Sports Law Blog
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Monday, October 31, 2005
 
Theo Epstein Quits as Red Sox General Manager

Stunning news out of Boston: a year after winning the World Series, 31-year old Red Sox GM Theo Epstein (on left) has rejected the Red Sox's 3-year, $4.5 million contract extension offer and he will leave the organization shortly, as his existing contract expires tomorrow. Earlier today, the Boston Globe had reported that Epstein accepted the 3-year, $4.5 million extension, but tonight's news indicates that he apparently had a last second change of heart.

Rather than wanting more money, Epstein apparently wanted more control. Specifically, he wanted less interference (oversight?) from Red Sox CEO Larry Lucchino (on right), who discovered Epstein about a decade ago--when Lucchino was the Baltimore Orioles' CEO and Epstein a mere intern in the Orioles' press office. There is speculation that Epstein resented Lucchino's efforts to "take credit" for the organization's recent sucess, just as there is speculation that Lucchino resented Epstein's lack of appreciation for shepherding Epstein from public relations intern to the youngest general manger in Major League Baseball. Call it a mentor/protege or father/son relationship that went rotten.

Epstein was also angered by a negative column written by Dan Shaughnessy in yesterday's Boston Globe--a publication owned by the New York Times, which is a minority owner of the Red Sox. It is clear that either Lucchino or someone else from the Red Sox fed Shaughnessy some rather choice comments about Epstein. It looks like the Red Sox spin room has already started to attack (much like it did when the team traded Nomar Garciaparra last year, only to then have Lucchino strategically leak stories about Garciapara's alleged lack of dedication).

Here are the key excerpts from Shaughnessy's column:

Let's start with Theo being a ''baseball guy" while Larry is a lawyer with a lofty title (CEO). Granted, Epstein is a student of the game, but it's a mistake to say he knows more about baseball than Lucchino or anyone else in the Red Sox baseball operation. Theo is 31 years old and did not play baseball past high school. He spent four years at Yale and three years at law school. That hardly leaves time for much more than rotisserie league scouting. He can read the data and has a horde of trusty, like-minded minions, but we're not talking about a lifetime of beating the bushes and scouting prospects. Lucchino was a good high school baseball player and made it to the NCAA Final Four with Princeton's basketball team. He came to baseball as an executive in 1979, when Theo was 5 years old. That doesn't make him George Digby or Ray Boone, but he's not [Red Sox minority owner] Les Otten, either.

Lucchino-bashers, and they are legion, maintain that he repeatedly has undermined Theo and on occasion killed deals made by Epstein and the minions. There was one, for sure. When Theo's assistant Josh Byrnes (hired by Arizona as GM Friday) made a deal with Colorado, Epstein thought he had a better deal with another club and requested that Lucchino fall on the sword and invoke the ownership approval clause to kill the Rockies deal. Accustomed to people hating him, Lucchino took the fall, killing the deal and saving Epstein.

This is truly awful news for Red Sox fans, as Epstein had masterfully rebuilt the farm system while winning 95+ games a year. And as a native of Massachusetts and a life-long Red Sox fan, I can only imagine how hard it was for Epstein--also a native of Massachusetts and a life-long Red Sox fan--to walk away from the job that every New England kid dreams of having. In short, Epstein must have been really miserable.

But maybe not. As my brother Bill just mused in a phone conversation, maybe Epstein suffered from a cognitive bias not (yet) discussed in my new law and psychology article in the Brooklyn Law Review: The Hot Head Bias. Did Epstein just over-react? Did he see the cheap shot, probably Larry Lucchino-orchestrated-leaks in Shaughnessy's column and then hastily conclude that his relationship with Lucchino had been irretrievably-severed? Was he so angry that he failed to internalize information in a rational way? We can all relate to that, but it's unfortunate that Epstein may have walked away from the best job on Earth because of it.

Update: It looks like Epstein has fired back through the media. This story is getting more acrimonious by the minute; it's amazing that this team won a World Series just a year ago with these guys running the show and seemingly detesting one another at the same time. Here are some strikingly "pro-Epstein" comments by Boston Herald (and not Globe) columnist Tony Massarotti in Tuesday's (Nov. 1) Herald:
Larry Lucchino botched this from Day One, plain and simple, no ifs, ands or buts. The Red Sox can spin, distort and disguise the reality all they want, but the departure of the talented Theo Epstein will go down as one of the great management blunders in the history of the franchise.

Epstein is walking tall today, a bright, young man with an equally bright future. He is 31. He has won a World Series.

Red Sox management, which once trumpeted Epstein as a member of their team, treated him like a wide-eyed intern who should have felt blessed to kneel in their presence. And when Epstein responded by biting the Sox in the kneecaps, they fired up the propaganda machine and leaked information, tried to make him look bad, did their darnedest to put him in his place.

The final year of Epstein's contract began one year ago today, just days after the Red Sox won their first World Series since 1918. Lucchino decided to take it down to the deadline, as he often does, which makes you wonder if he learned the art of negotiating from some trendy book on the inter-office (i.e. New York Times) bestseller list.

Who runs the Red Sox from here is anybody's guess, largely because anyone who takes this job now needs both a CT scan and some serious psychiatric evaluation.
Update 2: I wonder who shared this info about Lucchino with the Globe's Gordon Edes?

Epstein had issues with was Lucchino's insistence on being involved in every decision, [including] such relatively minor moves as whether the team should keep utility players Damian Jackson or Lou Merloni -- Lucchino insisted on Jackson, according to one team source, over the objections of the baseball ops people.
Related Coverage: Relationship Between Age and Performance Among Baseball General Managers (7/1/2005)

 
NBA Dress Code and Race: Discussion on BBC Radio

The BBC Radio discussion concerning the NBA Dress code and race has been posted on the BBC's website (after clicking on that link, you will see the phrase "LISTEN TO THE PROGRAMME" on the right-hand column -- below that is the audio link and just click on that for the audio file). The entire "World Have Your Say" program is on the audio file, so you may want to skip to the NBA portion -- our discussion occurs from minutes 38:27 to 47:54.

It was a lively discussion, to say the least! The guests (in order of appearance):

* Me (lawyer/law professor/Sports Law Blog)

* Colleen Hammond (self-described "award-winning writer, radio and television talk show host, educator, comedienne, and Catholic mother")

* Greg (lawyer/Sports Law Blog)

* Sean Gonsalvez (columnist for the Cape Cod Times)

Friday, October 28, 2005
 
Just Don't Do It: Reebok Terminates Endorsement Contract with DeAngelo Hall

Bill McCann alerts me to an interesting story in the Boston Herald concerning Reebok's decision to sever its endorsement contract with Atlanta Falcons cornerback DeAngelo Hall, after Hall played in last week's Monday Night Football game wearing Nike shoes. (Jennifer Heldt Powell, "Reebok Clips Falcon's Wings," Boston Herald, 10/27/2005).

I can easily understand Reebok's disgust. For one of its own clients to wear a competitor's product on a nationally-televised game is both embarrassing and disdainful, and would likely draw the ire of any rational person. This is particularly true considering that Hall could have simply concealed the Nike "swoosh" with an adhesive label-- assuming, of course, Hall absolutely had to wear those shoes, which is itself a rather ridiculous proposition for a well-compensated endorser of a competing product. For these reasons, and assuming there are no peculiar clauses within the endorsement contract, Reebok appears well within its contractual rights to terminate the contract.

Aside from termination of the contract, it will be interesting to see if Hall violated any penalty clauses that might compel him to return previous contractual payments. Given the egregiousness of his actions, there exists a distinct possibility that he violated multiple clauses, which can trigger severe penalties (including retroactive penalties).

More broadly speaking, Reebok's decision should deter other endorsed athletes who contemplate reckless use of their wardrobe. Such a message of deterrence would seem especially meaningful if Hall were required to return previous payments.

But then again, I wonder who Nike will now hire as a product endorser?

 
Male Golfer Seeks Spot at Women's British Open

Rick Karcher alerts me to an interesting story in USA Today regarding French golfer Jean Van de Velde's attempt to enter next year's Women's British Open. ("Van de Velde Wants to Play in Women's British Open," USA Today, 10/27/2005). Van de Velde is upset that women may qualify for the 2006 British Open, so he plans on submitting an application to the women's tournament. Earlier this year, the Ladies' Golf Union, which runs the Women's British Open, established a one-gender policy: "It shall be a condition of any competition organized by the Ladies' Golf Union that players must be of the female gender." As we discussed in February, the Ladies' Golf Union also banned players who had sex-change operations to become females. That move was made in response to transsexual Mianne Bagger's attempt to qualify.

Van de Velde has some interesting remarks:
"I'll even wear a kilt and shave my legs. My whole point is where do we draw the line? If we accept that women can enter our tournaments, then it applies that men can play with women."
So is Van de Velde right--is it sexist to have exclusive women tournaments, but open men's tournaments? Or is Van de Velde overlooking obvious competition concerns of having male golfers enter female tournaments? And how do we balance these interests in a socially-desirable way?

Thursday, October 27, 2005
 
Rushing the Court (Field) Tragedy: Student Dies in Minnesota

I have written a great deal about the inherent dangers of fans rushing the court or field after a victory by the home team. While there is no greater rush as a fan, the practice is incredibly dangerous. As a post noted in March 2004, a number of students, members of the media and opposing players have been injured by the wave of students pouring out of the stands (3/10/04). And now, a student has been killed.
    Head trauma from a falling goalpost caused the death of a student at the University of Minnesota, Morris over the weekend, according to an autopsy report released Monday.

    Rick Rose, 20, a junior from Benton City, Wash., died at a hospital after he and other students rushed onto the Morris football field to tear down a goalpost after the school's team defeated Crown College on Saturday. No one else was injured.

    It was homecoming and the final game at Cougar Field, which is being replaced after 35 years. Morris Chancellor Sam Schuman said it appeared that "a small group of overly enthusiastic students" acted without thinking carefully.
("Autopsy finds Morris student died from head trauma," Star Tribune, 10/24/05; "College student dies in football celebration," Star Tribune, 10/23/05).

Administrators at schools around the country should have looked at this problem before now, but they certainly need to act in the wake of this preventable accident. Measures can and should be taken to keep fans off the field; after all, fans are not allowed to rush the field or court after professional games. Fans going onto the field should be arrested; students should face university disciplinary action. It would only take a few prosecutions for the word to spread that fans belong in the stands. Fans in Chicago did not rush onto the field after their team's come-from-behind wins in the playoffs and World Series.

I would also expect university general counsels to advocate control measures until they are blue in the face. Although the law in this area is predictably thin, in our litigious times it is an almost certainty that litigation will result from injuries such as this one. (See 3/8/04 & 12/01/04). As courts continue to increase the duty of care a stadium owes to its patrons, especially for risks not inherent in the sport, Morgan v. Fuji Country USA, 40 Cal.Rptr.2d 249 (1995), a school not taking proper measures could face a multi-million dollar verdict. The university will argue that the student assumed the risk of injury in running onto the field, but this may not be enough to prevent tort liability.

No matter the legal conclusion, everyone hopes that this student will be the last to be killed in an on-field incident. And the only way to ensure this is to keep fans off the field in the first place.

 
More Evidence of The Corruptive World of College Sports

Boston Celtics center and New York City native Mark Blount's name is being tossed around these days in the U.S. District Court for the Southern District of New York, as Maurizio Sanginti--the government's lead witness in a racketeering conspiracy case involving an Albanian-led gang accused of wrestling control of Bronx and Queens social clubs from Italian crime families and (to make the story more bizarre) Mark Blount's former legal guardian, after Blount apparently divorced his mom while in high school, ala Gary Coleman and Corey Feldman--claims that he arranged for someone to take Blount's SAT exam for him back in high school. (Thomas Zambito, "Thug Taints City Basketball Star," New York Daily News, 10/23/2005). Since Sanginti is cooperating with the government, he's had to discuss certain past crimes, including (apparently) fraudulently helping Mark Blount obtain the requisite SAT score to play basketball at the University of Pittsburgh.

It should be noted that Sanginti sued Blount back in 2001 for $250,000, claiming that Blount never paid back a loan. Notwithstanding the veracity concerns of such an agenda-driven witness, Sanginti has made other notable revelations (and, importantly, made them under oath). As Blount's "guardian," Sanginti travelled with Blount across the country on recruiting trips and witnessed the following:
  • Blount received $20,000 in cash from an alumnus of the University of Louisville on a recruiting trip;
  • Blount received cash from an alumnus of the University of Cincinnati on a recruiting trip, apparently on instruction from coach Bob Huggins;
  • Blount received periodic cash payments from University of Pittsburgh boosters (Blount played there for two years); and
  • Blount took steroids (with assistance from Sanginti).
Strange story, but perhaps further illumination of why the often cheerfully-depicted world of college hoops may be a darker story than most would like to admit. And one must wonder about the kind of deleterious social norms repeatedly observed by those who live in that world, and how that may affect them for years to come.

Hat Tip: Henry Abbot of True Hoop

Past Coverage: Tony Allen and the Whataburger Incident (10/21/2005), Crime and College Football Players (8/4/2005), Arrested NBA Players: Education, Age & Experience (7/20/2005)

Wednesday, October 26, 2005
 
Pat Downs at Sports Arenas: Necessary Precaution or Unconstitutional Search?

A high school teacher (with the help of the ACLU) has decided to put his knowledge of constitutional law up against the NFL. The teacher, who has season tickets to the Tampa Bay Buccaneers, is suing the Tampa Sports Authority (which owns Raymond James Stadium), alleging that the policy of patting down all fans who enter the stadium violates the Fourth Amendment. (Varian, "Tampa Bay Buccaneers fan challenges patdowns at stadium in lawsuit," Sun Sentinel, 10/17/2005). You can read the complaint here.

The NFL mandated the "pat down" policy at all of its stadiums beginning this season as an added security measure. All of the teams comply with the rule (the Bengals were the only hold out, owing to a dispute with the city over who would foot the bill), and this is the first legal challenge. Obviously, the league believes the procedure is reasonable, and as Maurice Clarett can attest, will fight a strong legal battle.

Does the plaintiff have a case? As you might imagine, cases on this specific issue have not occurred frequently. My research reveals no Florida case that speaks to the issue. So, if this case is appealed up the chain, the Florida high court will likely look to cases in other jurisdictions.

The federal Eleventh Circuit, of which Florida is a part, has ruled on a related issue. In Bourgeois v. Peters, 387 F.3d 1303 (11th Cir 2004), the court held that a city policy to conduct mass suspicionless, warrantless magnometer searches of protestors at a political rally violated the Fourth Amendment. The court dismissed the city's arguments regarding a need for higher security in this age of terrorism, stating that absent a specified threat, 9/11 or the terror alert level cannot be used as justification for degrading constitutional rights. Moreover, requiring all individuals to pass through a metal detector in order to attend a political rally placed an impermissible "prior restraint" on free speech and association rights under the First Amendment. The court proposed as an alternative that police would be free to search all individuals that looked "suspicious" without a constitutional violation.

This case is excellent for the plaintiff, but as a federal case, is not binding on Florida state courts. Even if it were, the NFL could distinguish it by the nature of the rights involved. Attending a football game does not implicate the same fundamental rights as attending a political rally. One is the brightest star in the constitutional sky; the other is a nice way to spend a Sunday afternoon. Thus, courts may be willing to allow more burdens on entry; after all, a spectator does not have to go to the game. By entering the stadium, an individual has consented to the search without an undue burden being placed on the person's constitutional rights. Teams would simply have to inform fans, prior to purchasing tickets and at the gate, that they are subject to a "pat down" search as a condition for entry.

So far, few courts have adopted this argument. In July, the Supreme Court of North Dakota ruled that a similar "pat down" policy in place at a hockey arena is unconstitutional. State v. Seglen, 700 N.W.2d 702 (2005). The court rejected the argument that modern times call for heightened security and also ruled that the exception commonly applied to airports and courthouses does not apply to arenas.

However, as a concurring opinion in the case notes, the court's opinion is largely based on an odd view of consent and perhaps should not be followed. Despite the presence of large signs warning spectators that they would be searched, the court ruled that the act of handing over a ticket and entering the arena was not "affirmative conduct" necessary to show consent. As the concurrence states, if this is not affirmative conduct, it is hard to imagine what is. The plaintiff certainly was not coerced "by explicit or implicit means or implied threat of covert force." He was free to leave the arena and chose not to do so. As I read the law, the coercion test is not intended to apply to these situations, but rather those where the individual has no meaningful option but to "consent" to the search (i.e., out of fear of being arrested if they do not). This certainly does not apply to a person freely entering an arena to watch a game.

Two other cases are from twenty years ago. In Jacobsen v. City of Seattle, 658 P.2d 653 (Wash. 1983), the Supreme Court of Washington held that a policy of pat downs at rock concerts violates the constitution. And while the Michigan Supreme Court in Jensen v. City of Pontiac, 317 N.W.2d 619 (Mich. 1982), upheld visual inspections of purses as patrons entered a stadium, some language in the opinion suggests that pat downs and physical conduct might not be acceptable.

Thus, the few courts that have weighed in tend to support the plaintiff's argument. But that does not mean it is correct, either legally or from a policy perspective. Society tolerates pat downs in a number of situations where terrorists or criminals could strike devastating blows: most notably, courthouses and airports. Sports arenas, some of which hold up to 100,000 people, fall into this category.

Many of these cases come down to the question: Do the rewards justify the intrusion into privacy? As of today, it seems that they do not. After all, a quick "pat down" is likely to deter a smart and determined criminal. But they might catch some malfeasants, and more importantly, dissuade others from considering the inviting target of sports arenas. It should not take the bombing of the Super Bowl for reasonable safety measures to be tolerated by sports fans and the constitution. Even the plaintiff in this case admits that the searches do not impose that great of a burden. [FN] Shouldn't we as a society be willing to tolerate a slight inconvenience for a safer Sunday afternoon?


[FN] Plaintiff admitted to thinking after the search, "That's not as bad as I thought it would be." (Sun Sentinel, 10/17/2005).

 
I Feel Vindicated: McDonald's to Post Nutritional Data on Food Boxes

Over the last year, I have published two articles concerning the need for nutritional disclosure of fast food items aimed at young children (one was a law review article in the Wisconsin Law Review and the other was a feature article in the Food and Drug Law Institute's Update Magazine--the cover is depicted to the left). The articles feature a mix of food and drug law, behavioral law and economics, and law and psychology. According to today's Washington Post, McDonald's will put nutrition information on the packaging of most menu items starting in early 2007. (Margaret Webb Pressler, "McDonald's Plans to Print Nutrition Data on Food Boxes," Washington Post, Oct. 26, 2005, at D01). The company could do more, such as indicate calorie counts on store and drive-through menus (particularly for items aimed at young children), but the move is clearly a sign of progress.

So did I make a difference? Probably not. But if you are interested in the law of nutritional labeling, check out my articles:

Economic Efficiency and Consumer Choice in Nutritional Labeling, 2004 Wisconsin Law Review 1161 (2004)

Comparing Legal, Economic, and Legislative Approaches to Nutrtional Labeling of Fast Food Items, Food and Drug Law, Regulation, and Education (Jan/Feb. 2005)

Note: the actual articles can be downloaded beneath the abstracts linked above, as you will see the "New York, USA" icon (depicted below), right beneath the phrase "SSRN Electronic Paper Collection."

 
Sports Law Professionals: Granik to Step Down

The NBA has announced that Deputy Commissioner Russ Granik, the right-hand man to Commissioner David Stern, will resign his post after this season. (NBA Press Release, 10/25/05). Granik, a 1973 graduate of Harvard Law School, joined the NBA as a staff attorney in 1976. He moved up the ranks, becoming Assistant General Counsel in 1978, General Counsel in 1980 and Executive Vice President in 1984. He was elected to his current position in 1990. Before joining the NBA, he worked for three years in a New York law firm.

Granik played a key role in the league's labor negotiations, including the CBA signed this summer, negotiated the NBA's television contracts and served as a liaison to USA Basketball. To most fans though, he was the guy that took over for Stern in the second round of the NBA draft.

Tuesday, October 25, 2005
 
NBA Dress Code: Has it Been Collectively Bargained?

Sports Law Blog contributor and Florida Coastal School of Law Sports Law Director Rick Karcher raises an excellent question about the NBA's new dress code: Is it invalid without union consent? For instance, is there a system in place for advice and consent of the National Basketball Players' Association Executive Committee, or a vote among all union members? Interestingly, the only consent we see from the NBPA is President Antonio Davis loosely consenting to the "concept" of a dress code, but as Rick astutely notes in an e-mail:
[Davis] has not consented to exactly what the NBA unilaterally implemented (because Davis said he is only "willing to go so far"). Thus, presumably the association has not entirely consented, and the association could bring an unfair labor charge against the league claiming that a dress code is a mandatory subject and, therefore, must be negotiated with the association and the league can't unilaterally implement it. On the other hand, if the union did in fact consent to the dress code, then this dissident group of players could bring an unfair labor charge against the union claiming that the association members were denied access to information and the right to vote.
These are excellent points, and stay tuned. Allen Iverson may still be able to wear his bling yet (and if so, he should send some of it, or at least its monetary value, to Rick as a thank-you!).

Past coverage: Don't Wear That! David Stern's Paternalism Strikes Again with Dress Code (10/6/2005)

 
UPDATE: Be an NFL Player - Only $300!

ESPN offers an update to this post (9/19) and this article (Latack, "To make its players safe the NFL is tackling schemers and scammers," Legal Affairs, Jan/Feb 2005).
    A man accused of pretending to be Pittsburgh Steelers quarterbacks was fined $300.

    Brian Jackson of Brentwood pleaded guilty to disorderly conduct charges yesterday. Authorities say Jackson pretended to be quarterbacks Ben Roethlisberger and Brian St. Pierre to two women so he could date them. Jackson gave one of the women a signed football and signed Roethlisberger's name on a Steelers jersey owned by the woman's neighbor.

    A judge accepted Jackson's plea deal to a reduced charge because Jackson completed a psychological evaluation and has stayed away from his accusers.
There is no word on whether the plea agreement allowed Jackson to regain any dignity.

 
Racial Discrimination and African-American Quarterbacks in the NFL

Jason Chung, a student at McGill University, has posted an excellent piece on SSRN concerning racial discrimination and African-American Quarterbacks in the NFL. I read the piece yesterday afternoon and it is, hands-down, a must read (it is also only 18 pages, so you can read it pretty quickly). He examines the "myth of equitable integration" in the NFL, as well as the "black quarterback myth" (low on intelligence, high on athleticism) and, by examining the Wonderlic exam (which Rick Karcher recently discussed on Sports Law Blog) Jason does an excellent job in debunking the pernicious idea that race correlates with quarterback characteristics. He uses specific examples to evidence the prejudice (e.g., how African-American quarterbacks, like Tee Martin and Don McPherson, are often encouraged to become "option quarterbacks" since they can use their "athleticism" and not have to worry about "complex" pass defenses), and how some coaches, like Buddy Ryan, should be praised for not engaging in that kind of stereotypical analysis.

Here is the abstract (and like with all SSRN pieces, if you want to download the actual article, you have to go beneath where it says "suggested citation" and then you have several download options from the "SSRN Electronic Paper Collection"):
This article argues that African-American quarterbacks have faced consistent discrimination in the National Football League since Marlin Briscoe broke through the color barrier at the position in 1968. The author identifies the issue of intelligence as central to the discrimination practiced against African-American NFL quarterbacks and identifies two central arguments traditionally used to prove the insufficiency of black intelligence to play the position - the Wonderlic argumentation and the Option argumentation. The author identifies several problems with these arguments. The author concludes by drawing a correlation between the argument used against African-Americans playing quarterback in the NFL and similar discrimination against African-Americans in broader society.
If you want to contact Jason after reading his article, his e-mail address is jason.chung[at]mail.mcgill.ca

 
Harvard Law Bulletin on Peter Carfagna and Negotiation as a Professional Sport

Many thanks to Robb London, Editor of the Harvard Law Bulletin (and Harvard Law School class of 1986), for his mention of Sports Law Blog in his wonderful piece on Peter Carfagna, a 1979 graduate of Harvard Law School and former chief legal officer/general counsel of IMG. (London, "The Natural," Harvard Law Bulletin, Fall 2005). A leading expert on sports negotiation, Peter is now a partner at the Cleveland-based law firm Calfee, Halter & Griswold. The article also notes how Peter owns the Lake County Captains, the Cleveland Indians' single A team, and his interest in sports ownership.

This article is an excellent summary of Peter's career, and also an inspiration to those law students interested in pursuing careers in sports law. Like many in the sports law industry, Peter "got his break" by simply working very hard and writing an outstanding paper in law school (he wrote it for Professor Paul Weiler, arguably the most prominent sports law professor in North America and who both Greg and I also had for sports law, although we took his class a few years after Peter did!).

Here are some excerpts from the piece:
Carfagna has witnessed the transformation of sports negotiation from a fledgling field marked by simple agreements and modest sums into a sophisticated specialty involving highly detailed contracts worth hundreds of millions of dollars, with clauses covering every imaginable contingency.

"When I came out of law school, sports law was mainly just a small part of labor law," Carfagna said. "Now it's an increasingly competitive set of specialties, and it's morphing fast into new areas."

The term "sports law," once a rubric for rather straightforward employment contracts between professional athletes and teams, now encompasses an expanding variety of negotiated agreements. According to Professor Paul Weiler LL.M. '65, who supervised Carfagna's third-year paper in 1979, it covers sports marketing deals, contracts between players' unions and leagues, deals between leagues and television or radio networks for broadcast rights, representation agreements between athletes and agents, endorsement agreements, licensing agreements with makers of sports gear and memorabilia, amateur eligibility rules, antitrust issues, insurance policies spreading the risks of player injuries and other eventualities, franchise relocation agreements and stadium subsidies--in sum, contracts for every aspect of the commerce of sports.

A recent trend, Carfagna says, is an almost obsessive attention now paid to morals clauses in sports contracts, especially in the aftermath of the O.J. Simpson and Kobe Bryant criminal cases. "Morals clauses are now the most heavily negotiated terms," he said. "And the steroid scandal in Major League Baseball is putting even more pressure on sponsors to negotiate escape clauses in contracts with athletes who test positive for illegal performance-enhancing drugs."

Lawyers hash out as much as they can foresee before a contract is finalized, says Michael McCann LL.M. '05, who, together with Greg Skidmore '05, maintains a popular sports law blog, sports-law.blogspot.com. Must an athlete be convicted of a crime before a company will be released from an endorsement contract? If so, must it be a felony? Is a mere allegation or charge sufficient to void a contract? Does a single positive test for steroids give Nike an out? What about gambling, domestic violence, an admitted extramarital affair or anything in an athlete's private life that does reputational harm--will an allegation or admission release a company from continuing to honor a contract?

The Baltimore Orioles recently invoked the morals clause to void the remainder of the contract of pitcher Sidney Ponson after his third arrest for alcohol-related violations. Ponson had one year left to play under a contract that would have paid him $10 million in 2006.

The latest twist in the evolution of morals clauses, said McCann, is the "reverse morals clause," which gives athletes the right to cancel an endorsement deal with a corporation whose reputation is harmed by revelations of corporate malfeasance. Agents have been negotiating such clauses in the wake of Enron and other recent scandals, he says. "I don't know of an athlete invoking a reverse morals clause yet, but it's bound to happen," he added. In addition to running his blog, McCann teaches sports law at Mississippi College School of Law in Jackson.

Carfagna's gravitation to sports law seems to have been natural. After playing football for Harvard College and capping his academic and athletic accomplishments with a Rhodes Scholarship, the self-described "sports nut" attended Harvard Law School just when Weiler was showing that sports law was a subject of serious merit. After graduating, Carfagna practiced law at Jones Day in Cleveland, where he worked frequently on IMG matters. He paid his dues writing up some of the informal understandings that Arnold Palmer had reached with Mark McCormack, IMG's founder. He moved to IMG's legal department in 1994. In 1996, Carfagna found himself drafting Tiger Woods' first representation agreement. Woods, then a junior at Stanford, was trying to decide whether to join the professional golf circuit.

This article also features a well-deserved note of appreciation for Professor Weiler:
The Weiler Effect

Peter Carfagna is just one of many former students of Professor Paul Weiler's who have carved out careers specializing in sports negotiation. Among those who wrote third-year papers under Weiler are Jeffrey Pash '80, general counsel for the National Football League; Rob Manfred '83, head of labor relations for Major League Baseball; and Brian Burke '81, who oversaw labor relations for the National Hockey League before becoming president and general manager of the Vancouver Canucks and now general manager of the Anaheim Mighty Ducks.

Pash, Manfred and Burke are scheduled to return to HLS this spring, as guest lecturers in the law school's Sports and the Law course.
Also, for those interested (and we will post more on this next week) Peter Carfagna, Alan Milstein, Joe Rosen, myself and others will be speaking at the Case Western Reserve School of Law's symposium on Sports and Eligibility, and it will be webcast Friday, November 11, from 8:30 AM to 3:45 PM -- here is the schedule.

Monday, October 24, 2005
 
Wie v. Lebron: Fans Just Want to Watch

Mike's post on the different responses to Michelle Wie and Lebron James turning pro (10/20) has produced a number of excellent comments, which I recommend to you. I have also written on this topic before and argue that it has less to do with Michelle versus Lebron and more to do with NBA versus LPGA (7/26).

    One possibility is that tennis and golf, the "country club" sports, are seen as more respectable than basketball. Fans may be more willing to tolerate younger players in these "dignified" sports that have well-established rules of etiquette (i.e., quiet for the serve and self-penalization in golf). Tuning into SportsCenter, a fan's view of basketball is dunks, show-boating and tattoos.

    Along the same vein, no one has ever done a breakdown of the ages of golfers and tennis players that have been arrested. For the most part, the mug shots of golfers and tennis players do not regularly appear on the nightly news. The better overall image of these sports may cause fans to be more accepting of younger players -- after all, there is far less chance that they will be "corrupted."
For one reason or another, though, the NBA has determined that the league will be more successful if it improves its image. Part of this improvement is the dress code, part is the oft-discussed age limit. Does race play some role in the declining public perception of the NBA? Probably. But other, more important factors, include the fact that many NBA stars, white and black, dress in a manner deemed "thug-like" by a large portion of the NBA fan base. And though high schoolers may not be arrested any more than players that go to college, professional basketball and football players have far more run-ins with the law than their counterparts in tennis, golf and soccer.

Perhaps the most interesting argument, though, is that having younger stars in many sports boosts the popularity of the sport. More people are interested in women's golf because of Wie, and thus, they like the fact that Wie is playing. The same is true for Freddy Adu and soccer or the Williams sisters and tennis. As reader Neel points out, the fans of the NBA do not need such a boost, and thus, they focus more on the problems associated with having younger players and less on the benefits.

Moreover, the popularity of college basketball means that fans of the NBA do not need players to turn pro so that they can watch them play. In fact, many people would have been happier to see Lebron play for Ohio State than for the Cavaliers over the last two years. Sports fans love phenoms, but often prefer to see these players excel in college football or basketball before moving on to the pros.

In contrast, until a phenom in baseball, tennis, or soccer turns pro, it is difficult if not impossible to watch them play. When is the last time you watched a college tennis match? Yes, talented amateurs in tennis and golf (like Wie) will get exemptions and play in some tournaments, but it costs a lot of money to have the best equipment and travel around the country. Amateurs can only afford so much, and thus will be limited in the events that they can play. In other sports, players get no exposure at all until becoming a professional. Thus, fans applaud younger players because they like watching them play.

So in the end, it may be the selfishness of fans that results in a difference of opinion between Wie and Lebron. We want to watch great college basketball, so we hope Lebron goes to college for a few years before turning pro. But we also want to watch Wie, so we support her decision to play as a professional. It is not fair, but it is our right as sports fans. Because after all, being a sports fan is about watching great players do great things.

Friday, October 21, 2005
 
Tony Allen and the Whataburger Incident: The Carrot without the Stick

While playing for Oklahoma State University -- his third college atfer playing for Butler (Kansas) Community College and Wabash Valley (Illinois) Junior College -- Tony Allen was involved in a riot at a Whataburger restaurant in August 2003. The riot involved 300 people and was linked to rival groups from Oklahoma State University and Langston University. Allen and teammate Cheyne Gadson were arrested for obstruction, assault, and resisting an officer. (Mike Baldwin, "Tony Allen Has Turned His Troubled Life Around at OSU," Daily Oklahoman, Mar. 17, 2004, at 1C).

Earlier in his collegiate career, while playing at Butler Community College, Allen admits that he also "got into a little trouble at Butler," but it is unclear what. That "trouble" led Allen to transfer to Wabash Valley Junior College, and after playing a season there, Clemson, Cincinnati, Michigan State, and Kansas all offered him spots on their teams, but he ultimately chose Oklahoma State University. Before his first practice, the incident at the Whataburger occurred.

Here is a report of the Whataburger incident (from Mike Baldwin, "Cowboy Players Involved in Riot," Daily Oklahoman, Aug. 24, 2002):
Two Oklahoma State men's basketball players were among three people who were arrested early Friday morning when Stillwater Police were summoned to break up a riot of more than 300 people at a Whataburger restaurant.

Senior guard Cheyne Gadson, 22, was arrested for obstructing an officer, public intoxication and resisting an officer. Tony Allen, 19, was arrested for obstruction, assault and resisting.

OSU athletic director Harry Birdwell and coach Eddie Sutton declined comment. One OSU official said the incident would be handled within the program.

According to Stillwater Police Chief Norman McNickle, two officers responded to a report around 2:30 a.m. Officers reported the riot apparently started when several people jumped one man and began beating him.

McNickle was quoted in the Stillwater NewsPress that "apparently there had been several fights all evening" at other locations around Stillwater. McNickle said two groups, mostly rivals from OSU and Langston University, ended up at Whataburger, and the fighting continued.
Interestingly, there is no apparent evidence that Allen was disciplined by Oklahoma State Coach Sutton for his arrest; if he was sanctioned, it doesn't appear that the sanction was especially meaningful. This is not surprising, given the extraordinary lenience afforded to Division I college athletes. We discussed that topic back in August (Crime and College Football Players: You Always Get a Second Chance to Make a First Down, 8/4/2005).

Along those lines, one has to wonder about the long-term effect such leniency has on a player if he knows that he will always receive a pass for getting in trouble. That often appears to be the message to a "student"- athlete participating in a Division I basketball or football program. And maybe Allen's arrest yesterday on aggravated battery charges has something to do with that.

To extend that very point, maybe Allen's arrest is further explanation for why those who spent 4 years in college represent a disproportionately high percentage of arrested NBA players, and those who skipped college and went straight from high school to the pros represent a disproportionately low percentage.

And in case you are wondering, yes, Tony Allen spent 4 years in college.

Don't stay in school, kids.

 
Update: Tony Allen Charged with Aggravated Battery

Tony Allen, a second-player on the Boston Celtics, has been arrested and jailed by the Chicago Police Department for aggravated battery in connection to the August 28 melee in a Chicago restaurant. Accompanied by teammate Will Bynum and an entourage of about 15 people, Allen is said to have gotten into a heated verbal confrontation with Marktwain Johnson, a patron in a Chicago restaurant. At some point during the argument, Allen allegedly directed someone in his entourage to "F--- him up," and then shots were fired, with one hitting Johnson in the left arm and another in his torso. A melee then broke out, during which Allen is also alleged to have punched Nigel Odum, a member of Johnsons' entourage, leaving him with a broken eyesocket. Johnson has since filed a civil suit against Allen for battery and the restaurant for negligent security.

On October 3, the Chicago Police Department issued a special law enforcement alert to pick up and detain Allen -- a sign, as we discussed then, that the police were collecting evidence against Allen and that charges were probable.

Aggravated battery is an extremely serious charge. First consider the definition of criminal battery: the intentional and wrongful physical contact with a person without his consent, and that contact is injurious or offensive. Aggravated battery takes it a step further: it is a criminal battery accompanied by circumstances that make it especially eggregious, such as the use of a deadly weapon, or the fact that the victim suffered serious bodily harm, or the fact that the victim was in a vulnerable position. Under Illinois law, aggravated battery is a "Class 3 felony," meaning a conviction can carry a maximum punishment of not less than two years and not more than five years in prision. Since Allen has not (to my knowledge) committed any other crimes in the past, it would seem that a conviction for a first-time offender would likely carry a sentence of at least a year and a half and perhaps two years. [correction: see Tony Allen and the Whataburger Incident: The Carrott without the Stick, 5:32 PM -- but no evidence of any conviction or pleading]

Of course (and it goes without saying), but Allen is presumed innocent, and the burden of proving beyond a reasonable doubt is highly difficult to establish, even in fact patterns that seem obvious (classic example: The People of the State of California v. Orenthal James Simpson). Moreover, given the murkiness of what occurred at 3 AM that morning, a prosecutor may encounter extraordinary difficulty proving that Allen committed a crime beyond a reasonable doubt.

Also, do not discount the possibility that Will Bynum may also face charges, although that is purely speculation at this point. We do not know his role in the incident, although if he engaged in physical contact, he too could face battery -- and like the rest of Allen's
entourage, if the police want to pin Tony Allen with the blame, they could easily threaten the others with crimes unless they agree to testify against Allen.

For reaction from Celtics fans, check out the outstanding Celtics Blog.

Thursday, October 20, 2005
 
Michelle Wie and LeBron James: Why are They Any Different?

My brother Bill alerts me to a piece in the Wall Street Journal on 16-year-old golf prodigy Michelle Wie declaring pro earlier this month, and how she immediately secured a 4-year, $20 million endorsement deal with Nike. (Stephanie Kang, "Michelle Wie Wins a Deal Helping Nike," Wall Street Journal, Oct. 5, 2005, at B1).

I thought it would be interesting to research the reactions to Wie declaring pro and her endorsement deals:
"Michelle Wie has proven she can play with anyone, male or female. So why leave all that money on the table? She's uncommonly mature and will survive any perceived social crisis." Bob Ryan, Quick Shots, Boston Globe, Oct. 9, 2005, at D2

"It's interesting. People don't want to talk about Michelle Wie's golf game. They want to discuss her presence. Graceful and confident, poised and mature." Doug Haller, Million Dollar Baby, Arizona Republic, Oct. 2005, at 1A

"The crowds following her grew that afternoon and they have not gone away. What they saw was a player with a swing of beauty, a person blessed with poise who was comfortable in the spotlight, mature way beyond her years." Peter Dixon, Wie Ready to Make Big Splash Into Paid Ranks, London Times, Oct. 5, 2005, at 84
"When it comes to the precocious Wie, very little that surrounds her is routine." Fred Lewis, Honolulu Advertiser, Oct. 17, 2005, at 1D

"Precocious
pro Michelle Wie would love to qualify for the British Open Championship, . . . " Mixed Response, Perth (Australia) Sunday Times, Oct. 16, 2005

"She's exceptionally mature." B.J. Wie, professor of Transportation at the University of Hawaii and Michelle's dad, quoted by Barker Davis, Wie Goes from Prodigy to Pro, Washington Times, Oct. 6, 2005, at C1
Hmm. It seems that the words "mature" and "precocious" are regularly associated with Wie--a stark contrast to the NBA's "life experience" rationale for imposing an age floor of 19 years of age. So why is Michelle Wie regarded so differently than Kevin Garnett and Lebron James were regarded when they declared for the NBA Draft out of high school? Why does society applaud Wie for her success, but then appears skeptical, even distrustful of premiere high school basketball players--players who are typically two years older than Wie and players who are actually the best behaved group of any group of American NBA players--particularly when they can obtain the same marketing deals that Wie can obtain?

Might society's disparate reaction to Michelle and Lebron have something to do with how it reacts to the following juxtaposition?


Tuesday, October 18, 2005
 
More on Umpires and Judges

While I was away, Robert Schwartz penned an excellent op-ed for the New York Times in which he evaluated the analogy between judges and umpires. As he correctly notes, the job of both an umpire is never just to blindly apply the rules or the law; there is a great deal of interpretation needed for both. The key, as he says, is the approach taken to interpretation.
    Umpires often have no choice but to use discretion. They cannot invoke the infield fly rule unless an infielder can catch the ball "with ordinary effort." And they must call a balk on a pitcher trying to pick off a runner on first if he does not "step directly" towards the base. Umpires spend years learning how to interpret common legislative terms like "ordinary" and "directly."

    So within a certain range, umpires have leeway. But baseball doesn't tolerate an umpire whose judgment is on the fringe. Indeed, the umpire who is overly technical in calling balks, or who sees balks when none occur, is too far outside the mainstream to last.

    Earlier this year, the Supreme Court had to decide whether the juvenile death penalty was "cruel and unusual punishment." The majority and dissents used different methods to decide what those words mean. Both had to justify their methods of interpretation; neither could rely solely on the text of the Eighth Amendment.

    This nuance, however, seems to be lost on many politicians. "What our legal system demands," said Senator Jeff Sessions of Alabama, "is a fair and unbiased umpire, one who calls the game according to the existing rules." Well, yes, but the best umpires are honest enough to acknowledge that they have an approach to umpiring. The myth of the neutral umpire is no more tenable than that of the neutral justice. When the Senate considers Harriet Miers, the philosophy behind her decision-making is what matters, especially since she doesn't have a minor-league record.
(Schwartz, "Like they see 'em," N.Y. Times, 10/06/05). In the past few weeks, both Miers and umpires have come under fire for sending mixed signals. As Schwartz suggests, the best thing for both to do is to be honest and admit they have an approach to umpiring.

Related Posts:
Evaluating Roberts' Analogy of Judges to Umpires (9/14)
More on Roberts and Umpires (9/16)

 
Kevin Garnett, 10 Years and 30,000 Minutes Later

Sam Smith of the Chicago Tribune makes an interesting observation in a piece that muses a Dirk Nowitzki for Kevin Garnett trade:
Kevin Garnett has played almost 30,000 minutes in the NBA, which is the twilight for most great players. He's entering his 11th season.
30,000 minutes is a rather striking figure. And Garnett--who in 1995 became the first high school senior since Bill Willoughy in 1976 to make himself eligible for the NBA Draft--has earned over $200 million in salary and endorsement income during those 30,000 minutes. Still just 29 years old (and he will remain 29 for the entire 2005-06 season), Garnett could easily play another six or seven seasons, and perhaps longer. During that time, he could earn another $100 million.

So did Garnett make the right decision to declare for the 1995 NBA Draft straight out of high school? Aside from his overwhelming monetary gains, which seem to confirm that he made the now-obvious right call, Garnett has proven to be one of the two or three best players in the NBA:
  • Eight-time NBA All-Star
  • 2003-04 NBA MVP
  • Six-time All-NBA
  • Six-time All-Defensive (2000-05)
Garnett has also proven to be a role model for young persons, evidenced in part by his receipt of the NBA Community Assist Award in 2002. And, like the vast majority of his fellow prep-to-pro players, he's stayed out of trouble with the law, unlike many college grads playing in the NBA.

Just for the fun of it, consider some of the rather skeptical comments made of Garnett in 1995:
"First of all, Kevin Garnett is not ready to play in the NBA. He just isn't close. We're going to assume his coach simply hasn't seen enough NBA games, live, up-close. The kid isn't physically ready to play under the basket in the Big Ten, much less against Hakeem Olajuwon and David Robinson. His skill level isn't high enough; he isn't savvy enough." Michael Wilbon, Prep Star Garnett is NBA's Fool Gold, Washington Post, May 28, 1995, at D14

"Is Kevin Garnett ready for it all? Obviously, hell, no. It is such a fragile proposition -- the thought someone could enter the NBA so young, no matter how gifted and tall and extraordinarily athletic, and be better off in the long term. The years after high school are perhaps the most crucial in human development, particularly for a basketball phenom, who should grow socially and scholastically in college while refining raw skills in the gym against peers. In the pros? He grows up in airports and Hyatts, trying to learn the big time during rare practices in a whirlwind season, assuming the team isn't so rotten that skill growth is impossible." Jay Mariotti, Does Garnett Have Any Idea of What He is Getting Into?, Chicago Sun-Times, June 20, 1995, at 87

"If David Stern arranges anything in his commissionership, he will make sure Garnett, Thomas and the expansion Toronto Raptors are joined in the draft Wednesday. This is perhaps the only way a delicate, perilous hoop experiment -- a 19-year-old out of high school joining the manliest league on Earth -- can work without disaster. In the sporting sense, how tragic if Garnett took the big money, wasn't able to mature and went poof in four years." Jay Mariotti, For Garnett to Succeed, Isiah Must Rescue Him, Chicago Sun-Times, June 27, 1995, at 91

"The NBA and its stressed-out coaches are hardly eager to welcome skinny Joe Smith or the unprepared Wallace or preposterous Kevin Garnett, the high school senior who wants to pull a Moses Malone move. Neither their bodies nor their minds are fully developed. Shawn Bradley is costing the 76ers $44 million. Immaturity has damaged the image of Kenny Anderson and Chris Webber. Jason Kidd did fine, but Grant Hill, who graduated from Duke, was the most successful and respected rookie." Linda Robertson, NBA Riches Have a Cost, Austin American-Statesman, May 19, 2005, at C1

"Emotionally, socially, physically, Kevin Garnett will be immature relative to the guys he will be around. In terms of how he relates to fans, how he relates to girls, how he relates to having all that money. There's nothing good about this." University of Utah coach Rick Majerus quoted by Barry Temkin, Garnett to Gain Riches, Lose Youth, Chicago Tribune, June 27, 1995, at N1
For what it's worth, Garnett averaged 28.7 minutes, 10.4 points, and 6.3 rebounds per game in his rookie year, and was one of 10 rookies selected for the two NBA all-rookie teams. In his second season, he averaged 38.9 minutes, 17.0 points, and 8.0 rebounds per game. I guess the doomsday-sayers weren't quite on target.

One guy, though, apparently saw the forest through the trees:
"If Kevin Garnett were only 5-foot-8, pudgy and going to work on a newspaper delivery truck, I doubt if many sports journalists would fret about his future." Mike Royko, The World is Doing Wrong to Worry That a Teen Shouldn’t Be, Buffalo News, June 30, 1995, at 18C
10 years and $200 million later, Garnett is still just 29 years old, and with the second half of his NBA career staring right in front of him.

Hat Tip: Henry Abbot of the award-winning True Hoop

Monday, October 17, 2005
 
Judge Dismisses Moore's Suit Against Bertuzzi

A Colorado state court judge has dismissed Steve Moore's lawsuit against Steve Bertuzzi, advising that the proper venue is likely in Canada. Moore sued Bertuzzi for damages stemming from an incident in a March 2004 game, where Bertuzzi punched Moore from behind and pushed him down into the ice. The hit, which violated the rules of hockey,** caused serious injuries to Moore and he has not played hockey since.

The judge ruled that none of the alleged illegal conduct took place in Colorado. A state law passed in 2004 places fairly severe restrictions on the ability of out-of-state residents to sue in Colorado courts. Moore alleged that the incident began with a game in Colorado, during which Moore hit and injured one of Bertuzzi's teammates, and that the hit on him was planned there, but this was not enough. ("Judge tosses out lawsuit against Bertuzzi for hit," ESPN, 10/13/05; Lindsay, "Judge rules Moore case for Canada," 10/14/05).

Perhaps Moore should try Switzerland. As I have said many times, my belief is that the suit should be thrown out in its entirety, as the incident was "part of the game," despite the awful consequences. For more, see these previous posts:

Hockey Fought the Law
Legal Liability for On-Field Actions, Part1 and Part 2

** I want to be careful not to say "illegal." The hit was undoubtedly "illegal" in terms of hockey law, but it is by no means clear that the hit violated the laws of this or any other country.

Sunday, October 16, 2005
 
Thanks to Rick Karcher

Many thanks to Rick Karcher for guest-blogging in my absence the past two weeks. It seems that there has been some good discussion on a wide range of topics. Hopefully we can all work together to get rid of the BCS and have a play-off for college football.

We plan on having more guest-bloggers in the next few months. If you are interested in being one, email us.

 
My Interview on Tonight's Sporting News Radio Sports Court

I will be a guest on tonight’s Sports Court, a radio program on Sporting News Radio 1510 The Zone AM Boston, and I'll be on from about 8:00 PM to 8:30 PM (EST). We will primarily discuss two topics:

1) My forthcoming article in the Brooklyn Law Review ("It's Not About the Money: The Role of Preferences, Cognitive Biases and Heuristics Among Professional Athletes," 71 Brooklyn Law Review __ (forthcoming, 2006)); and

2) the saga of Eddy Curry, the 22-year old NBA center who was recently traded from the Chicago Bulls to the New York Knicks after he refused to take a Bulls-supervised DNA test pertaining to a possible heart condition (for more, click here. I used to work for Curry's attorney, Alan Milstein).

The radio program can be streamed on-line live at this link. Sports Court is hosted by Attorney David Frank (news editor of Massachusetts Lawyers Weekly) and Attorney Scott Gilefsky. I was interviewed on Sports Court this past summer, and other recent guests include U.S. Rep. Stephen Lynch of Massachusetts, Dr. Charles Steinberg, Executive VP of the Boston Red Sox, and Massachusetts Institute of Technology Professor David Housman. It should be a great show, and I hope you get a chance to listen.


Saturday, October 15, 2005
 
Brooklyn Law Review to Publish My Article

Yesterday I accepted an offer from the Brooklyn Law Review to publish It's Not About the Money: The Role of Preferences, Cognitive Biases and Heuristics Among Professional Athletes in Volume 71 (forthcoming, 2006). I am grateful to all of the law reviews that extended offers, and I am very excited to publish my article in the Brooklyn Law Review, which, over the last year, has published articles written by Professor Jonathan Macey of Yale Law School, Profesor Elizabeth Warren of Harvard Law School, Professor Samuel Hayes of Harvard Business School, and Professor Lawrence Solum of the University of Illinois College of Law (and Legal Theory Blog), among other distinguished authors.

As you can imagine, I'm quite thrilled to be included in this group of authors, particularly in my first year of teaching. I hope you get a chance to download and read my article. I am indebted to my former sports law and sports business professors, Professor Paul Weiler of Harvard Law School and Professor Stephen Greyser of Harvard Business School, for their invaluable advice and inspiration as I wrote the article. The article is still in draft form, and I would welcome any feedback by e-mail (honestly -- it's great to have constructive feedback; that's the only way to make the piece better).

Here is the download icon:






And here is an excerpt from my piece (and this excerpt pertains to Ricky Williams):

Optimism bias likewise provides a useful mode of heuristic analysis by which to gauge decision-making among professional athletes, and how they may not always utilize rational choice. As discussed in Section II, optimism bias reflects the tendency of individuals to assume that general risks do not apply with equal force to themselves. Thus, when contemplating employment opportunities, might professional athletes overestimate the probability of positive outcomes and underestimate the probability of negative outcomes?

Evidence for optimism bias sometimes emerges when professional athletes weigh the relative risk of incentive-laden contracts versus guaranteed contracts, with the former naturally offering greater potential for reward—and loss. For instance, consider the choice of New Orleans Saints’ running back Ricky Williams in 1999 to agree to an eight-year contract worth between $11 million and $68 million, depending upon his capacity to reach certain incentives. At the time, Williams was the fifth overall selection in the 1999 NFL Draft and was negotiating his first NFL contract. As a useful juxtaposition to Williams’ decision-making process, consider that of fellow rookie running back Edgerrin James, who was selected by the Indianapolis Colts with the fourth overall selection and was likewise negotiating his first NFL contract. In striking contrast to Williams’ incentive-laden contract, James agreed to a seven-year contract worth between $44 million and $49 million, with incentives primarily affecting Williams’ potential to void the last year of the contract.

For two players selected at almost the same point in the NFL Draft, the Williams and James contracts appeared of exceptionally disparate values. In fact, performance projections estimated that Williams would earn at least $30 million less than James over the course of the contract. Indeed, for Williams to obtain much of his annual salary, he needed to amass at least 1,600 rushing yards each season, a feat that had only been accomplished by 15 players in the NFL’s 134-year history, and only once by a Saints’ running back in the franchise’s 33-year history. As a result of his apparent “bad gamble,” Williams bore the brunt of considerable ridicule.

In explaining his decision, Williams reasoned that because he believed that he should have been the number one overall selection in the NFL Draft—and thus have warranted a more lucrative contract—the only way for him “to make that kind of money” was to agree to such a heavily-leveraged contract. As to the contract’s seemingly quixotic performance thresholds, Williams appeared undeterred, reasoning that if he performed to his potential, he would readily attain them. Further suggestive of optimism bias, Williams maintained this confidence even after seriously spraining his ankle a week prior to the start of his rookie season. Separately, Williams rationalized the contract by stating that he would use off-field promotional earnings to offset any opportunity costs triggered by unobtainable incentives (without apparently realizing that such off-field earnings would have been available irrespective of contract type).

As predicted by most observers, Williams’ decision proved remarkably unwise. Though he ranked among the top 10 running backs in rushing yards during his first three seasons, he failed to reach most of the onerous performance standards necessary for incentive payment. As a result, he earned far below his market value. This proved most evident in his third season, when despite setting his franchise’s fourth-highest single-season record for rushing yards, and despite being named his team’s “most valuable player,” he earned only $389,000. To put this figure in perspective, consider that thirty-three of his fifty Saints’ teammates earned more that season, or that James—who rushed for fewer yards—earned slightly more than $7 million.

The costly effect of Williams’ optimism bias begs an important question for assessing decision-making among professional athletes: How can player representatives diminish optimism bias and other cognitive biases when their clients seek patently unfavorable terms?

In the case of Williams, a fatal negotiating defect may have existed to prevent such diminishment, as his representative, Percy Miller, had never before represented a professional football player. Indeed, Miller himself appeared the victim of optimism bias, as he dauntlessly assigned the drafting of technical, contractual language to a personal aide who had never before drafted a contract. Nevertheless, more seasoned agents may prove capable in discouraging players from desiring detrimental agreements. In the alternative, and as vividly illustrated by Williams, professional athletes may fail to internalize critical components of the decision-making process, and thus ultimately pursue the non-optimal strategy.


Friday, October 14, 2005
 
The NFL's Wonderlic test proves to be a helpful scouting tool

Each year hundreds of college football players take the NFL's Wonderlic Personnel Test, a 12-minute standardized test with 50 questions designed to measure cognitive ability. The exam is given to college players during private interviews with teams, visits to college campuses or at the annual scouting combine in Indianapolis. The burghsportsguys blog published an interesting article written by Sam Walker of the Wall Street Journal that explains why the NFL gives the exam to prospects as part of its scouting process; the article also provides a summary of the Wonderlic score averages for the NFL's 32 teams based upon average scores of players currently on each team's roster for drafted players who entered the league in the past seven years (The NFL's Smartest Team 9/30).

When you look at a sampling of the types of questions presented on the exam, one has to question its usefulness in scouting a player's ability to catch a ball or knock an opposing player on his can:

1. When rope is selling at $.10 a foot, how many feet can you buy for sixty cents?

2. RESENT and RESERVE -- Do these words: 1) have similar meanings; 2) have contradictory meanings; 3) mean neither the same nor opposite.

However, some teams do in fact place a high priority on Wonderlic exam scores in scouting college players for the draft. Walker highlights the Tampa Bay Buccaneers, which placed 4th among all teams: "[I]f you're wondering why Tampa Bay is second in the NFL in rushing yards, here's a possible explanation: The average test mark for the offensive line is a 30 and for guards a 34, which is four points higher than a typical attorney's score. 'I'm not surprised,' says Buccaneers general manager Bruce Allen. 'I trust my guards more than most attorneys.' "

Walker notes that NFL teams are less interested in raw athleticism than a player's ability to line up correctly and follow the proper dance steps:

If the coach calls "zero type wing ride," for instance, each player has to know instantly what to do, where his teammates will be going and how to adjust to the other team's behavior. In this environment, low test scores can be a sign that a player may be a "repetition guy," who needs to see something over and over before it sinks in. "You need to 'get it' quick," says Mr. Allen of the Buccaneers. "We don't have a lot of patience in the NFL right now." Floyd Reese, the general manager of the Tennessee Titans, says players who score high on Wonderlic are often better suited to carry out his team's complex defense. Over a period of years, he says, the playbook has grown thick with coverages, combinations and alignments, some of which haven't been used in a year. "Woooh, it's thick!" Mr. Reese says. "I don't know if I could memorize it now. Out of college, no way." In general, Mr. Reese says he prefers smart players who might lose the occasional physical battle over gifted athletes who struggle to learn the system and make silly mistakes.

"We've made a religion of it in the last few years," says Rams coach Mike Martz [The Rams scored the highest of all NFL teams]. "So long as he plays at a high level, we'll always choose a guy that is smarter." To make this offense tick, lineman have to master multiple protection "packages" and some receivers have to learn four positions. It's so complex that the Rams don't even have a playbook: Mr. Martz calls it a "system book" instead. "It's like algebra," he says. "Once you learn the equation, you can solve problems." It seems to work. In six years this offense has led the team to two Super Bowls, set an NFL record for total yards in a season and produced three MVP awards.

I can see how the Wonderlic test could be useful to NFL scouts because it measures a player's cognitive ability -- an important tool for any player in any sport. Contrast the NFL's Wonderlic exam with the Athletic Motivation Inventory (AMI) exam given to baseball prospects and provided by the Major League Baseball Scouting Bureau, which, to me, is highly suspect in terms of its usefulness for scouting purposes. It attempts to measure such qualities as leadership or trust solely in athletic terms. The AMI exam poses a series of statements with multiple-choice responses ("always, sometimes, never" or "true, false, in-between"):

I always do exactly what the coach tells me to do.
In athletics one must "either push or be shoved."
I can put up with a conceited fellow athlete fairly well.
During competition it's easy for me to really hate my opponent.
I get tired just thinking about a long, hard practice session.
Athletic competition started just ten years ago.
I enjoy getting into arguments about athletics.


 
Darko Milicic Arrested: A Statistical Anomaly Among NBA Players?

Detroit Pistons forward Darko Milicic was arrested on Wednesday for driving with a suspended license in Michigan. (Stan Donaldson, "Pistons Darko Milicic Arrested for Driving with a Suspended License," Detroit Free Press, 10/13/2005). Milicic's license had been suspended earlier this year for two unpaid traffic tickets. Under Michigan law, a first offense for driving with a suspended license carries a maximum fine of $500 and a maximum sentence of 93 days in jail.

Milicic's arrest initially proves surprising when compared to arrest trends among NBA players. Back in July, my study on arrest propensity among NBA players and age/education revealed that those NBA players least likely to be arrested are international players (with prep-to-pro players the second least likely, and those with college degrees the most likely). Specifically, though 12.2% of all NBA players are international, only 1.2% of arrested NBA players are international. In striking contrast, while 41.1% of all NBA players spent four years in college, a startling 57.1% of arrested NBA players spent four years in college.

So why did Milicic--a native of Serbia-Montenegro--buck the trend? Why isn't he like his well-behaved international brethren?

Perhaps the problem lies in the question. The term "international player" may be unsatisfactorily vague. There are 193 countries on Earth; if a player is from any of 192 of them, then the NBA conveniently classifies him as "international." It stands to reason that there are dramatic sociological and anthropological variances among those 192 countries, and any data generated from the collective behavior of players from those countries may not prove predictive. Along those lines, an NBA player from Serbia-Montenegro may embrace very different values and beliefs than one from Zaire, Brazil, or South Korea. Or maybe he does embrace similar values and beliefs, but only because of similar upbringing or shared faith, and not (perhaps) because of national origin. Who knows? The point is that the phrase "international player" is likely an inaccurate metric for analytical study, and judging Milicic against other "international players" may not be fair or meaningful.

Tuesday, October 11, 2005
 
Were the Texas Rangers Negligent in Failing to Control Kenny Rogers?


My dean, Jim Rosenblatt, alerts me to a recent personal injury lawsuit filed by Larry Rodriguez, a cameraman for Dallas-Fort Worth television station KDFW, against both the Texas Rangers and their pitcher, Kenny Rogers, for civil liability arising from Rogers' attack of Rodriguez on June 29, 2005. Following the attack, Major League Baseball suspended Rogers for 20 games, and he has also been arraigned on misdemeanor assault charges related to the incident.

This case presents an interesting issue in tort law: Did the Texas Rangers have a legal duty to prevent Rogers from attacking the cameraman, particularly when the Rangers might have known of Rogers' unique proclivity for violence (i.e., Rodriguez claims that Rogers had shown previous signs of anger, and the Rangers did not act)? In other words, were the Rangers negligent in their supervision of Rogers? Did they assume the risk by not taking earlier actions to regulate Rogers' behavior, as well as actions to prevent Rogers from close, physical contact with media?

As a general matter, an employer may be liable for the actions of an employee through the principle of vicarious liability, which arises when the negligent actions of an employee are within the scope of his/her employment. Vicarious liability is premised on the notion that employers are in the best position to monitor their employees, and the law should create economic incentives for employers to safeguard against their employees' tortious behavior. For that reason, employers have powerful incentives to conduct employee training, as well as to conduct early intervention should an employee engage in improper behavior -- otherwise, those employers may be held liable, particularly if the "reasonable" employer would have conducted such training or engaged in such intervention. Vicarious liability is also premised on a separate, and far more pragmatic notion: employers typically have "deeper pockets" than their employees, and courts prefer redress for wrongfully injured plaintiffs through economic redistribution (rich company pays off injured person) rather than personal retribution (injured person seeks revenge against poor employee).

As you can imagine, there exists a great deal of debate as to which activities are "within the scope of employment" and which are not. In the case of Rogers, however, his attack occurred during pre-game stretching, an activity which appears almost certainly within the scope of his employment. Therefore, the two key questions are: 1) To what extent were the Rangers aware of Rogers' alleged proclivity for violence, and did they do anything about it?; and 2) Are the Rangers' "standard operating procedures" for employee training and early intervention sufficiently similar to other pro sports teams and particularly baseball teams?

At first glance, the first question does not appear to generate an answer adverse to the Rangers' interests. Granted, in July 2003, Rogers was suspended five games for throwing at Milton Bradley of the Cleveland Indians. But that doesn't prove much; many pitchers have thrown at batters and been suspended, and I don't believe that is evidence of proclivity for violence. Also, back in 1995, Rogers said that he would sit out the season rather than accept a one-year contract offer from the Rangers. Those comments may have damaged his reputation as a "team player," but, again, they prove irrelevant in determining proclivity for violence. If anything, actually, Rogers appears to be well respected by his teammates: In a 2004 interview with the Chicago Tribune concerning which athlete would make a good President of the United States, Rogers' teammate, Jeff Zimmerman, nominated Rogers, saying, "Kenny Rogers is very influential in the clubhouse. I really, really respect what he has to say." (Jimmy Greenfield, "What Major Leaguer Would Make a Good President?," Chi. Trib. 9/24/2005).

There may be one notable exception, however: On June 17, 2005--a mere 12 days before his attack of Larry Rodriguez--Kenny Rogers attacked a water cooler after not pitching well against the Washington Nationals. On the other hand, attacking a water cooler and attacking a human being seem quite distinct, and I'm not sure the Rangers should have perceived his water cooler attack as a forerunner to a human attack.

As to the adequacy of the Rangers' standard operating procedures for ensuring safety, it might prove revealing that in July 2004, Rangers' reliever Frank Francisco threw a chair at a fan, which led to criminal liability -- particularly given its recency, that incident might undercut the Rangers when advocating their player control effectiveness. Then again, there does not appear to be other evidence that casts the Rangers as uniquely bad in their safety training or intervention activity; perhaps the Francisco and Rogers incidents are sufficiently isolated.

We'll continue to monitor Rodriguez v. Rogers & the Texas Rangers.