Tuesday, December 16, 2014

But can I wear my "Fuck the Draft" jacket?

From Judge Susan E. Gash, presiding over the trial of NFL player Aaron Hernandez:

No person wearing clothing, or a button or other object attached to clothing, or carrying an object that displays any Patriots or other NFL team logo, football-related insignia, or words and/or a photograph that relate in any way to this case will be permitted entry to the Fall River Justice Center during any phase of the trial.

Does this seem excessive, especially as it applies not only to the courtroom, but within the entire building? And is it necessary to ban everything related to all of football, not just the Patriots or even just the NFL? Is it really that problematic for jurors to see any and all football-related things?

Posted by Howard Wasserman on December 16, 2014 at 04:48 PM in First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (3)

Sunday, December 07, 2014

Why it's impossible to regulate racist speech

Too often, the people doing the regulating do not (or cannot) get humor and satire. Latest case in point: the English Football Association has brought "charges" against star player Mario Balotelli (who is Italian, of Ghanaian descent) over an Instagram post of the picture "Dont' Be Racist," which talks about how multi-ethnic and non-racist Mario is by reference to all the ethnic stereotypes he embodies.

In my view, it's pretty funny. But the FA says Balotelli violated a prohibition on "abusive and/or insulting and/or improper," aggravated by "reference to ethnic origin and/or color and/or race and/or nationality and/or religion or belief." I posted the picture after the jump. Is it possible to sensibly see this as anything other than joke, reappropriating stereotypes to undermine them? Is this really abusive or insulting? Or is this simply what happens--when you try to regulate words, context inevitably gets lost.

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Posted by Howard Wasserman on December 7, 2014 at 10:31 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (9)

Monday, December 01, 2014

Free speech in the NFL

It will be interesting to see how this plays out. Five St. Louis Rams players walked onto the field in the "Hands Up, Don't Shoot" gesture; the St. Louis Police Officers Association is demanding that the players be disciplined and that the team issue a public apology. The full statement from the association is angry and unprofessional (not to mention loaded with really stupid football puns); it quotes extensively from the organization's business manager, a fired police officer now serving in the state legislature who has been one of the few voices opposing body cameras.

NFL Commissioner Roger Goodell is a coward and a liar. But will be really punish players for core political speech about a local and ongoing matter of public import? (Note: Yes, I know he can punish them; the question is will he and, if he does, how does he explain it away).

One last note: In the statement, the association refers to Darren Wilson (not by name) as the "now-exonerated officer." Is that an appropriate description of the process that was used?

Posted by Howard Wasserman on December 1, 2014 at 07:06 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (8)

Friday, October 24, 2014

The Eleventh Amendment is a pain

This lawsuit, filed today, alleges that the NCAA violates the Fair Labor Standards Act by not paying student-athletes (who, it alleges, are akin to work-study students). Named defendants are the NCAA and every Division I school, many of which are state schools; the suit seeks unpaid wages and an injunction requiring the schools to stop violating the FLSA (meaning that students be paid wages going forward). The problem: States cannot be sued by name under the FLSA, which is a Commerce Clause enactment on which Congress cannot abrogate sovereign immunity. And Ex Parte Young is not available for recovering the unpaid wages, so the plaintiff cannot retrench and sue the president of each state university.

Without even getting into the FLSA merits, this is a case in which the Eleventh Amendment is genuinely a barrier to relief. The plaintiffs' best move is to try to proceed with their claims against the private schools, then hope the Department of Labor will be persuaded by the arguments and will jump into the case.

Posted by Howard Wasserman on October 24, 2014 at 08:36 PM in Civil Procedure, Howard Wasserman, Sports | Permalink | Comments (1)

Thursday, October 16, 2014

In praise of being a white belt

My oldest child is getting ready to test for a black belt in tae kwon do next week, and my other two children are only a few months behind. They started taking classes a few years ago at a school that encourages the whole family to take classes, so I joined them. I was not good. I still am not good, but it's taught me a number of valuable things about teaching that I never would have realized otherwise.

1. Embrace being a white belt. The white belt is the earliest stage of any martial art, the stage of a total beginner. A white belt may be the world's expert in some other field, maybe even in some other martial art, but in this one, and in this school, this person is a beginner. It requires a level of humility and adventure to let yourself be a beginner, especially when you've worked so hard to establish yourself as an expert with authority in a heirarchical field like ours. But there is only room for improvement from beginner-ness. When else is there nothing but up-side, an opportunity to see what you can do and improve on that?

Our students go through something like this when they start law school. I'm sure that you remember what it was like, whether you went straight to law school from undergrad, worked for awhile, or had pursued another degree. You had worked hard to accomplish things, had even felt some level of mastery, maybe, and now, you were starting over. And students seem to fall into two main categories. Some think that everyone else is more accomplished than they are. Others chafe at the failure of others to recognize their brilliance. If we remember some important things about being a beginner, we can help our students through the pain of beginner-ness to also see its virtue and embrace the possibilities--including doing the kinds of work that will make them successful lawyers.

Being a beginner is context specific but also a universal experience. Everyone (except maybe Cass Sunstein, or Chuck Norris) is always right now a beginner at something. And a person can be a beginner at one thing while being a master of another. There is no impact on a person's intelligence or worth to accept being a beginner at something. And just because other people are better at this thing doesn't detract from the things you are an expert in.  In beginner-ness is there is no shame, and only potential.  

2. Practice makes you better, and practice involves failure.

As a beginner, your job is to try something you never have before or do something in a new way. You will fail in some way. But you will learn from the way that you failed and will try something different the next time. And that time, you will fail in a new way. And the process will continue.

Performance of some skill can really only be learned this way, through demonstration, attempts, failures, analysis of the failures, and new attempts. Learning how to be a lawyer is learning to perform a set of skills. Because many people come to law school thinking that they will be only gaining knowledge, i.e. memorizing rules, they aren't prepared for this reality. They don't always realize that they are learning how to perform or how to show they are engaging in the right process. And we are not always clear that the process is what we are teaching them.

3. Perseverence. Being successful means continuing to try and learning from those failures. It sucks to fail in new and exotic ways. But working through that is necessary not just to succeed in law school but to succeed in practice, too. As we are frequently reminded Grit Trumps Talent and IQ when it comes to success.

4. Perspective. In school and in practice, unlike tae kwon do, people aren't always trying to kick you in the head, at least not literally. But even when they are, you've got your equipment and learned how to evade and block those kicks. In addition, you can learn to live with a little bit of anxiety, learn to accept that for what it is and not let it paralyze you. Finally, I have lots of bruises from all of those kicks, bruises that I cover up with long sleeves and pants, so people can't see them. This helps me remember that everybody has bruises that don't show. Some of them are literal, and some are emotional. I have to be careful to recognize the potential of these bruises in my interactions with students, dealing with difficult topics in the law or aspects of their performance in school.

5. It is awesome to kick stuff and break things when you read, talk, and think for a living. Need I say more?

Posted by Marcia L. McCormick on October 16, 2014 at 11:42 AM in Life of Law Schools, Sports, Teaching Law | Permalink | Comments (2)

Monday, October 13, 2014

10 Lists I Read on the Internet That Made Me Feel Stupid

Maybe I'm just still pondering College Magazine's list of "22 Reasons Why Going to Law School is the Best Decision You'll Ever Make", which, unlike anything I've written, got picked up by Huff Post.  All in good fun, sure, though perhaps over-selling the case and understating the seriousness of law school as a financial proposition.  

But I must not be the only person to notice that the internet seems to have been taken over by lists.  There they are at the bottom and sides of the screen on my tablet, just begging to be clicked on as I strain to get up that one last hill on the stationary bike.  Yes, I know, it's all about ads, and getting to put a different ad up after each click on the list.  Still...

It's as if the internets think people can only think in lists.  I'm all for, say, numbered blog posts, to help make it easier for commenters to point out which aspect of my argument they found the most stupid.  But among the problems with these lists is that their authors seem to gravitate towards the number 10, or 12 (unlike our industry's latest booster), but sometimes getting past eight requires adding a few entries that probably didn't belong.

I'll join the fun, though. Here's a list of recent lists I find silly:

 1. 10 Things You Didn't Know You Could Do With Coffee

 I desire only to smell it, drink it, and dream of it.

2. 10 Explanations for Everyday Things Your Body Does

I prefer to think of myself as a being of only thought and light.

3.10 Things You Didn't Know about the Lion King

Don't care what coast animates what character. Still cry every time Mufasa dies.

4. 10 Reasons Why Sunday Will be an Historic Day in Bills History

Seriously, Buffalo has an NFL team?  Huh.

5. 7 Reasons Why Madison, Wisconsin is the Best Place to Live in America

It's so obviously the best place to live in America we didn't even try for 10 reasons.

6. 10 Quotes that Will Transform Your Life (With Explanations)

Holy Mother Goddess, pagans can go on and on and on...

7. 10 Thoughts While Running Long Distances

Odd that "hurts" and "pain" aren't more prominent, or at least "Riggs, I'm getting too old for this ..."

8. 10 Things You Need to Stop Tweeting About

No Tweets about conferences? That's like the most exciting thing we do, dude.

9. Top 10 Songs to Listen to When You're Angry

Back in my day, we used to call this a "mix tape".

10. 10 Things You Didn't Know about Wrestlemania

Guessing Joe Slater knew most of them.

Posted by Geoffrey Rapp on October 13, 2014 at 09:13 AM in Blogging, Information and Technology, Religion, Sports, Web/Tech, Weblogs | Permalink | Comments (4)

Sunday, October 12, 2014

Too old to root?

My wife grew up in Baltimore, so our family is rooting for the Orioles in the ongoing American League Championship Series--as I told a student, I now am an Orioles Fan-in-Law. And it is utterly exhausting to care this much about a team and to so badly want it to win.

So my question: Does there come a point when we are old to root passionately for a team? Mind you, I am not talkng about caring about sports--I regularly watch (and obviously write about) baseball and other sports and it always will remain a pleasure.* I am talking about living and dying with a particular team, the way I did as a kid or even a younger adult. I was catatonic for days after the Cubs blew the 2003 NLCS and my wife understood. But 11 years later, in a series that it does not even really involve "my team," I cannot work up the energy to be sad or worried about losing. And it even is hard for me to watch, because it feels like too much work to care.

    * Although the NFL and I are on a break right now, my response to domestic violence and the gladiatorial nature of the game.

Worse: Maybe the dirty secret is that I am glad and take relief that the Cubs (and, to a lesser extent, Northwestern, my college rooting interest) regularly stink, because it saves me the pain of disappointment when they (inevitably) lose.

Now get off my lawn.

Posted by Howard Wasserman on October 12, 2014 at 11:56 AM in Howard Wasserman, Sports | Permalink | Comments (5)

Wednesday, October 08, 2014

More fan crowd-funding

Fans of Ole Miss stormed the field following the team's win over Alabama (sorry, Paul) last weekend; the acts cost the school about $ 75,000--a $50,000 fine by the conference and about $ 25,000 to replace the goalposts and other damage to the field. Fans crowd-funded the total amount and more in a matter of hours. In our Catalyzing Fans paper, we considered fans raising money to pay an athlete's fine. 

This is an interesting move, although with two important distinctions. First, the fines/costs were the result of the fans' own conduct, so it makes sense for them to pay it. It does not raise the moral hazard problem of fans essentially indemnifying player misconduct; here, they were paying for their own misconduct. Second, the school was involved--fans contacted the athletic department about contributing and the school set-up a special site. But since Ole Miss (as opposed to the Cleveland Cavaliers) is a not-for-profit entity, the direct giving makes sense.

Posted by Howard Wasserman on October 8, 2014 at 03:04 PM in Article Spotlight, Howard Wasserman, Sports | Permalink | Comments (0)

Tuesday, October 07, 2014

The politics of sports

Here is (somewhat lengthy) video of a Ferguson protest outside Busch Stadium in St. Lousi before last night's National League Division Series game between the Cardinals and Dodgers. One fan wears a Cardinals jersey with "I am Darren Wilson" on the back; many fans engage the protesters with some not-unexpected-but-unfortunate racist vitriol.

But this highlights my long-held point that sports and politics are inextricably mixed. The protesters picked an ideal forum: Millions of people watching, thousands of people milling about, and an event that touched on civic pride and heart--all to protest conditions and issues that call some of that pride into question, prompting some reactions that illustrate precisely why that pride should be questioned.

Posted by Howard Wasserman on October 7, 2014 at 12:10 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)

Thursday, October 02, 2014

The drawbacks of heightened expectations

The NFL has been raked over the coals recently for its (mis)handling several incidents of domestic violence by players. In some ways, this seems unfair, in that we seem to be asking the NFL to do more and do better with domestic violence than anyone else. Domestic abuse is a society-wide problem and no other institution--not the judiciary, not universities, not law enforcement--has not shown much more skill in understanding or handling the problem. In any event, why should professional sports leagues play any role (much less a special one) on the subject. It is not clear that there is a higher rate of domestic violence among professional athletes (it may depend on what the comparison is). And one could argue that teams and leagues should not care about players' off-field conduct, just as most employers don't care about what their employees do outside of work.

At another level, though, I wonder if it is fair to hold sports to a higher standard because of their history--a history that sports, leagues, and teams readily promote. Baseball regularly touts that it was ahead of society on integration--Jackie Robinson joined the Dodgers six years before Brown and two months before President Truman desegregated the military. The NBA has financially propped up the WNBA for almost twenty years, allowing for the longest-running professional teams-sports league. Creating athletic opportunities for women and girls is Title IX's most-visible achievement and what makes possible genuinely popular women's sporting events--University of Connecticut basketball, the US Women's National Soccer Team, etc.). NFL Commissioner Roger Goodell has made noise about the NFL being a moral leader; this is laughable (especially with Goodell as its head), but we should be able to take him at his word as to his intent, which means he bears the burden of figuring it out ahead of the curve.

So if sports and leagues have taken the lead in the past on some social issues and if they get much PR mileage out of that past, is it unreasonable to expect them to take the lead on this issue, when they clearly want to be involved? And if they fail so spectacularly, is it unreasonable to criticize them for that failure?

Posted by Howard Wasserman on October 2, 2014 at 09:31 AM in Current Affairs, Howard Wasserman, Sports | Permalink | Comments (1)

Monday, September 22, 2014

Stone on sex discrimination and professional sports

The following is by my colleague (and past GuestPrawf) Kerri Stone, responding to my post on how professional sports teams and leagues respond to sex discrimination.

The internet has most recently been ablaze with news of a lawsuit filed against the New York Mets by an ex-employee who claims that she was chastised and then fired due to her status as an unmarried pregnant woman. On the heels of other notorious stories of discrimination to come out of the sports world this past year, like Donald Sterling’s racist comments, Richie Incognito’s racially tinged bullying of a teammate, and the Atlanta Hawks’ general manager Danny Ferry taking an indefinite leave of absence after coming under fire for his racially-stereotyped comments about a player, this latest story has many clamoring for justice—whatever that will mean in this scenario.

Recently, my colleague, Howard Wasserman, blogged about various incidents of discrimination in the sports world, taking note of their wildly varying upshots and reactions generated. He asked whether we could “find anything resembling consistent and appropriate responses to possibly improper or unlawful employment practices,” and posited that factors that might be in play could include, among others, whether formal, legal action had been initiated, whether it is sexism or racism that is alleged, and whether video or audio recordings of the discriminatory sentiments exist. These observations are astute. I would add that the role of shame in these incidents has become central. Some years ago, I blogged about the role of shame in accomplishing the eradication of discrimination in a way that even the law could not, but I pointed out that the shame has to be public, even viral, in order to move most employers to act. From what we have seen in the sports world as of late, the ability of those involved or even of those who know about the discriminatory sentiments expressed by sports players, managers, and executives to stir up outrage on the part of the public appears to be central to whether or not those in a position to discipline or dismiss these individuals will act.

Title VII prohibits racial, sex-based, and other discrimination in the workplace. It is clear that while the statute’s goal is to eradicate the erosion of individuals’ terms, conditions, or privileges of employment because of discrimination, it is not supposed to function as a general civility code, requiring anyone to change the way they think, feel, or express themselves when that expression is not anchored to workplace-based harassment or deprivation. In other words, as the Supreme Court has put it, “discrimination in the air,” unmoored from some adverse action or campaign of workplace harassment, is not actionable; it is only when discrimination is “brought to the ground and visited upon an employee,” that it becomes something for which we permit legal recovery.

It is interesting, then, that there has been such pressure on sports teams and leagues to undertake voluntarily to do what the law does not require them to do—to distance themselves from those who espouse racist, sexist, or other offensive views. To be sure, if the Mets executive who alleges that she was taunted and fired for being an unwed mom-to-be persuades a trier that these things did, indeed, happen, she will prevail in court. But what about the rest of the outrage? The offenses unaccompanied by legal harm? What if the executive had not been fired and her teasing had not risen to the rather high threshold of intolerability and consistency needed to render it actionable harassment as opposed to mere, permissible incivility? The public needs to understand that the law does not necessarily comport with public sentiment on these issues. “Discrimination in the air” is not actionable.

Moreover, the public needs to appreciate the fact that while high-profile shaming and pressure on professional sports organizations may effectuate the kind of personnel and cultural changes that the law cannot, discrimination—both in the air and grounded upon employees—is rife in all kinds of workplaces. There are no high profile campaigns of shame at a typical truckstop diner or even in a big box store chain. But the same sense of “humor” that allegedly compelled the Mets higher-up to continually joke about the morality of single motherhood or fuels racially stereotyped depictions, contempt, or observations in the upper echelons of the NBA or Major League Baseball also pervades everyday workplaces. And often, employees are either not believed when they report it, or even if they are, it does not matter because the hostility or microaggressions, as they have been termed, are not anchored to an adverse action or part and parcel of actionable harassment. The difference is that in these lower-profile cases, no one cares. The highers-up who harbor these views are often high up enough on the ladder to be valued and thus retained, unscathed, by employers, but anonymous and uncared-about enough to elude public shaming or outcry. The law’s gaps and holes allow us to be selective about how and when we, as a society, can demand justice in the form of the censure or termination of those who express discriminatory, stereotyped, or just plain hateful beliefs, and that selectivity breeds inconsistency and randomness even more dramatic across workplaces than that decried by Professor Wasserman in his sports blog.

Is it time for the law to come into line with the wishes and expectations of society as evinced by the decrying of “discrimination in the air” that we have seen in the media in response to what is going on in professional sports? Or is it the case that if all of those who demand the firing of high profile racists or sexists wouldn't really want the law to require what they are demanding if they thought it through? It is wholly inconsistent for us to say that we demand the ouster of a team coach or manager on the basis of his sentiments unmoored from action, but that we wish for less glamorous, less known, but perhaps as well compensated bosses in the private sector to retain an absolute right to their private dealings and expressions, with no job consequences?

Posted by Howard Wasserman on September 22, 2014 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (0)

Wednesday, September 17, 2014

Fan speech, once again

The ejection of a fan from the park (at the insistence of the umpire) from Atlanta's Turner Field, apparently for profanely heckling an opposing player (the link contains video), could raise some First Amendment problems. The park is apparently owned by the Atlanta Fulton County Recreational Authority, a public entity, and leased to the Braves (no doubt on very favorable terms). Just like in the one case to directly address free speech at a publicly owned ballpark, involving old Yankee Stadium, which was owned by New York City and leased to the team. And as I have written previously, if "Fuck the Draft" is ok in a courthouse, then "You fucking suck" is ok at a publicly owned or operated ballpark. And it does not matter whether the order to remove the fan came from team officials or the umpire.

I hope a lawsuit is coming.

Posted by Howard Wasserman on September 17, 2014 at 04:59 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (11)

Monday, September 15, 2014

Spot the differences, if you possibly can

Atlanta Hawks GM Danny Ferry used racist stereotypes in evaluating and describing player Luol Deng. The comments were unquestionably tasteless and offensive; they might form the basis for an employment-discrimination action, although Deng did not suffer any harm (he signed with another team and there is no indication he was dying to sign with the Hawks) and courts are often quick to dismiss remarks like these as "stray comments" (as my colleague Kerri Stone has written) The remarks were audio-recorded and written in a report. Ferry has been placed on indefinite leave of absence, basically meaning he's on his way to being fired (likely as part of an ownership change). The team published a public apology to its fans, basically confessing to multiple incidents of racist comments and actions by the team "over a period of years" and its failure to stop or punish them. The league is holding off on punishment, probably because the team took the matter off its hands.

Isiah Thomas engaged in a pattern of sex- and gender-based harassment of a Knicks executive named Anucha Browne Sanders, for which he was found personally liable by a jury; the case settled, following a jury verdict awarding more than $ 10 million in punitive damages. Thomas never lost his job and suffered no team- or league-imposed penalties. The league expressly said it does not get involved with "civil matters," not even civil matters directly affecting the team. The Knicks never publicly apologized for anything or even acknowledged having been found liable.

A former executive with the New York Mets has sued the team and the COO (the principal owner's son) for harassing and then firing her over becoming pregnant and having a child without being married and complaining about the harassment. So far, silence from MLB. The Mets blandly insist that they have policies against harassment and discrimination (which obviously means nothing if those policies are ignored by the owner's son, general counsel, and other team officials, as the complaint alleges).

So can we find anything resembling consistent and appropriate responses to possibly improper or unlawful employment practices? One answer is that mere accusations are insufficient and teams must wait for the civil litigation process to play out. But then neither the non-action by the Knicks against Thomas nor the action by the Hawks against Ferry makes sense. Worse, accepting the facts alleged in each case as true, the Hawks case is probably the least likely of the three to produce legal liability, yet that is the only one in which the team responded. A more cynical answer is teams/leagues will jump to act when it comes to race discrimination involving players, but do not care about sex-based discrimination against non-players. An intermediate explanation is Ferry was captured on audio and the Mets COO wasn't, which just brings us back to the problem that audio and video are overtaking our ability to judge evidence and proof. But that, in turn, says some troubling things about our ability or willingness to rely on judicial processes, not just recordings, to resolve disputes and determine legal rights and wrongs.

Posted by Howard Wasserman on September 15, 2014 at 09:31 AM in Howard Wasserman, Law and Politics, Sports | Permalink | Comments (0)

Monday, June 30, 2014

Catalyzing Miami Heat fans

Catalyzing Fans--the article by Dan, Mike McCann, and me--is forthcoming in Harvard Journal of Sports and Entertainment Law. But its basic idea may be taking root.

LeBron James has opted out of the final year of his contract with the Miami Heat and become a free agent (although he is generally expected to re-sign with the Heat for less money, allowing the team to sign better surrounding players). Just to be sure, the hosts of a show at a Miami sports radio station have announced LeBron-a-Thon, expressing support for James by raising money for Boys & Girls Clubs of Broward County. One of the hosts kicked things off with a $ 1000 donation.

This is an example of what we describe in the paper as a charitable FAC. James is a big supporter of Boys & Girls Club--"The Decision," the ESPN media circus in which James announced his intention to sign with the Heat in 2010, was designed to raise money for that organization. This also shows how easy it is to set something up, although we obviously will have to wait to see if it succeeds in 1) raising significant amounts of money or 2) helping keep James in Miami (causation will be impossible to show, of course). This is slightly different than what we discuss, as there is no trigger--money is donated to the charity regardless of what James does. But this highlights the purely expressive nature of such FAC contributions--fans are saying, in essence, "we appreciate you and so want you as part of our team that we will contribute to a worthy cause that is dear to you." Moreover, the monetary benefit to this reputable charity from fan donations likely represents a net public good, as charity presumptively does, regardless of what James chooses to do.

Now we wait to see what teams beside the Heat emerge as suitors for James and whether fans of those teams launch a similar campaign.

Posted by Howard Wasserman on June 30, 2014 at 09:01 AM in Article Spotlight, Howard Wasserman, Sports | Permalink | Comments (0)

Thursday, June 26, 2014

On soccer

Brishen Rogers has a great, long post at CoOp considering why soccer (or futbol, if you like) never caught on in the United States. He somewhat piggybacks on David Post's VC post from last week.I was always actively antipathetic towards soccer, partly because I did not understand how the overall game worked (beyond "kick the ball in the goal" and "stop using your hands"). I started watching more in recent years, when my daughter took up the game for a few years, and I have to admit to feeling pretty down on Sunday night. I also knew we were not going to beat Germany (although that may be the pessimism that comes with being a Cubs and Northwestern fan).

I like a lot about what Rogers and Post propose; I'll add a few additional points in the gaps.

First, I want to defend the "too little scoring" explanation for soccer's relative unpopularity. The counter to that (which Rogers offers) has always been "look at baseball," which can be just as low-scoring as soccer (especially now that fewer players are juicing). But we need to tweak the comparison by recognizing the differences between soccer and baseball. Even the lowest-scoring baseball game involves a series of one-on-one encounters between pitcher and batter, each of which has a "winner" (batter gets on base or batter is out) and each of which marks a step towards the ultimate result and the ultimate victor in the game; the winner of the game is based on the sum total of those individual encounters. More importantly, baseball is untimed--the point of the game is to score the greatest number of runs within the 27 outs each side is given. So each team has two simultaneous goals--to both score some runs and to get the needed 27 outs in order to win. So we should not say "well, baseball and soccer both have a lot of 2-1 games," because that 2-1 baseball game also had the 27 outs the team needed to win the game resulting from those individual encounters. Relatedly, do not ignore the effect of ties. In baseball, the aggregate of those individual encounters--and getting both runs and outs--is guaranteed to get us to a victor.

If we want to test the "not enough scoring" explanation, the proper comparison is other timed sports, sports in which the only goal is score more points than the other team within a given period of time. And the two major timed U.S. sports--football and basketball-- both involve a lot of scoring.

Second, Post argues that there is "wa-a-a-y too much failure" in soccer and Americans do not like failure. (He adds that the hardest skill in sport is not hitting a baseball, but kicking a soccer ball into the net in a game). Comparisons aside, there still is an awful lot of failure in baseball--the offense fails in more than 75 % of those individual encounters and the greatest individual hitter fails 65 % of the time. Of course, if we focus on the individual encounters in baseball and getting outs as a team's contemporaneous goal, that sense of failure goes away, because we can say the pitcher/defense succeeds in 75 % of those individual encounters.

Third, Americans and American sports media gravitate to individual star players and those stars are more obvious in the big American sports than in soccer because it is easier to see the "star" plays they make. We see LeBron James making shots, we see Peyton Manning throwing touchdown passes, we see Mike Trout hitting home runs or Stephen Strasburg striking people out. And, particularly in basketball, one player makes the difference--in the NBA, the team with the best player in a series generally wins the series. Because we see Lionel Messi score less frequently, we have less of a sense of him as a star making "star plays" (at least plays that produce success). And one star player is less able to dictate soccer outcomes--after all, Portugal's Cristiano Ronaldo is regarded as the best player in the world and his team did not get out of the "Group of Death."

Fourth, I agree with Post about the randomness and caprice involved in soccer. Football, and to a lesser extent basekball, involves precise plays and much less of the free-wheeling running that soccer seems to entail. While all sports involve a bit of luck at the margins, soccer seems to rely on more of it.

Finally, Rogers makes some good cultural and sociological arguments for why America went in the direction of football and basketball rather than soccer. I would add one pont. MLS and professional soccer in this country is said to not be successful because it is not as big as the NBA, NFL, and MLB. But part of the problem has been the insistence on measuring MLS success (monetary and attendance) compared with the sucess of today's other leagues, as opposed to how those leagues looked when they were ten years old.  The NFL was founded in the 1920s (and no one one really cared about it until the 1950s), the NBA in the 1940s; it is ridiculous to measure a nascent soccer league against those mature leagues. In 1925, the early days of modern Major League Baseball, no team had more than 1 million in attendance; in 1955, the midpoint of baseball's so-called Golden Age, only eight teams had more than 1 million in attendance and only one had more than 2 million; in 2013, every team had more than 1 million and eight teams had more than 3 million. So the question should not be if soccer is earning the same attendance or money as the other three leagues; it should be how it is doing for a new sports league. And by most measures, the answer to that question seems to be "quite well."

Posted by Howard Wasserman on June 26, 2014 at 05:47 PM in Current Affairs, Howard Wasserman, Sports | Permalink | Comments (6)

Tuesday, June 24, 2014

The end of umpires?

That is the proposal from John McEnroe to make tennis more interesting--have the players call their own lines, as a way to introduce greater intensity into the game. Players would be given challenges and McEnroe argues that the threat of fan anger would keep players in line. It has been said that back in the day, if the umpire clearly missed a call, the player who benefitted from the blown call would tank the next point as an equalizer (I am not sure if that is true). On surfaces where the ball leaves a mark (notably clay), a player will often point to the spot of the ball to show the opponent before an argument begins.

Continuing my previous suggestion that sports rule as enforced by umpires are analogous to rules of procedure--the framework rules regulating the process in which the players control the outcome through performance of skills: This is the sports equivalent of arbitration; the parties have privatized the dispute-resolution process into something they create and control themselves, perhaps less formally, rather than using formalized "outside" processes and arbiters that they work with but exert less control over. Maybe that means McEnroe's proposal will work about as well as arbitration.

On a different note on McEnroe's suggestion: This video is pretty funny. Latvian Ernests Gulbis is asked about McEnroe's proposal to get rid of umpires; Gulbis misunderstands and thinks the reporter asked about getting rid of vampires and begins to discuss the benefit of getting ride of vampires (in the metaphorical sense of hangers-on).

Posted by Howard Wasserman on June 24, 2014 at 10:37 PM in Civil Procedure, Howard Wasserman, Sports | Permalink | Comments (0)

Saturday, June 14, 2014

The Economics of the Offside Rule

The recently begun World Cup allows us to think about soccer (or football, for those of you reading outside the United States) as a source of laws and rules, as opposed to our usual focus on baseball. Well, for all the complaints about the technicality and incomprehensibility of the Infield Fly Rule, it has absolutely nothing on Offside (Law 11 of Football's 17 Laws). I could not explain the rule in the space of this post, although I think I now sort-of  understand it thanks to the videos embedded after the jump.

Offside (note the singular: people get persnickety if you add an 's' at the end) is soccer's counterpart to the infield fly rule as being what marks you as someone who really knows and understands the game--you know baseball if you can explain the infield fly, you know soccer if you can explain Offside. But is Offside a limiting rule as I have defined that term--is it soccer's logical and policy counterpart to the infield fly? I am not sure.

Offside is an anti-"cherry-picking" rule, preventing teams from having one or more players hang around the goal and doing nothing but kicking long balls up the field pitch. It also prevents the defense from having to keep multiple defenders back by the goal to guard the cherry-picker. The result is to push the action up the field and keep more players involved on both ends. The underlying logic is aesthetics and the look of the game. The rulemakers did not want what one soccer web site called a "ping-pong match" of long kicks back and forth, as opposed to short passes and runs up and through the middle of the pitch. It also avoids what many would regard as "cheap" goals.

But Offside does not seem to be about extreme cost-benefit disparties, as is the IFR. I suppose it would give the offense an advantage--the cherry-picker could  get the ball in position to go one-on-one with the goalkeeper, a big advantage to the offense. Importantly, however, the opponent is not helpless. Absent Law 11, the defense simply counters the cherry-picker by moving a defender back to his area. The opponent also might be able to prevent the long pass to the cherry-picker or otherwise prevent the team from taking advantage of the loitering player. More importantly, the cherry-picker is not intentionally failing to perform the expected athletic skills. The infield fly rule aims at a play in which the infielder might otherwise intentionally not catch the ball (the thing he is expected to do). In being in offside position, a soccer player is trying to succeed as expected--he is trying to score a goal by getting into the best position for himself. (Note: I know little about soccer, so please correct me if I miss anything here).

Lastly, the complexity of the rule likely reflects an attempt to calibrate it and the game. As written, the rule allows for long balls, so long as the player was onside when the pass is made. And it only penalizes if the offside player is involved in the play (itself subject to a detailed definition). Again, check out the videos below if you want to learn.

In Esquire's Father's Day edition, there is an article about fathers and sports, with a sidebar giving the approximate ages that kids typically can do certain sports-related things (e.g., sustain a game of catch--8). The last entry: "Understand the Infield Fly Rule--34." I'm 46--what does that say about Offside?

Now for the videos:

 

Watch this one if you like PowerPoint:

 

 

Watch this one if you like British accents, bad graphics, and cheesy music.

 

Posted by Howard Wasserman on June 14, 2014 at 10:46 AM in Howard Wasserman, Sports | Permalink | Comments (6)

Saturday, May 31, 2014

Donald Sterling v. NBA: Your new Civ Pro exam

Donald Sterling sued the NBA to stop his league-imposed punishment and the forced sale of his team. A $ 2 billion offer from Steve Ballmar was accepted by Sterling's wife, Shelly on behalf of the trust that owns the team, having had Donald declared mentally incompetent; the NBA has approved that deal and canceled a planned hearing of the Board of Governors (the other 29 owners) to strip Donald of ownership. The lawsuit, with Sterling and the trust as plaintiffs against the NBA, asserts claims for a violation of the state constitution, federal antitrust, and various breach of contract claims; it seeks damages and an injunction halting the NBA-imposed punishments (a $ 2.5 million fine and lifetime suspension from the NBA) and the hearing to terminate his ownership.

Oddly, these claims are either not ripe or about to become moot, depending on what happens with the sale. The NBA has not yet held the hearing to terminate his ownership, so he has not yet suffered any damages from it. And since the league will cancel the hearing if the sale goes through, that claim becomes moot. If the sale goes through, expect the league to rescind the fine, mooting that element of relief. It might even lift the lifetime suspension--what involvement will Sterling have with the league if he is no longer an owner?--mooting that claim. And assuming the sale goes through, what damage will Sterling have suffered? Two billion dollars will be more than double the sale price of any NBA franchise and likely more money than he would have earned from continued ownership of the team. So, at best, maybe he can get the non-economic value of being an NBA owner--except he is such a pariah now among NBA owners that it would be hard to put any real value on this.

What Sterling really wants is an injunction halting the sale of the team, at least pending outcome of the litigation. But to get that, Shelly Sterling needs to be involved in the case, since she claims an interest in controlling the trust and pushing through the sale. So either she has to be joined under FRCP 19 or she will try to intervene under FRCP 24. (Note: I don't do much more than lecture on these two rules, just to show other ways of bringing parties into cases But Rule 19 confuses students, who think it applies more broadly to cover simple joint-tortfeasor situations; having a nice clear example, purely involving injunctive relief, is helpful).

Jurisidction here hinges on the antitrust claim and § 1331; there is supplemental jurisdiction over the state law claims (although Sterling's lawyer--who in an ongoing media blitz has come across as the worst kind of slickster lawyer who does not actually care about things like law and procedure--did not mention that or any other basis for jurisdiction over the non-federal claims). But, here is where it gets fun. Antitrust experts generally agree that the antitrust claim is nonsense--Sterling signed a series of agreements and contracts to become owner of an NBA franchise and cannot claim harm if those contracts harm the public or competitors. Sterling really is arguing that, by violating its own Constitution and By-Laws in punishing him (arguments that are not entirely frivolous), the NBA has breached those agreements; in other words, this is really a state-law case. So perhaps the court declines supplemental jurisdiction under § 1367(c)(2) because the state claims predominate. Moreeover, the court is going to have to figure out who controls the trust (Donald or Shelly) and, perhaps, whether Donald is competent. Those sound like potentially complex issues of state law, warranting the court to decline jurisdiction under § 1367(c)(1). Finally, and most obviously, if the antitrust claim is that weak and the court dismisses it relatively early, it could decline jurisdiction simply for that reasons under § 1367(c)(3).

Update: An alert reader emails with another way Shelly Sterling could be brought into this case: She agreed to indemnify the NBA for any judgments arising from the sale of the team, including for lawsuits by her husband. So, having been sued, the NBA could now implead Shelly and the trust to enforce the indemnification agreement in the same action. Sterling then could assert claims against Shelly relating to any injunction of the sale.

Posted by Howard Wasserman on May 31, 2014 at 11:02 AM in Civil Procedure, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (3)

Thursday, May 29, 2014

More statutory interpretation from Donald Sterling

Donald Sterling filed his Answer in the NBA's proceedings to force him to sell the LA Clippers. And as before, it involves a wealth of statutory interpretation questions.

Sterling leads off by challenging the NBA's reliance on the secretly recorded conversations as evidence, which gets interesting. He points to California Penal Code § 632(a), which prohibits recording confidential communications without consent, and § 632(d), which excludes "evidence obtained as a result of eavesdropping upon or recording a confidential communication . . .  in any judicial, administrative, legislative, or other proceeding." From this, Sterling insists he has a constitutional right not to have his private conversations recorded or having the evidence of his conversations used against him. That seems overstated--that the state offers a statutory protection against being recorded in furtherance of the constitutional right of privacy does not convert the right against being recorded into a constitutional right.

The interesting statutory question is whether internal dispute-resolution proceedings of a private organization constitute an "other proceeding" under § 632(d). On one hand, the language seems to contemplate public proceedings, since the three enumerated types of proceedings are all public in nature. So under ejusdem generis, that catch-all should be read to cover only similarly public proceedings. It also makes sense that the criminal code would regulate evidence in public but not private proceedings. On the other hand, are there any public proceedings that are not judicial, administrative, or legislative? If not, then "other proceedings" must mean something not public. Perhaps it refers to something like arbitration or mediation, which can be considered quasi-public--they are privately controlled processes to which parties agree to send otherwise-public disputes. But this proceeding still seems different. This is not a situation in which the NBA established an outside-but-private process (such as arbitration of appeals under the CBA with the players' union). This is the collection of 30 owners establishing their own internal processes controlled by the 30 owners, for regulating who stays within their own ranks. Even if § 632(d) goes beyond public proceedings, the NBA process still seems fundamentally different.

Finally, the answer may be affected by the 2001 decision in Bartnicki v. Vopper. Bartnicki held that Congress could not punish publication of an illegally intercepted and recorded phone call, where the publishers were uninvolved in the unlawful interception or recording. The First Amendment protects publication (and, implicitly, other uses) of truthful lawfully obtained information on matters of public concern, except where the government is serving a need of the highest order. So perhaps the NBA could argue that it is entitled under Bartnicki to use the laefully obtained (and thus constitutionally protected) recording in its private internal proceedings, meaning California law is limited only to public, California-established proceedings, but not to whatever private proceedings private persons and entities may adopt.

Posted by Howard Wasserman on May 29, 2014 at 09:31 AM in Current Affairs, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (3)

Thursday, May 08, 2014

Donald Sterling and free speech

There have been scattered rumblings about the problem of the NBA sanctioning Donald Sterling for protected, although offensive, speech. Obviously, this is not a First Amendment problem, since the NBA is a wholly private actor. But we might call it a free speech problem, in that Sterling did suffer a sanction for expressing his opinions. And because it may be difficult to draw the line between this case and people speaking on other matters of people controversy (marriage equality, gay rights, abortion, whatever) and possibly offending someone, the specter of league-imposed suspensions for political speech looms.

Mike Dorf looks for a principled line and finds it in a broad  conception of harassment, such that once Sterling's racist views became public, his continued position as owner "created a kind of hostile work environment." While this is not enough to violate Title VII, Dorf argues that private firms often adopt prophylactic policies that go beyond what the law requires. He thus urges the NBA to defend the punishment on those grounds, rather than on his offensive speech simpliciter.

There is an appeal to this view, especially as a post hoc explanation for what the league did and as a way to isolate what Sterling did as something unique. But I wonder if the principle can be easily cabined. Any controversial policy could be recast as creating this sort of hostile environment--an openly LGBT player may find it hostile that the owner or a teammate contributes to anti-marriage equality causes, just as a devoutly religious player may find it hostile that a teammate opposes Christian prayer before public meetings, just as an Dominican player may find it hostile that a teammate supports heightened immigration enforcement. Maybe this is just the worst kind of slippery-slope anxiety--no league is going to suspend anyone for being involved in genuine social and political causes and we should not dignify what Sterling did by comparing it genuine political involvement. But I am not convinced Sterling (or to go back a longer time, former MLB pitcher John Rocker) only a difference of degree, not kind.

But if not Dorf's approach, then what?

One possibility is to try to distinguish speech (and wrongful non-speech activities) that genuinely relates to one's part or role on a team and in the league from speech that does not, with only the former providing a basis for league sanction. I thought about a version of this in thinking about what the league should have done a decade ago with the various racialized civil actions Sterling was involved in.

Now, this may not be any better, since it does not necessarily avoid those same line-drawing problems. Just as a league always can say X's involvement in a hot-button political controversy "creates a kind of hostile work environment," so can a league always say X's involvement in a hot-button political controversy relaates to his role on the team (often by throwing out the buzzword of creating "distractions in the lockerroom"). This saves us having to define and develope a new concept such as "kind of hostile work environment." But we still have to figure out what "genuinely relates" to one's role on the team. Another approach is for private entities to import some kind of Pickering balance, although that remains squishy and malleable enough to still cause problems.

None of this changes my basic view that the NBA has the authority to force the sale (and probably to suspend) Sterling and that these sanctions should hold up if/when he challenges them in court. But Dorf is onto something about not what the league can do, but what it ought to do.

status within the Clippers organization created a kind of hostile environment - See more at: http://verdict.justia.com/2014/05/07/limiting-principle-donald-sterling-case#sthash.d6L4K1IG.dpuf
Although the immediate predicate for disciplining Sterling was the recording of his racist comments, he was not - See more at: http://verdict.justia.com/2014/05/07/limiting-principle-donald-sterling-case#sthash.d6L4K1IG.dpuf
Although the immediate predicate for disciplining Sterling was the recording of his racist comments, he was not—or should not have been—disciplined merely because he held racist views. He was disciplined because once those views were made public, his status within the Clippers organization created a kind of hostile environment. - See more at: http://verdict.justia.com/2014/05/07/limiting-principle-donald-sterling-case#sthash.d6L4K1IG.dpuf
Although the immediate predicate for disciplining Sterling was the recording of his racist comments, he was not—or should not have been—disciplined merely because he held racist views. He was disciplined because once those views were made public, his status within the Clippers organization created a kind of hostile environment. - See more at: http://verdict.justia.com/2014/05/07/limiting-principle-donald-sterling-case#sthash.d6L4K1IG.dpuf
Although the immediate predicate for disciplining Sterling was the recording of his racist comments, he was not—or should not have been—disciplined merely because he held racist views. He was disciplined because once those views were made public, his status within the Clippers organization created a kind of hostile environment. - See more at: http://verdict.justia.com/2014/05/07/limiting-principle-donald-sterling-case#sthash.d6L4K1IG.dpuf
Although the immediate predicate for disciplining Sterling was the recording of his racist comments, he was not—or should not have been—disciplined merely because he held racist views. He was disciplined because once those views were made public, his status within the Clippers organization created a kind of hostile environment. - See more at: http://verdict.justia.com/2014/05/07/limiting-principle-donald-sterling-case#sthash.d6L4K1IG.dpuf

Posted by Howard Wasserman on May 8, 2014 at 04:34 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)

Wednesday, May 07, 2014

The end of roller derby names?

In the closing segment of this week's Slate Hang Up and Listen podcast (go to 57:55 mark), Slate's Josh Levin discusses efforts to make roller derby a more serious sport at the intercollegiate and international levels, also discussed in this Slate piece. Making the sport serious includes the demise of the roller derby nickname--Nun Meaner, Sigmund Droid, Haute Flash, Carmen Getsome, and my favorite, Stone Cold Jane Austen (that one belongs to Devoney Looser, an English professor at Arizona State). More players are going by their given names, at least in international competition, to make the sport seem less like professional wrestling. Occasional GuestPrawf Dave Fagundes, who wrote the definitive article on roller derby names, will no doubt be saddened to learn of this development.

And, since we all need a break from grading: What would you choose as your law- or law-professor-related derby name?

 

Posted by Howard Wasserman on May 7, 2014 at 09:31 AM in Article Spotlight, Howard Wasserman, Sports | Permalink | Comments (3)

Thursday, May 01, 2014

Two additional thoughts on the Sterling suspension

Yesterday I questioned the precise basis for the NBA's suspension of Clippers owner Donald Sterling. On further reflection, I want to consider some additional interpretive points.

First, I noted that the NBA Constitution and By-Laws contain two provisions--Article 35A(c) allows for a fine of up to $ 1 million for statements prejudicial or detrimental to the league and Article 35A(d) allows for a suspension and/or a fine of up to $ 1 million for conduct prejudicial or detrimental to the league. Commissioner Adam Silver must have relied on 35A(d), since 35A(c) does not allow for a suspension. But I questioned that usage. Sterling's misdeeds involved statements and the existence of distinct prohibitions--one regulating conduct and one regulating statements--suggests that the statement-specific provision should have been used here, which would make the suspension inappropriate.

But now I am wondering whether I am reading 35A(c) incorrectly. Perhaps the "statements" it prohibits are those that directly criticize the league or something about the league, for example game officiating (many a fine has been imposed on a coach or owner for doing that). But it does not reach statements about something else that, because of their viewpoint, happen to make the league look bad. That would instead be treated as "conduct" and pulled back within the more-general regulation of 35A(d).

Second, I am wondering if Silver simply jumped to the catch-all power of Article 24(l) to make decisions and impose punishments in the best interests of the NBA for all three sanctions, ignoring anything in Article 35A. Article 24(l)  allows for a range of penalties, including suspension and a fine up to $ 2.5 million. If so, it brings to even sharper light the question of how he could do that, since, again, 24(l) only operates when "a situation arises which is not covered in the Constitution and By-Laws." This means Silver should have at least glanced at 35A(c) and/or (d), which do seem to cover this situation.

Posted by Howard Wasserman on May 1, 2014 at 11:03 AM in Current Affairs, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (1)

Tuesday, April 29, 2014

Sterling, Silver, and statutory interpretation

For those of you who like using sports rules to illustrate statutory interpretation, NBA Commissioner Adam Silver's lowering of the hammer on Clippers owner Donald Sterling is a gold mine (forgive the precious metal puns). And it may be that, while Silver is being lauded for his moral and ethical stand, his legal footing is a bit shakier.

Silver on Tuesday imposed three punishments: 1) A lifetime ban from all involvement with the Clippers or the league; 2) a $ 2.5 million fine; and 3) a call for the owners to vote to terminate Sterling's ownership. The NBA had previously kept its governing documents secret; at the time of Silver's press conference, no one outside the league knew the precise bases for these punishments (when asked, Silver said he would "leave that to the lawyers"). The league finally released its Constitution and By-Laws (H/T: Deadspin), although they still have not announced the precise bases for these decisions, so we are guessing as to exactly what Silver relied on and why. We may only know if Sterling challenges his punishments (presumably through a breach of contract action). Either way, you probably could get a nice legal analysis exam out of this.

The lifetime ban is most likely pursuant to Article 35A(d), which empowers the commissioner to "suspend for a definite or indefinite period . . . any person who, in his opinion, shall have been guilty of conduct prejudicial or detrimental to the Association." The fine seems to be pursuant to Article 24(l), which gives the commissioner catch-all authority to make decisions "as in his judgment shall be in the best interests of the Assocaition" when a situation is not otherwise covered; the maximum fine under that provision is $ 2.5 million. Finally, the call for termination of Sterling's membership triggers Articles 13, 14, and 14A. Article 13 enumerates ten bases for termination; the only one that might fit is (a), where an owner "Willfully violate[s] any of the provisions of the Constitution and By-Laws, resolutions, or agreements of the Association," which brings us back to Article 35A(d)'s conduct prejudicial or detrimental or Article 24(l)'s "best interests." The power to terminate rests with the NBA's Board of Governors, comprised of the other 29 owners, and requires a 3/4 supermajority.

First, it is interesting that Silver apparently split the source for the first two punishments. The suspension seems to have been under Article 35A(d) for conduct prejudicial or detrimental to the NBA. But 35A(d) (already used as the basis for the suspension) also allows for a maximum $1m fine in addition to the suspension. Clearly Silver did not rely on Article 35A for the fine, however, since he imposed a fine 1 1/2 times larger than 35A(d)'s limit. Instead, the fine must have been under the Article 24(l) catch-all, given the amount. Why did he do it this way? Presumably to impose the larger fine under 24(l).

But there is a good argument that resort to the catch-all is inappropriate here. Article 24(l) expressly applies only "[w]here a situation arises which is not covered in the Constitution and By-Laws." This situation is covered by another part of the Constitution--Article 35A(d), already used for the suspension. In other words, since Silver found that Sterling violated Article 35A(d) (in suspending him), that also should have been the basis for the fine. Silver thus was wrong to resort to the catch-all.  Further complicating matters is Article 35A(c), providing for fines (again, maximum $ 1 m) specifically for statements prejudicial or detrimental to the best interests of the team, league, or basketball. That also seems to cover this situation--Sterling obviously said things contrary to the best interests of the NBA--again making resort to Article 24(l) inappropriate.

Second, and related: Why did Silver rely on Article 35A(d) for conduct prejudicial or detrimental rather than Article 35A(c) for a statement prejudicial or detrimental? Presumably because (c) does not allow for suspension, while (d) does. But Sterling is unquestionably being punished for statements, not conduct (whatever his racist views, he was not punished for acting on his views or operating his team in a way that implemented those views). While a provision prohibiting conduct could, standing alone, also reach statements, that argument does not work when there are distinct provisions, one regulating conduct and one regulating speech. Did the NBA Constitution intentionally set-up a situation in which conduct could be the basis for a suspension but statements only for a fine? If so, perhaps this means the suspension is improper.

Note that my analysis presumes a certain exclusivity--Article 24(l) by its terms cannot be in play if a different provision is; Article 35A(d) cannot be used to regulate statements because 35A(c) already does. Perhaps Silver would argue--and an arbiter would accept--that all of the provisions together allow for this range of punishments. But that is an odd form of statutory interpretation and would render many provisions of the NBA Constitution superfluous.

Third, expect some controversy when the owners attempt to terminate Sterling's ownership. The league would be basing termination on a willful violation of either of three broad, non-specific provisions (either "conduct prejudicial or detrimental," statements prejudicial or detrimental, or conduct judged not in the "best interests'); either seems a very generic basis for this ultimate sanction. (For a legal comparison, think of SCOTUS' efforts to make 18 U.S.C. § 241 work for catch-all Due Process violations in the face of vagueness concerns). The other nine bases for termination are fairly specific, going to gambling and fixing games (forever the cardinal sin) and extreme mismanagement of the franchise, although none is in play here. Perhaps Sterling could argue that either 35A(d) or 24(l) is not a specific enough rule in the Constitution & By-Laws as to be willfully violated as to form a basis for termination under 13(a). Failing that, termination of ownership, if the owners must the necessary supermajority (and I imagine they will,  both to show support for Silver's leadership and to keep the players happy), appears proper and within league rules. Of course, under Article 14(j), owners waive any review of this decision (and a similar one in the franchise agreement), so it may not matter (unless, as David Hoffman suggests, the enforceability of this waiver-of-recourse clause is dubious).

[Update: A thought that just rolled around: One might read "willfully" in Article 13(a) to require specific intent (again, what the Court has done with § 241 to avoid vagueness concerns). That is, requiring a finding that Sterling not only specifically intended to make those statements (he did), but specifically intended to make them so as to be prejudicial or detrimental to the league. If that is what willfully does, termination of ownership may become tougher. Otherwise, any little violation of any rule could become a basis for termination.]

Finally, it will be interesting to see how the owners approach termination of ownership. Typically, terminating a franchise transfers control to the league, under Article 14A(c). But the media seems to be talking in terms of the owners giving Sterling an opportunity to sell the team outright to some outside owner. While not specifically provided for, that might be a potential negotiated resolution.

Posted by Howard Wasserman on April 29, 2014 at 11:04 PM in Current Affairs, Howard Wasserman, Sports | Permalink | Comments (2)

Monday, April 28, 2014

Protesting sport

People everywhere are looking for ways to protest the racist comments allegedly made by Los Angeles Clippers owner Donald Sterling. Clippers players used a silent pre-game protest, leaving their warm-up jackets on the floor at halfcourt and warming up with their shirts inside-out (hiding the "Clippers" logo). Two Golden State fans got creative with posters. And Los Angeles Dodgers outfielder Matt Kemp, who was mentioned in the telephone conversation between Sterling and his girlfriend as someone who was OK to bring to games because he is of mixed race and ethnicity, used Michael Jackson's "Black or White" as the music when he came to the plate in Sunday's game. And some companies are now withdrawing from sponsorship deals with the Clippers.

It has become commonplace to protest high-level business people by economically targeting the businesses with which they are associated, by refusing to invest, work at, or shop at these companies. These include attempted or limited boycotts--see Chick-Fil-A or, going back further, Domino's Pizza--or threatened targeting with the hope of inciting change--see the ouster of RadiumOne's CEO following his guilty plea on misdemeanor domestic violence charges or Mozilla firing the CEO who supported Prop 8). Whether such efforts are  effective, they have come to be seen as a strong means of political expression if not change.

For all that I have argued for the intimate connection between sport and free expression, however, it is ironic that those expressive weapons cannot work with respect to professional sports.

The first problem is the collective nature of leagues such as the NBA. Donald Sterling benefits from everything that happens as to every team in the league, not just what happens to the Clippers. He benefitted from Warriors fans who attended the game in Oakland on Sunday, since visiting teams receive a percentage of gate. He benefitted from every basketball fan of every team who watched any playoff game on television, because teams share revenue earned from the league's massive broadcast deals--that includes not only the Clippers-Warriors game, but all three games played yesterday. It is not enough to target the Clippers, in other words; it would take a massive fan movement against the NBA as a whole.

A second problem is the emotional connection and loyalty that fans feel to their teams. Clippers fans do not want to entirely abandon the team, because  they want to see "their" team succeed. And that is not fungible--I can get a chicken sandwich from a lot of places, but I cannot just shift my team loyalties overnight. Moreover, fan loyalty runs to the players who represent them on the court, not to the owner in the background. And it still is about the league as a whole, not one team. Fans of the Warriors are not going to abandon their loyalties to their players and teams, and their desire to celebrate a championship, because the owner of the opposing team is a racist. Nor are the fans of the other playoff teams not currently playing the Clippers, who similarly want their teams to win and do not care about the racist owner of a team other than their beloved franchise. Even fans without another rooting interest are in a bind; the easy move is to root against the Clippers so Sterling does not enjoy a championship and to stop watching games. But that means rooting against the players who also want that success, which somehow seems unfair.

A third problem is that the players are unable to vote with their feet by seeking employment elsewhere, at least not right now. They want to win a championship right now--it is bound up in who they are and what they do, and the opportunity does not come around very often. To walk away from that opportunity in protest hurts them more than it hurts Sterling (who still profits from being part of the NBA money-printing aparatus). It is why Clippers players reportedly only briefly considered, then rejected, forfeiting Sunday's game. Again, it would take league-wide action--every team refusing to play until the NBA takes action against Sterling. And while the NBAPA is trying to get involved in the matter, I see no way that such a collective walkout is in the offing (not to mention whether it is even legal under the NLRA)--again, players must jump at the opportunity to win a championship, because it may not come around again.

Update: I forgot the most important point in all of this, so I'll add it here: The most obvious way for Clippers fans to express their anti-Sterling viewpoints without having to stop supporting their team is to show up with signs and clothes and chants doing just that. This doesn't change the team's ownership or anything, but it is the best outlet for fan expression. But this raises an important issue: Will the Clippers and/or the NBA try to control what fans say about Sterling or how they say it? On one hand, I believe Staples Center (where the Clippers play) is privately owned, so the First Amendment is not in play and fans are at the mercy of the arena's owners. Most pro teams are look to stop speech criticial of ownership when they can. On the other hand, both would take an overwhelming PR hit for censoring anti-Sterling speech at this point, so they might actually allow fans to get away with more than they ordinarily would in a situation that had not so boiled over.

Posted by Howard Wasserman on April 28, 2014 at 01:09 PM in Current Affairs, First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)

Sunday, April 27, 2014

Cheering speech

BmQFxDMCAAI9Qni(H/T: Deadspin)

Why I have spent so much time arguing about fan speech and stadiums as public forums--because it allows expression such as this. But I wonder two things: 1) Did ABC show this or did the NBAorder them not to? 2) Would the Warriors/the arena have taken the signs were the wave of public opinion not running so overwhelmingly against Sterling?

Posted by Howard Wasserman on April 27, 2014 at 05:33 PM in First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (0)

Tuesday, April 15, 2014

A (Limited) Defense of Saving Players for "Crunch Time"

If you love sports and you’re interested in empirical methodology, the last ten-plus years (call it the Moneyball Era) have been very good indeed. The increase in attention to statistical studies of sports has grown a ton (though of course it has much longer roots that date at least back to Bill James and early sabermetrics in the late 70s). 

One of the most interesting parts of this movement has been to do what good research so often does: Take a longstanding belief and show that it’s nothing more than smoke and mirrors. For instance, does icing the kicker work? According to this study, the answer is simple: Nope (not that it’s stopped NFL coaches from doing it, of course).

Consider as well the practice in basketball games of sitting players early on so that they will be available (and not in foul trouble) when it’s late in the game and “crunch time” arrives. As many people, including Richard Thaler, have argued, this strategy is probably counterproductive because you get just as many points for baskets scored early in a game as you do during late-game moments, so that sitting players to save them for late-game heroics probably just means you’re shortening their total on-court minutes to the team’s detriment.

The point of this post is not to propound a full defense of the crunch time strategy. This is because I think it’s basically right that basketball coaches are too cautious with saving players for late-game situations, and would probably do better to just max out their points earlier on even if that meant more players would foul out.

The point of this post, rather, is to point out one reason why the story of the crunch time strategy may be more complicated, and somewhat more compelling, than its critics have let on. I elaborate this point below the fold.

To start with an orthogonal observation, the strategy of sitting basketball (and, for what it's worth, hockey) players periodically throughout a game is not only to save them for crucial late-game moments. It also is a necessity (or at least is very advisable) given the highly intense pace of basketball. If you didn’t give cagers regular breaks, by the end of the fourth quarter (or earlier) even the fittest players would be totally gassed, regardless of whether they were close to disqualification via foul accumulation. 

That point aside, though, consider a reason that the crunch time strategy might not be a total loss. First, the critique of the strategy assumes that players are equally likely to score baskets throughout a game. If they are, then it makes the most sense to just maximize their on-court time, regardless of whether that court time occurs early or late in a game. 

But if players’ likelihood of scoring is not constant, and in particular if players are more likely to score later in games, then saving them for the times when they tend to be more productive may be a good strategy. This sort of discontinuity in scoring aptitude is plausible—indeed, one of the hallmarks of what makes a player great may be their tendency to perform well in late-game high-pressure situations.

A related point is that great players have the dynamic effect of making others around them better, either through abstract qualities like inspiring leadership or more concrete ones like making good passes, setting effective screens, etc. These dynamic effects of a star player on their team could also vary throughout a game, and if they were greater at the end of a game, then reserving a star player’s minutes to allocate them later in a game could make more sense than crunch-time critique acknowledges. 

This is, of course, only a limited defense of the crunch time strategy. This post has sought to add one underappreciated possible reason that sitting players early in a contest in order to save them for later-game moments might make more sense than the prevailing critique of the crunch time strategy lets on. And since, as I observed above, sitting players to some extent at intervals throughout a game is inevitable, it’s not possible to just play your best players until they successively foul out, even if this were the optimal strategy.

So given that it is necessary in basketball to sit players periodically throughout a game, one factor that might help craft the optimal strategy for when to sit players would be their likelihood of performing well later in a game (which is, of course, different than the prevailing wisdom that stars should always be saved for “crunch time”). And it bears noting that even if a given star performed marginally better later in games, that slight advantage might well not be great enough to justify reducing his overall on-court minutes by sitting him out earlier in the game. 

This is, though, as the man says, an empirical question with an empirical answer. Do stars actually perform better later in games? Perhaps it’s true that some stars do while others tend to wilt under the perceived pressure. And why limit the inquiry to star players? It could be that all players' performance varies differently throughout a game, which could help a coach figure out when it's optimal to put anyone on the court. The broader point is that while we look at players' statistics as constant given that most basketball stats are based on games (points per game, assists per game, etc.), that may mask discontinuities in when during a game players are at their best, and that uncovering patterns in these discontinuities may be a strategically helpful insight.

Posted by Dave_Fagundes on April 15, 2014 at 11:45 AM in Science, Sports | Permalink | Comments (7)

Sunday, April 13, 2014

The best sports deal ever

That is how Sports Illustrated describes the deal struck between the NBA and the owners of the Spirits of St. Louis when the Spirits folded and four ABA teams joined the league, which had paid them $ 300 million over the past three-plus decades. The SI story does a good job of elaborating on the deal's business and legal details, the negotiations leading to the original deal, and the litigation and settlement that ended it.

Pursuant to a recent confidential settlement (disposing of a lawsuit to obtain rights to certain international and online revenues), the old deal is over; the former owners (brothers Ozzie and Daniel Silna) will be paid more than $ 500 million, plus a small stake in the NBA's new TV contract. All told, the Silnas will make more than $ 1 billion (from a team they bought for $ 1 million in 1974).

Posted by Howard Wasserman on April 13, 2014 at 03:07 PM in Civil Procedure, Howard Wasserman, Sports | Permalink | Comments (1)

Sunday, April 06, 2014

Unions, incentives, and change

In March, the regional director of the Chicago office of the National Labor Relations Board ruled that football players at Northwestern University were employees, entitled to form a union and to collectively bargain with the university over conditions. That vote is scheduled for April 25, although the votes would be impounded if, as expected, Northwestern appeals the decision to the full NLRB. Yesterday, Northwestern football coach Pat Fitzgerald publicly urged his players to vote against forming a union in a letter sent to players and their families. And at least a few players seem inclined to vote against it, at least based on quotations in the story.

What is interesting is the near-universal sense from everyone that things do need to change in college football in terms of benefits, hours, health care, and other conditions for student-athletes.--all the things supporters want to get through the union and collective bargaining. The dispute is over how those changes will or should occur. One player pointed to Fitzgerald and his activities with the American College Football Association (he is on the association's Board of Trustees); another said he hopes the NCAA will see the need for change. But what would cause anyone to believe either of those groups (or any other non-player group) is likely to act in the players' interests. Football coaches are control freaks (I say that as a control freak myself) who would see that control threatened by many of the changes the players might want. How likely is ACFA to support tighter limits on football hours--so players can spend more time being students--or tighter limits on contact practices--so players are subject to fewer hits? The NCAA is a dysfunctional organization that has never shown any inclination to truly protect and benefit players, especially when the changes transfer from it and its schools to the players. This is not an institution likely to change unilaterally or from within. Especially since the NCAA, conferences, and schools make massive amounts of money off football and men's basketball and may make less money if the system changes.

Importantly, none of these organizations is structured or legally obligated to take player interests into account or even to hear their concerns. All the unfortunate anti-union sentiment in the United States obscures the real benefit of the NLRA and a union in this situation--the rules regarding the terms and conditions under which the players operate can only be made with consent from the players. Absent a union, the players are left hoping that someone else--ACFA, the NCAA, the Big Ten/Twelve, Northwestern--will deign to give them what they want or need. In other words, change comes because the same powers that be decide to throw the players a bone via the same paternalistic arrangements. Moreover, since Northwestern must follow NCAA regulations (as a condition of membership and maintaining eligibility of its teams), the only source of change really is the NCAA.

I thought of similar issues surrounding the union in doing an interview regarding this joint study by the Student Press Law Center and a journalism class at the University of Maryland (I am quoted in the report itself). The report describes some of the policies to which student-athletes are subject (either by the university, the athletic department, or the team) regarding social media and other speech activities; social, dating, and sexual activities; and privacy. For example, the University of Georgia men's basketball team has policies regarding monogamy (good) and visible hickeys (bad) and reserving the right to inspect a player's dorm room at any time. Obviously these policies would be unconstitutional as applied to an ordinary student at the University of Georgia. They probably are not much more constitutionally valid as applied to student-athletes--much depends on whether the court views student-athletes as akin to employees and thus subject to the tighter speech and conduct restrictions that government can impose on its employees. Of course, one still could argue that these policies are over the top even in that situation--seriously, telling a student-athlete how many girlfriends he can have or that he cannot use "offensive language" (whatever that means) on Twitter?

Of course, we never will find out whether these policies and rules are constitutionally valid because no player is ever going to challenge them in court, for fear of retribution from the powerful and in-control coach. Collective action eliminates that problem--the coach is not going to kick everyone off the team for objecting to these sorts of unconstitutional and offensive rules. Only the group, not the lone player, can resist the greater power of the coach, the school, and the NCAA.

Posted by Howard Wasserman on April 6, 2014 at 01:25 PM in Employment and Labor Law, Howard Wasserman, Sports | Permalink | Comments (3) | TrackBack

Saturday, March 08, 2014

Gambling v. PEDs and the Baseball Hall of Fame

Warning: Another sports-and-law post, this focusing on the internal rules of baseball as a business

Kostya Kennedy has a new book on Pete Rose, titled Pete Rose: An American Dilemma, excerpted in this week's Sports Illustrated cover story. Kennedy states that Rose's Hall-of-Fame worthiness has come under "renewed discussion" as players linked to PED use (Mark McGwire, Barry Bonds, Roger Clemens) come up for Hall consideration. TThe excerpt (and presumably the book) present the arguments that Rose' gambling is a lesser crime than PED use, so he should be a more worthy candidate for the Hall than a juicer. Will Leitch at Sports on Earth responds and basically blows up the argument, by pointing out the serious problems that gambling creates and the moral panic that surrounds PEDs.

But there is a different, more legalistic reason Kennedy's article gets Rose's Hall eligibility wrong, one I discussed eight years ago, just as the major PED suspects were beginning to retire. Rose is ineligible for the Hall because he voluntarily accepted a lifetime ban from baseball and placement on baseball's permanently ineligible list. Under Rule 3E of the BBWAA voting rules, "Any player on Baseball's ineligible list shall not be an eligible candidate." And that ends the inquiry. It actually does not matter whether Rose bet on baseball or on the Reds (he admitted gambling on baseball, although never on games involving his team)--he accepted the ban and thus the collateral consequence of the ban. On the other hand, no suspected steroid user has ever been assessed a lifetime ban or placed on the permanently ineligible list, thus none is subject to Rule 3E. Steroid users are being kept out of the Hall by the principled insistence (or priggish obstinance, depending on your perspective) of BBWAA members.

Of course, we might reconsider this ordering, which would require reconsideration of the comparative evil of steroid use and gambling. Under present rules, a person is banned for life for a third positive test or finding of PED use, but banned for life on one finding of having bet on games involving his team. Perhaps that should be flipped, or at least treated on equal footing. (On this, I agree with Leitch that we have the order right, that gambling is a far greater sin than taking drugs designed to help you play better and for longer). But none of that changes anything for Rose given the current rules and the rules under which he operated.

Posted by Howard Wasserman on March 8, 2014 at 04:43 PM in Current Affairs, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (0) | TrackBack

Tuesday, February 25, 2014

Sport, non-sport, and judging

I have wanted to use Jordy's posts about judging and reputation to jump into other things, especially as the posts pertain to activities such as figure skating. And I want to tie this to my ongoing interest in defining what constitutes sport, for which I believe I have landed on a workable definition that focuses on whether a contest is decided by evaluating the intrinsic quality of an athletic skill (not sport) or the instrumental result of the performance of that skill (sport). The attempt to understandin judging may introduce some consequences into the distinction.

Sport is governed by what Mitchell Berman called the “competitive desideratum,” the desire that the “outcome of athletic contests . . . depend (insofar as possible) upon competitors’ relative excellence in executing the particular athletic virtues that the sport is centrally designed to showcase, develop, and reward.” The outcome of a sporting event should not be decided by anyone other than the players themselves. And it particularly should not be decided by an umpire or referee making pronouncements about the game's rules.. Of course, that is not entirely possible, since sports are governed by rules that must be applied and enforced by someone, with enforcement certainly influencing the outcome.

The answer, I began arguing here, is that sports rules are analogous to rules of procedure, the framework rules in which a contest (athletic or judicial) is decided and resolved. These framework rules are not the focus of the contest and should not dictate the outcome. Instead, they regulate the competition, while the players control the outcome through their relative skills and the results of those skills. True, decisions about these framework rules--whether a pitch is a ball or strike or whether something is a foul-- affect how the competitors act and the contest must be resolved in light of those decisions. So we might say these rules "influence" the result. But the players still control the outcome of the game through their skills--whether the pitcher gets the batter out, whether the ball goes in the basket, etc.--without real input from the umpire/judge/referee.

And this is where the sport/non-sport distinction matters. For non-sports such as figure skating, we never get away from the judge and her ultimate opinion as to the intrinsic quality of the skater's performance of those skills. That opinion of the skaters' skills decides the outcome of the contest, not anything that follows from those skills. In other words, the rules of a non-sport are analogous to substantive law that courts (whether through jury or judge) use to decide a legal dispute. Non-sport possesses some of Berman's "competitive desideratum," but the skills cannot alone decide the outcome without a judicial ruling. Just as legal arguments and proof cannot alone decide the outcome of litigation without a judicial ruling.

Returning to Jordy's point about attorney reputation in the eyes of judges, the difference between sport and non-sport lies in how directly reputation affects the outcome. In a sport, to the extent reputation affects what gets called a strike for certain hitters or what gets called a foul for certain players, the influence is indirect, the outcome still controlled by whether the pitcher can get the batter out or whether the ball goes in the basket. In non-sport, to the extent reputation affects how the judges perceive the quality of a jump, spin, or skate, the influence directly dictates the end result of the competition. (In the litigation realm, this might parallel differences in how attorney reputation affects a judge's view of a particular attorney's discovery motion and how it affects the judge's ultimate findings of fact on the merits of the claim).

These are necessarily preliminary thoughts that I hope to perhaps flesh out in the future.

Posted by Howard Wasserman on February 25, 2014 at 09:31 AM in Civil Procedure, Howard Wasserman, Sports | Permalink | Comments (5) | TrackBack

Banning home plate collisions: An exercise in statutory interpretation

Major League Baseball yesterday announced an experimental rule banning, or at least limiting, home-plate collisions. The rule is intended to protect players, as home-plate collisions are a common cause of concussions and other injuries to catchers. Whether it does or not provides an interesting exercise in statutory interpretation.

New Rule 7.13 provides:

A runner attempting to score may not deviate from his direct pathway to the plate in order to initiate contact with the catcher (or other player covering home plate). If, in the judgment of the umpire, a runner attempting to score initiates contact with the catcher (or other player covering home plate) in such a manner, the umpire shall declare the runner out (even if the player covering home plate loses possession of the ball). In such circumstances, the umpire shall call the ball dead, and all other baserunners shall return to the last base touched at the time of the collision.

An interpretive comment adds:

The failure by the runner to make an effort to touch the plate, the runner's lowering of the shoulder, or the runner's pushing through with his hands, elbows or arms, would support a determination that the runner deviated from the pathway in order to initiate contact with the catcher in violation of Rule 7.13. If the runner slides into the plate in an appropriate manner, he shall not be adjudged to have violated Rule 7.13. A slide shall be deemed appropriate, in the case of a feet first slide, if the runner's buttocks and legs should hit the ground before contact with the catcher. In the case of a head first slide, a runner shall be deemed to have slid appropriately if his body should hit the ground before contact with the catcher.

Unless the catcher is in possession of the ball, the catcher cannot block the pathway of the runner as he is attempting to score. If, in the judgment of the umpire, the catcher without possession of the ball blocks the pathway of the runner, the umpire shall call or signal the runner safe. Notwithstanding the above, it shall not be considered a violation of this Rule 7.13 if the catcher blocks the pathway of the runner in order to field a throw, and the umpire determines that the catcher could not have fielded the ball without blocking the pathway of the runner and that contact with the runner was unavoidable.

The rule reportedly reflects a compromise between MLB, which had wanted a must-slide-can't-block rule that would have eliminated all collisions and thus done the most for player safety, and the MLBPA, which did not want to make such a major change so close to the season, fearing the players would not have time to adjust.

The basic rule prohibits a runner from deviating from the direct path home to initiate contact with the catcher (or whoever is covering the plate)--that is, from going out of his way to make contact rather than running directly for the plate. But the rule does not prohibit collisions where the runner runs directly into the catcher in trying to score. So, reading only the text, it is not clear the new rule eliminates most collisions, since most collisions come when runner, catcher, and ball all converge at the plate and running through the catcher is the most direct route to scoring. It thus is not clear that it provides the safety benefits it is intended to provide.

The solution may come in the interpretive comments and a more purposivist approach. An umpire may find that the runner deviated if the runner fails to make an effort to touch the plate, lowers his shoulder, or pushes with his hands, elbows, or arms. On the other hand, a runner does not violate the rule if he slides into the plate in an "appropriate manner," meaning his body hits the ground before making contact with the catcher. The upshot of the comments is to grant the umpires discretion to judge when the runner has "deviated" from the path, and thereby to apply the rule so as to further its purpose. The comment incentivizes runners to slide in most cases, since a proper slide per se will not violate the rule, while running through the catcher might be deemed deviating, subject to how the umpire exercises his discretion in viewing the play (whether the runner lowered his shoulder or raiseed his arms, etc.).

The rule seems unnecessarily complicated, given the player-safety goals involved. Especially since they simply could have modeled this rule after the rules that apply at the other three bases. But the sense seems to be that this is experimental, designed to be revisited during and after the upcoming seasons and to function as a first step to get players used to this new way of playing. Think of it as the legislature phasing-in new rules so as to also phase-in new, preferred behavior.

Posted by Howard Wasserman on February 25, 2014 at 12:09 AM in Howard Wasserman, Legal Theory, Sports | Permalink | Comments (0) | TrackBack

Friday, February 21, 2014

Not a sport, redux

Jordan presaged it, although for different reasons: Judging in women's figure skating is once again a thing, as people question the scoring that gave a Russian skater a surprisingly easy Gold Medal on Thursday. The issue here is less about reputation than about good, old-fashioned home cooking. And a judge who was suspended previously for trying to fix a competition previously. And we may be back to concerns about anonymous judging--established to avoid collusion and bloc-voting, it also removes accountability.

Posted by Howard Wasserman on February 21, 2014 at 12:13 AM in Howard Wasserman, Sports | Permalink | Comments (2) | TrackBack

Thursday, February 13, 2014

Fan speech, once again

I suppose I should wade back into the renewed interest in fan speech at sporting events, given two recent events at college basketball games: 1) Last week, Marcus Smart, a star player for Oklahoma State, was suspended for three games for shoving an adult fan at a game against Texas Tech,  in response to something that the fan, a prominent heckler at games, yelled at him (the fan, Jeff Orr, apologized for his role and voluntarily agreed not to attend any more games this season); 2) Last night, an adult fan was ejected from a game at the University of Memphis, apparently at the request of the referee.

I do not know all the details, so I am not necessarily opining on either situation. But both have people thinking about fan speech, so I would weigh in with what I think are the general principles at work (And I know very well that I am not on the side of the angels in this).

1) At a game involving a public university (as both Texas Tech and Memphis are), the First Amendment is in play. Any efforts to punish fans for their speech is subject to First Amendment limits. This applies, I would argue, even in a privately owned arena that a government entity (such as a public university) is using for its official governmental functions.

2) The stands of a publcily owned/controlled basketball arena are a designated public forum for "cheering speech," which is a broad category consisting of just about everything will say (and shout) during a sporting event that is not inconsistent with that event. This includes taunts, insults, profanity, and even some racist and sexist comments against players, coaches, and refs, as well as all manner of social and political speech.

3) As a public forum, content-based regulations (as on a particular type of cheering) are subject to strict scrutiny, while content-neutral regulations (no signs) are subject to intermediate scrutiny. There also could be reasonable viewpoint-neutral restrictions on non-cheering speech, but the category of cheering speech is so broad, I don't know what that would reach.

4) Fans can be punished for the rare speech that crosses the line into fighting words, which has been narrowed to reach only up-close, targeted, face-to-face taunts. It is possible that Jeff Orr crossed that line, since the incident occurred in very close range--Smart had fallen out of bounds right below where Orr was sitting. And Smart says he heard Orr use a racial epithet, although Orr says he just called Smart a "piece of crap." I do not know if this was a close enough encounter to fall outside the First Amendment, regardless of what was said.

5) Labeling what Orr did "fighting words" does not justify what Smart did. Contrary to what some apparently have said on ESPN, one person using fighting words does not mean the listener has license to fight. It simply means that the speaker can be sanctioned.

6) I legitimately cannot imagine what the fan at the Memphis game said last night that would have gotten him ejected and still be consistent with the First Amendment. Everyone at a basketball game is yelling and screaming and that is accepted as part of the game. So the ejection must have been based on the content of his particular screaming--a content-based enforcement that the First Amendment does not permit.

Posted by Howard Wasserman on February 13, 2014 at 12:54 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (1) | TrackBack

Monday, February 10, 2014

Skating, Judging, and the Role of Direct Observation

Howard raises an interesting question about how a skating judge’s direct observation of a figure skater’s routine might affect subsequent evaluations of that routine.  A study of judges in a different sport -- this time baseball umpires -- may provide part of the answer.  The study allowed umpires to observe videotaped pitchers throwing warmup pitches.  Some of the pitchers were “control” pitchers, with 70% of pitches down the middle of the strike zone and 30% out of the strike zone.  The other pitchers were “wild” pitchers, with the ratio of balls and strikes reversed.  The umpires were then asked to call balls and strikes for several dozen more videotaped pitches by the pitcher they had observed, with most of the pitches deliberately being close calls.

The researchers hypothesized that the umpires would call fewer actual strikes correctly for the wild pitchers and fewer actual balls for the control pitchers.  That is, they assumed that the umpires would take what they had observed into account and assume that a close call from a wild pitcher was more likely to be a ball and a close call from a control pitcher was more likely to be a strike.  In fact, the umpires were influenced in the opposite direction: wild pitchers got more strike calls and control pitchers more balls.

This is only one study, but it suggests that after brief, direct observation, a judge or decision-maker builds a mental image of the athlete’s competence and skill, which in turn establishes expectations of future performance.  Pitchers who set the “control” bar high in their warmups were expected to demonstrate similar control in a game situation, and close calls were evidently seen as a failure to perform to expectations.  Similarly, pitchers who showed less control in warmups were expected to demonstrate less control in a game situation, and close calls were evidently seen as “close enough.”

If the same cognitive processing holds, Gracie Gold and Julia Lipnitskaia might have been better holding something back just a little during the team competition.  And Ashley Wagner may have unintentionally helped her cause.  The world will soon find out.

NB: The umpire study is not easily found online, but for those interested here is the cite: David W. Rainey et al., The Effects of a Pitcher’s Reputation on Umpires’ Calls of Balls and Strikes, 12 Journal of Sport Behavior 139 (1989).

Posted by Jordan Singer on February 10, 2014 at 10:54 AM in Sports | Permalink | Comments (2) | TrackBack

Sunday, February 09, 2014

More on skating: What if they know your reputation and your routine?

I hope to have more to say on Jordy's post on figure-skating judging. In the meantime, this story on the move from the (new) team skating competition to the upcoming individual competitions later this week adds a new element to Jordy's point. The skaters will perform the same routines in the individual competitions that they did in the team competition. This means that not only do the judges have each skater's reputation in mind, but they already have seen exactly what each skater is going to do and likely have formed some opinion about how they do it.

So how will the combination of reputation and prior viewing affect judging? Because they already loved Russian Julia Lipnitskaia's routine (performed to music from Schindler's List and dancing as the girl in the red coat, as creepy as that may seem), will they be predisposed to loving it the second time? And because they found fault with American Ashley Wagner's jumps, will they be predisposed to find the same faults the second time?

Posted by Howard Wasserman on February 9, 2014 at 09:08 PM in Howard Wasserman, Sports | Permalink | Comments (0) | TrackBack

Monday, January 13, 2014

More on the Infield Fly Rule

This has been a good week for my ongoing work on baseball's Infield Fly Rule. First, my originlal cost-benefit defense of the rule, The Economics of the Infield Fly Rule, is now out in Utah Law Review and SSRN. Second, I have a piece forthcoming in UCLA Law Review Discourse discussing football rules that reflect similar logic to the infield fly. Third, I am finally through the quantitative analysis of how often the IFR is called and where, which involved watching thousands of plays from the last four years of Major League Baseball; now I just have to write it up and draw conclusions. And I'm now trying to figure out whether I can turn all of this into a book-length project and what additional pieces I can add.

Posted by Howard Wasserman on January 13, 2014 at 11:37 PM in Civil Procedure, Howard Wasserman, Sports | Permalink | Comments (0) | TrackBack

Thursday, January 09, 2014

You can't make this stuff up, prison litigation and football edition

A man in the Pennsylvania prison system last week filed a handwritten Motion for a Temporary Emergency Injunction on the NFL Playoffs.

The man appears to be a Pittsburgh Steelers fan, who is angry that the Steelers missed the playoffs. This happened because, in the final week of the season, the San Diego Chargers beat the Kansas City Chiefs in overtime. In that game Chiefs kicker missed a field goal as regulation expired. The Chargers had an illegal formation on that kick, which was not called and which the Chiefs could not challenge; had it been, the Chiefs would have gotten to re-kick from five yards closer.

The motion argues that the league acts fraudulently and negligently in limiting the replay challenges that teams can make. It also argues that the league rule requiring immediate stoppage of play if a player loses his helmet (which took an overtime touchdown away from KC) is unconstitutional because it violates "enacting clause amendments" (not sure what this means) and was "not founded on their forefathers" (hey, Originalism!).

The motion was denied because the plaintiff did not pay the filing fee--he asserted In Forma Pauperis at the top of the motion, but never formally sought a waiver of the fee. In some ways this is bad, because Mr. Spuck now will be angry that his motion, which has no remote legal validity whatsoever, was not considered on its merits. On the other hand, my experience as a law clerk was that many prisoners react worse when you do give their papers merits analysis and they still lose.

Posted by Howard Wasserman on January 9, 2014 at 04:28 PM in Civil Procedure, Howard Wasserman, Sports | Permalink | Comments (0) | TrackBack

Tuesday, January 07, 2014

Where sports law meets contracts

In 1976, the NBA and ABA merged, with four ABA teams joining the NBA and two--the Kentucky Colonels and Spirits of St. Louis--being bought out. The Colonels owners took $ 3 million and went away. The Spirits owners--Ozzie and Daniel Silna--took a different approach. They took less cash--about $ 2.2 million--in exchange for getting 1/7 of the television revenue for the four ABA teams that joined in perpetuity. In 1976, that was not a big deal; as late as 1980, the NBA finals were being shown on CBS late at night on tape delay. All that changed when the NBA exploded in the early 1980s. Instead, the league has paid the Silnas more than $ 300 million over the past 30+ years, while regularly trying to get out of the deal. Well, it now appears they are close to a deal that will pay the owners $ 500 million to go away. That's more than $ 800 million where one side has foresight and the other doesn't (or where one side just gets lucky).

There must be a good contracts lesson in here somewhere--about expectations or mistake or something?

Posted by Howard Wasserman on January 7, 2014 at 04:46 PM in Howard Wasserman, Sports | Permalink | Comments (1) | TrackBack

Tuesday, December 10, 2013

College football and the Brandenburg Concerto

[Update: Reports are stating that police have identified the man in the picture and want to interview him, in part to find out how (and if) he caused the events in East Lansing.]

Students at Michigan State University celebrated their football team's Big Ten championship last weekend the way many sports fans do: Setting things on fire. Police responded to a large civil disturbance and reportedly responded to at least 57 fires throughout the city. In many cases, the favored object to burn was a couch.

So what, you ask? Well, because of the guy pictured at right, who attended the Big 10 Championship game in Indianapolis sporting that sign. Ku-xlarge According to the East Lansing Police Department Facebook page, they are looking for information on his identity. And rewards of up to $20,000 are being offered for information on the overall disturbance.

So the obvious question: Could this guy be charged with anything for holding up that sign? Could any prosecution satisfy  Brandenburg v. Ohio and the requirement that the  lawless action in East Lansing be imminent and likely to arise from his holding up a sign from a football stadium in Indianapolis?

Posted by Howard Wasserman on December 10, 2013 at 10:44 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (11) | TrackBack

Wednesday, November 27, 2013

Football and limiting rules

In breaking down and defending the infield fly rule, I rely on the concept of limiting rules--special rules designed to recalibrate cost-benefit disparities that appear if some plays are left to the game's ordinary rules. I identify four features that, when present, show the need for limiting rules. I also discuss situations in which the absence of one or more feature shows that a limiting rule is not necessary. In a work-in-progress (hopefully forthcoming), I apply this model to football, focusing on several plays from the last two Super Bowls to consider situations that do or do not call for limiting rules.

But on Slate's Hang Up and Listen Podcast (go to around the 51:00 mark), Josh Levin identifies a play that exposes another hole in the rules that might justify a limiting rule. A defensive team trailing in the final minutes commits a penalty on a play on which the offense had gotten a first down; the penalty stopped the clock, even though the clock would have continued to run without the penalty.  In other words, it functionally gave the trailing defensive team a free timeout, forcing the offense to run more plays in order to run out the clock. This, Levin argues, incentivizes teams to intentionally take penalties to stop the clock and give themselves extra, an idea discussed on Football Commentary almost a decade ago. This arose with 2:14 remaining in last Thursday's Saints-Falcons game (the trailing Falcons committed defensive holding on a play) and arguably gave the Falcons a chance to get the ball back one final time (although they did not score) and still lost.

Warning: Another more-sport-than-law-post, so continue at your own risk.

This seems like a game situation in which a limiting rule is warranted, as it is defined by all four features: 1) the play produces a significantly inequitable cost-benefit disparity, as the trailing defensive team can stop the clock and give itself more time to get the ball back, to the detriment of the leading offensive team, which receives no benefit from the play; 2) the defense entirely controls the play, as the offense can do nothing to stop an intentional penalty or the clock from stopping, even by declining the penalty; 3) the cost-benefit disparity arises because the defense intentionally commits a penalty, something teams do not want to do under ordinary rules and practices and something that rulemakers probably do not want them doing; and 4) the opportunity to gain those advantages incentivizes the defense to make this move regularly.

In fact, the NFL recognized this gap iand tried to stop it with a limiting rule. The problem seems to be that the limiting rule has not gone far enough.

This play sits at the intersection of three rules.

     1) Under Rule 4-3-2(f), when the clock is stopped following a foul by either team, the clock starts as if no foul had occurred. So if the clock would have kept running but for the foul, the clock starts as soon as the ball is ready; if the clock would have stopped but for the foul, it starts on the next snap.

     2) But Rule 4-3-2(f) contains three exceptions: The clock starts on the snap when the foul occurs in the last two minutes of the first half, last five minutes of the second half, and when a specific rule prescribes otherwise.  R. 4-3-2(f)(1), (2), (3). 4-3-2(f)(2) covered the Saints-Falcons game.

     3) Finally, there is a specific rule prescribing otherwise:  Rule 4-7-1 prohibits teams from "conserving time" by committing certain acts, including "any other intentional foul that causes the clock to stop." R. 4-7-1(f). The penalty for this act is a 10-second run-off and the clock starts when the ball is ready.

Rule 4-7-1 is a limiting rule. It closes a gap in the rules by imposing the outcome that would have resulted on the play--clock runs, including the ten seconds it would have taken for the ball to be spotted--and putting us in the same place as if the had not been called. By imposing that outcome, the limiting rule eliminates any incentive to commit intentional penalties and thus to act in a way contrary to the game's expectation. The problem is that the limiting rule does not go far enough--it is limited to the final minute of each half, so it does not reach intentional fouls that occur with slightly more time remaining, even if those time-conservation incentives are as present. That seems to have been the case in the Saints-Falcons game. The rule also does not address unintentional fouls, meaning a trailing team might gain that significant cost-benefit advantage, even if only accidentally.

The answer is to expand the limiting rules. Perhaps Rule 4-7-1 should be extended to the final three minutes (at least of the second half), when a leading team is already in time-wasting mode and the trailing team is in time-conserving mode. The increasing sophistication with which NFL coaches understand and strategize those final minutes--discussed weekly on advanced metrics sites--suggests teams have an incentive to begin doing this earlier than the one-minute mark.

Better still, eliminate the exceptions in Rule 4-3-2(f) for the final five minutes of the game.  Instead, the clock always should start for the next play as if no foul had occurred on the previous play; if the clock would have continued running, it should keep running (as would have happened in the Saints-Falcons game). Rule 4-7-1 then could perform the narrower function of disincentivizing intentional fouls by imposing an additional cost--a 10-second run-off-- for any intentional fouls committed to stop the clock. In either case, the trailing team would no longer receive (intentionally or unintentionally) the equivalent of a time-out by committing a penalty, thereby presumably removing the incentive to commit the intentional foul.

This is a fun question, because it illustrates how rules collide. Levin does say in his commentary that he spoke with people from the NFL and they did not see this as a big problem. My best guess on that is that R. 4-3-2(f)(1) and (2) probably were designed to create more excitement in close games, by allowing the clock to stop more, allowing for more plays, and, perhaps, more comebacks. That purpose has now run into possible gamesmanship in taking penalties, but the league may consider the balance between excitement and gamesmanship properly struck.

Posted by Howard Wasserman on November 27, 2013 at 09:31 AM in Howard Wasserman, Sports | Permalink | Comments (7) | TrackBack

Sunday, October 27, 2013

Baseball rules, again

One year after benefiting from a bizarre and controversial (although I believe correct) Infield Fly call in the NL WIld Card, the St. Louis Cardinals won Game 3 of the World Series on an obstruction call on the Red Sox third baseman. Although early reaction (at least outside the Red Sox clubhouse) seems to approve of the call, this one will remain a point of contention, both because it occurred in the World Series and because it allowed the game-winning run to score (officially, it was scored an error on the third baseman who obstructed).

 

Rule 2.00 of the Official Baseball Rules defines "Obstruction" as "act of a fielder who, while not in possession of the ball and not in the act of fielding the ball, impedes the progress of any runner." A Comment to the rule provides that a fielder can occupy space when "in the act of fielding a ball," but once he has attempted to field a ball and missed, he can no longer be in the act. Thus, if a player dives at a ball and continues to lie on the ground after it is passed him and delays the runner's progress, "he very likely has obstructed the runner." The rule has no intent requirement; impeding the runner, even unintentionally, constitutes obstruction. Under R. 7.06(b), the umpire can "impose such penalties, if any, as in his judgment will nullify the act of obstruction;" typically, that is awarding base the player would have been entitled to without the obstruction, in this case, home.

And here is the umpires' post-game press conference, which can best be described as an opinion issued orally from the bench, explaining the court's judgment.

 

A couple of themes emerge that, I think, support the call. First, intent does not matter, only the result. Even if (as here) it is almost unfair because the play happened too quickly for the fielder to do anything to get out of the way. Second, while the internet is talking about the Sox third baseman's legs going up in the air, the umpires insisted that it was not the legs, but the fielder's body that created the obstruction. Third, it did not matter that the runner was inside the foul line when he tripped over the fielder (one ump said he was right on the chalk, the video suggests he was inside the line), a point the Red Sox players kept repeating in interviews; a runner can "make his own baseline" by picking the most direct path to the next base.

As expected, some players (Sox starter Jake Peavy was one) complained about the game ending on the umpire's call and the umpire "deciding" the game, a reflection of what Mitch Berman has called "temporal variance" in enforcement of sports rules. That argument seems especially incoherent in this context. After all, the Cardinals could just as easily argue that the play was important precisely because the Cardinals had a chance to score the game-winning run and the Sox were preventing him from doing so in a way not allowed under the rules.

Anyway, obstruction now will be the word of the rest of this Series.

Posted by Howard Wasserman on October 27, 2013 at 08:51 AM in Howard Wasserman, Sports | Permalink | Comments (11) | TrackBack

Wednesday, October 16, 2013

Olympic free expression at 45

OriginalToday (Wednesday, October 16) is the 45th anniversary of the Tommie Smith/John Carlos Black Power salute on the medal stand following the 200 meters at the 1968 Olympics in Mexico City. The third person on the stand is Australian Peter Norman, the silver medalist, who supported Smith and Carlos by giving them his gloves and standing at attention while wearing a badge of the Olympic Project for Human Rights. And while Smith and Carlos are generally regarded as heroes who took a stand, 45 years ago they were vilified and expelled from the games.

Of course, gay rights have become an issue for the 2014 Winter Olymics in Sochi, Russia, given recent legislation prohibiting gay-rights "propaganda" and public displays of homosexuality or support for homosexuality. And the International Olympic Committee has repeatedly and publicly reminded athletes of IOC regulations requiring respect for the home country and its laws--in other words, athlete protests of these laws will not be tolerated.

In other words, the "Olympic Ideal" of free expression has not evolved much in 45 years.

Posted by Howard Wasserman on October 16, 2013 at 09:31 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (0) | TrackBack

Tuesday, October 08, 2013

Baseball and removal

Baseball player and PED pariah Alex Rodriguez sued Major League Baseball in state court in New York last week, asserting claims for tortious interference with existing contract (his contract with the New York Yankees) and tortious interference with prospective business relationship (because sponsors have dropped or refused to hire him). Today, MLB removed the action to the Southern District of New York.

But the basis for removal was not, as one might expect in a tort suit, diversity. That removal would have been impossible. MLB is an unincorporated association of its 32 teams, which are themselves unincorporated associations and partnerships; each team is a citizen of every state in which a member or partner is a citizen, meaning MLB is a citizen of every such state. MLB thus is a citizen of New York (among other places), as is Rodriguez, meaning complete diversity is lacking. Moreover, because MLB is a citizen of New York, it cannot remove a diversity action under the Forum Defendant Rule.

Instead, removal was based on federal question jurisdiction under the doctrine of complete preemption. MLB argues that Rodriguez's claim, which functionally challenges his suspensiona and the process by which that suspension was imposed, is preempted by § 301 of the Labor Management Relations Act and MLB's agreements with the MLBPA. The LMRA is one of a few federal statutes (ERISA and the National Bank Act are the others) that have "uniquely powerful preemptive force;" the statute provides the only available cause of action in this realm, such that any state law claim is converted into a federal claim arising under the federal statute. Thus, although Rodriguez pled state-law claims, such state claims do not exist. His claims therefore arise under federal law (the LMRA) and are removable as such.

Complete preemption is controversial and in many ways makes no sense. Preemption ordinarily is a defense; the preemptive force of federal law defeats the state law claim and warrants its dismissal. But that argument is made in state court. By allowing removal to federal court, the doctrine carves an unexplained exception to the Well-Pleaded Complaint Rule, under which removal can only be based on the claims appearing in the complaint, not on defenses. The response, I suppose, is that this is a unqiue form of preemption, which converts the nature of the cause of action; removal is not based on a defense, but on the actual claim, recast in light of federal law's preemptive force.  But the Court has never explained or justified what Justice Scalia has derided as this "federalize-and-remove dance."

It is particularly obvious in this case that the LMRA provides a defense rather than a change to the claim. With the case now in federal court, MLB almost certainly will argue that the civil action should be dismissed because the claims are governed by MLB's Basic Agreement (its CBA) and related agreements respecting drug use and testing, which empower the commissioner with respect to PED use and commit challenges to that power to binding arbitration. In other words, the LMRA and the Basic Agreement are doing double work--providing the jurisdictional hook to put the case in federal court, then providing the merits hook to defeat the claim. This offends my basic belief that rules should be either merits or jurisdictional but never both. In any event, the extra step seems wasteful and unncecessary. It would have been simpler and more efficient for MLB to simply move to dismiss in state court in favor of arbitration.

Posted by Howard Wasserman on October 8, 2013 at 09:31 AM in Civil Procedure, Howard Wasserman, Sports | Permalink | Comments (1) | TrackBack

Sunday, September 29, 2013

How else do you enforce rules?

Last week, the NCAA reduced some of the sanctions imposed on the Penn State football program for the sexual abuse committed by a former assistant coach. Geoffrey Rapp (Toledo) describes this as "punisher's remorse"--the NCAA "realized the victims are the current players. It’s not really putting any hurt on the people that we think are really responsible."

I disagree that only the current players are being hurt. Penn State University as an institution was being punished. And if Penn State cannot be punished, then the entire scheme of NCAA regulations is unenforceable (and humor me for the moment and assume NCAA regs are worth enforcing). Any long-lasting institution survives its individual members; old members are replaced by new members, but the institution is understood to survive uninterrupted. And the institution bears responsibility for the conduct of its members--past, present, and future. The players and coaches who break rules are always gone by the time enforcement comes down. If that punishment is wrongful because current (rather than rule-breaking) players are in the institution at the time of enforcement, then punishment of the institution always becomes wrongful. Even in a case of lack of institutional control (as Penn State arguably was), the institution could always argue that its failure was to control previous players, but that shouldn't be taken out on current players. But then the university gets off scott-free and has no incentive to police its future members, because it always can argue against punishment falling on its current players.

Taken to its conclusion, Geoff's argument applies to any institution and institutional punishments. Germany should not be made to provide reparations or other compensation to Holocaust victims because the punishment falls on the current German government and citizens; ditto for arguments with respect to slavery. International law (which I rarely cite or discuss) recognizes the concept of successor governments. Why not for universities in the field of NCAA enforcement?

All that said, I agree with Geoff that this is an example of "punisher's remorse", a term I wish I had used in a radio interview I did last week. But the remorse is over punishing Penn State--the NCAA does not want one of its flagship institutions under such a harsh punishment.

Posted by Howard Wasserman on September 29, 2013 at 12:24 PM in Current Affairs, Howard Wasserman, Sports | Permalink | Comments (0) | TrackBack

Friday, September 06, 2013

What is the civil justice system for?

The general view seems to be that the NFL won and the players lost with the $ 765 million settlement of the head-trauma class action. An illustrative missive comes from Charles Pierce, who speaks of the NFL "buy[ing] silence," essentially copping a "nolo [contendere] plea" that should not happen in a just world, and having "bought itself out from under its responsibilities." I have not decided what I think about the settlement, largely because I do not know enough about the merits of the NFL's labor preemption arguments. But Pierce's article fundamentally misunderstands the purposes and operation of the civil justice system.

Settlement is part of the civil justice system, particularly in damages actions. The pressure to settle comes from multiple sources, often including the presiding judge (as was the case here, where Judge Brody ordered the parties to mediation and set a deadline for settling). The plaintiffs, who know more about the case than anyone sitting on the outside commenting, agreed to the settlement. There was a professional mediator involved, who worked to bring everyone to an ultimately mutually agreeable solution. And the judge still must sign-off on the agreement (and presumably will). So the ire at the NFL and the suggestion that it somehow has escaped justice by paying money seems misplaced, when the league did not settle unilaterally or in a vacuum, but only with the agreement of several other actors. And Pierce's comparison of the NFL to Texas fertilizer plants that uniltaerally refuse (presumably in violation of law) to allow inspections is, to say the least, overwrought. The NFL did nothing wrong in the context of litigation other than availing itself of its procedural rights and the settlement mechanism; it is troubling to tar an entity for doing that.

Even if we accept that too many cases settle and that "truth" is lost by over-settlement, Pierce still ignores what litigation is all about and how it functions. It is not some public auto-da-fe in which the NFL would have confessed its sins and had punishment imposed. Discovery, particularly depositions of present and former NFL officials, would have been conducted in private and likely placed under seal (as determined by the court, not the league acting unilaterally).  At best, discovery might have driven-up the settlement value. But Pierce is angry about the fact of settlement, not the amount; the mythical $ 10 billion settlement that some predicted would still entail "buying silence." The only public component would have been trial. But trial occurs in so few cases (again, not the NFL's fault), and in this case might not have happened for years (followed by even more years of appeals). So the notion that settling short-circuited some immediate public accounting seems far-fetched.

Further, the NFL asserted several potentially meritorious legal defenses about assumption of risk, preemption by workers' compensation schemes, and, especially, arbitrability under the CBA. It was possible that, had the parties not settled last month, the complaint would have been dismissed as to many players. According to recent reports, Judge Brody hinted to the parties that she was inclned to find many of the claims subject to arbitration, which explains why the case settled when it and for the unexpectedly lesser amount. It also is possible that, even at trial on the ultimate merits of the tort claims, the league still would have won. Pierce's response, I imagine, would have been that the NFL somehow acts nefariously in asserting those legal rights or in demanding the plaintiffs prove their case. But again, this is not some public confession ritual; it is a judicial proceeding in which the court must apply controlling law (including legal defenses such as arbitrability) and the complaining party is put to its burden of persuasion.

Pierce sees this as a public-health issue, demanding that the truth about the inherent risks of football and what the NFL knows of those risks be aired so decisions about the game's future can be made. He is right about the public-health part. But damages litigation--designed to compensate injured players and perhaps impose a monetary punishment on the league--can only indirectly provide public-health solutions. What Pierce wants, really, is not litigation, but something like a congressional hearing--a free-standing inquisition supported by subpoena power into a public problem or issue, disassociated from particular legal rules, claims of right, defenses, or legal remedies. Of course, it is highly unlikely that Congress or any executive agency ever will undertake such an investigation, which probably is why Pierce sees litigation as the only hope.

Finally, not all change happens through formal legal and political processes. We also should not overlook the value of journalistic and scientific investigations into the problem. The upcoming documentary from PBS' Frontline, which is going to attract a larger audience after ESPN's sudden decision to take its name off the project, may do a lot to drive the conversation forward. Journalism, not litigation, moved the ball on the meat-packing industry a century ago. Perhaps that also will be the case here.

Which is not to say there is not value in Pierce's essay. It is hard to find good, short readings for the few minutes we spend on settlement in Civ Pro. This actually may be good for that, if only to move students into a more lawyerly understanding of how settlement fits in civil litigation.

Posted by Howard Wasserman on September 6, 2013 at 09:55 AM in Civil Procedure, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (3) | TrackBack

Gladwell on PEDs

Malcolm Gladwell has a piece in The New Yorker (which he defends on this podcast) that basically lays out in detail an argument I've made previously--there is no good reason that performance-enhancing drugs are outlawed when performance-enhancing medical procedures (e.g., Tommy John surgery or eye surgery to improve vision) are permitted and that people with random genetic benefits (for example, an Olympic cross-country skier with a genetic mutation that over-produces red blood cells, which provides a tremendous advantage in endurance sports) are allowed to benefit from them. It is definitely worth a read, as is the new book The Sports Gene by journalist David Epstein, which Gladwell is reviewing in this piece.

People (particularly present and former players, who should know better) often criticize PEDs as short-cuts and PED users as lazy; the player used instead of putting in the hard work of making himself a great player. In fact, many PEDs actually are all about hard work; the reason cyclists blood dope is so their bodies can work harder for longer and the benefit of steroids is to allow players to work-out longer and become stronger. When Lance Armstrong insisted "I am on my bike busting my ass six hours a day", he was telling the truth; the doping was what made it humanly possible for him to do that much work.  On the other hand, we don't think of genetic advantages (say, especially good eyesight for a Major League hitter) as a short-cut, but as a natural tool that the player then must maximize through hard work. The point of PEDs is to level that genetic advantage, which he then must maximize through hard work. What's wrong with that?

Posted by Howard Wasserman on September 6, 2013 at 07:46 AM in Current Affairs, Sports | Permalink | Comments (11) | TrackBack

Thursday, August 29, 2013

Settlement in NFL concussion lawsuit

The class action against the NFL by more than 4000 former players, alleging that the league knew and failed to disclose the risks of head trauma associated with the game, has tentatively settled. Players will receive $ 765 million (plus court-approved attorneys' fees to be determined later) for individual compensation (reportedly about $ 110,000 per plaintiff), plus funding for research and medical examinations. The settlement was reached following court-ordered mediation, although the agreement still must be approved by the court.

Much is being made in some sports-media circles about the size of the settlement relative to the NFL's wealth, but, of course, civil damages are tied to the harm to the plaintiffs, not to the defendant's ability to play. We might question whether the settlement figure provides sufficient deterrence that the NFL will take real steps (as opposed to the cosmetic ones it has been taking) to make the game safer--assuming such a thing is actually possible (I have my doubts).

Like many other cases, this one also highlights the question whether settlement, especially in money cases, furthers the civil justice system's goals of discovering the truth. There was no discovery, so we never really learned what the NFL knows and has known about the game's risks or about what those risks actually might be (the answer to both is "a lot," according to a forthcoming documentary). We also have not heard the plaintiffs' stories told in a judicial forum (although we might not have). Of course, discovery in a case like this almost certainly would have been sealed, a regular practice that presents a different problem in modern litigation. And the plaintiffs' willingness to settle this early makes sense, because this case would have been a ripe target for a Twiqbal-based 12(b)(6) and a motion to send the entire issue to arbitration under the CBA.

Update: The prevailing view among sports columnists is that the NFL won huge, although this seems to be because legal experts predicted settlements of between $ 5 and $ 10 billion, so a figure of less than $ 1 billion is so paltry that plaintiffs' attorneys must have caved. So did they cave? Or does this just show the limited ability of "legal experts" to predict anything?

Posted by Howard Wasserman on August 29, 2013 at 06:40 PM in Civil Procedure, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (3) | TrackBack

Sport and speech: The Bobblehead

RickmondayMonday night was Rick Monday Flag-Saving Bobblehead Night at Dodger Stadium. In 1976, two damn hippies (no doubt the common characterization at the time) tried to burn an American flag on the field during a game between the Cubs and Dodgers; Monday, then the Cubs centerfielder (he later played for the Dodgers), snatched the flag away. Video of the incident is included in the link.

Monday discussed it in a 2006 interview:

“That means something, because this wasn’t just a flag on the field. This was a flag that people looked at with respect. We have a lot of rights and freedoms — not to sound corny — but we all have the option if we don’t like something to make it better. Or you also have the option, if you don’t like it, [to] pack up and leave. But don’t come onto the field and burn an American flag.”

While I have argued that the stands of a ballpark qualify for designated public-forum status, the field itself does not, because speech is inconsistent with expected uses (i.e., playing baseball). So Monday is half-right in that last sentence: Don't come onto the field and burn an American flag. Make sure you stay in a public forum.

Posted by Howard Wasserman on August 29, 2013 at 08:13 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (2) | TrackBack

Wednesday, August 28, 2013

Fixed matches and cultural capital

A new article in ESPN The Magazine (which includes an embedded video) tells the story of rumors that Bobby Riggs tanked the famous "Battle of the Sexes" tennis match against Billie Jean King, which was played 40 years ago next month. The touchstone of the piece is an interview with a man who claims to have overheard two mob bosses and a mob lawyer discussing Riggs' tanking several months before the match, although rumors that Riggs threw it have abounded for 40 years.

Two notable things in the article. First, Riggs' son and his best friend both suggested that Riggs' famous pre-match chauvinism was all for show, that he believed in gender equality and had worked with a female coach at the start of his career. Second, the story ends with Riggs and King speaking several days before Riggs died in 1995; King says she told Riggs how important their match was to women and the women's movement. "'"Well, we did it," Bobby Riggs finally told her. "We really made a difference, didn't we?""

What if Riggs did tank? The match is a cultural milestone because it purported to show that women could successfully compete with men. That idea is absolutely true, of course (although not in high-level professional sports, and I wish the sports conversation would move away from women competing with men so we could enjoy women's sports on their own merits). But the match no longer represents the idea if King did not actually beat Riggs. On the other hand, suppose Riggs tanked because he saw that he could advance the cause of women's rights and women's equality (ideas to which he perhaps was sympathetic) by losing. Regardless of whether the win was real, it laid the groundwork for what we now, 40 years on, understand as true. And his dying words to King suggest he may have understood that.

Posted by Howard Wasserman on August 28, 2013 at 09:31 AM in Current Affairs, Howard Wasserman, Sports | Permalink | Comments (0) | TrackBack

Wednesday, August 21, 2013

Seriously? quote of the day

From a public statement by the Fairfield County (OH) School District, announcing it would allow a 12-year-old girl to play football rather than defend its ban (which it never explained) in litigation that the ACLU threatened to bring on the girl's behalf:

"We have no intent of competing with the deep pockets of the ACLU in any litigation situation in order to secure a favorable judgment," the district said in a statement. "Therefore, we will allow female participation in contact sports."

Really? The ACLU has deep pockets? The ACLU's pockets for litigation are lined with the money it recovers from idiotic governments--like Franklin Fairfield County--when it successfully challenges pointless-but-unconstitutional like this one. Still, it's a nice piece of demagoguery that might play well with the public. And the school district is not necessarily alone--Justice Scalia expressed similar beliefs about public-interest groups wielding superior  financial resources to overwhelm governments in § 1983 litigation.

I do agree with one commentator, who noted that such a statement indicates the district still does not support the girl's efforts, is not convinced she is legally entitled to play, and potentially not willing to give her the backing she needs (that is, the same backing as all other players get). We may not be done with this story.

Posted by Howard Wasserman on August 21, 2013 at 09:13 PM in Constitutional thoughts, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (15) | TrackBack