Sports Law Blog
All things legal relating
to the sports world...
Tuesday, December 28, 2004
 

Skiing and Legal Liability: A Tale of Two States The LA Times has a story comparing the legal regimes of California and Colorado when it comes to injuries on the ski slopes. It seems that skiers in Colorado face an increased risk of legal liability, both civil and criminal, than those in California.
    Greater public awareness has reduced collisions on some slopes . . . . Resorts have installed warning signs, fencing and mazes in congested areas and intersections, and employees intercept reckless skiers and snowboarders during busy times.

    Despite these measures, prosecutors and juries in Colorado, the nation's biggest ski state, have begun to conclude that skiers running over other skiers is no longer acceptable even for an inherently risky sport.

    "It's a societal shift," says Michael Berry, president of the National Ski Areas Assn. "Skiers have been colliding since the second guy took up the sport. But people are far less tolerant of risk today."

    A Colorado prosecutor first brought criminal charges against a runaway skier in 1988, after an 11-year-old child was killed in a skiing collision; the 31-year-old skier served jail time. A Colorado jury first awarded a multimillion-dollar verdict in a skiing-related civil suit in 1994 after a commodities trader crashed into a ballerina at Snowmass, damaging her knee.

    [] "It's widely accepted now that if you run someone down in Colorado, you're responsible."

    But not so in California. In 1997, the state Supreme Court held that skier collisions are, except in the most flagrant instances, an inherent risk of the sport, making it almost impossible for injured skiers to collect damages from those who hit them. Unless a runaway skier is guilty of "gross negligence" — conduct so reckless that it is outside the realm of the sport, which is generally interpreted as skiing while intoxicated — the person can't be held responsible, even if the accident causes injury or death.
It seems to me that neither state has it right. The regime in Colorado seems far too harsh -- there are a number of risks inherent in the sport that do not seem to be taken into account in these cases. And the California regime, requiring only intoxication to trigger legal liability, seems far too lenient. An appropriate standard would seem to use a standard of "recklessness," or wanton disregard for the safety of the other skiers. This would include skiing beyond one's limits, or blatantly disregarding the safety of others. If you cannot act a certain way in a car, you should not be able to act that way on the slopes.

But the imposition of legal liability should not be identical to driving, because of the risks inherent in a sport like skiing. Juries, judges and legislators must remember that all skiers assume a certain amount of risk every time they go up on a slope, and fellow skiers should not be punished for mere accidents, no matter how grave the outcome. Just because a skier dies, or a ballerina suffers a knee injury, does not mean that legal liability should follow. Yes, these cases are tragic, but they are often more a product of chance than a product of fault on the part of the injuring party. After all, what was a ballerina doing skiing anyway? Professional athletes have clauses in their contract preventing them from skiing and for good reason. Skiing is dangerous and the risk of injury is high. The legal world, especially in ski-crazy Colorado, should also understand this.

Monday, December 27, 2004
 

No Padding? No Complaint The Wall Street Journal ($) ran an article the other day detailing how NFL players are wearing less padding than at any point since the early days of the game. The reasons? Aesthetics, quickness, peer pressure and wanting to "look tough."
    In 1995, the NFL changed hip, thigh and knee pads from "mandatory" to "recommended" equipment because so many players were stripping down that the earlier rule was considered unenforceable. A few NFL teams require players to wear thigh and knee pads but even on those teams, "there are transgressors," says Ronnie Barnes, vice president for medical services for the New York Giants. Hip, thigh and knee pads are required in high-school and college games.

    "Speed, man," says Rams safety Antuan Edwards. "The game is so fast, you want to be as light as possible." Mr. Edwards ditched leg pads when he entered the NFL five years ago. "You feel a difference," he says. "At least you want to think you feel a difference."

    Showing off muscular, padless legs encased in spandex doesn't hurt, either. "It does look good, doesn't it?" says Mr. Edwards, smiling.
One hopes that this does not lead to more debilitating injuries for players, although the article suggests that the smaller shoulder pads used today may have driven up the number of rotator cuff injuries. If injuries do increase, could the NFL face liability for not adequately warning its players of the dangers of less padding? I don't think so, because these athletes are adults and the dangers are apparent. But the NFL would be wise to pad itself and make players sign mandatory forms acknowledging the dangers inherent with not wearing the suggested padding. This will "pad" the league in the event of any future lawsuit.

Tuesday, December 21, 2004
 

Accord Reached on DC Stadium: From the Washington Post:
    Under the new proposal, which the 13-member council is to vote on today, the city will purchase insurance for potential cost overruns on the stadium and split the payments with Major League Baseball. Also, District officials will continue pursuing private financing for the project for several months. But Cropp said she will drop a requirement that 50 percent of the construction costs be paid for with private money.
The Sports Economist has more.

Monday, December 20, 2004
 

A Vicious Hit: I watched live the hit that Jaguar Donovin Darius put on Packer Robert Ferguson last night. It was vicious and it even looked intentional. He was right to be ejected the game and he will be fined by the NFL. But should he face legal liability? No.

Most likely, he will not, because Ferguson (thank goodness) appears that he will make a full recovery. If Ferguson had been more seriously injured, however, legal liability certainly would have been discussed, if not pursued. Witness the plea deal being discussed in the Todd Bertuzzi case. This just harkens back to an action being judged by its results and not by the action itself. But Darius's hit, however vicious, is part of the game of football. So much a part, in fact, that it has a name: clothesline. It may be against the rules, and the league is right to punish Darius for breaking those rules, but it should not lead to legal liability off of the field.

 

Mets v. Sportschannel: From New York Lawyer:
    The New York Mets won an early round of litigation yesterday with a ruling rejecting Sportschannel's plea for a preliminary injunction that would have blocked the Mets from negotiating a new licensing deal for a regional sports network.

    Sportschannel Associates v. Sterling Mets, No. 603548/04, by Manhattan Supreme Court Justice Helen Freedman of the Commercial Division arose from a licensing agreement granting Sportschannel exclusive rights to broadcast the Mets regular season games.

    The contract was set to expire in 2011 but included a buy-out clause the Mets exercised in May. The move truncated Sportschannel's license at the end of the 2005 season.
Hat tip Trademark Blog.

Thursday, December 16, 2004
 

Baseball and Drugs Links: An op-ed in the New York Times today highlights a major problem of the current drug problem in sports: it does not stop at the professional or collegiate level, but is also seen in high school. My brother was friends with the young athlete mentioned in this piece, and so I know first-hand the dangerous consequences of performance-enhancing drugs.

For a great deal more on this topic, check out Only Baseball Matters, where John has a number of posts and many links to outside sources that have addressed this issue.

And the debate at Legal Affairs continues between Roberts and Finkelman.

Update: For more on the impact performance-enhancing drugs can have on children, read this article from the current Newsweek. Plano West, the school featured on the cover, is where both of my brothers went and is across the street from my parents' house.

You may also remember Plano from such scandals as the heroin bust that occurred at my high school in the late 90s, as well as the rash of teenage suicides from a decade earlier. This is a city that has been named a Top-10 Kid Friendly city and one of the Top 50 places in America to raise a family.

 

More on the DC No-tionals: As expected, Major League Baseball rejected the DC Council's modified stadium financing proposal, putting the Expos/Nationals back into the realm of uncertainty. In the comments to yesterday's post, Mike correctly wonders how such an important vote could have come so late in the process. In DC, Mike Wilbon echoes this sentiment, while also noting that despite all of the political rhetoric, the nation's capital is still baseball-crazy. Thomas Boswell continues his sharp criticism of the DC Council and poses a good hypothetical: what if it were baseball trying to change the terms of the deal at the last minute? One expects that people in DC and elsewhere would not be too happy with this type of negotiation. But Prof. Sauer thinks that when this is all over, Mayor Williams and Commissioner Selig may wind up being the villains anyway. He also links to Off Wing, which has some excellent coverage of this issue.

Baseball is often the villain, but it seems to me that it was handed a raw deal in this case. The league really was not that interested in bringing a team back to the capital, due to the multiple failures in the past and the intense opposition from Peter Angelos and the Baltimore Orioles. However, MLB agreed to bring the team there because it would receive something it found beneficial: a publicly-financed stadium that would help the team find an owner (something that has been missing for two years). If DC had been upfront about not financing the stadium, then the Washington Nationals would never have come to be in the first place. You can blame Mayor Williams for not securing political support, or the DC Council for holding back its intense opposition until the 11th hour, but it seems unfair to blame baseball. After all, Selig was not negotiating with an unintelligent party with no resources. The deal was struck with a city and a mayor that should have known what they were getting into.

Wednesday, December 15, 2004
 

The Players Association as Bully? When the NBA Players Association is not fighting the league about brawl suspensions, it also likes to fight with community youth groups. I am not sure who is right and who is wrong in this landlord-tenant dispute, but I am sure both parties share in the blame.

 

Can a Stadium Be Torn Down Before it is Built? In a stunning development, the DC Council approved legislation yesterday that requires private financing to cover half of the cost of a new baseball stadium. This is an enormous change from the original deal the city had with Major League Baseball, which required that the new stadium be publicly funded.

Many are happy, seeing this as a key strike in the drive against publicly-financed stadiums. Others are dismayed that this decision may have ended baseball in the nation's capital before it could even begin.

Legally, what does this development mean? Baseball agreed to move the Expos (now the Nationals) to Washington if the city agreed approve a plan to build a new, publicly-financed stadium by December 31. With last night's vote, it appears that the city will not meet its part of the agreement. This most likely means that baseball could pull up and move out of Washington anytime after January 1.

But as much as baseball might want to do this to make a point, it is simply not realistic. The team has already moved its offices to Washington; a logo and name have been picked; uniforms have been designed; season tickets (16,000) have been sold; the schedule is being made with the idea that there will be a team in Washington, D.C. So where does this leave the league? It may mean, as one article suggests, that DC will be a one-year stopover for the team on the way to another city. Perhaps northern New Jersey? Perhaps Las Vegas? The bidding war may have begun anew.

Does baseball have any legal standing to sue? It depends on how the court views the initial agreement. Just based on the literal terms I have seen, the city did not breach the agreement; it just did not fulfill its obligation, and thus, baseball has the option to pull out. Baseball will clearly be upset, though, based on the incredible amount of money it has spent on this move and may try to exhaust any and all legal options.

In any case, it seems that this may debate may have a serious impact on politics in the District. The mayor stormed about of the meeting, incredulous at what was taking place. And the debate within the council was also divisive. Baseball in DC is not completely dead, but it remains to be seen how much life it has left.



 

Interesting Debate at Legal Affairs: This week's Debate Club at Legal Affairs features a discussion between Gary Roberts and Paul Finkelman, two sports law experts on the current steroid problems in baseball. I hope to be weighing in on the debate later this week. You can view the discussion here.

 

Baseball on Drugs Links: In addition to the Legal Affairs debate, here are a few other entertaining reads on the baseball steroid situation. Bill Gifford at Slate looks at who dopes, why the dope and who it hurts. Carl Elliot says that baseball players are no different than the rest of the country in taking performance-enhancing drugs. Finally, Will Carroll of Baseball Prospectus wonders if performance-enhancing drugs actually help a player in a baseball.

 

NHL Players Reject Owners' Counterproposal; Season Cancellation Very Possible:

In the latest of discouraging signs that the 2004-05 NHL Season will be canceled, the National Hockey League Players' Association rejected a counterprospal from the owners that included a hard salary-cap (or, as the owners euphemistically call it, "cost-certainty"). Last week, the owners rejected an initial proposal from the NHLPA, which assented to significantly reduced player salaries, but not a hard salary cap. No further meetings are scheduled, and the 90-day lockout has no end in sight.

While NHL fans are no doubt disappointed by the lockout, there does exist something of a silver lining: increased fan interest in amateur hockey and professional women's hockey. Also, if the NHL cancels the entire season, it will be interesting to see the degree to which the NBA and NFL benefit with increased attendance, TV ratings, and merchandise sales. Particularly for the NBA, the NHL lockout would seem like a useful opportunity to expand its fan base, although its unclear how much crossover exists between NBA and NHL fans.

Tuesday, December 14, 2004
 

Gaming Monopoly? EA Sports Signs Exclusive Licensing Agreement with the NFL & NFLPA:

Looks like football videogames could stagnate a bit in the near future, as Electronic Arts has entered into an exclusive 5-year licensing agreement with the National Football League and the National Football League Players' Association to develop, publish, and distribute football videogames. EA now has exclusive rights to NFL teams, stadiums, and players for use in their games, which include John Madden Football and NFL Street. As a result, rival franchises (e.g., Sega's "ESPN football"; Sony's "NFL Gameday"; Midway "NFL Blitz") will be discontinued, leaving EA's offerings as the only choice for NFL videogame players.

With no competition, will EA mail it in? Probably not, for at least two good reasons, and one not-so-good reason: 1) general market competition amongst videogame companies should still encourage EA to work hard on developing their football games (i.e., even if it is the only football game on the market, a bad football game is still a bad football game, and most consumers would probably spend their money on something else); 2) bad football games would likely damage EA's brand-name, which could adversley affect sales of other EA product lines; and 3) there remains some competition for the football gaming audience, since companies can still develop football games, just as long as they don't use NFL teams, stadiums, and players (and according to IGN, Midway is doing just that, with a game called "Blitz: Playmakers" that features off-field drug use and generic players -- sounds like a winning combination!).

Nevertheless, exclusive licenses do generally discourage technological advancement, so we'll see what happens. However, for those of you who don't like listening to John Madden's voice or his commentary, it looks like you might have to wait until 2010 to play a football videogame.

Monday, December 13, 2004
 

Drugs in Baseball: Two recommendations from yesterday's New York Times. This article discusses the last major drug problem in baseball: cocaine. And, on a lighter note, this article asks if Balco could have helped Wee Willie Keeler?

 

Exams cometh... ...and then the holidays, so posting will be light over the next 2 weeks. I will try to post an interesting story a day. If you see anything good, please send it my way. Then we can all gather around the Festivus pole for the feats of strength.

Thursday, December 09, 2004
 

Arenas and Financial Impact: I am not saying that the public should pony up $300 million or more every time an owner wants a new stadium. But ask the owners of businesses around NHL arenas if these facilities don't have an impact on the local economy.
    The city of Detroit, for example, estimates that it receives $10 million in direct revenue from hockey games over the course of a season, from sources including parking, public transportation, concession sales at Joe Louis Arena and a surcharge on Red Wings tickets. And according to David Littmann, the chief economist for Comerica, a financial services company that has its headquarters in the city, the hockey season can pump as much as $85 million into the local economy.

    And though Detroit will survive, said Albert Fields, the deputy chief operating officer for the city, many small businesses may not.
Again, this doesn't mean the public should finance every dollar of every arena. And building a new arena is no guarantee of an economic upturn. But at least some public money should be used, because these facilities do benefit the public and have some impact on the local economy.

Wednesday, December 08, 2004
 

Maybe it slipped his mind as he got into the limo... Latrell Sprewell was suspended one game for yelling a sexual vulgarity at a fan during a game last weekend. You would think he would be more careful, especially because of his difficulties in feeding his family.

 

More on the Brawl: As expected, the Oakland County (Detroit) prosecutor charged five players and seven fans with criminal charges stemming from the Malice at the Palace. Four of the players (Artest, Jackson, David Harrison and Anthony Johnson) were charged with one count of assault and battery, a misdemeanor that has a maximum penalty of three months in jail and a fine of $500. Jermaine O'Neal was charged with two counts of assault and battery.

Five of the fans were charged with the same offense. The prosecutor says it is unlikely that any will face jail time because they have clean records. The fan that threw the chair, though, could serve four years or more in prison, because he was charged with a felony and has prior convictions. The fan that threw the cup also has a record and thus could also face jail time. The Pistons have said that all seven fans will be banned from the arena.

In another legal development, the NBA has decided not to participate in the grievance hearing to be held tomorrow over the player suspensions. The league has taken the position that the arbitrator does not have standing to hear the case, as the collective bargaining agreement clearly gives Commissioner Stern unilateral authority over on-court incidents. Thus, the arbitration will be one side speaking alone. The league decided not to preemptively challenge the arbitrator's decision to hear the case, but it may appeal an unfavorable ruling to a federal court.

 

On Violence in Sports: The ACS Blog has an interesting post on the subject and wonders if race has played a role in the uproar over the Malice in the Palace. I tend to think no, as my comment to the post indicates.

 

A Bit of Humor: In this day and age, it's not just the players that need to take steroids.

Update: Apparently, steroid humor is all the rage. Witness this piece in the New York Times.

 

Professional Baseball and Interstate Commerce: In this recent post, I concluded in one sentence that baseball is interstate commerce, and thus can be regulated by Congress.
    It also seems that the legislation would pass constitutional muster: professional baseball is certainly within the realm on interstate commerce. It may not have been in 1922 (see the Supreme Court reference in the Times article), but it certainly is now.
The 1922 case I refer to is Federal Club v. National League, a case in which Justice Holmes wrote:
    The business is giving exhibitions of base ball, which are purely state affairs. It is true that in order to attain for these exhibitions the great popularity that they have achieved, competitions must be arranged between clubs from different cities and States. But the fact that in order to give the exhibitions the Leagues must induce free persons to cross state lines and must arrange and pay for their doing so is not enough to change the character of the business. According to the distinction insisted upon in Hooper v. California, the transport is a mere incident, not the essential thing. That to which it is incident, the exhibition, although made for money would not be called trade of commerce in the commonly accepted use of those words.
This is the quote relied on by Michael Cernovich at Crime & Federalism, when he concludes that baseball does not fall under the federal commerce power. So, I decided to do some more research. Was I wrong in my first post?

I don't think so. Justice Holmes may have been correct when he wrote Federal Club (who am I to question Justice Holmes?), but the analysis of the interstate commerce clause has changed substantially since 1922. In United States v. Lopez, the current Supreme Court laid out three broad categories of activities that fall under federal commerce power:
    (1) the channels of interstate commerce
    (2) the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities
    (3) those activities having a substantial relation to interstate commerce (i.e., those activities that substantially affect interstate commerce)
One could make a persuasive argument that baseball falls into the second category, but many people would disagree. There seems, however, to be no argument about the third category. Professional baseball certainly has a "substantial relation" and "substantially affects" interstate commerce. Professional sports are a billion-dollar industry in this country. Teams from one state travel into another to play; images from those games are beamed to every state in the union, where local advertising is sold on the broadcast. Likewise, merchandise from professional sports is also sold in every state and marketers conduct national campaigns tying in professional baseball and their product. This is the essence of interstate commerce.

Finally, I rely on a quote from another Supreme Court case pertaining specifically to baseball. In Flood v. Kuhn (the case that paved the way for free agency in baseball), the majority wrote:
    "Professional baseball is a business and it is engaged in interstate commerce."
92 S.Ct. 2099, 2112 (1972). If it was true in 1972, I have to imagine it is true today.

Tuesday, December 07, 2004
 

Baseball Player's Contract Terminated: No, not Jason Giambi (though Major League Baseball is now talking tough on drug testing). Rockies pitcher Denny Neagle's contract was terminated by the team after he was cited for solicitation, his second legal problem within the past year. The team cited section 7 (b) (1) of the Uniform Player Contract, which states the team can terminate the contract if a player shall "fail, refuse or neglect to conform his personal conduct to the standards of good citizenship and good sportsmanship or to keep himself in first-class physical condition." This is also the clause referenced by many as the way in which the Yankees could sever their ties with Giambi.

The Neagle situation takes on even more importance in the current baseball climate. If the Rockies are allowed to terminate this contract, does this pave the way for the Yankees? The union has said it wants to "discuss" the decision and reportedly will seek payment of the $19 million still owed the pitcher (who has not taken the mound since July 2003).

Monday, December 06, 2004
 

Congress to Take Action on Steroids?: As I have said before, Congress is not happy with the steps (or non-steps) baseball has taken to curtail the use of performance-enhancing drugs. Now, John McCain has said publicly that Congress will act if baseball does not, perhaps even introducing legislation that would require some type of drug testing. I still believe this is more of a bluff, and that Congress really wants baseball to act on its own, but such legislation is still a possibility. It also seems that the legislation would pass constitutional muster: professional baseball is certainly within the realm on interstate commerce. It may not have been in 1922 (see the Supreme Court reference in the Times article), but it certainly is now. More realistic, I believe, is for Congress to revoke the antitrust exemption professional baseball enjoys. The legislators will certainly hold this carrot out to encourage baseball to act, and if nothing is done, Congress will certainly attempt to act in one way or another. And as McCain says, if a bill does get through, it seems likely that Bush will sign it. It should be an interesting few months of negotiations between the league, the union and the federal government.

 

Interesting Development in NBA Dispute: The league apparently has decided not to seek a restraining order preventing arbitrator Roger Kaplan from hearing an appeal of the Pacers brawl suspensions. The NBA has said it reserves the right to challenge the arbitrator's finding after it is issued.

This is an interesting strategy. By allowing Kaplan to hear the cases, Stern is making an important concession to the union and is permitting his own power to be checked. This could be very important in the next collective bargaining negotiations and could help ensure the labor peace. In addition, perhaps Stern wants the punishments to be lessened but does not want to appear as if he is giving into union demands. Kaplan could do this, and if he goes too far, Stern and the league could go to federal court to challenge his authority. On the other hand, Stern is giving up a great deal of power. Will all future punishments for on-court incidents be appealed? Stern and the other top league officials are very smart -- I am sure they have a good reason for this move. It will be interesting to see what that is.

The hearing will be held Thursday and Friday with a decision due next week.

Sunday, December 05, 2004
 

A Must-Read: Peter Gammons is an excellent author and this column is no exception. I highly recommend Gammons's take on the steroid situation and why it is in the best interest of the players association to agree to drug testing.

Saturday, December 04, 2004
 

Now the NBA and NBPA are Brawling: In an update to this earlier post, arbitrator Roger Kaplan has ruled that he has jurisdiction to decide whether the brawl-related suspensions can be appealed to someone other than Commissioner Stern. Kaplan plans to hear the case next Thursday. The league, though, has responded by filing a lawsuit in federal court challenging the arbitrator's authority. The lawsuit contends that the NBPA and the players violated the collective bargaining agreement by taking the appeal to a grievance arbitrator. The union responds that it never agreed to "the spirit" of any rule that would give the commissioner such unchecked authority. The federal court will hold a hearing on the matter on Monday.

 

Could Things be Any Worse for Wally Backman?: The temporary D-backs manager was sentenced to ten days in jail for violating his probation, a charge that emerged during his hiring fiasco.

 

Yankees and the Giambi Problem: As expected, it will not be easy for the Yankees to sever ties with Jason Giambi. As the New York Times reports, the team now believes that it will not be able to void the player's contract. In addition, any attempted buy-out of the player would need not only his approval, but also that of the union:
    In a buyout, the Yankees and Giambi would have to determine how much money each would give up to end their relationship. How much would the free-spending Yankees give Giambi to have him drift away? How much would Giambi, who has long been uncomfortable in New York, accept to leave?

    Start at the midway point. Would the Yankees give Giambi $41 million? It is an alarming sum of money to pay someone who was unavailable for most of the 2004 season and who violated the team's trust. But the Yankees could easily view it as a way to save $41 million, too, and trudge forward. Especially if they conclude that they do not have a strong enough case to pursue anything legally.

    But the players association would certainly object to Giambi's sacrificing half of his contract. The union balked when Alex Rodriguez tried last winter to defer enough money on his contract to save the Boston Red Sox $28 million and allow him to escape from the Texas Rangers. In the end, the union's stance killed the trade to Boston, and Rodriguez instead became a Yankee.

    The union's approval of any Giambi buyout would be needed because it would represent a devaluation of an existing contract, as was the case with Rodriguez. And a devaluation cannot occur without the union's approval, regardless of the player's desire.
If there is ever a case for the union to back off and give in to the mutual wishes of a player and a team, this is it. The Yankees are rightfully furious with Giambi -- he consistently lied to the team and its medical staff about his drug use, perhaps exacerbating the medical problems that jeopardize his career. And if Giambi wants to get out of New York, the union should let him. After all, he may (and should) feel bad about taking as much as $41 million for, in effect, doing nothing.

But, as I have said before, the players association does not have a great track record of managing public relations. So, another battle is to be expected.

 

More Balco Fallout: There is a question that I have not addressed yet, but is of the highest importance: Where did these transcripts come from? Grand jury transcripts, including this one, are sealed and confidential. Leaking them is a felony in most cases. This article states that only a select number of people had access to the transcripts: the judge and clerks, the defense attorneys and the government attorneys. Someone in that group, or an employee of one of these people, leaked this to the San Francisco Chronicle. I hope that this person is discovered and prosecuted, because if individuals are not confident that their sealed testimony will remain a secret, many will be much less willing to be forthcoming during these very important grand jury hearings.

And as expected, the negative publicity surrounding baseball (and all professional sports) continues to grow. This columnist states what many believe: of course there is cheating going on, but no one really seems to care about it.
    While the spotlight shines on a few trespassers — such as baseball slugger Jason Giambi and sprinter Kelli White by admission, and superstar Barry Bonds and track queen Marion Jones by implication — hundreds more are sneaking under the fence.

    If a guy like Conte, whose medical training consisted of copying articles about minerals from a Stanford library, can come up with substances that beat drug tests, then what about the true lab whizzes?

    *****

    It's sad, but you almost have to assume negatives. Charles Yesalis, the Penn State professor and author of three books on steroid use in sports, once asked me how I could believe football players could grow so large so fast in college, considering they already came to campus as the best physical specimens from high school. In other words, it's not natural. And at the highest level of competition, being naturally gifted isn't enough. You wonder if the best can get better without a little artificial assistance.
I really want to believe that athletes such as Lance Armstrong and Barry Bonds (both of whom the columnist mentions) are not taking illegal drugs, and that they get their greatness from superior training, mental toughness and skills that cannot be supplemented. After all, Babe Ruth was an athlete far superior to any of his peers; there has never widespread speculation that the Bambino took steroids. It is possible that we are looking at a few once-in-a-generation athletes surrounded by others that take performance-enhancing drugs. But is it likely? Unfortunately, it seems to be growing less and less so.

Friday, December 03, 2004
 

Et tu, Barry:? After yesterday's bombshell announcement about Jason Giambi (here and here), the San Francisco Chronicle is now reporting that Barry Bonds admitted to using banned substances in 2003, but said that he did not know they were banned at the time. Although Bonds's grand jury testimony remains sealed, it has apparently been leaked to the paper as Giambi's was:
    Bonds testified that he had received and used clear and cream substances from his personal strength trainer, Greg Anderson, during the 2003 baseball season but was told they were the nutritional supplement flaxseed oil and a rubbing balm for arthritis, according to a transcript of his testimony reviewed by The Chronicle.

    Federal prosecutors confronted Bonds during his testimony on Dec. 4, 2003, with documents indicating he had used steroids and human growth hormone during a three-year assault on baseball's home run record, but the Giants star denied the allegations.
The article has a great number of excerpts from Bonds's testimony about his dealings with his former trainer and his supposed use of the "cream" and the "clear," both of which are euphemisms for performance-enhancing drugs. Bonds also claims in his sworn statement that the drugs did not work.

So what does this mean for the man universally regarded to be the best player in baseball, and one of the best players in history. Like it or not, his records may be tainted by these accusations. If this is all that emerges, I doubt much will come of it, because as Ray Ratto writes, intent is key. However, if this is just the tip of the iceberg, both Bonds and baseball could be in for a long, bitter struggle. For Bonds, the worst thing that could happen is that his records are wiped off the books. Again, unless clear proof emerges that he took performance-enhancing drugs throughout his career, this will not happen. There has also been talk of an asterisk, though this also seems unlikely. Most probable is that every discussion of Bonds's legacy will include the statement "Yeah, but..." At this point, there seems to be little Bonds can do to change this. Many believed that he used performance-enhancing drugs before these admissions and now have evidence to back up their speculations.

No matter where this story goes in the next few days, baseball has been dealt another huge public relations blow. Instead of speculating on which team Pedro Martinez will sign with, or where Randy Johnson will go, all guessing centers on which players are using performance-enhancing drugs. Bud Selig made his first strike yesterday, calling for the union and the league to work together for stricter drug testing. Only time will tell what effect these revelations have on professional baseball.

Also: In other Balco news, Victor Conte apparently will reveal on 20/20 that we advised Olympic sprinter Marion Jones on performance-enhancing drugs before and after her gold-medal performance at the 2000 Olympics. The speculation that Jones had used drugs followed her throughout this year as she struggled to make the 2004 Olympic team. He also says that he watched her inject HGH (human growth hormone) in 2001. Jones continues to deny this but she too will most likely have her accomplishments tainted by a "Yeah, but..."

 

More on Giambi's Punishment: More details have emerged regarding potential punishment for Jason Giambi, after he admitted using performance-enhancing drugs. From the SF Chronicle:
    Giambi could be disciplined under guidelines of the Collective Bargaining Agreement between the owners and players, the industry source said, and have his contract voided under guidelines of his employment with the Yankees. He has four years remaining in his deal and is due $82 million.

    But a source close to the union said the labor agreement supersedes a player's contract and includes language that rules out disciplinary action for Giambi.

    For example, in a transcript of Giambi's Dec. 11, 2003, grand jury testimony, which was reviewed by The Chronicle, he said he injected himself with human growth hormone during the 2003 season and started using steroids at least two years earlier. But under baseball's drug-testing policy, which went into effect in 2003 with its "survey testing" program, no penalties were to be administered unless players tested positive beginning in 2004.

    That steroid use was a penalty-less crime in 2003 is irrelevant, according to Rob Manfred, MLB's executive vice president of labor relations and human resources, who said, "Steroids were a prohibited substance under the basic agreement as of Sept. 30, 2002."

    While MLB could point to language of a standard player's contract that cites how teams can terminate a contract if a player doesn't "keep himself in first-class physical condition or obey the club's training rules," the union would argue that all drug-related offenses would be referred to Article 28, Attachment 18 of the CBA (the drug policy), which states first-time offenders aren't named or disciplined but merely sent for treatment.
If the league and the union cannot decide on which language governs, this case could head to court. Both sides would like to avoid this, and the publicity that would come with it, but MLB and the players union do not have a history of coming to agreements to avoid negative publicity.

Thursday, December 02, 2004
 

Can Congress Prevent Sports Gambling?: In 1992, Congress passed the Professional and Amateur Sports Protection Act. The act prohibits states from legalizing sports gambling (the law grandfathered any existing state laws that permitted gambling on sports, saving Las Vegas). Now, however, the New Jersey legislature is considering Bill 3493 that would legalize sports gambling in its Atlantic City casinos. Obviously this would mean big tourism dollars, which is one of the reasons the state is considering it.

Many are opposed to the bill, however, including the NFL and the NBA. Both sent representatives to a New Jersey hearing to express opposition to the bill. Said the NFL representative:
    "Athletes, coaches and referees would be the equivalent of cards, dice and slot machines if sports gambling were allowed in New Jersey," said Jay Moyer, NFL Special Counsel. "Sporting events should be appreciated for the athleticism and entertainment value, not as gambling devices. Legalizing betting on sports is the wrong message to send to younger sports fans," Moyer said.
Now, this could cause a chuckle. Professional sports long ago ceased to be about "athleticism and entertainment value." If this was all it was about, there would not be television time-outs every stoppage of play, nor advertisements plastered all over stadiums. Players became pawns in this a long time ago. Also, legalized gambling already exists in Las Vegas -- how does adding a few more casinos to the mix really change the message sent to young fans?

This does not address the legal argument, however. I will have to think about this some more, but at least one constitutional scholar thinks that PASPA is constitutional and that the New Jersey law would be struck down.
    "A court would almost certainly uphold PASPA as a valid exercise of federal power and a legal challenge to the federal legislation would very likely fail," stated Rutgers University Law Professor Bernard W. Bell at the committee meeting. "PASPA complies with the U.S. Constitution. It is undoubtedly a valid exercise of the Commerce Clause power, and it does not run afoul of either the Tenth Amendment or the equal protection guarantee of the Due Process Clause of the Fifth Amendment."
Only one law review article has been written about this and it is by former Senator Bill Bradley (2 Seton Hall J. Sport L. 5). I am going to do some thinking on ways of challenging this; feel free to send along any suggestions. Of course, it seems unlikely that Congress will reverse PASPA after this past election. But it will be interesting to see if New Jersey passes this law anyway.

Update: The Sports Economist has an update on the proposed New Jersey law. A legislative panel approved the bill yesterday, pushing it one step closer to the voter referendum it would need to pass. TSE also offers some analysis as to a possible legal challenge to PASPA.

 

Williams Not Coming Back: In other drug news, former NFL player Ricky Williams rejected a plan whereby he would be suspended for the final four games this season and then regain his NFL eligibility. His attorney indicates that this may end Williams's football career. Hopefully, Wlliams will enjoy holistic medicine and make enough to pay the Dolphins the $8 million he owes them.

 

Selig Wants More Drug Testing: In response to the Giambi revelation, Bud Selig issued the following statement today:
    This once again demonstrates the need to implement a tougher and more effective Major League drug-testing program. I have instructed Rob Manfred, Executive Vice President of Labor Relations, to look into this situation and to continue working with the Major League Baseball Players Association to have a drug-testing program that mirrors the very effective policy we currently have in the Minor Leagues. I will leave no stone unturned in accomplishing our goal of zero tolerance by the start of Spring Training and am confident we will achieve this goal.
Hockey is on strike. Basketball may have a war on how its players are mistreated. Baseball has a drug problem. How long can the NFL hold out before it has a major scandal?

 

Fight over NBA Suspensions May be Headed to Court: According to Peter May of the Boston Globe, the NBA Players Association will file a second appeal of the suspensions of the three Pacers players. The fight is heated on many fronts, including who has the power to make the final decision. The league contends that this was an on-court incident, and thus, per the CBA, the final authority rests with Commissioner Stern. The NBPA, on the other hand, is attempting to have arbitrator Roger Kaplan assert jurisdiction and rule on the case.

There are several issues from this dispute that could end up in federal court. The first is: Was this an on-court incident? This is not the issue that the union wants to fight, because it is a factual inquiry. This means that a judge could not rule on it without some kind of trial and trials take time. Chances are good that the suspensions would already be served by the time a trial was concluded.

Another issue the union could fight is: Can the commissioner have such unilateral power? This, too, is difficult for the NBPA because the language of the CBA is very clear. The argument would be either that (1) the agreement is unconscionable or (2) the language is not as clear as the league would believe, leaving some room for interpretation. The union will also try to argue that the punishments do not fit the crime, citing the 10-game suspension Vernon Maxwell received for going into the stands and attacking a fan.

Either way, this could wind up being an important case for labor law and sports law. Or, it could fade into nothing. We will see.

 

Fighting Against Motorcycle Helmet Laws: The Wall Street Journal (no link available) featured an excellent article yesterday about the crusade of motorcycle riders to repeal mandatory helmet laws in states across the nation. Currently, twenty states and the District of Columbia have laws requiring all riders to wear helmets. Of the other 30, some require helmets for younger riders or riders without insurance; others leave the choice to riders.

Opponents of helmet laws say that they restrict vision, are overly hot in the summertime, and that the choice should be with the individual rider. Advocates say that the injuries caused when a rider does not wear a helmet are far worse than with, and the state often picks up the bill for these increased costs. From the Journal article:
    The statistical case for helmet laws seems solid, according to analysis of government figures. In each state that recently repealed its mandatory helmet law, motorcycle deaths have more than doubled, sometimes in as short a span as three years.
Opponents also argue that helmets can actually cause more damage than they prevent. Supporters point out that the same arguments were made about seat belts, but now only New Hampshire ("Live free or die!) does not mandate seat belt use.

I am not sure what I think of this debate. I have never ridden a motorcycle and probably never will. I understand that some riders do not want to be burdened by helmets, no matter how much safer it makes them. I also understand the state wanting to cut down on the costs and resources associated with treating extreme head trauma. I suppose the best solution is just to let the political process decide -- and that is exactly what is happening in state legislatures across the country.

 

More on Giambi: As expected, the sports community is abuzz with the news that Jason Giambi took performance-enhancing drugs. Some of the best posts are at Baseball Musings, Baseball Crank, and Pirate's Cove.

Many thanks to Jayson Stark for providing further details on the possibility that the Yankees could void Giambi's contract. According to Stark's source, all guaranteed baseball contracts contain two clauses:
    (1) The player must agree to keep himself in first-class physical condition and adhere to all training rules set by the club.

    (2) The use or misuse of illegal or prescription drugs can be interpreted to mean the player is not keeping himself in first-class physical condition.
If this clause is in Giambi's contract, then the Yankees may be able to void it, saving them approximately $80 million. As Stark says, though, the road for the Yankees would not be easy:
    In order to void the contract, the Yankees would have to link Giambi's health problems this season to his steroid use, the attorney said. Or they would have to prove he misrepresented himself and his abilities by failing to disclose his steroid use in advance.

    The union has always argued that, in a case like this, the basic agreement supersedes any specific language in individual player contracts. And the basic agreement would protect Giambi's guaranteed money in virtually all cases.
As Stark says, because this is such a high-profile, and potentially precedential case, the union would most likely fight it tooth and nail.

In addition, it has been pointed out that Giambi probably took a physical, including a blood test, before joining the Yankees. If this blood test evinced steroid use, then the Yankees would have signed Giambi with knowledge of drug use, making it hard to void his contract now. But this is speculative at best.

A suspension for Giambi also may not be a sure bet. As reader Andrew Wiesner points out, the basic agreement speaks of positive drug tests, not admissions of drug use. Thus, Selig may be stuck between a public that wants to see punishment and contract language that ties his hands. As I said before, Congress will be very upset if nothing is done, especially after its investigation last year, and this could jeopardize the antitrust exemption.

 

Giambi Admits to Using Steroids -- What Now?: The San Francisco Chronicle reports that in Grand Jury testimony last December, Yankees first baseman and former American League MVP Jason Giambi admitted to taking both steroids and human growth hormone. The testimony was given as part of a grand jury investigation into Balco, a California drug company accused of distributing performance-enhancing drugs to athletes. Obviously, this testimony contradicts Giambi's previous public statements that he never took performance-enhancing drugs. The article linked to above has excerpts from the testimony, as well as a description of which drugs Giambi admitted taking.

The key question now becomes -- what are the ramifications of this admission? Giambi was granted immunity for agreeing to testify and thus cannot be prosecuted for using illegal drugs based on this testimony. So, it seems that he will not face legal trouble.

This immunity does not, however, extend to Major League Baseball penalties. Like all sports leagues, MLB takes performance-enhancing drug use very seriously. Add in the fact that Congress conducted investigations into drug use in baseball last year and Giambi faces a harsh punishment. A season-long ban is not out of the question, to send a message to all players that performance-enhancing drugs will not be tolerated. Under the newly-adopted World Anti-Doping Code, first-time offenders are banned for two years (example). Thus, there is precedent to support a season-long ban, which certainly would be challenged by the union.

One question I have: can or will Major League Baseball come up with some sort of "plea bargain" for Giambi? Baseball knows that other players use drugs and now has the admission of Giambi. Can baseball offer Giambi a lesser suspension for "ratting out" his fellow players? I am not sure what the collective bargaining agreement says on this, but even if it is silent, I see such a possibility highly unlikely. Giambi may never play again because of his health, no matter what punishment he receives from baseball. Couple that with the horrific stigma that would come from siding with the league and against his fellow players, and it seems that Giambi will take the fall for all drug users in baseball. This does not mean that more players will not have their testimony used against them, but Giambi will not be the one to offer up the evidence.

Could the baseball writers revoke Giambi's MVP award? The testimony seems unclear about whether Giambi took performance-enhancing drugs during his 2000 MVP season, but this definitely casts some doubt over the honor. This seems remote, though, because the late former MVP Ken Caminiti also admitted to using performance-enhancing drugs with no response from the writers.

In addition, could Giambi's contract be in danger? The Yankees are openly not happy with Giambi's performance since it gave him a $120 million contract three years ago. ESPN now reports that the Yankees are looking into termination of Giambi's contract. Unless the contract has a specific provision relating to illegal or performance-enhancing drug use, this seems an unlikely consequence. Professional baseball contracts are not at-will; they are guaranteed. The only plausible argument I can foresee deals with any clause relating to physical conditioning. I have never seen Giambi's contract, but many professional sports contracts have language about not engaging in activities that could endanger the athlete's physical well-being or readiness to play (think, riding motorcycles). The Yankees could argue that Giambi's drug use directly led to his current health problems that caused him to miss half of last season and have put his career in jeopardy. Even with this argument, however, any attempt by the Yankees to terminate the contract would face incredible opposition from the union and in court.

No matter what the fall-out, Giambi's professional baseball career seems to be over. He will be dogged by this no matter where he goes and where he plays. If he plays poorly, people will say he was only good because of the steroids. And his declining health and increasing age will likely prevent him from returning to the greatness of his MVP season. It is unfortunate that he will take the fall for the other athletes that have taken illegal drugs, but we can hope that this will scare other athletes away from performance-enhancing supplements, which would be better for the athlete, the fan and the sport.

Wednesday, December 01, 2004
 

Rushing the Court(house): This is my column this week for the Harvard Law School Record:

Much has been written about the despicable brawl that occurred two weeks ago during the Pistons-Pacers NBA game. Some have blamed the players for going into the stands; others have accused the Detroit fans of causing the fight by throwing both insults and objects. The league acted swiftly, handing out player suspensions, and civil and criminal liability will soon be determined. But the fall-out from this travesty will reach far beyond the NBA. Officials in all sports and at all levels will now have to reevaluate their policies so that both fans and players can co-exist in the safest environment possible.

College basketball will confront this new reality beginning this week, as teams begin regular season play. Student sections across the nation will attempt to intimidate opposing teams with taunting yells and intense noise. College fans pride themselves on “getting inside the heads” of the opposing players, and at the end of the game, the fans often feel as much a part of the victory or defeat as the five players on the court.

After some games, this means that fans “rush the court” – or run out of the stands to celebrate with the team on the arena floor. Often seen after upset victories or come-from-behind wins, rushing the court has become a traditional end-of-game ritual, seen nightly on ESPN and repeated on campuses everywhere. But the practice is far from safe. Rushing the court has been decried by coaches concerned for their players’ safety and by announcers fearful of being trampled under the melee. Students have been injured, at both high school and college games, by their fellow fans streaming out of the bleachers.

In the wake of the Pistons-Pacers brawl, rushing the court seems to bring even greater dangers. Interactions between fans and players, once restricted to verbal banter, have now escalated to physical violence. It seems only a matter of time before fanatical students rushing the court confront emotional players headed towards the locker room, resulting in a scene reminiscent of Detroit. Or worse, a student brandishing a weapon could cause a tragedy that makes last Friday’s brawl pale in comparison.

It remains to be seen how universities and arenas will deal with this new reality. To date, few universities have taken measures to prevent students from rushing the court. A few colleges have tried barricades such as bicycle racks or ropes and the University of Florida has threatened to ban from future games any student coming onto the court, but these are currently the exceptions. Will this season see a renewed effort to end this dangerous practice?

If not, the host school and the arena could both be held liable for any injuries that result. Arena management has the duty to provide a safe environment for all players and patrons, before, during and after the game. Numerous courts have held that spectators at sporting events assume the risk of injuries that are related to the sport (i.e., a foul ball at a baseball game, a stray golf ball or a hockey puck). However, at least one court has held that the owner of a sports facility has a duty to use due care to remove risks that are not inherent in the sport. Rushing the court seems to fall into this latter category, increasing the potential for arena liability. In addition, the NBA brawl has arguably made such dangers reasonably foreseeable. While arenas on college campuses do not serve alcohol, tenacious college students often need little fuel to hurl verbal insults. It may not take much for an emotionally-charged player to respond in a manner similar to Ron Artest: attack first and think later.

There are many potential solutions for colleges and athletic departments. NBA arenas now bring in extra security to ensure that fans remain in the seating area and off the court. There is no reason why college arenas could not provide the same level of protection. At Duke's Cameron Indoor Stadium, stadium officials use a simple system to keep students in the stands. At the buzzer, a rope is quickly stretched across both sides of the student section. While seemingly a small deterrent, the rope holds the students back, allowing both teams to shake hands and leave the floor.

In addition to being proactive, colleges could also deter rushing the court by punishing any student coming onto the playing area. Punishments could include banishment from future games or even disciplinary action at the university level. It could also be cause for a criminal trespassing charge. Moreover, at many schools, coaches have a considerable amount of influence on their student sections. Last season, Maryland coach Gary Williams gave a speech to his students, asking them to refrain from yelling obscene chants and wearing t-shirts with profanity. If Williams, or a coach with similar stature, asked his students not to rush the court, many fans would comply.

Universities have incredible liability at stake -- anyone injured in such an incident will not sue the student, because the university or arena surely has "deeper pockets." In order to protect themselves, schools and arenas should take the steps necessary to keep student fans where they belong -- off the court and in the stands. It should not take a grave injury for colleges to act -- if universities act now, injuries can be avoided and everyone can celebrate in a safe atmosphere.

 

More Fall-out from Pistons-Pacers: The legal consequences of the fight two weeks ago in Detroit continue to mount. Two fans have been barred indefinitely from the Palace, home of the Pistons. One of these fans threw the cup at Artest that incited the brawl; the other ran onto the court and was punched by both Artest and O'Neal. More fan punishments will no doubt be coming, as the man who threw the chair in the melee has now been identified. The name of the man, whose picture can be seen here, has not been released, but officials have said that he will face the most serious of the criminal charges.

On the player side, prosecutors have stated that the Pacers involved in the fight will face criminal charges. This comes amidst an uproar in Detroit that the players were not arrested immediately, as would a "normal" person who started a brawl. Of course the Pacers, after pledging to assist the authorities, have not cooperated at all with Detroit officials.

As expected, the players' association has appealed the suspensions but no final ruling has been issued.

 

Impact of the NHL Lockout: I have not written much about the NHL labor dispute, mostly because there has not been that much to report. The luxury tax has become a real sticking point and it does not seem that we are any closer to hockey now than we were six months ago. This season seems lost -- how about next season?

The impact of the stoppage is being felt all over. Obviously, Canada feels it the most, with marketers wondering where to advertise without Hockey Night in Canada. While many of the players have gone to Europe to play, this article examines what the coaches are doing. In addition, the off-ice workers have been strained by the lack of work.

Finally, this article wonders how the lockout will ultimately affect the non-traditional hockey markets, mostly in the Southeast. Will fans in Nashville, Atlanta, Raleigh and Tampa remember hockey when it comes back? In my opinion, the team losing the most is Tampa. The stoppage means that the team is unable to ride the way of its Stanley Cup championship and loses all of the momentum from its play-off run. The team even had to resort to giving the team its championship rings in a private ceremony in the arena basement.

But I am not sure how the other cities in the South will react. If anything, I think hockey may not be affected all that much. Many fans in southern cities view hockey as a novelty: if it is here, great; if not, no big deal. I don't think this will change much once hockey resumes. Because hockey is not a part of daily life, there is not the same sense of betrayal as when baseball cancelled the World Series. Thus, when play resumes, fans may be more willing to return.

Does this mean that teams in hockey-crazy areas will be more affected? Not necessarily. There will be some sense of betrayal, especially if the Stanley Cup play-offs are cancelled (which is increasingly likely). I think attendance will drop off more in hockey towns simply because it has farther to fall. But, like baseball, the NHL will ultimately be fine because people love sports and have short memories. There may be fewer franchises, but many people in southern cities will not even notice if their hockey team goes away.

 

Jockey Sues Guild over Insurance Fund: Gary Donahue, a paralyzed former jockey, has filed a lawsuit against the Jockey's Guild, seeking an answer as to what happened to the $1 million Disabled Jockey's Fund. Donahue learned the fund would be terminated in 2004 and is seeking an injunction to prevent this from happening.

This is another story that shines a light on the plight of professional jockeys. Jockeys face debilitating injuries with each ride, and once injured, find that insurance they believed they had does not come close to covering their medical bills.

Hat tip: Sports Business Daily.

 

A Permanent Olympic Home?: Scott Ostler of the San Francisco Chronicle has an interesting idea: move the Olympics to a permanent location. Cities would not spend $14.6 billion on a one-time event, as Athens just did. Large venues will not be built that sit empty afterwards. And by putting 'Olympicland' on an island in the South Pacific, no country will "own" the Olympics.

 

Blogger Problems: Sorry for the lack of posting the last few days -- Blogger has been giving me a lot of problems.