Sports Law Blog
All things legal relating
to the sports world...
Thursday, September 30, 2004
Cheerleader Boots Save Rookie: Indians rookie pitcher Kyle Denney was the victim of a random shooting yesterday, as a bullet pierced the side of the team bus and hit him in the calf. Luckily, his injury was not so severe, as the cheerleader boots he was wearing slowed the bullet down.
Yes, apparently as part of a rookie hazing ritual, Denney was wearing a USC cheerleader uniform, including tall white boots. This is perhaps the first time that a hazing ritual has prevented further injury. No word on whether the rookie covered in shaving cream was injured.
Wednesday, September 29, 2004
Baseball in DC: To no one's surprise, baseball will announce today that the Expos will be moving to the Washington DC area. ESPN's Jayson Stark has a report on what concessions the league offered Peter Angelos so he would not take legal action to prevent the move. Hopefully, this will revive a franchise that at one time was competitive, but has been a doormat since the 1994 strike.
What does this mean for baseball in Canada? So far, the Toronto Blue Jays have remained a viable team, though not one in competition. Canada is even having trouble holding on to its hockey teams, so it should be no surprise that other professional sports are struggling to make it economically. It will be interesting to see if in the absence of hockey, the Blue Jays and Raptors can build up a stronger fan base in Toronto.
But the most pressing issue now is of course the name of the new team. Many people have suggested going back to Senators, which has been the name of previous Washington, DC baseball teams. Personally, I don't like the name. I have some suggestions, but I want to hear others. So, if you have a suggestion email me or post a comment.
Porkbarrelers (think of all the mascot possibilities!)
Tuesday, September 28, 2004
American Indian Names: Really a Problem? This article once again describes the Iowa state policy against playing any college team that has an American Indian as its mascot. I say once again because I have noted this policy before.
But again, I must point out the hypocritical nature of this policy. From my earlier post:
These questions remain. Is there anyone in Iowa who can help me answer this?
There is also the question of whether or not American Indian nicknames truly present a problem. According to this survey by the Annenburg Public Policy Center (hat tip: Gregg Easterbrook), only 9 percent of American Indians in this country oppose the practice, as opposed to 90 percent that do not find it offensive. That is quite a discrepancy.
I agree that there should not be a tyranny of the majority in this country. That is why decisions like Brown v. Board and Loving v. Virginia were important; the courts stood up and said, "It does not matter what the majority says, this policy violates the constitution and norms of human decency." But it is important to note that the Supreme Court did not take this action when the split was 90/9. By the time the Court ruled, its decision went against the majority, but public opinion was split much more evenly.
Adopting a rule based on such minimal opposition threatens creating a tyranny of the minority, where a small segment of the population dictates policy for the remainder of the country. There is another word for this: elitism. Anytime a small group tries to dictate policy on the basis that "it knows better," democracy is being subverted. The American Indian peoples suffered a great injustice at the hands of white settlers hundreds of years ago. But the majority of the group now seems to be saying: we have more important issues to address than the name of a sports team. Policymakers in Iowa would be advised to heed this lesson and lift its hypocritical restriction.
This should be illegal... Are you kidding me? Someone please confirm this as a joke so that I can sleep at night. Does this not at least constitute child abuse in some way?
Hat tip: College Basketball Blog
Williams Loses Arbitration, But May Win Free Agency: An arbitrator has ruled that former Dolphins running back Ricky Williams breached his contract when he suddenly quit the team before training camp this summer. As a result, Williams must repay the team $8.6 million in bonus money he was paid under his contract.
But there is an interesting twist to this story. According to the Miami Herald, if Williams were to file bankruptcy, he could not only avoid paying the Dolphins most of the money he owes, but would also become a free agent in the process. The only risk is that he would lose most of his assets other than his primary home, but there are indications that he would have to sell these assets anyway to pay the team. See below for more, but basically, the bankruptcy proceeding would result in all claims between Williams and the team being settled, including the remaining three years on Williams' contract, allowing him to sign with another team.
The NFL, obviously, is concerned, but the law may not be on their side in this case:
NFL Management Council attorney Dennis Curran declined to comment Thursday, but another source said "the NFL would obviously fight such an attempt," and it would be terrified of other players filing bankruptcy to get out of contracts. [Miami attorney Jim] Fierberg, who has worked on bankruptcy filings involving former NFL cornerback Dale Carter and former Dolphins receiver Tony Martin, said the league likely would lose.
Fierberg noted the 1990 bankruptcy filing of singer James Taylor, who had a contract with Polygram Records dissolved by the court. Although a bankruptcy court can disallow a filing if it's not in "good faith," NFL contract rules would not supersede bankruptcy law. "Bankruptcy law and the Constitution predates the NFL and even the Green Bay Packers," he said.
I will keep a close eye on this matter, as it could have incredible implications on sports contracts.
Update: A further clarification of this strategy from someone knowledgeable about bankruptcy:
Bankruptcy allows the rejection of contracts in many cases including executory contracts, personal services contracts and leases. The idea is that frequently burdensome contracts keep people or a business from gaining a “fresh start” and this is one of the key policy ideas behind bankruptcy. He will have to pay some damages for breaking the contract. A twist to all this is that a Third Circuit case just came down that says you can’t file bankruptcy strictly to take advantage of certain provisions in the bankruptcy code unless you are experiencing some financial distress. My guess is his owing all this money will get him through the financial distress hurdle but otherwise he would run into a good faith problem as a good faith filing is a requirement of bankruptcy protection.
And since this case would arise out of either Florida (11th Circuit -- where the team is) or New York (2nd Circuit -- where the league is headquartered), it is unlikely that 3rd Circuit precedent would have an impact on the case.
A Deterrence Analysis of New Federal Penalties for Unscrupulous Sports Agents
This probably won't be on the agenda for Thursday's debate between President George W. Bush and Senator John Kerry, but sports agents will now violate federal law (in addition to NCAA rules and, if applicable, state laws) should they lure student-athletes into unknowingly signing contracts that forfeit their remaining collegiate eligibility. The law, which was co-sponsored by U.S. Rep. Bart Gordon (D-TN) and U.S. Rep (and former Nebraska football coach) Tom Osborne (R-NE) and signed by President Bush last Friday, holds that violators could be fined up to $11,000 for each offense. Specifically, agents are now 1) forbidden from providing inaccurate information or items of value to an athlete or his family before signing a contract; and 2) required to provide written notice to the player that he can forfeit his NCAA eligibility if he signs a professional contract.
I find the amount of $11,000 to be an interesting and likely appropriate sanction, especially if we consider the notion of deterrence. Here's why: This law appears primarily designed to avoid instances of where agents persuade unprepared college athletes (i.e., those not likely to be drafted or to be drafted late) into renouncing their remaining collegiate eligibility. Now, for a moment, consider that most agents receive about a 4% commission for representing an athlete in signing a contract.
0% chance of being selected in the 1st round
But according to prospective agents, Smith has a . . .
55% chance of being selected in the 1st round
So how would Smith decide? Well, if he were to give equal weight to both Blake and the prospective agents, then he would internalize his odds as follows:
28% chance of being selected in the 1st round
But do you really think that Smith would give equal weight to Blake and prospective agents, particularly if multiple agents are pursuing him and only repeating what the others have said? In fact, it would seem that agents competing with one another for Smith's services would have an incentive to present the most optimistic projection, so that a snow-ball effect of sorts occurs, with each subsequent agent presenting a rosier and rosier picture. So, even assuming that others close to Smith (e.g, his head coach, Al Skinner) agree with Blake, it appears that the more often he is told by prospective agents that he should declare, the more likely he would feel confident in his draft prospects.
37% chance of being selected in the 1st round
Granted, this analysis is completely based on my assumptions. And no, I don't know Craig Smith personally. For all I know, he might rather go to medical school after college than the NBA. But assuming he is like most NBA prospects, I don't think this scenario is too far-fetched. And assuming it's about right, I suspect Craig Smith would declare for the 2005 NBA Draft because 1) he perceives the most likely outcome to be him being drafted and 2) if drafted, he is most likely to be a first round pick.
Monday, September 27, 2004
Hamm Protects Gold Medal in Front of CAS: In a 12-hour hearing in Switzerland, Olympic gold medalist Paul Hamm defended his all-around gymnastics title in front of the Court of Arbitration for Sport. A three-member arbitration panel heard arguments from South Korean gymnast Yang Tae-young that a judge's error cost meant that he should have won the gold medal instead of Hamm.
I have discussed before the problems with this, but it is worth going into again. Procedurally, the Koreans did not file their protest in the time permitted by the rules. If you file a lawsuit after the statute of limitations has lapsed, the case will be dismissed. The rules are there for a reason and must be followed.
But, even more importantly, on-field calls cannot and should not be reviewed after the competition has ended. Judges, like umpires and referees, are humans and mistakes will be made. During a quarterfinal match between Jennifer Capriati and Serena Williams in the US Open, the chair umpire awarded a point to Capriati, even though Williams had won the point. Capriati went on to win the match. Did the officials make a mistake? Yes. But can you imagine anyone changing the result of that match as a result? No, because once a competition has ended, the results have been tallied and medals have been awarded, nothing other than fraud should change the outcome.
In addition, what many reports of this incident have missed is that the judges also missed a deduction that should have been taken during Young's routine. An NBC television commentator noticed the defect in the routine, but the judges did not. If that had been scored correctly, Young would have finished fourth, out of the medals, even with the proper starting value. So even if the routine were to be re-scored, Young should lose.
But the arbitrators must make a stand in this case. Appeals must be limited to rulings on off-field conflicts, such as drug tests. Life is not fair and judges are not perfect. But what happens on the field must stay on the field, or results can never be final, and the spirit of competition will be rendered meaningless.
Couch Not a Love Seat: Poor Tim Couch just can't catch a break. First, the Cleveland Browns wouldn't let him work out with the team this past spring, causing him to file a grievance with the union. He managed to force his way to Green Bay, but things did not get much better. Couch experienced arm trouble throughout training camp, causing him to miss a number of practices and see only limited action in preseason games. As a result, the Packers released the former number 1 draft pick. Now, Couch has filed another grievance, this time claiming that the Packers released him despite his being injured, which is not permitted under the Collective Bargaining Agreement. The Packers claim that Couch never told them he was injured, only that he had arm soreness. A grievance hearing will be scheduled in the next few weeks.
Jackson to be Billed? Page 6 of the New York Post is reporting (scroll down) that CBS and its parents company Viacom is considering sending a bill to Janet Jackson for $550,000 -- the exact amount the network was fined by the FCC for the "wardrobe malfunction" during last year's Super Bowl. My question: why is Timberlake being let off the hook so easily? It took two to tango, so to speak, in this incident. There seems to be no way Jackson can be guilty without Timberlake also being on the hook. Either the entire thing was an accident, which no one seems to believe, or Timberlake deliberately pulled off part of Jackson's costume. He deliberately reached over and grabbed her; how could that be accidental? But, since it was Jackson's female breast that we "saw" (if you can even say that), she is the one taking the majority of the heat.
When Players Should be Subject to Legal Liability: I have strongly opposed criminal penalties or civil liabilities for actions that occur on the field of play in sports, such as vicious hits in hockey. See this essay on the subject, as well as this follow-up. But my defense extends only to actions that are arguably within the game, even including overly vicious hockey hits. It does not extend to what happened in Oakland a few weeks back, where Texas Rangers reliever Frank Francisco threw a chair into the stands, striking a fan and breaking her nose. The incident occurred after a night of taunting by the A's fans and a response by the Rangers' bullpen. But I don't care whose mother was insulted -- you do not fight with fans, and you do not throw a chair at anyone. So, I believe it would be completely just not only for this fan to sue for damages, but also for Francisco to be criminally prosecuted.
So where exactly is the line? I think almost anyone can see that while these incidents (the severe hit by Todd Bertuzzi and the chair-throwing incident) occurred on the field of play, during a game, one can be viewed as just part of the game, albeit a violent part with disastrous consequences, and the other well outside any bounds of play. One occurred during play, to a fellow player, and the other in the stands by a pitcher not participating in the contest.
But perhaps the biggest distinction can be in the point at which the outrage sets in. In the Francisco incident, it would have been a clearly punishable act, even if the chair had not hit anyone. It is clear that throwing a chair into the stands is not a part of baseball. On the other hand, the outrage over the Bertuzzi incident did not arise from the act itself. Yes, it was a sucker punch. Yes, it was from behind. But if you think this was the only hit like this in hockey this past season, you were not watching closely. In this case, the tragic consequence of the act, the severe injury to Steve Moore, precipitated the call for legal action. If Moore had gone un-injured, Bertuzzi would have been penalized, but the hit would not have caused the uproar that it did.
The law clearly states that the consequences of an action, even if unintended, can lead to a higher level of legal liability. If you punch a person and accidentally kill them, you can still be charged with manslaughter, even if you only meant to break the person's nose. But I think in this case, the character of the act, and not only the consequences, can help draw a line between acts so outrageous as to warrant legal remedies and acts that are within the boundaries of the game, meaning that there should not be any more legal recourse than for a late hit which results in a broken leg, or this tragic injury. The injuries may be horrible. Careers may even be ended. But so long as it is part of the game, the law has no business interfering.
Sunday, September 26, 2004
The Ridiculousness of the NCAA: I just want to take a moment to note that the NCAA once again has prove why it is the target of ridicule, reform, and possibly even revolt by its large member institutions. I have discussed this subject endlessly, but two recent decisions have proven once again how troubled this institution has become.
First, there was the decision not to let Jeremy Bloom participate in college football this year because he has endorsement deals that allow him to train to be an Olympic skier. As I have noted here, there is no reason why Bloom should not be able to accept endorsements that clearly have no relation to his playing college football. The decision means one of two things. One, it could mean that the NCAA is not willing to make decisions on an individual basis, despite assertions to the contrary. Or it could mean that the organization is punishing Bloom for causing such a ruckus, including his filing of a lawsuit. The message: don't mess with us.
The second rationale seems especially appropriate in the case of Mike Williams. In August, the NCAA rejected his application for reinstatement, despite the fact that he had returned all of the money he had taken, severed all ties with his agent and attended summer school. His penalty: he followed the law. For a time last spring, a federal district court ruled that the NFL had to admit him to its draft. Following this ruling, Williams declared for the draft. However, when the 2nd Circuit overturned the decision, Williams (and Maurice Clarett) were left out.
Williams attempted to become a professional. He sought to leave the NCAA and seek a new football life. He was caught in a unique legal situation that was not his doing and certainly not his fault. While he did break some NCAA rules in the process, the association should have realized the uniqueness of the situation and made an exception. But, it sought to make an example: if you try and turn professional early, the NCAA scorns you. You will not be welcome back.
So, Mike Williams and Jeremy Bloom sit on the sidelines. But if schools become disillusioned with such tyrannical practices, ultimately it may be the NCAA that is the biggest loser.
NHL Lock-Out a Sign of Bigger Problems? The NHL is locked out. Regular season games have been cancelled, players have gone to Europe in droves to play and there seems to be no end in sight.
So, what does this mean for the NHL? Only time will tell, but we could be witnessing the first complete revamping of a professional sports league. The owners finally decided that the economics of the sport did not work. The players salaries had exploded, but the league's revenues, including the important television contract, had not. So, rather than continue to lose money, they have decided to hold out for what they want, no matter what the consequences.
When the dust clears, we could be seeing an entirely new hockey league. There could be fewer teams, a tight salary structure, including a salary cap and possibly even new rules. Could some teams be headed back to Canada, in hopes of finding fans? Will American fans return? Obviously, the longer hockey is off the ice, the more time fans have time to occupy themselves with other diversions. This could severely damage a sport that has already been threatened as part of the Big 4, with NASCAR probably taking over the fourth spot.
Hopefully, the NHL will take the break and concentrate on its largest problem: television. Hockey is a fast-paced sport, high on energy and full of things the viewing public likes: big hits, speed, and incredible talent. The problem seems to be that the sport has not been translated well to television. Why is this? One concern voiced by viewers is that it is difficult to follow the puck. The Fox innovations (blue puck anyone?) did not work. Perhaps, though, with the increase in HDTV, the puck will be seen and fans will be happy. But the league can do more than this. How about more cameras? Cameras in helmets, cameras on the ice, cameras in the ice, cameras suspended across the ice. Fans should be put in the action, made to feel the hits and understand the speed. Only then will television ratings go up, giving the NHL the revenue its needs to answer the players' demands.
Then again, maybe this is an indication of a larger problem in sports. I watched a baseball game on ESPN classic today, a game from 1985. The difference was startling. In between pitches, the batters actually stayed in the batter's box. No stepping out for crotch adjustments and thirty second routines. There was a pitch, the ball went back to the pitcher, and there was another pitch. An entire at-bat took place in the time it would take today for one pitch to occur. Why is this important? Players were playing a game. There was no self-indulgence, no "me before the team" mentality. The game went quickly because that is what it was -- a game. Today, with players making tens of millions of dollars each season, it is almost inevitable for them to have an inflated sense of self worth. Mike Piazza asked for $20,000 for thirty minutes on last week's Apprentice. In 1978, the entire starting nine of the Pittsburgh Pirates rode in a Johnstown, PA parade for free -- just to do a good thing for the community (thanks to my cousin for the story).
Maybe all of this means that salaries have destroyed the games, not just in hockey, but in all sports. And as salaries continue to grow, there is no assurance that what is happening to the NHL will not one day occur in the other professional leagues. There are only so many sources of revenue and so much the television contracts can escalate. At some point, if players salaries continue to balloon, the economics simply will not make sense. Maybe then, other sports will have to do what hockey is doing, blowing up the sport and starting over.
Saturday, September 25, 2004
Catching Up: Flying around the country the past week or so has left me behind in updating, so my apologies. I should be on a more consistent schedule starting now. So, what has been going on?
The Bush administration has filed a brief supporting Roderick Jackson, a former high school basketball coach in Alabama. Jackson claims that he was fired in retaliation for his complaints that his women's basketball team did not receive the same funding as the men's team. He is seeking to bring a claim under Title IX, despite the fact that (1) he was not personally discriminated against and (2) Title IX does not explicitly allow a suit for retaliation. The Court will hear the case this fall. (Full disclosure: I worked on this case this summer.)
A federal appeals court has ruled that activists may have a right to picket on the sidewalk outside of Jacobs Field, home of the Cleveland Indians baseball team and mascot "Chief Wahoo," because the area is a public thoroughfare and not strictly private property. The 6th Circuit overturned a ruling that barred the protesters from gathering on the sidewalk, finding that the Gateway Sports Complex sidewalk outside Jacobs Field is fully integrated into the downtown and "indistinguishable" from an adjoining publicly owned sidewalk. The case is United Church of Christ et al. v. Gateway Economic Development Corp. of Greater Cleveland Inc., 2004 WL 1936001 (6th Cir. 2004).
Finally, the FCC has fined CBS and its affiliates across the country $550,000 for the Janet Jackson indecency incident during the Super Bowl this past January. It is by far the highest fine the FCC has handed down for indecency. But doesn't it seem that CBS should be able to go after Jackson and Timberlake for their respective roles in the incident?
Exciting New Speakers Series at Harvard: For those in the Boston area and interested in Sports Law, I invite you to check out an exciting new series of speakers coming to Harvard Law School this fall. The speeches are organized by Professor Paul Weiler and will be every Tuesday from 2:20-4:20, with a reception to follow.
Below please find a schedule of events. I will also try to post reminders on this site.
Sept. 28 - Roger Abrams, "The Shaping of Baseball, Football, and Other Sports by Antitrust and Labor Law, Including the Comparative Treatment of Curt Flood, Maurice Clarett and LeBron James."
Oct. 5 - Jeff Jackson, "The Players Market and How Relations Between Players and Owners - Especially in Hockey - Are Being Governed by the Law and Economics of Sports."
Oct. 12 - Don Fehr and Rob Manfred, "How to Bring About Constructive as well as Peaceful Settlement of the Design of the Players Market."
Oct. 19 - Brian Burke, "Relations and Dealings Between the Player Agents, their Clients, the Teams and Player Unions."
Nov. 2 - Debate between Rick Horrow and Stephen Greyser, "Law and Economics of Public v. Private Stadium Building: Does Franchise Free Agency Need a Salary Cap?"
Nov. 16 - Jeff Mishkin, "The Law and Economics of Television and Merchandising Deals with Dominant Major."
Nov. 23 - Roger Abrams, "College Sports and the Civil Rights Treatment of Minorities Under Title VI and Females Under Title IX."
Nov. 30 - Jeff Mishkin, "College Sports and its Commercialism for the Universities and Coaches and Amateurism of the Players."
Monday, September 13, 2004
New Legislation Targets Agents: Congress has passed legislation that would curtail the tactics of many sports agents. The bill, which now goes to President Bush for signature, would bar agents from recruiting student athletes by giving false or misleading information or providing anything of value to the athlete or his family before entering into a contract. It is unclear what all would be included in "false or misleading" information. If an agent said, "You will be a first-round draft pick" and the player slips into round 2, can a case be made against the agent? It remains to be seen how such a law would be interpreted, but it seems clear that its intent is to prevent blatantly unethical behavior intended to take advantage of impressionable athletes and their families.
Of course, on a day when the ban against assault weapons lapsed with no word from Congress or the White House, a law concerning sports agents does not seem quite as important.
The New 'Moneyball': I recently re-read Moneyball, the well-written account of Billy Beane and his revolutionary strategy of player selection and evaluation. Re-reading it reminded me why I like the book so much. For one, it is about baseball -- a subject sure to increase the enjoyment factor of a book by a factor of ten. But more importantly, the book is about re-examining history: not accepting a practice just because "that's how it's always been done." So often one encounters things in life that are explained with this faulty logic and it is refreshing to see it challenged whenever possible.
Now, though, people are beginning to 'moneyball' Beane. With the movement of OPS (on-base percentage plus slugging) into the mainstream, bargains can no longer be had based on this statistic. So, as Peter Gammons reports, teams have found a new way to find baseball bargains: defense. A new generation of baseball statisticians have found a way to measure and quantify defensive excellence, allowing teams to find players that may not have the incredible hitting statistics, but win games in the field. Already the rankings have caused teams to make moves, including the Red Sox dealing All-Star Nomar Garciaparra to gain two Gold Glove infielders.
But what's next? Moneyball is about bucking trends and not questioning accepted methodologies. But what if the new trend is trying to find the next great thing? If teams are not careful, they could be so busy looking for the next 'Moneyball' stat that they overlook the stats that identify great players, including OPS. Eventually, the end of this trend will come, but when it does, this revolution of new statistics could result in a completely-changed game of baseball.
What's In a Name? Well, if your name is Mark Guthrie, it can mean $300K. Apparently, the Tribune Co., which owns both the Chicago Cubs and Hartford Courant, paid Mark Guthrie $301,000 last October. The only problem - it went to newspaper carrier Mark Guthrie, rather than relief pitcher Mark Guthrie. The team managed to get back most of the money, but now has had to sue for the final $26,000. The newspaper man is holding out on the rest, voicing a concern over potential tax implications.
If the money, which was deposited in October, had carried over into the New Year, then newspaper Guthrie could possibly face taxes on that money. But the issue is not that simple. The team realized its mistake and recalled most of the money in December, meaning Guthrie had no accession to wealth, and thus, no income to be taxed. But the team did not get back all of the money -- only because he refused to give it back. A court could say that he had no legal right to the money, and thus, no accession to wealth. On the other hand, he did keep the money past the end of the year, increasing his overall wealth, if only temporarily. Because he had no right, the money would be taxed as illegal income. This means that Guthrie would get no deduction for returning the money and would take a big tax hit. Thus, by keeping the money and claiming potential tax problems, Guthrie may have in fact created his own tax problems, not to mention a costly lawsuit.
The lesson here: there is no such thing as a free lunch. If you suddenly find $300,000 in your bank account, best to give it back.
Friday, September 10, 2004
More on the First Amendment and College Fans: Eric Felton of the Wall Street Journal has a story discussing the boorishness of collegiate sports fans and the legal hurdles (i.e., the 1st Amendment) in trying to curtail their behavior and preserve the university's image. The piece does not add much to the discussion, but is a good summary.
Eminent Domain in Brooklyn: The Wall Street Journal has an editorial today sharply criticizing the stadium plans of Nets owner Bruce Ratner. The piece not only questions the idea of using public money to build the new stadium in Brooklyn, which is a common argument made today. It also derides the potential use of eminent domain to seize part of the land for the future development. It seems that Ratner faces a tough battle, both legally and politically, for his Brooklyn idea to become reality.
You can read my analysis of eminent domain in this earlier post.
Wednesday, September 08, 2004
Tennis Players Causing a 'Racket'? Darren Rovell of ESPN.com has an interesting piece describing a common practice among star tennis players: using older, discontinued rackets but painting them to resemble the newer models the player endorses. Players do this for obvious reasons: they feel comfortable with the type of racket they have used for years and cannot change every time the technology does. But is there a possible claim for false advertising?
Since the US Open is going on, let's look at New York law. New York General Business Law sec. 350 declares that false advertising is unlawful. The statute defines "false advertising" as advertising that is "misleading," including "representations made by statement, word, design, device, sound or any combination thereof" and also to the extent that the advertisement "fails to reveal facts material in the light of such representations."
A claim for false advertising in New York can be pursued via three avenues. One, the state Attorney General can bring a claim on behalf of the state. Second, a company can be brought up on criminal charges under the state's penal law. Finally, a consumer that has suffered damages as a result of the false advertising can bring a civil suit. The most likely scenario is a group of tennis racket purchasers that felt aggrieved filing a class action suit against the tennis racket manufacturers, since they know of this practice and allow it to continue.
There seems to be a number of hurdles to this possibility, however. First, the consumers must prove that they were damaged by the false advertising. At first glance, damages are not apparent. Even if the purchasers were aspiring professionals who believed they were getting the same technology used by the best players, the advertisements would not be that misleading. The professionals do still use the rackets of that particular manufacturer, just not a certain model. Michael Jordan and Mia Hamm endorse Nike, but only use certain products. Since the technology moves faster than the advertising, this is to be expected.
The real problem may lie in players using discontinued products, or stated another way, products not available for sale to the general public. In 2000, a consumer watchdog group sued Nike Golf after its top endorser Tiger Woods admitted that the golf ball he uses wasn't available to the public. In the wake of the suit, Nike quickly introduced the Tiger ball to the market. A group of ambitious lawyers could perhaps make this same argument in regards to the tennis rackets. This could be seen as a "material fact" that the company failed to reveal after making a representation that the athlete uses the most recent product.
Overall, this seems to be a weak legal argument. On a policy level, an adverse decision would wreak havoc on businesses that advertise. Endorsement contracts would have to specifically mandate that the athlete or performer use a specific product, and not just any product made by a manufacturer. Advertisements would have to change with the technology, which does not seem to be possible. So, while an interesting story, there does not seem to be any claim for false advertising, no matter how much painting and transformation occurs.
Monday, September 06, 2004
Bryant Trial: The criminal case against Kobe Bryant was dropped last week, not unexpectedly. All he had to do was go through the motions of an apology. The civil case will continue until the victim settles for an undisclosed amount of money and drops the suit. Does this mean the alleged victim was lying? Does it mean she is only interested in money? Or does it mean that the mistakes of the court proved too much for the prosecution's case to bear? No one knows for sure.
Interesting articles about this:
New York Times - legal failures?
Houston Chronicle - too much legal secrecy?
FindLaw - why did the alleged victim stop cooperating?
In the end, it should surprise no one that Bryant will not spend a day in jail. I do not know if he committed any crimes. I do know that it would have been impossible for there to be a fair trial. His celebrity would have saved him, or the media circus would have convicted him before a jury was even empaneled. This is the real lesson of the Bryant case and the real problem facing our legal system when it comes to high profile defendants.
Yes, the 1st Amendment right of the press should be protected, but only by keeping the media circus out of the courtroom can justice truly be served. Yes, the media should be able to observe all trials. And yes, the public does have a right to know. But the public does not have the right to a play-by-play, no matter how much this may boost ratings. The increasing media presence in these high-profile cases prevents the effective administration of justice. Did the clerk err in releasing the alleged victim's name? Yes. But who published it? Who sought it? The irony comes when the media, largely responsible for creating this injustice, later complains when a defendant such as Bryant escapes trial or conviction. Only by limiting media access to observers and representatives can the legal process continue, uninhibited by ratings and talking heads.
Credits for Play?: Courtesy of John Stoner, an article from the Washington Post discussing the policy of giving players credit (up to 1 per year) for playing varsity athletics. Obviously, this has many people upset. Why should varsity athletes, on a full scholarship in sports like football, also be given class credit for playing a sport? My response: why not? Every college has Physical Education courses. Credits are given for playing tennis an hour a week, going bowling or taking a course in lifeguarding or first aid (for which the applicant receives certification). Why should someone who participates in athletic activity for up to 40-60 hours per week not receive one credit each year for this activity?
It is clear that participating in varsity sports adds just as much value, if not more, than an hour each week playing tennis or bowling. Athletes learn valuable skills of team work, handling enormous pressure and expectations, time management and coping with defeat. Is there really any problem with awarding one academic credit each year for this expenditure of time and the clear lessons that are learned. If people are concerned with assigning a letter grade, make the credit pass/fail. But no one can convince me that enough is not learned in playing varsity sports to justify some (very limited) academic credit.
This also seems like a good alternative to compensating collegiate athletes, which has been proposed in legislation in at least two states (California and Nebraska) and which I discuss in this article from last year. We should not pay college athletes for a number of reasons: they should remain amateurs, there isn't the money, Title IX raises a number of hurdles, etc. But why not compensate athletes in some non-monetary way, like class credits? One or two credits each year does not jeopardize the education of these athletes any more than any PE class does. Many high schools, including my own, award credit for playing varsity sports, participating in student government, or engaging in community service. This encourages students to participate in activities they enjoy and also awards them for the education they receive in doing them.
Too often, administrators view education as something only gained in the classroom. This simply is not accurate. I learned much more in college outside of the classroom than I did inside. I learned about life, about living on my own, about dealing with people from different backgrounds and who held different beliefs, and on. If some of these lessons can be pinpointed to a particular, university-sanctioned activity such as athletics, then credit should be awarded. This does not jeopardize student-athletes; if anything, it reminds these men and women of the benefits of being both a student and an athlete.
Also, John has a link to an interesting article on his blog about wine and baseball, two of my favorite topics.
Did Brown Violate His Contract? Kevin Brown had surgery on his left (non-pitching) hand this weekend after breaking three bones with a punch to a clubhouse wall following an outing on Friday. Brown is expected to miss three weeks, a huge blow to a Yankees team already short on starting pitching. He has apologized to his teammates and the organization. But, did he violate his contract in committing this act of frustration?
I do not know the exact language of Brown's contract, but most player contracts contain substantial language preventing dangerous activities. Often these include riding motorcycles, skydiving, and playing other dangerous sports (i.e., pick-up football). One would think that the contract language would also prohibit self-inflicted injuries, such as punching immovable concrete walls. This could mean that the Yankees could fine Brown, or possibly even refuse to pay him for the time he spends on the disabled list. In another profession, it could mean the team could void his contract, but with the strength of the player's union, this will not be the case. Besides, despite Brown's increasing age and declining pitching ability, the Yankees need all the arms they can get. Expect to see Brown pay a moderate fine and be back on the mound in as little as a week.