong? No. Is that right? No. It just is what it is and you (all) are right and justified to critique it. Just feel free to be criticized yourself, however, if you want to call it a "clumsy metaphor" or an erroneous decision because it singles out a popular figure (Shaq) and has nothing to do with a legal decision/analysis or rarely "works" in your opinion. Also, take a chill pill and understand that most people who read this blog are thoroughly impressed. If you get overly defensive with others disagreeing with you, you lose your own credibility. Here's my final comment: Try give the judge SOME credit here for being creative. Can you do that, Rick, Geoffrey and Howard? Can you? Can you?...even a little bit?
Posted By : Anonymous

I'll try....since you asked nicely. (one of those ...

Message posted on : 2007-11-01 - 12:09:00

I'll try....since you asked nicely. (one of those little smiley face things goes here)
Posted By : Rick Karcher

Not really an improperly mixed metaphor -- it says...

Message posted on : 2007-11-01 - 12:15:00

Not really an improperly mixed metaphor -- it says the "attempt to sidestep" is "as errant as" a Shaq free throw. The judge is comparing one metaphor with another -- unwieldy, yes, but it's not as if he said Shaq is built like a brick Mack truck.
Posted By : Anonymous

I have a hard time finding that a non-discriminato...

Message posted on : 2007-11-01 - 12:52:00

I have a hard time finding that a non-discriminatory search violates personal privacy. What would the plaintiff's reasoning be if a terrorist (a suicide bomber that could've most likely been detected through a cursory search) act did occur, and there was even a small chance that a pat down would've uncovered the plot? I'm not trying to say that a pat down would be very effective when dealing with more advanced methods of terrorist tactics, but it does seem to provide some mode of deterrence.
Posted By : Jordan Bird

Rich --

Great take on this issue. It is a...

Message posted on : 2007-11-01 - 15:10:00

Rich --

Great take on this issue. It is a terrible decision, in which the justices created law so their preferred side would win. It seems in too many of these cases, the more sympathetic party wins, regardless of the law. Rich baseball players and Tiger Woods lose, Rosa Parks and down-on-their-luck former hockey players win.

Posted By : john

With the trades and acquisitions made going into t...

Message posted on : 2007-11-01 - 16:11:00

With the trades and acquisitions made going into the draft, plus the bulk of the team that is carried over from last season, and the trades and draft picks made during the draft, it sure seems like the Pats are going to be the team to beat in the AFC this season, and perhaps in all of the NFL.

Considering the Pats were almost in the Superbowl last season with a pathetic receiving corps and that they've added very talented players into said receiving corps this season, barring some nasty injury(ies), they look to be the team to take it all.I say injury(ies) because I think they could survive an injury or two to some positions, but if they lost Brady they'd probably have a hard time recovering.


I wish I could say that the Redskins did well in the draft and/or in free agency but so many holes still exist that I'm not sure they'll be significantly better than last season. I suppose on face they should be if they can keep their corners healthy. With Landry (argh, hard to type that name as a Redskin!!) back there with a healthy secondary they might be able to cheat up more and put more pressure on opposing QBs. Might.

They still have what should be a lot of talent in the receiving positions, and Campbell should be better, but they don't have the quality on either line (offense or defense) that I wish they'd have, so it could be yet another year of .500 at best, or worse.

Still, the NFC East looks to be the NFC Least again this season. None of the teams there look like they'll be that good, and none really look ready to step up and take the division.

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Posted By : Anonymous

To me, it's kind of like Megan's Law, the Patriot ...

Message posted on : 2007-11-02 - 00:00:00

To me, it's kind of like Megan's Law, the Patriot Act, or mandatory drug testing. It IS invasive -- and borderline unconstitutional. But the argument is that it's also necessary. And a lot of people seem to agree with that rationale. But that doesn't necessarily make it right.

In what other context would you allow a stranger to put their hands on your body to feel you up -- Ok, make that, pat you down -- even between your legs? It's pretty much only at the stadiums and the airports, isn't it? In some other situation, you'd be up in arms over it.

So while I'm probably OK with the policy from a safety standpoint, I don't really have a problem with the ACLU challenging it to protect my constitutional rights either.

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Message posted on : 2007-11-02 - 00:43:00

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Posted By : Anonymous

Everytime I read something on this subject, it see...

Message posted on : 2007-11-02 - 09:35:00

Everytime I read something on this subject, it seems people completely underestimate Oklahoma City.

Consider this, Raleigh, North Carolina, has less than 200,000 more people than OKC, and it plays host to an NFL team, which requires way more ticket venue than a NBA franchise.

When you add in Tulsa, which is less than an hour away, you have a top 25 market with over 2 million people.

Both years that the Hornets were here, we had higher average attendance than half the other teams in the NBA, including Seattle.

Oklahoma is a huge sports state. We have two major college teams that are heavily supported, we have the most famous high school rivalry in the nation, and we have no pro team. This means a NBA team here would receive a ton of focus and support.

OKC is one of the fastest growing cities in both population and average income.

Add all this up, and I think we are a pretty attractive place to bring a team.

Posted By : Chris

Rick,

In your opinion, how does this ruling...

Message posted on : 2007-11-02 - 11:52:00

Rick,

In your opinion, how does this ruling affect the horse racing industry. Jockeys' have argued that the relatively recent change in the wagering activity of their sport (a prime drive of revenue) from on-track betting to simulcast wagering (inclusive) has made the importance of their individual and collective media rights substantially more valuable. This decision seems to lend credence to their argument in that the justices agreed that state right of publicity laws are not automatically trumped by federal copyright law. Jockeys' as independent contractors (collectively represented by the Jockeys' Guild) should be studying this decision very carefully. Do you agree?

Posted By : Albert

OKC can have the Supersonics! They are in the infa...

Message posted on : 2007-11-05 - 00:45:00

OKC can have the Supersonics! They are in the infancy stage of what will become a bad marriage and inevitably end up in a bitter divorce looking elsewhere for exactly the same things they are looking now. It has already become clear that Clay isn't even interested in the WNBA side of his purchase stating that the Storm may not even make the trip to OKC. Hmmm, we all new it was only a matter of time that the WNBA flopped. Apparently Seattle's Key Arena is "A World Class Facility" for the womens basketball, just not for men. That is exactly the thought process coming out of OKC and why this whole venture will fail. Take the Sonics, do what you will with the Storm, just remember to hide your women and children in Oklahoma!
Posted By : Anonymous

John,

Thanks for the comment. The opinion ...

Message posted on : 2007-11-05 - 06:27:00

John,

Thanks for the comment. The opinion definitely creates more confusion under the law than we already had. This "public domain" standard would preclude all public figures from establishing a cause of action, including Rosa Parks, in any context (unless, as you suggest, the court just has sympathy for somebody and thinks he/she should be compensated).

Albert,

Interesting question. I know nothing about that industry, let alone simulcast wagering activity associated with it, so it is difficult for me to comment. But I would add that right of publicity actions are not preempted by federal copyright law because copyright law protects works of authorship, not identities (names and likenesses) which are protected by state right of publicity law.

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Message posted on : 2007-11-05 - 15:08:00

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Posted By : Anonymous

Just wondering: were there any references to Lundq...

Message posted on : 2007-11-05 - 18:50:00

Just wondering: were there any references to Lundqvist's save percentage in the decision?
Posted By : Anonymous

I think that the Yankees offered Torre a very smal...

Message posted on : 2007-11-06 - 11:42:00

I think that the Yankees offered Torre a very small amount with the success that he has had in baseball. It would not surprise me that the Yankees offered him such a small amount, to make him decide to go. With Torre, at the Dodgers, maybe LA will be a thriving baseball team in the coming years. Torre is a great investment...maybe more so than Beckham ever will be.
Posted By : Buddy Handey

Uh, Chris . . . I thought the most famous high sch...

Message posted on : 2007-11-06 - 11:42:00

Uh, Chris . . . I thought the most famous high school rivalry was in . . . . . . Ohio?

Seriously, has anyone noticed that arenas are being "tossed away" at much younger ages--in some cases (Kingdome, the Omni [Atlanta], McNichols Arena [Denver], Reunion Arena [Dallas], Silverdome [Pontiac], Texas Stadium in '09 [Dallas], Miami Arena, the Meadowlands Arena, etc.) before there is even one renovation, in others less than 25 years since opening? These aren't exactly cheap to replace; and wouldn't it make some sense to have one arena for both basketball and hockey, and one for football and baseball (or football and soccer), especially with arenas costing upwards of $400-500 million or more?

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Message posted on : 2007-11-06 - 13:46:00

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Posted By : Anonymous

I think the Yankees made a reasonable offer to a m...

Message posted on : 2007-11-07 - 21:42:00

I think the Yankees made a reasonable offer to a manager they were seemingly ready to part with. Out of respect for Torre's accomplishments, they made him a lucrative one year offer that increased with his team's favorable playoff performance. This "no negotiation" tatic used by the Yankees achieved two favorable results. By basically forcing Torre into the decision to leave and making him feel unwanted, evidenced by a salary reduction, they also saved face with their all important fan base. The fans were clamoring for Torre's return during the weeks leading up to the salary negotiations. To be able to blame Torre for the parting of ways is invaluable to the Yankee brand.
Posted By : Kate Steiner

I don't have a problem with the record books refle...

Message posted on : 2007-11-08 - 09:48:00

I don't have a problem with the record books reflecting the top accomplishments prior to a change in season length or a signficant change in the rules. For example before passing rules were liberalized top passing efforts were much lower. In college football when the goal posts were wider, the kicker used a tee, and missed field goals resulted in the ball being placed on the 20 rather than the line of scrimmage a 50 yard field goal wasn't that uncommon, now it is fairly rare because it is harder to make and the consequence of a miss more severe.

The Dolphins went 14-0 in regular season and 17-0 including the playoffs. The Pats (or anyone else today) would have to win 16 in regular season and three in the playoffs to make it to 19-0.

For another rule book adjustment.
http://www.beltboard.com/?p=132

Posted By : Mark

Great post. I definitely agree. It's absurd to pro...

Message posted on : 2007-11-08 - 11:47:00

Great post. I definitely agree. It's absurd to propose that records be denoted as "suspicious" or "tainted" simply because some slither of doubt as to the authenticity of the record might exist. All this is, is an attempt by individuals that oppose the new record holder and/or the record being broken in order to keep the previous individual/team in the top spot.

I understand that one can become attached to records and being viewed as the pinnacle of that sport, but as the famous phrase announces, "records are made to be broken." It seems that Don Shula is having trouble with the fact that his "perfect season" could fall to another team, a team that arguably could be better than the 72 Dolphins. Furthermore, Shula's comments are premature. For the Patriots to finish undefeated and win the Super Bowl, they still must win ten games. The Patriots are less than halfway to the point of being declared the new greatest team in NFL history.

Moreover, the Patriots "spying" have never been proved to have impacted the game. The "spying" was detected and stopped during the game. There has never been any proof that the "spying" had an impact on the game against the Jets or any other game for that matter. So, it has not been proved that the actions of the Patriots actually "tainted" their season; it has not been proved that the success of the Patriots this season has resulted from the "spying." Rather, this has been inferred, which is an impermissible basis to predicate a condemnation of a potential record season on. The problem has been addressed by the NFL in the manner the commissioner saw fit. No other discussion should pursue unless new facts come to light.

People need to accept the fact that records will be broken and there will be questioning of the new record holder, but until something conclusively is proved or determined, the new record needs to stand unblemished. It has never been authoritatively confirmed that Barry Bonds ever used steroids. Likewise, the Patriots were never proved of cheating to a point of warranting a forfeiture of the game. Therefore, both of these records, as should others, should be entered into the record books without an asterisk.

Posted By : Matthew Courtner

The disdain that I have for the '72 Dolphins is st...

Message posted on : 2007-11-08 - 14:17:00

The disdain that I have for the '72 Dolphins is strong. Their arrogance is very off-putting.
Posted By : Draft King

Is there a spending floor for NFL teams under the ...

Message posted on : 2007-11-08 - 21:26:00

Is there a spending floor for NFL teams under the current CBA?
Posted By : Anonymous

Shule never came out to tell everyone that he thou...

Message posted on : 2007-11-08 - 22:20:00

Shule never came out to tell everyone that he thought there should be an asterisk on the Pats this year, he answered a direct question about whether there should be one. He was then interviewed on ESPN and repeatedly stated that he, in fact, did not go out of his way to bring up this topic, He also repeatedly stated that neither he, not any members of the '72 Dolphins sit around and wait for the last team to lose each season so that they can celebrate being the only undefeated team.

The idiots on ESPN --and now about twenty other news outlets and sports talking heads-- ignored him completely, repeatedly asking him the same question over and over, whether he felt more should be done, whether he thought the Pats were threatening the good name of the NFL, on and on.

The talking heads are making this a story, and no one cares but them.

What a world we live in today, where one idiot can write something, and everyone everywhere repeats it as if it was gospel.

Posted By : John Perricone

I do not draw a distinction between someone reachi...

Message posted on : 2007-11-08 - 22:53:00

I do not draw a distinction between someone reaching out to make a statement or bring up an issue and making a statement in response to a question. If Shula did not (at least originally) believe there should be an asterisk (or whatever), he would have answered "no" in response to the questions.
Posted By : Howard Wasserman

If Barry Bonds did indeed use perfromance enhancin...

Message posted on : 2007-11-09 - 00:21:00

If Barry Bonds did indeed use perfromance enhancing drugs from after the 1998 season to the end of the 2003 season as alleged in Game of Shadows please identify what player conduct rules (as defined by the CBA) Barry broke and what penalties (as defined by the CBA) were in place for these infractions. Guess what, you can't because there were not any. Baseball has no basis to punish Barry or anyone else for steroids use prior to the 2005 season. Even during the 2004 season there really wasn't any punishment as a failed test only resulted in a warning that another failed test would result in a suspension.

Just what legal or semi quasi legal grounds does baseball have to delete Barry's records from the record books even if they are able to prove his use of steroids during this unregulated time peroid? How can you support applying new standards to old behavior?

Posted By : giantsrainman

Rick,

Just watch TVG or HRTV and see these ...

Message posted on : 2007-11-09 - 02:50:00

Rick,

Just watch TVG or HRTV and see these television networks show the jockeys name and face during the post parade (race warm up and betting show) ten minutes before the race. Jockeys get paid a fee (ave. $50) from the horse owner for riding his/her horse, but do not get any conpensaton from the track owner who gets paid handsomely from all of the wagering activity.

Is using the jockey's name, likeness, and statisical information (racing accomplishments) by the race track (and these wagering outlets) a violation of his or her right of publicity. Do the jockey's have a cause of action since they do not get paid by the "bookie"? Do they have a historical cause of action to recover damages for the un-licensed use of their image, likeness and name?

Posted By : Albert

Just for clarity, the guy who caught the Bonds hom...

Message posted on : 2007-11-09 - 05:22:00

Just for clarity, the guy who caught the Bonds home run and the guy who is branding it and giving it to the Hall are separate people. Fashion designer Mark Ecko bought the ball at auction from Matt Murphy, then ran a contest to decide the ball's fate.

Otherwise, a very enjoyable post.

Posted By : Ben

Yes, it's something like 85% of the cap number if ...

Message posted on : 2007-11-09 - 08:33:00

Yes, it's something like 85% of the cap number if I'm not mistaken.
Posted By : Rick Karcher

shula is only fueling belichick's fire. yet anoth...

Message posted on : 2007-11-09 - 09:36:00

shula is only fueling belichick's fire. yet another reason, not only play tom brady and randy moss in weeks 16 and 17 to complete their undefeated season, but to throw bombs in the 4th quarter up 4 TDs.

on top of that, the patriots will do the unthinkable in a season where it is very likely shula's dolphins - quite possibly the worst team ever assembled - could go a paltry 0-16 barring a win against the bills this weekend or against the jets in December.

Posted By : Adam W

Giantsrainman--how about "bringing the game into d...

Message posted on : 2007-11-09 - 10:06:00

Giantsrainman--how about "bringing the game into disrepute" for starters; usually that clause is in most player contracts (and possibly in the CBA depending on the league). Or maybe something along the lines of, say, illegal drug use (depending on what was said in the grand jury).

Oh, and adam w: It isn't "Shula's Dolphins"; he left coaching 12 years ago . . . unless he is in some position in the organization which hires and fires players and coaches.

Posted By : Anonymous

The seemingly open question is whether steroid use...

Message posted on : 2007-11-09 - 12:13:00

The seemingly open question is whether steroid use was, in fact, unlawful under MLB rules or the CBA. Some knowledgeable people have argued that steroids were against the rules prior to 2005, but there was no testing or enforcement of the rules. If so, then Bonds did break the rules and could be punished pursuant to the Commissioner's catch-all Best Interest power.

Alternatively, even if steroids were not against MLB rules pre-2005, steroid use without a prescription and a legitimate medical purpose was against federal law. So, too, is lying to a grand jury about steroid use. Either arguably could be punished within the MLB pursuant to the Best Interests power.

And a punishment involving MLB's own control of its record books (which in no way deprives Bonds of his ability to make a living) would be a uniquely appropriate exercise of those powers.

Posted By : Howard Wasserman

anon: thanks for the update. if you live in south...

Message posted on : 2007-11-09 - 15:37:00

anon: thanks for the update. if you live in south florida, you'd know it is and always will be shula's dolphins. the ineptitude that followed his regime with the fins is a testament to that. i'm personally not even a dolphins fan, but neither the team nor this city has gotten over the shula/marino era. for good reason.

regardless of the spying, which has no business creating the asterisk, wouldn't this situation parallel maris' run to 61*? maris has the asterisk because he played in more games. if anyone should get an asterisk, the dolphins - who will remain in the record books as an undefeated team - should get the asterisk for only having to play 17 games instead of 19. that would be a nice role reversal. go jets.

Posted By : Adam W

It sounds like this is a tech problem on MLB's par...

Message posted on : 2007-11-09 - 21:46:00

It sounds like this is a tech problem on MLB's part, not some deliberate scheme to deprive the fans of their rights to watch the downloads.
Posted By : Peter

Based on Saints owner Tom Benson's comments in the...

Message posted on : 2007-11-10 - 01:08:00

Based on Saints owner Tom Benson's comments in the 10/29/07 article "Benson: Lower debt limit designed to curb spending" vs. Goodell's comments in the same article, it seems the NFL's talking heads put a better spin on this than Benson. Benson's comments seem to overtly convey teams are colluding to cut spending on players; a direct violation of the settlement to the antitrust litigation in '93.

Something isn't right here and it goes deeper than the issue on the surface.

Posted By : Anonymous

I have to agree with Peter. Prof. Yen also made t...

Message posted on : 2007-11-10 - 07:19:00

I have to agree with Peter. Prof. Yen also made this comment on his post: "If MLB sold these downloads with the promise that purchasers could always view them after complying with the DRM protocol, and then fails to make good on that promise, isn't this garden variety consumer fraud?" I would say the answer to that is definitely no.
Posted By : Rick Karcher

I think an argument could be made that debt servic...

Message posted on : 2007-11-10 - 08:18:00

I think an argument could be made that debt service rules constitute a mandatory subject of collective bargaining that must be negotiated with the union, because caps on team borrowing impact how much they can spend on player salaries.
Posted By : Rick Karcher

I also doubt that cuban would go that far...

Message posted on : 2007-11-10 - 10:35:00

I also doubt that cuban would go that far...
Posted By : Free Bet

Message posted on : 2007-11-12 - 19:14:00

This comment has been removed by the author.
Posted By : Jimmy H

Interesting take. But note that the criticism of M...

Message posted on : 2007-11-13 - 00:25:00

Interesting take. But note that the criticism of Mitchell rests on a very particular conception of judicial proceeding and fact-finding--the one we associate with courts within the United States, requiring adversary testing and confrontation. But there are other, reliable ways of engaging in fact-finding and the Mitchell Commission is similar to many of these. We could analogize it to a grand jury, which similarly is unbounded by the rules of evidence in conducting its investigation and coming to (at least preliminary) conclusions. We could analogize it to an administrative agency, which often follows less rigorous procedures before imposing non-criminal sanctions. And, of course, the judicial system outside the United States is far less concerned with the problems of hearsay or rigid rules of evidence and puts more power in the hands of the single judicial investigator who acts as both fact-gatherer and fact-finder. Or we could read the report as a prosecutor's brief.

The key is that the Report should not alone be the basis for punishment; it only should be a starting point. Appropriate due process requires that if MLB or a team is going to rely on the Report, that the players be given a chance to present their arguments and to refute the evidence against them.

Posted By : Howard Wasserman

Howard,

Everything you said makes sense, bu...

Message posted on : 2007-11-13 - 08:41:00

Howard,

Everything you said makes sense, but what often gets overlooked on this issue is labor law. Disciplining players is a mandatory subject of collective bargaining, and the union and league have negotiated specific provisions specifically addressing the issue of disciplining players for steroid use. In light of this, I don't see how the league or any team can discipline a player based on their own investigation.

Posted By : Rick Karcher

I don't understand Selig's reasoning on his possib...

Message posted on : 2007-11-13 - 13:36:00

I don't understand Selig's reasoning on his possible ability to punish players absent a positive indication of drug use through a drug test. The report, which I don't doubt has been conducted by credible individuals; has based some of its results on hearsay and people with questionable reputations. If I was a player dismissed from a team for a contract violation stemming from the results of these findings, I would want a more credible explanation for their findings other than testimony of potentially biased persons associated with steroid distribution.
Posted By : Jordan Bird

It seems that it could be difficult to void a play...

Message posted on : 2007-11-13 - 14:24:00

It seems that it could be difficult to void a player's contract as the result of being named in this report. The elements provided in Section 7(b)(1) of Article 3 are ambiguous. The language lacks a concrete meaning.
In particular the use of steroids arguably can be seen as a way to stay in "first class physical condition" (steroids are performance enhancing drugs) to compete at the Major League level. If the player used steroids before the MLB steroid policy was implemented, then the player has not disobeyed team training rules, as I would venture to say that most if not all teams did not implement pre MLB steroid policies. There also seems to be a large amount of leeway in determining whether private steroid use constitutes poor citizenship or poor sportsmanship. All of these terms seem highly debatable.

Posted By : Chuck Tveite

Last week, I have purchased very nice pair of shoe...

Message posted on : 2007-11-14 - 03:48:00

Last week, I have purchased very nice pair of shoes from EastBay store through CouponAlbum site...
Posted By : Anonymous

If Boras represented Mike Lowell and Alex Rodrigue...

Message posted on : 2007-11-14 - 14:11:00

If Boras represented Mike Lowell and Alex Rodriguez, wouldn't that be a blatant conflict of interest because there are only a few teams that are in the market for a third baseman.

-Aaron

Posted By : aaron

Aaron,

Many would say it is a conflict. Bo...

Message posted on : 2007-11-15 - 07:28:00

Aaron,

Many would say it is a conflict. Boras would probably argue that no one player is the same, and that each has his own unique characteristics, even if they play the same position.

But as I read your question, I was thinking about collusion on the player side, which is also prohibited under the CBA, but nobody ever talks about that. Could the league assert that multiple players represented by Boras in the free agent market at one time constitutes collusion? It would be creative, but the league would argue that Lowell and A-Rod have collectively decided, by virtue of being represented by the same agent, how much it's going to take to sign a third baseman this year. For example, if Boras says to Third Baseman A, "you should not accept less than $X", and then says to Third Baseman B, "you should not accept less than $X (or $Y) because Third Baseman A is not accepting less than $X".

Posted By : Rick Karcher

Maybe collusion on the player side might be best c...

Message posted on : 2007-11-15 - 07:55:00

Maybe collusion on the player side might be best characterized as "extortion" not "collusion."
Posted By : Anonymous

how about the yankees proclaiming that they won't ...

Message posted on : 2007-11-15 - 10:24:00

how about the yankees proclaiming that they won't negotiate with his agent in the room?
Posted By : aaron

Again, the fact that a player used illegal synthec...

Message posted on : 2007-11-15 - 10:44:00

Again, the fact that a player used illegal synthec hormones (steroids) before the MLB steroid policy was implemented does not make the use ok... the fact that MLB did not specifically prohibit the use of steroids did not make it permissable, as MLB could not permit an activity contrary to public policy or federal law in the CBA.

As far as using steroids to stay in "first class physical condition", that argument is creative but seems rather weak to me for the following reasons:

Arguably, you can throw the ball faster or hit the ball further if your body responds well to the addition of synthetic hormones...

BUT

Steroid use has MANY unwanted side effects that seriously impact the "first class physical condition" of the athlete...

Consider these side effects and see if you still think steroids promote "first class physical condition":

enlarged prostate
swollen feet and ankles
trembling
liver damage
high blood pressure
various cancers
aching joints and increased joint injuries
reduction in HDL (good)cholesterol
psychological disorders such as insomnia and agitation
increased weight gain

I'm not saying it's not a decent argument, but it just does not sit well with me.

Posted By : Jimmy H

There is a major question of timing here. Most of ...

Message posted on : 2007-11-15 - 14:30:00

There is a major question of timing here. Most of these ill effects do not reveal themselves until years after the player has required (and the contract is over). And even if steroids cause the player to break down somewhat early (think of how Mark McGwire's body gave out by 2000-01), the team still got the benefit of his steroids-enhanced top-physical-condition performance. Would the Cardinals (any many teams) take the 3 huge years they got even if it meant his health declined more quickly?
Posted By : Howard Wasserman

I really hope he can do something about ousting Co...

Message posted on : 2007-11-15 - 17:11:00

I really hope he can do something about ousting Colin Campbell from office. The NHL needs someone new, fast, if it ever wants to regain national prominence (or a contract with ESPN again).

The Versus contract ends after this year. I hope Campbell doesn't get greedy and turn down ESPN for more money from Versus.

Posted By : Anonymous

Well I am not that surprised that they handed down...

Message posted on : 2007-11-15 - 18:55:00

Well I am not that surprised that they handed down this indictment. However, I am surprised at the timing of this. I would think that if the government had a credible case against Bonds they would have indicted him at least 2 years ago. This is a culmination of 4 years of investigation and discovery work on the part of the government and I'm not sure how strong their case is. At the same time, new evidence has most likely recently surfaced that pushed this case over the edge. Usually, the government does not pursue charges unless they have fairly strong and damning evidence against the defendant. See the Michael Vick case as an example of this. It will be interesting to see how this all plays out. I do not believe Bonds will plead out like Vick did because he has vehemently maintained all along that he is absolutely innocent. This will likely go all the way to trial and will undoubtedly and unfortunately consume the sports media for at least the next year if not more. Nothing good will come of this for baseball which has just recently been taking steps to improve its image and increase its draw among fans.
Posted By : John Biggs

First, it will be interesting to see how Bud Selig...

Message posted on : 2007-11-15 - 20:34:00

First, it will be interesting to see how Bud Selig handles this situation. Whether Bonds is ultimately innocent or guilty Selig has a tremendous job in front of him. He will most likely be in or near the eye of the latest Storm Bonds for the duration.

Second, Greg Anderson's release today throws a potential major kink into this already captivating story. Did he finally cooperate after a year in jail? It would not be surprising to see that he finally decided to provide information relating to Bonds.

Posted By : Chuck Tveite

I think Greg Anderson's release has to be the majo...

Message posted on : 2007-11-15 - 22:35:00

I think Greg Anderson's release has to be the major issue behind the fed's case here. What new evidence could have been obtained to rebut Bonds's testimony? It would have to be something like a person (Anderson) being able to provide proof that Bonds took the steroid/cream knowingly. Roger Cossak did a great job today of really laying out what has gone on and what to possibly expect to happen over the next month.
Posted By : Chris Smith

This is a breaking story, but not very surprising....

Message posted on : 2007-11-16 - 01:47:00

This is a breaking story, but not very surprising. To me, its very similar to the O.J. situation. The public has wanted to nail O.J. ever since he was acquitted in 1995. O.J. slipped up and had a run in with police in Las Vegas, and the D.A. is threw every possible charge imaginable at him (I'm not advocating that O.J is innocent, but rather is on the end of unfavorable public sentiment). O.J. is being crucified for his past actions-- society believes that he "did it" and now wants to make sure that he pays. The public has been after Bonds ever since his purported steroid use was first raised. The desire to nail Bonds for steroid use only heightened as he drew closer to breaking the home run record. Public sentiment, to some extent, is in support of Bonds “going down.� This is evinced by the public's recent election for Bond's 756th home run ball going to Cooperstown branded with an asterisk. In my opinion, I fear that Bond's will be faced with a harsher sentence/plea deal for the simple fact that he is Barry Bonds and the public to an extent desires to see his dynasty and career tarnished.

I also find it highly interesting and coincidental that Greg Anderson just happened to be released on the very same day as Bond's indictment. It could be one of two things: either Anderson sang like a bird or the government no longer needs Anderson and he was released. If the second is true and Anderson didn't cooperate, I wonder if the Mitchell Report had anything to do with the case against Bonds. No indication, as far as I know, has been made to implicate Bonds in the report. On the flip side though, the report has been touted as containing some high profile information. Only time will tell and it will be interesting to see how this case precedes.

Posted By : Matthew Courtner

I would like to congratulate the federal governmen...

Message posted on : 2007-11-16 - 03:34:00

I would like to congratulate the federal government for wasting four years and millions of my tax dollars to do ... nothing.

This is a witch hunt -- nothing more, nothing less. All they've done, if indeed the objective is to break up a steroid distribution ring -- is go after a user (admittedly, a high-profile one). What is the purpose? To spend millions more to put Bonds in jail for a few months (he's never been in trouble before, to my knowledge, so all these hysterical media stories about how he could get 30 years in jails are crap -- nothing more). Proving the charges will take months, if not years, and gobs more money. Is this really the government's best use of our tax dollars?

I'm a Giants fan (I root for the laundry, as they say in football). In watching Bonds over the years, I've found him bright and arrogant -- a black man whose biggest crime is not playing nice with the media.

Baseball's powers that be have been after Bonds for years. They're probably delighted that he's been indicted -- it means no one is likely to sign him. But if I were Bud Selig, I'd be praying that he takes a plea (unlikely), because if this ever gets to trial, baseball's conscious efforts to ignore its problems with PEDs is going to be exposed for everyone to see.

Bud, you've wanted Bonds out of your way for years. But always be careful what you ask for -- you might get it.

Posted By : DonK

Don, I agree with you that this may be bad for bas...

Message posted on : 2007-11-16 - 14:04:00

Don, I agree with you that this may be bad for baseball, but to call this a witch-hunt for a black man is a little misleading and selling this case short in my opinion. The government is not charging Bonds with steroid use because that would be much more difficult to convict him on and doesn't carry a substantial penalty. They are bringing the perjury and obstruction of justice charges because those are much more serious and carry a substantial penalty. Let's remember here that if Bonds pleads guilty or is convicted that he committed serious crimes. Lying under oath in a deposition or trial proceeding is a very serious matter, especially if it's in federal court. Both of those crimes strike at the heart of our legal system and stand for everything that the legal system is supposedly against. I'm not convicting him, I'm just saying that these are very serious crimes and not run-of-the-mill misdemeanors like a DUI or drug possession charge. If you or I committed perjury and/or obstruction of justice, we would also be prosecuted to the fullest extent of the law. Bonds is simply a huge media story because he's a star in baseball, the homerun king (rightfully or not), and a high-profile athlete. Is there recism involved? Well, maybe depending on your perspective. But these are very serious charges and not something that the government just grabbed out of thin air.
Posted By : John Biggs

Professor McCann:

I've read in several plac...

Message posted on : 2007-11-16 - 14:31:00

Professor McCann:

I've read in several places today that MLB is "pleased"/"relieved" that the Bonds' indictment was for perjury/obstruction of justice and not for tax evasion. I nave no idea if MLB is indeed happy about that situation, but I'll accept the statements at face value for the moment. That leads me to ask a couple of questions:

1. Could the prosecutors add tax evasion charges to this indictment at a later date?

2. Could tax evasion charges be brought even after a trial on the counts of perjury and obstruction of justice?

3. Can you conjure up any reason why MLB would prefer these charges to tax evasion charges?

Thanks in advance.

Posted By : The Sports Curmudgeon

What about Bonds' MLB pension? Can that be denied...

Message posted on : 2007-11-18 - 20:29:00

What about Bonds' MLB pension? Can that be denied him, or is it inviolate?
Posted By : Peter

The pension fund is controlled by the players asso...

Message posted on : 2007-11-19 - 00:20:00

The pension fund is controlled by the players association. MLB is required to contribute to this fund by the CBA but MLB has no control over this fund.
Posted By : giantsrainman

finished crasnick's license to deal about a month ...

Message posted on : 2007-11-19 - 09:26:00

finished crasnick's license to deal about a month ago. superb writer and a pretty good book.

also, i completely agree with your analysis on the Mitchell Report.

Posted By : Adam W

I'm in favor of removing him from the record book,...

Message posted on : 2007-11-19 - 10:00:00

I'm in favor of removing him from the record book, should the allegations hold true.

Just like I support Marion Jones giving her gold medals back, and UMass never having appeared in the Final Four.

Posted By : Anonymous

If there is any justice in the world, Vick will be...

Message posted on : 2007-11-19 - 17:10:00

If there is any justice in the world, Vick will be raped consistently in prison and please let him contract HIV!
Posted By : Anonymous

It's crazy O.J. gotten himself into this trouble, ...

Message posted on : 2007-11-19 - 20:15:00

It's crazy O.J. gotten himself into this trouble, and he'll spend lots of time in jail if the story is true. He got away with killing his wife, and now the people might get him for this case.
Posted By : Kenrick Thomas

Anonymous,

Does this mean you favor the rem...

Message posted on : 2007-11-20 - 02:21:00

Anonymous,

Does this mean you favor the removal of all playing records for all "proven users" of steroids? How can you justify support this punishment for Bonds and not for the 100's of other baseball players that have actually failed a Major League Baseball steroids test?

And, since you are in favor of retroactively applying this new baseball punishment to old baseball sins, what about those players that have admitted using amphetamines (Willie Mays, Mickey Mantle, and Hank Aaron just to name a few)? To be consistant should not the records of these players be striken too?

Posted By : giantsrainman

Nice summary. Well, it is surprising that U-M has ...

Message posted on : 2007-11-21 - 16:50:00

Nice summary. Well, it is surprising that U-M has not settled until you realize that no one ever tells U-M what to do: not the taxpayers; not the voters; not the federal government; not even the Supreme Court. Once you accept that, then it all makes sense.
Posted By : Anonymous

I would have to agree that if you want to remove B...

Message posted on : 2007-11-21 - 23:05:00

I would have to agree that if you want to remove Bonds from the record book, then you have to take out any other player who is found to have used steroids. Bonds just seems to be an easy target because he is so defiant of the system. I am not a big Barry Bonds fan, but it seems to me that it is a witch-hunt with him. Do I think he used steroids? Yes. Do I think he knew he used steroids? Yes again. The growth of Bonds at his age suggests only one thing...that he was on something illegal...creatine and protein powder only goes so far, and to all of a sudden explode in size at his age screams steroids.
Posted By : Jason Canterbury

Thank you, your information was practical as well ...

Message posted on : 2007-11-23 - 21:05:00

Thank you, your information was practical as well as encouraging. Although, one of my law profs mentioned the first day of class he thought it a good idea to get a well rounded curriculum including criminal law.
Posted By : cms (women can aspire to work in sports law too)

I'm not sure union representation is the best way ...

Message posted on : 2007-11-24 - 14:23:00

I'm not sure union representation is the best way to go. As much criticism as agents get for supposedly ignoring the wishes of their clients and instead shoving the highest-dollar deal down their throats, imagine the potential situation with union negotiation: they not only have the same incentives as agents (get this player as much as possible), but the player doesn't have the protection they currently have with agents, the potential to fire (as Kenny Rogers recently did with Scott Boras) if it is not adequately representing the player's interests.

Besides, what happens if the baseball union turns into the football or basketball one (i.e. a meek entity, practically powerless to do anything to stand up to the owners)? Then union representation would start to look really shaky.

Posted By : Jason Wojciechowski

what's stopping the players from hiring agents on ...

Message posted on : 2007-11-24 - 21:47:00

what's stopping the players from hiring agents on a per-hour basis?

maybe not Scott Boras, but i'm sure a player can find an attorney to negotiate his contract for $1,000 an hour. It's a lot cheaper than Boras's $14 million cut.

Posted By : aaron

I don't get any joy out of it either, but Vick was...

Message posted on : 2007-11-24 - 23:31:00

I don't get any joy out of it either, but Vick was neck deep in dogfigthing and do you really expect the Feds to turn a blind eye to dog torture because its done other places with apparent impunity?
And, all Bonds had to do was tell the truth and he'd be signing a big contract for next season. Lie in court, pay the price. Its actually quite simple.

Posted By : Joe

If Bonds and Vick were not African AMerican they w...

Message posted on : 2007-11-25 - 09:41:00

If Bonds and Vick were not African AMerican they would not be facing these charges/punishment. And while they committed despicable acts (Vick) and technically may have broken a law (Bonds), and while in Vick's case those around him should have tried to stop him, the Bush/Gonzalez Justice Department is in no position to seek punishment for others considering the disgrace that the Justice Department has now become.
Posted By : frank

Jason and Aaron,

Thanks for your comments. ...

Message posted on : 2007-11-25 - 09:43:00

Jason and Aaron,

Thanks for your comments. I'm not suggesting that players be stripped of their autonomy to decide who represents them in contract negotiations. Players should always have the ability to hire and fire whomever they please, whether it's a union-employed agent, Warren Buffett, Boras or an "attorney friend". And Aaron, you make a good point that nothing is preventing players right now from hiring somebody at an hourly rate.

But I do think that a union-employed representative system would solve many of the problems associated with agent misconduct, much of which, I believe, is a product of the financial incentives created by the current commission-based system. The two primary arguments against having union-employed agents are that (1) while it might be good for the "rank and file type" non-free agents, it would not be good for the marquee free agent players and (2) there is a conflict of interest in having the union represent both the collective and individual interests of the players.

Even if the first argument has any merit (which is highly questionable as A-Rod and Kenny Rogers have just demonstrated), why not at least make it an option for all of the rank and file type players? Regarding the conflict of interest argument, there are many conflicts that currently exist in the 3rd party system that could actually be alleviated if the unions represented players (e.g. agents representing both management and players, and an agent who represents multiple clients in the same position). I'm also not persuaded that the collective/individual interest conflict can't be adequately addressed through various screening mechanisms, as are commonplace within law firms dealing with analogous conflicts.

Posted By : Rick Karcher

I agree with Alan wholeheartedly. These prosecutio...

Message posted on : 2007-11-25 - 11:39:00

I agree with Alan wholeheartedly. These prosecutions appear to be politically motivated by a justice department that has had its share of very public "black eyes" recently.

That Vick is going to do time in federal prison, while most first time offenders of the same crimes rarely go to prison (this, according to the US Attorney prosecuting the case), is a shame. Why is he doing time when most similar offenders receive a combination of fines, community service and probation? You have to think it's because of the high profile nature of the case, as well as the public sentiment towards dogs and Vick. We, as a nation, love our dogs. For all of his talent, accomplishments and highlight reel plays, it seems that we never fully embraced Michael Vick. Whether the criticisms were because of his "thuggish" appearance, his non-traditional style of play, the vast amount of money he made, or even possibly (though I do want to leave this out of the discussion for now) his race, Vick has always been subjected to a great deal of national public scrutiny.

As for Bonds, the glee that many in the media have taken with this indictment is sickening. These people act like Barry personally injured them and is finally facing charges for it. Further, why would the federal government go after Bonds for perjury in a case where they won? They needed Bonds testimony to indict the BALCO guys. Well, without his testimony, they got the indictment, and all the principals in the case have already served their prison time. At this point, what good does Bonds' prosecution serve, other than the political gains from trying to take down a controversial public figure.

Too often, people in this country bemoan the way the rich get preferential treatment from our justice system. If their concerns are valid, why aren't people equally concerned when high profile people are hung out to dry for political gain? Both scenarios are abuses of the justice system.

Finally, in response to the previous comment about Bonds: There are two possible scenarios to consider: First, let's assume that he did lie in court, and he did knowingly use steroids. If that was the case, Bonds certainly faced a Catch-22 in court. Yes, he had immunity, but he must have suspected that such a revelation in his grand jury testimony would not remain secret for long -- which turned out to be a correct assumption. So if he tells the truth, it will eventually come out that he admitted to using steroids, and the public outcry would be so great that he would be effectively blacklisted from the game. If he lies, he can still deny the allegations until the feds come after him, which was far from a certainty.

Now, let's look at scenario two, where Bonds did not knowingly take steroids. In this case, his testimony is the truth and he hasn't done anything wrong. Because public perception is that he took steroids, does not make it a fact that he took steroids. And even if he did, his testimony is still truthful if he didn't know exactly what he was taking.

From these scenarios, it's clear that Bonds' dominant strategy in testifying was to deny knowingly using steroids. If he's lying, any consequences will be a few years down the line, and it will be difficult to prove beyond a reasonable doubt that he lied. If he's telling the truth, he has no reason to admit to informed steroid use. Frankly, he would have been stupid to take any other course of action.

Posted By : William

And how about the familiar tune that only Bonds re...

Message posted on : 2007-11-25 - 12:42:00

And how about the familiar tune that only Bonds refused to tell the truth under oath. Mark McGuire was called before Congress and under oath was asked whether he took steroids. He refused to answer without reprisal.
Posted By : alan milstein

I have enjoyed this blog for a while, but sometime...

Message posted on : 2007-11-25 - 13:22:00

I have enjoyed this blog for a while, but sometimes you all put out some absolute crap.

"Now that Michael Vick sits in a jail cell and appears to be slowly losing all the money he has rightly earned over the past few years..."

He might have rightly earned the money he earned playing (as opposed to bonuses contingent on performance), but he is choosing to invest his vast financial assets into his legal defense for actions in which he chose to engage. So he is rightly spending it as well.

"Vick was one of those superstar athletes who really cared about those less fortunate and worked to make things better in the communities like the one he grew up in."

The executives at Enron gave millions to charity too... it doesn't make anyone any less accountable.

"First, where were Vick's advisors: his agent, his attorneys, his friends, teammates and coaches? Surely some of these people knew he was involved in this activity and either turned the other way or encouraged his belief that there were no consequences for an athlete of his stature for such conduct."

Well, Vick's agent, Joel Segal, manages several clients, and Segal's role is traditionally more hands off in order to focus on financial opportunities for his many clients who he is forced to assume will abide by the law and act responsibly. I think it's a stretch to think that Vick had attorneys on call before this, and even if they did, I don't know why they would know. Vick's friends were involved in the enterprise, his teammates aren't going to snitch on the team superstar, and the coaches were brand new and had not yet built a solid relationship with Vick.

"Vick now is one of the all too many African American young men imprisoned in this country..."

True, but your allusion in this statement that Vick's race is relevant to his situation is made, as usual, without any indication of prejudice in his case. Please save this argument for individuals who are not so clearly guilty.

"Second, many of us have been surprised to learn that this culture of dog fighting is fairly widespread. Some 50,000 Americans apparently are involved in the activity. Internet sites and numerous books promote and cater to what many call the “sport.�"

I am not prepared to call a regional activity that 0.0167% of the American population is involved in "widespread".

At this point, your argument devolves into a complete baseless red herring argument about the Justice Department's motivations for convicting Vick, making strong condemnations almost in passing without giving any evidence or support for your claims. Never mind that local state and county officials were also working on their own cases against Vick.

"All I know is that the prosecution of either of these splendid athletes gives me no joy, as it apparently does for some in the media and others who love to see superstars brought down to size."

It gives me no joy, either, to watch the downfall of Michael Vick. But as a football fan and dog lover, I definitely have no remorse. For every Michael Vick, there are 10 other superstars that learn how to adapt to the spotlight, and they deserve every benefit they get from it. I don't think people enjoy bringing celebrities down to earth, but I do feel that they get defensive when people they idolize as being nearly perfect fall from grace in such a rapid manner.

Posted By : Slims

These unfortunate situations are results of the co...

Message posted on : 2007-11-25 - 14:15:00

These unfortunate situations are results of the country we live in and the "great" servitude that our government is doing for us...Yeah right. There are so many other ways to attack these problems (dog fighting, steroids, etc.)but our beloved red, white, and blue doesn't care about those. Vick and Bonds are nothing more than black men who the government considers incidental costs. The government continues to play this mind game with it's citizens mainly throught the media. I leave you with two things. First, Do not believe everything the media says. Second, although far-fetched, it is ironic how Jordan Vander Sloot is all of a sudden a suspect again, while the media has all to quick forgotten about the Bush administration's involvement in the CIA Leak. Press secretary drops info--Arrest Jordan Vander Sloot. War in Iraq still going bad--Arrest Michael Vick; Indict Bonds.
Posted By : Michael H.

free O.J.; but maybe get him some psychological he...

Message posted on : 2007-11-25 - 14:24:00

free O.J.; but maybe get him some psychological help... I can name several disorders that he is suffering from!
Posted By : Michael H.

Message posted on : 2007-11-25 - 20:17:00

This comment has been removed by the author.
Posted By : Kate

The disregard these men had for the law is unfortu...

Message posted on : 2007-11-25 - 20:19:00

The disregard these men had for the law is unfortunate and untimately the cause for their prosecution. The DOJ is not responsible.
Posted By : Kate Steiner

don't necessarily run Boras under the bus until al...

Message posted on : 2007-11-25 - 20:34:00

don't necessarily run Boras under the bus until all the smoke has cleared years from now. I wouldn't be shocked if the whole "blame Boras" and make him the bad guy to get a better outcome for his client (and in the end himself) was actually Boras' idea. He did screw up with the timing of the announcement (unless that was part of the plan too) and then disappeared and made Alex look like a big boy who can think on his own because it allowed the Yankees to relent on the we won't deal with ARod statements from before.

I think years from now it will be shown that Boras played this big time (for the biggest deal in sports) by setting himself up as the fall guy. Kind of like an attorney who gets reprimanded in court for saying things he shouldn't but it makes his client look better or gets something before the jury that otherwise might not have gotten there.

Posted By : B Squared

Unfortunately Kate, the DOJ is responsible. In the...

Message posted on : 2007-11-25 - 20:49:00

Unfortunately Kate, the DOJ is responsible. In the Vick case, while they are certainly not responsible for Mr. Vick's violations of the law (and I hope that nothing I've said leads anyone to think that these men have no personal culpability for their actions), they are 100% responsible for how the case was prosecuted. I'm not saying they should not have brought the charges against Vick, but they should not subject Vick to more stringent punishment than a similar offender because he is a public figure.

As for Bonds, please name me another case where a US attorney convened a grand jury (and extended it multiple times) and indicted one of his own witnesses for perjury when he got a conviction. It's not like they really needed Bonds to make their case anyway. Did he commit perjury? Maybe. It's a very hard thing to prove even if he did. But clearly the reason they are going after Bonds is because he is a controversial public figure. How is it worth their time and resources to go after him on such a difficult thing to prove otherwise? Lots of relatively minor offenses go prosecuted every day -- it's called prosecutorial discretion (here's a great discussion of the politics involved in prosecutorial discretion: http://findarticles.com/p/articles/mi_qa3975/is_200507/ai_n14684182). Because a crime may have been committed, does not always make it worthwhile to prosecute.

Posted By : William

Interesting stuff. There seems to be a commonly-h...

Message posted on : 2007-11-25 - 21:49:00

Interesting stuff. There seems to be a commonly-held belief that "public figures are not above the law". In other words, if high profile people break the law, then they must be treated just like everybody else in society...as Joe said in the first comment, "Lie in court, pay the price." But what's ironic is that, while we say we want equal treatment for them under the law, in actuality we treat them different under the law. The feds would not be seeking 30 years in prison if some V.P. for Coca-Cola lied under oath about snorting coke (no pun intended) or having "sexual relations" with an intern.

Indeed, we go out of our way to catch public figures involved in bad and/or illegal acts and we want them to pay to the fullest extent possible under the law. I think part of that sentiment arises out of a belief that high profile people (unlike everybody else in society) can get away with just about anything and can buy their way out of any legal problem. So even if we can't get them for doing something illegal (like having sexual relations with an intern or spreading some cream on their bodies), we still want them to be caught in some other way. In fact, it seems to give us satisfaction when we catch them because when we catch them, it gives us satisfaction knowing that they are not getting away with something....as Joe says, "all Bonds had to do was tell the truth" (which obviously assumes that there is no dispute about what the truth is). Why does the media insist upon showing clips of Brittany Spears proceed through a red traffic light, or chastise Lindsey Lohan for being in rehab? Apparently, we want to see them get caught.

Complain all you want as a fan that players are paid too much, that Bonds should be banned from the Hall of Fame and ousted by the league, that baseball should have done something about steroids, etc. etc. Let the media complain along with you, and let the media hound Spears and Lohan if the sheep want to buy it. But when the govt. prosecutes a high profile person for doing something that they wouldn't otherwise prosecute you and I for doing, we all need to be extremely concerned and scrutinize whether the punishment fits the crime.

Posted By : Rick Karcher

Being a boxing fan, I would like to point out that...

Message posted on : 2007-11-25 - 22:17:00

Being a boxing fan, I would like to point out that most of the factors you cite apply to boxing too. Boxing also has a reputation for attracting various less-savory characters. Yet for all that, there have been very, very few "dives" in recent decades.
Posted By : Peter

Other aspects of professional tennis also contribu...

Message posted on : 2007-11-25 - 23:34:00

Other aspects of professional tennis also contribute to the problem, including appearance money. Many of the top players take appearance money to show up at tournaments (allowing the tournament to publicize their appearance and thus sell tickets), often tournaments in which they have no real interest in playing and in which they promptly lose. I believe it also used to be (maybe it has been changed) possible to throw out certain results in computing rankings (thus, no harm/no foul with a bad loss).
Posted By : Anonymous

Anonymous:

Excellent point that I thought a...

Message posted on : 2007-11-25 - 23:45:00

Anonymous:

Excellent point that I thought about while I was writing, then forgot to include. But if appearance fees go only to the top players, who are at least far less likely to tank, I am not sure how much it contributes to what we presently understand as the problem.

Posted By : Howard Wasserman

I get really sick of people using the "race card" ...

Message posted on : 2007-11-25 - 23:51:00

I get really sick of people using the "race card" as a feeble excuse for all their problems. The simple fact is that Vick not only broke the law by engaging in the arena of dogfighting, but also went above and beyond human decency by inflicting cruel and dispicable acts upon innocent animals. He showed no regard for the life of another living creature...man's best friend. I don't care if the s.o.b. is black, white, or purple, he should suffer the same fate as he inflicted. He should be punished to the fullest extent of the law (and then some), not because he is famous and certainly not because he is black, but because he is a piece of crap who should pay for his actions. Someone should throw water on him and electrocute him as he deemed suitable for another living being. I am sure that he will be judged and sentenced appropriately whether by the judicial system or by fellow inmates. Carma, baby!
Posted By : Anonymous

The ruling itself resolves a matter hardly central...

Message posted on : 2007-11-26 - 05:10:00

The ruling itself resolves a matter hardly central to the underlying dispute in an unsurprising way. After removing the case to federal court, the Sonics owners sought to compel arbitration. Although federal courts generally favor enforcement of arbitration clauses, in this case the lease contract fairly clearly excludes disputes concerning the term of the lease ("Section II" of the lease) from the arbitration clause.
Posted By : Emily

Anon,

I'm assuming your comment is not dire...

Message posted on : 2007-11-26 - 08:24:00

Anon,

I'm assuming your comment is not directed towards me, because I didn't mention race or the color of anybody's skin. The eye for an eye mentality, which I am not a proponent of, is nonetheless a view held by many. But what you're advocating actually goes beyond an eye for an eye -- because it involves a person for a dog.

Posted By : Rick Karcher

Hi Howard, I think you're right, it may not contri...

Message posted on : 2007-11-26 - 11:09:00

Hi Howard, I think you're right, it may not contribute directly to tanking for cash, but I think it may contribute in part to an "atmosphere" in tennis that has grown over the years, which has devalued non-slam wins and would lead to a lower ranked player concluding it is not such a bad thing to tank for cash. In other words, if a top player takes an appearance fee and then dogs it or fakes an injury (fairly common and almost never disciplined by the tour), why is it so wrong for me to get my cash? I'm in tennis' target market - I've been playing and following tennis since the late sixties - yet for the last half dozen years I've paid zero attention to non-Slam tournaments; in some part, because I do not believe wholeheartedly in the integrity of the results and the efforts expended by the players in those tournaments. {As an aside, I also feel that exhibitions, e.g., the latest Federer/Sampras matches, also corrupt the integrity of the game. Besides wondering whether the result was, let's say, negotiated ahead of time, and devaluing the reputation of Federer, it strikes me as yet another reason a lower player may feel he/she is entitled to some extra cash.]
Posted By : Anonymous

The ATP rankings are a mess (different types of ra...

Message posted on : 2007-11-26 - 11:23:00

The ATP rankings are a mess (different types of rankings: event and race rankings) and make it ok to lose in certain events, since not results count toward the rankings. From the ATP site: “Players eligible to enter the Grand Slams and ATP Masters Series events must count those events and their best five other results from the International Series events . . . . . . results from Challenger events do not count towards a player's ATP Race position�. In other words, many results are thrown out of the calculation of player rankings, so if one tanks a match/fakes an injury, it may have zero impact on one's ranking. The purpose, no doubt, of this system is to encourage players to play in lesser tournaments. However, it also removes a disincentive to tanking.
Posted By : Anonymous

Finally, I think this points out that in order to ...

Message posted on : 2007-11-26 - 11:32:00

Finally, I think this points out that in order to minimize the incentives to cheat, a league needs to make losses matter. In other words, a betting scandal is more likely to occur in a league, such as the NBA, with lots of "meangingless" regular season games or on a tour such as tennis, where losses are not factored into rankings or not fully factored into rankings.
Posted By : Anonymous

http://www.talk-sports.net/nba/girlfriend.aspx/Ton...

Message posted on : 2007-11-26 - 15:26:00

http://www.talk-sports.net/nba/girlfriend.aspx/Tony_Allen
Posted By : Anonymous

I noticed that the Rangers official website switch...

Message posted on : 2007-11-26 - 17:50:00

I noticed that the Rangers official website switched over from www.Newyorkrangers.com to rangers.nhl.com today. Whatever happened with that lawsuit?
Posted By : HockeyDebs

It seems to me we have the opposite problem in our...

Message posted on : 2007-11-27 - 08:48:00

It seems to me we have the opposite problem in our ESPN-era: We over-mythologize everything. I do not think anyone doubts or downplays down how tremendous Bond's achievement was. Indeed, the mythology probably was enhanced by the fact that, for the media (and, to a lesser extent, fans) the career homer record is *the* baseball record. We saw the same thing with the single-season HR record in both 1998 and 2002.

To the extent the achievement has been downplayed, it is because of who Bonds is--in legitimate ways (he, in all likelihood, achieved the record by doing what is widely understood as cheating) and illegitimate ways (the race issues), and neutral ways (Bonds is, by all accounts, a jerk--and even this did not stop the myth machine in 2002).

At some level, I think all the talk of asterisks (Li's post mentions Shula's stupidity about the Patriots) is pushback on this instant myth-making. To preserve history, there must be something tainted about the new record, so let's do something to maintain the old record.

Posted By : Howard Wasserman

So what happens when Kenny Rogers (who fired Boras...

Message posted on : 2007-11-27 - 08:53:00

So what happens when Kenny Rogers (who fired Boras) signs for the same $8 Million that Boras had negotiated for with the Tigers?
Posted By : Anonymous

Let's see now: Alex Rodriguez is getting a $275 mi...

Message posted on : 2007-11-27 - 08:57:00

Let's see now: Alex Rodriguez is getting a $275 million contract, with gusts to $305 million, with no other team bidding for him. This from a team that said it wouldn't re-sign him if he opted out. Boras, already the most hated guy in baseball, draws some more bad press. So what? His client ended up yet again with the richest contract in baseball history. How, exactly, did Boras screw up?
Posted By : Anonymous

A couple points.

First, Boras will not be g...

Message posted on : 2007-11-27 - 10:39:00

A couple points.

First, Boras will not be getting his 14 M fee up front -- the usual arrangement is for the agent to get the 5% commission as the player himself gets paid, so the 14 M will be paid over the course of the relationship. That still works out to over 1 M per year, though.

Second, with regard to Rogers, if Rogers signs the exact deal that Boras had negotiated for him, Boras will likely file a Complaint for Arbitration against Rogers pursuant to the MLBPA player agent regulations and unless the claim is settled, Boras would have a good claim to receive at least some amount of commission from the MLBPA arbitrator (based on previous rulings).

Posted By : B

I personally think race was a very nominal factor ...

Message posted on : 2007-11-27 - 11:32:00

I personally think race was a very nominal factor in the public opinion regarding Bonds. Unless anyone forgets he was chasing a record held by another African-American player. A very different situation than the one faced by Hammerin' Hank who began his major league career the same year the Supreme Court handed down the Brown decision.

Likewise when Sosa was racing McGwire he had a large number of supporters in the race.

Bonds is symbolic. Just as any great cause needs a public face to rally behind, evil needs a face. Bonds fairly or not has become the public face of juicing. He made the perfect target because he was performing great feats and was roundly disliked by those stuck covering him.

Personally my dislike of Bonds came from a day watching ESPN and seeing him oddly bring his kids to meet with the press right after the mistress story broke. The reporters asked about it and he scolded them for asking in front of his kids. It struck me as a cheap ploy to dodge the question because I'd never seen him bring a child with him to meet the press like that.

The desire for sports content is huge and the ESPN family of channels have a lot of air time to fill. If the biggest news of the day is that a punt returner for the Pats has turf toe then the time must be filled by analyzing how that news impacts their quest for the Super Bowl and an undefeated season.

Posted By : Mark

It was a clean hand-off!

Message posted on : 2007-11-28 - 09:51:00

It was a clean hand-off!
Posted By : Anonymous

The desire for sports content is huge and the E...

Message posted on : 2007-11-28 - 13:04:00

The desire for sports content is huge and the ESPN family of channels have a lot of air time to fill.

Well, heck.
I have a novel suggestion: the ESPN channels could fill air time by showing actual sporting events. Not out-of-shape middle-aged guys sitting around and bloviating about sports. Wouldn't that be nice?

Poker, bass fishing, billiards and spelling bees do not count as "sports" in this (or any) context.

Posted By : Peter

I have to agree with Howard on this point - "We ov...

Message posted on : 2007-11-28 - 19:47:00

I have to agree with Howard on this point - "We over-mythologize everything."

ESPN (and other outlets), in trying to capitalize on whatever's getting attention, play it up as much as possible. Just look at USC football a couple of years ago. Leading up to the Rose Bowl, ESPN did a comparison showing that USC was basically the best team ever. What happened after all that hype? Well, Vince Young happened. ESPN followed by declaring the Rose Bowl as the best bowl game ever, as to be expected (which it may have been).

In time, I think more people will appreciate Bonds' numbers. But those who were here and experienced all the news about steroids and asterisks will probably never hold the record in such high esteem.

Posted By : Jackie Bost

Amen!

I can't stand instant replay.

...

Message posted on : 2007-11-28 - 22:15:00

Amen!

I can't stand instant replay.

Players play, referees ref...PERIOD!

the replay system is far from perfect, and constant replays kill the what is probably the most important variable in sports...momentum...what else can kill the powerful drive where the defense is to confused or to tired...what else can give the offense the time to regroup or get their head on straight when the D has gotten into their heads?

Buuuuuuuu for instant replay!

Posted By : Jimmy H

That Old article is good

Message posted on : 2007-11-29 - 04:05:00

That Old article is good
Posted By : sfd

I tend to disagree, and not because I am a Stanfor...

Message posted on : 2007-11-29 - 07:30:00

I tend to disagree, and not because I am a Stanford grad. I agree that video replay of The Play wouldn't be so great in part because the angles aren't there (but also note that the video footage was not nearly as good then as it is now). Stanford has been on the other side of enough fantastic finishes that I wouldn't want to remove The Play from history.

That said, there are times when the referees are just wrong - they don't have the angle, they have to look at two things at once, etc.

What's amazing to me is how often they get it right, but even so I would take accuracy over "momentum" any day of the week, even when it goes against my team (which happened in the Stanford v. Notre Dame game last week - Notre Dame's receiver made an unbelievable catch for a touchdown that was ruled incomplete; my wife - who is not a football fan - said "I know we want Stanford to win, but that was a catch." Alas, she was right).

Posted By : Michael Risch

Many years ago, Arkansas State was at Arkansas-Lit...

Message posted on : 2007-11-29 - 09:40:00

Many years ago, Arkansas State was at Arkansas-Little Rock in basketball. Foul called on a shot taken by Arkansas-Little Rock. Shot rims out, a UALR player (I think Derek Fisher) jumps up and tips the ball in. Offical turns from the foul call looks back and sees the ball going through the net and signals for the points to count.

Video can correct such a basic error and should.

While one could argue whether video provides truly reliable evidence long enough to make my head hurt, that is not the fundamental problem.

The problem is that at the college level if there is a close call on whether or not there is a fumble the official has two choices even if he thinks it is a fumble.
1. Let the play continue so that the defender grabs the ball and races to the end zone.
2. Call it like he sees it and rule the play dead.

If he chooses option 1. The burden of proof switches now there has to be some clear evidence it wasn't a fumble to take the points off the board. If the replay isn't "conclusive" then the play goes in the books as it happened but not as the official saw it.

If he chooses option 2. No harm if the video is "conclusive" the official was right or if it doesn't provide enough evidence to over-turn the call. However if the video provides compelling evidence it was a fumble... too bad. The play was blown dead. At least the NFL gives a half a loaf and will let the defensive recovery stand, just not the return. But in either case if the official chooses option 2 the defense cannot be made whole.

I watched that scenario play out three times this season on QB sacks. Arkansas State at Texas, the officials let the play go. Video over-rules correctly and Texas retains possession so choice of option has no impact. Arkansas State at Louisiana Monroe, official rules incomplete pass, video replay would have easily upheld a fumble ruling but couldn't be used to make that determination. Middle Tennessee at Arkansas State ruled incomplete video was not going to be sufficient to over-turn the play regardless of the call.

The mention of Arkansas State - Texas however brings about a failing of the system. A play easily reviewed such as illegal formation is not reviewable. Officials rule an illegal formation against Arkansas State on an onside kick recovered by them. Later review of the play by the Big 12 results in an apology, but that of course isn't helpful.

Personal fouls and unsportsmanlike conduct fouls are perfect for video review but are not reviewable.

There is a place for correcting big errors that are generally caused by an official not being able to get in the correct position but instead the system isn't used that way, and is all about second guessing close calls on bang-bang plays.

Posted By : Mark

I tend to agree with Michael Risch. I was always ...

Message posted on : 2007-11-29 - 09:59:00

I tend to agree with Michael Risch. I was always against replay, especially in college football because college football is the most exciting sport ever (in my opinion). Having said that, I would rather the refs get the call right than have my team lose the game and their season over a human error that could have been corrected with instant replay. Most people are against instant replay until their team loses the game based on a ref's mistake.
Posted By : Jordan Ash

I definitely agree with Jackie that "those who wer...

Message posted on : 2007-11-29 - 10:17:00

I definitely agree with Jackie that "those who were here and experienced all the news about steroids and asterisks will probably never hold the record in such high esteem."

I am not a big baseball fan at all, but I am a huge sports fan in general; therefore, I watch ESPN (and all sports channels) constantly. All I think about when I think of Bonds is "great athlete who cheated the game and himself." It has nothing to do with race, Bonds being a jerk, or anything else. It's only about steroids. Having said that, I also realize that Bonds has not publicly stated that he took steroids. I try to think the best about people, but with all that has been said on ESPN and every other sports medium you can't help but think that Bonds cheated.

If I have kids one day that play baseball and if they ask me about Bond's record, all I will know to say is that he cheated. Nothing else will come to my mind. That is sad in my mind, but it is the truth.

Posted By : Jordan Ash

I seem to be a bit behind on this issue, but here ...

Message posted on : 2007-11-29 - 11:33:00

I seem to be a bit behind on this issue, but here is my take.

Lasik gives you an ability with which you were not born. Consider this: You have two guys, one is big and muscular, but has poor vision. The other is not as muscular, but has great vision. We assume their other abilities are equal. The first guy gets Lasik and the second guy takes steroids. You now have two equal players, but only one gets thrown out of baseball. Playing on any professional level requires a great deal of natural ability, and vision is part of that. Enhancing your vision is no different than enhancing your strength.

Posted By : Anonymous

What is missed in this argument to derail agents c...

Message posted on : 2007-11-29 - 15:01:00

What is missed in this argument to derail agents commissions is the fact that in many cases, actually most cases, these agents are financially invested in the players from their minor league days before Nike or any other equipment company started sending free equipment to them. In many cases, the agents are the ones footing the bill for extra equipment, cleats, clothing, etc...Plus, the agent sometimes assists in other living expenses, as well as training expenses, not to mention guidance through life of being a young professional. Agents can work on behalf of the player for years and not see a dime in return as the player climbs the ranks of the minor leagues and his first few years in the major leagues. Why shouldn't the agent get that financial windfall to compensate for the money he's invested as an adviser to the player during that time? Would a union employee be that invested in representing younger players?
Posted By : Chris G

kambiz babaei
General secretary of asian associ...

Message posted on : 2007-11-29 - 15:08:00

kambiz babaei
General secretary of asian assocition of sport law
www.the-aasl.org
sportlaw1974@gmail.com

Posted By : Kambiz

I should add that some great plays in history are ...

Message posted on : 2007-11-29 - 16:51:00

I should add that some great plays in history are only great plays because they were allowed. Great plays are made all the time that aren't allowed (e.g. the interception return by Notre Dame last week that was called back due to roughing call).

In other words, if players could routinely pitch the ball with a knee down or forward lateral, we would see all sorts of great plays that would otherwise not be allowed. Replay takes some of those away. Yet, I would guess that for every great play taken away, there is a great play that is allowed - the ball that is NOT trapped, the second foot that lands inbounds, etc.

Posted By : Michael Risch

Jordan Ash:

What is sad in my mind is the d...

Message posted on : 2007-11-29 - 18:19:00

Jordan Ash:

What is sad in my mind is the desire by so many to apply this new baseball standard on what is cheating to past behavior. No one in baseball (players, management, ownership, fans, media) cared about steroids until BALCO. If it was cheating before why did no one care before? It has only now become cheating and it is just flat ass wrong and unfair to apply this new standard to old behavior especially when this application is so clearly aimed at one primary target.

Posted By : giantsrainman

But part of what makes these plays great is the sp...

Message posted on : 2007-11-29 - 21:02:00

But part of what makes these plays great is the spontaneity of the play and the immediate celebration that follows. That spontaneity is lost if you have to wait 10+ minutes to be able to celebrate it while the officials stare at a TV screen.
Posted By : Howard Wasserman

"But part of what makes these plays great is the s...

Message posted on : 2007-11-30 - 07:40:00

"But part of what makes these plays great is the spontaneity of the play and the immediate celebration that follows."

I would argue a small, small part. The Play is an exception, because of the band in the endzone, the trombonist, etc., but most great plays are not seen by everyone who will later talk about them. Not always (I recall watching "The Catch" with my younger brother), but I didn't see The Play until much later.

In my mind what makes a play great is that people:

a) name it, b) talk about it for years to come, c) even debate it for years to come.

If we can talk for years we can surely wait 10 minutes - the Music City Miracle is a good example - that play was reviewed and affirmed and yet it is still in our memory even though we don't remember the celebration.

If you take reason (c) seriously, instant replay can add to the debate to keep the play alive. The Immaculate Reception is a good example - the existence of replay keeps that play in memory and debate. Even now people disagree about whether replay would have changed the outcome, so I would venture a guess that if that play had been reviewed we would still talk about it today.

Posted By : Michael Risch

Very interesting... while I'm not familiar with Al...

Message posted on : 2007-11-30 - 09:01:00

Very interesting... while I'm not familiar with Alabama law, I think the case really depends on whether Keller is determined a limited purpose public figure. Two key points:

1) Under Gertz and its subsequent cases, generally figures have to voluntarily enter an issue of public concern to become limited purpose public figures for the interests of a libel case. Arguably, Keller didn't enter this controversy - he was absorbed by it due to media coverage. This is generally not seen to be a "voluntary insertion".

2) If Keller has an elected position as part of the boosters, he may be a limited purpose public figure because the criticism involved his actions as a booster. In this case, the award should not stand.

If the judgment stands, I agree that the award seems high, but given the high publicity that this issue received in 2002 and the results (banning him from a program in which he has invested so highly, financially and emotionally), there is definitely grounds for a substantial award.

Posted By : Slims

New York Times v. Sullivan rewrote defamation law ...

Message posted on : 2007-11-30 - 09:02:00

New York Times v. Sullivan rewrote defamation law in a First Amendment light in 1964 because an Alabama jury ran wild with a massive damages award against an "out-of-town speaker." 43 years later, not much has changed . . .
Posted By : Howard Wasserman

Slims,

I disagree with some of what you sai...

Message posted on : 2007-11-30 - 09:31:00

Slims,

I disagree with some of what you said about Gertz. One who voluntarily assumes a central role in a particular public controversy, becomes a "public figure" for that limited range of issues, in which case the plaintiff would have to prove actual malice (knowledge of its falsity or reckless disregard for its truth). Gertz imposes, not an actual malice standard but a negligence standard, when it relates to a private person involving a matter of public concern.

Also, I disagree with you that the "high publicity that this issue received in 2002 and the results" provides grounds for a substantial award. I would argue that supports the point that it's a matter of public concern, which means that the defamation action is subject to some constitutional limitations even though Keller is a private person (i.e. negligence standard not actual malice).

Posted By : Rick Karcher

Message posted on : 2007-11-30 - 10:08:00

This comment has been removed by the author.
Posted By : Slims

Rick,

I'm not disputing the malice/negligen...

Message posted on : 2007-11-30 - 10:10:00

Rick,

I'm not disputing the malice/negligence point or that this is a matter of public concern. I'm simply saying that I do not believe that Keller's actions, on their face, consist of a "voluntary assumption" of a role in the controversy unless Keller holds an official role in some capacity with the Alabama boosters.

From the limited facts I have seen on the case (obviously could be wrong), Keller acted as a private party and invested in the potential of the Alabama football team. He was considered a booster, or program supporter, based on his efforts, but this is not an official title of any kind. He remained a private party up until and through the media coverage put Keller and his actions in what he considered an inaccurate and improper light. Where in this instance does Keller voluntarily insert himself into a pre-existing issue of public concern?

Posted By : Slims

But can that be the standard? Slims's rule means t...

Message posted on : 2007-11-30 - 10:40:00

But can that be the standard? Slims's rule means that a private person who engages in (alleged or potential) wrongdoing with respect to something of a public concern remains a private person when his public-concern wrongdoing is made public.
Posted By : Howard Wasserman

Slims,

I'm not saying that he voluntarily i...

Message posted on : 2007-11-30 - 10:56:00

Slims,

I'm not saying that he voluntarily inserted himself into a public controversy. If he had done so, then an actual malice standard would apply. But since he didn't, then a negligence standard applies (some fault must be shown) because this is clearly a public controversy that deserves constitutional protection (although not as much protection as if he were a public figure or even a limited public figure). As I said in my post, I don't see any evidence of negligence on the part of the NCAA. Hope this clears things up.

Posted By : Rick Karcher

Surprising questions no-one's asked after all thes...

Message posted on : 2007-11-30 - 11:35:00

Surprising questions no-one's asked after all these years: Remember, the game's at Cal, but STANFORD's band is on the field:

(1) Would Stanford have been penalized, and what would be the penalty? (Football referees, help!)
Or should Cal have been penalized?

(2) If so, what would the penalties be?

(3) Could the referees rule somehow under a catch all rule that allows them to rule on something not covered in the rules (similar to baseball's rule 9.01c/e [I forget the specific section)?)

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Message posted on : 2007-12-01 - 06:14:00

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Posted By : sushilsingh

Howard--where do you get this "10+ minutes" sillin...

Message posted on : 2007-12-01 - 13:24:00

Howard--where do you get this "10+ minutes" silliness? NFL limits reviews to 90 seconds--that's 1.5 minutes. NCAA reviews are similarly limited.

Given how complicated this play was, however, one team could easily ask for review as well as having a booth review, but you still wouldn't get close to 10 minutes.

(Evidently, Howard, you don't watch too many NFL games; how many TV timeouts run as long or longer than a play under review? Or, how many times have you seen this sequence: Turnover, TV timeout, play, 2-minute warning/end of quarter TV timeout, score, TV timeout, kickoff & return, TV timeout. Four plays in about 13 minutes real time. What momentum can a team get under these circumstances? And, how many NBA or college games turn into foul-shooting contests or timeout contests?)

Posted By : Anonymous

A complicated case.

From what I understand ...

Message posted on : 2007-12-01 - 22:58:00

A complicated case.

From what I understand this case centered around the NCAA's failure to follow their own bylaws when investigating their case against the University of Alabama. By doing this they violated an important bylaw that disallows evidence from a confidential source.

In addition, the NCAA violated their own statute of limitations by alleging Mr. Keller's involvement in a violation outside the four year window.

The NCAA used very defamatory language during their announcement of penalties against Alabama by calling Mr. Keller "a pariah, poronah, and parasite."

All this caused Mr. Keller to lose several real estate developments he was involved in.

Most interesting was the fact that Professor David Swank (Oklahoma Law School) testified in this case against the NCAA and their investigation techniques used in this case. Professor Swank served 9 years at the NCAA and authored their investigative procedures manual.

Posted By : josh kingston

Fascinating, passionate discussion here, folks. Th...

Message posted on : 2007-12-02 - 07:12:00

Fascinating, passionate discussion here, folks. The one thing I'd add is that since the dawn of man, authority figures have used, often brutally, the power of deterrent. Hang one law breaker/ religious nut/ political opponent high in the public square, and you'll convince a thousand not to do the same thing. There's a sherrif in this town, mister! So keep quiet and toe the line.

When a drunk driver or drug dealer gets a tough sentence, the police chief and minister of justice solemnly yet proudly tell us on TV that they're sending a message.

When the teacher tells Johnny to go stand in the corner with a dunce cap on his head, she's sending a message.

When a judge gives a wrongdoer a "slap on the wrist," newspaper columnists and radio hosts wail that there's lawlessness in this town, and that they're sending the wrong message! We see this stuff everyday folks.

I am happy that Michael Vick and his associates are going to jail. Great, now we can go after the other 49,997 white, black and purple S.O.B.'s

ps: the moment Mark McGuire took the fifth amendment, he stopped being a hero. But atleast it happened quickly.

Posted By : Jets Forever

Unfortunately the link to your column isn't workin...

Message posted on : 2007-12-02 - 09:38:00

Unfortunately the link to your column isn't working for me so I wasn't able to check it out, but thanks for thinking of us and wishing us luck on exams!
Posted By : Lindsay

Hi Lindsay, thanks. Sorry about the link not work...

Message posted on : 2007-12-02 - 12:01:00

Hi Lindsay, thanks. Sorry about the link not working, but it now seems to be working again.
Posted By : Michael McCann

$5 million dollar damages award? That seems a bit ...

Message posted on : 2007-12-02 - 16:35:00

$5 million dollar damages award? That seems a bit excessive to me. Hopefully, the NCAA will appeal the damages amount and it will be reduced on appeal. $5 million award for alleged damage to reputation and "mental suffering" seems a bit excessive. If this were a negligence action and he had actual, provable damages then I could understand this more. Excessive jury verdicts are nothing but trouble for the legal system.
Posted By : John Biggs

Excellent article as always Professor McCann. I ex...

Message posted on : 2007-12-02 - 16:40:00

Excellent article as always Professor McCann. I expect the judge to give Vick the 18 month sentence in order to send a message. The judge's comments about the heinousness of the crimes and the cruelty exhibited by the defendants leads me to believe that he is not in the mood to be lenient on Vick. I think Vick will probably end up playing in the UFL when he does get out of prison and may one day sign with an NFL team if the commissioner doesn't lay the hammer down on him too hard.
Posted By : John Biggs

I agree man, sometimes instant replay just shouldn...

Message posted on : 2007-12-02 - 22:45:00

I agree man, sometimes instant replay just shouldn't be around, especially in college football.

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Posted By : Chris Michener

Josh,

Thanks for the comment. You raise a ...

Message posted on : 2007-12-03 - 08:28:00

Josh,

Thanks for the comment. You raise a good point about allegations that the NCAA violated its own bylaws. The problem I have is that this defamation case turned into a case about the legality of the NCAA's investigation process and authority to issue sanctions. I'm not convinced that the "pariah" and "parasite" references materially change the simple fact that the NCAA found that he violated its rules. If the NCAA had stated something like, "these results tend to put the integrity of Keller's timber business in question as well" then I think it's a different case entirely. From a policy standpoint, the question is whether somebody should be able to "go around" a determination made by a private organization by simply filing a defamation claim in court (which essentially creates a second hearing in front of a jury). I think the more appropriate analysis would be to address the NCAA's enforcement process from the standpoints of due process, arbitrary enforcement, ultra vires conduct in violation of its bylaws, etc.

Posted By : Rick Karcher

It's odd that this only the second time this semes...

Message posted on : 2007-12-03 - 14:26:00

It's odd that this only the second time this semester I have found time to check up on the SLB and that this time it is the week before exams.

Do you think judges handling future cases of animal abuse will look to this case for sentencing suggestions, or does this seem to be more of a personal preference of a certain judge? It seems evident that this judge takes animal cruelty quite seriously (while at odds with Vick's sympathizers), but would a personal belieft similar to that of Vick's sympathizers (it's just a dog) have an effect on another judge's sentencing in this matter?

Posted By : Anonymous

Howard: somewhat off topic, somewhat not: How do y...

Message posted on : 2007-12-04 - 09:36:00

Howard: somewhat off topic, somewhat not: How do you feel about speech such as the pink football locker room at Iowa? Is that "speech" and if so should it be protected? Is there a difference between that case and this one? If so, how? Just curious on your thoughts if you are willing.
Posted By : Anonymous

Howard - while I agree with your opinion and analy...

Message posted on : 2007-12-04 - 14:39:00

Howard - while I agree with your opinion and analysis, I am wondering whether an argument can be made that the fact that this speech is in the context of a school and schools have a compelling state interest in controlling speech on campus makes any difference here? Would it make a difference if the campus were on or off campus? Very interesting...
Posted By : Anonymous

Anon 9:36:

I suppose there is an expressive...

Message posted on : 2007-12-04 - 15:38:00

Anon 9:36:

I suppose there is an expressive component to the color you paint a room, just as there is an expressive component to what you where, etc. Although with Iowa, I am not sure if the pink is meant to send a message or whether it is meant to have a soothing effect on the players in the room (as colors such as pink supposedly have). In any event, it is the school's own speech (how it paints its own spaces), so it is protected as such.

Anon 2:39:

I do not think it changes anything. This is a college and, typically, colleges are subject to the same forum and speech rules as society at large. Which means there is no compelling interest in "controlling speech," a concept entirely antithetical to the First Amendment. The best a college can do, perhaps, is limit its forums only to students and not members of the outside community. Beyond that, though, the school is stuck with what the students choose to say.

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Message posted on : 2007-12-04 - 22:22:00

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Posted By : Omar Cruz

Howard,

I'm assuming that you and I could p...

Message posted on : 2007-12-05 - 06:52:00

Howard,

I'm assuming that you and I could prevent that sort of chant in our classroom lectures without violating the First Amendment. How do we legally draw lines in various situations on campus? Presumably, the same types of arguments would be made to justify preventing this chant in our classrooms -- i.e. it's disruptive, vulgar, unfair for the rest of the audience to be subject to it, etc. etc. You could say that chanting is just a part of sports, and it's not a part of the classroom, which doesn't sound like a well-structured legal argument. [Actually, chanting has been a part of my class -- I sometimes have the students chant the elements of various causes of action.]

Instead of a chant, suppose I ask a student in class why he or she disagrees with a judge's decision in a particular case, and the student says, "Because this judge is a f***ing a**hole!" Is that protected speech as well?

Posted By : Rick Karcher

We do it the same way we do it in society as a who...

Message posted on : 2007-12-05 - 09:12:00

We do it the same way we do it in society as a whole--look at the function and character of the space, along with the rules applied to that space.

The grandstand is a public forum--it has been opened to the public for the purposes of engaging in expression related to or not inconsistent with the game (i.e., expressive activity that does not interfere with or disrupt the action on the ice/field/court). These chants were consistent with the purposes for which the forum was opened and consistent with its use--cheering about the game and everything surrounding the game. And none of these chants in any way disrupted the game or the ability of fans to watch the game and engage in their own expression. The problem is that they offended some members of the audience and the government--but that is not a basis for halting or punishing otherwise protected speech in a public forum.

A classroom is (ordinarily--I suppose the individual professor could decide differently) a non-public forum. A group cheer interferes with or disrupts the ordinary operations of the space--it prevents the professor from conducting the class as she deems pedagogically appropriate. That does not mean chants are per se forbidden; it means it is up to the professor. But if (as you do) the professor has students chant the elements of a tort, that does not mean leave some of them free to start doing hockey chants because those hockey chants would interfere with the primary purpose of the space. But that interference arises because this chant prevents the professor from conducting the class as she seems fit.

Posted By : Howard Wasserman

I'm missing something. Isn't it just a matter of ...

Message posted on : 2007-12-05 - 09:48:00

I'm missing something. Isn't it just a matter of opinion about whether speech is "consistent with the purpose and use of the forum" or "disrupts the game or the ability of the fans to watch the game"? I can see a compelling argument that chanting D-I-L-D-O at a game has much less to do with the game than a student's yelling "Because the judge is a f***ing a***hole" has to do with the classroom. Some would argue that the expression in the classroom in an academic environment has much more value than chanting D-I-L-D-O at a game, not to mention that my classroom example would be much less offensive to the audience.

And you say that it's up to the individual professor and that the professor has the ability to conduct the classroom as he or she sees fit. But my question is, from a First Amendment standpoint, can I prevent a student from saying that in class? If so, why and how?

Posted By : Rick Karcher

I do not think it is a matter of opinion. Looking ...

Message posted on : 2007-12-05 - 12:31:00

I do not think it is a matter of opinion. Looking at the purpose of the forum, the reasons it has been opened and that people are given access, and the other governmental activities taking place in that space, does some expression fall within that defined purpose--is this speech consistent with that defined purpose and those other uses? Alternatively, will this speech disrupt the other activities taking place there? Those are the sorts of questions courts answer all the time.

Disruption/consistency must be defined in viewpoint-neutral terms. So speech is not rendered inconsistent with the forum or disruptive simply because some in the audience may not like what is being said. So the chants to which the administration objected were, at some level, related to the hockey game--the drop the puck chant on face-offs and putting something between the pipes. They thus are within the scope of the forum; they certainly do not disrupt the government's activities there--the hockey game itself. The problem is that people are offended by part of this message, which is not a viewpoint-neutral grounds for limiting the scope of the forum or the access to that forum.

The classroom is not a forum because it is not opened up for uninhibited debate. It has been opened up by me so I can teach today's lesson about Rule 15 of the Federal Rules of Civil Procedure. And I, as the professor and the possessor of academic freedom, control what gets said there as I see fit. Now, a pedagogically effective discussion will allow a wide range of views to be heard and possibly allow for some free-wheeling discussion (nothing gets the blood boiling quite like amending pleadings). I might reject the validity of the student's explanation for the case because it does not advance the discussion very far, although that has nothing to do with the use of profanity. But the point is that, because my classroom has not been opened for even general open discussion of Rule 15, it is not subject to any First Amendment analysis.

And note that if my analysis holds, the student in Rick's hypo would be protected in shouting "the judge was a fucking asshole" at the hockey game. But he would be subject to removal from the arena under the school's policy.

Posted By : Howard Wasserman

Whether speech is disruptive is a matter of opinio...

Message posted on : 2007-12-05 - 14:41:00

Whether speech is disruptive is a matter of opinion -- the relevant question is simply whether the university has the ability and desire to control it. The stadium and classroom examples are very similar, the only difference being the size of the forum (which I'll get to in a minute). In my classroom example, the university (the professor) desires to control student speech on the grounds that (the professor thinks) it's disruptive to others in the class, and the professor is has the ability to control it by some means, typically some element of fear, for example, the student might fear a bad grade in your class, or that you might kick the student out of your class that day. Similarly, in the stadium example, the university desires to control student speech because (the university thinks) it's disruptive to others in the stands, and the university wants to control it by some means, similarly, by kicking the student out of the game or as Ferris State is doing by making some notation on the student's transcript.

However, in the stadium example you say the university must be viewpoint-neutral, but in the classroom example you say that you don't have to be viewpoint-neutral (i.e. you said you get to control it as you see fit). I'm not understanding the justification for the different treatment from a First Amendment standpoint. In the classroom, the speech is debate; in the stadium the speech is cheering. You say "the classroom is not a forum because it is not opened up for uninhibited debate," but that's ONLY because you (the university) choose to control the debate (or the speech). We could say the same thing about the stadium, by saying that the university is controlling (or trying to control) the speech as well. And stadiums, similar to classrooms, are not open to the public -- in both situations the university grants people access based on paying for a ticket or school credit.

So here's the point. I don't think a student has a First Amendment right to say in class that a judge is a fucking asshole, nor do I think a fan has a First Amendment right to chant "D-I-L-D-O" at a stadium. The reason the student doesn't do that in class, and doesn't challenge your exercise of control in the classroom, is because there are various deterrent mechanisms (such as concerns regarding professionalism, concern that the professor or future colleagues will think less of them, concern over possibly receiving a bad grade, concern for being kicked out of class, etc.), all of which are not present in stadiums (i.e. so what if you get kicked out, so what if a security guard comes over and tells you to stop, so what if there is a school policy that says "no dildo comments"). I guess there is one mechanism that can be used to control vulgar speech at the stadium -- for example, if I was with my wife and young kids at a game and somebody next to us started chanting "dildo," that person would only say it one time. And if force needs to be used to stop it, as a torts professor, my advice is that you let him throw the first punch.

Posted By : Rick Karcher

There is a critical difference between disruption ...

Message posted on : 2007-12-05 - 15:27:00

There is a critical difference between disruption in the sense of annoyance/offense and disruption in the sense of actually preventing the primary purpose of the forum from going forward. The dildo chant in no way prevented the game from being played, nor did it prevent anyone else from watching the game or from engaging in their own cheering. It annoys and perhaps offends people--but that is not the type of "disruption" that the government can halt in defining or regulating a public forum.

If a student starts yelling or singing or making noise or making irrelevant and not-helpful comments in the class, she is doing more than annoying the professor and the other students in the class--she is preventing the class discussion/lesson from moving forward by taking up the limited time for the discussion. But that disruption comes not necessarily from any offense from the statements, but from their content. Despite what we say happens or should happen in a classroom, it is not a forum for uninhibited, robust, and wide-open debate and it simply cannot be, because nothing would be taught and learned on the subject at hand. A sports stadium is.

Posted By : Howard Wasserman

I'm not talking about yelling, screaming or singin...

Message posted on : 2007-12-05 - 17:45:00

I'm not talking about yelling, screaming or singing in the classroom. My example was that a student answers a question by calmly saying, "because the judge is a fucking asshole." You said if a student starts "making irrelevant and not-helpful comments in the class, she is doing more than annoying the professor and the other students in the class--she is preventing the class discussion/lesson from moving forward by taking up the limited time for the discussion."
Here, you are not being "viewpoint neutral" -- you are expressing your opinion that the content of some remarks in the classroom can be, to use your words, "irrelevant and non-helpful". Just like the university is saying that a comment about dildos at its sporting events is irrelevant and non-helpful (plus offensive).

Furthermore, my classroom example isn't "preventing the discussion/lesson from moving forward" just as the dildo comment isn't preventing the game from going forward. If a student said that about a judge, class wouldn't be cancelled and nobody would be offended. But in the dildo example, more people in the audience are going to be offended than people in the classroom with the judge comment.

By the way, I don't think you've answered my one question: Do you think there is First Amendment protection if a student says, "because the judge is a fucking asshole"?

Posted By : Rick Karcher

Howard - your argument crumbles as soon as you ack...

Message posted on : 2007-12-05 - 17:56:00

Howard - your argument crumbles as soon as you ackowledge that the fans would be unprotected by the First Amendment if the school punished them for taking off their clothes in the stadium and proclaiming "our nakedness constitutes our expression of love for the home team!"

The game would go on, other fans could cheer regardless of the display, and the actions of the crowd segment would be - expressly - expressive conduct that you contend is protected speech. But the notion that such activity, even though it survives your permissive test, really is protected speech is simply wrong.

Why not? There are a variety of reasons why not. As an initial matter, the First Amendment was enacted to protect the communication of ideas, not exhibitionism and profane cheers. Second, the public forum at issue has not been opened so that fans can outdo themselves in acting stupid; its been opened for purposes of sporting events. It is not a debating society. The analysis must be undertaken whenever the government opens a public forum - for example, when the capitol police open the capitol rotunda so that the public can view a former president lying in state, that does not mean that they cannot bar protesters from screaming in Nancy Reagan's face. That is true even where others can still engage in their own speech about what a great person the late president really was. And the actions of the naked jokesters, like the "dildo" jokesters, would be obscene under the circumstances, violate community standards, and be subject to regulation under Pacifica and its ilk.

In the end, the discussion is really a bit silly - this punk should take the whole experience as a lesson learned, and exercise some restraint and manners next time.

Posted By : Stokie

First: Doctrinally, prohibitions on nudity have be...

Message posted on : 2007-12-05 - 19:59:00

First: Doctrinally, prohibitions on nudity have been upheld as content-neutral restrictions (although courts have held in isolated cases that some limited expressive public nudity must be permitted). Accepting that doctrine for the moment, there is no question government can impose content-neutral regulations on speech in a public forum. But prohibitions on profanity outside of broadcasting (which is the only thing that Pacifica controls) are not content-neutral and neither is a regulation designed to prevent listeners from being offended.

The grandstand is opened so people can watch the game. But part of doing that is engaging in (loud) speech about the game and everything surrounding the game. So, in my view, that means the government has opened a full designated public forum. In defining the limits of that forum, it must do so in a viewpoint-neutral fashion. So even if it is a limited public forum given its narrowest scope of "speech about this hockey game" (and I would define it more broadly), the university cannot limit its scope to "non-profane and non-offensive" speech about this hockey game--that would be a viewpoint-discriminatory definition.

Once the forum has been defined as one for speech about this hockey game, any content-based restrictions on speech that falls within that scope must be narrowly tailored to serve a compelling interest. And preventing offense to listeners is not a compelling interest.

On the other hand, the classroom has not been opened for free and open discussion about anything. It has been opened up so a professor can lecture to students on a subject; it is not any sort of forum for student expression. It is either a non-forum or a non-public forum (I go back and forth on this). In either event, government can be as viewpoint-discriminatory as it likes in defining and regulating what occurs there. Unlike in a public forum, students have no First Amendment liberties in that classroom. And the reason is that an unlimited liberty of free and open discussion would, as a definitional matter, prevent the professor from conducting the class in the manner she sees fit. So we start from the premise that it is a non-public forum and the professor can control whatever gets said.

As to Rick's question about "the judge is a fucking asshole": It depends on where it is said. It is protected at the hockey arena. It is protected on the street corner for the same reason. It is not protected in the classroom because *nothing* is protected in that non-forum.

Posted By : Howard Wasserman

Once you acknowledge no First Amendment in the cla...

Message posted on : 2007-12-06 - 08:07:00

Once you acknowledge no First Amendment in the classroom, then I think your stadium argument fails. While it is expected that people will cheer in the stadium, it is also clearly expected that a student will give a response to a question from the professor. The stadium is not a street corner, because the university charges admission just as it charges the student in the classroom. You haven't convinced me why (from a policy standpoint or otherwise) the university must be viewpoint-neutral in the stadium but not the classroom.

If anything, I think the First Amendment protection in the classroom example is stronger than in the stadium. Unlike the stadium, the classroom contains only adults in a purely academic environment who learn by exchanging their views and opinions (one of which may be an opinion about a judge).

Posted By : Rick Karcher

The reason the student has no *right* to speak in ...

Message posted on : 2007-12-06 - 10:11:00

The reason the student has no *right* to speak in the classroom is because the classroom has not been opened for student speech. It has been opened for the professor to teach her class. If a professor wanted to do nothing but lecture and never allowed students to ask or say anything, then students never would say a word and the class (the purpose of the forum) moves on. This is pedagogically ineffective, but it is perfectly constitutional.

The arena has been opened up for speech by members of the public; fans are given access to the arena grandstand to watch the game and cheering is part of that. The arena is not a street corner. But it is analyzed and subject to the same First Amendment rules as if it were a street corner. That is what a "designated public forum" means--government has opened its spaces up for speech by members of the public and that space becomes the equivalent of a street corner. The fact that the university charges for access does not affect the analysis. Government can charge for access to a public forum, so long as the amounts charged are "reasonable" (whatever that means) and not tied to the content of the speech.

Posted By : Howard Wasserman

Howard, Thank You for Posting this about me. I hav...

Message posted on : 2007-12-06 - 10:36:00

Howard, Thank You for Posting this about me. I have recieved a letter from the office of Student Conduct and the following are the policies that I supossedly violated:

Disorderly Conduct: Disorderly conduct that interferes with teaching, research, administration, or other University or University-authorized activity or that disrupts the university environment either during an event or incident or as a result of an event or incident.

Failure to Comply: Failure to comply with the directions of authorized University Officials in the performance of their duties, failure to identify oneself when requested to do so, failure to comply with reasonable requests of other students, or failure to comply with the terms of the disciplinary sanction.

Lewd, Indecent, Obscene: The University may discipline a student for lewd, indecent, or obscene conduct.

I was wondering if you could provide any information that would prove that I did not violate these policies.

Posted By : Anonymous

I am not licensed in Michigan and am not able to g...

Message posted on : 2007-12-06 - 12:47:00

I am not licensed in Michigan and am not able to give legal advice. I also do not know enough about the facts to get into specific defenses to any of this. Sorry I cannot be more help, especially not in this (non-public) forum.
Posted By : Howard Wasserman

Swear words reputedly are among the oldest words i...

Message posted on : 2007-12-07 - 09:31:00

Swear words reputedly are among the oldest words in the English language.

Peter

Posted By : Anonymous

i don't get why baseball clubs won't allow their p...

Message posted on : 2007-12-07 - 10:55:00

i don't get why baseball clubs won't allow their players to ride a motorcycle. I mean it is a legal requirement that they all hold valid motorbike insurance isn't it? this surely means then, that should a freak accident occur, the club will receive some compensation should the player be unable to play/work...
Posted By : Anonymous

I think it's absurd. I don't see anything wrong w...

Message posted on : 2007-12-07 - 16:41:00

I think it's absurd. I don't see anything wrong with the use of the Fighting Sioux name. Schools pick their names that they think will be respected. I don't know why their is such a big fuss over the use of Indian names, as long as they aren't doing anything derogatory (such as the Atlanta Braves Chop). The question I have is if this is offensive, why hasn't anyone said anything about Fighting Irish? Wouldn't that be considered offensive to people of Irish heritage?
Posted By : Anonymous

Even though i think this case was decided wrong, w...

Message posted on : 2007-12-09 - 08:47:00

Even though i think this case was decided wrong, won't the video game company have a decent argument by making the same argument that was made in the Tiger Woods Master's argument?

-aaron

Posted By : Anonymous

Dear Tim, Congratulations to you on winning the He...

Message posted on : 2007-12-09 - 11:03:00

Dear Tim, Congratulations to you on winning the Heisman! Sincerely, Jeremy Bloom.
Posted By : Anonymous

The Heisman voters finaly got it right... an under...

Message posted on : 2007-12-09 - 12:03:00

The Heisman voters finaly got it right... an underclassman (gasp!) could actually be the best player in the NCAA! And I too would like to extend my congratulations to Mr Tebow on a well deserved award (well, another well deserved award actually).

As far as the ROP and NCAA athletes go... The "non-profit" giant that is the NCAA has made a long standing practice of robbing these athletes blind under the threat of losing eligibility, it's time for a change.

Anon 8:47

While I certainly think the Tiger Woods case was decided in error (it was pretty damn clear that the artist violated Tiger's ROP), I see some distinctions between the woods case and the video games.

In the Woods case, it came down to tigers likeness v. the artistry of the painter, in other words, the image of Tiger v. artistic creation of the painting. While I disagree with the outcome, there is at least an argument to be made in this case that the brush strokes of the artist makes the painting, not the subject. And lets not forget that the judges in the Woods case also made it clear that Tiger "had enough money already"... How this is a compelling argument in a ROP suit I will never understand, but it was also used in the MLB Advanced Media case, so I guess I'm just not as experienced in legal arguments as these impartial judges...(Add sarcastic remark here...)

Could you claim the same artist/creation argument for a NCAA video game? I think not! Nobody, and I mean Nobody, would purchase an NCAA football game if they could not recognice the players! Thats what makes the game, the players and the teams, knowing that you can replay the Ohio state-Florida national championship game as many times as you want, scoring even more points in your living room than the Gators did on the field(wait... is that even possible???)

The bottom line is that the video game has nothing without trading on the likeness of the players, while a painting can at least be said to have some sort of First Amendment creation element.


Once again, on behalf of the entire GatorNation:

Tim, you make us proud to be Gator's, proud to bleed orange and blue!

Now take all your energy to Orlando and show yet another Big Ten team how football is supposed to be played!

Posted By : Jimmy H

There is a lot of language in the Tiger Woods case...

Message posted on : 2007-12-09 - 17:45:00

There is a lot of language in the Tiger Woods case on the First Amendment issue tending to show that the court was concerned about the "expressive" nature of a painting. So I don't see that case to be on point with video game use. Video game use is probably more like the Vanna White case, in which the court found that the use of mechanical robots clearly resembling Vanna constituted a violation.

By the way, today's Florida Times-Union has a huge advertisement the size of 1/2 an entire newspaper page with Tebow's name and picture. The advertisement offers for sale a glossy 12x18 full color collectible reprint of both today's front page announcing Tebow's Heisman Trophy win (which takes up about 80% of the front page of the paper) and a page from the Monday, Dec. 10 sports section -- "Tebow's Place in Heisman History". The ad offers the reprints at a price of $14.95 each or both for $25.

Posted By : Rick Karcher

Also, to add to what Prof Karcher just mentioned r...

Message posted on : 2007-12-09 - 21:07:00

Also, to add to what Prof Karcher just mentioned regarding the expressive nature of a painting, some states ROP statute expressly excludes one, single, original work of fine art such as a painting from the reach of the ROP (Illinois is a good example of this if my memory is correct).

The Tebow - Times Union example sounds alot like like the Montana v. San Jose Mercury News case.

of course we know the outcome of that case... the posters protected as... ding ding ding!!! thats right... NEWSWORTHY! and if thats not enough to convince us that the media has an absolute right to make money off of the sweat and blood of others... the court added this little tidbit

"...a newspaper has a constitutional right to promote itself by reproducing its originally protected articles or photographs.�

Oh well, I could go on all day, but I suppose I should get back to the paperwork mounting on my desk....

Posted By : Jimmy H

I too want to congratulate you Tim on winning the ...

Message posted on : 2007-12-10 - 01:42:00

I too want to congratulate you Tim on winning the Heisman Trophy. The voter really got it right!

By the way you also have a great name! Tim Tebow, it just rolls off you tongue. That's great. You will be remembered by people who don't even follow sports. You join others with great names, like Tiger, Magic, Shak, and Payton.

Good luck next season.

elena

Posted By : elena

There is no proof that Mark McGwire took any illeg...

Message posted on : 2007-12-10 - 02:21:00

There is no proof that Mark McGwire took any illegal substances. NO PROOF. They tried, and could not find any evidence. He took androstenedione which was no made illegal until the US Senate passed a bill 10-8-04 no. 2195 and President Bush signed it. Unitl that date, it could be manufactored, sold and taken. This is long after Mark had retired from MLB.

This is pretty much a hit piece on any white person you can think of. Bonds lied, so did Martha Stweart, so did President Clinton (remember he was impeached). Keifer Sutherland got 2 months for a DUI while on probation. Brandy, got zero after causing the death of a man due to her hitting him into traffic.

Vick was not that generous. They have not provided any financial records (IRS) that report his donations. There was one--after the VA Tech disaster, Vick took the time for a photo op with a check for $10,000! This from a man that was making $100 million! My family donated $10,000 for the Katrina victims and we don't even make $100,000 per year. So please, check you facts on his generosity.

Posted By : elena

I read the Alan Milstein article. It was a real ra...

Message posted on : 2007-12-10 - 02:42:00

I read the Alan Milstein article. It was a real racist hit piece. I have no respect for someone who cannot argue their position without having to play the race car. I think most of us are beyond the "If it doesn't fit, you can't convict."

Did Vick confess? Did he understand? Yes, and yes. Who ratted him out? Black friends. Now Vick has agreed to be an informant. How is that white America's fault? Vick knew it was wrong, he tried to hide his involvement. I saw a video clip where Vick looks into the camera and says something about "I can do anything, people love me." Pretty arrogant.

BONDS IS IN TROUBLE BECAUSE HE LIED. With all his money, the man has no sense. Of course Martha Stewart and Bill Clinton also lied, and so did a bunch from ENRON.

Mr. Milstein tries to sneak in a comment about Mark McGwire. Of couse he does not mention that Mr. McGwire invoked the 5th, as our US Constitute allows us to do.

Posted By : elena

Jimmy,

Good point about the Montana case. ...

Message posted on : 2007-12-10 - 09:17:00

Jimmy,

Good point about the Montana case. Perhaps a court would distinguish that case by saying (1) Tebow doesn't make any money like Montana, so we should feel more sorry for him like we did when Rosa Parks' name was used in a song; or (2) Tebow's reprint is much more individualized in that it pertains to only his personal achievement, whereas Montana's reprint was more about the Super Bowl than it was about his personal achievement.

But in any event, I mentioned the reprint ad because I think the reprint violates Bylaw 12.5.2.2, which requires Tebow and Florida to send the Times-Union a nasty cease-and-desist letter?

Posted By : Rick Karcher

Message posted on : 2007-12-10 - 11:11:00

This comment has been removed by the author.
Posted By : Jimmy H

Tim,

very interesting article. I work with...

Message posted on : 2007-12-10 - 11:12:00

Tim,

very interesting article. I work with ERISA on a daily basis and it definately made for some entertaining reading.

Posted By : Jimmy H

Michael Vick got off easy because 23 months with p...

Message posted on : 2007-12-10 - 13:16:00

Michael Vick got off easy because 23 months with parole is way too leniant for a guy who was involved in illegal activities while being looked upon as a role model for little boys everywhere.
Posted By : redneck

has anyone ever made the argument that incentive-l...

Message posted on : 2007-12-10 - 13:38:00

has anyone ever made the argument that incentive-laden clauses in baseball player contracts are illusory?

What if a pitcher logged 195 innings, and then was given a "break," when 200 innings would guarantee him another mill?

or plate appearance clauses for hitters?

-A

Posted By : Anonymous

The Preakness is the second and shortest leg in Am...

Message posted on : 2007-12-10 - 16:12:00

The Preakness is the second and shortest leg in American thoroughbred racing's Triple Crown and almost always attracts the Kentucky Derby winner, some of the other horses that ran in the Derby, sportsbook, and often a few horses that did not start in the Derby. (The phrase "Triple Crown" was not applied to this series of races until the 1930s.) It is followed by the third leg, the Belmont Stakes. http://www.enterbet.com
Posted By : Diana

Ticket resale is the act of reselling tickets for ...

Message posted on : 2007-12-10 - 16:29:00

Ticket resale is the act of reselling tickets for admission to events. In British English, one who resells tickets is often called a tout, and in American English and Australian English, such a person is often called a scalper, and the practice is called scalping. However, these are colloquial terms used to refer to individuals selling tickets on the street, outside a venue or event. Established companies in the business of reselling tickets are called ticket brokers. sportsbook, Registered businesses reselling tickets to popular events are bound by laws, such as local and state laws in the United States, and must operate within those laws to maintain their status as a legitimate business. Ticket resale is a form of arbitrage that arises when the amount demanded at the sale price exceeds the amount supplied (that is, when event organizers charge less than the equilibrium prices for the tickets).
http://www.enterbet.com

Posted By : Diana

In my personal opinion, Al Sharpton is a racial ra...

Message posted on : 2007-12-10 - 22:38:00

In my personal opinion, Al Sharpton is a racial racketeer.
Posted By : Lou Pickney

Dog fighting has been going on for many years. It'...

Message posted on : 2007-12-10 - 22:43:00

Dog fighting has been going on for many years. It's a shame that Vick has to do 23 months for this, there are much bigger issues happening in this world. We need to stop focusing in on something that in reality should have been a slap on the wrist.
Maybe 6 months and some community time at best.

Posted By : laepoca

Thank you, Jimmy.

Message posted on : 2007-12-11 - 15:28:00

Thank you, Jimmy.
Posted By : Tim Epstein

What's the purpose of the report? That's what I'v...

Message posted on : 2007-12-11 - 17:09:00

What's the purpose of the report? That's what I've been wondering for the past 20 months. The arbitrator's decision on the grievance filed by the union to overturn Jose Guillen's 15 day suspension will be a key indicator of whether Mitchell's report ends up being much to do about nothing.
Posted By : Rick Karcher

I'm sorry folks, but a professional athlete in thi...

Message posted on : 2007-12-11 - 18:02:00

I'm sorry folks, but a professional athlete in this country is someone who young children look up to and perhaps aspire to or at very least make efforts to emulate. Michael Vick regardless of the cultural environment or other events surrounding his youth was a college graduate and purportedly an educated man who would have been able to distinguish between right and wrong. The part of this story that really bothers me given his celebrity athlete, "role model" and ridiculously excessive salary status is the fact that he neglected his responsibilities to the fans who support him and the children who emulate him and the franchise who pays him to act in a responsible manner that should not tarnish his image or that of the team or sport.

Mainstream media and commentators throughout the Saints vs. Atlanta Monday night game took every opportunity to provide us with their input about poor Michael Vick's tragic tale and his bleak but possible future with the NFL after completion of his PRISON sentence. Now I could be wrong, but if professional athletes are supposed to mimic role models that we all would want our own kids to aspire to be like then WHY would anyone want their child to grow up to be a CONVICTED FELON serving time in a FEDERAL PRISON? This point seems to lack the emphasis by mainstream media types that I feel necessary. All of the stories that I listened to and read about Michael Vick reported that he was being sentenced in a Federal Prison but failed to emphasize the fact that he is now a convicted felon. How many convicted felons are currently or have previously played on professional football teams and why are they allowed? A normal person with a criminal conviction has difficulty getting a job working a a local McDonalds. I for one would not want my child thinking it is ok to commit a felony crime and there not be lifelong and life altering repercussions. Is the crime that Michael Vick committed significant when compared to murder or sexual assault or some other violent offense? Probably not, and it doesn't help that an organization with as much political influence as PETA was behind the scenes driving the issue, nevertheless he was indicted, convicted and sentenced...DONE!

The question is whether or not the NFL and the American public are willing to accept that a convicted felon can be raised to the status of a professional athletic icon. If you can answer yes to this question then you should seriously question the accuracy of your own moral compass. Michael Vick is now a convicted felon serving time in a federal prison for committing an overt act of utter stupidity. His status as a professional athlete should no longer be in question regardless of his past or potential future contributions to the sport. He has failed his fans, the Falcons organization and the NFL by not living up to the standards of an athlete being paid $130M, and I don't care what color, sex, ethnicity or religion he happens to be. What he did was wrong, both morally and legally. He lied about it and was convicted for it... end of story. His future in the NFL should be over...next chapter.

Posted By : Randy

If I'm on the Chicago City Council, that $19.8mill...

Message posted on : 2007-12-12 - 00:45:00

If I'm on the Chicago City Council, that $19.8million offer would be DOA. I'd call Sharpton's bluff--or, if it DOES pass, attach an amendment to take a chunk and pay the New York State plaintiffs their money for their lawsuit(s) against Sharpton et al (who I last heard had NOT paid a cent) . . . say, 80-90%. Then I'd add a second amendment that makes sure no money goes to Sharpton, his cronies, or any group associated with Sharpton.
Posted By : Anonymous

What I have read on Vick's sentance does not seem ...

Message posted on : 2007-12-12 - 01:08:00

What I have read on Vick's sentance does not seem harsh. I have read that from the very beginning on Monday, Judge Hudson was impatient with Vick and Billy Martin. Hudson interrupted Martin when he started to say that Vick had taken responsibility. Hudson then described at least 2 statements and the dates of statements Vick had made. Hudson demanded to know from Vick how he had denied a personal role in the killing on 4-2007 (later admitted it after told the polygraph and other defendants found him not truthful)and also lied to an FBI agent about his marijuana use.

Vick had been given a polygraph test and found not truthful and then admitted more. The federal prosecutor also said that Vick had lied on 4 other issues.

The prosecutor then would not recommend a reduction on the sentence Vick would normally get for taking responsibility.

It seems to me that you are very sympathetic to Michael Vick, but an average person would be surprised that Judge Hudson did not throw the book at him and give him 60 months.

I guess Michael Vick does not get it. YOU DON'T LIE to either a judge or FBI agents or any law enforcement officers.

Either that, or Billy Maritn did not give him very sound legal advice. Even Mr. Martin tried to tell the judge something about Vick "self-medicating" when talking about his marijuana use!

It seems that Vick continues to hurt himself at every turn. How on earth can anyone believe him? I have lost count how many times Vick has said "I've taken full responsibility."

Posted By : elena

If I remember correctly, every contract has an imp...

Message posted on : 2007-12-12 - 04:19:00

If I remember correctly, every contract has an implied warranty of good faith and fair dealing. If the team intentionally sits the player so as not to pay the incentive and the player was ready, willing, and able to go to the plate or take the mound then this would be a breach of contract by the team and the player could bring suit to collect the damages which would be the incentive bonus.
Posted By : Jonathan Kraut

This is a sad situation, and prayer is in order fo...

Message posted on : 2007-12-12 - 07:37:00

This is a sad situation, and prayer is in order for Michael Vick and his family. It is amazing to see how many people want him to suffer, and no doubt he is suffering for his mistakes.

However, the last time I checked, God Almighty was the final judge, and still is. The judge in the court case has already made his ruling, and now all we can do is hope that Vick's remorse is genuine and that he is given a second chance to rebuild his life as we all deserve. Whether it is in the NFL or some other profession, I hope that he gets that chance.

The Lord is a forgiving God, and as long as folk repent of their sins, and turn away from evil, nothing anyone can say will make any difference at the end.

Being a public figure has its price, and because he is a talented, young black man, sometimes there is a lot of hatred and envy. Even if he were living a so called "perfect" life, young black men are targeted more precisely, and I know this from personal experience, because I gave birth to three of them, and believe me, it is not easy.

Nevertheless, this was a horrible mistake, and I am sure he and others will learn from this because the price is very high. We can't bring the deceased animals back, nor erase the past or future pain and suffering of the animals that were affected. However, I hope the dogs are taken care of with the $1 million dollars that has been set aside for them, and I hope everyone who fights dogs, chickens, or hunt any other animal for sport are encouraged to stop as well.

Even human boxing matches are barbaric, and after a few hits, one can question whether boxers have the mental capacity to make the decision to continue in this "sport", other than for the money.

Lastly, if as person does not have the time and affection for pets and animals in general, then they should leave them alone. There are plenty of people who love animals who are willing to take care of them and ensure that they are nurtured.

I am not an animal rights person, but believe in the rights of every living creature, and with humans supposedly being the most intelligent, then it is our responsibility to ensure that all God's creatures are treated with dignity. I believe that Vick and his family and friends have learned this, however painfully, first hand.

Posted By : Anonymous

I'm surprised litigation has never erupted out in ...

Message posted on : 2007-12-12 - 07:55:00

I'm surprised litigation has never erupted out in a situation like this...

Lets say Johan Santana had a clause in his contract that would kick in with 35 starts, and he was due to start the final Sunday of the year. However, because the Twins made the post-season, they are going to skip his final start in preparation of game 1 of the ALDS.

All comments are welcome, especially Karcher because I know he is passionate about these things.

-A

Posted By : Anonymous

Marc:

If you read Howard Bryant's espn stor...

Message posted on : 2007-12-12 - 15:26:00

Marc:

If you read Howard Bryant's espn story, it quotes unnamed team executives expressing some concern that they were potentially being set-up for their failure to take action. So while I doubt any owners are going to take a hit, GMs and other baseball execs may be another story.

Once someone holds certain high federal offices, they are, for better or worse, identified by that title forever, even after they leave the position. Congressional Republicans kept referring to Ken Starr as "Judge" when he was the I/C investigating the Lewinsky affair--about the most un-judgelike activity one can imagine. Same thing w/ Joe Wilson (Valerie Plame's wife): Still called "Ambassador," even though he currently is not serving as one.

Posted By : Howard Wasserman

Howard:

I had not read Howard Bryant's colu...

Message posted on : 2007-12-12 - 18:06:00

Howard:

I had not read Howard Bryant's column yet, but I will take a look. If the Mitchell Report ultimately names any executives in the commissioner's office, I would take this as a true sign of independence. We'll see what happens soon enough.

To my Seton Hall students, thanks to Mr. Mitchell, tomorrow will bring an entirely new meaning to the idea of "reading days."

Posted By : Marc Edelman

Do I detect a little bias in that post?

Message posted on : 2007-12-12 - 20:33:00

Do I detect a little bias in that post?
Posted By : Chris Smith

Looking at it objectively, I don't see any bias. :...

Message posted on : 2007-12-12 - 21:25:00

Looking at it objectively, I don't see any bias. :)
Posted By : Michael McCann

I don't see what's wrong with finding an individua...

Message posted on : 2007-12-13 - 19:15:00

I don't see what's wrong with finding an individual guilty based solely on anonymous, biased testimony without offering the accused the chance to face (and cross examine)his accuser - It happens all time these days...in military tribunals.
Posted By : George W. Bush

MLB.com, the official mouthpiece of major league b...

Message posted on : 2007-12-13 - 19:46:00

MLB.com, the official mouthpiece of major league baseball, has extracted the player names from the 400 page document and included them in a list at a separate link.

This way the media doesn't have to actually read the report or recommendations. They get what they really want for a sexy story

Posted By : ChapelHeel

In terms of REAL importance why doesn't the govern...

Message posted on : 2007-12-13 - 19:55:00

In terms of REAL importance why doesn't the government, Mitchell and the rest do an inquiry on Politicians hiring hookers, driving drunk, taking bribes, etc. While this baseball steroid scandal is a problem shouldn't we, as citizens, be MORE concerned with the behavior of ALL politicians? Or is this just a distraction by Dems/Repub to focus attention away from themselves?

Would you rather have a beer with Barry Bonds or drive across a bridge with Ted Kennedy?

Posted By : Anonymous

This whole report is part of a right-wing-conspira...

Message posted on : 2007-12-13 - 21:22:00

This whole report is part of a right-wing-conspiracy. Bill is right, it depends on what is is.
Posted By : Hillary Clinton

Time Magazine's Sean Gregory raises some great que...

Message posted on : 2007-12-13 - 23:15:00

Time Magazine's Sean Gregory raises some great questions regarding Mitchell's report: http://www.time.com/time/nation/article/0,8599,1694552,00.html. He also probes what I think is the most important question of all (and I have previously posted on it) -- whether Selig can legally suspend anybody on the basis of non-positive test evidence contained in Mitchell's report.

Also, it has been reported that Congress has asked Mitchell, Fehr and Selig to testify at a hearing next Tuesday.

Posted By : Rick Karcher

I am likewise underwhelmed.

You're the Spor...

Message posted on : 2007-12-14 - 03:40:00

I am likewise underwhelmed.

You're the Sports Law Blogger. I wish you would post on the legality of some of these PEDs.

As you allude to, androstenedione was sold as a food supplement in health stores. It was made illegal in the Anabolic Steroid Act of 2004.The designer steroid at the center of the BALCO scandal, THG, was only banned in the same Act. Anabolic steriods in general were legal until 1990. It was the Anabolic Steroid Act of 1990 which prompted Fay Vincent's infamous memo. (Yep, the original steroid beneficiaries, the Bash Brothers in Oakland, were perfectly legal and not in violation of MLB rules.)

Posted By : Anonymous

i totally agree that this report was much ado abou...

Message posted on : 2007-12-14 - 09:12:00

i totally agree that this report was much ado about nothing. i could have prepared the same report reading old newspaper articles in less time and for less money than mitchell's law firm received. it's funny how mitchell, connected to the red sox, spends a lot of time trying to embarras the biggest enemy of red sox nation- roger clemens. it was also wrong to out marginal players who retired years ago. for what purpose? baseball should be ashamed of itself, not for the steroids issue but for how much time and money was spent on a report that said nothing.
Posted By : john jones

Good points Alan, I agree with most of you said in...

Message posted on : 2007-12-14 - 09:38:00

Good points Alan, I agree with most of you said in this post.

I've been hearing alot about the "leaked" report that was reported on Ch 4 (NBC new york I believe). They were talking about it on the radio stations in tampa this morning and I've seen alot of blogging activity on it. Has anyone seen a credible source as to what happened here? Apparently their "leaked" report which they disclosed well before the actual report was presented included the names of some big time players that were not mentioned in the actual report, including Albert Pujols.

Any thoughts on liability here? It seems to me they should be held accountable for "outing" players as steroid users when they in fact were not even part of the mitchel report (which is based on little evidence on ots own).

Posted By : Jimmy H

Liability is tough when public figures are involve...

Message posted on : 2007-12-14 - 10:20:00

Liability is tough when public figures are involved. It is amazing to look at the media reports the day after, most continuing the hype that Mitchell and DLA Piper have unearthed startling revelations. All of three players tested positive last year, none of them stars. To hold more hearings on this issue is absurd, particularly when Congress continues to ignore issues such as the NCAA's exploitation of amateur athletes.
Alan Milstein

Posted By : Alan Milstein

Thanks for this post! I'm taking a Sports Law clas...

Message posted on : 2007-12-14 - 13:35:00

Thanks for this post! I'm taking a Sports Law class in the undergraduate level as a Sport Management major at University of Michigan. This case was on our last test and I didn't remember talking about it so thanks to this post, I am now ready for the final this evening!

Plus, Rodney Fort is actually one of my professors this semester. He now teaches Sports Economics at U of M. Go Blue!

Posted By : Anonymous

Theo Nathan Epstein (born December 29, 1973 in New...

Message posted on : 2007-12-14 - 15:03:00

Theo Nathan Epstein (born December 29, 1973 in New York City) is the Executive Vice President/General Manager of the Boston Red Sox. In November 2002, the Red Sox made him the youngest GM in the history of Major League Baseball by hiring him at the age of 28. sportsbook, In 2004 he engineered the first World Series championship by the Red Sox in 86 years and a second in the 2007 season. Epstein resigned in October 2005, but was rehired as GM and Executive Vice President on January 24, 2006. http://www.enterbet.com
Posted By : Diana

Howard,

This report reads like a term paper...

Message posted on : 2007-12-14 - 16:15:00

Howard,

This report reads like a term paper that a group of our students could draft. A considerable portion of the document involves information from public sources. It does provides a detailed summary of the history of attempts to regulate and control performance-enhancing drugs, but it digests information from news articles implicating certain players -- nothing new there. To be fair, the lack of cooperation of the players contributed to this problem.

The Radomski information is the only portion that has any significant new information. The recommendations are sensible, but quite general.

Posted By : Mark Conrad

Didn't the Falcons perform in the same manner as A...

Message posted on : 2007-12-14 - 19:27:00

Didn't the Falcons perform in the same manner as Arkansas, when they hired Petrino away from his 10-year contract with Louisville?
Posted By : SkeptiSys

It wasn't exactly the same. Louisville gave Atlant...

Message posted on : 2007-12-15 - 10:26:00

It wasn't exactly the same. Louisville gave Atlanta permission to talk to Petrino while he was under contract. Arkansas never sought nor received permission from Atlanta. The official line is that Arkansas waited until Petrino "resigned" on Tuesday morning before negotiating a contract later that day. But there was almost certainly contact between Arkansas and Petrino (or Petrino's agent) well before that, as evidenced by Jerry Jones's call to Atlanta owner Arthur Blank a week ago inquiring about permission for Arkansas to talk to Petrino.
Posted By : Skip

The only thing that troubles me is if a named play...

Message posted on : 2007-12-15 - 11:49:00

The only thing that troubles me is if a named player tries to sue for either libel or slander (the latter seems to be coming up as regards the naming of Clemens), the bar is raised so high that the player(s) have nearly no hope of clearing their name. Fading into the background doesn't seem to work either.

Or in other words:

>> "When did you stop beating your wife/significant other?"
How do you prove a negative (i.e. no testing, legal use until a certain year [steroids OTC outlawed in 2004 according to another post], etc.)? ; and,

>> "[Which office] do I go to get my reputation back?" (Reagan's Labor Secretary Ray Donovan, on the day in 1987 that he was cleared by a jury of fraud and larceny charges).

Posted By : Anonymous

First, it should be pointed out, neither Bonds nor...

Message posted on : 2007-12-15 - 15:08:00

First, it should be pointed out, neither Bonds nor Clemens ever tested positive for steroids. Second, it is naive to suggest race has nothing to do with the prosecution of Bonds. The apt comparison is not to Clemens but to McGwire, the great white hope who saved baseball and who had a fraction of the skills of Barry Bonds. He testified under oath before Congress, was asked if he took steroids, refused to answer, and was not pressed. But for this Justice Department to prosecute Bonds for perjury, when the former attorney general himself was less than candid when he testified before congress is obscene. Will the President commute the sentence of Bonds like he did for Libby who was convicted of perjury, although not about something as important as baseball, just about matters which led the country into an unjust war.
Alan Milstein

Posted By : Anonymous

Since it's a state school, can it be sued for mone...

Message posted on : 2007-12-15 - 16:39:00

Since it's a state school, can it be sued for monetary damages or would the Alden case / sovereign immunity apply?

Do states normally just consent?

Thank you for helping me study con law.

Posted By : Anonymous

I think there are some significant differences in ...

Message posted on : 2007-12-15 - 17:47:00

I think there are some significant differences in how the Government treated Clemens and Bonds. The Government choose to prosecute Barry's trainer and thus attempt to set get Barry to ether admit his use to a Grand Jury or set a purjury trap for Barry before the Grand Jury by denying only him access to the evidance of his use. On the other hand the Government is choosing to not prosecute Clemens' trainer (but instead have him cooperate with Mitchell's investigation). Thus the government is not attempting to get Clemens to testify before a Grand Jury without access to the evidance against him as the did Bonds. The government is not requiring Clemens to either admit his use or be subject to the risk of purjury changes as the government required Bonds to do.

Bottom line, it is not just Baseball, the Media, and the Fans that have treated Clemens and Bonds differently. The government is every bit as guilty of this discrimination as well.

Posted By : giantsrainman

What about a basic claim for breach of contract. ...

Message posted on : 2007-12-15 - 18:33:00

What about a basic claim for breach of contract. Damages or negative injunction? Injunction against Arkansas (Fairbanks case)
Posted By : Anonymous

A basic breach of contract claim would make sense,...

Message posted on : 2007-12-15 - 20:23:00

A basic breach of contract claim would make sense, except that projecting damages is very difficult in personal services contract breach cases. I did a law review article many years ago about the difficulties of courts to apply actual damages or even consequential damages because of the lack of forseeability. Regarding the injunction, I'm not sure that a court would grant it, since Arkansas is not direct competitor to an NFL team. Also, one has to show the coach is "unique" which is harder for some courts than others. The tort action frees up more damages, and opens up the possiblity of a jury rendering punitive damages.
Posted By : Mark Conrad

First, I do not care that neither Bonds nor Clemen...

Message posted on : 2007-12-15 - 20:46:00

First, I do not care that neither Bonds nor Clemens has tested positive; a positive test is not the only evidence that can establish that someone used steroids.

Second, I agree that the members of the House Committee screwed up by not pushing McGwire to either answer questions or actually assert his 5th Amendment privilege on pain of Contempt charges. But that likely is more a product of the disorganized, meaningless circus that was those hearings than the color of McGwire's skin. In any event, the decision to pursue Bonds was made by an AUSA (and his supervisors) in San Francisco; any contempt charges would have to have come from the House itself as a starting point. So the decision makers in each are not necessarily the same.

Third, and relatedly, I reject the idea that the US Attorney in San Francisco somehow lacks the legal or moral authority to pursue criminal charges, including charges for perjury, because Alberto Gonzales, et al., lied and/or broke the law. Again, it is up to Congress to initiate a process if it believes Gonzales perjured himself (a question which is beyond the scope of this forum).

Finally, it may be that the treatment of Bonds vis a vis McGwire reflected racial bias. Have not really thought about it and I know others have. I was responding here only to the argument that Bonds no longer should be prosecuted for perjury because Clemens also used steroids.

Posted By : Howard Wasserman

One more difference (of which I am reminded by Jay...

Message posted on : 2007-12-15 - 23:13:00

One more difference (of which I am reminded by Jayson Stark here:

http://sports.espn.go.com/mlb/columns/story?columnist=stark_jayson&id=3156189

McNamee and BALCO are not at equivalents. Bonds's version of McNamee (personal trainer cum hanger-on) is Greg Anderson. And the government pushed Anderson to make a deal and talk, just as it did Anderson. The difference: McNamee talked, Anderson would not talk and was willing to go to jail.

Posted By : Howard Wasserman

I read your blog everyday thanks to my trusty RSS ...

Message posted on : 2007-12-16 - 00:21:00

I read your blog everyday thanks to my trusty RSS feed and for the most part I agree with your articles, however here I've found that your misguided in the execution of the law. In 2004, Bush in his 2004 state of the union said that he wanted to get steroids out of baseball. One has to wonder why Bonds and not all parties have been chosen to be singled out and been given the option, out yourself or be outed through prosecution. That is essentially the fault that I and many find wrong, that Bonds not Clemens, McGuire, etc, etc, was given that ultimatum.

Basically, people have a moral dilemma with the Bonds vs. Clemens debate. Yes we understand that the law has only the morals of the wording in which its written, however the government is supposed to express the will of the people, and by openly comparing this case against other high profile cases that the federal government has prosecuted under this administration, one has to wonder if this case truly serves in the best interest of the people. Really, is lying about using steroids worse than outing a CIA agent. Or is lying about using steroids worse than abusing stock options. Rationale people would say NO.

Furthermore:

1.) Bond's grand jury information was leaked to the press, and the one's who used that grand jury information got off scot free while making millions of dollars with their book. What other situation do you know where people who aid in the leaking of grand jury testimony serve no punishment.

2.) The government could have easily haulted the sale of the book with an injunction as it affects an on going trial that could aid in public perception in a jury based case. But no, they didn't.

3.) There are many reasons for Bonds' trainer not to talk, and being a lawyer yourself you should understand the benefits and problems that arise in talking.

4.) See Amilst's comments on McGuire

5.) Mitchell was able to get information about Bond's trainer without any subpoena power, which one has to presume the government had this information well before hand and probably at the same time they knew about Balco.So then why not prosecute Clemens's trainer, and make Clemens go on the stand in the same fashion in which Bonds' trainer was.

6.) Really, can someone prove that they knew that they were no taking something. There are thousands of legal substances that you can take right now that would improve your performance, so one can take a performance improving substance without the substance being illegal or deemed steroids.

6b.) Victor Conte, who now other than Canseco has told the truth the entire time. And he even says that he has know knowledge of giving Bonds HGH. So if Bonds and Conte both say that Bonds did not knowingly take steroids, what third party is there that says otherwise.

7.) The point that the article in which you linked to was trying to make was the unfairness of the law and how to roughly equal parties are treated differently over race. Certainly it has been shown in the media and government and you would be NAIVE to think otherwise that race plays a role. The article has proven that.

8.) Your article simply proved the linked article's point which was that the government selectively chooses which laws to apply and which laws not to apply, and also how to apply those laws.

9.) Don't reference Jayson Stark. You should read his 3000 comments that he has where about 90% call for his head as well as calling him a racist.

10.) Finally, why are we spending millions of dollars to prove that a guy lied about using steroids. Certainly, this does not serve the will of the people.

Posted By : Public Defender

I have a different take on this entire issue. Tor...

Message posted on : 2007-12-16 - 07:12:00

I have a different take on this entire issue. Tortious interference, which is difficult to establish generally, is going to be more difficult to establish against Ark. Who contacted who? Judging by Petrino's track record over the past 5 years (his seeking a different coaching job each year), it doesn't look good for the Falcons. Also, courts are generally hesitant to enforce these claims in the employment realm because it impedes a free market for employee services.

I acknowledge the Fairbanks case, but that was decided almost 30 years ago, prior to the onset of heavily negotiated buyout and liquidated damage clauses. It would be interesting to know what Petrino's contract with Atlanta provides in this regard. And whether it covers Petrino leaving for a college coaching position?

Posted By : Rick Karcher

Mike,

In the past two days, I have been ask...

Message posted on : 2007-12-16 - 11:13:00

Mike,

In the past two days, I have been asked whether there is a likelihood of a defamation action by one or more of the named players. If such a lawsuit would be considered -- and it's a big risk from my point of view -- I think that a retired player may take that approach. First, it is impossible that a journeyman player may not be considered a public figure, which makes proof much easier (the ease depends on state law). Sure, damages would not be as great, but any present player would almost certainly be a public figure, requiring malice. Also, if a player or former player sues, then the discovery stage could open that plaintiff up to potentially damaging information -- a hormet's nest and a greater risk of taint. It sure could be ugly.

Posted By : Mark Conrad

And did you see these three stories? Pettitte says...

Message posted on : 2007-12-16 - 11:41:00

And did you see these three stories? Pettitte says he had two shots of HGH to see if he would heal faster, based on the recommendation of a trainer. Considering HGH was not a banned substance, how can anyone fault him for taking a drug to heal not perform better? Don't we all do that?http://sports.espn.go.com/mlb/news/story?id=3156305
Donnelly says he called Radomsky who recommended a steroid and he declined. He also said he was a marginal player who is now out of baseball and sickened that his name has been tarnished. http://sports.espn.go.com/mlb/news/story?id=3156636
David Justice, who I always thought was a class act, says the informant is lying and how come there is no copy of any check he wrote when the report has copies of other checks? Good question. The answer is because there is no justice for Jutice. http://www.recordonline.com/apps/pbcs.dll/article?AID=/20071215/SPORTS/712150340
Mitchell and DLA Piper have done a real hatchet job here. They should be lambasted not applauded. While a libel suit would be tough because the players are all public figures and because the law firm can say it in good faith relied on what sources reported, the court of public opinion is a different story. Did some players take steroids or HGH? I'm sure they did. But, as a lawyer, I am more disappointed by the work product of Mitchell's team then I am of my home baseball team. Alan Milstein

Posted By : Anonymous

This is not a homicide or robbery charge, but a cl...

Message posted on : 2007-12-16 - 11:53:00

This is not a homicide or robbery charge, but a claim that Bonds was not candid when asked if he took steroids. The same question posed to McGwire. And yes you do need moral authority to go after such a petty offense and no this Justice department does not have it. Is it a coinincidence that it has prosecuted the top African American stars in football and baseball? And for perjury and dogfighting? In sports, America, and the Bush Administration, race is always an issue.
Posted By : Anonymous

My 10 yr. old son, who watches much more baseball ...

Message posted on : 2007-12-16 - 12:19:00

My 10 yr. old son, who watches much more baseball than I do, summed it all up for me when he said, "who are all these guys?" Assuming the allegations are even true, if ALL the names are basically retired players and veteran players at the tail end of their careers, doesn't the report tend to prove that the current testing procedures implemented in 2005 ARE IN FACT WORKING? I'm amazed that not one player named is an up and coming player nor anybody in the prime of his career. Why are we suppose to make the conclusion from this report that steroid use is currently a prevalent problem?
Posted By : Rick Karcher

Where's the Milwaukee paper's control group? Woul...

Message posted on : 2007-12-16 - 13:14:00

Where's the Milwaukee paper's control group? Wouldn't you generally expect that of a random sample of baseball players, half of them would perform better than their career average and the other half wouldn't? Isn't that kind of the definition of "average"?

(I'm VASTLY oversimplifying here, but I think it's an appropriate oversimplification, given the incredibly sloppy work done by that paper. ERA+ in particular is silly, because ERA is so variant from year-to-year, based on things largely out of the pitchers' control (balls in play, for instance). I think things like "did the player return faster from injury" and "was the average pitch speed higher" are the kinds of things to look at. The analysis wasn't meant to be more than quick and dirty, but giving quick and dirty information to a largely stats-ignorant public can do more harm than good.)

Posted By : Jason Wojciechowski

I think we are going to depart on whether lying to...

Message posted on : 2007-12-16 - 14:11:00

I think we are going to depart on whether lying to a grand jury constitutes a "petty offense."

McGwire and Bonds both were asked about steroid use, but any similarities end there. When asked, Bonds denied, under oath in front of a grand jury, using steroids, apparently in the face of contradictory evidence. That is, or could be perjury, a charge initiated by the U.S. Attorney's office conducting the underlying investigation.

McGwire cannot be on the hook for perjury because he never answered the question, so there is no false testimony to prosecute. What he did may constitute contempt of Congress. But it is up to Congress, a distinct actor, to initiate the charges, itself or through the U.S. Attorney's Office in the District of Columbia. I tend to agree that the Committee should have done that, or at least done something to force McGwire to testify or assert a privilege. But the reason the Committee did not do so has much to do with the total disorganization, lack of focus, and lack of understanding among the Committee and its leaders.

Posted By : Howard Wasserman

One possible explanation for the absence of up-and...

Message posted on : 2007-12-16 - 14:25:00

One possible explanation for the absence of up-and-coming players is the possibility that steroids and HGH are most effective at helping players either get over injuries (both Pettite and Santangelo say they used the substances to help them heal from injuries) or to help keep their bodies going as they aged (which best explains Clemens and Bonds).

I raised the same point as Mark in an interview last week--the only potential defendant who would not be a public figure is a retired middling utilityman-type. But even he would still bear the burden of proving that the statements were false (rather than truth being an affirmative defense) because the speech still is on a matter of public concern.

Posted By : Howard Wasserman

Would he be able to deal with only three months va...

Message posted on : 2007-12-16 - 15:12:00

Would he be able to deal with only three months vacation per year?
Posted By : Dave

I've been on board with most of the criticisms of ...

Message posted on : 2007-12-16 - 17:38:00

I've been on board with most of the criticisms of the report and a lot of the MSM's stuff that came after, but a public duty to report the fees? Baseball is still a private entity, let's not forget ...
Posted By : Jason Wojciechowski

But courts will recognize the one sidedness of the...

Message posted on : 2007-12-16 - 20:10:00

But courts will recognize the one sidedness of these contracts. Coach quits no harm no foul everyone parts ways. Coach gets fired team still pays. I dont think there was a buyout in the contract because there is an article quoting Petrino's agent Russ Campbell as saying they were not going to leave because Blank threatened legal action (Blank denies this). Moreover, I speculate that coaches always take a hard stand that they are not leaving right before they quit in order to establish they were not working with other teams while under contract. Then they resign and make deals.
Posted By : Anonymous

By the looks of it Wasserman, your getting OWNED o...

Message posted on : 2007-12-16 - 20:44:00

By the looks of it Wasserman, your getting OWNED on your own article. Go read the new more compelling argument by Stark.

http://sports.espn.go.com/mlb/columns/story?columnist=stark_jayson&id=3157202

Posted By : Public Defender

Jason,

From a legal point of view, sure, th...

Message posted on : 2007-12-16 - 21:24:00

Jason,

From a legal point of view, sure, there is no obligation to do so, but this report was made public in a most dramatic way and many (inlcidng me) would be curious to find out the cost for such work. We can only guess -- yours is as good as mine.

Posted By : Mark Conrad

Public Defender:

First, apparently it is OK...

Message posted on : 2007-12-16 - 21:32:00

Public Defender:

First, apparently it is OK to reference Jayson Stark (your concern for his purported racism notwithstanding) when it supports your point. So I will disregard Point no. 9 of your earlier comment.

Second, I am not sure how Stark's new column undermines either a) Anything I have said so far in this thread or b) Anything he said in his earlier column. In both, he is arguing for careful, reasoned consideration of different situations and for avoiding easy labels.

Actually Stark is quite consistent between the two pieces: Pettitte and Harrison are being treated differently for no obvious reasons; Clemens and Bonds are being treated differently, but there are (neutral) explanations for those differences.

Posted By : Howard Wasserman

Just 50% of players on steroids got better? For a...

Message posted on : 2007-12-17 - 01:45:00

Just 50% of players on steroids got better? For any distribution of players would not 50% do better then their career averages while 50% do worse? Doesn't this study actually show that steroids are no more valuable in improving performance then a placebo?
Posted By : giantsrainman

Hello,

Your blog entry was really informati...

Message posted on : 2007-12-17 - 07:15:00

Hello,

Your blog entry was really informative :). Also, I have a request for you. We, at Vaestro ( http://vaestro.com), are trying to build a community of audio bloggers. I would be very grateful if you could look at it sometime and try using it's service :). It's free...and in need for quality bloggers like you.

Thanks,
Simone (http://vaestro.com/userprofile-simone)

Posted By : Simone

Anon,

When a coach quits in the middle of t...

Message posted on : 2007-12-17 - 08:26:00

Anon,

When a coach quits in the middle of the contract term, it's not that there is "no harm no foul and everyone parts ways". Coaches contracts are not "one-sided" agreements, and calling it a resignation doesn't change the outcome.

Petrino terminated his contract early with the Falcons, and the question is what recourse do the Falcons have against Petrino. A liquidated damages/buyout clause in a contract answers that question (and the new team or school typically pays the buyout, i.e. Michigan is paying the $4M buyout in Rodriguez's WV contract). If Petrino's contract with the Falcons does not have such a provision, then the question is what are the damages, and who knows what that is or whether the Falcons would even pursue it (they have a duty to mitigate, i.e. find another coach, which may result in little or no damage).

Posted By : Rick Karcher

Howard, I guess what you're saying is true if we (...

Message posted on : 2007-12-17 - 09:25:00

Howard, I guess what you're saying is true if we (the public) are supposedly concerned about players doing things to help them recover. I thought the concern was more about "performance-enhancing" (i.e. hit the ball farther or throw harder). I guess I don't understand why we are not concerned with pitchers having tommy john surgery (which actually does both).
Posted By : Rick Karcher

...with proposals for change that very so gener...

Message posted on : 2007-12-17 - 10:36:00

...with proposals for change that very so general that a reasonable person could figure them out...

Like alive, Dude.

Posted By : Anonymous

In addition to fees, let's see the names of every ...

Message posted on : 2007-12-17 - 11:36:00

In addition to fees, let's see the names of every single person that contributed to the report--and then let's dig around their past to see what hearsay, speculation and innuendo we can uncover.
Posted By : Skip

I read Mike's entire piece and was a little shocke...

Message posted on : 2007-12-17 - 13:33:00

I read Mike's entire piece and was a little shocked by the discussion of lifetime bans for those named in the Mitchell Report:

(1) First, because the commissioner of baseball exerts control over an entire North American baseball industry, a lifetime ban would substantially restrain trade in the labor for baseball players. As the respected arbitrator George Nicolau explained in reinstating Steve Howe into baseball despite his drug use, "the Commissioner is not an employer who has decided for himself that he will no longer retain an employee who is then free to go elsewhere in the same industry." The Commissioner rather rules employment prospects for an entire industry. Therefore, "[d]eterrence, however laudable an objective, should not be achieved at the expense of fairness."

(2) Second, as a basic matter of contract construction, the more narrowly worded clause in a contract trumps the more general. Given that baseball has long maintained collective bargaining provisions related to drug testing (however weak these provisions may have been), any attempt to circumvent these principles and instead punish players based on a more general "best interest" clause seems not only legally suspect, but morally questionable.

(3) Finally, a lifetime ban does not seem to meet any of the generally accepted reasons for punishment that exist in a developed society. The lifetime ban fails from a retributive justice perspective because it singles out a small segment of potential wrongdoers rather than the entire universe, and it makes no attempt to differentiate based on the degree of purported wrongdoing. A lifetime ban also fails based on a deterrence rationale because from an ex ante perspective many of these players (especially those using HGH) had no reason to expect punishment and therefore no reason to have been deterred. As George Mitchell suggests, heightened education, testing, and future consequences are the best remedial approach.

Posted By : Marc Edelman

Personally, I think the whole "Peds are bad for yo...

Message posted on : 2007-12-17 - 15:17:00

Personally, I think the whole "Peds are bad for your health" is just a myth. There is zero scientific evidence to support this myth and only a small amount of anadotal evidence. By outlawing Peds the government does not even allow any human research to verify what the actual facts are. My belief is that Peds at some level of use (like any other drug) become dangerous but nobody knows what level is safe and what level is dangerous since no real scientific studies have been made on the subject. I am very much inclined to believe that there is a safe level for athletes to use Peds and wish the moralists would get off they high horse and let the scientists determine what that safe level is. This should not be a legal or ethical issue it should be a scientific issue.
Posted By : giantsrainman

See Norhteastern University v. Donald A Brown 2004...

Message posted on : 2007-12-17 - 16:18:00

See Norhteastern University v. Donald A Brown 2004 WL 616225 (2004) Injunction granted for non-compete plus liquidated damages.
Posted By : Anonymous

I had Prof Straubel this semester for Sports Law, ...

Message posted on : 2007-12-17 - 19:14:00

I had Prof Straubel this semester for Sports Law, he spent a lot of time on doping and it was one of the essay questions on the exam. I hope I can be a part of the clinic next year!
Posted By : Jeff

On the other hand, the lifetime ban for Pete Rose ...

Message posted on : 2007-12-17 - 20:56:00

On the other hand, the lifetime ban for Pete Rose became a bargaining chip that ultimately brought forth an admission of wrongdoing that would likely not have happened absent the ban...
Posted By : The Sports Curmudgeon

sounds great, as long as they give lifetime bans t...

Message posted on : 2007-12-18 - 07:44:00

sounds great, as long as they give lifetime bans to all the clubs who looked the other way, and the players union who prevented the league from effective testing.
Posted By : Dave

Rick:

I think steroids, HGH, etc. do both, ...

Message posted on : 2007-12-18 - 09:27:00

Rick:

I think steroids, HGH, etc. do both, as well. And I agree that here never has been a rationale, cogent, science-based, panic-free discussion of why steroids are different than any of the other medical/scientific/technological advances that improve athlete longevity and performance. And the Mitchell's Report's simple "drugs are bad" and "think of the children" messages is not going to start that debate.

Posted By : Howard Wasserman

Although financially there is a positive side to b...

Message posted on : 2007-12-19 - 08:40:00

Although financially there is a positive side to building golf courses it does not always benefit the local community. In some countries complexes like Polaris World can bring a growth in the economy and tourism but locally the effect on the population is never actually measured. Some courses are a little elitist and do not offer the locals the opportunity to take advantage of the course because of very high membership fees.
Posted By : charles edwards

A nice theory, but I wonder if it could get that f...

Message posted on : 2007-12-19 - 15:08:00

A nice theory, but I wonder if it could get that far - Mitchell would likely file an early motion for summary judgment with a 50 page declaration about his research to defeat actual malice, while the witnesses lawyers would move for protective orders to bar third party discovery (which is usually considered burdensome) until the motion was determined.

In California the case would never get past an anti-SLAPP motion.

BUT, perhaps suing the witnesses themselves for defamation would have the same effect, and would not be so easily disposed of on summary judgment, nor would the discovery be third party any more.

Posted By : Michael Risch

I still really like Dahlia Lithwick's concise summ...

Message posted on : 2007-12-19 - 15:46:00

I still really like Dahlia Lithwick's concise summary of the subject (or a later one), but I lament that the Pruneyard dreams of my youth--free speech everywhere! No bogus private zones!--are likely dashed a little bit . . .

http://www.slate.com/id/2079885/

Posted By : gorjus

I agree with Michael as to how the process will pl...

Message posted on : 2007-12-19 - 16:13:00

I agree with Michael as to how the process will play out, but I disagree with the limits on discovery.

Assume Mitchell (actually, I understand MLB has indemnified Mitchell, so it may be MLB as the defendant) moves for summary judgment on the issue of actual malice and assume further the court limits discovery only to that issue. The player/plaintiff still would be entitled to discovery as to what Radomski or McNamee have to say about selling steroids. At the very least, it entitles the player to obtain complete transcripts, notes, and recordings of the Mitchell interviews. But I think it could entitle the player to depose Radomski or McNamee--get both to testify as to what they told Mitchell in the earlier interviews in order to identify any discrepancies that might suggest Mitchell should have known that their stories were false.

The bigger problem for any plaintiff would be the inevitable protective order that would make all discovery confidential.

And for anyone considering attending FIU College of Law beginning in Fall 2008: 1/3 of you just got a preview of your Civ Pro final.

Posted By : Howard Wasserman

I agree with Howard's points here, but I think Mit...

Message posted on : 2007-12-19 - 16:54:00

I agree with Howard's points here, but I think Mitchell/DLA stays as a named direct defendant.

Does anyone know exactly what the scope of this indemnification for Mitchell/DLA is? I assume this would just be an indemnification agreement for any defamation action by a 3rd party named in the report, and as such, I believe that a lawsuit would be allowed to proceed against Mitchell/DLA with any settlement or judgment funds coming from MLB or its carrier pursuant to the aforementioned indemnification agreement.

I would name Mitchell/DLA and MLB if filing a defamation action on behalf of a named player in the report.

Posted By : Tim Epstein

Ah Dave, but then they'd have to shut down the who...

Message posted on : 2007-12-19 - 20:09:00

Ah Dave, but then they'd have to shut down the whole league. (Which might not be such a bad thing, IMHO.)
Posted By : Joshua

Under the rules of professional responsibility and...

Message posted on : 2007-12-19 - 21:34:00

Under the rules of professional responsibility and civil procedure, this would be a risky proposal. Attorneys can't file lawsuits for sport. It seems to me that if you file a case with the sole intent to terminate it after taking a deposition, you're acting in bad faith.

I'd like to raise another angle that I haven't heard mentioned anywhere else. McNamee's deal with the U.S. Attorney for Northern California was contingent upon him not lying. The Mitchell Report (at page 167) goes so far as to say that "if, however, he should be untruthful in any statements made pursuant to that agreement, he may be charged with criminal violations, including making false statements, which is a felony."

That said, the Federal Prosecutor should call Clemens to the stand and have him testify under oath regarding his claim that the McNamee gave false info. If Clemens is to be believed, the feds' deal with McNamee should fall and he should be charged criminally.

Posted By : Nick H

I am just a fan a little confused the baseball lea...

Message posted on : 2007-12-19 - 22:38:00

I am just a fan a little confused the baseball league is a prvate entity what does the federal government have to do with the agreement that the players have with the baseball league the drugs as far as i can see are not illegal if i want to use them i think the problem is that the commisioner can not police the organization that he is the head of the needs to find what ever test can be done as far as i can tell no one has a fool proof test so tarnishing the reputations of the players i would not be surprised if the players went on strike after the mitchell report fiasco the only legal action i see is civil one between the baseball league and the baseball players


sincerly disappointed in the commisioners offie of baseball

williamsc54@sbcglobal.net

Posted By : charlie

McNamee and Radomski may or may not be "easy picki...

Message posted on : 2007-12-19 - 23:32:00

McNamee and Radomski may or may not be "easy pickings" in a deposition.

But whoever sues them had better not be "easy pickings" in the same envorons because the putative plaintiffs here would also be deposed.

I'm not certain that too many of the potential plaintiffs - as identified in the Mitchell Report - would want the full transcript of their deposition/cross-examination published in Sports Law Blog or anywhere.

For the record, I don't think McNamee and Radomski are the folks that Diogenes spent all that time looking for. Nor do I think that everyone named in the MItchell report is as pure as the driven snow.

Posted By : The Sports Curmudgeon

I posted a few comments on the fallout of the Mitc...

Message posted on : 2007-12-20 - 11:42:00

I posted a few comments on the fallout of the Mitchell report on the FIU Law Blog:

http://fiulawnews.com/blog/

Instead of filing a lawsuit, strap up the players that are attempting to clear their "good name" in the Court of Public Opinion to a lie detector on SportsCenter. That would be a great segment.

HGH can be used to heal injuries but once or twice? That, to me, sounds like "I didn't inhale" and "I did not have sexual relations with that woman."

We forgave one of the best Presidents in our era for the actual act and the lies, but these ballplayers are just adding insult to injury. These players have already tarnished the game enough.

The players likely used HGH for personal, selfish and/or financial reasons and now they are clearing their conscious so they can feel better about themselves. Just my two cents.

Professor Wasserman, we look forward to having you back on campus.

Posted By : Adam W

In response to Howard's comment, maybe I'm missing...

Message posted on : 2007-12-20 - 12:04:00

In response to Howard's comment, maybe I'm missing something, but I don't see how they could get discovery of DLA's notes from its interviews with Radomski and McNamee. From my experience with internal investigations, there would be no recording or transcripts (for exactly these reasons) and only handwritten or typed attorney notes and a memorandum report of the interview. These are clearly work product.
Posted By : Anonymous

Firing Isiah would be pointless so long as Doleful...

Message posted on : 2007-12-20 - 12:28:00

Firing Isiah would be pointless so long as Doleful Dolan continues to own the team.

Peter
Iron Rails & Iron Weights

Posted By : Anonymous

It would depend on what exactly there was and what...

Message posted on : 2007-12-20 - 14:11:00

It would depend on what exactly there was and what they did during each interview--whether it was on the record, etc. This was a unique internal investigation, so Mitchell might have done things differently. Certainly, a plaintiff could ask for any of this and force Mitchell to assert the work-product privilege.

And if there are no notes, etc. that are discoverable, it definitely opens the door for the plaintiffs to depose the players.

Posted By : Howard Wasserman

There is certainly no legal obligation of DLA Pipe...

Message posted on : 2007-12-20 - 15:33:00

There is certainly no legal obligation of DLA Piper to disclose the fees, but I think the fees are certainly an issue.

The report was shoddy, for all the reasons listed on this post and then some. Yet, my first thought, on seeing the amount of "work" that went into it was, "how much did DLA Piper make on this report?"

Other questions: Why George Mitchell, who is Director of the Red Sox, as well as the Boston Red Sox? Randy Levine, of the NY Yankees and Akin Gump, might have something to say of this whole fiasco.

What I do know is this: a better report could have come at a lower cost, no doubt.

Posted By : Anonymous

Plaintiff(s) could get past a demurrer by pleading...

Message posted on : 2007-12-20 - 18:42:00

Plaintiff(s) could get past a demurrer by pleading actual malice but the case would likely be tossed on summary judgment with no evidence of malice by Mitchell. What then? There will have been huge costs and opening oneself up to being deposed under oath. That's the $60M reason why no one would file a lawsuit for libel here.
Posted By : qtlaw24

As long as the race card is played, there will alw...

Message posted on : 2007-12-21 - 00:14:00

As long as the race card is played, there will always be a race issue. Of course only certain part of the population can claim that and it avoids debating the real issues.

As has been mentioned, Bonds lied. That's what the government can prove (or at least try to prove). That's what they could prove with Scooter Libby, Bill Clinton, Martha Stewart, etc.

Everyone is entitled to their opionion, but they are not entitled to their own facts. Bill Clinton was not empeached for having sex "with that woman," it was for lying. Martha was not found guilty of insider trading, but for lying. Libby was not not found guilty of leaking who Valerie Plame was, but for lying how he learned of her id and who he told. (Lie was proved by he said, he said, Tim Russert, not a paper trail or wire taps).

If the pursuit of Bonds is racial, why no headlines of Palmeiro or Sammy Sosa? Mark is a target because in front of the whole nation, he refused to answer on advice of counsel. Is that not our right? For all the lawyers that comment on this site, I'd sure hate to hire any of you if I was in trouble. The US Constitution should be the gold standard, and that means that I cannot be forced to incriminate myself, no matter how happy that will make someone.

The double standard I see is not race, but the feeding frenzy to throw MLB players under the bus, while the NFL players get no headlines, no big penalties, and are often rewarded even when tested and found to have used banned substances.

These players are black, and what happened to them? Rodney Harrison, failed test, and was given a 4 game suspension. FOUR GAMES!! Are they going to take his 2 Super Bowl rings away from him or the New England Patriots? No. I sure hear a lot about spy-gate, but no one ever mentions steroids and the advantage Rodney and the Pats got because his use of steroids and or HGH.

Shawne Merriman, tested positive and banned for 4 games. What happened to him or San Diego? Well, he was still eligible for post season awards, and then he got a HUGE campaign add from NIKE. Ever seen the Madden cover? It's a bit hypocritical that the media goes after baseball while this is under their noses.

Clemens can't even give a speech, and he's NEVER tested positive, unlike Shawne.

The list includes players and their punishment from the NFL: Roy Edwards, 4 games; Priest Holmes, 4 games; Chris Henry 4 games; Marcus Stroud, 4 games; Tim Crouch, 6 games; Jarrod Cooper, 4 games; Kenny Peterson, 4 games, etc, etc.

Why no talk of wiping their records from the books? Getting back honors like Pro Bowl apprearances. Getting back Super Bowl rings?

There's a bias okay, and it's against baseball while looking the other way at the NFL.

Posted By : elena

Bob Nightengale reported today that Davis (R) and ...

Message posted on : 2007-12-21 - 00:31:00

Bob Nightengale reported today that Davis (R) and Waxman (D) will NOT summon any players to their House Govenrment Reform Committee. Only Bud Selig, Don Fuhr and Sen. Mitchell will testify. Davis said he did not want to turn this into a circus.

Since 99% of players refused to talk to Michell, I think this whole endevor has been worthless. We know there's a problem, let's go to real testing. For many of the players (like Mark McGwire, using andro was not banned, so why destory some of the lives.

Posted By : elena

Apologies to Priest Holmes, should not be on list....

Message posted on : 2007-12-21 - 02:10:00

Apologies to Priest Holmes, should not be on list.
Posted By : elena

Any thoughts on the recent stories that Bonds' doc...

Message posted on : 2007-12-21 - 11:04:00

Any thoughts on the recent stories that Bonds' doctor has already submitted his client's medical records to the prosecutors?
Posted By : John J Perricone

Shawne Merriman is black. Mark McGwire is white. I...

Message posted on : 2007-12-23 - 10:58:00

Shawne Merriman is black. Mark McGwire is white. It would be easy to think that the reason they are treated differently has to do with race and bigotry.

A few minuties ago I saw a beautiful piece on ESPN on Shawne and how his company re-built a San Diego resident's home after the horendous fire had burned it to the ground. It was like an infomercial. they showed the logo of Shawne's company and how it only took them 60 days to build this home. It was great for the family, but come on, it was a million dollar home, not a home in the barrio. And he did not do it for free, he did it at cost. Now people in San Diego know what company can build quickly.

How come ESPN doesn't do a piece on Mark and the MILLIONS of dollars he has CONTRIBUTED quietly to benefit children?

Is is race or baseball frenzy vs. football? Maybe it's both.

Posted By : elena

Do you know how long the delay will be? If it is o...

Message posted on : 2007-12-24 - 21:18:00

Do you know how long the delay will be? If it is one or two days, I can understand. If, however, the trial would be delayed for a significant period of time, I am less sympathetic. We do not know the nature of the case or how long the parties have waited for the trial to begin. We also do not know the reaction of the parties to the granting of the delay.
Posted By : Mark Conrad

Unless you live in the south where there is footba...

Message posted on : 2007-12-25 - 10:17:00

Unless you live in the south where there is football season, religion, and the seasons before football season, you would not understand. Sympathy, nature of the case, length for trial, reaction of the parties: completely irrelevant. Go visit sometime.
Posted By : Anonymous

A given weight of crack cocaine provides substanti...

Message posted on : 2007-12-26 - 21:48:00

A given weight of crack cocaine provides substantially more individual doses than does the equivalent weight of powder cocaine. That doesn't completely explain the 100-to-1 sentencing disparity, but clearly the differences aren't quite as extreme as they might seem.

Aikens probably got as tough a sentence as he did in part because it was his second drug conviction in a short period of time.

Peter
Iron Rails & Iron Weights

Posted By : Anonymous

This could present an interesting issue in Green B...

Message posted on : 2007-12-27 - 17:52:00

This could present an interesting issue in Green Bay, where the team and the stadium are a publicly traded company. Is a publicly owned stadium a traditional forum for speech? Any Con Law minded Cheese Heads out there?
Posted By : mgoff

Aikens has become the symbol of what many see as t...

Message posted on : 2007-12-29 - 16:23:00

Aikens has become the symbol of what many see as the unequal treatment of the poor and minorities in America's judicial system. As he told the Post, "The disparity, as far as I'm concerned, is totally wrong. This took me away from my family. My girls were 4 and 5 years old when I was sentenced. Now they're 18 and 19."

It's a shame that Mr. Aikens blames being sentenced as what took him away from his kids. He was arrested for 64 grams which is about 650 doses of crack. It's cheaper and therefore he was able to sell it to more people, including youths. Any remorse for that?

Mr. Aiken should actually refelct on his life and be willing to admit how lucky he was and how much he had and threw it all away to make money selling drugs and helping make more addicts in the black population.

He had a college degree. Why go to drugs? For the money, that's why.

Aiken had been part of one of the worst scandels in MLB while with the Pirates. He got the gift of immunity, but kept using drugs.

Kansas City PD had received complaints of suspicious goings on and so put his condo under surveillance. The PD docummented observing traffic coming and going out of his place.

Officer Ginger Locke developed a friendship with Aiken and on 4 different occasions Aiken made crack from powder, with equipment he had in his house. He bought and made the crack in front of Officer Locke. If not selling it to Officer Locke he would have sold it to kids, youths, or whoever had money to buy his stuff.

Not a nice man.

Posted By : elena

Actually the story is that a kickoff was replayed ...

Message posted on : 2007-12-29 - 18:57:00

Actually the story is that a kickoff was replayed due to NBC not returning from commercials quickly enough

http://en.wikipedia.org/wiki/Super_Bowl_I

Posted By : Mark

Thanks!

Message posted on : 2007-12-30 - 20:21:00

Thanks!
Posted By : Mark Conrad

Now the questions I have...

Why did Fox and...

Message posted on : 2007-12-31 - 09:35:00

Now the questions I have...

Why did Fox and ABC not participate and were they given the chance? Without going back to the stories my recollection is that the Fox O&O affiliate in New York held the broadcast rights there and the ABC affiliate in Boston secured the rights there. The national ratings for ABC and Fox had to be adversely impacted with their affiliates in the no. 1 and no. 7 markets not carrying the national programming.

What was in it for NBC and CBS? The networks love exclusive. Granted with the writers strike and holiday programming their ratings were likely to be soft regardless but I wonder just how much incentive that provided.

What's the benefit for the NFL? They lost their prime bargaining chip for better access for NFL Network. Sure they get some goodwill but at what cost?

There is another shoe or two or three waiting to drop after this.

Will the Congressmen who lobbied for opening up the game extend some carrot such as introducing the long-craved anti-trust exemption? Will there be some sort of tax benefit laying in wait?

Will this lead to some sort of future simulcast agreement such USA Network (owned by NBC Universal) or Spike (owned by Viacom, the CBS parent) get regional redistribution rights for NFL Network games?

Will NFL Network enter some sort of content partnership redistributing maybe some of the Viacom/CBS/CSTV college football package (MWC, CUSA, SEC as I recall) since there are rumors that NFL Net would like to add some college football content. Maybe carrying some relevant movies out of the NBC Universal library? Maybe some original fiction series coming from the studios of either corporation?

Historically the NFL has always played several moves ahead of everyone else and it is no secret that they struggle for compelling content from February until the start of full camps and even then struggle to attract viewers for most of their programming.

Posted By : Mark

Mark,

You raise some very good points and ...

Message posted on : 2007-12-31 - 10:19:00

Mark,

You raise some very good points and many of them I cannot answer conclusively. But I'll take a crack:

1. I thought that since this was a Saturday night, I did not come under the Fox rights and that any local station in the given market could bid on the rights to simulcast the NFL Network game.

2. I think that the networks win out on this one. They may get to some advertising money and since Saturday night is the weakest night of the prime time lineup in terms of viewship, it was worth the risk.

3. Given the nasty politics up at Capitol Hill between cable services and certain members of Congress, hearings could have been called, which would not making the NFL look good; and

4. There is that antitrust exemption under the 1961 Sports Broadcasting Act. Congress could always amend it.

Mark

Posted By : Mark Conrad

i am so sorry to say - but this is plain greed by ...

Message posted on : 2007-12-31 - 17:02:00

i am so sorry to say - but this is plain greed by the american university. going all the way to italy to sue over a mascot? as if the mascot is causing them some loss of revenue.

historically, many teams have copied uniforms and names out of respect. leeds united strted wearing white out of respect to real madrid.

it is sad an academic institution has degraded itself in this way. it is about time people understand that sport isn't only a business. specially collge sport.

Posted By : ronen@mi-sport.com

It is immoral to sentence Michael Vick for this so...

Message posted on : 2008-01-01 - 10:14:00

It is immoral to sentence Michael Vick for this so-called crime, as the crime itself is silly, and totally stupid.

Michael Vick is no more a criminal than any grocery store owner! Why is it such that the man who makes money off of the death and mutilation of chickens, pigs, cows, fish, shrimp, etc. a respectable business man where a Michael Vick a "threat" to society? By what standard is a dog more sacred than any of these other animals?

Laws should ONLY govern how human beings deal with one another. I believe that once we can get interaction within our own species down a bit better, then perhaps we should look into intra-species legislation. Perhaps at that point we will then grant dogs the right to a fair trial, health care and free education.

FREE MICHAEL VICK!

His being jailed is a moral tragedy.

Whenever I am in the park walking and see one of these animals licking his reproductive organs, I can't help but gag at the thought that the most magnificent quarterback to ever play the game is now held in a cage because of one of these feces eating mongrels. I am being deprived the exhilaration of witnessing what Michael Vick can do on the grid iron because he is being punished for killing dogs that he raised and cared for just like a farmer who raises chickens, cows, or pigs. Human achievement takes a back seat to the "rights" of another species. How does man decide which species can be killed for our benefit, and which ones can not? What is the magic formula? Who is the genius that developed this decision making process?

If man is moral to use the lives of other species to promote and sustain his life, then this is a principle that should be used universally or not at all. One man should not be penalized for killing animals where another man is free to do so. Michael Vick is no more a monster than the owners of pharmaceutical manufacturing companies who torture animals to death to develop cures for disease, or those who torture animals to death to provide the mink furs that so many of us covet. A dog is no more special than any other animal!

Clearly, Michael Vick is the victim of gross violation of property rights. Animals in a free and fair society are not citizens but the property of citizens. Animal rights are rights granted to them by becoming the property of human beings. Some are more lucky than others. One animal owner should not have the right to mandate what other animal owners can and can not do with the animals that they pay for.

Unfortunately we live in a society that no longer truly appreciates what property rights mean. We seem to believe that the consensus of a mob has a position of moral superiority over the individual. That for example a mob of hindus has the right to one day vote away the rights of Christians to eat hamburgers.

Our form of government as created made this an impossibility, but 200 years of sabotage and moral cowardice have eroded and outright re-written the constitution that was created to protect the property rights of its citizens.

What we now have is a pathetic population of mongrel worshipping mediocrity what would literally jail the greatest within our species to protect rights of a mangy, stupid, and filthy animal.

If Michael Vick is kept in prison much longer I don't know exactly what I am going to do but sit still won't be one of my options.

Posted By : Reason

Not only is there no revenue loss, as the prior co...

Message posted on : 2008-01-01 - 10:39:00

Not only is there no revenue loss, as the prior comment notes, but no one is being confused or misled. At least if it weren't for the attention created by the lawsuit itself, it's a very safe assumption that the vast majority of "Striscia la Notizia" viewers have never heard of Big Red or even of WKU, while the vast majority of WKU sports fans have never heard of Gabibbo.
Posted By : Peter

Tribune switched our SSNs. That's where the liabil...

Message posted on : 2008-01-01 - 17:02:00

Tribune switched our SSNs. That's where the liability was. Feel free to email me if you feel like educating yourself further on this story before I write about it myself. Furthermore, the deposit was made through a third-party company which had specific rules for retrieval, which Tribune ignored by going outside the box, pressuring executives at Bank of America to pull the money out of my Fleet Bank account four months before the merger between the two banks was approved by the shareholders or Federal agencies. The story was inaccurately reported. Neither I, nor my attorney gave Tribune permission to remove the money from my account. They just took it without asking and B of A assisted, in violation of Federal banking law. The third-party company severed their contract with Tribune after their CFO spoke with me by telephone, realizing that Tribune had placed them in a situation where they could be liable.
Posted By : mark

nice blog man

Message posted on : 2008-01-01 - 21:45:00

nice blog man
Posted By : Sports247

Check out my sports blog but probably not as good ...

Message posted on : 2008-01-01 - 21:46:00

Check out my sports blog but probably not as good as urs. its called sports247blog
Posted By : Sports247

www.sports247blog.blogspot.com for some nice sport...

Message posted on : 2008-01-01 - 21:57:00

www.sports247blog.blogspot.com for some nice sports talk



***LEAVE COMMENTS***

Posted By : Sports247

Interesting post, I have a bit of a different take...

Message posted on : 2008-01-02 - 15:38:00

Interesting post, I have a bit of a different take on it though.

I watched the game at my favorite family sports bar, and after talking to the owner, a man I have known for years, I came to see a quite different side of this discussion.

What about all the people that invested in this product, marketed based on the exclusivity, and counted on the income of having a packed house for games like these. My friend estimated that he lost a few thousand dollars when the game was moved to the local stations. This may not seem like much, but for struggling restaurant owners this impact can be huge.

reeimbursement for these people from the profits of NBC and CBS maybe?

Posted By : Jimmy H

Congress has determined that the risk posed by cra...

Message posted on : 2008-01-02 - 15:52:00

Congress has determined that the risk posed by crack users/dealers is greater than that posed by cocaine users/dealers. Is that right or wrong, I don;t know, but it is certainly a permissible legislative determination.
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Message posted on : 2008-01-03 - 03:32:00

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Posted By : Anonymous

Isn't there a conditional privilege that Clemens s...

Message posted on : 2008-01-03 - 17:17:00

Isn't there a conditional privilege that Clemens should have in responding to the charges levied against him? Also, isn't a shady character such as McNamee almost defamation proof?

I thought the purpose of the "investigation" by Clemens' attorney was going to be to establish that Mitchell was reckless in his investigation. At least that is what it looked like when the initial comments were made by his attorney that it was very troubling that Mitchell didn't talk to people who would have relevant information as to Clemens and McNamee.

Posted By : Anonymous

You're right to say that the Clemens/McNamee confl...

Message posted on : 2008-01-04 - 10:43:00

You're right to say that the Clemens/McNamee conflict is more likely to play out in the court of public opinion than it is in a court of law. Neither of these guys wants to testify under the threat of perjury. I looked at it from the media relations perspective in this blog, if you're interested in another take on the issue:
http://www.beaupre.com/blog/index.cfm/2008/1/3/The-Rockets-steady-glare

Posted By : Mike

So, McNamee claims he will be defamed by Clemens c...

Message posted on : 2008-01-04 - 10:56:00

So, McNamee claims he will be defamed by Clemens claiming that McNamee didn't break the law by injecting him with illegal steroids? This is bizarre.
Posted By : Anonymous

Would McNamee really have standing? Defamation re...

Message posted on : 2008-01-04 - 12:08:00

Would McNamee really have standing? Defamation requires the plaintiff to show irreparable harm to his or her image, no? How is being called a 'liar' hurtful to McNamee's image? Does it prevent him from being employed somewhere? Does it cause him shame in his community? That's quite a stretch, imo.
Posted By : Anonymous

Now that states like New York have repealed their ...

Message posted on : 2008-01-04 - 19:01:00

Now that states like New York have repealed their anti-scalping laws it kinda seems like Stubhub is not only here to stay but now there are new stubhubs popping up all over the place. I've used Stubhub and these other guys a handful times with no problems, except for wondering if the I got the best deal out there considering there's a ton of sites with tickets available. I've seen a couple sites out there that give a hand with this, one being www.tickex.com who list what all this different stubhubs have in one place so you don't have to search around for the best deal. I'd say for the future places like that are the best bet.
Posted By : Anonymous

Now that states like New York have repealed their ...

Message posted on : 2008-01-04 - 19:13:00

Now that states like New York have repealed their anti-scalping laws it kinda seems like Stubhub is not only here to stay but now there are new stubhubs popping up all over the place. I've used Stubhub and these other guys a handful times with no problems, except for wondering if the I got the best deal out there, considering there's a ton of sites with tickets available. I've seen a couple sites out there that give a hand with this, one being www.tickex.com who list what all those different stubhubs have in one place so you don't have to search around for the best deal. I'd say for the future places like that are the best bet on finding the best deal.
Posted By : ticket hound

I imagine being called a liar is defamation per se...

Message posted on : 2008-01-05 - 19:12:00

I imagine being called a liar is defamation per se--the statements are per se damaging to one's reputation. Now, whether he actually has suffered any harm to his reputation to warrant recovery (which he must do as a public figure and because this is a matter of public concern), is a question of what he will be able to recover, not whether he can bring the suit.

As far as I know (and someone who knows about torts, please correct me) there is no response privilege. Which makes sense. If someone says you did X and you call that person a liar when, in fact, you did X, you should be on some hook for defamation.

Posted By : Howard Wasserman

Surely there has to be a conditional or qualified ...

Message posted on : 2008-01-05 - 22:58:00

Surely there has to be a conditional or qualified privilege to protect your own integrity? Sure, calling McNamee a liar is defamatory, but if Clemens is protecting his integrity I would assume he has some sort of privilege to do that? Granted, Clemens could lose the privilege if he goes well beyond merely calling McNamee a liar, but to respond to the charges leveled against him by saying that is a lie, or he is lying has to be protected.

I also don't see why McNamee has to wait for Clemens say say the words "he is a liar" to file suit. The only implications from Clemens denials is that McNamee is indeed a liar. The statements don't express any other possible connotation. He is directly indicating that McNamee is lying.

Posted By : Anonymous

But why should someone have a right to protect one...

Message posted on : 2008-01-05 - 23:39:00

But why should someone have a right to protect one's own integrity by lying? If the statement that McNamee is lying is false, it cannot be protected. I guess you could describe this as a qualified privilege, with the privilege ending once your denials become false.

A statement could be implicitly defamatory. But a statement must be "of and concerning" an identifiable target and reasonably recognizable as defamatory. The implicit nature of a denial makes it harder to prove than a more explicit statement such as "he is a liar." But the denials themselves ("He never injected me with HGH; it was B-12") still should be actionable.

Posted By : Howard Wasserman

Different type of 'public.' Public for c...

Message posted on : 2008-01-06 - 18:22:00

Different type of "public." Public for constitutional purposes means the government. The Packers and Lambeau are public not in that they are the government, but that shares are traded to and among members of the public on stock markets--the same as, say, Coke or AT&T. "Public" in that sense is in contrast to a "closed" corporation, where shares are not available to the public at large. No constitutional obligations attach simply because a company is publicly traded.
Posted By : Howard Wasserman

Howard you wrote: "I imagine being called a liar i...

Message posted on : 2008-01-06 - 22:15:00

Howard you wrote: "I imagine being called a liar is defamation per se--the statements are per se damaging to one's reputation."


Are you sure? Is there precedent for recovery solely based on the fact someone called the other a liar? I'd love to see the case cites on that.

I just did a quick search on defamation per se and found the following, which is what I expected to find (i.e., that defemation per se has historically been construed quite narrowly):

"Some statements are so defamatory that they are considered defamation per se; and the plaintiff does not have to prove that the statements harmed his reputation. The classic examples of defamation per se are allegations of serious sexual misconduct; allegations of serious criminal misbehavior; or allegations that a person is afflicted with a loathsome disease. The historical examples of loathsome diseases are leprosy and venereal diseases. Allegations that a person is afflicted with AIDS may well constitute a modern variation on this form of defamation per se."

Posted By : Anonymous

I did not research the point and was not in a plac...

Message posted on : 2008-01-06 - 23:37:00

I did not research the point and was not in a place where I could. In Mike's SI piece today, he says that case law is mixed as to whether calling someone a liar can be defamation per se--meaning it could be, depending on the jurisdiction and the context. That sounds about right to me.
Posted By : Howard Wasserman

To each his own, I guess...

I thought Cleme...

Message posted on : 2008-01-07 - 08:25:00

To each his own, I guess...

I thought Clemens came across as angry, forceful, and believable.

Posted By : Anonymous

"What is the rational basis for treating steroids ...

Message posted on : 2008-01-07 - 10:57:00

"What is the rational basis for treating steroids and HGH differently from these other drugs?"

There isn't.

Posted By : Anonymous

Yeah, the contrast in their abilities to lie (Mush...

Message posted on : 2008-01-07 - 11:13:00

Yeah, the contrast in their abilities to lie (Musharraf versus Clemens) was quite stark, no??
Posted By : Anonymous

"What is the rational basis for treating steroids ...

Message posted on : 2008-01-07 - 11:18:00

"What is the rational basis for treating steroids and HGH differently from these other drugs?"

"There isn't."


I suppose the simple answer to this is legality, but why not broaden the question further and include things like laser eye surgery in the discussion. One of Ted Williams greatest advantages as a hitter was superior eyesight, something that can be changed by a minor medical procedure today. How is this not "performance enhancing"?

Posted By : Chad McEvoy

Howard,
My wife also did not believe Clem...

Message posted on : 2008-01-07 - 11:18:00

Howard,
My wife also did not believe Clemens. And she's a die hard Yankee fan. For what its worth, I believed him, but I was predisposed to want to believe him.

Posted By : Anonymous

From a litigator's POV, I think making public stat...

Message posted on : 2008-01-07 - 14:55:00

From a litigator's POV, I think making public statements while in litigation, especially before giving a deposition, are a bad route because you have no control over the context in which any statements will be used or the line of questioning.

I think that Clemens pursued this interview despite his legal team's advice.

Posted By : qtlaw24

Whatever happened to innocent until proven guilty?...

Message posted on : 2008-01-07 - 16:23:00

Whatever happened to innocent until proven guilty?? I myself, believe him - I've always considered Clemens to be a man of integrity, and know that he has worked hard all his life to achieve excellence. My belief is that his "training" did not include the use of steroids. I find it easier to believe him than to believe McNamee.
Posted By : Sue

Not sure your a regular 60 Minutes watcher. 60 Mi...

Message posted on : 2008-01-07 - 16:38:00

Not sure your a regular 60 Minutes watcher. 60 Minutes saves their entertainment or sports pieces always for last. Stop misleading the readers.
Posted By : Anonymous

Clemens must have consulted with his attorneys bef...

Message posted on : 2008-01-07 - 16:48:00

Clemens must have consulted with his attorneys before doing the Wallace interview. If anything is clear, it is that Clemens has orchestrated a campaign to clear his name.
As to the public figure standard of actiual malice, I think this is one case where it really does not matter. McNamee is either lying or he is telling the truth. Negligence is not one of the options. And if he is lying, Clemens surely has suffered great injury to his reputation.
So this is an unusual public figure libel case because it is really a slam dunk if Clemens is telling the truth. But that is a big if.
I do find it hard to believe that Clemens would do what he was doing if he had in fact taken the steroids. That would be serious chutzpah.
Two last thoughts. If Clemens had been on the juice, surely he would have told someone about it like his good friend Pettitte. If Pettitte backs Clemens, I would believe Clemens is telling the truth.
Finally, I cannot imagine why they did not sue Mitchell and DLA Piper, if Clemens is to be believed. While absence of malice would be a defense for the legal team, a judgment against them would be true vindication.
Alan Milstein

Posted By : Alan Milstein

I think if one had to identify Clemens's realistic...

Message posted on : 2008-01-07 - 16:53:00

I think if one had to identify Clemens's realistic goal it would be first year election to the Hall of Fame. That would go a long way in clearing his name.
I find it interesting that a pole published in the NY Times claims 59% of the electorate would vote for his induction.

Being an Israeli journalist, I am not a baseball expert, but to the best of my understanding in a drug allegation free world Clemens is 100% HOF vote.

I think being prepared to take the case to court makes some ground in his attempt to reach the 75% threshold. He has 5% - so it is doable.

Posted By : ronen@mi-sport.com

At the press conference today, Clemens's lawyer sa...

Message posted on : 2008-01-07 - 18:31:00

At the press conference today, Clemens's lawyer said they asked him to wait before going on TV. Apparently, Clemens disagreed.
Posted By : Howard Wasserman

Nothing I said in the post implicates "innocent un...

Message posted on : 2008-01-07 - 19:06:00

Nothing I said in the post implicates "innocent until proven guilty." I made the simple point that, watching his testimony as if I were a member of the jury charged with deciding the case, I did not find him a credible witness, largely because of his demeanor. I have not seen all the evidence (beyond his testimony) on either side and I have never seen McNamee speak, so I have not formed an opinion as to his credibility.
Posted By : Howard Wasserman

AMEN Alan!

Message posted on : 2008-01-07 - 21:45:00

AMEN Alan!
Posted By : Jimmy H

A couple of comments:

1)
"I found that r...

Message posted on : 2008-01-08 - 09:23:00

A couple of comments:

1)
"I found that response curious, since it is well-established that steroids benefit players."

I'm not sure that steroids or other PEDs actually benefit players. Barry Bonds still has to hit the ball, Roger Clemens still has to throw strikes? Many of the names in the Mitchell Report belong to players that many of us have never heard of before. I'm just not sure that your statements is as concrete as you assume.

2)
Your "three options" for Clemens when testifying in front of Congress is built on the premise that Clemens is lying about steroid use. Perhaps this is just an argument you are using without taking a position on whether or not Clemens is lying? I assume that your analysis would be the same for McNamee when he chooses to testify in front of Congress? He can either tell the truth, that Clemens is right; Plead the 5th, in which case that would be used against him in the defamation suit; or continue to lie by stating he injected Clemens.

Posted By : Anonymous

For years, I've been placing the anabolic steroids...

Message posted on : 2008-01-08 - 13:40:00

For years, I've been placing the anabolic steroids v. cortisone distinction squarely within the good drug/bad drug frame.

Alcohol - good drug. Drink all you want.

Marijuana - bad drug. Smoking it makes you a bad person.

If you're shot up with enough painkiller to numb a small village, not only do we not see that as a moral problem, we view you as heroic. You're Kirk Gibson. You're Curt Schilling. You're gritty and gutty and an inspiration. Epidurals for everyone.

Steroids are immoral. Ask Lupica.

It isn't even that we frame it as a matter of degree - X amounts of painkiller v. Y amounts of steroids should be allowed/disallowed in the context of sport Any "rational discussion" of what drugs we'd make illegal in society or ban for use in a sport would have to recognize that these things exist on a continuum.

Instead - we vilify and deify.

Good guys/bad guys. The dual American frame. White hats and evildoers.

History won't think well of much of our ability to judge morality; a hundred years from now, Sports Illustrated will be seen as far more devious and culpable in this steroid "scandal" than will Barry Bonds.

Posted By : jcj

Clemens' attorney said that in NY and Texas, only ...

Message posted on : 2008-01-08 - 15:15:00

Clemens' attorney said that in NY and Texas, only one party to a conversation needs consent to record a phone call.

What if one of the parties was in a state where both parties need to consent?

You would think that there would be some uniform federal law on the subject because it crosses state lines.

Posted By : Anonymous

sorry, i see you said there is a federal law in yo...

Message posted on : 2008-01-08 - 15:23:00

sorry, i see you said there is a federal law in your SI piece...

so wouldn't the supremacy clause preempt any state law requiring all parties to consent or would that be an example of the federal law being a "floor" and states may give their citizens more rights?

Posted By : Anonymous

A few comments on your piece.
First, Clemens' a...

Message posted on : 2008-01-08 - 18:25:00

A few comments on your piece.
First, Clemens' attorney was absolutely correct about not having his client take a lie detector test. I have been in that situation as an attorney a number of times and give the same advice. There is a reason no court admits the results and that is because they are unreliable. I would not take one on whether I take steroids to help me practice law.
Second, I agree with the above comment that the jury is still way out on whether steroids could help a pitcher pitch.
Third, this is not that usual public figure case where there is a question between negligence and actual malice. If McNamee is lying, it was intentional and it severely damaged Clemens' reputation. It is true the burden is higher:clear and convincing not just preponderance. But this case is he said/he said and whoever the jury believes will win.
Last, I agree the taped conversation did not help the cause. Considering his attorney says he was present, I could not understand why the million dollar question was not asked: "Why did you lie about me?"Alan Milstein

Posted By : Alan milstein

can you please make a copy of the judge's ruling a...

Message posted on : 2008-01-08 - 21:18:00

can you please make a copy of the judge's ruling available here? Thanks
Posted By : Reflection46n2

Second the request for the ruling!

Thanks...

Message posted on : 2008-01-09 - 00:49:00

Second the request for the ruling!

Thanks!

Posted By : Anonymous

Unfortunately I can't link to it. You can access ...

Message posted on : 2008-01-09 - 08:24:00

Unfortunately I can't link to it. You can access it through PACER for a fee.
Posted By : Rick Karcher

Is it just the use of the word "lynch" that is the...

Message posted on : 2008-01-09 - 08:33:00

Is it just the use of the word "lynch" that is the problem here? Or is it something more?

It appears Tilghman was trying to be funny by suggesting that killing Tiger was the only way the other players could stop him from dominating the tour. And she used a very wrong word. Suppose she had said the others should "have Woods whacked" or "should take Woods out"? Do we have the same problem? No racially charged word, but the implication (given the make-up of the PGA Tour) would be of white-on-black violence, a similarly historical problem in the U.S.

And if that is a problem, what if we get the racial overtones in reverse? Suppose an announcer says "the only way the other NBA players can stop Larry Bird (an admittedly old example) from dominating the game is to cap him"?

I think this is different from Imus. Imus was intentionally making fun of the players and he did it in racial terms. Tilghman was trying to make a point in graphic terms and seemed to get away from herself. She also seemed to use the word almost ignorant of its broader meaning. Note the bad mixed metaphor of "lynch in a back alley." with its image of an urban attack, when the predominant image of lynchings is attacks not in a back alley, but in an empty field in Mississippi.

Please note that I am *NOT* defending what Tilghman said and her apology was, as always, ridiculously bad. I am trying to understand how we respond to this and to other examples of similar problems.

Posted By : Howard Wasserman

Use the word "whack" and the Italian-American comm...

Message posted on : 2008-01-09 - 08:51:00

Use the word "whack" and the Italian-American community will be up in arms.

Personally, I have a dream that one day we will rise up and remember when the First Amendment meant something...

Posted By : Anonymous

It is amazing that such a comment is made in 2008....

Message posted on : 2008-01-09 - 09:09:00

It is amazing that such a comment is made in 2008. However, when I think about it, it is really not surprising. These kinds of comments are made by white people constantly because deep down they don't think that there is anything wrong with them. The fact that any radio station has Don Imus back on the air after his comments proves this out.
Posted By : Legalsavant

Anonymous poster...are you asserting that the Firs...

Message posted on : 2008-01-09 - 09:43:00

Anonymous poster...are you asserting that the First Amendment should allow individuals to make these types of comments? Actually, it does, to an extent...I seem to remember various cases in which the Ku Klux Klan demonstrations were protected by the Amendment; also anti-Jewish demonstrations near Chicago were protected by that amendment.
National television, however, presents a different story.
And to use the First Amendment in a conversation about racism misses the boat, by a lot. Regardless the strength of First Amendment protection, as a matter of human dignity--to invoke Justice Brennan--racial slurs should not be uttered on national television.

As to the main point, it is sad that this still occurs. It also is currently occuring in the field of politics. The fundamental Christian groups have advocated against Barack Obama because he was once a Muslim (and, therefore, he is a terrorist) and because he attends an all-African-American church.

In sports, in entertainment, and in politics, we have learned that despite efforts to the contrary, racism still exists in America.

Posted By : Travis

From ESPN - "Asked for a reaction, Woods' agent Ma...

Message posted on : 2008-01-09 - 09:53:00

From ESPN - "Asked for a reaction, Woods' agent Mark Steinberg said: "This story is a non-issue. Tiger and Kelly are friends and Tiger has a great deal of respect for Kelly. Regardless of the choice of words used we know unequivocally that there was no ill-intent in her comments. This story is a non-issue in our eyes. Case closed.""

I find this statement by Wood' agent a bit surprising. Non-issue it may be personally between Tiger and Tilghman, but shouldn't his agent acknowledge that there are other people out there who are, rightfully, outraged by the statement?

Perhaps we don't want to cast Tiger as some kind of racial spokesperson, but does he, or his representatives, have any kind of obligation to decry this kind of statement? I'm not sure of the answer, but I think there's at least some responsibility there...

Posted By : Satchmo

1. You can't seriously believe that this is a fire...

Message posted on : 2008-01-09 - 11:13:00

1. You can't seriously believe that this is a fireable offense. Imus had 30 years of race-baiting leading up to his firing, his final comment was the proverbial last straw.

Was it a stupid thing to say? Absolutely. Should the producer have told her about it immediately, and should she have addressed it immediately? Absolutely. But to lose your job? C'mon.

2. It's pretty clear that Tiger Woods has no interest in being a racial spokesperson. He kind of takes the MJ tack, to paraphrase I guess Tiger believes that conservatives buy golf clubs too. But I think in this case his statement says it all. He believes this to be a non-issue.

3. To anonymous, how exactly does the first amendment apply in this case?

Posted By : HARRY

Satchmo:

Certainly no obligation if Woods d...

Message posted on : 2008-01-09 - 12:01:00

Satchmo:

Certainly no obligation if Woods did not actually find the comment offensive or racist. To suggest otherwise would mean that every member of a particular group must speak out against comments/actions that other members of that group find offensive to the group, even if the one "obligated" to speak does not believe those statements were racist.

More broadly, this is at the core of the concept of hate speech. At the most basic level, we can say Tilghman insulted Woods based on a characteristic Woods has. Did she necessarily also insult every single person who shares that characteristic?

Posted By : Howard Wasserman

This will be a non-issue because Woods will make i...

Message posted on : 2008-01-09 - 15:35:00

This will be a non-issue because Woods will make it a non-issue. He enjoys staying in the background on important racial or political issues. He doesn't want to be the torch bearer that many want him to be. He just does his own thing and destroys people on the golf course. I would like to see him come to the forefront, but it will not happen.

This is worse than Imus in my opinion. I agree Imus had a longer history against him but based solely on the comment (which it should be) there is more than enough history that follows "lynching" compared to "nappy headed hoes." Of course, all of this means nothing since Woods will ignore it.

Posted By : Shawn

OK, I expect confusion about the applicability of ...

Message posted on : 2008-01-09 - 15:50:00

OK, I expect confusion about the applicability of the First Amendment on non-legal blogs but its always surprising on legal blogs. Anyway, Tilghman deserves at least an unpaid suspension but I would support firing. Re Don Imus in this connection; no - I do not believe she should be afforded umpteen chances and neither should Imus have but hey that's what the dominant American culture wants. One thing I hope we can all agree on is that she should not be subjected to the Jesse Jackson, Al Sharpton sensitivity training tour - nor should anyone, except perhaps themselves!

Now regarding what's ok or not, a very slippery slope. I don't want to invoke Potter Stewart "know it when I see it" test but I think part of the problem here is that white Americans have no equivalent taunt words applied to them as a group that would help focus this issue for them. Redneck, cracker, honky, whitey... I'm sure there are others but I don't think any of them bear the weight of the "n" word, lynching and any number of other taunt words routinely and openly applied to black Americans until at least the 60's. My observation is that the only term that really riles white Americans is if you personally call them racist. Really ironic (at least to me) in view of American history.

So are most blacks hyper-sensitive or is it that most whites are hyper-insensitive?? I don't think we need a Gallup poll to guess the split on that one. Anyway, I think this comment by Tilghman was way over the line. To me its akin to saying lets have Amy Alcott or Corey Pavin gassed or saying that Isao Aoki should be Jap-slapped or perhaps nuked. All in good fun??? No harm intended?? I think not.

-bgw

Posted By : Anonymous

You use the language, "For some reason, the Big Ea...

Message posted on : 2008-01-09 - 15:56:00

You use the language, "For some reason, the Big East is an automatic-berth conference."

The Big East was, by one metric, the second-best conference in college football this year, and the fourth by another. A better question might be whether the Big Ten belongs in the BCS, as it was, by nearly all formulas, the worst of the six conferences awarded automatic bids.

There is this meme about the Big East being undeserving, and I don't quite understand it.

Regardless, the cartel excludes access to non-BCS conferences, and at the very least this precludes the possibility of those conferences earning two BCS bids -- a system that funnels tens of millions of dollars to the athletic programs that need it least. As long as all FBS programs pay the same dues to belong to the NCAA, the NCAA should not endorse or certify any system that arbitrarily shifts money to the richest teams and in effect prevents 50% of its membership from competing for the subdivision championship.

The long and short of it is that FBS is the only athletic organization in the world in which teams can start the season knowing that even perfect play will not result in an organization championship.

Posted By : tim

BYU's national title came before the BCS existed (...

Message posted on : 2008-01-09 - 16:27:00

BYU's national title came before the BCS existed (1984). And the Utah outcry over their BCS game was not over the game, but the opponent (a fairly weak Pitt team). That was a REALLY good team (11-0) that deserved a better opponent than an 8-3 Pitt team.
Posted By : Scrumtrulescent

Oops! Meant to write "No harm, no foul" at the end...

Message posted on : 2008-01-09 - 17:20:00

Oops! Meant to write "No harm, no foul" at the end rather than "No harm intended".
Posted By : Anonymous

All 11 FCS conferences are members of the BCS and ...

Message posted on : 2008-01-09 - 17:27:00

All 11 FCS conferences are members of the BCS and I rather suspect that in signing off on the agreement they agreed to waive any anti-trust claim they may have.

As to the automatic berths, the current agreement gives automatic berths to the six highest rated conferences (using the six BCS metrics) at the time of the agreement and provides that the auto berths are to given to the six highest rated conferences (using I believe a two year rolling period). If the Mountain West were to pass the Big East over a two year period it would replace the Big East. The prior agreement provided for losing an auto berth if a different minimum standard were not met, but the Pac-10 was the only league to come close to falling short.

The BCS is not about crowning champions. It is about maximizing revenue. The new BCS agreement gives the bottom 5 conferences greater access than they would have under pure market forces. Would the Sugar have voluntarily selected Hawaii? No.

Let's imagine for a minute that the BCS is dissolved and with it the championship game. What match-ups would we have seen?

Using the AP Poll
Rose
no. 1 Ohio State vs. no. 6 USC
Sugar
no. 2 LSU vs. no. 7 Missouri
Fiesta
no. 3 Oklahoma vs. no. 4 Georgia or no. 12 Arizona State
Orange
no. 5 Virginia Tech vs. no. 9 Florida or no. 8 Kansas

West Virginia and Hawaii get left out.

Obviously the Big East likes the deal they have as would the WAC, but so does the MWC, Sun Belt, MAC, and CUSA. Why?

Because they've got a better deal than what they had before AND quite likely a better deal than they would get from the NCAA. Only about half of the money generated by the Division I men's basketball tournament goes back into the hands of the Division I schools and it gets sent back by a convoluted formula. The BCS turns back roughly 97% of its revenue to the schools.

The bulk goes to the six auto leagues with bonus money of roughly $4 million for placing a second team in the series. The remainder goes in shares to the five non-auto leagues based on their rating at the end of the season sliding from about $1.8 million at the bottom to $9 million at the top. That towers over what most are getting back from the lucrative basketball tournament even though the tournament generates around 3x the revenue of the BCS.

Posted By : Mark

Non-BCS conferences are not part of the BCS. The B...

Message posted on : 2008-01-09 - 17:56:00

Non-BCS conferences are not part of the BCS. The BCS is the system of bowls organized by the Bowl Alliance, which is constituted by the heads of the six BCS conferences and (a representative of) Notre Dame.
Posted By : tim

I love how these US blogs can't see past their own...

Message posted on : 2008-01-09 - 18:22:00

I love how these US blogs can't see past their own borders. If anyone had been bothered to read the Australian or Indian news this week you would see a larger racial issue involving intervention of the world governing body for cricket, the replacement of match officials for the next Australia v India Test match (at the insistence of the Indian Cricket team mind you) and a hastily convened appellate process to deal with an accusaion of racial vilification on the field of play. Last I saw, Indian nationals were burning effigies of Australian cricketers and neutral umpires in the streets of a few Indian cities.

Maybe that might be of a bit greater than someone saying something stupid on the golf channel.

Sure, the commentator said something dumb. Sure, Tiger Woods could well be offended by it. But wake up the the wider world around you would you please.

Posted By : Anonymous

Oh how smug some in the rest of the world think th...

Message posted on : 2008-01-09 - 18:53:00

Oh how smug some in the rest of the world think they are when it comes to the US. Well I for one am well aware of the racial controversy that occurred in international cricket this week. And I don't see any difference between the two incidents at all other than US society getting to a point, thankfully, where we don't feel we have to take to the streets with violence over racial insults. I happen to be black American and I think the slur that allegedly happened in the cricket match was despicable. But it is not a reason or an excuse for the violence and hatred that apparently is being displayed in the streets in India. Nor is there anything about the cricket controversy that proves in any way that the lynching comment made by the golfing commentator should not be subject of discussion in America. I think YOU need to wake up and realize that not everything America does is fair game for strident smug self-righteous criticism.

-bgw

Posted By : bgw

For those who happen to be unaware, the cricket co...

Message posted on : 2008-01-09 - 19:26:00

For those who happen to be unaware, the cricket controversy involves the allegation of an Indian player referring to the only non-white player on Australia's team as a "monkey" during a match. The Indian player was suspended for three Tests and the Indian team appealed and also counter complained that a different Australian player racially insulted an Indian player. The latter claim and the appeal are still in process.

The fact that violent demonstrations have apparently occurred in India (mainly it seems over a feeling that the proceedings have been unfair rather than on any overtly racial basis in my view) does not in any way indicate that Tilghman's comment was insignificant or that discussing it is stupid. On the contrary, it illustrates the passions that racially charged comments can ignite even indirectly. Its definitely better to openly discuss and even vigorously disagree about such statements or whether or not discipline is merited than it is to either pretend they don't matter or to tell people that their concerns about such statements are stupid.

-bgw

Posted By : bgw

I've always wanted to be a part of the WSOP. Guess...

Message posted on : 2008-01-09 - 19:40:00

I've always wanted to be a part of the WSOP. Guess I should schedule my next gambling trip to Vegas before the event.
Posted By : Anonymous

To bgw:

I'm very offended when people assum...

Message posted on : 2008-01-09 - 19:48:00

To bgw:

I'm very offended when people assume that I am racist because I'm white. Look up the definition of the word racism- in short, it is, "the belief that all members of each race possess characteristics or abilities specific to that race." (Sounds like the belief of an author of a blog I just read) Judging someone based on race is a sign of true ignorance. When you're done trying to justify why black people can be racist and white people can't, why don't you look up the word "hypocrite."

Posted By : Anonymous

Gregg Easterbrook writes a very persuasive defense...

Message posted on : 2008-01-09 - 20:05:00

Gregg Easterbrook writes a very persuasive defense of the BCS...
http://sports.espn.go.com/espn/page2/story?page=easterbrook/071204&campaign=rsssrch&source=gregg_easterbrook

Posted By : Michael Risch

The use of "lynch" was simply ignorant; ignorance ...

Message posted on : 2008-01-09 - 20:15:00

The use of "lynch" was simply ignorant; ignorance of the racially charged nature of the word and the connotations attached.

This is not about 1st Amendment rights, those only apply to the Govt., not a private enterprise like the Golf Channel.

The problem is that only blacks really know how deep that comment cuts, non-blacks can only pretend to know. And when you have pretenders trying to analyze, the understanding can only go so far.

I feel this way because I am a minority and have been subjected to racially insensitive remarks by those in the majority. When it goes the other way, upstream shall we say, its simply not the same.

I believe there is always a sense of empowerment, however slight, when you are in the majority and even if someone tries to draw that distinction out, "honkey, etc.", it does not resonate the same as when a minority is singled out.

That being said, as a 44 yr old with two young boys, I've come to the point of stressing to my boys to ignore, there is nothing more powerful than ignoring ignorant comments. Actively fighting back just brings legitimacy to the comments.

In the long run, the best we can do is let others know that these types of comments are not acceptable and subject them to ridicule and move on.

Posted By : qtlaw24

Wow. I don't know if you are just overly sensitive...

Message posted on : 2008-01-09 - 21:08:00

Wow. I don't know if you are just overly sensitive or just don't read carefully. None of my posts have called you, any white person, or any other person racist. I did make a point in regard to the issue of what type of slur or racial comment is over the line (or not) that there is no pejorative term equivalent to the n-word or similar to "lynching" that gets applied to white American's to illustrate the sensitivity of these words to blacks except to call a white person "racist". I do think it is true that white people are sensitive to being called a racist but I clearly did not call white people racist and did not advocate that anyone do so. Even though you mis-understood the point I'm making, you seem to have confirmed it as far as the sensitivity of the term racist goes.

Now if you can have such a reaction to the term racist when someone is trying to explain that there are no racial slurs applied to whites that carry the same sting as the n-word, lynching, and quite a large number of other terms I could cite, try to understand then why its hard for black Americans to be blase about casual references to such terms as lynching when discussing a black person. I am not saying Tilghman is racist but that her use of this terms is too insensitive to be accepted without objection nor, in my view, without sanction.

In regards to hypocrisy, what a laugh. My point was clearly that racial terms and pejoratives of any kind are over the line and should not be acceptable.

-bgw

Posted By : bgw

I think most people think of Tiger Woods as I do. ...

Message posted on : 2008-01-09 - 21:16:00

I think most people think of Tiger Woods as I do. Not an African American, not and Asian, but as the worlds greatest golfer perhaps even the best athlete of all time. This comment was clearly not said in a racial context, but rather in regards to someone who is almost unbeatable in the hardest game ever. Liberal media give it a rest. It's not always about race!
Posted By : chiefy

Howard Wasserman asked an interesting question whe...

Message posted on : 2008-01-09 - 22:03:00

Howard Wasserman asked an interesting question when he said in reference to Tilghman's comment:

"... And if that is a problem, what if we get the racial overtones in reverse? Suppose an announcer says "the only way the other NBA players can stop Larry Bird (an admittedly old example) from dominating the game is to cap him"?"

My response is that it is a problem if the racial overtone is in reverse if it is pejorative. However Wasserman's example did not have a racial nor a pejorative overtone. Nothing in that example racially identifies, sterotypes or slurs Mr. Bird. Which is why the initial comment attributed to Nick Faldo does not raise an issue i.e. "that other young golfers should gang up on Tiger Woods". Nothing racial or pejorative there.

But the Larry Bird example would have racial and pejorative overtones if the announcer were to say something like ... "the only way the other NBA players can stop Larry Bird from dominating the game is to steal his Klan robe". Clearly, in my view, such an announcer should be fired, or at least suspended. Why should a pejorative racial slur against whites be tolerated?

Again, I don't know exactly where the line is or should be but Tilghman crossed it.

Posted By : bgw

BYU's national title was actually the impetus for ...

Message posted on : 2008-01-09 - 22:10:00

BYU's national title was actually the impetus for the creation of the Bowl Coalition and then Bowl Alliance, which preceded the Bowl Championship Series. The BYU teams of the early 80's were good enough to reach no. 1 once due to higher-ranked teams from traditional conferences losing above them. The "big boys" didn't want to see such a scenario developing again.
Posted By : The Passionate Cougar

To anonymous (non-US) poster...I apologize in adva...

Message posted on : 2008-01-09 - 23:14:00

To anonymous (non-US) poster...I apologize in advance for any apparent condecension. It is true that an average American is insensitive and not knowledgeable about matters not concerning the United States directly. However, if you have paid as much attention to American history as you claim we should have, you would realize that the development of America has been one marked by isolationism and individualism (as de Tocqueville predicted long ago). Thus, it should not be surprising to you. You may however, be pleased to realize that some of us, including myself, have heard of the "Australian-Indian Cricket Conflict." Certainly, racism (which is a uniquely American concept as used today) exists worldwide. Minority ethnic groups are persecuted everywhere. Even majority ethnic groups are persecuted in some places. Those with different colored skin or different creeds are largely unaccepted in the world populous, and there are some countries which are more sensitive to these problems than others. As bgw has pointed out, however, America has progressed to a point where street violence is no longer resorted to. And that is certainly positive--and it is very different from what occurs in other parts of the world--i.e. Rwanda, India, Israel/Palestine, and many other regions of the world.
I must say to you, however, that this particular blog was directed at an American instance of racism looking for a solution to this problem here. That this blog has been limited in such a way does not mean that those subscribing to it do not know that the problem exists worldwide.

Now, I would also like to address bgw's statement that white America is particularly sensitive to being called "racist." As a white American, I agree. Personally, I was recently called a racist by another white American because I told him America will not be free from racism until we can get past statements like "That's an impressive accomplishment by that individual, especially because that individual was (insert race or ethnicity here)." I was deeply offended, not only because the term racist is disdainful but also because he proved my point by singularly making my comment an issue of such proportions. So, while I agree, I would add that I think it is a positive that many white Americans would feel such pain from being labeled racist. It shows that white America (with exceptions) has become much more sensitive to issues of race than it has in the past. And while I still recognize the continuing issues of race in our country, I am proud to say that the issues are being addressed more candidly and more openly.

Posted By : Travis

I'm with Chiefy (1/9/08) and others with similar v...

Message posted on : 2008-01-09 - 23:25:00

I'm with Chiefy (1/9/08) and others with similar views on this issue. Tiger and Kelley are friends, Kelly screwed up on the choice of words, and she has apologized. I think Tiger should do more in Kelly's defense than respond through a spokesperson.
Posted By : stanleyp

Give me a break. Al Sharpton loves to stir things...

Message posted on : 2008-01-10 - 00:57:00

Give me a break. Al Sharpton loves to stir things up. Didn't he just the other day slip and say something against Mormons? Um yea...I think so. Not wise for Kelly to use the terms but give me a break. There have been lots of people lynched besides black people.
Posted By : Anonymous

Re: (I'm very offended when people assume that I a...

Message posted on : 2008-01-10 - 08:32:00

Re: (I'm very offended when people assume that I am racist because I'm white. Look up the definition of the word racism- in short, it is, "the belief that all members of each race possess characteristics or abilities specific to that race." (Sounds like the belief of an author of a blog I just read) Judging someone based on race is a sign of true ignorance. When you're done trying to justify why black people can be racist and white people can't, why don't you look up the word "hypocrite.�)Anonymous -- 1/09/2008 7:48 PM

The author of this blog is a highly regarded professor in his field, and although he is discussing the persistent ignorance and racism that exists in American society today he is a white man. professor cummings has been able to see past his race and look at the big picture for what it is. so few of us can look past our personal identity to honestly look at race issues as they exist today (and they do exist). This is not merely an issue of poor word choice, but a white person choosing to use a word which for many in this country invokes the image of black bodies swinging from trees, sometimes mutilated and burned.

The cavalier manner in which the word lynch was tossed around and the personal ignorance of the individual who used it does not matter. What matters is that people feel absolutely comfortable saying inappropriate things until they are called on it. While I do not expect Tiger Woods to be personally offended (he has spent his career trying to remain racially neutral), the fact remains that people affiliated with the PGA have viewed him as a black man and have made other inappropriate comments connected to this perception of him as such (I seem to remember some comment about fried chicken and collard greens years ago). The lynching of black men, women, and children was often in response to not an actual crime or any valid wrong doing, but to some white persons opinion they needed to get them out of the way, or put others in their place. How is that different from the use of the word in this instance?

This is not about putting groups against one another, but acknowledging that discrimination and yes racism exists within the PGA as an institution. I commend professor cummings for have the courage and the ability to speak out against distressing instances such as this. To look the other way and pretend like this is not a big deal is precisely the reason why these issues continue to exist. Ignoring this incident and focusing on unrest in India or any other place would be irresponsible. While Americans do need to be more aware of global issues we should not do so at the expense of our own. There needs to be some balance between global outreach and national concern.

Posted By : Anoa

"The Golf Channel has chosen for now that Tilgh...

Message posted on : 2008-01-10 - 09:54:00

"The Golf Channel has chosen for now that Tilghman's choice of words in this context is a punishable offense."

No, it means The Golf Channel has no desire for this meaningless story to have any more legs, and it doesn't want the scam artists Sharpton, Jackson, and/or the PC Police to shake them down any further than Sharpton already has.

I'm betting Sharpton hasn't satisfied his starvation for attention yet and won't let the non-issue die. Unless of course, there was a back channel deal that Sharpton would go away it if TGC suspended Tilghman.

If TGC truly thought this was a punishable offense, they would've suspended her immediately.

Posted By : Tom Blogical

None of this matters. If sponsors pull or threate...

Message posted on : 2008-01-10 - 09:56:00

None of this matters. If sponsors pull or threaten to pull their advertisements, she will be gone. The dollar is not a racist, it is a realist. Sometimes the dollar employs racism. It certainly sells newspapers and fills blogs!
Posted By : Anonymous

Just to be clear, I wholeheartedly agree that she ...

Message posted on : 2008-01-10 - 10:25:00

Just to be clear, I wholeheartedly agree that she should be accountable for what she says on the air, and I think the appropriate response from her was an apology. It was a terrible choice of words. However, to compare this to the Imus situation is equivalent to making a mountain out of a mole hill.

The apology, and Woods' acceptance, should be good enough.

When I think of incidents like this, I use the Michael Richards incident as a comparison. There is a world of difference between what he said and what his intention was, and what Tilghman said and what her intention was.

Posted By : Tom Blogical

So sad. First off look up lynching. Definition doe...

Message posted on : 2008-01-10 - 10:41:00

So sad. First off look up lynching. Definition doesn't speak of race. The Wild West had many a lynchings and they were not racially motivated.

Secondly, so many kids today wouldn't even think of that kind of violence against another race. Yet we remind them and even carve out our own little definitions to meet the crime.

Kelly meant kill him. Funny? I don't know. But racial? Not a chance.

Posted By : bmac

Bmac - while I agree that the formal definition of...

Message posted on : 2008-01-10 - 10:49:00

Bmac - while I agree that the formal definition of lynching doesn't consider race, you can't deny that it's a racially-charged word.

And people should be aware of the context of the word - do you really want kids to be ignorant of the history behind the word and why it's such a charged word? It's entirely possible that Tilghman is ignorant and might not have let the word slip if she knew the offense it might cause (if not to Woods, then to others).

Maybe if more people were knowledgeable (read some of Ida B. Wells-Barnett's work, maybe) and understood the context of the word, it wouldn't be used so flippantly.

This comment comes off patronizing, I realize, but I just think decontextualizing words and ignoring their historical significance is dangerous and leads to the kind of usage like we saw Tilghman engage in.

Posted By : Satchmo

The BCS membership is ALL eleven FBS conferences a...

Message posted on : 2008-01-10 - 11:41:00

The BCS membership is ALL eleven FBS conferences and Notre Dame. Army and Navy are the only FBS schools not members.
Posted By : Mark

Anonymous said ..... "The Wild West had many a ly...

Message posted on : 2008-01-10 - 13:45:00

Anonymous said ..... "The Wild West had many a lynchings and they were not racially motivated."

Not true. Lynching victims in the "Wild West" were primarily Black, Mexican, Chinese, and Native American. Here is a synopsis of what research has found. Between 1848 and 1928 alone, researchers have found that 597 Mexicans were lynched. As to White victims, there is good documentation of around 20 Italian Americans being lynched between 1890 and 1900. (11 were lynched in one single incident in New Orleans in 1891.) It appears the number of Jewish persons lynched was under 10. It appears that less than 100 (most likely between 50 or 60) persons of European origin have been lynched.

Overall between the 1840's and 1951, around 3500 Blacks, 600 to 700 Mexicans, 300 - 400 Native Americans and 200 - 300 Chinese and East Indians were lynched. So if does not appear that more than 50 or 60 persons of European origin were lynched.

In total, somewhere around 5,700 persons have been lynched since the 1840's. In contrast, legal executions since 1608 have numbered approximately 16,000. So almost a third as many persons were lynched in 250 fewer years.

-bgw

Posted By : bgw

i took the comment as a joke, anyone can see that,...

Message posted on : 2008-01-10 - 14:43:00

i took the comment as a joke, anyone can see that, I really think the good Rev Al Shapton is not should spend more time in the church than trying to make headlines.
Posted By : Anonymous

Random thoughts, Mr. McCann:

I remember you...

Message posted on : 2008-01-10 - 15:00:00

Random thoughts, Mr. McCann:

I remember your comments about Michael Vick when he had his news conference. You sounded like you were part of his PR or family. You believed everything he said and his authenticity. Of course then we found out all of it was a bunch of lies. And the judge let him have it.

On Clemens, you don't give him even the tiniest bit of credit. Personally, that's exactly how I would have acted if accused falsely. (Not the timid "I have found Jesus of Vick".) Unlike many others, there is no direct link from a supplier to Clemens. McNamee claims that Clemens suppied the stuff he injected. He has never tested positive.

Why no outrage on NFL and steroids? Shawn Merriman tested positive and was out only 4 games. Did you and others want to take away his Rookie of the Year honors? Should he be playing and competing for a Super Bowl slot? After his game last week, he was introduced and given all kinds of kudos. AND HE TESTED POSITIVE!

Posted By : elena

Hi, where can I get some of these. Graham - www.lo...

Message posted on : 2008-01-10 - 15:37:00

Hi, where can I get some of these. Graham - www.logo-n-stitch.co.uk.
Posted By : Graham

Wonder if this portends the outcome of the Hamburg...

Message posted on : 2008-01-10 - 18:24:00

Wonder if this portends the outcome of the Hamburg/Qatar antitrust suit against the ATP. Although, that suit seems like a more classic antitrust case.
Posted By : Anonymous

I just want to make a minor clarification in your ...

Message posted on : 2008-01-10 - 21:36:00

I just want to make a minor clarification in your otherwise compelling post. Since the Golf Channel is, at least to my knowledge, a network found on cable systems, it is not deemed an over the air broadcaster for FCC purposes. So, I would not argue that the insult is made more compelling because it is shared in the public airwaves. It was insulting whether it was on broadcast, cable, print or Internet.
Posted By : Mark Conrad

Tiger is actually more Asian than anything else, s...

Message posted on : 2008-01-10 - 22:30:00

Tiger is actually more Asian than anything else, so the lynching comment isn't really relevant.
Posted By : Peter

Elena's middle comment reflects one of the things ...

Message posted on : 2008-01-11 - 09:00:00

Elena's middle comment reflects one of the things that I find so interesting about how people apply evidence to these situations and what is viewed as strong evidence. Elena decries the absence of a direct link to a supplier of steroids. But such a link would not establish that Clemens used steroids. It only establishes that he obtained them; it then takes a logical leap, albeit a reasonable one, to reach the conclusion that he used steroids. On the other hand, McNamee asserts that e took a syringe he knew to be filled with some steroid and he injected it into Clemens's body. Short of a positive drug test or a confession from Clements (neither of which is coming, or necessary), that is the most direct evidence of use that was contained in the report.
Posted By : Howard Wasserman

Why do people want to make victims out of every bl...

Message posted on : 2008-01-11 - 18:31:00

Why do people want to make victims out of every black? BY THE WAY, THEY ARE FRIENDS!

I think her comment shows that she does not see Tiger as black. I for one NEVER do. I would say something about him that I would say about a white golfer.

The viewership on the golf channel is what? 50 people? This would not be a big thing if the pc police were not searching for it.

And why bring up the Jena 6 into the conversation? Read up on it. The the rope had nothing to do with the eventual fight. The fight came later (months?).

As a kid, the only people I ever heard the "n" word from were blacks. I never could understand why my parents said it was a bad word. I heard it all the time at school.

Everybody needs to take a deep breath. I'm in Chicago. Have you read the news this past week? We've had so many black on black murders since Christmas. That is what should offend everyone.

Posted By : elena

What a welcome relief to have a posting such as th...

Message posted on : 2008-01-11 - 21:14:00

What a welcome relief to have a posting such as this (can we put Tiger talk behind us for a while?). This is a very insightful comment and why no one has mentioned it before is amazing. Clemens attorney should, indeed, be a part of this battle now as well. This act by the attorney is crooked....oh, don't worry: I'm sure the attorney will say that he was not acting as an attorney, but as an agent.....go ahead and drink your water, too...
Posted By : Anonymous

I thought what was even worst was that they have t...

Message posted on : 2008-01-12 - 02:24:00

I thought what was even worst was that they have tried to imply guilt in the conversation that any logical person would see is invalid. Sure McNamee never said that Clemens did take steroids, but at the same time he didn't say that Clemens didn't take steroids. Really, if this evidence can be applied in court I would be surprised
Posted By : Game Time Worouts

In California, such eavesdropping violates the pen...

Message posted on : 2008-01-12 - 08:12:00

In California, such eavesdropping violates the penal code if McNamee thought it was a private communication. Not so in other states.

As to the ethical rules, my understanding (and this is mostly CA law, where I argued a "communication with represented party" case on appeal a couple years ago, the attorney only violates the rules if they communicate with the person they know is represented in that matter. Communications not relating to the matter (e.g. small talk about the weather) don't count.

So, the three questions are:
1. Was McNamee clearly represented and did the lawyers know it?

2. Was McNamee represented in any sort of dispute relating to Roger Clemens specifically? (just having a lawyer generally may not be enough).

3. Most important, did the lawyers say anything to McNamee? If not, then I suspect that the rule is not violated technically, or even in spirit. If Clemens could have recorded the conversation legally to give to his counsel, then how is it an ethical violation to cut out the intermediary tape and just listen directly?

Even if the lawyers fed questions to Clemens, they could have done that before hand. I think the rule is designed to protect represented parties from harassment and coercion by "skilled" opposing attorneys, and talking to friends and acquaintances, no matter where the friend gets the materials, is not really enough.

Slimy? That's a whole other story...

Posted By : Michael Risch

The answers to no. no. 1 and 2 both should be a clear y...

Message posted on : 2008-01-12 - 08:36:00

The answers to no. no. 1 and 2 both should be a clear yes. McNamee had two different lawyers making comments in the paper about the truth of McNamee's testimony and threatening to sue Clements. Plus, doesn't the Mitchell Report indicate that McNamee had counsel present when he met with investigators?

As for no. 3, is the difference between Clemens doing this on his own and passing it along and the lawyers being directly involved in guiding, prepping, etc. Clemens to do this?

Can we analogize this to the use of police informants? If A's prison cellmate has a conversation with A in which A confesses and the cellmate snitches to police, the state is not deemed involved in eliciting the confession. But if the police send the cellmate in to for the specific purpose of geting the confession, the government is on the hook for any constitutional violations that might occur involving A's right to counsel.

Posted By : Howard Wasserman

What I find most compelling about this post and it...

Message posted on : 2008-01-12 - 09:23:00

What I find most compelling about this post and its subsequent comments, particularly the last two, is the fact that there is still a need to explain WHY comments such as this are inappropriate. I can not believe that people really don't get it.

The fact is racism against Blacks was a living, breathing, vicious animal in this country not very long ago. It has been the cause of countless deaths, turmoil and embarrassment for many Blacks in America for ages. Regardless of whether one individual sees Tiger as Black does not mean that he is not. We do not have to go that far back to a time where NO one would have cared that he was "more Asian" than Black. He still would have been called the “N� word and hung from a tree because he whistled at a white woman.[1]

It is clear to me that Americans would much rather sweep under the rug all the unfortunate circumstances Blacks have had to deal with in this country and make light of the mere fact that they ONLY dealt with those things because of the color of their skin. Tilghman's comment would NOT have been made if Tiger's skin color wasn't dark & he wasn't Black, because then there would have been no "joke".

Until the time comes where individuals stop trying to justify the use of words whose connotation have a KNOWN history of hatred, I will remain convinced that racism is STILL living and breathing in the United States of Amnesia. The need to explain why this is wrong and/or justify why it is okay to use such words demonstrates an alarming level of ignorance and insensitivity to what REAL people in this country have lived with.

It matters not that Tilghman considers herself to be Tiger's friend or that she did not “intend� ill will. All that matters is that a comment of lynching a Black man is INAPPROPRIATE. That should be where the discussion ends.

[1] http://www.jimcrowhistory.org/resources/pdf/hs_es_emmett_till.pdf

Posted By : deanna

Dear Mr. Milstein,

I agree the judge rethor...

Message posted on : 2008-01-12 - 11:18:00

Dear Mr. Milstein,

I agree the judge rethoric is over-moralistic. but:

1.jones did not only cheat children who idolized her - -she cheated opponents who devoted their lives to track and field. if you would have your life goals ruined by a cheat - would you not expect justice?

2. she ruined one of the greatest cultural events of our time - the olympic games. she should be treated as someone causing great cultural and financial damage.

Where I agree is with you is the strange urgency for her to serve her sentence now. she is no threat to anyone and one should' let her serve her time when the younger child is older.

Posted By : Anonymous

sorry - i posted the comment above - ronen dorfan

Message posted on : 2008-01-12 - 11:19:00

sorry - i posted the comment above - ronen dorfan
Posted By : ronen@mi-sport.com

Oh, but of course: Clemens' lawyer did no wrong......

Message posted on : 2008-01-12 - 11:58:00

Oh, but of course: Clemens' lawyer did no wrong...
Posted By : Anonymous

Oh, yes, the oppressed African-American community ...

Message posted on : 2008-01-12 - 12:01:00

Oh, yes, the oppressed African-American community is lynched by the Bush administration, federal judges, and the Justice Department yet again. Nothing to do with perjury, just race...C.J. Hunter a victim, too....and Gatlin...
Posted By : Anonymous

She was supposedly not charged with taking steroid...

Message posted on : 2008-01-12 - 12:18:00

She was supposedly not charged with taking steroids but with lying to a grand jury. So whether he cheated other athletes is irrelevant. Her medals have been strpped from her so she has paid for her athletic transgressions. The only questions are whether she should be put in jail for the perjury offense and why her.
Alan Milstein

Posted By : Anonymous

Unbelievable, isn't it Rick? Ihave never seen a Ju...

Message posted on : 2008-01-12 - 12:28:00

Unbelievable, isn't it Rick? Ihave never seen a Judge so blatantly declare the wrong reason for doing what he was doing.
Alan Milstein

Posted By : Anonymous

But of course: it's all political.

Message posted on : 2008-01-12 - 12:30:00

But of course: it's all political.
Posted By : Anonymous

As for no. 3, is the difference between Clemens d...

Message posted on : 2008-01-12 - 12:34:00

As for no. 3, is the difference between Clemens doing this on his own and passing it along and the lawyers being directly involved in guiding, prepping, etc. Clemens to do this?

Can we analogize this to the use of police informants?


I certainly think there is a difference with the prepping, but what lawyer hasn't prepped his or her client for an important meeting with an opposing party. We did that all the time. We couldn't listen in (in CA), but we certainly could give the client angles to use, and zealous advocacy demands nothing less.

I don't think there is an analogy to the informant situation.

First, if something is to be barred by the ethical rules (which can cause a lawyer to lose his or her livelihood), it must be crystal clear. This is a much higher standard than the nebulous "constitutional violations" of an agent.

Second, the question is not admissibility of evidence - if the lawyers coach Clemens to say something that gets an "improper" admission from McNamee, then it might not be admissible - but that's not an ethical violation.

Third, the rule is pretty clear - the lawyer may not communicate with a represented party - but listening is not communicating.

Posted By : Michael Risch

Do the rules, the commentary, or case analysis sta...

Message posted on : 2008-01-12 - 13:50:00

Do the rules, the commentary, or case analysis state that "listening is not communicating", to the extent you know? I ask in all seriousness because it is not obvious to me that listening is not communicating; I could see a good argument that it is. Because if listening is not communicating, that means I have no obligation to stop the opposing (represented) party in a case from talking to me about the case in the hallway. Maybe I don't have such an obligation, but I would like to know more.
Posted By : Howard Wasserman

Playing the race card. Again.

Message posted on : 2008-01-12 - 14:35:00

Playing the race card. Again.
Posted By : Kevin

From the notes on 2-100:
"Rule 2-100 is not in...

Message posted on : 2008-01-12 - 15:16:00

From the notes on 2-100:
"Rule 2-100 is not intended to prevent the parties themselves from communicating with respect to the subject matter of the representation, and nothing in the rule prevents a member from advising the client that such communication can be made."

In one case in CA, La Jolla, the lower court held that it was proper for the client to obtain a declaration from a represented opposing party. The appeals court affirmed on other grounds, and thus never reached the question.

Note that this is may be different than a courtroom hallway - if you are standing right there when opposing party talks to your client, your body language, nods, etc. would likely be considered "communicating." But, what if (like in a soap opera), you are just around the corner and overhear the conversation that your client is having (assuming such eavesdropping is otherwise legal). Is that communication? I think not. Do you have to come out and say - "Wait, I can hear you." I don't think so.

That's how I see the Clemens call - though reasonable minds can differ.

Final note: I think prepping is Okay, but if Clemens is acting as an intermediary for the lawyer (realtime question feeding), then it is a much closer case that it is "indirect" communication, though I still land on the "OK" side so long as it is the client and not an investigator or "snitch".

Posted By : Michael Risch

Anonymous said... (1) i took the comment as a joke...

Message posted on : 2008-01-12 - 15:18:00

Anonymous said... (1) i took the comment as a joke, anyone can see that, I really think the good Rev Al Shapton is not should spend more time in the church than trying to make headlines.

and (2) PEOPLE , LET STOP, ...GOD!!!!

What is the harm in trying to explain and examine the differing conclusions/opinions on this matter in a civilized manner? No one has been attacked anyone for feeling that the comment was only a joke or that its being taken too seriously by some. We'd simply like to better understand the reasons or feelings behind the differing opinions. Re Sharpton, no one on this blog has supported his involvement or his approach to this matter. I indicated my displeasure at his possible involvement in an earlier post. And my reason for that is simply that Sharpton and his ilk choke off conversation and communication among Americans about topics on which we need more understanding and exchange of perspectives not less. The goal, in my view, is not necessarily to reach instant consensus but rather to try to at least better understand the differing views.

-bgw

Posted By : bgw

It's egregious. The judge felt that lying about s...

Message posted on : 2008-01-12 - 16:26:00

It's egregious. The judge felt that lying about steroid usage was 3X worse than lying about her knowledge of the check fraud scheme -- she was sentenced to six months on the steroids case and two months on the check fraud case. All in the name of sending a message to athletes who have abused drugs and overlooked the values of "hard work, dedication, teamwork and sportsmanship."
Posted By : Rick Karcher

Ronen,

She "ruined one of the great cultura...

Message posted on : 2008-01-12 - 16:55:00

Ronen,

She "ruined one of the great cultural events of our time"? She "should be treated as someone causing cultural and financial damage"? This all sounds like an exaggerated and emotional way of simply saying that there wasn't a level playing field. Please articulate the great harm to society from causing an uneven playing field in sport that warrants the MAXIMUM sentence, let alone ANY criminal sanction (as opposed to some form of civil sanction). Everyday people drive motor vehicles under the influence of alcohol and drugs, putting the lives of thousands of innocent people at risk, and they lie about it too, and they don't face the penalty that Jones received.

Regarding your first point, do you believe that all "cheaters" in society deserve jail time? What about those who cheat on law school exams or commit plagiarism, and then lie about it?

Posted By : Rick Karcher

Kevin - we shouldn't dismiss this post as "playing...

Message posted on : 2008-01-12 - 17:00:00

Kevin - we shouldn't dismiss this post as "playing the race card." Playing the "race card" card just cuts off conversation (and doesn't contribute to it in any meaningful way) about a very valid topic - the double standard Mr. Milstein refers to the in the post.

While I'm not sure that we should take into account the current Justice Department's legitimacy in analyzing the sentence (I feel it's separate from the topic of the Judge's stance towards athletes, in which we can, I think, look at public perceptions of the responsibilities of "entitled" athletes), I think it's something to be discussed.

Posted By : Satchmo

Without addressing the race issue, it's unclear to...

Message posted on : 2008-01-12 - 18:11:00

Without addressing the race issue, it's unclear to me how this is a double standard.

1. People look up to you, so we are going to hold you to a higher standard.

2. So, if you thought you would get off because people look up to you, you were wrong.

Seems very consistent to me...

Posted By : Michael Risch

Elena, let me add that Martha Stweart did d...

Message posted on : 2008-01-12 - 22:05:00

Elena, let me add that Martha Stweart did do time as well (six months, I believe, in a federal prison) and is now out.
Posted By : Anonymous

Mr Milstein, Mr. Milstein, Mr. Milstein . . . . le...

Message posted on : 2008-01-12 - 22:27:00

Mr Milstein, Mr. Milstein, Mr. Milstein . . . . let me remind you (AGAIN) that Alberto Gonzalez is no longer the Attorney General of the U.S. And, what "moral authority" do YOU have?

The choice of whether to prosecute a case rarely--if ever--gets to the level of the POTUS. His involvement in a case usually, if not involving him as defendant, is choosing to commute or pardon or not--a rarely-used option given the number of cases on a yearly basis. This is a decision made more often at the level of a state's governor or district attorney.

Further, WHO the POTUS chooses to pardon is his choice for HIS reasons. Quite frankly I was surprised when Libby was found guilty, even though there was no apparent crime (similar to the Martha Stewart case, when she was haled up on perjury charges which had nothing to do with the original case). My question was why wasn't Richard Armitage, the true leaker, in the dock instead of Libby?

I wonder if you had the same venom on this subject when the President was Clinton and he had all the pardons signed in his last 24 hours.

Next, it wasn't just blacks who have been hauled in for perjury: Martha Stewart, for one; Bond's trainer, for another, isn't black. Neither, if I recall right, is Marian Jones' coach.

Part of the problem is the attitude that if a celebrity--sports, film, political, whatever--"gets off", that they had "priviledges" due to having "lots of money" that we "ordinary people don't have/can't get" because of their status; so when someone like a Bonds, Jones, Stewart, etc. DOES get convicted (they didn't get off because of money, status, etc.), there is a "double standard" now? At least be consistent!

The only "sad injustice" in this case is for Marian Jones' kids, for they did nothing wrong. Their mother did (twice in two different cases) and is paying the price. I do agree that maybe she should serve her time at a later date (if upheld on appeal) or had time suspended--but not no time at all.

Posted By : Anonymous

rick,

good question. cheating at law school...

Message posted on : 2008-01-13 - 04:49:00

rick,

good question. cheating at law school is something more difficult to quantify as far as the damage to others is concerned.

cheating in the olympic final may result in an athlete from bahama or nigeria not winning a medal she worked for her entire life
. she may not get a 30k from her nation's sport authority that may be enough to buy a house in her country (this is not MLB - multi-millionaires cheating multi-milionaires). The damage is real and in some cases changes people's lives.

I may be extreme = but for me drug cheating at the olympics is not about "even playing field". The olympics are a cultural heritage of the world - it is similiar in my eyes to someone walking into a museum and ruining an imports art work or stealing archeological artifacts.

So I don't agree that giving back her medals and humiliation is enough of a punishment.

I want to make it clear. These are the reasons I would LEGISLATE to make drug cheating a criminal offense. And make this legislation a condition of Olympic participation.

So I do a agree with the result and not sure about the means.

On a completely different issue - I am not sure what the pardoning procedure is with federal cases. Separating her from the young child borders and infringement of the bill of rights. but that is for the executive to solve through open prisons. etc. I don't know if these exist in the US

ronen

Posted By : Anonymous

Look, the principle behind the justice system is t...

Message posted on : 2008-01-13 - 09:10:00

Look, the principle behind the justice system is that individuals must accept the consequences of their actions. So when the POTUS pardons his friend who was convicted of perjury in a rather serious matter, there must be consequences. And those consequences in my book must be that people like Marion Jones get to stay home with their chlildren.
As to my friend Bill Clinton, he did not have to serve time for perjury either. And while Martha did, wasn't it obvious she was being singled out because of her celebrity and because the prosecutor wanted a feather in his cap? To lock people away for such actions is just wrong. To lock them away for the wrong reaons is criminal.
Alan Milstein

Posted By : Anonymous

The merits of PED and steroid use are one thing, b...

Message posted on : 2008-01-13 - 09:29:00

The merits of PED and steroid use are one thing, but do use 'role model' status to influence a decision is completely out of line. I'd love to hear that played out not only for those who work for the 'greater good', but for musicians, actors and actresses who have also attained a certain role model status. Of course, because athletes (fairly or not) have always been held in a different realm compared to others - including the said entertainers - many of the unfortunate circumstances they encounter will always be scrutinized and judged more severely.
Posted By : Jason Clinkscales

how do you read into a story in ESPN today - that ...

Message posted on : 2008-01-13 - 16:09:00

how do you read into a story in ESPN today - that clemens is re-considering speaking under oath to congress. do you think he is being cautious because of the jones case? do you think this means bonds is at a huge risk of serving time if convicted?

ronen

Posted By : ronen@mi-sport.com

Whoever is designing the Clemens pr defense has ma...

Message posted on : 2008-01-13 - 17:34:00

Whoever is designing the Clemens pr defense has made some questionable moves and is playing a serious game of chicken. I think most attorneys in such cicumstances will tell you it is ok to believe your client but you better plan for the possibility that he has not been completely candid with you. I don't think team Clemens has heard that maxim.
Posted By : Anonymous

it seems pretty clear that clemens was coached whi...

Message posted on : 2008-01-13 - 17:43:00

it seems pretty clear that clemens was coached while this phone call was going on. Hardin should be disciplined.
Posted By : Anonymous

rusty hardin was talking to mcnamee...
only us...

Message posted on : 2008-01-13 - 17:45:00

rusty hardin was talking to mcnamee...
only using clemens as a microphone.

that can't be allowed under 4.2

Posted By : Anonymous

Been looking for a transcript of the judge's state...

Message posted on : 2008-01-13 - 23:10:00

Been looking for a transcript of the judge's statement since one article said he talked for 20 minutes but haven't yet found it.

But I can't think of a context adjustment that would make saying that Marion Jones overlooked the values of "hard work, dedication, teamwork and sportsmanship" rational or intelligent, anything but ass-holish.

No matter what drugs Marion Jones took or when, she didn't overlook 3 of these 4 values. She worked as hard as physically possible (and may have used drugs to work harder than physically possible). She was very dedicated - taking PEDs is the opposite of being a non-dedicated recreational drug abusing, beer-swigging, Big Mac-eating hedonist. As a runner, her teamwork responsibility was to run as fast as she possibly could, and that she did.

Posted By : Anonymous

Race card? Snicker.

Message posted on : 2008-01-14 - 00:47:00

Race card? Snicker.
Posted By : Anonymous

IAAF will surely win. This guy can run in the para...

Message posted on : 2008-01-14 - 12:57:00

IAAF will surely win. This guy can run in the paralympics.
Posted By : Anonymous

I think Mr. Milstein is dead on when he suggests t...

Message posted on : 2008-01-14 - 16:12:00

I think Mr. Milstein is dead on when he suggests that the federal government has questionable motives when it advocates for putting Marion Jones in jail. The larger "war on doping" is very much a function the very low international public opinion of the United States, especially on matters related to doping in sports. For decades, the federal government has ignored the problem and turned a blind eye to the countless super star Olympic athletes who were cheating. Only when our international reputation was in tatters (we were likened to East Germany and some even suggested that we not be allowed to host another Games until we cleaned up our act) did Congress decide to start fighting for the integrity of Olympic competition. People have said that we have a socio-economic draft with respect to the war in Iraq. Looks like we've got one in our war on doping as well.
Posted By : dionne

Since when does the Justice Department 'sentence' ...

Message posted on : 2008-01-14 - 16:20:00

Since when does the Justice Department 'sentence' anyone?

Prosecutes, yes. Sentences, no.

Sloppy writing: a hallmark of ideologically-driven blog arguments. I thought this blog was better than that.

By the way, the Judge who imposed the sentence is no hack. He was praised as a moderate and well-qualified nominee... by Patrick Leahy.

http://leahy.senate.gov/issues/nominations/karas.html

Posted By : Anonymous

my problem with the decision is double:

1. ...

Message posted on : 2008-01-14 - 17:50:00

my problem with the decision is double:

1. unlike drugs we have no cheating element here.

2. there is no danger of this becoming a trend.

so let him run - as far as i know he is a marginal semi-final prospect.

Ronen

Posted By : ronen@mi-sport.com

Truly, it is immaterial whether Woods & Tilghm...

Message posted on : 2008-01-14 - 18:38:00

Truly, it is immaterial whether Woods & Tilghman are best friends or strangers. That is relevant for the feelings in their personal relationship, but not between The Golf Channel & its public.

Also, Tilghman being 'racist' or not is immaterial as well. As an on-air anchor, she committed a mistake and was thus punished for it. So, it doesnt matter whether or not YOU, I, the President or Alan Cummings view Tiger Woods as Black. It is wholly insulting to assume that this only concerns Woods.

In fact, Woods has famously claimed that he's NOT "Black" but comblinasian. Yet there are scores of people who DO identify as Black, or simply decent Americans who dont treat lynchings in cavalier conversation.
Yet, it is interesting that neither Fuzzy Zoeller or Kelly Tilghman didnt make a Thai, caucasian or native american jokes.

Posted By : Anonymous

Unfortunately for those who feel that Casey and th...

Message posted on : 2008-01-14 - 20:59:00

Unfortunately for those who feel that Casey and this guy are all victims of some sort of discrimination, the IAAF really does not care. It only cares about enforcing it's own rules. Ahh, the sweet and refreshing taste of international sports law justice: Make rules and enforce rules-such a foreign concept to Americans and Major League Baseball.
Posted By : Anonymous

Should one injustice leave the door open for anoth...

Message posted on : 2008-01-14 - 22:53:00

Should one injustice leave the door open for another?

Like it or not, and regardless of her skin color, Jones broke the law in multiple ways, multiple times.

The judge's mistake was making this about celeberity when it should really be about a woman who just broke the law - nothing more.

To make this about race only prolongs tensions between those focusing on their differences, rather than similarites. Blacks who make this a racial issue are as making the same mistake whites make when they help perpetuate the same problem.

Get a grip.

Posted By : Anonymous

wasn't the hearing pushed back to mid february?

Message posted on : 2008-01-15 - 09:35:00

wasn't the hearing pushed back to mid february?
Posted By : Anonymous

Thanks for the comment. There are actually two rel...

Message posted on : 2008-01-15 - 10:41:00

Thanks for the comment. There are actually two related hearings.

The hearing that will feature Roger Clemens, Brian McNamee, Andy Pettitte, Chuck Knoblauch, and Kirk Radomski has been pushed back to February 13.

The hearing that features former Senator George Mitchell, Bud Selig, and Donald Fehr is happening right now.

Posted By : Michael McCann

Does Connecticut test, too?

Message posted on : 2008-01-16 - 12:12:00

Does Connecticut test, too?
Posted By : Anonymous

Jimmy H.,

The Northern District of Illinois...

Message posted on : 2008-01-16 - 12:38:00

Jimmy H.,

The Northern District of Illinois has found that despite similarities to the NCAA, "the IHSA clearly is a state actor." Libby v. South Inter-Conference Ass'n, 728 F. Supp. 504, 506 (N.D. Ill. 1990).

The IHSA has argued that it is not a state actor based on Nat'l Collegiate Athletic Ass'n v. Tarkanian, 488 U.S. 179(1988), in which the US SC held that the NCAA is not a state actor. The IHSA then argued similarities to the NCAA like voluntary membership of both public and private schools, and the absence of "any delegation of any disciplinary power by member schools to IHSA", and, finally, that the IHSA has no governmental powers. However, the Northern District of IL found that there are important differences as well, most siginificantly, that the IHSA is composed entirely of Illinois high schools, the majority of which public. Id. at 507.

As for how the US SC views testing of HS student athletes, Vernonia is instructive, the difference being that the test was administered by the school.

The court was called to determine if the urine test violated the students Fourth Amendment rights, which protects people from unreasonable search and seizures. A determination of whether a search is reasonable is determined “by balancing the intrusion on the individual's interests against its promotion of legitimate government interests�

The court turned their discussion to three main areas: (1) privacy of the student; (2) intrusion upon the student; and (3) importance of the testing.

The court found little problem with the privacy issues. To begin with, in school settings students have less constitutional and privacy rights then adults. For example, a school can require a student, for the benefit of that student and fellow classmates, to submit to various physical examinations. Student athletes have even less expectations of privacy then the rest of the student body. When a student decides to play on a school sports team they subject themselves to a level of less privacy and more regulation then what students are generally subjected to.

The court also found that the urine test, at most, negligibly intrudes into the privacy of students. Students are impacted in two possible ways. The first is in the administration of the test. The test requires the students to do nothing different then they normally do. The test is administered by the students merely using the bathrooms as they normally would. The second issue is in finding out what is in the student's body. Since the school is only looking for drugs and the results are only given to limited class of school personnel, there is no real intrusion upon the student's privacy. Furthermore, even if the student is required to turn over medication they are currently on, the invasion of their privacy is not significant.

The last issue for the court to consider is whether the issue is important enough to justify the testing. The court determined that deterring drug use by students is important, and possibly compelling. The negative effects drugs have on students justify the urine testing. Furthermore, ensuring student athletes do not use drugs helps to address the drug problem that is fueled largely though athletes use of drugs.

The court does warn, however, that other suspicionless drug testing may not pass constitutional muster. Of particular importance here is the fact that a school is a guardian and tutor of the students and that the steps taken by the school are that which a reasonable guardian and tutor may take.


Anon. 2,

To my knowledge, only IL, NJ, FL, and TX have performance enhancing drug testing programs.

Thanks for the response,
Tim Epstein

Posted By : Tim Epstein

This is so sad... After all those years of denial....

Message posted on : 2008-01-16 - 15:26:00

This is so sad... After all those years of denial. At least she came clean.
Posted By : sportsbookers

6 months jail time is nothing! The shame of living...

Message posted on : 2008-01-16 - 15:28:00

6 months jail time is nothing! The shame of living with it for the rest of her life is the hardest part to deal with.
Posted By : sportsbloggers

Isn't the threshold for citizenship pretty low? D...

Message posted on : 2008-01-17 - 08:44:00

Isn't the threshold for citizenship pretty low? Domicile = presence plus intent to remain indefinitely?
Posted By : Anonymous

Your links are bad. Change the www.blogger.com in...

Message posted on : 2008-01-17 - 12:40:00

Your links are bad. Change the www.blogger.com in them to si.com
Posted By : Anonymous

Yes, but, as indicated in some of my updated comme...

Message posted on : 2008-01-17 - 13:31:00

Yes, but, as indicated in some of my updated comments, it is not clear he is present in a way that would satisfy the statute.
Posted By : Howard Wasserman

Thanks, I fixed the links

Message posted on : 2008-01-17 - 15:26:00

Thanks, I fixed the links
Posted By : Michael McCann

But if citizenship in the jurisdictional context i...

Message posted on : 2008-01-17 - 16:37:00

But if citizenship in the jurisdictional context is equivalent to domicile, would it be necessary to say that he is a "citizen" of Michigan?
Posted By : Anonymous

The foundation of our legal system requires honest...

Message posted on : 2008-01-17 - 19:58:00

The foundation of our legal system requires honest testimony, however biased. If perjury is not persecuted our legal system will collapse.

Ms. Jones was convicted of multiple instances of outright lying; that more than justifies her sentence, independent of her race.

We can all speculate as to who has committed perjury, but the key is who has been convicted?

As for Libby, I find his conviction somewhat satisfying. BTW I believe his sentence was commuted, but the conviction stands.

Posted By : qtlaw24

America must never forget the pain caused by lynch...

Message posted on : 2008-01-17 - 22:02:00

America must never forget the pain caused by lynching. It does not matters if the anchors women's comments were crafted as a harmless joke, not intended to offend but to entertain, the insensitivity of the comments goes well beyond ignorance. While Tiger may not be able to challenge such comments without jeopardizing his stature among his peers, they affect a greater audience. Even though this is 2008, some still think lynching is the only way to control the movement of a person or people. Again, Tiger may not care, but those of us who understand the "Dream" know that there this is no place for these types of comments in present day America.
Posted By : Anonymous

OK, now I have a fill in the blank for all of you ...

Message posted on : 2008-01-18 - 04:51:00

OK, now I have a fill in the blank for all of you to answer, even "bgw" and the ones who run this blog site:

How would YOU have filled in the blank in the following sentence, in Ms. Tilghman's position :

"The only way to stop Tiger Woods from dominating is _________________."
[fill in the blank]

No copping-out, no "I wouldn't have said that", etc. . . . what is YOUR answer?

Mine would have been: "The only way to stop Tiger Woods from dominating is to make Tiger play with only ONE club."

Also, what was REALLY worse: Tilghman's on-air comment or GolfWeek's cover of a noose? (The noose by far!)

Posted By : Anonymous

Well it's pretty obvious that it's the latter -- N...

Message posted on : 2008-01-18 - 08:17:00

Well it's pretty obvious that it's the latter -- Newsday devoted a full page to Golfweek in today's edition, and everyone is talking about Golfweek instead of Golfworld (their direct competitor), which had a terrific cover story about Billy Spiller:

http://www.golfdigest.com/golfworld/columnists/2008/01/gw20080118barkow

It's an excellent article, the full text is available at the link.

Posted By : Prof G

How many real lynchings have there been in ...

Message posted on : 2008-01-18 - 09:22:00

How many real lynchings have there been in America within living memory? Hint: Tuskeegee University, which for decades published an annual report on lynchings, stopped doing so way back in 1959 - almost a half-century ago - because there wasn't anything to report.

Much ado about nothing.

Posted By : Peter

What would really make this fun is if the Universi...

Message posted on : 2008-01-18 - 11:25:00

What would really make this fun is if the University of Michigan moved to intervene as a defendant--which would give the Supreme Court original jurisdiction as a trial court.
Posted By : Anonymous

I disagree. Golfweek made two wrongs here.
<...

Message posted on : 2008-01-18 - 12:44:00

I disagree. Golfweek made two wrongs here.

First, Golfweek is doing the same thing that Tilghman did (but it's perhaps worse because it's premeditated on Golfweek's part). Golfweek is using a racially discriminatory phrase and photo in a completely new and different "context" -- by saying that Tilghman and Golfweek are caught in a noose and can't wriggle free. That is not, in any way, shape or form, news reporting about what Tilghman said in reference to Tiger Woods.

Second, not only is the statement and photo unacceptable, but the motive for doing so is simply to sell a magazine. Howard, don't you acknowledge at least somewhat that this crosses the line of ethical news reporting? By the way, the editor was fired today.

Posted By : Rick Karcher

To Peter:

I don't understand your comment: ...

Message posted on : 2008-01-18 - 13:46:00

To Peter:

I don't understand your comment: "Much ado about nothing." Are you suggesting that the magazine cover is not controversial (and therefore not blog-worthy) merely because mob lynchings are less frequent today than there were historically? If that's your point then I must disagree. First, your point that there aren't many/any "real lynchings" anymore is irrelevant. Even if there aren't so many "real lynchings" anymore, perhaps that's because those who are racially motivated to kill a black person choose to drag that person to death rather than hang them by a noose. (There are several recent cases of that type of violence, not to mention the many other creative ways that those who are racially motivate to kill choose their method of execution.) In other words, there's far too much racially motivated violence in our country, whether by lynching or some other heinous method of murder. Second, whether or not "real lynchings" take place, the symbol of the lynch and noose continue to reverberate through our collective consciousness. Wasn't it Clarence Thomas, an African-American, who invoked that imagery not too long ago to describe how he felt when the predominately white male Senate attacked his character during his Senate-confirmation hearings? The mob lynch and the noose have come to symbolize white on black violence. Few missed the message that Thomas wanted to convey--a mass white on black character assassination.

The magazine was trying to be clever. It was trying to reverse the imagery, but in the process, it disrespected those who are outraged about Kelly Tilghman's original comment. After all, Kelly Tilgman, a white woman, has been criticized for suggesting that the only way to stop Tiger Woods--a man of color and the indisputably greatest golfer in the world--would be for the predominantly white mob of less accomplished golfers to lynch Woods. It's a far stretch to suggest that those critical of Tilghman (and those calling for her termination) are lynching her or her network--even metaphorically speaking. Perhaps the magazine merely meant to suggest that Tilghman and the network are "hanging themselves." But that just shows poor judgment. In this context, the noose suggests a racially motivated assassination. And the magazine should have known better--and perhaps did know better but ran with the cover, as Prof. cummings suggested, to grab attention (meaning more sales). Shame on them if that was their motivation.

Posted By : Lo

Anonymous said..... How would YOU have filled in ...

Message posted on : 2008-01-18 - 13:56:00

Anonymous said..... How would YOU have filled in the blank in the following sentence, in Ms. Tilghman's position :

"The only way to stop Tiger Woods from dominating is _______________."
[fill in the blank]

The only issue to me is how she could have been funny, incisive, opinionated or whatever without being racially insulting. So what her broadcast partner said was ok to me, i.e. "gang up on him". The other prior suggestions of "whacking him" or "taking him out" do not to me seem to raise this issue despite the violent imagery. My opinion is that there is a large universe of things she could have said and a small range of things to avoid.

If "whacking" or "capping" raises an ethnic or racial issue to Italian-Americans, I would welcome being informed on why that is so. I don't have HBO and have never seen Sopranos but I do know that many Italian-Americans find the portrayals to be negatively sterotyped. I percieve their issue to be that the show implies that Italians are criminals, violent, immoral, etc. (fyi - I have protested rap lyrics for 20+ years.) But I'm not aware if the terms "whack" or "cap" are percieved to be negative references specifically to Italian-Americans. So let me know.

But I believe Anonymous' position to be that there is no way to draw any line and so society needs to lighten up and take all comments in stride. If I have correctly captured this position, I'd like to see opinions on why this should be so and how this would/could prove to be a good thing for society.

-bgw

Posted By : bgw

Anonymous said... Also, what was REALLY worse: Til...

Message posted on : 2008-01-18 - 14:06:00

Anonymous said... Also, what was REALLY worse: Tilghman's on-air comment or GolfWeek's cover of a noose? (The noose by far!)

Re the Golf magazine "noose" cover, I was not aware of it. My gut reaction is that here I do understand what they are trying to do i.e. get across the point of how sensitive this issue is for some people. However, I believe such efforts needlessly inflame the issue. Its sort of how I, as a black American, view tactics such as Al Sharpton's. In my view it is not useful to use insults, accusations, hostility, etc. to illustrate why something has offended. Rather we need two way communications about each side's views, not images or words that inhibit communication.

I don't think the noose on the cover changes anyone's mind who feels the Tilghman's comment was OK or that it did not justify punishment from her employer. Nor the opinions of those with the opposite view. Some people were already trying to discuss the comment civilly. I think the only thing it might do is increase is un-civil discourse.

-bgw

Posted By : bgw

Rick and I are going to end this by agreeing to di...

Message posted on : 2008-01-18 - 14:16:00

Rick and I are going to end this by agreeing to disagree on this, so I will just respond with a couple things.

First, if (as I suggested in the post), a noose is central to a lynching of which Tilghman spoke, then it is, at some metaphorical level, true to say she got caught in that same noose. Not saying she was lynched--let's say that she got caught up in a lynching.

Second, what happened to Tilghman *is* a part of this story and any reporting on it, including arguments (whether one buys them or not) that she has been treated unfairly.

Third, nearly all speakers--newspapers, magazines, book authors--act with a profit motive. So I will not ascribe anything to the fact that they were trying to sell magazines.

Posted By : Howard Wasserman

Aaron: so true! Good job. Let's see how it plays o...

Message posted on : 2008-01-18 - 14:26:00

Aaron: so true! Good job. Let's see how it plays out...
Posted By : Anonymous

In fact, the kind of drugs we are talking about ac...

Message posted on : 2008-01-18 - 14:50:00

In fact, the kind of drugs we are talking about actually improves on-the-job performance for baseball players (if this wasn't the case, the players wouldn't be taking the drugs in the first place).

This is the reason why the rationale here is failing, and also (as has been pointed out on this blog) why the league (that is, the owners) has little incentive to stop the drug use.

The league should thus leave the decision to the players: either switch to an "anything goes" format, or have the players (via their association) be responsible for regulating each other.

Posted By : Anonymous

Aaron, what a great posting! I am glad to see 1Ls...

Message posted on : 2008-01-18 - 14:59:00

Aaron, what a great posting! I am glad to see 1Ls jumping in with interesting thoughts.

There is, however, one problem with this suggestion. If drug testing were not a mandatory term or condition of employment, and MLB clubs unilaterally implemented a ban of players that have tested positive for drug use on three occasions, then a court might find that the agreement amongst clubs to ban such players actually violates Section One of the Sherman Act as a concerted agreement amongst competitors to boycott a class of employee. While a court would likely look at this sort of group boycott under antitrust law's Rule of Reason, it would be difficult for the MLB clubs to show a pro-competitive effect of such a policy, in the economic sense. (For those that might be thinking about the 1961 Molinas case and the S.D.N.Y's decision allowing the NBA clubs to ban for a life a gambler, remember that case was decided under the old interpretation of Rule of Reason, requiring just a legitimate business reason, and not a pro-competitive effect).

Indeed, one may argue that baseball is exempt from antitrust law under the Curt Flood Act of 1998. However, given this dispute would involve a labor-side claim brought by an MLB player, one can reasonably argue that the language in the Curt Flood Act does not extend baseball's purported exemption nearly this far.

Posted By : Marc Edelman

Aaron: forget others' claims of potential violatio...

Message posted on : 2008-01-18 - 15:30:00

Aaron: forget others' claims of potential violation of antitrust laws. Congress can amend the law/acts. It's that simple.
Posted By : Anonymous

On the alter-ego doctrine, there is a case in Four...

Message posted on : 2008-01-18 - 16:33:00

On the alter-ego doctrine, there is a case in Fourth Circuit, Maryland Stadium Authority v. Ellerbe Becket Inc.,that is on point to the question of whether public universities are alter-egos. The court concluded that the university in that case was, but may have stopped short of announcing a broader rule applicable to all public universities. Anyone interested can find the text of the case at http://pacer.ca4.uscourts.gov/opinion.pdf/041743.P.pdf

By the way, I had Professor cummings for a few classes during my time at WVU Law; I'm sure he's in Sports Law/Civ Pro heaven right now as well.

Posted By : Brian

Anonymous:

The only way this case could be ...

Message posted on : 2008-01-19 - 01:15:00

Anonymous:

The only way this case could be in federal court at all would be in the Supreme Court on original jurisdiction. SCOTUS has original and exclusive jurisdiction over controversies between two or more states and original but not exclusive jurisdiction over actions by a State against a citizen of another State (where the case is in federal court on diversity). Unfortunately for Rodriguez, there is no removal from a state trial court to SCOTUS.

Posted By : Howard Wasserman

Stub Hub is killing me over tickets that I posted ...

Message posted on : 2008-01-19 - 08:55:00

Stub Hub is killing me over tickets that I posted twice but I did get this e-mail from them.. Does anyone believe I should be charged $1200 for replacment tickets after getting this confirmation?

Dear Douglas,

Your transaction has been cancelled. You will no longer be required to confirm
or ship the tickets for the event listed below. Please disregard any other
emails you may have received regarding this transaction. The tickets remain
yours to do with as you please. If there is enough time remaining, you can
repost these tickets.

Transaction no. :
Event: Pittsburgh Steelers at New England Patriots Tickets
Venue: Gillette Stadium
Date: December 09, 2007 04:15 (EST)
Ticket Cost: $440.00


If you have any questions, comments, or concerns, please contact customer
service by telephone at 866.StubHub (866.788.2482) or by email at
customerservice@stubhub.com.

Posted By : doug

Re: your third point, it's not a profits issue, it...

Message posted on : 2008-01-19 - 10:14:00

Re: your third point, it's not a profits issue, it's an ethics issue.
Posted By : Rick Karcher

So what would happen if

1) Moss were still...

Message posted on : 2008-01-19 - 12:00:00

So what would happen if

1) Moss were still subject to the TRO

2) The Patriots were scheduled to play a game in Miami

3) The young lady with the TRO was a member of the Miami Dolphins Cheerleaders

He can't come onto the field. Any point is within 500 feet of where the cheerleader perform.

Posted By : Anonymous

Don't forget about the other 8000-lb. gorilla, the...

Message posted on : 2008-01-19 - 13:35:00

Don't forget about the other 8000-lb. gorilla, the Americans with Disabilities Act; if a court can find someone who drinks is an alcoholic, the ADA can get invoked--so by extension it could apply to someone using 'roids, clear, etc.!
Posted By : Anonymous

Maybe the cover should've been run, like an editor...

Message posted on : 2008-01-19 - 13:39:00

Maybe the cover should've been run, like an editorial cartoon did, with the "reverend" Sharpton holding the noose. (In front or to the side of him, that is.)
Posted By : Anonymous

Peter:

While there may not be any more actu...

Message posted on : 2008-01-19 - 14:33:00

Peter:

While there may not be any more actual lynchings to occur in this modern day, the image, thought, or idea of lynching is still a powerful image of racism. I harken your mind back to the Jena-5 incident, where three nooses were hung from a tree on the grounds of a high school when several black students decided to sit under the "white people" tree. If you are trying to say that this was not a racially-motivated issue, merely because lynchings don't occur, you are completely mistaken.
The image of a noose is a powerful symbol of racism in America, both yesterday and today. While it may not be in use to actually lynch, the memory lives on, for better or worse, in the minds of Americans.
Your comment, in my opinion, is sorely misguided.
Golfweek Magazine clearly made a grave error in judgment when placing that picture on its cover. When the mere comment was made created so much debate, why invoke the image on the front cover in the form of a picture? Would that not equally invoke the same type of debate?
Does America truly expect its citizenry to just forget about the events of racism in our past? Some say it should; but I disagree. Until racism is a dead horse, it still is a topic well worth conscious discussion.

Posted By : Travis Knobbe

It is about time that student-athletes can freely ...

Message posted on : 2008-01-19 - 15:14:00

It is about time that student-athletes can freely transfer in football. In other sports they can! Anyone who says that a S-A signs with a school and not a coach is either living in fantasy-land, wants to hide from the truth, or a fan of that institution and does not want a S-A to leave.
Posted By : Anonymous

I've thought there was some middle ground on this ...

Message posted on : 2008-01-19 - 20:16:00

I've thought there was some middle ground on this matter.

Namely a free transfer as long as it isn't to a school hiring a head coach or assistant that left.

If you signed with West Virginia, you are free to leave, just not to Michigan.

Every year there are first and second round potential players from schools outside the rich six conferences and it would be awful easy for one of those rich schools to hire a coach as a head or assistant coach at a huge salary increase in order to get that player to transfer.

Posted By : Mark

Looking at your cellist analogy, I think you're ov...

Message posted on : 2008-01-19 - 22:27:00

Looking at your cellist analogy, I think you're overlooking one point. The student athlete can transfer, but only the athlete needs to sit out the year. The student is free to take classes at his/her new school and continue his/her education. Let's not forget they are student athletes...the student part comes first.
Posted By : Marvin S.

Marvin:

But the cellist does not have to si...

Message posted on : 2008-01-20 - 09:37:00

Marvin:

But the cellist does not have to sit out as a cellist for a year and just be a "student" taking non-music or non-performance classes. And the cellist would not be prohibited from joining an orchestra (or the marching band, for you Woody Allen fans out there).

Mark:

If the player's reason for wanting to transfer is because of his special relationship with a coach he wants to play for, we should not limit it this way, at least as to the head coach.

Anonymous:

The one-year waiting rule applies to all sports, not only football.

Posted By : Howard Wasserman

Howard, for the record, while the 1 year rule (to ...

Message posted on : 2008-01-20 - 10:03:00

Howard, for the record, while the 1 year rule (to sit out) is a general rule, there are numerous exceptions to the rule. That should be noted though they are not that common.
Posted By : Anonymous

As far as the One Time Transfer Exception, it is v...

Message posted on : 2008-01-20 - 11:04:00

As far as the One Time Transfer Exception, it is very common and has very easy to fulfill requirements, as posted here about 22 months ago. It just does not apply to revenue sports or the borderline revenue sports of men's ice hockey and women's basketball.

I think the bigger issue is that while many people are quick to say the "reality" is the player comes to the play for the "coach", that's too simplified. Players come for a lot of reasons.

The biggest problem is that players in football especially, where this problem is most evident due to numbers, develop relationships with assistant coaches. If an assistant leaves, should the player be able to transfer? Should players be able to use this to "enforce" promises about playing time or facilities?

I think the NCAA has drawn the line at the appropriate point. Right now, it is out of touch with reality. Making it more in touch with reality would make the administration worse.

Posted By : Taco John

Thank you for the clarification about the Transfer...

Message posted on : 2008-01-20 - 14:13:00

Thank you for the clarification about the Transfer Exception; I was not aware. Interestingly, given that the one-time transfer rule applies to most sports except the four enumerated ones (football, basketball, men's hockey), it probably makes more sense to say that one-time transfer is the rule and those four sports (which do not allow it) are the exception.

I thought about the issue of assistants, especially for football, where the player only really gets to know his position coach and, perhaps, the coordinator. But we know assistants always are looking to move up the ladder to a head coaching job someday, so their leaving is expected and acceptable, more so than the head coach.

Posted By : Howard Wasserman

You don't need a congressional amendment to the NL...

Message posted on : 2008-01-20 - 18:22:00

You don't need a congressional amendment to the NLRA. True, managment must bargain with unions about drug testing, which is generally considered a mandatory subject of bargaining. But management can also unilaterally implement its final offer upon impasse. In reality, the threat of unilateral implementation is an excellent check on unions who, in representing the employees' best interests, will seek the best deal possible within the confines of reaching an actual agreement.

The suggestion that Congress should amend the NLRA to allow management to unilaterally implement a mandatory drug testing policy is against the NLRA's national labor policy (and in my view bad public policy). First, Congress should not be in the business of singling out a particular industry. Second, the suggestion contravenes the underlying policy of the NLRA--to allow parties to come to allocatively efficient solutions to workplace problems through collective bargaining. Along those lines, allowing management to unilaterally implement mandatory drug testing (without bargaining) interjects substantive regulation into the NLRA. There are two problems with this approach. First, that the S.Ct. has criticized the NLRB for creating substantive contractual terms demonstrates the strong public policy against interfering in the bargaining relationship. (That the S.Ct. has criticized the NLRB for engaging in substantive regulation of CBAs suggests only that the NLRA, as currently written, has this public policy.) Second, this approach puts a thumb on the bargaining scale in favor of management. If this is a significant enough problem for management then management must bargain for it--i.e., give up something in return.

Most significantly, Congress can actually regulate the use of steroids (without amending the NLRA) and get the desired effect. In other words, were Congress (and this Administration) to actually do its job, they would more heavily regulate steroid (and human growth hormone) use. Now, if a player breaks a federal law regulating drug use then it would be within management's right to discipline that player.

So the upshot is this: Although we all want to see more regulation of performance-enhancing drugs, amending the NLRA is not the best way of solving this problem. In fact, amending the NLRA in this way creates many more problems than it solves. The Players Union does not have the ultimate power to block management attempts to implement a drug testing policy because management can always unilaterally implement its final offer and its failure to do so likely shows that it too did not want a drug testing policy (i.e., wanted players to use such drugs to increase the likelihood of record-breaking . . .). Finally, management has within its power to handle this problem through disciplinary procedures, especially if Congress would simply increase regulation of such drugs.

Posted By : Lo

The NCAA's primary function is to keep the field s...

Message posted on : 2008-01-20 - 19:27:00

The NCAA's primary function is to keep the field somewhat level.

The one time transfer exception has been given to non-revenue sports in the belief that schools will not throw tons of cash to buy the roster of another school.

The typical student athlete in football has very little contact with the head coach during recruiting or during his time at the institution. That same student athlete will often have a couple schools he is choosing between.

If the player's first choice leaves, allowing a free transfer to follow opens the door to buying players in the form of purchasing the person he developed a relationship with. I have no problem with a free transfer to his second choice but intercollegiate football has too many problems as it is without the linebacker coach at Louisiana Monroe seeking a job with Oklahoma and getting it because of who he can bring with him.

Posted By : Mark

Take this one step further:

Let's say that ...

Message posted on : 2008-01-21 - 10:06:00

Take this one step further:

Let's say that there is a ruling in favor of the athlete, and the IAAF appeals to the Court of Arbitration for Sport. That body then rules against the athlete and in favor of the IAAF. I doubt the Court for Arbitration is covered under the ADA, so the athlete is out of the Olympics. Or, is it? (Imagine the checkerboard of countries under those circumstances; some would allow the athlete in question to participate in the--for no better word--non-disabled events while other countries wouldn't.)

Sigh . . . another reason to modify or eliminate the ADA.... .

Posted By : Anonymous

I don't know about this lynching stuff, but I do k...

Message posted on : 2008-01-21 - 10:08:00

I don't know about this lynching stuff, but I do know Tiger is afraid to play Westchester Country Club. The few articles that I have read last week about the PGA moving the 1st leg of the FedEx cup reeks of Tiger's doing. One article says he has only played their 3 times in 10 years and did not play their when Buick (His biggest sponsor) was the sponsor of the tournament. It is without question that Tiger had the tournament moved because he does not play well at this course. How weak can you get Tiger? Using your clout to stack the deck is a sign of a cry baby. Boo hoo hoo...
Posted By : Sammy

For what it's worth, I have some empirical data to...

Message posted on : 2008-01-21 - 11:35:00

For what it's worth, I have some empirical data to share. I showed this post to my 19-month old daughter (who loves Elmo), and asked her, "Where's Elmo?" She immediately pointed to the far picture on the right with no hesitation whatsoever. This data tends to suggest that there is a clear recognizable distinction between Big Red/Gabbibo and Elmo.
Posted By : Rick Karcher

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Message posted on : 2008-01-21 - 17:16:00

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Posted By : Maria Auxiliadora

The idiocy of the editor is really beyond belief. ...

Message posted on : 2008-01-21 - 18:17:00

The idiocy of the editor is really beyond belief. It was one thing for the announcer to perhaps have a brain lapse and use a poor choice of words. But this cover was intentional and unforgivable.
Posted By : alan misltein

The bigger injustice is that once a student-athlet...

Message posted on : 2008-01-21 - 19:45:00

The bigger injustice is that once a student-athlete signs the letter of intent, it becomes 4 one-year options renewable at the School's Option, but the student has no option.

The school gets to cut you the student, but the student does not get reciprocal rights.

Posted By : qtlaw24

What justifies this statement: "Performance enhanc...

Message posted on : 2008-01-21 - 23:38:00

What justifies this statement: "Performance enhancing substances fundamentally undermine the players' ability to perform their work; being clean is an intrinsic part of their job."? It's not clear to me how being "clean" is any more intrinsically a part of a baseball player's job than it is part of a forklift driver's. In fact, given that the forklift driver is likely to hurt someone if he's on the kind of drugs that he's tested for at work, being clean is "intrinsically" more a part of his job.

Further, the "copycat" rationale is widespread and, I think, underexamined. Before even asking the people who cite it to back it up empirically, we should ask if it even makes sense. Before baseball started testing for steroids, how did anyone know that steroids were being used? Kids can't be saying, "Well, Rafael Palmeiro used steroids, so I'm going to" unless they know that Rafael Palmeiro used steroids; and they didn't know that Palmeiro used steroids until Congress made a big stink!

Posted By : Jason Wojciechowski

well i just right now saw in the news a press conf...

Message posted on : 2008-01-22 - 06:02:00

well i just right now saw in the news a press conference where Tiger himself said "hey we all say things we regret. I've known (tilghman) for what 10-11 years now, I know she didn't mean what she said, so we all just need to move on." He accepted her apology, this is coming from the person in question, the one that should be most offended of anyone. There's a lot of people in America that are so called "activists" and just make a career out of, seeking out and leeching on to these such controversies, to I don't know, boost their own egos and publicity. I think they are the problem in these things, when the victim of an incident can let it go and forgive and they can't shut up about it?
Posted By : Anonymous

Re: the public domain discussion (posting here bec...

Message posted on : 2008-01-22 - 12:20:00

Re: the public domain discussion (posting here because I just happened upon the older discussion) -

The public domain standard in regards to statistics isn't new. It's the basis of the NBA v. Motorola decision (short synopsis here - http://legal.web.aol.com/decisions/dldecen/nba.html), which protected Motorola's right to disseminate stats of NBA games as they happened. It doesn't seem like the fantasy league operators are doing anything distinguishable from the stat provider - they're simply combining the stats into new ones.

Right of publicity wasn't discussed in the case, but Motorola was certainly engaging in commerce - I believe Motorola was charging a fee, much like many fantasy sites; certainly it was making money off of distributing the stats, just as operators of free fantasy games do, through ad revenue. You made the argument previously that maybe even a newspaper shouldn't be free from a right to publicity, which is interesting but certainly not current law.

Posted By : Chris

Chris,

Thanks for the comment. Regarding M...

Message posted on : 2008-01-22 - 14:23:00

Chris,

Thanks for the comment. Regarding Motorola, it's not really applicable (or it's very difficult to apply) because:

1.) Motorola involved a complex interplay of state unfair competition by misappropriation and federal copyright laws. Although somewhat analogous to right of publicity law because it involves intellectual property rights, there are different policy considerations in the two cases;

2.) Motorola only involved the use of statistics (i.e. facts), whereas the Eighth Circuit held that fantasy leagues use the players names in violation of their right of publicity. Motorola can't be applicable to a right of publicity claim because names are, in essence, just facts; and

3.) the Eighth Circuit applied the "public domain" rationale to hold that the First Amendment outweighed the players right of publicity, whereas the First Amendment was not at issue in Motorola.

If you really think about it, a public domain standard makes no sense in evaluating a right of publicity claim because you're dealing with names that, because of their celebrity status, are already in the public domain.

Regarding your last statement, just to be clear, I have never argued that a newspaper could be subject to a right of publicity claim when it is reporting news (an obvious First Amendment issue).

Posted By : Rick Karcher

As usual, the punishments fall entirely on the pla...

Message posted on : 2008-01-24 - 10:28:00

As usual, the punishments fall entirely on the players, leaving owners, managers, trainers, and teammates, many of whom might have been enablers or at least consciously ignorant of the problem, untouched.

That's not to say that a team that has a PED user should be automatically punished, but it is to point out that there's more culpability here than just on the individual users. The story of how PEDs were tacitly accepted by the owners to help baseball's recovery from the 1994/95 strike has been told before, but it seems that some are forgetting it (or, like Aaron Zelinsky, are perhaps too young to remember).

Posted By : Jason Wojciechowski

Here is an alternative thought.

How about a...

Message posted on : 2008-01-24 - 12:42:00

Here is an alternative thought.

How about a forward-looking policy where MLB club owners agree to fine any club a certain amount of money each time one of that club's players tests positive for performance-enhancing drug use.

This approach shifts the burden from the players to club owners to deter performance-enhancing drug use. It also is a forward-looking policy in the sense that rather than punish past behavior, it enocurages club owners to make independent hiring decisions based on their perceived belief that individual players will follow the anti-drug policy.

In the ideal world, the money collected in fines from team owners would then be used to fund costs of drug education programs, both within MLB and the broader baseball world.

Posted By : Marc Edelman

Quite honestly, if you can spell MORON, you'll hav...

Message posted on : 2008-01-24 - 13:27:00

Quite honestly, if you can spell MORON, you'll have this lady down cold.

Tilghman, JOKING about lynching is not funny. Let's hear you "joke" about sending Jews to the gas chamber, and see how long you'll have your cushy job. Tiger really IS your friend. He chose to brush this off and not tank your career. I hope you learned your lesson, though. That stuff is NOT FUNNY.

Posted By : Anonymous

As usual, good post Howard. I'm surprised that wi...

Message posted on : 2008-01-24 - 22:41:00

As usual, good post Howard. I'm surprised that with such a controversial issue, noone has commented yet...

Setting aside personal beliefs on pro-choice, stem-cell research and Hillary, I think it really boils down to wether his contract has anything in it about this type of behavior.. I wouldn't call it a morals clause, but I wouldn't be surprised if a school with religious affiliations put some restrictions on speaking in opposition to its beliefs or mission.

And remember, as much as it is Majerus right or duty to speak out, the Archbishop and Father Biondi would enjoy the same rights and priviliges in denouncing his statements...whats good for the goose....

(granted, I'm not aware of any such clauses in existance here, nor do I know if Father Biondi has, will, or would denounce the statements... I'm simply thinking out loud)

Posted By : Jimmy H

Howard,

Congrats on the visiting post at SL...

Message posted on : 2008-01-25 - 00:45:00

Howard,

Congrats on the visiting post at SLU. I hope you are enjoying the great academic atmosphere that the Jesuits provide for both faculty and students.

By way of background that I did not disclose in my post on Tuesday (no love Jimmy H.???), I spent eight years in Jesuit schools (Loyola Academy followed by Boston College), thereafter, volunteering for a year in inner city Phoenix for the Jesuits (Jesuit Volunteer Corps Southwest). I regard these as the best years of my life, largely because of the academic freedom afforded to me along with the strong emphasis on social justice. While I do not know Coach Majerus personally, I am sure that by virtue of his "man for others" education and coaching experience at both Marquette and SLU, he felt comfortable to stand up for what he believes in.

This is not the first time that Archbishop Burke has stood up against members of his own faith who he believes should be publicly taken to task for a lack of adherence to the strict teachings of Rome (google Burke and Sheryl Crow, John Kerry, and St. Stansilaus Kostka). I would hope that non-Catholics do not take Burke's comments as representative of the Catholic Church, but when he speaks out like this I cringe that this may be the case.

At the end of the day, Coach Majerus standing up for what he believes in is one of the best examples he can give to his players.

Posted By : Tim Epstein

Is this outlined somewhere in the rules of the NHL...

Message posted on : 2008-01-25 - 01:11:00

Is this outlined somewhere in the rules of the NHL or are they unspoken or unwritten rules?

Is the NHLPA involved?

Posted By : crazlunatic

Sorry Tim, of course I meant to include you as wel...

Message posted on : 2008-01-25 - 06:58:00

Sorry Tim, of course I meant to include you as well since your post started the discussion... I'll have to chalk this one up to a long day at work, way too many phone calls from political groups trying to solicit votes, or just plain ignorance on my part :)...
Posted By : Jimmy H

Mama Mia!

Message posted on : 2008-01-25 - 07:00:00

Mama Mia!
Posted By : Anonymous

Letter from Rodriguez to Pastilong (athletic direc...

Message posted on : 2008-01-25 - 09:31:00

Letter from Rodriguez to Pastilong (athletic director) for your enjoyment. Released today.

http://www.wvgazette.com/Sports/WVU/200801250141

Posted By : Shawn

No problem, Jimmy. Thanks for your insightful com...

Message posted on : 2008-01-25 - 10:48:00

No problem, Jimmy. Thanks for your insightful comments. Greatly appreciated.
Posted By : Tim Epstein

This post regards the hypocrisy of the Church, and...

Message posted on : 2008-01-25 - 12:27:00

This post regards the hypocrisy of the Church, and specifically Burke; so, this is your heads up (to quell the pending psuedo-religious debate):

Burke has no right. No. Right. The Court found that SLU does not control the school so Burke should keep his Kerry-hating lid trapped. Yes, you have the right to spew your hate (as does anyone) but no right to influence it's President to fire the Fat Man.

The Catholic Church has an unrivaled history of murder, bigotry, hate, expulsions, crusades, massacres, forced conversion and pogroms -- many say which continue to this day. How quick we are to forget, Rev.

Anyone rememebr the Second Vatican? The Society of St. Pius X?

Hypocrites should shut the hell up.

Posted By : The Revered

Tim and Howard,

I think we all agree that S...

Message posted on : 2008-01-25 - 12:51:00

Tim and Howard,

I think we all agree that SLU could sanction Majerus if it wanted to (private institution), but probably won't because it would send a strong message of censorship to the faculty.

Would SLU have to have a clause in Majerus contract in order to sanction him, or could they use a "best interest of..." type argument to go along with Archbishop Burke's comment:

When you take a position in a Catholic university, you don't have to embrace everything the Catholic church teaches, but you can't make statements which call into question the identity and mission of the Catholic Church.

Posted By : Jimmy H

What if he had made racist comments? Would you all...

Message posted on : 2008-01-25 - 12:54:00

What if he had made racist comments? Would you all be so insistent on tolerance?

I really am curious.

Posted By : Anonymous

Anonymous:

If you have read anything I prev...

Message posted on : 2008-01-25 - 14:11:00

Anonymous:

If you have read anything I previously have written in this (or any other) space, you know that my answer would be "yes," I would be just as insistent on tolerance. I don't think he would get the same support from a university faculty, but that is another story.

I cannot speculate as to the details of Majerus's contract. But I doubt there is any clause in there specifically tied to his adherence to or support for the essential doctrine of the Roman Catholic Church. First, again, it would be inconsistent with the school's broader mission as an academic institution. Second, and more broadly, it would mean the school never could hire a coach who is a practicing Jew. I imagine rejecting Jesus' divinity would be a statement "call[ing] into question the identity and mission of the Catholic Church."

Posted By : Howard Wasserman

I think the parol evidence rule may apply here in ...

Message posted on : 2008-01-25 - 15:56:00

I think the parol evidence rule may apply here in not allowing any of this extrinsic evidence of oral an oral agreement. At the same time, doesn't an exception to the rule apply in that the oral agreement R.R. is alluding to was subsequent to the written contract? So, if the exception does apply then this evidence should be allowed and taken into consideration by the court.

However, does it first depend on whether there is a merger/integration clause in the written contract? If there is an integration clause, then the written instrument is totally integrated and the extrinsic evidence should not be allowed.

So...if there was not an integration clause, then the evidence of an oral agreement between R.R. and the University should be allowed. Is this right?

Posted By : Anonymous

In regards to integration, whether the k is deemed...

Message posted on : 2008-01-25 - 20:15:00

In regards to integration, whether the k is deemed partially or fully integrated, contradicting evidence can never be admitted. Here, it appears that the 2 million dollars buyout clearly contradicts the 4 million dollar buyout. A court will most likely rule void the extrinsic oral agreement. Further, i think a four corner test (which I'm not sure whether WVU follows) would demonstrate that the document is complete for it already includes the buyout price of 4 million.

As to finding an exception, i feel like he can make arguments based on bad faith, undue influence, or concealment and misrepresentation. To win on any of these claims, one must demonstrate that they detrimentally relied on the information or that WVU's comment that they would change the buyout later was purposefully misleading.

Posted By : Anonymous

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Message posted on : 2008-01-25 - 23:10:00

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Posted By : Anonymous

It seems to me that everyone addressing this topic...

Message posted on : 2008-01-26 - 06:06:00

It seems to me that everyone addressing this topic continues to "dance around" the underlying issue: it is against the law for professional sports leagues (except MLB due to its over-all anti-trust exemption) from entering into agreements to broadcast on cable. The SBA of 1961 is clear AND Rozelle and Tagliabue (sp?) both testified to Congress that they agree. Why no action on this?

S. Lane

Posted By : Anonymous

In regards to integration, my understanding of the...

Message posted on : 2008-01-26 - 14:41:00

In regards to integration, my understanding of the law is that any relevant evidence is admissible to prove that the written K was not intended to be final.

I agree with you in that a four corners test would find the writing totally integrated. Conversely, the majority Williston test may allow the extrinsic evidence if Rich Rod can convince the court(as you point out)that what appears to be an integration clause ("On Page 6 of the lawsuit (Article 17) it mentions that the University and I mutually understood and agreed on all the terms, conditions and understandings either oral and or written. It also mentioned that any further modification or amendment was effective only if made in writing and signed by both parties.") was obtained through fraud.

Posted By : Anonymous

Tiger Woods & The Lynching Noose

What a...

Message posted on : 2008-01-26 - 14:50:00

Tiger Woods & The Lynching Noose

What an ugly uproar about the noose around Tiger's neck,
Growing tighter every single day because he chooses to forget,
A story over 2000 years old about a man and the world He forgave,
Whether you believe it or not it's only by His blood are we saved.

Am I trying to compare Tiger to Jesus? That would be absurd,
Why is everyone so upset by the saying of the lynching word?
Then again, maybe it is not the word rather it's the entire phrase,
The only way to keep it going is by talking about it day after day.

Exactly what in the world makes this particular Tiger so great?
The racism he has encountered filling his heart and mind with hate?
That would be impossible growing up with Jack Nickalus on his wall,
Certainly not the way he so gently strokes a short putt on the golf ball.

No, this animal is ferocious because he knows exactly when to attack,
The perfect time to strike and the proper time to relax and hold back,
Worlds number 1, again and again the undisputed player of the year,
What makes this Tiger rise above everyone else is that he has no fear.

Eagles that fly high above don't spend time on the ground with birds,
So, why should he come down to earth and defend himself over words?
Sure, it was an unfortunate mistake but since Eldrick wants to move on,
Who has the right to make less than five seconds last so very long?

If Woods was the kind of person to hold a grudge and harbor pain,
The golfing world or anyone for that matter would not know his name,
Many a promising career has been stifled looking for others to blame,
Here's another thought, what if Jesus spoke and a thousand angles came?

Slavery is supposedly over but in most minds it can't be that easy to mend,
For everything that has a beginning there is a middle followed by the end,
OK, Kelly Tilghman said it, she apologized, and this incident is over when?
The precise moment Tiger accepted her responsibility saying, “She's a friend,�

Spousal & child abuse, drunk drivers, sexual slavery, genocide in Kenya is unjust,
The war Americans should not be in, drug addiction, gas prices, much to discuss,
Unscrupulous politicians and others leaders behind closed doors we cannot trust,
General Motors and Ford selling cars that after three years on the road start to rust.

It's not the first incident between this black vs. white and certainly not the last,
However, no person or race will experience forward progress living in the past,
Yes, it's true that when you do not know history, greater the chance for a repeat,
But, when harboring malice in your hear revenge becomes bitter not sweet.

A family man now with a lot more on his mind like a wife and baby girl,
If the child had been born a boy there's no doubt his name would be Earl,
There are many other concerns, how about the failure of public education?
Especially in inner city neighborhoods, what about that racial intimidation?

A tiger in the woods smells blood and begins searching for his prey,
A Tiger named Woods senses blood and knows victory is a bird away,
A tiger in the woods encircles his domain knowing the his meal isn't far,
A Tiger named Woods knows the fight is over cause he's 20 under par.

A tiger in the woods needs to catch and eat per day 40lbs. of raw meat,
A Tiger named Woods gets full consuming an eagle or two for his treat,
What do these two animals have in common besides the Tiger name?
How about both of them priestly sit atop of their individual food chain.

A tiger on the loose in San Francisco killed one with two on the way,
A Tiger at the Buick Open will maul an entire field in the game he plays,
I wonder what's the difference between these two, an animal and the man?
Well, one likes to romp in the jungle while the other likes to play in sand.

Apparently, not many people know the history of the famous Tiger Woods,
Question? Just how many golf courses did he practice on deep in the hood?
Wait just one minute because it's time to mention one very important thing,
Did we or did we not just celebrate a holiday for Dr. Martin Luther King?

How do you think the greatest African American Hero might respond to this?
Eloquent words of wisdom or by returning hatred with the raising of his fist?
The bad news is that it's 2008 and sadly racial indifferences will never change,
Good news is neither will the exceptional talent by which Tiger plays the game.

By Luke Easter

Posted By : Anonymous

Tiger Woods & The Lynching Noose

What a...

Message posted on : 2008-01-26 - 14:51:00

Tiger Woods & The Lynching Noose

What an ugly uproar about the noose around Tiger's neck,
Growing tighter every single day because he chooses to forget,
A story over 2000 years old about a man and the world He forgave,
Whether you believe it or not it's only by His blood are we saved.

Am I trying to compare Tiger to Jesus? That would be absurd,
Why is everyone so upset by the saying of the lynching word?
Then again, maybe it is not the word rather it's the entire phrase,
The only way to keep it going is by talking about it day after day.

Exactly what in the world makes this particular Tiger so great?
The racism he has encountered filling his heart and mind with hate?
That would be impossible growing up with Jack Nickalus on his wall,
Certainly not the way he so gently strokes a short putt on the golf ball.

No, this animal is ferocious because he knows exactly when to attack,
The perfect time to strike and the proper time to relax and hold back,
Worlds number 1, again and again the undisputed player of the year,
What makes this Tiger rise above everyone else is that he has no fear.

Eagles that fly high above don't spend time on the ground with birds,
So, why should he come down to earth and defend himself over words?
Sure, it was an unfortunate mistake but since Eldrick wants to move on,
Who has the right to make less than five seconds last so very long?

If Woods was the kind of person to hold a grudge and harbor pain,
The golfing world or anyone for that matter would not know his name,
Many a promising career has been stifled looking for others to blame,
Here's another thought, what if Jesus spoke and a thousand angles came?

Slavery is supposedly over but in most minds it can't be that easy to mend,
For everything that has a beginning there is a middle followed by the end,
OK, Kelly Tilghman said it, she apologized, and this incident is over when?
The precise moment Tiger accepted her responsibility saying, “She's a friend,�

Spousal & child abuse, drunk drivers, sexual slavery, genocide in Kenya is unjust,
The war Americans should not be in, drug addiction, gas prices, much to discuss,
Unscrupulous politicians and others leaders behind closed doors we cannot trust,
General Motors and Ford selling cars that after three years on the road start to rust.

It's not the first incident between this black vs. white and certainly not the last,
However, no person or race will experience forward progress living in the past,
Yes, it's true that when you do not know history, greater the chance for a repeat,
But, when harboring malice in your hear revenge becomes bitter not sweet.

A family man now with a lot more on his mind like a wife and baby girl,
If the child had been born a boy there's no doubt his name would be Earl,
There are many other concerns, how about the failure of public education?
Especially in inner city neighborhoods, what about that racial intimidation?

A tiger in the woods smells blood and begins searching for his prey,
A Tiger named Woods senses blood and knows victory is a bird away,
A tiger in the woods encircles his domain knowing the his meal isn't far,
A Tiger named Woods knows the fight is over cause he's 20 under par.

A tiger in the woods needs to catch and eat per day 40lbs. of raw meat,
A Tiger named Woods gets full consuming an eagle or two for his treat,
What do these two animals have in common besides the Tiger name?
How about both of them priestly sit atop of their individual food chain.

A tiger on the loose in San Francisco killed one with two on the way,
A Tiger at the Buick Open will maul an entire field in the game he plays,
I wonder what's the difference between these two, an animal and the man?
Well, one likes to romp in the jungle while the other likes to play in sand.

Apparently, not many people know the history of the famous Tiger Woods,
Question? Just how many golf courses did he practice on deep in the hood?
Wait just one minute because it's time to mention one very important thing,
Did we or did we not just celebrate a holiday for Dr. Martin Luther King?

How do you think the greatest African American Hero might respond to this?
Eloquent words of wisdom or by returning hatred with the raising of his fist?
The bad news is that it's 2008 and sadly racial indifferences will never change,
Good news is neither will the exceptional talent by which Tiger plays the game.

By Luke Easter

Posted By : Anonymous

What a great project, Rick. Any plans to add wome...

Message posted on : 2008-01-26 - 16:18:00

What a great project, Rick. Any plans to add women's coaches to the database? Title IX people would be very interested in that information!
Posted By : EBuz

ebuz,

Thanks for the kind words. It is a w...

Message posted on : 2008-01-27 - 10:08:00

ebuz,

Thanks for the kind words. It is a work in process, and we hope to add women's basketball sometime in the near future.

Posted By : Rick Karcher

Hi, you see sports of all types very important, sh...

Message posted on : 2008-01-27 - 10:36:00

Hi, you see sports of all types very important, shame they can't focus on all sports over here in the UK. Graham from www.logo-n-stitch.co.uk.
Posted By : Graham

First of all, the Catholic Church is perhaps the o...

Message posted on : 2008-01-27 - 13:24:00

First of all, the Catholic Church is perhaps the only Christian church that has definite views of right and wrong, good and evil. This is why the media takes so many shots at it, because Catholicism still stands for something. Rick has a right as an American to say these things, but not as a Catholic. Rick is free to choose another anything-goes type church (Unitarianism anyone?), but these beliefs disqualify him from calling himself a Roman Catholic. Furthermore, he IS in a high-profile position at a Catholic university, and to go against Catholic teaching as a head coach of a Jesuit university, ups the ante considerably. As Lenny Wilkens (a truly strong Catholic and African American coach) once said, "Everyone is a role model to someone!" As this article further explains, Rick (unless he repents), should be disposed of as coach and role model at Catholic St. Louis University.
Posted By : Tom O'Toole

Here's a good link, too! http://coacheshotseat.com...

Message posted on : 2008-01-27 - 15:15:00

Here's a good link, too! http://coacheshotseat.com/SalariesContracts.htm
Posted By : Anonymous

michael vick you are an idiot and dumbass and shou...

Message posted on : 2008-01-27 - 17:21:00

michael vick you are an idiot and dumbass and should be kicked out of the nfl league completely becuase of moral and ethical issues
Posted By : Anonymous

The way it was taught to me, the parole evidence r...

Message posted on : 2008-01-28 - 01:51:00

The way it was taught to me, the parole evidence rule isn't applied all that rigorously. Maybe my prof was too into legal realism, but he basically told us the court will or will not use the parole evidence rule depending on the outcome and the circumstances of the case. Generally it's more fair to have all of the relevant evidence factor into the decision, so the parole evidence rule is set aside.

Integration can be a circular concept anyway: often you can't know if a contract is complete unless you look to outside evidence.

Posted By : Columbiaaa

This is an interesting project, but you need to go...

Message posted on : 2008-01-29 - 00:03:00

This is an interesting project, but you need to go back through and proofread the names of the coaches. Upon a very click glance, I noticed that John Pelphrey and Tommy Tubervile were misspelled in the document.
Posted By : Will

hi guys i have purchased olympic tickets from http...

Message posted on : 2008-01-29 - 07:01:00

hi guys i have purchased olympic tickets from http://www.beijingticketing.com if you want you also can see the smilar website for olympic tickets. they have all olympic beijing tickets, summer games , winter game and beijing schedule , beijing game events http://www.beijingticketing.com
Posted By : Robert

hi guys i have purchased olympic tickets from http...

Message posted on : 2008-01-29 - 07:01:00

hi guys i have purchased olympic tickets from http://www.beijingticketing.com if you want you also can see the smilar website for olympic tickets. they have all olympic beijing tickets, summer games , winter game and beijing schedule , beijing game events http://www.beijingticketing.com
Posted By : Robert

Clemens is addressing the issue that nobody wants ...

Message posted on : 2008-01-29 - 09:41:00

Clemens is addressing the issue that nobody wants to discuss, which is that there are reasons (other than steroids and performance enhancing drugs) as to why/how athletes perform better in their later years. For example, in their later years, Bonds and McGwire became much more experienced hitters and both developed remarkable plate discipline skills that substantially reduced their strikeout/at bat ratios, and they also made adjustments in their swing to give them the ability to loft the ball better -- both of which had a tremendous impact on their homerun totals. If Cecil Fielder, when he hit 51 homeruns that year, had developed the plate discipline of Bonds and McGwire, he wouldn't have struck out 1/3 of the time (or more) and would probably currently hold the record for the most homeruns in a single season.

There is no empirical evidence whatsoever (medical or scientific) that steroids enhance performance in baseball. I recall trainers telling us in the early 90s that getting too big would restrict our range of motion and decrease our bat speed (whether that's true or not is anybody's guess). At the recent hearing, Congressman John Yarmouth twice challenged the notion whether these substances do in fact enhance performance. Mitchell said "a lot of it is psychological" as well as "speeding recovery time". Selig's response was that most people and trainers believe that drugs enhance performance in baseball.

The bottom line is that Clemens can't win. Nobody wants to hear Clemens try to defend himself because we've already concluded that he was injected on the basis that somebody said so. And when he tries to defend himself, it offends us. We want him to go live in an isolated cabin in the mountains, grow a beard, and just quit denying that he took them.

Posted By : Rick Karcher

The Astros' new stance is similar to that of the D...

Message posted on : 2008-01-29 - 16:57:00

The Astros' new stance is similar to that of the Devil Rays, who refuse to negotiate with players once numbers have been exchanged.

The rationale is that settling near the midpoint is arbitrary and that money can be saved by winning hearings assuming the club's numbers are more reasonable.

Still, unless a lot of money is at stake, saving a few hundred grand seems like a pyrrhic victory when you consider the bad blood these hearings usually create between players and their clubs.

Posted By : The KingofSpain

i grew up riding horses and had never liked racing...

Message posted on : 2008-01-30 - 07:32:00

i grew up riding horses and had never liked racing but later learned that these horses were "born" to run. whether or not the time off, they were born for this. it saddens me when injuries become the end for these beautiful animals but this is their legacy. i dont bet on these horses nor do i go and see a race but i do go to churchill downs and watch them train. all they want to do is run...unstoppable..beautiful creatures. i always felt that they were treated poorly, but what i saw between races at churchill, these animals were cared for like no other animal i have ever seen..
Posted By : Anonymous

You are right that the Rays have the same policy. ...

Message posted on : 2008-01-30 - 12:54:00

You are right that the Rays have the same policy. This year the Rays had three players (Jonny Gomes, Scott Kazmir, and Carlos Pena) who filed for arbitration. All three signed before exchanging numbers.

I also agree with your statement about the rationale and the "pyrrhic victory."

One of the things that I find really fascinating about the process is the number of cases that go to hearings where the gap is really small or the overall numbers are not high. I really wonder why those cases do not get settled. For instance, in 2006 Colorado went to a hearing with Sunny Kim. Kim wanted $800,000 and the Rockies offered $600,000. Why not settle this one? The Rockies convinced Stephen Goldberg, John Sands, and Gil Vernon that their number was better. Kim ended up being dealt by the Rockies in September 2006 to the Cincinnati Reds. He only pitched in 2 games for the Reds after an 8-game, 19.29 ERA for the Rockies. He spent the majority of 2006 at Colorado Springs in the PCL.

Posted By : Ed

I agree with Rick. In addition, since this seems ...

Message posted on : 2008-01-30 - 13:32:00

I agree with Rick. In addition, since this seems like a response to the Mitchell Report, wouldn't Clemens want to refute the evidence presented in it? While that was the attempt in his press conference, this report does not do any service as to refuting any of the McNamee testimony. Clemens's only chance in clearing his name is if he can prove McNamee's testimony false or if McNamee repudiates his accusations.
Posted By : Anonymous

I too agree with the comments above. Of course th...

Message posted on : 2008-01-31 - 12:29:00

I too agree with the comments above. Of course there is a correlation between Mark Mcgwire and other home run hitters of the late 90's among steroids to power. But look at the many players who used the drugs and never got anywhere. I believe that it is all too possible that steroids can hurt your longevity, agility, flexibility, and other necessary baseball skills and abilities. That is a fact argued by Clemens and his team.
Posted By : Continuing Legal Education

Roger Clemens did participate in salary arbitratio...

Message posted on : 2008-01-31 - 13:25:00

Roger Clemens did participate in salary arbitration in 2005. Clemens asked for $22 million and the Astrons offered $13.5 million. The midpoint was $17.75 million. Clemens signed for $18 million, so he came in above the midpoint.

It is certainly possible that Hendricks Sports Management relied in part on material that they put together for his 2005 contract negotiations.

Posted By : Ed Edmonds

You mention some deals are either below or above t...

Message posted on : 2008-01-31 - 15:03:00

You mention some deals are either below or above the midpoint. Are many of the deals a significant distance from the midpoint? I'd be interested to see a breakdown of that.
Posted By : Ken

Most of the deals are pretty close. I will create...

Message posted on : 2008-01-31 - 22:46:00

Most of the deals are pretty close. I will create a chart for at least one of the recent years. I have thought about determing the percentage away from the midpoint and creating a category for listing those that are within a certain range of the midpoint.
Posted By : Ed Edmonds

i have been watching bob for a lot of years from n...

Message posted on : 2008-01-31 - 22:58:00

i have been watching bob for a lot of years from nh and find him to have been the best sprtscaster in newengland we are very lucky to have him!!!!!!!!!
thanx jerry valliere
manchester nh

Posted By : jerry

The question is not about whether he benefited. T...

Message posted on : 2008-02-01 - 14:22:00

The question is not about whether he benefited. This is beside the main issue.

The argument regarding whether HGH/Steroids was a performance enhancer was determined when it was deemed illegal.

The only question is whether Clemens took HGH and/or steroids. McNamee has very specific accounts and the fact that Pettitte corroborated him is very telling.

Clemens' best defense is to attack the specifics of McNamee's accounts. Notice how that's not being done? Nowhere has Clemens refuted any of the specifics, only the broad statement "I did not take HGH/steroids." Not, McNamee never injected me or McNamee was not with me that day.

Posted By : qtlaw24

I thought that MLB was the only league with an exp...

Message posted on : 2008-02-01 - 16:15:00

I thought that MLB was the only league with an explicit "antitrust exemption." Although there is an "understanding" between Congress and the other pro leagues that the antitrust laws will not be used against the leagues so long as they act reasonably, no other league has the exemption, right?
Posted By : Jeff

The NFL has two antitrust exemptions. One permitte...

Message posted on : 2008-02-01 - 18:16:00

The NFL has two antitrust exemptions. One permitted the merger of the AFL and NFL in the 1960s, and the other, which applies to all professional sports leagues, allows for the negotiation of single-network broadcast contracts. The latter is the exemption referred to by Specter.
Posted By : Skip

One sports fan/taxpayer/lawyer would prefer that t...

Message posted on : 2008-02-01 - 18:24:00

One sports fan/taxpayer/lawyer would prefer that the senators stop sniffing jockstraps and get back to work.
Posted By : Anonymous

And the Georgia House of Reps. today passed a reso...

Message posted on : 2008-02-01 - 18:35:00

And the Georgia House of Reps. today passed a resolution urging the NCAA to create a playoff system in college football: http://www.usatoday.com/sports/college/football/2008-02-01-resolution-playoff_N.htm

Congress needs to regulate a team stealing signals from another, and how a collegiate sport determines its national championship???

MIND-BOGGLING.....

Posted By : Rick Karcher

While I am in no way condoning the actions of MLB,...

Message posted on : 2008-02-01 - 19:45:00

While I am in no way condoning the actions of MLB, I don't think they were trying to find out if the umps were racist. When taken as a whole the series of questions suggests that MLB is trying to find out if any of the umpires may be involved in any off field activities which would refelct a possible connection to organized crime, gambling or other activities which would cast a negative light on the league.

Was the "KKK Question" the most offensive of the group? Yes. But we must look at all the questions to see what the league was trying to discover.

While I do not believe the questions were racially motivated I must seriously question the league's actions. Even if this type of questionning is legal under the CBA between WUA and MLB, which is doubtful, it is a risky move. As a result of issues like Questec the relationship between the parties is already shaky, why take this risk now and not just wait until 2009 when the current CBA expires?

Posted By : Ken

Howard, unlike you, I am generally a big fan of Co...

Message posted on : 2008-02-01 - 21:34:00

Howard, unlike you, I am generally a big fan of Congressional investigations in sports. However, as to this particular investigation, we have complete meeting of the minds. Even interventionists have their limits.

Rick, I think it is only a matter of days before Congress starts investigating whether you helped your daughter pick Elmo out of that red mascot lineup last week.

Posted By : Marc Edelman

Next up on the agenda, investigating the role of W...

Message posted on : 2008-02-01 - 21:35:00

Next up on the agenda, investigating the role of WWF referees in world title victory by Andre the Giant over Hulk Hogan in 1988.
Posted By : Anonymous

I'm not too concerned when management does somethi...

Message posted on : 2008-02-02 - 08:25:00

I'm not too concerned when management does something to labor because that's their business and labor can assert any rights it may have under labor law, antitrust, etc. What I find really troubling is when government (judges, legislators and prosecutors) treats sports differently (athletes in particular) from other industries, and make decisions that completely defy logic:

-- Baseball has an antitrust exemption "because it stands on higher ground."

-- Players should lose the case "because they are already handsomely compensated."

-- A player spends more time in jail than she otherwise would "because she's a role model".

-- The Mitchell report comes out on a Thursday and Congress immediately decides to schedule a hearing for the following Tuesday. [One of two things happened here, both of which are concerning. Either (1) Congress had nothing to do on Tuesday, or (2) they had something scheduled on Tuesday but they think the Mitchell report deserves immediate attention and priority over whatever they had scheduled that day.]

-- A congressman publicly announces that the NFL's destroying evidence that a team stole another team's signals is analogous to destroying CIA tapes. [This one goes beyond rationality; it's actually frightening if he's serious.]

-- The Georgia House, in a landslide vote, passes a resolution to urge the NCAA to adopt a playoff system for college football. It's now going to the Georgia Senate for approval.

Posted By : Rick Karcher

"Does Baseball believe an umpire from Kentucky is ...

Message posted on : 2008-02-02 - 12:54:00

"Does Baseball believe an umpire from Kentucky is more likely to be a racist than an umpire from Massachusetts?"

That is an obvious and valid assumption.

Second, if umpires, players, managers, or baseball officials are members of the KKK they sould be outed and removed from baseball--period, end of story.

PS: I live in the SF Bay Area, and I have never seen guys running arround with sheets over their heads unlike what goes on in the South and some parts of the midwest. IT IS reigional, but regardless of where the kkk live, they must be outed and eliminated.

Posted By : Anonymous

Here are the lawsuit filings and related documents...

Message posted on : 2008-02-02 - 14:02:00

Here are the lawsuit filings and related documents from the West Virginia Northern District Court

http://news.justia.com/cases/featured/west-virginia/wvndce/1:2008cv00041/21180/

Peace - Tim

Posted By : Tim Stanley

Glad to hear from you annonymous. but you are so o...

Message posted on : 2008-02-02 - 14:29:00

Glad to hear from you annonymous. but you are so off base it is scary. Certainly if a player or an umpire was in the KKK, they should be outed to say the least. But there is no evidence that would justify such a worry. But to assume a southerner is more likely to be a racist or an antisemite than a San Franciscan is its own kind of prejudice.
Posted By : Anonymous

The entire story has been distorted and overblown....

Message posted on : 2008-02-02 - 20:20:00

The entire story has been distorted and overblown. If you read the line of questions as described by the woman (the ump's neighbor) who was actually interviewed, you'll realize that no one was being sent out to ask about the KKK.

The question was "does he belong to any groups or organizations?" Which is a standard background check question. When the woman didn't follow the drift of the question, the questioner said "you know, like the KKK." Here's the important part:

"We both laughed and I said no," Rohan said. "He belongs to a neighborhood Harley-riding group of dads."

Like I said, asking about group affiliations is a typical background check question. At worst this investigator used an ill-advised but essentially harmless "f'rinstance," which the interviewee rightfully took as a humorous exaggeration.

There is no issue here, and the umps -- still upset that they're being checked in the first place -- are simply casting for some PR and sympathy.

Posted By : Shyster

Corrections:

Sports LAW blog wrote: "Althou...

Message posted on : 2008-02-03 - 09:06:00

Corrections:

Sports LAW blog wrote: "Although most of the land is owned by the MTA, a state entity, some of the adjacent land is privately owned and was the subject of this appeal."

This is incorrect. the proposed project site is 22 acres. The rail yard, Vanderbilt Yards, is 8.5 acres. That means the land owned by the MTA (publicly owned land sold for a song to Ratner) is 38.6% of the site. That is is not, obviously, "most of the land." The rest of the land Ratner wants to build his behemoth is publicly owned city streets that he would get for $1 and yes, private homes and business - about 70 private parcels to be precise.


Sports LAW blog wrote: "However, it is ironic that the Nets wil get the facility that Walter O'Malley wanted. "

This is incorrect. It is not the same site. http://www.nolandgrab.org/archives/2007/12/the_urban_le gen.html


Question:
Sports LAW blog wrote: "The court's ruling is a proper and reasonable one, giving the government proper deference and determining that this dispute is more political than judicial."

Has Sports LAW blog read the briefs? If you had, you'd understand why it is not a proper or reasonable ruling. It is the legislature that is supposed to be given deference. Not "government." In the case of Ratner's abuse of eminent domain, the NY legislature played no role. And thus no deference can or should be paid to the legislative decision to take properties as the legislature never made any such decision.

If you think the Nets are ever coming to Brooklyn we've got a bridge to sell you.

Posted By : Anonymous

Just a quick response to anonymous's critique:
...

Message posted on : 2008-02-04 - 00:15:00

Just a quick response to anonymous's critique:

1. The land for the Nets Arena may not be in the exact location, but certainly it is in the area.

2. Public Authorities have used eminent domain (rightly or wrongly) for decades to seize land for public purposes. From the Port Authority's seizure of land for the World Trade Center (obviously not done by the legislature) to the creation of beaches, roads, bridges and even Lincoln Center, the courts have not stopped the seizure of private lands for that purpose. So with that in mind, this ruling is not inconsistent and is within the prevailing standards. Here's a question: do you think that the U.S. Supreme Court would overrule this decision?

Posted By : Mark Conrad

Would the SJC overrule this decision? Hopefully, y...

Message posted on : 2008-02-04 - 10:00:00

Would the SJC overrule this decision? Hopefully, yes! With the decision in Kelo, the line has been crossed. It won't be long before we can never be assured that what's ours is ours since government will have the "right" to take it from us if they see fit -- that bar is getting lower and lower by the way. The Constitution was designed to protect citizens FROM the government not to give the government more and more rights over the citizens.
Posted By : CLLR

Videotping signs is not against the law. It's agai...

Message posted on : 2008-02-04 - 10:12:00

Videotping signs is not against the law. It's against league rules -- but not against the law. Congress should not be involved. I suspect that Specter is just a disgruntled Eagle's fan who happens to be in a position of power (it's scary that this is how he uses his position). Notice no other government official has ever brought this up. Are there not more pressing things he can be doing with his time. If not, I guess all the world's problems are solved and he's left with this to fret over.
Posted By : CLLR

Adding to CLLR's comment

The Court crossed ...

Message posted on : 2008-02-04 - 12:54:00

Adding to CLLR's comment

The Court crossed the line with Kelo! to many of us this is clear, while others wuld agree with the decision.

But I'm not counting on a quick fix here.

Stevens wrote the majority opinion; he was joined by Justices Kennedy, Souter,Ginsburg and Breyer.

The Dissent in Kelo consisted of Sandra Day O'Connor, joined by Chief Justice William Rehnquist, Scalia,and Thomas.

What has changed since Kelo?

We have the addition of CJ Roberts, and Justice Alito. I believe both would have been in the dissent if on the bench during Kelo. But they replaced O'connor and Rhenquist, both Kelo dissenters....

Kennedy was the swing vote in Kelo, and unless he has changed his mind, (and we can only hope!) Kelo will stand as is(rightly or wrongly).

Posted By : Jimmy H

Glad to see the Ninth Circuit bend over backwards ...

Message posted on : 2008-02-04 - 15:50:00

Glad to see the Ninth Circuit bend over backwards to the fans of baseball.

Someday I hope Arlen Specter understands and will stop with the grandstanding about NFL issues and get on with governing our country.

Posted By : qtlaw24

There's also the gambling issue. The score wasn't...

Message posted on : 2008-02-04 - 18:05:00

There's also the gambling issue. The score wasn't going to change last night, but billions of dollars can change hands when the game's outcome is already decided but time remains on the clock.
Posted By : columbiaa

Of course, surely the NFL is not going to admit th...

Message posted on : 2008-02-04 - 18:51:00

Of course, surely the NFL is not going to admit that it makes its rules based on gambling . . .
Posted By : Howard Wasserman

They may never admit it, but the rule is about gam...

Message posted on : 2008-02-04 - 19:25:00

They may never admit it, but the rule is about gambling. The extra point used to be optional if a team scored on the last play of the game. Now, by rule, you must complete the extra point. And yes it has affected bets when the outcome of the game was no longer in doubt.
Posted By : Anonymous

I think your criticism of concessions misses a key...

Message posted on : 2008-02-04 - 22:55:00

I think your criticism of concessions misses a key point -- that the team conceding has the most to gain by any miracle finish. In other words, there is no need (or very little) to put some sort of hard cap on the amount of time a losing team can concede, because they are in the best position to make that decision. That decision will be informed not just by the realities of the situation on the field, but also by the realities of the profession. That is, no coach is going to want to face the fans after conceding with 8:41 left in the 4th, even if they're down by 50. He's not going to want to face the players, his GM, the press, his family . . . whatever. So what he'll do is use the opportunity to get some playing time for little-used players, maybe try some little-used plays. He's not going to concede because there is still some value in the use of the time left, and there's a hell of a lot of downside to walking off early.

By contrast, there is very little downside in conceding the last thirty, forty, even the last minute of a game when the other team is just kneeling down. But, again, it is the coach on the field who has the best sense of what the breaking point is.

Posted By : Collin

beijing ticketing is a secure and realiable ticket...

Message posted on : 2008-02-05 - 06:19:00

beijing ticketing is a secure and realiable ticket agent for sale of olympic tickets.
Posted By : Robert

It was a great day for America. Evil was defeated...

Message posted on : 2008-02-05 - 08:19:00

It was a great day for America. Evil was defeated...
Posted By : Anonymous

I agree with you that the Ninth Circuit "bent over...

Message posted on : 2008-02-05 - 09:01:00

I agree with you that the Ninth Circuit "bent over backwards" here. Why is your interest in watching a game more important than an individual's Fourth Amendment rights? I don't get it.
Posted By : Rick Karcher

I'm still waiting for High School Gameday from EA ...

Message posted on : 2008-02-05 - 09:17:00

I'm still waiting for High School Gameday from EA sports... Im surprised they haven't tapped into this goldmine of right of publicity violations yet...
Posted By : Jimmy H

A hard fast mercy rule isn't needed. I've seen my ...

Message posted on : 2008-02-05 - 13:33:00

A hard fast mercy rule isn't needed. I've seen my alma mater rack up 21 points in 13 minutes to send a game to overtime and eventual win and 25 in 18:44 for a win.

My rule of thumb is mathematical possibility. Could the Giants have botched the victory formation, Pats recover and run for the winning score? Yep. Highly improbable but still possible.

The NCAA only addresses the matter when there is a score with no time left on the clock.

If you lead by more than 2 you don't have to attempt the try after touchdown. Many moons ago Arkansas State scored on hail mary at the horn to take a 23-21 lead. The insuing celebration resulted in the ball being placed at the 33 for the try. If Nevada had gotten the ball and advanced it to the other end zone they would have tied the game so they ran the victory formation and took a knee.

In New York it was "The Fumble" when the Eagles beat the Giants as they were trying to run out the clock.

Four seconds was enough for "The play".

If the outcome can still change no matter how improbable, you keep playing.

Posted By : Anonymous

Okay, but many of these corporations already give ...

Message posted on : 2008-02-05 - 15:43:00

Okay, but many of these corporations already give thousands, and in some cases, even millions of dollars to philanthropic causes already, far, far exceeding the standard you put forth here - "3 seconds worth of what we spend on advertising to help those who could not afford the Super Bowl ticket".
Posted By : Chad

Also, the post ignores the fact that these adverti...

Message posted on : 2008-02-05 - 17:51:00

Also, the post ignores the fact that these advertisers are among the biggest employers in America as well. Advertising drives sales. More sales leads to increased revenue and growth. When businesses grow, they create jobs and the economy grows and we get out of economic downturns.

Skeptical about the effects of Super Bowl advertising? Opportunities to have 100 million people see an ad for your product don't happen often. And unlike other television advertisement, the Super Bowl is known for having great advertisements, which draw as much fanfare as the game itself. Youtube and Myspace bid for the rights just to host the ads online. The ad money spent at the Super Bowl seems extravagant, but it is certainly money well spent.

3 seconds of Super Bowl advertising is worth approximately $300K. I would suspect that every single company that advertised during the Super Bowl spends at least that much, if not many times more in philanthropy each year. In fact, Anheuser-Busch has spent nearly $40 million per year in charitable giving in the past decade. $40 million would buy about 7 minutes worth of Super Bowl advertising -- far more than the 3 seconds you desire.

I certainly understand, and in some ways agree, with your stance in this post. However, the Super Bowl is definitely not among even the top 100 concerns facing this country today.

Posted By : William

I think college athletes would have a pretty good ...

Message posted on : 2008-02-05 - 17:53:00

I think college athletes would have a pretty good chance in succeeding on claims for right of publicity violations because they aren't "already handsomely compensated". Looking at past precedent, they fall somewhere in between Rosa Parks and professional athletes on the sympathy scale.
Posted By : Rick Karcher

And what do you think?

Message posted on : 2008-02-06 - 07:51:00

And what do you think?
Posted By : Anonymous

I think it's interesting that so many people are c...

Message posted on : 2008-02-06 - 10:29:00

I think it's interesting that so many people are convinced that HGH and testosterone actually enhance performance and provide a competitive advantage when there is no evidence to support it. Don't you think?
Posted By : Rick Karcher

CBSsports.com is offering $50 off registration thi...

Message posted on : 2008-02-06 - 10:44:00

CBSsports.com is offering $50 off registration this year for fantasy baseball.

Check out the link here:

http://baseball.sportsline.com/splash/baseball/spln/referral?refcode=BBCA08_atpr

Posted By : Michael Hayes

Absolutely! No evidence whatsoever. Gotta get back...

Message posted on : 2008-02-06 - 11:18:00

Absolutely! No evidence whatsoever. Gotta get back to my training, however: http://www.search-female-physique.com/4images/data/media/75/friend_monica.jpg
Posted By : Anonymous

Are you kidding?
The use of performance enhanci...

Message posted on : 2008-02-06 - 12:33:00

Are you kidding?
The use of performance enhancing substances is tearing at the fabric of our society!

This is serious. We have an obligation to all youth athletes to encourage playing by the rules. Even the suggestion that HGH and Testosterone don't enhance performance ventures far to close to condoning thier use.

Your comments, Rick and Anon, make me cringe.

Posted By : Anonymous

"The use of performance enhancing substances is te...

Message posted on : 2008-02-06 - 14:23:00

"The use of performance enhancing substances is tearing at the fabric of our society!"

Surely, this can't be serious. Tearing at the fabric of society?

Posted By : Anonymous

What does this post have to do with Sports Law???

Message posted on : 2008-02-06 - 15:33:00

What does this post have to do with Sports Law???
Posted By : Lou

Whatever the definitive answer as to performance e...

Message posted on : 2008-02-06 - 17:00:00

Whatever the definitive answer as to performance enhancing drugs, the principle should be upheld, no PEDs unless authorized. Its disingenuous to knowingly use PEDs, then say in hindsight, they do not work. Perhaps its not about the "fabric of society" but it is about integrity of sports and personal integrity.
Posted By : qtlaw24

If there is no link between testosterone or HGH an...

Message posted on : 2008-02-06 - 17:21:00

If there is no link between testosterone or HGH and improved on-field performance, they cannot be called PED's--they do not actually enhance performance. And we return to the first question of why these drugs should be banned--if they do not give players an on-field advantage, what is the rationale for banning them? "Integrity of the game" does not cut it because if the drugs do not work to improve performance, then they do not threaten the integrity of the game.
Posted By : Howard Wasserman

Test and HGH are amazing. So, there's no "If" Howa...

Message posted on : 2008-02-06 - 17:27:00

Test and HGH are amazing. So, there's no "If" Howard. For anyone who wants to try to debate the "if", well, how about leaving your computer screen and go to your local gym. You'll see....
Posted By : Anonymous

Isn't increasing muscle mass an element of increas...

Message posted on : 2008-02-06 - 17:32:00

Isn't increasing muscle mass an element of increasing strength? If it increases strength, even slightly, it would seem to have some benefit to performance if strength is a benefit to the activity.
Posted By : Anonymous

Seriously. Go workout and quit posting nonsense. T...

Message posted on : 2008-02-06 - 17:40:00

Seriously. Go workout and quit posting nonsense. The guys (and girls) at the gym who look abnormally large with bulging veins, muscles, short tempers, screaming expletives (and more than likely a tatoo of barbed wire on their arm): well, Uncle Test and Cousin HGH are working out with them...its not because they "think" the stuff helps.
Posted By : Anonymous

It's shocking -shocking!- that a company that's bl...

Message posted on : 2008-02-06 - 18:30:00

It's shocking -shocking!- that a company that's bleeding money and laying people off might start charging for a service that consumers might otherwise pay for and is costly to provide.

What's next, paying for cable and satellite delivery of television signals? Pay per view movies? Subscription based access to legal databases? The nerve!

All said with tongue in cheek, of course... :) I routinely use free Yahoo services that I would hate to start paying for.

Posted By : Anonymous

No one is questioning that HGH and steroids are ef...

Message posted on : 2008-02-06 - 19:36:00

No one is questioning that HGH and steroids are effective in building muscle mass and making people big. That does not necessarily equate with enhanced performance *in baseball*, which was Rick's point. Being bigger does not necessarily help someone hit a baseball or throw a fastball for a strike--in other words, it does not necessarily enhance performance in baseball (as opposed to making you bigger and stronger).
Posted By : Howard Wasserman

There comes a time when legal scholars should not ...

Message posted on : 2008-02-06 - 19:43:00

There comes a time when legal scholars should not pretend to be scientists. That time is now. Anyone who has been involved in competitive sports in the last 15-20 years at an elite level in high school, college or the professional ranks is well aware of the impact that HGH and testoserone and its precursors have on the increase in size, speed, strength and how it improves performance. Whether they should be legal is another argument. Still, for those who want to cast reasonable doubt on the efficacy of such drugs, well, keep on arguing, debating, manipulating. Your arguments might serve well in the courtroom, classroom, or over a dinner meal. However, on the field, court, track or in the gym, you would be laughed at. Why do people use HGH and steroids? Because they work.
Posted By : Anonymous

This is further evidence of a commercial instituti...

Message posted on : 2008-02-06 - 20:20:00

This is further evidence of a commercial institutional logic that permeates college sport. Big-time college football long ago ceased being "educational;" it's big business and everyone knows it. As a famous (or infamous) professional football coach is found of saying: "It is what it is."

I agree that exploited high-school and college athletes would have a ggod chance of succeeding on claims for right of privacy...The question is, who will be the "Rosa Parks" who has the social conscience to forfeit the "NFL gold at the end of the rainbow" that these athletes are all chasing?

Posted By : Richard M. southall

I sincerely hope that all of you Nifong lovers get...

Message posted on : 2008-02-07 - 02:17:00

I sincerely hope that all of you Nifong lovers get to see your children ruined over crimes of which they were wholly innocent.

This post sickens me, as do all of you who offer an ounce of sympathy to Nifong.

Posted By : Klaymore

"There comes a time when legal scholars should not...

Message posted on : 2008-02-07 - 08:14:00

"There comes a time when legal scholars should not pretend to be scientists. That time is now."

There comes a time when anaonymous posters should not pretend to be an athlete.

I cannot figure out how extra strength, or muscle mass, or whatever "benefit" you want to call it, helps a pitcher throw strikes or helps a pitcher throw a better curve ball? If you have ever been in a locker room you would know that pitchers, on average, have bad bodies.

You can lift all the weights you want, but if you can't throw strikes, you can't pitch in little league, much less the big leagues.

Posted By : Anonymous

This is a strange post coming from you guys. It so...

Message posted on : 2008-02-07 - 08:32:00

This is a strange post coming from you guys. It sounds to me like you are rumor-mongering. Why do you have any reason to think Yahoo! will divest itself of this portion of its business? If anything maybe it'll improve Yahoo! fantasy sports as Microsoft developers - and marketers - get involved.
Posted By : Amos

Howard,

I see your point (and Rick's) that...

Message posted on : 2008-02-07 - 08:52:00

Howard,

I see your point (and Rick's) that we cannot see a direct link between HGH testosterone and enhanced performance in baseball. But as to your question

And we return to the first question of why these drugs should be banned--if they do not give players an on-field advantage, what is the rationale for banning them? "Integrity of the game" does not cut it because if the drugs do not work to improve performance, then they do not threaten the integrity of the game.

While they may not give a baseball player a competative advantage, they are still illegal and dangerous drugs. to me, thats enough to ban them, thus not even reaching the issue of performance.

Posted By : Jimmy H

Amos:

It was this quote from the Febuary 4,...

Message posted on : 2008-02-07 - 09:52:00

Amos:

It was this quote from the Febuary 4, 2008 New York Times that spurred the post: "one person involved in Yahoo's deliberations suggested that 'the sum of the parts are worth more than the whole,' arguing that its various pieces like Yahoo Finance, for example, could be sold to a company like the News Corporation for a huge premium while Yahoo Sports could be sold to a company like ESPN."

In addition, Yahoo is a unique company is that it is involved in a wide conglomerate of businesses. While the trend in the 1980s was for private equity firms to buy several small companies and then sell them all together for more than the cost of their parts, the trend today has become for private equity shops to buy large companies, break them apart, and then sell off their pieces to where they best fit, at a great profit.

If you think from a business perspective based on core competencies, what the New York Times article seems to say makes sense -- Yahoo Sports may have its greatest value to a sports business. Because this quote comes from one of America's most highly respected papers, and cites directly to "one person involved in the Yahoo's deliberations," I feel it has to be given some weight.

Posted By : Marc Edelman

Jimmy H:

Saying HGH and testosterone are il...

Message posted on : 2008-02-07 - 10:06:00

Jimmy H:

Saying HGH and testosterone are illegal begs the question--why are they illegal or why should they be illegal? Saying they are dangerous does more work on that point. The question then becomes whether they are dangerous drugs with which MLB or the NFL should be concerned. I have questioned before how much leagues/teams should police player's off-field (mis)conduct, unless it affects or potentially performance on the field or the integrity of the game (beyond PR effects). If Rick is correct that the jury still is out on the *BASEBALL-related* effects of HGH, even if it is illegal.

Posted By : Howard Wasserman

Thanks for all the comments.

Anon, you sa...

Message posted on : 2008-02-07 - 11:11:00

Thanks for all the comments.

Anon, you said that we have an obligation to the youth to encourage playing by the rules, and that questioning whether these drugs enhance performance tends to condone their use. I think we have a greater obligation to teach our youth to LISTEN, to ask questions, to not just believe something just because somebody says it, and to give the accused in society every opportunity to defend himself/herself in a fair proceeding. And that's not "legal" jargon.

Also, I actually believe that we need to do the complete reverse of what you said -- We need to explain to the youth that it is highly questionable whether these drugs even enhance performance. If we are telling them that using these drugs will make them better athletes, then they are probably going to be more inclined to use them. Why not highlight the fact that there is no evidence that these drugs enhance your performance, and instead show them how the drugs can actually hinder athletic performance (by adding too much bulk and making you more prone to injury -- both of which CAN be proven).

And the fact that athletes use them is not compelling evidence (at least to me) that they enhance performance. Despite what you said, I actually was involved in competitive sports at an elite level 15-20 years ago. But that doesn't mean that I'm an "expert" and that's why I cited to the experts in the article. But from my experiences (and feel free to take it or leave it), the drugs were around then and most of us didn't feel "pressure" to use them, nor did we really care if another player chose to use them. I know that players do some strange things because they "think" it improves their performance. I knew a pitcher that brushed his teeth after every inning, jumped over the chalk line on his way to the mound, and had to have the centerfielder wave to him before he threw the first pitch. It's like when Crash told Annie in Bull Durham, "If you think you're playing well because you wear women's underwear, then you are!" I never wore women's underwear, but I did have to eat two roast beef sandwiches at Arby's for lunch every day during a four game homerun streak.

Posted By : Rick Karcher

Only 400 families lost their homes to foreclosure?...

Message posted on : 2008-02-07 - 11:47:00

Only 400 families lost their homes to foreclosure? There's something missing there. Could it be 400,000?
Posted By : Anonymous

Well put!

Message posted on : 2008-02-07 - 12:42:00

Well put!
Posted By : Anonymous

But cockfighting *is* legal where they were doing ...

Message posted on : 2008-02-07 - 15:19:00

But cockfighting *is* legal where they were doing it--not just culturally accepted, but within the law. Maybe this is too formalistic a view, but that should count for something.
Posted By : Howard Wasserman

The lack of "medical or scientific evidence" that ...

Message posted on : 2008-02-07 - 15:28:00

The lack of "medical or scientific evidence" that HGH or steroids improves on-field importance does not mean that they do not. It means it has not been tested. Or at least, I am aware of no study or experiment in which this was measured. As such, wouldn't it be better to say that there is a lack of evidence as to whether or not they improve performance? (by phrasing it only in the negative -i.e., "no evidence that they improve performance - it biases the sentence).

To the extent that HGH and steroids can increase strength and muscle mass, decrease fat and allow users to more quickly recuperate after punishing workouts, I think it is reasonable to believe that they could improve performance. (In scientific terms, this would be a hypothesis which needs to be tested in an experiment, which as noted above, has not been done).

Wouldn't it make sense to see there is an effect on performance? The best study would be to provide these drugs to some people but not to others (i.e., the control group) and see what the effects are. An easier option would be to look at the performance of numerous athletes who are or were on drugs. (For example, the cyclists David Millar did a lot better when he took various illegal performance enhancing drugs than when he did not.). Either way, it cries out for study (although my economist friends would tell you that if the players believe it works, then the market has spoken).

Posted By : DF

Marc, I don't doubt that the NY Times' source is a...

Message posted on : 2008-02-07 - 15:50:00

Marc, I don't doubt that the NY Times' source is at least authoritative enough to give rise to speculation. I guess it was flip of me to accuse you of rumor-mongering so I take back the accusation!

With that said, I keep reading or hearing about how many of Yahoo!'s properties might supposedly be divested. I heard on MPR that Yahoo might even outsource its search function (to Google) which would be the height of irony given that Yahoo! essentially invented search. I just wonder why Microsoft would pay so much for a stripped down Yahoo! but I guess that's an issue for another blog to cover.

Posted By : Amos

Also, dogs are furrier and cuter than cocks or bul...

Message posted on : 2008-02-07 - 16:21:00

Also, dogs are furrier and cuter than cocks or bulls, you forgot that one...
Posted By : Frank!!!

Enjoyed the Q/A on SI and great job on the Dan Pat...

Message posted on : 2008-02-07 - 16:45:00

Enjoyed the Q/A on SI and great job on the Dan Patrick show this morning.
Posted By : Adam Preston

DF, now that's what I would call "legal jargon". ...

Message posted on : 2008-02-07 - 17:25:00

DF, now that's what I would call "legal jargon". But in any event, the medical researchers in the article even question whether it allows users to more quickly recuperate. Also, what if increasing muscle mass actually slows down a batter's swing?
Posted By : Rick Karcher

Ummm, here we go with the "what if" legal jargon a...

Message posted on : 2008-02-07 - 17:42:00

Ummm, here we go with the "what if" legal jargon again......however, the Arby's reference was a good one....
Posted By : Anonymous

On the fifth day, I went off the Arby's and was 0 ...

Message posted on : 2008-02-07 - 19:30:00

On the fifth day, I went off the Arby's and was 0 for 4 with 2Ks
Posted By : Rick Karcher

See! Clearly it was either the Jamocha shake or th...

Message posted on : 2008-02-07 - 20:11:00

See! Clearly it was either the Jamocha shake or the Big Montana effect....:)
Posted By : Anonymous

Hi Adam, thanks. I appreciate those comments.

Message posted on : 2008-02-07 - 23:12:00

Hi Adam, thanks. I appreciate those comments.
Posted By : Michael McCann

Is there a difference between cockfighting and dog...

Message posted on : 2008-02-07 - 23:43:00

Is there a difference between cockfighting and dog fighting?

In the US? No.

If Martinez and Marichal were organizing cockfights in New York and Vick were merely attending and wagering on dog fights in most of Russia, we would tut-tut Vick while watching Martinez and Marichal get ready for prison.

We would be upset if a celebrity were caught driving 120 mph down the interstate but on most of the autobahn, no big deal.

Obviously not all actions in other nations are outside the reach of US law. It is illegal for a US citizen to purchase Cuban cigars or rum in a third country even if consumed in the other country.

Posted By : Mark

I posed this exact question to my students at Seto...

Message posted on : 2008-02-08 - 02:05:00

I posed this exact question to my students at Seton Hall back in December to consider purely from a moral point of view. After a two hour debate, we couldn't come up with anything more reasonable than Frank's conclusion.

However, considering the following: (1) bullfighting is legal in much of the world; (2)cockfighting is legal in much of the world; (3) allowing the shooting of deer with a shotgun purely for sport is legal in the U.S.; and (4) putting down healthy and innocent dogs without homes is legal in the U.S., I come to the following conclusion. It really does not make sense for Mr. Vick to be serving jail time, especially when murders, rapists and other violent criminals are regularly paroled early.

I'm not defending Michael Vick's behavior. But given 1,2,3, and 4 above, I really don't think Mr. Vick's punishment fit his crime, as least in view of society's broader protection (or lack thereof) for animals.

Posted By : Marc Edelman

Congratulations! You are the first person I've se...

Message posted on : 2008-02-08 - 10:00:00

Congratulations! You are the first person I've seen mention the very relevent fact that McNamee is facing Federal time. Clemons name came up because McNamee needed some names to save his own behind.

Far too many in the sports media are treating McNamee's claims as established facts, when in truth they are merely unsubstantiated allegations.

I have serious doubts about whether any judge would allow blood "evidence" that's been sitting in someone's garage for years. I'd like to see some legal minds comment on how that works in real court cases.

Last, were these substances on the banned list when Clemons is alleged to have used them?

Posted By : zak822

to all you people that are so against the lynch re...

Message posted on : 2008-02-08 - 10:11:00

to all you people that are so against the lynch remard and say that it "cuts deep" to african-americans...
how many of you have actually seen a lynching? none? that going to be my guess. why would something that you've never seen and/or something that you have only read about your ancestors bother you so much. i'm irish and my ancestors were in slaved a whole lot longer than the african-americans here in america. and yet, i'm not going to get all bent out of shape when someone makes a comment about potatoes or drinking. no, in fact my great grandparents were indentured servants that immigrated to america from ireland. both were subjegated to the racist society that is america. and yet, i don't seek reprisal for what happened in the past. move on and get over it that a reporter said the word lynch.

Posted By : mcr

There is a disturbing lack of logic in our differi...

Message posted on : 2008-02-08 - 11:46:00

There is a disturbing lack of logic in our differing treatments of differing animals. I generally think we're always on shaky ground when we try to rationalize differences between dogs, cows, chickens, deer or any other animal. Some animals people eat. Some animals people kill for fun. Some animals people love and play with. Some animals get trained to be entertainment. But at a moral level, what is the difference between these animals?

I do see a moral difference between "attending" an animal-torture sport and "organizing and financing" an animal-torture sport. But between chickens and dogs? There may be a difference, but not such a fundamental difference to make torturing chickens acceptable but torturing dogs reprehensible.

I might add that even if we could "rank" the intelligence of animals, that wouldn't be justification for differing treatment. Aquinas argued that because animals don't have reason, there's no sin in treating them badly; I'm not sure he addressed how to treat humans who lack reason (like children, senile seniors, mentally challenged people, etc.). I'm not sure "stupid" animals should be considered less worthy than "smart" animals, even if we could precisely define the stupid and the smart.

Posted By : Pacifist Viking

The last two comments inspire little more than HUH...

Message posted on : 2008-02-08 - 11:50:00

The last two comments inspire little more than HUH from me.

Slavery is still legal in parts of the world.
Prostitution is legal in parts of the world (including small parts of the US) and some even permit children to be involved.
Some drugs illegal in the US are legal elsewhere.

If the "it's legal somewhere else" standard determines who goes to jail we can certainly end overcrowding in prisons.

Let's not forget that blood sports are illegal for two reasons. The first is animal cruelty but it is quite logical to assume that many who have voted to make it criminal have done so because of opposition to the wagering that goes along with it.

Vick's problem is basically that he elected to engage in this activity in a sovereign state where it is illegal. He could have operated in any number of nations where it was legal and elected not to.

Let's be realistic. Vick isn't the first person to get a harsh sentence for the crime.
http://www.pitbullsontheweb.com/petbull/articles/tant.html

He lost a potential reduction in sentence by failing to accept responsibility and certainly didn't help his cause with a failed drug test. He got enhancements because he was deemed the head of that criminal enterprise.

Posted By : Mark

Ummm, would it matter (at all) if HGH or 'roids we...

Message posted on : 2008-02-08 - 12:25:00

Ummm, would it matter (at all) if HGH or 'roids were given to the dogs or roosters? [just kidding].
Posted By : Anonymous

Great idea, but it would've been even better if th...

Message posted on : 2008-02-08 - 13:02:00

Great idea, but it would've been even better if the NFL conceded this point on their own accord. I cannot think of a legitimate reason for the NFL to not allow churches to show the superbowl (regardless of screen size), especially when you take into account the number of consumers that the rule angers. Their is something wrong when I can go to the nearest sports bar and watch the game on a large screen projection, but I can't go to my local church and do the same.
Posted By : Andy

I'd love to hear a full explanation of how such a ...

Message posted on : 2008-02-08 - 13:13:00

I'd love to hear a full explanation of how such a showing would constitute a copyright violation. Is the argument that churches would effectively profit from the undertaking in some manner? What if they're organized as a non-profit? It all seems a bit confusing. I thought that the point of copyright was to protect the copyright holder's ability to profit from their production, not to shut down all potential uses and derivatives of it?
Posted By : Ben

Am I only one rankled by this proposal? Why shoul...

Message posted on : 2008-02-08 - 13:17:00

Am I only one rankled by this proposal? Why should churches be preferred over other non-profit social organizations?

Amending the copyright act to extend the exemption (say to larger screens and floor areas) in the case of a non-profit which is not charging its members for the event is reasonable. Amending it to specifically exempt churches stings.

Posted By : Lior

This is not nearly so hard as some Clemens fans wi...

Message posted on : 2008-02-08 - 13:37:00

This is not nearly so hard as some Clemens fans wish to make it. Clemens admits he was shot up. There should be no surprise that there would be syringes and pads and blood. The only real question is what went into Roger's rear. It's just the Bonds “flaxseed oil� excuse with B-12 and lidocaine.

Why does Clemens need to call the existence of these items “manufactured evidence?� Even under his best argument, they would have existed. Why does he continue to visit the members of the Committee, almost like someone returning to the scene of the “crime?� Why did he need a secretly recorded telephone call, in which he failed to express the ordinary rage that should have accompanied someone wrongfully accused? Why does he not rush to give his DNA? Of course it will be on the needles, even if it were B-12.

If the tests disclose his DNA mixed with steroids or HGH, will fans conclude that it was all an elaborate hoax? This is no Duke case. The more Hardin insults George Mitchell, the worse it gets for his client.

Posted By : Mark O

"Why should churches be preferred over other non-p...

Message posted on : 2008-02-08 - 13:50:00

"Why should churches be preferred over other non-profit social organizations?"

I'm with you Lior. If churches get that set up, I'll start my own church and invite friends over.

Now if you want to revoke the tax exempt status of all churches and let them have the SuperBowl instead, I'm good for that.

Posted By : Anonymous

That's really why I was wondering about the actual...

Message posted on : 2008-02-08 - 13:52:00

That's really why I was wondering about the actual law around the situation. Where's the harm? This question could be applied broadly to any non-profit.
Posted By : Ben

What specifically did the NFL actually say to chur...

Message posted on : 2008-02-08 - 14:56:00

What specifically did the NFL actually say to churches with respect to this issue? Andy, is it possible that the NFL isn't conceding anything because everything Congressman Spector says might not be entirely accurate? I have yet to read the NFL's response to Congressman Spector's assertions. Shouldn't Congressman Spector at least wait for that response before introducing legislation? The Super Bowl is over -- Why is this such an urgent issue that must be dealt with by Congressman Spector right now this minute? Sorry if these are just irrelevant questions I have....
Posted By : Rick Karcher

What happen to "Church" being a place to worship G...

Message posted on : 2008-02-08 - 15:04:00

What happen to "Church" being a place to worship God. With Mega and Simi-Mega Churches that look more like franchises religion is now to a point that it's a BIG business. Sad to say, it's a long way from the days of simply worshiping God.

I find it very hard to supports something that is clearly a business move and nothing to do with freedom to worship. What's next, movies shown at Church with offensive scenes removed.

Posted By : Anonymous

My son attended a Super Bowl watch at church near ...

Message posted on : 2008-02-08 - 17:20:00

My son attended a Super Bowl watch at church near his college. They didn't violate the screen size but may have violated the square foot portion.

Yeah you can watch in a bar but the bar should have already paid a license fee for that sort of thing.

I find the whole watch party thing disappointing and its not just the NFL. The Oscar folks do the same thing.

When a non-profit group isn't attempting to profit from a showing it ought to be fair use.

Posted By : Mark

I'm clearly not an expert on this topic, but I did...

Message posted on : 2008-02-09 - 02:43:00

I'm clearly not an expert on this topic, but I did go to a cockfight a couple of years ago while traveling in Nicaragua. Being curious (and slightly horrified) I ended up asking one of the "trainers" about the "sport" and what life was like for one of the fighting roosters. From what I understood (my Spanish isn't that good), the roosters lead a charmed life up until their death (think Kobe beef). Roosters are only trained for endurance, as aggression "comes naturally." This may be a false distinction, but I think there are material differences in the lives of these roosters and the pit bulls found on Vick's property. From what I gather, those dogs where kept in cages and routinely abused in order to condition them and toughen them up.

In my mind, it makes a difference.

Posted By : mattyacc

Professor Karcher:

I remembered the rumblin...

Message posted on : 2008-02-09 - 14:48:00

Professor Karcher:

I remembered the rumblings about this started during the 2007 SuperBowl. I dug up this article which explains why the NFL "shut down" SuperBowl parties in Indiana churches last year:

http://www.foxnews.com/story/0,2933,249539,00.html

I do agree that churches should not be able to profit from showings of the SuperBowl without paying a licensing fee (I think everyone can agree on that). However, if they are organizing a free party, I find the NFL's rationale regarding Nielson ratings to be rather strange. Unless I'm mistaken, aren't those ratings only calculated by using boxes placed in select homes? How significantly would this exception actually affect the ratings? Is Nielson not smart enough to create an equation that can account for the number of viewers at non-profit parties (since apparently they are able to estimate the number of viewers watching from sports bars and large home parties)? I wonder if the NFL has considered the fact that these types of parties often attract people who would not otherwise watch the game at a private residence? How much is the good will of the consumer worth? Maybe I am expecting too much for bureaucratic corporations to look beyond the numbers on their reports.

An exception like this does pose many questions though. What limit would there be square footage and screen size? Why only an exception for churches, and not other non-religious groups? This does seem like an issue the NFL should evaluate on their own accord; it certainly does not sound like an issue for the political system to evaluate.

Obviously I am no expert, but these are just some of the thoughts that popped into my head upon reading Sen. Specter's proposal. I do share similar views with you regarding Sen. Specter - he has been looking more and more like an angered sports fan, and less like a political representative over these past few weeks.

Posted By : Andy

HGH studies are flawed for the same reason steroid...

Message posted on : 2008-02-10 - 15:57:00

HGH studies are flawed for the same reason steroid studies are. The dosages in studies fall well below ranges typical for abusers because real-world doses pose serious health risks. "Lack of mundane realism."

So, while it might be true that modest doses are related to modest gains in muscle mass, it might also be true that much larger doses lead to much larger gains in muscle mass. It's also important to recognize that drugs are taken in combination in addition to being taken in very high dosages, especially HGH and steroids.

And while there's a moral element related to cheating, it's also a public health issue because use at the highest levels of competition expands geometrically to use at lower levels, such as high schools.

Posted By : Uncle Bruno

This country has been at war in multiple locations...

Message posted on : 2008-02-11 - 15:17:00

This country has been at war in multiple locations around the planet, costing thousands of lives and billions of dollars with no end in sight. Is the governing body of this country seriously spending its time on baseball?
Posted By : Anonymous

Yes.

Message posted on : 2008-02-11 - 16:46:00

Yes.
Posted By : Anonymous

I agree that there is subpoena power here that Mit...

Message posted on : 2008-02-11 - 19:51:00

I agree that there is subpoena power here that Mitchell did not have, which has the power to deliver better evidence. I do not criticize the Mitchell Report because without subpoena power its merely voluntary disclosure of facts which is not a very good vehicle for candid disclosures.

However, it all comes down to how Congress decides to utilize the subpoena power. Given the very short timeframe, I have serious doubts that the committee has utilized subpoena power to its fullest extent (demands for all documents, cellphone records, depositions of independent 3rd parties).

The information regarding Clemens' "get to know" rounds is sickening. If the committee members are supposed to be the arbiters, there's nothing worse than the "appearance of impropriety", which Rep. Towns has violated.

Posted By : qtlaw24

If cold air enhances performance should we use
Message posted on : 2008-02-12 - 04:34:00

If cold air enhances performance should we use
air conditioning units in all training facilites to aid the athletes, if we are measuring how the body performs technology and drugs should be allowed, but let the athletes know the outcome of taking them.
Posted By : Sally D

Uncle Bruno,

I dont think anyone in here ha...

Message posted on : 2008-02-12 - 07:58:00

Uncle Bruno,

I dont think anyone in here has questioned the health risks of HGH or Anabolic Steroids. most posters have even commented that the health issues are the most compelling reasons for a league ban.

The health issue does not really go hand in hand with "cheating", if we cannot determine that there is a competative advantage.

as far as placing the blame on the Pro's for making steroids "popular" and thus causing the high school kids to use is a bit suspect to me. Steroids have been around for along time, and I remember plenty of people using at the lower levels before sterids became a media issue.

Posted By : Jimmy H

Finally, a voice of sanity!

At this point...

Message posted on : 2008-02-12 - 13:20:00

Finally, a voice of sanity!

At this point, we have only McNamee's word that Clemen's violated the steroid ban. It is very disturbing that some many people are willing to simply take his word for it. He is, after all, trying to avoid Federal jail time by throwing Clemons under the bus.

But why the rush to take McNamee's word as revealed truth? That's what most of the sports media has done. They have said that McNamee had nothing to gain by lying--I guess you're the only one who remembers that McNamee is facing jail time. The media needs to be reminded of that little fact, and asked again, "why are you taking his word for it?" Let the record show I'm not a baseball fan--I don't really care if Clemons makes the Hall of Fame or not. I do care about destroying someones reputation based on little or nothing.

McNamee's alleged "evidence" would not be admissible in any court, since there is no way to prove that he didn't simply manufacture it himself. The rest is all hearsay. That and a dollar will get you a beer.

Posted By : zak822

Zak822:

There is no hearsay here. If McName...

Message posted on : 2008-02-12 - 13:40:00

Zak822:

There is no hearsay here. If McNamee testifies that he personally injected Clemens using a syringe that he knew contained steroids, that is *NOT* hearsay. That is, rather, the very model of trial evidence: Testimony by a witness with first-hand knowledge of what happened in the real world. To the extent there are credibility problems, that comes out and gets considered by the fact-finder. But as anyone who has ever been convicted on the strength of a co-conspirator's testimony can tell you, cross-examination for bias only goes so far.

Posted By : Howard Wasserman

I think Zak meant the physical evidence recently s...

Message posted on : 2008-02-12 - 16:53:00

I think Zak meant the physical evidence recently submitted ie. syringes, vials, cotton etc.
Not sure if thats hearsay but surely you have a chain of custody problem.
I want the $1 beers

Posted By : Anonymous

I read your "Key Questions" SI article, and have t...

Message posted on : 2008-02-12 - 16:59:00

I read your "Key Questions" SI article, and have to respectfully disagree as to your 'most likely reason' that Andy Pettitte, Chuck Knoblauch and Kirk Radomski would ask out of the hearing.

It seems to me that Rep. Davis gave the 'most likely reason' when he said "No ballplayer in their right mind wants to come up before a congressional committee. It wasn't like he could add anything." I'd have to presume that seeing his face plastered on ESPN ad finitim for the next decade or so (as have been McGwuires, Sosas, Palmeros, etc.) has to be a close second.

Posted By : Anonymous

wouldn't a special exception for churches open the...

Message posted on : 2008-02-12 - 17:20:00

wouldn't a special exception for churches open the door for any other non profit to challenge the constitutionality of the rule? Creating a slippery slope for the
NFL. Praise Jebus

Posted By : Anonymous

Question...I was told by a co-worker that it was i...

Message posted on : 2008-02-12 - 17:48:00

Question...I was told by a co-worker that it was illegal for Congress to question Clemens based on Pettitte's deposition since he (or his lawyers)did not have a chance to question Pettitte. I said that's wrong since this is a hearing and not a court procedure. Who's right?
Posted By : Anonymous

Do you think given the situation and the high prof...

Message posted on : 2008-02-12 - 21:22:00

Do you think given the situation and the high profile of Rodriguez in the state that there will be even a greater chance of bias against him with it being brought back into state court
Posted By : Mason

I do. And although I do not know anything about We...

Message posted on : 2008-02-12 - 23:02:00

I do. And although I do not know anything about West Virginia procedure, I am sure there is a procedure for transfer of venue to a different part of the state and I would not be surprised to see Rodriguez try to get the case away from Morgantown. This is not going to alleviate all bias, because the entire state is mad at him. But getting away from the college town might help at least a little.
Posted By : Howard Wasserman

You are. The rules of evidence, including rules re...

Message posted on : 2008-02-13 - 00:53:00

You are. The rules of evidence, including rules regarding hearsay, are not in play. Nor is there a right of any witness to cross-examine any other witnesses to the hearing--Clemens' lawyers will not have a chance to question McNamee.
Posted By : Howard Wasserman

It's Deven (not Devan) Desai.

Message posted on : 2008-02-13 - 10:01:00

It's Deven (not Devan) Desai.
Posted By : Patrick S. O'Donnell

Howard, anonymous has my perspective right. I sai...

Message posted on : 2008-02-13 - 12:42:00

Howard, anonymous has my perspective right. I said the evidence would not be admissable. Much of the rest may not be hearsay, but it is certainly uncorroborated by anything beyond McNamees word. It's hard to take that as gospel.

Which takes me back to my larger point. Why is everyone so eager to take McNamee's word for it?

Anon, $1 beers at my local watering hole, LaBatts on tap, $1 per 12 oz draft. 2 widescreen HD TV's. Great place for Sunday football or hoops! Sometimes Dee, the very pretty bartender, will put on baseball games, too.

Posted By : zak822

Zak: You said the physical evidence is not admissi...

Message posted on : 2008-02-13 - 17:42:00

Zak: You said the physical evidence is not admissible and "the rest is hearsay," suggesting that the rest is worthless (unless coupled with $ 1 at certain bars). My response was that the rest is not hearsay and thus not worthless, even if we throw out the physical evidence.

Plus, I am not as certain as you are that the physical evidence would be inadmissible. And it is not rendered inadmissible simply because all we have is McNamee's word. The ordinary way to establish that some evidence is authentic is through witness testimony; other non-testimonial corroborating evidence is not necessary. Plus, the standard for establishing that some evidence is admissible is very low. Now, you obviously do not believe McNamee. But some people do, so his testimony might be enough.

Posted By : Howard Wasserman

I respectfully disagree.

In every instance ...

Message posted on : 2008-02-13 - 20:36:00

I respectfully disagree.

In every instance which is material, there is corroboration for McNamee's version of the events, the injections to Pettitte, Knoblauch, and even Ms. Clemens. Even the Canseco house, Clemens' nanny corroborates that Clemens was there, whereas just a week ago Clemens was saying he was nowhere near that house.

The attacks on his credibility are warranted but a mere sidelight to the true issue of who is telling the truth about Clemens being injected with HGH by McNamee. On that issue, Pettitte corroborates McNamee by saying Clemens admitted to it.

Most importantly, the prior statements by McNamee are only damning when viewed in a vacuum. Why were they inconsistent with his testimony under oath? Because he was trying to protect Clemens and the others. Criticism on that basis is merely doing what's convenient at the time. He has no motivation to make this up now, none.

McNamee was not evasive or rambling. For people to judge him for what he was not is unfair; he was an unlicensed trainer dealing in a world that others are not familiar with, yet critics expected a choirboy? No. He's was not and never pretended to be a choirboy.

Clemens showed the classic signals of desperation. He was hypothecating about what others were possibly thinking and avoiding direct answers to the hard questions. He should have just said "I don't know what Andy was thinking but I know that did not happen." Instead he thinks he was "misremembering?"

He sacrificed his friend Pettitte, and his wife.

Posted By : qtlaw24

Wouldn't an educated person like you not yet rende...

Message posted on : 2008-02-13 - 20:36:00

Wouldn't an educated person like you not yet render a verdict? Why would you render a verdict at this point? If you can't resist, could you at least qualify your verdict with a "..for now."? We're not yet in the bottom of the 9th, Mr. Milstein. I am glad you are not a judge.
Posted By : Anonymous

Why i think clemens is guilty besides the fact tha...

Message posted on : 2008-02-13 - 21:11:00

Why i think clemens is guilty besides the fact that i thought he juiced before the mitchell report even came out.


- mcnamee had no motive to lie and every reason not to.

- pettitte and knoblauch said mcnamee told the truth about them.

- pettitte said clemens told him he was a user of HGH (most damaging), especially because they touted how pettitte had nearly an impeccable character

- clemens's wife took hgh in 2003 and roger never knew about it until now. how can anyone believe that?

- the doctor who said that an abscess like roger had on his rear is a common symptom of winstrol (steroid), and has never seen that from B12.

- Roger told the nanny that she didn't remember the party because "there was none" is very suspicious and smells like tampering.


- The nanny said the family slept at Canseco's house that summer.

Lying to police damages his credibility, even if he was protecting 15 yankees that might have gang-banged a woman.

I don't think lying to reporters damages his credibility because he doesn't have to tell the truth to them

Posted By : Anonymous

I agree with anonymous. I just can not believe tha...

Message posted on : 2008-02-13 - 21:30:00

I agree with anonymous. I just can not believe that Macnamee can call out pettite and Knoblach and clemens and is only right about 2 out of three. And how in the world would a housewife know about the effects of HGH, must less intimate to a trainer that she would like some without her husband knowing. It is almost comical.
Also, If macnamee is lying then shouldn't the committee now invesitgate Pettitte for perjury as he said Roger claimed to have used HGH. Even if you do not believe Mcnamee why would Pettitte lie about his friend and teammate?
None of this is conclusive, but come on, why would mcnamee lie? So he can go to jail, possible book deal? No way. Roger has every reason to lie.Mainly the hall of fame.

Posted By : Anonymous

pettitte wouldn't want to say roger juiced unless ...

Message posted on : 2008-02-13 - 21:36:00

pettitte wouldn't want to say roger juiced unless he was 200% sure that's what roger told him.
Posted By : Anonymous

Excellent question Howard. Maybe because Clemens i...

Message posted on : 2008-02-13 - 21:40:00

Excellent question Howard. Maybe because Clemens is a good ol' boy. It scares me to find myself on the same side as the republicans.
Posted By : Alan Milstein

Thanks, Chris for the catch. I had missed the pos...

Message posted on : 2008-02-13 - 21:55:00

Thanks, Chris for the catch. I had missed the posting of the Lopez hearing date. I see that the arbitrators were Christine Knowlton, Elliott Shriftman, and Steven Wolf. I will pull up my numbers on all three, and post my information on them and a prediction. Lopez was seeking $5.2 m and Washington offered $4.9 million.
Posted By : Ed Edmonds

(1) Republicans view it as a matter for baseball t...

Message posted on : 2008-02-13 - 22:27:00

(1) Republicans view it as a matter for baseball to resolve; keep the govt. out of business, including baseball's business; (2) Public health issues are not a huge priority to Republicans, so if somebody wants to smoke, drink, and do drugs, then that's their own personal choice; (3) Republicans are not typically proponents of the principle of in loco parentis; and (4) Republicans don't like to see somebody trying to bring down a top performer (Clemens, or "titan" as stated by one congressman) with accusations that can't be substantiated.

Democrats think the reverse of what I just said.

Posted By : Rick Karcher

As to no. 1, the first hearings on this nonsense wer...

Message posted on : 2008-02-13 - 22:34:00

As to no. 1, the first hearings on this nonsense were convened in 2005, when the GOP controlled the House and this Committee. As to no. 2, I vaguely recall the GOP occasionally taking a somewhat strong stance against people who want to make the personal choice of doing drugs.
Posted By : Howard Wasserman

Also, Pettitte claims that Roger told him he used ...

Message posted on : 2008-02-13 - 22:53:00

Also, Pettitte claims that Roger told him he used HGH in 1999.

Then, in 2005, Roger told Pettitte that he misunderstood him and that Debbie used HGH, not him.

But, that timeline doesn't make sense because Debbie supposedly used HGH in 2003, for the SI photoshoot--not in 1999.

Posted By : Anonymous

How many professional athletes contribute to the G...

Message posted on : 2008-02-13 - 23:26:00

How many professional athletes contribute to the GOP? I believe that especially baseball players, the distribution is pronounced towards the GOP.
Posted By : qtlaw24

"It scares me to find myself on the same side as t...

Message posted on : 2008-02-14 - 07:20:00

"It scares me to find myself on the same side as the republicans." This pretty much sums up all your postings on any subject, Milstein. Good job!
Posted By : Anonymous

Also, Democrats can't stand to see a wealthy perso...

Message posted on : 2008-02-14 - 08:12:00

Also, Democrats can't stand to see a wealthy person get an unfair advantage. I think they would be more sympathetic if it was a high school, college or minor league player sitting in Clemens' chair.
Posted By : Rick Karcher

This was Rich Man vs Poor Man. Guess who the GOP l...

Message posted on : 2008-02-14 - 08:47:00

This was Rich Man vs Poor Man. Guess who the GOP lined up behind, with a Fox News flourish of jingoism. Burton, Isso, Shays, Foxx: they all but chirped "Thanks for the signed balls, Rocket!"

Only one witness in this case has taken a substantial loss in income and reputation - McNamee, never more than a gofer in this drama, who's now broke, unemployable and vilified. No grandstanding cheering section for goony-looking McNamee at these hearings. That, for me, indicates truthfulness overall.

It's true he lied previously - mostly to the press, never while under oath and almost entirely to avoid naming Clemens. Got smeared as a disgusting lower order of vertebrate and drug dealer - in front of millions of people, and by some of our most august fixers and charlatans - regardless.

If yesterday's Congressonal circus at McNamee's expense taught me anything, it's never to cooperate with the government unless coerced. Remember: they doubtless threatened to take everything away from him unless he came clean. Then he did; and they took everything away from him anyway.

Posted By : Sick Dr Joe

Blog entries like 'My Verdict' only unde...

Message posted on : 2008-02-14 - 09:33:00

Blog entries like "My Verdict" only underscore what I've believed all along: skip the dog & pony show, and let's turn the whole mess over to the DOJ.

All yesterday accomplished was to give millions of people a close-up view of how the GOP operates, which come to think of it maybe wasn't such a bad thing. Nothing funnier in this world than watching the august colleagues of Larry Craig and Mark Foley calling a private citizen co-operating with their committee a "disgusting drug dealer" and "liar". Uh huh; now pull the other one, Congressman.

Posted By : Sick Dr Joe

Maybe if Clemens were still a Red Sox instead of a...

Message posted on : 2008-02-14 - 10:48:00

Maybe if Clemens were still a Red Sox instead of a Yankee, the dems would have been on his side.
Posted By : Alan Milstein

Notice that Dan Burton called McNamee a lot of thi...

Message posted on : 2008-02-14 - 12:41:00

Notice that Dan Burton called McNamee a lot of things, but he did not call him a drug dealer. He probably refrained from that since his son was convicted for dealing pot in 1994.

Great television, but what a travesty.

Posted By : Glenn

Andy Pettitte's testimony that Clemens told him he...

Message posted on : 2008-02-14 - 12:46:00

Andy Pettitte's testimony that Clemens told him he had taken HGH was simply wrong -- indeed, it is not possible that that conversation occurred. I believe the Committee knew this and intentionally misled everyone, by not releasing his deposition until after the hearing, not having him there live, and drafting a deceptive affidavit.

In his deposition, Pettitte said that he had the conversation with Clemens in 1999 (the offseason). BUT MCNAMEE UNEQUIVICOLLY STATED THAT HE FIRST INJECTED CLEMENS WITH HGH IN THE MIDDLE TO LATE 2000 BASEBALL SEASON -- 6-9 MONTHS AFTER THE SUPPOSED CONVERSATION WITH PETTITTE. So it is impossible that Clemens and McNamee told Pettitte in 1999 that Clemens was taking HGH. Pettitte is simply incorrect.

Further, the Committee tried to mislead everyone. While the deposition made it clear that Pettitte said he had the conversation during late 1999 (or at best early 2000), the affidavit said only "1999 or 2000", so people would not note the obvious contradiction.

All lawyers should condemn this unethical behavior by whoever on the Committee engineered this. If Pettitte had testified live, the inconsistency would have been obvious and Pettitte's testimony discounted. Instead, it is the most damaging evidence out there.

Posted By : Mark

Clearly the Dems are more interested in protecting...

Message posted on : 2008-02-14 - 13:52:00

Clearly the Dems are more interested in protecting Sen. Mitchell. If it were an ex-GOP Sen. it would have been the opposite. Remember, Waxman and Mitchell are still very close friends and with partisanship being at its height now why would anyone question what went on.
Posted By : Anonymous

Tough to be a Pats fan right now, with all the Spy...

Message posted on : 2008-02-14 - 13:55:00

Tough to be a Pats fan right now, with all the Spy Gate, and the Loss in the super bowl. I look forward to greener pastures.

Mike
New England Patriots Fan!

Posted By : Anonymous

You are not wrong - I wish you would call some of ...

Message posted on : 2008-02-14 - 14:03:00

You are not wrong - I wish you would call some of the radio talk show hosts or Daily News Live; it would be refreshing to hear some opposition. After I called in yesterday to a talk show they actually put it on television because I complained that these guys hadn't read Andy's deposition and were just saying the same old stuff without even reading the depositions. Bottom line - it would take an attorney to get through to them.
Posted By : Anonymous

I see that the conclusion to this lawsuit was foun...

Message posted on : 2008-02-14 - 14:14:00

I see that the conclusion to this lawsuit was found in favour of the defendants. This reafirms that fantasy sports are legal in most (all?) areas of the United States. Is this also true for Canada? (My home country) Can I legally start up a football pool through CBS or yahoo? And is it legal for them to offer this service?
Posted By : Anonymous

Would you take a trial this seriously if the judge...

Message posted on : 2008-02-14 - 14:21:00

Would you take a trial this seriously if the judge and jury prefaced their statements to the defendant with "you're my hero"?
Posted By : Anonymous

Is there any merit to the prediction made by McNam...

Message posted on : 2008-02-14 - 15:02:00

Is there any merit to the prediction made by McNamee's attorney that, if convicted of making false statements or obstructing justice, Clemens would likely receive a pardon from President Bush?
Posted By : Brad Jones

Let's be clear. The Congressmen were the lawyers i...

Message posted on : 2008-02-14 - 15:04:00

Let's be clear. The Congressmen were the lawyers in this show trial, although not very skilled ones. We are the judge and jury. And the trial is over so we have to render a verdict even if we feel the evidence is not in. That is what made the hearing so compelling. It was an excellent opportunity to try to understand how juries go about their business.
Posted By : Alan Milstein

McNamee's lawyer predicts Bush pardon for Clemens<...

Message posted on : 2008-02-14 - 16:38:00

McNamee's lawyer predicts Bush pardon for Clemens

http://www.nbcsports.com/portal/site/nbcsports/menuitem.6f806e473b4cb158fb00ec22493c2d04/?vgnextoid=a7cf7afdd3918110VgnVCM10000075c1d240RCRD

Posted By : Anonymous

McNamee's testified that he first injected Clemens...

Message posted on : 2008-02-14 - 18:31:00

McNamee's testified that he first injected Clemens with steroids in 1998, when Clemens was playing in Toronto, sometime after the barbecue that Clemens and his nanny may or may not have attened. So maybe it the difference between HGH and Steroids, but something was (allegedly) happening earlier with Clemens than 2000.
Posted By : Howard Wasserman

This is a quite refreshing post especially for pra...

Message posted on : 2008-02-14 - 18:52:00

This is a quite refreshing post especially for practitioners. Just another example of why this blog is excellent.
Posted By : Anonymous

I will try to add my comments tomorrow regarding t...

Message posted on : 2008-02-14 - 23:07:00

I will try to add my comments tomorrow regarding the Brian Fuentes hearing that was held today before the decision is announced. I think that the Rockies will win this one.
Posted By : Ed Edmonds

To believe Roger Clemens you have to believe that ...

Message posted on : 2008-02-15 - 00:06:00

To believe Roger Clemens you have to believe that his personal trainer and "friend" injected a teammmate, (Knoblauch) his best friend and teammate (Petitte) and his wife with HGH all without his knowledge or even so much as a discussion on the subject.

In addition you have to further believe that Clemens, upon finding out that McNamee had injected his wife, and (at least) caused her some discomfort, reacted by....keeping McNamee as his trusted trsiner?

But, if you believe all the above, while I hesitate to believe Petitte, as he too has lied, in this case you have to wonder, what is his motive to lie and back up McNamee?

Oh, and then there is Clemens timeline of the events which is impossible -- off by about 2 years.
And the imperical evidence on the back of his baseball card that shows he had performance "jumps" at exactly the same time as the "alleged" injections occurred.

Lastly, if the injections were of lidocaine, as Clemens asserts, would anyone care to comment on why he would want a numb butt? (Lidocaine is a synthetic amide used as a local anesthetic.)

Posted By : David R.

Prof. Karcher,
This situation seems analogous t...

Message posted on : 2008-02-15 - 08:42:00

Prof. Karcher,
This situation seems analogous to the Jim O'Brien firing at OSU a couple of years ago. I agree that IU must take immediate action, but not so quick as to increase the likelihood that IU will suffer further loss thru employment lawsuits from Coach Sampson. With outdated facilities and impending sanctions forthcoming, IU will need all the money and good publicity they can get to ensure the future head coach and blue chip players still find IU's program appealing.

Posted By : Anonymous

You have to love the irony of Bob Knight retiring ...

Message posted on : 2008-02-15 - 09:06:00

You have to love the irony of Bob Knight retiring at the same time that Indiana Basketball gets into serious NCAA trouble under Knight's successor. Say what you will about Knight and his personality and the way he treated people (which is not so different, really, from the way a lot of coaches treat players, assistants, etc), he ran a clean program and his players graduated. Indiana wanted to get the "opposite" of Knight when it hired his first real successor 19 months ago. (Mike Davis was something of an accidental hire and less of a conscious choice by the school). But there are many "opposites" of Knight, some of which are not, in fact, positive; I guess IU did not count on that.
Posted By : Howard Wasserman

Anon,

Thanks for the comment. O'Brien is a...

Message posted on : 2008-02-15 - 09:19:00

Anon,

Thanks for the comment. O'Brien is a different situation. Although O'Brien was terminated prior to an NCAA determination, OSU's termination wasn't supported by the for cause termination language in O'Brien's contract, which required "a material breach" by O'Brien or "an NCAA violation that results in a major infraction investigation and which results in a finding of a lack of institutional control or sanctions imposed upon Ohio State".

So while I agree that a just cause termination would be more "fool proof" if IU waits for a ruling, I see two main distinctions. First, the for cause termination language in Sampson's contract is much more favorable to IU than OSU's contract with O'Brien. Second, Sampson's alleged conduct (lying and repetitive) is more serious than O'Brien's.

Posted By : Rick Karcher

Making the rounds on the internet:

Clemens:...

Message posted on : 2008-02-15 - 09:46:00

Making the rounds on the internet:

Clemens: You want answers?
Congressman: I think I'm entitled to them.
Clemens: You want answers?

Congressman: I want the truth!

Clemens: You can't handle the truth! Son, we live in a world that has baseballs. And those balls have to be hit by men with bats. Who's gonna do it? You? You,Congressman? I have a greater responsibility than you can possibly fathom. You weep for steroids and you curse HGH. You have that luxury. You have the luxury of not knowing what I know: that HGH, while illegal, sells tickets. And my existence, while grotesque and incomprehensible to you, sells tickets...You don't want the truth. Because deep down, in places you don't talk about at parties, you want me on that mound. You need me on that mound. We use words like fastball, slider, splitfinger...we use these words as the backbone to a life spent playing a sport. You use 'em as a punch line. I have neither the time nor the inclination to explain myself to a man who rises and falls asleep to the Sportscenter clips I provide, then questions the manner in which I provide it! I'd rather you just said thank you and went on your way. Otherwise, I suggest you pick up a bat and dig in. Either way, I don't give a damn what you think you're entitled to!

Congressman: Did you order the HGH?

Clemens: (quietly) I did the job you sent me to do.

Congressman: Did you order the HGH?

Clemens: You're goddamn right I did!!

Posted By : Anonymous

Interesting points, but I always get a bit suspici...

Message posted on : 2008-02-15 - 12:44:00

Interesting points, but I always get a bit suspicious when the Clinton Times cite to an "anonymous GOP staffer"....
Posted By : Jimmy H

I have been in the health club business for over 1...

Message posted on : 2008-02-15 - 12:54:00

I have been in the health club business for over 15 years as a consultant and management. If you contact IRSA, international racquet sports association, i am sure they will be of great assistance.
cg from pa

Posted By : baldman10

a rather insensitive headline given the shootings ...

Message posted on : 2008-02-15 - 13:11:00

a rather insensitive headline given the shootings at ISU
Posted By : Anonymous

Think what an incredible statement Waxman has made...

Message posted on : 2008-02-15 - 13:43:00

Think what an incredible statement Waxman has made. He says the Committee did not want the hearing but held it because Clemens and his attorneys wanted one. So he had a critical United States Congressional Committee waste a day on a hearing held at the behest of a single individual. Good thing there were no other important issues to tackle. And if that is to be beleved, Rusty again chose noise over silence and had it backfire.
Posted By : Alan Milstein

what? this wasnt the US Congressional Committee on...

Message posted on : 2008-02-15 - 13:51:00

what? this wasnt the US Congressional Committee on Baseball Affairs? then what are people voting on?
(Partisan Sarcasm Intentionally Omitted)

Posted By : Jimmy H

Anon,

Thanks for bringing it to my attentio...

Message posted on : 2008-02-15 - 15:47:00

Anon,

Thanks for bringing it to my attention. That definitely didn't cross my mind when I wrote the post. I didn't mean to offend anybody, and I will change the title right now.

Posted By : Rick Karcher

"because Hardin does not do anything non-vehementl...

Message posted on : 2008-02-15 - 16:17:00

"because Hardin does not do anything non-vehemently"

That is beautiful, just beautiful.

Posted By : David

The divide is a result of the Democrats going afte...

Message posted on : 2008-02-15 - 17:14:00

The divide is a result of the Democrats going after yet another American institution: baseball. Yesterday it was the Boy Scouts. Today it is baseball.
Posted By : Anonymous

Alan:

I actually do not necessarily have a ...

Message posted on : 2008-02-15 - 17:48:00

Alan:

I actually do not necessarily have a problem with it. If we start from the premise that the investigation was a legitimate exercise (let's use our imaginations) and the committee's private fact-gathering revealed Clemens to be the target and that target wanted a chance to respond in public, I think principles of fair process and open government support the committee agreeing to that--sort of a "day in court" idea. Not constitutionally required, but justifiable.

As for Hardin, has he made a single decision in this entire debacle that has not backfired?

Posted By : Howard Wasserman

Howard,

I can go along with that theory, an...

Message posted on : 2008-02-15 - 18:30:00

Howard,

I can go along with that theory, and even accept all the assumptions... But, in that case the hearing should have been fair and unbiased. This hearing was neither. the Dems attacked Clemens and the Reps attacked McNamee... that alone would make it a a waste of time just like alan said...

wow...It scares me to find myself on the same side as Alan...

:)

Posted By : Jimmy H

when i saw the headline, i thought for sure this w...

Message posted on : 2008-02-15 - 20:05:00

when i saw the headline, i thought for sure this was a Karcher post.

anyway, Valverde, and Wang lost their cases too.

Posted By : Anonymous

Very funny.

Message posted on : 2008-02-15 - 21:40:00

Very funny.
Posted By : Alan Milstein

You need us if you have any of these tax problems:...

Message posted on : 2008-02-16 - 01:50:00

You need us if you have any of these tax problems: Back
Taxes
, Unfiled Returns, Missing Records, Threat of Levy, or, if you need an Installment Agreement or an Offer in Compromise A tax levy or garnishment or attachment are all the same thing. The terms may be used interchangeably. A wage garnishment or levy may be against any asset. In the enforcement of tax collections. We prepare all Federal and State Unfiled tax Returns The Fair Tax Act (HR
25/S 1025) is a bill in the United States Congress for changing Tax Solutions laws to replace the Internal Revenue Service (IRS) and all federal income taxes (including Alternative Minimum Tax), Past due tax returns, Past due tax returns, Past due returns, Past due taxes, Unpaid tax, Tax negotiation, Wage levy, Robert M. Adams, Bob Adams, Try to Be Happy, Search Engine Optimization

Posted By : Seo Link Master

David R,

Yes, Lidocaine is used as a local ...

Message posted on : 2008-02-16 - 21:09:00

David R,

Yes, Lidocaine is used as a local anasthetic. However, lidocaine has other uses, as drugs often do.

In sports medicine, Lidocaine has been suggested to temporarily reduce muscle spasms.

Its also used to control irregular heart beat. (under the brand name Xylocaine)

I haven't heard what the reason for injecting Clemens was though.

Posted By : Jimmy H

interesting post Roger,

As you point out th...

Message posted on : 2008-02-17 - 14:39:00

interesting post Roger,

As you point out though, it is a rule without any penalties for non-compliance, so I have to question its usefulness in this instance. (after all, schools have no problem violating NCAA regs that carry santions...)

under this rule, how would you deal with a Florida State type situation where the school has allready promised the HC job to a long time assistant coach in the anticipation of the head coach's retirement. This institution would then interview a minority candidate without ANY intention of even considering that person for the job.

assuming there will be sanctions for non-compliance in the future,
is technical compliance the only thing required here?

Posted By : Jimmy H

Rules without teeth are really just policies. True...

Message posted on : 2008-02-18 - 13:25:00

Rules without teeth are really just policies. True. Title IX without a penalty is just another "Title." However, a couple of thoughts. Can you please define African American for us? You use it incessantly in your post. Also, while the majority ruled with O'Connor (5-4) the people of the state of Michigan pretty much took it away from the courts altogether (worth noting, don't you think?). Glad to see you refuse to give in to the "FBS" or "FCS" nonsense and still refer to football as 1-A. Finally, don't you think that the hiring policies are best left up to the institutions rather than racial preferences mandated by the NCAA? I mean come on: that's what Dr. Brand says all the time about hiring, salaries, etc., so why not throw in racial concerns as well? The NCAA is more concerned about illegal blogging than this issue.
Posted By : Anonymous

Professor Karcher,
Perhaps Judge Doty's most re...

Message posted on : 2008-02-18 - 16:02:00

Professor Karcher,
Perhaps Judge Doty's most recent ruling will force teams to rethink the way they draw up player contracts in regards to bonuses. Had the Falcons not given Vick the money in the form of a "roster bonus" I have no doubt that the Falcons would be able to recoup a large amount of the bonus money not yet earned. However, by making the bonus contingent on making rosters in 2005, 2006 and 2007, I wonder if the Falcons have handcuffed themselves from recovery. With Article 14 of the CBA prohibiting the forfeiture of money earned, and Burbank's ruling in the Ashley Lelie case (which appears to be opposite from his Vick ruling), I think Vick's money may have been "earned" as of the day the money was paid to Vick for remaining on the roster. I am sure the Falcons structured Vick's contract to pay him a maximum amount of money in the first few seasons while allowing themselves to continue prorating his cap number, but maybe this is a case of buyer beware. In the back of Rich McKay's mind, I imagine he was thinking that Vick would be rewarded early for a promise to perform later by remaining on the roster. However, I wonder if it would have been possible to reward Vick with a "roster bonus" in 2005 that covered 2005-07 seasons, a "roster bonus" in 2006 that covered 2008-10 seasons, and a "roster bonus" in 2007 that covered 2011-13 seasons. Obviously such a contract would need a damages clause that would require Vick to forfeit any portion of a bonus not yet earned. This is just my initial reaction. I am not even sure the CBA would allow such payment, and I have not seen the Vick contract to know whether roster bonuses were awarded every season for the life of the contract.

Posted By : Brad Jones

Ed,

These posts are great reads.

I...

Message posted on : 2008-02-18 - 16:35:00

Ed,

These posts are great reads.

I have a question on Mark Loretta's hearing. How much will his mediocre (or worse) slugging percentage (.372) hurt him? I know he played a utility role last year, but if he had been considered a 2nd baseman, his slugging percentage would have been the 2nd worst among National League second basemen.

Do you think slugging percentage is discounted for a utility guy, whereas other stats (e.g., number of positions played) are given more weight, or will this hurt him?

Posted By : Michael McCann

I think that slugging percentage is a factor, and ...

Message posted on : 2008-02-18 - 17:32:00

I think that slugging percentage is a factor, and I am certain that the Astros used that against him. The interesting think is that he played shortstop last year so how does that play into what each side presents to the panel. The main strategy is to get 10 guys that look like your player and argue from their contracts. I will be interested in the arbitrators because I might change my prediction if the panel looks really pro-team.
Posted By : Ed Edmonds

Another possible point of interest is that veteran...

Message posted on : 2008-02-18 - 17:40:00

Another possible point of interest is that veteran free agents are the unusual group in arbitration. Usually the group is dominated by Super 2s through 6-year veterans just on the cusp of free agency. Todd Walker and the Padres went to a hearing last year. Walker lost and received the team offer of $2,750,000 instead of his request for $3,950,000. Jack Clarke, Elizabeth Neumeier, and Steven Wolf formed the panel. The Padres released Walker on March 26. He signed a free agent deal for $450,000 with Oakland on March 30, but he was released on May 17.
Posted By : Ed Edmonds

Oliver Perez should be interesting because it'll b...

Message posted on : 2008-02-18 - 21:09:00

Oliver Perez should be interesting because it'll be a good way to gauge how much arbitrators feel about the season before a good one as he had a great 2004, then two bad years, and a good year in 2007.
-arg

Posted By : Anonymous

Vick shouldn't have to give up his "signing bonus"...

Message posted on : 2008-02-18 - 21:12:00

Vick shouldn't have to give up his "signing bonus" because if it was really a "signing bonus" it would have vested when he signed it.

-arg

Posted By : Anonymous

Arg:
That is actually not true. "Signing bonus...

Message posted on : 2008-02-18 - 21:37:00

Arg:
That is actually not true. "Signing bonuses" can be forfeited under the CBA. Typically a player's contract will say that a player will return the entire bonus if player defaults in year 1, and then a prorated share of the bonus for every year after the inital year that player may default for the duration of the contract. The problem for the Falcons is that the money given to Vick was not a signing bonus. He was awarded for being on the roster, and that is probably why Judge Doty said that Vick's money had been earned.

Posted By : Brad Jones

Ed, thanks for those replies. It will be interest...

Message posted on : 2008-02-18 - 23:11:00

Ed, thanks for those replies. It will be interesting to see what happens with Loretta.
Posted By : Michael McCann

Then it truly wasn't a "signing bonus"

Message posted on : 2008-02-19 - 08:00:00

Then it truly wasn't a "signing bonus"
Posted By : Anonymous

Astros defeated infielder Mark Loretta in their ar...

Message posted on : 2008-02-19 - 10:50:00

Astros defeated infielder Mark Loretta in their arbitration case against him.
Loretta asked for $4.9 million, but will instead receive the $2.75 million that the team offered.

Posted By : Anonymous

I'm not following his basis for stating that not d...

Message posted on : 2008-02-19 - 13:44:00

I'm not following his basis for stating that not disclosing the terms of a settlement means or implies that athletes receive preferential treatment. Professor Zelinsky (and the others he mentioned) elected to fight their cases through the court system and lost. Jeter chose to settle rather than do that -- I would hope that the settlement would be much less than he would otherwise owe if he had fought it through the courts and lost. Otherwise, what incentive would there be for anybody to settle!
Posted By : Rick Karcher

Rick,

I agree with you that Professor Zelin...

Message posted on : 2008-02-20 - 00:36:00

Rick,

I agree with you that Professor Zelinsky's implication seems flimsy at best--I would suggest that Professor Zelinsky brings up the issue of possible preferential treatment merely to supplement his argument that the State of New York is (unfairly) overreaching its bounds regarding taxation of non-voting, non-residents.
However, the anecdotal support for his argument was, evidently, dissuaded by the court(s).

Posted By : Anonymous

You need us if you have any of these tax problems:...

Message posted on : 2008-02-20 - 02:00:00

You need us if you have any of these tax problems: Back
Taxes
, Unfiled Returns, Missing Records, Threat of Levy, or, if you need an Installment Agreement or an Offer in Compromise A tax levy or garnishment or attachment are all the same thing. The terms may be used interchangeably. A wage garnishment or levy may be against any asset. In the enforcement of tax collections. We prepare all Federal and State Unfiled tax Returns The Fair Tax Act (HR
25/S 1025) is a bill in the United States Congress for changing Tax Solutions laws to replace the Internal Revenue Service (IRS) and all federal income taxes (including Alternative Minimum Tax), Past due tax returns, Past due tax returns, Past due returns, Past due taxes, Unpaid tax, Tax negotiation, Wage levy, Robert M. Adams, Bob Adams, Try to Be Happy, Search Engine Optimization

Posted By : Seo Link Master

Ed, what is your email?

Message posted on : 2008-02-20 - 11:38:00

Ed, what is your email?
Posted By : Anonymous

I think that you pose a very interesting question....

Message posted on : 2008-02-20 - 18:39:00

I think that you pose a very interesting question. I don't think that a new stadium will draw fans if a World Championship did not. Florida has so many sports teams that support is hard to maintain, no matter how nice your stadium is.
Posted By : Tim Williams

How unusual is it for another team's president to ...

Message posted on : 2008-02-21 - 09:44:00

How unusual is it for another team's president to present for a team? Doesn't it seem that there might be a conflict of interest in allowing the Astros team president to present a case for the Phillies?

I assume it is in the Astros best interest to keep salaries down across the board, but this arrangement seems strange to me?

Posted By : Anonymous

Tal Smith has been doing this for a number of year...

Message posted on : 2008-02-21 - 11:14:00

Tal Smith has been doing this for a number of years on behalf of many teams. One of the advantages that management holds is his experience."

I took the following quote about the work of his firm from MBL.com

"Tal returned to the Houston organization on Nov 22, 1994, when he was named president of the club. Since 1981, he has been owner and operator of Houston-based Tal Smith Enterprises, a firm which has provided consulting services to 26 of the 30 Major League clubs. The most recognized functions have been in the preparation and presentation of salary arbitration cases (where Tal's firm has handled over 900 filings and tried over 150 cases), the financial appraisal of franchises and testimony as an expert witness in sports-related litigation. Tal also served as the sole arbitrator in two disputes involving Major League Baseball where the Commissioner was recused.

See http://mlb.mlb.com/hou/team/exec_bios/smith_tal.html

Posted By : Ed Edmonds

Wow. I guess they took the "Don't mess with God" p...

Message posted on : 2008-02-21 - 12:22:00

Wow. I guess they took the "Don't mess with God" position. Good call.
Posted By : Anonymous

Michael - Thanks for the comprehensive analysis of...

Message posted on : 2008-02-21 - 23:08:00

Michael - Thanks for the comprehensive analysis of the potential indictment of Clemens for perjury based on his testimony before the committee and the role of the Justice Department in responding to that testimony.
Posted By : Ed Edmonds

Ed,

These are great posts, and I really app...

Message posted on : 2008-02-22 - 07:20:00

Ed,

These are great posts, and I really appreciate you taking the time to do them. In a previous post, you mentioned that "it is often stated that arbitrators want to maintain a record that is close to .500" (meaning that a particular team maintains that record). I don't understand that. If that's true, I see that as an inherent flaw with baseball's arbitration system. Each case should be viewed in isolation on its individual merits. Prior decisions for or against a particular team are completely irrelevant and should have no bearing on the outcome of any given case. It would be more efficient to just have computers make these decisions if based on a team's prior record in arbitration.

Posted By : Rick Karcher

Message posted on : 2008-02-22 - 08:37:00

This comment has been removed by the author.
Posted By : Ed Edmonds

Did Prince Fielder just do a backflip?

Message posted on : 2008-02-22 - 08:40:00

Did Prince Fielder just do a backflip?
Posted By : Anonymous

I might have caused some confusion in what I wrote...

Message posted on : 2008-02-22 - 08:41:00

I might have caused some confusion in what I wrote, Rick. The idea that started me on this was the stated view that each individual arbitrator needed to stay close to 50-50 because, if they did not, they would not be asked to come back the following year. The MLBPA or management can decide that a particular arbitrator can no longer continue if either of them or both feel that arbitrator is biased towards one side or the other or is not prepared or does not pay attention to the criteria. The quotation that I posted from Thomas Roberts was directed at that observation. I agree with him and with you. Each case should be taken on the merits and based upon the presentation of information by each side and the criteria established in the collective bargaining agreement.

There is another problem with looking solely at an arbitrator's individual record at hearings without a complete analysis of the cases presented to them. It just might be the case that an arbitrator is presented with five cases. Let's say that an independent panel of five reviewed those cases. Let's say that that the arbitator and the review panel agree that the players should have won four of the five cases or that management really had the better argument in four of the five. I would argue that it is wrong to say that the arbitrator has shown bias because their individual record is 4-1. That might be the correct record in those five cases based on the merits of the data and the arguments. Just as in litigation, each party deserves the best decision that the judge or the jury can make without any concern for parties that are not involved in the case or the activities of the same or similar parties at another point in time.

I think it was a good idea to go to panels of three instead of just one arbitrator. I really believe that it improves the chances of arriving at the better decision.

Thanks for the opportunity to provide a clearer answer.

Posted By : Ed Edmonds

I wanted to correct a typo in my original response...

Message posted on : 2008-02-22 - 08:42:00

I wanted to correct a typo in my original response and to add a sentence.
Posted By : Ed Edmonds

Professor Karcher,
Do you feel that the union's...

Message posted on : 2008-02-22 - 16:42:00

Professor Karcher,
Do you feel that the union's argument is weakened by the fact the reduction of the debt ceiling has zero effect on the salary cap or on the salary floor? I know many owners take advantage of the debt ceiling in order to finance the large signing bonuses that players command today. However, I don't feel that paying a player $20 million through a salary spread out over a couple of seasons instead of $20 million in a one-time signing bonus can necessarily be considered a chilling effect. $20 million is still $20 million. I know the union will argue that the salary dollars are not guaranteed whereas a signing bonus is, but I think the union will be hard pressed to find any language in the CBA that requires a player contract to contain a certain amount of guaranteed v. non-guaranteed money, with the obvious exception of minimum salary amounts based on seasons played.

As to your second point, I am curious as to whether or not the union has ever cried foul when the debt ceiling was raised. I am going to guess that each time the league has raised the debt ceiling, the union has not challenged such a move by way of claiming a mandatory subject of collective bargaining. If this is the case, does the union lose their right to challenge the lowering just because it is not in their favor for a change?

Posted By : Brad

Brad,

I don't think the union's argument is...

Message posted on : 2008-02-23 - 10:43:00

Brad,

I don't think the union's argument is weakened by the factors you mentioned. Salary caps and salary floors, on their face, undoubtedly affect wages. While on its face reducing the debt ceiling does not speak to wages, it undoubtedly affects wages, which is arguably sufficient to establish collusion, as well as constituting a mandatory subject.

A simple analogy would be when you go to obtain a mortgage to buy a house. How much the bank permits you to borrow impacts how much you may be willing and able to spend for a house. So how much the league says a team can borrow impacts how much that team may be willing and able to spend on salaries. Whether there is a floor, or a cap, or guaranteed or non-guaranteed money, does not change the fact that restrictions on borrowing restrict salaries.

As to your other point, I don't see how the union could be deemed to have waived the right to argue it's a mandatory subject just because the league has raised the debt ceiling in the past. First, I would argue that it is against the policy of labor law to even recognize a waiver of mandatory subjects under any circumstance -- those subjects must be negotiated, period. Second, while reducing the ceiling adversely affects the players, raising the debt ceiling benefits the players and doesn't adversely affect them, so it doesn't make sense that the players would ever object to raising it. Third, raising the ceiling is the natural thing to do as league revenue and salaries/bonuses have increased over the years, so it's questionable why they would reduce it.

Posted By : Rick Karcher

I'm not sure what the correct response is, but the...

Message posted on : 2008-02-23 - 15:58:00

I'm not sure what the correct response is, but the situation is familiar: employees criticizing their employer in public. In general this is corrosive to the workplace atmosphere, but success in the entertainment industry depends significantly on public perception of the product, even more than on the quality, and the rules are different. The public likes to scrutinize business decisions, and is happy with any information about the organization, including about disagreements. In this case, allowing the players to criticize the organization is probably better PR than disciplining them.

Like in most other jobs, a team of entertainers is usually assembled man-by-man, so everyone has to be professional and work together. I'm sure the players are professional enough to do that even if they disagree with the hiring decision, just like they must be able to play even if they disagree with coaching decisions.

Posted By : Lior

Goldberg ruled for Steve Trout over the White Sox ...

Message posted on : 2008-02-23 - 16:51:00

Goldberg ruled for Steve Trout over the White Sox for the 1980 season.
Posted By : Anonymous

Thanks for adding another case to my Goldberg list...

Message posted on : 2008-02-23 - 17:06:00

Thanks for adding another case to my Goldberg list. I actually stopped at 1984 on my spreadsheet when I was composing my post. I will go back and check what pre-1984 information I have.
Posted By : Ed Edmonds

So much for the civil disobedience on this one.......

Message posted on : 2008-02-23 - 20:15:00

So much for the civil disobedience on this one....
Posted By : Anonymous

I coompletely agree that IU was avoiding the risk ...

Message posted on : 2008-02-23 - 21:56:00

I coompletely agree that IU was avoiding the risk of litigation with the settlement and that with the OSU decision out there, the risk of losing a case was very real. I also agree that the language in Sampson's contract was more favorable to IU than the very poor language in the O'Brien's contract.

What has not been said in this matter is the culpability of Rick Greenspan, the IU athletic director who hired Sampson knowing all about the NCAA violations he previously committed. What stance the NCAA will take with Greenspan still in charge is, to me, still an open question. I don't think the lack of institutional control is entirely off the table while he remains on campus. He too should be forced to resign.

Posted By : sportsbiz

Professor Karcher,
Fair enough. However, I fai...

Message posted on : 2008-02-23 - 23:03:00

Professor Karcher,
Fair enough. However, I failed to mention another point. Is it too early for the union to be making this claim? How can Upshaw claim this will affect the players without any objective proof? The salary cap is not determined by the amount of money owners are allowed to borrow. The cap is set by the previous season's revenue. Just wondering.

Posted By : B

Brad,

You are correct that the salary cap i...

Message posted on : 2008-02-24 - 08:17:00

Brad,

You are correct that the salary cap is not determined by the amount a team can borrow. But, again, the salary cap is a completely separate issue -- a reduction in the debt ceiling impacts player salaries, with or without a salary cap.

You raise an interesting question about timing. When you say "objective proof," I assume you mean that the players haven't been damaged yet and so it's premature to assert this claim? I don't think timing has any bearing on a claim that it constitutes a mandatory subject that the league must negotiate. [And by the way, I should make clear that, while I think it's a mandatory subject, I have not read that the union has asserted this claim yet. If the union is unsuccessful on its claim that it breaches the anti-collusion provision, I suppose the union could then bring an unfair labor charge.]

But regarding the breach claim, that's an interesting question. The league has already voted and approved it, and so I would argue that the union is essentially seeking a declaratory judgment that it constitutes a breach (or it could even be viewed as a request for injunctive relief to prohibit the league from implementing it and damaging the players).

Posted By : Rick Karcher

I pulled my files from work this afternoon, and I ...

Message posted on : 2008-02-24 - 18:03:00

I pulled my files from work this afternoon, and I have Richard Mittenthal as the arbitrator for the Steve Trout-White Sox case in 1982 won by Trout.

I do have only one pre-1984 listings for Stephen Goldberg -
Jack Morris - 1982-Tigers-Team won. My records are really incomplete for 1983. According to the biography for Stephen Goldberg at the Mediation Research & Education Project, Inc. at http://www.mrep.org/stephengoldberg.htm, he has been a salary arbitrator from 1982-1992 and 1998 to date.

Posted By : Ed Edmonds

i don't think IU should be liable for hiring KS un...

Message posted on : 2008-02-24 - 18:26:00

i don't think IU should be liable for hiring KS unless there is evidence that a person who broke the rules and got caught is more likely to break the rules again than any other person. I'd imagine most people who get caught are less likely to violate the rules again.
Posted By : Anonymous

Professor Karcher:

While I agree that lower...

Message posted on : 2008-02-25 - 00:03:00

Professor Karcher:

While I agree that lowering the debt ceiling will have an obvious negative impact on player salaries, I question whether a court could interpret this act as "wages", which would make it a mandatory subject. I'm under the impression that wages strictly includes "pay, fringe benefits, and bonuses". Is there precedent that allows such a liberal interpretation of the term "wages"?

As one who would want to advocate on the side of players, I would hope such precedent exists. However, I believe it difficult to argue that only allowing a team to borrow $120 million per year is a reason why any particular team couldn't pay the full $109 million in salaries.

I understand that large signing bonuses will cause a team to pay more than the cap allows in a particular year. It could be that some teams pay upwards of $150 million in a season. However, assuming that there has always been a debt ceiling, and assuming that the NFLPA didn't negotiate its structure in the most recent CBA, I believe a court would rule that the owners have a right to unilaterally adjust the ceiling according to a fluctuating economy.

Finally, would a similar unilateral reduction be a violation under the MLB CBA?

Posted By : Edward Johnson

Edward,

Once you acknowledge that lowering ...

Message posted on : 2008-02-25 - 10:45:00

Edward,

Once you acknowledge that lowering the debt cap "will have an obvious negative impact on player salaries," it becomes problematic for the league on many fronts -- collusion, mandatory subject, and (if not a mandatory subject) antitrust.

Gene Upshaw said in a press release that "the deadline for Club compliance with the reduced debt limits coincides with the beginning of the Uncapped Year of the current CBA, assuming that – as expected – the NFL owners terminate the current CBA two years early (i.e., terminate the CBA after the 2010 season, instead of after the 2012 season)." If true, it bolsters the union's collusion argument.

I guess if I were an arbitrator, a judge or member of the jury, I would be very skeptical of why the league is doing this -- what's the business reason? -- especially when (1) club values continue to appreciate, (2) revenues continue to increase and (3) interest rates are dropping. These are excellent conditions for borrowing. While there may be "economic turmoil" in society in general, there doesn't appear to be any turmoil in the football business that's for sure.

Posted By : Rick Karcher

While there may be a business conflict of interest...

Message posted on : 2008-02-25 - 15:52:00

While there may be a business conflict of interest (if that even), I don't think there is a legal conflict -- at least it's not apparent to me.
Posted By : Rick Karcher

I think the NFLs posistion would be different if t...

Message posted on : 2008-02-25 - 16:43:00

I think the NFLs posistion would be different if the verdict had been different. I think he shouldn't get to keep the bonus money. He took an action that caused him not to be able to play until the end of contract. That is different then getting cut, or hurt, or something that just happens.
Posted By : Anonymous

I think proving intent to injure in a check from b...

Message posted on : 2008-02-25 - 23:59:00

I think proving intent to injure in a check from behind in hockey is extremely hard. There are so many factors to take into consideration. I'm not sure how this specific play occurred, but many unfortunate checks from behind are a result of players turning their back on a player already committed to a body check. Also, checks from behind are more dangerous near the boards than in open ice (as it sounds like it happened here). Finally, pee-wee aged players are most susceptible to injury because they are the least experienced at giving and receiving body checks.

The only facts I know about this case are that the plaintiff was near the boards, he was bent over, and there was a stop sign sewn on the back of his jersey. I remember when Little Ceasar's Amateur Hockey Association (the largest in the country) implemented the stop signs. I also remember how useless everyone thought they were. Players never mentioned how they almost checked another from behind until they realized the stop sign and stopped their momentum instantly.

I think the facts which show intent best are time which plaintiff had his/her back toward the defendant (at the NHL level even a few seconds is long enough), number of strides/effort defendant took to make the hit, and any prior incident earlier in the game which may have motivated an intent to injure.

While I think intent is within the realm of possibility of proving, I do not think "totally outside the range of the ordinary activity involved in the sport" can be proven because hits from behind occur almost regularly and players are/should be taught how to play the puck in such a way as to avoid putting their bodies in a vulnerable position.

If there is one hit that is so obviously intentional that it might meet the standard it is this one by NY Rangers' goon Ryan Hollweg: http://youtube.com/watch?v=z_Biyn_-Vj4&feature=related

The hit occurs about two minutes into the clip.

Posted By : Anonymous

i dont know what to say? on the one hand the women...

Message posted on : 2008-02-26 - 05:57:00

i dont know what to say? on the one hand the women has suffered a horrific personal injury but on the other hand is it the pitchers fault or the clubs for not protecting her or should she have been aware of the danger? it is difficult to determine whose at fault!
Posted By : accident at work

Cooleystudent,

Justice Burke discusses what...

Message posted on : 2008-02-26 - 11:12:00

Cooleystudent,

Justice Burke discusses what might be within the realm of "totally outside the range.." as the body check taking place at a significant distance away from the puck, and/or based on retaliation for an earlier play, and/or after the whistle has blown.

Unfortunately, I am not at liberty to elaborate on the exact circumstances with regards to the above as this case is only in the pleading stage (interlocutory appeal). Justice Burke did point out that the facts as plead did not fall within the above mentioned situations, though.

Remember, the standard is objective within the game, not subjective to the participants.

Thanks for your insights.

Tim Epstein

Posted By : Tim Epstein

Let me just make the completely off-topic comment ...

Message posted on : 2008-02-26 - 20:45:00

Let me just make the completely off-topic comment that I fail to see the relevance of putting the degree-granting schools of all these fine people on the program for this event.
Posted By : Jason Wojciechowski

If the government licenses someone in a profession...

Message posted on : 2008-02-27 - 16:20:00

If the government licenses someone in a profession in order to permit them to be part of that profession, then can the government require drug testing as part of the licensing process?

Doesn't that work for airline pilots/air traffic controllers?

Maybe it even applies to interstate truckers?

Would there be much debate over whether or not MLB or the NFL or the NBA constituted "interstate commerce"?

Posted By : The Sports Curmudgeon

If mandatory drug testing is written into law, can...

Message posted on : 2008-02-27 - 17:06:00

If mandatory drug testing is written into law, can Congress further mandate who administers the tests? I recently argued that MLB should turn to the World Anti-Doping Agency to ensure independent results, but what would Congress likely suggest?
Posted By : Jason

From a practical standpoint it is absurd. As the M...

Message posted on : 2008-02-27 - 18:19:00

From a practical standpoint it is absurd. As the Mitchell Report notes, drug policies must be flexible to be able to adopt to best practices as they evolve and to keep up with the cheaters in this cat-and-mouse game. It would be very tough for Congress to adopt such a policy. They could delegate to an administrative agency – such as USADA. But any police it implements would establish minimum standards that MLB could use as a shield for when things go wrong.
If Congress wants to get involved, force the Controlled Substance Act. Drug testing is a second best alternative. WADA/USADA testing wasn't picking up the international athletes who were caught in the BALCO investigation. Giambi and Bonds weren't the only athletes involved in that. To WADA's credit, it did properly have positive test results on Jones before she was acquitted because of the short half life of the substance and the delay in the B sample.
This competition between WADA and American professional sports leagues is also very beneficial. Both are fighting for credibility as to who is better. This competition in a cat-and-mouse problem is very important.
As to another Constitutional argument, by taking drug testing out of collective bargaining would violate equal protection – as such rights clearly exist for other unionized employees who do not belong to the class of “professional athletes.� Possible because of the privacy rights involved such equal protection analysis would be more than mere rational basis review.
In my opinion, any congressional legislation will just stifle MLB from improving its policy.

Posted By : Anonymous

Let me make sure I understand this right:

(...

Message posted on : 2008-02-28 - 01:13:00

Let me make sure I understand this right:

(1) There are "fans" in Europe that when a certain well-known soccer team Ajax, unofficially nicknamed the Superjews, travels to their city have been known to chant "Hamas, Hamas, the Jews to the gas."

(2) There are fans in Philadelphia that when after the New York Post alleged that a former New York Mets catcher was gay shouted all kinds of graphic sexual insults at him.

(3) There is a football team playing in Washington, D.C. with a nickname defined as "bloody skins of Native people bought and sold by bounty and scalp hunters."

(4) There are cities in the South that in 1947 when the Brooklyn Dodgers came to town shouted the ugliest word in the English language as a epithet at the African-American Jackie Robinson.

BUT

According to SI.com's Grant Wahl, sports has reached a new low because a few Duke fans held up a sign that says "a brain is a Terrapin thing to waste."

Indeed there is certain speech at sports games that needs regulation. But in light of 1, 2, 3 and 4, Mr. Wahl's choice of example is indeed a 'Terrapin' way to make that point.

Posted By : Marc Edelman

How about when the students have an actual effect ...

Message posted on : 2008-02-28 - 09:18:00

How about when the students have an actual effect on the outcome of the game?

This past Monday, UAPB (home) was trailing Texas Southern by three points on their final possession. UAPB hit a half court 3 point shot at the buzzer to send the game into OT. Several fans rushed the court and the home team was assessed a technical foul. TS made both free throws, began overtime leading by two, and ultimately won the game by one point. Granted, anything can happen in the five minute overtime period, but those selfish students cost their team valuable points. Not to mention, had the shot dropped with a tenth of a second left on the clock, the technical would have been DURING regulation, and the made free throws by TS would have ended the game then and there.

I agree that many of Wahl's examples are fun, creative, and acceptable forms of student involvement...but there is certainly a line to be drawn when the safety of players, officials, other fans, and even the outcome of the game come into question.

The difference is clearly some sense of class and dignity in showing your support. While people may analogize sports with going to war, that does not justify the outlandish and hateful behavior of some fans.

The irony is that these fans end up hurting the team they came to support.

Posted By : Anonymous

I hope those players get ownership of DU.
How ...

Message posted on : 2008-02-28 - 09:29:00

I hope those players get ownership of DU.
How is it that racists can only be one color?
I think free speech should have some protections, but also responsiblities.
Those "shocked" individuals didn't even allow the evidence to be collected and asessment,before demanding sentence.

Posted By : Anonymous

There is a photo of a female UAB fan with a shoe p...

Message posted on : 2008-02-28 - 12:47:00

There is a photo of a female UAB fan with a shoe polish black eye wearing a shirt that says "I dated Dozier"

What I thought was interesting this year was the reaction to Rutgers students shouting "You got F---ed Up" to an injured Navy player. The outrage seemed to be much more over the fact that he played for Navy and will have an obligation to the Navy when he graduates and not at all about propriety and lack of respect for others in the stadium.

Just because manners and decency for the most part cannot be legally enforced doesn't mean they are worthless social norms that should be encouraged.

Posted By : Anonymous

Oh, person of the lengthy alpha-numeric pseudonym:...

Message posted on : 2008-02-28 - 15:01:00

Oh, person of the lengthy alpha-numeric pseudonym:

Agreed--norms of civility should and must be encouraged. But when we start talking about the need for schools to do something, we move beyond attempts to encourage. And I saw that photo from the Memphis-UAB game--I would file that as something having some socio-political content.

Posted By : Howard Wasserman

Maryland Terrapin fans [and fans at other schools]...

Message posted on : 2008-02-28 - 15:54:00

Maryland Terrapin fans [and fans at other schools] were known to chant "rapist" during games against Duke in which Shelden Williams was playing. There was a rumor that he had sexually assaulted a woman while he was in high school. I have no idea as to how much, if any, truth there is to that.
Posted By : Anonymous

Remember Monica's attorney whose inglorious appear...

Message posted on : 2008-02-28 - 20:31:00

Remember Monica's attorney whose inglorious appearance on every Sunday talk show gave us the "Full Ginsberg"? Now we have a new phrase: "digging a Rusty" which refers to an attorney whose every public play backfires and buries his client deeper in the muck
Posted By : Alan Milstein

I have to give credit to the Tennessee Volunteers ...

Message posted on : 2008-02-29 - 08:41:00

I have to give credit to the Tennessee Volunteers for their taunting of former Florida Gator basketball player Matt Walsh. While in school Walsh dated Playboy Playmate Lauren Anderson. While in Knoxville, students behind the basket held up copies of her centerfold each time he went to the free throw line.
Posted By : Anonymous

Interesting article, but I'm not sure I get it. I...

Message posted on : 2008-02-29 - 09:04:00

Interesting article, but I'm not sure I get it. Is the claim now that the golf receipt was forged? Wasn't the testimony by Clemens that he dropped his wife off and left? It's possible that Clemens talked with Canseco and then left. Or, it's possible that McNamee is telling the truth about all but the meeting.

I'm not sure how the strategy fits in - did the legal team initially claim that the party never happened, or that no one from the Clemens clan went?

Posted By : Michael Risch

As I understand it, the claim now is that he was a...

Message posted on : 2008-02-29 - 13:38:00

As I understand it, the claim now is that he was at the party for some period of time, either before or after (likely after) his golf round. The golf receipt shows he was doing something else for part of the time; but it does not cover the whole period. Clemens's initial position was he was not there at all, but everything else (including the mysterious alleged photo) points away from that.
Posted By : Howard Wasserman

I think the C.B.C. case was decided correctly and ...

Message posted on : 2008-02-29 - 20:55:00

I think the C.B.C. case was decided correctly and respectfully (and strongly) disagree with your position.

In a forthcoming law review article titled A Triple Play for the Public Domain: From Delaware Lottery to Motorola to C.B.C., which arises out of my participation in a symposium on publicity rights recently hosted by the Chapman Law Review, I argue:
"A trilogy of cases decided by federal courts over the past 30 years correctly holds that game scores, real-time game accounts, and player statistics are in the public domain. There is a consistent thread in these federal cases, based on sound legal, public policy and economic analysis, which justifies judicial rejection of state law claims by sports leagues and players asserting exclusive rights to this purely factual information. The creation of a collateral product incorporating merely public domain information about a sports event or athletes' performances, including fantasy league games, is not (and should not be) infringing absent copyright or patent infringement in violation of federal law, or a likelihood of consumer confusion regarding its origin, endorsement, or sponsorship in violation of the Lanham Act, which provides a federal statutory right to prevent trademark infringement and unfair competition. These courts implicitly recognize the need for a uniform national standard to determine the nature and scope of one's rights to use this nationally distributed and available public information for commercial purposes without authorization."

"Like an unauthorized biography of a famous professional athlete, questions about his sports records in a Trivia Pursuit or Jeopardy game, or a board game incorporating his playing statistics, a fantasy sports league is based on facts in the public domain and uses his name only for descriptive purposes." In my view, "the commercial benefit that CBC derives from its fantasy baseball league is irrelevant when public domain facts (i.e., baseball statistics), which may be freely used by the public, is the essence of its game." I believe that "[e]xtending the right of publicity to require CBC to pay a licensing fee would give players a legally and economically unjustified exclusive property right that will preclude the commercial use of public domain information, reduce the availability of collateral products, and/ or increase their costs to consumers."

Matt Mitten

Posted By : Anonymous

Matt,

Thanks for the comment and I look for...

Message posted on : 2008-03-01 - 08:19:00

Matt,

Thanks for the comment and I look forward to reading your article.

Your argument works on the assumption that this case should be viewed as a copyright or trademark case, which I (respectfully) think is a flawed analysis. I don't think it should be viewed as such for many sound legal, policy and economic reasons. I'm not aware of any case expressly holding that a right of publicity claim should be analyzed using copyright law or trademark principles. Even the Eighth Circuit didn't analyze it that way. Its application of the "public domain" concept, which is derived from copyright law, is even more curious in light of the fact that the court held that (1) the players effectively established a right of publicity claim, and (2) the players' right of publicity claim is not preempted by copyright law.

Indeed, an application of copyright law in this case is even inconsistent with the holding in Motorola (which you rely heavily on), which determined that the state law misappropriation claim was not preempted and the court then applied state misappropriation law (not copyright law) to the facts of the case. In applying misappropriation law, the Motorola court held that there was no misappropriation essentially on the grounds that there was no "free riding" -- Not on any grounds whatsoeverthat statistics are in the public domain because, if public domain was the justification, there couldn't possibly be a misappropriation and the court wouldn't have even addressed whether there was an appropriation! That's my fundamental problem with applying a public domain rationale because it essentially just provides a conclusion without even applying the elements of the state law claim.

The rationale for carving out public domain facts from copyright protection is sound because copyright is designed to protect what the producer created, i.e. "the original work of authorship," which allows the producer to reap the economic benefits from the expression he created but not the facts within his expression because he didn't create them. So I struggle with not only WHY copyright law concepts should apply in any right of publicity case including this case, but also HOW to even apply copyright principles to right of publicity claims. I suppose copyright would apply if fantasy leagues were claiming copyright protection in their games, and the issue being whether the production of the games (together with the players' names and performance statistics) constitutes an original work of authorship.

Applying copyright principles to this case conveniently shifts the focus towards the efforts and expenditures of the fantasy leagues in creating the game and away from the efforts of the players who created the precise element that allows fantasy leagues to profit in a $1.5 billion industry. In doing so, you are not recognizing the principles and policies behind right of publicity law, meaning that somebody should not obtain a commercial advantage and thus be unjustly enriched from the creation of an individual's celebrity status, which is why Haelan Labs. found a right of publicity in trading card use (not to mention a whole line of cases upholding right of publicity claims in both endorsement and non-endorsement contexts, none of which applied copyright law principles).

I also think a public domain concept in evaluating First Amendment considerations in the context of right of publicity claims is flawed as well. The focus must be on the defendant's USE of the identity. What's the justification for First Amendment protection in the production of a game? I just don't see it. I agree with you that the unauthorized biography you mention satisfies the test.

Finally, I don't understand your last statement that recognizing an exclusive property right would reduce availability and increase costs to the consumer. First, how do we know that? The notion exists that these games are free to the consumer, but the consumer actually pays in the form of advertising costs. If a right of publicity is recognized, the more likely scenario is that it may result in a slight reduction in profits generated by fantasy leagues. Second, even if you are correct, why is that a bad thing? That's how our economy and markets work. All producers of products and services incur production costs (which includes the purchase of raw materials) and they factor those into their business model -- why should fantasy leagues be treated differently? To the extent there are any concerns, prospectively, regarding monopolization or reduction in quality or output, those would be appropriately addressed by antitrust.

Posted By : Rick Karcher

Rick,

Thanks for your response, which I exp...

Message posted on : 2008-03-01 - 23:18:00

Rick,

Thanks for your response, which I expected my post would generate, but allow me to better explain my argumen because you are mischaracterizing my position and reasoning.

As you know, copyright and trademark law, like the right of publicity, create property rights and draw lines between exclusive individual property rights and the public domain. My main point, which I didn't articulate very well by simply selectively quoting from part of my forthcoming article, is that there is no misappropriation of any player's identity in this case. Rather, the "product" that is the essence of a fantasy game is a package of statistics based on players' performances, not the players' identities. This purely factual information, which is not protected by copyright law (or patent law), is in the public domain and may be freely used and incorporated into new products by all unless such usage creates a likelihood of confusion regarding approval, endorsement, or sponsorship of the fantasy game.

It's true that game participants select players by name, but this is merely a descriptive or incidental usage to identify the particular set of player statistics they are choosing rather than misappropriation of any player's identity. This distinguishes C.B.C. from Haelen; I agree with your view that a player's identity (not his playing statistics) is the product represented by a baseball trading card. It's difficult to distinguish board games from on-line fantasy games. Both are based on factual information that, in my view, should not be exclusively owned by professional athletes or celebrities whose accomplishments are its underlying basis. Thus, I don't think that Uhlaender, Arnold Palmer, and Howard Hughes cases were correctly decided.

Motorola and Delaware Lottery, 435 F.Supp.1372(an important case you may be unfamiliar with and failed to address in your response)support my argument that C.B.C. was correctly decided. I actually think the district court's opinion is better reasoned, although the Eighth Circuit reached the correct result and the underlying basis for its decision (e.g., public domain factual information is not subject to exclusive ownership) is consistent with those cases.

Contrary to your assertion, Motorola expressly held that "the NBA's misappropriation claim based on New York law is preempted." More importantly, the court held that defendants had the right "to collect purely factual information generated in NBA games" and to incorporate it into a collateral product such as a handheld pager. Motorola (and Delaware Lottery) essentially hold that a party whose efforts create sports-related factual information does not own it simply because it has commercial value. Rather, it is in the public domain and may be used by others for commercial purposes.

Why doesn't this sound rationale also apply to fantasy baseball leagues? If the players don't have an exclusive property right in their statistics, how can they have a valid right of publicity claim? Surely the law shouldn't prevent producers of goods and services from using the names of individuals to truthfully describe or identify their respective goods and services if doing so doesn't create any likelihood of consumer confusion. If sports leagues have no right to prevent legalized gambling based on the scores of their games (I'm not arguing that sports betting should be legal), how can the players prevent fantasy league operators from using their playing statistics in games? Furthermore, how can you have a principled analysis of state publicity rights laws without first defining the nature and scope of the property right and considering what's in the public domain and protected by the First Amendment?

Matt

Posted By : Anonymous

Matt,

I appreciate you clarifying your posi...

Message posted on : 2008-03-02 - 08:54:00

Matt,

I appreciate you clarifying your position and you make some good arguments. But let me start by saying that I don't believe that I mischaracterized your position and reasoning. Your recent response, again, indicates that your position primarily relies upon principles of copyright, trademark and unfair competition laws. And I don't believe that is a proper analysis in evaluating right of publicity claims for the reasons I stated in my first response.

While I wasn't exactly clear in my response about the preemption issue in Motorola, I don't believe I was incorrect. As you know, the court held that "a narrow 'hot news' misappropriation claim survives preemption for actions concerning material within the realm of copyright." The court then addressed whether the defendants "engaged in unlawful misappropriation under the 'hot news' test". The court then concluded that the defendants did not unlawfully misappropriate on grounds that the elements of misappropriation that survived preemption were not established (primarily "free riding" by a defendant). The court did not base its holding on grounds of "public domain" which seems to be what you are suggesting.

But the Motorola preemption issue is neither here nor there because the lower courts in the fantasy league case have correctly decided that right of publicity claims survive preemption (which I assume you agree as well). Therefore, in my opinion, it seems oxymoronic to then be applying copyright law principles to a right of publicity claim.

In evaluating right of publicity claims, focusing on concepts of "likelihood of consumer confusion" as well as unfair competition is also misguided because the celebrity is not in competition with the user of his/her identity. Right of publicity law focuses on identity and commercial advantage. Commercial advantage and exploitation is fairly compelling here. The identity element has never been interpreted by courts to require an endorsement (as you acknowledge that Haelan Labs was correctly decided).

I'm not aware of any cases rejecting a right of publicity on grounds that the name was being used for descriptive purposes only (as you suggest) -- That's a trademark concept which seems to have relevance only in the context of consumer confusion, and source identification and origin (which are simply not applicable in a right of publicity claim). So I struggle with how that carries over to right of publicity claims. Indeed, courts oftentimes go out of their way to hold that the identity element is established even in situations when the actual name or likeness is not being used. I agree with the Eighth Circuit that the identity element is met here, and I would make that conclusion even if the actual names were not being used so long as it was obvious which players were being identified. I think the Eighth Circuit pretty much determined that this game would not generate $1.5 billion using the lawyers league softball players.

In my opinion, you and I disagree on how to handle what I refer to as the "quasi-commercial" uses. Applying principles from areas of law other than right of publicity and First Amendment leads to inconsistent results and lack of uniformity. If consistently applied, copyright/unfair competition principles would necessarily lead to the conclusion that ALL quasi-commercial uses (which includes trading cards and fantasy leagues) are not protected by right of publicity law, leaving only protection for endorsement use. However, it seems that you want to carve out an exception for trading card use on the grounds that the identity element is met there -- when the only relevant distinction between fantasy leagues and trading cards is a picture, and it's extremely unclear to me why that's a relevant distinction from a legal, economic or policy standpoint. However, it's interesting because people generally think there is (and should be) a recognizable distinction, but I have yet to hear a clearly articulated legal argument as to why.

So I guess I'm not in favor of applying copyright/unfair competition laws to right of publicity claims in some contexts (fantasy leagues) but not others (trading cards). And I'm not suggesting that's what you are advocating -- that's purely my interpretation of what's going on.

Posted By : Rick Karcher

Rick,

I agree that the fantasy league case ...

Message posted on : 2008-03-02 - 13:11:00

Rick,

I agree that the fantasy league case involves an unauthorized "commercial" use, as does every right of publicity claim brought by professional athletes or other celebrities.
Although we reach different conclusions, we agree that a key issue is whether there is any misappropriation of a player's identity as required by state law.

I argue that there is not because: 1) CBC has not used any player's name to advertise or promote its fantasy game (which would violate the right of publicity even absent a likelihood of consumer confusion); and 2)it is not selling a product whose essence is the player's identity (e.g. a trading card, name and/or number on a shirt, or a bobble head). I think this is a reasonable limit on the scope of publicity rights, which is well supported by analogy to the Delaware Lottery and Motorola cases. Yes, I'm taking a macro view of the appropriate scope of intellectual property protection for sports-related factual information and focusing on the consistency of Delaware Lottery, Motorola, and C.B.C., an approach with which you disagree for reasons I don't find persuasive. Contrary to your assertion, this approach does lead to consistent results and uniformity.

The essence of a fantasy game is player statistics, which are in the public domain and not the exclusive property of the players, league, or clubs under any legally recognized theory of intellectual property including the right of publicity. If the law were otherwise, a newspaper or baseball digest could not publish box scores or season statistics with the players' names as identifiers (or use this information in a Trivia Pursuit or Jeopardy game) unless their authorization was obtained. (And the former MLB players would have won the Gionfriddo case.) Whether it is explicitly characterized as "fair use" or not, this is in fact a form of permissible descriptive use that is a well-recognized defense in right of publicity cases based on either plaintiff's failure to prove misappropriation of "identity," or defendant's First Amendment right to use information in the "public domain." See the Abdul-Jabbar case in which I think the Ninth Circuit properly defined the outer limits in which the unauthorized use of a player's name in connection with his playing statistics and accomplishments violates the right of publicity.

You apparently concede that my premise (i.e., player statistics are in the public domain) is correct but argue it is irrelevant in a right of publicity analysis. In addition, you seem to conflate the commercial and identity elements, which are in fact separate requirements, by arguing that the players' publicity rights must be violated because fantasy leagues games generate $1.5 billion. Although I can understood why a former professional baseball player believes that MLB players should get a cut of the operators' profits, I think your view extends the right of publicity too broadly.

I'm enjoying our debate and will give you the final word for now. Looking forward to seeing you at the SLA conference in May, where this debate likely will resume, especially if the Supreme Court accepts MLBAM's cert petition.

Matt

Posted By : Anonymous

This is very true. Good post!

Message posted on : 2008-03-02 - 16:50:00

This is very true. Good post!
Posted By : Anonymous

I knew it! I'm still waiting to hear any reason w...

Message posted on : 2008-03-02 - 20:16:00

I knew it! I'm still waiting to hear any reason whatsoever, compelling or not, (from anybody) why trading cards should be treated any differently than fantasy leagues -- other than players make enough money already. If fantasy leagues started including mug shots, or better yet bobble head mug shots, I guess that would change the entire analysis. What is so compelling about an image that dictates a different outcome? I look forward to your answer in 3 months.

But seriously, thanks for taking the time to comment and debate. And one thing we both agree is that hopefully the Supreme Court will grant cert. How ironic it would be if the Supreme Court decides not to review it, while Sen. Specter continues to chase down videotapes of the Patriots stealing the Jets' signals.

Posted By : Rick Karcher

It was great to see everyone at the 21st Annual Sp...

Message posted on : 2008-03-03 - 09:59:00

It was great to see everyone at the 21st Annual Sport and recreation Conference in Myrtle Beach, SC. The presentations were outstanding! Looking forward to seeing you in San Antonio in 2009!
Posted By : Anonymous

Rick,

You're missing the point of my argume...

Message posted on : 2008-03-03 - 12:41:00

Rick,

You're missing the point of my argument because the answer to your question is very simple--there's a clear distinction between mere factual information generated by players' accomplishments that's incorporated into newspapers, books, questions in games, board games, and fantasy leagues in comparison to products that embody the player's identity itself such as his name and number on a shirt (an example that does not include the player's image), trading cards, and perhaps bobble heads. Hopefully you'll have some answers to the questions I've raised in our dialogue by the time of the SLA conference.

Take care,

Matt

Posted By : Anonymous

Matt,

You're just reiterating the factual d...

Message posted on : 2008-03-03 - 14:06:00

Matt,

You're just reiterating the factual distinction between a trading card and a fantasy league game, which I obviously get. But I don't understand the legal significance of the distinction such that a trading card "should" lead to an entirely different outcome from fantasy leagues. I'm asking for the "why"; the justification. Is there more unjust enrichment with a trading card? Is there greater commercial exploitation with a trading card? And if fantasy leagues included mugshots, are you saying that would violate the right of publicity or not?

Secondly, I think your primary focus on the information being used (i.e. the names, images and stats), as opposed to how that information is being used, doesn't sufficiently address First Amendment considerations and also creates confusion in applying right of publicity law and First Amendment protection. The reason newspapers and books don't violate the right of publicity is because of "how" the information (names, images and stats) is being used, not because they contain facts in the public domain. The primary purpose of the book/newspaper is to inform, which is a legitimate First Amendment privilege. But if I take that same exact information from the newspaper or book and put it on a shirt and sell it, how that same information is being used has been transformed. Now, one could argue that the shirt still informs, but its primary purpose is obviously commercial. That's how I see fantasy leagues.

I think fantasy league use is even a more clear violation of the right of publicity than bobble heads, because there might be an argument that the creation of the player's bobble head image entails an expressive component protected by the First Amendment (i.e. Cardtoons and the Tiger Woods case).

Posted By : Rick Karcher

I just can't help myself...

Prof. Mitten, <...

Message posted on : 2008-03-03 - 17:23:00

I just can't help myself...

Prof. Mitten,

I've spent an inordinate amount of time over the last several months trying to see things your way, and I'm convinced that it just doesn't work. With respect, here is why I think you are wrong:

1) I think Prof. Karcher is correct when he says that the fact that the players' stats are in the public domain is IRRELEVANT to Right to Publicity analysis. Liability doesn't turn on where the information came from, but how the information is used.

I understand your reasoning in using the Delaware Lottery and Motorola as support for your proposition, but I find it unconvincing. I see those cases as establishing that sporting event results themselves are not intellectual property that can be owned by one entity, but I don't think they establish that they can be used in any way in disregard of another's right.

To borrow from a colleague, it is clear that one can legally own and posses a screwdriver. But simply because one can own and posses it, there are restrictions on how it can be used. You can use it to fix your car, but you CAN'T use it to break into your neighbor's car. Delaware Lottery and Motorola make it clear that anyone can posses the “screwdriver� that is professional sports results, but I do not think it follows that those cases establish that they can be used in any way that violates an independent right of another.

Consider the following under your rule of law: Jack Nicholson always wears sun glasses to the Academy Awards. Let's say Ray-Bans. Entertainment mags and tv shows will publish pictures or video of him with the glasses and may even comment on the fact that he is wearing Ray-Bans. For all intensive purposes, the fact that he wore the glasses and perhaps even pictures of him in them are “in the public domain.� At least the fact that he wore them is. Under your rationale, Ray-Ban could go out the next day and put up billboards all over the country and publish ads that say “Jack Nicholson wears Ray-Bans. You should too.� I think (I hope) we'd agree that this would be a violation of his publicity rights. This would be purely factual info, and in the public domain. But even though this fact lies within the public domain, Ray-Ban does not have the right to disseminate it a way that infringes upon Nicholson's rights, even though no one “owns� the fact that he wore the glasses.

So now you say, “yeah, but that's an advertisement, this is different.� – Maybe, but the law in Missouri does not restrict liability to ONLY advertising cases. See the Rest. of Unfair Competition § 47 (which Missouri has adopted and thus governs the CBC case. See Doe v. TCI Cablevision 110 S.W.3d 363) In fact, it specifically says that implied endorsement is NOT a requirement under the Right to Publicity. As the 8th Circ said, fantasy sports don't fall squarely within services or merchandise, but either way it is somewhere between the two and under the umbrella of 47. The legal analysis under the ID element does not change based on why type of use is at issue under the Purposes of Trade element. So I think my hypo would stand, and would produce irrational results if your Rule of Law regarding public domain was adopted.

Now, if you want to argue about the Right to Publicity SHOULD be, that's a different argument. But under what the law IS (at least in Missouri), implied endorsement is not a required element.


2) You say: “Rather, the "product" that is the essence of a fantasy game is a package of statistics based on players' performances, not the players' identities.� - - - “it is not selling a product whose essence is the player's identity.�

I can't tell you how much discussion I've had over this idea, and how vehemently I refuse to accept it.

If fantasy sports is somehow NOT reliant on the identities (and fame) of the players, why not find some other array statistics? Why pursue a trial and two appeals to retain something merely incidental to the product? I bet there are high school teams all over the country who would love to have their stats be the basis of a fantasy league, and probably wouldn't ask for a licensing fee. A package of stats would not be hard to obtain. Pro stats may be easy to find, and already pre-packaged, but surely the added cost, if any, of putting together the stats of a high school league is less expensive than the legal fees CBC is paying right now.

The fact is, nobody would play fantasy sports not based on pro athletes. That's why they play them.

Step back and simply consider the rationale behind the Right to Publicity: To protect against the exploitation of the good will one has invested in achieving a status of marketable fame. The fame of the pro athletes MAKES fantasy products marketable, at a minimum it makes it more profitable than if they used high school players. Pro athletes have literally invested their entire lives in achieving this status and that status adds value to Fantasy Sports. Why shouldn't the players get a piece of that value?

You say: “Rather, the "product" that is the essence of a fantasy game is a package of statistics based on players' performances, not the players' identities.� To me, that is like saying that the product at issue when one buys a Ralph Lauren shirt is just a collection threads weaved together. Technically speaking, it is. But when a consumer buys a polo shirt he is also buying the status of wearing the brand. He buys the reputation of durability and quality attached to the brand. He also buys the guarantee of company to make good on defects...the list goes on.

Technically speaking, f-sports leagues only use stats, just as a Polo shirt is technically a mere collection of threads. But to simplify “the essence� of f-sports as merely just a compilation of statistics ignores the connection that fantasy players seek to the games they watch by playing the game. To me, the athlete's identities cannot be excluded from the equation when one tries to boil f-sports down to its essence. It is just too much a part of why f-players play the game and why they spend $1.5 billion a year on it. The player's identities are intrinsically and inseparably tied to statistics and fantasy games themselves.

Now you might say, as you seem to above, “Yeah, but the players add value to the NY Times by reporting on them rather than the local pee-wee league. The players add value to ESPN...etc.� Do the players get to now control every publication of every box score or every highlight?

No. But literally speaking, the NYT and ESPN actually DO satisfy the elements of the Right to Publicity.
- They use the players ID's
- Without their consent
- For the purposes of trade

Nobody files a claim against them because the First Amendment quite squarely protects this use, not because the elements of the tort haven't been satisfied.

Now, if the debate is whether the 1st A should protect fantasy sports, I think the grounds are much more fertile for an argument, but that is a defense to be argued once the elements are satisfied. To me, there is big difference between selling a box score or a highlight and selling a game, but there is some credibility to the idea that is simply a new way disseminating news and entertainment etc... and is worthy of the same protection as traditional news/entertainment mediums.

If I'm missing the point of your argument, please tell me what I'm missing.

- Matt Greer

Posted By : Anonymous

Rick,

I knew neither of us could wait three...

Message posted on : 2008-03-03 - 17:45:00

Rick,

I knew neither of us could wait three months to continue this debate.

The degree of what you term "commercial exploitation" is wholly irrelevant to the issue of the protectable scope of publicity rights, although this seems to be your primary argument that fantasy leagues violate MLB players' publicity rights without their authorization (i.e., fantasy leagues generate $1.5 billion in revenues, therefore the players are entitled to their cut). But "unjust enrichment" alone doesn't violate the right of publicity.

Does this mean Barry Bonds should get a part of the revenues generated by the peanut vendor across the street from the ballpark because fans who purchased peanuts came to the game to watch him break Hank Aaron's HR record? No, because despite any perceived free riding on Bonds' efforts or unjust enrichment, there is no misappropriation of his identity.

I'm not advocating that a player's image must necessarily be used without authorization to violate his publicity rights. (If a fantasy game operator did use a photo of the player, it would be easier to establish that the operator was using a player's identity to promote its game.) However, other than situations in which his name is being used to advertise a product or in a manner that creates consumer confusion, there are relatively few instances in which mere usage of a player's name(and a fantasy league isn't one of them) constitutes an actionable misappropriation of his identity (name on a T-shirt or jersey is one example).

We seem to agree that how a player's name is being used has legal significance. I say that mere descriptive use of a player's name, especially when used merely to identify public domain facts, does not constitute misappropriation regardless of the medium in which such usage occurs. However, you want to draw a distinction between such usage by the news media and other commercial enterprises on the ground that the former's usage is informative and the later's is commercial. This position, however, is untenable. For example, in your article you concede that sports questions in Trivia Pursuit (a game, not a book or newspaper) do not violate the right of publicity of the players who are the subject of such questions. You then fall back on your degree of "commercial advantage" argument, which numerous courts (if not all) have rejected as the legal standard for distinguishing between infringement and non-infringement of publicity rights.

Moreover, even the unauthorized usage of one's image or likeness in a product sold by a commercial enterprise other than the media does not necessarily violate the right of publicity, so unauthorized usage by the media v non-media distinction isn't necessary controlling. See Kirby v Sega (Space Channel 5 video game doesn't violate professional singer's publicity rights). BTW-I do agree that a bobble head may be an artistic or expressive work that does not violate the subject's publicity rights.

In summary, I think how the player's name is being used (i.e., the context), not by whom or how much revenue such usage generates, is the best standard for delineating between exclusive rights that may be created by state publicity rights laws and information in the public domain that may be used by anyone even for commercial gain. At least we agree that there does need to be a uniform national standard.

Your turn at bat . . .

Matt

Posted By : Anonymous

Matt Greer,

Thank you for joining the disc...

Message posted on : 2008-03-03 - 18:24:00

Matt Greer,

Thank you for joining the discussion.

In the spirited debate between Rick Karcher and me, the central points I'm making may be difficult to discern. In my forthcoming law review article I make the rather straightforward argument that merely descriptive use of a player's name to identify public domain information is both not misappropriation of one's publicity rights and is protected by the First Amendment. Even if some states, with Missouri being a prime example, broadly construe the right of publicity, national law should be uniform and not limit the public's right to incorporate purely factual information (e.g., baseball statistics)into collateral products and truthfully and accurately describe the source of such information.

I've read your post carefully, but none of your examples illustrate why my view is wrong and inconsistent with analogous precedent. Rather, you merely agree with Rick that the players should be paid simply because their well known exploits are the basis of a game. See my post immediately prior to this one that explains why this view inappropriately extends the right of publicity.

Matt

Posted By : Anonymous

Matt, Matt, and Rick...

I've really enjoyed...

Message posted on : 2008-03-03 - 19:17:00

Matt, Matt, and Rick...

I've really enjoyed reading this thread, it's been nice to get some ROP reading again. And sidelined with a nagging cold I've finally gotten up to date on my Sports law blog.

As I have said on other threads on the forum, I am in Prof' Karchers corner on this one, CBC was not correctly decided, and I truly believe infusing copyright and trademark principles into the ROP transforms it into something that it is not.

The argument that the appropriation (for commercial gain) of a players identity is ok because it is "merely descriptive", and used to identify public domain information is a stretch.

the athlete as a celebrity, has a value in his/her identity (The CBC court acknowledged this but then dismissed the fact as courts often do, because atheltes make enough money anyways... personally, I have a fealing that the judges in CBC were tired of paying $150 for decent seats at the ballgame, but that neither here nor there...)

the scores/statistics of sporting events are fair game for newspapers (media in general) because it is newsworthy, thus it makes its way into the "public domain".

Fantasy leagues want to cash in on the sports stats market by creating a game using the statistics that have already been reported my the media as newsworthy, thus protected by the First Amendment.

So as a Fantasy League operator, how do I maximise my output? I put out the best product! I have the best graphics, best use of software functions, etc...

here's the problem, in order for the fantasy game to work, the stats must be connected to teams and players, but the players image is protected.

AHA! here's how to solve it... we use the players identity (not picture), but only to identify the stats...its a mere coincidense that I capitalize off of others blood, sweat, and tears...

Why should the fantasy leagues get away with this? the scores/stats is the part thats protected by the first amendment, but the IDENTITIES of the players is what create the the superior fantasy product.

STL Cardinals, 1b, no. 5....that is merely descriptive...but who would use that fantasy league when you can use the other one where you can trade for Albert Pujols? The fantasy leagues want the most attractive product without paying for it, plain and simple...

Posted By : Jimmy H

I have thoroughly enjoyed this thread so far, but ...

Message posted on : 2008-03-03 - 20:45:00

I have thoroughly enjoyed this thread so far, but I feel compelled to throw in my two cents. I must agree that CBC was decided incorrectly, although 8th circuit got the tort right the second time around. Prof. Mitten, you make a very interesting argument from a macro level, but I don't agree that the right of publicity can be analyzed in the same manner as Lanham Act or Copyright law. From a comparative standpoint, it is interesting to see how the statistics have been analyzed under these similar, yet distinct, causes of action. With that being said, these are distinct causes of action, with different elements, and as such, I don't think they can all be treated the same.
As a student, I am surely no expert in any of these areas of law, and I have not engaged in the vast amount of research that some of the others posting have; but I think the players have a legitimate cause of action.
In regards to the right of publicity, it seems that the state is simply providing a type of property right in the players' identities, just as the state provides rights and guidelines for its citizens' to own real property. Moreover, there is no doubt in my mind that the three elements are satisfied because there is obviously a use of the players' identities, without consent, for purposes of trade. I don't see any way around the tort itself.
Mr. Greer is right, First Amendment aside, even newspapers satisfy what is required under the elements of the right of publicity, but a newspaper is clearly protected under the First Amendment. The First Amendment seems to be the most logical place to attack the MLBPA's case. The First Amendment does provide protection for expressive works, including entertainment. To me, the entertainment exemption would be the most logical place to attack the Right of Publicity cause of action in the fantasy sports context. However, I still think that the First Amendment does not provide a basis for eliminating or superseding the player's cause of action.
It goes without saying that the First Amendment is a powerful doctrine, however it is not limitless. One of its limits seems to be when another's property rights are infringed. For example, a person may burn his flag and be protected under freedom of expression all day long. But a person cannot go next door, and burn the flag of his neighbor and claim to be protected under freedom of expression because it now infringes upon another's property rights. Similarly, a person may use many different mediums for expressing his idea (write an editorial, stand on a soap box, etc). But that same person cannot forward the same message by spray painting it on the side of a downtown building because it infringes on another's property rights. Therefore, I also believe the focus must be on HOW the information is used and not what the information is or where it can be found. (I like the screwdriver analogy by the way).
To sum up my argument:
(1) The right of publicity creates a property right,(similar to that of other real and intellectual property rights), and
(2) The First Amendment does not go so far as to allow others to infringe upon that property right.
Now perhaps I am over-simplifying (or overcomplicating) the analysis, but that is how I understand it. Nevertheless, I really would like to see the Supreme Court grant certiorari because a workable standard is needed to clean up all of the inconsistent holdings.

Posted By : Adam M.

Is Hardin in jeopardy of being indicted as well fo...

Message posted on : 2008-03-03 - 22:23:00

Is Hardin in jeopardy of being indicted as well for suborning perjury or conspiracy of some sort.
Posted By : Anonymous

Nothing's preventing the players from earning mone...

Message posted on : 2008-03-04 - 00:15:00

Nothing's preventing the players from earning money from fantasy league games--all they have to do is start up their own games or officially license others to do so. In addition, they're free to use their own statistics as well as those of their predecessors and successors to create new products and reap the rewards. But the players should not have a state-created monopoly masquerading as "a right of publicity on steroids" that enables them to extract royalties (or, alternatively, to prevent the existence of fantasy leagues or the creation of other new products) without legal or economic justification. Fortunately, all four judges considering this issue have looked behind the mask and seen the light. I'm merely attempting to explain what they saw and how it's consistent with the way other federal courts have applied copyright, trademark, and state misappropriation law to analogous facts.

Cheers,

Matt

Posted By : Anonymous

No...I get your argument, but I'm not sure you get...

Message posted on : 2008-03-04 - 00:57:00

No...I get your argument, but I'm not sure you get mine...

You summarize your argument as follows: “merely descriptive use of a player's name to identify public domain information is both not misappropriation of one's publicity rights and is protected by the First Amendment.�

I see this as flawed for two reasons. First, this proposed rule of law does not fit with existing R2P precedent and leads to irrational results when applied. Second, it implies that the use in fantasy sports can be fairly characterized as “merely descriptive use of a player's name to identify public domain information.� It strikes me as disingenuous to characterize the use of players' identities in fantasy sports in these terms.

As to my examples. Each shows why your view is, (again, with respect) unconvincing. Each fits squarely within my two main points listed above. You've seemed to dismiss them, but you don't say why.

1) The Nicholson glasses is parallel to Abdual-Jabar. From the case: “While Lew Alcindor's basketball record may be “newsworthy,� its use is not automatically privileged. GMC used the information in the context of an automobile ad, not in a news or sports account.�

It seems like your rule of law would precipitate a different result because the info is public domain. Does the fact that its advertising change the result? I see this as MORE convoluted and MORE difficult to achieve uniformity and a workable standard. (which are your stated goals) So there is a carving out of the R2P an exception for public domain facts, but this doesn't apply if the use is an advertisement? Or is the R2P only to apply to uses in advertising? That would be a significant departure from the existing law and would dramatically narrow the rights of those the R2P protects. This picture is getting hazier rather than clearer.

2) The Polo shirts – All I meant by this was to factually analogize how your characterization of what and how the statistics are used in f-sports simplifies the significance of the players identities to a level that serves the ends of your argument, but does not fairly characterize reality and the relationship between the athletes' ID and the game. I feel that saying the players names are just the identifying tags to the statistics and is akin to saying that a polo shirt is just a pile of thread and no more.

3) Your Barry Bonds peanuts analogy is badly missing the point. What you've come with, while it might dove-tail with the underlying rationale behind the R2P, in no way whatsoever satisfies the elements of the R2P, and nobody would argue that it does. Unjust enrichment is merely the underlying rationale that the right to publicly seeks to protect and in no way do I (nor I think Prof. Karcher as well) advocate that it plays any role in establishing liability under the tort. (Except as a measure of the amount of recovery.) Nobody here would even dream that there would be liability for the peanut vendor. What I think is being said is NOT that this concept of unjust enrichment legally mandates a finding for the players, but merely that purposes behind the R2P will be served by finding for the players.

- Matt Greer

Posted By : Anonymous

vick going to start dogfighting again? nah i dont ...

Message posted on : 2008-03-04 - 02:54:00

vick going to start dogfighting again? nah i dont think so
Posted By : Online Sportsbooks

Matt,

This is definitely going to be my fin...

Message posted on : 2008-03-04 - 07:10:00

Matt,

This is definitely going to be my final at bat, and then you can have yours.

You and I have read the cases, and it's clear to me that your understanding of the right of publicity and interpretation of the cases is different from mine. But you have made a couple of comments indicating you think that, because I played professionally, I just want players to "get their cut". Let me clarify that I don't care how much players make! How much they make is not for me, you nor any judge to decide. So I think it's egregious when judges write in their opinions that "players are already handsomely compensated" because it evidences that the outcome of the case is being influenced by their personal views regarding how much players "deserve to be compensated."

Second, you still haven't answered my one simple question. While you've stated that use of a photo by fantasy leagues would make it "easier" to establish the identity element, you haven't definitively stated whether, in your view, it changes the outcome (meaning who wins the case). If you think including a photo does not change the outcome, there would be no justification for the inconsistent treatment of trading cards and fantasy leagues. If you think including a photo does change the outcome, then I would like to know "why" it does --i.e. the underlying justification or rationale for the inconsistent treatment of trading cards and fantasy leagues.

Finally, let me tell you what I believe if the Supreme Court takes the case. I believe it would not view the application of the First Amendment to right of publicity claims as broadly as the Eighth Circuit did. I believe the Court would view the Eighth Circuit's ruling as not providing any clear guidance in evaluating legitimate First Amendment considerations. I believe the Court would see that a strict application of the Eighth Circuit's standard would effectively preclude all right of publicity claims [this sounds like a line from Bull Durham], and more importantly, that the Eighth Circuit's standard is inconsistent with well-established precedent that the First Amendment (as applied to right of publicity claims) is and should be narrowly confined to protecting uses the "primary purpose" of which is to inform (which includes such uses as news reporting, magazines, books, etc.) as well as uses that contain expressive forms of speech like movies, paintings, parodies, etc. And I also believe the Court would not view that standard as difficult to apply. The standard is not defining what's "newsworthy" which is impossible to define and focuses on the information (which is essentially what the Eighth Circuit's standard does). The standard is defining the primary purpose, which focuses on how the defendant is using it and can adequately distinguish legitimate and illegitimate uses under the First Amendment.

Posted By : Rick Karcher

This is my last post because I have to attend to m...

Message posted on : 2008-03-04 - 16:26:00

This is my last post because I have to attend to my full-time job. I think blogging's great and a lot of fun, but rarely find time to engage in it.

Rick--

Despite our disagreement regarding the proper scope of the right of publicity and limits imposed by the First Amendment, I agree with you that how much money the players already make in salary and endorsement income is irrelevant to this analysis. However, the economic incentives or disincentives(from the players' perspective) created by the judicially construed scope of this right, as well as the corresponding economic effects on producers of goods and the public, certainly are relevant.

Because C.B.C.'s holding is consistent with the economic rationale of Zacchini, I doubt the Supreme Court will grant cert. It refused to do so in Tony Twist and Motorola cases, and there's no clear split of authority among the circuit courts. Even though it appears there's a fair amount of money at stake, I think C.B.C. involves a rather unique set of facts specific to pro baseball and football,and that the Court won't choose this case to define how the First Amendment limits state right of publicity laws. The aspect of the case that has the most far reaching implications is the Eighth Circuit's holding regarding the breach of contract/licensee estoppel issue, which may not present a substantial federal question.

I never said (or meant to suggest)that including player photos as part of a fantasy game operator's website necessarily means there's any misappropriation of player identities (See Gionfriddo), although it may violate the copyright owner's rights in the photo or, depending on how it's used, may create liability for false endorsement. My understanding is that one plays a fantasy game because he hopes to choose the best set of player performances based on their statistics (which no one owns) rather than to merely possess a tangible product embodying the player's identity such as his unembellished photo on a trading card or name and number on a jersey. To me, this is a clear factual distinction that justifies a different legal result. But I understand that you disagree.



Matt Greer--

Please tell me who you and something about your background because, although you seem to know me, I don't know you.

First, please identify the "existing R2P precedent" that you assert is inconsistent with my argument. Obviously, C.B.C. is squarely on point, and the closest case factually is Delaware Lottery, which involves a state misappropriation claim that is the right of publicity's older brother.

Second, rest assured that I understand your argument, but your examples don't support the point you're trying to make. A screw driver, an item of personal property owned by someone, which thereby provides her with certain exclusive rights, is very different from factual information in the public example. Thus, it is not an apt illustration and doesn't prove anything.

Your Jack Nicholson sun glasses example is an example of the unauthorized use of a celebrity's name in advertising, which I agree is similar to the Abdul Jabbar case. As stated in one of my earlier posts, this is an example of when the use of public domain information about an athlete does violate the right of publicity. But the facts in C.B.C. are different from those in Abdul Jabbar; the fantasy game operator is not using MLB players' names to advertise or promote its game!

Finally, I'm puzzled by what your shirt example proves and how its relevant and material to the issue Rick and I are debating. Again, a shirt is an item of personal property and someone owns it (presumably the Ralph Lauren company at the time of manufacturer). But so what? Anyone, including the store selling it, can describe it as a Ralph Lauren shirt even if it is a gray good (i.e., manufactured by Ralph Lauren but acquired through unauthorized distribution channels). Another manufacturer can even describe its own shirts as being similar in style or quality to a "Ralph Lauren shirt" without violating his right of publicity.

Anyway, I've enjoyed our debate, which will no doubt resume if the Supreme Court grants cert.

Matt

Posted By : Anonymous

great site with great info -- but times are changi...

Message posted on : 2008-03-04 - 17:05:00

great site with great info -- but times are changing due to the advertising / marketing of companies like RedBull- Nike - etc that promote kids trying to get their 15 min of fame on TV

When these companies get sued for their promotion -- you will see things change

Posted By : Anonymous

Recent published articles on different Jounals ind...

Message posted on : 2008-03-04 - 17:25:00

Recent published articles on different Jounals indicate that Swedish Snus can reduce significantly the risk of cancer. "We should not delay in allowing snus to compete with cigarette for market share," dr. Janathan Foulds of the University of Medicine and Dentistry of New Jersey and Dr. Lynn Kozlowski of Buffalo said in analyzing two studies published in The Lancet. Find more snus info at http://www.swedsnus.com
Posted By : Swedsnus

I too have enjoyed this debate, and I think it has...

Message posted on : 2008-03-04 - 18:00:00

I too have enjoyed this debate, and I think it has run its course.

I only want to clarify what I meant by the shirt thing:

The analogy is meant to have no legal significance whatsoever, and you're reading more into this than what I meant by it. All I meant was this:

For one to say that a polo shirt is just a pile of thread is disingenuous and too simplistic for what the shirt really is.

I find the way you characterize the use of athletes' names in f leagues equally as disingenuous and as overly simplistic as the above statement.

The comparison was intended to carry no legal significance.

I've no doubt you disagree, and I really don't have an interest in further discussion. I think we're at the agree to disagree point. It just seemed like you were reading more into the shirt thing than I really meant by it, and I just wanted to clarify the confusion.

Posted By : Anonymous

Wow, nice post. I am currently taking Civ Pro, an...

Message posted on : 2008-03-06 - 18:04:00

Wow, nice post. I am currently taking Civ Pro, and you just wrapped up everything we have discussed in the past few weeks in a very interesting way. Why can't we learn Civ Pro solely through sports litigation? :)
Posted By : Darren

At least this year, we could . . .

Message posted on : 2008-03-06 - 21:03:00

At least this year, we could . . .
Posted By : Howard Wasserman

As for the personal jurisdiction argument, isn't i...

Message posted on : 2008-03-07 - 08:16:00

As for the personal jurisdiction argument, isn't it a factor that the alleged defamatory statement was "published" in Texas? It seems that in today's media age that there is a potential for a defamed person to pick the most favorable jurisdiction based on the fact that the statement was "published" virtually everywhere. It seems that McNamee is trying to limit the statement to the place where it was made, even though he had to be substantially certain that it would be republished everywhere.

Any thoughts on whether Clemens could simply try to remand the case by declaring that he is not seeking damages in excess of $75,000? Essentially, Clemens has stated that he is attempting to establish his reputation, and, presumably, McNamee is farily judgment proof, so what would be the harm in stating that he is not seeking in excess of 75K and will never accept more than 75K if a judgment was so awarded?

Posted By : Anonymous

Anonymous:

The defendant must do something ...

Message posted on : 2008-03-07 - 08:47:00

Anonymous:

The defendant must do something deliberate to aim his statements at Texas and to put those statements into Texas. McNamee did not control where the statements in the Mitchell Report ultimately were published. Courts have been reluctant to allow jurisdiction anywhere the statement happens to end up being heard, because that would create, essentially, nationwide jurisdiction in defamation cases.

As for remand: There is no doubt that Clemens' claim is worth more than $ 75,000--he is seeking damage to his reputation (which, as a famous ballplayer, is worth in the millions) and punitive damages. He also has sought a declaratory judgment that HE is not liable to McNamee--and that is worth whatever McNamee's claim is worth, which is more than $75K. The fact that Clemens cannot, in reality, recover that much from McNamee does not affect the jurisdictional analysis.

Posted By : Howard Wasserman

Prof. Wasserman,
Interesting view. Is there a d...

Message posted on : 2008-03-07 - 14:31:00

Prof. Wasserman,
Interesting view. Is there a difference between what speech a public university can regulate compared to a professional team or other private entity. I assume that a university is considered a state actor, and therefore would be subject to First Amendment scrutiny if they regulated the speech. Is this correct? If so, does this allow professional teams to limit their fans speech where a public university cannot?

-Adam

Posted By : Anonymous

I have written on this extensively, both here and ...

Message posted on : 2008-03-07 - 14:50:00

I have written on this extensively, both here and in a number of scholarly articles. Yes, there is a difference between a public university (subject to the First Amendment) and a private university or professional franchise (not subject to First Amendment restrictions). For professional teams, my argument turns to the fact that many play in publicly owned and/or publicly financed arenas/stadiums, which I argue makes them state actors, at least for some purposes, thus subject to the First Amendment.
Posted By : Howard Wasserman

online casino

http://www.aksplace.com

Message posted on : 2008-03-07 - 21:50:00

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http://www.aksplace.com

Posted By : casino

I'm all for your suggestion that the MLBPA should ...

Message posted on : 2008-03-08 - 09:28:00

I'm all for your suggestion that the MLBPA should hire agents and put them on payroll where they can be used if they want.

unfortunatley, the players aren't for whatever reason.

Posted By : Anonymous

Universities can deal with students rather easily....

Message posted on : 2008-03-08 - 10:08:00

Universities can deal with students rather easily.

Move the student seating sections or end the practice of free or reduced price tickets for students. Not steps that develop long-term growth of the fan base.

The key is confrontation.

Items hit the court? Do the same thing the NCAA suggests for lightning strikes. Stop play immediately, send the teams to the dressing rooms and suspend the game for 30 minutes. Go through warm-ups and resume the game. Second incident. Clear the stands and finish the game.

Someone throws things in the stands, arrest and eject if they can be identified. Can't identify? Follow the lightning rule.

Profanity is an issue have a senior usher or staff member confront it by using a script like this

"We've had complaints about the profanity you are using. I do not want you to be any quieter, if you can can get louder get louder, the team needs the help, it's just that some of the words you are using are
offensive to others here pulling for the team and makes them uncomfortable to be here with their family and future fans."

If that doesn't work nothing constitutional will work. However depending state law defining public intoxication usher may identify and report to police bad actors who are intoxicated.

Posted By : Mark

i was at the Miami at FSU basketball game earlier ...

Message posted on : 2008-03-08 - 22:52:00

i was at the Miami at FSU basketball game earlier and before the game started, the PA said "neither racist or sexist remarks will be tolerated."

Is that an appropriate time/place/manner restriction?

Does it matter if the Seminoles play in a facility the state doesn't own?

Posted By : Anonymous

Anonymous:

It is not because it is not cont...

Message posted on : 2008-03-08 - 23:17:00

Anonymous:

It is not because it is not content-neutral; it is restricting two specific types of speech based on what is being said and how people likely will react. If the First Amendment point were to be pushed, IMHO, such a blanket restriction would not hold up, because much racist and sexist speech is constitutionally protected. And yes, as I said in Comment no. 2, if the game were in a privately owned facility, no First Amendment analysis comes into play at all

Posted By : Howard Wasserman

right, a prohibition on racist or sexist speech wo...

Message posted on : 2008-03-09 - 11:53:00

right, a prohibition on racist or sexist speech would seem to violate RAV v. St Paul.

A violation on incentive speech or being an a-hole would chill too much free speech and probably violate VA v. Black.

Posted By : Anonymous

Couldn't it be argued that the sign might provoke ...

Message posted on : 2008-03-09 - 13:43:00

Couldn't it be argued that the sign might provoke a violent reaction, especially with passions already running high? Creating a risk of violence should be sufficient grounds to require its removal.
Posted By : Peter

But the provoke-a-violent-reaction grounds is limi...

Message posted on : 2008-03-09 - 14:36:00

But the provoke-a-violent-reaction grounds is limited only to up-close, face-to-face encounters in which the words are targeted at the listener. My hypo would not qualify. The risk of violent reaction outside that limited situation is not enough to justify restricting speech. That argument was made and rejected in the flag-burning cases.
Posted By : Howard Wasserman

perhaps a sign that uses profanity might qualify b...

Message posted on : 2008-03-09 - 17:14:00

perhaps a sign that uses profanity might qualify because of the potential chance it reaches viewers at home in their living room on TV as they are a 'captive audience' (FCC v. Pacifica)
Posted By : Anonymous

My immediate instinct is incitement. There might b...

Message posted on : 2008-03-10 - 01:30:00

My immediate instinct is incitement. There might be a stronger claim if instead of Cameron Indoor, the game took place at the Dean Dome and the obnoxious Duke fan scalped a ticket to the visiting arena (a common scenario in the Tobacco Road rivalry). The Brandenburg test calls for speech that causes imminent lawless action. When the student holds up his sign, in the heart of student section for sake of the hypo, very very bad things are likely to ensue.
Posted By : Anonymous

But Brandenburg also requires that the speaker int...

Message posted on : 2008-03-10 - 08:40:00

But Brandenburg also requires that the speaker intend to cause imminent lawless action by exhorting people to act ("Let's go get those guys!"). Incitement does not cover the situation in which the imminent lawless action is likely to be an assault on the speaker. Otherwise, any unpopular speaker could be halted on grounds of incitement.
Posted By : Howard Wasserman

I agree with Howard's points regarding incitement....

Message posted on : 2008-03-10 - 09:11:00

I agree with Howard's points regarding incitement. It's a Brandenburg issue and that has beren the prevailing law regarding political speech restrictions since 1969.

However, a small clarification regarding the FCC's revised definition of indecency of as "fleeting expletive." The second circuit did not address the constitutionality of that revised definition (although some judges, in dicta, questioned it); rather, it remanded the case because the FCC failed to provide adequate reasons for such a change of definition. The case is on remand (although the DOJ has filed a cert petition in the Supreme Court).

Posted By : Mark Conrad

What about under Feiner v. New York?

if he ...

Message posted on : 2008-03-10 - 09:24:00

What about under Feiner v. New York?

if he held up that sign in Chapel Hill, couldn't they arrest him and justify it by saying it's for his safety?

Posted By : Anonymous

The pleading might well have been, as you say, "du...

Message posted on : 2008-03-10 - 09:29:00

The pleading might well have been, as you say, "duplicitous," but I think you really mean duplicative.

Failure so to distinguish can result in a punch in the face.

Posted By : Anonymous

Maybe. Although Feiner is one of those cases that ...

Message posted on : 2008-03-10 - 10:13:00

Maybe. Although Feiner is one of those cases that is dead without having been formally overturned (not unlike Beaurharnais, the group-libel case). The general modern view is that police are obligated to keep the peace by stopping those threatening to do violence, not stopping the speaker who is pissing them off. We take heckler's vetoes more seriously now than we did in 1950.
Posted By : Howard Wasserman

good. i thought the holding on feiner was stupid.

Message posted on : 2008-03-10 - 11:39:00

good. i thought the holding on feiner was stupid.
Posted By : Anonymous

I don't think there is anything to do about the si...

Message posted on : 2008-03-10 - 14:40:00

I don't think there is anything to do about the sign. While taking it to the extreme, the sign in the hypo is merely an example of "poor taste." Government shouldn't regulate taste. This is an area best left to "social pressure," as dicussed earlier. Let the cameras at the game get a close-up of the individual holding the sign and no doubt he'll have to leave the region to find a job, friends, afterwards.
Posted By : Anonymous

The best cure for "bad" speech is not repression, ...

Message posted on : 2008-03-10 - 16:16:00

The best cure for "bad" speech is not repression, but "good" speech.
Posted By : Anonymous

this is off topic, but...

what if the crow...

Message posted on : 2008-03-10 - 16:21:00

this is off topic, but...

what if the crowd was chanting "F--k UNC" repeatedly.

would the network have a duty to mute the crowd under pacifica?

would that depend on if the broadcast was on ESPN (cable) or ABC(air)?

Posted By : Anonymous

when i said "mute the crowd," i meant, electronica...

Message posted on : 2008-03-10 - 16:28:00

when i said "mute the crowd," i meant, electronically through a control center of some sort..
Posted By : Anonymous

It would depend on broadcast v. cable and since th...

Message posted on : 2008-03-10 - 17:28:00

It would depend on broadcast v. cable and since the game was on ESPN, there would be no duty. Even as to broadcast, it also depends, as noted in earlier comments, on the fate of the "fleeting expletive" doctrine and how that applies to repeated chanting by a large crowd.

Oh, and one interesting twist on this: Assume that the FCC had power to regulate ESPN: The game telecast began at 9 p.m. Eastern; the ban on "indecent speech" (such as profanity) ends at 10 p.m. (indecent speech on the airwaves is lawful between 10 p.m. and 6 a.m.) So any duty ESPN could have had ended sometime early in the second half.

By the way, this is not off-topic at all. A school may very well argue that it must suppress student (oral) profanity or else its games cannot be shown on broadcast television. Not sure if that qualifies as a compelling government interest, but it makes for an interesting argument.

Posted By : Howard Wasserman

wouldn't a less restrictive method would be to ele...

Message posted on : 2008-03-10 - 19:17:00

wouldn't a less restrictive method would be to electronically silence the crowd than to actually ban it?
Posted By : Anonymous

This is a very interesting blog.

Keep up t...

Message posted on : 2008-03-11 - 18:25:00

This is a very interesting blog.

Keep up the good work!

Posted By : test equipment

This does not seem to me to be a women's issue or ...

Message posted on : 2008-03-11 - 18:39:00

This does not seem to me to be a women's issue or a religious issue. It is a comfort issue. Muslim women want to work out more comfortably, with less clothing. Should their comfort trump the rights of men who have presumably paid their activity fee to have access to this (and other) facilities on campus? And what about the male workers at the facility who presumably cannot work during that time? Even if it is off hours and out of the way, that is going way too far. Muslim women's religious expression is in no way being burdened by a co-ed athletic facility. They can express their religion, they just need to sweat a little more.
Posted By : Anonymous

I agree with the legislation which aims to ban cre...

Message posted on : 2008-03-12 - 08:46:00

I agree with the legislation which aims to ban credit cards as a payment method for online gambling of any sort... and i think it should be enforced worldwide – not just in America. In fact, gambling with a credit card should be banned full stop. Not just on the internet. It's a no brainer when you consider you are backing the outcome of an uncertain event with somebody else's money. Chance and credit do not mix well in my opinion, and continuing to allow it would only contribute further in negatively affecting the high levels of personal debt many citizens today find themselves in. I do however, think that the prohibition won't work; or at least it won't be received well amongst gamblers - I mean what's the point in banning a credit card payments made on an online poker game, for example, but not on other kinds online sports betting? Slightly hypocritical, you not think? I mean how can you allow someone to participate [with or without a credit card] in horse racing betting on the internet, but not put any money on a hand when they play texas holdem poker online? Both activities involve a large degree of chance, and neither promise to yield financial return. What really infuriates me is that the minority of irresponsible gamblers [those paying with someone elses money!] have now ruined the fun of online betting for everyone else - those like me who pay with money they actually have in their bank!! At least for the Americans there is always the free online poker games!
Posted By : online poker site

Of course it's the Islamic angle that matters. Th...

Message posted on : 2008-03-12 - 13:06:00

Of course it's the Islamic angle that matters. There are many women-only private gyms and no one minds. Had the Harvard students who requested women-only hours done so for reasons other than religion - for instance, if they had body image issues and felt uncomfortable exercising in front of men - it would have been similarly uncontroversial. I'll take it a step further and say that there would have been only mild controversy had the students cited religion for their request but they were evangelical Christians rather than Muslims.
Posted By : Peter

Beijingticketing.com is a fraud! Check it out!
...

Message posted on : 2008-03-13 - 11:10:00

Beijingticketing.com is a fraud! Check it out!

http://www.guardian.co.uk/world/2008/mar/09/olympicgames2008.internet

Posted By : Anonymous

Is this blog dead or what?

Message posted on : 2008-03-17 - 10:16:00

Is this blog dead or what?
Posted By : Anonymous

http://en.wikipedia.org/wiki/Eugenics

I bel...

Message posted on : 2008-03-17 - 17:17:00

http://en.wikipedia.org/wiki/Eugenics

I believe this would be some historical reference for the Scien-tard.

Posted By : Carl Spackler

I don't think we should have to cater to religious...

Message posted on : 2008-03-17 - 18:26:00

I don't think we should have to cater to religious superstitions of any stripe, be it the elevators for sabbath in new york, any sort of harry potter- type censorship for fundamentalist christians, or hiding women from --god forbid-- (pun intended) being seen by *gasp* a man.

get over it already.

Posted By : Caroline

"morally obligatory"? -- What the heck does that m...

Message posted on : 2008-03-17 - 18:38:00

"morally obligatory"? -- What the heck does that mean?
Posted By : Rick Karcher

Harvard cannot get over itself, Caroline. Iowa did...

Message posted on : 2008-03-17 - 18:42:00

Harvard cannot get over itself, Caroline. Iowa did with the pink locker room issue, but Iowa "is no Harvard"....
Posted By : Anonymous

The East German regime believed the same.

Message posted on : 2008-03-18 - 07:59:00

The East German regime believed the same.
Posted By : Anonymous

Wouldn't he have to allege that being call the wro...

Message posted on : 2008-03-18 - 19:58:00

Wouldn't he have to allege that being call the wrong race harms his reputation? I think he would be nuts to make the claim, even if he believed it to be true.

BUT, what if they got his stats wrong, and as a result he was a super-crummy pitcher in the game? That, I think might be actionable!

Posted By : Michael Risch

Message posted on : 2008-03-19 - 20:27:00

bookmakers

man..so many restrictions on what you can say....if you dont like it change the channel, period
Posted By : Anonymous

Michael and Michael,

I don't see this as a ...

Message posted on : 2008-03-22 - 07:48:00

Michael and Michael,

I don't see this as a defamation issue at all. It really goes to the players' right of publicity. One of the underlying rationales for recognizing a right of publicity is so that the celebrity/player can control the use of his identity from being used in "shoddy" products or products that the celebrity/player does not want to be associated with (for example, "Here's Johnny" toilets in the Johnny Carson case). If the players are not happy with the quality of the product that this particular company produces, they may have certain contractual rights under their license with this company or they may elect not to give this company a license in the future. The quality of this game could be much worse if the producer didn't need to pay for a license.

An exclusive license (which is not at all uncommon in commerce generally) is not the issue here. Exclusive licenses can be good for the consumer to ensure quality.

Posted By : Rick Karcher

Rick -

Aren't the rights of publicity in th...

Message posted on : 2008-03-22 - 13:14:00

Rick -

Aren't the rights of publicity in these games licensed to the player's association for sublicensing? I can't believe the video game makers get signoff from every player, though I do plead ignorance of the exact mechanism.

If so, how can there be any standing to sue under rights of publicity? Is it up to the union? Also, it's not that the game is shoddy, it's that facts are misrepresented - a different wrong in my view.

Posted By : Michael Risch

NBA should propose what baseball does...

Ba...

Message posted on : 2008-03-24 - 10:29:00

NBA should propose what baseball does...

Baseball allows players to come out right after high school, or they can go to college--but, if they go to college, they cannot come out until after their junior season.

I think that's a fair approach.

until then, the college game is going to be littered with players that don't want to be there

Posted By : Anonymous

I'm with anon.

The baseball system is much ...

Message posted on : 2008-03-24 - 10:44:00

I'm with anon.

The baseball system is much better for players and the schools. Of course there is one twist in there that the NCAA members hate.

The MLB can sign a kid right after high school and has to wait until after the junior season to draft the play