Thursday, September 20, 2018

An infield fly rule for fake fair catches?

Last weekend, North Texas pulled off an amazing trick play, scoring a touchdown on a punt return by having the entire team (and everyone had to be involved) pretend the returner had called for a fair catch, then racing upfield when opposing players ran to the sideline believing the play was over. On Tuesday, there were conflicting reports as to whether the NCAA was considering outlawing the play. This New York Magazine piece by Will Leitch suggests a rule change may be necessary, with arguments sounding in the infield fly rule.

The infield fly rule (and similar rules) is necessary to address situations defined by four elements: Team A acts contrary to ordinary athletic expectations or fails to do what is ordinarily expected; that move produces an extraordinary cost-benefit advantage; Team B is powerless to counter the move in light of the game's rules, practices, and structure; and that imbalance creates a perverse incentive for Team A to try this often. Leitch's piece suggests that this is a situation requiring a limiting rule.

The key is the third element of Team B's powerlessness to counter the play in light of the game's structure. The punting team's counter is obvious--play to the whistle and hit the ball carrier unless you see the fair-catch signal and/or hear the whistle. But Leitch argues that the renewed focus on head injuries and player safety has changed that calculus. Tacklers no longer want to light-up a defenseless ball carrier and likely will draw a penalty for doing so, even if the hit was legal, because it "looks bad" and results in an injury. And it already can be hard for the punt coverage team to see and determine the fair catch signal.  North Texas' coaches essentially exploited that reluctance and that limitation on the tackler.

So while there is a counter, it is one that the tackling team will be unable to utilize without risking penalties on anything that looks close, making not a meaningful counter. Alternatively, if such hits are not going to be called, Team B gets its counter, but it is one the game's rulemakers will not want to encourage. This become a situation that gives one side a cost-benefit advantage (and thus a perverse incentive) and leaves the other powerless to respond, at least without creating other problems in the game's structure.

My first thought after this play was that it was a one-time, not-replicable event, because punt-coverage players now will be instructed to hit the returner unless they hear the whistle on the fair catch. Leitch's piece convinced me otherwise, that the cultural shift away from hitting defenseless players creates a limit on the tackling team and thus a control disparity that requires a limiting rule.

Posted by Howard Wasserman on September 20, 2018 at 11:50 AM in Howard Wasserman, Sports | Permalink | Comments (3)

Friday, September 14, 2018

Serena and the umpire

I am a week late to the conversation about the blowup between Serena Williams and the chair umpire during the US Open women's final. I do believe there is a race-and-gender piece to this, although it is not as simple or direct as some make it out to be. Kevin Drum has a good blow-by-blow of events and I agree with his descriptions and conclusions. I repeat some of his points with additional commentary below.

• The first called violation and warning, for coaching, was correct, as even her coach, Patrick Mouratoglou, admitted he was coaching. And however common coaching is,* it does get called, against men and women, black and white. And this chair umpire is known to call it more than others. This perhaps could have been an instance in which Mitch Berman's temporal variance was appropriate and it should not have been called midway through the second set of a Grand Slam final.  And race and sex might have had something (not everything, but something) to do with the umpire's willingness to call a ticky-tack violation at that key time.** On the other hand, Drum points out that the coaching was not subtle, so an easy target for this call.

[*] Or should be. I recognize the argument, that Mouratoglou made when interviewed after the match, that the rule should be eliminated. That has no role to play here. Civil disobedience is still a crime and still punishable until the unjust law is repealed.

[**] Berman's temporal variance argument begins with one of Williams' previous officiating meltdowns, in the 2009 Open semi-finals.Williams was called for a foot fault on a second serve when she was down 15-30 and serving to stay in the match. The call pushed her to 15-40 and match point. That prompted Williams to threaten the line judge, resulting in a code violation. And because Williams had received a violation for--wait for it--smashing her racket, the violation resulted in a point penalty and the end of the match. Pattern of behavior? Pattern of targeting the African-American woman with ticky-tack calls at key moments? Bit of both?

• The interesting thing about this call--and the thing that caused many of the subsequent problems--was that Williams took it as a personal affront to her, an accusation that she was cheating. She protested the call by talking about her daughter and how she would rather lose than cheat; her later demand for an apology was premised on this understanding, that the ump had accused her of cheating. But any "cheating" was by the coach, not Williams. Coaching is "communication, advice or instruction of any kind and by any means to a player," which Mouratoglou was blatantly and not subtly doing via hand signals; the rule does not require that the player see, hear, or respond to the coaching, only that the coach engage in communication. So her taking this as an affront to her honesty or sportsmanship misunderstands the nature of the rule. The player is punished for the coach's misconduct (presumably so the player will tell the coach to knock it off). But the player need not do anything wrong for the infraction to be called.

• Williams somewhat undermined her own cause here. She insisted that she had not seen any coaching, but that is beside the point. But Williams also said she had looked up and seen Mouratoglou, but he only was giving her the thumb's-up. This suggests that she saw something and there was some communuication. Unfortunately for Serena, the cameras were following Mouratoglou and it appeared he was doing much more than giving the thumb's-up.

• The second violation, for breaking the racket, which resulted in a point penalty as a second infraction, is a no-brainer--she did, in fact, destroy her equiment. And, again, the argument that the rule is stupid and made for a game that was played by delicate white men and not strong, athletic, competitive African-American women is beside the point. Again, if the rule is bad, change the rule; otherwise, follow it. A game before Osaka had slammed her racket after a mistake, but the racket did not break, so there was no violation.

• My point of departure from Drum is whether sex (and race) had anything to do with the third violation, for umpire abuse (which resulted in the game penalty). This was a judgment call and Williams was ranting. But we see men's players, especially the top men's players, given a lot more leeway in arguing with officials; it is difficult to imagine any of the top-three men's players getting called for saying the same things Williams did, especially at that point in a championship match. This infraction was not called solely because Williams is an African-American woman. But it is not an unreasonable inference that the umpire's fuse was shorter with her than it would have been with a white man, especially accounting for her position as the GOAT and the idea that the GOAT gets away with more.

• The one reason the call makes sense, apart from race and sex, is that Williams personalized it--she said, "You're  a thief." Baseball umpires, asked about the magic word that will prompt them to eject a player, say "You"--in other words, players can say a lot of words, as long as they do not personalize those words to the umpire. (To use the famous example in the movie Bull Durham, Crash does not get ejected when he screams cocksucker at the umpire, only when he says to the umpire "you're a cocksucker."). I am not sure if it is the same in tennis, but that could set her comments apart.

Posted by Howard Wasserman on September 14, 2018 at 10:52 AM in Howard Wasserman, Sports | Permalink | Comments (15)

Monday, September 03, 2018

Two free expression stories for Labor Day

First, Nike is celebrating the 30th anniversary of its Just Do It campaign. Here is the opening image, with the tag line "Believe in Something. Even if it means sacrificing everything." Good for Nike, which has always mixed its product advertising with political messages. I assume the company calculated the lost sales from the more than half the country that seems to oppose the player protests. Or it has more corporate courage than the NFL. DmMfV2QV4AAF11z

 

Second, a group called USA Latinx raised almost $ 10,000 in one day to rent this billboard for about $6000. The fundraising effort was helped by Parkland survivor David Hogg, who tweeted about the campaign. The billboard is a response to President Trump's announced plan to come to Texas to hold a rally in a big stadium in support of Ted Cruz's re-election campaign. Several contributors to the GoFundMe campaign urged the group to raise more money to put these ads all over the state.

32614890_1535818206259214_rI presume USA Latinx believes that money is not speech, that corporations have no speech rights, and that Citizens United is the fourth-worst SCOTUS decision ever. Do its leaders realize that this is a campaign expenditure and that they are a corporation or other entity? Do they realize that if money were not speech, there would be no limit on government halting such expenditures? Do they realize that a $ 5000 expenditure limit or a bar on expenditures within 90 days of an election (all perfectly lawful if money is not speech) renders this unlawful?

Posted by Howard Wasserman on September 3, 2018 at 05:48 PM in Culture, First Amendment, Law and Politics, Sports | Permalink | Comments (5)

Sunday, August 12, 2018

Every snowflake is different

How is this complaint about NFL player protests from the head of the Broward County PBA different from the complaints from liberals (on- and off-campus) who are derided as "snowflakes" for objecting to Richard Spencer, Milo Yiannapoulos, Chick Fil-A, et al. The PBA is calling on members to boycott and not do business with the team. It is demanding that the Dolphins no-platform the players, calling on an entity to deny a speaker the opportunity to present his message. And the complaint is that the speaker's message is a "slap in the face" to the complainer, who is offended by the speech. There is no practical difference between the two situations.

Posted by Howard Wasserman on August 12, 2018 at 02:44 PM in First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (9)

Saturday, August 11, 2018

Flag protests and public employees

The assumption among supporters of protesting NFL players and critics of the NFL is that the league is trampling on the players' free-speech rights, that the players have a free-speech right to protest the anthem, save for the absence of state action. But the assumption is that if there were state action, the First Amendment would protect the players. Let's push on that question, with a hypothetical to which I genuinely do not know the answer:

The head of a government agency or office (it does not matter what level of government or what office) has decreed that the workday shall begin every day at 8:30 a.m. by everyone in the office standing before the flag with hands over hearts, recite the Pledge of Allegiance, and sing America, the Beautiful. The director explains that this symbolic reaffirmation of America reminds public officers of their obligations to the Constitution and to the public they serve in performing their jobs. Must an objecting employer, who believes that America's criminal-justice policies are discriminatory, participate in this ritual?

There are several doctrinal paths competing for attention here.

1) Barnette says students cannot be made to participate in the flag salute. By extension, it should mean other people cannot be compelled to participate in other patriotic rituals. Certainly Jackson's rhetoric speaks of patriotic rituals, not only the Pledge in schools. There also is a nice question of how far the Barnette protection extends--to speaking the words of the Pledge or anthem or to all engagement in the ritual. In other words, does Barnette mean you can opt-out entirely by kneeling or sitting or leaving the room? Or does it only mean you cannot be compelled to utter the word, but can be made to stand there, even at attention?

2) Employee speech rights within the workplace are limited, under the Garcetti/Connick/Pickering line of cases. Workplace speech that is part of the job is per se unprotected, while Connick/Pickering ask whether speech (whether in or out of the workplace) is on a matter of public concern and whether the employer's interests outweigh the employee's expressive interests. But on-the-job core political speech, however offensive, that does not affect government operations is protected. Thus a deputy sheriff could not be fired for stating, in a conversation with co-workers, her hope that a second assassination attempt on President Reagan would succeed.

3) Janus can be read to accord public employees greater protection against compelled speech than they enjoy against restrictions on their own speech, a criticism Justice Kagan leveled in her dissent. Kagan also predicted that Janus was about limiting public unions, not compelled speech generally, so a rule compelling employees to speak in a way other than donating money to a union.

So what might be the answer to my hypo? There are a couple of threshold question. First is how we should understand what the protesting employee (or an NFL player) is doing. Is he seeking to opt out of having to utter the government's message? Or is he trying to make his own affirmative statement about something (e.g., police violence)? This makes a difference between whether we are in Barnette/Janus or Garcetti/Pickering. Second is how much deference the court owes the government in defining what speech is part of the job. So will the court buy the government argument that the pre-opening patriotic ritual is designed to remind employees of their public duties and obligations and thus part of their public jobs.  And, if not and we are in Connick/Pickering, how disruptive of the workplace the court deems non-participation to be. Third, if this is compelled speech, can it really be that children in school enjoy greater protection against compelled speech than adults in the workplace?

Again, I do not know the answers, although I know I believe it should come out. Thoughts?

Posted by Howard Wasserman on August 11, 2018 at 11:41 AM in First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (3)

Thursday, August 09, 2018

State action and NFL protests

This morning, I participated in a discussion group at SEALS on the NFL protests; other discussants were Todd Clark (UNC Central), dre cummings (Arkansas-Little Rock), Michael Green (Texas A&M), and Arnold Loewy (Texas Tech). For my piece, I threw out some arguments under which the NFL or its teams could be deemed to act under color of state law and thus become subject to First Amendment limitations. I do not believe the arguments are especially strong, but I flesh them out after the jump. I consider two circumstances: 1) the current one, in which the NFL is seeking to stop players from protesting. and 2) an Indiana proposal that would require teams to provide refunds to fans offended by players kneeling at Colts game (this was introduced in December 2017 and nothing has been done, so I doubt this remains a live possibility).

1) Close Nexus: Private actors act under color if they act under compulsion, coercion, or "overwhelming encouragement" of state officials. There is evidence that the league and the owners have acted out of fear of President Trump's tweets and general demagoguery and a desire to appease the President. Is that sufficient coercion or encouragement? Does it matter that the tweets are targeted specifically at the NFL and even particular players? I doubt this works, but the outline of the argument is there.

2) Symbiotic Relationship. A powerful (if questionably valid) basis is when there is an exchange of mutual benefits between the government and private actor, including where the government benefits from the unconstitutional conduct. The key here is the militarization of the NFL. The military and Department of Defense have paid the NFL millions of dollars to have the league promote patriotism and the military and player participation in the ritual is part of that.* The NFL gets a lot of money, the military and government is promoted and uses this as recruiting opportunities. To the extent those arrangements depend on a clean patriotic presentation and player protests interfere with that, perhaps limiting player protests could be seen as a way to maintain its arrangement with the military. We probably need to learn more about the deals between the NFL and DOD--what each party gets and what the league is expected to do as part of the deal. Again, this is tough, especially because some lower courts do not accept this as a valid test.

[*] On the radio program I did last month, former NFL player Joselio Hanson pointed out that the players remained in the locker room during the anthem prior to 2009. That change suggests a connection between player participation and the business deal between the league and the government.

The state action arguments work better as against the Indiana proposal, which will not become law in Indiana, nor will anything similar become law elsewhere.

3) The Indiana bill creates a close nexus, as the threat of monetary liability to the objecting fans compels or coerces the team to prohibit the players from protesting. Although the trigger for the monetary loss is a private complaint rather than a government-imposed find, the obligation of the teams to respond to the private complaint is government-imposed. In the same way that tort liability and a government fine are the same for state-action purposes, a compelled refund and government fine should be the same.

4) The Indiana bill resembles landlord ordinances. Landlords are threatened with fines or loss of license for having too many tenant 911 calls for disturbing the peace (including calls seeking help from domestic violence); the solution for landlords is to evict these tenants, prompting the tenants to refrain from calling 911, thereby increasing their vulnerability to violence. Although the eviction or threat of eviction comes from the private landlord, it is prompted by the threat of fines or loss of license if they do not evict. The same is going on here--the team is threatened with financial loss to the complaining fan, so it restricts the players' (constitutionally protected) conduct that might cause the team that loss. There is an extra player in the mix compared with the landlord situation; the latter has the government, the landlord, and the tenant, while this has the government, the team, the players, and the complaining fan. But again, there should be no difference between a fine and private liability when both are compelled by the government.

Posted by Howard Wasserman on August 9, 2018 at 11:39 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (10)

Thursday, July 26, 2018

More on the "Elam Ending" in Basketball (Updated)

I watched my first basketball game (in The Basketball Tournament) using the Elam Ending, the new rules designed to eliminate late-game fouling by a trailing team seeking to come back (the game clock is shut-off at the 4:00 mark and the teams play until one team reaches +7 points of the winning team when the clock was shut off). In this game, A lead X 80-74 at the 4:00 mark, so the target score was 87. X came back thanks to some big three-pointers and some sloppy offense by A to tie the score at 86. A won the game on a free throw following a questionable foul call on what looked like a clean steal that was about to lead to a possible game-winning fast-break for X.

1) X's offense during the untimed period still seemed rushed, in a hurry to throw up threes and get back a lot of points at once. Even with the clock off, there is a sense that, with A at 83 points, there are only a few possessions left, so they have to score in larger bunches, if not necessarily early in the shot clock.

2) I had thought that one goal was that with no clock, each team could execute its "normal" offense down the stretch, but I did not see that from either team. As I said, X seemed in a hurry to score and to shoot 3's. A seemed to tense up, not knowing how  to play in this odd situation.

3) There still was an intentional foul. Leading 86-84, A intentionally fouled, giving X two free throws to tie the game, and give A the ball back with the chance to win, rather than risk a game-winning three. But this is equivalent to current practice of fouling up 3 in the closing seconds and a strategy I expected to survive.

Update: The Ringer considers NBA games with historically famous endings (including Michael Jordan's end-of-Bulls-career-game-winner) that would have been changed, while The Big Lead does the same with college games.

Posted by Howard Wasserman on July 26, 2018 at 11:40 PM in Howard Wasserman, Sports | Permalink | Comments (3)

Tuesday, July 24, 2018

Three items for light reading and listening

Two unconnected items I found interesting.

1) David Sims of The Atlantic on the 20th anniversary of Saving Private Ryan and the sense of bitterness and pointlessness reflected in that and other of Spielberg's later movies. One of my early Prawfs post asks whether Private Ryan "earned" the sacrifices made for him and this ties into that.

2) Howard Bryant on the objections by some veterans to the commercialized faux patriotism and militarization of sports. (Bryant is the author of The Heritage: Black Athletes, A Divided America, and the Politics of Patriotism and the article is outgrowth of some of the interviews he did for the book). Bryant is the guest in the first segment of this week's Hang Up and Listen podcast.

3) Slate's Christina Cauterucci criticizes the decision of the US Women's Soccer team to call up Jaelene Hinkle for an upcoming tournament. Two years ago, Hinkle declined a spot on the team for "personal reasons," which this spring she revealed to be objections to wearing a kit with rainbow-colored numbers to mark Pride Month, consistent with Hinkle's opposition to LGBT rights. Cauterucci argues that US Soccer "sold out" its LGBT players and fan base. Cauterucci is in the second segment of the podcast. Unfortunately left unsaid in this article and in the podcast segment is that it is impossible to adopt Cauterucci's argument and argue that NFL players should not have to stand for the anthem, without engaging in some pretty blatant viewpoint discrimination.

Posted by Howard Wasserman on July 24, 2018 at 04:46 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (4)

Infield shifts and limiting rules

Scoring is down in baseball this season (and has been on a downward trend in recent years). Some of the decline is being attributed to the increasing use of defensive shifts, especially against left-handed pull hitters, with teams situating four defenders to the right of second base and placing the second baseman in shallow right field, where he is close enough to field a grounder and throw out the runner. SI's Tom Verducci shows the effects and offers an "illegal defense" rule--prohibiting teams from placing three infielders on one side of the field (so the shortstop could be only as far as even with second base) or requiring infielders to have one foot on the infield dirt (removing the rover in short right field).

In devising a framework to explain the Infield Fly Rule and other rules that seek to limit or eliminate strategic moves within a sport, I distinguish true limiting rules from aesthetic rules. True limiting rules are designed to avoid or eliminate extraordinary cost-benefit imbalances on plays, while aesthetic rules are designed to ensure the beauty of the game. For example, the I/F/R and the rules on uncaught third strikes are true limiting rules; Offside in soccer or rules designed to limit end-of-game fouling in basketball are aesthetic.

I had thought of the possible responses to shifts as aesthetic, because the cost-benefit disadvantage was not unavoidable if the batter could and would learn to hit away from the shift. But the stats Verducci musters give me pause. There appears to be a structural disadvantage for left-handed hitters, something baked into the game that works against these players and that cannot be overcome, at least without altering the game. And while playing the second baseman in shallow right field is not as obviously contrary to expectations as intentionally not catching a fair fly ball, it is out of the ordinary for what we understand of the game.

So the need for an "illegal defense" rule may be not a question of making the game look good, it may be a question of its basic situational competitive balance.

Posted by Howard Wasserman on July 24, 2018 at 11:31 AM in Howard Wasserman, Sports | Permalink | Comments (5)

Pine Tar at 35

Today marks the 35th anniversary of the PineTar Game, when the umpires overruled a home run and called out George Brett of the Royals for having too much pine tar on his bat, only to have the league reverse the decision, reinstate the home run, and have the teams complete the game (from two outs in the top of the ninth with the Royals leading). The game even produced scholarship on statutory construction and judicial decisionmaking. Video after the jump.

 

Posted by Howard Wasserman on July 24, 2018 at 09:31 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Thursday, July 19, 2018

NFL and NFLPA enter standstill agreement on anthem policy (Updates)

Thursday saw sudden activity on the NFL's anthem policy. Late in the afternoon, reports revealed a "discipline schedule" submitted by the Miami Dolphins to the NFL listing improper anthem conduct (i.e., not standing at attention) as conduct detrimental to the club that could be punished by up to a four-week suspension. The Dolphins and the league quickly backtracked, insisting that this was a routine document that every team had to submit prior to the start of training camp and that the team had not decided if or how to punish protests, but that it "has no intention of suspending a player for four games based on any type of anthem protest."

Late in the evening, the NFL and NFL jointly announced a "standstill agreement" on the league policy and the union grievance (filed last week). The league will not issue or enforce new regulations, the union will stay its grievance, and the sides will continue ongoing confidential discussions. I agree with Deadspin that this is another example of the NFL's incompetence and inability to get out of its own way on this issue--it pushed the policy through as a display of muscle at a time when the issue had mostly dropped off the radar, then abandoned that policy in the face of the grievance and the bad press the Dolphins received this afternoon.

At least the President will have something new to tweet about tomorrow morning. [Update: It took a day longer than I expected, but the tweet that arrived had the advantage of blatant lies about the content of NFL player contracts. And I like the response of NFLPA President Eric Winston] (Actually, it would be nice to spin a conspiracy that the NFL and the owners have taken this self-inflicted wound as an intentional wag-the-dog move to help the President avoid the continued fallout of his meeting with Putin).

I will close on a serious question underlying all of this: Could a public employer require its employees to recite the Pledge or sing the anthem at the start of each day, as part of the job? Janus suggests that the limits on public-employee speech (in which speech that is part of the job cannot form the basis for a First Amendment claim) do not apply to rules compelling employees to speak as part of their job. But does that hold outside of union fees? There is an argument that an employer (even one bound by First Amendment doctrine) can control its employees' speech. But is that equally true for an employer seeking to compel its employees' speech?

Second Update: Conor Friedersdorf of the The Atlantic urges NFL players to square the circle--continue protesting while not playing into Trump's hands. The problem is that the anthem remains their most visible expressive platform. If any flag- or anthem-related protest will be demagogued by this President, as surely will be the case, I am not sure what the players can do.

Posted by Howard Wasserman on July 19, 2018 at 11:17 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (4)

Wednesday, July 11, 2018

Is competitive eating a sport?

I should have written this last week, after watching the Nathan's Hot Dog Eating Contest on July 4, but I never got around to it. Anyway, is competitive eating a sport? The announcers spent a lot of the broadcast talking about how 11-time champion Joey Chestnut trained and worked his mouth, jaws, esophagus, and digestive tract to take and swallow such large amounts of food.

My four-part definition of sport is: 1) Large motor skills; 2) Simple machines; 3) Competition; and 4) Outcome determined by success in performing skills to achieve some other instrumental end, rather than for the virtue of the skill itself. Numbers 2-4 are satisfied--it is a competition, no machines are involved, and the skill of eating and swallowing is performed to the end of consuming lots of food. So the question is whether chewing and swallowing qualify as large motor skills.

Posted by Howard Wasserman on July 11, 2018 at 08:55 AM in Howard Wasserman, Sports | Permalink | Comments (9)

Friday, June 08, 2018

Ali/Trump

Before leaving for Canada, the President made statements at the White House that he is "very seriously" thinking about issuing a pardon for Muhammad Ali and that protesting NFL players should let him know about "people that they think were unfairly treated by the justice system" or of "friends of theirs or people they know about." I know this was Trump speaking off the cuff, which is not something he is good at (at least if we are looking for things that make sense). And it is on a silly subject, compared with other behavior by him and his administration. But there is a lot here that illustrates how the President understands (or misunderstands) the world, politics, the Constitution, his power, and law.

• Ali's conviction for refusing induction was reversed on appeal, the United States never reprosecuted him, and DOJ conceded that Ali's objections to induction were religiously based and that his beliefs were sincerely held. As Ali's lawyer stated in response to the President's offer, there is nothing for which Ali must be pardoned, as he has no existing conviction and is not under threat of future prosecution for his past actions. Is Trump aware of that?

• In Trump's world, someone who declines to engage in a patriotic ritual derogates and insults the military and should be deported; someone who refuses to join the military and fight in time of war does not, such that a conviction for disregarding his legal obligation to fight reflects an unfair sentence warranting a pardon. Such disparate understanding of symbolic patriotism compared with fighting for the cause is striking and incoherent. But it is consistent with the NFL's symbolic patriotism. And it is consistent with the President's symbolic patriotism, as he similarly went out of his way to avoid service in Vietnam, without having to justify his reasons for not going or losing four years of his career to his efforts.

• All politics is personal. The NFL players must be speaking out about injustices done to their friends or specific people they know and want to help, just as the President uses the pardon power to help his friends or individuals he knows and wants to help. He does not conceive of systemic problems that affect thousands of people, who need help not by the individual remedy of a pardon but by systemic reform. Nor does he appear to understand why players would protest for a cause disconnected to individuals that they know and care about.

• The players are protesting systemic racism, violence, and differential treatment in the criminal-justice system This includes police killing unarmed or non-threatening persons of color with impunity. How does a pardon affect that? Walter Scott is dead, so a pardon does not do him much good. Of course, one of the President's pardons was granted to Joe Arpaio, who was convicted of contempt of court for refusing court orders to stop discriminating and using unjustified violence in his role as a police officer.This President is more likely to pardon Michael Slager, the officer who shot and killed Scott and is serving a federal prison sentence on a civil rights charge.

• Most law enforcement, and so most of what the players are protesting, involves state and local police and the state criminal-justice system. The President can pardon federal crimes, not state crimes. So even if Colin Kaepernick had ten friends wrongfully convicted, Trump could not do a thing about it. So this is demagoguery--an empty and impossible gesture, used to fool the unaware into siding with him against a group and message to which he is opposed. Or the President is unaware of the limits of his pardon power.

Posted by Howard Wasserman on June 8, 2018 at 04:05 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (15)

Wednesday, June 06, 2018

The White House defines free speech

When asked how President Trump reconciled his belief that a baker has a free-speech right not to sell a cake for a same-sex wedding with his insistence that there is no free-speech right to kneel (or just stay in a different location), Sarah Huckabee Sanders said: "The president doesn’t think this is an issue simply of free speech. He thinks it’s about respecting the men and women of our military; it’s about respecting our national anthem.”

Someone opposed to the position of the baker in Masterpiece could say something similar: "It isn't simply an issue of the baker's free speech. It's about respecting same-sex couples who wish to get married and to shop in the marketplace on the same terms as everyone else; it's about respecting equality." Sanders, on behalf of the President, is really saying there is no such thing as free speech. Speech should be stopped when the President agrees with the message being criticized (the flag and the power of police to use whatever force they deem necessary), while speech should be allowed when the President disagrees with the message being criticized (equal rights for same-sex couples).

That one's position on free speech depends on what is on the other side is not surprising; many people approach the First Amendment this way. It is disturbing when it becomes the official position of the White House, as opposed to the position of a bunch of college students.

Next Thursday, June 14, marks the 75th anniversary of West Virginia Bd. v. Barnette. It is ironic and troubling that the principle that a person cannot be compelled to utter patriotic tropes or engage in patriotic rituals is again up for grabs, as the rhetoric around this heats up and makes this into a significant free-speech controversy.

Posted by Howard Wasserman on June 6, 2018 at 08:11 AM in First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (8)

Tuesday, June 05, 2018

Another voice against replay

I could not make this argument better than Will Leitch does at New York Mag. I only would add that the failure of replay in sports to produce Objective Truth reflects the general failure of all video (say, from body cameras) to produce Objective Truth for all things.

Posted by Howard Wasserman on June 5, 2018 at 11:00 PM in Howard Wasserman, Law and Politics, Sports | Permalink | Comments (0)

Another day, another NFL protest

Two new items for today. President Trump canceled the Philadelphia Eagles White House visit, amid reports that fewer than ten players were going to show. Nikolas Bowie (about to begin teaching at Harvard) argues at Slate that NFL rules banning player protests violate several state constitutions.

On the Eagles visit. I found it interesting that the press release said that the Eagles "disagree with their President" (emphasis mine) about anthem protests. I know it is folly to parse White Statements, but "their" hints to me of some Dear Leader stuff--I am your President and how dare you disagree with your President (whatever that disagreement may be). The team visit is being replaced with a rally at which the anthem (the words of which Trump almost certainly does not know) will be proudly played for the 1000 fans who planned to attend. The question is how many of those 1000 will still show if the team--the reason most of them wanted to attend--will not be there. Congressional Democrats invited the team to the Capitol, with promises of Wawa coffee.

The President later tweeted, in response to the new NFL protest policy that has not been implemented yet (and had nothing to do with the Eagles visit) that "[s]taying in the Locker Room for the playing of our National Anthem is as disrespectful to our country as kneeling." This supports my point that players wishing to protest can make a statement by staying off the field, if in sufficient numbers or with sufficient coverage. This also should drive home to the league and the teams that appeasement does not work and only makes them look worse. The league forced through a compromise that the players (and some owners) hated and that did not achieve the one thing they wanted to achieve, pacifying the President.

By the way, at SEALS on Thursday, August 9, I will be moderating a discussion group on the NFL protests.

Posted by Howard Wasserman on June 5, 2018 at 08:18 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (1)

Tuesday, May 29, 2018

NFL protests in African-American historical perspective

Chad Williams, a professor of African Studies at Brandeis, places the NFL's efforts to halt player protests in the historical context of patri0tism during World War I, particularly W.E.B. DuBois' 1918 call for African-Americans to "close ranks" during the War and not to air African-Americans' "special grievances." DuBois' efforts backfired, as the period during and after WW I was marked by an increase in racial violence and lynchings. Williams argues that the NFL is attempt to enforce the same form of "love-it-or-leave-it" patriotism on its players.

I wonder if staying in the locker room, which the new league rules allow, could become an effective form of protest. There are many ways to counter-speak to a symbol or ritual, including by absenting oneself from the ritual; players can be conspicuous by their absence from the sideline, with that absence expressing something.   The key will be the media--do the broadcast cameras, reporters, or some other sources report on who is absent so it becomes known and public? Or is the protest hidden and unknown, protesters pushed to dark corners?

Posted by Howard Wasserman on May 29, 2018 at 11:39 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)

Wednesday, May 23, 2018

Irony can be pretty ironic

Does anyone recognize the tragic irony that the Milwaukee Police Department released this (and got this response from the Milwaukee Bucks) on the same day the NFL announced this.

Posted by Howard Wasserman on May 23, 2018 at 08:45 PM in Constitutional thoughts, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (4)

Thursday, February 01, 2018

State-created danger in the Nassar case?

Two stories from Deadspin describe the mistakes by the police department in Meridian, Michigan, who received a sexual-abuse complaint against Larry Nassar in 2004, but dropped it (without referring it to prosecutors). Apparently, detectives were convinced by a PowerPoint presentation from Nassar about how what he was doing was a legitimate medical procedure to deal with Scoliosis. No one in the police department conferred with a medical expert to confirm what Nassar told them.

So, could one of Nassar's post-2004 victims make out a due process claim against the Meridian PD and these detectives? Perhaps on a state-created danger, that the police increased the danger to other athletes by not doing a competent investigation and perhaps implicitly suggesting to Nassar that he can get away with this. Or perhaps on an equal protection theory, that they did an incompetent investigation because they did not take sexual-assault against teenage girls seriously.

Posted by Howard Wasserman on February 1, 2018 at 06:49 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (3)

Wednesday, October 25, 2017

Jews and the 2017 World Series

Some off-the-cuff baseball history.

The 2017 World Series features Jewish players on both teams--Alex Bregman for the Astros and Joc Pederson for the Dodgers. According to Bob Wechsler, author of The Jewish Baseball Card Book, this is the first two-Jew Series since 2004 (Gabe Kapler for the Red Sox and Jason Marquis for the Cardinals); the second since 1959 (when Sandy Koufax played for the Dodgers); and the fifth in history (the other two involved Hank Greenberg in 1945 and 1940).

In Game 2 this evening, Bregman is the Astros regular third baseman, while Pederson will start in left for the Dodgers. This is, as far as I can tell, the first time that both teams have started a Jewish player in a World Series game. Kapler did not start against Marquis in Game 4 in 2004, nor did the Jewish players playing against Koufax and Greenberg.

Bregman homered last night for the Astros' only run. I am trying to figure out who was the last Jewish player to homer in a Series. Greenberg hit 2 in 1945. I cannot find any homers since then. Who am I missing and when?

[Update: Naturally, we need a Halachic ruling on the last point: Steve Yeager, the Dodgers catcher in the '70s and early '80s, hit 2 homers in the '77 Series and 2 in the '81 Series (in which he won MVP), but converted to Judaism only after he retired. So he is Jewish, but was not when he hit those 4 homers. Do these count as World Series homers by a Jewish player?]

[Further Update: Pederson homered for the Dodgers’ first run of Game 2, making this the first Series with home runs by multiple Jewish players.]

[One More Update: According to Ron Kaplan, the only Jewish player to homer in the Series between Greenberg in 1945 and Bregman and Pederson this year (if you do not count Yeager) was Ken Holtzman, a pitcher for the A's, who homered in Game 2 of the '74 Series (in researching this by going through a list of Jewish players and their career stats, I did not think to look at any pitchers).]

Posted by Howard Wasserman on October 25, 2017 at 05:11 PM in Howard Wasserman, Sports | Permalink | Comments (5)

Tuesday, October 17, 2017

NFLPA victim of drive-by jurisdictional ruling

The Fifth Circuit last week reversed a district court order enjoining the NFL from carrying out the six-game suspension of Dallas Cowboy running back Ezekiel Elliott because of a domestic-violence incident. I saw the story, but assumed that the court of appeals had reversed for the usual reasons that courts of appeals reverse in these sports cases--the district court had been insufficiently deferential to the arbitrator decision (see, e.g., Tom Brady and Deflategate). And because I do not write on those issues and because I do not like or watch football anymore (and my antipathy for the sport and the league grows), I did not write anything on it.

But a reaction paper from one of my Fed Courts students revealed that the Fifth Circuit issued the dreaded drive-by jurisdictional ruling. A 2-1 divided court held that the district court lacked jurisdiction because the Elliott and the NFLPA had not exhausted CBA grievance processes, which placed a claim for relief "beyond 'judicial review.'" The court stated that Arbaugh, Henderson, and other recent jurisdictionality decisions did not change SCOTUS or Fifth Circuit precedent treating exhaustion as jurisdictional in the labor context. Judge Graves dissented, arguing that jurisdiction was established when a plaintiff claims a violation of a contract between an employer and a labor organization and that the grievance procedures appeared in the CBA, not the LMRA.

Under Scott Dodson's theory (and I think Scott cracked the problem of defining jurisdiction in a principled way),exhaustion is jurisdictional, because it measures when a case can enter a court or move to a court from another body (such as an arbitration panel). But the Fifth Circuit is descriptively wrong under recent decisions and the direction of the doctrine. Very little is jurisdictional anymore, especially when it does not appear in a statute. The "beyond judicial review" language (drawn from a 1967 SCOTUS case) is the sort of loose, figurative language that SCOTUS had used and attached jurisdictional labels, without thinking through the logic or consequences of the label; this is the language Justice Ginsburg had in mind when she introduced, and argued for limiting the effect of, drive-by jurisdictional rulings. And statutory exhaustion (as under Title VII) is not jurisdictional; it seems inconceivable that a statutory requirement would not limit the court's jurisdiction, but a private contractual obligation, not required by any statute, could strip a court of its structural adjudicative authority.

The question is what happens next. Elliott's first game of the suspension is next Sunday. The NFLPA has asked the Fifth Circuit for en banc review and also sought its own TRO in the Southern District of New York (where the NFL offices are located). The jurisdictional basis for the ruling was wrong, but that does not mean that the court of appeals was wrong that Elliott failed to exhaust his contractual remedies and that the injunction should not have issued. Elliott and the NFLPA may have properly lost, just on 12(b)(6) rather than 12(b)(1) grounds.

Posted by Howard Wasserman on October 17, 2017 at 01:10 PM in Civil Procedure, Howard Wasserman, Sports | Permalink | Comments (1)

Saturday, October 07, 2017

Barnette and flag-related speech

Video in this post shows a female fan at last night's Lakers game (played in Ontario, CA) throwing a drink and swearing at two fans who knelt during the Star Spangled Banner. As John Q. Barrett pointed out last week, next year is the 75th anniversary of West Virginia Bd. of Educ. v. Barnette, a high point of First Amendment jurisprudence.

But Barnette's legacy has split in unfortunate ways. Barnette stands for the prohibition on compelled expression, an idea that is popular and thriving, expanding to all manner of expression and expressive conduct, such as baking cakes. But Barnette also stands for a prohibition on compelled participation in flag-related ceremonies, which carries with it the right to express one's own message through that non-participation. The actions described above and the general public reaction to and controversy over the anthem at sporting events shows broad public rejection of that piece of Barnette. The public seems less accepting and tolerant of flag counter-speech, derived from Barnette, now than it was 13 years ago, when I wrote this in the early days of Iraq War. And recall that several Justices changed their minds on this issue from Gobitis to Barnette in part because of the violence directed against Jehovah's Witnesses following the first decision; the shift to protecting the right to opt-out was designed to protect dissenters.

We are organizing a symposium at FIU on Barnette's 75th anniversary for next fall. The seeming demise of this part of Barnette could be an important point of discussion.

Posted by Howard Wasserman on October 7, 2017 at 12:00 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (1)

Friday, August 18, 2017

Trick plays and baseball rules

This is a great story about a trick play in a high-school baseball game. Called the "skunk in the outfield," the play arises with runners on first-and-third. The runner on first walks into right field, hoping to confuse the defense into doing something stupid about that runner, allowing the runner on third to score. It did not work, because the defense kept its cool. It instead produce a 152-second standoff, an ongoing "play" on which nothing happened and no one moved--one fielder stood with the ball and stared at the runner standing in right field. And everyone--players and fans--became increasingly angry.

Posted by Howard Wasserman on August 18, 2017 at 10:44 PM in Howard Wasserman, Sports | Permalink | Comments (1)

Saturday, July 22, 2017

Update on late-game fouling and the "Elam Ending"

In April I wrote about the proposal from Nick Elam to eliminate late-game fouling basketball by making the end of the game untimed and playing to a target score (+7 of the leading team when the clock is turned off in the final minute). The Basketball Tournament implemented the Elam Ending for its 16-team pre-tournament; it now reports on the results--there was no late-game fouling, some exciting comebacks, and the final time time lasted between two and five minutes of game time.

Posted by Howard Wasserman on July 22, 2017 at 04:13 PM in Howard Wasserman, Sports | Permalink | Comments (11)

Wednesday, June 21, 2017

Beckman v. Chicago Bears

Russell Beckman is a Green Bay Packers fan who holds season tickets with the Chicago Bears only so he can attend the Bears-Packers game. Season-ticket holders earn points allowing them to purchase "experiences," including going onto the field during pre-game warmups. But the Bears prohibit these fans from going onto the field in the opposing team's gear; they would not let Beckman participate during the Bears-Packers game last season, and, he alleges, will not let him do it at the game next season. Beckman has sued the Bears, alleging that the no-opposing-team-gear rule violates the First Amendment and seeking an injunction against enforcement of the policy. Beckman is appearing pro se (he and I exchanged emails about the situation a few weeks ago).

The Bears play at Soldier Field, which is owned by the Chicago Parks District and rented to the team for its use. That, I believe, raises the possibility the Bears act under color. If the case involved the Bears stopping fans from wearing opposing-team gear in the stands, this would be an easy case, with the Bears subject to Burton's symbiotic relationship test, just as the New York Yankees were at the old Stadium. But I have been reluctant to say that teams playing in publicly owned arenas act under color for all purposes, as opposed to for the limited purposes of operating expressive fora (the stands, press access, etc.). A team should retain leeway in its organization and operations, including its interactions with customers. Playing at a publicly owned arena would not stop the Bears from being viewpoint-discriminatory in, for example, deciding what people could wear or who could attend a Lake Michigan cruise for ticket holders. The question is where the playing field (ordinarily not part of the expressive forum) falls on the spectrum. I am not sure I know the answer to that question.

Interestingly, the Yankee Stadium lawsuit was brought by the NYCLU in conjunction with NYU's Civil Rights Clinic. It is surprising (telling?) that neither the Illinois ACLU nor a Chicago-based clinic would take this on. Did Beckman never ask around? Does it say something about how that state-action question will be resolved when we move from the stands to the field?

Or are Green Bay Packers fans less popular in Chicagoland than Nazis?

Posted by Howard Wasserman on June 21, 2017 at 11:58 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)

Monday, May 22, 2017

Baseball rules--collect them all, trade them with your friends

For my recent birthday, my wife and daughter got me a baseball card for the Infield Fly Rule. The card, from 1978, features a picture of an infielder (for you fans of late-'70s baseball, it is Jerry Remy, then of the Angels, later the Red Sox) sitting under a fly ball with an umpire (decked out in very-1970s umpire gear and the old league-specific hat) standing in the background, although he has not yet signaled infield fly. The back of the card explains and defends the rule as "Unique and Necessary."

It turns out to have been part of a series of cards produced by the company Sportscaster from 1977-79 on "The Rules." The cards featured a photo of player in action, with an explanation of the rule or play on the back. According to this list, there were cards for Interference, the Hidden-Ball Trick, Pickoff, Rundown, and other plays and rules. I was in the heart of my baseball-card collecting phase in this period, so I am disappointed that I did not know about these at the time. I was fascinated by the Infield Fly Rule even then.

Posted by Howard Wasserman on May 22, 2017 at 09:31 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Sunday, May 21, 2017

Are esports sport?

It has been awhile since I wrote on the bar debate over what is and is not sport. Now Gizmodo asks the question about esports.

My preferred definition of sport has four elements: 1) Large motor skills; 2) Simple machines; 3) Competition; and 4) Outcome determined by success in performing skills to achieve some other instrumental end, rather than for the virtue of the skill itself. On that definition, esports fail on # 1--operating a game console involves fine rather than large motor skills.  I also would question # 2--the competitors small-motor physical actions do not do all the work--it is the complex machine translating those physical actions into something bigger on the screen. So while esports do require "training, endurance, mental focus, and, yes, physical precision," the physical precision is of the wrong type and works too indirectly.

The comments are interesting in that several people have argued "not a sport" based on a definition that requires direct interaction between competitors and the possibility of one competitor thwarting another.

Posted by Howard Wasserman on May 21, 2017 at 07:26 AM in Howard Wasserman, Sports | Permalink | Comments (6)

Wednesday, May 03, 2017

Infield fly rule is not in effect and it produces a triple play

The Baltimore Orioles turned a triple play against the Boston Red Sox Tuesday night (video in link) on an unintentionally uncaught fly ball into shallow left field. With first-and-second/none-out, the batter hit a fly ball into shallow left. O's shortstop J.J. Hardy moved onto the grass and signaled that he had the ball, then had it carry a few feet behind him. But the umpire never called infield fly, so Hardy threw to second baseman Jonathan Schoop, who tagged the runner standing near second, then stepped on second to force the runner on first, then threw to first to get the batter, who stopped running. According to the article linked above, the Orioles turned an identical triple play in 2000, where the shortstop intentionally did not catch the fly ball, as opposed to this one, where it seems Hardy misjudged the ball.

On one hand, this play shows why we have the Infield Fly Rule--without it, shortstops would intentionally do this constantly and double plays would multiply. Had the baserunners tried to advance when the ball landed, they would have been thrown out, given how shallow the ball was and how quickly Hardy recovered it.

At the same, it shows a problem with the Rule--everything depends on the umpire invoking. And failing to invoke may create its own problems. Here, the Sox players all assumed the Rule had been invoked, so the baserunners retreated to their current bases and the batter, assuming he was out on the call, stopped running to first.  It is a close question whether infield fly should have been called on this play. Hardy misjudged the ball, so he was not actually "settled comfortably underneath it." But he acted as if he was and umpires ordinarily use the fielder as their guide. Plus, in watching every infield-fly call for six seasons, I have seen it invoked on numerous similar balls that carried just over the the head or away from the settled fielder. At the very least, this was a play on which the umpire could not determine whether to invoke until the end of the play, because it was not clear the ball was not playable until it carried over Hardy's head at the last instant. And that hung the runners up, because once the non-call was clear, it was too late for them.

So I must consider a new issue that I had not considered before, at least in these terms: There needs to be a bias in favor of invoking the rule in uncertain or close cases. The presumptive move for the baserunners in a close case is to retreat and wait, as the Sox runners did here. But retreating leads to the double play on the close case, because the runners will not be able to reach the next bases when the ball lands. I have discussed this in terms of false positives and false negatives. But this goes further--there may almost be a presumption of infield fly, so the rule should not be invoked except the obvious cases in which no double play would be possible.

Of course, my interlocutor on the Rule, Judge Andrew Guilford of the Central District of California Central district of Florida, would say this is just proof that we should dump the rule, let the players figure it out for themselves, and not have everyone standing around looking confused while four guys in blue jackets confer.

Update: There is a debate in the umpiring community over when an umpire should invoke the Rule. One school says the call should be made when the ball is at its apex, the other says to wait longer until it is clear the infielder could catch the ball with ordinary effort, even waiting until the ball is almost in the glove. Those who urge invoking when the ball is at its apex point to plays such as this one as the justification--waiting longer than that does not leave the baserunners sufficient time to react and run on the non-call.

Posted by Howard Wasserman on May 3, 2017 at 01:57 PM in Howard Wasserman, Sports | Permalink | Comments (12)

Thursday, April 06, 2017

The solution to late-game fouling?

No one likes late-game intentional fouling in basketball, because it drags out games and produces boring basketball of constant stoppages and endless free throws. On the other hand, there is no way around the strategy, as it reflects the only way that a trailing defensive team can save time and get the ball back.

But it appears Nick Elam, a middle-school principle principal and MENSA member from Dayton, has a solution: In the final three minutes of the NBA game (final four in college), turn off the game clock and play until either team reaches a target score, set at +7 from the leading team's score when the clock is turned off. So if Team A leads 99-91 when the clock goes off, the teams play to 106. Elam has been sending his proposal around to basketball types, some of whom purportedly find it interesting, but too radical to implement just yet. But it is going to be used in the early rounds of The Basketball Tournament, a $2-million 64-team tournment featuring teams of former college players. (Elam is interviewed on the tournament podcast).

The proposal does eliminate any incentive to take fouls at the end of the game, because a trailing team can simply play good defense without having to worry about preserving time on the clock. The only fouls we might see are to stop a three-pointer, although that strategy is so time-sensitive (it only works under :04 or so) that it might dissolve on its own. Eliminating the game clock somewhat changes the nature of the game somewhat, which is played in a rhythm of time, but not as much as soccer shoot-outs or college football overtime. And the shot clock remains, so there still is a time element to keep possessions and the game moving.

The proposal may not succeed in shortening games and might lengthen them--not because the clock is stopping constantly, but because teams are not scoring. This will be especially true in close playoff games, where the defense ratchets up in the final minutes. For example, at the 3:00 mark of Game 7 of the 2016 NBA Finals, the score was 89-89, meaning the game would have been played to 96. The final score was 93-89, and one of those points came on a made free throw off an intentional foul with :10 left. The defense was that good and the players were that tired (this included LeBron James's block of a fast-break layup).

On the other hand, perhaps offenses would be freer to look for the best shot at anytime, no longer worried about any time considerations. Teams now get as many possessions as it takes to score the requisite points, so they need not save or waste time. Back to Game 7: After Cleveland's Kyrie Irving hit a go-ahead 3 with :53 left, Golden State used almost the entire shot clock to get Steph Curry isolated on a weak defender, who forced Curry to miss a three-pointer. But Golden State does not need a three in that situation; it can get a better two-point shot, knowing that, if it plays good defense, it will have a greater number of possessions and opportunities to score.

Posted by Howard Wasserman on April 6, 2017 at 09:37 AM in Howard Wasserman, Sports | Permalink | Comments (21)

Tuesday, February 28, 2017

Rugby and the Infield Fly Rule?

I do not understand rugby well enough (really, at all) to fully analyze or deconstruct this play that has many people up in arms. But it raises the question of a limiting rule for that sport, a la the Infield Fly Rule in baseball.

As I understand it: When a player is tackled, the tackler must let go and move away from the tackled player, while the tackled player gives up possession by trying to play the ball back to his teammate. The players nearby will then try to stand over the ball to gain possession. When that happens, a "ruck" is formed; groups of players from both teams stand and push each other, trying to heel the ball back out of the ruck or allow a teammate to reach in and pull it out. When the ruck forms, teams must get onside, so everyone not in the ruck must be back and between the ruck and the goal they are defending.

In a game between England and Italy (video in link), Italy, for strategic reasons, never formed a ruck after tackling an English player. The Italian players backed away and let England keep possession. But this also meant that Italy's players did not have to get onside on the other side because there was no ruck--they could wait behind the ball, in the area to which an English ball carrier wanted to pass the ball (the ball only can be passed laterally or backwards in rugby). It took England a while to adjust to the strategy and allowed underdog Italy to stay in the game for awhile. At one point in the Deadspin video, an English player asks the referee what they should do and the ref responds that he is not the coach and they should figure it out. This is all lawful (there is not obligation to form a ruck), but the English coach complained that it is "not rugby."

But does it demand a limiting rule a la the Infield Fly? Based on my limited understanding of how rugby works, I think the answer is no.

First, Italy does appear to be acting contrary to ordinary athletic expectations within the game. Teams ordinarily want to form a ruck because that is the way to get the ball back and the only way to score points, which is the goal of the game.

But the second and third prongs suggest no special rule is necessary. This is not a one-sided, extraordinarily disparate cost-benefit exchange. Rather, both teams are gain something and surrender something on the play: England retains possession, although facing a confusing defensive situation; Italy surrenders possession, but keeps itself in a better defensive posture. Relatedly, England is not powerless to counter the strategy, as shown in the second half. Teams can find a way to get someone open to pass backward. Teams also can kick the ball forward, which they might be better able to do, since so many defenders are now behind the ball. Given the absence of these two prongs, this is not a situation, like the infield-fly, in which the equities of the game demand a rule change.

Instead, this seems to be another example (along with responses to hacking in the NBA) of an aesthetic concern--that deploying this strategy is not playing the game the "right way." Or not playing the game at all, if you believe England's coach that this is not rugby. Sports will enact rules to limit strategy for aesthetic reasons, even if not necessary to maintain cost-benefit balance and equity.

Posted by Howard Wasserman on February 28, 2017 at 02:01 PM in Howard Wasserman, Sports | Permalink | Comments (5)

Wednesday, February 22, 2017

Intentional walks and limiting rules

Major League Baseball announced agreement on a rule change under which intentional walks will now require only a signal from the dugout, rather than the pitcher intentionally throwing four pitches wide of the plate and the catcher's box. The goal is to shorten games, although given how infrequent intentional walks are (one every 2.6 games last season), the effect will be minimal.

Intentional walks are one of the plays cited by critics of the Infield Fly Rule as an analogous play, with one team intentionally acting contrary to the game's ordinary expectations. My response has been twofold: 1) The cost-benefit imbalance is not one-sided and not disparate, as both teams incur costs and receive benefits (the batting team gets the benefit of a baserunner, at the cost of not having a good hitter bat, while the fielding team incurs the cost of a baserunner with the benefit of a more favorable batter and base-out situation), and 2) the batting team could counter the strategy by declining the intentional walk and trying to get a hit by swinging at pitches out of the strike zone (or if the pitcher mistakenly leaves a pitch too close to the plate).

The rule change eliminates the second piece--the batting team can do nothing to prevent the intentional walk. Nevertheless, because the play involves an equitable cost-benefit exchange, it is not analogous to the infield-fly situation and thus does not warrant a limiting rule (or undermine the existence of the Infield Fly Rule).

Update: This, on everything wrong with the rule change.

Posted by Howard Wasserman on February 22, 2017 at 08:38 AM in Howard Wasserman, Sports | Permalink | Comments (10)

Friday, February 17, 2017

Liberal sportswriting

The Ringer's Bryan Curtis has a great piece describing the evolution of sportswriting into a liberal profession and sportswriters into a group of liberal professionals. I have thought about this in connection with athlete speech and political activism. If you go back to what many regard as the heyday of athlete activism, especially black athlete activism (the mid-'60s through early '70s, with Ali, Flood, Brown, Carlos, Smith, etc.), the opinions of sportswriters ran overwhelmingly and angrily against the athletes. Perhaps to a greater degree than Curtis describes in the piece. Worth a read

Posted by Howard Wasserman on February 17, 2017 at 09:31 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)

Tuesday, January 17, 2017

Antitrust or corporate speech?

Is this supposed plan among San Diego-area (and possibly Los Angeles-based) moving companies not to take any jobs related to the Chargers move to L.A. an antitrust violation? I know consumer boycotts are protected free-speech. But isn't an agreement among members of an industry not to engage in certain business behavior the anti-competitive collusion the antitrust laws prohibit? Is it different if the collusion is for expressive purposes? And if so, wouldn't that swallow the antitrust laws, because companies always would argue that their business decisions were driven by political concerns?

Besides what better captures the sadness of a franchise relocation?

Images

 

Posted by Howard Wasserman on January 17, 2017 at 08:34 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (3)

Tuesday, December 20, 2016

A student-athlete tries the First Amendment

Noriana Radwan was a freshman soccer player at UConn in 2014, when she was seen flipping-off an ESPN camera during the team's on-field celebration after winning the conference championship. She was suspended indefinitely and stripped of her scholarship, then transferred to Hofstra. Radwan has sued UConn and the responsible officials in federal court. Her primary focus is equal protection and Title IX, alleging that male athletes have done worse and been reinstated). But Count IV claims a violation of the First Amendment, stating that her conduct was "offensive and inappropriate," but still protected speech by a private citizen on a matter of public concern.

It could be worth following the First Amendment piece.

 

Posted by Howard Wasserman on December 20, 2016 at 08:29 PM in Civil Procedure, First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)

Friday, December 16, 2016

And now Princeton swimming (Updates)

It is becoming increasingly easy for someone to win the Ivy League title in various men's non-revenue sports, because there are not going to be any more teams to compete against. Harvard men's soccer had its season canceled and its cross-country team placed on probation, and Columbia's wrestling team had a game canceled. And now Princeton's men's swimming and diving had its season suspended, pending an investigation into emails and other materials on the team listserv that were "vulgar and offensive, as well as misogynistic and racist in nature."

Princeton's AD explained (and justified) the action on the ground that "[w]e make clear to all of our student-athletes that they represent Princeton University at all times, on and off the playing surface and in and out of season, and we expect appropriate, respectful conduct from them at all times." The suspicion in these student-athlete cases, including among those who might be inclined to challenge such actions, is that student-athletes are like employees speaking as employees, with virtually non-existent free-speech rights under Garcetti. The Princeton statement reflects that idea. But no actual employee works under similar constraints, in which he is an employee 24/7/365 and in all contexts. So we again have student-athletes stuck in the worst of all possible worlds--limited in the same ways as employees, but enjoying none of the benefits and protections that true employees receive.

Update: And more: Wash U.'s men's soccer team and Amherst cross country, showing this extends into Division III, as well. The Amherst team apologized.

Further Update:Michael Masinter's comments reveal the problem for the students, which I had forgotten: Employees (assuming student-athletes should be treated as such) enjoy no protection for their private speech. Which may say more about the trouble with the employee-speech doctrine than anything. Or maybe future scouting reports will include a "Go Trump" at the end.

Posted by Howard Wasserman on December 16, 2016 at 12:17 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (4)

Sunday, December 04, 2016

Football rules question

I am a week late to this question about the end of last week's Ravens-Bengals game. Quick reminder: The Ravens lined up to punt from their own 22, with 11 seconds left. The punter took the snap and danced around with the ball, while his teammates committed multiple, blatant holds. The punter finally step out of bounds in the back of the end zone for a safety after time expired. The officials called the holding fouls and awarded the Bengals two points on the safety, but declared the game over, invoking the rule that a half cannot be extended on an offensive hold.

Here's my question: Rule 4, § 8, art. 2(g), on extending a half after time expires, states "if a safety results from a foul during the last play of a half, the score counts. A safety kick is made if requested by the receives."

It seems to apply here--the holding fouls produced a safety (because the punter was in the end zone) on the last play of the game. And the officials announced that the safety was a result of the holds, not the punter stepping out of bounds.

So why wasn't that rule invoked to give the Bengals a chance at a free kick? Why wasn't that rule applicable here?

 

Posted by Howard Wasserman on December 4, 2016 at 02:05 PM in Howard Wasserman, Sports | Permalink | Comments (6)

Wednesday, November 23, 2016

Another random predictor: Ending sports droughts

Returning to random sports-related electoral predictors: It occurred to me that there is a correlation between teams (in all sports) breaking legendarily long championship droughts and Republican electoral success. Consider:

1980: Philadelphia Phillies win their first World Series, becoming the last original/non-expansion team to win a Series. Ronald Reagan wins the presidency, beginning the political regime in which we still find ourselves.

1994: New York Rangers win the Stanley Cup for the first time since 1940, a 54-year drought. Republicans take the Senate and the House (for the first time since 1954) in the Gingrich Revolution.

2004: Boston Red Sox win the World Series for the first time since 1918, an 86-year drought. George W. Bush reelected, surprising many pollsters and commentators.

2010: Chicago Black Hawks win the Stanley Cup for the first time since 1961, a 49-year drought. Republicans reverse most of the Democratic gains of 2006-08, retaking the House, closing the gap in the Senate, and ending Barack Obama's opportunity to achieve anything through the legislative process.

2016: Chicago Cubs win the World Series for the first time since 1908, a 108-year drought. And we know what happens in the election.

This is nothing we could use as a regular predictor, since legendary droughts are not broken that often. And, of course, we have to figure out how long or how much attention must be paid to make a championship drought "legendary." Still, the correlation is interesting.

Can people think of other examples? Are there counter-examples, in which some significant streak was broken and the Democrats achieved electoral success?

Posted by Howard Wasserman on November 23, 2016 at 09:03 PM in Howard Wasserman, Law and Politics, Sports | Permalink | Comments (2)

Saturday, November 19, 2016

2016 Election and random predictors

Apparently it was not only the polls that were fooled in this election. So were the random predictors/correlations, sports-related and otherwise.

1)  The World Series was wrong: A Republican won the presidency despite a National League team winning the Series. This is the first miss of the 21st century. It is now 17/28 overall, 12/18 since the end of World War II.

2) A twist on the World Series connection: In 8 of the years in which the Series winner predicted the election winner, the World Series went seven games. And those represent all 8 times a World Series had gone seven games in a presidential election year prior to 2016. The one time before this year that a Series went the distance without predicting the winner was 1912; that Series went 8 games (one game ended in a tie), with the AL Red Sox winning the Series and Democrat Woodrow Wilson winning the presidency. Seven-game Series are now 8/9 as a predictor.

3) Irony alert: The first World Series played in a presidential election year was 1908 (the World Series began in 1903, but was not played in 1904), when Republican William Howard Taft was elected. Which, of course, was the last time the Cubs won the World Series before this year. So we can look at this two ways: 1) When the Cubs win the World Series, a Republican wins the presidency, or 2) the Cubs just screw up the World Series/president connection.

4) The Washington Professional Football team was wrong. The team won its final home game before the election (beating the Eagles on October 16), which usually means the incumbent party retains the White House. This is now 17/20, although it has missed the last two years (the WPF lost its final home game in 2012, but the Democrats retained the White House).

5) Harvard and Yale were right. Yale beat Harvard today, which correlates (ex post, since the game is almost always played after the election is over--2000 was the lone execption) to a Republican president. This is now 21/33 historically, 10/13 since 1968, and 9/10 since 1980.

6) Finally, a semi-sports one: My daughter's Reform Jewish day school went overwhelmingly for Clinton. Looking at the schools attended by her seven basketball teammates (among whom the election was a regular subject of conversation between shooting drills): a Conservative Jewish day school, a public school, and  a secular private school went strongly for Clinton; an Episcopal school went close for Clinton; and two Catholic schools went for Trump. Make what you will of those last bits of information.

Posted by Howard Wasserman on November 19, 2016 at 05:41 PM in Howard Wasserman, Law and Politics, Sports | Permalink | Comments (1)

Sunday, November 13, 2016

ULL suspends four players for caring about the election

I have written a few posts recently about the open questions surrounding the free-speech rights of college athletes. But these cases have generally arisen at private universities (Harvard soccer, Columbia wrestling) that may abide by First Amendment norms as a matter of courtesy, but not law. And those cases involved pretty disgusting instances of racist and misogynist speech that, one could argue  has no value or runs afoul of other considerations (such as Title IX). I disagree with that conclusion, but it at least confounds the analysis.

But the constitutional issue has been teed up directly by the decision of University of Louisiana-Lafayette to suspend four football players after they recorded themselves in the locker room singing and dancing to a song that says "Fuck Donald Trump." Football coach Mark Hudspeth and the university expressed disappointment in the players' "immature behaviors" and the use of lewd language towards one of the candidates. Hudspeth also pointed out that none of the players voted, which has nothing to do with anything. Interestingly, he initially offered a partial defense of his players against those who have "vilified a few 19-year-olds making some immature decisions, and then they were the same ones that voted for someone that has done much worse by grabbing a female in the private areas for the office of the [president of the] United States of America." He backed off that on Friday, saying he regretted offending Trump voters. The school has not identified the four players.

If we are looking for a situation in which punishment triggers a genuine First Amendment claim, this is it. ULL is a public school, so the First Amendment is in play. The players were engaged in core political speech and it is unquestionable that the use of the word fuck and associated gestures as part of a political message is also constitutionally protected. The attempt to frame this as a problem with profane lyrics and gestures, apart from the political message, is unavailing. According to this piece, Hudspeth has made rap music part of the team culture, celebrating a 2011 bowl victory with music blaring in the locker room and having music playing over speakers during practice. And that includes rap songs containing profanity.  So profane rap music is ok, as long as it does not offend a political candidate? It seems to me the First Amendment, if anything, demands precisely the opposite conclusion.

We now are left with the question of whether student-athletes are different than ordinary students because they play for, and represent, the school, making them more like employees. The university statement got at this in its statement when praising Hudspeth for "continu[ing] to educate the team on how their actions are a reflection of the name on the front of their jerseys." This is twisted in two respects. First, a university should be educating players less about the name on the front of their jerseys and more about their opportunities and obligations to be politically engaged citizens. You complain about young people and athletes not being engaged, they you punish them when they are. Second, even if student-athletes are analogous to employees, even public employees enjoy some protection when speaking as citizens on matters of public concern--this would seem to qualify.

This is moot, of course, since it is unlikely the players will challenge their suspensions. Which is too bad, because this looks like a situation in which the school has overstepped, both its role as an athletic institution and as an institution supposedly committed to educating the next generation of citizens.

Posted by Howard Wasserman on November 13, 2016 at 10:42 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (3)

Saturday, November 12, 2016

A post-election thought on athlete speech

This has been a significant year for athlete speech--Colin Kaepernick (joined by several other players) and national-anthem protests, the opening speech by four NBA stars (LeBron, Carmelo, Wade, and Chris Paul) at the ESPY Awards, protests against police violence by several WNBA teams, and everyone taking sides in the presidential election. It is ironic that this occurs in the year Muhammad Ali, one of the most significant activist athletes, passed away.

But reactions to the election results highlight an important qualifier to discussion of speech within sports--different sports feature and express very different political attitudes and ideas. When we think of athlete speech, we must parse it by sport and even role within the sport.

Consider recent comments by coaches in different sports about the election. Two NFL coaches--Bill Belichick of the Patriots and Rex Ryan of the Bills--were high-profile Trump supporters; Trump read a letter of support from Belichick at one of his final rallies on Monday. Meanwhile, three NBA coaches--Stan Van Gundy of the Pistons, Steve Kerr of the Warriors, and Gregg Popovich of the Spurs--reacted angrily to Trump's election. Kerr spoke about the difficulty of talking to his daughters and facing his players in the wake of the misogyny and racism of the campaign. Popovich, a thoughtful and well-read guy, went with empathy--"I'm a rich white guy, and I'm sick to my stomach thinking about it. I can't imagine being a Muslim right now, or a woman, or an African American, a Hispanic, a handicapped person"--and history, stating he feared we have become Rome.

The difference is explicable. The NBA is a "player's league" and is overwhelmingly African-American, so it makes sense that coaches would be more sympathetic to the targets of Trump's rhetorical ire. Meanwhile, football coaches all fancy themselves as George Patton, so their affinity for the authoritarian Trump is understandable.

Along the same lines, there was discussion earlier this fall about the absence of anthem protests in Major League Baseball. Adam Jones of the Orioles explained that baseball is a white sport, with fewer African-American players (8.3 % of players) who are easily replaceable and thus less willing to put themselves in position to get kicked out of the game by taking unpopular stands, especially within the game.

Posted by Howard Wasserman on November 12, 2016 at 05:33 PM in First Amendment, Law and Politics, Sports | Permalink | Comments (4)

Friday, November 04, 2016

Locker room talk

One disappointing thing about the outcome of the Donald Trump/Billy Bush recording is that the Trump/GOP excuse of "it was locker room talk" stuck. I spent a lot of time in locker rooms, including around high-level college basketball coaches and players, in the '80s and '90s (a considerably less-enlightened time); I never heard anything remotely like that. There certainly was discussion, often graphic and crude, of women and sex and the attractiveness of various women. I never heard anything close to someone bragging about doing anything without consent or getting away with doing anything without consent.

All of which is a precursor for saying I am troubled by Harvard's decision to cancel the remainder of its men's soccer season (with the team leading the Ivy League and in line for an NCAA bid) over the team-created "scouting reports" of members of the women's soccer team. According to reports, 1) the original document that surfaced was from 2012 (talking about that year's freshmen, who have since graduated and spoken out about what the players did and said), 2) the current players said they were not doing this anymore and that the first one was an isolated incident, but 3) it turned out this is an ongoing team tradition, including by the current team. So it is not clear whether the decision to suspend the team is because of the report or because they were not forthcoming with the administration (although that might not matter).

Here is the thing: This is what "locker room talk" sounds like. Which is not to defend what they did. It is obnoxious and crude and disrespectful. And (although 21-year-old me probably would not have recognized this in 1989) it contributes to a culture and attitude of inequality between men and women. But such speech is not unlawful and does not (as far as the excerpts I have read) describe doing (or even wanting to do anything) unlawful. It also was not created for wide public consumption, although it was easily publicly discoverable and made available. In other words, the scouting report is, without question, constitutionally protected speech, not the kind of thing that would (or at least should) get regular students in trouble.* And in the absence of wrongdoing beyond general obnoxiousness and the utterance of misogynist ideas, canceling the season seems an extraordinary measure.

[*] Insert usual disclaimer about Harvard being a private institution not bound by the First Amendment and about Harvard possibly having greater latitude over speech by its employees/representatives.

Harvard's response triggers unfortunate comparisons to Duke lacrosse. Duke canceled the 2006 lacrosse season three weeks after the infamous party, although eleven days before any players were charged. Many people believe to this day that Duke was correct in that move. But given that it is beyond dispute that no sexual assault occurred, those who defend the suspension must believe that it was propr was based on nothing more than obnoxious, but entirely lawful, behavior by the players: Hiring an exotic dancer, shouting racial slurs in a verbal altercation (although this was disputed), and one player sending a violently misogynistic story around to his teams via email. In other words, no different than what Harvard has done here.

Posted by Howard Wasserman on November 4, 2016 at 03:37 PM in First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (10)

Thursday, November 03, 2016

Eamus catuli 000000

EamuscatuliThey certainly did not make it easy, in a game in which our supposed strength--our brilliant manager--went horribly awry.

Of course, I am most happy because of what it (hopefully) portends for the presidential election connection--National League winner means Democratic president. So maybe I can stop panicking about that. (Of course, two of the times it has not held since World War II were 1992 and 1996, when an AL team won the Series but a Democrat named Clinton won the presidency). We will see in less than a week.

Meanwhile, I am going to celebrate and order some World Champions stuff.

Posted by Howard Wasserman on November 3, 2016 at 01:15 AM in Howard Wasserman, Law and Politics, Sports | Permalink | Comments (0)

Sunday, October 23, 2016

Five outs to go

I always have liked symmetry and patterns in events, not necessarily for signs but for fun coincidences. One under-reported thing over the years and at the time is that in 2003, the Cubs and Red Sox were each five outs away from meeting in the World Series. The Sox lead the Yankees with one out in eighth inning of Game 7, at which point manager Grady Little left a tiring Pedro Martinez in the game, the Yankees scored three runs to tie the game, and won the game and series in extra inning. The Cubs lead the Marlins with one out in the eighth inning of Game 6 (leading 3-2 in the series), before Bartman, an error on a possible double-play grounder by usually reliable shortstop Alex Gonzalez, and the collapse of pitching cost them that game. They never got closer to the Series than five outs. They then completed the collapse in Game 7, blowing a 5-3 lead. At the time, I though Five Outs to Go would be a great title for a book detailing both games in alternate chapters. The point became moot the following year, when the Red Sox won the World Series for the first time since World War I. Hopefully, it becomes more moot over the next ten days.

Still, I was most nervous last night came when Cub starter Kyle Hendricks got the first out in the eighth, then allowed his second hit of the game. Fortunately, the Cubs brought in closer Aroldis Chapman, who got a double play to end the inning, (finally) getting the Cubs closer than five outs from the Series. It was at that point I turned to my wife and said "Now I can relax."

Posted by Howard Wasserman on October 23, 2016 at 12:06 PM in Howard Wasserman, Sports | Permalink | Comments (1)

Saturday, October 22, 2016

Cubs win! Cubs win! Cubs win! Holy Cow!

That is all.

 

 

Posted by Howard Wasserman on October 22, 2016 at 10:56 PM in Howard Wasserman, Sports | Permalink | Comments (2)

Tuesday, October 18, 2016

How a non-infield fly shows the need for the Infield Fly Rule

During Sunday night's Cubs loss (sigh!) to the Dodgers in Game 2 of the NLCS, the Cubs ended the top of the sixth with a double play. With first-and-second/one-out, the batter broke his bat and hit a soft looping line drive towards Cubs second baseman Javier Baez. Rather than charging to catch the ball on the fly, Baez took two steps backwards, allowing the ball to fall at his feet. He then threw to shortstop Addison Russell covering second to get a force-out on the runner on first, then, after some confusion and hesitation by Russell, he tagged the runner on second heading to third following a rundown. (the play went 4-6-5-6, if you're scoring at home). The video is in the above link.

The Infield Fly Rule was not invoked on the play, properly. The rule by its terms does not apply to line drives and umpires only will invoke it if the ball travels in a parabola with sufficient arc and height. This was a "humpback liner" (a cross between a pop-up and a line drive that stays low, then drops straight down); it can sometimes can be tough to judge, although this ball was obvious, given how low it was.* In fact, the ball was hit so low that Baez played it more like a groundball.

[*] I have been surprised by hearing several knowledgeable commentators complimenting the umpires for wise judgment in not calling infield fly on the line drive, ignoring that this is not a judgment call. The ball plainly was a line drive to which the Rule cannot apply.

The Cubs turned an odd double play on it, in part because other infielders seemed confused. Baez threw to Russell, who initially came across the bag and looked like he would throw to first. It is not clear why he did not follow through--whether the batter was too far up the line (unlikely, given how low the ball was, but it is impossible to tell from any video I have seen) or whether the runner on first was standing in the basepath, blocking the throw (and calling to mind a historic World Series controversy). Alternatively, Russell should not have caught the ball on the base, but instead might have tagged the runner on second before stepping on the base to force the runner on first. And a third alternative would have been for Baez to throw to third base to get the lead runner, then the third baseman to throw to second to complete the double play.

A couple thoughts.

First, line drives are excluded because most are hit too hard and straight, so they will not fall as easily at an infielder's feet. But this play shows that by excluding line drives from the Infield Fly Rule and allowing this type of double play, some unexpected and unfair double plays may arise on just these soft liners. The question is where to strike the balance, based on whether there are more hard liners that travel through the infield if not caught compared with balls like this.

Second, although infield fly was properly not invoked, the play shows why we need that Rule. This double play would be both easier and more common if an infielder could do the same thing on a soft pop-up that would fall at his feet, leaving the baserunners similarly hung up. We see how gently the ball falls to the ground and how easily and slickly a good infielder can scoop the ball off the ground and make the necessary short throw. Without the Infield Fly Rule, we would see infielders making this move on most (if not all) soft, high pop-ups.

Posted by Howard Wasserman on October 18, 2016 at 12:05 AM in Howard Wasserman, Sports | Permalink | Comments (3)

Tuesday, October 11, 2016

Greenberg, Koufax, and Yom Kippur

I have an essay today in Tablet Magazine, When They Were Kings: Greenberg and Koufax Sit on Yom Kippur. The piece compares Sandy Koufax and Hank Greenberg in their respective decisions not to play on Yom Kippur 31 years apart. I argue that Greenberg's decision was especially significant given the different, and more precarious, position of Jews in America and the world in 1934 compared with 1965. The essay elaborates on what I wrote here last Yom Kippur, on the fiftieth anniversary of Koufax sitting out.

Posted by Howard Wasserman on October 11, 2016 at 12:54 PM in Culture, Howard Wasserman, Religion, Sports | Permalink | Comments (0)

Wednesday, August 17, 2016

More sports rules and perverse incentives

Good stories in Slate and NY Mag about the zero-tolerance false-start rules in Olympic track, under which a racer is disqualified if he false-starts. This is the third version of the Olympic rule. Pre-2003, each runner was allowed one false start and was disqualified only on the second. In 2003, the rule was changed to give the entire field one false start, with a DQ imposed on whoever does the second false start. The current rule was enacted in 2010, making this the second Olympic games under that rule; we have seen two DQs this week, although not by any favorites. Usain Bolt wass DQ'd under the rule at the 2011 World Championships, the only Olympic or world championship final he has lost since 2008. French hurdler Wilhem Belocian was DQd earlier this week and was seen falling to the track in tears, but he had qualified seventh out of eight runners.

The 2010 rule change was designed, at least in part, to eliminate perverse incentives. Slower runners would intentionally false start, using up the "freebie" for the field. This forced faster starters and runners to be a bit more cautious, and thus to hesitate just a bit off the blocks, lest they pick up that second false start that would disqualify them. The new rule eliminates the intentional false start by eliminating the benefit, and thus the incentive, for the slower runner to do this.

This sounds a bit like the logic behind the Infield Fly Rule: 1) Runners were gaining a potentially big advantage (slowing down the fast starters/runners) through the intentional false start; 2) The faster runners could not really counter this move, except perhaps by not false-starting following the intentional freebie; 3) slow runners were intentionally acting contrary to expectations (you do not want to false start); and 4) the advantage offered a perverse incentive to the slower runners to intentionally false-start (although not a great one--the trick did not work very often). The second prong is weak--the faster runners could counter the strategy by not false-starting, something they could do more easily than runners can avoid a double play on an uncaught infield fly. But this is an interesting comparable situation that is worth including in my discussion of similarly justified rules in other sports. [Update: On further thought, that second prong is not weak and this is precisely the same as the I/F/R situation. The only way to counter the intentional false start was for the faster runner to slow down his start--but that is precisely what the false-starter wants]

This situation shows the role that aesthetics play in creating sports rules. Rulemakers could have disincentived intentional false starts by returning to the old rule of giving every runner one freebie. But that old rule created problems of multiple false starts by multiple runners, causing long delays, fan boredom, and television overruns. So the new rule, while harsher, is aesthetically favorable to the sport.

Finally, runners and rulemakers have minimized the effect of the harsh rule. All runners slow down their starts a bit to avoid the risk--Bolt, never a fast starter, has slowed his start even more, relying on his remarkable ability to dominate the last 30-40 meters (as he did in winning gold in the 100m this week). And the rulemakers narrowed what qualifies as a false start to exclude flinches and twitches, so a runner false-starts only if his feet leave the starting blocks or his hands leave the track.

Posted by Howard Wasserman on August 17, 2016 at 04:31 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Wednesday, July 13, 2016

NBA changes to stop Hack-a-Shaq

The NBA on Tuesday announced rule changes designed to limit the "Hack-A-Shaq" strategy of intentionally fouling bad free throw shooters away from the ball. Beginning next season, all fouls away from the ball in the final two minutes of every quarter will result in one free throw and the ball out of bounds for the offensive team (this has been the rule for the final two minutes of the fourth quarter). The same rule will apply to fouls on inbounds plays (the new rage was jumping out of bounds to foul the inbounder). And jumping on a player's back during a free throw (a recent development used in the final two minutes) will be deemed a flagrant foul, punishable by one free throw and the ball, plus possible future punishment of the fouling player for repeated violations.

Unfortunately, I am not sure this gets the NBA where it wants to be, because it does nothing to deter Hack-a-Shaq outside the last two minutes of a quarter. Perhaps the league had statistics showing that the strategy was more prevalent in those times. But the rule change does nothing to stop the reductio of the strategy--a January 2016 game in which the Houston Rockets intentionally fouled DeAndre Jordan of the Los Angeles Clippers twelve times in a row (four times, using an end-of-the bench player, to put them in the bonus and eight times to put Jordan on the free throw line) at the beginning of the third quarter. I still believe the better rule would be to give the offense the choice of shooting the free throws or taking the ball out of bounds for off-the-ball fouls. Presumably, teams will choose the latter option for all but their best free throw shooters, thereby eliminating the perverse incentive to intentionally foul, at least away from the ball. But the NBA went a different way, given us temporal, if not complete, relief from this eyesore.

Update: This Deadspin piece makes a fair point: Hack-a-Blank only becomes worthwhile if the hacking team is in the bonus following the fourth foul of the quarter, so that the hacked player would shoot. If a team is otherwise playing good defense and the game is not being called unusually close, that may not happen until 6-8 minutes into the quarter. So the window left for Hack-a-Blank is not the first ten minutes of a quarter, but maybe only a 2-3 minute window before the last two minutes. Teams typically do not do what the Rockets did in the game described above, hacking right from the beginning of the quarter, using an end-of-bench player only to commit a succession of fouls; this is what drew so much attention to that game.

Posted by Howard Wasserman on July 13, 2016 at 12:34 AM in Howard Wasserman, Sports | Permalink | Comments (2)

Friday, July 01, 2016

Against "God Bless America" at ballgames

Aside from the atheism, I could not have said this any better and could not agree more.

Posted by Howard Wasserman on July 1, 2016 at 08:32 PM in Howard Wasserman, Sports | Permalink | Comments (3)

Saturday, June 04, 2016

Muhammad Ali and the Law

Some law-related thoughts following the death of Muhammad Ali.

Ali's direct contribution to U.S. law is the Supreme Court decision (in a case captioned Cassius Marsellus CLAY, Jr. also known as Muhammad Ali) reversing his conviction for refusing Army induction. It was a per curiam opinion, decided on fairly narrow grounds, so nothing that would become canon or significant precedent. Ali had sought a conscientious-objection exemption, which at the time required that the person have a sincere, religiously grounded objection to war in any form. Although a hearing officer found all three elements satisfied and recommended to the Appeal Board that his status be recognized, the Department of Justice wrote a letter to the Board recommending rejection of status, based on DOJ's purported findings that Ali failed to satisfy any of the three elements. The Appeal Board denied c/o status, disregarding the hearing officer's recommendation and without explanation, although the only other available basis was the DOJ letter. Before the Court, however, the government conceded that Ali's objection was sincere and religiously based. That brought the case within precedent holding that when the basis for a selection-service (or any other government) decision is uncertain but some possible bases are unlawful or erroneous, the entire decision must be vitiated. Rather than speculating whether the Board might have relied on the one remaining basis (the objection not being to war in any form), the Court rejected the Board's decision in toto and reversed the conviction. Justice Douglas concurred; he argued that the evidence showed Ali objected to all but Islamic war against nonbelievers, a "matter of conscience protected by the First Amendment which Congress has no power to qualify or dilute" by limiting c/o status only to those who object to all war in all forms. Justice Harlan concurred in the result, concluding that the DOJ letter could be read as claiming that Ali's assertion of C/O status was untimely, an error that called for reversal under the same line of cases as the majority relied on. The inside-the-Court workings leading to the decision were the subject of the otherwise-silly Muhammad Ali's Greatest Fight.

Ali is lionized for this stand, often through the modern laments about professional athletes refusing to take political stands or become politically involved the way Muhammad Ali did. But this has always seemed unfair. Ali was not lionized at the time. His actions were unpopular with the press and much of "mainstream" America (which did not like Ali to begin with, regarding him as an uppity loudmouth). The exception was African-Americans and young anti-war activists on college campuses. He was stripped of the heavyweight title and denied a license to fight in any state, most importantly New York (Madison Square Garden remained the center of the boxing world), costing him 3 1/2 years at the prime of his career. Although ultimately vindicated by SCOTUS, it came at tremendous cost to his career. Modern athletes asked to take political stands almost certainly do not face similar exile from their sports. But to normalize Ali* as the expectation for high-profile athletes seems unfair, a burden we do not place on other people, even other famous people, anywhere else in society.

[*] The other person forwarded as the aspiration is Jackie Robinson. But Robinson was somewhat forced to take a stand by circumstance--being the first African-American player in modern baseball made him inherently political. And the abuse Robinson took no doubt took a psychological and physical toll that contributed to him dying at age 53.

Update: Case in point from the Daily News, extolling Ali for "offer[ing] a roadmap for today’s athlete to be an activist," while 1) eliding that in 1967, this columnist almost certainly would have been lining up to excoriate Ali for talking to much and dodging the draft, and 2) perpetuating the idea that the only true activist is the one who sacrifices millions of dollars and the prime of his career, something we ask of no one else.  The Big Lead provides a good critique. At the same time, it understates the point in saying "[t]here are few, if any, athletes who can match Ali’s legacy fighting for social issues. That’s what made him such an important figure." Ali's legacy is, in part, a unique product of circumstances and initially unlawful action by the United States. That is why no one can match it.

Further Update: This Slate piece goes into detail on a lot of these themes, including more background on DOJ's efforts to influence the Appeal Board and on the prosecution, which were influenced by congressional and administration pressure.

Posted by Howard Wasserman on June 4, 2016 at 06:16 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (0)