Sports Law Blog
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Sunday, December 31, 2006
Popularity from Sports to Politics and Back

This Bush-for-Baseball-Commissioner thing is taking me in a bunch of different directions. Not bad for a random thought hatched over Christmas-Day Chinese food with my family.

One commenter questions my suggestion that Bush's unpopularity would not necessarily bother people or cause them to stop watching baseball. He raises a really interesting question about contextual popularity or unpopularity of public figures that is beyond the scope of this forum. But sports links are everywhere, so I thought I would respond:

George W. Bush, the President, is unpopular. Many, many people do not like his policies, his politics, or the manner in which he conducts himself in the Office of the President of the United States. But that does not necessarily translate into a general dislike of George W. Bush, the Person (whom I do not know). It will translate with some people. Many will respond negatively to anything Bush does, especially those who believe he is unintelligent. Many also see Bush not only as following bad policies, but as following illegal (and thus impeachable) policies. The commenter captured the latter point when he used the analogy of the CEO of Enron not becoming beloved as President. The CEO of Enron was unpopular not because he did a bad job as CEO (lots of CEOs do a bad job), but because he did illegal things.

Note, however, that those objections to Bush as commissioner are based on his ability, as opposed to his popularity--the assumption that because he is a bad president, he would be a bad commissioner. Maybe so. But if we focus solely on popularity, I do not know whether or not I would dislike or disagree with Bush's ideas and views in a different context, such as running baseball. Maybe we share a dislike for the wild card, inter-league play, the designated hitter, and the obscenely small strike zone (to cite a few examples). And maybe I would appreciate his frat-boy-charming personality wielded towards ends I like.

The converse of this phenomenon--athletic popularity translating into political popularity--is at the heart of the growing trend of former professional athletes running for public office. The most recent examples were Lynn Swann's unsuccessful run for governor of Pennsylvania and Heath Shuler's successful run for U.S. House of Representatives from North Carolina, as well as Charles Barkley's continued promises/threats to run for governor of Alabama in 2010. All are counting on name recognition, reputation, and popularity built in one context carrying into a different context. Shuler, of course, had to overcome the fact that he was not a very good NFL quarterback.

In any event, we hope the voters will consider the candidate on the merits (on his ability to perform in office) before supporting him and not automatically assume that popularity and likability on the playing field means likability in public office. So why should the reverse not be true--unpopularity (again, distinct from competence) in political office does not automatically mean unpopularity in a sports-related job?

Saturday, December 30, 2006
More on Bush as Commisssioner: Someone is Reading

Jonathan Weiler at Sports Media Review responds to my earlier post about George W. Bush being the next Commissioner of Major League Baseball.

Weiler suggests this will not happen (or at least should not happen) for three reasons:

1) Baseball commissioner no longer can be a celebrity/figurehead position. The big-time-business nature of modern professional sport requires a saavy, hands-on, somewhat visionary, detail-oriented, technocrat/manager, all things we can agree (whatever one's politics) Bush is not.
2) Bush is wildly unpopular and divisive, particularly in the Blue States, so it might be a bad PR move for baseball.
3) Bush was not really a "baseball guy" when he was involved with the Rangers and was not involved in day-to-day baseball operations, so he does not even bring that to the table. Mostly, he was the public face of the team, whose name (Papa was POTUS at the time) carried weight.

All good points that weigh against MLB making such a move. And, as Weiler notes, I was half joking in the original post. But not entirely. So let me respond to each as a way of defending the idea:

1) MLB long functioned in a decentralized (federalist, if you will) system in which the separate league commissioners did much of the day-to-day management and the commissioner sat atop the pyramid as the public face. That no longer is true, a result of one of Selig's innovations to centralize operations and make it more akin to the NFL and NBA set-up. So the role of commissioner is, indeed, different, requiring more of a hands-on manager. But I could envision MLB (although perhaps not the other major professional sports) still going the celebrity/figurehead route. I think it has to do with baseball still being the highest-profile sport, even if the NBA is more popular.

Plus, we have something of that in place now. Selig is the public face of the game (for better or worse). But he delegates a lot of responsibility, and limelight, to his underlings, notably Robert DuPuy and (when he was in the job pre-2005) Sandy Alderson. Certainly we see and hear more of them than of David Stern's deputies (with the exception of punishment chief Stu Jackson, but that is a different problem). Is it conceivable to have Bush as commissioner and an experienced and high-profile baseball exec (say, Theo Epstein?) as President/COO or Chief of Baseball Operations?

2) Yes, Bush is unpopular. But presidents have a way of becoming more popular once they leave office (see, e.g., Nixon, Richard). I would not envision a significant number of people finding Bush so distasteful that they will boycott baseball if he is commissioner. Most fans would even say it is bad form to boo or heckle Bush at a game. In other words, I am not sure his political unpopularity would carry-over into this new role.

3) Yes, Bush is not a hands-on baseball guy. But he is a good politician, something that would help MLB in its dealings with Congress (steroid eruptions, anti-trust rumblings) or with state and local governments (ballpark deals, etc.). As I said in # 1, MLB might believe that such political skill at the head, with a skilled baseball person at the right hand, is a good way to go.

Again, I am or endorsing it. Just suggesting the possibility.

Thursday, December 28, 2006
Ninth Circuit Ruling Isn't Just About Steroids in Baseball

The Ninth Circuit's ruling, as discussed by Howard Wasserman earlier today, has broad implications regarding the ability of the government to seize evidence in all criminal investigations that go beyond just a few baseball players alleged to have taken steroids. While the opinion is 115 pages long, here are some of the pertinent facts taken directly from the opinion:
1. On April 7 and April 8 of 2004, search warrants were issued authorizing the seizure of drug test records and specimens for ten named Balco-connected players. The warrants authorized the search of computer equipment, computer storage devices, and—where an on-site search would be impracticable—seizure of either a copy of all data or the computer equipment itself. “[L]aw enforcement personnel trained in searching and seizing computer data” (designated “computer personnel”) were responsible for choosing the appropriate course of action to capture the electronic data sought. If seizure of all data or equipment was necessary, “appropriately trained personnel” would review the data, retaining the evidence authorized by the warrant and designating the remainder for return.

2. During the search, a CDT director identified a computer directory containing all of the computer files for CDT’s sports drug testing programs. This directory, labeled by its original compiler as the “Tracey” directory, contained numerous subdirectories and hundreds of files. Seeing this, Agent Abboud recommended copying the entire directory for off-site analysis, because of the time and intrusiveness involved in searching the voluminous directory on site. Knowing that the warrant required them to rely upon the advice of a computer analyst—here the advice of Computer Investigative Specialist Agent Joseph Abboud—agents copied the directory and removed the copy for later review at government offices. Before he left the premises, Agent Novitzky reviewed with CDT directors the evidence seized during the search. The documents seized included a twenty-five-page master list of all MLB players tested during the 2003 season and a thirty-four-page list of positive drug testing results for eight of the ten named Balco players, intermingled with positive results for twenty-six other players.

3. On May 5, using information culled from the Tracey directory, the government applied for and obtained new search warrants to seize all specimens and records relating to over one hundred non-Balco players who had tested positive for steroids.

Violations of due process and Fourth Amendment privacy rights get me fired up fairly easily, and this case deals with the latter. Simply, by allowing investigators to use the initial warrant as a basis for gathering gobbs of incriminating information with respect to non-targeted individuals, the investigators, in effect, were able to use a generalized search warrant to obtain evidence without probable cause. The court used the difficulty of retrieving and separating electronic data as an excuse to allow federal investigators full discretion to not only retrieve private and confidential information about thousands of individuals that are not even the subject of the warrant and for which there is no probable cause, but to also determine when there is "intermingling" such that an on-site search would be impracticable. This puts way too much discretion in the hands of federal investigators. Even further, the court didn't place any limitations on the government's use of incriminating evidence obtained with respect to non-targeted individuals.

This decision can't be the right result. What happened to the requirement of "particularized" search warrants? This decision has nothing to do with whether baseball should have a stricter steroid policy or no policy, nor whether all steroid users in baseball should be ousted. This ruling affects every citizen, because virtually all confidential records and information is stored and intermingled in electronic form on computers (hospital records, employment records, etc.). Isn't the more logical and reasonable approach to have a magistrate review and segregate the intermingled electronic data BEFORE allowing the government to seize and review it? --especially in circumstances when the evidence is not in jeopardy of being destroyed. That is the only way to ensure a proper balance between the government's criminal investigatory efforts and the privacy rights of non-targeted individuals.

Federal Government May Review MLB Player Drug Tests

In a lengthy 2-1 opinion in United States v. Comprehensive Drug Testing, Inc., the United States Court of Appeals for the Ninth Circuit held that the federal government could keep and review (under direction and supervision of a Magistrate Judge) records of drug- tests from more than one hundred Major League Baseball players. As part of its BALCO investigation, the government issued grand-jury subpoenas and obtained search warrants for computer files and paper information held by CDT and another company, Quest Diagnostics; both companies had performed drug tests on MLB players in 2003 pursuant to a contract with MLB. The government was looking for (and actually entitled to seize) only information on eleven specific players.

But in the course of the search, agents came across "intermingled" files and documents containing information on many other players who were not believed to have any connection to BALCO, in addition to the eleven targets. Under the majority's holding, the government may be able to retain and use initially non-seizable evidence that was initially mixed-in with seizable evidence. That determination will be left to the Magistrate.

For MLB's purposes, the impact of the ruling is not clear. News outlets are talking about the effect this could have on the investigation into perjury before the grand jury by Barry Bonds, apparently on the assumption that the records may show that Bonds did use steroids prior to giving his testimony. The absence of such evidence to this point may explain why the perjury investigation has not gone anywhere. Prosecutors generally (and properly) are reluctant to pursue perjury charges in a he said/he said situation; non-testimonial evidence that Bonds took performance-enhancing drugs might strengthen the case.

The records also could show just how pervasive steroid use is in baseball. The testing done in 2003 was anonymous and not under threat of penalty and MLB has downplayed what those tests showed.

Finally, since the BALCO grand jury has been famously leaky, there is a good chance that the names of some of these hundred players are going to get out to the public at some point.

Wednesday, December 27, 2006
Sports Prediction for the New Year

A random prediction for the new year: George W. Bush will be the next Commissioner of Major League Baseball.

Current Commissioner Bud Selig announced earlier this month that he will retire when his contract expires at the end of 2009 (although apparently, back in in 2003 he said the same thing about retiring in 2006, so stay tuned). Bush will be out of a job at 12:01 p.m. on January 20, 2009. And he will need something to do, since one cannot imagine him monitoring foreign elections and fighting world health battles.

Baseball commissioner always has been a job that has attracted people from politics and public service. Commissioner A.B. "Happy" Chandler served as Kentucky's Governor and U.S. Senator both before and after his term in baseball. Chief Justice Fred Vinson considered resigning from the Supreme Court to take the job after Chandler's term ended in 1951. Names such as Mario Cuomo and George Mitchell have surfaced in the past as potential candidates. And, of course, Bush used to own the Texas Rangers, so he combines a political background with baseball-insider status, which would make him very appealing to the owners.

And there is the fact that this may be the job Bush wanted all along. Recall that Commissioner Fay Vincent was forced out of the job in 1992 by an owners' vote of no confidence and replaced, on an "interim" basis, by Selig, then owner of the Milwaukee Brewers. This move was the prelude to the owners' hard-line stance in the 1994 players' strike that forced the cancellation of the 1994 World Series and a one-month delay in the start of the 1995 season. And a search for a permanent commissioner went along. According to Vincent's 2002 book, The Last Commissioner, Bush let both Selig and Vincent (who was a friend of Papa and Barbara Bush) of his interest in the job. Selig purportedly told Bush that he was "his man but that it will take some time to work out." At the same time, Bush was considering running for governor of Texas. With the clock ticking (and Vincent suspecting, ultimately not incorrectly, that Selig wanted the job for himself), Bush gave up on the commissioner's job and ran for public office. He won the Texas governorship in 1994 and the rest, as they say, is history.

It would be an interesting turn for Bush to get his dream job--17 years, and many world events, later.

Wednesday, December 20, 2006
Titans Sued for Mascot's Behavior

This story isn't as interesting as Tara Conner, but last Friday, ex-Saints fourth string quarterback Adrian McPherson filed a lawsuit against the Tennessee Titans because their mascot hit him with a golf cart while he was warming up on the sidelines before the second half of an August exhibition game. The short 4-page complaint (actually three because the fourth page contains the signature block), which can be accessed at The Smoking Gun, does not state what his injury was, but does seek $5 million in compensatory damages and $15 million in punitive damages. It's unusual to make a request for relief for that amount of money without even describing the injury. But according to an AP release, McPherson incurred "a deep bruise" in his right knee, and the Saints cut him three weeks after the incident. The complaint, however, spins it a little differently stating that McPherson was forced to miss the remainder of the pre-season, and was ultimately placed on injured reserve which meant he was forced to miss the entire NFL season.

Assuming the person performing as the mascot is an employee of the Titans and not an independent contractor, the Titans would be vicariously liable for personal injury proximately caused by his unreasonable conduct. Driving a golf cart into an opposing team's player warming up on the sidelines is most likely negligent. But McPherson has the burden of proving his damages. What's a knee bruise worth to a fourth string quarterback? Definitely not $5M. McPherson alleges that the injury forced him to miss the entire NFL season. However, the Titans will argue that the reason he missed the season is that he was cut by the Saints as the fourth string QB and would have been cut anyways, not because of the knee bruise. The Titans can also point to the fact that he now plays in the Arena Football League, and no other NFL team was interested after he was cut.

What is unfortunate for the Titans, however, is that damages are typically a question of fact for a jury to decide, especially in this situation because it involves determining McPherson's worth as a player as well as the issue of whether he would have made the Saints' roster if he had not been injured. So unless this mascot is an independent contractor, the court would probably not dismiss it as a matter of law on the liability issue.

My prediction is that the Titans will sit on this case for awhile. If McPherson continues playing in the AFL, it tends to establish that the injury he incurred was not that severe. And if he doesn't ultimately get picked up by an NFL team, it tends to show that he would have been cut by the Saints anyways.

Friday, December 15, 2006
John Rocker and Free Speech (Again)

John Rocker is back. Rocker, remember, is the former reliever who went on an anti-homosexual, anti-immigrant, anti-grunge, anti-unwed-mother, anti-New York, anti-7-Train diatribe in a 1999 Sports Illustrated article. This got him a one-year (later reduced by an arbitrator) suspension from Major League Baseball, made him a pariah among fans, and was the first step in a strangely precipitous decline in his pitching ability that had him out of baseball a few years later. Rocker was the subject of a lengthy interview on, apparently triggered by the correspondent's desire to learn what Rocker thought of the Michael Richards controversy.

The interview shows that Rocker has not changed his mind about many things. He is writing a book containing "more conservative Republican rantings." Muslims are too sensitive and easily offended. He is promoting a campaign called "Speak English." The SI story did not present the correct version of his comments or events and took things out of context. Michael Richards will bounce back and work again, although Rocker was not given such leeway even after he apologized. His girlfriend is Black and two or three of his best friends are Dominican or Puerto Rican. And Jeff Pearlman, the author of the article, is a "liberal Jew from New York" with an agenda. The last point prompted this response from Pearlman on's Page 2.

One problem with trying to develop a framework to discuss athletes' speech is that for every Muhammad Ali, John Carlos, Tommie Smith, Toni Smith (the college basketball player who in 2003 turned her back to the flag during the national anthem as a war protest), or Carlos Delgado, there is a Rocker. The former involve (at least viewed with a modern lens) involves unpopular, but at least arguable political stands that the majority generally recognizes as within the realm of acceptable debate and dissent. The latter made comments that, while political in the broad sense and unquestionably constitutionally protected, run afoul of what society considers acceptable discourse. And MLB and its teams, as entities with their own expressive interests, may want to make clear their objection to the former but not the latter.

But both are within the bounds of constitutional protection and we do not draw legal lines between them in the pure First Amendment context of government action--neither Ali nor Rocker could be subject to legal penalty for his respective expression. So, if we are discussing a framework (albeit not a First Amendment one, obviously) for what professional leagues should or should not do in response to athletes' off-field speech, do we still have to avoid such lines? It follows that, if we believe (as I think most people do, now) MLB should not punish Carlos Delgado for his war protest and Muhammad Ali should not be stripped of his title for refusing military induction on relio/political grounds, it becomes more difficult to justify Rocker's suspension for his comments.

Thursday, December 14, 2006
Leaking Information: National Security and Sports Security

Bobby Chesney, Heidi Kitrosser, Jalk Balkin, and Marty Lederman all blogged recently about a case brewing in the United States District Court for the Southern District of New York involving a federal subpoena issued to the ACLU seeking confiscation of "any and all copies" of secret government documents leaked to the organization. The ACLU this week moved to quash the subpoena. The crux of its argument is that a subpoena to seize all copies of these documents is the functional equivalent of an injunction against publication of the contents of the documents, which generally is prohibited by the First Amendment and the landmark Pentagon Papers case. This is only the latest of many controversies involving federal-government efforts to punish leaks by pursuing and seeking to punish, in various ways, the recipients (often the media) of leaked information.

What's it got to do with baseball (or any other sport for that matter)?

One recent example of such pursuit involves San Francisco Chronicle reporters Mark Fainaru-Wada (a former journalism-school classmate of mine, although I did not know him) and Lance Williams, authors of the 2006 book Game of Shadows. The book reveals, in detail, Barry Bonds' alleged steroid use, based in part on leaked testimony and evidence from the grand jury investigation into BALCO. The book put teeth into the widespread belief that Bonds used steroids to produce his dramatic late-career evolution into the greatest hitter who ever lived (sorry, Teddy Ballgame); may have committed perjury before the grand jury; and may have evaded federal tax laws by not disclosing certain income. Fainaru-Wada and Williams have been sentenced to federal prison for contempt for refusing to reveal the source of the leaked evidence (although they remain free pending appeal).

What is interesting about the Fainaru-Wada/Williams case is the interplay among the myriad ways that the federal government could pursue leaks to the media and the publication of leaked information on one hand, and the First Amendment on the other. And, once again, a free-speech issue plays itself out in a controversy over our beloved sports. (Full Disclosure: I am supervising an FIU College of Law student writing a law review article on this interplay in the Fainaru-Wada/Williams case).

How can government punish a particular leak and, since law works through deterrence, stop leaks in the future? Consider several options and their constitutionality:

1) Enjoin publication of the leaked information. Not allowed under the First Amendment, unless the information to be published concerns specific troop locations and movements or similar information that could immediately threaten lives. Certainly not satisfied in Bonds' case, where the information concerns Bonds' allegedly unlawful/unethical activities.

2) Punish publication after the fact. As I discussed here, Bonds tried this when Game of Shadows was about to be punished. He sought an injunction that the authors and publisher be made to give up any profits on the book, arguing that, because it was based on leaked information, it constituted an unlawful or unfair business practice. The argument failed (properly) because of a key First Amendment principle that one cannot punish (by criminal, civil, or other liability) the publication of truthful information, lawfully obtained, on a matter of public concern. Since nothing prohibits the receipt of leaked grand jury testimony (as opposed to actually leaking it) and cheating in baseball is a matter of public concern, Fainaru-Wada and Williams were protected from such an injunction.

3) Convene a grand jury to investigate the leak, with an eye towards punishing the leaker; subpoena the reporters to testify and reveal the leaker's identity. If the reporter reveals the leaker, the government can prosecute the leaker--and the reporter can forget about ever getting a confidential source to talk again. If instead, as generally will happen, the reporter refuses to reveal the leaker's identity, jail the reporter for contempt of court for refusing to cooperate with the grand jury.

This is, of course, precisely what happened in this case. But the practical effect is the same: Reporters will be extremely reluctant in the future to receive and publish leaked confidential information, even on matters of as great public concern and import as cheating within The National pastime, for fear of having to reveal their sources. And potential sources will be similarly reluctant to leak, despite the public good to be served. The government gets, in a sense, what it wants: No more leaks or at least no more publication of leaks.

The ACLU case now reveals a fourth way. Suppose, in the Game of Shadows case, the government had learned of the leaks to the Chronicle reporters before the book came out, while they still were writing the book. And suppose the government issued to them a similar subpoena, demanding any and all copies of the testimony and evidence from the grand jury. The practical effect would be to freeze Game of Shadows (and any newspaper stories based on the material) in its tracks--just like an injunction against the book.

We shall see how the ACLU subpoena plays out. But, as always, there is a sports link.

Does Baseball Need to Broaden its "Other Activities Clause" to Include the Nintendo Wii?

Out of Detroit today comes the news that star pitcher Joel Zumaya's playoff sputter may have been due to excessively enthusiastic strumming of the Playstation video game "Guitar Hero." According to the Free Press
The Tigers are satisfied they won't see a recurrence of the right wrist and forearm inflammation that sidelined Joel Zumaya for three games of the American League Championship Series.

Why? Club president and general manager Dave Dombrowski told WXYT-AM (1270) on Wednesday the team had concluded Zumaya's injury resulted from playing a video game, not from his powerful throwing motion.
Did Zumaya breach his contract? As readers are aware from our discussion of Ben Roethlisberger's misadventures in motorcycling, sports leagues frequently bar players from engaging in dangerous outside activities. Major League Baseball's provision, however, is more limited than the NFL's. It provides:
The Player agrees that he will not engage in professional boxing or wrestling; and that, except with the written consent of the Club, he will not engage in skiing, auto racing motorcycle racing, sky diving, or in any game or exhibition of football, soccer, professional league basketball, ice hockey or other sport involving a substantial risk of personal injury.
In other words, baseball's clause only involves dangerous "other sport[s]", not other activities. While some Gamers might argue that video games are a sport (if poker is, why not?), that's probably not going to cut it in contract interpretation land.

Should baseball broaden the scope of its clause to include more general dangerous activities? Amidst the news of the rash of injuries caused by the Ninendo Wii, maybe the times call for a video game-injury clause. HT to Fark.

Lamar Hunt: A Sports Law Memorial

With the passing of Lamar Hunt, it seems appropriate to reflect upon some of the great cases and moments in sports law in which he was involved. Some of the more memorable published opinions:

American Football League v. National Football League, 205 F.Supp. 60 (D.Md. 1962), aff'd 323 F.2d 124 (3rd Cir. 1963)
Hunt was the owner of the AFL Dallas Texans; the AFL sued the NFL, claiming "monopolization, attempted monopolization and conspiracy to monopolize major league professional football." According to the court,
Among others who applied for NFL franchises in 1957 and 1958 w[as] Lamar Hunt, of Dallas, . . . [The NFL] suggested [Hunt] try to purchase the Chicago Cardinals and transfer that franchise. [Hunt] conducted unsuccessful negotiations with the [Chicago team's owners]. . . .Hunt, having been rebuffed in his efforts to purchase the Cardinals or obtain a new NFL franchise, began secretly to plan and organize a new league. He was then 27 years old, without experience in professional sports. He surveyed various cities and made tenative overtures to individuals who seemed likely prospects for becoming owners of franchises.
North American Soccer League v. National Football League, 465 F.Supp. 665 (S.D.N.Y. 1979)
The NASL sued the NFL over the NFL's "cross-ownership ban," which prohibited NFL owners from owning other sports franchises. According to the court,
An important element of stability for the NASL has been furnished by individuals or families who own member soccer clubs, and also own NFL football clubs. Perhaps the foremost among these "cross-owners" is Lamar Hunt of Dallas, Texas, a sporting world legend in his own time. Hunt, as owner of the Kansas City Chiefs football team, was in the early 1960's one of the founders of the American Football League, subsequently merged with the NFL. Hunt is now chairman and sole owner of the NFL Kansas City franchise. Hunt also is a part owner of the Chicago Bulls of the National Basketball Association, and the founder of the World Championship Tennis circuit. In 1967 Hunt purchased a Dallas soccer franchise which, in 1968, became the NASL's Dallas club, called the Dallas Tornado. [An] affidavit pays eloquent and, in my judgment convincing, tribute to the past and continuing importance to the struggling NASL of Hunt's presence and participation. . . .

[T]he NFL cross-ownership ban [i]s a source of harm to the NASL sufficiently grave and immediate to satisfy Second Circuit and Clayton Act Standards. Loss of the stabilizing Hunt . . . presence[] would be injurious in itself. . . .

The issues presented are interesting, complex and to a degree novel, such as the NASL's perception of wealthy, sportsminded individuals as components of a market for which rival leagues compete. One suspects that until now Mr. Hunt had thought of himself as a competitor, and not a commodity. . . .

Defendants have submitted an exchange of letters between Lamar Hunt and Pete Rozelle. . . . The correspondence concerns Mr. Hunt's willingness and efforts to comply with the NFL policy resolutions on cross-ownership. Mr. Hunt's letters reveal his concern with being forced into divestiture at a time when there was little or no market for NASL franchises. His perceptions as to investor reaction to the sale of a "Hunt" business are instructive:

"The soccer investment of myself and my children (for which I am obviously responsible) is a Very substantial one unfortunately, at this point more than I expected. Though the picture looks infinitely brighter for the sport, it is still a long way from reaching fruition for the investors and, in fact, at present there is virtually no market for a going club especially one owned by a 'Hunt.' (We have a historically bad record for selling any business for buyers seem to feel that anything we are selling must really be a 'dog.'"
North American Soccer League v. National Football League, 505 F.Supp. 659 (S.D.N.Y. 1980), rev'd 670 F.2d 1249 (2nd Cir. 1982)
The court wrote,
We must visualize individual sports team investors such as Lamar Hunt (NASL Dallas Tornado and NFL Kansas City Chiefs), . . . as the economic equivalents of cellophane, finishes and fabrics, shoes, or protective systems.

Wednesday, December 13, 2006
Did Daisuke Matsuzaka "Overrule" Scott Boras?

The Boston Red Sox have signed Daisuke Matsuzaka, the 26-year-old Japanese pitcher whose agent, Scott Boras, had adamantly contended was worth between $15 million and $20 million a year. During the 30-day-window in which the Sox could negotiate with Matsuzaka, Boras repeatedly threatened that Matsuzaka would return to Japan unless he signed a deal worth in excess of $100 million over six years.

But to the surprise of many baseball experts, Matsuzaka has agreed to a much smaller figure--try a half. The Red Sox will pay him $52 million over six years. Sure, that's still an insane amount of money, but it seems that Boras didn't get anywhere near what he told the world he would get.

So what happened?

It's not yet clear, but I have to imagine that Matsuzaka felt that he could not return to Japan. Not only did his team, the Seibu Lions, bid him an emotional farewell in front of 36,000 fans, but they are apparently in financial troubles and really need the $51 million the Sox agreed to pay if Matsuaka signed. So perhaps returning to Japan was not a realistic option for Matsuzaka if he was not willing to absorb a serious reputational cost. And it's possible that Boras was aware of this all-along, had hoped the Red Sox and the baseball world would think otherwise, but gradually realized that the Red Sox saw through the veil.

It's also possible that Matsuzaka simply overruled Boras. Boras is known for maximizing the financial value of his clients, but he's less well regarded for placing them in situations where they thrive. Earlier this week, ESPN's Buster Olney had this revealing comment about A-Rod's contract with the Rangers:
A few months after Alex Rodriguez signed his $252 million contract with the Texas Rangers, a deal negotiated by Boras, A-Rod was quoted in a New York newspaper as saying that he had really hoped to sign with the Mets. That seemed utterly bizarre, and a little silly: A-Rod had more negotiating leverage than any player in the history of baseball and yet he wound up playing someplace other than where he wanted to play. He could've played for the Mets – maybe not for $252 million, but maybe for $200 million. The difference between his playing for the Mets or not playing for the Mets was a whole lot of numbers on bank statements.
So maybe unlike A-Rod, Matsuzaka told Boras, in essence, "I appreciate you trying to get me as much money as possible, but I'm signing with Boston, even if doing so might make you look bad or somehow tarnish your tough-guy reputation." And if Matsuzaka indeed said something like that, it would serve as an important and appropriate reminder that the client should always call the shots, even if the agent is of the highest profile and greatest influence in the sport. This is a subject that I examine in my Brooklyn Law Review article "It's Not About the Money."

Nepotism and the Andy Roddick Foundation?

American tennis star Andy Roddick, who is ranked 6th on the ATP tour, has a charitable foundation called the Andy Roddick Foundation. It focuses on raising money for programs designed to treat abused children (specifically in the Southeastern Florida and Austin Texas), as well as raising money for programs that combat childhood diseases, childhood illiteracy, and truancy. This past weekend, the Foundation raised $1.4 million at an event in Boca Raton Florida which included a poker tournament Friday at the Seminole Hard Rock Casino and a gala dinner and tennis tourney at Boca's Polo Club.

Sounds like the Foundation is successful at raising money, and lots of it.

But its management, which is comprised of volunteers and is directed by Roddick's mother, Blanche, has come under criticism in the Palm Beach Post for alleged incompetency. The basic contention is that Andy Roddick has unwittingly entrusted his charity to his mom and friends, and they don't know what they are doing:
According to former members, the organization is led by a sometimes-clueless, well-meaning volunteer board that usually yields to Roddick's my-way-or-the-highway mother, Blanche.

"They don't know what they're doing," said Brian Edwards, a Hollywood agent who resigned last year as director of celebrity development. "Blanche is extremely difficult. She and Andy are classless when it comes to dealing with celebrities. Believe me, I'm spreading the word." Edwards said incidents with celebrities over the years culminated in 2005 when two of his clients, whom he declined to name, waited six hours at a California airport for the plane to take them to Boca for the gala. He quit. "I suggested that we send them two gift baskets to apologize," Edwards said. "The total came to $733, but Andy has refused to pay. The bill still had not been paid two months ago. Real stars know. They aren't showing up because Andy and his mom have got delusions of grandeur when it comes to his star power, especially with their attitude."

The list of the personalities advertised for last weekend's event included former Dallas Cowboys star and dancing champ Emmitt Smith, former Detroit Lions star Barry Sanders, dirty celebutante Paris Hilton and New York Yankees slugger Alex Rodriguez. The names of actors Matt Damon and Russell Crowe were whispered in deep background. Who showed up: none of the above.

Those who paid up to $1,000 to play poker with big-deal celebs ended up with Paris' C-list sister, Nicky; the Dolphins' Jason Taylor; popster Mandy Moore; and tennis stars Venus and Serena Williams.

In fairness to the Foundation, the Palm Beach Post story, which perhaps revealingly does not have an author listed, is clearly one-sided against the Foundation and particularly against Blanche Roddick. I'm sure there are two sides to this story, and we only get quotes from people who have an ax to grind. Moreover, back in August, Fort Lauderdale Magazine named the Andy Roddick Foundation the best charity in South Florida. I don't know much about the award or the quality of competitors for it, but it suggests that the Foundation is doing something right.

But as a general issue, should charitable organizations of celebrities use family members to run them? I know nepotism is always a tricky subject, but perhaps it's something that celebrities want to avoid. After-all, Andy Roddick doesn't look particularly good when his foundation doesn't look good.

Then again, the following passage from Karyn R. Vanderwarren, Note: Financial Accountability in Charitable Organizations: Mandating an Audit Committee Function, 77 Chi.-Kent. L. Rev. 963, 966 (2002) might suggest otherwise, as it indicates that charitable organizations often lack the same degree of business/legal sophistication found in the for-profit world:
Charities often recruit nonprofit board members for their fundraising ability or prestige in the community rather than for their ability to lead the organization . . . [they] may lack corporate or legal expertise. Because charitable board members are generally not compensated and may lack expertise, they have little incentive to actively oversee the activities of the charitable organizations they serve.
So maybe the Andy Roddick Foundation's troubles--to extent they are accurately depicted by the media--have more to do with the nature of charitable organizations than anything else. Also, if the Foundation isn't very good, then couldn't contributors simply donate to other foundations--wouldn't the market for charitable contributions respond accordingly?

Tuesday, December 12, 2006
Lawyers in Demand at University Athletic Departments?

Last week at the Street & Smith's Intercollegiate Athletics Forum, when NCAA president Myles Brand and other panelists were asked what they thought would be the most important story to follow in the upcoming year, Brand said "Coaches' contracts," and added that "agents have the upper hand" now and schools may need outside help negotiating these deals. [Jodi Upton, USA Today, Colleges troubled by coaches' rising salaries] Brand told Upton in an interview: "Negotiations have become tougher, and there's a lot of competition for the best coaches. It might make sense for schools to have representation. They use outside counsel on other things."

I've always thought that university athletic departments would be better served by having a full-time attorney in-house to deal with not only coaches contracts, but also with compliance audits, Title IX issues, NCAA rules interpretations, the NCAA enforcement process, and the development of institutional policies and procedures that have all sorts of legal implications (i.e. drug testing, use of Myspace/Facebook, etc.), to name just a few. As a result of the increase in coaches salaries, coaches contracts, correspondingly, have become much more complex with respect to termination rights, liquidated damages (how much one party owes the other upon a breach), and mitigation of damages (whether the compensation under a future contract should reduce the damages owed by the university to the coach).

I agree with Brand when he says that agents have the upper hand in negotiating coaches contracts. One of the great benefits to having an agent when negotiating an employment contract is that the prospective employee, whether it be a player or coach, can play the "good cop, bad cop" role. In other words, the coach or player can say, "I know, but my agent is making some of these demands and I'm not a business person, which is why I hired him." An attorney working on behalf of the university might be able to level the playing field in that respect.

Also, I've always thought that the coach has more bargaining leverage than the university in the contract negotiation process. First, the coach and the university agree "in principle" that he is going to be the new head coach, and it hits the press that same day. Then, after it hits the press, the university and the agent get together over the next few days and hammer out all of the important details of the contract. During these negotiations, it seems that the coach would have a much easier time walking away from the deal than the university would, which gives the coach more leverage. The university is placed in the inviable position of having to explain to students, alumni and boosters that they lost their "prized" coach because they couldn't agree to the terms of the contract. Maybe an in-house lawyer could aid the university in that process at the outset when the agreement is reached "in principle".

As more universities hire counsel, whether in-house or outside, it creates more opportunities for lawyers who want to work in the sports industry.

Monday, December 11, 2006
David Stern Drops New Basketball Crusade

According to ESPN, NBA Commissioner David Stern will announce tomorrow that on January 1, 2007, the league will drop its new "microfiber balls" and bring back the traditional leather ball. The ball has drawn widespread rebuke from players as being uncomfortable and difficult to grasp, and Steve Nash and Jason Kidd even say that it cuts their hands. These complaints over both comfort and safety have reached legal significance, as the NBPA recently filed an unfair labor practice charge with the NLRB to have the ball replaced. That will no longer be necessary as Stern has essentially capitulated.

Skip Oliva over at the Voluntary Trade Blog has an insightful reaction to Stern's decision and the broader implications it may have on Stern and professional sports commissioners in general:
I consider this a “jump the shark” moment for Stern because the seemingly arbitrary decision to change the ball represented the zenith of Stern’s bureaucratic (and some would say autocratic) management policies. The new ball’s failure may signal at least a temporary end to Stern’s increasing centralization of power.

I’ve long complained about the existence of professional sports commissioners, arguing that even the title “commissioner” confers a quasi-governmental authority on what is nominally a business executive’s position. One problem is that commissioners have no equity stake in the organization that they are nominally CEO of—Baseball Commissioner Bud Selig being a quasi-exception, given that he owned the Milwaukee Brewers while serving as “acting commissioner”—and absent this equity, commissioners trend towards bureaucratic management. (See Ludwig Von Mises’s classic work Bureaucracy for a detailed explanation of bureaucratic management.)

Stern is Exhibit A for bureaucratic management. His policies are designed to do little more than consolidate his own power without benefiting the league or its customers. One example is the off-the-court dress code imposed on all players starting in 2005. Another is the arbitrary 19-year-old age requirement designed to keep high school graduates from playing immediately in the NBA. And then there’s the classic example of Stern silencing the NBA’s owners—his own bosses—who dare to criticize the league’s management or officiating in public. As I noted in an earlier post, if a CEO of a publicly-traded company tried to silence his critics, all hell (and the SEC) would break loose.

See also
A Revolution Against David Stern and Creeping Orwellianism? (11/21/2006)
NBA Player Autonomy: How Should We Define It? (11/28/2006)
Update on David Stern and NBA Player Autonomy (11/29/2006)

New Sports Law Scholarship

New this week:
Suzanne Wilhelm, “Is someone riding around a golf course from shot to shot really a golfer?” The Supreme Court determines the essence of the game of golf--and what the decision could mean for learning disabled students in higher education, 32 JOURNAL OF COLLEGE AND UNIVERSITY LAW 579 (2006)

Sunday, December 10, 2006
Scott Boras and the Lack of Good Faith in Matsuzaka-Red Sox Negotiations?

Last month, Rick blogged on the posting system that enabled the Red Sox to obtain the right to exclusively negotiate with Japanese star pitcher Daisuke Matsuzaka. The Red Sox paid the Seibu Lions $51 million for a one-month window to negotiate with the 26-year-old Matsuzaka, who is under contract with the Lions. The window expires this Thursday. If no deal is reached, the Red Sox get their money back, but lose out on perhaps the best Japanese pitcher in recent memory.

And no deal may be the outcome. Matsuzaka is represented by Scott Boras and talks have gone nowhere. The Red Sox are said to be offering $8 million a year, while Boras believes that Matsuzaka's market value--in a market where free agent Jason Marquis, he of the 6.02 ERA and 14-16 record, can land a 3-year, $20 million deal with the budgetless Cubs--is worth at least $15 million and up to $20 million a year. Boras also contends that the Red Sox's $51 million posting payment to the Seibu Lions is not crucial to contract negotiations with his player, since his player isn't receiving any of that money. Boras also notes that the $51 million is not included in the luxury tax figure, and that the Sox would be able to write off some of the $51 million as a marketing cost. It is also thought that Sox would receive a less measurable, but nonetheless meaningful benefit by making in-roads in the Japanese economy and culture.

Today's Boston Herald features an anonymous Red Sox executive (Larry Lucchino?) blasting Scott Boras, even intimating that Boras is not representing the best interests of his client:
Negotiations between the Red Sox and Japanese pitcher Daisuke Matsuzaka have essentially broken down, a source familiar with the talks said late last night, adding that unless there is an abrupt change of course, Matsuzaka will not be signing with the Red Sox before Thursday’s midnight deadline.

Attempts to reach Matsuzaka’s agent, Scott Boras, were unsuccessful last night. However, the well-placed source blamed Boras for stubbornly being unable to get over the flaws in the Japanese posting system, saying that he has been unwilling to negotiate and that he has acted disinterested in even making a deal.
ESPN's Peter Gammons has more damaging commentary from the Sox, with the implication that the Sox believe Boras is not negotiating in good faith:
While Boras remains adamant in asking for close to a Jason Schmidt average annual value, Red Sox officials feel that the superagent prefers to keep Matsuzaka in Japan for two more years, then get $140 million for seven years after 2008.
So is Boras not making a good-faith effort to get Matsuzaka signed? Keep in mind, as noted by Professor Emily Houh in The Doctrine of Good Faith in Contract Law: A (Nearly) Empty Vessel?, 2005 Utah Law Review 1 (2005), the absence of "good-faith" in contract negotiations often does not have legal significance:
Section 205 of the Restatement of Contracts explicitly takes the position that it, "like the Uniform Commercial Code ... , does not deal with good faith in the formation of a contract." Thus, the common law obligation of good faith fails to reach the most troubling forms of contractual bad faith: those that occur during contract negotiation and formation.
But even if the absence of good faith is not legally meaningful, what about the practical implications of Matsuzaka returning to the Seibu Lions--the same team that gave him a farewell event in front of 36,000 fans and that presumably doesn't want to return the $51 million? Can he really go back? Hasn't that bridge already been crossed, if not burned?

Lastly, if Boras fails to reach a deal with the Sox, what might that do to his professional reputation as an agent in Japan? I suspect Matsuzaka might be his last Japanese client for some time if that were to occur.

Having said that, Boras recently placed J.D. Drew with the Sox and is also the representative of Jason Varitek, so he has enjoyed successful negotiations with Sox management, thus supplying some comfort to Sox fans with the Thursday deadline approaching (although don't remind those same fans of another of Boras' clients, some guy named Johnny Damon).

See also
* Boras Almost Steals Another One (9/1/2006)
* Mark Teixeira Blasts Boston Red Sox: Legality of Pre-Draft Negotiations between MLB Teams and Amateur Players (5/23/2006)

Saturday, December 09, 2006
Luminescent Basketball Uniforms Coming to an Arena Near You?

Tom Simonite from New Scientist Magazine has an interesting article on new basketball uniforms being developed that will indicate a player's statistics and other game information through luminescent bars:
The simple, coloured display panels are attached to each vest and connected to a small computer, about the size of an iPod, strapped to each player's body. These computers communicate wirelessly with a central control system, installed at the side of the court, which keeps track of all relevant statistics as the game goes on.

Luminescent bars running up the side of a vest indicate the points scored by each player, while lines on their shoulders show the number of fouls against them. Panels on each player's chest indicate when the game time or shot clock is running low, and panels on their back show which team is winning . . . this gives players greater confidence in their team's tactics, say the researchers involved.

"Team sports uniforms already communicate information visually," like a player's name, says Mitchell Page, who developed the system at the University of Sydney. "We wanted to augment the existing team sports uniform model to communicate more relevant information, such as a player’s stats and performance."
The uniforms--known as TeamAwear--are the creation of Mitchell Page, a University of Sydney student who "came up with the idea while playing computer sports games, which use graphics and icons to tie statistics to the virtual players and track their performance. He wondered how such on-screen graphics in sports telecasts could be made available to players and spectators at the ground."

We know the NBA is always looking for new sources of revenue, so maybe the league will find something here. And players would seemingly benefit by more easily knowing game information, such as how much time is left on the shot clock and the number of timeouts remaining. Other players, particularly those interested in their own statistics (such as one on the verge of getting a triple-double) might also find this information helpful. But I have a feeling Billy Hunter and the Players' Association would have some reservations, including those relating to workplace safety. After-all, what about the risk of electrocution or burns? But Mitchell counters these concerns on his blog when writing, "the risk of harm from electrocution is for all intents and purposes, zero" and players who have tested the uniforms "have reported no electrical shock whatsoever."

In any event, while reading this story, I couldn't help but recall that old NBA Jam videogame, where players would "heat up" both figuratively and literally:

Friday, December 08, 2006
Revenge of the Groupies, 46 years later

The type of story you don't see everyday:

An 81-year-old Texas woman named Ruby Y. Young was arrested last week on federal charges relating to letters she had sent to Hall-of-Fame Packers Quarterback Bart Starr (HT: Deadspin). According to a criminal affidavit, Young sent Starr, now 72, several letters demanding that he pay her $ 2 million or she would go to the media with reports of an "encounter" that they had in 1960.

From Deadspin, one letter reads, in part:

"And now, the time has come for you to pay -- to pay for the many injuries you caused me. ... No I am not a push-over Mr. Starr -- and no, I do not need the money -- but I intend to see that you pay for your wrong doings (sic) to me ...," said the first letter, dated Oct. 30, 2006, which an agent quoted in part in the affidavit. "How much is it worth to preserve this 'image' presented to the public these many years of who and what you are?"

"I am going to be vindicated one way or another," Young's first letter said, according to the affidavit. "You know very well that any and all tabloids, TV news casters (sic) such as ABC, CBS, NBC, would simply devour this story. ... And thereby, I would collect money from these sources. But, I first want to give you the chance to pay me back in dollars rather than exposure."

Among criminal law and free-speech theorists, the rational for the legal prohibition on extortion is something of a mystery. Think about it. Ms. Young had 4 options. She could have:

1) Gone to the press with the details of whatever Starr did to her. Nothing criminal about that. And nothing legally wrong with that if her story is true. If the story is false and she knew it was false when she said it, she might be liable for civil damages for defamation (I think Starr remains a public figure), assuming Starr decided to sue rather than letting the issue go away.

2) Sued Starr for $ 2 million based on whatever improper acts caused her injury. She might lose the suit, either because the claims lack merit and/or because the claims are 46 years old and the statute of limitations has expired (not many civil claims have 50-year limitations periods). And, if the suit is frivolous (i.e., laughably weak and totally lacking any and all merit), she might be subject to sanctions by the court, including having to pay Starr's attorney fees. On the other hand, bringing the lawsuit might have compelled Starr to settle to make the issue go away.

3) Threatened to do # 2 as a way to force a monetary settlement in advance. If done through an attorney and in a non-threatening way, such pre-suit notice and negotiation is actually favored.

4) Sent letters threatening to do # 1 unless Starr gave her what she could seek by doing # 2 (which is what she did).

All four have the same purpose and effect of giving Starr a choice between paying money or having the details of the ancient encounter publicized. But only # 4 is subject to criminal prosecution. And, as the prosecutor in the case noted, that is true regardless of the truth or falsity of Young's story.

The best theoretical arguments talk about the loss of autonomy, of free choice, that extortion inflicts on its victims. But it is an interesting dichotomy for theorists.

Thursday, December 07, 2006
Tom Brady [insert football pun here in place of the word "sues"] Yahoo

First he slammed BCS-championship-game-bound Florida. Now, Tom Brady is suing Yahoo over use of his image without permission, as reported by the Smoking Gun. The core of Brady's lawsuit, according to his complaint:
In September 2006, defendant Yahoo ran a full page color advertisement for its Fantasy Football goods and services in Sports Illustrated featuring Tom Brady's likeness, image and identity without permission or authority. . . . Defendant's unauthorized use of Tom Brady's image, likeness and identity are false and misleading and tend to falsely describe and represent that Defendant's goods and services are licensed, sponsored, endorsed or otherwise authorized by Tom Brady. . . . Defendant's unauthorized use of Tom Brady's likeness, image and identity . . . violate Plaintiff's . . . rights of publicity.
Fantasy sports providers recently earned a victory in the CBC case, as Rick noted here. However, that case involved the use of just names and statistics; here, the use of Brady's image gives the athlete a much better claim. In CBC, the court specifically emphasized that the fantasy provider was not using player images, just their names and statistics. Here, if Brady's allegations are true (i.e., Yahoo did not have a license to use his image), it would seem a fairly open and shut case. Another blunder by already struggling Yahoo?

How Would Reinstituting the Military Draft Affect Sports?

The incoming Chair of the House Ways and Means Committee, U.S. Rep. Charles (Charlie) Rangel (D-NY), has proposed that the United States renew the military draft, which has been suspended since 1973. Rangel sponsors a bill that would require military or civilian service for all American citizens ages 18 to 26. Many nations have similar laws, including Israel, South Korea, and Norway. If Rangel's bill became law, it could have sweeping effects on both college and professional sports.

But why would Rangel--a purple heart, bronze star veteran of the Korean War--support such a bill? Basically, he argues that spreading military obligations more equitably would encourage political leaders and opinion leaders to more carefully deliberate the deployment of troops into combat. After-all, of the 535 members of Congress, only 7 have children in the military who are participating or could be called to participate in the war. I'm not sure if there is similar data on the opinion-leader/think-tank types who championed the Iraq War, but I suspect a similarly small percentage did so with the prospect of personal loss. A more general analysis of the relationship between military recruitment and socio-economic status can be read here, which details how young men from poorer backgrounds are actively recruited, while those from more affluent communities receive much less attention. Rangel also has an op-ed in the New York Daily News which notes that persons of color bear a disproportionate share of protecting the country.

Rangel's proposal also goes to the absence members of Congress with military backgrounds. In fact, according to University of Maine law professor Donald Zillman, only about 30% of Congresspersons have military backgrounds, and only one in 10 of the newly-elected members of Congress served in the military. Back in 1978, about 80% of the members of the House of Representatives had military experience, and in 1985, about 75% of the members of the Senate had that experience. Times have indeed changed, and not many of the people who are entrusted with the decision to authorize wars do so with actual knowledge of what wars are like.

Of course, whatever conceptual appeal Rangel's plan may have, his bill is very unlikely to secure passage. Many influential members of his own party, including incoming chair of the Senate Armed Forces Committee, Senator Carl Levin, oppose it, and fewer than 20% of Americans are supportive. Perhaps most significantly, Rangel's plan will not be on the Democrats' agenda when they re-take control of Congress in January.

But let's say that Rangel's plan gradually gains support in 2007, eventually makes its way for a vote, passes, and President Bush signs it (or vetoes it, but his veto is overridden). Beyond many more important questions, what would happen to sports?

The specifics of the draft or compulsory service obligation would obviously prove crucial, as would the nature, extent, and duration of future American forces in Iraq (and/or other countries). But as a barometer, consider how compulsory military service in World War II substantially affected sports. In fact, 638 NFL players served during the war, as did more than 500 MLB players.

To see one specific effect, take a look at Matthew Algeo's fascinating new book Last Team Standing: How the Steelers and the Eagles - 'The Steagles' - Saved Pro Football During World War II. In it, he writes about how the Philadelphia Eagles and Pittsburgh Steelers, both having lost many players to military obligation, actually merged for the 1943 season and were called "The Steagles." They finished with a 5-4-1 record.

Much has also been written about star MLB players being drafted. Ted Williams, Joe DiMaggio, Hank Goldberg, and Bob Feller were among them. To the right we see a picture of Ted Williams--he of the 20:10 vision--being sworn into the Navy, for whom he would star as a fighter pilot (in both WWII and the Korean War). For some great background on "Wartime Baseball" be sure to check out Gary Bedingield's Baseball in Wartime website and also the Baseball during WWII website.

Another consequence of players being overseas was the rise of women's professional baseball. Between 1943 and 1954, we had the
All-American Girls' Baseball League, which according to historian James A. Percoco, is the only professional baseball league for women in American history. A similarly positive effect was a greater desire for desegregation in sports, particularly after soldiers from all racial/ethnic backgrounds fought together to defeat the Nazis.

The Vietnam War also entailed the drafting of professional athletes. For instance, Juanita Secor writes about Rocky Bleier, "who won four Superbowl rings with the Pittsburgh Steelers and drafted during the Vietnam War in the Army as an infantrymen. After his time in the war, he suffered severe leg injuries but he never lost sight of his passion for the game. He ended playing for 12 years more and was the go to guy for his team."

So what might happen to sports today with a draft? Would the legacy of Pat Tillman voluntarily giving up his NFL career and ultimately his life prove influential? Would the legacy of Muhammad Ali refusing the Vietnam War draft as a conscientious objector also prove influential? You can argue that both were courageous in their own ways, and I suspect their stories would be spotlighted should a draft be reinstituted.

Wednesday, December 06, 2006
Welcome Back: Mutombo, Richards, and Racist Cheering Speech

Good evening and thanks to Mike & Co. for inviting me back for another guest stint. Actually, the stint began a couple days ago, but this is the first chance I have had to post something.

There is nothing going on right this minute that is sports-related that peaks my legal interest. So let me backtrack to two pieces of old news: Michael Richards (no link or explanation necessary) and Dikembe Mutomo's heckler (earlier this year, a heckler in the crowd called Mutombo a monkey, causing Mutombo to almost go into the stands after the man and causing the NBA to ban the fan for the remainder of this season).

What do they have to do with one another? They together relate to the problem of racist taunts and chants at sporting events. In writing about fan speech, I suggested that pretty much all heckling and taunting is fair game, as long as it does not cross-over into the narrow category of "fighting words," meaning direct, targeted, close-up, face-to-face insults. For an example of racial speech, I proferred a protest during Jackie Robinson Day at Shea Stadium, in which White Supremacists chanted about "the good old days" of segregated baseball--an example of pure political speech (however offensive). For examples of heckling, I suggested that fans could call players on anything and everything, related to on-field performance, clubhouse problems, and off-field daliances.

But I did not consider the most-blatant example of racial heckling: a fan in the close rows of a small arena shouting a racist epithet at a particular player. And the Richards and Mutombo situations together suggest that as we move from racial/racist political messages into more directed racist taunts, epithets, and name-calling, the analysis gets skewed.

First, consider that most people thought it was OK for Mutombo to almost go into the stands after the heckler, something that probably would not have been tolerated if the fan had called him a non-racist name (compare the reaction to the Texas Rangers' Frank Francisco throwing a chair at hecklers in 2004). Because the insult was racial, the violent reaction was more acceptable.

Second (and this is a lesson I take from the Michael Richards debacle): Racist taunts are perceived not to target and insult only the individual at whom the insult is directed. Rather, racist insults have been "collectivized." That epithet targets and offends everyone of that racial group. And, to some extent, it offends every fair-minded member of society (regardless of race) who hears it uttered. This means that even a fan in the nosebleed seats who shouts a racist slur at a player far below (something that could not be "fighting words" towards the player under the generally understood definition) might become fighting words for anyone sitting around the fan who hears the word. That is what is potentially different about racial epithets and slurs

I plan to explore the entire scope of expression in sports in a future (hopefully book-length) project. I think the questio of racist speech, in the sense of epithets, may be its own chapter or article.

Rick Karcher Goes to Washington

Rick is travelling to D.C. today to speak before Congress relating to his excellent Sports Law Blog commentary on NFL agent Carl Poston and the proper role of unions in disciplining agents (see Rick's posts from 11/22/2006; 11/16/2006; 9/25/2006; 1/31/2006; also see his law review article Solving Problems in the Player Representation Business: Unions Should be the "Exclusive" Representatives of the Players). Here is an excerpt from a USA Today story on today's hearings:
WASHINGTON (AP) — New York Giants linebacker LaVar Arrington is tentatively scheduled to testify before Congress this week at a hearing involving his former agent.

Arrington, a three-time Pro Bowl player; NFL Players Association general counsel Richard Berthelsen; and a law professor [Rick Karcher] were on a "tentative witness list" e-mailed to The Associated Press on Tuesday by House Judiciary Committee press secretary Terry Shawn.

Arrington did not immediately return a phone message left for him by the AP on Tuesday night.

The Subcommittee on Commercial and Administrative Law has scheduled an oversight hearing for Thursday to examine the NFL Players Association's arbitration process. Lawmakers will be looking into the NFLPA's suspension of Arrington's former agent, Carl Poston, stemming from his handling of a contract the linebacker signed with the Washington Redskins near the end of the 2003 season.

Later today, Rick's statement should be available here. Good luck Rick!

Tuesday, December 05, 2006
Law Schools with Sports Law Profs, 2006-2007

Last spring, I posted a list of law schools with self-identified "Sports Law Professors." Subject to the disclaimers made in that post, here is an updated list (schools new to the list, or with additional faculty members, are indicated in bold):
Akron; Alabama; Arkansas (2 profs); Baltimore; Baylor; Berkeley; Boston College; Boston University; BYU; California Western; UCLA; Capital; Chapman; Cincinnati; Cooley; Connecticut; University of Detroit (2 profs); Duke (2 profs); Florida (2 profs); Florida A & M; Florida Coastal (3 profs); Florida State; Georgia; Georgia State; George Washington; Gonzaga; Harvard; Houston; Idaho; Indiana; Indiana-Indianapolis; Lewis & Clark (2 profs); Loyola – LA; Marquette (3 profs); Miami (2 profs); Michigan; Michigan State (2 profs); Minnesota; Mississippi College; Missouri (2 profs); Missouri-Kansas City; New England; New Mexico; New York University; North Dakota; Nova Southastern; Nebraska; Northeastern; Northern Kentucky (2 profs); Notre Dame; Ohio Northern; Ohio State; Oklahoma; Pepperdine; Penn State-Dickinson; Puerto Rico; Richmond; St. John’s; Saint Louis; Seton Hall; Southern; Southern Illinois; Southwestern; Stanford; Stetson; Suffolk; Syracuse; Temple; Texas; Texas Southern; Texas Tech; Toledo (2 profs); Tulane (2 profs); Tulsa; Valparaiso; Vanderbilt (2 profs); Villanova; Virginia; Wake Forest; Washburn (2 profs); Western New England; West Virginia; Whittier; Widener (2 profs); William & Mary; Willamette (2 profs); Yale
While it's nice to see some new additions to this list, a number of schools appear to have lost their sports law faculty members: Barry, DePaul, Illinois, Maryland, North Carolina, and St. Thomas (MN).

Monday, December 04, 2006
Graduation Gap Bowl

Derrick Jackson of the Boston Globe has compiled his annual Graduation Gap Bowl. It compares the Associated Press Top 25 college football teams with how those teams would rank by the graduation rates of their players:

AP Top 25 College Football

Team (1st-place votes)Record
1. Ohio State (65) 12-0
2. Florida 12-1
3. Michigan 11-1
4. LSU 10-2
5. Louisville 11-1
6. Wisconsin 11-1
7. Oklahoma 11-2
8. USC 10-2
9. Boise State 12-0
10. Auburn 10-2
11. Notre Dame 10-2
12. Arkansas 10-3
13. West Virginia 10-2
14. Virginia Tech 10-2
15. Wake Forest 11-2
16. Rutgers 10-2
17. Tennessee 9-3
18. Texas 9-3
19. BYU 10-2
20. California 9-3
21. Texas A&M 9-3
22. Nebraska 9-4
23. Boston College 9-3
24. Oregon State 9-4
25. TCU 10-2
Others receiving votes: Georgia 57, Georgia Tech 53, Hawaii 25, Houston 21, Penn State 9, Maryland 6, South Florida 6, Navy 4, South Carolina 3, UCLA 2.

Top 25 Graduation Rates

Team Players' graduation %
1. Navy 98
2. Boston College 96
3. Notre Dame 95
4. Wake Forest 93
5. Nebraska 88
6. Florida 80
7. Penn State 80
8. Texas Christian 78
9. Virginia Tech 74
10. Michigan 71
11. South Florida 66
12. Boise State 65
13. Maryland 64
14. South Carolina 64
15. Auburn 63
16. Texas A&M 63
17. West Virginia 63
18. Wisconsin 62
19. Oregon State 60
20. UCLA 59
21. Rutgers 58
22. Tennessee 58
23. Arkansas 55
24. Georgia Tech 55
25. OSU and USC 55
Barely passing graduation rates in the AP rankings: Brigham Young 53, Louisville 53, Oklahoma 52, Houston 51.
Teams that should be dropped from bowls on overall graduation success rates: Hawaii 49, LSU 49, California 44, Georgia 41, Texas 40.

Say what you want about Notre Dame football and its fans, but the team's graduation rate is impressive. As to my friends from the University of Texas, ahh . . .

The Economics of the (Curious) MLB Posting System

Some of the problems associated with baseball's system have been discussed by Rick here, and our friend The Sports Law Professor, here. Now, some of these concerns are confirmed by economist Duane Rockerbie in a new essay posted on SSRN: Peculiarities of the Major Leage Baseball Posting System, which can be downloaded free of charge. The piece contains very little jargon (and no math) and adds texture to the problems associated with the posting system. For example, the author discusses the danger of "foreclosure," under which "one bidder prevents all other bidders from obtaining the rights to negotiate with the Japanese player, even though the winning bidder has no intention of signing the player to a contract." Because Japanese clubs must decide whether or not to accept a bid before learning the identity of the bidder, they are unable to avoid accepting a bid by a club suspected of opportunistic and disingenuous foreclosure bidding. The author describes a possible alternative, the European transfer method for soccer players, but suggests that it would not be an appropriate model for Japanese players moving to MLB because of the relatively few Japanese-MLB transitions each year.

New Sports Law Scholarship

New this week:
Herb Smith II, Comment, More a warning than a victory (Clarett v. Nat’l Football League), 7 FORIDA COASTAL LAW REVIEW 745 (2006)

Saturday, December 02, 2006
Patriots Sue StubHub

Just before Thanksgiving, the New England Patriots sued online ticket reseller, a former season ticket holder and former wait list member and other season ticket holders for reselling their tickets online.

The Complaint alleges that StubHub and the sellers interfere with the Patriots' advantageous relations with its fan base, misappropriate the Patriots' name and violate Massachusetts law. The complaint recites in great detail the various aspects of the team's goodwill. Through its season ticket program, the Patriots reward loyal fans by providing access to games at below market rates. Through the team-facilitated TeamExchange ticket exchange, the team provides season ticket holders and wait list members the ability to purchase tickets at face value plus a transaction cost, from season ticket holders who cannot attend certain games. This also benefits the selling season ticket holders by providing them a way to legally recoup the cost of tickets for games they can't attend.

The team argues that StubHub's online resale activities tarnish its goodwill. By controlling access to the stadium, the team provides a secure, fan-friendly experience. The team voids the season tickets of those who behave in an unacceptable manner. It appears from the complaint that many of those with voided season tickets have resold their voided tickets on StubHub. StubHub buyers then show up at the stadium and are denied access. When irate unknowing buyers are denied entry at the stadium, the team's goodwill is compromised and its resources are expended by having to deal with the defrauded buyers.

Lastly and most obviously, StubHub and the resellers who use its service violate Massachusetts law, which prohibits the resale of tickets by anyone who is not licensed and limits resale price to two dollars above face value plus a transaction cost. The exorbitant pure market prices on StubHub far exceed legal limits. It also represents a source of revenue based directly on the Patriots product, yet the Patriots have no share in it.

The suit seeks money damages and injunctive relief. It will be interesting to see how StubHub and the individual defendants respond. While the Patriots' arguments are strong, there are more violators to be dealt with than StubHub. This may be the first move by the typically aggressive franchise.

The complaint itself is accessible for those with access to the Massachusetts Superior Court's website It is docket number 06-4874 BLS. For those interested, I can email a pdf of the complaint.

My prediction about further action proved true. Sunday's Boston Globe business section features a story about the Patriots rescinding 38 season tickets held by former player Fred Smerlas, who along with radio personality Glen Ordway run, a business featuring access to pre-game tailgates and game tickets. Although Smerlas claims that the tickets are sold at face value within the packages he sells, the team has revoked his tickets for violation of "team policy."