Sports Law Blog
All things legal relating
to the sports world...
Wednesday, August 25, 2004
 

Upon Further Review: There is no shortage of coverage on the controversy surrounding American gymnast Paul Hamm and his gold-medal winning performance in the men's all-around competition. To recap briefly, Hamm won the gold with a spectacular final routine on the high bar. His score moved him in front of South Korea's Kim-Dae-eun by .012 of a point, the closest margin in history. Subsequently, however, it was determined that another South Korean gymnast, Yang Tae Young, was given an improper start value on the parallel bars. The difference of .1 on the level of difficulty would have moved Young from his bronze-medal finish to winning the gold medal over Hamm. The judges missed this, and thus, gave Hamm the gold in error.

So the argument goes. But what is often not mentioned is that the judges also missed a major deduction during Young's parallel bars routine. As an NBC gymnastics analyst noted, Hamm performed four holds during his routine, one more than the allowed three. This should have resulted in a deduction of .2 of a point, which would have lowered Young's score, even with the increased start value.

The point is this. Judges, umpires, officials, timekeepers -- they all make mistakes. Routines are mis-scored, phantom fouls are called, pitches that are balls are called strikes. These mistakes are part of sports. Yes, one wishes that every call would be made correctly and every routine scored perfectly, but this does not happen, especially in a sport like gymnastics where the judges must view a lightning-fast routine and issue a subjective score. The officials responsible were removed from further judging, and this is appropriate. But nothing is gained by adding replay or rescoring after the competition has ended and the medals have been awarded. Can you imagine officials reviewing the tape of a basketball game two days after it ended to see if a player traveled before hitting the game winning shot? Or if the league office ruled the day after the Super Bowl that a player juggled a ball, negating a key touchdown at the end of the 1st half?

Counterfactuals have not become an accepted methodology for studying history because of the intricacies involved in historical events. One does not know how a competitor would respond if he was further behind, or further ahead, in the standings than he was in reality. If Hamm had needed a perfect routine to win gold, he may have attempted a more difficult element and fallen off the bar. Young, faced with the pressure of leading the competition, might have choked on his final apparatus, falling out of contention for any medal. The fact is that we will never know and that history cannot be re-written.

But this is how it should be. There should not be do-overs; there should not be re-evaluations days after the competition. Mistakes happen, but those mistakes should remain within the field of competition, where athletes can respond immediately and prove themselves a champion. It won't always be fair (i.e. 1972 US-USSR basketball, the vault set too low in Sydney) and it will never be perfect. But then again, neither is life.

Congratulations to Paul Hamm. He won the gold medal, and he won it fair and square.

 

And Now, An Olympic Moment: The New York Times has a humorous piece today parodying the human drama of NBC's Olympic coverage. I understand all too well the economics behind sports broadcasting and NBC's need to drum up ratings to make back its billion dollar investment, but sometimes it is a bit too much. I was in Spain during the 2000 Games and watched the Spanish telecast. They showed every heat of the swimming (my favorite sport), live and in order. No docudramas. No commercials. It was sport-viewing bliss.

I know that NBC will never duplicate this because of the need to keep events in prime time and the desire of a large portion of the viewing audience to see such human interest stories. But in the era of OnDemand and Pay-Per-View, I hope that by 2008 there is an option to pay $100 for an "All Sports" telecast -- all of the races (even the ones without Americans!) and none of the stories. I may not know about the Romanian gymnast who lost her home or the American swimmer that had a toe amputated, but that is ok by me.

Monday, August 16, 2004
 

The United States Men's Basketball Team lost to . . . Another United States Men's Basketball Team?

In a stunning defeat, the U.S. Men's Basketball team lost to the Puerto Rican Men's Basketball team in the first round of Olympic play.

This, of course, begs the obvious question: Why is there a separate Olympic team for Puerto Rico?

Last I checked, Puerto Rico was part of the United States. More precisely, according to the CIA's World Factbook, Puerto Rico is a "commonwealth" of the United States. The Factbook also notes that Puerto Rico's constitution was approved by the U.S. Congress in 1952; its system of courts is "within the U.S. Federal system of justice"; its chief of state is President George W. Bush; and its currency is the U.S. Dollar. On the other hand, Puerto Ricans do not enjoy voting representation in the U.S. Congress, and though their chief of state is indeed the U.S. President, they cannot vote in U.S. presidential elections. Additionally, Puerto Ricans pay no federal income taxes.

Now, I'm sure most Puerto Ricans like having their own Olympic squads. And I can easily see why. It preserves some sense of autonomy, and, more practically, it enables more Puerto Ricans to participate in the Olympics. And clearly, Puerto Ricans, like those living in Guam and the U.S. Virgin Islands, are not afforded all of the electoral benefits (or tax burdens) of American citizenship. Maybe that's why all three of those territories demand separate Olympic teams. After-all, the United States did show up in their lands years ago--uninvited by the indigenous peoples--and have never really left.

But at the end of the day, the people of Puerto Rico, like those of Guam and the U.S. Virgin Islands, are still citizens of the United States. Doubtless, some of them may like that arrangement, while others may not (incidentally, in a 1993 non-binding Puerto Rican referendum, 49 percent of the populace voted to remain a commonwealth, 46 percent voted for statehood, and 4 percent favored independence -- and ambivalent result indeed).

So perhaps for that reason, it worth asking this question: As long as we are all part of the same country, shouldn't we all play on the same team?

I'm honestly not sure. I can see both sides of the equation. And in a larger sense, maybe that's why the desirability of American territories at this point in our nation's history is likewise so unsettled, both here and there.

Thursday, August 12, 2004
 

Ten Years Ago... today marked the beginning of baseball's worst labor dispute, the strike that caused the cancellation of the 1994 World Series and sent the game into a tailspin.

Everyone knows the negative impacts it had on the game. Attendance dropped precipitously, from a record 31,000 a game in 1993 down to a low of 25,000. Fans left the game in droves and found other sports and activities to occupy their time. Television ratings plummeted, including for the post-season. Only a number of gimmicks, including the wild card and interleague play, combined with the feel-good stories of Cal Ripken and Sosa/McGwire, helped fuel the resurgence. And the game has rebounded: attendance is back up and people are once again paying attention to the sport.

But the real question is: did the strike solve anything? The owners did not get the salary cap they so desperately wanted. In fact, salaries have continued to escalate, driving a larger wedge in between the large and small market teams. The luxury tax has proven largely ineffective in deterring spending by teams like the Yankees and Braves.

But, on the other hand, perhaps the strike of 1994 taught the game a lesson. The labor negotiations that followed were the first in 23 years not to result in a strike or a lock-out. And, despite the monetary divide, teams are being smarter with their money, and a number of small-market teams are competing for division leads and wild card crowns. It almost seems, as Murray Chass states, that baseball is flourishing in the early 21st century.

But have the sides really learned anything? Yes, there has been no work stoppage since 1994, but players and owners often have a short memory when it comes to labor history. While I doubt there will be another cancellation of the World Series, from which the game would be hard-pressed to recover, there is little doubt that another strike or lock-out will occur in the near future. Players will demand more money. Owners will demand more money. And fans will again be faced with the question: do we care that there is no baseball?

 

The Sponsor Wars of NASCAR: Has the inundation of sponsorships in NASCAR finally driven the sport to absurdity? Sponsor conflicts are not new to the sport -- how could they be when every inch of driver, car and wall is covered with the name of a product, brand or corporation? But this NASCAR season has brought with it a new level of competition, and at some point, an armistice must be reached.

For those unfamiliar with the saga, a common trend earlier this season was for the winning driver, once entering Victory Lane, to knock over the giant bottle of PowerAde placed on top of their car. The drivers that would do this were the ones sponsored by Pepsi, the makers of that "other" sports beverage, Gatorade. NASCAR, worried that Coca-Cola, the maker of PowerAde and a huge sponsor of NASCAR series, would be upset, ordered its drivers to stop knocking over the bottle.

Fine, said Jimmie Johnson. When he won the next week, he did not knock over the bottle. Instead, he placed a large sign in front of it that advertised Lowe's, the primary sponsor of his car. NASCAR was not amused, fining the driver $10,000.

Knowing this, Jeff Gordon improvised the next week in Indianapolis. After winning the Brickyard 400, Gordon just avoided Victory Lane all together -- celebrating instead on the track with his crew. Gordon claimed that he got caught up in the moment and "forgot" to go to Victory Lane. If you believe that, then I have a bridge to sell you in Brooklyn. There is no way that Gordon, a veteran driver who is no stranger to winning, "forgot" to go to Victory Lane, which is established NASCAR protocol after every race. He purposefully avoided the ceremony, and thus avoided having the PowerAde bottle placed on his car. Oh yeah, and one of Gordon's main sponsors is Pepsi.

Strangely enough, NASCAR accepted Gordon's apology and did not fine the driver. This could be due to the fact that Gordon is a popular driver and has a good record with NASCAR. Or perhaps NASCAR is just dumb and bought Gordon's excuse. Most likely, though, NASCAR realizes it has a problem and must do something about it.

Victory Lane has always been a "made-for-TV" event, with the driver sitting in the car until the television cameras are live. This allows a great shot for TV and gives NASCAR a chance to spotlight its sponsors. But this is the first season that PowerAde has been the official sponsor of the celebration, causing numerous drivers to be photographed with a main sponsor's rival product. NASCAR is looking at changing its rules pertaining to victory celebrations, but the drivers are in a precarious position. On the one hand, their financial backers do not appreciate their drivers being seen with a rival product. But, on the other side, NASCAR is not forgiving to those that do not play nice with the series sponsors.

I do not think there are any sort of breach of contract issues at stake here. I am not familiar with NASCAR sponsorship language, but I would imagine there is a provision that protects the driver in the event that they have no choice but to be photographed with a competitor's product. The real issue is business and the amount of sponsorship money a driver can earn. If a company knows that it will not have exclusivity with a driver, the market value of the sponsorship decreases. If this happens enough, then certain drivers could have difficulty meeting their financial needs, which could hurt the entire sport. The deal with PowerAde likely will not drive any drivers out of business, but NASCAR should be wary before selling more sponsorships that create such direct conflicts. Sponsorship money fuels the sport, but a deluge of brands and advertising will dilute the message, and ultimately the price. NASCAR would be better served to place limits on sponsorships, thereby ensuring the exclusivity that will result in a higher price.

 

More on Kobe: In "the sun rising in the east" news, it looks as if the Kobe Bryant criminal trial will be delayed indefinitely. The prosecution is seeking the delay (view the motion here), stating that the many errors made by the judge and the court have hurt the prosecution's case and tainted the jury pool. Of course, the prosecution does not state how the jury pool will possibly improve during a prolonged and highly public civil trial, but this seems to be the beginning of the end of the criminal proceedings. Many experts agree that the prosecution is throwing up a smoke screen to shield their retreat from the case.

In case the judge denies the motion for a stay, the state has also appealed one of the judge's rulings to the state Supreme Court, an appeal that could take months. The appeal questions the judge's order that the accuser's sexual history should not be admitted as evidence.

But the public does not care about gag orders, appellate rulings or smoke screens. For the public, this is just another example of a high-profile defendant who is able to buy his way out of trouble and beat the rap. And in a large way, the public is right. If the civil suit settles, not an unlikely proposition, then the truth about that Colorado night will never be known. Bryant will go back to basketball, perhaps a few million dollars poorer, and we will have proven once again that the class system is alive and well in our country.

Wednesday, August 11, 2004
 

Bryant Accuser Files Civil Suit: The woman accusing Kobe Bryant of sexually assaulting her last year has filed a civil lawsuit against the star basketball player. This action fuels speculation that she will drop the criminal charges against Bryant and instead focus on the easier to prove and potentially lucrative civil case. In a civil case, she must only prove that Bryant assaulted her by a "preponderance of the evidence," rather than the "beyond a reasonable doubt" facing the prosecution in the criminal case. But the civil case could prove fatal to the criminal prosecution, as defense lawyers will now try to convince the jury that her motives were purely financial. This action comes in the wake of substantial criticism that has been directed at the judge in the criminal case for numerous mistakes, including the release of the name of and confidential information about the accuser.

I will have more on this later, but for now, here is the complaint.

Tuesday, August 10, 2004
 

Watching NFL Careers Go "Up in Smoke": Every day, thousands of children across the nation dream of being professional athletes. They play in pick-up games with their friends and in recreational leagues in their communities with the hopes that one day, they will be able to play in front of screaming crowds and adoring fans. Over 99.9% of them will not achieve this dream -- they do not have the talent. That is why it is so sad to see those that do have the talent waste it. The NFL provides two examples of such a waste today: Quincy Carter and Ricky Williams.

Carter was cut by the Cowboys on Wednesday because coach Bill Parcells did not believe he could lead the team as a quarterback should. There is much doubt, however, about the reasoning that led to this conclusion, with much speculation centering on Carter's two failed drug tests and recent stay in a substance abuse facility.

Williams announced his "retirement" a few weeks back, stating that he had lost his desire to play the game. The days that followed revealed that a number of failed drug tests, which could have led to a suspension, may have hastened his decision to leave the game.

These moves have led to a number of questions and potential contractual issues. Should Carter have to give back part of his signing bonus for failing to perform to the terms of his contract? Should Williams have to pay back a portion of his performance bonuses from the past two seasons? Did the Cowboys violate the collective bargaining agreement by cutting Carter for failing a drug test? Do the Dolphins have any recourse against a key player that chooses marijuana over nutritional supplements?

I feel little sympathy for either player. Some, including Bill Maher, have argued that making players take a drug test for a non-performance enhancing drug is un-American and a ludicrous imposition. But these drugs are most certainly performance-inhibiting. A player on marijuana, or cocaine, surely cannot perform to the same level if he were not on the drugs. Teams paying millions of dollars have a right to know that they are getting the entire player, and not just a percentage. Carter may have been cut after he failed a drug test, but he was not cut because he failed a drug test -- he was cut because he was not being the leader a team needs in its quarterback. Not only was he engaging in an illegal activity, but his doing so would inhibit his physical performance. A union grievance seems comical and a waste of time. Williams also cut short a potentially brilliant career, if only because he could not refrain from certain indulgences. I don't think he should have to give back any money, because he did achieve the goals needed to earn it, the Dolphins are rightfully upset by his choices that have led to this course of events.

I am not here to preach the evils of marijuana or sing the praises of the drug laws. But the fact remains that the laws are on the books and the league rules exist. These players are being paid millions and it is a small thing to ask them to abide by them. Sadly, a few do not, and in doing so, waste the talent so many others could only dream of possessing.

Sunday, August 08, 2004
 

New Bill Would Create Tax Break for Team Owners: A new bill being considered by Congress would have an unforeseen, but large, impact on the tax bills of the owners of sports franchises. The bill, which began as a measure to settle a trade dispute with the European Union, now has a number of riders and amendments benefiting a number of special interest groups.

One portion would allow sports franchise owners to write off the full value of their franchises over 15 years. Existing law generally limits teams to writing off only the value of player contracts over three to five years. The biggest items subject to the expanded write-offs would be television and radio contracts. The break would only apply to new assets, meaning that current owners would not benefit until they sold the teams. The thinking in the industry is that the tax incentive will raise the value of teams, increasing the sale prices. Many current owners, as well as a number of the professional leagues, lobbied Congress for the change.

This seems to be yet another example of the rich getting richer. Professional sports teams already benefit from a number of public subsidies, including publicly funded stadiums, and tax breaks. This change will cut the taxes of some of the nation's richest individuals, which ultimately hurts the nation as a whole. There is no danger of professional sports crumbling anytime soon due to the taxes being paid, so it is hard to see any benefit in this proposal other than campaign contributions.

 

Trial Mismanagement on a Grand Scale: The Kobe Bryant affair is beginning to resemble the OJ Simpson trial as an example of the complete breakdown of the system, and the trial in the case has not even begun. I sincerely hope that the mistakes in this case have been caused by the unfamiliar media circus and does not represent the normal level of incompetence at work in the criminal system.

Thus far, clerks in the court have mistakenly released the name of the alleged victim, and information about her. They did this not once, but at least twice -- the second time to a large number of reporters. The court reporter accidentally e-mailed closed-door hearing transcripts to a number of media organizations. The transcripts focused primarily on a defense expert's opinion that the woman had sex with someone after Bryant and before her hospital exam, as well as a defense claim that she is pursuing the case for monetary reasons.

The judge in the case has apologized for these mistakes, but the damage may have already been done. The alleged victim has said that she may drop the criminal charges, focusing instead on the civil trial. This could be used as evidence that the woman is not concerned with justice being done, but rather with achieving a large sum of money from the basketball star. And I have made the argument that the information concerning her sexual history and sexual acts around the time of the incident should be released. But the information should have come out as testimony, not as a leak to the media.

The media also cannot hide from its role in the debacle. Yes, the public has a right to know pertinent information regarding the judicial process. But there is no right for the media, or anyone else, to know information that could derail the fair administration of justice. There is no reason the media could not report the findings once they were disclosed at trial, in front of an impartial jury. Instead, in its race to report a big story, the media has tainted a large segment of the jury pool and perhaps made the parties reluctant to even continue with the trial. Perhaps it's ironic that in its search for truth, the media may have prevented the world from ever knowing what really happened. Or perhaps it is not that ironic, seeing as how the media seems much more concerned with the story and much less worried about the "truth."

No matter who shoulders the brunt of the blame, justice has suffered in this case. For some, this is further proof that rich defendants will never be convicted in a criminal trial. For others, this evinces the large impediments for women to come forward with rape charges. And for others, it will serve as proof that Bryant is innocent and falsely accused. But the events that have transpired ensure that we will never know what really happened, and because of that, the system has failed.

 

Even More Assumption of Risk: It seems that I can write on little else this summer. A New Jersey appellate court has now ruled that baseball parks must provide protection for fans who are out of their seats and distracted by stadium offerings, including concession stands. The judge in Maisonave v. Newark Bears wrote:

"It is not only foreseeable, but inevitable, that in the process of placing orders or reaching for money or accepting the purchases or striking up conversations with others on line, spectators will be distracted from the action on the field and the risk of injury from flying objects will be increased significantly."

The judge ruled that while spectators have the responsibility to look out for their own safety, the off-field distractions require the parks to provide for some spectator protection. The court does not discuss, however, how this could be achieved. The park already had protection for the most dangerous area (a screen behind home plate). The spectator was on the mezzanine level (above field level). Should parks be required to place screens all the way around the park, from the field to the upper deck? Or perhaps each concession stand should be staffed with a guardian who can jump in front of any foul balls, small birds or any other flying object that could cause harm to a spectator. Under a ruling such as this, it is hard to know what else would prevent a sea of potential legal claims.