Monday, February 04, 2013

Intentional safety = Infield fly?

One of the non-baseball plays often suggested to me in arguments over the Infield Fly Rule (and why the Rule is not necessary) is the intentional safety late in a football game. Like the infield fly, the argument goes, a team is intentionally not doing what we ordinarily expect it to do--here, running sideways or backwards and intentionally surrendering points. So should this play, which helped clinch Super Bowl XLVII for the Ravens last night, be banned, just like the dropped infield fly?

Under my model (introduced here and being refined in a current work-in-progress), three features define a sports situation as so out-of-balance as to warrant a special rule that limits a team's strategic options: 1) Negative incentives for a team to intentionally not do what we expect under ordinary rules and strategies; 2) total control over the play resting with one team and leaves the other helpless to counter the play; and 3) overwhelming cost-benefit disparity, with substantial benefits in favor of the controlling team and substantial costs imposed on, and absolutely no benefits gained by, the opponent. Applying that standard, the answer is no-- the intentional safety is not like the infield fly and should not be banned or limited.

One thing to keep in mind about football (distinct from baseball) is that there are several moving parts--teams not only worry about scoring and gaining maximum yardage on a play, but also about field position, sets of downs, and time. So football teams regularly make small cost-benefit trade-offs, intentionally failing to seek maximum yardage on a play in exchange for time off the clock. On the play in question, the Ravens incurred a cost--two points, meaning a field goal could tie the game, and they still have to kick the ball away--in exchange for the benefits of eight seconds off the clock and a more advantageous punting position (twenty yards upfield and no rush). The Niners, in turn, experienced both of those in reverse. The Niners also were not helpless or out of control on the play--although they could not stop the safety, they could have anticipated the play better, brought more pressure, and not allowed as much time to run off the clock (although there was a pretty blatant offensive hold on the play). The Niners also benefited by getting the ball back (and they would have had more than four seconds if they had played it better) and an opportunity to make a counter-play--a run back on the kick, Hail Mary pass, or (as CBS play-by-play announcer Jim Nantz discussed) the fair-catch kick (a field goal attempt from wherever the Niners caught the free kick)  had the Ravens punter shanked it. So the second and third features are clearly absent on this play. This looks like just one more example of teams exchanging small costs for small (but, it hopes, slightly greater) benefits.

This calculus would change  if the safety occurred on the final play of the game (say, where the play starts with :01 on the clock). The play now contains all three features--there is a far greater cost-benefit imbalance, and the trailing team has no control and will not get the ball back or have the chance to take advantage of the safety. But that does not undermine the intentional safety or require a limiting rule. Any problem there can be remedied by still requiring the team to free kick after the safety, even with no time on the clock, giving the trailing team an opportunity to do something on that play (including the fair-catch-and-free-kick). In other words, treat a safety at the end of the game the same as any other safety. We already some precedent on this. A game cannot end on a defensive penalty. And a team that scores a game-winning touchdown on the final play still must play the point-after, even with no time on the clock.

So another fun example of sports rules in action, further supporting my idea that the rules of a sport are akin to the rules of procedure in governing how players operate and strategize in a process (whether a football game or litigation). Just as last fall's National League Wild Card had everyone talking about the IFR, I am glad this Super Bowl has people talking about the intentional safety. But it further illustrates how just unique the Infield Fly Rule is.

Posted by Howard Wasserman on February 4, 2013 at 09:31 AM in Howard Wasserman, Sports | Permalink | Comments (6) | TrackBack

Friday, January 18, 2013

Vilma lawsuit dismissed

U.S. District Judge Ginger Berrigan yesterday dismissed under FRCP 12(b)(6) the defamation suit filed by Jonathan Vilma, one of the Saints player suspended in "Bountygate,"against Roger Goodell (but not the NFL). The court concluded that Goodell made these statements in his role as commissioner exercising his investigative powers under the CBA, thus the claims were precluded by the anti-suit provision and other portions of the CBA and the Labor Management Relations Act. The court also concluded that Goodell could not have acted with actual malice because his statements came after an investigation, even if it was a procedurally flawed one.

The second of those conclusions is a bit dicey, although the first seems right (based on what little I know about the LMRA). The court was not always faithful in drawing all inferences in favor of the plaintiff and at times seemed to be making factual conclusions based on what she read in the newspaper about Bountygate. There also is some gratuitous "look at me" language that the case "feels as protracted and painful as the Saints season itself" and taking a potshot at Goodell that had he been less heavy-handed, the lawsuit could have been avoided. Lines like that always sounds better coming from Posner or Kozinski.

In any event, the timing of this decision is good for me. I gave my Civ Pro students Vilma as one of their sample pleadings (it lends itself to a great subject matter jurisdiction question) and we just started talking about 12(b)(6).

Posted by Howard Wasserman on January 18, 2013 at 10:49 AM in Civil Procedure, Current Affairs, Howard Wasserman, Sports | Permalink | Comments (0) | TrackBack

Wednesday, December 19, 2012

Not just balls and strikes, redux

I have returned to writing about the infield fly rule, a more scholarly expansion of the short defense of the rule that I wrote in October. Thinking about particular examples of infield fly situations (or non-examples) in the context of the full baseball rulebook brought me back to the judge/umpire/calling balls-and-strikes analogy. In particular, I come back to the argument (which I have made before) that one problem with the analogy is that it understates the complexity of the decisions that umpires actually have to make. And I have in mind one historic play that illustrates this complexity quite well.

(I apologize in advance for a post that may be tilted fairly heavily towards the sports and away from the law--feel free not to follow the jump).

The Situation: (sorry not to have video to embed--it's really hard to find baseball footage online): Game 4 of the 1978 World Series between the Dodgers and Yankees; Dodgers leading 2 games to 1 and 3-1 with the Yankees batting in the bottom of the sixth. Reggie Jackson on first, Thurman Munson on second, one out; Lou Piniella batting. Piniella hits a low (ankle-high) line drive up the middle, to the left of Dodgers shortstop Bill Russell. Russell moves to his left, catches the ball at his shoe tops, drops it, picks it up as his body is continuing to move left, steps on second for the force out, then throws to first. Jackson had stopped running when he saw Russell initially catch the line drive and he is standing between first and second. As Russell's relay is coming, Jackson (imperceptibly) sticks out his right hip; the ball hits his hip and caroms into right field. Munson scores, Piniella is safe at first.

Several separate columns labeled this one of the five worst (or at least most controversial) calls in World Series or postseason history. Maybe. But look at the rules and facts the umpires had to determine on the fly:

1) Infield Fly: This is a potential infield fly situation (runners on first and second, less than two out). So the second-base umpire first had to determine that the ball hit was a line drive, to which the IFR does not apply, rather than a fly ball. Easy enough decision to make here--the ball clearly is a line drive and not easily playable--but the umpire at least must consider the rule in passing.

2) Intentionally Dropped Ball: Rule 6.05(l) provides that a batter is out and the ball is dead if an infielder intentionally drops a fair fly ball, including a line drive, where any force out is in effect. So the second base umpire had to determine whether Russell had intentionally dropped the ball to get a double play. He concluded it was not deliberate, presumably by reading where the ball was hit, how quickly and far Russell had to move to his left, and Russell's body language suggesting he was scrambling to pick the ball back up rather than being in control.

3) Interference: This is the one for which this play is remembered. Rule 7.09(f) provides that both the base runner and the batter are out and the ball is dead if a base runner "willfully and deliberately interferes" with a fielder in the act of fielding a batted ball with the "obvious intent to break up a double play." So the question is whether Jackson "willfully and deliberately" interfered with Russell's relay throw. The first base umpire decided he was not, presumably because Jackson was genuinely hung-up on the play. The runner need not move all the way out of the baseline as the throw is coming (they usually do as a matter of self-preservation).  It appears on slow-motion that Jackson did stick his right hip out as the ball approached, but the umpires did not have that luxury of breaking the play down that much.

Whether you think the call was right or wrong probably depends on your rooting interests--I was 10 years old and living in northern New Jersey at the time. My point is that the umpires actually had a huge amount to watch, process, and interpret. And it is far from a simple or robotic task.

Update: Thanks to commenter Jack, here is the video:

 

Posted by Howard Wasserman on December 19, 2012 at 10:40 AM in Howard Wasserman, Sports | Permalink | Comments (7) | TrackBack

Friday, December 14, 2012

Doing the waive at the ballpark

Yankees Ticket PolicyVia Nathaniel Grow (who teaches Legal Studies in the business school at Georgia): The image at left (click to enlarge) is a page from the October issue of Yankees Magazine and features the team's ticket policy. Note the underlined language in the inset at the top--fans acknowledge that team policies banning foul/abusive language and obscene/indecent clothing do not violate their free speech rights and they waive any free-speech objections to those policies or their enforcement.

I find it interesting that the team is now framing its attempts to regulate fan expression explicitly  in free-speech terms. It suggests their recognition of my core argument--that fan expression, even profane or objectionable fan expression, is subject to First Amendment protection and analysis. This policy is an effort to wiggle away from that legal reality. Of course, the idea of "acknowledg[ing]] and agree[ing]" that something does not violate one's rights when it probably does is pretty Orwellian. It goes well beyond a waiver of a claim into a compelled agreement to an alternate reality.

More fundamentally, even as a straight waiver, it cannot possible be enforceable. Assume for the moment the Yankees are a state actor in managing the ballpark--I argued they were with respect to the old Yankee Stadium, which was owned by the City of New York, although the analysis changes for the new ballpark, which is privately owned but (largely) publicly built.  The government cannot condition access to a public forum on a person waiving their right to challenge constitutionally suspect limitations on their speech in that forum (imagine a parade permit saying "As a condition of accepting this permit, you agree that police can halt the parade if your speech is objectionable"). Nor is this saved by the fan's compelled acknowledgement that "such time, place and manner of [sic] the restrictions are reasonable." While it is telling that the team is using those precise words, a TPM restriction must be content-neutral; a ban on foul language and indecent clothing is so obviously not content-neutral.

Finally, I do note that the waiver only applies to dirty words and dirty clothes and not to other possible free-speech violations, such as compelling fans to remain standing by their seats for "God Bless America" or other forced patriotism. I wonder if that is an oversight or if the team has genuinely given up on those efforts.

Posted by Howard Wasserman on December 14, 2012 at 11:53 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Sports | Permalink | Comments (1) | TrackBack

Monday, November 19, 2012

Final sports/election link

One final sports "predictor" of the presidential election: The winner of The Game--a Harvard win means a Democratic president, a Yale win means a Republican president. This held form this year, as Harvard won 34-24.

More broadly, since they have been playing since 1875, we actually have some data to work with.

    • Since the origins of the rivalry, there have been 35 presidential elections and 32 games (no games in 1888, 1894, or 1940), this has held 20 times (62 %--not that impressive). That includes the Harvard Beats Yale 29-29 tie in 1968. Maybe that election should have gone to the House of Representatives.

   • Over the last 18 elections and 17 games going back to 1940 (again, no game in 1944 because of World War II), it has held 14 times (82 %--much better).

    • In my lifetime, going back 12 elections and 12 games to 1968, it has held 9 times (75 %).

    • Over the last 9 elections going back to 1980 (call it my political lifetime), it has held 8 times (89 %); the only miss was W's reelection in 2004.

Of course, since The Game usually is played in mid-to-late November, this is less a predictor than an ex post correlation. Except in 2000, that is, when they played while the Florida debacle was playing out. Maybe we should not have been so surprised when Bush v. Gore came out as it did.

Posted by Howard Wasserman on November 19, 2012 at 10:29 PM in Current Affairs, Howard Wasserman, Sports | Permalink | Comments (0) | TrackBack

Let us praise the BCS

Or not.  Whatever.  I'm sure the playoff will be better.  But today, the BCS computers have Notre Dame at No. 1 (and Paul Horwitz's Tide at No. 2).  Go Irish!  Beat condoms!  And, if you have a few minutes, check out this short piece (video) about ND's star linebacker, Manti Te'o, who is by all accounts a wonderful guy.

Posted by Rick Garnett on November 19, 2012 at 12:08 PM in Rick Garnett, Sports | Permalink | Comments (0) | TrackBack

Saturday, November 17, 2012

Infield flies and taking a knee

I have written recently about baseball's Infield Fly Rule, including a general defense of, and rationale for, the rule itself. I plan to come back to it more fully in the spring, after I get through some current and future projects. I want to write a fuller piece on the cost/benefit analysis underlying the IFR and why that cost/benefit balancing both justifies IFR and why, given that balance of costs and benefits, the infield fly situation is unique not only in baseball but in all sports. There simply is no other situation like it.

This will expand on The Atlantic piece. In that essay, I identified four features of the infield fly situation that justify a special rule: 1) The fielding team has a strong incentive to intentionally not do what they are ordinarily expected to do in the game (catch the ball); 2) the fielding team gains a substantial benefit or advantage by intentionally not doing what is ordinarily expected (this is the prong I want to flesh out in economic terms of optimal outcomes, costs incurred, and benefits gained for each team); 3) the play is slow-developing and not fast-moving, so the player has time to think and control what he does; and 4) even doing what is ordinarily expected of them, the opposing players are powerless to stop the play from developing or to prevent the team from gaining this overwhelming advantage.

As I said, I believe the infield fly is the only situation in all of sport that possesses all four features. But in conversations with friends and readers, one situation keeps getting brought up: The kneel down (or "Victory Formation") at the end of football games.

For those of you who don't know football (but who are still reading this post anyway; if so, thanks for sticking around): At the end of a game, with the offensive team leading and some permutation of score, time on the clock, and timeouts held by the defense indicating that the game is functionally over, the offensive team will snap the ball and the quarterback will kneel down behind the line of scrimmage, ending the play, with the clock continuing to wind down. A team may do this 2-3 times to the end of the game. The players on both teams know the game is over and that the kneeldown is coming and the defense won't do anything to challenge the play (although the play is alive and the defense could contest it, even if the practice is frowned upon). The defense's only hope in this situation is to somehow get a turnover; taking a knee is designed to avoid that risk by only snapping the ball to the quarterback and not having a handoff or other exchange that may go wrong.

Taking a knee shares all four features of the infield fly: 1) the offensive team is not trying do what we ordinarily expect--move the football forward--and is intentionally losing a couple of yards in exchange for running out the clock and avoiding the risk of a turnover; 2) the offensive team gains a substantial benefit (time runs off the clock, no turnover), imposes a substantial cost on the defensive team (time running out, no opportunity to make a play), and offers no benefit at all to the defensive team; 3) the offensive team entirely controls the situation; and 4) the defensive team can do nothing to stop the kneeldown and the running of the clock (it could try to be aggressive on the snap and force a turnover, but, again, that is frowned upon).

If the kneeldown does contain all four features, it means that I am wrong about the uniqueness of the infield fly. The question is what to do; here are some options:

1)  Eliminate the Infield Fly Rule. If the situation is not unique and if there are similar situations that do not enjoy a special rule, maybe (as a number of readers have argued to me) that special rule is unwarranted here. I like the IFR, so this is the least acceptable option for me.

2) Outlaw taking a knee. My colleague Alex Pearl suggests a requirement that a team at least make an effort to move the ball forward, even if just by a quarterback sneak; by keeping the play truly live, it gives the defense a chance to force a turnover or otherwise make a play. The problem is that this adds more plays in which players are going to be hitting one another; given the genuine need to do something concussions and other injuries, the sport should not be looking for more hitting. Plus, such a rule requires a tricky determination of intent--how hard does the team have to try to move forward, since lots of plays go nowhere.

3) Recognize the effect of the clock in a timed sport such as football, as opposed to baseball. Football is not all or always about gaining the maximum yardage; in many situations a team runs plays that are likely to gain less yardage, but with the benefit of winding down the clock and bringing them closer to the end of the game and the win. In taking a knee, the offensive teams loses yards but gains in time. In other words, we're tweaking how we understand what a team ordinarily is expected to do on a play; it is not only about gaining yardage, but also about managing the clock. The response is that running a play still is different than taking a knee because of prong 4--the ability of the defense to oppose the kneeldown. So running out the clock by simply handing the ball off and running into the line is OK because teams are still running true plays, trying to gain yardage, and the defense has a real chance to force a mistake. But simply taking a knee is different.

4) Adjust my four features to add a fifth--the game must still be genuinely contested. A team takes a knee only when the outcome is, at least as a practical matter, no longer in dispute.

Thoughts?

Posted by Howard Wasserman on November 17, 2012 at 09:31 AM in Howard Wasserman, Sports | Permalink | Comments (9) | TrackBack

Sunday, November 11, 2012

Catalyzing Sports Fans (and the Rest of Us)--early draft now available

I'm happy to say that my co-authors Howard Wasserman, Michael McCann, and I have a short shitty first draft to read -- Catalyzing Sports Fans (and the Rest of Us) -- if anyone's interested. The paper is *not* about retributive justice in any dimension. It's about sports, free speech, contracts, taxes, crowds, opera, charity, and jurisdictional competition, etc. In short, it's about nothing I know anything about. So I hope you'll see fit to set me straight. Let me know via email if you'd like to read an early version please. I've pasted our working abstract below.

In most major professional sports, the desires of fans are of secondary significance. We think this could be different, and we offer two variations on a theme in which fans can be more influential stakeholders, particularly with respect to player trades or retention deals. We propose the development of Fan Action Committees (FACs). 

 Whether through enriching players directly, or through contributions to a player’s foundation or favorite charitable cause (our preferred approach), we examine the uneasy case for FACs. After anticipating objections and obstacles under current rules to their development, we offer some reflections about how the FAC model can transform, well, just about all other realms of human endeavor where third parties are benefited or harmed by agreements between two other parties. 

 

Posted by Dan Markel on November 11, 2012 at 04:55 PM in Article Spotlight, Culture, First Amendment, Sports | Permalink | Comments (0) | TrackBack

Friday, October 26, 2012

Sports Law in Malibu

It is my pleasure to announce that the Pepperdine Law Review will host a Sports Law symposium on Friday, April 5th, 2013.  The event, titled The New Normal in College Sports: Realigned and Reckoning, will take an in-depth look at various issues in the ever-evolving world of college sports.  The current schedule of distinguished panelists reflects a wide-range of expertise, such as:  scholars Michael McCann, Matt Mitten, Daniel Lazaroff and others (including little 'ole me); broadcast professionals Andrew Brandt and my own colleague Roger Cossack; and other panelists with unique NCAA  and conference leadership perspectives such as Brian Halloran and Britt Banowsky.  If that's not enough, I submit for your consideration a link to the historic, average temperature in Malibu on April 5th.   Have a wonderful weekend, and I'll see you in April!

Posted by Babette Boliek on October 26, 2012 at 01:30 PM in Sports | Permalink | Comments (1) | TrackBack

Wednesday, October 24, 2012

Sore Winner

Recently I've been researching the antitrust and communications law issues posed by various league sports' broadcast contracts (that's broadcast with a little "b" for you telecom wonks (and you know I say that with affection)).  One of the more interesting developments in the arena is the birth of the  University of Texas' Longhorn Network (LHN).  LHN provides hook 'em viewers total access to all things Longhorn, including team practices and interviews with coaches. 

LHN is managed and delivered to distributors by ESPN.  In exchange for content, ESPN will pay UT $300 million over twenty years.  Now since the academy may just be the last place where that's still considered real money; it was with a bit of disbelief that I read an article in which Longhorn coach, Mack Brown, listed some "first world problems" LHN was causing him.  Here are some brief excerpts:

[Problem 1, the opponents]:  "We know they (opponents) have it for a fact," Brown said.  "Lots of them do. And people are taping it across the country and sending it to the coach if they don't have it in their area. . . . "It's in Waco.  Baylor sees every practice.  So it's not like it used to be.  We're a little overexposed." [ed. note - the LH's only transmit the exercise portion of their practices, not the actual plays].

[Problem 2, the time commitment]:  Brown said he's spending six hours a week minimum preparing, participating or traveling to the studio for shows that air on LHN.  [As Brown says] ,"And I do have three shows over there that take you 20 minutes to get there and 20 minutes to get back and an hour to do them.  So there's no question it takes away some of your time."

At first I thought Mack sounded a bit like a whining 1L but I quickly abandoned that analogy as being unfair to 1Ls -- after all 1Ls pay us, Mack is paid millions.  If Mack feels he (or his staff) is now personally obligated to do more under the new regime I have just two words of advice: "contract modification."  But then again, I'm not a Longhorn follower--and I don't watch LHN--so I may be missing the wellspring of fear that the network will reveal team secrets and strategies so important $300 million is simply inadequate compensation.  If I am missing such a point, I have a strange suspicion you just may tell me about it.

Posted by Babette Boliek on October 24, 2012 at 05:00 PM in Current Affairs, Sports | Permalink | Comments (2) | TrackBack

Tuesday, October 23, 2012

Outsourcing NCAA enforcement

An excellent and thoughtful essay in The Atlantic from my friend and law school classmate Stephen Miller, arguing that the NCAA should charge an outside body with conducting major investigations and punishments. Steve is a former Scalia clerk and AUSA; his practice now includes representing athletes in NCAA proceedings. He also is a lifelong Kentucky fan, so he is personally familiar with the vagaries of NCAA enforcement.

This is an interesting take, especially if we begin from the premise that the NCAA is here to stay, that there is good reason to regulate intercollegiate athletics and the conduct of student-athletes (in terms of amateurism, academics, etc.), and that self-regulation, given the structure of college sports, is unworkable.

Posted by Howard Wasserman on October 23, 2012 at 05:57 PM in Current Affairs, Howard Wasserman, Sports | Permalink | Comments (0) | TrackBack

Wednesday, October 17, 2012

Today in sanctionable lawsuits

A New Orleans Saints fan named David Mancina has filed a putative class action against Roger Goodell and the NFL, alleging that Goodell and the league's suspension of Saints players entitles Mancina and other Saints fans to damages from (I am not making this up) "the diminishment in the value of their tickets; their personal emotional reaction to the unwarranted penalties inflicted on their beloved team, players, coaches, and executives; and the deliberate reduction of the competitive capability of the Saints due to the selective gutting of the critical components needed to justify the loyalty of Plaintiff and the class." And according to the complaint, he actually had counsel to do this.

The first, obvious response is they lack standing. But the defects in this go so far beyond that. This has to be sanctionable, and I am not someone who is big on sanctions. If one of my students turned this in in a drafting exercise, she would fail.

1) The Complaint does not identify any claim, that is any right or legal obligation to the plaintiffs that Goodell or the league breached on the facts at issue. They  just ask for damages to fully compensate them, but assert no legal rule that entitles them to recovery, but they assert no legal right to recover. We teach in Civ Pro that "he violated my rights" or "he injured me" is not sufficient in a complaint, even pre-Twiqbal. You never expect to actually see one of those.

2) The prayer for relief asks "that Defendants be duly cited to appear and answer this complaint and after due proceedings for judgment against The Commissioner and the League for damages to fully compensate Plaintiffs, and the Class, for damages, and all other general and equitable relief required in the premises." This is utter nonsense. His prayer for relief is that they be made to respond to the complaint.

3) The complaint asserts as one basis of jurisdiction § 1331, but no indication of how this is a civil action "arising under" federal law.

I am tempted to use this in class next semester, as a sample complaint showing what you absolutely shouldn't do. But this is almost so bad as to not be a good illustration of what is bad. Almost.

Posted by Howard Wasserman on October 17, 2012 at 09:31 AM in Civil Procedure, Howard Wasserman, Sports | Permalink | Comments (4) | TrackBack

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 iwantmylakers.com, 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.

Voices:

 

 

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.

Thoughts?

    *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.

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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

Technicalities

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

Modifiers

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

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

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

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

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

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

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

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

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

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

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

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

Cross-posted at Info/Law.

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