PrawfsBlawg

Modifiers

I write this with some trepidation. So I'm going to begin with a disclaimer: I am not trying to suggest anything about what is right or wrong or what should be treated as right or wrong. I just want to think about how we treat certain speech. Please keep that in mind in any responses. OK, I just set myself up for some very high (or low) expectations, so here we go.

Steve Williams is a professional golf caddy who worked for Tiger Woods  for more than a decade (earning a lot of money, as well as a reputation as being Woods' overbearing bodyguard/hitman on the course). Woods unceremoniously fired Williams last summer, a move over which Williams is still just a bit bitter. Williams caught on with a golfer named Adam Scott (who himself has a rivalry and tension with Tiger); Scott won a tournament earlier this year, after which Williams preened and called it the greatest victory of his life. Over the weekend, at a caddie celebration dinner, Williams explained "I wanted to shove it up that black arsehole."  Word of what Williams said at the closed, "off-the-record" event quickly got out. Williams issued a typical famous-person denial by the next morning, saying "I apologize for comments I made last night . . . I now realize how my comments could be construed as racist. However, I assure you that was not my intent. I sincerely apologize to Tiger and anyone else I've offended."

Williams is being criticized for making a "racist" remark and he used that term in his sort-of apology. But should his remark be considered racist and why or why not? Do they suggest he is racist? Or are the remarks, and therefore him, just stupid?

The upshot is that Williams is in trouble for using a bad modifier. Had he simply called Woods an "arsehole," people would have thought Williams was an obnoxious ass, but not racist. Same thing had he called Woods a "cheating arsehole" (in reference to Woods widely reported infidelity) or a "sex-addict arsehole" (in reference to Woods reportedly seeking treatment for sex addiction) or "washed-up arsehole" (in reference to Woods struggles on the golf course). But Williams mentioned, in a purely descriptive way, the unquestioned fact that Woods is (part) black. And the narrative is that this modifier made his comments, and perhaps him, racis. Indeed, Williams' apology was all about his own state of mind--that he did not have racist intent in what he said and therefore is not racist.

But Williams did not use a racial slur. He did not attribute his dislike of, or anger at, Woods to Woods' being black (as opposed to being an arsehole). He did not make a statement about what type of person Woods is because of his race. He did not suggest Woods is inferior or incapable because of his race. He did not make a comment grounded in any racial stereotypes (compare when another golfer was criticized for joking about Augusta National serving soul food at the tournament dinner after Woods won the Masters). Williams made an observation and stated a fact--Woods is black. He also is, in Williams' view, an arsehole. And, therefore . . .

So that has been the change in our discourse: We have made the mention of race (along with other characteristics, such as ethnicity, religion, gender, etc.) improper even as a purely factual matter when criticizing someone. You can call someone a #$*&% with relative impunity; you no longer can call him a [Race/Gender/Ethnicity/Religion] #$*&%. And doing so tags the speaker as racist.

My best guess at a justification is that because race is (or should be) irrelevant to our opinion of someone, mentioning race serves no purpose. Thus, mentioning it, even as a factual modifier, calls attention to the target's status as a member of a minority or historically weak or disempowered group. The use of the modifier highlights the target's "otherness" or singleness in society. Williams would not have called a white golfer a "white arsehole", because emphasizing whiteness does not call up that otherness. Racializing the insult makes that insult worse by calling up and highlighting that otherness, even if that otherness is merely a descriptive modifier and not the heart of the insult. Or maybe the explanation is slightly different: Because race is irrelevant, anyone who mentions actually is using it as the basis of the opinion. In other words, Williams dislikes Woods because of his race (and not because of his arseholeness), otherwise he wouldn't have mentioned it.

I cannot emphasize strongly enough that I am not defending what Williams said or did. I only am trying to consider how and why we characterize the act a certain way.

How Baseball Made Me a Pirate

Major League Baseball has made me a pirate, with no regrets.

Nick Ross, on Australia's ABC, makes "The Case for Piracy." His article argues that piracy often results, essentially, from market failure: customers are willing to pay content owners for access to material, and the content owners refuse - because they can't be bothered to serve that market or geography, because they are trying to force consumers onto another platform, or because they are trying to leverage interest in, say, Premier League matches as a means of getting cable customers to buy the Golf Network. The music industry made exactly these mistakes before the combination of Napster and iTunes forced them into better behavior: MusicNow and Pressplay were expensive disasters, loaded with DRM restrictions and focused on preventing any possible re-use of content rather than delivering actual value. TV content owners are now making the same mistake.

Take, for example, MLB. I tried to purchase a plan to watch the baseball playoffs on mlb.com - I don't own a TV, and it's a bit awkward to hang out at the local pub for 3 hours. MLB didn't make it obvious how to do this. Eventually, I clicked a plan that indicated it would allow me to watch the entire postseason for $19.99, and gladly put in my credit card number.

My mistake. It turns out that option is apparently for non-U.S. customers. I learned this the hard way when I tried to watch an ALDS game, only to get... nothing. No content, except an ad that tried to get me to buy an additional plan. That's right, for my $19.99, I receive literally nothing of value. When I e-mailed MLB Customer Service to try to get a refund, here's the answer I received: "Dear Valued Subscriber: Your request for a refund in connection with your 2011 MLB.TV Postseason Package subscription has been denied in accordance with the terms of your purchase." Apparently the terms allow fraud.

Naturally, I'm going to dispute the charge with my credit card company. But here's the thing: I love baseball. I would gladly pay MLB to watch the postseason on-line. And yet there's no way to do so, legally. In fact, apparently the only people who can are folks outside the U.S. And if you try to give them your money anyway, they'll take it, and then tell you how valued you are. But you're not.

So, I'm finding ways to watch MLB anyway. If you have suggestions or tips, offer 'em in the comments - there must be a Rojadirecta for baseball. And next season, when I want to watch the Red Sox, that's the medium I'll use - not MLB's Extra Innings. MLB has turned me into a pirate, with no regrets.

Cross-posted at Info/Law.

Activist athletes and modern sensibilities

Gerard Magliocca at CoOp argues that NCAA reform will come when one of the NCAA Men's Basketball Tournament finalists refuses to play unless the players receive a share of TV revenues. He continues:

Now this kind of strike would not be easy.  Most of a team would have to agree and risk expulsion from school and the loss of a once-in-a-lifetime chance to play for the national championship.  They would be called all sorts of nasty names by fans and alumni.  On the other hand, Curt Flood went through something like that to create free agency for professional athletes.  Who will be the Curt Flood of college sports?

It's a great point and I agree with Gerard it could work. A few broader thoughts.

First, there is precedent for a group of players achieving union goals by refusing to play a major televised game. NBA players achieved their first significant collective victory  when they refused to play the 1964 All-Star Game, deciding to strike in the locker room right before game time, with ABC ready to broadcast. Bill Simmons has a nice discussion of this in his Book of Basketball and righly says there ought to be an HBO Sports Documentary on it.

Second, Gerard is right that such a move would require group solidarity among the entire time, including, probably most importantly, the stars of that team. It worked for the NBA players in 1964 because that game featured Bill Russell, Wilt Chamberlain, Jerry West, Oscar Robertson, and Elgin Baylor. Gerard says that the players would "be called all sorts of nasty names by fans and alumni," comparing them with Curt Flood, the man often (although not entirely accurately) credited with bringing about free agency in baseball by refusing a trade to a new team, and who was similarly criticized and shunned for his efforts.

But I am not sure that is true in modern times. Sports reporters and columnists in 1970 were incredibly conservative and old-school, very cozy with the owners and the league's establishment, and therefore very critical of anyone who dared to challenge the league's dominance and control. They took the owners' side in all of these disputes and the "spoiled players" meme was largely a media creation. Most of the criticism directed at Flood came from those reporters. Sports media today are far-more diverse, far-less pro-establishment, and seemingly more progressive. There are more voices being heard in more foca (hello, bloggers), and at least some of these voices will do more than give a knee-jerk rejection of the players' point of view. The same probably goes for fans. Fans dislike the NCAA and many polls show support for players receiving some form of compensation and some right to control the games they play. Fans are more diverse, more progressive, and (importantly) more well-informed about the business and economic side of the game (as a result of the greater number of media writing on these issues). My speculation is that a substantial percentage of fans would be behind the players--certainly more than were behind Flood in 1970.

Third, it also is worth noting that, while Flood was certainly criticized for his stance, he was not blackballed or denied opportunities to play. As the recent HBO documentary showed, Flood came back in 1971 (paid $ 110,000), but only last 13 games, his skills having faded from his one-year layoff and, perhaps, from the pressure and stress of his stance and the criticism he endured. We also have another modern comparison--Maurice Clarett, who unsuccessfully challenged the NFL's draft eligibility rules by trying to leave college and enter the league following his freshman year at Ohio State. After losing his antitrust suit, Clarett was drafted in the third round and signed a four-year contract, although he was waived before the end of training camp because he was out of shape, rusty, hurt, and generally not able to play at that level by then.

These two historical points are important because, as Gerard correctly notes, such a boycott of the Finals only works if the entire team, including its best players, is on board. But that superstar player not only has to worry about losing a "a once-in-a-lifetime chance to play for the national championship;" he also has to worry about hurting his NBA prospects, either by not being seen on the big stage or by being seen as a troublemaker. The former is not a real problem; given private workouts and the other processes teams use in settling on draft choices, performing well in the Final Four is less essential to getting drafter. The latter also is not a real problem, given that the NBA will accept that "troublemaker" if he can play.

Update: Gerard is not the only person talking about this today. Deadspin reports on a petition by the National College Players Association signed by more than 300 football and basketball players, calling on the NCAA to institute a host of reforms, including increasing the total value of scholarships and putting TV money into a trust fund for athletes. The Deadspin story links to a piece by Yahoo!'s Dan Wetzel calling for a team to boycott a lower-tiered bowl game, which would not require the same level of sacrifice as boycotting a BCS bowl or Final Four game, but still will be high-profile enough to get people's attention.

 

It's Cool to be a Gay Footballer

With thanks to Ohio State law school student Pete Olsen, who writes a blog called Wide Rights about gay rights and sports, I recently discovered that the NFL has added protection for sexual orientation discrimination in its most recent collective bargaining agreement.

The language from the 2006 CBA Article VII, Player Security, reads :

Section 1. No Discrimination: There will be no discrimination in any form against any player by the Management Council, any Club or by the NFLPA because of race, religion, national origin or activity or lack of activity on behalf of the NFLPA.

The new language in the 2011 CBA, now moved to Article 49, reads:

Section 1. No Discrimination: There will be no discrimination in any form against any player by the Management Council, any Club or by the NFLPA because of race, religion, national origin, sexual orientation, or activity or lack of activity on behalf of the NFLPA.

This is a significant development. Homophobia has long found a haven in the testosterone filled environments of professional sports, but lately, high profile names in football, soccer, rugby and other sports have made "It Gets Better" videos and made commitments to advocate for marriage equality and an end to anti-gay bullying in schools. We cannot overstate the gravity of the role of these stars. It's one thing to be told by your teacher or by strangers on the "It Gets Better" YouTube page, but when the 300-pound lineman you cheer for every Sunday tells you that homophobia is "just not cool" and "not the NFL way," heterosexual youths are more likely to listen.

Personalizing the national anthem

Patriotic and political rituals pervade our sporting events. And the performing of The Star-Spangled Banner, a part of just about every game, is heightened at major games and events (championships, Super Bowls, all-star games, event finals). And we expected that to even more so at today's Women's Final of the U.S. Open, played in New York on the tenth anniversary of 9/11.

What I find interesting is the way artists can and do try to personalize the anthem, changing the entire tune and musical style of the song (particularly in non-traditional styles), and the way our reactions to that have changed. What is widely regarded as the first attempt at restyling was Jose Felciano's acoustic slow Latin jazz rendition before Game 5 of the 1968 World Series in Detroit, which outraged fans (NBC stations were inundated with angry phone calls) and lead some radio stations to stop playing Feliciano's music for a time. On the other hand, the response was much more favorable to Marvin Gaye's rendition at the 1983 NBA All-Star Game. And in 2010, Feliciano was invited back to Detroit to perform his version of the anthem during a memorial ceremony for late Tigers announcer Ernie Harwell. Are there other recent examples of performers making stylistic changes to the song?

All of which is by way of saying that our reaction to Queen Latifah's gospel/soul rendition before today's match is a product of its time. It probably would have been a subject of controversy 40 years ago; it now becomes an instant classic. Enjoy.

 

Law at the old ballgame

Jen, Lily, and I went to Sunday's game between the Phillies and Marlins, which turned into a game that shows why lawyers love baseball so much. In the top of the sixth and a man on first, the Phillies' Hunter Spence hit a drive to deep right that Marlins rightfielder Bryan Petersen could not pull in against the wall; Spence ended up on second with a double. The Marlins claimed fan interference (a Phillies fan reached his red Phillies hat over the fence and it looks like the hat hit Petersen's glove as he was leaping to make the catch). The umps went to replay, deciding that the fan had interfered and calling Pence out. Phillies manager Charlie Manuel argued the call and was ejected (watching the video, it almost looks as if he asked the crew chief to run him). The Phillies played the game under protest (the link has the video--MLB.com does not allow blogs to embed video), which the Marlins won on a bases-loaded walk in the fourteenth inning (we didn't last that long).

MLB allows replay in three situations: Fair/foul on a home run; home run or in play; and fan interference. The Phillies objection appears to be that fan interference can be reviewed only on a home-run play; in other words, replay can be used to determine whether a ball should have been a home run or should have been an out for fan interference--basically, the Jeffrey Maier play). But it was not clear whether the Phillies argues that this was a home run or seek review; it appeared that only the Marlins sought review for interference; it was either a double (the call on the field) or it was fan interference. Thus, the argument goes, it was not reviewable.

Three thoughts.

First, the adoption of limited replay demands vigorous policing of the boundaries of reviewability. The decision as to what is reviewable grows from a balance among the flow of the game and the need to keep reviewable plays to a minimum, administrative workability (related to flow, as well as to the means for handling overturned plays), and the desire for correctness and accuracy. MLB determined that home run calls should be the focus of replay--homers are inherently important plays on which we know with absolute certainty runs would score and because it is easy to administer, since a home run is such a final play (batter and all runners score, bases empty). But that means a play that is not claimed to be a home run should not be subject to the five-minute break in the action (ten if you count the subsequent argument) associated with review.

Second, I actually was surprised at the fan-interference ruling because it went against the visiting team. My assumption had been that fan interference could only go against the home team, that the rule is designed to prevent the home team's fans from helping their team. I was wrong on that; the rule is written to require that any batter be called out for any interference by any fan with any team. But that actually creates incentives for home fans to interfere on this precise play--rather than taking a chance that the home team's fielder will make a tough catch against the wall, the fan can interfere and assure an out. That can't be right. Of course, this being Miami, the stadium was probably 2/3 Phillies fans, so maybe the umps acted as if the Phillies were the home team. And the guy who interfered was wearing a Phillies hat and jersey, so perhaps the umps determined that the fan was, in fact, trying to aid the Phillies batter.

Third, my guess is that MLB will reject the protest. At least one game story states that both managers protested the call--Manuel wanted it called a home run and the Marlins manager wanted interference. Thus, both issues (home run/in play and home run/interference) were under review.  The umpires likely will insist they were looking to see both if the ball went over the yellow line at the top of the fence and might have been a home run as well as whether there was interference, thus bringing it within the scope of replay review. Moreover, to overturn the rule would create a real administrative (remedial, if you will) headache--does MLB order the game replayed at that point in the top of the sixth, nullifying eight more (rather poorly played) innings of play? As I argued in my post on the anniversary of the pine tar game (one of the rare times a protest was upheld), the difficulties that follow from accepting a protest may affect the decision whether to accept it in the first place.

By the way, this was not the only law-related stuff at this game. A kid was injured by a hard foul ball into the stands and a woman was injured when the barrel of a cracked bat struck her in the head--so you have the age-old issue of liability over fan injuries from things flying into the stands. And we sat in front of one of the more obnoxious fans I've met, so we got a very heavy dose of (mostly whining) cheering speech.

Regulating student-athletes' social media

A fellow prawf raises the following issue: What are the legal (especially First Amendment) implications of recent attempts by some schools (including, apparently, the University of North Carolina) to ban student-athletes from using Twitter and other social media? Can the schools do it? Should they do it? What arguments could student-athletes make in response and would they work?

This is the first I have heard about this issue. My initial, descriptive thought is that such a ban would be upheld on the strength of some unholy hybrid of Garcetti and Morse. Normatively, I find that a bit disheartening. I would hope for a more nuanced analysis, in which we might separate what a player does as an athlete playing for the team (and thus on behalf of the school) and as a student. After all, can it be that student-athletes have fewer First Amendment rights than student non-athletes? I remember watching a documentary a few years ago about John Wooden's UCLA dynasty, which described how Wooden permitted (and even somewhat encouraged) players such as Lew Alcindor and Bill Walton to get involved in campus activism and protests during the off-season (over Viet Nam and civil rights, primarily), with the caveat that they not do anything to embarrass the team (read: "Don't get arrested"). Forty years later and schools are afraid of having players tweet or post status updates?

Thoughts?

Guarding the Gladiators

This has been a sad and sobering week for professional sports.  And I say this not just because of the regrettable behavior of some fans attending NFL preseason games (see disturbing video of fights in the stands, on the concourse level, and in the parking lot).  Rather, Rick Rypien, a professional hockey player who most recently skated for the Vancouver Canucks, was laid to rest.  Rypien, who suffered from depression, committed suicide.  He was 27.  Rypien’s death follows the May passing of Derek Boogaard, a fellow professional hockey player who struggled with substance abuse and died – just one day after leaving rehab – from a lethal mix of alcohol and Oxycodone.  Boogaard was 28.   Last year, former NHL player Bob Probert collapsed and died at the age of 45.  Probert himself had legal issues related to drugs and alcohol. 

Rypien, Boogaard, and Probert were all “enforcers,” or players in the NHL whose sole or primary role is to fight on behalf of their team or teammates.  Fighting, in other words, is what enables them to hold a spot on a team and earn a living.  They "have" to fight, even though they may not personally enjoy fighting.  Though they can energize their team and excite fans, once the bouts are over, these players return to a rather isolated existence.  At the outset, I will admit that I am among those who believe fighting can serve a legitimate purpose in hockey contests (e.g., it can generate or change momentum, avenge a questionable play or the targeting of more skilled players, or intimidate the opposition).  Whatever the alleged or arguable merits of fighting in hockey, this entrenched element of hockey can no longer stand if serious brain injuries or mental health problems stem from it.  The three aforementioned deaths suggest that all those who assume the responsibilities of an “enforcer” and occupy this singular, specialized place on a hockey team deserve special attention, support, and consideration above and beyond any competitive or fan-based benefits of fighting. 

Preliminary reports suggest that Probert developed a degenerative brain condition that is generally brought upon by repeated concussions or trauma to the head.  Boogaard’s family has donated his brain for further study as to whether he, too, had this condition.  (Rypien’s family is apparently contemplating the same.)  What, if anything, does this have to do with the law?

Last week, a group of former NFL players who suffered concussions while playing in league games, filed suit against the NFL, claiming that they are entitled to “medical monitoring, compensation and financial recovery... as a result of the defendant’s carelessness, negligence, intentional misconduct, and concealment of information directly related to each Plaintiffs' injuries and losses.” (The complaint is available here).

Concussions are a growing problem in hockey, itself a contact sport like football.  The NHL, in response to concussions, has curbed hits from behind and body-checks from the "blindside" that appear to target another’s head.  These are encouraging developments from the perspectives of protecting the health and well-being of players and shielding the league from potential liability.  They are not close, however, to being sufficient in either respect. 

In this essay, Canadian sports law professor Jon Heshka points out that the NHL is trailing behind the NFL in guarding against brain injuries in that the former’s rules have a difficult-to-prove intent requirement for the blindside hit prohibition to be triggered, whereas the NFL does not, and the former can fine offending players a maximum of $2,500, compared to corresponding fines of $75,000 in the NFL.

In my view, the NHL is in disarray at a crossroads.  At the highest level, it is presided over by a commissioner with an, ahem, limited hockey background, who lacks the respect of the hockey cognoscenti, and who as a result of these two qualities undermines the credibility of the league’s overall activities.  Its enforcement arm has failed, as I’ve written, to sufficiently punish players for reckless actions that seriously jeopardized the health and safety of others, to deter such conduct, or to spread confidence among the fans that there is any sense to or consistency among the punishment decisions.  It now has lost three members of its fighting fraternity, which should at a minimum call for more robust mental health services, efforts to diminish any stigma attached to seeking out or obtaining these services, research into more effective helmets and other equipment, and adoption of additional rules that can protect players even if doing so sacrifices exciting moments in a game (e.g., no-touch icing).  The league response has been underwhelming, and has not matched in word or deed the seriousness of players' health and safety problems.

Andrew Cohen argued that it may take an on-ice death for the NHL to wake-up.  I hope, for the sake of the players and the league, that three premature off-ice deaths may compel the league's brass to take a hard look at its rules, their enforcement, and the resources available to its players, particularly the marginalized enforcers.  If their collective conscience in light of recent events is not sufficiently agitated to jolt the league into action, it sadly may take the threat of liability for things to change.

"Let 'em Play" and Hockey

I read with great interest Professor Mitchell Berman’s series of posts on the Volokh Conspiracy discussing his new article, “'Let ‘em Play': A Study in the Jurisprudence of Sport.”  The article, as I understand it, explores fans' expectations in professional sports that certain rules of the game will be enforced less strictly at critical moments in the contest, such as the last minutes or seconds of a close match.  Umpires and referees interfering less in these critical moments, the theory goes, fosters the impression that the players themselves are responsible for the final outcome of the match.  Professor Berman’s goal, at least in part, appears to be to examine how these norms with respect to the non-enforcement of rules in the sports realm can or should apply to the legal system.  As an avid sports fan and prawf, I appreciate very much his serious treatment of the potential relationship between sports and the law.

Professor Berman uses several professional sports to illustrate this concept of “temporal variance,” including tennis, baseball, football, soccer, and basketball.  Largely absent is ice hockey, which Professor Berman admits he isn’t as familiar with and thus hasn’t incorporated as much into his substantive discussion. 

I happen to a huge hockey fan and religious follower of the storied Montreal Canadiens.  I generally watch (via a cable hockey package) seventy-five to eighty of the Canadiens’ eighty-two regular season games, and have enjoyed for over an aggregate decade season tickets to two other NHL teams.   All in all, I’ve probably watched well over a thousand NHL games in my life.  Below, I’d like to offer some informal thoughts, based entirely on my observations of live and broadcasted games, on “temporal variance” and the non-enforcement of rules in hockey.

I generally agree that, in professional ice hockey, some expect referees to call less infractions in the last moments of a close regular season game relative to the rest of the game, and in playoff games relative to regular season games.  While "temporal variance," as a factual matter, may exist in professional hockey, I am skeptical as to whether "temporal variance" should be part of professional hockey.

First, for me consistency in the enforcement of rules is a value that trumps any intentional abdication of rule enforcement in the last stages of a tight game.  Referees possess a lot of discretion in calling penalties.  The question is not how that discretion is used only in the last, critical moments of a game, but how that discretion is used in the last moments compared to how it was used in the prior bulk of the game.  Some fans may not be pleased, for example, if a referee called an infraction in the earlier moments of the game, but then let a similar infraction committed by the other team "go" when the game is on the line, even if doing so is consistent with the "temporal variance" expectation.  If referees are consistently strict or lenient throughout the game, there may be greater acceptance of a call (or non-call) in the last moments.  Such context-neutral application of the rules would seem to give the referees enhanced credibility and ability to claim that they objectively handled the game.  That evenhandedness or consistency may provide greater assurance that the outcome of the game can be attributed to the players, not the referees. 

Second, "temporal variance" pays insufficient weight to the enforcement or non-enforcement of rules in earlier moments of a match.  The last moments have been shaped and determined by the preceding moments.  A hockey game has certain ebbs and flows that are no doubt impacted by referees’ calls or non-calls throughout a game.  The last moments are the culmination of everything in the game that occurred previously. A penalty called in the beginning of a game can have a profound impact on the direction and contents of the rest of the game.  "Temporal variance" gives the false impression that it is only in the last moments that referees can influence the game when, in fact, referees have been taking part throughout the game in determining the opportunities available to and disadvantages to be imposed on particular teams.  As referees already have impacted the game by making their calls in the earlier moments of the game, it may be that what has changed in the last moments of the game is only some fans’ sensitivity to that potential last-minute influence. 

Third, one of the costs of referees "putting their whistles away" in the last moments of a game is that referees effectively reveal that they are doing something other than dispassionately and objectively calling the game.  They are signaling that they can and do intentionally manipulate the entire game if they are intentionally "hands-off" in the last moments.  If they are "activist" in one instance, they open the door to the view that they are "activist" in all.

Fourth, Professor Berman seems to posit that "temporal variance" may be explained by an interest in rewarding the "competitive excellence" of players.   It is not fully clear, however, what constitutes "competitive excellence" in hockey.  In the other sports noted by Professor Berman, generally no or minimal physical play is tolerated, yet "temporal variance" may permit a greater degree of physical play.  In hockey, physicality is not condoned only in the last part of a close game.   Rather, in hockey, physicality is integral to the entire game.  In fact, hockey players are commended for their physicality, such as their ability to deliver body checks in open ice.  Of course, on the other hand, speed and skill are prized in hockey.  This is not an either-or situation – hockey blends both physical play and speed/skill.  This is to say that "competitive excellence" is a complicated issue in professional ice hockey, and the physical component is not an inherent evil but a regular feature that is generally penalized when it goes too far.   

Fifth, finally, and perhaps most importantly, the impact of non-enforcement is not limited to the perception of referees' proper role in handling a game (e.g., whether they are impartial) or whether the players have decided the game.  It also impacts perceptions as to the integrity of the entire league.  Recent non-enforcement of rules during two periods of time other than the last minutes of a game or the playoffs demonstrate the costs that non-enforcement may have on the league as a whole and thus the fans' qualitative experiences with respect to the NHL.

The first of these time periods is after a regular season game is completed, when the league has an opportunity to consider and issue supplemental discipline for potential infractions that occurred during a previous game.  This past season, Canadiens’ forward Max Pacioretty was trying to skate past Zdeno Chara, a Boston Bruins defenseman and the largest player in the league, when Chara drove Pacioretty into a partition separating the two players’ benches.  Pacioretty suffered a severe concussion and broken neck, and missed the rest of the season and playoffs.  Chara claimed, incredulously, that he did not know the partition was there and that he was innocently trying to separate Pacioretty from the puck -- which, incidentally, was in another zone.  There was no legitimate basis for the hit, as the puck was far away and Pacioretty was entitled to skate without obstruction.  Chara was not given any supplementary discipline.  In all my years of watching hockey, that single non-enforcement decision did more to undermine the credibility of the league than anything else I can recall.  The league effectively “let ‘em play,” though in doing so diminished the respectability of the NHL.  Indeed, the NHL lost sponsors as a direct result of its unwillingness to sufficiently enforce its rules against Chara.  It likely lost fans as well.

Worse, non-enforcement emboldens players and invites them to test the limits of acceptable play with even more objectionable, unsportsmanlike behavior.   This is exactly what occurred in the playoffs, in between whistles when the play is officially over though players still interact.  The Bruins won the Stanley Cup this season in part because they used their superior physical strength to intimidate and wear down the opposition.  The referees' unwillingness to police the Bruins’ spearing, cross-checks, and jabs that took place after play was over only empowered them to act more aggressively and brazenly.  Unrestrained by the referees, the Bruins, unsurprisingly, took advantage and were able to quell the skilled play of the Canucks’ forwards.  The Canucks engaged in some of the “less than honorable” conduct as well, though the Bruins due to their team strength, size, and attitude did so with greater frequency and severity.  The Bruins, to their credit, played within the bounds that the referees impliedly established by way of non-enforcement; and the Bruins were not going to regulate themselves and limit their physical competitive advantage if the referees were not going to. 

All told, the competitive excellence that the league therefore rewarded, through such non-enforcement, is the bullying style of play exemplified by the Bruins.   This, to me, is a regrettable development, one that tips the balance too heavily in favor of the brute and to the detriment of the skilled. As Andrew Cohen noted in The Atlantic after the Pacioretty-Chara incident, the league's excessive non-enforcement will end up resulting in the loss of life of an NHL player.   "Let 'em play," thus has serious consequences broader and more important than the perception of who is responsible for wins or losses.

One may completely discount my take on the non-enforcement of rules within hockey because of my affinity for the Canadiens and commensurate hatred for the Bruins (sorry, Professor Somin).  I hope nonetheless that some readers may think twice about whether "temporal variance," and non-enforcement generally, is a normatively appealing value in professional ice hockey.

Pine Tar: Of baseball and law

Today marks the 28th anniversary of the "Pine Tar Game." In 1983, the Royals were playing the Yankees at Yankee Stadium on a Sunday afternoon. With two out in the top of ninth and the Yankees up 4-3, George Brett hit a two-run homer. But Yankee manager Billy Martin protested, saying that Brett had used an illegal bat containing pine tar more than 18 inches up the bat handle;R. 1.10(c) prohibited pine tar or any other grip-improving substance on the hitting area of the bat. The umps measured the amount of pine tar, found it higher than 18 inches, and called Brett out, giving the Yankees the win. In one of the iconic video images in baseball history, Brett came charging out of the dugout and tried to attack the umpire and had to be restrained by teammates, coaches, and other umpires. The Royals protested and the protest was upheld by AL President Lee MacPhail, who reinstated the homer and ordered the game resumed from that point.

Long before John Roberts went before the Senate Judiciary Committee, this game had people talking about baseball and the law, even prompting some legal scholarship on the case as demonstrating statutory interpretation, judicial decisionmaking, and legal processes.

R. 1.10(c) called for the removal of the tainted bat from the game, but did not specify what should happen to a player who used such a bat or to a play in which such a bat was used. The home-plate umpire invoked his gap-filling power under R. 9.01(c) to "rule on any point not specifically covered in these rules" and decided that a player should be called out for using an illegal bat on a play.

In reversing that decision, McPhail made an intentionalist "spirit v. letter of the rule" decision. R. 1.10(c) was not about regulating performance, it was about economics. MLB wanted players to keep pine tar off the hitting area of the bat because if pine tar got on the ball, the ball would have to be thrown out, requiring teams to provide more balls each game. But pine tar did not affect the "performance" of the bat, in the sense of how far or hard or well the ball would travel off the bat (compared with, for example, doing something to make the bat lighter). Thus, the only appropriate sanction was removing the bat from the game, as provided in R. 1.10(c). Calling a player out was an unnecssary additional sanction, because Brett's violation of the rule did not give him an unfair competitive advantage. The umps, if you will, abused their discretion in turning to 9.01(c) for that additional sanction.

This also shows that the posture of an issue on appeal and the administrability of any ruling affects its resolution. This was one of the rare cases that a league upheld an appeal of an umpire's ruling--in fact, it was the only time in MacPhail's ten-year term as AL President that he overruled the umpires. He was able to do so, in part, given the timing of the play at issue--it was the final play of the game. This meant there were only two possiblities: game over if MacPahil affirmed or pick the game up from a known point immediately after the challenged play if he reversed. But imagine the administraive difficulties if the challenged play had come in the fifth inning. The game would have been played to a conclusion "under protest," then the challenge would have gone to the league (in essence, a Final Judgment Rule). If MacPhail makes the same ruling, what happens? Does the game resume from after the challenged play and everything that actually happened is erased from the record books? Does it depend on whether those two runs would have made a difference in the game, in essence, a harmless error analysis? Should the game resume only if it would affect the pennant races (both teams were in contention, although neither won its division), in essence a mootness analysis?

MacPhail ordered the game replayed from the point of the call--two outs in the top of ninth, Royals up 5-4. There was more conflict over when the game would be played or if it should be played. The Yankees wanted to wait until the end of the season and resume it only if it affected the penant race. The AL ordered the game to be picked up on Thursday afternoon, August 18.

Then there was some real legal wrangling. The Yankees sued to stop the resumed game, citing security and administrative burdens; a trial court issued a preliminary injunction, which was quickly overturned on appeal. So the game resumed, with about 1200 fans in the stands. The first move by manager Billy Martin was to appeal to every base, arguing that Brett and the runner ahead of him had not touched the bases on the home run. The four umpires working the resumed game were not the same umpires who had worked the original game, but each signalled safe. They then produced an affidavit from the four original umpires swearing that both players had touched all the bases on the home run.

Finally, to see separation of powers at work: MLB amended the rules to handle the situation in the future, adding a Note to R. 1.10(c) stating that the use of a bat with too much pine tar would not be the basis for calling a player out or ejecting him from the game and a Comment that if excessive pine tar is not objected to prior to a play, it cannot be a basis for nullifying a play or protesting the game.

Umpiring--it's a lot more than calling balls and strikes.

Winning and losing legal battles and the legacy of Curt Flood

HBO Sports has produced an excellent documentary (narrated, of course, by Liev Schreiber), The Curious Case of Curt Flood, examining Flood's career, unsuccessful federal-court fight to establish free agency, and life after baseball. Among the commentators is Wisconsin Prawf Brad Snyder, who wrote a fantastic book on Flood's case, A Well-Paid Slave: Curt Flood's Fight for Free Agency in Professional Sports.

One of the subjects the movie tackles is Flood's precise legacy. The popular myth (and I use myth in both its meanings) is that Flood successfully challenged baseball's reserve system (which essentially allowed MLB Clubs to continually renew a player's one-year contract) and created free agency. But Flood did not win, losing in a 1972 decision that has become infamous for two things: 1) Justice Blackmun's otherise-pointless paen to the glory and history of baseball (which Chief Justice Burger and Justice White refused to join and which excluded Joe DiMaggio from the list of greatest players) and 2) a logical progression of, essentially, "We were wrong in our two prior precedents holding that MLB is not engaged in interstate commerce and thus not subject to the Sherman Act, but at this point it is for Congress, not us, to change it." Free agency came about three years after Flood, as a result of a labor arbitrator's decision (that may well have been legally incorrect, according to some) in a griveance filed by two other players, Andy Messersmith and Dave McNally.

So why is Flood widely spoken of, especially by the media and other professional athletes, as the person who made free agency possible? And what does that tell us about what it means to win and lose legal-reform battles?

1) Several commentators in the film argued that Flood put free agency in moral terms, something Messersmith and McNally did not and could not do. Rhetorically this is true. Flood, who had been active in the Civil Rights Movement, spoke of the reserve system as slavery and argued that "a well-paid slave is still a slave" (the quotation which gave Snyder his book title). Whether Flood was right to speak in terms of slavery, no white player could have done the same. In any event, the point was that the existing system was morally wrong and had to change.

But putting his own lawsuit in moral terms did not help Flood himself, who aroused the ire and opposition of the old guard of very conservative, largely white sports writers who were closely tied to teams and owners and were shockingly (compared with today) hostile to players who stepped out of line. And it did not help him in his lawsuit. But did the moral rhetoric ultimately affect the outcome of the legal battle? Did it influence the later resolutions in arbitration?

2) Snyder argues that Flood's case, even if ultimately unsuccessful, swung public opinion in the players' favor. Perhaps that gave the players greater leverage in labor negotiations or even influence the subsequent arbitration decisions. This becomes another instance of public opinion affecting legal decisionmaking. Of course, the change in public opinion still ahd to overcome the hostility of most sports writers, particularly columnists.

3) Snyder argues that the real effect of Flood's lawsuit was to accelerate free agency by accelerating the collective bargaining process between MLB and the Players' Association. MLB's argument during the Flood trial was that this was not an antitrust matter, but a matter for collective bargaining. The players and owners were negotiating what became the 1970 Basic Agreement during the trial in 1979; that agreement ultimately included a 10-and-5 rule (a player with ten years MLB experience and five with the same club could veto any trade--this would have allowed Flood to veto his trade from the Cardinals to the Phillies) and independent grievance arbitration, which ultimately produced decisions rejecting the reserve system. Snyder argues it was not a coincidence that MLB gave the players through collective bargaining the things that it insisted warranted rejecting Flood's antitrust argument. He quotes then Union head Marvin Miller as saying that the owners rejected an independent grievance process in December 1969, prior to Flood filing suit, then agreed to it six months later.

If Snyder is right, it tells us something about the need for legal movements to proceed on multiple fronts. Just as the civil rights agenda had to be pursued through both the courts and Congress, the players had to pursue free agency and higher salaries in the courts, at the collective-bargaining table, and even in Congress (where the threat of removing MLB's antitrust exemption lurked for years). Ultimately, the movement may achieve some success in each arena. Or at least the arguments made in one forum necessary influence conduct and results in another.

4) The fourth possibility is that Flood was a martyr to the cause. And successful social movements arguably always need martyrs, those people who sacrificed something but failed in their efforts to establish some change and never enjoyed the benefits or fruits of that sacrifice. Flood is like, say, John Brown or Harvey Milk. The players who successfully challenged the reserve system in arbitration got their pay days (or in McNally's case, retired following the arbitrator's decision). Flood attempted to come back in 1971, but retired after just 13 games, his skills having eroded from his year off; so, in effect, he sacrificed his career to change the system. The next two decades of his life, the movie shows, were spent in a spiral of business, financial, legal, and alcohol problems, as well as a failed stint as an announcer. He never got his payday. Morover, he was something of a late-discovered martyr. His sacrifice was not widely acknowledged until the 1994 players' strike. At that point he became the public face of challenges to MLB's power, only to contract cancer and die at age 59 in 1997. Legislation to eliminate baseball's antitrust exemption was introduced shortly after his death and named in his memory.

NFL Agreement? Don't Count Your Chickens

The theme of my NFL blogging, which you can see here (post-Eighth Circuit hearing) and here (post-Eighth Circuit decision) is that the players' antitrust litigation strategy was really much more effective than the owners anticipated.  It totally reversed the usual roles you see in a lockout.  Generally, when an employer locks out its employees, it has time on its side.  The company closes its gates and waits for the workers to start missing paychecks.  (That's what's happening in the NBA.)  Ever since the district court enjoined the lockout, however, it's been the NFL owners who can't wait to get an agreement.  Check out this remarkable paragraph from ESPN's "Owners approve proposed lockout deal":

In their proposal, the owners told players that they must re-establish their union quickly for the proposed CBA to stand. The NFL also said it wanted evidence by Tuesday that a majority of players have signed union authorization cards.

In the history of labor relations, I don't think I've ever seen employers so eager for employees to (re) join a union.  In fact, the point of a lockout is generally to break a union -- or at least, a hoped-for side effect.  But the NFL owners can't wait to get the union back in place and, in effect, put back together the Humpty Dumpty CBA they foolishly pushed off the wall.

But wait -- maybe the players aren't all that eager to agree!  There's this ominous paragraph:

However, Smith wrote in an email to the 32 player representatives shortly after the owners' decision: "Issues that need to be collectively bargained remain open; other issues, such as workers' compensation, economic issues and end of deal terms, remain unresolved. There is no agreement between the NFL and the players at this time."

So what's going on?  The players' representatives are still working things through, but the NFL is using its vote to pressure the players into agreeing to the proposed CBA.  Otherwise, why would the lead owner in the negotiations say this?

"That's baffling to me," Panthers owner Jerry Richardson told ESPN's Sal Paolantonio [in response to Smith's email]. "We believe we have handshake agreement with the players."

Although details are somewhat spotty, the deal looks like a decent one for the players.  At the very least, it's a much better deal than the owners were talking about when they first went to the negotiating table.  It's also a ten-year deal -- much longer than the standard 3 to 5 year agreement.  Why?  So the players can't bring another antitrust challenge for ten years.

But I think the players have smelled the owners' fear.  That's what this is about:

A high-ranking NFLPA executive committee member told Mortensen that the owners' approval "puts the onus on players to make a decision to agree -- paints us into a corner with fans. We'll discuss tonight but the idea of reconstituting as a union has never been a slam dunk as the owners have already assumed."

Said another high-ranking NFLPA official: "We are not happy here. We had to honor to not vote on an agreement that was not final (Wednesday). This is not over. This actually takes away incentives from players to vote yes tonight."

We'll see what happens with the eventual CBA details.  But the players have already won.

Like father, like daughter?

I have been a sports fan since I was about six years old and as a youngster did not handle my favorite teams losing--tears, yelling, mild swearing, thrashing, shouts to the heavens, and cries of "why didn't ___ happen" were a common occurrence. When my wife and I had a daughter, I hoped that she would become a sports fan, and have been pleased that she has at a young age. She even is showing some decent five-year-old soccer skills (ironic, since that was long the sport that I just did not get).

Well, the family connection became very clear with the US loss to Japan in the Women's World Cup Final today, which precipitated a crying meltdown for the ages. Being more dramatic than I was, hers even got somewhat existential--wondering why she had been born, why she bothered watching, and threatening never to play or watch soccer again (the last part passed quickly and she is looking forward to attending FIU women's games in the fall).

It obviously hurt to see her that upset. But a small part of me felt a twinge of happiness and pride that she has developed such a passion for this.

Injunction Ruling Against NFL Lockout Overturned

The opinion is here.  The Eighth Circuit rescinded the district court's lockout based solely on the Norris-LaGuardia Act.  As to the other arguments, the majority said:

Given our conclusion that the preliminary injunction did not conform to the provisions of the Norris-LaGuardia Act, we need not reach the other points raised by the League on appeal. In particular, we express no view on whether the League’s nonstatutory labor exemption from the antitrust laws continues after the union’s disclaimer. The parties agree that the Act’s restrictions on equitable relief are not necessarily coextensive with the substantive rules of antitrust law, and we reach our decision on that understanding. 

I think this narrow holding preserves the players' longer-term arguments, as I discussed in this earlier post.  This decision only dissolves the injunction.  As I said at the time:

Let's say the court holds that Norris-LaGuardia prohibits the injunction.  Well, that only removes the injunction against the lockout; it does not mean that the NFL won't ultimately be liable for antitrust violations.  In fact, Judge Benton seemed to indicate that antitrust damages would continue to accrue even if the lockout could not be enjoined under the NLA. 

Perhaps these still-open possibilities are pushing the parties to settle.  The named players in the suit may want to blow up the existing system, but it's not clear to me that the lower-paid players want that.  And it would likely take at least a year, and likely two or three, for the antitrust case to render the league crippled from a massive antitrust award.  So the two sides seem to be stepping away from the precipice. 

The fact that the NFL is negotiating at all, however, indicates to me that its lockout strategy was not as effective as predicted.  The typical lockout strategy is to lock out and then wait until workers to come crawling back, after they've missed a big chunk of their salaries.  I don't know how things will end up, but a deal should come soon.  And I expect that the final deal will be much more favorable to the players than most folks would have predicted six months ago.

One final question: why isn't the NBPA pursuing this strategy as well?

Feedback loops - applications?

A recent Wired article "Harnessing the Power of Feedback Loops" tells the story of how such mechanisms can be used in a variety of ways to affect human behavior - to essentially get us to 'do the right thing'. Here's an explanation of how they work from the article:

A feedback loop involves four distinct stages. First comes the data: A behavior must be measured, captured, and stored. This is the evidence stage. Second, the information must be relayed to the individual, not in the raw-data form in which it was captured but in a context that makes it emotionally resonant. This is the relevance stage. But even compelling information is useless if we don’t know what to make of it, so we need a third stage: consequence. The information must illuminate one or more paths ahead. And finally, the fourth stage: action. There must be a clear moment when the individual can recalibrate a behavior, make a choice, and act. Then that action is measured, and the feedback loop can run once more, every action stimulating new behaviors that inch us closer to our goals.

A number of examples are provided, the most prominent being feedback loop signs that tell you how fast you're driving next to the posted speed limit. This reminds me of theories of athletic coaching that I've read about - how good coaches use low-key constant correction advice to get their players to change their performance in real time (or close to it). Apparently, now is the time for feedback loop devices as a public policy method, as the costs of one of the primary means of providing feedback loops - sensor technology - continues to sink.

While not all feedback loop applications require sensors, the rise of such technology should perhaps give us pause to consider how such mechanisms might be used in a wide number of settings. For instance, can it be used effectively in teaching (perhaps, not too different from coaching)? I occasinally use real time quizzes via powerpoint, but I never really thought of it as a feedback loop although I imgaine that there are similarities.

But, what about legal applications? Can we use it for more than just speeding? Will such mechanisms make us more likely to obey the law? Why do they work in the first place? Well, here's what the article said on that point:

So feedback loops work. Why? Why does putting our own data in front of us somehow compel us to act? In part, it’s that feedback taps into something core to the human experience, even to our biological origins. Like any organism, humans are self-regulating creatures, with a multitude of systems working to achieve homeostasis. Evolution itself, after all, is a feedback loop, albeit one so elongated as to be imperceptible by an individual. Feedback loops are how we learn, whether we call it trial and error or course correction. In so many areas of life, we succeed when we have some sense of where we stand and some evaluation of our progress. Indeed, we tend to crave this sort of information; it’s something we viscerally want to know, good or bad. As Stanford’s Bandura put it, “People are proactive, aspiring organisms.” Feedback taps into those aspirations.

With all of this in mind, I invite readers to suggest potential applications :-)

[H/T Tim Ferriss]

Len Bias and historical counterfactuals

Today marks the 25th anniversary of the death of former University of Maryland basketball star Len Bias from a cocaine-induced heart attack. For sports fans of my age group, this is a significant where-were-you-when moment (I was at home studying for my last high school final exams). It was the subject of one of the best of ESPN's 30-for-30 documentaries and Bill Simmons talks about it as the singular event that changed the course of the Boston Celtics and all of the NBA through the late '80s and '90s. And it was a major catalyst for Congress creating the crack/powder disparity that still plagues federal sentencing law.

The assumption always is that Bias would have been an NBA superstar. He was the immediate heir to Larry Bird and would have kept the Boston Celtics (who had just won the NBA title) at the top of the league. And he would have been the truly worthy and equal rival to Michael Jordan in the 1990s. But I always have wondered whether that assumption is correct.

We know (or really, really strongly suspect) two things: 1) June 19 likely was not the first time Bias had used cocaine and 2) Dozens of players drafted in the mid-'80s had problems with cocaine, with several being suspended or kicked out of the league for cocaine use, including some potential stars. So is it equally reasonable to imagine a counterfactual in which Bias' career is similarly undone (or at least fails to live up to its fullest potential) by the league's pervasive drug culture of the time? Especially given that Bias' death itself was one of the major wake-up calls against the drug culture in sports, the event that told leagues, teams, players, and fans in a more explicit and dramatic way that cocaine was something to worry about.

Update: Here is the Salon piece that Joseph mentions in his Comment; it is an interview with Eric Sterling, who was counsel to the House committee that drafted the 1986 drug law and now is president of the Criminal Justice Policy Foundation. The irony of the legislation that was produced is that, we now know, Bias was using powder, not crack, the night he did.

Coming soon to a theatre near you ...

"Moneyball" the movie. The moneyball concept gets a lot of play in the realm of academic hiring and performance analysis. Of course, that get's no play in this movie - but if Brad Pitt plays moneyball general manager Billy Beane, then who is Billy Beane in law and what actor plays him in Moneylaw the  movie?

 

The End of the NFL as We Know It

 

Greetings from the Thomas F. Eagleton Courthouse.  I was fortunate enough to attend the oral arguments for Brady v. National Football League this morning at the Eighth Circuit.  As you can tell from this notice, the Eighth Circuit was expecting quite a crowd; congrats to Clerk of the Court Michael Gans and his staff for their excellent handling of the event.  Since this is a football case, I feel free to use sports metaphors, so this morning's argument was like an all-star game -- nay, a heavyweight bout -- between two of the country's top attorneys. Paul Clement represented the League, and Theodore Olson represented the players.  It was a terrific show.  But more importantly, I was really struck by how huge this case is to the future of the NFL, and perhaps the future of all U.S. sports leagues.  Whether or not the league wins the battle over the injunction, there is a lot left to come.  And we could end up with a completely new landscape.

The case is a great example of how the law makes strange bedfellows.  The NFL is relying primarily on the Norris-LaGuardia Act to strike down the injunction against its lockout of the players.  Yes, that Norris-LaGuardia Act -- the one that was passed to prevent state federal courts from enjoining unions from forming.  Clement acknowledged as such in his argument, which I think was a savvy move, because the thrust of his argument was that this is all really a labor dispute and it should be treated as such.  Although he did not, until the very end, insinuate that the NFLPA's disclaimer was not legitimate, he essentially said that the union should not be allowed to jump back and forth between labor coverage and antitrust coverage as it suits their needs.  Collusive activity is perfectly legal and even encouraged in the nonstatutory labor exemption context, but suddenly it's illegal once the union has disclaimed.  Clement analogized this to turning a light switch off and on, and he made this back and forth seem unfair to the NFL.  After all, he argued, a lockout is one of the "classic tools" of labor law that employers can use in an attempt to resolve a dispute. 

Olson, representing the players, emphasized that the players had voted to get rid of the union, and it was gone.  "That union does not exist," he said, at least a few times, with emphasis.  The players were therefore entitled to antitrust protection.  Olson maintained that players could elect whether to have a union and enjoy collective bargaining rights under labor law, or disclaim the union and get the protection of the antitrust laws.  If not, players would be stuck in a "no man's land" where neither labor law nor antitrust protections applied.  Characterizing the NFL as antitrust "recidivists," Olson convincingly contended that the players needed some form of protection, and he made it clear that the decision to disclaim should mean that the antitrust protections apply.

The oral argument was fascinating to me, because it illuminated the jury-rigging that is necessary for modern sports leagues to exist in their current forms.  They are clearly collusive, and they clearly dominate their respective industries.  So antitrust liability seems to naturally follow.  The leagues have escaped this quandry (when it comes to the players) by falling under the nonstatutory labor exemption.  But what if the players don't want to play ball, as it were?  Brady v. NFL is the result.

That's why this injunction may not matter that much.  Let's say the court holds that Norris-LaGuardia prohibits the injunction.  Well, that only removes the injunction against the lockout; it does not mean that the NFL won't ultimately be liable for antitrust violations.  In fact, Judge Benton seemed to indicate that antitrust damages would continue to accrue even if the lockout could not be enjoined under the NLA.  Or, let's say that the injunction is lifted because the nonstatutory labor exemption still applies.  Well, even Clement admitted it can't apply forever -- so how long?  Clement seemed to be pushing for at least a year, but Benton seemed comfortable with six months -- which would be, according to his calculations, September 11.  Would the antitrust violations and the injunction kick back in then?

So the hearing ultimately convinced me that (a) the players took a truly radical move by disclaiming and (b) this problem is not going away, even after the Eighth Circuit rules on the injunction.  I had thought that the longer the lockout lasts, the more it favors the owners -- players need paychecks after all.  But what if the longer it lasts, the more antitrust damages that pile up against the league?  It's one thing for players to resist a deal in the hopes that the league will cave before they do.  That's a hard one to win, and I think the NBPA showed how disastrous such a strategy can be in the late 1990s.  But what if the players resist a deal in the hopes that one day soon, it will be all free agency all the time.  No draft, no salary cap, no restrictions whatsoever.  Could you hold on for a few more months in the hope that there's no salary cap -- hard, soft, or otherwise?  Seems like a lot more to fight for.

So for those of you -- like me -- who thought that the disclaimer was just a clever, but ultimately discardable, negotiating tactic, think again.  When the news went out that (former) NFLPA president De Smith was calling for "war," I now understand those ramifications.  I believe the league brought this upon itself by a series of moves: characterizing the last deal as way too player-friendly, hiring Bob Batterman, opting out of the deal early, and enforcing a lockout.  They opened the can of worms. But this could get away from the players, too -- do all players really want a world with no collective bargaining agreements?

In his argument, Clement said that the lockout would be "a self-inflicted wound" and "suicide" if it were not intended to ultimately bring about a settlement of the labor dispute.  He's right.  And I think the league now, far more than the players, needs to settle that dispute to save itself.

Don't Do the Crime if the Other Guy Can Shoot from the Line?

A recent paper by David Hebert, an econ grad student at George Mason University, argues that committing a foul in the NBA is "essentially" (his word) committing a crime:

These criminals [i.e., NBA players who foul] engage in rational economic decision making when choosing whether or not to foul an opponent....This research has broader implications into the world of crime, namely that individual people are able to deter criminal acts committed against them on their own by investing in capital, which reduces the payoff of committing a crime against them.

Setting aside his larger point for a moment, what are folks' thoughts about the supposed equivalence between committing a crime in the real world and commiting a foul on the basketball court? It does not seem like a particularly strong analogy to me, but every time I try to put my finger on why, I fail to convince myself. Here's a version of a conversation I've now had with myself many, many times.

Lawsky One: You generally should not commit a crime, but a regular foul is just part of a game. My coach used to send me into games to foul. [Note: That is true, but nonetheless, my nickname in high school was not "The Enforcer." Life is not fair.] 

Lawsky Two: But the rules say that a player "shall not" hold, push, and so forth. Doing that is breaking the rules. 

Lawsky One: Still, there must be a difference in kind, not just degree, between, on the one hand, pushing someone a little, so that the guy you fouled shoots two free throws, and, on the other hand, hitting someone so hard that you get kicked out of the game and suspended for the next five games, thus forfeiting nearly $700,000. I mean, you don't apologize for going up to block a shot and hitting someone's wrist, but Andrew Bynum apologized to J.J. Barea. 

Lawsky Two: Misdemeanor, meet felony. Monetary fine, meet death penalty. 

Lawsky One: Argh! Ok, well, maybe free throws are more like a tax, serving simply to increase the cost of a permissible activity, whereas suspension is more like a criminal penalty.

Lawsky Two: Hmm, that's slightly more persuasive...so the distinction would be between an incentive and a punishment?

Lawsky One: Yeah, something like that.

Lawsky Two: So...play that out for me...some other folks might be interested.

Lawsky One: Argh! No! Why are you doing that? No con law! Basketball only! BASKETBALL ONLY!

Anyway, I assume many folks have already written about this, so cites would be helpful, but I'd also be curious in folks' general thoughts.

Full disclosure: I raise this question because when my son was six, he and I had a conversation that went something like this:

H [running off the basketball court]: "M fouled me!"

Me: "That's ok, hon--you don't have to come tell me--it's just part of the game."

H: "No, he broke the rules!"

Me: "Not really. If he fouls you, you get free throws. That's how it works."

H: "But the rules say, no hitting."

Me: "Yeah, but they also say, if someone hits you, then you get free throws."

H: "Oh--so I can hit M?"

Me: "No, you can't hit M!"

H: "But...."

Me: "Get back in the game! And no hitting!"

As you can see, I was able to assert my parental authority to avoid acknowledging what I fear was a fundamental weakness in my position, but I have a younger child as well, and I'm trying to prepare for the same conversation with her. 

Men's sports and Title IX

Universities complying with Title IX by cutting smaller, non-revenue men's sports is not new. In fact, I always have thought of it as a brilliant strategy. The university cuts small men's sports with impunity, able to claim that its hands are tied, that it has to do this to ensure Title IX compliance, and that if anyone is to blame, it is Title IX (this argument undergirds many of the new arguments to "reform" Title IX). The strategy sets small men's sports against women's sports, even though they are similarly situated in all of this. They get forced into a supposed zero-sum game. Meanwhile, schools continues to funnel a disproportionate amount of athletic funds to football and men's basketball (an average of 78 % according to one women's-sports advocate, although I have no way of knowing if that number is accurate).

But the stratgey is back in the public eye again, with the story in Sundays New York Times about the University of Delaware cutting its men's track program in order to ensure future compliance with Title IX, even though there is no present threat or risk of non-compliance or a lawsuit (Delaware is about to add a women's golf team). Instead, several track team members have filed a complaint with the Office for Civil Rights in the Department of Education (headed, by the way, by a former law school classmate), claiming the decision to cut their program was gender-discriminatory. The parties have undertaken informal settlement discussions.

I was cheered to read one comment in The Times story, from a former captain of the Delaware track team, who is quoted as saying "How did we ever get to a place where a program that is supposed to be about creating opportunities for women is now being used in a way to create no opportunities for women and to cut men?" He clearly gets it. When will the rest of college athletics?

Losing to Win: Discussions of Race and Intercollegiate Athletics

First, a belated hello and thank  you to my wonderful co-authors, Dan and Ethan, for inviting me to guest blog on Prawfs this month.  I apologize for not posting sooner; life got in the way of blogging last week!  I hope to spend much of my time here blogging about making the move into administration (I recently became an associate provost at Wake Forest) but have to start today with a fabulous conference that kicked off here this morning about race and college sports.  The first panel was especially provocative, with Robert McCormick and Amy McCormick from the law school at Michigan State arguing first that college athletes in the major revenue-producing sports of football and men's basketball are really employees, not just student-athletes, and accordingly should be paid and entitled to collective bargaining rights.  Second, they argued that big-time college sports today constitute a form of apartheid, with the labor of predominantly African-American  players being exploited to pay for the big-time salaries of overwhelmingly European-American coaches and athletic directors.  It's a really important conversation; I encourage folks to comment here or follow the conference blog at http://losingtowinblog.blogspot.com/

Thoughts on the Duke lacrosse opinions: Substance

Upon actually reading the opinions in Evans (the indicted players) and Carrington (the unindicted players), it appears (contrary to what news reports and self-interested bloggers suggested) that the indicted players kept most of their case, while the unindicted players have much less left in theirs. Still, there is something left in both cases, particularly in their constitutional claims.

A few comments after the jump. By the way, the opinions were released just over five years to the day of the team party and the false rape allegations that started this mess. And just to make the timing of things really strange, Crystal Mangum, the exotic dancer whose made the allegations, was arrested early Sunday morning in connection with the stabbing of an unidentified man (believed to be her boyfriend).

1) In both cases, the court denied dismissal of Fourth Amendment claims based on the intentional or reckless suppression and withholding of evidence and the fabrication or manufacture of false evidence for use in pretrial proceedings (magistrate proceedings producing warrants and grand jury) resulting in a search or seizure--the indictment and arrest of Evans, Finnerty and Seligmann; the photographing and DNA testing of the unindicted players; and the issuance of various warrants. As to the indicted players, the court further predicted that the Fourth Circuit would recognize a Fourth Amendment claim by a person arrested pursuant to a process (including a grand jury indictment) that lacked probable cause, where officials intentionally or recklessly lied or hid facts or fabriacted the evidence used in that process. In addition, the court recognized overlapping Fourteenth Amendment claims for the same conduct (acknowledging the gray area and uncertainty in which various constitutional rights and liberties interact).

The problem I had seen with the Fourth Amendment claims was that the indicted players never went to trial and the unindicted players never were involved in any formal processes. But this potentially meant that police and prosecutors could fabricate or withhold evidence at will, as long as the material never was used in any formal proceeding. (Or, at the very least, such a claim would have had to run through catch-all substantive due process and City of Sacramento v. Lewis's shocks-the-conscience test). But if such a claim can stand as to any deprivation of liberty at any stage of the criminal process, it may have some legs. It also may go along way to allowing § 1983 to provide some check on abuses within the criminal-justice process.

2) The court also denied dismissal of Fourteenth Amendment claims by both sets of plaintiffs based on the various false and incriminating media statements by Nifong and the police. This again was a claim that I believed lacked  merit, because the making of the statements did not violate any right beyond the players' reputation and the stigma associated with loss of reputation--which does not violate the Fourteenth Amendment under Paul v. Davis. But the court adopted (from other circuits) the "stigma-plus" theory of the Fourteenth Amendment, under which the Fourteenth Amendment is violated by statements that impose a stigma in connection with unlawful arrests, searches, or seizures that violate the Fourth (or, I suppose, the Fourteenth) Amendments.

3) The court rejected in both cases allegations that Duke or its top administrators was a state actor as to the constitutional claims. The only constitutional claim against a Duke person that survived (shockingly) were the claims against Tara Levicy, the ER nurse who examined Crystal Mangum and told officers that Mangum had suffered injuries "consistent with" sexual assault, which lead to the warrants and other investigations. The court accepted that these allegations sufficiently alleged a conspiracy and joint action between Levicy and the police, in part because the officers had tried to shift the blame to Levicy.

This one seems wrong to me, at least as alleged. Conspiracy as a test for state action usually requires far more conscious agreement to engage in obviously unlawful conduct. Levicy is alleged to have given the police inaccurate information about the rape-kit exam, information she was neither qualified nor authorized to provide. There are no allegations that she knew this information was wrong or that she did this intended to help the police frame the players. It thus seems a stretch to say that her conduct in speaking with and cooperating with the officers (however much in error) is atrributable to the state. I also thought it odd that the court pointed to the officers' attempts to blame Levicy as somehow relevant to whether she is a state actor.

By contrast, the court seems on stronger footing in the indicted players' case in finding thet DNA Security, Inc. (DSI) and its president and lab director were state actors, where they explicitly agreed with Nifong not to fully disclose information from the DNA tests, conduct that is facially and obviously wrongful.

4) The court rejected defenses of prosecutorial immunity by Nifong and his chief investigator and of qualfiied immunity by all public officials. Prosecutorial immunity was not in play because the conduct at issue was investigative, involving the suppression and manufacture of evidence during an investigation, rather than anything as prosecutorial advocate for the state. Qualified immunity was denied because the Fourth and Fourteenth Amendment rights at issue were clearly established.

The prosecutorial immunity decision seems right, since most of Nifong's misconduct involved his leadership of the investigation in the case, apart from anything that happened in judicial proceedings. The qualified immunity decision is weaker, I think. The court was very cursory in its analysis, usually simply declaring that the right at issue was clearly established without explaining how it reached that conclusion or analyzing the state of the law to show that the right was clearly established. For example, the court held that the Fourteenth Amendment liberty from false government statements was clearly established, even though the Fourth Circuit never had adopted the stigma-plus theory. Similarly, the court was explicitly predictive in stating its view that "the Fourth Circuit would recognize a potential § 1983 claim for violation of the Fourth Amendment when an individual is arrested pursuant to legal process that was not supported by probable cause." The court used similarly predictive language about a claim based on an official's intentional or reckless fabrication of evidence to present before a magistrate (in seeking a warrant) or a grand jury (in seeking an indictment). But predicting that the Fourth Circuit would recognize such a claim is not the same as saying the Court has recognized such a claim and the latter is necessary to say a right has been clearly established. And the court never tried to classify these claims as "so obviously violative that analogous cases are not required"--although if there is such a claim, suppressing/fabricating evidence would seem to fit.

It will be interesting to see what the officer defednants do next. Denial of qualified immuniy is immediately appealable, at least where the denial is based on the purely legal question of whether a right was clearly established. So the government defendants could preempt much of discovery, at least for now (in the face of the crowing of plaintiffs' counsel and PR team in both cases about how they are going to wade hard into discovery) and at least as to the constitutional claims by seeking immediate review as to the legal issue of clearly established. On the other hand, the court took great pains to make clear that it was taking only a preliminary look at the qualified immunity issue and that it fully expected to take another, closer look on subsequent summary judgment motions.

5) The unindicted players brought a number of tort and contract claims against Duke, Duke President Richard Brodhead, a university vice president, and the dean of students, based on interactions the players immediately after the rape charges came out. The upshot of all the claims is that Duke and the administrators sold the players old--they tried to get the players to talk to them in detail about the events; disclosed details of purportedly confidential meetings to the police and DA; tried to strong-arm the players into talking with them and not seeking support from parents or outside counsel; failed to support the players publicly and in fact undermined them by canceling the season and firing Coach Mike Pressler; and failed to protect the players from harassment and criticism.

Of these, the one that survived dismissal was a claim for constructive fraud, but based only on the narrow theory that university officials created a confidential relationship with the players by encouraging them to talk openly with university officials once the controversy broke and by trying to close them off from outside assistance from their parents or non-university counsel. The court rejected broader theories of a general special or fiduciary relationship between a university and its students or its student-athletes or of a general duty to protect its students/student-athletes from criticism by other students or faculty. The court also rejected the theory that the anti-harassment policies in the student handbook create a contractual obligation between the university and its students.

All in all, a mixed bag. The players are declaring victory here and it is somewhat deserved--not-insignfiicant portions of both cases live another day, although they may run into a new roadblock at summary judgment. In fact, even while denying dismissal of numerous claims, the court used language suggesting his view that this analysis was very temporary and preliminary, that the players continued to beat a weighty burden (with even stronger hints that he questioned whether the unindicted players could show damages), and that most of these legal and factual issues would be revisited, probably more rigorously and strictly, at summary judgment.

Which side are you on?: College sports edition

With the NCAA basketball tournaments getting under way, I wanted to post about an issue that comes up this time of year: who's your team?  Most of us have multiple teams we could root for: we've been to college and law school; we have friends and relatives from various schools; and there are also hometown teams to consider.  Many of us profs have sports teams at the schools where we teach.  So how do we rank our various loyalties?

Here's my take.  I've ranked loyalties from 10 (complete attachment) to 1 (tepid enthusiasm).  These are not my personal ranks -- they are how I think these loyalties should rank.  (It's normative!)

• Undergrad institution (9).  This should be your primary team -- so much so that it blots out the others.  After all, it's college sports -- you should root for the college you attended.  Division III folks may claim some mitigation here, as it's harder to follow your teams.  But I think you should root for your college over any other team on the list.  This ranking becomes a "10" if combined with another factor (your parent or spouse also went there, or it's your hometown team).  This could drop down to a 5, I suppose, if you really hated your college experience.
• Current employer (7).  You might say that you don't have "loyalty" to your employer.  But I think it's natural and good for your institutional capital to have loyalty to the school where you teach, and enthusiasm for sports teams can be part of that.  This jumps to an 8.5 if you are the dean.  
• Hometown team of your youth (6).  Often, this will be the local state school -- or you may have a choice, in which case you'll side with one or the other, or even a local city team (Fla vs. Fla State vs. Miami, for example).  The sentimentality of childhood is what puts this so far up the list.
• Spouse's or relative's team (5).  Again, this is often a childhood thing -- you root for your parents' teams because they are rooting for them.  But this is easier to grow out of, I think.  You also root for your spouse's team, but you never root for your spouse's team over your own college team.  And this ranking can drop down to a 1 if it's the school where your mean older sibling went.
• Close friend's team (4 or less).  You only hit four if a really close high school friend went off to a big time sports school, and you spent a lot of time rooting for this team because your own college didn't really offer much in the way of sports.  Schools of ex-boyfriends and girlfriends should be 1 or lower.  (Sports hate is an entirely different category, which is beyond the scope of this post.)
• Law school team (3).  A lot of folks may disagree with this one, but I just don't think you accumulate much sports loyalty in law school.  If you did, you were longing too much to return to undergrad.  Or perhaps parlaying a D3 undergrad into a D1-A law school team.  Again, I don't really buy it.
• Current hometown team (2).  The sports media in town probably have generated at least this level of enthusiasm in you, even if you have no other affiliations with the school.  But let's not get carried away.
• Past employer (1.5).  Some residual loyalty remains, but absence generally does not make the heart grow fonder.
• LL.M. school (1).  I'm looking at you, Georgetown LL.Ms!

I've tried to be exhaustive, but perhaps I'm missing something.  Feel free to chime in with your own take.

What to do about accused athletes?

FIU has decided to allow Garrett Wittels, its star baseball player who enters this season riding a 56-game hitting streak (three shy of breaking the college record), to play to start the season, despite Wittels facing sexual assault allegations in the Bahamas. The next hearing in the case is not until April 18 and, citing the presumption of innocence, the university decided he should be allowed to continue playing, at least until further developments in his case. This raises the broader question of what to do about athletes (pro and college) who are arrested/accusd/charged with crimes but have not yet been convicted. I genuinely am not sure of the answer.

On the one hand, we do have a presumption of innocence. And if the Duke lacrosse case taught us anything, it is that schools look very bad if they move quickly to suspend student-athletes only to have the allegations and the legal case prove to be a complete fantasy. Is it fair to the player to lose a big chunk of his season because of charges that could prove unfounded? Should we place it in non-athletic terms--would a non-athlete-student in the same position as Wittels be suspended from school? If not, perhaps the athlete should not be suspended from the team. (I take something like this view about professional leagues getting all worked up about players' off-field misconduct).

On the other hand, playing for the school's baseball team is different than being one of 42,000 students. How does it look to have a player representing your institution of higher learning who is facing a charge of sexual assault? And there is a certain degree of fame and prestige enjoyed by a star athlete that is not enjoyed by an ordinary student. How does the alleged victim feel to see Wittels continuing on with his educational and athletic career, including games on ESPN? (Similar issues were raised in the controversy over an alleged sexual assault by a Notre Dame football player, who continued playing while the school dragged its feet and the student ultimately took her own life). The accusation of a crime does place the accused in a different legal position than someone who has not been accused of a crime (even if he has not been convicted). So perhaps a school/team should take action against the player who occupies that different legal position. Or should it depend on the school's assessment of Wittel's culpability--and if so, how does the school make that assessment?

I genuinely do not know where I fall on these questions, so I throw them out there for consideration.

Gaming the Super Bowl litigation

Slate has a nice piece (including an interview with SCOTUSBlog's Tom Goldstein) gaming out the options for fans seeking some sort of compensation over Super Bowl seating. It now appears that there are three groups of disgruntled fans: 1) Those denied seats altogether; 2) Those moved into nose-bleed seats; and 3) a group of about 1100 fans who were delayed coming in because several gates were not available because of weather problems. And there are three options: 1) $ 2400 and a transferable ticket to next year's Super Bowl; 2) a non-transferable ticket to any future Super Bowl; and 3) Join the lawsuit (which Goldstein believes will settle for about what the NFL is already offering). The piece then goes on to suggest the best option for various groups of fans.

It also includes an interview with Michael Aventatti, the attorney representing the class-action litigants. He explains that the $2400 offer was not a good deal, since tickets were going for far more than face value (and the NFL knew this), so tickets and accommodations ran more than $ 2400. We knew that, which is why the unseated fans have a good claim for breach of contract. The nosebleed fans less so--their only damages would seem to be the difference in the value of where they were seated as opposed to what they expected to get. And the fraud claim appears to be based on the NFL knowing before Sunday that the seats would not be available--although it is not clear that the league could have done anything about that before then (which will be a key element to the fraud claim). Anyway, I still don't buy the fraud claim and I still am not sure the nosebleed fans are entitled to nearly as much compensation as they are seeking. But, as Goldstein pointed out, the thing is going to settle--probable for a ticket to a future game.

Class action in Super Bowl ticket debacle

Well, that didn't take long. A class action has been filed in federal court by more than 1000 Super Bowl ticket holders against the NFL and Cowboys owner Jerry Jones, among others. The action is in federal court under the Class Action Fairness Act, which allows for federal jurisdiction on minimal diversity. There actually are two groups of plaintiffs: 1) A group of about 400 or so ticket holders who had tickets for what would have been temporary seating that could not be completed because of weather and safety concerns and 2) A group of Cowboys personal seat license holders who, as part of the license, were promised the chance to purchase tickets for the Super Bowl, but were assigned inferior seats with poor sight lines and no "reasonable" view of the famed overhead scoreboard. The claims are for breach of contract, breach of covenant of fair dealing, fraud, and violations of the Texas Deceptive Trade Practices Act; they seek damages, punitive damages, and treble damages under the statute.

The lawsuit comes despite the NFL's escalating efforts to settle by offering tickets to future games, as well as special benefits following Sunday's game, including the chance to go onto the field. My contracts colleagues suggest that, beyond reliance damages actually expended and maybe the difference in ticket value between the expected seat and what they received, plaintiffs are going to have a hard time quantifying actual monetary harm from "loss of enjoyment" of the game. Plus, how does the court consider that these fans also got to go onto the field? Plus, I am pretty certain the fraud claims are not sufficiently pled under FRCP 9(b). And the whole thing may not work as a single class, since the plaintiffs seem to fall in two very distinct groups with very different facts and very different damages.

Is this why people hate lawyers?

 

Missing seats, Super Bowl tickets, and contract damages

The NFL and the people who run Cowboys Stadium built a lot of temporary seating for the Super Bowl (apparently to set an attendance record by exceeding 105,000), but approximately 1250 seats could not be installed. The league found alternative seating for 850 of those fans, but not for the remaining 400, who were turned away with a refund of triple their ticket's face value--$2400.

 Here is a contract remedy question: Are these fans entitled to more and could they successfully sue the NFL for it? Suppose Fan A spent more than $1600 on travel, hotel, and other incidental expenses involved in attending the game. He likely spent that money only because he had a ticket to the game and expected to be able to attend, and the NFL knew he will and must make those expenditures to attend the game. Sounds like reliance. So are those recoverable reliance damages? Suppose Fan B paid more than the $ 800 face value because he had to buy the ticket through a broker/scalper. The league controls who purchases tickets and must be aware that many publicly available seats are sold to people who are going to resell them at at least a small profit. I suppose a court might deny recovery there because the beyond-cost resale is against public policy. Still, could Fan B make that case?

Contracts/Remedies people, help me out.

Home-field advantage and the umpire analogy

An article by Tobias Moskowitz and L. Jon Wertheim in the new Sports Illustrated (I cannot find it on-line for some reason) examines the cause of home-field advantage in sports. If the study is empirically sound (and I want to down with some empiricists to help me figure out if it is), the results are groundbreaking. Moskowitz and Wertheim argue that home-field advantage is mostly explained by official bias, influenced by a combination of the closeness of the game and the game situation; the home crowd (size, loudness, proximity, and intensity); and limited attention to, or accountabiltiy for, particular decisions. Read the whole thing if you can get it (or it eventually comes on-line).

Briefly, officials conform their calls to social pressure created by the home crowd. Officials use crowd noise  to help them resolve uncertainty in making a call, resulting in more calls going the way the home crowd wants them to go. Studies done for or discussed in the the story showed a range of calls in a range of sports that systematically favor home teams--extra time, fouls, and yellow and red cards in soccer; called (non-swinging) balls and strikes in baseball; close plays on the bases in baseball; traveling in basketball; and penalties and fumbles in football. The psychological effect is more pronounced in well-attended games (according to the story, in 2007, the Italian government ordered teams with deficient security to play games without spectators; 21 games were played in empty stadiums and a study by two economists found dramatic decreases in home-team benefits in fouls, yellow cards, and red cards).

The bias is revealed, in part, by the rise of technology, particularly in football. Visiting teams are more successful in overturning calls favoring the home team, especially where the home team is trailing. In other words officials make mistakes in the home teams' favor more often than they do in visiting teams' favor (although the difference is small). Replay thus has resulted in the narrowing or elimination of the home-team advantage, at least as to turnovers, because some of those erroneous calls are corrected (so maybe I need to rethink my opposition to replay in football). Technology also reveals  that officials get it right most of the time (about 85 % on balls and strikes). But the mistakes they make are not random--they tend to favor the home teams. And, of course, most mistakes are not discoverable or reversible--thus the home-field advantage continues.

I am not sure what to do with the story, which I find fascinating. For starters, I wonder what this tells us about the much-despised umpire analogy. One of my objections has been that the analogy, as used, misrepresents what umpires do. This study supports that thought. Umpires clearly do not just call balls and strikes as a simple, clear, robotic exercise--umpires (and other officials) are human and they and their decisions are subject to outside pressures and influences, such as, essentially, public opinion.

Similarly, critics of the umpire analogy have focused on the outside influences that (everyone who is being honest recognizes) affect judicial decisionmaking--life experience, ideology, politics, empathy, public opinion and pressure--just as outside influences affect umpires. But is there a still more-precise comparison between judicial decisionmaking and officiating, given what this new study shows? Is there a litigation "home team" that systematically gets the benefit of judicial decisions? Perhaps the government (especially in criminal cases) or any other repeat player in litigation? Are judges affected by the (unconscious) need/desire to make the populace happy, just as umpires are similarly affected, and does that affect decisions?

What else can this study tell us about judicial decisionmaking?

Will the deal get done in time?

Follow the LFC's fate (discussed yesterday) here at the Guardian's Friday live blog.

UPDATE:  from the Guardian blog:

3.58pm: LIVERPOOL FC HAVE BEEN BOUGHT BY NEW ENGLAND SPORTS VENTURES, Owen Gibson confirms that the deal is done.

Everything Duke and lacrosse is not "Duke Lacrosse"

By now, everyone has heard about the "senior thesis" in "horizontal academics" that a 2010 Duke grad wrote as joke, a spoof thesis presentation describing the performance of thirteen Duke student-athletes (seven of them happened to be lacrosse players) with whom she had sex during her time in school. The New York Times got in on the story today, talking about embarrassed and weary the campus is over another scandal.

I have Duke lacrosse on the brain right now. So I was disappointed, although not surprised, that The Times mentioned the now-almost-five-year-old scandal involving false sexual-assault accusations against the lacrosse players. Much as I was not surprised that everyone talked about the Duke lacrosse scandal in covering the murder of Yeardley Love, a UVa lacrosse player, allegedly by her UVa lacrosse-player former boyfriend.

Will Duke lacrosse ever cease to be a reference point for salacious behavior (I cannot call this 'bad' behavior, because having consensual sex with a number of different people is not implicitly bad behavior and, frankly, neither is talking about it) involving Duke University and/or lacrosse? The seven lacrosse players mentioned in the "thesis" certainly did nothing close to bad or even inappropriate (I'm shocked, shocked, to find that male college students have consensual sex with women, often after an evening of drinking). Why would the paper even mention, in connection with them, an old scandal (none of the current players even were on campus in 2006) involving false accusations of criminal misconduct by a corrupt prosecutor and angry faculty? Even if you believe (as some do) that the lacrosse players five years ago were in the wrong for hiring a stripper, the current still situation still does not come close to that.

Interestingly, according to The Times, this is not the first time such an "academic" study has gone public. In 1977, two female M.I.T. students published "The Consumer Guide to M.I.T. Men," a "study" of the performance of 36 male M.I.T. students, in an alternative campus paper; the women were placed on academic probation for ten months. Naturally, The Times draws the wrong lesson from that. It concludes that this is all so much worse in the internet age ("Information, of course, has warped to a new dimension since then"), rather than that we have come a long enough way such that women no longer are punished (at least not formally, although one female student broached the subject of the school stripping the woman's degree) for asserting sexual freedom.

Fifth Circuit affirms lack of jurisdiction in Clemens v. McNamee

A divided panel of the Fifth Circuit yesterday affirmed the district court dismissal of Roger Clemens' defamation action against former trainer/friend Brian McNamee, agreeing that McNamee was not subject to suit in Texas. (H/T: Adam Steinman at Civil Procedure & Federal Courts Blog). The panel divided on two aspects of personal jurisdiction analysis.

First, the majority found irrelevant the multiple visits that McNamee made to Texas to train Clemens, because the lawsuit was about McNamee's allegedly defamatory statements about giving Clemens steroids in places other than Texas and not more broadly about their relationship. The visits to Texas did not give rise to the defamation claim, so they could not be the basis for specific jurisdiction (as opposed to general jurisdiction, which Clemens did not argue). The dissent, taking a much broader view, argued that these visits "related to" the defamatory statements and thus the defamation claim; contacts "relating to" a claim can establish specific jurisdiction, an argument suggested by Justice Brennan in dissent in Helicopteros, but never picked up elsewhere. The visits to Texas were part of the overall relationship that put McNamee in position to give Clemens steroids, to be a source on steroid use for the Mitchell Commission and Sports Illustrated, and to make the defamatory statements.

Second, the panel divided over the proper understanding of the "effects test" of Calder v. Jones. The majority said Calder did not support jurisdiction because it is not enough for the forum to be the place where the harm occurred; the tort must be "directed at" the forum, meaning the subject matter of the defamatory statements must be the conduct or events occurring in the forum and it must be based on sources in the forum. Here, the subject matter (narrowly viewed) was McNamee giving Clemens steroids in places other than Texas. The dissent argued that Calder is a broader (and more flexible) approach to jurisdiction, not as narrow or rigid limitation on minimum contacts. Calder applied here because McNamee knew Clemens lived (and at the time worked) in Texas, knew the harm would be felt in Texas, knew SI would be read in Texas, and knew the effects to Clemens' reputation would be felt in Texas. Moreover, the "sources" idea was not in play, since McNamee himself was the source and not a journalist writing something based on other sources.

This may actually be a good teaching case, because the judges cross swords over two open areas of personal jurisdiction--the scope of Calder (a case that many academics dislike) and when contacts with a forum are connected enough to a claim to allow specific jurisdiction. The Supreme Court has not decided a major personal jurisdiction case since 1990, although I doubt the Court is going to touch this. So, if Clemens is going to pursue this, it probably will be in a court in New York.

Long tennis matches and case-based rulemaking

My interest in sports law always has been about sports-as-law; that is, what can sports tell us about law, legal rules, and legal systems. The latest example is the epic early-round match at Wimbledon between American John Isner (who at 6'9" also has the distinction of being the tallest player around) and Frenchman Nicolas Mahut. After ten hours of play, the two are tied 59-59 in the fifth set (which itself has lasted more than seven hours). Play was suspended because of darkness yesterday and will resume today sometime after 10 a.m. EDT (I would not be surprised if the match ends quickly today and is over by the time you read this). [Update: They played for about another hour today, with Isner finally prevailing 70-68, which means that just today's portion of the match was an extended no-tiebreak set]

Wimbledon (like the French and Australian Opens, but unlike the U.S. Open) does not allow for fifth-set tiebreakers, so the set continues until someone wins two straight games (with a break of service). This rule has provided some great historical moments--the 8-6 fifth set between Bjorn Borg and John McEnroe in the 1980 Men's Finals or the 16-14 fifth set between Roger Federer and Andy Roddick in last year's Final. But it also creates ridiculous moments such as this one. Neither player is close to breaking the other's serve, so no one is close to winning two straight games. Actually, this match may highlight why many believe grass tennis is obsolete, at least for men--serves are just too overwhelming (Isner has 98 aces, Mahut 95) and breaks are extremely rare. Both players actually are playing well--lots of winners, few unforced errors. But that is because their serves are so dominant that service points tend to be short, with that dominance exaggerated by the speedy grass surface.

So here is my rule-based quesion: How likely is it that Wimbledon will move to a final-set tiebreaker in the wake of this match? And should the change be made? This illustrates the problem of case-based rulemaking, which is the norm in U.S. (and probably most) legal cultures.

Legal rules generally are made within a particular factual setting. This is obvious where courts make rules (common law or constitutional) in the course of resolving an actual case or controversy. But it also is true for legislative bodies making prospective rules of general applicability, because they usually act with a particular event, case, or situation in mind. The problem with case-based decisionmaking (as Fred Schauer and Richard Zeckhauser argue) is that the case which leads to the rule often is an outlier, an extreme, unusual, unrepresentative case; thus the legal rule that results, enacted in response to those unique outlier facts, may not be the optimal rule for the ordinary situation. This is particularly true for legislative rulemaking, because legislators tend to act, often too quickly and often in something of a moral panic, in response to, and to take care of, the latest high-interest, notorious story that captures media and public attention, even if that story is unusual and far from any norm, and even if the new rule has unintended consequences.

So what should the powers that be at Wimbledon do? Obviously, the Isner-Mahut match (or anything even close) is unprecedented. Should they change the rules to prevent something like it from happening again, since the chances of that have to be slim? We arguably don't need the rule change to keep this case from arising again; a match such as this is so unusual that it never will happen again on its own. So should a rulemaker make a change to prevent a highly unlikely repeat of this unrepresentative match, at the (unintended) loss of future memorable matches (a la Borg-McEnroe) that do not devolve into the current absurdity?

Note that this does not necessarily speak to the merits of the switch to a fifth-set tiebreaker; maybe that is the appropriate rule (certainly the U.S. Open folks believe it to be), especially in light of the modern grass game. But case-based rulemaking is not only problematic because it may produce the wrong rule, but also because it may produce the right rule for the wrong reasons. In other words, Wimbledon officials must be conscious of all the policy issues and implications in deciding whether a final-set tiebreaker is the "best" rule as a whole. The arguments for change must be more than preventing a notorious-but-unlikely case such as Isner-Mahut from happening again. If that is all they have, they should not change the rule.

Thoughts on realignment: The Basketball Effect

To pile on Matt's post, an interesting side issue to college-sports realignment is the effect on, and role of, college basketball. Basketball (men's basketball, that is) clearly is in the same boat as football in terms of being essentially professional. But it does not drive the realignment bus and does not take in or spend nearly as much money. College basketball always has at least made a pretense (the loathed Billy Packer notwithstanding) to there being a place at the table for the smaller conferences. But does anyone want to be a basketball-centric conference when football (and its dollars) dictates all of this?

The school I feel bad for right now is Kansas, which has gotten utterly shafted. It has the top basketball program in the country right now, but not a top football program, so no one wants it (because it also does not add a major television market). Because football and television markets drive the process, Kansas is not attractive to any of of the major conferences (Big---, SEC, or Pac---)*, so it is going to end up in the Mountain West, an inferior (at least right now) conference, with hopes and dreams of joining the big boys but having a ways to go. Instead of being a top team in what has been in some recent years the top basketball conference, Kansas risks becoming like Gonzaga or Butler (or, in football, its likely new conference rival, Boise State)--a big fish in a small pond, ripping through an inferior league, but a question mark nationally (unless it takes on some brutal non-conference games).

Any chance that basketball-first schools (the traditional Big East and ACC schools, perhaps) will give up the football money and try to do something to protect their unique basketball-centered interests? And how will that affect the perception of which basketball conferences are "big-time" for NCAA Tournament purposes. Recall that one scenario (not happening yet, but still possible) had the Big Ten raiding some Big East football schools (Pitt, Rutgers, Syracuse) and the SEC raiding some ACC football schools (Miami, Florida State, Virginia Tech).** But that would leave the ACC and Big East as second-tier football conferences, although still great basketball conferences. Is there room for such a thing anymore? Is there room for great basketball-first schools?

• By law, conferences no longer may use numbers in conference names. We are academic institutions--if we form the Pac-10 or Big Ten, there should be only ten teams in each.

** If not swallowing the ACC whole, which now seems unlikely.

A Bad Week for Amateur Athletics

If there was any doubt that college sports are now all about money, rather than students engaging in wholesome and character-building extracurricular activities, this week should put that to rest.  First, we had the spectacle of schools leaving their traditional rivals to get better deals with other conferences.  Nebraska is going to the Big 10 (Big 12 now?  It's available!), Colorado is going to the Pac-10, and -- in a move that would swamp all the others -- Texas, Texas Tech, Oklahoma, and OSU are rumored to be going to the Pac-10 too, with Texas A&M using their leverage with the SEC to sit on the fence.  The conference system is melting down in front of our eyes for one reason: TV contracts for football games.  That's it.  Of course, these changes will apply to all the other sports as well, so when OSU tennis players have to fly up to U-Dub for an early Saturday match, they can thank the football program.

The NCAA is bravely trying to maintain the amateur approach.  It issued severe sanctions against USC for rule infractions involving its football and basketball teams.  Of course, many of these sanctions will be prospective but result from the actions of coaches and players long gone.  (Other than the AD, who maintains that the sanctions "are nothing but a lot of envy.")  And what are the sanctions for?  College athletes trying to get a little money. professional representation, a house for their parents, a car to drive in.  It may sound like I'm condoning this behavior, which I'm not -- rules are rules.  But take a step back and look at the big picture.  Pete Caroll made $4.4 million as USC's coach before he left for professional sports.  Mack Brown is pulling in $5.1 million as UT's AD coach.  Buying a HUM-V seems kind of small in comparison.

The NCAA said this in justifying the severity of the sanctions:

The actions of those professional agents and their associates, with the knowledge and acquiescence of the athletes, struck at the heart of the NCAA's Principle of Amateurism, which states that participation in intercollegiate athletics should be "motivated primarily by education and by the physical, mental, and social benefits to be derived."

Of course, it said this with respect to the conference realignment:

Much has been and will be written regarding conference realignment. Some “experts” have questioned where the NCAA is in this process. The answer is the NCAA is exactly where it should be—not directly in the discussion but standing ready to work with the conferences when realignment is finalized.

* * *

The NCAA’s core mission — to maintain intercollegiate athletics as an integral part of higher education and to ensure the student-athlete is at the forefront of everything we do remains unchanged. We believe that is a mission shared with conferences and our member institutions. As the conference landscape unfolds in the near future, the NCAA will be an active partner with our member schools and conferences to ensure maximum participation and education opportunities and a fair playing field for more than 400,000 student-athletes who compete in NCAA sports.

It's not just the conference system that's melting down -- it's the whole facade.  Football and basketball are no longer college sports; they are professional sports with strange and archaic restrictions on the compensation of their players.  The system is crashing down all around -- it's only a matter of time.

Sports Illustrated Curse - Short-Term Version

As long as I'm on a sports theme, the Sports Illustrated curse reared its head this week, I think, with a Boston connection in both cases.  Just to give it an academic spin (for a law professor blog), the SI curse is probably one of the best known examples of the behavioral psychology phenomenon known as the availability heuristic (conclusion based on the availability, not the correctness, of the data).  For as long as I can remember, so we are talking in excess of forty years (since I had an SI subscription as a teenager in the Sixties), being on the cover of the magazine is supposed to place a curse on the person or team so highlighted.

Because I have been assiduously grading for the past several days (or coming up with reasons not to be grading), I did not get to this week's Sports Illustrated until this morning.  The cover story was about whether Shaquille O'Neal could help deliver a championship to LeBron James and the long benighted Cleveland Cavaliers.  Alas, by the time I read the magazine, the Celtics had already eliminated the Cavs.  Inside the magazine was a story about Miroslav Satan, a player on the Boston Bruins, appropriate because at the time the story was written, the Bruins had a 3-0 lead on the Philadelphia Flyers in a best of seven series.  Again, alas, the Flyers came back to eliminate the Bruins last night.

UPDATE:  More Boston-Detroit sports.  My son Matthew, a medical student at the University of Michigan, is at this moment at the Red Sox - Tigers game at Comerica Park in Detroit, which I am watching on high definition NESN back in Cambridge.  He's sitting just to the third base side of home plate, and the way the centerfield camera is angled, he's just out of the picture!  Miracles of technologies, he just sent me the picture, right, from his seat.  If he were in exactly the same spot on the other side of that camera, he'd be in every shot from behind the pitcher to the batter.

How Baseball Has Changed

This has nothing to do with law or lawyers (other than me), but I'm procrastigrading. 

In honor of the passing of Ernie Harwell, I pulled out my "Year of the Tiger 1968" CD and    listened to most of it on the ride home from Costco (where I was picking up the summer supply of doggie Prozac for Annie, the wacko golden mix, right).  I was stunned to hear that in the eleven games leading up to the pennant clicher in September of that year, the Tigers (managed by Mayo Smith, left) never used a relief pitcher.  The starting pitchers pitched eleven straight complete games.  I doubt that is a record, but baseball buffs will agree with me that is never going to happen again.

I also have to say memories are amazing things.  I turned fourteen that summer, and I can place exactly  where I was - in a friend's parents car driving home from the temple on a Friday night; out in the street in front of our house; at the ballgame; watching on television - when many of the events took place.  "We're all behind our baseball team; go get 'em, Tigers!   World Series bound and pickin' up steam....

UPDATE:  Annie said she didn't like the first picture so I've replaced it, and Max got jealous so his picture is now posted as well.

Lacrosse and irony

I am interested in this story, given that I am in the process of finishing edits on a book of chapters on the Duke lacrosse scandal.

A member of the highly ranked men's lacrosse team at Virginia, George Huguely, has been arrested and charged with first degree murder in the death of a member of the similarly successful women's team, Yeardley Love. The irony is that the player attended Landon in Bethesda, Maryland--the same school as five members of the now-unfairly-infamous 2006 Duke team. In the early days of the Duke mess, the Washington Post did a story about Landon, including the following from Huguely: "I sympathize for the team. . . .They've been scrutinized so hard and no one knows what has happened yet. In this country, you're supposed to be innocent until proven guilty. I think that's the way it should be."

The Duke connection is going to become a major talking point on this story in the coming days and weeks, since Duke is the only public reference point for any story about lacrosse.

That, no doubt, does not thrill officials at Duke, which is so close to putting this story behind it (all members of that team either have graduated or are about to graduate). It also is unfortunate to the extent any part of the story becomes a) Are lacrosse players somehow more likely to engage in violence (or at least misogynist or sexist behavior) against women; b) What is in the water at Landon and Landon's lacrosse program; or c) Look at Huguely's attitude, as reflected in that quotation about having sympathy for the accused players (a comment that turned out to be correct, both in the abstract and in that case.

Still, if we believe the Duke case has some "lessons," watch in the coming days how carefully both UVa and the police/prosecutors play things. All public comments from university officials have been about Love as a person, with no mention of Huguely, although he did throw out the line that "she appears now to have been murdered by another student." [Ed: As Mark says in the Comments, this sounded conclusive, if tentatively--but saying "appears" makes this, more or less, an accurate description of the situation in which a UVa student has been arrested and charged with murder]. No details have emerged about the cause of death (other than that it indicates violence) or type of injuries or about the nature of their relationship or its current status. Huguely became the investigative focus and was arrested very quickly, but the ex-boyfriend always is a first look.

We do not have the nasty race and class implications here (although one could find such implications in the outpouring of love and praise for the victim). And, unlike at Duke, a crime unquestionably did occur--the only question is who committed that crime. But the gender issue will be front-and-center to the extent this has hints of domestic violence on campus and involving athletes--primarily athlete as alleged perpetrator (not unusual, unfortunately), but unusually in this case also as victim. And this could trigger some conversations about the relationships between male and female athletes, particularly those playing the same sport.

Oman on judges and umpires

Nate Oman has a great post at CoOp defending Chief Justice Roberts' judges-as-umpires analogy, which is back on the blogs and op-ed pages with the coming Supreme Court appointment and a recent Times op-ed by Geoff Stone. Nate defends the analogy by arguing that Roberts was not proposing an account of law or judicial decisionmaking, but rather a theory of judicial virtue. A virtuous judge, like a virtuous umpire, fairly applies the law (even if we disagree about what the law is or how it applies), with distance from the outcome in favor of allegiance to the law. This precipitated a great exchange in the comments among Nate, Norman Williams, and TJ; the whole thing is worth a read.

I disagree with Nate on several points. First, I do believe Roberts was attempting to propose a normative account of law, not just of judicial virtue. Second, Roberts' intent is somewhat irrelevant because the bigger problem is that the umpire analogy has been seized on by everyone else (notably Senate Republicans and some conservative advocates) as a vision of law and judicial decisionmaking to which every judicial nominee now must pay fealty. This may not be Roberts' fault (assuming Nate is right that Roberts is being misconstrued), but it does require that we debunk the umpire analogy as it proposes a theory of law. Third, agreeing with a point Norman makes in the comments, the analogy does not work even as a theory of judicial virtue because it is so thin as to do no work. No one believes that a judge should care who wins a case and that a judge's role is to decide whether something is unlawful (a ball) or lawful (a strike); we do not need the umpire analogy to tell us that. Which brings us back to my first point--if the analogy does nothing to illustrate virtue, the context suggests Roberts was making a different, more substantive point.

Finally, this gives me an excuse to publicize a roundtable discussion at Law & Society next month, titled Judges as Umpires, Umpires as Judges: Rethinking the Metaphor. The panel consists of Mark Graber (Maryland), Neil Siegel (Duke), Mitch Berman (Texas), Aaron Zelinksky (about to graduate Yale), journalist Bruce Weber, and myself. For those of you up first thing in the morning on the first day of the program (Thursday), it should be an interesting discussion.

Video evidence and police misconduct

I missed this when it happened. But back in March, after Maryland beat Duke in basketball, Maryland fans took to the streets, resulting in a major clash with police on horseback and in riot gear. One student was seriously injured when, according to sworn statements from the officers, he attacked several mounted police officers, causing them minor injuries; the horses then kicked the student, causing his injuries.

Well, it turns out, that might not have been exactly how things went down. See it with your own eyes (H/T: Deadspin)

Once the video came out, of course, one officer was suspended, word came out that two others might be fired, and department supervisors are talking about how shocked and disappointed they are in how their bad-apple officers misbehaved. As always, of course, the video cannot tell the full story, such as whether the student said something that caused the police to attack him as they did. But there does seem to be a gap (to put it intentionally mildly) between the events most people see in the video and the events described in the officers' statements.

Part of my article on video evidence and civil rights enforcement, focused on the need to recognize a liberty in members of the public to record public events, particularly encounters between citizens and police. Public recording balances power of government (which may be doing its own recording) and citizens by enabling all to be the source of video evidence. The possibility that someone may be recording should (at least we hope) deter police from engaging in abuse or other unconstitutional conduct. Or we at least hope it would deter them from telling a story after the fact that can be "blatantly contradicted" by the likely common understanding of video (especially among the public) that eventually may turn up.

Police long have assumed that they prevail in any he-said/he-said dispute over what happened in a police-citizen encounter and that the word of the citizen involved in an encounter will not win out over his version of events (and case outcomes back this up). Video (even if not fully conclusive as evidence) alters the nature of that dispute, by providing additional probative evidence (beyond the arrestee's word) that at least calls into question the officer's version of events and challenges the false statements. If the video looks bad enough and becomes public enough, the pressure gets put on on top-level officials to take personnel action against the officers involved. At a macro level, the possibility of video should cause officers to hesitate before filing false reports and affidavits; at an individual level, it could begin costing officers their jobs and some money in § 1983 litigation.

This is no longer an uncommon occurrence, either. This situation (officer tells official story under oath, video emerges seeming to contradict story, officer is punished) identical to the events of a New York critical mass bike rally in summer 2008, as well as several other incidents I discuss in my paper.

Sports and politics, mixed

A recent study by National Media, Inc., a GOP firm (conducted by Scarborough USA, a joint project of Nielsen and Arbitron) found that dedicated sports fans tended to vote Republican than Democrat. The strongest Republican support was among fans of the PGA, college football, and NASCAR; strongest Democrat support was among fans of the NBA, WNBA, men's and women's tennis, and WWE (!). Fans of baseball, the NFL, and college basketball leaned Republican, but in somewhat closer numbers. The poll is based on 218,000 surveys conducted between August 2008 and September 2009.

Based in part on my interest in speech at sporting events, the connection between politics and sports (and sports fans) is of interest to me. The (likely) political make-up of the fan base at a game says a lot about what sorts of speech fans will tolerate from other fans at the game.

But I admit to being a bit surprised by the results, particularly the breakdown by individual sport. Although I probably should not be. Presumably white men make-up a big portion of sports fans and that group now tends to lean Republican. Conversely, perhaps women are more likely to self-identify as Democrats but less likely to be die-hard sports fans? There are presumptive geographic lines with some of the strongly GOP sports (NASCAR, bull riding) that map political lines. The college football and basketball numbers also are interesting. If (as I believe polling shows--I could be wrong) people with college degrees (or higher) lean Democrat, this poll suggests the people watching and rooting in those sports did not attend the colleges they are rooting for. Again, not a surprise, since the fan base for, say, Duke basketball or Florida football is broader than Duke's or Florida's student/alumni base. And a sport like college football again has geographic lines--it is probably most popular in the South and non-urban Midwest--that map political lines. Finally, the size of the gap is surprising; if you look at the breakdown, Republicans enjoy a double-digit advantage among fans of most major sports (except baseball and pro basketball).

Maybe I just need a bigger circle. My closest friends and family all tend to be liberal Democrats who love sports.

Taxing Professional Athletes

The state of Tennessee last year enacted a Professional Privilege Tax on Professional Athletes, taxing home and visiting NBA and NHL players $ 2500 per game, up to three games. (H/T: Deadspin, via FIU student Wes Plympton). Detroit Red Wings Captain Brian Rafalski has objected to the tax, noting that seventeen teammates who make in the $ 500,000 range (minimum NHL salary) end up losing money on the days they play in Tennessee. Proceeds from the tax apparently go to the municipality to fund various public parks/recreation projects. Interestingly, the NFL is exempted from the tax because the league had an existing rule that would penalize any state that attempted to impose such a tax. Minor league players are exempted as well (the original proposal covered only players making $ 50,000 or more).

It is easy to criticize this, as one commentator does, as a money grab targeting a vulnerable group. After all, no one is going to have sympathy for the group Rafalski is trying to protect--players making half-a-million dollars and having to pay $ 7500.

But dig deeper. The tax is expected to raise more than $ 1.1 million a year for municipal programs. The players are potentially playing in a publicly financed arena on which the state and local governments will not recoup their financial investments, so it is hard to blame the city for trying to get some fiscal benefit out of the deal.

I do wonder whether there is an Equal Protection problem here--not in singling out professional athletes, but in exempting the NFL. Is there a rational basis for taxing two leagues and not the third? Is avoiding a penalty from the NFL a rational basis?

Tax prawfs?

Institutional symbolic counter-speech

Sport represents the only occasion in which adults regularly participate in patriotic symbolic rituals and ceremonies, such as the singing of the national anthem. I have written a great deal about the free-speech liberty to engage in patriotic symbolic counter-speech--declining to participate or engage with the symbol or its associated rituals or otherwise using (or not using) the ritual to protest the symbol and its message.

An interesting twist on symbolic speech and counter-speech is playing out at the institutional level at Goshen College, an Anabaptist-Mennonite liberal arts college that plays in NAIA. For years, Goshen has not played the national anthem before home sporting events, believing that the song conflicts with the Mennonite traditions of pacifism and anti-militarism (the lyrics celebrate a war and a military battle) and objections to excessive nationalism or pledging allegiance to anything other than God.

But the school has spent more than two years rethinking and debating that policy, ultimately which has drawn criticism from some visitors to the school. The school finally decided to play an instrumental version before home games, beginning with a baseball and softball game played last week. The decision continues to provoke discussion, disagreement, and debate among college administration, alumni, and faculty.

This is an interesting resolution--in part because no one is quite happy. It seems to address the pacifism concerns, excluding the militaristic lyrics, but not necessarily the nationalism concerns, which would seem to reject any song honoring country, regardless of lyrics. I presume this is why playing an alternative song--America, the Beautiful (Ray Charles version)would be my preference--never has been an option and was not the chosen option now.

By agreeing to play the song at sporting events that it sponsors and hosts, Goshen as an institution is engaging in symbolic speech--promoting the symbol and its meaning through the pre-game ceremony. Goshen's message is slightly altered by using only the instrumental version and not associating itself with the lyrics. Now we see what (if any) symbolic counter-speech follows in response. Interestingly, in this case, it could come from both directions. Those who disagree with the new policy may refuse to participate in the symbolic ritual by refusing to stand during the song or by turning away from the flag. Those who believe the new policy does not go far enough may take it on themselves to sing the lyrics as a way of both giving a fuller endorsement to the complete patriotic message (whatever additional meaning comes from the lyrics) and of protesting Goshen's decision not to go farther with the anthem.

What about curling?

As the Olympics wind down, I found myself thinking about the "What's a Sport?" question as applied to one of the darlings of these Games--curling. Curling seems to have been discovered in Vancouver, as the public has learned of the game's rhythms (somewhat comparable to baseball), its shot-making and strategy (comparable to golf, with collision physics thrown in), and the attractiveness of many of the female curlers (several European curlers posed nude for a fund-raising calendar). And curling was a staple of NBC's afternoon live cable coverage during the first week because the stuff people initially wanted to see (figure skating, skiing, and the new stuff the U.S. is good at) was being held for primetime tape-delay. So it was easy to find.

So, is it a sport? Our narrow definition (borrowed from anthropologist John Jackson) requires: 1) a ball or ball-like object as the center of attention; 2) a sense of physical urgency when the ball is in play; and 3) the opponent taking steps to thwart one player's efforts as to the ball.

Curling is OK as to # 1 and # 3--the stone qualifies as a "ball-like object" and the purpose of the game is get your stone closest to the center, often by deliberately knocking the other team's stone away. But it runs into a problem on # 2--sense of physical urgency while the ball is in play. There are no periods of running after the ball--much like golf, which Jackson expressly excludes from his definition. But we could argue there is physical urgency for the sweepers who must follow the stone and often have to move (and sweep) quickly to get the stone where they want it. The physical movement in curling is arguably greater and more urgent than in golf. In golf, the ball is hit and everyone stands and waits to see where it lands; in curling, the stone is launched and there is some rapid movement to control its progress. So perhaps # 2 is satisfied; it's a close call.

What about the broader definition: 1) Large motor skills; 2) simple machines only; 3) objective scoring; and 4) competition.

Curling passes. The brooms qualify as simple machines and large motor skills in upper and lower body, as well as great balance, are necessary for both the person who launches the stone and the sweepers (putting aside whether sweeping should be part of any sport). Scoring is objective and immediately determined and it is competitive in that we are keeping score and determining a winner.

So there you go, all you new curling fans.

Figure skating: Still fixed, still not a sport

If it is a Winter Olympic year, then everyone must care, once again, about figure skating. And no discussion of figure skating is complete without a discussion of corrupt judges.

Following the controversy in pairs skating in 2002, when judges from five countries traded votes to ensure a Gold for the Russian team, skating moved to a system of anonymous judging. The theory was that if no one could know how anyone else voted, there was less likelihood that someone would bribe a judge or trade votes, since there was no way to ensure the other side held up their end of the bargain. But a new study by Dartmouth economist Eric Zitzewitz finds that anonymous scoring has had the opposite effect: Home-country bias is about 20 percent higher than under the old full disclosure system. Although backroom-dealmaking is riskier (and thus less likely), the loss of public and media accountability makes it easier for individual judges to bias for home skaters (or skaters from "friendly" nations).

Jon Siegel discusses a proposal from his GW colleague Michael Abramowicz. His solution is to evaluate judges based on how close their individual scores are to the average of all the scores for a skater (with the average reflecting, to some degree, the "right" score). After compiling each judge's scores over time, rewards such as compensation and choice assignments (which competitions, which events) could be determined by how close a judge is to the average over all each competitions.

Interesting idea. But I disagree with Jon that this could "solve the problem of subjectivity in figure skating judging." Nothing can solve that problem, because the judging is inherently subjective and nothing is going to change that. But that just goes to my bugaboo of why it is not a sport.

Let me leave on two questions. First, why don't we have similar problems in other judged Olymic events (similarly, not sport), such as moguls skiing (I watched this and still have no idea how the winner was determined) or half-pipe snowboarding (or whatever it is that Shaun White keeps winning)? Second, were we actually better off in the days of the hallowed-yet-infamous East German Judge, when we recognized that the thing was rigged along Cold War politics and just dealt with it?

Berman on instant replay

Joseph has started quite the conversation on instant replay and standards of review. Mitchell Berman weighs in at Slate today.

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).