Sports Law Blog
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Friday, August 26, 2005
 
Sports Law in Action: The Huggins Resignation

On August 24, the University of Cincinnati reached an agreement with Bob Huggins to buy-out the remainder of his contract, thereby ending his tenure as the school's basketball coach. The terms of the buy-out are a bit muddled, but Huggins will receive nearly $3 million as part of the agreement, rather than the $2 million he would have received had no agreement been reached and he had been fired (Koch, "Huggins to receive $3 million buyout," Cinc. Enq., 08/25/05).

So how did the University and Huggins reach this agreement? Thankfully (at least for us), the Cincinnati Enquirer has made available scanned copies of the correspondence sent between Monica Ramai, the University's General Counsel, and Richard Katz, Huggins' attorney. You can access the PDF file here.

The letters, starting in July, begin with a polite tone and a spirit of cooperation. The parties discuss Huggins' tenure at UC, as well as the hopes for an amicable solution, and possibly even a contract extension. Everything changes, though, with the university's letter of August 8. In it, UC takes the gloves off and explains why it no longer wishes to employ its popular coach. The letter states that while Huggins may be a great coach, "his style of leadership is not well suited to advance UC's greater mission," as he has graduated less than 30 percent of his players, and many players have run afoul of the law during his tenure. Due to these "fundamental differences in philosophy," the University thought it best if the two parties went their separate ways.

Huggins, though Katz, fired back four days later, defending Huggins from the university's "absurd contentions," as well as pointing out the success of Jason Maxwell (the only player taken in the 1st round of this year's draft with a college degree) and other basketball graduates. Katz makes it very clear that no one outside of Ohio would have heard of UC without Bob Huggins, and this has helped the university in many areas other than athletics. The letter's tone reminds me of the climatic courtroom scene in A Few Good Men -- Huggins put this university on the map, so how dare you question the manner in which he accomplished this?

The subsequent letters turn to negotiating the specific aspects of the buyout under Ohio law, as well as requests to maintain confidentiality. Finally, the letter of August 23, following a meeting of the parties, gives Huggins the option: we can work something out by 2pm on Wednesday, or you will be terminated on our terms.

As ESPN's Pat Forde writes, Huggins went toe-to-toe with UC president Nancy Zimpher, who began planning his removal in May, and lost. ("Cincy president shows moxie," ESPN.com, 08/24/05). He was finally done in by his players' poor academic performance and troubles with the law, as well as his own run-ins with law enforcement. But firing a popular coach with a long tenure is never an easy move and the University positioned itself well for a victory. The letters provide an insight into how this victory was achieved.

Thursday, August 25, 2005
 
Red Sox Ownership: Yankees Don't "Suck"

In a move designed to make Fenway Park less hostile for opposing teams' fans and families with young children, the Boston Red Sox have decided to ban the popular "Yankees Suck" t-shirts worn by fans who patron the Park. (Scott Van Voorhis, "Sox Eye Stopping Epithet," Boston Herald, 8/25/2005). Although the team has avoided using the word "ban," fans wearing the t-shirt have been asked to turn their shirt inside-out, and, to date, no fan has refused. The t-shirts are sold by independent vendors, and can also be purchased on-line.

So have the constitutional rights of Red Sox fans been violated? Have they lost their freedom of speech? No. Private actors, like sports teams, can restrict speech and messages. They are different from state actors (e.g., the Massachusetts Department of Transportation; the University of Massachusetts) and are not under the same set of constitutional obligations as are those actors.

While this may appear to be a symbolic victory for Yankees fans who venture into Fenway Park and who (quietly) cheer for their team, their team is still 3 and a half games behind the Red Sox in the American League East standings, and are tied with the Oakland Athletics and the Cleveland Indians for the American League wild card (and those two teams have a combined payroll of $96 million, while the Yankees' payroll alone is over $208 million -- I guess $200 million doesn't buy what it used to!).

 
More on Gender and Coaching

In a follow-up to a post last week on gender and coaching (8/21), the Houston Chronicle has an article today talking about male v. female coaches in women's' professional sports, namely the WNBA (Blinebury, "Manned workforce," Hou. Chron., 08/25/05). As the article points out, in the WNBA's first season, only 1 of the 8 teams had male coaches. Next year, 10 of the 14 franchises will be run by men. As the article asks, is this an indication of "a negative attitude toward female head coaches or a positive statement about the women's game being able to attract interest from high-profile men"?

My thought: probably a little of both. Last year was the first time a female-coached team won the WNBA championship. The previous seven championship teams all had male coaches, including former NBA players Michael Cooper (LA, 01-02) and Bill Laimbeer (Det, 03). This year, the average win percentage for both male and female coaches is around .500, but the two best records belong to male coaches. It remains unclear whether female coaches have been getting a fair shot, but many teams seem to equate success with having a male on the bench.

It also appears, as the article points out, that many NBA teams are using their associated WNBA franchise as a training ground for future NBA coaches. A number of former NBA players, including Cooper, Laimbeer and now Muggsy Bogues, have been given head coaching opportunities in the WNBA without any previous coaching experience. Many, including Cooper, parlay their WNBA experience into NBA assistant coaching jobs. In the long run, this is probably not great for the women's game -- it would be better for coaches to be interested in the WNBA and women's basketball. But on the other hand, many of these coaches have been successful, lending valuable instruction to their players, and perhaps building local interest in the team.

As I pointed out in last week's post, as the number of former women's players increases, it is likely that the number of female coaches will also go up. But ultimately, teams and fans like to win, so unless more teams with female coaches begin winning championships, the WNBA coaching ranks may be predominantly male for years to come.

Wednesday, August 24, 2005
 
Insurance in Sports: Baseball and Action Sports

Few sports fans realize the important role that insurance plays in the modern sports world. In recent weeks, two articles on the subject have caught my eye.

The Detroit News ran a story outlining how player contract insurance works and what is does not cover. (Henning, "Costs for coverage are out of the park," Det. News, 07/24/05). As the article states, even the best insurance rarely picks up the complete cost of an injured player's contract.
    - A player must be on the disabled list from 45 to 90 days of a 172-day major league season for insurance coverage to apply. Coverage generally consists of the carrier's paying 50 percent of the salary requirement, or, in some circumstances, as much as 75 percent. Rarely is a contract insured at 100 percent of its value.

    - The 45- or 90-day waiting period (time disabled), and the amount of money covered by the policy, is a form of deductible, same as consumers pay for car insurance. The more deductible you absorb, the lower your payment. The longer a team waits for insurance to kick in, and the less contract money you put the insurance company at risk to absorb, the lower the club's premium.
For the Tigers (the team featured in the article), the high cost of insurance most likely means that they will not be covered for some of their injured players' guaranteed money, including reliever Troy Percival. The article has more details.

The second article, in the LA Times, discusses the tricky business of insurance for extreme-sports athletes. (Bolch, "Action-sports athletes explore union option," LA Times, 08/03/05). As would be expected, athletes participating in action and extreme sports face incredibly high insurance premiums, if they can get insurance at all. Some have even resorted to being less than 100% truthful about their profession, which is certainly not a good idea.

One solution proposed by a number of riders is to unionize and seek group insurance coverage. The Pro Riders Organization (PRO) consists of motorcross riders, skateboarders, BMX riders, and other action sports athletes. The union hopes to achieve many gains for its members, with insurance being near the top of the list. Getting insurance as a group would decrease the premiums for all of the athletes. PRO hopes to further lower the cost through a new credit- and debit-card sponsorship with MasterCard. PRO will receive a small fee from each transaction with the cards that will be used to subsidize its members premium payments.

For those interested in reading more about insurance and sports, see these earlier posts:
College players and insurance - 2/20
Golf sponsor insurance - 2/23
Jockeys and insurance - 12/1/04

 
Welcome Washington Times Readers

In discussing the influence of the Internet on public perception of Judge John Roberts and his nomination to the U.S. Supreme Court, Stephen Dinan of the Washington Times mentions our 7/24/2005 post on Judge Roberts and sports law. (Dinan, "Web Boosts Glare on Roberts," Washington Times, 8/23/2005). Dinan writes:
On other Web sites, postings run from random rumors about Judge Roberts to substantive discussions on niche areas of Judge Roberts' jurisprudence.

In late July, for example, Sports Law Blog, found on the Web at http://sports-law.blogspot.com, looked at Judge Roberts' writings about sports and his work on a Title IX sex-discrimination case.
For those of you who found our site from the Washingtion Times article, please take a moment to sample our works.

Tuesday, August 23, 2005
 
Welcome Sports Business Journal Readers

We would like to say hello to any new readers that may have discovered this site through Mark Hyman's flattering piece in this week's Sports Business Journal. ("Blog days of summer: Site keeps sports law discussion going," 08/22/05) (subscription required).

For those that are new to the blog, we have compiled a sampling of posts from the past year. As always, we welcome all comments and questions to the email addresses at the top of the page.

Age Limits in Sports
Damaging Goods: The NFL Age Floor and Frank Gore
Tales of Woe, Gore and Age Limits
The Red Herring of Age in the NBA Draft
NBA Players that Get in Trouble with the Law: Do Age and Education Level Matter?
If Lebron is Good for Business, Why Adopt an Age Limit?

Tort Law/Assumption of Risk
Criminal Liability for On-Field Actions
When Players Should be Subject to Legal Liability
The John Chaney Incident: Is there Cause for Tort Liability?
Aluminum Bats: Creating an Unreasonable Risk of Harm?

Title IX
Title IX Returns to a Three-Part Test
More on Title IX: Much Ado about Nothing?
Supreme Court Broadens the Scope of Title IX
New California Law Expands Gender Equity for Community Sports

Video Games
Gaming Monopoly?
Monopilization of Sports Video Games Continues
NCAA to Consider Banning Use of Athletes' Names, Likenesses in Video Games

Other
Are Black NBA Coaches Fired Sooner Because of Their Race?
Rushing the Court(house)
RFK Stadium's False Dimensions: Liable for Misrepresentation?
The Next Generation of Baseball Cheating?
Performance-Enhancing Surgery and Sports

 
UPDATE: Problems for the New NFL Labor Deal

Gene Upshaw, the head of the NFL players union, says the league's offer for a new collective bargaining agreement is not even close to what the players are seeking, meaning a deal could still be months away. (Shapiro, "NFL deal not close, head of union says," Wash. Post, 08/19/05). Upshaw has also said that if a deal is not reached by October, it may be difficult to sign a new CBA that avoids the 2007 season being played without a salary cap (as it will under the current agreement). As Upshaw says, as the 2007 season draws nearer, the players will become more enticed by the notion that owners can spend any amount on player salaries.

The sticking point on the new agreement (as always) is money. The two main issues are the calculation of shared revenues and the percentage of these revenues guaranteed to the players. The owners have offered to increase the size of the revenue pie, but cannot agree amongst themselves as to which revenues will be shared. A focus of this debate is local and stadium sponsorship deals. Once this formula is calculated, then an agreement must be reached on the percentage allocated to the players.

History indicates that a deal will be done sooner rather than later. But with the owners fighting amongst themselves, and the issue of guaranteed contracts still lurking in the background (7/28), the NFL is facing its greatest labor struggle in 20 years.

Sunday, August 21, 2005
 
Gender Equity in Coaching

A new study conducted by Penn State and funded in part by the NCAA has found that the number of female coaches has declined since the passage of Title IX, despite the incredible increase in the number of female athletes in that same period. ("Equity in coaching declining as more men coach women," Penn State Live, 08/19/05).

A number of people have weighed in with potential rationales for these numbers. Robert Drago, a professor of labor relations and women's studies quoted in the article, feels that "sex discrimination, extreme workloads, family-unfriendly jobs and the fact that race and sexual orientation remain important" could all be reasons. He also states that many female athletes prefer male coaches. Prof. Phil Miller picks up on this and speculates as to why this preference may exist.

But has gender equity in coaching really declined? The article about the study states, "Female athletes are half as likely to have female coaches today than they were before enactment of Title IX in 1972, even though there are 10 times more female athletes to feed the pipeline to coaching." I am not a numbers wiz (which is why I got into law), but this seems to be saying to me that the number of female coaches has NOT declined, but has simply failed to keep pace with the meteoric rise of female athletes. Using simpler numbers, there were 10 female athletes and 2 had female coaches prior to Title IX (so 20% of female athletes had female coaches). Using the numbers in the study, there are 100 female athletes today (10 times more), but only 10% have female coaches ("half as likely"). This still means, though, that there are 10 female athletes with coaches today, up from 2. Thus, there are 5 times more female athletes with female coaches than before Title IX.

This represents a sizeable gain in the number of female coaches, even if the growth does not match that of female athletic participation. And the fact that the number of female coaches has not kept pace with the number of female athletes does not strike me as odd. After all, a great number of coaches have played the sport on the level at which they coach. The continued growth of female athletic participation results in the number of female athletes always exceeding the number of the previous decade. Only as the number of female athletes levels off will the previous generation be able to keep up in producing female coaches. In addition, some of the rationales proposed by Prof. Drago and Prof. Miller may continue to have relevance over time.

This study does not reveal a problem -- a growth of 500% is not a problem (and certainly not a decline). And some of its solutions (i.e., make coaching jobs "more family friendly") border on ludicrous. Athletic departments, athletes, fans and schools like to win -- as in any job, coaches that work harder often perform better. Coaching is not a 9-to-5 job and anyone who gets into the profession (male or female) knows that. Athletic organizations should not use this study as an excuse to adopt an "affirmative action" rule for women in coaching, like the NFL rule which requires interviewing and considering minority candidates for head coaching positions. The number of female coaches has increased substantially without such a rule, and as the number of ex-female athletes begins to keep pace with the current participation of females in athletics, the percentage of female coaches will continue to grow.

Wednesday, August 17, 2005
 
NCAA and NIT Near Settlement in Federal Antitrust Dispute

The Indianapolis Star's Mark Alesia, who has covered this story with remarkable depth and insight, writes about the NCAA and NIT nearing a settlement in their federal antitrust litigation. (Alesia, "NCAA and NIT Settle," Indianapolis Star, 8/17/2005). Although the settlement terms remain unknown, Alesia speculates that, aside from paying off the NIT, the NCAA might temper their rules that restrict member schools' appearances in "exempt" tournaments like the Maui Invitational and Preseason NIT. Currently, schools can only participate in 2 exempt tournaments in a 4-year period. Exempt tournaments are popular both for economic and player development reasons, since they often involve multiple games for one team, but only count as one game against the maximum in a season.

So why did this settlement emerge? From the NCAA's perspective, a settlement likely made more sense than gambling that a court wouldn't nullify their extraordinarily-lucrative monopoly on premiere college basketball. This risk-averse approach appears sensible, and it illuminates why wealthy businesses and persons often settle when sued, even when they "know" they are in the "right": it's better to hand-over your wallet than risk losing your life. The NIT, in contrast, had a very difficult case to prove, so rather than litigate and lose, it could settle and extract some of the terms that it was seeking and was unlikely to obtain through litigation. Click here for past coverage of NIT v. NCAA on Sports Law Blog.

**Update 8/17/2005 7:25 PM**: The settlement described above proves to be more of a sale agreement: the NCAA has purchased the NIT for $41 million, along with furnishing a $16 million pay-out in order to end the litigation. Thus, any potential rivalry by the NIT is eliminated. This outcome, of course, contradicts everything the NIT had claimed to be fighting for -- namely, becoming a legitimate rival to the monopolistic NCAA (which, with its purchase of the NIT, becomes a true monopoly). Instead, the NIT has sold itself out, and allowed the NCAA to not only continue, but expand the very practices that the NIT had claimed were deleterious to basketball fans.

 
My In-Studio Interview this Morning on The Score Sports Radio 620 AM in Jackson Mississippi

For those of you who either live in the Jackson, Mississippi area or who have satellite radio, I will be an in-studio guest on The Score Sports Radio 620 AM from 8:00 AM to 8:30 AM. I'll be on the "Chuck and Doug show," hosted by Chuck Stinson and Doug Colson. We'll talk about my role on Maurice Clarett's legal team, my law review article on high school players and the NBA Draft, and my recent study on NBA player arrests and age/education, along with other topics raised on the Blog. I hope you get a chance to listen this morning.

Tuesday, August 16, 2005
 
Violent Sports Fans and Injured Bystanders: How Might the Law and Economics of Ticket Prices Influence Team Liability?

Eric Crawford of the Louisville Courier-Journal has an interesting piece on overly-passionate fans who become violent when their teams struggle or disappoint. (Crawford, "When Obsessive Meets Compulsive," Louisville Courier-Journal, 8/15/05). Crawford examines fans who throw things onto the field or who curse at players/coaches/referees, as well as stay-at-home fans who merely break things, like large-screen TVs, much to the anger of their spouses and children. His research includes a recent poll of University of Kentucky sports fans, where 16 percent of respondents admitted to swearing or cursing at players or referees while attending games, and 5 percent acknowledged getting into fights or hostile shouting matches while attending games. Considering that Kentucky basketball games hold about 20,000 fans, and the school's football games hold between 40,000 and 60,000 fans, 16 percent and 5 percent of patrons entail quite a few people who might upset and possibly endanger the children, families, and other passive fans who sit nearby.

Peter Roby, director of the Center for the Study of Sport in Society at Northeastern University, is interviewed in the piece. He notes that as sports have become more important in society (as measured by monetary value and media attention), fans' passion has intensified, a phenomenon that has exacerbated the likelihood of violent reaction. Roby also details how as sports teams have become more meaningful to the average person, fans have perceived a greater stake in their teams' success, and thus a greater need to "respond" to team activities. Perhaps that partly explains the melee in Detroit last year.

Separate, but related to Crawford's article and Roby's point is the legal interest teams bear in ensuring patron safety. Along those lines, a fan that suffers an accidental/bystander injury from a fight in the stands would likely have a cognizable claim in tort law against the offending fans and also, more lucratively, the team and the stadium operator. That latter claim would concern the "duty" ascribed to sports teams and stadium operators in ensuring reasonable levels of security.

From the consumer's perspective, rising levels of violence among patrons would seem to posit a heightened duty for teams to ensure safety--there are more bad things going on in the stands, and teams and stadium operators know this, and they are responsible for the safety of fans, so they need to elevate their safety measures. In contrast, teams might argue that fans are aware of rising levels of violence in the stands, and they should internalize that risk prior to attending the game--put differently, a team owner might say, "look, if you don't want to pay $70 and expose yourself to some degree of bystander risk, then stay at home and watch the game on TV."

A law and economic approach to this question might ask how much fans are willing to pay in order to watch a safer game. Would you be willing to spend, say, an extra $5 on a $70 game ticket in order for your favorite team to hire more security guards and thereby diminish the probability of you getting accidentally punched by a drunken fan from 1 in 100 to 1 in 1000? If your answer is no, would the $5 be worth it for your child who attends the game with you?

Or, should teams have varied seating based on safety, with "safer" seating costing more (say, an incremental ticket increase of $10 instead of $5), but also featuring more security guards, cameras, and the benefit of self-selection bias from those who would pay to sit there? That approach would seem to economically punish families with young children who want to attend games, but 1) it would provide them with greater security, which may be well-worth the extra $10 per game ticket, and 2) it would preserve the attendance of the marginal number of fans who would otherwise be priced out of games should every fan have to bear a $5 safety tax. In that respect, it might be quite efficient.

Tuesday, August 09, 2005
 
Dwight Jaynes Column on My NBA Player Arrest Study

Dwight Jaynes of the Portland Tribune published an excellent column today concerning my recent study on NBA player arrests and age and education. (Jaynes, "Stern Has it Exactly Backward on College," Portland Tribune, August 9, 2005). Here are some excerpts:
Sports law expert Michael McCann is a graduate of Harvard Law School who is now, at 29, a professor at Mississippi College School of Law in Jackson, Miss. He took the time to research the backgrounds of NBA players who have gotten into trouble with the cops.

While his list probably isn’t complete (can you imagine thinking you’ve ever totally logged all of the NBA arrests?), it is extensive. And while an arrest, as McCann says, doesn’t mean anyone is guilty, it certainly will fit a description for running afoul of the law. And the results will probably surprise you . . .


“Don’t get me wrong, I don’t think college is a bad thing. But there’s no correlation between not going to college and getting into trouble with the law when it comes to NBA players,” said McCann.

I believe, in fact, there is a very good reason for this.

Young players coming directly out of high school and into the NBA probably get better monitoring and mentoring in the pros than they’d ever get in a college program. NBA teams have millions of dollars invested in these players, and most teams have set up a support system that carefully watches over the youngsters.

Stern and many others can look at these players with some sort of paternal instinct and talk about some “life experience” they might get in college, but I never bought into that. The players we’re talking about here would be coddled and babied all through college and wouldn’t have the same experience there most of us had. And a college campus can teach just as many bad personal habits as the NBA lifestyle.

The NBA teams also keep their youngsters occupied. The travel, the schedule, the practices, the summer leagues — all of them conspire to keep the kids busy and tired.

And I’ve always felt that’s a part of parenting, in a way. Busy and tired are two of the best deterrents you’ll ever find to getting into trouble.

“I feel like I’ve read several comments from David Stern that kids coming into the NBA out of high school aren’t ready for it,” McCann said. “But look at the training they get — the NBA summer leagues, practicing against other NBA players, no restriction on practice time or season. The fact is, today a good number of the players who have come into the draft after four years of college have been terrible. And they get into trouble."
For more, see Dwight's column, or my study.

Monday, August 08, 2005
 
High School Athletes and Creatine? My New Law Review Article on Dietary Supplements, Cognitive Biases, and Consumerism

In addition to sports law, my primary areas of legal scholarship pertain to food and drug law, consumer law, and behavioral law and economics. If you are interested, I just published a law review article in Boston University School of Law's American Journal of Law and Medicine. The article is entitled "Dietary Supplement Labeling: Cognitive Biases, Market Manipulation, and Consumer Choice." The article canvasses the dietary supplement industry, and explores how cognitive biases affect supplement consumers.

Among the consumers studied are high school athletes who consider the use of dietary supplements (most notably creatine), and how those athletes are influenced by professional athletes. Here are several excerpts:
[I]n the midst of the ephedra fallout, some dietary supplement manufacturers have adroitly utilized the “irrelevant third option effect,” whereby they market their products as “ephedra free” and thus of apparent less-risk. This is because when any seller introduces irrelevant options, a consumer typically becomes biased in favor of options that he originally disfavored. Indeed, by framing the choice between something dangerous, something much less risky, and no action at all, supplement manufacturers may encourage new or continued usage of supplements—much like the presence of “unfiltered” or “light” cigarettes encourages would-be quitters to continue smoking . . .

Specific data associated with the use of dietary supplements by children and adolescents illuminates their tendency to discount risk, particularly for student athletes. For instance, most college athletes who use ephedra products became dependent while playing sports in high school. It is thought that usage of ephedra and similar stimulants offers the “extra edge” to perform, improve skill level, or help one become more athletic; correspondingly, many younger users are motivated by peer pressure, or because of quixotic sports aspirations. Only reinforcing the availability and desirability of these stimulants are direct and aspirational observations of supplement usage. Indeed, children and adolescents may readily watch coaches, trainers, and teammates, as well as professional sports stars, use and promote usage of dietary supplements. By forecasting unrealistic benefits and depreciated risks, these impressions and pressures of dietary supplements merely exacerbate myth-believing and optimism bias among a particularly vulnerable group . . .

Perhaps more disturbing, usage of creatine and similar products may increase the likelihood of one later trying more toxic and illegal substances, such as anabolic steroids. Indeed, the availability of such substances may endorse a socially-permissive attitude towards use of external enhancements, which might encourage a more lenient attitude toward the use of steroids. Separately, consider the salience of the irrelevant third option effect in the creatine consumer model: by framing the choice between a steroid, creatine, and no enhancement, manufacturers of creatine products likely encourage would-be non-purchasers of steroids to purchase creatine.

The article also compares American and European models of consumerism, and proposes the prescription of new informational duties for supplement manufacturers that enhance consumer choice without deterring production. The article can be downloaded for free right beneath its abstract. I hope you get a chance to take a look at it, and would welcome any feedback in the comments section below, or by e-mail (mccann[at]post.harvard.edu).

Sunday, August 07, 2005
 
This Week's Sports Court hosted by Attorneys David Frank and Scott Gilefsky

Sports Court, a weekly sports law radio show hosted by attorneys David Frank and Scott Gilefsky of Sporting News Radio, has a great program scheduled for tonight (6 PM to 8 PM). Columnist Shawn Peters, who is the founder of Sports Page 43, will be the guest for the first hour. He'll discuss athletes who break the law or violate league rules, and how the "court of public opinion" can sometimes render stiffer sentences than any court would--the very focus of his column this week.

In the second half of the show, David and Scott will interview Los Angeles attorney Howard Slavin of Lewis Brisbois Bisgaard & Smith. During the week, Attorney Slavin specializes in medical malpractice defense. On the weekends, he is an NFL replay official, a position he has held since 1999 (and he was also an NFL side judge from 1986 to 1999). He will discuss his very interesting two careers, as well issues specific to instant replay in the NFL.

Also to be interviewed is Paul Perocchi, a partner at Brown Rudnick in Boston and a prominent divorce attorney. Attorney Perocchi will discuss Los Angeles Dodgers pitcher Derek Lowe and his highly-publicized divorce, and how recent allegations of marital infidelity will impact the divorce proceedings. Attorney Perocchi will also explain what factors a divorce court will consider in the division of Derek and Trinka Lowe's marital property (Lowe's present and any future contracts, endorsements, etc.).

Sports Court can be heard live at this link from 6 PM to 8 PM tonight. It should be another great show.

Friday, August 05, 2005
 
Quick Hits: More on NIT v. NCAA and NBA Player Arrest Study

1) Skip Sauer of The Sports Economist proposes that the NIT Tournament be restructured like the FA Cup in England (with the NCAA akin to the League Cup), and he also details Bobby Knight's testimony in the NIT v. NCAA antitrust trial. Very interesting post by Skip, who has consistently offered creative strategies for enhanced competition between the NIT and NCAA.

2) Henry Abbott of True Hoop asks me about the high school seniors who weren't drafted:

One of Maurice Clarett's former lawyers, Michael McCann, has been assembling evidence that the NBA's new age restriction may not be fair. He has compiled two studies that I know of, both of which have been mentioned here before:

So, that all seems pretty convincing to me. But then the other day I had an "aha!" moment. Perhaps the real victims of letting high-schoolers into the NBA is not the players who make it, but those who declare for the draft and never get picked. In theory, these kids could have gone from top NCAA prospects to down-and-out basketball vagabonds thanks to a misguided dream of skipping college for untold riches. Perhaps the NBA could make a case that it would disallow youngsters to prevent this.

I e-mailed Michael McCann to see if he had accounted for the undrafted high-schoolers. I have edited his e-mails slightly for length, but he responded as follows:

[check out Henry's post for the rest]

3) Christopher Uggen, a sociology professor at the University of Minnesota, analyzes my NBA Player Arrest study on his blog. He incorporates a number of charts and other analytical tools, and provides a fascinating discussion of the data. If you found the study interesting, be sure to see his response. He offers an engaging sociological perspective.


Thursday, August 04, 2005
 
Crime and College Football Players: You Always Get a Second Chance to Make a First Down

Rick Maese of the Orlando Sentinel has an intriguing piece on how Division I college football players who commit serious crimes are often afforded "second chances" that members of the general student population do not enjoy. (Maese,"Justice for All?," Orlando Sentinel, 7/31/2005). In doing so, Maese details the frequency at which top college football programs feature ex-cons, including those who have been convicted of violent crimes like involuntary manslaughter, felony assault, and armed robbery. He then compares college football players who commit felonies and are not expelled with non-athlete students at the same schools who commit misdemeanors but are expelled. This pattern of inconsistent treatment is not surprising, notes Maese, since athletes are granted "special leniency" during the college admissions process, and that "special leniency" remains with them so long as they are premiere athletes.

Duke law professor Paul Haagen is interviewed for this article, and he astutely notes, "we're talking about people who are not that far removed from very, very serious crimes. It raises a number of questions. For one, has there really been any change?"

Louisville Coach Bobby Petrino, who has repeatedly extended scholarships to ex-cons, takes an entirely different view. He interprets the "special leniency" described by Maese as an opportunity to "help young men grow up . . . you see him leave with a degree and as a man, that's what is rewarding about being a coach." Perhaps bolstering Petrino's view is the prevalence of "at-risk" college programs, which are specifically designed to accelerate the maturation process of college athletes (and other students) prone to committing crimes.

So why do ex-con football players receive 1) free tuition and 2) reusable "get out of jail free" cards when their classmates do not? The answer, as we all know, is obvious: the brilliant pre-med students, the brainy pre-engineering students, and the talented political science students do not generate money and national publicity for their schools, while their sometimes-criminal peers on the football team do. It's that not-so-wonderful "market effect" that affords college football players a different set of rules, and the opportunity to ignore the law over-and-over again without repercussion.

Maese's findings are even more interesting when we consider the extent to which ex-cons on the football team might pollute their otherwise law-abiding teammates. Given this environment of "special leniency," and thus a lack of behavioral deterrence, it stands to reason that an 18-year old freshman on the football team might be more prone engage in criminal activity when he sees the "veteran" 20- and 21-year olds on the team doing so and not suffering any material consequence. This is the negative "big brother" effect in action.

Maese's article is a useful counterpart to my recent study on NBA player arrests and age/education. After studying NBA player arrests, I found that 1) college education does not appear to diminish the probability of an NBA player getting in trouble with the law; and 2) NBA players appear more likely to get in trouble with the law towards the middle and end of their careers than at the start.

The romanticized myth of college sports enhancing maturity and law-abidingness continues to crumble before our eyes.

 
My, How the Tables Have Turned

I came across this post from February and thought it was humorous in the wake of recent events. The title: "Palmeiro Considers Suing Canseco" (2/28). Good thing truth is an absolute defense, eh Jose?

Read more on Palmeiro from Mike (8/2).

Wednesday, August 03, 2005
 
NIT Proposes Measures to Make NCAA Tournament Less Monopolistic

As reported by Mark Alesia of the Indianapolis Star, the first two days of the NIT's antitrust lawsuit against the NCAA has already generated interesting developments. (Alesia, Indianapolis Star, 8/3/2005). In his opening statement, NIT lead counsel Jeffrey Kessler offered a number of measures that would ostensibly stimulate competition between the NIT and NCAA Tournaments. His suggested measures included: 1) starting and ending the regular season earlier; 2) shortening the three-week NCAA Tournament; and, perhaps most interestingly, 3) limiting the number of teams that must play in the NCAA Tournament if invited (currently, all 65 schools must attend if invited by the NCAA).

The last point warranted particular attention in Kessler's opening statement:
"They talk about Cinderellas . . . There are no Cinderellas in the Final Four," Kessler said. "Just require the top 16 or top 32 teams to participate -- something less restrictive.

"They'd still be No. 1 (ahead of the NIT). They just won't be a monopolist. And they won't make as much money. Monopolists make more."

In his countering opening statement, NCAA lead counsel Gregory Curtner lambasted the NIT and several second-tier Division I college basketball programs that organize the NIT (he named the schools of the Metropolitan Intercollegiate Basketball Association-- St. John's, Fordham, Manhattan, NYU, and Wagner) as selfishly seeking to re-distribute wealth from the better college programs to the lesser ones, and that the NIT is interested not in economic competition or fans' enjoyment but rather Peter Pan-style wealth-distribution. He also noted that no school in the past 35 years, including even the NIT organizers, has asked for a waiver to be able to compete in the NIT.

In what may make great theater, Texas Tech coach Bobby Knight will be testifying tomorrow morning by video on behalf of the NIT.

For more, check out Alesia's article. For past coverage of NIT v. NCAA on Sports Law Blog, check out posts from 8/1/2005, 4/18/2005, and 4/5/2004.

See 8/17/2005 Update: NIT and NCAA Settle with NCAA Buying NIT

Tuesday, August 02, 2005
 
Justice Department v. Rafael Palmeiro? Perjury Charges Unlikely

As has been reported extensively, Baltimore Orioles’ first baseman Rafael Palmeiro revealed yesterday that he tested positive for steroids in July, which triggered an automatic 10-game suspension under baseball's new steroids policy. This revelation comes only five months after Palmeiro testified before the U.S. House Judiciary Committee that he had never used steroids. As we discussed then, Palmeiro was demonstrably adamant in his denial. Indeed, his dramatic, finger-waving rebuke of steroid suspicions was oddly reminiscent of when former President Bill Clinton waved his finger at reporters, saying, "I did not have sexual relations with that woman, Ms. Lewinsky." Apparently, we now know that when someone waves their finger in denial, they probably aren't telling the truth.

Of course, Palmeiro's sworn statement in March and his unsworn statement yesterday aren't necessarily contradictory. In March, he said that he had never used steroids; yesterday, he said that he never knew that he had used steroids, even though he had. So if he didn't know then what he knows now, then maybe he wasn’t lying. Alternatively, maybe he had never used steroids as of March 2005, but has since unknowingly become a steroids user. Or at least those are the fanciful stories that his lawyer will spin if Palmeiro is charged with lying under oath, or perjury.

And therein lies the greatest threat to Palmeiro: criminal prosecution by the Department of Justice for perjury. Naturally, courts take perjury quite seriously, since "miscarriages of justice" can arise whenever judges and juries render decisions based on dishonest evidence. In fact, a federal perjury convinction can land a defendant behind bars for up to five years.

However, as noted by former U.S. attorney Joseph diGenova, "the imprecision of congressional testimony makes it nearly impossible for the Justice Department to make out a proper perjury investigation."

On the other hand, it would seem that Palmeiro's testimony couldn't have been any more precise. Consider his opening remarks before the Judiciary Committee:

Let me start by telling you this: I have never used steroids. Period. I don't know how to say it any more clearly than that. Never.
That doesn't leave much room for interpretation, does it? While Mr. diGenova may be correct about most congressional testimonies, "the imprecision of congressional testimony" limitation doesn't seem as relevant in this instance.

However, several members of the House Judiciary Committee have already signaled that, because Congress cannot verify or refute Palmeiro's testimony (i.e., Congress can not go back in time and test Palmeiro for steroids), no perjury charges are forthcoming. Most illuminating are these remarks from U.S. Rep. Christopher Shays (R-CT):

[T]he committee's No. 2 Republican, Rep. Christopher Shays of Connecticut, said he wouldn't advocate a perjury investigation.

"I just don't know if he was taking steroids then or not. Who knows?" Shays said in a telephone interview.

Moreover, a person cannot typically be convicted of perjury for making an "honest' mistake or an "honest" false recollection. So, in conjunction with a lack of any apparent evidence, Palmerio's assertion that he didn't know he was taking steroids would seem to further exculpate him.

For these reasons, it appears unlikely that Palmeiro will be charged with perjury. Instead, his penalty will most likely be levied by disgusted baseball fans and diffident Hall of Fame voters alike.


 
John Daly Sues Columnist Mike Freeman for Libel

Pro golfer John Daly filed a libel lawsuit last week against the Florida Times-Union and its website, contending that he was defamed by Mike Freeman in a column published last year. Daly takes particular umbrage to statements that he is "accused of smacking women around" and that he has "Thug Life qualifications." The lawsuit asks for an unspecified amount in excess of $15,000.

As we discussed in regards to sportscaster Bob Lobel and his libel lawsuit against cartoonist Darby Conley, proving libel is incredibly difficult, especially for "public figures" like professional athletes and TV personalities. Specifically, public figures have to prove that 1) a false and defamatory statement was published; 2) that statement was about a particular person; 3) it harms that their reputation or exposes them to contempt or ridicule; 4) and is the result of "actual malice" (i.e., knowledge or recklessness) on the part of the defendant (in contrast, non-public figures only have to show that the accused was negligent, or failed to act with due care). Even if Daly can prove the four elements above, the Times-Union could still relieve itself of liability by producing one of several defenses to libel, including truth (i.e., Mike Freeman's published remarks were actually true) and consent.

We'll keep you posted on Daly's lawsuit. Most likely, he and Freeman will settle prior to any trial.

 
Fantasy Football Widows

Mike has posted on this before (7/14), but it is so interesting, I thought I would add my two cents. Christine Hurt at Conglomerate writes of a fascinating (and true) phenomenon that occurs each year: Fantasy Football Widows and Orphans. If you don't think this is a problem, just ask my fiance. Fantasy football has the capacity to consume in a way that many other fantasy sports cannot -- maybe because it is weekend-heavy, or because the season is comparatively short. Or maybe football just lends itself to being an excellent fantasy sport. But I know many people obsessed with fantasy football that play no other fantasy sport.

Christine also goes into the legality of fantasy sports. As she correctly points out, while you cannot bet $5 on a game's outcome (in many states), you can spend as much time (or money) on fantasy sports as you would like.
    I live in Wisconsin. If I decided to bet with Jason in my suite (hi, Jason!) on the Green Bay Packers v. Minnesota Vikings game, that's illegal under WI law. If I called him or emailed about the bet, then we would also be breaking federal law (Wire Act). If I placed a bet with an offshore bookie, then I would be breaking both state and federal law. However, if Jason and I create a fantasy football league on espn.com, ESPN will never ask us if we are wagering on who will win the fantasy football league. We're just doing it for fun, right? We're just spending thousands of hours a week for fun, right?

    In all three bills introduced in the 108th Congress seeking to prohibit Internet gambling (H.R. 21, H.R. 2143, and S. 627, the definition of "bets and wagers" excluded two types of activities. The first exclusion applies to stocks, commodities, derivatives, and insurance products. (Interesting that we would have to sort that out.) The second exclusion was: Fantasy Sports!!!
You can view the text of the bill here (S. 627 108th Cong. s.5361(1)(e)).

Personally, I am not in favor of any laws restricting non-corrupted wagering, so I am fine that fantasy sports escape. But my heart goes out to all of the FFW and FFO: don't worry, January will be here soon.

 
UPDATE: NFL and Guaranteed Contracts

For those looking for more information about last week's post on the NFL's labor future (7/28), I recommend the following articles that came out over the weekend:

Gary Myers, on the one-sided nature of NFL contracts (NY Post, 07/31/05)
Phil Sheridan on why Drew Rosenhaus is not winning people over (Phil. Inquirer, 07/31/05)
Mark Maske saying the same, but going more in-depth (Wash. Post, 07/31/05)

Many in the NFLPA (agents and players) are rallying behind the current system, in which some upfront money is guaranteed and the salary cap ramifications all but ensure that a player will not be cut one year into a long-term deal. Is it really the best system, or is it just the system NFL players and agents know? Only time will tell whether Rosenhaus is ahead of his time, or just plain off base.

Monday, August 01, 2005
 
NIT v. NCAA: The Antitrust Trial Begins

Mark Alesia of the Indianapolis Star has a great piece on the National Invitation Tournament 's (NIT) antitrust lawsuit against the National Collegiate Athletic Association (NCAA). (Alesia, "Antitrust Case Puts NCAA on Defense," Indianapolis Star, 8/1/2005). The trial begins today in the United States District Court for the Southern District of New York (the same trial court where Maurice Clarett won).

The NIT--which years ago was a genuine rival to the NCAA--is challenging the NCAA's requirement that, if invited, member teams attend the March Madness tournament. The NIT contends that the rule is anticompetitive, since it effectively eliminates competition for postseason basketball tourneys. The NIT maintains that postseason basketball should be open to competition, which could prompt schools to organize themselves (like in football), or lead to several March Madness-type tournaments (with, presumably, the NIT Tournament becoming more than just a losers' bracket). The NCAA disagrees, arguing that consumers and member schools benefit from a single national championship, and that, besides, member schools voluntarily assent to this rule.

The witness list features some interesting names. Texas Tech coach Bobby Knight will be testifying for the NIT by video, and Duke coach Mike Krzyzewski is on the witness list for the NCAA.

Alesia's article, which also runs in USA Today, features comments from Sports Law Blog friends and fellow law professors Gary Roberts, Paul Haagen, and Rick Karcher, who noted:
"Antitrust is always difficult, and it's even more difficult when it's applied to sports," said Rick Karcher, director of the Center for Law and Sports at Florida Coastal School of Law in Jacksonville. "It's totally different than if you're talking about the sale of widgets. Ford would love not to have to compete with GM. The New York Yankees still need the Pittsburgh Pirates.

"What's my gut reaction on how this is going to turn out? I think the NCAA can enact a less restrictive rule and still accomplish what it wants."

This should be a fascinating case to follow. For past coverage, check out Greg's excellent posts from 4/18/2005 and 4/5/2004. Skip Sauer of the Sports Economist also a great post from 3/29/2004.

Update 8/3/2005

 
What's in a Number?

Alan Schwarz of the New York Times has a fascinating look at baseball statistics in Sunday's paper. As he writes, the somewhat uncertain history of the sport prior to the 1920s means that not all baseball stats are set in stone, even those memorialized in Hall of Fame plaques.

    Sure enough, when considering Ty Cobb's 4,191 hits, Walter Johnson's 414 victories and dozens of 19th-century numbers less burned into baseball's collective retina, many of the older statistics are either in dispute or downright incorrect. Either because of arithmetical error, sloppiness in early record-keeping or even chicanery, the tablets' numbers highlight not only the players' excellence, but also baseball's fuzzy statistical past.

    ***

    But many of these errors wound up on the best players' Hall of Fame plaques. Walter Johnson was believed to have won 414 games when he was inducted in 1936, but several corrections later, he was left with 417. Eddie Collins's plaque says he collected 3,313 hits from 1906 to 1930, but the record-keeper back then apparently switched one game of Collins's statistics with those of his teammate Buck Weaver, so he actually had two more. In the mid-1970s, when an addition error was discovered on Tris Speaker's official stat sheets - which are preserved on microfilm - his official career average went up to .345 from its longtime .344, two decades after his death.
("Numbers are cast in bronze, but are not set in stone," 07/31/05). Sadly, if mistakes like this happened today, I am sure someone would find a way to fashion a lawsuit from it. As it stands, some history may be "re-written" as a few Hall of Fame plaques with minor errors (including those of Babe Ruth and Walter Johnson) will be replaced.

Is this really necessary? Baseball has a great history -- perhaps the greatest of any major sport. The names of Ruth, Gehrig, Mays and Gibson are known to almost any fan of the game -- young or old. And without a doubt, statistics are a part of this history. Quick -- name the all-time record for TDs in the NFL. How many goals scored are needed for greatness in the NBA? What is considered an excellent NBA field-goal percentage? But all I have to say is 755, 3000 or .400, and you know what I am talking about.

But is the game becoming too entranced with numbers? It seems that every time I read an ESPN baseball column, there is a new baseball stat (OPS, ERA+, Crotch Adjustments per 9 innings). A number of fine works such as Moneyball and the Sabernomics blog continue to dive deeper and deeper into statistical analysis. Hall of Fame debates begin when a player reaches somewhat arbitrary milestones -- 3000 hits, 500 home runs, 300 wins.

Has the sport moved too far away from the game and into a calculator? At what point do statistics take over at the expense of really enjoying the game? It seems a bit much to replace Hall of Fame plaques because a player had 3 more hits -- does this change his importance in baseball history? And who cares if Cap Anson had 3,018 or 3,429 hits? Isn't the important thing to know about him that he was one of the game's earliest pioneers -- a star when the game had no stars -- a man who popularized spring training, was in baseball for 27 years and was the greatest hitter ever when he retired? Does Tris Speaker's legacy as (arguably) the greatest doubles hitter that ever lived change if his lifetime batting average goes up one point?

The importance of statistics is especially questionable when debating the Hall of Fame credentials of current major league players (see the excellent pieces by David Schoenfield here and here). Statistical milestones are relevant inasmuch as they provide a level playing field for comparison. But does anyone really believe that 500 home runs is the same today as it was in the 1930s? That 300 wins is the same? One is clearly easier to achieve, one is clearly more difficult -- based solely on the changes within the game.

Thus, it seems better to judge a player based on his peers -- was he one of the greatest when he played? -- and not try to make comparisons based on statistics to those that played a different game in a different era. And the game should strive to remember the greats of the past, not with numbers, but with stories of greatness and tales of innovation. Only by doing this can the game preserve its treasured history -- ensuring that modern advances and the passage of time do not erase all records of baseball's past.