Wednesday, December 22, 2021

It's not just baseball

A New York Magazine story on Yeshiva men's basketball, which is ranked # 1 in the nation in D-III, has won 50 straight games dating back three seasons, and is blowing teams out. The undefeated Maccabees reached the D-III Sweet 16 when the tournament shut down in March 2020. They played only seven games last year before the season shut down. It is a great what-if for the school that COVID upended what could have been an historic run.

Ryan Turrell is the team's star, a mid-to-mid-major D-I talent who went to Yeshiva because he did not believe he could reconcile his Jewish practices with playing D-I basketball. Turrell hopes to be the first Orthodox Jewish player in the NBA and the counterpart to two young Orthodox baseball players (one in the minors, one playing at Wake). Lost in the story is perspective on whether Turrell's talents translate to the next level. There are no D-III grads in the NBA; the closest is Miami Heat guard Duncan Robinson, who began his career at D-III Williams, but transferred to Michigan after a freshman season in which he earned All-America honors. Turrell's lone D-I commitment was to Army, which is not a typical path to the NBA (David Robinson does not count--he grew six inches between 12th grade and 2d year at Navy). The likely make-or-break for Turrell is whether he is a good enough shooter.

Fun times.

Posted by Howard Wasserman on December 22, 2021 at 11:40 AM in Howard Wasserman, Religion, Sports | Permalink | Comments (0)

Tuesday, December 14, 2021

Fake slides and the infield fly rule (Updated and Moved to top) (Twice)

I defend the infield fly rule as a response to sporting situations defined by four features: 1) A player acts contrary to athletic expectations; 2) that player gains an extraordinary, unique, and inequitable benefit; 3) that player exercises exclusive control over the play; and 4) the combination of ## 2 and 3 gives a player the perverse incentive to try # 1. The IFR responds by limiting # 1 to avoid the overwhelming cost-benefit advantage. (The IFR achieves this by calling the batter out and eliminating the force on the runners, thereby eliminating the cost-benefit advantage and thus the perverse incentive). A key to the defense is showing that the IFR situation is not unique--that similar problems arise in baseball and other sports and those sports respond to the problem with limiting rules similar to the IFR.

A new example comes from Saturday's ACC Championship between Pitt and Wake Forest. Pitt QB Kenny Pickett scrambled out of the pocket and ran upfield. After almost 20 yards and with two defenders closing in, Pickett slowed and begin to slide to the ground, only to stutter step, remain upright, and continue running for a 58-yard touchdown (video embedded in link). When a QB slides to the ground feet-first, defenders cannot touch him; the rule--instituted in the NFL in 1985 and the NCAA in 2016--is designed to protect quarterbacks.

How does this break out:

    1) Pickett acted contrary to the game's expectations, which are that quarterbacks slide in that situation. The health and safety considerations are built into the game's rules and expectations.

    2) Pickett gained an extraordinary benefit. When he pretended to start his slide, the defenders had to stop; when he continued running, it was too late for them to react.

    3) Pickett controlled the players and the defenders can do nothing to stop it. Pickett knew what he was going to do, but the defenders did not. The defenders had to stop chasing when they saw him begin sliding. If they continued moving, he actually slid, and they hit him, it would have been an unnecessary-roughness penalty (and perhaps a targeting ejection, if one of them unintentionally hit the sliding Pickett in the head). But once they stopped, it was impossible to start again when Pickett continued running. And Pickett knew this--he took advantage of a rule that prohibits defenders from hitting him.

    4) Quarterbacks have a perverse incentive to try this move, at least if willing to take a hit. At worst, they actually slide and get hit, gaining an extra 15 yards. At best, they can run upfield without fear of getting hit. Wake Forest Coach Dave Clawson suggested he would tell his QB to "fake knee" all the way down the field.

Pickett's play was not against the rules, but Clawson called for a rule change to prevent such fake slides. This would be a limiting rule a la the IFR. The question is what the rule would look like. The official could whistle the play dead when the QB looks like he is giving himself up. Or the move could be penalized, depriving the QB of the benefit of the fake and eliminating any yardage gained prior to the fake. Only the second deters the effort. Under the first, a QB might hope he can fool the official into not blowing the play dead, knowing that it is costless to try. Under the second, the QB loses something if he tries it and fails.  A new rule may not be necessary. Football has a foul for "palpably unfair acts," a discretionary catch-all unsportsmanlike penalty. Examples include players running off the sideline to make tackles and intentional blatant holding penalties to waste time on the clock. Perhaps it covers this sort of deception of a helpless defender.

Update, 12/11: The NCAA came through, ruling: "[A]ny time a ball carrier begins, simulates, or fakes a feet-first slide, the ball should be declared dead by on the field officials at that point."

Second Update, 12/14: A friend asks how the fake slide differs from Dan Marino's 1994 fake spike, when Marino faked that he was spiking the ball at the goal line with time running out, then pull the ball back and threw a touchdown pass. A good question. The difference goes to the defense's ability to counter the fake. The rules allow the defense to keep playing when the QB spikes (or appears to spike) the ball--if a player could move that far that fast, a lineman could sack a QB trying to spike the ball. The Jets defense infamously was fooled and gave up on the play, allowing the TD. But the rules did not require them to do that--they could have avoided that fake by not falling for the fake. By contrast, the fake slide forces the defenders to stop playing because they cannot hit the QB who appears to be giving himself up and cannot even come close; when Pickett continued running, the defenders could not respond quickly enough to the play unexpectedly continuing.

There is, as my friend argued, a "family resemblance" between the plays. But this shows the importance of the four features of the play, all of which must be present for the play to raise problems. Eliminating one eliminates the extraordinary cost-benefit imbalance that requires limiting rules. Rulemakers still may not like and seek to eliminate the play. They are not facing a fundamentally unfair situation.

Third Update, 12/15: Another reader makes the point that Marino did not really fake the spike. Everyone assumed he was going to spike it and the defense stopped playing, but he did not really try very hard to sell the fake. Which reenforces my original point--the defense could control this play and failed to do so. No need for special rules to protect them.

Posted by Howard Wasserman on December 14, 2021 at 10:31 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Friday, November 12, 2021

Four-Jew World Series after all

I am ashamed to say I missed this when it happened--it turns out we had our four-Jew World Series. Garrett Stubbs of the Astros, the team's third-string catcher, was placed on the active roster for Games 4, 5, and 6 when the back-up went into COVID protocols. That made this the first World Series with four Jewish players on active rosters. And Game 6 was the first Series game to feature four Jewish players when Stubbs caught the ninth inning. Unfortunately, Joc Pederson had been lifted for defense in the eighth and Max Fried had been taken out in the seventh, so the four were not in the game at the same time.

My apologies for not being on top of these historic events.

Posted by Howard Wasserman on November 12, 2021 at 05:44 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Monday, November 01, 2021

The most-Jewish World Series has not been good for the Jews (at least so far) (Update)

As we head back to Houston with the Braves leading 3-2, it has not been a good series for The Tribe.

• Alex Bregman has two hits in 18 at-bats and has struck out five times. He was moved from third to seventh in the line-up for Game 5. He drove in the Astros first run in Game 5 with a second-inning double, although he failed to come through with the bases loaded and with a runner on second later in the game.

• Joc Pederson has one hit in 11 at-bats and has struck out three times. He did not start two of three games in Atlanta (played without a DH). He pinch-hit as they tying run in the bottom of the sixth, but popped out in foul territory to third. The defense was shifted, so the play required a long running catch--by Bregman.

• Max Fried took the loss for the Braves in Game 2, giving up six runs on seven hits in five innings. Reports on the game say he did not get hit hard, but everything the Astros hit found a hole. He has a chance to redeem the Series for Am Yisrael when he starts a potentially clinching Game 6 on Tuesday. Here's hoping.

Update, Nov. 3: The Brave won the Series in six games. Fried was the star of Game 6. He pitched six shutout innings, giving up four hits (none particularly hard hit) and striking out six on 74 pitches. He got Bregman (again batting seventh) twice--a strikeout in the fifth (a bad call-the pitch was low) and a foul fly to right in the first that was caught by Pederson on a nice play. Pederson was 0-for-4 and Bregman 0-for-3, making them a combined 3-for-36 for the Series. Pederson did become the ninth player--and first Jewish player, obviously--to win consecutive World Series with different teams.

Two more historic points. First, Fried became the fourth Jewish pitcher to win a Series-clincing game, after Larry Sherry ('59 Dodgers), Koufax ('63 and '65 Dodgers), and Holtzman ('73). Second, people are calling Bregman's flyout the most Jewish play in World Series history--Jewish pitcher, Jewish hitter, Jewish fielder credited with the putout.

Posted by Howard Wasserman on November 1, 2021 at 09:09 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Saturday, October 30, 2021

Conversion and Jews in sports

Those of us who care about Jews in sports wield a broad definition of Jewish--basically anyone with a Jewish parent, maybe even a Jewish grandparent, and anyone who converted before or during his playing career (e.g., 1970s outfielder Elliot Maddox). But what about players who convert in retirement? Should we regard them as retroactively Jewish, so that their sports achievements and records become part of the record for "Jews in Sports?" Can we count a player's statistics and records accrued when he was not Jewish when accruing them? Can a player who was not when playing be named to the All-Time Jewish team after the fact?

I wrote recently that this is the second three-Jew World Series and that Max Fried pitching to Alex Bregman in the first inning of Game 2 was the first time a Jewish pitcher faced a Jewish hitter in the Series. Readers have challenged both points. On the first, a reader pointed out that the A's had three Jewish players in the 1972 Series--Ken Holtzman, Mike Epstein, and pitcher Joe Horlen. On the second, a reader said (which I had known) that Holtzman faced Dodgers catcher Steve Yeager in the 1974 Series, Yeager going 1-for-3 with a double and a strikeout.

Horlen and Yeager converted in retirement when each married a Jewish woman. So neither qualified as a Jewish player at the time. Anyone looking at A's roster during the '72 Series would have identified two Jewish players--who went by the nicknames of "Ordinary Jew" and "Super Jew," respectively. Holtzman pitching to Steve Yeager in 1974 was no different from a Jewish standpoint than Holtzman pitching to Steve Garvey.*

[*] I have danced around the question with Yeager in wondering whether to count his four home runs and Series MVP in 1981 and in not including him in my Yom Kippur study because he would have had no reason or impulse not to play on those days.

But should it be? Judaism speaks of conversion as the person "coming home." The person did not change, in that her soul or spirit has always been Jewish and one of the Jewish people who received Torah at Sinai. He is the same person, returning to the fold. The Talmud also discusses retroactivity in designation or impurity of items. How should that apply in who we recognize as Jewish and how we honor and recognize individual achievements? Maybe I will come back to this next Shavuot.

Posted by Howard Wasserman on October 30, 2021 at 11:09 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Friday, October 29, 2021

Nikolai Yezhov, the Chicago Blackhawks, and the historical record (Updated)

Update, Nov. 3: The Hall removed Aldrich's name. An utterly cheap move that makes the Blackhawks feel good about themselves while doing absolutely nothing for anyone.

I have not written about the ongoing fallout in the NHL from the Chicago Blackhawks' failure to punish an assistant coach, Brad Aldrich, who sexually assaulted and harassed one player (who has identified himself as former prospect Kyle Beach) and harassed another during the team's 2010 Stanley Cup run. This offers a great summary. I am not  a hockey fan and have not had anything to add, other than that Reid Schar, the Jenner & Block partner who led the investigation, is a law school classmate.

But I had to respond to this morally bankrupt attempt to "make amends:" Blackhawks owner Rocky Wirtz wants the Hockey Hall of Fame to remove Aldrich's name from the Stanley Cup (the names of every player and other person from a champion is engraved on the Cup). Here are the major points of Wirtz's argument:

    • "[I]t was a mistake to submit his name. We are sorry we allowed it to happen."

    • "While nothing can undo what he did, leaving his name on the most prestigious trophy in sports seems profoundly wrong."

    • Citing precedent: The Hall removing from the 1983-84 champion Edmonton Oilers the name Basil Pocklington, father of team owner Pete Pocklington, because Basil played no role on the team (other than, I suppose, siring Pete decades earlier).

    • "Principle and our moral belief that a convicted sex offender does not belong on the Stanley Cup."

I will be outraged if the Hall grants Wirtz's request. Frankly, Wirtz should be ashamed for making the request (although he will not be, just as I question how ashamed he is of this entire mess, beyond how it affects his hockey team).

As a starting point, I do not like ex post punishments that excise the historical record. I do not like it when the NCAA strips wins, records, and championships from programs, coaches, and players. Regardless of whether they broke some rules (e.g., Michigan's Fab Five or Pete Rose), ignored predatory off-field behavior (e.g., Joe Paterno), or were generally bad people during or after their careers (e.g., Curt Schilling but probably many others), they built a real-life historical record and retaining that record matters. Sanctions for misconduct should not entail falsifying what happened in real-life events. I oppose putting Pete Rose in the Hall of Fame and am mostly agnostic about putting Barry Bonds, Roger Clemens, etc. in the Hall; I would object to MLB removing Rose's name from atop the list for career hits or Bonds's name from atop the list of home runs in a season. Each accomplished something in the real world that we record; we cannot eliminate a previously acknowledged role in documented real-world events, like erasing Nikolai Yezhov from a photograph.

But context makes Wirtz's request worse than the usual effort to purge history. The Blackhawks' misdeed was that team leadership failed to take action against Aldrich for more than three week after receiving what they deemed a credible and confirmed report of the assault and harassment; they did nothing against Aldrich for almost four weeks, until after they won the championship (during the celebration of which Aldrich reportedly made a sexual advance on a team intern). The reason team officials did nothing was because they did not want the dreaded "distraction" and harm to "team chemistry" in the midst of a Cup run. Michael Baumann at The Ringer exposes the idiocy of believing the team would have descended into chaos had it suspended its video coordinator. That aside, the Blackhawks' official position, borne by the actions of its top officials, was that Aldrich was essential to their championship and the team could not succeed without him. It therefore cannot rewrite history by erasing contributions that the team believed at the time were so essential to its success that leaders no choice but to overlook credible allegations of sexual assault for a month.

The team's position at the time makes the lone cited instance of erasing a name worthless as support. The Oilers should not have included Basil Pocklington in the first instance, because he played no role in the team or its championship. That is not the case with Aldrich, or so the team's actions in 2010 would have us believe. The argument that removing his name remedies an original mistake also fails. The Blackhawks won the Cup on June 10 and notified H.R. about the accusation on June 14; on June 16, H.R. gave Aldrich a choice of resigning or submitting to an investigation and he chose the latter. From the Blackhawks' standpoint, the situation was resolved--the wrongdoer was no longer with the team. I do not know when the team provided the list of names to the Cup engravers, but either undermines the "it was a mistake to submit his name" narrative. If they sent the list prior to Aldrich resigning on June 16, it was not a mistake, because Aldrich was still a team employee and still part of the championship. If they sent the list after Aldrich resigned on June 16, the immediate inference is that it was not a mistake, but was intended not to continue to avoid calling attention to Aldrich's (and the team's) misconduct by including his name on the cup but being rid of him going forward.

Wirtz's argument is immoral on its own terms. He cites his moral belief that a "convicted sex offender" does not belong on the Cup. But the Blackhawks' wrongdoing--for which this move is supposed to be penance--has nothing to do with the criminal conviction. Aldrich was convicted three years later of sexual assault involving a minor in a subsequent coaching job, having nothing to do with the Blackhawks or the assault of Beach in 2010. (The attenuated connection is that the Blackhawks' failure to sanction Aldrich and to attempt to stop him from getting other coaching jobs allowed him to get the high-school coaching job that gave him access to that later victim). But then Wirtz is not making this request because of Kyle Beach. Imagine everything unfolded as it did except Aldrich was never convicted on that later, unrelated offense. There would be no "convicted sex offender" with his name on the Stanley Cup; Wirtz's principle and moral belief would not apply to this situation or require Aldrich's name be removed solely for the assault on Kyle Beach for which he was not convicted. Maybe that is not what Wirtz intended to say. But that is the logical conclusion from his words.

Finally, Wirtz's request is, at bottom, selfish. Removing the name does not sanction Aldrich in any meaningful sense--he has larger concerns than whether his name is one of thousands on a metal cup in a museum. It does not benefit Beach. Accepting that Beach is injured by Aldrich reaping the rewards of being associate with a championship team, he watched Aldrich reap those immediate rewards in 2010--celebrating with the team in the moment, spending a day with the trophy (the greatest tradition in sports), and receiving a playoff bonus as part of his severance.

This move benefits the Blackhawks, but no one else. It allows them to erase from the historical record any connection between Aldrich and that championship team. Future generations who look at the piece of the Stanley Cup dedicated to the 2010 Blackhawks will not see the name "Brad Aldrich," so no one will ask who Brad Aldrich is and no one from the Blackhawks will have to explain that he was an assistant coach who was allowed to continue coaching after the team learned and believed he had sexually assaulted a player. The opposite should occur--the historical record should capture Brad Aldrich's connection to the Blackhawks and it should remain a written stain on the team and that season.

Posted by Howard Wasserman on October 29, 2021 at 05:33 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Thursday, October 28, 2021

Jewish showdown in the World Series

I was unable to watch Game 2 on Wednesday (ironically enough because of a Temple meeting). The Astros rocked Max Fried for five runs in the first two innings and six overall (Fried's second straight poor outing after being unhittable since August) in a 7-2 win to even the Series.

As predicted, the first Jewish pitcher v. Jewish hitter showdown in a World Series came when Alex Bregman came to bat with one out and a runner on third in the bottom of the first. He hit a sacrifice fly, which is kind of Solomonic in terms of which Jewish player prevailed in the showdown--Fried got Bregman out, but Bregman drove in a run to give the Astros an early lead. Fried retired Bregman two more times, including a fifth-inning strikeout.

Overall for the Series, Bregman is 0-for-7 with three strikeouts, while Joc Pederson is 1-for-8 and struck out three times in Game 2. With Fried's Game 2 loss, this is not going well so far. But, hey, it took 40 years to reach the Promised Land.

Posted by Howard Wasserman on October 28, 2021 at 12:23 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Monday, October 25, 2021

Welcome to the Velt Serye

In The Forward, as we prepare for the most Jewish World Series in history, talking about Jews playing rather than sitting out. Max Fried's expected Game 2 start, in which Joc Pederson should be the Braves DH and Alex Bregman will bat third for the Astros, is the one to watch.

Update: Should we be concerned that this most-Jewish Series pits ethically compromised teams? Well, if our comparator is 1959 (the prior 3-Jew Series), it is worth noting that the Go-Go Sox stole signs. Their general manager, who knew? Hank Greenberg. Turns ourt some of Greenberg's championship teams in Detroit also stole signs.

Addendum: Garrett Stubbs, the Astros' third-string catcher, is not on the World Series roster. So that leaves us with three Jews on rosters, matching 1959, but all will play.

Posted by Howard Wasserman on October 25, 2021 at 01:08 PM in Article Spotlight, Howard Wasserman, Religion, Sports | Permalink | Comments (0)

Tuesday, October 12, 2021

Perverse incentives and sports rules

Many sports rules are about eliminating perverse incentives--to keep a team from intentionally doing something contrary to the game's ordinary expectations, where doing so offers an unexpected benefit. That is the basic idea behind the Infield Fly Rule and its cousin the dropped-third-strike rule.

Watch replays of the bizarre ground-rule double that denies the Rays a run in Sunday night's Game 3 loss to the Red Sox (the Sox clinched in four on Monday night). The ball hit the top of the right-field wall and back into the field, bounced off the right-fielder and back into the stands. The umpires correctly ruled it a ground-rule double; two rules discuss a fair ball deflecting off a fielder and out of play. The right-fielder did not intentionally knock the ball into the stands, which would have triggered a different rule. At the same time, he did not try that hard to keep it from going into the stands. Watching the replay, he reaches out to grab the ball as it is heading over the wall, then seems to pull his glove back. It may be that his body was against the wall and he could not reach further without going over.

Back to perverse incentives: Perverse incentives to do what--Intentionally knock the ball into the stands or to not try too hard to keep the ball in play. The rules address the former. But they do not address the latter, which can work to a team's advantage. While this play was unusual (few stadiums have 6' outfield fences), the incentive is not. This happens a fair bit at Wrigley Field; a ball that sticks in the ivy on the outfield fence is governed by the same rule and we often see players ease up on a ball that is clearly going into the plants or where the ball and player reach the wall at the same time. There may be nothing the rules can do. It is hard enough to determine player intent. It would be impossible to determine that a player did not try hard enough to prevent something unintentional from happening. There is some talk that baseball should change the rule to award two bases from where the runners are when the ball leaves the field, which is the rule if the player intentionally deflects the ball into the stands. Baseball might be able to carve out deflections from balls traveling on their own. But umpires like clear rules, so the push to change it may not get very far.

Finally, a lawyering lesson. On Sunday, Rays manager Kevin Cash argued that the runner should have been allowed to score, given how the ball was hit, that he was running on the pitch, and that he would have scored had the ball remained in play. But it was pointed out that in a 2019 regular-season game against the Blue Jays, a Rays outfield lost control of a ball and the ball went into the stands; Cash argued that it was a ground-rule double and that the baserunner, who would have scored on the play, had to return to third. You argue the interpretation that works for your client.

Posted by Howard Wasserman on October 12, 2021 at 11:14 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Monday, October 04, 2021

A Jewish post-season (Updated)

As baseball's post-season begins, my side interest will include following the Jewish players competing for a championship. No concerns for missing holy days this year, since they have passed. There is a greater risk that if play continues too far into November it will run into Chanukah, which begins on November 28.

We have: Pitcher Max Fried and outfielder Joc Pederson of the Braves; third-baseman Alex Bregman (who at this point must be closing on the record for post-season games by a Jewish player) and backup catcher Garrett Stubbs of the Astros; and Rowdy Tellez of the Brewers, activated off the IL. The unknown is pitcher Ryan Sherriff of the Rays, who is one of several lefty relievers from whom the team will choose. [Update: Sherriff is not on the Rays' roster for the ALDS, although there is a chance he could be for later series if they advance]

A Braves-Astros World Series (possible but unlikely--the Braves won a weak division and have the worst record of the six NL post-season teams) would produce the first four-Jew Series.

Posted by Howard Wasserman on October 4, 2021 at 04:31 PM in Sports | Permalink | Comments (0)

Sunday, September 12, 2021

Sports nomenclature

Novak Djokovic lost in the finals of the U.S. Open today, ending his attempt to complete the first Grand Slam by a male player since Rod Laver in 1969 and by any player since Steffi Graf in 1988.

Much of the writing about this will describe Djokovic as missing the "Calendar-Year Grand Slam," a qualifier distinguishing what became known as a "Serena Slam" in which a player holds the four titles at the same time measured from some arbitrary point in time. For example, a player wins Wimbledon and the U.S. Open in Year One and the Australian and French Opens in Year Two; measured during the month between French and Wimbledon in Year Two, that player has won a "Slam" over the last 12 months.

This is stupid. Had Djokovic won, he would have captured a Grand Slam, unmodified and unqualified. The Serena Slam is not a thing and we should not mention it. A Serena Slam is equivalent to saying a baseball player who hit 37 home runs in the last 81 games of Year One and 37 home runs in the first 81 games of Year Two holds the record by hitting 74 homers in 162 games (the length of a season). Or a hockey player who scored 46 goals in the final 41 games of Year One and 47 goals in the first 41 games of Year Two holds the record by scoring 93 goals in in 82 games (the length of a season). Season records are measured in a season, not the number of games that comprise a season, measured from arbitrary points over multiple seasons.

Tennis has a season that follows a calendar year and contains four Grand Slam tournaments in order. It begins in January leading to the first Slam tournament in Australia in late January and ends in November with round-robin tournaments featuring the eight best men (played in Italy) and women (played in China), two months after the fourth and final Slam event in New York. If winning the four tournaments is a thing, it must be within that "season," meaning a calendar year. Anything else looks like an attempt to create a special achievement when the real achievement proved too rare.

Posted by Howard Wasserman on September 12, 2021 at 07:36 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Tuesday, August 31, 2021

Understanding cheering speech

From Will Leitch at New York Magazine, on Mets players "booing" fans (through a thumbs-down) following a good play in reaction to fans booing players for, well, being the Mets. Leitch makes an interesting point about the psychology of the three actors involved--fans, players, and management. Fans boo the team as opposed to individual players (sometimes, at least--I think a lot of booing is more directed than Will does). "The team" is players and the management that built the team (recall the old Seinfeld joke that sports fandom means rooting for the shirt a player wears). But management sides with the fans against the players, leaving the players to personally bear the brunt of negative fan expression. When fans  turn their speech to ownership and management, they often are removed or have signs confiscated (to stay in New York, numerous Knicks fans were removed or had signs confiscated for criticizing fail-son owner James Dolan).

Update: A different take from Michael Baumann at The Ringer. Baumann makes a point that ties back to politics. He writes: "[P]art and parcel of loving something is—or at least should be—criticizing it when it goes off the rails. Unceasing positivity in defiance of fact isn’t love or support, it’s Stockholm syndrome." While that is true in sports, it has ceased to be true in politics, as Tom Nichols argues to the point of exhaustion. Neither side will tolerate criticism or acknowledge mistakes by their "side" or their "guys." In part, this is because the other side can and does weaponize internal criticism. My thinking or saying that the Cubs suck does not affect how the Cubs perform. My thinking or saying that Biden screwed up the Afghanistan withdrawal or the eviction moratorium affects media coverage and the political narrative, which then affects whether my guy or my side wins the next election. It is not healthy, but it is explicable.

Posted by Howard Wasserman on August 31, 2021 at 11:29 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)

Why playing baseball on Yom Kippur matters

My new essay in The Forward explores why we care about playing baseball on Yom Kippur more than we care about playing on other, arguably more important, days on the Hebrew Calendar. This began life as part of my empirical study of Jews playing on Yom Kippur; it was removed for length and I decided to break it out as stand-alone piece for a non-academic audience.

Posted by Howard Wasserman on August 31, 2021 at 09:31 AM in Howard Wasserman, Religion, Sports | Permalink | Comments (0)

Tuesday, August 03, 2021

FIFA as state actor and other bad arguments

Another entry in the "Bad § 1983 Takes" File: Siasia v. FIFA in the Southern District of New York. Samson Siasia is a U.S. citizen and international soccer coach who got caught up with a match-fixer while trying to land a coaching job in Australia; FIFA imposed a lifetime ban from coaching, which the Court for Arbitration of Sport in June reduced to five years, backdated to 2019. The Complaint alleges a due process violation in the FIFA proceedings and that FIFA acted under color by performing the traditional and exclusive government function of investigating and adjudicating bribery and imposing a sanction (the complain says "punishment" over and over).

This fails on so many levels.

First, FIFA is a Swiss association with its PPB in Switzerland, so it does not seem possible for it to act under color of the law of any state of the United States; it does not act in or as a replacement for any one state. The U.S. Soccer Federation is one of the 200+ national federations that comprise FIFA, providing a U.S. hook. But USSF is not a defendant (and was not involved in the Siasia case). Getting at FIFA through USSF runs afoul of Tarkanian v. NCAA, where SCOTUS said the NCAA did not act under color of law of any state when it was comprised of schools from multiple states.

Second, private entities can make internal decisions concerning the enforcement administration of internal rules, including by investigating alleged violations and rendering decisions through adjudicative processes. Sometimes the conduct violating those internal rules also violates a society's criminal laws. A private entity does not become a state actor when enforcing its internal rules and imposing internal sanctions, where it imposes no societal consequences (conviction and imprisonment). If it did, no private organization could maintain and enforce internal rules for conduct that also could be criminal. Under this theory, MLB is a state actor with respect to the investigation and suspension of Dodgers pitcher Trevor Bauer for sexual assault, because sexual assault is a crime.

The Complaint argues that FIFA should have followed the NCAA as to former basketball coach Lamont Evans. Having received information that Evans was accepting bribes to route players towards certain financial advisers, the NCAA turned the information to the federal government, which prosecuted Evans. The NCAA punished Evans with a 10-year ban after Evans had been convicted and sentenced in the federal criminal proceeding. But the distinction is incoherent, at least as it affects becoming a state actor. The NCAA cooperated with the government to allow it to prosecute and jail the person, something FIFA chose not to do. But the NCAA and FIFA otherwise engaged in identical conduct--imposing internal sanctions on someone for conduct that also violated a criminal law. The decision to also assist the government in having the person convicted and jailed should not affect the nature of the organization's internal proceedings and thus of the organization.

Alternatively, the argument means that a private entity cannot enforce internal rules and impose internal sanctions if the government declines to press criminal charges or if the person is acquitted. This has never been how the law requires private organizations to operate.

Third, I am not sure FIFA is subject to the 14th Amendment (or the 5th Amendment, as the complaint also cites for no reason) or to U.S. due process requirements for proceedings in Switzerland, even as they apply to a U.S. citizen. A U.S. citizen subject to foreign proceedings must abide by the rules of the foreign proceeding. At best, he might limit the domestic effects of those proceedings.

State action aside, there are some fun jurisdiction and venue issues here. Siasia is a Georgia citizen, while FIFA is a Swiss citizen. The Complaint alleges that venue is proper in the Southern District because FIFA is "an alien corporation and has significant contact in this District and is currently organizing the 2026 FIFA World Cup in this District." The Complaint does not cite the correct provision, but I believe it is basing venue on § 1391(b)(1) (where any defendant resides) as developed in (c)(2) (association resides where it is subject to personal jurisdiction) and (d) (in states with multiple districts, determine jurisdiction in the district as if it were a state).

Is FIFA subject to personal jurisdiction in the Southern District as if it were a state? The "significant contacts" language sounds in the pre-Daimler/pre-Good Year general jurisdiction, which no longer exists; FIFA is neither created in nor has its PPB in the Southern District, so is not subject to general jurisdiction there. Organizing the 2026 World Cup in the Southern District* and other contacts with the district have nothing to do with Siasia or his suspension, at least as indicated in the complaint; the complaint does not allege that anything related to Siasia occurred in New York or the Southern District. The Court of Arbitration for Sport has a location in New York City, so that might have been where Siasia appealed the FIFA decision; the complaint does not say. I doubt that is enough, since the alleged violation is the FIFA proceeding, not Siasia's partially successful appeal.

[*] A separate question is whether the 2026 World Cup will be in the Southern District as to be a contact. One of the eleven U.S. cities under consideration is "New York/New Jersey." Games would be played at Met Life Stadium in New Jersey (in a different district), although FIFA will pitch people to stay in and visit New York while in town for the games. What is the relevant place for jurisdiction based on FIFA's "organizing" activities--where the game is played or all the places that fans and teams will use?

Based on the complaint, there is specific jurisdiction in Georgia under Walden and Calder. The emails that formed the basis for the alleged bribery were sent to Siasia while he lived in Georgia. The emails notifying Siasia of the charges against him (which he alleges he never received, part of the due process violation) and of his sanctions were sent to his emails in Georgia. FIFA investigated a Georgia citizen about actions taken in Georgia, thereby directing its actions at Georgia. Because Siasia is an Atlanta citizen, venue is proper in the Northern District of Georgia.

Even if SDNY is proper, there is a good argument that NDGa is better and a § 1404(a) transfer is in order. Siasia does not reside in SDNY, so he cannot claim venue privilege. The relevant acts as to Siasia, to the extent they occurred in the United States, took place in NDGa, which is where the one relevant witness--Siasia--is located. Other than Siasia's lawyer being from Connecticut and barred in SDNY, I am not sure why the suit was filed there.

Alternatively, FIFA could try to get the case out of the U.S. and to Switzerland on forum non conveniens grounds. FIFA's actions in initiating and holding the proceedings and suspending Siasia's license occurred in Switzerland, so that would be the situs of the actions and location of witnesses and evidence concerning the propriety of the proceedings.

Fun stuff.

Posted by Howard Wasserman on August 3, 2021 at 12:19 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Sports | Permalink | Comments (0)

Thursday, July 29, 2021

Putting racists in a bind

The new Olympic sport for the Crazy Coalition is rooting against the men's basketball and women's soccer teams ("too woke and anthem-kneeling") and Simone Biles ("weak," "selfish socipath," "shame to the country," not tough). The other sport is waiting for that "true champion  . . . who perseveres even when the competition gets tough." That true champion who reflects what makes America great and in whom real Americans can be proud.

Fortunately, they found someone to do what Biles could not in the Women's All-Around, someone strong whom these real Americans can get behind.

Or not.

Posted by Howard Wasserman on July 29, 2021 at 04:02 PM in Howard Wasserman, Sports | Permalink | Comments (2)

Monday, July 26, 2021

NBC has learned nothing

Bela Karolyi earned fame as the coach of U.S. gymnastics because of his outsized reactions to the athletes' performances, which NBC cameras showed and commentators discussed, elevating his profile above that of his female athletes. We now know what was going on behind the scenes.

Apparently, NBC has learned nothing. Australian swimmer Arirne Titmus won the 400-free style, beating American Katie Ledecky. NBC cameras showed, repeatedly, her coach, Dean Boxall, losing his shit celebrating Titmus' win from the stands. As with Karolyi and the gymnasts, cameras and announcers focused on his sideline histrionics more than the athlete. I am not suggesting that Boxall mistreats Titmus or other athletes or that his well-documented intensity crosses lines. But it is hard not to notice the parallel focus on the male coach with an intense personality over the female athlete.

Posted by Howard Wasserman on July 26, 2021 at 10:31 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Saturday, July 24, 2021

A cynical thought

The Olympic Opening Ceremony featured a moment of silence, with express reference to the eleven Israeli athletes killed at the 1972 Munich Games. This is the first official commemoration of Munich, despite lobbying for it in 2012 (the 40th anniversary) and 2016. The inclusion was not announced in advance. The linked article notes that ceremony's creative director was fired the previous day over a Holocaust joke he made 20 years ago, offering the cynical possibility that the acknowledgement was a response to that embarrassment.

I had a different cynical thought: The Opening Ceremony took place in an empty stadium, meaning there was no chance that a crowd would react to the commemoration with anti-Israel sentiment.

Posted by Howard Wasserman on July 24, 2021 at 10:33 AM in Sports | Permalink | Comments (0)

Monday, July 19, 2021

Bernstein on sport and speech

David Bernstein argues in Persuasion that sporting bodies should allow athletes to speak in non-disruptive ways around events, targeting the IOC, UEFA, and the NFL and considering players taking a knee, wearing expressive items on their uniforms, etc. Here is his key point:

No matter how much professional sports and sports fans may wish to separate sports from politics, it cannot be done. The debate re-emerges again and again with no resolution in sight, and you can bet it will kick into gear once the medal ceremonies start at the Tokyo Olympics.

So, rather than attempting to extricate itself from politics, sports should adopt a laissez-faire posture: Let everyone—owners, players, and fans—make political statements at sports matches.

I would supplement with the point I made last week after English fans heaped racist abuse on the three Black players who missed penalty kicks in the Euro finals: If fans are going to respond to sports in political terms, the athletes should be able to express themselves in political terms in the first place.

Posted by Howard Wasserman on July 19, 2021 at 08:47 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (3)

Sunday, July 18, 2021

Best Jewish teammates?

Joc Pederson was traded from the Cubs (as part of an impending firesale by a cheap-and-mismanaged organization) to the Braves, where he teams with lefty starter Max Fried. In their first game together last night, Pederson went 2-for-5 with a two-run homer and Fried struck out seven in seven shutout innings (and had three hits, raising his season average to .333).

Are Fried and Pederson the best pair of Jewish players on one team? What other teams have had two (or more) top-tier Jewish players at once? Going backwards in history:

    • Third-baseman Alex Bregman and catcher Garrett Stubbs have been teammates on the Astros for most of the past three seasons. Bregman is a star and MVP runner-up in 2019, but has been hurt much of the past two seasons. Stubbs is a back-up and rarely plays.

    • Outfielder Danny Valencia and pitcher Richard Bleier were teammates on the 2018 Orioles. Bleier was an effective situational reliever, going 3-0, striking out 4 batters per nine innings. Valencia played in 78 games in his final season in the Majors. And the Orioles went 47-115.

    • Kevin Youkilis and Gabe Kapler were teammates on the Red Sox from 2004-06. Both were bench players for the first two seasons. Youkilis became a starter in 2006, but Kapler played in only 72 games.

    • Ken Holtzman and Elliott Maddox (African American, converted to Judaism) were teammates with the Yankees for part of 1976, a season in which the team reached the World Series.  Holtzman was part of the starting rotation and won 9 games, but was on the downside of his career; Maddox was a spot outfielder.

    • On the 1972 World Champion A's, Holtzman won 19 games and made the All Star team, while Mike Epstein was the starting first baseman who hit 26 home runs and garnered some MVP votes. In 1973, Holtzman won 21 games and made the All Star team, but Epstein was run out of town after playing in 118 games.

    • The Dodgers had pitcher Larry Sherry from 1958-63; his brother Norm, a catcher, from 1959-'62; and a lefty named Koufax. Norm was a career backup. Sherry was primarily a reliever, although an effective one; he won 14 games in 1960 and 7 games and World Series MVP in 1959. Koufax did not become KOUFAX until 1961, at which point both Sherry brothers were less key players.

So I think the Holtzman/Epstein duo, although it lasted only one year, is the one to beat, accounting for team and individual performance. Pederson has not hit well this season, but he still has power and will be the everyday right-fielder for a team trying to get back into the pennant race. Fried has been inconsistent this season, but has won his last two games and is the best pitcher on the staff. Can they (and the team) get hot in the second half and pass them?

Did I miss other good examples?

Posted by Howard Wasserman on July 18, 2021 at 02:21 PM in Howard Wasserman, Religion, Sports | Permalink | Comments (0)

Tuesday, July 13, 2021

Will Jacob Steinmetz play on Yom Kippur?

Jacob Steinmetz, an Orthodox Jew and recent high-school graduate, was drafted in the third round (77th overall) by the Arizona Diamondbacks, putting him on path to possibly/maybe/perhaps/if-everything-breaks-right being the first Orthodox Jew to play in the Major Leagues.

Here is the rub: Steinmetz keeps Kosher and observes Shabbat. But he plays on Shabbat (although he walks to the ballpark) and on Jewish holy days. I would love to hear Steinmetz explain this as a matter of Jewish law. (Update: An emailer says that some Orthodox rabbis allow recreational sports on Shabbat, which justifies his playing as an amateur; it becomes work if he gets paid. Of course, rabbis told Hank Greenberg that he could "play," but not "work" on Rosh Hashanah).

But does that mean, if he were to make the Show, that the most-observant Jewish player in MLB history would play on Yom Kippur, while less-observant players sit or make public displays of deciding to sit? It would be consistent with the sense that we focus on Yom Kippur because the more-secular/less-traditional American Jews, for whom that day (especially the fast) marks the pinnacle of the Hebrew calendar, drive the conversation around Jews in baseball. For Orthodox Jews, other parts of the calendar and other practices form the core of worship. If he does make the Show, it will be interesting how he approaches that one holy day (as opposed to the many, many other Jewish holy days and festival days throughout the year that he observes but that do not make a blip for most American Jews).

Steinmetz has a baseball scholarship to Fordham, so it is not clear if he will play college ball or sign with the D-Backs and accept a minor-league assignment. Stay tuned.

Update: The Washington Nationals drafted Elie Kligman, a Nevada high-schooler who does not play on Shabbat or holy days, in the 20th (final) round. Kligman was a pitcher and infielder in high school who plans to convert to catcher to allow himself days off for Shabbat. The Times wrote about Kligman in March, but I cannot get a sense of how good a player he is or where he is going to land.

Posted by Howard Wasserman on July 13, 2021 at 05:50 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Monday, July 12, 2021

Sports and politics

England lost the European championship to Italy on Sunday, losing 3-2 in a penalty shootout. England's three misses were by Black players. English fans did not take the loss well; fans vandalized a mural dedicated to one player (for his philanthropic work) and took to social media to criticize the three players in the way you would expect to happen on social media.

Calling sports apolitical is nonsense, given the trappings of patriotism and politics, especially (as here) in an international competition when one plays for one's country. But without those trappings, this highlights the unavoidable politics. A loss is expressed in political terms--racist language and ideas about them as people (not merely as footballers) or denying that they are true Englishmen. If the players know how they will be criticized for poor performance, they cannot be blamed for making their own political statements, whether in anticipation or response.

Posted by Howard Wasserman on July 12, 2021 at 09:22 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Wednesday, June 23, 2021

The Real Jews in Baseball

The Forward on the Israeli Olympic Baseball Team, which competes in Tokyo next month.

Posted by Howard Wasserman on June 23, 2021 at 08:58 AM in Sports | Permalink | Comments (0)

Tuesday, June 22, 2021

Sports and law in the news

Two items on sports in court:

• As Orly mentioned, SCOTUS on Monday unanimously held that the NCAA violated antitrust laws by restricting the "educational benefits" athletes can receive. The immediate judgment is narrow, because the plaintiffs did not cross-appeal on other compensation limits. But the case does appear as a shot across the NCAA's bow. Justice Gorsuch spent the first eight pages describing the enormous amounts of money the NCAA generates for coaches and administrators compared with the modest sums for athletes. Justice Kavanaugh concurred to all-but-hold ("serious questions" is code) that the NCAA is one giant antitrust violation. In particular, he describes as "circular and unpersuasive" the NCAA's main argument that "colleges may decline to pay student athletes because the defining feature of college sports, according to the NCAA, is that the student athletes are not paid." If four Justices agree with that premise, that is the ballgame on college athletics as they exist. The question will be what replaces it.

The Job Creators Network voluntarily dismissed its absurd lawsuit challenging MLB's decision to move the All Star Game from Georgia in protest of the state's new voting laws and seeking millions in damages and an injunctive compelling MLB to move the game back to Atlanta (and compel the players to participate in the game). JCN attorney Howard Kleinhendler (late of the Kraken Team) was raked over the coals in an oral argument last week before the court dismissed the action from the bench; dropping the suit rather than appealing seems a wise move. I did not write about the argument, but it included an argument that by moving the game in response to Georgia's voting laws, MLB violated Shelby County by stepping into the shoes of the federal government subjecting Georgia's laws to preclearance. JCN promised to continue the fight in and out of court. Good luck with that.

Posted by Howard Wasserman on June 22, 2021 at 09:54 AM in Howard Wasserman, Law and Politics, Sports | Permalink | Comments (0)

Monday, June 21, 2021

A tough season for Jews in MLB

In my article on Jewish baseball players on Yom Kippur, I wrote that we were enjoying a new gilten alter (golden age) of Jews in baseball. Several Jewish players seemed on the verge of stardom or being solid contributors. Approaching the midpoint of the season, it has not played out as well as we hoped.

Jewish Baseball News has the basic stats for the six non-pitchers and five pitchers who have appeared in MLB this season. Alex Bregman has been solid but not at his 2019 near-MVP level, plus he is on the Injured List and no date is set for his return. Joc Pederson started the season slowly but has come around of late as the lead-off man for the Cubs. Kevin Pillar missed time after suffering a broken nose from a pitch to his face. Rowdy Tellez has been up and down to the minors and was removed from the starting line-up this weekend after going 0-for-8 with two strikeouts in his four prior appearances.

Life has been worse for pitchers. Max Fried, seemingly set to become the next great Jewish lefty, has an ERA in the mid-4.oo and has been inconsistent. Israel-born Dean Kremer, who made several promising starts for the Orioles as a late-season call-up, is 0-6, has an ERA over 6.00, and has surrendered 13 home runs in 49 innings. Fried and Kramer pitched well over the weekend, so hopefully they each can turn the corner. Richard Bleier continues to do well as an innings-eating reliever, a position in which Jewish pitchers have thrived. Ryan Sherriff, another innings-eater who pitched well for the Rays in the 2020 World Series, stepped away from the game for personal reasons in April; he is back in the Majors as of two weeks ago.

Posted by Howard Wasserman on June 21, 2021 at 11:21 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Tuesday, June 08, 2021

Naomi Osaka and the ADA

The following post is by my FIU colleague Kerri Stone, who writes on employment discrimination. I solicited her thoughts on Naomi Osaka.

On May 26, 2021, 23-year-old tennis phenom Naomi Osaka stunned the world by proclaiming on social media that out of a desire to protect her mental health, she refused to partake in mandatory press conferences during her participation in the French Open. After incurring a $15,000 fine for this refusal and threats of further sanctions from organizers of the French Open and the other Grand Slam tournaments, she announced her withdrawal from the tournament.

Universally recognized as one of the most “marketable” athletes in the world, Osaka, who, in 2020, had earned the distinction of being the highest-earning female athlete of all time by annual income, announced that she has been struggling with depression. She decried "people [with] no regard for athletes' mental health,” noting that "We're often sat there and asked questions that we've been asked multiple times before or asked questions that bring doubt into our minds and I'm just not going to subject myself to people that doubt me."

As many commentators have pointed out, Osaka’s exodus has thrust into the spotlight issues of mental health and self-care among everyone in workplaces from sports arenas to boardrooms to factory floors. Words of support and encouragement have poured in for Osaka from athletes and celebrities ranging from Serena Williams, to  Stephen Curry.

            Because the tournament at issue, at Roland-Garros, is not held in the United States, US law does not apply. Moreover, we know nothing about Osaka’s mental or emotional state, other than what she has shared. We do not know whether she would ever claim or be capable of being shown to be disabled so as to entitle her to protection under any law. But many now wonder what would happen if someone who did claim that depression, anxiety, or another mental impairment rendered them disabled within the meaning of the Americans with Disabilities Act (“ADA”), were to be fired from a job or excluded from an event after they refused to participate in a requirement that they deemed too corrosive to their mental health. Under the ADA, an individual deemed disabled within the meaning of the Act (via a physical or mental disability) may not be discriminated against because of their disability and is entitled to an affirmative reasonable accommodation that may be needed.

            This hypothetical case immediately reminds me of a 2001 Supreme Court case that I analyzed over a decade ago, when discussing the varying amounts of deference that courts give defendants in ADA cases: PGA Tour, Inc. v. Martin. In that case, the PGA refused to allow Casey Martin,  a pro golfer stricken with Klippel-Trenaunay-Weber Syndrome, a degenerative condition that impeded his ability to walk, to use a golf cart to get around during PGA Tour competition, as he had been permitted to do in other, lower-level tournaments. The Supreme Court held, over the PGA’s strident protestations, that walking the course was not an essential part of the game of golf and that no real disadvantage would be imposed upon Martin’s opponents due to the accommodation of a golf cart to transport him from hole to hole.

In a previous article, I noted that the case was somewhat remarkable, in that the PGA was charged with the administration and regulation of professional golf, a sport whose rules, by all accounts, are inherently arbitrary. Unlike a more objectifiable “essence” (such as of a pizza business to sell pizza) or “essential function” (such as of a fire department to fight fires, perform rescues, etc.), the rules/requirements of any sport are typically precisely what the regulatory body overseeing the sport and administering its competitions says they are. As dissenting Justice Scalia famously quipped, if the majority could answer the question “What is golf,” in a way that put it at variance with the PGA itself, then “One can envision the parents of a Little League player with attention deficit disorder trying to convince a judge that their son’s disability makes it at least 25% more difficult to hit a pitched ball. (If they are successful, the only thing that could prevent a court order giving the kid four strikes would be a judicial determination that, in baseball, three strikes are metaphysically necessary, which is quite absurd.)”

            In Martin, as would likely happen here, the plaintiff, though a professional athlete, was not considered an “employee” of the PGA  such that he could pursue a claim under Title I of the ADA; rather, he needed to use Title III, which covers public accommodations. Under title III, a plaintiff is entitled to a reasonable accommodation so long as it does not threaten safety or effectuate a fundamental alteration of the defendant entity or that which it purveys. The Supreme Court in Martin held that despite the PGA’s contention that as the arbiter of professional golf and its rules it could proclaim that walking was an essential element of the game, it would not effect a fundamental alteration of the PGA Tour’s highest-level tournaments if Martin were afforded the use of a golf cart.

What does this tell us about how our hypothetical might play out? There are several key points to keep in mind. In the first place, Martin is considered good authority for the proposition that even in the case of a sport or sports tournament whose purpose is leisure and recreation, the regulatory body of the sport is not entitled to the final word or even to high levels of deference when it comes to defining the rules of the sport or the essence of the defendant entity.

So where does that leave us? Assuming that our hypothetical plaintiff could establish that she is disabled within the meaning of the ADA and the issue was her entitlement to refuse  to comply with the tournament’s requirement that she make herself available to the press after competing, the issue would boil down to whether an exemption from the press conferences would be a reasonable accommodation or whether it would constitute a fundamental alteration of the tournament. Unlike in Martin, this requested accommodation could probably not, at first blush, be argued to confer a physical, athletic, competitive advantage (though the Martin Court did give this issue thorough consideration). It is an interesting question as to whether a defendant might try to argue that the press conferences are so draining and deleterious to an athlete’s psyche that avoiding them might amount to an advantage, or whether that might not be a thing that would be auspicious for the USTA to put out there.

However, a defendant that made participation contingent upon press availability would need to argue that the ability to face the press and answer even aggressive questioning is essential to making the tournament what it is. Selling tickets, procuring ratings, and keeping the tournament relevant and current is dependent upon permitting the public a window into the athletes’ reflections upon and reactions to their performances. Inasmuch as probing into these innermost thoughts may cause stress, embarrassment, or perseveration, the state of social media and the public’s increasingly handy access to and hunger for sports heroes’ and other celebrities’ thoughts and feelings necessitates the press conferences. They are as much a part of the essence of the tournament as the competition itself. Would a court buy this? Might a court be persuaded that in the age of social media and instantaneous access to celebrated public figures, fan access to athletes’ personas, including their most agony-filled defeats and regrets, is now necessary in a way that maybe it didn’t even used to be? To the extent that a reasonable accommodation could be argued to be an athlete’s furnishing this access through written statements or some other less immediate means of communication, could a court nonetheless be persuaded by a defendant that the buffer of time and space to prepare responses and the filter of the keyboard failed to yield sufficiently direct, raw access?

This is not to say that the defendant would necessarily win this case. Our hypothetical plaintiff might be, like Osaka, a personally and professionally compelling figure who is pushing back on not only the rules of this tournament, but on the idea of the public’s entitlement to this kind of access—especially when it causes and inflames harm and/or is deemed unnecessary. A court adjudicating the dispute would have wide latitude in determining the questions of the “essence” of the event and of the “fundamental alteration” or transformation that the requested accommodation could cause. Any number of considerations—including increasing societal recognition of the sanctity of the mental health of athletes (and all people trying to earn a living) at work, the evolving nature of what it means to be a public figure, the public’s insatiable hunger for access to athletes’ post-game thoughts and opinions, or even individual judges’ conceptions of “What is this tournament—to me”—could factor into the final determinations.

A case like our hypothetical would thrust the issue of workplace bullying into the spotlight. Only Puerto Rico and no U.S. state has passed comprehensive legislation that makes status-blind workplace bullying unlawful. This failure of legislatures to act has occurred despite high-profile stories about how celebrities and athletes have been driven from their workplaces and even from their careers by workplace bullying. Years ago, I pointed to the compelling case of Jonathan Martin, a talented, successful Stanford graduate who was driven from his career in professional football when Richie Incognito and other Miami Dolphins teammates tormented him. This torment took the form of both abhorrent race-based abuse as well as more generic bullying. Many scholars bemoaned the failure of the law and law makers to take not only bullying but the mental health of those at work seriously enough.  It should not be lost on anyone that Martin and Osaka are Black, and many of us have pointed to the impact and compounding effect of systemic racism and sexism on so-called “status-neutral” bullying.” Not only does “neutral bullying” often accompany race-based abuse as with Jonathan Martin, even when it doesn’t, it still befalls and, some studies say, affects, women and minorities more than it does others.

Last, but far from least, a comparison of the hypothetical case of an athlete who sought to avoid a contentious press conference for the sake of her mental health with the Martin case should also draw a comparison between the way we address and compel accommodation of physical disabilities and mental/emotional disabilities at work or in places of public accommodation. Michael Perlin has written extensively about sanism, "an irrational prejudice of the same quality and character of other prevailing prejudices such as racism, sexism, heterosexism and ethnic bigotry that have been reflected both in our legal system and in the ways that lawyers represent clients.” Would a case brought by someone with a disability that was not physical lay bare the differences in the ways in which the law and society regard and address mental disabilities?

I am working on an article that will seek to address these and other issues raised by this very compelling news story. I am interested in hearing others’ thoughts.

Posted by Howard Wasserman on June 8, 2021 at 09:31 AM in Employment and Labor Law, Law and Politics, Sports | Permalink | Comments (0)

Sunday, May 09, 2021

Tawny Kitaen, sports, and speech

Actress Tawny Kitaen, who came to fame as Tom Hanks' love interest in Bachelor Party and in the video for Whitesnake's Here I Go Again, died on Friday. Kitaen was married to former MLB pitcher Chuck Finley, with whom she had two daughters. The marriage ended in 2002, following an April domestic-vi0lence incident.

So a quick note on Kitaen's connection to sport and speech. In April 2002, Finley, pitching for Cleveland, was warming up prior to a game against the White Sox in Chicago. Fans gathered near the bullpen to taunt him. The White Sox DJ then played Here I Go as Finley went to the mound. Following the game (in which Finley got rocked), the Sox fired the DJ. Unsurprisingly, I agree with this take: The Sox over-reacted, because "taking musical digs at an opponent is a well-established part of sports tradition." And while targeting someone's personal life is questionable, the personal has long combined with the athletic in the realm of cheering speech. The difference is it coming from the host team as opposed to fans.

Posted by Howard Wasserman on May 9, 2021 at 02:24 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)

Wednesday, May 05, 2021

Limiting rules, no-hitters, and perfect games

John Means of the Orioles pitched a historic no-hitter against the Mariners on Wednesday. He faced the minimum 27 batters, did not walk a batter, and not hit a batter. But it was not a perfect game. In the third inning, Means struck out Sam Haggerty swinging at a curve ball that bounced through the catcher's legs and rolled to the backstop, allowing Haggerty to reach first. (It was ruled a wild pitch, although it should have been a passed ball; the pitch was not in the dirt and the catcher should have dropped down to block the ball). Haggerty was caught stealing, then Means retired the final 19 batters.

The uncaught third-strike rule is the cousin to the infield fly rule. As general principle, a person cannot be put out unless the last person to have the ball on the play catches and holds the ball. The catcher must hold onto strike three to record the out (although it counts as a strikeout, he must tag batter or throw him out at first), just as an infielder must catch a fly ball to record the out. The IFR reflects an exception to this general principle, where the defense gains an overwhelming advantage, thus an overwhelming incentive, by intentionally not catching the ball to complete the out. The rules establish a similar exception for third strikes--if a force is in effect on at least one base, such that the defense could get multiple outs if the catcher intentionally does not catch strike three, the batter is out even if the catcher does not catch it.

Retired U.S. District Judge Andrew Guilford, the sharpest critic of the IFR, would dump the third-strike rule along with the IFR. If a pitcher throws a great pitch that fools the batter (check the video in the link above; Means threw a vicious curve), he should be rewarded with an out, regardless of what his catcher does. I do not agree, but it is a consistent position.

Posted by Howard Wasserman on May 5, 2021 at 08:25 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Thursday, April 22, 2021

Protest and the 202_ Tokyo Olympics

The International Olympic Committee on Wednesday reaffirmed its stance against protests by athletes at the Tokyo Olympics, whenever they happen (they are scheduled to begin July 23, but I have my doubts). On Thursday, international advocacy groups pledged to provide legal support for any athletes who are sanctioned for protest activity. The USOPC had announced in December that it would not sanction any athletes who broke the IOC regulations. I wrote about the rule change, which was announced before the world shut down last year. I had not known that USOPC inducted Tommie Smith and John Carlos into its Hall of Fame in 2019.

Posted by Howard Wasserman on April 22, 2021 at 01:20 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Friday, March 26, 2021

Playing baseball on Shabbat

In an early draft of my article on Jewish players and Yom Kippur, I included a discussion of "why Yom Kippur," among all other parts of the Hebrew calendar. In particular Shabbat, which, Armin Rosen argued in the essay that started me down this path, is more sacred than either of the High Holy Days. I considered what might happen if a player would not play on Shabbat--at a minimum, it raises practical difficulties for a non-pitcher to have to know he must miss 36 games (22 % of the games) before the season even begins. At the same time, I think a team could and would accommodate that player--especially a star--to its financial benefit. (I pulled this section for length, although I may try to do something with it as a stand-alone piece).

A number of publications and people are telling the story of Elie Kligman. Kligman is a high-school senior from Las Vegas, pitcher and power-hitting infielder who is transitioning to catching; he is ranked as the 14th-best high school player in the state. He also is Shomer and has never played on Friday nights or Saturdays; most leagues and tournaments have accommodated him, at the urging of his lawyer/agent father. Kligman is talking about playing big-time college baseball and hopes to make the Majors. And he is already talking about not playing on Shabbat if he gets there. Part of the reason he is switching positions is that catchers often get at least one day off each week because of the physical toll; his day off could be Shabbat.

Before getting too excited about the next "Mickey Mantle bred on blintzes and gefilte fish" (as was written about 1970s slugger Mike "Super Jew" Epstein), I want to know more about just how good he is. Who is recruiting him and how good a prospect is he? The story says there are a "handful" of college coaches interested in him, but will not say who or what level. A scout says he could make an "impact" for a Power-5 conference team in a year or two. And a statement such as this--"Based on talent and desire, Kligman is good enough to realistically entertain his dream of playing Major League Baseball, or at least top level college ball"--means nothing. Top-level college baseball is roughly equivalent to high-A minors, a long way from The Show.

Like every other Jewish baseball fan, I want this story to be true and I hope Kligman makes it and 5-10 years from now I can write about his team switching their Friday home games to 2:15 starts. But at the moment, the story about his MLB prospects is, at best, incomplete.

Story published just in time for Shabbat.

Posted by Howard Wasserman on March 26, 2021 at 05:33 PM in Howard Wasserman, Religion, Sports | Permalink | Comments (0)

Tuesday, March 16, 2021

Testing the Ainge Curse

BYU has a school policy against playing games on Sunday, grounded in LDS religious obligations. In 2003, the NCAA Basketball Tournament Selection Committee put BYU in a bracket space that required it to play a potential second-weekend game on a Sunday. The NCAA pledged not to let that happen again. But it did it again this year. BYU is the 6th seed in the East Region, which is scheduled to play on Sunday/Tuesday; the Midwest Region is scheduled to play on Saturday/Monday. If BYU reaches the Sweet Sixteen, the East and Midwest will switch schedules. Because fans will not be present and teams are bubbled and not traveling, the switch is administratively easy and can remain contingent until we see the results of the first weekend. (H/T: Josh Blackman)

Last year, Yeshiva University's men's team made the D-III tournament. It played at 2 p.m. Friday, with the host school knowing the team had to leave the gym by 5 for a 5:46 Shabbat, then at 8:45 p.m. Saturday.

Posted by Howard Wasserman on March 16, 2021 at 02:42 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Wednesday, March 10, 2021

Stupidity, racism, and apologies (Updated)

Meyers Leonard, a back-up big man for the Miami Heat who has missed most of this season with a shoulder injury, was playing Call of Duty on a live Twitch and trash-talked a fellow player as a "fucking kike bitch." He has lost a bunch of gaming sponsors and will be "away from" the team "indefinitely." Leonard apologized, in a pretty unqualified manner, albeit with a touch of "[t]his is not a proper representation of who I am." But I want to unpack some pieces of his statement.

• "I didn't know what the word meant at the time" and he was "ignoran[t] about its history and how offensive it is to the Jewish community." He is "more aware of its meaning."

    What does this mean? If he is saying he did not know it was an anti-Jewish slur, I find that hard to believe. While not as common as other slurs and epithets, I would think people would know of the central anti-Jewish slur (I have never been called a kike to my face, but I know about the word). Has he never seen Porky's (dating myself, I know)?

    What did he think the word meant? He understood it as an insult, a pejorative adjective that he could squeeze between a pejorative adverb and an insulting noun. He used it with the intent to form an insult, albeit a playful one in the course of gaming trash-talk. Did he think he was using a made-up word or a random word he had just heard somewhere? Then how did he know it was insulting? Did he know the word was insulting, but not know towards whom the word was insulting? Did he think it was some cool-sounding word to use for trash talk? (Update: I will repeat a point I have seen elsewhere from several people that I think makes a similar point: The word was in his vocabulary. It kind of beggars belief to say that he did not know the meaning of a word he had at his disposal as an insult)

    Or is he saying that he knew the word was insulting, but did not know its history or origins? In which case, I do not care. No one is actually sure of the word's history or origins. The leading theory (attributed to Leo Rosten) is it came from the Yiddish word for "circle" (kikel) or "little circle" (kikeleh) and the practice of Jewish immigrants signing papers with a circle (rather than an X). Another is that it was a derogatory reference (begun by established German-Jewish immigrants) to newer Eastern-European-Jewish immigrants whose names often ended in -ki or -ky (e.g., Meier Suchowlański or Meyer Lansky, as he was sometimes called). Either way, knowledge (or lack of knowledge) of a slur's etymology is cute misdirection that should not distract. Using a slur is using  a slur, whether you know where it came from; you are not immunized in using the slur if you are unclear of its origins, because it remains a slur. The question is whether he knew it was anti-Jewish, regardless of where it comes from. Which returns to the prior paragraph and what he thought the term means--that is, what kind of fucking bitch was he talking about there?

• "I am committed to seeking out people who can help educate me about this type of hate and how we can fight it."

    Here is all the education he needs: Don't use anti-Jewish epithets. It is unnecessary for Meyers Leonard to learn about the thousands-of-years-long history of anti-Jewish hatred or to advocate against anti-Jewish bigotry. I do not really care if he is Judenhaas or what he thinks and says in his heart or what causes he supports or opposes. If he does not want to be a pariah and wants to continue earning almost $ 1 million per point (Meyers makes $ 9.4 million and had scored 10 points in 3 games prior to his injury), he should try to refrain from using slurs in a public forum that he set up. The rest is up to him.

•  Leonard did not kneel during the national anthem in the NBA Bubble last season. He tried to thread the needle with the usual tropes about supporting the cause but not disrespecting the flag and the military (his brother is in the military). But some of this conversation is recalling that, running along the lines of "see, he showed you who he was and what he believed last season when he refused to join his teammates in kneeling during the anthem, this is more of the same."

    I am troubled by that progression. It is a leap from not engaging in a particular protest against racist policing to the conclusion that he opposes or is antagonistic to that cause to the conclusion that he is a racist who supports racist policing. Maybe he is, maybe he isn't. But refusing to participate in one expressive activity is not revealing of broader views, certainly not in the same way as using an epithet. It smacks too much of "if you do not support my cause in my chosen way, you are opposed to my cause."

I hope this will be the last time I write about Meyers Leonard.

Update: Julian Edelman, who has become the most outspoken Jewish athlete, penned an open letter to Leonard inviting Leonard to a Shabbat dinner and warning of the dangers of casual ignorance about hate and epithets.

Posted by Howard Wasserman on March 10, 2021 at 11:49 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)

Wednesday, January 06, 2021

Testing the Koufax Curse

Testing the Koufax Curse: How 18 Jewish Hitters, 18 Jewish Pitchers, and Rod Carew Performed on Yom Kippur has been published in the Baseball Research Journal.

Posted by Howard Wasserman on January 6, 2021 at 09:45 AM in Article Spotlight, Howard Wasserman, Sports | Permalink | Comments (2)

Tuesday, November 10, 2020

Annual sports election predictors

I have thoughts on the election, but too jumbled to and disorganized to write in detail. I began with mixed feelings--thrilled that Biden had won, crushed that he will face a GOP Senate that will undermine his presidency at every turn (has any President gone a full term without appointing one judge?). I am concerned and (mostly) surprised that so many GOP officials have gotten on board and are amplifying Trump's nonsense. This allows the Senate to bolster its planned obstruction with a "stolen election" narrative--Biden is an illegitimate president not because people voted against Trump rather than for Biden, but because Biden "won" only because of fraud. The Senate thus does its patriotic duty by not cooperating with this illegitimate official until he can be voted out of office.

So let's look at something lighter: How sports predicted the election.

World Series Was Right: The NL's Dodgers won the World Series, which has meant a Democratic President in 18 of the past 29 elections, 13 of the 19 since the end of World War II, and 5 out of 6 since 2000.

Washington NFL Team Was Wrong: The Washington Professional Football team won its final home game before the election, beating the Dallas Cowboys 25-3 on Sunday, which has predicted the incumbent party retaining the White House in 17 of 21 elections (although wrong the last three). Ironically, Washington beat the team owned by Jerry Jones, Trump's closest friend and political ally among NFL owners and, stories suggest, a big reason why the league reacted as it did to Colin Kaepernick.

Harvard-Yale Will Not Play: The other presidential-election year they did not play was 1944, when a Democrat won.

Ending Sports Droughts: I wrote that this tends to favor Republicans. I am not sure how to categorize this year's election. The Dodgers won their first World Series in 32 years, but I am not sure if that qualifies as historically long when we have almost 120 years of World Series and this is an historic franchise winning its six World championship.

One City/Multiple Champions: The Series had one unique piece of intrigue--the winner would give its city a second 2020 championship. The Dodgers gave Los Angeles its second title, following the Lakers winning the NBA championship. Had the Rays won, they would have given Tampa its second title, following the Lightning winning the Stanley Cup. So this got me thinking about correlations between presidential elections and single-city/multiple-champions. Prior to this year, this had happened in seven presidential elections dating to 1927. The Republican prevailed in six (Hoover in 1928, Eisenhower in 1952, Eisenhower in 1956, H.W. Bush in 1988, W. in 2000,* and W. in 2004), the Democrat in one (Truman in 1948). Biden makes it GOP in 6 out of 8.

[*] The  Yankees won the World Series while the Jersey Devils won the Stanley Cup. Whether to count this depends on how we regard New Jersey sports teams. I leave that question for others.

Posted by Howard Wasserman on November 10, 2020 at 08:58 AM in Howard Wasserman, Law and Politics, Sports | Permalink | Comments (4)

Saturday, October 24, 2020

Update on Jewish World Series

I erroneously wrote that this year's Rays-Dodgers World Series had one Jewish player--Dodgers OF/DH Joc Pederson. But I forgot about Rays lefty reliever Ryan Sherriff, the grandson of Shoah survivors. Sherriff saw his first action in Friday evening's Game 3, pitching one scoreless inning, walking one and striking out one. This is the seventh World Series in which both teams have at least one Jewish player, the third in the last four.

We came close to a different first--a Jewish pitcher facing a Jewish batter.* Sherriff pitched the seventh and went to the mound to begin the eighth, with Pederson leading off. But Pederson does not bat against lefties, so he was pulled for a righty pinch-hitter in the Dodgers' regular platoon. At which point Sherriff was pulled for a righty pitcher.

[*] The linked article notes that Ken Holtzman of the A's faced Steve Yeager of the Dodgers in Games One and Four of the 1974 World Series, with Yeager getting two hits in five at-bats. But Yeager converted to Judaism after his baseball career, so this did not count at the time.

Posted by Howard Wasserman on October 24, 2020 at 02:41 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Monday, October 19, 2020

World Series set

The Dodgers (best record in NL) against the Rays (best record in AL), for the first time since 2013.

There is one Jewish player in the Series--the Dodgers' Joc Pederson, who is the left-handed platoon DH. Pederson had a terrible season, although this Series gives him a chance to tie or pass Alex Bregman for the lead in WS home runs (Pederson has four, trailing Bregman by one). I must confess to rooting for the Braves in the NLCS, looking forward to the stories of a WS team with a Jewish ace left-handed pitcher.

Now that things are set, of course, all Democrats will be rooting for the Dodgers.

Posted by Howard Wasserman on October 19, 2020 at 10:11 AM in Sports | Permalink | Comments (1)

Saturday, October 03, 2020

MLB MVP cancels Landis

The Baseball Writers Association of America (BBWAA), which awards the MLB leage MVP awards, has removed the name of former commissioner Kennesaw Mountain Landis from the award, citing his history of racism and his actions in keeping baseball segregated.

As I wrote in my prior post, the narrative of Landis as affirmatively racist active opponent of integration has carried the day. A scholarly counter-narrative sprouted in the '00s that he was a man of his time who did not push the owners to sign African American players, but has been largely forgotten in this discussion--whether because it has been historically discredited or because it has lost the day.

Posted by Howard Wasserman on October 3, 2020 at 08:30 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Tuesday, September 29, 2020

A Jewish MLB post-season

No baseball on Yom Kippur 5781. But this is shaping up as one of the great Jewish MLB post-seasons. Ten of the 13 Jewish MLB players are in the post-season spread across eight teams (five NL, three AL). This includes four starting position players (Alex Bregman of Houston, Ryan Braun of Milwaukee, Joc Pederson of the Dodgers, and Rowdy Tellez of Toronto, who will miss the opening round with an injury); one starting pitcher (Max Fried of Atlanta); and three workhorse relief pitchers who can be expected to log some big innings in a format with no travel and thus no off-days.

Posted by Howard Wasserman on September 29, 2020 at 11:35 AM in Howard Wasserman, Sports | Permalink | Comments (17)

Saturday, September 12, 2020

Testing the Koufax Curse

In anticipation of the High Holy Days, the Forward has published a summary version of my longer study of Jewish players' and teams' performance on Yom Kippur.

Posted by Howard Wasserman on September 12, 2020 at 10:58 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Friday, September 11, 2020

Cancel culture as a circle of baseline hell

Thinking out loud.

Skip Bayless' comments on Dallas Cowboys quarterback Dak Prescott ("being quarterback of the Cowboys is too important a position for someone who struggles with mental-health issues, or at least not for someone who wants to talk about those issues") are so stupid that they are unworthy of a response. They are noise--an "inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in not to express any particular idea, but to antagonize others." They certainly are too stupid to have been spoken in a media outlet that purports to be a forum for serious discussion, even of sports. And they suggest that Bayless is an unserious person.

Will Bayless be "canceled"--fired, suspended, or whatever? Fox Sports issued a statement disagreeing with Bayless' comments and saying they had "addressed" the issues with Bayless. I expect that to end it--no cancellation. And I do not expect Bayless to apologize or otherwise address it.

The separate question is whether Bayless should be cancelled, to which critics of "cancel culture" will say no. But I wonder if those who oppose cancelling someone for bad speech are trapped in a form of Rick Hills' baseline hell-the inability to establish a neutral baseline from which to analyze a problem. I presume that even the strongest critic of cancel culture would agree with the following:

    1) A private media organization could decide that it should not hire Bayless because it does not like his views on mental illness.

    2) A private media organization is not obligated to pay money and provide a platform to any person, so it can decide who it does or does not wish to give a platform based on the content of his speech and whether the organization shares, agrees with, and wishes to promote those views.

    3) The decision not to hire Bayless because of his absurd views would be a valid exercise of the organization's expressive rights--a decision about with what people and views it wishes to associate.

If the above is true, then firing Bayless should not raise different issues or problems. Either is an exercise of the media organization's judgment as to the views it wants to promote and with which it wants to associate. It would require a distinction between beginning and continuing--that ending a relationship because of disagreement with speech is different than declining to begin a relationship because of disagreement with speech. But that is a baseline problem--it rests on a belief that the starting point (on the platform or not on the platform) makes a substantive difference.

Similarly, sponsors could make the three decisions described above as to whether to sponsor Bayless' program and decline to buy time, from which it follows they could pull their money after-the-fact. To say otherwise requires the same distinction-without-a-difference between ending a relationship because of speech and declining to start that relationship because of speech.

I also wonder if we can distinguish cancelling Bayless for his speech from cancelling the Chicks or Mel Gibson or a professor for his speech. With the latter, we are cancelling from a primary role (making movies, making music, teaching classes) because of their out-of-role speech. But cancelling Bayless would reject him from his primary role because of his behavior in that primary role. Does that make a difference?

Posted by Howard Wasserman on September 11, 2020 at 10:46 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (14)

Tuesday, September 01, 2020

Infield flies, triple plays, and multiple outs on the same guy

A crazy play in Monday's Twins-White Sox game (video in story; H/T: Allan Erbsen at Minnesota): The Twins attempted to turn a triple play off a dropped "humpback liner," but messed up and ended up with one out.

White Sox have bases loaded, none out. Batter hits a low-flying flare behind second. The second baseman drops the ball (perhaps intentionally ) and has it scramble away from him. The runner on second starts to go, then retreats to second. The second baseman flips it to the shortstop covering second who catches the ball while standing on the base. He then throws to the first baseman, who tags the runner on first retreating, while the batter stands on first. The first baseman throws to second, where the runner there beats the tag. They then thrown to home plate (after a discussion), where nothing is happening.

After umpire consultation, the result: The batter is safe at first. The runner on first was out, the remaining runners are safe where they were. One out, bases still loaded. What happened after jump.

No infield fly. The ball was not hit high enough (it lacked the necessary parabolic arc). This is the tricky play that umpires and players struggle with. I would guess the runner on second retreated on a belief that the rule had been invoked or the ball was going to be caught. But it clearly had not been. One announcer started talking about this, without acknowledging how low the ball was hit.

It appears the Twins second baseman intentionally dropped the ball, hoping to start a double (perhaps triple) play. Or he closed his glove too quickly, which happens. But this looks pretty intentional. If the umpires called that, the batter would have been out and the play dead. This play illustrates the need for the rule--the runner on second retreated expecting the ball to be caught and was hung out to dry when the ball was not caught. This is a pure anti-deception rule. The other announcer picked up on this.

Having gotten away with the intentional drop, the second baseman's plans were foiled because he was unable to play the drop cleanly off the ground and it skittered away from him. This gave the batter sufficient time to reach first.

The Twins still could have gotten a double play around second base had the shortstop covering caught the ball and tagged the runner before stepping on the base. Once the ball fell (and intentional drop not called), the runner on second was forced to advance and retreating to second was not an option; he could have been tagged out even if standing on second base, which no longer was a "safe" base for him. But by stepping on the base first, the infielder put out the runner who had been on first; the runner on second was not forced to advance and could return safely to his current base.

The first baseman erred by tagging out the runner on first attempting to retreat, who already was put out on the force at second. In essence, the Twins put out the same baserunner twice--kind of a double play, I suppose. But the first baseman had no other option, since the batter had reached first safely.

Presuming the second baseman dropped the ball intentionally, he might have been looking for a triple play in two ways.

    1) Throw to the shortstop to tag the runner at second, then tag the base, then relay to first to get the batter; had he played the ball cleanly off the ground, this might have worked.

    2) Throw home to force out the runner on third, then throw to third to force the runner on second, then throw to second (shortstop covering) to force the runner on first. This would have been a 4-2-5-6 triple play, which the author of the linked MLB article says happened once, in 1893 between the Brooklyn Grooms and an older version of the Baltimore Orioles. This also would have been a clear option, since the play was right in front of the fielder when he picked up the ball.

Is it any wonder lawyers love baseball?

Posted by Howard Wasserman on September 1, 2020 at 10:00 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Wednesday, July 01, 2020

Kennesaw Mountain Landis and the Monument Moment (Updated)

Kenesaw_Mountain_Landis_(ca._1922)Northwestern-Pritzker School of Law (where, full disclosure, I attended law school) displays a portrait of Kennesaw Mountain Landis, a Northwestern grad, former federal judge, and, of course, long-serving first baseball commissioner. As monuments began falling and law schools contemplated their anti-racist steps, I wondered whether that portrait would come down. Now come reports that a move is afoot among former baseball MVPs (black and white) to have Landis' name and image removed from those awards. Update: The Baseball Writers' Association of America (BBWAA), which presents, the MVP awards, announced they will discuss the issue.

The standard history is that Landis actively opposed integration in his 20+ years as commissioner, during which no team signed an African-American player (Landis died in 1944; Jackie Robinson signed with the Dodgers in 1946 and made his MLB debut on April 15, 1947). That is the story Robinson told and was reflected in the authoritative Robinson biography and in a 2016 Ken Burns documentary about Robinson. MLB historian John Thorn presents that history as canon in the above-linked articles, describing Landis as "pretty damn near Confederate" with a history of documented racism.

That standard view had been questioned over the past two decades, through an award-winning 1998 Landis biography and a 2009 article in SABR's Baseball Research Journal. Neither study found evidence of Landis saying or doing anything racist, holding racist views (at least relative to the times), or preventing or even dissuading owners from signing African-American players. Landis made two public statements--in 1942 and 1943--that MLB had no formal or informal rule prohibiting signing African-American players and that he did not and would not oppose any owners who signed an African-American player. MLB owners and executives maintained segregation, not Landis. Landis did not advocate integration, as opposed to announcing a lack of opposition, and it does not appear that he attempted to force, cajole, lobby, or convince owners to integrate. (Whether he could have done so and whether his failure to do so destroys his legacy depends on whether Landis enjoyed unique commissioner powers or whether, like other commissioners, he worked for the owners).

I do not know whether the counter-narrative has been discredited as erroneous. The linked stories quote Thorn, but do not mention the counter or acknowledge that historical sources disagree, although this one does. I have not seen interviews with Landis' biographer or other critics on the subject.

But it may not matter. Part of the current reckoning is that silence in the face of racism is a form of action perpetuating that racism. Sitting by not only does not promote progress, it adds to the problem. By placing the onus on the owners to sign African-American players knowing they would not, the argument goes, Landis ensured that segregation endured. And thus he loses any claim to a continued place of honor in the game of baseball (or on the walls of a law school).

Is that how it should be? That seems to be the point that MLB and NUPLS must resolve with Landis.

Posted by Howard Wasserman on July 1, 2020 at 08:53 AM in Howard Wasserman, Sports | Permalink | Comments (5)

Wednesday, May 13, 2020

Testing the Koufax Curse

Last fall, I wrote about three Jewish players (Alex Bregman, Max Fried, and Joc Pederson) playing Division Series games on Yom Kippur, then offered tentative responses to the question posed by Armin Rosen of Tablet about why we focus so much on playing on Yom Kippur and no other days. Rosen also jokingly suggested that 2019 demonstrated the work of the Koufax Curse befalling players who fail to follow in Koufax's Yom Kippur footsteps.

In a draft paper on SSRN, I test the Koufax Curse by developing an explanation for our obsession with playing on Yom Kippur and by examining career statistics in Yom Kippur games by eighteen Jewish players, plus Rod Carew. This has been a fun piece to write. The abstract is after the jump. It emains a work in progress, and I welcome feedback.

October 8-9, 2019, the Jewish holy day of Yom Kippur, marked a unique moment in the history of baseball and American Judaism. Three Major League post-season games began between sundown Tuesday and sundown Wednesday. One team in each game featured a Jewish player as a star or significant contributor. Each Jewish player appeared in the game. Each team lost. One journalist labeled this result the "Koufax Curse" -- the curse of the Jewish player who plays on Yom Kippur, rather than following in the footsteps of Hall-of-Fame pitcher Sandy Koufax, who did not pitch Game One of the 1965 World Series when it fell on the holy day.

This paper empirically tests the Koufax Curse. Looking at 18 Jewish Major Leaguers since 1966 (the year after Koufax's career-defining game), the paper charts how the players and their teams performed in games played during any part of Yom Kippur. It also examines statistics for Rod Carew, the Hall-of-Famer who is not Jewish but enjoys a unique familial and cultural connection to Judaism. From this, we can measure whether players or teams are haunted by the Koufax Curse. And whether Yom Kippur 5780 was an anomaly or reflects a broader trend.

 

Posted by Howard Wasserman on May 13, 2020 at 01:54 PM in Howard Wasserman, Religion, Sports | Permalink | Comments (0)

Thursday, February 27, 2020

Greenberg, Koufax, and Carew

1101770718_400Rod Carew occupies a strange place in the discussion of Jewish athletes. He was famously named as a Jew in Adam Sandler's Chanukkah Song I, based on stories from the late -'70s and early-'80s reporting that he converted or intended to convert. And there was this 1977 Time Magazine cover, in which he wears a chai around his neck (he wore it during games. But although he was married to a Jewish woman during his playing career and raised three Jewish daughters, Carew never converted. And he is divorced from the woman to whom he was married during his career; his current wife is Christian.

Nevertheless, based on early research I have been conducting into old box scores, it appears Carew avoided playing on Yom Kippur. He did not play on Yom Kippur 1971 (5732), Kol Nidre 1977 (5738), Kol Nidre 1980 (5741) (and he did not enter the following evening game until the 9th inning), Kol Nidre 1983 (5744), or Kol Nidre 1985 (5746).

I found several newspaper stories discussing this. In 1982, he played in a late-afternoon game before Kol Nidre, reportedly with plans to leave early if the game ran past 8 p.m. In 1977 (when Carew hit .388 and flirted with .400), newspaper stories conflicted about whether he missed a Kol Nidre road game to return home for treatment on his arm, whether it was planned for the Holy Day, or whether he planned it but used the arm as an excuse; either way, he did not play.

While not playing because of the Holy Day was discussed in wire-service stories in several seasons, this did not make national news. What could or did make national news 40 years ago was different. These seem to have been low-leverage games--never in the World Series or playoffs, never games in the heat of a close pennant race.

We may need to begin speaking of Carew in the same breath as Greenberg, Koufax, and (more recently) Shawn Green.

Posted by Howard Wasserman on February 27, 2020 at 06:29 PM in Howard Wasserman, Sports | Permalink | Comments (1)

Tuesday, February 18, 2020

Elam Ending and the NBA

The Elam Ending is an alternative format for the end of basketball games, designed to eliminate late-game fouling by the trailing team. The basic idea is that the game clock stops in the final 3 minutes, then the teams play to a target score (+ some number from the leading team's score at the 3:00 mark).

Sunday's NBA All-Star Game used a modified version--playing the Fourth Quarter without a game clock with a target score of +24 from the leading team (the 24 in honor of Kobe Bryant). The format was a huge hit, drawing raves from players, NBA officials, and the media. ESPN's Zach Lowe interviews Elam (now a professor of educational leadership at Ball State) about the game, the system, and what happens next.

I have never minded intentional fouling and I do not believe it makes the game unwatchable. But Elam's argument focuses not on aesthetics but on strategic success-fouling generally does not work, both because leading teams make enough free throws and the lapsing game clock forces trailing teams to rush shots. This format, in theory, allows both teams to run their regular offenses without the game-clock pressure. Elam said his format enables more comebacks (as seen in its use in The Basketball Tournament in 2017, '18, and '19).

Posted by Howard Wasserman on February 18, 2020 at 07:25 PM in Howard Wasserman, Sports | Permalink | Comments (1)

Wednesday, February 12, 2020

Caminker & Chemerinsky on Pete Rose, MLB, and the Hall of Fame

Evan Caminker and Erwin Chemerinsky argue in The Times that Major League Baseball should reinstate Pete Rose, making him eligible for election and induction into the Hall of Fame.

Steve Lubet (Faculty Lounge) hits the glaring defect in their argument--they minimize the severity of Rose's misdeeds and their effects on the game by emphasizing that Rose never bet against the Reds, without acknowledging the downstream effects of his gambling choices. I do not have much to add to his argument.

Caminker and Chemerinsky also minimize Rose's misdeeds by comparing them with revelations about sign-stealing and PED use, maximizing the evils of those practice. But reasonable minds differ about sign-stealing and PED use. Many (including many who played the game) believe sign-stealing to be a well-worn part of the game and the ongoing search for a competitive advance and PED use to be the same as other scientific advances that improve performance. No one (I do not think) argues that gambling on baseball is OK.

The timing is interesting because President Trump last week called for TrumpRose* to be in the Hall, for many of the reasons Caminker & Chemerinsky present. Although they do not mention Trump, they agree on something.

[*] Freudian slip. Trump probably does believe he should be in the Hall of Fame.

It might be tempting to view this question through the controversy over Trump's many actual and threatened pardons, which C&C (especially Chemerinsky) have criticized. But that is not the right way to look at this. Rose was punished with a lifetime ban that included the opportunity to petition for reinstatement, with a presumption that any petition would be considered in good faith, if not with a presumption in favor reinstatement (and likely the opposite). Rose accepted the same punishment imposed on Shoeless Joe Jackson, Buck Weaver, and the rest of the Black Sox, several of whom petitioned (unsuccessfully) over the years. Caminker and Chemerinksy thus do not call for a pardon, but for the exercise of the discretion built into the sanction. They make arguments similar to those of  several Hall of Famers (including, I believe, Ted Williams) in the late-'80s/early '90s in favor of Jackson's reinstatement, following release of Field of Dreams.

Unsurprisingly, C&C do get the procedure right. They do not argue for Rose to be placed in the Hall. They urge MLB Commissioner Rob Manfred to reinstate Rose on the grounds that Rose has served the time for his crime against the game. Reinstatement would allow Hall voters to elect him, without requiring it; voters could decline to elect him as they have with Barry Bonds, Roger Clemens, and Mark McGwire, believing that the shadow of misconduct precludes election. Ironically, the rule that formally prevents Rose's (but not the others') election was codified in 1990, in response to the tide of pro-Jackson sentiment.  On the other hand, as a commenter on Steve's post points out, the Hall could repeal its rule and elect Rose even if he remains banned by MLB. 

Posted by Howard Wasserman on February 12, 2020 at 05:13 PM in Howard Wasserman, Sports | Permalink | Comments (2)

Monday, February 03, 2020

Uh, oh

Following the 2016 election, I identified breaking championship droughts as a random sports predictor that foretold Republican electoral success. If so, Democrats (including me) should be nervous this morning, as the Kansas City (Missouri) Chiefs won their first Super Bowl in 50 years--which I think qualifies as a long, if not quite as legendary, sports drought. This follows a number of other droughts that ended in 2019--St. Louis Blues win first Stanley Cup in 52-year history; Washington Mystics win first WNBA title; Washington Nationals win first World Series for D.C. since 1924 and first World Series in the 50-year history of the Expos/Nationals franchise.

Of course, we do have one counter-example in which end-of-drought coincided with Democratic success--the 2018 mid-terms followed the Washington Capitols' first Stanley Cup in a then-44-year history.

Posted by Howard Wasserman on February 3, 2020 at 03:42 PM in Howard Wasserman, Sports | Permalink | Comments (2)

Sunday, January 05, 2020

Limiting rules in football

On Saturday, the Tennessee Titans ran almost two minutes off the clock without a snap in their Wildcard Round win over the New England Patriots, exploiting a glitch in the rules that calls for a limiting rule.

Lining to punt on 4th down with the game clock running, the Titans took a delay-of-game penalty; the clock restarted when the ball was placed after the 5-yard walk-off. The Titans then false-started; the clock restarted when the ball was placed. The Patriots then jumped offside; the clock restarted when the ball was replaced. Finally, the Titans punted.

When a team commits a foul and the penalty yardage is walked off, the clock proceeds as it would have had there been no infraction--if the clock would have stopped, it restarts on the snap; if the clock would have run, it restarts once the ball is replaced. Inside of 5 minutes remaining in the second half, the clock restarts on the snap. As I explain here and here, the second rule is designed to inject excitement by preventing leading teams from wasting time and forcing them to run more plays, from the point in the game in which the incentive to waste time begins.

This game reveals three things:

First, although I did not think of it this way when writing the book (but should have), the second rule qualifies as a limiting rule addressing a cost-benefit imbalance under the default rule, akin to the Infield Fly Rule. The offense is acting contrary to expectation (taking a penalty); the time benefits it gains are much overwhelmingly greater than the yardage costs (and vice versa for the trailing defensive team);  the defense cannot do anything to stop the offense from intentionally committing pre-snap fouls; and a leading team has a perverse incentive to try this.

Second, the rules attempt to address the perverse incentives with two different limiting rules. Two successive delay penalties constitute unsportsmanlike conduct, a 15-yard infraction. This is why the second foul was not another delay, but false start. And a team cannot commit multiple fouls on the same down to "manipulate the game clock;" the penalty is 15 yards, time back on the clock, and the clock restarting on the snap. This rule is why, after the second penalty, the Titans were ready to punt. The third play came because the Patriots committed an infraction that gave the Titans extra time; the Titans cannot be blamed for the opponent's violation. But these two rules should be sufficient, unless officials are reluctant to find clock manipulation off one or even two false starts.

Third, the incentive for a leading team to waste time begins earlier than the 5-minute mark. It is not clear where it begins--that probably depends on score and location on the field. The only solution may be to change the default rule and always have the clock start on the snap following a penalty. That will necessitate other limiting rules involving clock run-offs to eliminate the perverse incentive for trailing teams to commit their own intentional fouls.

Posted by Howard Wasserman on January 5, 2020 at 05:47 PM in Howard Wasserman, Sports | Permalink | Comments (3)

Tuesday, December 10, 2019

Marvin Miller and the Hall of Fame (Updated)

Marvin Miller--the first executive director of the Major League Baseball Players Association and the creative force behind the modern economics of baseball and all professional sports--was elected to the Hall of Fame yesterday. The election comes seven years after Miller's death. And, although I did not know this, against his express wishes.

Miller was passed over several times by various committees between 2003 and 2010, likely because the powers-that-be wanted to deny Miller the honor, at least while he was alive. In 2008, Miller, askedtthe Baseball Writers Association of America, the main selection body, not to nominate him again; he declared himself "unwilling to contemplate one more rigged veterans committee whose members are handpicked to reach a particular outcome while offering the pretense of a democratic vote. It is an insult to baseball fans, historians, sports writers and especially to those baseball players." Miller was no doubt especially angry that in 2007, former commissioner Bowie Kuhn, Miller's chief antagonist, was elected just before his death. Despite the request, Miller was nominated in 2010, then posthumously in 2014, 2018, and this year.

There is an interesting debate about how the Hall should handle those wishes. On one hand, it is a museum designed to tell the history of baseball and to recognize those who made the game--that history cannot be told without Miller. On the other hand, the Hall of plaques does more than tell a story; it singles people for a unique honor, an honor that should be bestowed only if both parties wish. Miller's children have made clear they will not attend and accept induction in their father's place. And it is hard not see the election as one final power play against Miller--selecting him against his wishes, but when he could no longer decline appear and make his own case.

Speaking of Miller and Kuhn, Slate's Hang Up and Listen uses Miller's election as an excuse to parse Flood v. Kuhn, especially the bizarre Part I in which Justice Blackmun rattles off a laundry list of historic players from a bygone era. Several tidbits on this.

That part of the opinion was written for only three of the five Justices who formed the majority (Blackmun, Stewart, and Rehnquist). Chief Justice Burger and Justice White refused to join that part of the opinion, White expressly because an paean to baseball and a recitation of players had nothing to do with the case and no place in a judicial opinion.

The list includes only two African-American players--Jackie Robinson and Roy Campanella. And they are from a different baseball era. The white players all played in the 1900s-1930s. Based on a quick glance, it appears no one on the list began his career beyond the early '30s. The latest player is Hank Greenberg, who retired in 1948, but debuted in 1930. Robinson and Campanella played from the late-'40s to mid-'50s. Blackmun's original draft did not include any African-Americans; he added Robinson, Campanella, and Satchel Paige at the insistence/request of Justice Marshall. But Blackmun could not (or did not bother to) match anyone to the era that is the focus of the rest of the list, although several historically great Negro League players (e.g., Josh Gibson) were contemporaries of Ruth, Gehrig, etc.  Marshall then dissented in the case, so he did not join the list at all.

Finally, there was some horse-trading among the Justices about who to include. That still does not explain how Moe Berg made the list.

Posted by Howard Wasserman on December 10, 2019 at 03:01 PM in Howard Wasserman, Judicial Process, Sports | Permalink | Comments (2)

Saturday, November 23, 2019

Protesting Harvard-Yale (Updated)

Yale_Harvard_Protests-e1574537307629The second half of the Harvard-Yale Game was delayed for 48 minutes when students from both schools rushed the field to stage a climate-change protest calling for both institutions to divest from oil, gas, and other energy investments. Many protesters eventually left the field, while the last stragglers were escorted by police; I do not know how many students were arrested. [Update: This report says 42 students were charged with misdemeanor disorderly conduct]

Just to be clear (and putting state action to one side);

• The students should have been untouchable had the protest remained in the stands. While climate change has nothing to do with football, chanting and displaying signs about divestment is not inconsistent with cheering and displaying signs at a football game.

• The students were properly subject to arrest (reports suggest some wanted to be arrested). While engaging in expressive behavior, they did so in a place they had no right to be. This is civil disobedience--breaking the law, and accepting the consequences, to draw attention to the cause and the protest.

• This demonstrates why politics and speech are inseparable from sports. No one would be talking about a few hundred Ivy League students protesting climate change in the middle of campus. The protest now is a national story. And it is part of the story of a great football game--Yale won 50-43 in Double-OT, staging a late-game comeback, clinching the victory in darkness (no lights at the Yale Bowl), and claiming a share of the Ivy League title.

Posted by Howard Wasserman on November 23, 2019 at 04:45 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)

Saturday, October 26, 2019

Baseball and politics, again

The Astros win in Game 3 last night means there will be a Game 5 in Washington Sunday night, which means a game attended by President Trump (although not to throw out the first pitch).

Question to watch: Will fans boo trump, chant "impeachment" or "Ukraine," or otherwise criticize the President? And how will MLB and the Nationals respond?

Update: MLB Commissioner Rob Manfred golfed last week with Trump and Lindsey Graham. I think I have my answer to the third question.

Posted by Howard Wasserman on October 26, 2019 at 02:03 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (1)