Thursday, October 10, 2019
Playing on Yom Kippur
Journalist Yair Rosenberg beat me to this, but: Three teams in MLB's post-season have a Jewish player, each Jewish player played either Tuesday night or Wednesday, and each team lost. Alex Bregman of the Astros played on Tuesday night and the Astros lost Game to even the series. Max Fried of the Braves pitched on Wednesday and gave up four runs in an inning-and-change as the Braves lost Game 5 and the series. Joc Pederson of the Dodgers played Wednesday evening in the Dodgers loss of Game 5 and the series.
So is the lesson do not play on Yom Kippur? It may not help. The Dodgers famously lost Game 1 of the 1965 World Series as Koufax sat, with Don Drysdale getting shelled and someone (stories vary as to who) joking that Dodgers manager Walter Alston wished Drysdale were Jewish.
One interesting question: In the era in which all post-season games are at night, what does it mean to play "on Yom Kippur"? Bregman played on Kol Nidre. But many (most) non-Jewish fans probably are not aware that the holy day begins at sundown; so had Bregman not played on Tuesday evening "because it is Yom Kipper," many people might have been confused. On the other hand, the Dodgers game began at 6:45 PDT, past the time that many Jews had broken their fasts (my Reform temple's break fast was at 6:30), so he was not playing on Yom Kippur, which also might have confused people.
Meanwhile, the Astros and Rays play Game 5 tonight. If the Astros lose, it will be our first all-Goyishe LCS and World Series in several years. The new is not all bad; win or lose, Bregman might win American League MVP, making him the fourth Jewish player to win an MVP (joining Greenberg, Koufax, and Al Rosen).
Update: The Phillies fired manager Gabe Kapler. Well, we ask who shall perish by fire.
[Further Update: The Astros won, with Bregman breaking the game open with a 2-run double in the first.]
Posted by Howard Wasserman on October 10, 2019 at 05:09 PM in Howard Wasserman, Sports | Permalink | Comments (0)
Monday, August 12, 2019
Protest (and be punished) like it's 1968
At the Pan Am Games, fencer Race Imboden knelt on the gold-medal podium during the anthem and hammer-thrower Gwen Berry raised her first. Both face sanction, because not much has changed since 1968. The U.S. Olympic and Paralympic Committee offered this internal contradiction: "Every athlete competing at the 2019 Pan-American Games commits to terms of eligibility, including to refrain from demonstrations that are political in nature,” although "[w]e respect his rights to express his viewpoints.” No, you clearly do not respect his rights to express his viewpoints when those viewpoints are political in nature. Because standing at attention during a national anthem while playing "for your country" is never political.
The USOPC (did not realize the "P" had been added) is not bound by the First Amendment and can restrict athlete speech however it wishes. But do not pretend that you also respect the athletes' rights to express their views.
Posted by Howard Wasserman on August 12, 2019 at 09:39 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (7)
Sunday, August 11, 2019
One inning, three runs, three true outcomes (non-law)
Thinking about baseball today, so that prompts this non-law post.
Baseball analysts emphasize the concept of "three true outcomes"--walk, home run, or strikeout. These are the possible results of a pitcher/batter confrontation that reflect the "true" results of that one-on-one encounter, unaffected by any other players. The focus on these outcomes drives recent concerns for style and pace of play. Batters look to hit home runs, are less willing to offer at pitches out of the strike zone, and accept increased strikeouts as a cost. All three true outcomes are up, creating a slower and (some believe) less exciting game.
In Saturday night's Braves-Marlins game, the Braves scored three runs in an inning featuring nothing but those three true outcomes. The inning went: Walk, Strikeout, Walk, Strikeout, 3-run HR, Walk, Walk, [pitching change], Strikeout. No fielder other than the pitcher and catcher was involved in any play. No baserunner was at risk of being put-out on the basepaths.
I have never seen anything like that.
Posted by Howard Wasserman on August 11, 2019 at 07:51 PM in Howard Wasserman, Sports | Permalink | Comments (4)
Monday, July 15, 2019
Stupid rules, baseball edition
The independent Atlantic League (which used a Doppler radar plate umpire for its All Star game) has, with MLB support, implemented a new rule: Any pitch not "caught in flight" is a live ball, allowing a batter to run to first base or to be put out. People have described it as "stealing first," although that is not quite accurate. It happened in a game on Saturday. Others have described it as an extension of the uncaught third-strike rule, under which a batter becomes a runner if a third strike is not caught. I am not sure what the point is. I guess it adds excitement by offering a new way to reach first base, away from the home runs and walks that are increasing (and, some argue, making the game boring).
This seems stupid for several reasons.
The rule represents a departure from the game's basic structures. There are, famously, 7 (or 8, depending on how you count defensive interference) ways for a batter to reach base (unless you fine-grain it into 23). However you count, all are based on the batter putting the ball in play and the defense having to catch the ball to complete an out, or on the pitcher not being able to throw too many pitches out of the strike zone (there is no magic number, but it is not one). This rule introduces a new idea--reaching base on one pitch, not batted into play, that is not otherwise significant and would not otherwise produce an out. I agree with the commentators who wonder whether the source of this rule actually likes or understands baseball.The uncaught third strike analogy does not work. A batter becomes a runner on an uncaught third strike because that third strike is an otherwise significant pitch that would have produced an out had the catcher done his job. Moreover, the batter does not always become a runner on an uncaught third strike--he is out on strikes if first base is occupied with less than two out (for fear of creating Infield Fly-like perverse incentives). So there is a logic to when a batter does or does not become a runner. The new rule does not correspond to that logic and it is facile to label this a simple "extension" of that rule.
The new rule gives batters choices about when to try to reach base, which is otherwise unheard of in the game. A batter who hits the ball in fair play cannot "choose" whether to run--he must run. A batter cannot "decline" a walk to continue batting. The batter's choice begins and ends with whether to swing a bat. A batter cannot even decline to become a runner on an uncaught third strike--he must run. The game does not otherwise recognize the concept of a batter advancing "at his own risk"--at his option rather than forced; the batter is always forced to run when certain things happen. There is no logic to introducing this one optional situation.
The stories I have read do not explain what happens on a ball that goes to the backstop with force-outs in effect on the bases (e.g., bases loaded or 1st/2d) and less than two out. Under ordinary rules, the runners can advance at their own risk on what would be a wild pitch or passed ball and they would have to be tagged. But if the batter attempts to run to first, that would force the runners to advance. Does this play now become a force on the lead runner at home? And how will anyone--the runners or the umpires--know? What if the runners do not plan to run (thinking the ball did not roll far enough away from the catcher) but the batter does run--now the runners are forced to advance but were not expecting to. There is no other situation in which everyone does not know in advance of the play what is a force-out and what is not, because the batter usually does not have a choice between running or not--this potentially adds some confusion. Or the new rule is limited to non-force-out situations--again, for no good reason.
This rule is part of a package that the Atlantic League and MLB are piloting. Two others are liberalizing what constitutes a check swing and allowing two foul bunts with two strikes before it is a strikeout. Again, all are designed to help batters and create offense, although at the risk of prolonging games that are already (it is said) too long. There is no obvious logic.
Posted by Howard Wasserman on July 15, 2019 at 09:25 AM in Howard Wasserman, Sports | Permalink | Comments (6)
Wednesday, June 26, 2019
Balls, strikes, and ground-rule doubles
In his opinion concurring in the judgment in Kisor v. Wilkie and arguing for overruling Auer deference, Justice Kavanaugh gave us this:
Umpires in games at Wrigley Field do not defer to the Cubs manager's in-game interpretation of Wrigley's ground rules. So too here.
I know analogies are only analogies and never exact. But they should be close enough to be helpful and this one is not. The problem is that the role of the Cubs and the role of an administrative agency, such as the VA, are not the same in one critical respect--an agency is charged with enforcing the regulations that it enacts, the Cubs are not.
An agency is charged with enforcing a statute, including making regulations to assist with that enforcement. Auer deference thus makes sense for the same reason that Chevron deference makes sense--give the enforcing agency some room to carry out its enforcement obligations, so long as its interpretations are reasonable. The Cubs' responsibility is to enact ground rules unique to their park--e.g., a ball that sticks in the outfield-wall ivy is a dead ball, the batter awarded second base, and runners awarded two bases--but not to enforce those ground rules, a power that rests with the umpires in the first instance.
It seems to me that this makes a difference, rendering the analogy pointless. There may be good reasons not to defer to an agency's interpretation of the regs it is charged with enforcing. One of those reasons is not that we do not defer to a different "agency's" interpretation of the regs it enacts but is not charged with enforcing.
Posted by Howard Wasserman on June 26, 2019 at 06:06 PM in Howard Wasserman, Judicial Process, Sports | Permalink | Comments (7)
Saturday, June 22, 2019
Basketball trumps football for UConn
News that UConn is leaving the AAC to return to the Big East (now as the lone non-private-Catholic school and one of two non-Catholic schools, with Butler (ed.)) reminds me of this post about whether to preference basketball or football. The original Big East dissolved because the schools with football history and ambition wanted more, causing three early members (Pitt, Syracuse, and BC) to eventually leave for the ACC and the Catholic schools that did not want to have big-time football to break away (rebranding as the new Big East). UConn was the one original/early Big East school without a good home when the music stopped--still wanting big-time football but not good enough at it (or in a big-enough market) to attract the ACC or Big 12.
This move shows UConn prioritizing its non-football teams, especially men's and women's basketball. No team in the AAC could compete with UConn in women's basketball--the women never lost a conference game. And the AAC was a lower-profile conference from which it was harder for the men to build a national-championship-level team (although it is impossible to know if the problem was the conference or being unable to replace Jim Calhoun as coach). UConn plans to maintain FBS football, so it is considering options for that team--staying in the AAC as a football-only school (Navy holds the same status), becoming a football independent, or joining another conference as football-only, perhaps C-USA (which is where FIU plays).
But this is the rare example of a school doing something to benefit its basketball teams at the expense of its football team.
Posted by Howard Wasserman on June 22, 2019 at 07:15 PM in Howard Wasserman, Sports | Permalink | Comments (1)
Friday, June 21, 2019
Pozen on video review and soccer
A nice takedown by David Pozen of how VAR alters the "rules" of soccer, for the worse. Pozen's argument echoes this piece on how body cameras affect policing.
Posted by Howard Wasserman on June 21, 2019 at 12:31 AM in Howard Wasserman, Sports | Permalink | Comments (1)
Wednesday, May 29, 2019
Politics and sports, again
The Fresno Grizzlies, the Washington Nationals' AAA affiliate, is being criticized for a video it showed on the scoreboard during its Memorial Day game. Images were shown over the sound of Ronald Reagan's First Inaugural; when the speech turned to "enemies of freedom," the video showed Kim Jong-un, Fidel Castro, Alexandria Ocasio-Cortez, and various protesters holding ANTIFA and "NO TRUMP NO KKK" signs. The team has apologized to Ocasio-Cortez specifically and to fans generally; the official team line is that the video was produced by a third party and found online (it seems to be available on You Tube) and no one with decisionmaking authority within the organization watched the whole thing.
This piece of an article, quoting Grizzlies General Manager Derek Franks is interesting:
Franks said it wasn’t a deliberate attack by the employee or the Grizzlies organization on the congresswoman.
“No, no, no, not at all,“ Franks said. “There was no ulterior motive. Our goal is never to mix baseball and politics and in this case, this was not an exception that was made. It was simply a careless mistake that we will make sure never happens again.”
First, bullshit as to the employee's intent. I can believe it was not a deliberate attack by the organization; I buy the excuse that no one with real authority in the organization watched the whole video. That is gross negligence, but not necessarily deliberate. But some low-level lackey must have watched the entire thing and put it forward, probably figuring no one above him was going to check his work.
Second, bullshit on the team not wanting to mix baseball and politics. It is impossible to not mix baseball and politics because baseball is loaded with politics. Otherwise the Grizzlies never would have shown the video. To suggest otherwise defines politics to mean partisanship--the National Anthem or a patriotic video is not political because both parties sing and like it. This is nonsense (even allowing that a speech by Ronald Reagan is non-partisan). There is nothing wrong with mixing baseball and politics--we have been doing it for 100+years--although it makes sense to keep your political message as anodyne as possible to avoid situations like this. But own the political nature of it.
Third, I am less troubled by the inclusion of Ocasio-Cortez (although I appreciate her complaint that things like this ramp-up the barrage of hate mail and threats she receives*) than I am by the inclusion of images of protesters. The idea that protesting--including protesting fascists, an unpopular President, and the KKK--makes someone an enemy of freedom to be defeated is, unfortunately, telling about where we have landed.
[*] And some morons cannot resist making things worse even when purporting to defuse the situation. Fresno Councilman Gary Bredefield called the video inappropriate, but could not stop himself from adding that socialism "is the exact opposite of our founding principles and traditional values"--in other words, that Ocasio-Cortez's political ideas, and thus Ocasio-Cortez, are un-American. Think that might set-off a few crazies with Twitter accounts?
Posted by Howard Wasserman on May 29, 2019 at 10:31 AM in First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (0)
Thursday, May 23, 2019
FIU Micro-Symposium: Infield Fly Rule Is in Effect (Updated)
I am happy to announce that FIU Law Review has published a micro-symposium on my book, Infield Fly Rule Is in Effect. We found nine people, in and out of legal academia, to write short comments, followed by my overall response. This was fun to put together.
I want to flag two contributions containing ideas that I really wish I had seen or thought of myself while I was writing the book, if only to respond to them.
Rob Nelson, a former minor-league pitcher and the founder of Big League Chew, introduced what he called the "Enfield Fly Rule." There are two versions, both designed to keep the basic protections of the Rule in place but denying to the defense any windfall from an unintentional drop. Under one version, an infield fly is a foul ball, so the batter is out if it is caught and the ball is foul if it is not caught. Under a second version, the ball is fair and live if caught (so the runners could tag-up), but a do-over if not caught (so it does not even count as a strike).
Spencer Waller (Loyola) identifies another non-baseball situation requiring a limiting rule--flopping in soccer and in basketball. Both fit the criteria I described for when a limiting rule is needed to deter the conduct and avoid an extraordinary benefit. What is interesting is that the solution both soccer and basketball have come up with is post-game sanctions of fines and/or suspensions should officials, upon reviewing plays on video, identify a flop. But these rules do nothing to sanction or deter the flop in the moment, thereby allowing the flopping player to gain the benefit of the flop (a penalty kick or red card in soccer, free throws or a turnover in basketball). So fines or suspensions may not provide sufficient deterrence against the conduct--a player may deem the flop worth it in the moment to allow his team to win, willing to deal with a fine or even one-game suspension after the fact.
Posted by Howard Wasserman on May 23, 2019 at 11:48 AM in Article Spotlight, Howard Wasserman, Sports | Permalink | Comments (0)
Wednesday, May 15, 2019
Ballparks as public spaces and free speech
Interesting interview with architectural critic Paul Goldberger about his new book, Ballpark: Baseball in the American City, in which he describes baseball parks as "a key part of a whole category of public space in the American city." I have a thing for old ballparks, so I look forward to seeing the book.
Goldberger's conception of the ballpark as "public space" is key to my arguments about fan speech. Because the First Amendment is understood as making (publicly owned or controlled) public spaces open for expressive activities, at least so long as expression is not inconsistent with other uses of that space. The grandstand of a ballpark is a large speech zone--the whole point of the space is to allow fans to speak in the form of cheering, shouting, waving signs, etc.
Posted by Howard Wasserman on May 15, 2019 at 09:31 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (5)
Saturday, April 20, 2019
On the need and scope of the Infield Fly Rule, Exhibit # 613
The Mariners turned a double play against the Angels on a fly ball to second base, on a play that illustrates two points about the need for and scope of the Infield Fly Rule.
The Angels had runner on first with one out. The runner, Brian Goodwin, broke for second; the batter, Justin Bour, popped the ball on the infield dirt near the second baseman. Goodwin ran back to first, while Bour, assuming the ball would be caught, began walking towards the dugout. Seeing this, one Mariners infielder yelled to his teammate to let the ball fall to the ground, which he did. He threw to second for the force on Goodwin (the third baseman was covering second on a shift against the lefty Bour), then a relay to first for the inning-ending double play on the non-running batter.
This demonstrates why baseball does not have or need a limiting rule for fly balls with a runner on first base only (so a force in effect at only one base). There would have been no chance for a double play on this play had Bour run (or even jogged) to first base. The Mariners might have chosen to let the ball fall to the ground to get the one out as a force on the speedy Goodwin while allowing Bour to reach first. But that is a relatively equitable exchange--one out for one baserunner, with a loss of speed on the basepaths. The Mariners gained the inequitable advantage of an inning-ending double play only because Bour did not do what he is expected to do--run to first base on a batted ball.The video provides a great shot of why the Infield Fly Rule is necessary. Watch the play, imagining a second baserunner on second. We can see how easy it would have been for the second baseman to let the ball hit the ground and immediately make the first of one or two throws for a double play--had the fielder been quicker grabbing the ball off the ground, he could have made one throw to second base for a tag-the-runner-on-second/tag-the-base-to-force-the-runner-on-first double play. And we can see how screwed the baserunnners would be. Having run all the way back to first, Goodwin could not turn around and run 90 feet the other way in time to beat the throws; neither could a second baserunner. And this is with the defense being somewhat nonchalant on the play and a bit confused, because it was unexpected. Imagine life without the Infield Fly Rule, when the defense plans and practices for this play and is ready to pull it off.
Posted by Howard Wasserman on April 20, 2019 at 04:25 PM in Howard Wasserman, Sports | Permalink | Comments (1)
Saturday, March 23, 2019
Football or basketball? Boise State or Gonzaga?
A thought hatched while watching the first two rounds of March Madness and the various mid-major schools winning or playing competitive: If you run a university and want to make a name for yourself through athletics, would you rather have a good football program or a good basketball program and is it better to throw (a limited amount of) money into developing football or basketball?
The prevailing answer is football, because that draws more alumni interest and money. Schools such as UNC, Kansas, Duke, and Kentucky (or Indiana and UConn back in the day)--consistently great in basketball, generally non-competitive with the rare-blip exception in football--still believe that football success is essential. Jealousy of football contributed to the fall of the original Big East (which has been reborn as a basketball-first conference of Catholic schools, all technically east of somewhere). On the other hand, success in basketball seems easier to obtain--a basketball program costs less than a football program and success can be established by snagging two or three great players. And basketball comes without football's physical and moral baggage.
This question is especially salient for schools such as FIU--non-flagship public schools in a low-mid-major conference (comprised of similar schools and one former SWC school no one else wanted) with a finite amount of money to spend on this project. Consider:
Sustained football success caps out at competition in the conference, conference championships, and invitations to obscure, middish-December bowl games that no one watches against similar low-mid-major schools. The chance to make that leap is limited by the conference. And even if you make the leap, you remain locked out of the highest level of competing for a national championship, which will never look beyond the power conferences and Notre Dame. And all this requires a lot of money and a lot of player, who may suffer severe mental and physical problems because of the sport.
Sustained basketball success could mean consistent appearances in the NCAA Tournament, with early-round games watched or followed by many people and early-round victories offering more opportunities to play top-level teams on national tv. There is a chance, however remote, to play for a national championship. The Tournament Selection Committee is at least a bit more solicitous of non-power-conference schools, this year inviting multiple schools from some non-major conferences.
The question, in short: Is it better to be Boise State or Central Florida in football or Gonzaga or Wichita State or Towson or George Mason in basketball? The prevailing wisdom is the former; I would take the latter.
Posted by Howard Wasserman on March 23, 2019 at 04:14 PM in Howard Wasserman, Sports, Teaching Law | Permalink | Comments (5)
Sunday, February 24, 2019
New flag controversy at Ole Miss, different result (so far)
Prior to a game played while about 100 pro-Confederacy protesters marched through Oxford and onto campus a few hundred feet from the arena, where they were met by about 50 counter-protesters.
At least so far, no one has criticized the players, not even the President. I am curious whether anyone will do so, given that this in specific response to what many people regard as a racist rally by a "hate group." This also highlights the changing meaning of using the flag to counter-speak--the message here was different in context than what Kaepernick did. Finally, we have clear state action here, unlike with the NFL; any attempt to punish the players would implicate First Amendment rights.
Ole Miss Coach Kermit Davis spoke about it after the game (video is embedded in some of the links above):
This was all about the hate groups that came to our community trying to spread racism and bigotry, you know, in our community. It’s created a lot of tension for our campus. I think our players made an emotional decision to show these people they’re not welcome on our campus. We respect our players freedom and ability to choose that.”
Davis' support is important because when was announced as coach last spring, he went out of his way to announce that he would create a program with a "respectful team that respects the flag and the National Anthem." Perhaps he now realizes that these protests are not disrespectful--or at least that it is not as simple as throwing around the word respect.
Posted by Howard Wasserman on February 24, 2019 at 01:12 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (4)
Tuesday, January 22, 2019
Frivolous lawsuits for me but not for thee
What are the odds that the New Orleans Saints season-ticket holders bringing these absurd lawsuits vote Republican and support litigation reform?
Posted by Howard Wasserman on January 22, 2019 at 11:31 PM in Howard Wasserman, Sports | Permalink | Comments (10)
Thursday, December 20, 2018
Ipse Dixit on the Infield Fly Rule
On Thursday, I did an interview with Brian L. Frye (Kentucky) for his Ipse Dixit Podcast on my new book on the infield fly rule. It was a fun conversation.
Posted by Howard Wasserman on December 20, 2018 at 05:21 PM in Books, Howard Wasserman, Sports | Permalink | Comments (0)
Wednesday, December 19, 2018
A different take on the purpose of the Infield Fly Rule
Baseball historian (and paralegal) Richard Hershberger for the fall 2018 issue of SABR's Baseball Research Journal argues that the infield fly rule developed from the difficulty of defining and determining when an infielder had caught the ball. He traces the 20-year evolution of the definition of catch, including the development and use of a "momentarily held" standard for only infield-fly situations (the batter is out if the infielder "momentarily held" the batted ball). This marked an "expansion" of when the batter is out, removing for baserunners, umpires, and infielders confusion over when the ball was caught and thus over whether they were forced to run. The ultimate Infield Fly Rule took this to its logical conclusion, but rendering the batter out no matter if, how, or how long the infielder touched the ball.
I am sorry this paper was not out while I was writing the book; I would have enjoyed discussing and responding to it in the book.
Posted by Howard Wasserman on December 19, 2018 at 07:13 PM in Howard Wasserman, Sports | Permalink | Comments (2)
Thursday, December 06, 2018
Infield Fly Rule is in Effect: The History and Strategy of Baseball's Most (In)Famous Rule
I am thrilled to announce that Infield Fly Rule is in Effect: The History and Strategy of Baseball's Most (In)Famous Rule has been published by McFarland Press. This brings together all the writing I have been doing on the subject since 2012, in multiple law review articles and on this blog, including a full eight seasons of an empirical study of the rule's invocation.
Makes a great gift for the baseball fan in your life. And there are four more days of Channukah and three weeks until Christmas.
Posted by Howard Wasserman on December 6, 2018 at 09:31 AM in Books, Howard Wasserman, Sports | Permalink | Comments (3)
Sunday, November 04, 2018
Perfection, athletic skills, and sports
This Deadpsin piece defends the scoring system in gymnastics, under which Simon Biles won the all-around despite falling in two events (her routines have such a higher degree of difficulty than everyone else that even large point deductions for falls do not bring her back to the pack.
The piece includes the following:
Gymnastics is is an aesthetic, performance-based sport. As such, its ideas of winning and perfection are deeply intertwined. The history of the sport suggest that victory and perfection often go hand in hand, and that you can’t have the former without the latter.
Ideas about “perfection” exist in other sports too. There is such a thing as a perfect game in baseball, and they are always the same—a pitcher faces 27 batters and gets them all out in order. Football’s quarterback ratings are notably, ridiculous obscure, but an upper boundary exists and a few dozen quarterbacks have hit it over the years. Perfection is as rare in those disciplines as it is anywhere else. It’s special, but by no means a guarantee of victory. A pitcher can be perfect through nine and watch his bullpen blow it in the tenth; a quarterback putting up a perfect 158.3 has given his team a chance to win, but only a chance.
This captures my line between sport and non-sport. Performing skills perfectly or well is intertwined with victory in non-sports, because victory is determined by a judgment on the internal value and quality of those skills. Victory in sport is extrinsic, determined by the outcome of the performance of the skills and not by the skills themselves. This is true not only for the aesthetic quality of the skill (how nice the jump shot looks or how hard the pitcher throws), but the overall performance of those skills, which still may not produce victory.
Posted by Howard Wasserman on November 4, 2018 at 09:31 AM in Howard Wasserman, Sports | Permalink | Comments (2)
Saturday, October 27, 2018
Update on the Yiddishe World Series
We are three games into the 2018 World Series, featuring one Jewish player on each team. The first two games, both Red Sox wins, were quiet on this front. Ian Kinsler started both games at second for the Red Sox and was a combined 1-for-7 with an RBI. Dodgers outfielder Joc Pederson did not start either game; he was one of the Dodgers' four top hitters, all left-handers, who did not start against lefty starters, although he entered both games late, going 0-for-3 combined.
Game Three, an 18-inning Dodger win and the longest game in World Series history, had the Great, the Good, and the Ugly for the Chosen People.
The great:
Sandy Koufax gave Dodger starter Walker Buehler a standing ovation as Buehler left the mound after pitching seven innings of two-hit shutout ball with nine strikeouts. Koufax is two months shy of 83 and looks as if he still could pitch.
The good:
Pederson gave the Dodgers a 1-0 lead with a home run in the third. But for a blown save, that would have been the game-winning hit.
The ugly:
Kinsler. Inserted as a pinch-runner in the 10th, Kinsler was almost picked-off first. He was called safe and the call upheld on replay review, although it was close. Kinsler then advanced to third on a single, but overslid third base and barely scrambled to get his foot back on the base before being tagged. He then was thrown out trying to score on a fly ball to center. The throw was off-line, up the third-base line. But Kinsler got such a slow break off third that he basically ran into the tag about fifteen feet before the plate.
Then, with the Sox up 2-1 with two out in the bottom of the 13th, Kinsler's wild throw on a grounder up the middle allowed the tying run to score and the game to continue for five more innings and a 14th-inning stretch. Game Four in about nine hours.
Posted by Howard Wasserman on October 27, 2018 at 10:36 AM in Howard Wasserman, Religion, Sports | Permalink | Comments (0)
Sunday, October 21, 2018
Infield Fly Rule as Mitzvah
On last week's edition of Tablet Magazine's Unorthodox podcast, a listener letter (read at the 1:07 mark) argues that baseball is the most Jewish sport, because it has "long tradition, weird and obscure rules that are subject to interpretation and doesn't change on a whim."
I like it, but it got me thinking: Which of the 613 Mitzvot is analogous to the Infield Fly Rule?
Posted by Howard Wasserman on October 21, 2018 at 09:31 AM in Howard Wasserman, Sports | Permalink | Comments (3)
Thursday, October 18, 2018
Historical baseball note
This may prove premature; if so, I apologize. The Red Sox and Dodgers, two of MLB's historic franchises, are each one game away from the World Series, so I had to look up whether they had ever met in the World Series in those long histories. The answer is in 1916, when Babe Ruth was the Red Sox star pitcher and the team from Brooklyn was known as the Robins. The broadcasters could have fun with this one.
Posted by Howard Wasserman on October 18, 2018 at 06:58 AM in Howard Wasserman, Sports | Permalink | Comments (1)
Saturday, October 13, 2018
Catch-up rule in baseball
I missed this paper by two game theorists (one at NYU) and some news stories about it. It proposes the following change to baseball's rules: A team that is leading gets only two outs in its turn at bat. The goal is to shorten games and to make games more competitive by giving trailing teams an opportunity to come back. It then applied the rule to all MLB games from 1967-2017, finding that it shortened the average game by about five outs (about 24 minutes) and the average score difference by more than one run. I am not sure what to think about this, although WSJ sports columnist Jason Gay is a fan (subscription required).
Posted by Howard Wasserman on October 13, 2018 at 12:21 PM in Howard Wasserman, Sports | Permalink | Comments (11)
Wednesday, October 10, 2018
Back-to-back Jewish World Series
Baseball's final four is set and all four teams have one Jewish player--Ian Kinsler (Red Sox), budding superstar Alex Bregman (Astros), Joc Pederson (Dodgers), and Ryan Braun (Brewers). This means we are guaranteed a consecutive two-Jew World Series for the first time (previous two-Jew Series before last year were 2004, 1959, 1945, and 1940). Moreover, each is a regular starter for his team.
Truly baseball's new gildene elter.
Posted by Howard Wasserman on October 10, 2018 at 07:14 AM in Howard Wasserman, Sports | Permalink | Comments (4)
Thursday, September 20, 2018
An infield fly rule for fake fair catches?
Last weekend, North Texas pulled off an amazing trick play, scoring a touchdown on a punt return by having the entire team (and everyone had to be involved) pretend the returner had called for a fair catch, then racing upfield when opposing players ran to the sideline believing the play was over. On Tuesday, there were conflicting reports as to whether the NCAA was considering outlawing the play. This New York Magazine piece by Will Leitch suggests a rule change may be necessary, with arguments sounding in the infield fly rule.
The infield fly rule (and similar rules) is necessary to address situations defined by four elements: Team A acts contrary to ordinary athletic expectations or fails to do what is ordinarily expected; that move produces an extraordinary cost-benefit advantage; Team B is powerless to counter the move in light of the game's rules, practices, and structure; and that imbalance creates a perverse incentive for Team A to try this often. Leitch's piece suggests that this is a situation requiring a limiting rule.
The key is the third element of Team B's powerlessness to counter the play in light of the game's structure. The punting team's counter is obvious--play to the whistle and hit the ball carrier unless you see the fair-catch signal and/or hear the whistle. But Leitch argues that the renewed focus on head injuries and player safety has changed that calculus. Tacklers no longer want to light-up a defenseless ball carrier and likely will draw a penalty for doing so, even if the hit was legal, because it "looks bad" and results in an injury. And it already can be hard for the punt coverage team to see and determine the fair catch signal. North Texas' coaches essentially exploited that reluctance and that limitation on the tackler.
So while there is a counter, it is one that the tackling team will be unable to utilize without risking penalties on anything that looks close, making not a meaningful counter. Alternatively, if such hits are not going to be called, Team B gets its counter, but it is one the game's rulemakers will not want to encourage. This become a situation that gives one side a cost-benefit advantage (and thus a perverse incentive) and leaves the other powerless to respond, at least without creating other problems in the game's structure.
My first thought after this play was that it was a one-time, not-replicable event, because punt-coverage players now will be instructed to hit the returner unless they hear the whistle on the fair catch. Leitch's piece convinced me otherwise, that the cultural shift away from hitting defenseless players creates a limit on the tackling team and thus a control disparity that requires a limiting rule.
Posted by Howard Wasserman on September 20, 2018 at 11:50 AM in Howard Wasserman, Sports | Permalink | Comments (3)
Friday, September 14, 2018
Serena and the umpire
I am a week late to the conversation about the blowup between Serena Williams and the chair umpire during the US Open women's final. I do believe there is a race-and-gender piece to this, although it is not as simple or direct as some make it out to be. Kevin Drum has a good blow-by-blow of events and I agree with his descriptions and conclusions. I repeat some of his points with additional commentary below.
• The first called violation and warning, for coaching, was correct, as even her coach, Patrick Mouratoglou, admitted he was coaching. And however common coaching is,* it does get called, against men and women, black and white. And this chair umpire is known to call it more than others. This perhaps could have been an instance in which Mitch Berman's temporal variance was appropriate and it should not have been called midway through the second set of a Grand Slam final. And race and sex might have had something (not everything, but something) to do with the umpire's willingness to call a ticky-tack violation at that key time.** On the other hand, Drum points out that the coaching was not subtle, so an easy target for this call.[*] Or should be. I recognize the argument, that Mouratoglou made when interviewed after the match, that the rule should be eliminated. That has no role to play here. Civil disobedience is still a crime and still punishable until the unjust law is repealed.
[**] Berman's temporal variance argument begins with one of Williams' previous officiating meltdowns, in the 2009 Open semi-finals.Williams was called for a foot fault on a second serve when she was down 15-30 and serving to stay in the match. The call pushed her to 15-40 and match point. That prompted Williams to threaten the line judge, resulting in a code violation. And because Williams had received a violation for--wait for it--smashing her racket, the violation resulted in a point penalty and the end of the match. Pattern of behavior? Pattern of targeting the African-American woman with ticky-tack calls at key moments? Bit of both?
• The interesting thing about this call--and the thing that caused many of the subsequent problems--was that Williams took it as a personal affront to her, an accusation that she was cheating. She protested the call by talking about her daughter and how she would rather lose than cheat; her later demand for an apology was premised on this understanding, that the ump had accused her of cheating. But any "cheating" was by the coach, not Williams. Coaching is "communication, advice or instruction of any kind and by any means to a player," which Mouratoglou was blatantly and not subtly doing via hand signals; the rule does not require that the player see, hear, or respond to the coaching, only that the coach engage in communication. So her taking this as an affront to her honesty or sportsmanship misunderstands the nature of the rule. The player is punished for the coach's misconduct (presumably so the player will tell the coach to knock it off). But the player need not do anything wrong for the infraction to be called.
• Williams somewhat undermined her own cause here. She insisted that she had not seen any coaching, but that is beside the point. But Williams also said she had looked up and seen Mouratoglou, but he only was giving her the thumb's-up. This suggests that she saw something and there was some communication. Unfortunately for Serena, the cameras were following Mouratoglou and it appeared he was doing much more than giving the thumb's-up.
• The second violation, for breaking the racket, which resulted in a point penalty as a second infraction, is a no-brainer--she did, in fact, destroy her equiment. And, again, the argument that the rule is stupid and made for a game that was played by delicate white men and not strong, athletic, competitive African-American women is beside the point. Again, if the rule is bad, change the rule; otherwise, follow it. A game before Osaka had slammed her racket after a mistake, but the racket did not break, so there was no violation.
• My point of departure from Drum is whether sex (and race) had anything to do with the third violation, for umpire abuse (which resulted in the game penalty). This was a judgment call and Williams was ranting. But we see men's players, especially the top men's players, given a lot more leeway in arguing with officials; it is difficult to imagine any of the top-three men's players getting called for saying the same things Williams did, especially at that point in a championship match. This infraction was not called solely because Williams is an African-American woman. But it is not an unreasonable inference that the umpire's fuse was shorter with her than it would have been with a white man, especially accounting for her position as the GOAT and the idea that the GOAT gets away with more.
• The one reason the call makes sense, apart from race and sex, is that Williams personalized it--she said, "You're a thief." Baseball umpires, asked about the magic word that will prompt them to eject a player, say "You"--in other words, players can say a lot of words, as long as they do not personalize those words to the umpire. (To use the famous example in the movie Bull Durham, Crash does not get ejected when he screams cocksucker at the umpire, only when he says to the umpire "you're a cocksucker."). I am not sure if it is the same in tennis, but that could set her comments apart.
Posted by Howard Wasserman on September 14, 2018 at 10:52 AM in Howard Wasserman, Sports | Permalink | Comments (15)
Monday, September 03, 2018
Two free expression stories for Labor Day
First, Nike is celebrating the 30th anniversary of its Just Do It campaign. Here is the opening image, with the tag line "Believe in Something. Even if it means sacrificing everything." Good for Nike, which has always mixed its product advertising with political messages. I assume the company calculated the lost sales from the more than half the country that seems to oppose the player protests. Or it has more corporate courage than the NFL.
Second, a group called USA Latinx raised almost $ 10,000 in one day to rent this billboard for about $6000. The fundraising effort was helped by Parkland survivor David Hogg, who tweeted about the campaign. The billboard is a response to President Trump's announced plan to come to Texas to hold a rally in a big stadium in support of Ted Cruz's re-election campaign. Several contributors to the GoFundMe campaign urged the group to raise more money to put these ads all over the state.
I presume USA Latinx believes that money is not speech, that corporations have no speech rights, and that Citizens United is the fourth-worst SCOTUS decision ever. Do its leaders realize that this is a campaign expenditure and that they are a corporation or other entity? Do they realize that if money were not speech, there would be no limit on government halting such expenditures? Do they realize that a $ 5000 expenditure limit or a bar on expenditures within 90 days of an election (all perfectly lawful if money is not speech) renders this unlawful?
Posted by Howard Wasserman on September 3, 2018 at 05:48 PM in Culture, First Amendment, Law and Politics, Sports | Permalink | Comments (5)
Sunday, August 12, 2018
Every snowflake is different
How is this complaint about NFL player protests from the head of the Broward County PBA different from the complaints from liberals (on- and off-campus) who are derided as "snowflakes" for objecting to Richard Spencer, Milo Yiannapoulos, Chick Fil-A, et al. The PBA is calling on members to boycott and not do business with the team. It is demanding that the Dolphins no-platform the players, calling on an entity to deny a speaker the opportunity to present his message. And the complaint is that the speaker's message is a "slap in the face" to the complainer, who is offended by the speech. There is no practical difference between the two situations.
Posted by Howard Wasserman on August 12, 2018 at 02:44 PM in First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (9)
Saturday, August 11, 2018
Flag protests and public employees
The assumption among supporters of protesting NFL players and critics of the NFL is that the league is trampling on the players' free-speech rights, that the players have a free-speech right to protest the anthem, save for the absence of state action. But the assumption is that if there were state action, the First Amendment would protect the players. Let's push on that question, with a hypothetical to which I genuinely do not know the answer:
The head of a government agency or office (it does not matter what level of government or what office) has decreed that the workday shall begin every day at 8:30 a.m. by everyone in the office standing before the flag with hands over hearts, recite the Pledge of Allegiance, and sing America, the Beautiful. The director explains that this symbolic reaffirmation of America reminds public officers of their obligations to the Constitution and to the public they serve in performing their jobs. Must an objecting employer, who believes that America's criminal-justice policies are discriminatory, participate in this ritual?
There are several doctrinal paths competing for attention here.
1) Barnette says students cannot be made to participate in the flag salute. By extension, it should mean other people cannot be compelled to participate in other patriotic rituals. Certainly Jackson's rhetoric speaks of patriotic rituals, not only the Pledge in schools. There also is a nice question of how far the Barnette protection extends--to speaking the words of the Pledge or anthem or to all engagement in the ritual. In other words, does Barnette mean you can opt-out entirely by kneeling or sitting or leaving the room? Or does it only mean you cannot be compelled to utter the word, but can be made to stand there, even at attention?2) Employee speech rights within the workplace are limited, under the Garcetti/Connick/Pickering line of cases. Workplace speech that is part of the job is per se unprotected, while Connick/Pickering ask whether speech (whether in or out of the workplace) is on a matter of public concern and whether the employer's interests outweigh the employee's expressive interests. But on-the-job core political speech, however offensive, that does not affect government operations is protected. Thus a deputy sheriff could not be fired for stating, in a conversation with co-workers, her hope that a second assassination attempt on President Reagan would succeed.
3) Janus can be read to accord public employees greater protection against compelled speech than they enjoy against restrictions on their own speech, a criticism Justice Kagan leveled in her dissent. Kagan also predicted that Janus was about limiting public unions, not compelled speech generally, so a rule compelling employees to speak in a way other than donating money to a union.
So what might be the answer to my hypo? There are a couple of threshold question. First is how we should understand what the protesting employee (or an NFL player) is doing. Is he seeking to opt out of having to utter the government's message? Or is he trying to make his own affirmative statement about something (e.g., police violence)? This makes a difference between whether we are in Barnette/Janus or Garcetti/Pickering. Second is how much deference the court owes the government in defining what speech is part of the job. So will the court buy the government argument that the pre-opening patriotic ritual is designed to remind employees of their public duties and obligations and thus part of their public jobs. And, if not and we are in Connick/Pickering, how disruptive of the workplace the court deems non-participation to be. Third, if this is compelled speech, can it really be that children in school enjoy greater protection against compelled speech than adults in the workplace?
Again, I do not know the answers, although I know I believe it should come out. Thoughts?
Posted by Howard Wasserman on August 11, 2018 at 11:41 AM in First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (3)
Thursday, August 09, 2018
State action and NFL protests
This morning, I participated in a discussion group at SEALS on the NFL protests; other discussants were Todd Clark (UNC Central), dre cummings (Arkansas-Little Rock), Michael Green (Texas A&M), and Arnold Loewy (Texas Tech). For my piece, I threw out some arguments under which the NFL or its teams could be deemed to act under color of state law and thus become subject to First Amendment limitations. I do not believe the arguments are especially strong, but I flesh them out after the jump. I consider two circumstances: 1) the current one, in which the NFL is seeking to stop players from protesting. and 2) an Indiana proposal that would require teams to provide refunds to fans offended by players kneeling at Colts game (this was introduced in December 2017 and nothing has been done, so I doubt this remains a live possibility).
1) Close Nexus: Private actors act under color if they act under compulsion, coercion, or "overwhelming encouragement" of state officials. There is evidence that the league and the owners have acted out of fear of President Trump's tweets and general demagoguery and a desire to appease the President. Is that sufficient coercion or encouragement? Does it matter that the tweets are targeted specifically at the NFL and even particular players? I doubt this works, but the outline of the argument is there.2) Symbiotic Relationship. A powerful (if questionably valid) basis is when there is an exchange of mutual benefits between the government and private actor, including where the government benefits from the unconstitutional conduct. The key here is the militarization of the NFL. The military and Department of Defense have paid the NFL millions of dollars to have the league promote patriotism and the military and player participation in the ritual is part of that.* The NFL gets a lot of money, the military and government is promoted and uses this as recruiting opportunities. To the extent those arrangements depend on a clean patriotic presentation and player protests interfere with that, perhaps limiting player protests could be seen as a way to maintain its arrangement with the military. We probably need to learn more about the deals between the NFL and DOD--what each party gets and what the league is expected to do as part of the deal. Again, this is tough, especially because some lower courts do not accept this as a valid test.
[*] On the radio program I did last month, former NFL player Joselio Hanson pointed out that the players remained in the locker room during the anthem prior to 2009. That change suggests a connection between player participation and the business deal between the league and the government.
The state action arguments work better as against the Indiana proposal, which will not become law in Indiana, nor will anything similar become law elsewhere.
3) The Indiana bill creates a close nexus, as the threat of monetary liability to the objecting fans compels or coerces the team to prohibit the players from protesting. Although the trigger for the monetary loss is a private complaint rather than a government-imposed find, the obligation of the teams to respond to the private complaint is government-imposed. In the same way that tort liability and a government fine are the same for state-action purposes, a compelled refund and government fine should be the same.
4) The Indiana bill resembles landlord ordinances. Landlords are threatened with fines or loss of license for having too many tenant 911 calls for disturbing the peace (including calls seeking help from domestic violence); the solution for landlords is to evict these tenants, prompting the tenants to refrain from calling 911, thereby increasing their vulnerability to violence. Although the eviction or threat of eviction comes from the private landlord, it is prompted by the threat of fines or loss of license if they do not evict. The same is going on here--the team is threatened with financial loss to the complaining fan, so it restricts the players' (constitutionally protected) conduct that might cause the team that loss. There is an extra player in the mix compared with the landlord situation; the latter has the government, the landlord, and the tenant, while this has the government, the team, the players, and the complaining fan. But again, there should be no difference between a fine and private liability when both are compelled by the government.
Posted by Howard Wasserman on August 9, 2018 at 11:39 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (10)
Thursday, July 26, 2018
More on the "Elam Ending" in Basketball (Updated)
I watched my first basketball game (in The Basketball Tournament) using the Elam Ending, the new rules designed to eliminate late-game fouling by a trailing team seeking to come back (the game clock is shut-off at the 4:00 mark and the teams play until one team reaches +7 points of the winning team when the clock was shut off). In this game, A lead X 80-74 at the 4:00 mark, so the target score was 87. X came back thanks to some big three-pointers and some sloppy offense by A to tie the score at 86. A won the game on a free throw following a questionable foul call on what looked like a clean steal that was about to lead to a possible game-winning fast-break for X.
1) X's offense during the untimed period still seemed rushed, in a hurry to throw up threes and get back a lot of points at once. Even with the clock off, there is a sense that, with A at 83 points, there are only a few possessions left, so they have to score in larger bunches, if not necessarily early in the shot clock.
2) I had thought that one goal was that with no clock, each team could execute its "normal" offense down the stretch, but I did not see that from either team. As I said, X seemed in a hurry to score and to shoot 3's. A seemed to tense up, not knowing how to play in this odd situation.
3) There still was an intentional foul. Leading 86-84, A intentionally fouled, giving X two free throws to tie the game, and give A the ball back with the chance to win, rather than risk a game-winning three. But this is equivalent to current practice of fouling up 3 in the closing seconds and a strategy I expected to survive.
Update: The Ringer considers NBA games with historically famous endings (including Michael Jordan's end-of-Bulls-career-game-winner) that would have been changed, while The Big Lead does the same with college games.
Posted by Howard Wasserman on July 26, 2018 at 11:40 PM in Howard Wasserman, Sports | Permalink | Comments (3)
Tuesday, July 24, 2018
Three items for light reading and listening
Two unconnected items I found interesting.
1) David Sims of The Atlantic on the 20th anniversary of Saving Private Ryan and the sense of bitterness and pointlessness reflected in that and other of Spielberg's later movies. One of my early Prawfs post asks whether Private Ryan "earned" the sacrifices made for him and this ties into that.
2) Howard Bryant on the objections by some veterans to the commercialized faux patriotism and militarization of sports. (Bryant is the author of The Heritage: Black Athletes, A Divided America, and the Politics of Patriotism and the article is outgrowth of some of the interviews he did for the book). Bryant is the guest in the first segment of this week's Hang Up and Listen podcast.
3) Slate's Christina Cauterucci criticizes the decision of the US Women's Soccer team to call up Jaelene Hinkle for an upcoming tournament. Two years ago, Hinkle declined a spot on the team for "personal reasons," which this spring she revealed to be objections to wearing a kit with rainbow-colored numbers to mark Pride Month, consistent with Hinkle's opposition to LGBT rights. Cauterucci argues that US Soccer "sold out" its LGBT players and fan base. Cauterucci is in the second segment of the podcast. Unfortunately left unsaid in this article and in the podcast segment is that it is impossible to adopt Cauterucci's argument and argue that NFL players should not have to stand for the anthem, without engaging in some pretty blatant viewpoint discrimination.
Posted by Howard Wasserman on July 24, 2018 at 04:46 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (4)
Infield shifts and limiting rules
Scoring is down in baseball this season (and has been on a downward trend in recent years). Some of the decline is being attributed to the increasing use of defensive shifts, especially against left-handed pull hitters, with teams situating four defenders to the right of second base and placing the second baseman in shallow right field, where he is close enough to field a grounder and throw out the runner. SI's Tom Verducci shows the effects and offers an "illegal defense" rule--prohibiting teams from placing three infielders on one side of the field (so the shortstop could be only as far as even with second base) or requiring infielders to have one foot on the infield dirt (removing the rover in short right field).
In devising a framework to explain the Infield Fly Rule and other rules that seek to limit or eliminate strategic moves within a sport, I distinguish true limiting rules from aesthetic rules. True limiting rules are designed to avoid or eliminate extraordinary cost-benefit imbalances on plays, while aesthetic rules are designed to ensure the beauty of the game. For example, the I/F/R and the rules on uncaught third strikes are true limiting rules; Offside in soccer or rules designed to limit end-of-game fouling in basketball are aesthetic.
I had thought of the possible responses to shifts as aesthetic, because the cost-benefit disadvantage was not unavoidable if the batter could and would learn to hit away from the shift. But the stats Verducci musters give me pause. There appears to be a structural disadvantage for left-handed hitters, something baked into the game that works against these players and that cannot be overcome, at least without altering the game. And while playing the second baseman in shallow right field is not as obviously contrary to expectations as intentionally not catching a fair fly ball, it is out of the ordinary for what we understand of the game.
So the need for an "illegal defense" rule may be not a question of making the game look good, it may be a question of its basic situational competitive balance.
Posted by Howard Wasserman on July 24, 2018 at 11:31 AM in Howard Wasserman, Sports | Permalink | Comments (5)
Pine Tar at 35
Today marks the 35th anniversary of the PineTar Game, when the umpires overruled a home run and called out George Brett of the Royals for having too much pine tar on his bat, only to have the league reverse the decision, reinstate the home run, and have the teams complete the game (from two outs in the top of the ninth with the Royals leading). The game even produced scholarship on statutory construction and judicial decisionmaking. Video after the jump.
Posted by Howard Wasserman on July 24, 2018 at 09:31 AM in Howard Wasserman, Sports | Permalink | Comments (0)
Thursday, July 19, 2018
NFL and NFLPA enter standstill agreement on anthem policy (Updates)
Thursday saw sudden activity on the NFL's anthem policy. Late in the afternoon, reports revealed a "discipline schedule" submitted by the Miami Dolphins to the NFL listing improper anthem conduct (i.e., not standing at attention) as conduct detrimental to the club that could be punished by up to a four-week suspension. The Dolphins and the league quickly backtracked, insisting that this was a routine document that every team had to submit prior to the start of training camp and that the team had not decided if or how to punish protests, but that it "has no intention of suspending a player for four games based on any type of anthem protest."
Late in the evening, the NFL and NFL jointly announced a "standstill agreement" on the league policy and the union grievance (filed last week). The league will not issue or enforce new regulations, the union will stay its grievance, and the sides will continue ongoing confidential discussions. I agree with Deadspin that this is another example of the NFL's incompetence and inability to get out of its own way on this issue--it pushed the policy through as a display of muscle at a time when the issue had mostly dropped off the radar, then abandoned that policy in the face of the grievance and the bad press the Dolphins received this afternoon.
At least the President will have something new to tweet about tomorrow morning. [Update: It took a day longer than I expected, but the tweet that arrived had the advantage of blatant lies about the content of NFL player contracts. And I like the response of NFLPA President Eric Winston] (Actually, it would be nice to spin a conspiracy that the NFL and the owners have taken this self-inflicted wound as an intentional wag-the-dog move to help the President avoid the continued fallout of his meeting with Putin).
I will close on a serious question underlying all of this: Could a public employer require its employees to recite the Pledge or sing the anthem at the start of each day, as part of the job? Janus suggests that the limits on public-employee speech (in which speech that is part of the job cannot form the basis for a First Amendment claim) do not apply to rules compelling employees to speak as part of their job. But does that hold outside of union fees? There is an argument that an employer (even one bound by First Amendment doctrine) can control its employees' speech. But is that equally true for an employer seeking to compel its employees' speech?
Second Update: Conor Friedersdorf of the The Atlantic urges NFL players to square the circle--continue protesting while not playing into Trump's hands. The problem is that the anthem remains their most visible expressive platform. If any flag- or anthem-related protest will be demagogued by this President, as surely will be the case, I am not sure what the players can do.
Posted by Howard Wasserman on July 19, 2018 at 11:17 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (4)
Wednesday, July 11, 2018
Is competitive eating a sport?
I should have written this last week, after watching the Nathan's Hot Dog Eating Contest on July 4, but I never got around to it. Anyway, is competitive eating a sport? The announcers spent a lot of the broadcast talking about how 11-time champion Joey Chestnut trained and worked his mouth, jaws, esophagus, and digestive tract to take and swallow such large amounts of food.
My four-part definition of sport is: 1) Large motor skills; 2) Simple machines; 3) Competition; and 4) Outcome determined by success in performing skills to achieve some other instrumental end, rather than for the virtue of the skill itself. Numbers 2-4 are satisfied--it is a competition, no machines are involved, and the skill of eating and swallowing is performed to the end of consuming lots of food. So the question is whether chewing and swallowing qualify as large motor skills.
Posted by Howard Wasserman on July 11, 2018 at 08:55 AM in Howard Wasserman, Sports | Permalink | Comments (9)
Friday, June 08, 2018
Ali/Trump
Before leaving for Canada, the President made statements at the White House that he is "very seriously" thinking about issuing a pardon for Muhammad Ali and that protesting NFL players should let him know about "people that they think were unfairly treated by the justice system" or of "friends of theirs or people they know about." I know this was Trump speaking off the cuff, which is not something he is good at (at least if we are looking for things that make sense). And it is on a silly subject, compared with other behavior by him and his administration. But there is a lot here that illustrates how the President understands (or misunderstands) the world, politics, the Constitution, his power, and law.
• Ali's conviction for refusing induction was reversed on appeal, the United States never reprosecuted him, and DOJ conceded that Ali's objections to induction were religiously based and that his beliefs were sincerely held. As Ali's lawyer stated in response to the President's offer, there is nothing for which Ali must be pardoned, as he has no existing conviction and is not under threat of future prosecution for his past actions. Is Trump aware of that?
• In Trump's world, someone who declines to engage in a patriotic ritual derogates and insults the military and should be deported; someone who refuses to join the military and fight in time of war does not, such that a conviction for disregarding his legal obligation to fight reflects an unfair sentence warranting a pardon. Such disparate understanding of symbolic patriotism compared with fighting for the cause is striking and incoherent. But it is consistent with the NFL's symbolic patriotism. And it is consistent with the President's symbolic patriotism, as he similarly went out of his way to avoid service in Vietnam, without having to justify his reasons for not going or losing four years of his career to his efforts.
• All politics is personal. The NFL players must be speaking out about injustices done to their friends or specific people they know and want to help, just as the President uses the pardon power to help his friends or individuals he knows and wants to help. He does not conceive of systemic problems that affect thousands of people, who need help not by the individual remedy of a pardon but by systemic reform. Nor does he appear to understand why players would protest for a cause disconnected to individuals that they know and care about.
• The players are protesting systemic racism, violence, and differential treatment in the criminal-justice system This includes police killing unarmed or non-threatening persons of color with impunity. How does a pardon affect that? Walter Scott is dead, so a pardon does not do him much good. Of course, one of the President's pardons was granted to Joe Arpaio, who was convicted of contempt of court for refusing court orders to stop discriminating and using unjustified violence in his role as a police officer.This President is more likely to pardon Michael Slager, the officer who shot and killed Scott and is serving a federal prison sentence on a civil rights charge.
• Most law enforcement, and so most of what the players are protesting, involves state and local police and the state criminal-justice system. The President can pardon federal crimes, not state crimes. So even if Colin Kaepernick had ten friends wrongfully convicted, Trump could not do a thing about it. So this is demagoguery--an empty and impossible gesture, used to fool the unaware into siding with him against a group and message to which he is opposed. Or the President is unaware of the limits of his pardon power.
Posted by Howard Wasserman on June 8, 2018 at 04:05 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (15)
Wednesday, June 06, 2018
The White House defines free speech
When asked how President Trump reconciled his belief that a baker has a free-speech right not to sell a cake for a same-sex wedding with his insistence that there is no free-speech right to kneel (or just stay in a different location), Sarah Huckabee Sanders said: "The president doesn’t think this is an issue simply of free speech. He thinks it’s about respecting the men and women of our military; it’s about respecting our national anthem.”
Someone opposed to the position of the baker in Masterpiece could say something similar: "It isn't simply an issue of the baker's free speech. It's about respecting same-sex couples who wish to get married and to shop in the marketplace on the same terms as everyone else; it's about respecting equality." Sanders, on behalf of the President, is really saying there is no such thing as free speech. Speech should be stopped when the President agrees with the message being criticized (the flag and the power of police to use whatever force they deem necessary), while speech should be allowed when the President disagrees with the message being criticized (equal rights for same-sex couples).
That one's position on free speech depends on what is on the other side is not surprising; many people approach the First Amendment this way. It is disturbing when it becomes the official position of the White House, as opposed to the position of a bunch of college students.
Next Thursday, June 14, marks the 75th anniversary of West Virginia Bd. v. Barnette. It is ironic and troubling that the principle that a person cannot be compelled to utter patriotic tropes or engage in patriotic rituals is again up for grabs, as the rhetoric around this heats up and makes this into a significant free-speech controversy.
Posted by Howard Wasserman on June 6, 2018 at 08:11 AM in First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (8)
Tuesday, June 05, 2018
Another voice against replay
I could not make this argument better than Will Leitch does at New York Mag. I only would add that the failure of replay in sports to produce Objective Truth reflects the general failure of all video (say, from body cameras) to produce Objective Truth for all things.
Posted by Howard Wasserman on June 5, 2018 at 11:00 PM in Howard Wasserman, Law and Politics, Sports | Permalink | Comments (0)
Another day, another NFL protest
Two new items for today. President Trump canceled the Philadelphia Eagles White House visit, amid reports that fewer than ten players were going to show. Nikolas Bowie (about to begin teaching at Harvard) argues at Slate that NFL rules banning player protests violate several state constitutions.
On the Eagles visit. I found it interesting that the press release said that the Eagles "disagree with their President" (emphasis mine) about anthem protests. I know it is folly to parse White Statements, but "their" hints to me of some Dear Leader stuff--I am your President and how dare you disagree with your President (whatever that disagreement may be). The team visit is being replaced with a rally at which the anthem (the words of which Trump almost certainly does not know) will be proudly played for the 1000 fans who planned to attend. The question is how many of those 1000 will still show if the team--the reason most of them wanted to attend--will not be there. Congressional Democrats invited the team to the Capitol, with promises of Wawa coffee.
The President later tweeted, in response to the new NFL protest policy that has not been implemented yet (and had nothing to do with the Eagles visit) that "[s]taying in the Locker Room for the playing of our National Anthem is as disrespectful to our country as kneeling." This supports my point that players wishing to protest can make a statement by staying off the field, if in sufficient numbers or with sufficient coverage. This also should drive home to the league and the teams that appeasement does not work and only makes them look worse. The league forced through a compromise that the players (and some owners) hated and that did not achieve the one thing they wanted to achieve, pacifying the President.
By the way, at SEALS on Thursday, August 9, I will be moderating a discussion group on the NFL protests.
Posted by Howard Wasserman on June 5, 2018 at 08:18 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (1)
Tuesday, May 29, 2018
NFL protests in African-American historical perspective
Chad Williams, a professor of African Studies at Brandeis, places the NFL's efforts to halt player protests in the historical context of patri0tism during World War I, particularly W.E.B. DuBois' 1918 call for African-Americans to "close ranks" during the War and not to air African-Americans' "special grievances." DuBois' efforts backfired, as the period during and after WW I was marked by an increase in racial violence and lynchings. Williams argues that the NFL is attempt to enforce the same form of "love-it-or-leave-it" patriotism on its players.
I wonder if staying in the locker room, which the new league rules allow, could become an effective form of protest. There are many ways to counter-speak to a symbol or ritual, including by absenting oneself from the ritual; players can be conspicuous by their absence from the sideline, with that absence expressing something. The key will be the media--do the broadcast cameras, reporters, or some other sources report on who is absent so it becomes known and public? Or is the protest hidden and unknown, protesters pushed to dark corners?
Posted by Howard Wasserman on May 29, 2018 at 11:39 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)
Wednesday, May 23, 2018
Irony can be pretty ironic
Does anyone recognize the tragic irony that the Milwaukee Police Department released this (and got this response from the Milwaukee Bucks) on the same day the NFL announced this.
Posted by Howard Wasserman on May 23, 2018 at 08:45 PM in Constitutional thoughts, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (4)
Thursday, February 01, 2018
State-created danger in the Nassar case?
Two stories from Deadspin describe the mistakes by the police department in Meridian, Michigan, who received a sexual-abuse complaint against Larry Nassar in 2004, but dropped it (without referring it to prosecutors). Apparently, detectives were convinced by a PowerPoint presentation from Nassar about how what he was doing was a legitimate medical procedure to deal with Scoliosis. No one in the police department conferred with a medical expert to confirm what Nassar told them.
So, could one of Nassar's post-2004 victims make out a due process claim against the Meridian PD and these detectives? Perhaps on a state-created danger, that the police increased the danger to other athletes by not doing a competent investigation and perhaps implicitly suggesting to Nassar that he can get away with this. Or perhaps on an equal protection theory, that they did an incompetent investigation because they did not take sexual-assault against teenage girls seriously.
Posted by Howard Wasserman on February 1, 2018 at 06:49 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (3)
Wednesday, October 25, 2017
Jews and the 2017 World Series
Some off-the-cuff baseball history.
The 2017 World Series features Jewish players on both teams--Alex Bregman for the Astros and Joc Pederson for the Dodgers. According to Bob Wechsler, author of The Jewish Baseball Card Book, this is the first two-Jew Series since 2004 (Gabe Kapler for the Red Sox and Jason Marquis for the Cardinals); the second since 1959 (when Sandy Koufax played for the Dodgers); and the fifth in history (the other two involved Hank Greenberg in 1945 and 1940).
In Game 2 this evening, Bregman is the Astros regular third baseman, while Pederson will start in left for the Dodgers. This is, as far as I can tell, the first time that both teams have started a Jewish player in a World Series game. Kapler did not start against Marquis in Game 4 in 2004, nor did the Jewish players playing against Koufax and Greenberg.
Bregman homered last night for the Astros' only run. I am trying to figure out who was the last Jewish player to homer in a Series. Greenberg hit 2 in 1945. I cannot find any homers since then. Who am I missing and when?
[Update: Naturally, we need a Halachic ruling on the last point: Steve Yeager, the Dodgers catcher in the '70s and early '80s, hit 2 homers in the '77 Series and 2 in the '81 Series (in which he won MVP), but converted to Judaism only after he retired. So he is Jewish, but was not when he hit those 4 homers. Do these count as World Series homers by a Jewish player?]
[Further Update: Pederson homered for the Dodgers’ first run of Game 2, making this the first Series with home runs by multiple Jewish players.]
[One More Update: According to Ron Kaplan, the only Jewish player to homer in the Series between Greenberg in 1945 and Bregman and Pederson this year (if you do not count Yeager) was Ken Holtzman, a pitcher for the A's, who homered in Game 2 of the '74 Series (in researching this by going through a list of Jewish players and their career stats, I did not think to look at any pitchers).]
Posted by Howard Wasserman on October 25, 2017 at 05:11 PM in Howard Wasserman, Sports | Permalink | Comments (5)
Tuesday, October 17, 2017
NFLPA victim of drive-by jurisdictional ruling
The Fifth Circuit last week reversed a district court order enjoining the NFL from carrying out the six-game suspension of Dallas Cowboy running back Ezekiel Elliott because of a domestic-violence incident. I saw the story, but assumed that the court of appeals had reversed for the usual reasons that courts of appeals reverse in these sports cases--the district court had been insufficiently deferential to the arbitrator decision (see, e.g., Tom Brady and Deflategate). And because I do not write on those issues and because I do not like or watch football anymore (and my antipathy for the sport and the league grows), I did not write anything on it.
But a reaction paper from one of my Fed Courts students revealed that the Fifth Circuit issued the dreaded drive-by jurisdictional ruling. A 2-1 divided court held that the district court lacked jurisdiction because the Elliott and the NFLPA had not exhausted CBA grievance processes, which placed a claim for relief "beyond 'judicial review.'" The court stated that Arbaugh, Henderson, and other recent jurisdictionality decisions did not change SCOTUS or Fifth Circuit precedent treating exhaustion as jurisdictional in the labor context. Judge Graves dissented, arguing that jurisdiction was established when a plaintiff claims a violation of a contract between an employer and a labor organization and that the grievance procedures appeared in the CBA, not the LMRA.
Under Scott Dodson's theory (and I think Scott cracked the problem of defining jurisdiction in a principled way),exhaustion is jurisdictional, because it measures when a case can enter a court or move to a court from another body (such as an arbitration panel). But the Fifth Circuit is descriptively wrong under recent decisions and the direction of the doctrine. Very little is jurisdictional anymore, especially when it does not appear in a statute. The "beyond judicial review" language (drawn from a 1967 SCOTUS case) is the sort of loose, figurative language that SCOTUS had used and attached jurisdictional labels, without thinking through the logic or consequences of the label; this is the language Justice Ginsburg had in mind when she introduced, and argued for limiting the effect of, drive-by jurisdictional rulings. And statutory exhaustion (as under Title VII) is not jurisdictional; it seems inconceivable that a statutory requirement would not limit the court's jurisdiction, but a private contractual obligation, not required by any statute, could strip a court of its structural adjudicative authority.
The question is what happens next. Elliott's first game of the suspension is next Sunday. The NFLPA has asked the Fifth Circuit for en banc review and also sought its own TRO in the Southern District of New York (where the NFL offices are located). The jurisdictional basis for the ruling was wrong, but that does not mean that the court of appeals was wrong that Elliott failed to exhaust his contractual remedies and that the injunction should not have issued. Elliott and the NFLPA may have properly lost, just on 12(b)(6) rather than 12(b)(1) grounds.
Posted by Howard Wasserman on October 17, 2017 at 01:10 PM in Civil Procedure, Howard Wasserman, Sports | Permalink | Comments (1)
Saturday, October 07, 2017
Barnette and flag-related speech
Video in this post shows a female fan at last night's Lakers game (played in Ontario, CA) throwing a drink and swearing at two fans who knelt during the Star Spangled Banner. As John Q. Barrett pointed out last week, next year is the 75th anniversary of West Virginia Bd. of Educ. v. Barnette, a high point of First Amendment jurisprudence.
But Barnette's legacy has split in unfortunate ways. Barnette stands for the prohibition on compelled expression, an idea that is popular and thriving, expanding to all manner of expression and expressive conduct, such as baking cakes. But Barnette also stands for a prohibition on compelled participation in flag-related ceremonies, which carries with it the right to express one's own message through that non-participation. The actions described above and the general public reaction to and controversy over the anthem at sporting events shows broad public rejection of that piece of Barnette. The public seems less accepting and tolerant of flag counter-speech, derived from Barnette, now than it was 13 years ago, when I wrote this in the early days of Iraq War. And recall that several Justices changed their minds on this issue from Gobitis to Barnette in part because of the violence directed against Jehovah's Witnesses following the first decision; the shift to protecting the right to opt-out was designed to protect dissenters.
We are organizing a symposium at FIU on Barnette's 75th anniversary for next fall. The seeming demise of this part of Barnette could be an important point of discussion.
Posted by Howard Wasserman on October 7, 2017 at 12:00 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (1)
Friday, August 18, 2017
Trick plays and baseball rules
This is a great story about a trick play in a high-school baseball game. Called the "skunk in the outfield," the play arises with runners on first-and-third. The runner on first walks into right field, hoping to confuse the defense into doing something stupid about that runner, allowing the runner on third to score. It did not work, because the defense kept its cool. It instead produce a 152-second standoff, an ongoing "play" on which nothing happened and no one moved--one fielder stood with the ball and stared at the runner standing in right field. And everyone--players and fans--became increasingly angry.
Posted by Howard Wasserman on August 18, 2017 at 10:44 PM in Howard Wasserman, Sports | Permalink | Comments (1)
Saturday, July 22, 2017
Update on late-game fouling and the "Elam Ending"
In April I wrote about the proposal from Nick Elam to eliminate late-game fouling basketball by making the end of the game untimed and playing to a target score (+7 of the leading team when the clock is turned off in the final minute). The Basketball Tournament implemented the Elam Ending for its 16-team pre-tournament; it now reports on the results--there was no late-game fouling, some exciting comebacks, and the final time time lasted between two and five minutes of game time.
Posted by Howard Wasserman on July 22, 2017 at 04:13 PM in Howard Wasserman, Sports | Permalink | Comments (11)
Wednesday, June 21, 2017
Beckman v. Chicago Bears
Russell Beckman is a Green Bay Packers fan who holds season tickets with the Chicago Bears only so he can attend the Bears-Packers game. Season-ticket holders earn points allowing them to purchase "experiences," including going onto the field during pre-game warmups. But the Bears prohibit these fans from going onto the field in the opposing team's gear; they would not let Beckman participate during the Bears-Packers game last season, and, he alleges, will not let him do it at the game next season. Beckman has sued the Bears, alleging that the no-opposing-team-gear rule violates the First Amendment and seeking an injunction against enforcement of the policy. Beckman is appearing pro se (he and I exchanged emails about the situation a few weeks ago).
The Bears play at Soldier Field, which is owned by the Chicago Parks District and rented to the team for its use. That, I believe, raises the possibility the Bears act under color. If the case involved the Bears stopping fans from wearing opposing-team gear in the stands, this would be an easy case, with the Bears subject to Burton's symbiotic relationship test, just as the New York Yankees were at the old Stadium. But I have been reluctant to say that teams playing in publicly owned arenas act under color for all purposes, as opposed to for the limited purposes of operating expressive fora (the stands, press access, etc.). A team should retain leeway in its organization and operations, including its interactions with customers. Playing at a publicly owned arena would not stop the Bears from being viewpoint-discriminatory in, for example, deciding what people could wear or who could attend a Lake Michigan cruise for ticket holders. The question is where the playing field (ordinarily not part of the expressive forum) falls on the spectrum. I am not sure I know the answer to that question.
Interestingly, the Yankee Stadium lawsuit was brought by the NYCLU in conjunction with NYU's Civil Rights Clinic. It is surprising (telling?) that neither the Illinois ACLU nor a Chicago-based clinic would take this on. Did Beckman never ask around? Does it say something about how that state-action question will be resolved when we move from the stands to the field?
Or are Green Bay Packers fans less popular in Chicagoland than Nazis?
Posted by Howard Wasserman on June 21, 2017 at 11:58 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)
Monday, May 22, 2017
Baseball rules--collect them all, trade them with your friends
For my recent birthday, my wife and daughter got me a baseball card for the Infield Fly Rule. The card, from 1978, features a picture of an infielder (for you fans of late-'70s baseball, it is Jerry Remy, then of the Angels, later the Red Sox) sitting under a fly ball with an umpire (decked out in very-1970s umpire gear and the old league-specific hat) standing in the background, although he has not yet signaled infield fly. The back of the card explains and defends the rule as "Unique and Necessary."
It turns out to have been part of a series of cards produced by the company Sportscaster from 1977-79 on "The Rules." The cards featured a photo of player in action, with an explanation of the rule or play on the back. According to this list, there were cards for Interference, the Hidden-Ball Trick, Pickoff, Rundown, and other plays and rules. I was in the heart of my baseball-card collecting phase in this period, so I am disappointed that I did not know about these at the time. I was fascinated by the Infield Fly Rule even then.
Posted by Howard Wasserman on May 22, 2017 at 09:31 AM in Howard Wasserman, Sports | Permalink | Comments (0)
Sunday, May 21, 2017
Are esports sport?
It has been awhile since I wrote on the bar debate over what is and is not sport. Now Gizmodo asks the question about esports.
My preferred definition of sport has four elements: 1) Large motor skills; 2) Simple machines; 3) Competition; and 4) Outcome determined by success in performing skills to achieve some other instrumental end, rather than for the virtue of the skill itself. On that definition, esports fail on # 1--operating a game console involves fine rather than large motor skills. I also would question # 2--the competitors small-motor physical actions do not do all the work--it is the complex machine translating those physical actions into something bigger on the screen. So while esports do require "training, endurance, mental focus, and, yes, physical precision," the physical precision is of the wrong type and works too indirectly.
The comments are interesting in that several people have argued "not a sport" based on a definition that requires direct interaction between competitors and the possibility of one competitor thwarting another.
Posted by Howard Wasserman on May 21, 2017 at 07:26 AM in Howard Wasserman, Sports | Permalink | Comments (6)