Friday, October 12, 2012

In Defense of the Infield Fly Rule

My two posts on the controversial Infield Fly Rule call in last week's National League Wild Card game generated a number of comments and emails, several suggesting that, not only was the call wrong, but that the rule itself is a bad idea and should be scrapped. This motivated me to write a defense of the Infield Fly Rule, which now has been published on The Atlantic.

Posted by Howard Wasserman on October 12, 2012 at 04:56 PM in Howard Wasserman, Sports | Permalink | Comments (4) | TrackBack

Thursday, October 11, 2012

Coming soon?: All-You-Can-Watch Local Sports (whether you want it or not)

I teach antitrust and communications law--both filled with meaty, topical issues that can generate complex questions--but a perennial student favorite is "Why can't I watch my hometown team on TV?"  This question typically elicits a dry recital of specific league rules, FCC blackout regulations and a varied assortment of broadcast deals.  But I've been pleasantly surprised that recent developments are changing that answer--and may soon even eliminate the question.  For example the NFL has relaxed its blackout rules, designed primarily to bolster gate receipts, in an apparent nod to evolving league economics.  The FCC's sports blackout rules, are also up for reconsideration, as changing economics and video delivery preferences have arguably undercut the underlying rationale for the rules.  Finally, there has been a flurry of new contracts, new channels and new methods of bringing you your local team--at a price; sometimes a price paid whether or not you're interested.

The latest deal to hit my area is a new Laker/Time Warner Cable contract.  Now if you live in official, Laker Nation territory, all regular season Laker games that are not nationally broadcast (that's about 53 out of 82, although reports vary) will be brought to you on Time Warner SportsNet.  Not a Time Warner Cable customer?   (There are about 3.1 million Angelenos who aren't.)  No problem!  Go to, type in your zip code and Time Warner will show you which provider can bring you SportsNet (spoiler alert: in all zip codes you can get the channel from only one operator: Time Warner Cable).  The site also allows you to email/tweet your provider directly to demand that they add the new channel for only $3.95 per month, per subscriber--yes,  even you non-Laker watching subscribers will pay (at least some of) that fee.  Compare that to the most expensive national channel, ESPN--rumored to command $4.69 per subscriber--and, depending on your persepective, it either looks like ESPN has paved the way for competition  or some cable/satellite customers are being highjacked.  Either way, the Pac-12 asking price of $0.90 suddenly looks like a bargain basement sale. 

Later I'll take a closer look at some intriguing antitrust and regulatory implications of these new trends--and I would love to hear your comments--but for now, since I don't have Time Warner Cable, I guess I'll just go watch some Los Angeles professional football . . . oh . . ..

Posted by Babette Boliek on October 11, 2012 at 09:57 AM in Current Affairs, Sports | Permalink | Comments (0) | TrackBack

Wednesday, October 10, 2012

The political is the personal

One of the venerable "predictors" of a presidential election is the World Series winner--American League team means Republican president, National League team means Democratic president. It has held 16 out of 26 times (when I first learned about it in a freshman poli sci class in 1986, it had held 13 out of 20 times).

Now, I'm a Cubs fan, so my rooting and political interests generally align (not that anyone is worrying about the Cubs playing in the World Series). My wife, however, is an Orioles fan and I have been watching and rooting for them (and wearing a '70s-era bird hat) as a show of spousal support. But with the election fast-approaching, Obama's polls tanking, and Andrew Sullivan losing his mind, I am beginning to wonder if I should continue rooting for an AL team right now. What should I do?

By the way, if you are looking for other sports-related predictors, try this: If the Redskins win their final home game before the election, the incumbent party retains the White House. This has held in 18 of the last 19 elections. The 'Skins play the Carolina Panthers on November 4.

Posted by Howard Wasserman on October 10, 2012 at 09:31 AM in Current Affairs, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (1) | TrackBack

Tuesday, October 02, 2012

An NHL Antitrust Hat Trick?

Thanks for the invite PrawfsBlawg!  Writing from the homeland of current Stanley Cup Champions, the Los Angeles Kings (Tri-State dwellers love it when you say that), I feel I must discuss the NHL lockout.  Unfortunately hockey fans are no stranger to long strikes and lockouts (remember the 2004-05 season?  no?  exactly.).  In fact, one of my students has written a terrific piece where she charts the strike/lockout history of the four major sports leagues.  Each league shares a common intense interaction among players, owners, the NLRB and (sometimes) antitrust authorities. But the NHL stands apart in at least one way--although it could be effective, the NHL Players Association (NHLPA) has never been decertified as a negotiating strategy.*

Decertification of the union is a strategic maneuver by players because it permits the use of a very big stick--a Sherman Act s. 1 antitrust claim.  Given the corporate structure of most leagues, it is simple to bring a colorable antitrust claim.  However,  a collective bargaining agreement puts players under the authority of the NLRB, not antitrust (Powell).  But if players decertify the union then "presto" there is no CBA to bind players and it's off to the federal court house they go. 

The players of the NFLPA and NBPA have done just that as recently as 2011--quite effectively thank you very much.  Is strategic decertification bad faith negotiation?   No answer yet from the NLRB because claims of bad faith have always been mooted by quick settlements--so, well, the strategy works.  Given the recent success of the NFLPA and NBPA decertifications and antitrust suits, the question for the NHLPA is whether this season they'll score an antitrust hat trick?

*[The MLBPA has not been decertified either but the strategic benefit of doing so has been dubious until the late '90s given baseball's unique, judicial antitrust exemption .]

Posted by Babette Boliek on October 2, 2012 at 09:29 AM in Sports | Permalink | Comments (2) | TrackBack

Thursday, September 27, 2012

Practical scholarship

Over the summer, Dan and I wrote a short piece for The Atlantic arguing for the creation of "Fan Action Committees," through which fans could collect and give money to free agent players to lure them to join fans' favorite team. We currently are working, along with Michael McCann, on a longer version of the piece.

As even non sports fans probably know, this week's Monday Night Football game between Green Bay and Seattle ended on a touchdown on the final play of the game, in what most people outside Seattle believe was one of the worst calls, and worst-handled calls, in NFL history.* Several Green Bay players took to Twitter to express their dispelasure, notably offensive linement T.J. Lang, who tweeted ""Fine me and use the money to pay the regular refs." Shortly after that, a fan posted on the site Indiegogo (the page has been taken down, unfortunately) encouraging fans to send money to Lang to help him pay the fine that most believed was inevitable, as the NFL routinely fines players, coaches, and executives who criticize officiating. As it turned out, the league announced it would not impose fines for any comments related to Monday's game, no doubt a concession to the egregiousness of the mistake.

Still, this is our FAC idea in action--fans paying money as a show of fandom and of support for their favorite players. Although we primarily discussed the idea only in the context of free agency, this shows that fans may support players through money for a number of difference reasons in a number of different contexts. And it shows that fans instinctively understand this as a legitimate way to express support for their favorite players and teams.

See, scholarship can have a practical effect.

    * Which, it turns out, will be the last call ever by the replacement referees, at least in this labor dispute.

Posted by Howard Wasserman on September 27, 2012 at 11:05 AM in Article Spotlight, Current Affairs, Howard Wasserman, Sports | Permalink | Comments (0) | TrackBack

Monday, September 24, 2012

As NASCAR goes, so goes America?

Two years ago, I wrote about a poll showing the general politcal breakdown of sports fans. It found that sports fans overall leaned Republican, with NASCAR fans among the strongest Republican supporters (along with fans of golf and college football). Zogby just published a poll showing Obama with a lead among self-identified NASCAR fans (admittedly small sample size of only about 200 out of an overall sample of 800).

Posted by Howard Wasserman on September 24, 2012 at 01:41 PM in Howard Wasserman, Law and Politics, Sports | Permalink | Comments (0) | TrackBack

Saturday, September 08, 2012

Activist athletes, tone-deaf politicians

Now here's a fun free-speech controversy.

On Thursday, the story got out that Emmett C. Burns, Jr., a member of the Maryland House of Delegates, had sent a letter to the principal owner of the Baltimore Ravens, expressing horror that a member of the Ravens, Brendan Ayanbadejo, had spoken in support of a pending ballot initiative that would establish marriage equality in Maryland. Burns asked the team to "take the necessary action . . . to inhibit such expressions from your employee and that he be ordered to cease and desist such injurious actions." Ayanbadejo responded on Twitter by saying "Football is just my job it's not who I am. I am an American before anything. And just like every American I have the right to speak!!!" (wow, maybe you can make good points in 140 characters). Vikings punter Chris Kluwe defended Ayanbadejo on Deadspin and has been getting some attention for his response, which mostly hits (in an inimitable style) the key points.

Burns obviously should not be taken seriously or given too much credit for having put any real thought or principle into the letter.  What I find disturbing is the stated belief that, as a football player, Ayanbadejo has less of a right to speak out on public issues--that it is wrong for him to "try to sway public opinion one way or another" simply because he is a professional athlete. I haven't heard of Burns sending letters to other employers in the state (such as Johns Hopkins University, the largest employer in Maryland) asking them to tell their employees to concentrate on their jobs. Modern athletes are frequently criticized for not being political and not taking a stand on public issues (recall Michael Jordan's infamous comment that "Republicans buy shoes, too"). Now, when an athlete is willing to take a stand, a public official insists that he is engaging in "injurious behavior" and should be silenced.

We have not heard any response from Burns since the story became public and my guess is we won't. As an unknown and not influential state legislator, he no doubt is basking in the attention, even if it all makes him look like a complete fool.

Update: The New York Times has a short piece on the controversy, mentioning a number of current and former players who have come out in support of marriage equality and arguing that it reflects a shift in the NFL's political culture.

Posted by Howard Wasserman on September 8, 2012 at 08:21 AM in Current Affairs, First Amendment, Howard Wasserman, Sports | Permalink | Comments (4) | TrackBack

Thursday, August 30, 2012

PEGs: Performance Enhancing Gloves

Researchers at Stanford, led by two biologists, are close to having a commercially viable cooling glove, a device designed to cool core body temperature by cooling blood in particular veins in the palm that are devoted to temperature regulation. (H/T: My colleague Tracy Hresko Pearl).

The research team also discovered that the glove carries athletic benefits. Cooling the body also cools muscles. Muscle fatigue, it has been found, is a product of the temperature in the muscle getting too high (something to do with a chemical enzyme); by cooling the muscles, the glove essentially resets the state of muscle fatigue, allowing an athlete to start over. In a six-week period, one member of the team went from doing 180 pull-ups in a session to over 620; they found similar improvements in bench press, running, and cycling. And several teams--including the Raiders, Niners, Man United, and the Stanford football and track teams--have begun using it.

Given this level of improvement, one of the researchers said that the glove was "[e]qual to or substantially better than steroids … and it's not illegal." But should it be? And if not, returning to a question I asked when I first started blogging, why is the glove different from steroids or HGH or EPO or blood doping or other performance enhances that we have outlawed and decried? All use modern technology and modern scientific knowledge (the science behind cooling was not fully understood until 2009) to improve athletic performance. Athletes training with any of these have a technological advantage not available 10, 20, or 50 years ago.

The only apparent difference is the negative health consequences associated with steroids. But is that all there is? And in our new Libertarian Era, should that be enough?

Posted by Howard Wasserman on August 30, 2012 at 10:35 AM in Culture, Howard Wasserman, Sports | Permalink | Comments (4) | TrackBack

Friday, August 10, 2012

Women's Sports and the Olympics

A few of thoughts and questions on a good morning to talk about women's sports and Title IX, in the wake of 1) yesterday's gold medal win by the U.S. women's soccer team before 80,000 at Wembley Stadium (and millions more live on some medium--are you listening NBC) and 2) the Second Circuit's decision earlier this week holding that Quinnipiac University violated Title IX by trying to eliminate the women's volleyball team.

First, there has been  talk in the last few days about US women earning more medals, and more golds, than their male counterparts. Yesterday's wins in soccer and water polo add to that, as might a gold in today's women's volleyball final (the men were eliminated in the quarters).

Second, here is a nice essay by Slate/NPR's Stefan Fatsis about the women's soccer match and its "meaning," arguing that it actually has no deeper meaning other than that a bunch of women's teams played an exciting tournament that in every way (from playing hard to bitching about the refs) resembled a men's tournament, was watched by a lot of people, and can be evaluated on its own terms. He does consider briefly what the large audience for Olympic soccer tells us about the sustainability of a professional women's league (a point I addressed here). I do like his broader point--that women's sports is, slowly, becoming less of a cause and a simply a matter of good competition.

Third, the Second Circuit decision received some attention because Quinnipiac had sought to make up the lost volleyball spaces by creating a competitive cheerleading team; this required the court to consider whether cheerleading is a sport, concluding it was not (although not for the reasons I would offer--it had to do with how well-established and well-organized something was as a competitive event, meaning cheer could become a sport some day).

A question: Would a more purposivist take on Title IX uniformly favor opportunities in volleyball or soccer over opportunities in cheer, given the statute's goal of creating new opportunities for women in sports? Cheerleading predates Title IX by many years, obviously, and it seems to me it would undermine the statute if schools could satisfy their statutory obligations by increasing the number of opportunities for women/girls to do what they have been doing all along rather than providing genuinely new athletic opportunities.

Posted by Howard Wasserman on August 10, 2012 at 08:40 AM in Current Affairs, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (3) | TrackBack

Saturday, August 04, 2012

Defining sport: Intrinsic and Instrumental (not utilitarian) Values

I have written before about defining sport and distinguishing sport from other athletic competitions. My preferred definition of sport includes four elements: 1) Large motor skills; 2) Simple machines; 3) Objective scoring (distinct from subjective judging); and 4) Competition. Of these, # 3 has proven to be most difficult, controversial, and contested, as the comments on this post show. Watching the Olympics (count me among the many who detest the NBC Primetime productions) has lead me to a different way of thinking about # 3, using a line familiar to legal scholarship--the difference between intinsic and utilitarian instrumental values. Hear me out.

Everything involves the performance of particular skills (dives, flips, swimming strokes, running strides, throwing, putting the shot, whatever), with the hope of performing those skills as correctly as possible. The difference is why the athlete performs those skills.

Sometimes they are done for utilitarian instrumental purposes--to enable the athlete to swim or run faster or to put the shot further or to put the ball in the basket. And the better or more perfectly the athlete performs those skills, the more likely he is to do well in the competition. But ultimate evaluation is not on the skills themselves and correct performance is not essential to success. A shot-putter still can have a good throw even if his performance on that throw is not technically correct; a swimmer still might swim fast even if his stroke is off; a jump shot in basketball may go in  even if the form on the shot is off. Each of those scores is worth the same as one done with perfect form. Other times, those skills are performed for their intrinsic value and utlimate evaluation is on the correctness and form of the skill itself. An Inward 2 1/2 that is not done correctly will score less than an Inward 2 1/2 done correctly; a backflip not done correctly will score less than a backflip done correctly.

This is our new third element. Sport is utilitarian instrumental; skills are performed toward some other end and outcomes are determined by the result of the skill rather than by evaluating the skill itself. It is not sport if it is intrinsic; skills are performed for their own sake and outcomes are determined by evaluating the skill itself. We no longer care about objective or subjective evaluation, about scoring or judging. Instead, we focus only on the thing being evaluated to determine outcome--the skill itself (not sport) or the results of the skill (sport).

Combined with elements 1, 2, and 4, above, we may have a winner.

Two Updates:

I accept Patrick's friendly amendment in the comments and have changed "utilitarian" to "instrumental."

I am trying to figure out whether this new element solves the conundrum of boxing. Boxers are throwing punches to score points, although the vagaries of judging sometimes hint that judges are evaluating the punches themselves.

Posted by Howard Wasserman on August 4, 2012 at 06:11 PM in Current Affairs, Howard Wasserman, Sports | Permalink | Comments (9) | TrackBack

Thursday, August 02, 2012

Minority religions and the Olympics

My colleague Tom Baker linked me to this story on the Jews, Muslims, Sikhs, and other minority religious groups taking special rooting interest and pride in the Olympic success of their co-religionists, even if they are competing for other countries. The author seems surprised by this, although I am not sure why. American Jews always have been very conscious of the existence and success of Jewish-American as well as Israeli athletes (while never being afraid to recycle the old joke "Do you have some light reading? Here's a pamphlet of great Jewish athletes"). What is new here, if anything, is the way that other religious groups in the U.S. are catching on.

For what it's worth, my sense with Jews and Jewish athletes is that it always has been more ethnic/cultural than religious. People knew gymnast Aly Raisman is Jewish because of her name and her floor routine done to "Hava Nagila." The issue was never whether she was particularly observant (although her rabbi is quoted in the story, so we somewhat know), but that she identified as Jewish. That has always been enough.

Posted by Howard Wasserman on August 2, 2012 at 04:05 PM in Current Affairs, Howard Wasserman, Sports | Permalink | Comments (0) | TrackBack

Wednesday, August 01, 2012

Are Sporting Setbacks Penalties or Punishments?

Sportswriter Bill Simmons discovered Team Handball, which always has been my favorite off-the-beaten-path Summer Olympic sport.

Now here's one for Dan: A few years ago, he was trying to incorporate into his punishment scholarship some analogies to penalties in football and how those are calibrated (something economists have also begun exploring in earnest after the strange ending to the last Super Bowl). Like hockey, players in handball have to sit out of the game for some period if they commit a foul. But handball calls these "punishments," the only sport (as far as I know) to use this terminology--a player is "punished" by having to sit out for two minutes.

Is penalty v. punishment a useful distinction--both for sports and for law?

Posted by Howard Wasserman on August 1, 2012 at 10:21 AM in Howard Wasserman, Sports | Permalink | Comments (1) | TrackBack

Monday, July 23, 2012

Just the FACs: Fan Action Committees and Fan Support

Dan and I have an op-ed that just posted at The Atlantic, introducing the concept of "Fan Action Committees." The sports counterpart to PACs, these are vehicles for fans to pool money to give to star players (or donate to the player's favored charitable causes) to induce them to join or remain with a favored team. We take a particular focus on last week's Jeremy Lin/New York Knicks saga.

This presents the germ of an idea that we hope (along with sports law guru Mike McCann of Vermont) to expand into a longer essay. Comments welcome and encouraged. Thanks to Mike, Gregg Polsky (UNC), and Brian Galle (BC) for their comments.

Posted by Howard Wasserman on July 23, 2012 at 05:04 PM in Article Spotlight, Dan Markel, Howard Wasserman, Sports | Permalink | Comments (0) | TrackBack

Monday, July 16, 2012

Public memorials and Penn State

Legal historian Al Brophy of UNC and the Faculty Lounge writes some interesting stuff on public memorials and monuments, particularly in the South. This has become the new locus of discussion at Penn State, as the trustees and others try to figure out what to do with the Paterno iconography that dots Penn State and State College. These include a statue, the family name on the university library, and a famous mural in town (the mural artist recently removed the halo from over Paterno's head).

The current sentiment on the Board of Trustees is to leave the statue, at least for now and pending a broader public discussion. I was struck by the comment of one trustee, who insisted "The statue represents the good that Joe did. It doesn't represent the bad that he did." Can they have it both ways like that? Can a monument to someone with a divided legacy (as Paterno now has) simply remain in place, pretending there was no bad? Do the trustees at least have to acknowledge in the public conversation that they are determining that the good Paterno did outweighs the bad and thus warrants keeping the statute (a reasonable position)? I actually don't particularly care what they do with the statue; I'm more interested in how the conversation about the statue honestly addresses that Paterno genuinely did something wrong and the statute represents that part of him as much as it represents everything else.

I am far more disturbed by the announcement that they are going to renovate the locker rooms and shower areas where some of Sandusky's assaults took place. While this has been described as an attempt to "erase the legacy of Sandusky's crimes," it also strikes me as an actual and symbolic attempt to erase the past in a way that covers the university's role in those crimes. I am not suggesting they have to turn the shower into a shrine or a museum. But their first response is to whitewash the crime scene and, in some sense, the evidence of their collective misdeeds. And to also get a shiny new athletics facility out of it, when the special treatment of athletics is a major element of this entire mess, is especially offensive.

[Update, July 18: Brophy, who happens to be in Pennsylvania, comments]

Posted by Howard Wasserman on July 16, 2012 at 10:08 AM in Current Affairs, Howard Wasserman, Sports | Permalink | Comments (1) | TrackBack

Boards of Trustees Irony

Penn State's Board of Trustees took a minor beating in the Freeh Report last week, criticized for failing to exercise oversight and to have in place procedures for gathering information from university officials, especially the President and General Counsel. This was tempered somewhat by the much sharper criticism of former President Graham Spanier for failing to keep the Board informed; Spanier is the real bad guy, so the Board's misdeeds are somewhat mitigated. The point is that Board is the potential white knight--had the Board known, it would have done s0mething at least in 2001 and perhaps in 1998 and many of these problems (and perhaps the further assaults of children) would have been avoided. In other words, the narrative  is we needed more active involvement by the Board of Trustees, which should have done more to check the President and to run the university.

Wait. Wasn't the narrative  of the University of Virginia mess (less than a month ago) that the Board of Visitors was meddling and interfering with the school's academic mission and that they should leave  Teresa Sullivan alone to run the school and not impose their anti-intellectual vision on the university?

Posted by Howard Wasserman on July 16, 2012 at 01:25 AM in Current Affairs, Howard Wasserman, Sports | Permalink | Comments (3) | TrackBack

Tuesday, June 26, 2012

Choosing your own decisionmaking processes

At Sunday's Olympic Trials in the women's 100m, there was a tie for third place (the final spot on the team). And now the question is how to break the tie, with the options being a coin flip or a run-off between the two women, Allyson Felix and Jeneba Tarmoh. But it gets more complicated, because the choice is delegated to the runners: If they agree on a process, they use that. If they disagree on their preferences, they use a run-off. And if no one expresses a preference, they use a coin flip.

This raises a couple of interesting issues:

1) As Miriam Cherry discusses at CoOp, Olympic officials have avoided making a decision (and having to provide reasons for the decision) by delegating the choice to the participants, something judges typically are unable to do.

2) Is there any doubt that world-class athletes will choose the run-off? And, if so, why? Is it fear of randomness? Is it a desire for control? Is there something unique about professional athletes that influences their choices?

3) Note the game theory element to this. If they state a preference and disagree, it's a run-off; if one or both decline to state a preference, it's a coin flip.

Posted by Howard Wasserman on June 26, 2012 at 01:41 PM in Current Affairs, Howard Wasserman, Sports | Permalink | Comments (2) | TrackBack

Sunday, June 24, 2012

Changing the rhetoric on women's sports

The sports world marked yesterday's 40th anniversary of Title IX by showing a lot of women's sports on TV, including Olympic trials in a number of sports (such as diving and track) and a marathon of WNBA games.

I also caught a new Nike ad, titled Voices. It features close-up shots of basketball players Diana Taurasi and Lisa Leslie, boxer Marlen Esperaza, and marathoner Joan Benoit Samuelson (I still remember her winning the first Olympic women's marathon in Los Angeles in 1984, wearing a white painter's cap) talking about the obstacles and challenges they faced growing up and starting to play sports. Notably, each of the four is a different age (ranging from 20s to 55) and grew up at different stages in Title IX's 40-year history. Those head shots are interspersed with shots of young girls in uniform lip-synching their comments. This ad can be seen as the successor to Nike's famous 1995 If You Let Me Play (regarded by many as one of the all-time best ads). Both can be seen after the jump.

In watching them, note the new rhetoric and narrative. The earlier ad tried to convince the viewer that women and girls should be ableto play sports by citing all the instrumental benefits that come with participation in sports (better grades, increased self-confidence, better health, etc.). The new ad says that women and girls do and should play simply because they want to. Oh, and because they're really freaking good. This strikes me as progress.




If You Let Me Play:



Posted by Howard Wasserman on June 24, 2012 at 10:10 AM in Culture, Current Affairs, Howard Wasserman, Sports | Permalink | Comments (0) | TrackBack

Wednesday, June 13, 2012

All politics is local, some of it is microscopic

Primary voters in North Dakota yesterday voted in favor of legislation that will allow the state Board of Education to retire the controversial Fighting Sioux nickname of the University of North Dakota.

The NCAA has been pressing UND to get rid of its logo and nickname for several years because it deems it offensive to American Indians; schools that continue to use offensive nicknames are barred from hosting NCAA tournament events and cannot use the name and logo in NCAA tournament play. The state was unable to get approval for continued use of the name from the two area nations, Standing Rock and Spirit Lake Sioux; the latter passed a resolution supporting the nickname but the latter never held a vote. In 2011, the North Dakota legislature passed a law requiring the school to continue using the nickname, but that law was repealed in a special session. A group supporting the nickname then gathered the signatures necessary to challenge the repeal law on the ballot. This now sends the matter back to the Board of Ed., which is expected to change the name.

That is, unless nickname supporters succeed in making the Fighting Sioux nickname a constitutional requirement. Yep, the next move, which supporters say they are going to pursue, is a popular constitutional amendment to amend the state's structural charter to require a university to use a particular nickname and logo. Needless to say, I don't expect to see this particular proposla in Slate's discussion of How to Fix the Constitution. I do not have skin in this nickname dispute; I do not believe that using Indian tribe names and titles (as opposed to, for example, "Redskins")  is inherently offensive and perhaps the NCAA is overreacting (shocking, I know). But this cannot be the sort of even symbolic issue that has any place in a state constitution.

One other touch to this report, also reflective of every political dispute: Sean Johnson, spokesman for the group supporting the ballot measure, pointed out that they were outspent by the other side. It is now virtually guaranteed that the loser in any election, particularly on issue refenda and initiatives, will point out how badly it was outspent. This has become the electoral equivalent of calling the judge in a case "activist": If I lose, it must be because someone (the judge, the other side) did something wrong or untoward.

Posted by Howard Wasserman on June 13, 2012 at 08:28 AM in Current Affairs, Howard Wasserman, Sports | Permalink | Comments (0) | TrackBack

Tuesday, June 12, 2012

NFL Bounty Scandal - Pre-Saints?

I feel I’m coming a little late to the party, given that this is my first guest post and we’ve almost hit the middle of June.  I’ll blame it on Law and Society in Hawaii, although Dave didn’t seem to have problems posting while he was there…

 I am hoping this month to post some things on drugs, guns, and general border crime stuff – all the fun stuff in my wheelhouse.  I also have enjoyed looking at some things on Fast and Furious and the Ted Stevens prosecution too, so I might say some stuff there too.   We’ll see how far we get.

 But first, I’ve been doing some research on prominent prosecutions gone wrong (hence the interest in both Fast and Furious and the Ted Stevens prosecution, and we can likely chalk the John Edwards prosecution up there now as well).  One of the “case studies” I’m looking at is from the Archer Daniels Midland price-fixing investigation in the mid-90s (and thankfully, Kurt Eichenwald put everything together in a nice book for me to read: The Informant (published in 2000 and made into a movie staring Matt Damon in 2009, although I can’t find the movie anywhere here in Laramie so I haven’t seen it yet)).  While reading through the book, I noticed something that seems to have a played a prominent role in sports news this past few months, so I wanted to comment slightly on that.

 By way of background:

the ADM investigation involved a number of FBI agents, AUSAs, folks from Main Justice and other officials investigating ADM allegedly engaging in price fixing with other foreign corporations.  The FBI became involved when Mark Whitacre (“the Informant”) started cooperating and recorded numerous conversations with officials from other companies and persons working at his own company.  Whitacre seems to have acted at times as a rogue agent (and also seems to have engaged in embezzlement from ADM while working as a CI (confidential informant)) and ultimately got a pretty high chunk of time in prison.  While my research deals with the problems inherent in having a prosecutor run such an investigation, that isn’t the point of this post. 

 To make a long post short (too late), I noticed some information about the NFL bounty scandal in the book.  On p. 465 of the book, Eichenwald describes a FBI interview of Ron Ferrari, one of Whitacre’s salesmen and someone the FBI thought might be involved in the price-fixing.  Ferrari played linebacker for the 49ers during the Joe Montana years, and the FBI questioned him about $25,000 in a safe-deposit box (thinking it might have come from price-fixing).  Ferrari tells the FBI this is money from “unofficial bonuses” he received while playing football for the 49ers.  He goes on to indicate that sometimes, when there were unpopular players on the other team, the coaches would pay “little bonus payments” for a “particularly vicious hit on one of those unpopular guys.”  This seems exactly what the NFL bounty scandal is all about, but this is an allegation of it happening in the mid-80s, a long time before the Saints “bountygate” came out.

 So, after my exhaustive internet research on this issue (about 2 minutes on Google), as far as I can tell, this information never made it to the NFL.  In 2000, Eichenwald provides evidence about these bounties occurring in the NFL, and yet, no mention is made of that within the Saints “bounty-gate” discussion.  Of course, I’m not surprised that none of this information really made much of a dent back in 2000 because a) it isn’t likely that anyone associated with the NFL read Eichenwald’s book, and b) the bounty-gate stuff seems more of a big deal now given all of the concussion-related news and suits that have arisen in the past year or so.

 Of course, now that I’ve written this post, I’m sure I’ll be getting called by Roger Goodell… 

 Thanks for letting me post, and I look forward to trying to post some interesting things here while I’m here.    


Posted by Stewart Young on June 12, 2012 at 02:29 PM in Criminal Law, Culture, Film, Sports | Permalink | Comments (1) | TrackBack

Boxing and the definition of sport

For those of us who like to debate the Platonic ideal of what is sport, boxing creates the second biggest conundrum after golf (which everyone seems to want to define out). Last weekend's fight between Manny Pacquiao and Tim Bradley, in which Bradley won a split decision that has been universally derided as wrong to the point of being corrupt (the promoter of the fight has called on the Nevada Attorney General to investigate), brings the issue back up.

One of the four elements to my preferred definition is objective scoring. This means points are awarded and winners determined based on objective criteria, rather than through "judging," which involves inherently subjective and usually undefined (and undefinable) criteria such as "artistic merit" or "whichever fighter you would not have wanted to be in a given round" (an oft-accepted standard for judging in boxing). One way to distinguish this is to ask whether the judge could point to evidence and explain her conclusion in a way likely to convince anyone who watched the fight and initially reached a different conclusion.

So what of boxing? Fights obviously can and often do end by knockout, the ultimate objective determination. But, as here, they often end on a decision by judges who exercise completely unchecked decision applying a standard that, quite literally, has no determinative criteria beyond "which guy won?". This contrasts with amateur boxing, in which judges look to who landed the most punches, an objective standard (although of course subject to manipulation and error). We could tweak the definition to include boxing by defining this element as "objective scoring, or at least the possibility of determining a winner by something other than subjective judging." So the possibility that a fight could be decided objectively is enough, even if some fights are decided via subjective judging. But it is hard to call something a sport (as opposed to a competition or exhibition or contest) after a fight like this one, in which you have the feeling that things were decided by people who were just making things up, but you could not, in fact, explain why.

Posted by Howard Wasserman on June 12, 2012 at 11:00 AM in Howard Wasserman, Sports | Permalink | Comments (17) | TrackBack

Thursday, May 31, 2012

Suing the NFL: Where Labor Law meets Fed Courts

A couple of weeks ago I wrote about the federal defamation action brought against NFL Commissioner Roger Goodell by New Orleans Saints linebacker Jonathan Vilma over his one-year suspension for his alleged participation in the Saints "bounty" program. Two more interesting things in the case.

First, I have heard a few people suggest that the lawsuit is preempted by the NLRA and the new CBA, which gives Goodell broad power to investigate and punish player misconduct. The argument, I guess, is that in suing over Goodell's statements reporting his findings and punishment, Vilma is functionally challenging Goodell's exercise of that power. In other words, to determine the falsity of Goodell's statements requires a court to review the evidence that the league gathered about the bounty programa and to review the accuracy of Goodell's decision. Labor law people (are you out there, Matt?): Is that right? Can a legal claim arise from arbitrable conduct that violates some other right?

Second, I found it notable that Vilma sued Goodell, but did not sue the NFL on a respondeat superior theory. My suspicion has been that Vilma wanted to be in federal court and the NFL would have destroyed complete diversity. Vilma is a Florida citizen and so, it appears, is the NFL for these purposes, although it takes some digging. And it also provides a nice case for illustrating the puzzle of determining citizenship for diversity purposes when non-corporate entities are involved.

The NFL is an unincorporated association of its 32 teams, so it is a citizens of every state of which one of its teams is a citizen. One team, of course, is the Miami Dolphins, which are owned by Miami Dolphins Ltd., a Florida limited partnership. A partnership's domicile is that of every general and limited partner. The general partner is South Florida Football Associates LLC, which has its principal offices in New York; no other general or limited partners were listed on its 2012 Annual Report. An LLC's domicile is that of every member. The managing member is Stephen Ross, the man who is colloquially known as the "team owner." According to Wikipedia, Ross resides in New York' of course, residence is not domicile, so it is possible he also has a home in Florida and that is he true residence. Guess we need more discovery on this one. The key, though, is that Ross famously brought in a number of celebrities as minority owners, including Gloria and Emilio Estefan, the Williams sisters, Fergie, and Marc Anthony. I know for sure that the Estefans are Florida citizens. I am not sure if these "minority owners" are members of the LLC or limited partners in the partnership. Either way, Estefan alone means the partnership has become a Florida citizen (directly or through Estefan's effect on the LLC), which makes the NFL a Florida citizen. And thus a strategic reason for not suing the league.*

On the other hand, it may seem surprising that Vilma so wants to be in federal court. The theory underlying diversity jurisdiction is that it allows one party to avoid local bias that would exist in state court by getting to federal court. The converse is that the local would want to be in state court to take advantage of that bias. Yet Vilma, the "local," is looking for federal court. True, Vilma is not a Louisiana citizen. But he is a star player on the Saints and a leader of their championship team. He could expect to benefit from local favoritism even more than any Louisiana citizen would.

Finally, another explanation for Vilma's strategic choice may tie the two issues together. Perhaps Vilma was indeed worried about CBA preemption of his claim. Maybe the thought is that the defense argument that this issue is subject to arbitration appears stronger if the lawsuit is against the league, which is a party to the CBA, than if the lawsuit is against Goodell, who is not a party to the CBA. By not suing the NFL, Vilma could try to argue that this dispute is not subject to labor arbitration because this dispute involves people who are not parties to the CBA.


    *Lawyers routinely gets this wrong. So I hope Vilma's attorney's reasoning did not go as follows: "The NFL is all 32 teams, the Dolphins are a partnership with their principal offices in Miami, so it is a Miami citizen, so the team destroys diversity." Full stop. That would be the right conclusion but the wrong analysis, and thus a not-so-good grade.

Posted by Howard Wasserman on May 31, 2012 at 09:31 AM in Civil Procedure, Current Affairs, Howard Wasserman, Sports | Permalink | Comments (1) | TrackBack

Friday, May 18, 2012

Sports and personal jurisdiction

Yesterday, Jonathan Vilma, a linebacker for the New Orleans Saints and the player-leader in the teams alleged "bounty program" (paying out cash for injuring opposing players), filed a defamation action against NFL commissioenr Roger Goodell in the Eastern District of Louisiana. Having read the complaint, one of my first thoughts is that there is an interesting potential personal jurisdiction issue here. If Goodell does challenge personal jurisdiction, the precdent that Vilma must overcome comes, ironically, from Roger Clemens' defamation action against Brian McNamee (not to be confused with the government's seemingly abortive prosecution of Clemens for perjury).

Vilma sued in Louisiana, where he works but does not live, over comments that Goodell made in several press releases written and issued in New York about the bounty program, which largely took place or came out of Louisiana. Goodell allegedly intended and expected his statements to be disseminated publicly and, presumably, nationally. In Clemens, Clemens sued McNamee in Texas over statements McNamee made to the Mitchell Commission and to a Sports Illustrated reporter in New York about conduct occurring in New York and Toronto. The Fifth Circuit (which also includes Louisiana) held there was no personal jurisdiction over McNamee because he did not target his statements at Texas. He was speaking in New York about non-Texas events and had no control over where the statements ultimately were ultimately disseminated. The majority never really considered whether McNamee knew or intended his statements would be published in Texas or anyplace other than New York. The key in Clemens is that the Fifth Circuit refused to impute the obvious Texas contacts of SI or even the reporter (Clemens did not sue either one, but obviously SI published in Texas and the reporter would have known that) to the source of the statements, who only knew he was talking to someone in New York and had no knowledge or control over what happened next.

A few distinctions do leap out, so Vilma may be able to establish jurisdiction even in the face of Fifth Circuit's narrow approach. First, Goodell's statements, although made in New York, concern conduct occurring in Louisiana, so his particular statements were "directed" at Louisiana. Second, it could be argued that Goodell was more in control of the ultimate dissemination of his statements (since he knows national media, including media in Louisiana, will report his every word) than McNamee was in talking to a reporter from Sports Illustrated. Third, the lawsuit targets not only Goodell's press releases that were reported on, but also defamatory statements in reports he sent to all 32 teams about the investigation and findings; one of the teams to receive that report, of course, is the Saints, in Louisiana. Goodell had more affirmative control over the publication of his comments, including intentionally sending some written materials into the state. Fourth, it is telling that Vilma did not sue in Florida, where he lives, recognizing that merely feeling the effects of defamation at home would not be sufficient under the effects test, where the conduct falsely described took place elsewhere.

Posted by Howard Wasserman on May 18, 2012 at 09:31 AM in Civil Procedure, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (2) | TrackBack

Thursday, May 10, 2012

Not the end of football

Back in February, I wrote about an essay on Grantland by Tyler Cowen and Kevin Grier describing how footbal could end as a major sport as a result of head-injury lawsuits. Today in Slate, Will Oremus challenges that conclusion, arguing that the difficulty of proving liability in these cases given an assumption-of-risk defense and state-law sovereign immunity, makes it unlikely that we will see the numbers of big-money judgments that would cause high schools and colleges to want to get out of the football business.

Interestingly, Oremus rejects the idea that change can happen through lawsuits against individuals or even educational institutions. In his view, any change should

come not from the courts but from high-school athletic conferences, scholastic sports associations, and the NCAA. As the research rolls in, they need to take a hard look at the aspects of the game that inflict the most damage and implement rule changes accordingly. If football ends someday, it should only be because the powers that oversee the sport have tried everything to make it safe and determined that it can’t be done—not because lawsuits have spooked schools into giving up.

This is a sharp reflection of the modern understanding of tort law, the courts, and the administrative state. The regulating institutions should take care of the problems--even if those institutions have vested interests in protecting what they are supposed to be regulating. And courts do not achieve justice or truth at the systemic level--they only play on people's fear to surrender and pay out windfalls to a few individuals.

Posted by Howard Wasserman on May 10, 2012 at 02:13 PM in Culture, Howard Wasserman, Sports | Permalink | Comments (0) | TrackBack

Thursday, April 19, 2012

Free speech at the old ballgame

I have suggested that the brouhaha over Ozzie Guillen's "praise" of Fidel Castro was silly, in the sense that we are giving far too much creedence to the words of a baseball manager who has built a career out of saying provocative things. (I also recognize that I do not equate Castro with Hitler and thus do not get as exorcised over tepid compliments directed his way).

But I have also argued that the calls from some in the Miami-Cuban community for a boycott of the team and/or for Guillen's firing reflect precisely what the First Amendment demands: counter-speech in response to speech you don't like.

I attended today's game at Marlins Park (against my inept Cubbies), the third game since Guillen's reinstatement after a five-game suspension. Inside, Marlins fans seem to have moved on. I did not see any signs or banners about Guillen and he was not booed on any of the many, many times he came on the field to change pitchers or when he came out to celebrate the Marlins' victory. Outside, there were about two dozen anti-Guillen protesters, mostly in their 50s or 60s or older, which fits with the demographics of anti-Castro sentiment in Miami. No one seemed to be paying them much attention, other than to take pictures on their cell phones.

Mine are after the jump.












Posted by Howard Wasserman on April 19, 2012 at 06:00 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (0) | TrackBack

Tuesday, April 03, 2012

Freakonomics and cheering speech

Interesting Freakonomics Podcast (beginning at 28:00) from a few weeks ago, discussing booing at sporting events, art, and politics. It had some interesting tidbits that I can use when I return to writing on the subject.

One is that the Colonies brought over from England the concept of "audience sovereignty," which vested in the audience the right to boo and jeer political speakers--precisely what Alexander Meiklejohn eliminated from his theory of the freedom of speech. The second is the story of Johnnie LeMaster, a light-hitting shortstop for the San Francisco Giants. In 1979, LeMaster made some comments opposed to gay rights, causing fans to boo him continuouslys. After several weeks LeMaster had a jersey made up with "Boo" on the back and wore it for a game, which immediately won fans over. And third is an interview with former Pennsylvania Governor and Philadelphia Mayor Ed Rendell, who talked about booing, especially when politics intervenes in sports.

Posted by Howard Wasserman on April 3, 2012 at 03:12 PM in Culture, First Amendment, Howard Wasserman, Sports | Permalink | Comments (0) | TrackBack

Friday, February 17, 2012

RIP, Gary Carter

Gary Carter passed away the other day. He was 57; the cause was brain cancer. Gary was no law prawf. He was a baseball player: the catcher for the Montreal Expos and then the Mets. He was inducted into the Hall of Fame as an Expo. I grew up in Montreal and in the 70's and 80's and just loved that team. He was "the Kid" while I was a kid. Hanging out in the bleachers of the Olympic Stadium eating cheap hot dogs on a sunny day was a big joy. The Expos never did too well, with only one real chance at the NL title in a strike-torn season. But they had heart and humility; they were a group of people, not performers; and the game was simple, not starry. Gary Carter was a cheerful and earnest guy, full of spirit and private faith. The Expos have long left Montreal. And now one of their pillar players, too, has left. The Montreal press is in mourning. Of course Gary is remembered most for keeping the Mets alive while in the jaws of death in the 1986 World Series. But to me, and many others, he is remembered for playing for fun. Time to pull out that vintage Expos cap. RIP.

Posted by Mark Drumbl on February 17, 2012 at 09:03 AM in Culture, Sports | Permalink | Comments (0) | TrackBack

Monday, February 13, 2012

The end of football?

Tyler Cowen and Kevin Grier have a piece at Grantland that hypothesizes how professional football may end as a major American professional sport under the weight of a worsening concussion crisis. They argue that the "collapse of football is more likely than you might think. . . . Once you start thinking through how the status quo might unravel, a sports universe without the NFL at its center no longer seems absurd." They also argue that the economic consequences will be minimal at the national level, although harsher at the local level in small markets (e.g., Green Bay) that only have professional football.

I agree with the basic point of the piece. I am not sure how long football can continue as it currently is played (and I say that as a big fan). It is not just about "hits to the head" and concussions. The irreducible element of the game is for incredibly large, incredibly athletic, and incredibly fast-moving men to run into one another at full speed. It is simply not possible for serious long-term health problems not to result, no matter the evolution in equipment (which the NFL promoted in a Super Bowl ad (after the jump)). All the conversations about player safety seem to ignore that modern players are significantly larger than they were 20 and certainly 50 years ago, but that they're also signficantly faster, quicker, and more agile. If F = M x A, then players today are hitting and being hit with significantly more force than 20 or 50 years ago. Neither eliminating helmet shots nor improving helmets can change that.

This doesn't mean football is going away, just that it is going to become less important to our sports culture. The chain they describe looks something like this: As fewer high schools and colleges have football programs in light of the medical evidence (and probably some large liability judgments), more and better athletes will be drawn to other sports, leaving football with less talent, less money, less cultural and media presence, and, ultimately, more of a niche place in the sports landscape.

It's an interesting take on the issue. There is historical precedent--look at boxing and horse racing.  And their broader point is not so much predicting football's demise as suggesting what could happen if things play out a certain way (mostly because of the medical, and subsequent legal, issues) and the status quo unravels. And who better than economists to follow the logical trail . . .


Posted by Howard Wasserman on February 13, 2012 at 09:23 AM in Current Affairs, Howard Wasserman, Sports | Permalink | Comments (5) | TrackBack

Monday, February 06, 2012

If you let me play . . .

My late father-in-law (who lived his adult life surrounded by a wife, two daughters, two granddaughters (although one grandson), and string of female cats) used to say he did not really become an impassioned feminist (although he had always supported women's rights) until he had daughters and the demand that women and girls get fully equal opportunities came home.

Last Wednesday was National Girls and Women in Sports Day, whose celebratory purpose is obvious, particularly in this, the 40th anniversary of Title IX. Yesterday, the University of Miami sponsored a girls' sports clinic, featuring stations with members of various UM women's teams and a short speech by women's basketball coach Katie Meier. This was followed by tickets to a women's basketball game (UM is the defending ACC champion and ranked 7th in the nation). Halftime featured a scrimmage of 3d and 4th grad girls from my daughter's school (which runs a popular girls' basketball league). And every timeout during the game featured announcements of various statistics and information about the benefits girls enjoy from playing sports. And doing it all on the day of the Super Bowl--arguably the culture's most male-centered day of the year--was brilliant counterprogramming. Of course, many of the girls left the game talking about how they were going home to watch the Super Bowl, which I hope reflects the instantiation of a general love of sports in many different forms.

I was very impressed with Meier's remarks, where she talked about how relatively new opportunities are for girls in sports (Meier is about my age, so she was growing up when Title IX was in its relative infancy), how sports have allowed her to have a career she never could have dreamed of when she was a kid, and the benefits that sports have for people in all walks of life. She particularly emphasized something I never thought of--that sports teach you how to fail and how to come back from failure, an ability we can use in all aspects of our lives. I also was struck by one statistic that was announced during the game--today, 1-in-3 high-school girls play some sport, compared with 1-in-250 in 1971 (the year before Title IX). Finally, I was amazed by how fast the women players were--I had not seen a women's game live in a long time and the athleticism was surprising. I often have said that women are about 50 years behind men in most sports (i.e., women play a game that looks somewhat like the men's game of 50 years ago); I wonder if it may be less, at least in terms of speed and quickness.

After the jump, one of the great commercials of all time and the source of most of the statistics about girls' sports participation.*



* And a key piece of evidence in my arguments for why it really is difficult to separate commercial from political speech.

Posted by Howard Wasserman on February 6, 2012 at 09:31 AM in Culture, Howard Wasserman, Sports | Permalink | Comments (2) | TrackBack

Sunday, February 05, 2012

Imagine a world with AALS Injury Reports

Rob Gronkowski is officially "questionable" for the Big Game today, though he walked without a limp yesterday.

Under the NFL system of mandatory injury reporting, players are listed based on the likelihood that they will play: out, doubtful (25%), questionable (50-50), or probable (75%). The report also must list the area of the injury (e.g., "ankle"). The system was created in 1947 in response to allegations that players had provided gamblers with secret "insider" information about injuries that were likely to influence the game.

Though coaches are notorious for the gamesmanship involved in using the injury reports - e.g., Tom Brady was listed on the injury report every week for over two years without ever missing a start - the NFL Injury Report survives today, defended by the League as necessary for the integrity of the game and claiming that such data is in the public interest.

Who needs to know whether Rob Gronkowski's injury is really a high ankle sprain or whether he walked with a limp or not?

People betting on football. People playing fantasy football (though most fantasy football seasons end before the Super Bowl). The media. Sport fans. In our football-obsessed run up to the Biggest Game of the Year, who doesn't need to know?

What about the athletes? Are they better off in a system that requires mandatory reporting - and public sharing - of injury information? Sports betting, fantasy football, greater media attention all increase the NFL's revenue, from which athletes will be paid. At the same time, athletes may have good reason to NOT want to share their personal medical information. They may wish to avoid being a target for other athletes (e.g., Kyle Williams having a history of concussions). The injury may be embarrassing in nature (e.g., George Brett having hemorrhoids years ago) or may have occurred in an embarrassing manner (e.g., Dustin Penner injuring his back while eating pancakes).

I don't think the discourse or expectation that athletes are not entitled to privacy about their own bodies or medical information stems from the NFL Injury Reports. I think the continued existence of the reporting requirement (albeit with wink/nod strategic non-compliance) and the lack of athlete interest in bargaining to change the rules is all due to the norm that athletes should be viewed as the sports industry's performance machines, viewed as a collective of body parts rather than people with privacy rights.

What other industries force this bargain on its employees where personal health or medical information is deemed public interest? Top ranking government officials (the President, SCOTUS Justices, etc.)? Actors when their injuries affect filming? Other celebrities? Am I missing any others? Can you imagine if law professors had the equivalent injury reporting requirement?

Posted by Shawn Markus Crincoli on February 5, 2012 at 09:21 AM in Culture, Sports | Permalink | Comments (1) | TrackBack

Thursday, January 19, 2012

Defending JoePa, redux

Right after Penn State fired Joe Paterno back in November, shortly after the grand jury report about Jerry Sandusky was released, thousands of people, maninly Penn State students, took to the streets in protest/riot. At the time, I wondered what they were protesting and why they thought JoePa had someone been wronged in all of this. At the time, many simply chalked it up to "stupid college kids" who did not really give thought to (or care about) the broader issues involved.

On the other hand, it appears to not be limited only to PSU students. New PSU president Rodney Erickson has been holding a series of town hall meetings with alumnae to discuss the scandal. And the overriding theme of these town halls is that the Board of Trustees was wrong, and should all be fired, for terminating Paterno. The bad thing was firing Paterno, not the mishandling of the allegations against Sandusky. It was tears for all Paterno had done, not the fact that, by all accounts, Sandusky was still a presence on campus and around the footbal progran long after the administration knew about these allegations. Here are two accounts of the New York town hall, where questions all focused on why JoePa was fired and not why Sandusky was not called out sooner. Here is a New York Times piece on the Board and their actions and thought processes. And here is a short commentary from Torie Bosch, a PSU grad and writer at Slate, expressing "dismay[]" over the reaction of many alumni.

Again, I think I could understand an argument of "Sandusky is wrongly accused, so JoePa did nothing wrong in failing toand should not have been fired." But, at this point, no one is (or, frankly, can) make that argument. Instead, like the students, the argument is "How could you fire our wonderful coach?", with no consideration of the bigger picture.

Posted by Howard Wasserman on January 19, 2012 at 02:08 PM in Current Affairs, Howard Wasserman, Sports | Permalink | Comments (1) | TrackBack

Monday, December 05, 2011

The End of Hockey (Fighting)?

Unlike Wasserman, Vladeck, and Bodie, I'm just a nerd with little interest in and patience for following the sports pages these days. (Unfortunately, I still have tons of useless trivia stuck in my head from my days of fandom as a kid.)

Nonetheless, I've been drawn into John Branch's series of pieces on Derek Boogaard in the NYT this week. Boogaard died at the age of 28 not long ago, due to an overdose from painkillers. He was a brutal "enforcer" for his hockey teams, and the series by Branch effectively underscores the complicity of officials, owners, coaches and fans in the gladiatorial aspects of Boogaard's life and death. Notwithstanding too many links to videos of important fights in Boogaard's career, I highly recommend the series so far. (The links are too tempting and I feel like Leontius looking back at the executioner's carnage.) I'd be surprised if it's not a finalist for a Pulitzer. More importantly, I think it shows to a wide audience of NYT readers just how pervasive the senseless violence on the ice is; it might also spur some important changes to the game of hockey itself. 

Importantly, if Boogaard's family sought the chance to do something (and maybe without them too), the series could lay the foundation for the kind of tort litigation/media onslaught against the hockey industry that we've seen work (and not work so well) in other areas. Boogaard was a bruiser, and, from my criminal law perspective, I could see all sorts of reasons why local and enterprising DA's might try to make a case against him and the "enforcer" crew of which he was a critical part (consent as a defense be damned!). But he was, as the articles show, vulnerable to all sorts of social influences and financial incentives that others bear responsibility for as well. Not every social problem requires legal redress in the courts. But even (or especially) if the NHL won't fix itself -- and it seems to have resisted efforts to change the penalty structure for more than 90 years -- I hope it will be spurred to change by moral entrepreneurs in the courts and elsewhere inspired by Branch's series on Boogaard. There's no reason for thinking that brutal disabling fights are a necessary feature of hockey. And if they are, then I'm all in favor of a new sport of senseless violence-free shmockey.

Update: I've been alerted to Jeff Yates' paper on reducing violence in sports through criminal prosecutions. And you might want to check out the NYT's latest report: namely, that Boogaard's head was massively diseased from all the concussions he suffered.

{Signed, verifiably addressed, and substantive comments are invited.}

Posted by Dan Markel on December 5, 2011 at 03:25 PM in Article Spotlight, Culture, Current Affairs, Dan Markel, Sports, Torts | Permalink | Comments (14) | TrackBack

Monday, November 14, 2011

A few thoughts on the NBA antitrust strategy

It looks like negotiations between the NBA and the NBPA have taken a decided turn away from agreement.  The NBPA has begun disbanding itself, much as the NFLPA did last spring, and the players will file an antitrust claim against the league -- again, similar to the Brady v. NFL suit.

The last time I dipped into these waters, I was touting the football players' litigation strategy and predicting their eventual victory.  Well, as it turns out, I was probably wrong, at least if you define "victory" as getting a better deal than expected.  The anodyne mainstream media take was that both sides won (hugs!), but Bill Simmons had a convincing polemic arguing that the players got killed.  I think Simmons may have gotten carried away in making his point, but it definitely wasn't the player victory I was predicting.  So what happened?

As I said at a recent SLU Law event, I think the lawyer in me was blinded by the beauty of the players' antitrust argument.  It's a really good argument.  There's no question that the NFL colludes; in the memorable words of Ted Olson, the league is an "antitrust recidivist."  The NLRA is structured to allow that collusion when it comes to labor relations, but only if there is a collective relationship.  So if the players decide to dump the union, it's really only a matter of time before the owners have to stop colluding or face treble damages.  And if the owners stop colluding, then there is no draft, there are no salary caps, there are no restrictions on the market.  Facing such a complete destruction of league management, I thought, the owners would likely do anything they could to stave that off.  And if you want to argue for my original position, the fact that the owners agreed to a ten-year deal -- when they opted out of the last one less than two years after it began -- shows they were afraid of something.

But the beauty of the legal argument was trumped by the realities of time.  Sure, the players could have held out for their antitrust-created wonderland.  And I'm pretty sure they would have gotten there.  But they could only get there after discovery, a trial, appeals, etc.  A year at the least; more likely two to four.  What player can sacrifice two to four years of their career?  And that also assumes that fans -- outraged at the lack of football -- would not successfully pressure Congress to change the law.  I know that's travelling pretty far down the hypothetical.  But that's the point: to get to a plaintiffs' antitrust victory, you have to imagine what all could happen in four football-less years.

So now that's what the NBPA is doing.  I don't know the intricacies of the negotiations; the players apparently believe "[w]e've given and given and given, and they got to the place where they just reached for too much and the players decided to push back."  But I also see that the decertification effort is being led by two lawyers -- Jeffrey Kessler and David Boies.  Kessler said to the AP: "The fact that the two biggest legal adversaries in the NFL players dispute over the NFL lockout both agree that the NBA lockout is now illegal and subject to triple damages speaks for itself."  I don't buy that Kessler is just doing this for the money his firm will get from the suit; that'd be really short-sighted.   But I do think that lawyerly minds are apt to see the enticing possibilities of the lawsuit while perhaps discounting the realities on the outside.  Within the bubble of that Eighth Circuit argument, it seemed to me it was only a matter of time before the players prevailed.  Still true, perhaps.  But litigation does not exist in a bubble.

Posted by Matt Bodie on November 14, 2011 at 05:56 PM in Current Affairs, Sports | Permalink | Comments (3) | TrackBack

Thursday, November 10, 2011


One of the first words I try to beat out of my 1Ls is "technicality." The law is not a technicality, nor should it be treated that way. And it is important for law students and lawyers to understand that, because too many non-lawyers don't.

Case in point: The reaction on Deadspin (yeah, I know, consider the source) to this story suggesting that the two indicted university officials may avoid the failure-to-report charge. In 2002, the time at which they heard about Sandusky and a boy in the football locker room shower, Pennsylvania law only mandated reporting when a person came directly into contact with a victim or perpetrator, not when the person only had second-hand knowledge. The law was expanded in 2007. This, some are saying, is them getting off on a technicality or through a loophole. No way. It cannot be a "technicality" for someone to avoid conviction for conduct that, at the time, was not illegal. Yes, they may have had a moral duty to do something. But we don't put people in jail for purely immoral conduct.

Posted by Howard Wasserman on November 10, 2011 at 02:13 PM in Current Affairs, Howard Wasserman, Sports | Permalink | Comments (3) | TrackBack

Tuesday, November 08, 2011


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.

Posted by Howard Wasserman on November 8, 2011 at 09:55 AM in Current Affairs, Howard Wasserman, Sports | Permalink | Comments (15) | TrackBack

Wednesday, October 26, 2011

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 - 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.

Posted by Derek Bambauer on October 26, 2011 at 07:48 PM in Criminal Law, Culture, Information and Technology, Intellectual Property, International Law, Music, Odd World, Sports, Television, Web/Tech | Permalink | Comments (34) | TrackBack

Tuesday, October 25, 2011

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.


Posted by Howard Wasserman on October 25, 2011 at 02:05 PM in Howard Wasserman, Law and Politics, Sports | Permalink | Comments (1) | TrackBack

Saturday, September 24, 2011

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.

Posted by Ari Ezra Waldman on September 24, 2011 at 01:56 PM in Current Affairs, Sports | Permalink | Comments (1) | TrackBack

Sunday, September 11, 2011

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.


Posted by Howard Wasserman on September 11, 2011 at 05:45 PM in Culture, Howard Wasserman, Sports | Permalink | Comments (2) | TrackBack

Monday, September 05, 2011

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 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.

Posted by Howard Wasserman on September 5, 2011 at 10:19 AM in Howard Wasserman, Sports | Permalink | Comments (0) | TrackBack

Friday, September 02, 2011

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?


Posted by Howard Wasserman on September 2, 2011 at 09:45 AM in First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (1) | TrackBack

Thursday, August 25, 2011

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.

Posted by Dawinder "Dave" S. Sidhu on August 25, 2011 at 07:25 PM in Sports | Permalink | Comments (4) | TrackBack

Monday, August 15, 2011

"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.

Posted by Dawinder "Dave" S. Sidhu on August 15, 2011 at 10:12 PM in Sports | Permalink | Comments (7) | TrackBack

Sunday, July 24, 2011

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.

Posted by Howard Wasserman on July 24, 2011 at 10:31 AM in Howard Wasserman, Sports | Permalink | Comments (1) | TrackBack

Friday, July 22, 2011

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.

Posted by Howard Wasserman on July 22, 2011 at 11:13 AM in Howard Wasserman, Sports | Permalink | Comments (0) | TrackBack

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.

Posted by Matt Bodie on July 22, 2011 at 12:09 AM in Corporate, Current Affairs, Sports, Workplace Law | Permalink | Comments (0) | TrackBack

Sunday, July 17, 2011

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.

Posted by Howard Wasserman on July 17, 2011 at 06:54 PM in Howard Wasserman, Sports | Permalink | Comments (1) | TrackBack

Friday, July 08, 2011

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?

Posted by Matt Bodie on July 8, 2011 at 02:43 PM in Corporate, Current Affairs, Sports, Workplace Law | Permalink | Comments (2) | TrackBack

Wednesday, June 22, 2011

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]

Posted by Jeff Yates on June 22, 2011 at 08:43 AM in Article Spotlight, Criminal Law, Culture, Law and Politics, Science, Sports, Teaching Law, Web/Tech | Permalink | Comments (1) | TrackBack

Sunday, June 19, 2011

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.

Posted by Howard Wasserman on June 19, 2011 at 10:02 AM in Culture, Howard Wasserman, Sports | Permalink | Comments (2) | TrackBack

Thursday, June 16, 2011

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?


Posted by Jeff Yates on June 16, 2011 at 09:27 PM in Books, Culture, Film, Games, Life of Law Schools, Science, Sports | Permalink | Comments (2) | TrackBack