Sports Law Blog
All things legal relating
to the sports world...
Monday, January 31, 2005
 

RICO and NCAA Bribes: Skip at the Sports Economist points out a unique case arising in a federal district court in Memphis. The case, explained in this article, involves a standout high school football player, his high school coach, the coach's assistant and a University of Alabama booster named Logan Young. The coach, Lynn Lang, claims that boosters from several top football schools, including Young from Alabama, offered him bribes if he would steer his star defensive lineman to that school. Lang accepted nearly $150,000 from Young and the player ended up at Alabama.

Yes, this is a violation of about a dozen NCAA recruiting rules, but why is Young being criminally charged? And why under RICO? Skip has asked us to try and shed some light on this subject. RICO is very complicated and I don't profess to be an expert, but here is what I do know.

The player involved in this case attended a public high school. When Young bribed the coach, he was bribing a state employee -- a government official. This violates a number of state laws. But the federal government got the case because Young was charged under the Racketeer Influenced and Corrupt Organizations (RICO) Act, 18 USC 1961-1968.

Originally targeted at the mafia, RICO (read more from Wikipedia) has increasingly been used as a tool of federal prosecutors to try alleged criminals in federal courts. To fall under RICO, an individual or group must commit two or more of a certain type of crime (some state, some federal), including embezzlement, extortion and bribery. Without RICO, Young would most likely have been charged with violating a state law against bribing government officials. However, the government wanted to sentence Young under the harsher federal penalties, and thus, it brought the RICO charges.

The exact charge levied against Young is that he violated 18 USC 1952, which makes it a federal offense to "use the mail or any facility in interstate or foreign commerce" to commit racketeering. I do not know the exact evidence used by the government, but it could include mailing Lang documents or using his cell phone (an instrument of interstate commerce) to call Lang in order to induce him to accept the money. The government has also charged Young with hiding proof of the financial transactions, in violation of 31 USC 5324.

This seems like a lot of trouble for a college booster that paid off a recruit. Someone seems to want to make a statement about the corruption in college athletics (especially basketball and football) and so they have chosen to make an example out of Young. If convicted, he could face 15 years in prison and a $900,000 fine.

Will he be convicted? Reporters at the trial seem to think the evidence is shaky: the main witness is Lang, who accepted a plea bargain after agreeing to testify and much of the records the government has do not create an airtight case. Many think there is more than enough reasonable doubt for Young to escape.

The trial is scheduled to end tomorrow and the jury will begin to deliberate. It will be interesting to see if those men and women believe that this man, while obviously a malfeasant in the sports world, should be convicted and sent to a federal prison for this act.

 

Politics and Sports Collide in Japan: The LA Times featured a piece over the weekend on the North Korean soccer team. After a ten-year hiatus, the team will again compete for a spot in the upcoming World Cup. The team's road to the Cup leads through Japan, though, which is causing a great deal of conflict.
    The game comes at a moment when the two countries are locked in a rancorous political dispute over at least eight Japanese citizens who were kidnapped by agents of the Communist state during the Cold War and are said to be dead.

    Anti-North Korean emotions are running high in Japan over the abductees. A large majority of the Japanese public and media is clamoring for Tokyo to impose economic sanctions against North Korea for what are seen as unconvincing explanations of how the abductees died.
Japan is no stranger to the problematic mixture of sports and politics, as it played the role of the bad guy in a game last year against China.
    Japan is particularly sensitive in the wake of last summer's Asia Cup tournament held in China, where a sizable number of Chinese fans jeered the Japanese team.

    By holding up hostile signs and throwing debris at the Japanese, Chinese fans demonstrated that little is forgotten or forgiven from the years of Japanese war and occupation.
Japan feels its players and fans were not adequately protected during that game and has pledged to provide adequate protection for the North Koreans. But the chance for violence is present, not only because of the current situation, but also for the historical reason that Japan was also once the colonizer of the Korean peninsula.

As for the game itself, many in the soccer community are watching just to see how good this North Korean team is. After its ten-year hiatus, the team played in the preliminary stage of the World Cup qualifying round and won its division without losing a game.

 

More on the Beer Judgment: This article has more on the $135M judgment against Aramark, which runs concessions at Giants Stadium, for injuries to a young girl stemming from an accident with a driver coming home drunk from a football game. Will stadiums change their policies because of this? It is hard to say, because the NFL prohibits beer sales in the final quarter (many teams stop sales at halftime) and fans can buy only two beers at a time. Chances are that these policies will remain in effect, but that stadium vendors will all be reminded, perhaps through additional training, of the importance of the regulations and the need to follow them. In the Aramark case, the drunk driver tipped a beer vendor $10 to buy six beers, rather than two.

 

Owens to Play Over Doctor's Advice: Terrell Owens has vowed to play in this weekend's Super Bowl. Reports out of Florida are that he is back practicing with the first team after missing over a month with an ankle injury. He may play, but he will do so against the advice of the his doctor. Dr. Mark Myerson has not cleared the injured receiver to play in this Sunday's game.
    "He's not medically fit to play . . . . However, he has done extremely well in his recovery and his rehab, and he feels he'll be able to play. That is going to be a team decision that they'll have to decide themselves."
By not clearing Owens, the doctor will be absolved of any blame should Owens re-injure the ankle. It is curious that you do not hear about situations like this often. You might expect doctors that treat athletes to be risk averse, due to the high stakes of an injury to a million-dollar athlete. But, there must also be enormous pressure from the patients and the teams to clear the players as quickly as possible, and a doctor that continually fails to clear players may not get repeat business. However, it seems to be in the doctors best interest not to clear the players if there is any doubt, because the team doctor has the final call and this insures immunity from liability.

 

Florida Wants Its Money Back: Phil, one of the excellent new contributors at The Sports Economist, links to an interesting article about the state of Florida and subsidies paid to former Marlins owner Wayne Huizenga. Apparently, Huizenga continues to receive millions in tax breaks as a pay-off for converting his stadium so that the Marlins could play there. Now, the team wants more money and Florida is tired of paying. This could be interesting, as Huizenga has promised to litigate any attempt to renege on the agreement.

 

One More Take on Mientkiewicz and the World Series Ball

And perhaps the funniest one yet . . .

People act like the ball was the only piece of precious World Series history that might have gone missing. But what happened to Mientkeiwicz’s glove? What happened to the bases? What happened to Terry Francona’s score card? And if the Red Sox traded Mientkiewicz to a team where he would be a starter as a reward for agreeing to share the ball (Note: They didn’t, but let’s pretend) is it not possible, just possible, that they acquired Edgar Renteria in order to get the bat that struck the final out of the World Series?

And what about other items of historical import? What happened to the chalk from the base lines? Was it washed away? Did it disappear up Darryl Strawberry’s nose like so much other white powder before it? What about World Series MVP Manny Ramirez’s Game 4 jock strap? Has anyone even bothered to look into that?

From "Jose Melendez'" Keys to the Game (a great and always-humorous blog for all Sox fans alike).

Sunday, January 30, 2005
 

File Under: "You Can't Make This Stuff Up"

Despite leading her Nashville Rhythm of the American Basketball Association to a 17-7 record, Ashley McElhiney, the first female coach of a men's pro basketball team, was fired Saturday for refusing to comply with coaching instructions yelled by co-owner and CEO Sally Anthony during a game with the Kansas City Knights. Specifically, Anthony thought former Vanderbilt star Matt Freije should have been benched. When Anthony's admonitions fell on deaf ears, she apparently ran onto the court and tried to fire McElhiney during the game, but was restrained by security guards and was physically removed.

But then it got better. After the game, and for unclear reasons, Anthony allegedly attacked Jason Sonn, the brother of injured Rhythm player Adam Sonn. Sonn would later say, "She's delusional and she thinks she's bigger than she really is."

In her defense, Anthony, who would fire McElhiney after the game, claims that she was entitled to instruct her coach how on to coach: "[McElhiney] ignored me. I walked onto the court and said I'm her boss and she needed to bench him."

Hey, after all, Anthony is the owner, and owners coach, right?

McElhiney declined to comment, although despite being fired, must presumably feel a great sense of relief to no longer be employed by the Nashville Rhythm.

Friday, January 28, 2005
 

Last Ditch NHL-NHLPA Talks Fail

As discussed by Eric McErlain on Off Wing Opinion, this week's meetings between representatives from the National Hockey League and the National Hockey League Players' Association produced no agreement on an abbreviated 2004-05 season--let alone a more comprehensive agreement on a new collective bargaining agreement--and no new meetings are scheduled. It appears that time has finally run out on NHL hockey this season, and there won't be any games played until at least the fall of 2005. In fact, if the two sides do not come to an agreement by that point, Slam! Sports in Canada, among other outlets, reports that the NHL would likely turn to replacement players.

Geesh, with over-expansion of teams, the quality of play in the NHL is already pretty terrible; I can't imagine there would be much fan interest in watching no-name replacement players generating an even inferior product. Then again, I don't work at an arena, or a nearby restaurant/bar whose business is largely dependent on games being played. I'd probably have a different opinion of replacement players if I did.

Regardless, even if the two sides had reached an agreement to salvage the 2004-05 season, a number of teams would have had difficulty rushing back -- the Boston Bruins, for instance, only have 11 players under contract and would quickly need to sign free agents or promote a whole lot of guys from their American Hockey League affiliate in Providence.

Well, it looks like the Bruins won't have that problem. Because there will be no hockey this season.

Thursday, January 27, 2005
 

"Roid Rage" and Civil Liability

Interesting civil case to watch in California, as former Raiders tight end Marcus Williams has sued former Raiders linebacker Bill Romanowski for career-ending brain injuries resulting from an attack Romanowski inflicted on Williams during the Raiders' 2003 training camp. According to Williams--then a second-year player and special teams backup--Romanowski became enraged with the young player, and then ripped off Williams' helmet and punched him the face, breaking his left orbital bone, damaging his nose, chipping a tooth and, most significantly, triggering an eye injury that stems from damage to his brain. Williams hasn't played since, and is still suffering from complications. He is asking for $3.8 million in damages.

Part of Williams' argument is that Romanowski had "roid rage" and that led Romanowski to attack the young special teams player. As a result, Romanowski might have to testify as to whether he used steroids, and to what extent he did so. In addition, Williams' attorneys have requested information from the Raiders and the NFL concerning Romanowski's possible use of steriods. Notably, Romanowski has already appeared before a grand jury investigating BALCO.

Wednesday, January 26, 2005
 

UPDATE: One Year Reprieve on Hidden Ball Trick?

According to a report tonight on Boston Dirt Dogs, Doug Mientkiewicz has agreed to loan the World Series victory baseball to the Red Sox for one year. It is unclear whether Mientkiewicz is receiving compensation, or whether he is simply being charitable . . . for a year. However, he acknowledges that he and the team have "worked something out," which seems to imply that funds exchanged hands.

Whether or not he is being paid for the loaner, Mientkiewicz is now downplaying the whole affair. In fact, the way he sees it, he's really been holding onto the ball for the sake of Sox fans, and absolutely not for personal aggrandizement or for profit: "The fact that I had it was just so we could keep it and give it to the fans and let them see it."

Yeah Doug, that makes a lot of sense: you've kept the ball away from the team as the team has been traveling around New England for the past month to celebrate the World Series trophy with fans because . . . you wanted to let the fans see it. What?

 

Don't Mess with Theo (or Larry):

Last night, the Boston Red Sox traded first baseman/baseball souvenir collector Doug Mientkiewicz to the New York Mets for first base prospect Ian Bladergroen, who Baseball America ranks as the 4th best prospect in the Mets organization. Red Sox general manager Theo Epstein was undoubtedly impressed by the 6-5, 210 pound Bladergroen, who projects as a power-hitting first baseman.

The trade shouldn't come as a huge surprise. Despite playing excellent defense, Mientkiewicz hit only .215 for the Sox last year, and was due to earn $3.75 million this season. Plus, the team already has the affable, if inconsistent Kevin Millar at first base, and both players have openly complained that they deserve to be full-time players. And the Mets needed a first baseman after Carlos Delgado signed with the Marlins, presumably to be closer to his home in the Dominican Republic (and I also suspect that he and his agent realized that his regrettable refusal to stand for God Bless America wouldn't have played too well at Shea Stadium, which isn't too far from Ground Zero).

Also playing a role in this deal was Mientkiewicz's well-discussed refusal to hand over the winning ball from the World Series. In fact, what had begun as an amusing story has become increasingly serious in recent days. Just this past weekend, an unnamed Senior Red Sox official stated, "I think the whole thing is disgusting." Red Sox President & CEO Larry Lucchino has been in "negotiations" with Mientkiewicz to acquire the ball, but, to date, such negotiations have been fruitless. With Mientkiewicz dispatched to the Mets, it appears that the ball will go with him (or, more accurately, stay in the safety box near his Miami home).

Most legal scholars have sided with the Red Sox. For instance, Yale Law School Dean Harold Hongju Koh recently noted that Mientkiewicz has "the least rights to [the ball]", and the claims for the ball should be ranked as "the Cardinals, the Red Sox, Major League Baseball and then the guy who happened to hold it at the end of the game." Similarly, Northeastern University Law Professor (and former Dean) Roger Abrams noted, "It's not Doug's ball. It belongs to all of us." Likewise, Harvard Law School Professor Paul Weiler stated to the New York Times that "Mientkiewicz is being paid by the Red Sox. To be out on the field catching that ball and as an employee, even a unionized one, his rights likely are different."

Mientkiewicz's most vocal supporter appears to be now former teamate Doug Mirabelli. Mirabelli claims to have told Mientkiewicz that, "You are the dumbest guy in America if you give the ball back. If you can handle the pressure of the organization making you feel bad--I mean, can you imagine what that is worth?"

Tuesday, January 25, 2005
 

Monopolization of Sports Videogames Continues

It appears that innovation in new sports videogames might take a real hit in the near future. Last month, we discussed how Electronic Arts--the publisher of John Madden Football and NFL Street--secured 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. As a result, Sega's ESPN Football, Sony's NFL Gameday, and Midway's NFL Blitz will be discontinued or dramatically modified to exclude player names, team names, and related images.

Last week, in another blow to industry competition, Electronic Arts inked an exclusive 15-year licensing deal with ESPN that will make EA
the sole licensee of the ESPN brand in all sports games. According to the Wall Street Journal, the agreement is worth around $850 million.

Now we learn that Take Two, the developer of Sega's baseball game, has secured a 7-year exclusive third-party rights agreement with Major League Baseball for use of the MLB brand in video games. Though first-party developers (i.e., Sony, Nintendo, and Microsoft--companies that publish individual videogame consoles) may still use the MLB brand, the agreement precludes third party publishers, such as EA and Midway, from doing so. It is not apparent that this agreement also covers the Major League Baseball Players' Association, meaning that EA could still use the players' names and images in its MVP Baseball videogame (e.g., "Now batting, Manny Ramirez of the Boston . . . ah . . . team").

Monday, January 24, 2005
 

Super Bowl XXXIX Awaits . . . As Do Its Advertisers

With the Super Bowl match-up set between the defending champs, the New England Patriots, and the underdogs, the Philadelphia Eagles, we can either read endless (and often obscure) commentary about the game's match-ups, or we can turn to what many people not living in New England or Philadelphia will care most about: The Ads!

This year, Fox, which is broadcasting the February 6 game, is commanding $2.4 million for each half-minute ad, up $100,000 from last year. The network has already sold 95 percent of the ad space. Fortunately or unfortunately (depending on how you look at it), the ads this year are expected to be toned down dramatically.

Among the new companies to advertise during the game will be Go Daddy Group Inc., a leading vendor of Internet names. I'm not sure what Greg charges for advertising on Sports Law Blog, but I'm going to provide a link to the company's website -- for free. I figure, if their $2.4 million investment doesn't pan out on February 6, at least they received some attention here.

Despite the seemingly excessive cost of Super Bowl advertising, however, research suggests it often proves a worthwhile investment, at least for certain industries. For instance, according to Journal of Advertising Research, upcoming films promoted during the Super Bowl earn twice the ticket receipts for the first weekend, first week, and total U.S. box office revenue than do upcoming films not promoted during the Super Bowl. This finding is true even when controlling for release dates and budget size.

Moreover, this upcoming match-up should draw plenty of viewers. Bill Belichick's Patriots are already considered one of the best teams in NFL history, and if they win their third Super Bowl in four seasons, would have to be considered one of the top sports dynasties in the modern sports era. Despite the presence of a hard NFL salary-cap, and despite drafting near (or at) the bottom of each NFL Draft round, the Patriots have remained spectacular over the last four seasons. They feature an appealing and unlikely mix of confidence, humility, and talent, and--as advertisers know quite well--are a pleasure to watch. The Eagles are appealing in their own right, but for different reasons. Much like the pre-2004 Red Sox and its hardcore fanbase, many diehard Eagles' fans believe their team is somehow cursed, but, like every prior year, they remain hopeful that this is--finally--"The Year". We'll see. If nothing else, it's a fun narrative: The indomitable Patriots versus the cursed Eagles. Although I (and probably most of you) predict the Pats to win fairly easily, people will tune in as long as there exists an aura of a competitive match-up.


Saturday, January 22, 2005
 

Learn from the Professor: I will be traveling next week and will not be able to blog. In my place, though, will be the always-popular Mike McCann, who is soon-to-be Professor of Sports Law (among other subjects) at the Mississippi College of Law. Congrats to Mike and see everyone in a week.

 

Do Children Still Have Childhoods? In the past few weeks, I have seen a number of articles in magazines and newspapers talking about the way of life for today's pre-teens and teens. This article, from the New York Times, details the intense world of youth hockey. The article describes how a team of 11-year olds practices year-round and plays in tournaments across the country, often playing multiple games in one day. I have seen other stories about select soccer, year-round swimming and other sports which force children to "specialize" when they should be playing pick-up games in the neighborhood.

And what for? Becoming even a collegiate athlete is difficult; making it to the pros is almost too distant a possibility to even be discussed. Do these kids really want to be playing one sport all of the time and traveling the nation on holidays and weekends? Or is it the parents, consumed by the child's abilities and determined that they (the children? the parents?) will succeed. Either way, I for one would like to see a cultural shift that returns some of the innocence and spontaneity to childhood -- to see more pick-up games than select nationwide tournaments. Hopefully, this is not just a pipe dream, but I suppose time will tell.

 

Judge Allows Angels to Change Name: A California state court judge issued a crushing blow to the city of Anaheim on Friday in its case against the Angels. The judge denied the motion for a preliminary injunction that would have prevented the team from changing its name to the Los Angeles Angels of Anaheim, ruling that the city did not prove a "a reasonable probability" of winning at trial. The only step remaining for the city is to go to trial, but such a trial would likely not take place until after the team had played the entire 2005 season under its new monniker. Thus, the city must decide whether it is worth the time and the resources to continue fighting the legal battle. The city has not yet decided, though at least one city councilman has vowed to fight the legal battle until the end.

The judge based his ruling on two findings. One, he ruled that the city appeared to have technically complied with a plain meaning of the stadium lease, which requires that the team retain "Anaheim" in its name. The city has argued that under the new name, the team will be referred to as the "Los Angeles Angels," which violates the purpose of the clause in increasing the visibility of the city of Anaheim.

Second, the judge found that the city would not be irreparably harmed by the name change, because even if the city won in trial, it could be assessed monetary damages to compensate for the time in which the new name was used. This, the city argues, ignores the numerous non-monetary benefits intended when the clause was inserted.

I think that the city still has a pretty good chance at trial, based on the clear intention of the clause and the even clearer intention of the team to be known as the "L.A. Angels." An entire season of the team being referred to as "L.A." will only help the city's case. For what it's worth, the city of Los Angeles does not want the team being referred to as "LA" either, because the team does not pay any taxes in the city. It remains to be seen, though, whether the city will fight on. In any case, cities will certainly be more specific in their contract language in the future. A simple language change insisting that the team be referred to as the "Anaheim Angels" or "Anaheim ________" if the nickname were to change may have prevented this entire problem.
The parties will appear before the judge again in March to set a trial date, though the judge expressed his desire that the two parties reach a settlement before that time.

Update: For now, on the Major League Baseball website, the Angels are listed as "Angels" and not by their city, unlike every other team. The official team site has the name change. It will be interesting to track other changes.

 

"Beerman" Too Generic For Trademark Protection: Robert Donchez, a beer vendor at Coors Field who created the character "Bob the Beerman" to entertain the crowds, lost his trademark suit against the Colorado Rockies in the 10th Circuit. Donchez registered "Bob the Beerman" as a service mark, which "is any word or words used to identify and distinguish the services of one person from the services of others." After the team ran a series of advertisements without Donchez, but using the terms "beerman" and "beerstud" in reference to beer vendors, he sued for trademark infringement.

The courts did not buy what he was selling, however. The District Court granted a motion for summary judgment for the Rockies and the 10th Circuit affirmed. The appellate court ruled that the term "beerman" was no less generic than the two words that comprised it. It supported this through evidence that more than 75 percent of those surveyed in the Denver area thought the term "beerman" was a common or generic name.

The court also denied claims for violation of right of publicity. The full opinion can be read here.

 

E-Discovery in Coach's Case: Prosecutors in a case of alleged sexual assault by a coach against a player are determined to recover six months' worth of email messages believed to be related to the assault. This case will be worth following because of the indeterminate law of electronic discovery. As this law.com article states:
    Advances in computer technology have brought a sharp rise in discovery disputes over which electronic data must be disclosed and which are simply too expensive or burdensome for defendants to produce. A rising chorus urging EDD reform has proposed amendments to the Federal Rules of Civil Procedure. Some would curtail a lawyer's ability to read digital jottings over an opponent's shoulder. The battle lines are drawn.
Eventually, I think many electronic documents will be just as discoverable as paper documents, because, after all, many documents only exist now in electronic form. But email? Emails are used far more regularly than telephone calls, meaning they are often informal and voluminous. Thus, it could prove both expensive and overly intrusive to have to turn over email, so it will be interesting to see how the law shakes out, in this and other cases.

Friday, January 21, 2005
 

Stadium Beer Vendor Takes $105M Hit for . . . Selling Beer: A New Jersey jury has awarded a judgment of $105 million against Aramark, the company in charge of concessions at Giants Stadium and in favor of the plaintiff, a young girl whose family's car was struck by a drunk driver coming from the game, rendering her a quadriplegic. The plaintiff's theory, which the jury accepted, was that Aramark violated its own rules by selling beer to the man, who was obviously drunk, and by creating a "culture of intoxication" at football games.

The judgment was for $30 million in compensatory damages and $70 million in punitive damages; it likely will be heavily reduced on appeal. But this shows many of the problems of the American tort system. First, the story identifies the trial's most compelling witness as the young girl, who was two at the time and is now seven. This is a problem because she had absolutely nothing to do with the selling of beer, the drinking of beer, or the driving of a car after drinking the beer -- all of which seem to be the key issues in this case. What happened to her is a legitimate tragedy -- she is only 7 years old, will never walk and needs a machine to breathe. But clearly what happened here is that a jury wept for a young girl and decided that she needed to be compensated for what happened. A large, heartless, faceless corporation was there, so they would do. This is the "deep pockets" theory at its finest. The family could not get enough money from the driver -- he paid his insurance policy limit of $100,000, so they looked elsewhere for the cause of this horrific event.

This is not to say that Aramark is blameless in this. I have no doubt that they continued to sell alcohol to this man and that he was drunk. But what should be remembered is that many fans act in a crazy manner at football games -- this is why they are called "fanatics." A fan may be spilling beer, speaking incoherently or brawling with another fan and the only thing in their system is adrenaline and a sense of pride. At the same time, others may be "visibly drunk" to friends but look no worse than many other patrons to an outside observer.

Unless vendors begin instituting breathalyzers prior to selling beer, under this ruling stadium vendors will have no choice but to cut someone off that is acting even a bit "weird." So what will that person do? Have a friend or spouse that is not so drunk go and buy the beer. Unless we shackle those that are drunk at football games (and that should only be about 30,000 people or so), there really is no way that a stadium vendor can keep beer out of their hands, unless they stop selling beer.

What makes the verdict even more egregious is that the stadium does not sell beer at all in the second half. How can a stadium and vendor be any more responsible than foregoing beer sales for half of the game, which must cut revenues by at least 1/3, if not more. Yes, this will not stop all drunk driving, but nothing short of confiscating all of the fans' keys will. This seems to be an enormous step by the stadium and the vendor to curb drinking and driving, but the jury did not seem to credit it.

What seems to be more realistic is for the responsibility to lie with the party that is truly responsible: the driver and his compatriots at the game. He made a decision to drink and then to get in his car and drive. His friends, who testified that he was visibly drunk and should not have been served more beer, let him drive! The accident which left this young girl paralyzed was a tragedy and my heart goes out to her. But in a society where alcohol and sporting events go hand in hand, and effective monitoring is not really an option, it seems ridiculous to hold the beer vendor responsible for the consequences of one man's senseless act.

Sunday, January 16, 2005
 

Thoughts from the NFL Play-offs: In the six NFL play-off games that have taken place thusfar, I have found myself yelling at the television more than I would have liked. This is not because my team is playing -- the Cowboys erased all hope of that long ago. No, my frustration came with coaching strategies at the end of games and in overtime, especially when it came to setting up field goals.

All season long, teams have one goal: score touchdowns. Field goals are seen as consolation prizes: if you get close, but can't quite score, you try for 3 points. But near the end of games and in overtime, why does the focus shift to trying for a field goal? In the Chargers-Jets game last weekend, the Chargers had a first down on the Jets 23 following two big games by Tomlinson. So, do the Chargers keep going with their game plan? No. Instead, the team runs three plays where they look like they are training to gain nothing. The play call seems to have been - "fall down." Your quarterback has thrown only seven interceptions all year. Your running back lost only two fumbles this year. You have a stud tight end that thrives in the red zone. And, most importantly, you have a ROOKIE kicker. Why would you be content on the 23-yard line, when you could try for a touchdown, or at least, move into chip-shot range?

After Nate Kaeding missed the 40-yard field goal, the Jets drove down the field, and thanks to a big play by LaMont Jordan, were set up for a much easier 28-yard field goal. But, obviously, the lesson of trying for the end zone was lost on them.

Fast-forward to yesterday. Jets have played an incredible game against the Steelers and are in a position to win. Granted, their offense has not had a great game -- not scoring a touchdown, but they have managed to pick up yardage near the end of the 4th quarter as the Pittsburgh defense grew more and more tired. The Jets try and score a touchdown with two minutes to go, but are forced to try a 47-yard field goal, which bounces just short off the cross-bar. Miraculously, the Jets get the ball back immediately and in fantastic field position, at the Steelers 36. Curtis Martin immediately picks up a first down, moving the team to the 25, where they promptly give up. Three play calls of "fall down," followed by a 43-yard field goal attempt. No good. And to be clear, time was not a factor, because the Jets let the clock run after 1st down, and then called timeouts.

In overtime, the Steelers got the ball after a Jets punt and moved methodically down the field. Though they were in field goal range after a 9-yard run to the 27, the team continued to run, moving the ball up to the 15 and a much easier 33-yard attempt. Good. Game over.

Obviously, hindsight is 20/20, but it is becoming apparent that NFL coaches are too conservative at the end of games, especially in overtime. Almost anytime a team is in range of a 45-yard or less field goal, coaches are content to stop trying to gain yards, calling plays only to run time off of the clock or to set up their kicker on the appropriate hash mark. But why is this? This season, the number of field goal attempts from 40-49 yards and 30-39 yards were nearly identical: 257 and 258, respectively. But teams made twenty-five more field goals in the 30-39 range, for a percentage of 82%, rather than 72%. Kickers get even better from 20-29 yards. Again, there were a similar number of attempts from this range in 2004 - 252. But NFL kickers missed only nine field goals from this range all season, for a rate of 96%. Yes, professional kickers should be able to make field goals of 40 and 43 yards. But one kicker is a rookie playing in his first play-off game. The other is playing on the road, in a stadium where the longest field goal ever is 46 yards. And he just missed from 47. Why not get closer?

Perhaps Gregg Easterbrook is on to something. His theory is that coaches coach so that they cannot be blamed. If a coach continues to try and score a touchdown, and the result is a turnover, the coach will be blamed. But if the field goal kicker misses, the heat falls on the kicker. I think this may be part of the problem. The solution? Let's start blaming the coaches for going too conservatively at the end of games. Run high-percentage plays. Tell the quarterback to throw out of bounds if he is uncertain. Train the running backs to hold onto the ball. But don't stop trying.

Or, if you are not going to try, then run the kicker out onto the field on first down. This means that he will have less time to think about it, making it more like a regular season kick. It also changes the psychology from one of passivity (we are giving up at this spot) to one of action (we are winning now). It is the difference between trying to win and trying not to lose -- which no doubt rubs off on the team, and the kicker. It also means that if there is a bad snap or the play is broken, the team not only has another chance to kick, but it also has two more downs to pick up more yardage. I think going for the end-zone, or at least, a "chip-shot" kick should be the goal, but if the coach is set on being conservative, just get the kicker out there as soon as possible.

I hope that coaches will learn from these games and understand that field goals of 40+ are no guarantee, especially in a charged play-off atmosphere. A lot of fans will blame Nate Kaeding and Doug Brien this off-season, but let's not forget to address the coaches that could have set them up in better position, but failed to even try.

One Additional Thought: The Falcons will not win the Super Bowl because they committed a cardinal sin of football: running up the score. With 23-point lead, a first and goal, and only 2 minutes remaining, the Falcons could have kneeled 4 times, running out most of the clock and giving the Rams no chance to come back. Instead, they kept their first team offense out on the field and ran the ball in for another touchdown. Jim Mora, Jr. may have won the first play-off game for his family, but he showed little class at the end in doing so. Karma is a funny thing and it will come back to get Atlanta.

Thursday, January 13, 2005
 

Injured Pole Vaulter Sues University: A collegiate pole vaulter that suffered extreme head trauma after a fall during an attempt has sued her university. The suit claims that the university was negligent "in several ways relating to the mainteance and repair of the pole-vaulting pit and that the padding of the pit was inadequate given the hardness of the fieldhouse floor."

I will be interested to see how this suit plays out. After all, pole vaulting is an inherently dangerous sport, and it is unclear (from the article) about whether she was wearing a helmet at the time of the injury. The plaintiff seems to have anticipated such defenses and also claims that the university inadequately trained and supervised its pole vaulters and that its staff was not properly trained to “identify and eliminate risks to students” participating in pole-vaulting events.

The lawsuit will be brought to mediation Jan. 18. If mediation is unsuccessful, a trial is set for Sept. 12.

 

Mientkiewicz, the Red Sox and the Ball: It has been a hectic week, so I completely missed the boat on blogging about the World Series ball fiasco. I commend to you the fine analysis that the SportsProf has, as well as some of what Prof. Volokh wrote this weekend. Off Wing Opinion also offers an interesting take. My opinion was summarized quite nicely by Paul Finkelman in his op-ed yesterday:
    Doug Mientkiewicz, the first baseman for the Boston Red Sox, caught the final out of the 2004 World Series. After celebrating with his teammates, Mientkiewicz ran into the dugout with his glove and the ball. He later gave the ball to his wife, who stuffed it in her purse, and they took the ball home. He now says it belongs to him. It doesn't.

    The Boston Red Sox, who won their first championship since 1918 last year, want Mientkiewicz to return the ball. The Red Sox say it belongs to them and their fans. It doesn't.

    For most baseball games, the ball is provided by the home team and therefore belongs to the home team - in this case, the St. Louis Cardinals, Boston's opponent. For World Series games, Major League Baseball provides the balls but in effect gives them to the home team to use during the game. Thus, there are only two plausible owners of the ball that Mientkiewicz caught: the St. Louis Cardinals or Major League Baseball.
I recommend the rest of the article, as well as this article from USA Today on where Series-ending balls have ended up in the past. It seems that players have a number of Series-ending baseballs, and only one Series-ending baseball is in Cooperstown. But Mientkiewicz, unless he wants to be shunned by the Red Sox faithful, should donate the ball either to the team or the Hall of Fame. Holding on to it for personal gain seems economically sound, but a bit petty. This is, after all, a special ball and as Indiana Jones might say, "It belongs in a museum!"

Monday, January 10, 2005
 

The Man Behind the Plan: The Washington Post profiles Allen Lew, the man in charge of the renovation of RFK Stadium for baseball and the construction of the city's new stadium.

 

Angels Name Update: For at least two weeks, the Los Angeles Angels of Anaheim are still a professional baseball team. A judge denied a temporary restraining order late last week that would have immediately blocked the name change. This is not a surprising development, as these type of orders are difficult to get. The judge ruled that the city would not be irreparably harmed if the team used its new name until the hearing in a fortnight.

The next step, the injunction hearing, is key to the legal battle. A loss by the city of Anaheim at that level would be disastrous, as the team could operate as Los Angeles for a year or more, until the completion of a trial. The team has already announced that it should be referred to as "Los Angeles" or "LAA," as opposed to Anaheim or "ANA." This move surprises me, as it seems to bolster the city's argument that the team is getting rid of the Anaheim name, which seems to violate the spirit, if not the letter, of their contract with the city. A more prudent move may have been to wait the two weeks until the hearing, but baseball owners are not always known for being practical.

Depending on the outcome of the hearing, some kind of settlement may be reached, but exactly what terms each party will demand remains to be seen.

The LA Times has more on the reason behind the name change: increasing revenue.

Friday, January 07, 2005
 

The Yankees Get Johnson- So What? The big news on SportsCenter this morning was that the Yankees have signed Randy Johnson. The debate then became, how could the Yankees not win the World Series?

I just don't understand this argument. Perhaps it is just the New York-focus of the media, but have we not learned anything from last year's LA Lakers? A slew of all-stars does not guarantee a championship by any means. Plus, the Yankees have three starting pitchers that are 37 years of age or older. They are one wrecked shipment of Ensure away from being a third place team. Perhaps they will win the World Series, but any idea that the Yankees are the prohibitive favorite seems just silly.

Thursday, January 06, 2005
 

Not a Defamatory 'Evel': Famous daredevil Evel Knievel had his lawsuit against ESPN thrown out by a federal appeals court yesterday. Knievel and his wife had sued ESPN for defamation stemming from a caption to a picture posted on its website (which has since been taken down). The picture, of Knievel and his wife, had a caption that read: "Evel Knievel proves that you're never too old to be a pimp."

Knievel took offense to this, claiming it damaged their reputations because it implied the couple was involved in illegal prostitution. The appeals court disagreed, stating that the caption and other related material was humorous and in no way intended to be taken as factual. In fact, the court looked surprisingly up with modern slang in its analysis.
    The same reasoning applies in this case. Although the word “pimp” may be reasonably capable of a defamatory meaning when read in isolation, we agree with the district court’s assessment that “the term loses its meaning when considered in the context presented here.” As discussed in more detail herein, the term “pimp” as used on the EXPN.com website was not intended as a criminal accusation, nor was it reasonably susceptible to such a literal interpretation. Ironically, it was most likely intended as a compliment.
I think the law clerks might have had something to do with this interpretation, although the judge looks like a pretty hip guy.

In any case, the court felt the First Amendment protected the speech, as it should. This was clearly intended to be humorous and satirical. No reasonable person would take the caption to imply that Knievel was pimping his wife. After all, she's not that good looking.

Hat Tip: Prof. Andre Smith

 

Injured Georgia Player Suing University Over Insurance: In the better late than never department, this item from around Christmas.
    Former University of Georgia defensive back Decory Bryant said Tuesday that he is suing the school's Athletic Association and fired assistant athletics director Hoke Wilder . . .

    Now a senior at Georgia, Bryant, according to the lawsuit, filed a complaint in the Superior Court of Clarke County on Friday, claiming the defendants were negligent for not securing an insurance policy for him in case of a career-threatening injury. Bryant suffered a career-ending spine injury in a game vs. the University of Alabama-Birmingham during his junior season just days after starting talks with Wilder about establishing an insurance policy that would cover Bryant up to $500,000.

    The complaint claims Bryant and two other football players, who met standards to be declared eligible for the NFL draft after their junior seasons, sought to participate in the Exceptional Student Athlete Disability Insurance Program. On Oct. 21, 2003, Bryant notified Wilder that he wanted a policy — the Athletic Association used Atlanta-based Entertainment and Sports Insurance Experts (ESIX) — and that his parents would pay the premium of $5,103, according to the complaint.

    Wilder "responded by advising the Plaintiff that he did not have to worry about the premium immediately, that his request for coverage would be taken care of and that the papers for him to sign would be in his locker at the end of the day of the following day," according to the complaint.
Two days later, Bryant suffered a career-ending injury. The insurance company refused to backdate the forms that had not yet been signed and denied coverage. Wilder denied that he would secure a policy for Bryant and the two other players, claiming that he stated he would "place an inquiry with various brokers" to see if the student-athletes were eligible for insurance.

The suit is asking for $500,000, plus punitive damages.

 

Even More Skiing and the Law: I guess you could say I have skiing on the brain. Perhaps it is because I am going skiing for the first time ever in a few weeks (Can you blog with a broken leg?) But, there have been a number of interesting articles about the constant intersection between skiing and the law.

The Aspen Times explores the legal liability of a resort stemming from a skier's death in December. Under the Colorado Ski Safety Act, each skier assumes the risks inherent in the sport, but this skier collided with a snowmobile racing up the slope. Are snowmobiles one of the inherent risks? It is not included in the statute, but a judge could still rule that it is. Even if the resort is found liable, however, the statute caps damages against ski resorts at $1 million. This shows the importance of the ski industry in Colorado. Even though skiers themselves may face increasing legal liability, the legislature has acted to definitely preclude large awards against the incredibly valuable resorts and mountains.

Wednesday, January 05, 2005
 

Clarett is Not Done: Even though Maurice Clarett is eligible for the NFL draft in April, he is still asking the Supreme Court to hear his appeal. Standing probably will not be an issue, because although declaratory relief (i.e., an injunction mandating that the NFL make him draft-eligible) will be moot, Clarett could still get monetary damages for not being able to pursue his career.

Although I disagree with his legal position, it is good to see that he still believes in the merits of the debate (or at least, his lawyers do). I see no chance that the Supreme Court will take the case, but you never know until you try. And, it exposes the Court to the issue so that when it arises again (and it will arise again), the Court may be more inclined to hear it. Given the bulldog strategy of the NFL to litigate all claims and the increasing number of talented underclassmen (i.e., Adrian Peterson), the Supreme Court most likely will one day have a say on this matter, like they did in baseball free agency and basketball draft eligibility.

Turning to the sports side of things, how high will a Maurice Clarett or a Mike Williams go in this year's draft? Almost certainly not as high as if they had stayed in school and played to the same level of their first season(s). I believe Williams will go high because of the success of Willis McGahee. Many people thought the Bills were crazy for taking McGahee so high because of the devastating knee injury he suffered in his last college game. But he rehabbed and returned to the same level of greatness he exhibited in college in the second half of this season. Thus, most teams would expect that Williams, despite the rust of a year off, will return to the same greatness he exhibited at USC.

Clarett is a tougher case. He will certainly be drafted in the first five rounds, but teams will be wary because (1) he played only one season in college and (2) that was two years ago. Was the one season a fluke? Will he be in any kind of game shape? Will be remember the little things that turn a good player into a great one, but can only be gained against real football competition? A team could get a great steal with Clarett, or a great bust. It will be an interesting pick to watch.

Tuesday, January 04, 2005
 

More on the L.A(naheim). Angels: The LA Times asks an interesting question that could form the basis of the legal argument: just where in Anaheim is Los Angeles? If Anaheim is to be the name of the team, then how does LA fit in?

Richard at the Pearly Gates (an excellent Angels blog) has more on this controversy.

Could the New York Giants of East Rutherford be far behind? Let's hope not.

The press is having a field day with this decision. Here is but one example.

And there is more to come on the legal front, I am certain.

 

More on Skiing: As I discussed in this earlier post, injuries for ski collisions can result in legal liability for the individual skiers, including even possible criminal sanctions. But another very real issue in the ski community is the liability of resorts and the owners of the slopes themselves. And as skiers increasingly demand more difficult runs in "out-of-bounds" areas, rather than on the traditional runs, does the potential for legal liability increase? Not necessarily.

First, ski resorts are acting proactively to limit their liability. As an example, Mt. Rose in Tahoe has made available some of these runs for more advanced skiers, but does not permit its employees to take skiers on these runs as a representative of the resort. Guides must put on vests and cover any Mt. Rose logos when surviving as guides on these more dangerous slopes.

In addition, skiers most certainly assume the risk when going on these runs. Those going on the runs must sign legal release forms acknowledging that they are advanced skiers and that the slopes are risky. Resorts have also noted that their insurance premiums have not increased as a result of opening the more dangerous runs.

Thus, for now at least, this seems to be a good marriage of supply and demand and the legal regime. Advanced skiers want more difficult runs; resorts are happy to provide them; and the legal regime seems to protect the resorts to allow for it.

 

Adventure Sports News: Admittedly, I do not know a great deal about the world of adventure sports. In fact, I will be going skiing for the first time in a few weeks. But, this news seems to be generating some excitement in the sports world:
    Quiksilver Inc. said Monday that it has been in talks with Skis Rossignol about an acquisition that would make the Huntington Beach company a major player in winter sports equipment, fully extending its range from surf to powder. The possibility of a union between the biggest name in surf wear and the world's best-known ski company sparked interest among analysts, ski industry experts and investors.
You can read more here.

Monday, January 03, 2005
 

Why not the O.C. Angels? The Los Angeles Angels of Anaheim. Are you kidding me? This is possibly the worst sports name since Oriole Park at Camden Yards or Toronto Rock. One, it is too long. Two, it is two cities. How can a team be in two cities? The team did it because it wanted to reach out to the greater Los Angeles area and increase its marketing: after all, where is Anaheim? But then again, where is Green Bay? Simply said, this is quite possibly the worst "compromise" the Angels could have reached.

It certainly has not made the city of Anaheim happy. The city will challenge the name change in court, saying that it violates the team's lease agreement with the city for Anaheim Stadium. It certainly violates common sense, but does it really violate the lease agreement?

Section 11(f) of the Stadium Lease Agreement between the Angels and the City states, "Tenant will change the name of the Team to include the name ‘Anaheim’ therein, such change to be effective no later than the commencement of the 1997 season." The new name may be confusing and it may be unwieldly, but it does contain Anaheim. Thus, it does not appear to violate the letter of the agreement.

But it certainly seems to violate the spirit of the agreement. The city obviously included the clause because it wanted the team to be known as the Anaheim Angels -- which would bring attention to the city that has given so much to the team. Scoreboards and announcers say "Anaheim." The MLB website links to "Anaheim." Under the new regime, these most likely will be changed to "Los Angeles (A)."

The city is making just this argument, stating that "the redundant and confusing 'Los Angeles Angels of Anaheim' which the Angels have proposed using also would violate the implied covenant of good faith and fair dealing which the law attaches to every contract in the State of California." Depending on which judge they get, they may actually be able to win. After all, a team is traditionally referred to by the city before the nickname (though, arguably, this is the first time a team name has featured a city before and after the nickname). But, the city will make a convincing argument that Anaheim will be dropped, leaving only Los Angeles and a breached agreement.

Adopting "Los Angeles" will not save the Angels -- a savvy marketing strategy will. The team should keep the name of the city that has provided it with support and funding over the years and drop the ridiculous double name.