PrawfsBlawg

Tiger Woods and the Wall Street Journal

There's a fascinating story in the WSJ about efforts by Tiger Woods to hide past indiscretions.  However, this paragraph within the story reminded me that Tiger is not the only one who made a deal with the tabloids:

The woman purportedly photographed with Mr. Woods in 2007, a Florida restaurant employee named Mindy Lawton—along with at least one of her family members—was recently promised an undisclosed sum in return for telling her story exclusively to News of the World, a London-based tabloid owned by News Corp., which also owns The Wall Street Journal. The agreement blocks her from discussing her alleged relationship until after Dec. 20—two weeks after it was first published in the U.K., according to people familiar with the matter.

I found it a little odd that News of the World refused to lend out a source to a sibling news organization.  Seems to show a lack of synergy -- but perhaps that's a good thing.

Mack Brown's $2 million raise

Having complained about Jim Calhoun's $1.6 million salary, I think I'm obligated to take issue with a raise that dwarfs Calhoun's entire salary.  Mack Brown is now making $5.1 million a year as a football coach through the year 2016 (or until the next raise).  A resolution of the UT Faculty Council said the deal was "unseemly and inappropriate." This resolution has drawn its own share of criticism.  The UT president pointed out that the athletic program, under Brown, has had no subsidies or deficits and has channeled $6.6 million into academic programs in recent years.  This is the same version of the argument used to support Calhoun's salary -- namely, the athletic programs more than pay for themselves, so they can pay their people in the millions of dollars.  Just today I heard ESPN personalities Mike Greenberg & Tony Kornheiser accuse the UT professors ("eggheads," in Kornheiser's parlance) of being completely wrong on the economics.

What the commentators are missing -- or, at least not talking about -- is that the "market" for college coaches is a grossly distorted one.  There is a lot of money floating around college sports -- primarily through TV contracts, but also ticket sales, team endorsements, licensing, and advertising.  But that money has nowhere to go, other than to the schools and the coaches.  The NCAA places strict limits on what players can get from their university -- only a scholarship.  And NBA and NFL rules essentially require that players spend time in college before entering the pros.  So what we have are athletes who must spend time in college to pursue their profession but cannot get paid for it.  So the money goes instead to the coaches.

If you have any doubt about this, just look at baseball.  Baseball has a thriving minor league system; there is college baseball, but you need not go to college to get into the pros.  How much do college baseball coaches get? This article says they make about one-sixth what football coaches make.  This one (from 2007) says that the highest paid college baseball coach makes $600,000.  Or look at pro football.  Only four NFL coaches made more than Mack Brown last year (according to this estimation).  Thirteen made less than $3 million; five made less than his raise. 

If we are going to keep the system we have, let's be honest about it.  We now take talented young athletes and use their skills to fund our universities.  The coaches help facilitate this -- and they are taking more and more off the top.  There are reasons to support this system, but saying that coaches "deserve" this money because of a distorted market is not one of them.

Illegal Motion?

My wife loves this clip and it has grown on me. But I must ask the football-rules question: Is this Illegal Motion?

Congress and the BCS

Yesterday, a subcommittee of the House Committee on Energy and Commerce passed H.R. 390, which prohibits the "promot[ion], market[ing], or advertis[ing]" of a post-season Division I college football game as a national championship game unless it is the final game of a single-elimination post-season playoff tournament rather than the current BCS system. It also prohibits the sale, marketing, or advertising of merchandise related to a national-championship game unless it is for the final game of a single-elimination playoff tournament. The Federal Trade Commission is given enforcement jurisdiction, with the practices prohibited in the act treated as unfair or deceptive trade practices.

The obvious reaction is to wonder whether Congress has anything better to do. Not because Congress cannot do many things at once--as co-sponsor Bobby Rush said, "We can walk and chew gum at the same time"--but because I am not sure why there is a sufficient national public interest to warrant congressional action.

My broader reaction is to wonder whether there is a First Amendment problem here. The bill clearly tries to limit itself to commercial speech--selling, marketing, advertising--that receives less (although still significant) First Amendment protection. Commercial speech can be restricted if it is untruthful or misleading and then is essentially subject to intermediate scrutiny--it must directly serve a substantial government interest and must regulate no more extensively than necessary to serve that interest. But is it "untruthful" or "misleading" to call the upcoming BCS Championship Game between Alabama and Texas a "championship" game (or to call the winner of that game "National Champion" simply because Congress or the FTC does not like the process used to decide the game's participants? This is not like the FTC prohibiting Tylenol from saying it cures cancer or prohibiting OxyClean from saying one use and you'll never have to clean your whites again or prohibiting Nike from directly stating that these new sneakers will enable you to run a two-hour marathon--empirically dubious claims, all. Plus, I am not sure what substantial government interest is at stake here; it does not appear to be public health, safety, or welfare--unless you happen to be a fan of TCU or Boise State.

Plus, this may come close to regulating fully-protected non-commercial speech. The prohibition on sales of merchandise "related to" a non-playoff national championship game would reach, for example, selling hats and t-shirts that say "Alabama/Texas 2009 National Champion." But the fact that something expressive (in this case the hat with the National Champion message) is sold does not make it commercial speech; the seller in this example is engaged in the sale of non-commercial expressive material and the attempt to regulate that sale should be subject to regular First Amendment scrutiny. And obviously the FTC cannot prohibit people from wearing merchandise pronouncing Texas/Alabama as National Champion based on victory in a BCS-based game. Nor can it prohibit the University of Alabama from, say, introducing its team as National Champions, hanging a National Champion banner on its stadium, or wearing special jerseys that say "National Champions." Any such effort would, it seems to me, plainly violate the First Amendment.

All of which calls into question why the bill takes the approach it does. Given the strong interstate commerce connections of collegiate sports, it seems that Congress could directly compel the NCAA and its members to adopt a playoff. It also could have attached a playoff system as a condition on federal funds (which every NCAA member school receives). So it seems odd to incentivize the NCAA into adopting a playoff by going after expression. Seems like what the First Amendment is designed to prevent.

Instant Replay: Let's See That One More Time

My post suggesting de novo review of instant replays led to typically insightful posts from Howard here and from Ilya Somin over at VC, and also to some very interesting comments. Since I write on constitutional law and am thus utterly incapable of leaving well enough alone, I’ll try respond to some of them.

First, I should say that I share much of the general antipathy for the overuse of instant replay, primarily because of the disruption it causes to the flow of a game. So I fully support procedural default-type rules that limit the use of replays—challenges must be made before the next play starts, only a certain number are allowed, and so on. But I think those raise different questions than what standard of review should apply once a call is under review, at least as far as game disruption is concerned. After all, it takes just as long to uphold a wrong call as to overturn it.

A few folks here and at VC have emphasized that, as a practical matter, cameras are not always better positioned than a line judge or a referee. That’s a strong objection, but I don't think it has to be a fatal one—if we're going to have instant replay and take it seriously, then more and better cameras are always an option. Why not put one facing across the field at the end zone, or roll one along with the chains to make first down calls easier? Of course it may be that certain kinds of calls should be entitled to more deference or be entirely unreviewable (as some calls are, both in sports and in law), but when it comes to rule-like questions such as whether a play got off in time, whether the ball crossed the plane, or whether a player’s knee was down before he fumbled, it still seems to me that cameras would have the advantage in most cases.

As far as the appellate analogy goes, one particularly interesting argument, which Ilya mentions (though doesn’t endorse) and which has come up in a lot of the comments, is that the purpose—not just the function—of heightened standards of review may be to deter the use of instant replay by lowering the expected payoff. But if the underlying goal of of this deterrence would be to speed up the game, then I'd imagine that the procedural default-type rules mentioned above would be a better way of achieving it.

And if instead the goal of deterring challenges would be to somehow preserve the integrity of the game, it raises other more difficult questions. Is a system that purposefully insulates incorrect rulings—not based on any comparative advantage of the original decisionmaker, but simply for finality's sake—really going to have more long-term legitimacy than one that frankly admits its mistakes? I guess that’s an empirical question, and although my inclination is to say no, I could be totally wrong. After all, in the words of one of the canonical works of legal academia, “[t]he umpire must have the status of an unchallengeable finder of fact. Allowing challenges to his authority on matters of rules admits the possibility that he may be wrong, and encourages a new generation of challenges to findings of fact.” The Common Law Origins of the Infield Fly Rule, 123 U. Pa. L. Rev. 1474, 1480 (1975).

Standards of review and instant replay: A different take

Joseph asks a great question: Why is instant-replay review not subject to de novo review as opposed to a more-deferential standard. I have not been writing much lately, so I thought I would turn a comment into a separate post. First, let me say that long have hated replay in sports, so perhaps take this with a grain of salt and recognize that I would argue for any way to limit the full effect of replay.

I would argue that the deferential use of replay review reflects (implicitly, if not explicitly) an understanding of the limits of video. Video does not provide an objectively "right" answer. It simply provides another angle/perspective/viewpoint of the events, usually one different than what the official had. And not just because it can be slowed down and played backwards and rewatched multiple times, but because of differences between where the camera is and where the official was standing. And, of course, what the video "shows" is as dependent on the perceptions of the official watching the replay as was the original call on the field.

Given the reality of how film operates and how we view and understand film, deferential review makes sense because there is a form of institutional competence at work here (which, as Joseph notes, is the general rationale for differing standards of review). Video is not better situated to give an obviously, objectively correct answer than the initial call, at least not in all (many? most?) situations. That being so, there is no reason to give preference to the new viewpoint/perspective over the initial on-field one, unless review clearly shows a mistake. If video cannot necessarily produce a better (in the sense of more accurate) result, then it makes sense to leave control with the initial decision, absent an obvious error.

Why Aren't Instant Replays Reviewed De Novo?

Many thanks to the whole Prawfs crowd for having me here. Throughout the month I’ll try to blog a bit about constitutional law and being a first year law professor, but I’m going to start with a question of much broader significance: Why are instant replays in the NFL (or in any other sport) subject to a heightened standard of review that requires “conclusive” or “indisputable” evidence to overturn an incorrect call?  Why not review them de novo?

These are familiar questions for lawyers, of course. Standards of review insulate factfinders’ decisions from being overturned on appeal, even when reviewing judges disagree with them. A decision about trial management, for example, can be in some sense “wrong” without being an abuse of discretion. As long as it’s not the latter, it'll stand.

And there may be good reasons for this. If standards of review are essentially a way of allocating decisionmaking authority between trial and appellate courts based on their relative strengths, then it probably makes sense that the former get primary control over factfinding and trial management (i.e., their decisions on those matters are subject only to clear error or abuse of discretion review), while the latter get a fresh crack at purely “legal” issues (i.e., such issues are reviewed de novo). Heightened standards of review apply in areas where trial courts are in the best place to make correct decisions.

But I don’t see how those arguments apply at all to instant replay in sports, which after all are just appeals of a different kind. An umpire or referee operating in real time is not in a better place to make a correct call than another referee (or even the same one) viewing the same play, from multiple angles, in slow motion, on a monitor. Am I missing something, or aren’t the usual arguments for having a strict standard of review—primarily, the relative competence of the factfinder—absent in the context of instant replay?

While puzzling through this momentous issue during last night’s Saints-Pats blowout, I learned that illustrious (aren’t they all?) Prawfs alumnus Chad Oldfather has done some actual, longer-than-a-blog-post thinking about it. He and Marquette 3L Matthew Fernholz have co-authored an interesting new piece called Comparative Procedure on a Sunday Afternoon: Instant Replay in the NFL as a Process of Appellate Review, __ Ind. L. Rev. (forthcoming 2010), which as I read it doesn’t take a stand in favor of de novo review (see n. 97) but does use the process of instant replay in the NFL to elucidate some general principles of appellate review.

And for a multimedia version of the principle in action, check out the review of Brad Miller’s possible-buzzer-beater against the Nuggets last month.

First World Series – A Numbers Game

 

 

My colleagues would be shocked to see me discuss anything related to baseball, but I found this bit of trivia (in contrast to baseball, generally) to be too fascinating to ignore. According to The New York Times, today is the 106^th anniversary of the end of the first World Series. As the Times reports, "Held in 1903, the Boston Americans beat the Pittsburgh Pirates 3-0 to win the series five games to three." That’s quite a few “three’s,” when you consider a 3-0 win in 1903. Apparently, there’s also a World Series of Poker, and a lawyer won the $5 million prize in 2004. There’s even a book connecting the skills of the game of poker with law practice. Returning to baseball, one of the most interesting legal references was the “Eight Men Out” scandal, which was first most widely discussed in a book from 1963 (there’s that “three” again) and recently referenced in great commentary from Chicago Lawyer magazine. It was also chronicled in a popular film. What are some other connections between law and baseball?

 

 

 

Baseballs in the stands: End of the tradition?

In light of the controversy over Ryan Howard's home run ball, as well as past disputes over ownership of other record-setting and significant balls, I wonder if we are heading towards a change in how baseballs hit into the stands (at least fair balls) are treated.

It seems to me that MLB and individual teams control this. Fans keeping baseballs is a matter of tradition and historical practice, practice that is not followed in most other sports--football, basketball, tennis. The question of how a ball should be treated under state property rules depends on the teams--the owners of the stadiums--not simply declaring that all balls remaining within the stadium (or remaining within the stadium and in fair territory) remain the property of MLB and must be returned.

Such a move would not be popular, of course, as it flies in the face of the intrinsic joy of fans catching home run balls (that several commenters mentioned on my earlier post). But I wonder if teams might find it better than getting into legal disputes with fans when players want important balls, not to mention having fans committing simple battery in an attempt to catch a ball. Simply take away any "right" to keep the balls. Of course, would this mean teams would have to enforce the rules every time, not just on important balls? Or would it be enough for the teams to reserve the right to get a ball back whenever it wished to?

I am not a property scholar, so I invite those more in the know to weigh in.

Greedy athletes or greedy fans?

It must be Sports Week for me again. I find this story really sad--as a baseball fan and as a lawyer.

Short version: Ryan Howard of the Phillies hit his 200th career homer this summer in a game in Miami; the ball was caught by 12-year-old Jennifer Valdivia. Howard reached the 200-homer mark in the fastest time in history, so he wanted the ball. Phillies officials brought Jennifer in to the clubhouse, where they got her to give up the home run ball in exchange for a ball autographed by Howard. But the family decided they wanted the home run ball because, apparently on advice of counsel, it would be worth more. So on Monday, the family sued for rescission; the Phillies gave her the ball back.

Three thoughts.

First, this seems like a bad trade for Ms. Valdivia and her family. If the Barry Bonds home run ball fiasco taught us anything, it is that "historic" home run balls do not have nearly as much value as many fans assume. Her attorney is described in the story as a "memorabilia enthusiast," so he probably knows something about value that I don't. But the ball is unique only because of the "fastest-to" mark that is a largely meaningless, made-up record. If Ryan Howard goes to the Hall of Fame (and I believe he will, at his current pace), will an autograph really be worth less than his 200th home run?

Second, Ms. Valdivia, her family, and her lawyer are hereby estopped from ever again complaining about greedy professional athletes who only care about money and not the game. Howard wanted the ball for his personal satisfaction, because it represented an accomplishment that, in the long run, is meaningful only to him. He offered something of value in return. And the girl's family sued because, in crassest terms, they wanted more money (or more value).

Third, I wonder what she did with the autographed ball the Phillies originally gave her in exchange. Did she keep it? That would give her quite a windfall, to which she is not entitled. Of course, if the Phillies had asked for it back in settling a rescission claim, we would be hearing all sorts of shouts about the greedy team/player taking back what they had given this innocent fan.

Why I hate the wildcard in baseball (a biennial reprise)

There is much celebrating this morning (at least outside of Michigan) of last night's amazing one-game playoff game between the Tigers and Minnesota Twins for the AL Central Division title, a 12-inning featuring three comebacks, which the Twins finally won 6-5. So let me play the curmudgeon here.

Two years ago, journalist Robert Weintraub wrote about the 1993 pennant race between the Atlanta Braves and San Francisco Giants and said "The drama of late-season baseball has been transferred from occasional but memorable all-or-nothing contests between great teams, to annual lower-stakes games between the good-to-mediocre." He blamed the wild-card system, adopted in 1995, because any do-or-die, win-or-go-home contests to win a division or wild card occur only among lesser teams, not among the top teams. I wrote in whole-hearted agreement, using the 2007 season as a perfect example.

Well, this year bears my argument out once again. Yes, last night was a great game and it was an exciting race. But it was between two teams that finished the 162-game schedule with 86 wins--fifth-most in the league entering last night's game. None of the top teams in the American League (the 103-win Yankees, 97-win Angels, or 95-win Red Sox) had any pressure at the end of the season--all were play-off bound, just as the top teams will be every year. The only other division "race" was in the National League West, where, entering Saturday's game, the Dodgers (93 wins--most in the NL) lead the Rockies (92 wins, tied at the time for second-most prior to Saturday) by a game and were playing each other, ostensibly for the division title. But the Rockies already had the wild card won and were play-off bound, since they had the second-best record in the whole league, so they had no pressure and no real incentive to catch the Dodgers and win the division.

Two years ago, I criticized the incentive structure this creates:

A wild-card system values having lot of teams in the play-off hunt and more times with post-season hopes later in the season, with a lot of win-or-else games. But it achieves that at the expense of having the best teams playing those win-or-else games. This is sound as a business decision--more fans in more cities will come out or watch in that final weekend, knowing their teams still are alive.

But as a baseball decision, it stinks that there is no chance to showcase the best teams in these high-stakes games, at least as part of a regular season that is long enough (162 games over six months) to create a meaningful competition. So while that was a great game last night, wouldn't it be nice to have a game like that played between two great teams?

Thanks for listening. Odds are, I will be back with a similar post in 2011.

A Real Thrilla (or "Torts" Song Trilogy)

I am delighted to return to PrawfsBlawg as a guest this month, and I thought I would start off with bang, of sorts. Today marks the 34^th anniversary of the “Thrilla in Manila,” the infamous 14-round boxing match between Muhammad Ali and Joe Frazier, which is still considered one of the best bouts of all time. Ali and Frazier had met in the ring in 1971 and 1974, and this third match was one for the ages. This fight also reportedly inspired the final fight scene in Rocky. I am not a big fan of boxing, but I have fond memories of a story my grandfather told me about a nice conversation he had with Ali during a train ride many years ago – when “The Greatest” was known as Cassius Clay. These days, it’s possible to meet celebrities everywhere, and an increasing number of lawyers are among their ranks. So, my question for the day is, has anyone had a brush with a famous actor, athlete, musician, or lawyer?

Coaches teaching civ pro

I still am trying to get more legally oriented reports and documents, but it appears that the breach-of-contract dispute between the University of Kentucky and former men's basketball coach Billy Gillespie is going to turn into another object lesson in civ pro.

In July, Gillespie sued the University of Kentucky Athletics Association in federal court in Texas (where, presumably, Gillespie moved after he was fired). The Association has moved to dismiss for lack of personal jurisdiction, as well as (I would guess) improper venue or to transfer venue to the District of Kentucky.

Meanwhile, the University then sued Gillespie in state court in Kentucky and Gillespie has removed the case to federal district court in Kentucky, apparently on diversity grounds. This sets us up for a replay of the jurisdictional dispute between West Virginia University and its former football coach, Rich Rodriguez. WVU sued in state court to collect on a liquidated damages clause and Rodriguez removed; WVU moved to remand, arguing that as a state university, it was an arm of the State of West Virginia and not a citizen of the State for purposes of diversity jurisdiction in federal district court. The federal court agreed and remanded.

This same sequence could be repeated here. The outcome will depend on whether the University or the UK Athletics Association (an adjunct to the University established by the state to govern the university's intercollegiate athletics) is the plaintiff and whether either or both are deemed arms of the state.

The Meaning of Y

Recently, I’ve been thinking quite a bit about Caster Semenya, the 18-year old world-champion runner from South Africa.   In response to concerns that Semenya is too fast and that her voice is too deep and that her build is too masculine, track and field’s governing body has arranged tests to ascertain her sex.  One Italian runner, Elisa Cusma, complained: “These kind of people should not run with us. For me, she’s not a woman. She’s a man.”  The concern is not that Semenya set out to fool the governing body.  The concern is that Semenya, who grew up as female, may in fact have sufficient male characteristics to be categorized as male.  As someone who writes about gender and race as social constructs and imperfect proxies, my fascination with the Semenya case goes beyond prurient curiosity.  For me, the controversy brings to mind the racial prerequisite cases from the early 1900s that Ian Haney Lopez has written about, such as United States v. Thind and Ozawa v. United States.  It also brings to mind Ariela Gross’s work on litigating whiteness.  Bust mostly, the controversy speaks volumes about the meaning of sex and gender.

            I have no idea what the outcome will be.  A gynecologist, an endocrinologist, a psychologist, an internal medicine specialist, and an expert on gender have all been asked to examine Semenya and weigh in on the issue.  Indeed, I can easily imagine a situation in which some tests will suggest Semenya is female, while other tests will suggest she is male.  Indeed, I can easily imagine a wringing of hands, a determination that Semenya is “different” and thus ineligible to compete “as a woman” or “as a man.”  For me, the real issue is not whether Semenya is male or female, but rather our compulsive need to understand sex and gender in binary terms, even when such binary thinking excludes significant segments on the population.  It is similar to the way we need to know whether someone is black or white, straight or gay, liberal or conservative, guilty or innocent, when the reality is often far more complicated.

A NY Times article speculates that whatever the outcome, 18-year old Semenya’s life will be forever changed.  And all of this makes me ask “what if?”  Since the election of President Obama, there has been talk, however premature, of living in a post-racial world.  Clearly a post-racial world seems something we should aspire to.  But how about a post-gender world?  Should that also be on the agenda?  What might it be like to live in a world in which the first question we ask when someone is pregnant is not “boy or girl”?  What might census data collection or Title VII or Title IX or marriage equality look like in such a world?  What might it be like to live in a world without “urinary segregation,” to borrow from Lacan?  Would it be possible to live in such a world?  Would we want to?  And can the law get us there?

Baseball, punishment, and Pete Rose

Reports are coming out that MLB Commissioner Bud Selig is considering reinstating Pete Rose to baseball, during the twentieth anniversary of Rose's permanent ban from Major League Baseball for gambling on games involving the team he was managing. Reinstatement virtually ensures Rose's induction into the Hall of Fame, perhaps as early as next year. The only thing that had been keeping Rose out was Hall of Fame Rule 3E, which bars from election and induction any person on MLB's Permanently Ineligible List.

Two sort-of law-related queries after the jump.

First, I would like to hear what crim-law and punishment scholars think about this as a matter of punishment theory and practice. Rose accepted permanent ineligibility from the game as part of a settlement, likely to avoid a formal finding that he had bet on games in which his own team was involved (the evidence against him is pretty strong). He later admitted to that conduct which, under Major League Rule 21(d) carries an automatic punishment of permanent ineligibility ("shall be declared permanently ineligible"). But now it appears he is going to get back into the game (and probably the Hall) within his lifetime, although the 20 years he lost as a manager, executive, ambassador, etc., certainly are nothing to sneeze at. Is this the equivalent of a commuted sentence--he served his time, he has reformed himself, let him get on with his life? Or is this more like a pardon--a subsequent statement that Rose did nothing wrong? Are the goals and theories of punishment and of MLB furthered by this move, which ultimately gives Rose everything he wanted, if a few years late? And what do we do with the arguments (which always have seemed counter-intuitive to me) that if Rose had admitted to gambling in 1989 or any time within the past two decades, he already would (and should) have been reinstated.

Second, what about the Black Sox, the eight members of the Chicago White Sox, who were permanently banned for their various roles in taking money from gamblers to throw the 1919 World Series. Reinstating Rose would establish precedent that a permanent ban for gambling-related activity is not, in fact, a permanent ban. If Rose can be reinstated after twenty years, is there any argument against reinstating the Black Sox players after eighty?

After all, some of them were suspended for arguably less-serious infractions than Rose. Shoeless Joe Jackson (the one Black Sox player whose reinstatement likely carries with it a debate about the Hall of Fame) took money but did nothing to lose games; Buck Weaver took no money and was punished only for knowing about the fix and not informing team and league officials. Reprehensible conduct to be sure; but Selig seems to be in a forgiving mood. Moreover, without excusing the Black Sox, context matters. Baseball during the first twenty years of the last century was a few steps above professional wrestling--gambling, fixed games, and general cheating were pervasive, constantly discussed, and mostly ignored. Talk of fixed World Series games went all the way back to the first Series in 1903 and there was talk of fixes in both the 1917 and 1918 Series, as well as late-season shenanigans from 1917-19. The hiring of Kenesaw Mountain Landis as commissioner reflected a conscious move by the Major Leagues to shed that image as entertainment and become a true, on-the-level competition. By the time Rose came along, on the other hand, the rules and the history were well-established and could not have been clearer--gambling, especially gambling on games involving your team, was the ultimate baseball sin; it even was posted on the wall of every Major League Clubhouse. That knowledge arguably makes Rose's conduct more unforgivable.

Can there be any rational distinction drawn between the Sox players and Rose that would justify reinstating the latter and not some or all of the former? And is Selig aware of the box he is opening?

Congress and Sports

Over at my non-domicile home at Sports Law Blog, I have a post seeking a metric for when Congress or individual members ought to get involved in matters relating to sports.

The trigger for my question is recent efforts by Rep. Steve Cohen to push the NBA to undo its 19-year age limit for entry into the league, which Cohen describes as "discriminatory." Perhaps because this has flown under the radar (Cohen is a second-term Democrat from Memphis, most known for surviving a nasty, racially charged primary and religiously charged general election challenge in 2008), Cohen has not been criticized on the "don't you have more important things to worry about than games" front, the way House members were after the various steroids hearings or that Orrin Hatch has been for his threats against the BCS.

So my question is where is the line between Congress stepping into a matter of legitimate federal concern and "worry about more important things"? Is it when members of the public are genuinely being injured, as by the age limit (although the number is incredibly small), while such harm (beyond psychic disappointment) is missing as to the BCS? Is it a difference between internal league matters and those touching on people outside the league? Is it the difference between acting towards the undefined "integrity of the game" (e.g., steroids) as opposed to dealing with the broader business of sports (where sports are not much different than other entities regulated by federal law)? Of course, federal law does speak to things such as gambling in sports, which is all about the integrity of the game.

So is there anything to guide legislators on when sports is a proper subject for involvement?

Yankee Stadium "God Bless America" lawsuit settles

The Red Sox fan who was kicked out of (old) Yankee Stadium when he tried to leave the seating area during the playing of God Bless America back in 2008 has settled his lawsuit against the City and the Yankees. I wrote about the suit here and here.

According to news reports, the City will pay Bradford Campeau-Laurion $10,001 and the NYCLU $ 12,000 in attorneys fees. The Yankees will pay nothing, although they promise in the settlement agreement that the policy at the new Stadium is and will remain that people are free to get up and move around during the song.

Obviously, we should not read anything about the merits into the decision to settle, but consider two things. First, $ 10,001 is a significant amount, given the lack of apparent actual damages. Second, we might infer that both the City and the Yankees took the view that the state action point was not so obvious that it could be resolved on a 12(b)(6), meaning Discovery would be necessary and perhaps prompting defendants to settle.

The Soccer-Liking Lawprof

I’m a fairly big sports fan, and my enthusiasm includes (though is by no means limited to) serious appreciation for soccer on both the club and international levels. Liking soccer is a bit of a rogue taste in the U.S., where all manner of critics from reasonably smart essayists like Chuck Klosterman to brain-dead blowhards like Jim Rome are eager to go on at tiresome length about why the sport is evil and awful. (The latter has always puzzled me. There are sports I find insufferable, like golf, but I can’t imagine wasting any time obsessing or pontificating about why others don't share my distaste for it. Anyway.)

Because a preference for soccer is a tad iconoclastic, when the U.S. soccer fan runs into a kindred spirit, there’s always a distinctive bond produced by discovering a rare commonality (not unlike, one imagines, what two Kansas City Royals fans would experience if they ran into each other in Seattle). And since I’ve entered the law-teaching world, I’ve been interested to see what the overlap is between the two populations. I’ve been fortunate to have good soccer conversations with lawprofs David Schleicher, William Birdthistle, Graeme Dinwoodie, and Mike Madison (who has done some really good soccer writing over at Madisonian), but I’m sure there are others out there. So in the great Prawfs info-aggregation tradition, identify yourselves, soccer-liking lawprofs! This is mostly to satisfy my own curiosity, but may have functional value as well. If there’s ever a Champions League or World Cup game going on during a conference, having a list will help organize a group outing for game-watching purposes.

Baseball Stories in Search of a Good Legal Analogy

There’s a Supreme Court confirmation hearing on the way and that probably means we’ll be hearing some more baseball analogies.  At Chief Justice Roberts’ hearing four years ago, we heard him compare judges to umpires calling balls and strikes as they see them.  Then we heard Vice President (then Senator) Joe Biden point out that different umpires had different strike zones.  (For a recently posted analysis, see Michael Patrick Allen, A Limited Defense of (at Least Some of) the Umpire Analogy).

I’m guessing baseball metaphors are just as likely when Senators question the judge who put an end to the 1994-95 Major League Baseball strike.   So I thought I’d start a list of some of my favorite baseball trivia, stories, and bizarre coincidences in the hope that at least a few of them will provide Judge Sotomayor or the Senate Judiciary Committee with an effective and entertaining way to teach the world about the virtues required of a good judge.

I’ve suggested a few possible parallels in the legal world, but hopefully the Senate Judiciary Committee (perhaps with your help?) will be able to find some better ones.  In any case, feel free to add your own examples and reflections in the comments (and be aware that those looking for baseball metaphors that have already been tested in the crucible of judicial argument can learn a lot more from fellow Prawfsblawger Chad Oldfather’s article, The Hidden Ball: A Substantive Critique of Baseball Metaphors in Judicial Opinions, than they can from this blog post, fun though it was to write).

1.     In 1890, Mike “King” Kelly, was the manager of the Boston Reds.  When a foul ball was hit toward the bench he was managing from, Kelly quickly shouted “Kelly now catching for Boston,” thus making himself the team’s catcher (under baseball’s rules at the time) and made the catch and the out.  

Possible Law Analogy:   Anybody who has seen enough oral arguments has seen at least one occasion where a judge can no longer bear watching an attorney miss opportunity after opportunity to make a powerful argument for a position that the judge is sure deserves a better one, and so, steps in himself or herself to do the job correctly, much as a part owner and President of Operations of basketball’s Washington Wizards (by the name of Michael Jordan) decided the only way to improve the Wizards’ play was to put himself in the game.  New Argentine national soccer team coach, Maradona, will probably make the same move sometime in the next World Cup.  It’s just a matter of time.

2.      One of my favorite nicknames from 19th century baseball was the one that belonged to “Death to Flying Things” Ferguson (and before that, to his Brooklyn Atlantics teammate “Death to Flying Things” Chapman). Ferguson got the name because he often used his first-rate fielding ability to dash the hopes of hitters.  Apart from having a colorful nickname, Ferguson was also a colorful character.  He gained fame as a member of the Brooklyn Atlantics team that in 1870 finally ended the 89-game winning streak of baseball’s first openly professional team, the Cincinnati Red Stockings (and respectively batted in and scored the tying and winning runs in that game).  As an umpire in an 1872 game, he also used a baseball bat to break the arm of a player that had the temerity to argue with him.  I doubt if this is the kind of umpire behavior Chief Justice Roberts had in mind when comparing judges to umpires calling strikes as they see them.

You don’t find too many nicknames like “Death to Flying Things” in modern baseball, and I’m kind of surprised no one revived it for the baseball player that probably did the most to earn it – newly-minted 300-game winner Randy Johnson – whose 95 mph pitching actually did cause the death of a flying thing a few years ago.

Possible Law Analogy:   If arguments in legal briefs could flap their wings and fly around, there’d certainly be some judges whose blunt opinions would earn them the nickname “Death to Flying Things.” 

3.     The 1914 and 1915 baseball World Series provided some of the most unusual and unlikely trading of places in baseball history.   After the National League’s Boston Braves won the World Series in 1914, their American League Boston counterpart, the Red Sox won the World Series in 1915.  The Boston Braves had beaten the AL’s Philadelphia Athletics in 1914, and the Boston Red Sox then beat Philadelphia’s NL team, the Phillies, in 1915.  To top it off, the Boston Braves used the Red Sox stadium, Fenway Park, as their home field in their 1914 Series appearance (their new one was under construction) and the Red Sox then used the Braves’ new field as their home field in the Series a year later (it could accommodate more fans).

Possible Law Analogy:    In FDA v. Brown & Williamson Tobacco Corp.(2000), Justice Scalia, although well-known for his textualism and opposition to reliance on legislative history, signed on to a Supreme Court majority opinion the featured extensive analysis of legislative history.   Justice Breyer, who often takes the opposite side of the statutory interpretation debate, chastised the majority fin that case for adopting an interpretation contrary to the text’s meaning.  There is also a rumor (can anyone confirm it?) that immediately after the decision was issued, Justice Breyer fooled everyone by wearing a Justice Scalia disguise to give a Federalist Society Keynote Speech while Justice Scalia wore a Justice Breyer disguise and delivered a Harvard Law School talk entitled “Getting International Law, Legislative History, and Lots of Other Stuff into Supreme Court Decisions Via Subliminal Messages.”

4.     Closer to our own time, and to my own pain:  In 1999, Chicago Cubs’ pitcher Jon Lieber pitched a perfect game through 7 innings and 2 outs, retiring 20 consecutive batters and striking out 9 of them.

But he never got the third out of the 7th inning.  Rather, he then gave up six straight hits in six pitches, including three home runs.   And ended up with six earned runs in the inning and the game before being pulled out of it (very quickly).   The Cubs lost the game 7-2 and, to make it worse, the Cubs’ loss was to the St. Louis Cardinals. 

Possible Law Analogy:   For almost every inning of the 20th century, the Commerce Clause gave no ground in the Supreme Court to those who would limit it.  The 1995 case of United States v. Lopez then broke up that perfect record.   The problem with the analogy is that Jon Lieber’s perfect game was broken up by a hit from Mark McGwire that eventually landed outside the field for a home run.   By contrast, in the wake of the Supreme Court’s decision in Gonzales v. Raich, the Lopez ruling is more like a very a long and high fly ball that hasn’t yet landed.

Jon Lieber has had late inning perfect games and no-hitters-in-progress stopped on other occasions.  An Andres Galleraga home-run dashed a 2000 no-hitter of his in the 7th inning (and the Braves, with Greg Maddux as their pitcher) ultimately beat the Cubs 1-0).  On other occasions, he’s lost the perfect game or no-hitter in 7th, but still won the game (9/19/04, pitching for the Yankees and on 5/13/06, pitching for The Phillies).

5.     In 2003, Chicago Cubs were playing the Florida Marlins in the NL Championship series and only five outs away from reaching the World Series for the first time since 1945.  As every baseball fan knows, everything changed when a foul ball chased by Cubs outfielder Moises Alou was knocked away by an excited fan. (Although Alou now says he would have likely missed it anyway). This was followed by 8 Marlins runs, which resulted in a Cubs loss that day, soon to be followed by another Cubs loss, and another year spent watching the World Series instead of playing in it.

The Cubs have done a lot to get back to the World Series since 1945, even trying to make up for one likely source of “the Curse”: The hex that Billy Goat Tavern Owner Billy Sianis placed on them after the team refused to let him remain in Wrigley Field with his goat during the 1945 series.  They’ve let Sianis’s nephew bring a goat into Wrigley Field (albeit a different one) in 1984 and 1994, and they’ve held curse-ending press conferences at the Billy Goat Tavern.  Magically-minded Cubs’ fans have tried curse-transferring rituals (perhaps unintentionally removing the Red Sox curse from Boston and bringing it over to add to that which already weighs down The Cubs.  As Harry Potter author J.K. Rowling would probably point out, this kind of thing just isn’t a job for muggles).

Possible Law Analogy:   I think that Congress’s efforts to regulate porn on the Internet, which failed in Reno v. ACLU, and again in Ashcroft v. ACLU, are also cursed – except, as in United States v. American Library Association, when Congress uses its power to attach spending conditions to funding for state governments  (since attempts to limit that power are just as if not more cursed).

6.     The Baltimore Orioles of the 1890s were one of the late 19th Century’s – and baseball’s – best teams.  They reached the Temple Cup Series (a 19th c. precursor to the World Series) all four times it was played and won it twice.  They were also known as inventors of “scientific baseball” and featured some of the best players of the day, including John McGraw, Hughie Jennings, Wilbert Robinson, and “Hit ‘Em Where They Ain’t” Wee Willie Keeler.  Three of these, McGraw, Robinson, and Jennings went on to use their baseball analysis skills to become storied baseball managers for many years in the early 20th century (Jennings managed Ty Cobb’s Detroit Tigers and was, as I noted in a previous blog post, one of only seven managers in baseball history who had a law degree).

Possible Law Analogy:   The Orioles of old invented scientific baseball.  A contemporary of theirs, attorney Louis Brandeis, invented the science-and fact-intensive “Brandeis brief”  And just as many of their Orioles took their habits of analysis as players to managerial jobs later in their careers, attorney Brandeis later became Judge and then Justice Brandeis.  

7.     After a history of baseball in which no team had gone from last place one year to a league championship in the next, in 1991, **both** the AL and NL Champions, the Minnesota Twins and Atlanta Braves, were teams that had finished last in their division the previous year.  The result was one of the closest World Series ever played, with three games decided in extra innings, four decided in the final at bat, and the Twins coming back from being down 3 games to 2 to win the 6th game in the 11th inning (on a Kirby Puckett home run) and the 7th game in the 10th inning.  This was also the first seven-game world series since Minnesota previously beat St. Louis in 1987 to win their first World Series since they had won it, in a “past life” (and with a past identity) as Walter Johnson’s Washington Senators in 1924.  Despite these dramatic contributions to baseball history, the power-that-be in the Major Leagues in 2001-2002 contemplated simply eliminating the Twins in a proposed MLB contraction.  You can read more about that, and the law related to it, in Minnesota’s ‘Homer Hanky’ Jurisprudence: Contraction, Ethics, and the Twins by Paul Horan and (Prawfsblawger) Jason Solomon.

Possible Law Analogy:   Of course, there are also instances in constitutional law of “the last shall be first, and the first shall be last.”  It happens when a dissenting opinion comes to be the Court’s ruling, and while this usually doesn’t happen quite as quickly as it did between the 1990 and 1991 baseball seasons, it can happen pretty fast.  It took only 9 years for the Court to overrule National League of Cities v. Usery, 7 years for the Court to discard Pennsylavania v. Union Gas, 3 years to reverse Minersville School District v. Gobitis.  Some overrulings have come even more quickly.  One the other hand, some Sup. Ct. decisions last longer, like Flood v. Kuhn, written by Justice Harry Blackmun, a Minnesotan, and including numerous references to baseball history (including one to Clark Griffith, whose nephew Calvin, moved Griffith’s Washington Senators to Minnesota and renamed them the Twins).

8.     Speaking of come-from-behind World Series victories, another impressive one occurred when the 1979 Pittsburgh Pirates – with one of the year’s hit songs, “We are Family” as their theme song – came behind from a 3-1 Series deficit to beat the Baltimore Orioles led by Willie “Pops” Stargell.

Possible Law Analogy:    I read (or perhaps dreamed about) a good history of The Supreme Court recounting that Chief Justice Burger – who was Chief Justice during the 1979 World Series – used to similarly have all the Justices sing “We are Family” just before Supreme Court deliberations to try to promote camaraderie, and to emphasize the same communitarian themes that he liked to include in his opinions.

9.     It’s not uncommon for injuries to send baseball players to the disabled list, but some get there for more memorable reasons than others.   Among those the most memorable are those where a player was taken out by an insect or arachnid. Milwaukee Brewers Dave Nilsson had to go on the DL after a mosquito bite got him sick in Australia.  Cubs player Jose Cardenal had to miss a game after being kept up all night by singing crickets (The unlucky Cardenal had to miss another game when his eyelid got stuck shut, perhaps thanks to some microscopic bug?).  And Toronto Blue Jays’ DH Glen Allen Hill learned the hard way that imaginary bugs can be even more dangerous than real ones when a nightmare about being attacked by spiders sent him crashing through a glass table.   All this makes me wonder whether “scientific baseball” has now quietly been taken to a new level, with entomologists – and perhaps voodoo practitioners –hired by unscrupulous team owners to send trained insects and spiders, or evil dreams, after their opponents’ players.

Possible Law Analogy:   A pesky insect not only has the power stop a baseball player in his tracks.  It can also stop a massive construction project (with a little help from federal legislators, administrators, and judges).  When San Bernardino County wanted to build a new hospital, it found its plans thwarted by the Delhi Sands Flower-Loving fly (when fly was classified by The Fish and Wildlife Service as an endangered species).  The DC Circuit then ruled, in Nat’l Assoc. of Homebuilders v. Babbitt, that this protection of the Delhi Sands Flower-Loving Fly was within the federal government’s power under The Commerce Clause.

10.     English-born journalist Henry Chadwick was the most prominent baseball journalist of the late 19th century and deserves a lot of credit for today’s Moneyball/SABRmetrics methods of thinking about the game.  He’s considered the inventor of the box score and one of the major forces in making player statistics such an important part of baseball culture.

But just as important as his contribution to this supremely rational side of baseball culture was his contribution to the more mystical, faith-based element of its nature.  More specifically, when he made the highly plausible suggestion that baseball evolved from the English game of rounders, an indignant Al Spalding set out to prove him wrong by showing it was 100% American in origin.   He worked in 1905 to set up the Mills Commission to solve baseball’s origin once and for all (and make sure that solution placed its beginnings squarely on American soil).  Spalding and the Commission found what they were looking for when they received a letter from 71-year old Abner Graves, who remembered being present in Cooperstown, New York at the time that Abner Doubleday (later a Union General in the Civil War) invented the game in 1839.  Graves was 5-years old in 1839.  And Doubleday was probably too busy with his studies at The West Point Military Academy that year to travel back to Cooperstown and invent baseball.  But the story became legend and Cooperstown, NY became hallowed baseball ground, and the site of the Hall of Fame.

As Chad Oldfather’s article points out, Spalding thus helped to enshrine the notion that baseball was the quintessential American game and helped to do so by following up his Doubleday “discovery” with the following passage in the book, America’s National Game:

“It would be as impossible for a Briton, who had not breathed the air of this free land as a naturalized American citizen; for one who had no part or heritage in the hopes and achievements of our country, to play baseball, as it would be for an American, free from the trammels of English traditions, customs, or conventionalities, to play the national game of Great Britain.” (Perhaps he’s right: there were, I think, no American entrants in “Britain’s Got Talent.”).

Possible Law Analogy:  Much as Chadwick had done years earlier, historian Leonard Levy caused a stir in the world of First Amendment scholarship with the 1960 publication of his book, The Legacy of Suppression.  He proposed that the Framers’ understanding of First Amendment free speech was not a radical new safeguard for speech unique to America, but rather the old notion of English writer William Blackstone that “the liberty of the press consists in laying no previous restraint on publications and not in freedom from censure from criminal matter published.”  In other words, suggested Levy at the time, the Framers’ vision of First Amendment free speech was not our own modern broad notion of it – which protects people from being thrown in jail for unpopular statements – it was rather a much narrower conception, which barred the government only from censoring a speaker ahead of time (not from punishing him afterwards).  Many scholars disagreed with Levy’s thesis, arguing that the American conception of free speech at the founding was different from, and broader than, the earlier English one proposed by Blackstone. 

11.     There are lots of colorful fan chants, cheers, and paraphernalia.  Twins fans have homer hankies and Orioles fans yell out “Oh!” during the “O Say Can You See” line in the National Anthem.   One of the most legally-relevant has been the little stuffed rally monkey that Angels’ fans wave around, not only because it was at the center of a trademark fight, but also because it is a fan ritual that is supposed to be reserved only for the dire circumstances where it is necessary:  Rally monkeys are to be used only when “the Angels [are] either losing or tied in the 7th inning or later.”

Possible Law Analogy:   Thus, the use of the rally monkey is essentially an emergency power.   Like habeas suspension, it is not supposed to be trotted out every time someone can imagine a possible role for it in ordinary politics.  It also like the Article IV Amendment process, not be used before one tries other more ordinary chants, cheers, or magic rituals.  It’s rather supposed to be there for those rare situations when you need extraordinary measures.  Of course, the analogy isn’t perfect: as good a team as the Angels were in 2002, when the rally monkey became a national celebrity, they were probably behind in a home game (with rally monkeys twirling everywhere) far more often than we’d like to find ourselves invoking emergency or using the Article V amendment process. 

12.     In 1901, teams in an upstart new professional baseball league – the American League – started stealing star players from the more established National League, which had been around since 1876.   One of most famous players to switch leagues was star second baseman, Napoleon Lajoie, who jumped from National League’s Philadelphia Phillies to the American League’s Philadelphia Athletics.  The Phillies got a court-granted injunction preventing Lajoie from playing for anybody else, which led to the Athletics to trade Lajoie to another AL team to keep him outside the court’s jurisdiction.

Possible Law/Politics Analogy:   Lajoie’s cross-town league switch bears an uncanny similarity to the jump that Senate Judiciary star Arlen Spector would make 108 years later from the Pennsylvania Republican Party to being a Pennsylvania Democrat.   There’s also Planned Parenthood of Southeastern Pennsylvania v. Casey, where Gov. Casey took a position on Roe v. Wade at odds with those of many other Democrats and where Justices O’Connor, Kennedy, and Souter took positions surprising to many who expected a different one from nominees of Republican Presidents.  I suppose the analogy’s not the greatest fit in the world: Lajoie didn’t move to the American League because he decided he found their rules or philosophy more to his liking (he had no particular fondness for the Designated Hitter rule, which wasn’t introduced until 1973 anyway).  Like many other star players at the time, he just got a better offer.

13.     Speaking of switching leagues, there are only a handful managers good enough to have won World Series in both leagues (Sparky Anderson and Tony LaRussa), and Cy Young Awards on both an AL and NL team (Roger Clemens, Randy Johnson, Pedro Martinez) or a batting championship in both (Ed Delahanty).

Possible Law Analogy.   Some judges have won admiration from both sides of the political aisle.  The most topical example, of course: Judge Sonia Sotomayor was originally nominated to be a federal judge by George H.W. Bush before being elevated to the Second Circuit Court of Appeals by Bill Clinton and then nominated to the Supreme Court by Barack Obama.

Can a Run Really Count When the Runner Never Crosses Home?

So I'm taking a break from grading con law exams to watch my favorite team (the Mets) beat up on my least favorite local team (the Washington Don't-Call-Them-"Natinals"), and there was an odd play in tonight's game:

With no one out and Gary Sheffield on first base in the bottom of the sixth inning, Daniel Murphy hit a ball that appeared to glance off the facade of the second deck before landing in fair territory. On the field, the umpires ruled that it was in play (and so must not have hit the facade), and Sheffield was thrown out at home trying to score. After going to the video, the umpires overturned the call, and ruled it a two-run homer.  Murphy, who stopped at third, finished trotting around the bases, and the Mets took a 5-3 lead.

Here's my question, though:  What about Sheffield, who was thrown out at home before the replay?  Doesn't he have to go back and touch home at some point? If not, is it possible that I witnessed the first time (or, at least, one of the first times) in major league baseball history that a run "scored" without ever crossing home? 

I raise this because baseball's rules are notoriously formalistic when it comes to crossing home -- think back to Robin Ventura's "Grand Slam Single" in the 1999 NLCS.  So even if Murphy's shot is a homer, doesn't Sheffield have to cross home before his run can count?

Or is this just proof that technology will overcome even the most fundamental of all rule-based systems? Where are our jurisprudence scholars when we need them??

Pirate nicknames (only half serious)

Eugene's post about piracy repeatedly makes the point about the heinousness and seriousness of piracy as a crime, which is lost in the mythos of eye patches and bottles of rum and parrots.

So that led me to wonder, in only half-seriousness (maybe only 37 % seriousness), whether pirate nicknames for sports team have become inappropriate. Obviously they are not racially or ethnically charged or offensive, so people are not going to get worked up about this. Still, it does refer to a class of anti-social people who commit what are widely regarded as crimes against the entire world. Isn't calling your team "Pirates" equivalent to calling it "Hijackers" or "Guerillas" or "Terrorists"? Or at the very least "Armed Robbers"?

State action and the Yankees lawsuit

In writing and speaking about fans' speech rights, the speech part always has seemed, to me, easy--of course someone can wear a t-shirt reading "Yankees Suck" and of course someone can jeer a player for making an error. And of course someone cannot be compelled to participate in a patriotic ritual such as singing "God Bless America." The harder part (at least at professional sporting events) has been whether the First Amendment is even in play when the controlling actor--the teams--are not obviously state actors. The lawsuit by the fan who was kicked out of Yankee Stadium in 2008 spends a lot of time in the Complaint trying to deal with, and overcome, that problem.

Two preliminary issues make this case both easier and more difficult than others. First, old Yankee Stadium was owned by the City of New York (the Complaint alleges the City bought it in the early 1970s) and rented to the Yankees, on (as usual) fairly favorable terms. This does not resolve the issue, but it makes for less gray area than if the stadium were privately owned but publicly funded or owned by hybrid entity. Second, this case involves three groups of defendants, each subject to different rules of state action and liability: a) the Yankees, who promulgated the forced-patriotism policy); b) the officers who removed the plaintiff from the park; and c) New York and Police Commissioner Kelly, who obviously acted under color of law, although the theory of liability is not entirely clear from the complaint.

Let's consider each in turn:

The Yankees:

Eight paragraphs are devoted to the connections among the City, the Yankees, and the Stadium. It describes the costs that the City has incurred in operating the old Stadium and building the new Stadium, the benefits the City has received (in terms of either rent or percentage of revenues), the favorable terms of the lease to the Yankees, and the close involvement of the City in managing the stadium, including (relevant here, although not mentioned in the Complaint) providing the security that enforced the policy, and in helping procure funds for the new stadium. All of this goes towards establishing the Yankees as a state actor under two theories: symbiotic relationship or entwinement.

Under the former test, a private entity may become a state actor when it shares a "symbiotic," mutually beneficial relationship--where the government incurs some costs and obligations, the government and private entity both benefit, and the "integral connection" suggest a degree of state involvement in the private entity's unconstitutional conduct. The key here is whether Burton and symbiotic relationship has any vitality left (Mike Dorf has suggested it doesn't, I remain somewhat optimistic). Burton famously involved a privately owned whites-only restaurant operating in a city parking facility. In those pre-Civil Rights Act days, the Court used this test to hold that the restaurant was was violating the Fourteenth Amendment, because, essentially, the city was benefiting from private discrimination (because rents were tied to profits and the restaurant was profitable because it discriminated) and the restaurant was benefiting from using public property to discriminate. Here, those mutual benefits come about not because of race discrimination, but because of rules that arguably violate the First Amendment--but the same idea applies. Rents are tied to attendance and attendance depends (at least somewhat) on keeping most fans happy by not forcing them to be confronted by counter-speech that offends them, thus the team's decision to limit some fan speech by making fans remain in place during GBA

Under the second test (which is new, but created in the First Amendment context), courts look to entwinement between government and private entity in carrying out the conduct. So it may be relevant, for example, that uniformed police officers (who appear to be on duty) are enforcing the Yankees' rules in this public space (more on that below).

The Officers

The two Doe officers were in uniform, although their precise duty status is unclear. According to the Complaint, they were hired through the NYPD's "Paid Detail Program," through which private entities (and several other New York sports teams have used this program) are able to hire NYPD officers to provide security at events. Such officers are in uniform and carrying their service firearms, and subject to NYPD regulations, although there apparently are no specific guidelines about officer conduct while working under the program. The officers also are subject to control by the private entity and are deemed to be "working directly for the vendor." So there seems to be public/private entwinement in the supervision and control of the officers assigned to work the game.

The Complaint also alleges that the officers at least "appear" to be on duty and thus clothed with the authority that comes with being police officers, perhaps a greater authority (and thus a greater ability to enforce Stadium rules) than an off-duty, non-uniformed officer or a private security officer. In fact, the Complaint alleges that the purpose of the Paid Detail Program is to provide a "highly visible police presence" at such events--presumably with the goal of ensuring greater control; in other words, to make it appear that the authority of the NYPD was behind the enforcement of the team's speech-restrictive policies. That suggests the officers were working at the game in their roles as police officers and thus did act under color of law in removing the plaintiff from the park.

New York City and Commissioner Kelly

State action is easy here--New York City always acts under color of law and Kelly is being sued for establishing (or at least signing off on) the Paid Detail Program that put the officers in place to enforce this speech-violative Stadium policy, an official act as the policymaker for the NYPD. The Complaint is a bit under-developed in alleging conduct by the City or Kelly (as a supervisor) that could establish liability, but a knowledgeable reader (the court and opposing counsel) will understand that, because the officers were present at the Stadium and acting pursuant to a policy, that pulls the policymaker and the City into the case.

Reaction to Thomas among some FIU faculty

Not surprised this is happening: The director of women's studies at FIU is organizing protests against the hiring of Isiah Thomas as men's basketball coach, relating to Thomas having been found liable (along with the Knicks and the team owner) for the sexual harassment of a Knicks employee.

I was surprised we did not hear more from these faculty members early in the week, from when the rumors of the hiring began on Sunday until the press conference on Wednesday. But it all happened so quickly, no one had time to get a statement or protest organized. But this is a legitimate objection to the hiring, one I mentioned initially and one that I hope gave the administration genuine pause before making this move. This is the one element of risk (more than Thomas' ability as a basketball coach and recruiter, where he cannot be much worse than recent past coaches) that could come back to bite the university.

Women's studies is planning to hand-deliver a copy of the FIU Sexual Harassment Policy to Thomas at the men's basketball office--a cute, but somewhat in-your-face, publicity stunt if the goal is genuinely to engage Thomas on this issue. They also want to organize a teach-in on sexual harassment and discrimination, with the hope that Thomas, athletics department administrators, and the new FIU president (who will be announced in a couple of weeks) will participate.

Update:

In an e-mail interview with The Daily Advertiser of Lafayette, LA (Louisiana-Lafayette is a member of the Sun Belt Conference), the director (a philosophy professor named Laurie Shrage) said that she had received "enthusiastic" responses to her comments in The Times (discussed above), that university administrators had assured her that Thomas would have to undergo the same training on sexual-harassment policy as all other high-level executives and supervisors, and that HR was planning several events beginning in the fall on sexual harassment, apparently in response to an extensive expression of opposition from some quarters to the hire. Of course, the cynic in me reads these comments as HR trying to stop faculty from making noise.

Here is an interesting detail, though. Shrage also said she was abandoning the plan to hand-deliver the sexual-harassment policy because some HR folks had expressed concern that the action (what I earlier referred to as "stunt") could "escalate into a confrontation that might violate Thomas’s right to work in an environment free of hostility." This does not seem right to me. No one has a baseline right to a pleasant work environment (if they did, many faculty members would be out of jobs) other than over certain issues (sex, race, etc.). And "person liable for past sexual harassment" is not a protected class. So I do not see how criticizing Thomas for his past harassment, while certainly unwelcoming, somehow violates Thomas' legal rights. What am I missing here?

Finally! Fan challenges speech restrictions at publicly owned ballpark

A lawsuit was filed in the Southern District of New York yesterday by a baseball fan named Bradford Campeau-Laurion, who alleges that he was kicked out of Yankee Stadium last summer by two uniformed NYPD officers for trying to go the men's room during the Seventh Inning Stretch and the playing of God Bless America. (H/T: One of my civ pro students). He thus violated a Yankee/Yankee Stadium policy, enacted explicitly because the Yankees and others purportedly found people stretching during the Stretch "disrespectful."

Named defendants include New York City, Police Commissioner Raymond Kelly, three Doe officers, and the Yankees. The complaint is loaded with allegations designed to establish that the Yankees are a state actor, primarily through the symbiotic relationship test and the exchange of benefits between the team and the city in ownership and usage of both the old Yankee Stadium and the new one. Campeau-Laurion alleges violations of the First and Fourth Amendments and their state constitutional equivalents, federal and state public-accommodations laws, and various state torts. Interestingly, the defendant plaintiff is represented by the NYCLU and two students at NYU's Civil Rights Clinic (I might have done a clinic in law school if I could have gotten a case this interesting).

I have argued at length (or ad nauseum) that such a claim should succeed and that restrictions or regulations of fan speech, including forced participation in rituals such as GBA, violate the First Amendment. So I obviously buy everything the complaint is putting forward. The Yankees should be deemed a state actor, at least for purposes of operating a publicly owned ballpark over which they have near-exclusive use and control; in any event, here you have the NYPD (through an official program that provides uniformed officers for stadium security) directly involved in enforcing the policy, so state action is pretty obvious. As for the First Amendment argument, people in a public forum cannot be forced to participate in patriotic and symbolic rituals by having to remain in place during that ritual; they necessarily have the right to "symbolically counter-speak" against that ritual by getting up and walking out. After the jump, I reproduce the full First Amendment argument from a post on Sports Law Blog from 2007, when this policy first came to light.

This could be fun to watch. After the jump, I reproduce the full First Amendment argument from a post on Sports Law Blog from 2007, when this policy first came to light.

One form of symbolic counter-speech is nonparticipation in a ritual or ceremony that honors and affirms a symbol. By leaving the seating area, a fan declines to participate in the ceremony or ritual (the singing of the GBA), thereby expressing his dissent from that symbol. The Yankees policy of keeping fans in place thus eliminates one form of symbolic counter-speech.

The key to the free speech argument is that forcing fans to stay put arguably coerces their participation in the ritual, in violation of the First Amendment protection against compelled expression recognized in Barnette v. W. Va. Bd. of Educ. (1943). The argument that the Yankees acted within First Amendment confines (as Mike explains it) is that "the Yankees do not in fact require that fans sing along, only that they do not disrupt others who wish to sing or listen." The do-not-leave policy is content-neutral and likely valid as a restriction on the time, place, and manner of speech. The Yankees are not trying to keep fans in place out of disagreement with or dislike for the message fans send by leaving their seats; they only are trying to keep non-particiating fans from disrupting those who do want to participate in the ritual.

Two thoughts on this. First, there are many ways to decline to participate in a ceremony or ritual that should be protected beyond simply not singing while remaining in place. Not singing sends one message; leaving sends a somewhat different (or more overt) message of dissent; turning my back to the flag my send a different (and even more overt) message of dissent. All of them should be protected under Barnette unless the government/Yankees can show that one form affects its interests differently.

This brings me to the second point (an elaboration on a point I made in comments to Mike's post): The Yankees argument would then be that leaving (as opposed to simply not singing) is especially disruptive--a neutral reason for at least keeping everyone in the seating area, even if everyone is not compelled to sing. And disruption should be the line under Barnette. This goes off the rails, however, because I do not think the disruption argument works.

In general, it is hard to see how one (or even a few individuals) walking out "disrupts" a stadium of 55,000 people who want to stand at attention and sing. More importantly, look at the photograph that ran with the original Times story: The chains are up in the main corridor, by the exit tunnel, and some fans can be seen standing in the corridor waiting for the song to end. This means that I can get up from my seat, walk out of my row (climbing across my neighbors, if I have to), and walk up the aisle, presumably while talking with my companion--all pretty disruptive, I would guess. I can do everything but walk out the tunnel to the kosher hot dog stand, away from (and out of the line of sight of) those who remain in their seats. Of course, walking completely away from the seating area ought to be least disruptive to those remaining by their seats and singing. So the argument that "fans who want to sing have rights, too" strikes me as a straw man; my leaving does not interfere with the ability of anyone else to sing and otherwise participate in this patriotic ritual.

The point is that the Yankees are not really trying to prevent disruption of others fans caused by my moving around during the song, because such disruption is, realistically, non-existent. The Yankees are trying to prevent disruption caused by the message I send by leaving during the song. The policy now is no longer content-neutral, because it is tied to dislike for the message a fan wants to send by his nonparticipation.

This conclusion is furthered by the fact that (according to Mike, who was at a game at Yankee Stadium last week), the rule is not enforced in the upper decks. So moving around during GBA only is disruptive in the more expensive seats?

I will close on this point. In a comment to my earlier post on this subject, Peter states that "'Forced' patriotism is a contradiction in terms. If it has to be forced it isn't patriotism." Agreed. And I would go one step further: One's decision to participate or not with a cloying and poorly written song (or even a poetic and tuneful one, for that matter) at a baseball game (or anywhere else) says absolutely nothing about one's patriotism.

But if forcing a fan to participate in this ritual does not create or instill patriotism and does not really reflect patriotism, what possible reason could the Yankees have for treating its fans as a "captive audience" and forcing them to partake in this ceremony?

Money for nothing, get your coach for free

So, Isiah Thomas is going to coach for free in his first year at FIU--upon finding out about the substantial budget cuts and firings, Thomas agreed to donate his first-year salary (the amount of which was not reported in any story I have seen(update: In total, he has a 5-year, $ 1.2 million contract, or about $ 250,000 per year) ) back to the university. This is a truly impressive and classy move for which I give Thomas a ton of credit (although I wonder what is National Association of Basketball Coaches brethren will think). It also is a great PR move; it might assuage faculty who might have objected to the hiring and its cost and it might keep some national media attention on the program next year to watch the novelty of Thomas not only coaching in college, but coaching for free.

I do not think this changes most of what I wrote this morning; I admit to remaining skeptical--about whether he can create a successful basketball program, about whether it is going to be expensive at a time the university cannot afford it (he will be getting paid beginning in his second year, although 3-7% budget cuts still are planned throughout the university), and about whether it will cause off-court problems. But it certainly is off to an interesting start.

Anyone out there want to talk about the tax implications of this?

Isiah Thomas, FIU Basketball Coach?

Beginning when I was around 16, I wanted to be a college basketball coach. I was a student manager in college, worked as a coach at summer basketball camps throughout college, and my first job after college was as assistant coach at a D-III school in Chicago. Basically, I was trying to set up the career trajectory that Nets Coach Lawrence Frank followed about 10 years later--short Jewish kid from NJ becomes manager at Big Ten school, parlays it into coaching career. It seems to have worked out slightly different for him than it did for me.

This biographical detour is to say that, 15-20 years ago, I was perfectly happy with the notion that D-I basketball coaches made (at a minimum) five times as that of the ordinary humanities professor--in fact, I was hoping to have one of those paying-five-times-as-much jobs. I noted how out-of-whack coaches' salaries were, but bought the now-largely-challenged economic arguments about the real financial value college sports brings to the university. Of course, I never envisioned an economic downturn this severe that would affect universities (particularly mine) this severely. Nor did I envision my life at a small, underfunded public university in a state with no income tax and no significant commitment to higher education.

All of which is to express genuine bafflement and uncertainty at the news that FIU has hired Isiah Thomas to be its men's basketball coach, with a press conference to announce the hiring today. In no particular order, a jumble of thoughts:

1) It certainly is putting FIU on the college-sports map, at least for now. We lead PTI last night. The last time FIU was part of a national college-sports story was after the brawl with Miami during a football game.

2) I do not know right now how much Thomas is making, but I imagine there was a premium to get him and his name down here--not U-Conn/Jim Calhoun territory, but certainly more than Thomas' predecessor and probably more than the average coach at this level. This seems troubling at a university that just eliminated entire departments and has spent the past several years (and likely will spend the next several years) slashing big chunks of its budget, including the budget of the College of Law. True, if we are serious about college sports, we have to spend money--but is this the appropriate time?

3) More important is the question of whether this is worth that money. Thomas has not been a good coach (with the Knicks and Indiana Pacers) and his record as GM/Owner suggests that he is not a particularly good judge of talent, although he did make some good draft moves. He also ran the old CBA out of business, so his management skills are questionable. The school has hired his name. But the 17-year-olds he will be recruiting know him only as the guy who ran the New York Knicks into the ground, not as a Hall-of-Fame, championship-winning college and NBA player. So what are we getting for this money? No one knows for sure.

4) Then there is the fact that in 2007 Thomas and the Knicks were hit with an $ 11 million punitive-damages verdict for Thomas' sexual harassment of a female Knicks employee (the case settled before compensatory damages were determined). FIU AD Peter Garcia's response to that (in the ESPN link above) was, basically: I know Thomas and he is a wonderful husband and father, it's in the past, and everyone makes mistakes (although some mistakes are larger than others). This seems like an awful lot of baggage to carry into the job. And it calls into question how well he can or will control his program and his players, especially on the always-dicey issue of relations between student-athletes and the rest of the student body.

If it sounds as if I am rooting against this, not at all. I hope Thomas turns FIU into a mid-major power--the Gonzaga of the South; it would be psychically, if not financially, good for us. I am not optimistic right now, but I can be convinced. And I certainly will go to some games to check it out. But this is a tremendous financial--and legal--risk for the school to take and a bad time to be financially risky.

The Beautiful Game . . .

 . . . at its most captivating time, here?

Sports and Con Law Explained

(Image courtesy of Courtoons)

Evidence excluded in Bonds trial

Judge Illston's order is here Download USAvsBondsOpinion021909. Straightforward, but a good review for my Evidence class of a number of concepts--real evidence requires a chain of custody, the chain of custody requires admissible evidence, the search for hearsay exceptions, and the unreviewable discretion that district court judges have on procedure and evidence.

Only one part of the opinion gave me a pause: She excluded one of three audio transcripts of conversations--the one in which Bonds' trainer, Greg Anderson (the guy whose refusal to testify is the cause of all this) speaks with Bonds' personal assistant about random drug testing for the upcoming (2003) season and seems to suggest that he knows someone at the testing lab and he will be tipped in advance to when, if ever, Bonds will be tested. Judge Illston rejected the government's argument that this is admissible as a statement against interest, because "the government has not established that it was a criminal or civil offense in 2003 to help athletes evade detection by professional sports associations."

But this seems a bit too quick. If a lab employee were tipping off players (or members of their posses) about upcoming tests, wouldn't MLB have some claim against the lab and the employee (fraud, interference with business expectation, something else (help me out, tort people))? And wouldn't MLB also have a claim against the posse member (in this case, Anderson) who received the tip and passed it along, also frustrating MLB's business expectations? Maybe this just was a matter of what the government brought forward on the motion. But it seems Anderson could have gotten into some trouble by receiving and passing along these tips, such that his admission of it would be against his interest.

When they say they don't want to politicize sport . . .

Shahar Peer of Israel, the # 48-ranked women's singles player, was denied an entry visa to the United Arab Emirates to play in this week's Barclays Dubai Tournament, citing security fears of having an Israeli playing in Dubai in the wake of the recent military conflict in Gaza. The denial, by the way, came on Saturday night, with Peer's first match scheduled for Monday. The Tennis Channel refused to broadcast the tournament following the UAE's decision.

The tournament organizer, Dubai Duty Free, said Peer's "presence would have antagonized our fans." The statement then added "We do not wish to politicize sports, but we have to be sensitive to recent events in the region and not alienate or put at risk the players and the many tennis fans of different nationalities that we have here in the UAE."

Sorry, folks; you cannot have it both ways. Shahar Peer is neither an Israeli political official nor a member of the Israeli military; she played no role in the events in Gaza and those events have nothing to do with her--and certainly nothing to do with her as a tennis player. You have banned an Israeli player from the tournament (the country, actually) explicitly on the ground that her mere presence as an Israeli (playing for herself, not even on behalf of her country) would "antagonize" and "alienate" people and be insensitive of recent (political) events. By definition, you are politicizing sports; you are incorporating socio- and geo-political considerations having nothing to do with sport into decisions decisions about who gets to participate in a sporting event. And it is insulting and dishonest to claim otherwise.

This is not necessarily to criticize politicizing sport. If you believe that the actions of Israel are such that its citizens should not be permitted to participate in international competitions, make that argument; but acknowledge that you are being explicitly political--and take the hit when others respond to those political positions, as by (perhaps) pulling the event off the WTA schedule.

Interestingly, this whole thing might be repeated at next week's men's tournament. Andy Ram, an Israeli doubles specialist, still is waiting for his visa.

Baseball, Steroids, and Jurisprudence

Here is a question for the jurisprudes and the crim law types:

In 1991, baseball established by rule that it was against the rules of the game to use a range of drugs, including steroids. There was no testing, no enforcement mechanism, and no determinate punishments for using steroids. That was the state of affairs until the start of the 2006 season, thus it was the state of affairs from 2001-03, when Alex Rodriguez has admitted to using steroids and when he tested positive. Of course, the commissioner did have catch-all "best interests of baseball" powers, so punishment was possible through that power. But absent testing, there arguably was no way ever to find out that someone was using steroids.

So, my question: Has Rodriguez "cheated" or "broken the rules" of baseball (put aside societal laws against steroid distribution, possession, or use) given the legal state as described. Is a stated legal prohibition that is not, as a matter of law, enforceable or punishable, a legal prohibition that can be violated?

Media ethics and law-prof blogs

I am quoted today in an op-ed in the Daily Tar Heel. (H/T: My former colleague Joel Goldstein). The op-ed discusses the motion filed by former Durham District Attorney Mike Nifong, the main culprit in the Duke lacrosse mess, seeking to dismiss the § 1983 actions against him on absolute prosecutorial immunity grounds (and without seeing the motion, I have argued previously that he has a pretty strong argument). The op-ed, clearly not coming close to understanding what prosecutorial immunity is all about, argues that Nifong should not have immunity because by "withholding DNA evidence, Nifong clearly deprived the defendants of their right to due process." Um, yeah, but the point of immunity is that does not matter, because other policy concerns trump. AndI did not read the piece as arguing that prosecutors should not have immunity (an arguable point), only that Nifong should not.

Anyway, I am identified as a Saint Louis University law professor and described as saying that Nifong only has immunity for those things he did as an advocate for the state. One problem--I never spoke with anyone at the Daily Tar Heel at any point. (Actually, I suppose a second problem is that I no longer teach at SLU, so there is a pretty glaring factual error there that would get them nailed in a newswriting course). The "comment" attributed to me was something I wrote in one of several posts, here and at Sports Law Blog, analyzing the players' lawsuits against Nifong, Duke, and others.

So, my question--Did the authors of the piece act appropriately (as a matter of journalistic practice) in attributing a comment to me without identifying it as something I wrote on a blog and attributing the blog? Is it OK for reporters to make it sound instead as if we had had a conversation? I am not suggesting that journalists should not read blogs as part of their reporting or that they should not report what they see written here. Indeed, one purpose of blogging is to be part of the broader public conversation beyond the academy, so having newspapers report on what we write here goes a long way to making us part of that conversation. My question is strictly how journalists should describe the source of a comment when they get it not from an interview, but from something the source has written.

Endowed coaching positions

Something I just discovered this week: The head coaching positions for Stanford's football and men's basketball teams are endowed. Football coach Jim Harbaugh is the Bradford M. Freeman Director of Football; Basketball coach Johnny Dawkins is the Anne and Tony Joseph Director of Men's Basketball.

It seems like a good idea for everyone involved. The endowment presumably pays or helps pay salaries that probably are in the mid- or high-six figures. It seems like the type of naming opportunity a sports-minded donor would jump at--after all, the donor's name will be announced over the PA system during pre-game intros in front of 10,000 or 60,000 fans and potentially a television audience (if ESPN or whomever uses the title). Has anyone heard of other schools doing this? Does anyone know why Stanford alone seems to have gone this route?

The Detroit Lions: two competitions

I know this has nothing to do with law, and I promise a substantive post on labor law reform tomorrow or the next day, but today I ask that you indulge my posting about the Detroit Lions, the first pro football team to go 0-16 since the NFL went to a 16-game schedule some years ago.  As a long-time fan, I need to vent.

I propose two competitions.  First, a joke competition.  Example:  "Knock, knock"; "Who's there?"; "Owen"; "Owen who?"  "Owen sixteen."

Second, a challenge to list improbable events that have happened more than Lions playoff victories.  The Lions have won exactly one playoff game in the past 48 years, and none since 1992.

So, for example, one could say, "who would have thought in 1960 that there would have been serious impeachment proceedings started against more Presidents than Lions playoff victories in the next 40 + years"?  Or, "who would have thought in 1988 that the U.S. would be involved in more wars against Iraq than Lions playoff victories in the next 20 years?"

Feel free to leave your suggestions or related thoughts in the comments.

The significance of defining sport

I have written on several occasions about how to define sport and what qualifies as sport, a common game among “sports-and-____” academics. A frequent response to these posts has been “so what, what difference does it make?” And, in truth, it is largely an academic exercise and a fun way to make fun of gymnastics, figure skating, and golf. But, courtesy of Matthew Mitten at the Marquette Faculty Blog, it may have practical import after all.

The Wisconsin courts must figure out whether cheerleading is a sport, and a contact sport at that. A high-school cheerleader who fell and suffered severe head injuries while performing a maneuver sued her fellow cheerleader for negligence in failing to spot her properly. The defendant argued that he is immune under a state statute that eliminates liability for negligence (but not reckless or conduct taken with intent to cause injury) for injuries caused "in a recreational activity that includes physical contact between persons in a sport involving amateur teams." The appellate court assumed that cheerleading was a sport and acknowledged the athleticism involved in cheerleading. And, although the court did not mention, there are high-school cheerleading competitions (often seen at midnight on ESPN 8). But the court held that cheerleading was not a contact sport within the meaning of the statute because physical contact between opponents is not an element of the activity, thus the immunity did not apply. The case now is before the Wisconsin Supreme Court, which heard oral argument last fall.

I am troubled by the appellate court's approach (although not the result) because I think it might have unintentionally eliminated from the scope of the immunity activities that plainly are sports that should be covered by the statute but that also do not typically involve physical contact between opponents. The first example is baseball--not much direct physical contact with opponents, only with objects thrown or hit by opponents. So could I sue the opposing pitcher for a negligently thrown beanball? Could I sue a teammate who did not get out of the way when I called for a flyball? Perhaps plays at the plate or on the base paths, involving potential collisions with opposing players, are common enough that baseball would fall within the statute as interpreted.

OK, what about tennis--it is virtually certain that physical contact with my opponent on the other side of the net is in no way part of the game. But would this mean that I could sue my doubles partner if I am injured when I crash into my him (which, frankly, is more likely than crashing into my opponent) because of his negligence? Would this also would mean that I could sue my opponent if I was injured when he negligently hit me with a ball (e.g., serving when I was not ready)? Or track and field--if I am a long-jumper, I expect no physical contact with my opponent. Could I sue him if he jumped before I had a chance to leave the pit and landed on top of me?

The statute was enacted in response to a 1993 Wisconsin Supreme Court decision arising from an injury suffered during a soccer game, so the legislature had true "contact sports" in mind. And the appellate court emphasized that cheerleading is not a contact sport in that way. But baseball, tennis, golf, track, etc., also cannot be classified as contact sports in the same way as soccer. Now maybe this was intentional and the legislature did want to treat contact sports differently from other sports. But if the legislative concern was about not wanting to chill participation in amateur (especially high school) sports (which might come with a standard of care lower than recklessness), liability in any of the situations described above would defeat that purpose. Assuming the legislature did not intend to treat contact and non-contact sports differently, a court might get around this, at least in my baseball and tennis hypos, by reading the statutory term "physical contact" to mean contact with objects propelled by an opponent. And maybe track would fall in because physical contact is at least a possible element of running side-by-side with an opponent. But this is getting somewhat difficult to maintain.

Alternatively, a court might focus on the statutory term "sport" and find a workable definition of that word--exactly what I and others have been doing as a parlor game. My current favorite standard defines sport by four elements:

1) Large motor skills.
2) Simple machines only.
3) Objective scoring or at least the possibility of determining a winner by something other than subjective judging.
4) Competition among contestants.

Cheerleading satisfies ## 1 and 2, but fails # 3 and possibly # 4 (we would need to know more about whether this team participated in competitions). But track, baseball, and tennis--the examples above--satisfy all four criteria. This gets at the result--the cheerleader's claim can go forward--without cutting large swaths of sports out of the statute.

Minority College Football Coaches and Civil Rights

The new-old controversy in college football is the lack of Black head coaches in Division I-A college football. With recent firings and resignations, there are four Black coaches (out of 119 schools) in a sport in which approximately 46 % of players are Black. Exacerbating this problem is the recent trend of current head coaches at major programs designating a current (usually white) top assistant as the new future head coach whenever the current coach retires, a process that pretermits any future coaching search in which outside, Black candidates might be considered for the job. Essentially, the practice locks-in the current state of coaching at many major schools.

Richard Lapchick, one of the leading scholars on collegiate sport, race, and society, criticizes this state of affairs. He argues that the NCAA should adopt a version of the NFL's "Rooney Rule," which requires that teams interview at least one minority candidate for a head coaching job. Lapchick calls his proposal the "Robinson Rule," after the late Eddie Robinson, the all-time-winningest D-I coach at historically back Grambling State (a D-I-AA school) who never even got an interview for a D-I-A head job.

So here are my questions for con law and employment-law types out there: Would such a rule be constitutional under the Fourteenth Amendment? The NCAA is not a state actor, but individual state schools would be in following and carrying out such a rule. So, given the current state of Equal Protection law, would it be unconstitutional for a governmental actor to automatically interview and give serious consideration to a minority for every position? Or, as to private schools, does it violate Title VII? Finally and conversely, would the NCAA's failure to adopt such a rule (or a similar rule designed to ameliorate the dearth of opportunities for minority coaches) violate Title VII (Lapchick reports that the Black Coaches Association is considering using Title VII to challenge current hiring practices)?