Sports Law Blog
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Tuesday, February 28, 2006
 
Lack of AI? Culture Bias and U.S Olympic Basketball

In a baffling move, Allen Iverson--who is the NBA's 2nd leading scorer and is 8th in assists per game--has been left off the U.S. Olympic team. Iverson had repeatedly expressed a desire to represent his country and to be on the team, which is directed by Jerry Colangelo and coached by Mike Krzyzewski. The team will be announced this Sunday and will include 22 NBA players, 2 college players, and 1 high school player. And no Allen Iverson. I don't care who else is on the team: Iverson should be on it. Just check out his stats from this season and where he ranks in the NBA:

Ranks #2 in Points Per Game(33.0) Ranks #8 in Assists Per Game(7.3)
Ranks #3 in Steals Per Game(2.06) Ranks #1 in Minutes Per Game(43.5)
Ranks #5 in Minutes Played Ranks #3 in Field Goals Made
Ranks #5 in Steals Ranks #2 in Free Throws
Ranks #7 in Efficiency Ranking Ranks #8 in Assists

But perhaps more impressive than his stats is his reputation for being the toughest player in the league. The guy is no taller than 6'0 (and my brother Bill, who is 6'0 and has stood next to Iverson, swears that Iverson isn't taller than 5'11), weighs no more than 185 pounds, and yet he fearlessly drives to the hoop all the time, unafraid of being mauled by guys a foot taller and a 100 pounds heavier. He also plays hurt all the time, and doesn't worry about his contract or suffering further injury. In other words, he plays exactly how coaches tell their players to play. He is a warrior and an inspiration for how the game should be played.

So why then was he left off? Could it be the tattoos? The rap music? The "thug" appearance? Clearly, not selecting Iverson badly undercuts the legitimacy of the selection process. But more importantly, think about the underlying message it sends: it repudiates this "culture of merit"/Horatio Alger society that we like to believe exists in our country, that we tell others exists in our country, and that would presumably be reflected in how we chose our Olympians. Just the opposite, actually, Colangelo and Krzyzewski's decsion seems emblematic of the paternalism epidemic sweeping men's basketball. Hopefully the rest of the world doesn't take notice.

 
Why We Love Sports

Every once in a while, it's important to take a step back and remember why we all love sports in the first place. It's not because we like to see rich players and even-richer owners bickering over millions of dollars. Sports is so much bigger than the pros. It's so much bigger than age limits, salary caps, free agency, steroids and pre-game shows. Sports is about passion, about playing for the love of the game. It's about ordinary people creating extraordinary moments. And that's what makes this story so incredible. Click on the link and watch the video. You will not be disappointed.

Thanks to SportsProf for the link to DaveSez, who had the original post.

UPDATE: I have fixed the link to the video. If it doesn't work, then click here for a number of other videos with the story.

 
The Many Faces of Sports Law: Immigration

Immigration law is not a topic we normally cover on this site, but it can have a profound impact on sports. After 9/11, a number of colleges had difficulty getting return visas for their foreign students, including those recruited to play sports. And for the Olympic Games, where citizenship is key, immigration law can be of the utmost importance. Just ask Ben Agosto and Tanith Belbin, the US ice dancing pair that won the silver medal. One of the first thank yous they delivered was to their lawyers.
    Without that legal team -- led by Barney Skladany of the Washington office of Akin Gump Strauss Hauer & Feld and assisted by Paul Virtue of Washington's Hogan & Hartson -- Agosto and Belbin would have been forced to sit out their second Olympic competition in four years.

    Belbin, a native of Canada, had a citizenship problem. Although she and Agosto had skated for the United States 32 times in national and international competitions, only American citizens can be on the U.S. Olympic team.

    She came to Detroit to train with Agosto in 1999, earned her status as an alien of "extraordinary ability" in November 2000, and received her green card in early 2002. But she faced a five-year residency requirement, which meant she wasn't eligible for citizenship until 2007. She and Agosto needed a miracle by Dec. 31, 2005, to make the U.S. Olympic team.
(Coyle, "Akin Gump Wins Olympic Race with the Clock," Natl. Law Jrnl., 02/28/06). The rest of the article details the process the team used to expedite citizenship, including an assist from Michigan senator Carl Levin.

Monday, February 27, 2006
 
NBA Age Limit and Questioning "Business Reasons"

Last week, Greg posted on David Stern's recent comments about the new NBA age limit. Stern said the new limit was "a business issue" and nothing else. He noted that it would be better for the NBA that amateur players develop in college, and that NBA scouts could better assess their talent while college, and, after playing in college, these players could more immediately make contributions when entering the NBA. To illustrate this point, he cited Celtics rookie Gerald Green, a high schooler taken with the 18th pick in last year's draft who hasn't played much and has bounced back-and-forth between the NBA and NBDL.

In light of Stern's reasons, I found it interesting to read that the 20th player selected in the same draft as Green -- Julius Hodge, a 21-year old college senior from NC State -- has, like Green, barely played this season and, like Green, has bounced back-and-forth between the NBA and NBDL.

So let's apply the Stern 3-Part Test:

1) Did Hodge develop his game in college? Against other college players: yes; against NBA players in games, practice, or summer league: no.

2) Were NBA scouts better able to assess his talent? Apparently not.

3) Did Hodge make an immediate contribution when entering the NBA? He's averaging 1 point per game on 36% shooting--and he's now off to play for the Austin Toros of the NBDL.

So I wonder: maybe it's not about a player's age, but rather others' ability to measure his talent? I mean, why would NBA scouts, with all of the information they had obtained from watching Hodge play college basketball (and at a major program), pick him so high? How come he hasn't made an immediate impact after doing so well in college and for so long in college? Wasn't he great in March Madness? Wasn't he great in the conference tournaments? As Dick Vitale would say, wasn't he awesome baby??!! In fact, Vitale actually did say that.

And if the NBA business model is really enhanced by amateurs playing in college, then how come there have been so many college juniors and seniors who were drafted high but ended up playing poorly in the NBA? Rafael Araujo, Trajan Langdon, Ed O'Bannon, Mateen Cleaves, Kirk Haston, Brandon Armstrong, Dahntay Jones, Marcus Haislip, Reece Gaines, Marcus Banks--this list could go on and on and on. These players were twenty-one, twenty-two years old when they entered the NBA. They had played three or four years of college where they had excelled. They had attracted the interest of NBA scouts who gobbled up all that "college basketball information." Would an arbitrary age floor of 19 or 20 years of age have stopped any of them from being drafted? Nope. Too bad the NBA couldn't create a rule that protects itself from drafting poor players, because that is what it really needs.

The other thing is this: don't automatically nod your head when commissioners, CEOs, and other managers cite "business reasons" as a justification for a move. "Business reasons" does not mean the reasons are correct, intelligent, or even legal--think of all of the companies that have failed in this country: they likewise made "business decisions," but they weren't good ones. And some of them--like MCI WorldCom or Adelphia or the scores of companies that have violated labor and antitrust laws--also made decisions based on "business reasons" that were illegal, even though it took us a while to figure that out. "Business reasons" can also be a purposefully ambiguous phrase that veils other, more socially-nefarious reasons. We sometimes don't pick on up these problems because when a business says that it is doing something to "maximize profits" or for "maximum efficiency," we tend to accept that reason without further inquiry--and businesses know that, so they can get away with a lot of stuff, at least for a while. Sometimes a healthy dose of skepticism toward corporate behavior isn't the worst thing. Businesses are not always right, and they are not always good or law-abiding.

And going back to the NBA Draft, again, despite the popular and appealing rhetoric, it's not about age and it's never been about age; it's about talent, and scouts' ability to assess it. Age is just a proxy, and it appears to be a poor one in the NBA. Any good CEO would tell you that.

Friday, February 24, 2006
 
Brooklyn Law Review Article: It's Not About the Money

I have posted on SSRN an updated version of my forthcoming law review article: It's Not About the Money: The Role of Preferences, Cognitive Biases, and Heuristics Among Professional Athletes, 71 Brooklyn Law Review __ (forthcoming, 2006). The article applies two law and economic approaches to sports contract-making: the rational actor model (i.e., athletes have economic and other employment preferences and pursue them) and behavioral economics (i.e., cognitive errors affect athletes' employment preferences in ways that they do not appreciate). I conclude that behavioral economics in sports contract-making appears far more salient than many presume. I would welcome any comments by e-mail (mmccann[at]mc.edu).

Also, you may download the article for free from the abstract linked above. The download only requires an SSRN account, which is free (and which provides you with access to thousands of interesting articles, papers, and drafts).

Thursday, February 23, 2006
 
Don't Tell Me The Results!

I am a big fan of technology and the Internet age -- the rise of cyberspace has allowed me to publish this blog, makes everyday tasks much easier and provides hours of online procrastination. But the instant gratification, Need to Know Now!! culture that it has spawned is often problematic. The latest example -- the results of the Olympics.

An hour ago, I grew bored at work and decided to check out the New York Times homepage, as I had not read today's issue. What am I greeted with? A banner headline telling me the results of tonight's figure-skating competition. What?? Now that I knew the result, I checked out ESPN -- same thing. CNN/SI -- same thing!! Why do these Internet news sites insist on making it impossible to go through the day without knowing the results of competitions that will be shown that night. Well, I thought, perhaps they are trying to scoop the rival NBC network by taking away the drama from tonight's broadcast. But, when I visited NBCOlympics.com, guess what I found? A banner headline telling me the result! And NBC wonders why its ratings are so low.

Now, I have no problem with news sites featuring stories about the competitions, including the results, posted in real time. Many people want to know, and they should be able to. But a lot of people don't want to know. Should the major news organizations not respect this desire?

It would not be hard for new sites to have a link on the homepage that says, "Dramatic Result in Ladies Figure Skating! Click here for results!" Putting this on the page, rather a banner headline with the result, would allow the sites to maintain the "We are the fastest" bragging rights, while still allowing some fans to watch the broadcast in suspense. It seems to me that part of the responsibility of the news media is not only to satisfy the public's thirst for knowledge, but also to respect the public's desire not to know, at least for six hours.

One news site has it right. ABCnews.com has a link that says "Get the results here first" without spoiling the ending. You can keep up with the day's latest news, and you maintain the option of learning the results of events that will be televised tonight. If they continue this, then I guarantee that during the next Olympics, ABC news will get my business. Other sites won't, until they respect my right not to know.

 
Incidentals Matter: Antitrust Class Action Filed Against NCAA

My thanks to Penn State/Dickinson Law School 2L Bobbi-Sue Doyle-Hazard and Attorney Chris Callanan for alerting me of the media coverage concerning an important federal antitrust lawsuit filed last Friday in the U.S. District Court for the Central District of California. The complaint was filed by several former Division I-A athletes who represent a class of thousands of former and current Division I-A men's football and basketball players. They seek to prohibit the NCAA from precluding member colleges from offering athletic scholarships up to the "full cost of attendance" (meaning all of the actual costs of attending college). Presently, scholarships may cover tuition, room, board and required books but not incidentals, such as phone bills, laundry, school supplies, and travel expenses. Particularly for players from lower-income families, "incidentals" can prove quite costly. In fact, according to the NCAA's own statistics, incidentals for basketball and football players average about $2,500 a year--for families hovering around the poverty line (which, for a family of four, is one that earns just under $19,000 a year), $2,500 obviously means a lot.

In terms of antitrust law, the complaint primarily concerns Section 1 of the Sherman Antitrust Act: the plaintiffs contend that these NCAA rules comprise an unlawful restraint of trade by denying men's basketball and football players of the billions of dollars in revenue they generate for the schools and conferences in which they play. The suit also alleges that this revenue should at least pay for the "full cost" of attending college. This argument follows the observation that Division I-A men's football and basketball seem to provide a economic windfall for just about everyone--the schools, conferences, coaches, sneaker companies, television networks, ad agencies, merchants, videogame companies--everyone, that is, except for the persons who actually generate the market interest: the basketball and football players. This is a topic, among others, that Joe Rosen and I address in our forthcoming essay in the Case Western Reserve Law Review.

How will this case resolve? I suspect we'll see a settlement, along with the NCAA assenting to cover more of the incidentals. The NCAA can't afford to lose this case: the lawsuit applies to 144 colleges, and if back compensation for "full cost" is imposed, around 20,000 affected athletes will receive an estimated $117 million in unreimbursed incidental expenses. Plus, NCAA President Myles Brand has previously enunciated a need to move closer to "full cost," so doing so now--even when threatened by litigation--would not likely appear contradictory.

For two excellent media accounts of this lawsuit, take a look at Mark Alesia's "Lawsuit: NCAA Should Pay 'Full Cost'" in the Indianapolis Star and Doug Lederman's "Court Challenge on Athletic Aid" in Inside Higher Ed. For more reaction from legal scholars, check out Hanno Kaiser at Antitrust Review and Josh Wright at Truth on the Market. And for analysis from a seasoned litigator, check out Tom Kirkendall's post on Houston's Clear Thinkers.

 
Engendering Change in the Olympics

I admit it. I watched Olympic Ice Dancing. Perhaps this makes me less of a man, but there are two things working in my favor. One, I watched it with my wife. Two, I like Tanith Belbin. As I watched it, though, I couldn't help but thinking -- are we far off from seeing a male couple out on the ice?

The Olympics, like most sports, are divided by gender. And often they are divided according to traditional gender roles and stereotypes. Ice Dancing is one man and one woman. Synchronized swimming is female-only. Ski jumping is restricted to men. Softball is restricted to women. But as gender roles and ideas of sexuality change over time, how will this affect the composition of Olympic sports?

Bill Mays knows that change will not come overnight. Mays made history in 1996 when he became the first male to compete in the US national championships of synchronized swimming. He also competed with his partner, a female, in future national championships and the 1998 Goodwill Games. His attempt to compete in the 2004 Olympics in Athens was denied, however, when swimming's international governing body (FINA) did not petition for mixed duet synchronized swimming to become a sport.

Why, though, should there have to be a mixed event? Is there some reason why men cannot compete against women in this sport? I can find no gender requirement in FINA's rules for synchronized swimming. And it does not seem that a male would have any great advantage over a female in a sport that values artistry as much as strength. Besides some possible teasing about competing in a "woman's sport," what harm is there if males compete?

The same is true for ice dancing. Is it inconceivable to see an all-male or all-female dancing pair? For now, the answer is yes. Rule 500(2)(b) of the International Skating Union rules state that a pair shall be comprised of one man and one woman. But is this rule based on anything other than tradition or views of what is "normal"? A pair of men would not seem to have a great advantage in ice dancing, which features footwork, artistry and some lifts, but no jumps. It might seem a little odd at first to see two men in sequin jumpsuits dancing in tandem to 'Bolero', but so did Billy Jean King defeating Bobby Riggs.

As traditional notions of gender and sexuality break down, will sports evolve to reflect changing attitudes? Or, is it possible that sports will lead the world into these changes, much like Jesse Owens and Jackie Robinson paved the way for greater racial equality in this country? Change may be slow in coming, but don't be surprised if you see a man swimming in sync or two men dancing on the ice in the not-too-distant future. And after a while, such an idea might not seem odd at all.

Tuesday, February 21, 2006
 
Mental Illness and Leadership Positions

Benedict Carey of the New York Times has a fascinating piece on the apparent prevalence of mental illness among U.S. presidents. (Carey, "West Wing Blues: It's Lonely at the Top," N.Y. Times, 2/14/2006). According to a new study by the Duke University Department of Psychiatry, almost half of American presidents from 1789 to 1974 suffered from a mental illness at some point in life, and more than half of those presidents struggled with their symptoms — most often depression — while in office. According to the study, their illness was typically evidenced by excessive consumption of alcohol. Yet the study identifies a hopeful slant that works to combat the common stigma of mental illness: if people with mental illness can function at the presidential level, then perhaps we shouldn't so summarily dismiss or ostracize those with mental illness.

But reading this piece made me wonder about whether we might find a similar trend among coaches, and particularly among pro coaches or college coaches in high-pressure/high-profile situations. Just speculation on my part, but I suspect that coaches and presidents may share some of the same personality traits -- high ambition, tireless work ethic, an exaggerated sense of self-critique -- so it seems at least plausible that they might share in a hyper-tendency to suffer mental illness. It would certainly make for an interesting study, if such a study hasn't already been conducted. Moreover, if we found evidence that coaches were similar to presidents in suffering from mental illness, then think about the powerful social message that would send about how we should regard the employment capabilities of the mentally ill. And lastly, I wonder: might there be something endemic about "leadership positions" that attracts certain personalities, and do those personalities share the same positive and negative traits regardless of the type of leadership position they hold?

Monday, February 20, 2006
 
Stadium Security: Necessary or Invasive?

Chris Graham of the Augusta Free Press has an extensive piece on the legal implications of new techniques in stadium security. The article also addresses a recent preliminary injunction imposed by a state judge in Florida prohibiting officials at Raymond James Stadium -- home of the Tampa Bay Buccaneers -- from conducting searches (the case is now being heard in federal court). (Graham, "At What Price Security?," Augusta Free Press, 2/20/2006). I was interviewed for the story. Last October, Greg wrote an outstanding post on this topic and the constitutional implications of pat-downs and other searches.

Here are some excerpts from Graham's story: (I debate the issue with a lawyer at the ACLU):
"I think since 9/11 we've become more tolerant of intrusions on our property and person - that we recognize that times have changed, and that we have to give up some of our personal freedoms to ensure security," said Michael McCann, a professor at the Mississippi College School of Law and a regular contributor to The Sports Law Blog.

That has generally been the case in sports venues across the country in the aftermath of the Sept. 11, 2001, terrorist attacks. But there has been something of a blowback that has gotten going in recent months - with suits filed against stadium authorities in Tampa Bay and San Francisco related to patdown searches of fans attending NFL games in those two cities.

"The immediate legal issue is our Fourth Amendment right to be free from unreasonable searches and seizures," said Rebecca Steele, the director of the ACLU of Florida's Tampa office, which is acting on behalf of a Tampa Bay Buccaneers' season-ticket holder to challenge the patdown-search policy at Raymond James Stadium.

"The law is really pretty clear - that a suspicionless patdown search is presumed unconstitutional unless certain exceptions exist. What we said, and the court agreed, is that those exceptions just don't exist here," Steele told The Augusta Free Press . . .

McCann, for his part, agrees with Steele that "there's a limit that we don't want to cross where it gets too invasive."

"But I think there's a general consensus that times have changed, and we've been more fortunate than anything else that we've only had 9/11," McCann told the AFP.

"Sporting events, perhaps more than any other venue, would appear to be a prime target for a terrorist strike. And one terrorist strike in a stadium could change everything - be it a bomb, be it any type of attack," McCann said.

"The fact that we haven't had that type of event is a tribute to the security," McCann said.

Does stadium security go too far? Is it unnecessary? Does it deter? Is it really about teams not wanting to be sued later? And if God-forbid a terrorist group struck at a sporting event, how would that change the world of sports? Would people still go to games?

Saturday, February 18, 2006
 
Wouldn't You Have to Be Drunk to Wear This?

Now that Mike has convinced me never to buy food at a fast-food joint (2/18) or ballgame (2/11) again, perhaps something a bit more irreverent is in store. As it turns out, you can be "drunk as a stump," but you shouldn't drink when you're a tree:
    The Stanford Tree has been felled for bad behavior.

    Fifth-year senior Erin Lashnits, who dressed as the rowdy mascot for the university's irreverent band, lost her Tree privileges Thursday after her blood-alcohol content was measured at 0.157 at a basketball game against Cal. That's not only too drunk to legally drive but too high to be a responsible Tree.

    To avoid possible disciplinary problems with the school's athletic department or administration, the band decided to give her the ax.
If Lashnits becomes a lawyer, she will almost certainly have to include this incident on her bar application. That should make for an interesting explanation...

 
Hold the Blood, Please: More Concerns for Food Security

We all complain that food at ballgames costs too much. A fairly disgusting hot dog can run up to seven bucks, and clearly-microwaved nachos can cost three or four dollars. So some of us try to get around those prices by bringing in our own food.

We now learn that there might be another good reason to do so, at least if we assume that what I call "food security" is of similarly low-levels at ballparks and fast food restaurants:
A woman who said she found blood smeared inside her bag of french fries is suing McDonald's Corp. for at least $10,000. Lora Davis, 42, said she was eating the last several french fries that came with her Happy Meal when she noticed the blood.

"At first, I felt disbelief," she said. "Then fear." Davis bought the meal at the drive-through window of a Gastonia, N.C., McDonald's on Nov. 26, 2004, and ate it at her office desk.

When she found the blood, she said, she called the fast-food restaurant and spoke with an apologetic assistant manager. The person later called back and said the blood came from an employee who had suffered a cut. A regional manager later told Davis the unidentified employee had been fired.

An attorney for Davis said attempts to reach an out-of-court settlement have been fruitless so far. A McDonald's official declined to comment Wednesday on Davis' case because her legal claim is active.

Davis said she continues to have her blood tested, though she has not suffered any illness. She said she stopped eating out for six or seven months. "I get sick when I think about it," she said.

Why a 42-year old woman would order a Happy Meal is another matter, however. Any bets on whether she's also a Harry Potter fan?

Friday, February 17, 2006
 
Jim O'Brien v. Ohio State University: Materiality, Honesty & Breach of Contract

Doug Lederman of Inside Higher Education explores Judge Joseph T. Clark's holding in O'Brien v. Ohio State University (Ohio Court of Claims, 2006). (Lederman, "Court Win a Rule Breaker," Inside Higher Education, 2/16/2006). The case concerns a breach of contract claim: O'Brien alleges that Ohio State breached his employment contract by firing him after learning of O'Brien's past NCAA recruiting violations. Specifically, back in 1998, O'Brien gave (or, in his words, "loaned") $6,000 to Alex Radojevic, a 21-year old, 7'3 center from Serbia and Montenegro, in order to help pay for Radojevic's father's funeral. O'Brien never bothered to report this "loan"--which, unsurprisingly, was never repaid, even though Radojevic was selected 12th overall in the 1999 NBA Draft, after which he immediately signed a multi-million dollar contract with the Raptors. O'Brien felt that it wasn't important enough to mention, since he was doing it out of charity, and that he suspected that the NCAA would rule Radojevic ineligible anyway, since Radojevic had likely earned income playing basketball in Europe. And that is exactly what happened: the NCAA would later rule Radojevic ineligible because he had earned income playing hoops in Europe.

But when O'Brien told his athletic director about the loan six years later, he was fired. O'Brien sued the school for $9.5 million in lost wages and other damages, contending that Ohio State couldn't discharge him until the NCAA had ruled on the violation. Although Judge Clark held that O'Brien did, in fact, violate NCAA rules, that violation--giving $6,000 to a potential recruit--wasn't sufficiently serious to warrant his dismissal. O'Brien's contract with Ohio State did not specify that an NCAA violation could trigger a termination of the contract, and absent that specific language, Judge Clark reasoned that Ohio State could not terminate it. A future hearing will determine how much Ohio State owes O'Brien in damages.

Duke Law Professor Paul Haagen and I were interviewed for Lederman's article:
Experts on college sports law had mixed assessments of potential impact of the Ohio State decision.

Michael McCann, an assistant professor of law at Mississippi College School of Law and a contributor to Sports Law Blog, characterized as “interesting” Clark’s conclusion that a “clear NCAA violation by Jim O’Brien” does not constitute a material breach of his employment contract. He added: “By implication, the judge seems to be diminishing the importance of NCAA recruiting rules, and the idea that a rule violation should not constitute a material breach could — in theory — create deleterious incentives for coaches when recruiting players.”

Paul T. Haagen, a professor of law at Duke University, took a narrower view, saying the case in no way “goes to the authority of the NCAA to regulate or of the authority of Ohio State to regulate” college sports or the behavior of coaches. “This is not judicial activism,” he added. “This is what judges are supposed to do — using basic contract law to decide whether” Ohio State followed the contract it had with O’Brien. ("Whether the judge got it right from a factual standpoint,” he said, “is a different matter,” on which he did not offer a judgment.) But the lesson for Ohio State and other colleges, he said, is that “institutions should be incredibly careful about putting themselves in a position in which a judge, doing what a judge is supposed to do, will hold them liable for things they believe with good reason — whether or not it’s sufficient reason — that they need to do.”

Should we really believe O'Brien when he says that the $6,000 gift to a potential recruit wasn't important enough to mention to his employer? Or that he actually thought that Radojevic was going to be ruled ineligible by the NCAA, but that he still wanted to give him $6,000 anyway? Maybe O'Brien was genuinely moved by Radojevic's plight--his father had just died, after-all, and the family apparently had little money. Plus, Radojevic was 21-years old and not 17-years old, so a suspicion that he had earned compensation playing hoops in Europe wasn't implausible. But even if we believe that O'Brien knew all of this, it still doesn't explain why he would keep the "loan" a secret for six-years or why his charity would just happen to go to a 7'3 center (there is no apparent evidence that O'Brien was otherwise charitable). As to the significance of the employment contract's lack of specificity, you can expect, as Paul Haagen notes, that we'll now be seeing more carefully-tailored deals between colleges and coaches.

Thursday, February 16, 2006
 
Renegotiation of NFL Contracts: Comparing Chad Pennington and Terrell Owens

Rick Karcher brings up a good point about the Jets efforts to renegotiate Chad Pennington's contract:
When I read this story, I couldn't help but think about the irony between the Jets-Pennington situation and the Eagles-Owens situation, which really highlights the impact of non-guaranteed contracts in the NFL.
Rick is right. And think about: while Terrell Owens was widely lambasted as greedy and selfish when he sought to renegotiate his contract last year-- "If he is so unhappy with this contract then why did he sign it?", the Jets are somehow seen as rational economic actors who deserve our understanding. Why are we more comfortable when a team seeks to lower a contract value than when a player seeks to do the very opposite? Aren't they fundamentally doing the same thing: looking out for their best economic interests? Or is it just about TO?

 
David Stern on the Age Limit

I really like Bill Simmons. His story is the dream of many bloggers -- start a website doing something you love, then get hired by a major company to do that same thing (only for a paycheck!). And now, in addition to columns on sports movies and gambling, he has begun doing some very interesting interviews. This week, he has one with David Stern. The chat covers a wide range of topics, including conspiracy theories ("the frozen envelope") and the WNBA ("It's probably the last and best shot for a successful women's professional sports league.").

But the most interesting segment (in my opinion) was Stern's take on the age limit. In a nutshell, the NBA went for it because it is good for business:
    This was not a social program, this was a business issue. There was a serious sense that this was hurting our game. Having an 18-year-old player not playing, sitting on the bench, is not good for basketball. If we could have these kids develop for another year, either (A) they'd see that they weren't so good, and we'd see that they weren't so good, or (B) they would get better, and when they came, they would be able to make a contribution. And that would improve the status of basketball.

    ****

    . . . [P]eople were killing us for it, they were saying, "Oh, the basketball's terrible because the players are too young, they don't have the requisite skills, they don't have this, they don't have that." Actually, some do, some don't, a year later they're going to be better, [plus] the opportunity to send them down, like a Gerald Green, to get minutes so the team could say, "You know what, he looked good. He got his rhythm back, he got his confidence back, he got to play a few minutes." That was the whole idea. This last collective bargaining agreement was about basketball and about player reputation. It wasn't about the money."
Granted, Stern's argument does not address the potential antitrust problems of the age limit (I think- 5/25/04, as does Prof. Gary Roberts - 4/7/05, that there is not a concern; Mike thinks there is - 2/7/06).

But it does respond to Mike's excellent points regarding whether -- as a matter of policy -- leagues should have age floors. It is true that age limits will harm the interests of certain players (i.e., Frank Gore and Randy Livingston), but at the end of the day, if the NBA as a whole is not healthy, all of the players will suffer. Stern has a duty to maximize not only the growth and revenue of the NBA, but the popularity of basketball as a whole. By doing so, he ensures that hundreds more young men -- economically disadvantaged and otherwise -- will have an opportunity to make millions of dollars playing a game they love.

Wednesday, February 15, 2006
 
From the Land of Mike Dukakis to the Land of Trent Lott . . .

If you are in Massachusetts or Mississippi (my two favorite states!), you are in luck tomorrow, as there are two excellent events open to the general public:

1) At Harvard Law School, former Yankees pitcher Jim Bouton will present on the topic of "Saving Our National Pastime: Baseball, Labor and the Politics of Stadium Construction." The event is being hosted by the Labor and Worklife Program at Harvard Law School, and will take place from 4:00 to 6:00 p.m. in Langdell Hall North. Last fall, Bouton published Foul Ball: My Life and Hard Times to Save an Old Ballpark. It should make for a very interesting discussion. For more information, please contact Jason Anastasopoulos of Harvard Law School.

2) At Mississippi College School of Law, Professor Todd Zywicki of George Mason University School of Law (and of the excellent Volokh Conspiracy) and I will have a discussion on the topic of "Obesity in America: The State's Right to Pass Laws Requiring the Restaurant Industry to Provide Nutritional Information to Consumers." The event is being hosted by the Federalist Society, and it will take place from 11:30 a.m. to 12:30 PM in Room 151.

Todd and I have separate law review articles on-point:

Todd J. Zywicki, Debra Holt, and Maureen K. Ohlhausen, Obesity and Advertising Policy, 12 GEORGE MASON LAW REVIEW 979 (2004)

Michael A. McCann, Economic Efficiency and Consumer Choice Theory in Nutritional Labeling, 2004 WISCONSIN LAW REVIEW 1161 (2004)

Tuesday, February 14, 2006
 
Michelle Kwan and the Risks of Marketing Olympians

Darren Rovell of ESPN has an engaging feature on how Coca-Cola and Visa have largely centered their Olympic advertising campaigns around figure skater Michelle Kwan, who withdrew from the Olympics a few days ago. (Rovell, "There Will be Some Awkward Moments for Coke, Visa," ESPN.com, 2/13/2006). Coca-Cola is especially affected by her decision, as aside from featuring her in several television advertisements (which will still be run in prominent time slots), Kwan's image is all over Coca-Cola's in-store promotions. Rovell describes the risk of marketing Olympic athletes:
The problem with marketing Olympians is that they come out of nowhere, and by the time they win a gold medal, they are forgotten, absorbed by the NBA playoffs or a horse making a run at the Triple Crown. With that in mind, it's easy to see why Kwan was the best marketing bet of the Olympics. People know her, she has that golden smile, and over the course of her career she has upheld a squeaky clean reputation.
Although I agree that it's a tad embarrassing to center an ad campaign around an Olympian who unexpectedly drops out before the games begin, I suspect Michelle Kwan may have received more attention--and far more favorable press--by dropping out than had she competed and not placed among the medal winners. And the same might true even if she had won the bronze or the silver. When she announced her decision to withdraw from the Olympics, it seemed as if she was on the cover of every sports page, the lead story on every television sports news show, and the most visible headline on every major sports website, and at least of the coverage that I actually read, she was portrayed in almost superhuman/ultra-courageous terms, similar to how we regard national heroes from centuries ago. In fact, the coverage was so overwhelming that I suspect some readers, and especially those interested in the Olympics, may have been wondering: What about all the other Olympians? Why are we focused on the one Olympian who isn't competing?

So maybe this will work out for Coca-Cola and Visa after-all. Certainly, Michele Kwan may be the most famous and admired U.S. Olympian who has never won a gold medal, and that would seem like a pretty good person to center an ad campaign around. Really, does anyone not like her? Talk about winning by losing!

Monday, February 13, 2006
 
Jury Sides with Angels in Name-Change Dispute

A jury has decided that the Angels did not violate their lease agreement with the city of Anaheim when they adopted the moniker "Los Angeles Angels of Anaheim." The deliberations seemed to turn on the meaning of the five-word requirement in the contract that the team name "include the name Anaheim therein." The nine jurors that voted in the team's favor said the language is clear on its face and not violated by the team's actions. A few jurors said that if the city wanted to ensure that Anaheim was the only locale in the team name, the contract should have said so. (Yoshino & McKibben, "Anaheim Strikes Out Against Angels," LA Times, 02/10/06; Goffard, "Key Word is 'Include' for Angel-Anaheim Jury," LA Times, 02/10/06; Law Blog, 02/10/06).

As the jury has spoken, the chance of a successful appeal seems remote. Certainly, the city's lawyers wish they could go back and put in the specific language. And I didn't hear the evidence presented, so perhaps that language was proposed and rejected during the negotiations. However, it seems that the Angels at the very least violated the spirit of the bargain -- in the environment in which the lease was negotiated, team names included one geographic location and one nickname. The city clearly wanted the team name to include Anaheim so that its constant mention would bring additional attention to the city. Under the current name, the team is known as "LA," not "Anaheim." The long name may satisfy the letter of the contract, but should contracts be read this literally?

Saturday, February 11, 2006
 
Hold the Spit, Please: Food and Beverage Security at Sporting Events

Ever go to a ballgame and buy a beverage, and then watch the server pour your drink while his/her back is turned? You probably don't have much to worry about--it's unlikely the server would do anything malicious, especially since most people aren't crazy, and in the unlikely event that particular server might be crazy, he/she is in your plain view.

But think about when you order something at a fast food restaurant, and particularly when you go through a drive-thru--and you have no idea what the server might be doing. Do you ever wonder what's going on, especially when it seems like they are taking a little bit too long and there aren't many customers around?

If you have these thoughts and share them with others, most would say that you are just being paranoid. But I suspect those persons don't live in Barnstable, Massachusetts, and I strongly suspect they haven't been to the Dunkin Donuts in Barnstable. Here's why: two employees of that fine establishment have been arrested for spitting in customers' coffee who ordered through the drive-through. There are also allegations that they urinated in customers' coffee. Their modus operandi was to add their own blend of seasoning and then shake-up the coffee so as to visually obscure the added substance. Both employees have been fired, but of greater concern, they face felony charges for distributing food intended or expected to cause injury. According to Chapter 270, Section 8A of the General Laws of Massachusetts (M.G.L), they face up to five years in prison.

Regardless of their punishment (and, absent a past criminal record, I suspect they don't spend a day in prison), let's hope they don't wind up working at Fenway Park or TD Banknorth Garden. It's bad enough that we need to remind employees to wash their own hands; now we need to remind them to not spit in customers' food. But maybe there's a rainbow at the end of this gleak-shower, at least for most sports fans: When you go to ballgames and sit in the cheap seats, you have to order food from vendors and concessionaires who are usually in your line of sight, whereas when you order menu food from those luxury box seats . . . you just never really know how that food is going to be "prepared"!

Friday, February 10, 2006
 
Kenyon Martin: Putting His Criminal Justice Degree to Work?

In May 2000, Kenyon Martin graduated from the University of Cincinnati with a Bachelor of Science degree in criminal justice. A month later, he was selected by the New Jersey Nets as the number one overall pick in the 2000 NBA Draft. According to the website for the University's Department of Criminal Justice, Martin studied the following while advancing in his degree program:
The four year Criminal Justice baccalaureate program is designed to provide students with an understanding of the criminal justice process, its agencies, personnel and historical foundations. The program emphasizes the key components of the criminal justice system: police, corrections, juvenile justice and judicial systems. The Bachelor of Science in Criminal Justice, which includes both classroom and field experience, prepares graduates for entry level positions in law enforcement, the courts, corrections and the juvenile justice system.
Among the classes Martin may have enrolled in were Crime Prevention (18 CJ 407), Managing Conflict and Assaulative Behavior (18 CJ 274), and Life-Course Criminology (18 CJ 404).

Unfortunately, however, "anger management" and "the drawbacks of vigilante justice" were not apparently offered, as in this past Wednesday's Nuggets home game against the Bulls, Martin is said to have ordered a "friend" to confront a heckling fan. Martin did not play in the game due to a knee injury. Here is what apparently happened:

During the third-quarter, a fan sitting two rows behind Martin yelled at him, "Suit up, you chump." All accounts indicate that the fan did not use any profanities. At that point, Martin is said to have stood up, pointed at the heckler, and then motioned to one of his friends to go confront the heckling fan. His friend then stood up and yelled at the heckler, "Shut your mouth before we take you outside and beat [you up]." He also apparently screamed at a Nuggets fan named Don Miller--who, along with his teenage son, happened to be sitting next to the heckler--calling him a "fat (expletive) white boy."

The rest of the story becomes unclear, but apparently more heated words were exchanged, and Martin's friend began to approach the heckler in a threatening manner before being restrained. Another report posits that, after the game, Martin and two friends sought out both the heckler and Miller in order to "shut them up":
"Kenyon Martin walks back out of the locker room, and he's with a guy in a Yankees hat and another guy, and he says, 'Ya'll just need to shut up.' He says, 'This guy called me a punk,' pointing to the [heckler]," Don Miller, an eye-witness, said.

"I say, 'Mr. Martin, he didn't call you a punk, he called you a chump.' He said, 'You, shut up.' "

No violence occurred, but fans sitting near-by were worried that violence was about to erupt. The NBA is investigating the incident and, as of tonight, no police report has been filed. If any of this true, you can be sure that Kenyon Martin is looking at an enormous suspension, and, less likely, criminal assault charges and civil liability for assault.

But what has Kenyon Martin had to say about the incident? Well . . .
"I know the person, but I didn't direct nobody to go into the stands. I was watching the game."
Hmm. "I didn't direct nobody." Aside from a less than convincing defense--he acknowledges knowing the guy who verbally assaulted the fan--Martin's "commentary" seems to suggest that English 101 wasn't an integral part of his criminal justice curriculum.

Gotta love that college degree for premier basketball players. They really are so much better off, aren't they?

Thursday, February 09, 2006
 
Defending the NBA Dress Code

I have been an outspoken critic of the new NBA Dress code, and will even be publishing a law review article on it (and a few other issues). But I'd like to post an well-reasoned opposing view. My good friend Lindsey McDaniel is a high school basketball coach in Georgia, and here is his take:
The new NBA dress code was needed yesterday. We have gone from the images of a well-dressed Michael Jordan in his Armani suits to the images of guys who have slaughtered the "moral dress code." Players such as Allen Iverson with his "Do-rags" and baggy clothes gives the impression to the younger generation that poor attire is socially acceptable. It isn't, and they are worse off thinking that it is.

I say all this as an African-American male. I just think there is a time and place for this type of appearance, such as when you are off the clock. Besides, the NBA is a business, and just because you make millions of dollars playing a child's game doesn't mean that you can circumvent the rules, especially when someone else is paying your salary--and that person makes a lot more money than you.

Also remember, the dress code for the NBA is just like a dress code for any other company or business, and if you want to remain a part of an organization, then you must follow the rules. It's as simple as that. If you reflect back to 1996, when Allen Iverson was a sophomore at Georgetown University (and, by coincidence, a classmate of Michael McCann). He was wondering if he would be drafted and at what point in the draft would he be selected. During this time, he would have DONE anything to guarantee a shot at the NBA. So, hypothetically, if David Stern had approached him and said, "Allen, we can guarantee you a great contract with the Philadelphia Sixers, and it will pay you guaranteed millions of dollars for several years, but please read the bottom line of the contract before you sign, as it states: 'You must agree to this dress code policy for the duration of your career.'" I bet the house that.Iverson would have signed that contract before Stern got the last word out of his mouth. Not once would he have said,"Man I don't know, because I like to be comfortable." So at that point it was either the Sixers in the NBA or working from 9 - 6 at the local grocery store. Do you have any doubt as to what he would have done?

So for all these big-time, 7-digit salary NBA players who have become "comfortable," and feel that they are above the rules, I ask you to do this: think back to the days when you would have done
anything to play in the NBA. Think back to your first training camp when you were a rookie and you actually respected the NBA for giving you an opportunity to play against the best basketball players in the world and for an enormous amount of money. And then think about all those guys who are on the outside looking in, and how they are saying, "man, if all they want me to do is wear a suit and look respectful for their organization, and they are going to pay me millions of dollars to play the sport I love, I would do that in a heart beat." I ask you to think about those guys, just for a moment, before the next time you complain about "being comfortable." You might just re-think what you are about to say.

It's time to look at the NBA as an organization that can set it's own rules, rather than focusing on a bunch of individuals . . . who's only concern and care is about being "comfortable."

Lindsey McDaniel

Wednesday, February 08, 2006
 
NBA Dress Code Discussion Continues

Trey Popp of the Philadelphia City Beat has a story on the recent symposium at the University of Pennsylvania School of Law on the NBA and its collective-bargaining with NBA players. (Popp, "Dress Blues," Philadelphia City Beat, Feb. 2-8, 2006).

I am pleased that at least one person thought that I was well-dressed at the syompsium:
A pair of well-dressed, high-profile lawyers came to Philadelphia to take Iverson's argument a step further at a Penn symposium on sports law.

Michael McCann, an assistant professor at the Mississippi College School of Law, maintained that off-court threads aren't really the main issue. "There is an apparent pattern among NBA officials suggesting that they want to transfer autonomy from players to the league," he said. Owners have clamped down on certain hip-hop symbols in an effort to court increasingly conservative sponsors and appeal to a broader audience. Yet when the league isn't targeting Iverson's hip-hop generation for dress-code discipline, they've been exploiting it to line its pockets. The league's officially licensed video games are a case in point, McCann contends. NBA Ballers advertises itself as a peek into the "'bling-bling' lifestyle of NBA superstars," complete with "chromed-out cars" and "tatts." NBA 2K6 goes further, featuring rap artists like Method Man and ?uestlove as playable characters.

Alan Milstein observed that the league's attempt to impose conformity off the court was offensive. "When Allen sees little boys in bling-bling trying to look like him, he doesn't think he's corrupting them . . . he thinks it's great that the game can lead people to embrace other cultures."

For related information, please see:

Michael A. McCann & Joseph S. Rosen, Legality of Age Restrictions in the NBA and the NFL, 56 Case Western Reserve Law Review __ (forthcoming, 2006).

Michael A. McCann, The Reckless Pursuit of Dominion: A Situational Analysis of the NBA and Diminishing Player Autonomy, 8 University of Pennsylvania Journal of Labor and Employment Law __ (forthcoming, 2006).

A Webcast of My talk at Duke Law School (and subsequent critique by Duke Law Professors Paul Haagen and Barak Richman) on high school players and the NBA Draft (February 6, 2006).

Tuesday, February 07, 2006
 
When Sports and Law Don't Mix -- Judge Apologizes for Super Bowl Cheer

Prior to sentencing the defendant in a manslaughter case last week, a Washington state court judge decided to show her support for the home team:
    As Judge Beverly G. Grant took the bench Friday, she asked everyone in court to say "Go Seahawks." Dissatisfied with the low volume of the response, she told them to try again.

    Only then did she hear statements from prosecutors, defense lawyers and relatives of the slain Tino Patricelli, as well as an apology from defendant Steve Keo Teang, before resentencing Teang to 13 1/2 years in prison.
(AP). Apparently, not everyone (including the victim's family, who were in the courtroom) appreciated the little cheer. Today, Judge Grant apologized.

No word on whether she will lead any "We Were Robbed!" cheers this week. Seems like it would be especially appropriate for a B&E case.

 
Essay on Legality of NBA and NFL Age Limits in Case Western Reserve Law Review

Boston sports agent (and Boston College Law adjunct professor of sports and entertainment law) Joe Rosen and I have just posted on the Social Science Research Network our essay Legality of Age Restrictions in the NBA and the NFL, 56 Case Western Reserve Law Review __ (forthcoming, 2006). At the conclusion of the essay is a transcript of our panel discussion from last fall's symposium at the Case School of Law on Age Eligibility and Pro Sports. The panel also included Alan Milstein. We had a lively discussion, and it is worth checking out.

Here is an abstract from our essay:
This essay examines age eligibility rules in the National Football League (“NFL”) and the National Basketball Association (“NBA”), offers analysis of related antitrust and labor law issues, and shares perspective on underlying policies. As a matter of background, the NFL and the NBA are the only major sports organizations that prohibit players from entrance until a prescribed period after high school graduation. Major League Baseball, the National Hockey League, NASCAR, professional tennis, professional golf, and professional boxing have no such rules. Individuals can also partake in professional acting, theater, music, and other entertainment professions without satisfying a period after high school graduation. The same is true of those who enlist in the U.S. armed forces and in various occupations that require maturity and discipline. Such an employment landscape raises inquiry as to why NFL and NBA teams, unlike so many other employers, would agree to boycott any candidate, regardless of talent or skill, until a prescribed period after high school graduation. This inquiry enjoys heightened interest when considering that NFL and NBA teams are incomparable employers, as players may not play in other leagues for similar compensation.
We hope you take a look and download our essay. You need an SSRN account to download it, but such an account is free, and I strongly recommend you get one, as it provides you with access to thousands of academic papers and publications.

Monday, February 06, 2006
 
Not being Randy Livingston: The Jonathan Bender Story

At the young age of 25, Indiana Pacers forward Jonathan Bender has decided to retire from NBA due to chronic knee problems. Bender has suffered knee problems since before entering the NBA out of high school in 1999 (he selected 5th overall in the 1999 NBA Draft). It is thought that his knee problems stem a growth spurt while he was a teenager, as it moved his knee out of alignment and also caused slippage of the hamstring. The problem gradually worsened over his 7-year NBA career, during which time he played in only 271 regular season and playoff games.

Obviously, this is a sad story. Bender may have had the talent to become an NBA star, but because of chronic knee problems, we'll never know. This story has special meaning to me, as Bender is from Mississippi, where I'm a law professor and where many of my students are from.

But there is another way of looking at this story: by skipping college, Bender attracted the interest of NBA teams before his chronic knee problems became apparent to NBA scouts. As a result, he was able embark on a 7-year NBA career, during which time he earned (according to my calculations) about $29.5 million. Had he matriculated to Mississippi State, and watched his knee problems worsen there, he would have certainly had a shorter NBA career, and he may have never had an NBA career. In other words, had he taken the "safe" route and attended college, he may have never earned a dollar playing basketball, let alone $29.5 million. And yet now, if he wants, he can attend Mississippi State and take all of the courses he wants--and be able to focus on those courses rather than on basketball (something which would have been impossible had he matriculated to Mississippi State in 1999). And of course, if he does go back to school, he'll also having millions of dollars in hand (kind of like the Olson Twins at NYU).

Bender's story is quite dissimilar from that of Randy Livingston, who, as some of you may remember, was the nation's top high school player in 1993. Had he declared for the 1993 NBA Draft, Livingston would have been a sure lottery pick. Now, to be fair, 1993 was PKG ("Pre-Kevin-Garnett"), meaning for Livingston to declare would have likely been perceived as more "risky" than if it had been a few years later, particularly since he was a guard and since the last player to do so was Bill Willoughby in 1975. But Livingston thought seriously about declaring. And then he decided to take the safe route and attend Louisiana State University, where the Louisiana-native would play before his family and friends.

Unfortunately, before his first practice at LSU, Livingston tore the anterior cruciate ligament in his right knee, a serious injury that would require reconstructive knee surgery. He would never be the same, and his knee problems would linger. But even worse, had Livingston suffered the exact same injury while playing for an NBA team, he would have still received a guaranteed contract worth millions of dollars. Livingston would eventually play in the NBA, but as a journeyman, bouncing from 10-day contract to 10-day contract. Indeed, most of his pro career has been spent in the minors, earning minor-league salaries.

As disappointing a time as this must be for Jonathan Bender, I suspect a part of him is grateful that he jumped to the NBA in 1999. In just seven years, he has earned far more money than 99.99999% of the population will ever earn, and other than a knee not good enough to play pro basketball, he's in good health. And back in Picayune, Mississippi, I suspect Mrs. Bender and the rest of the Bender family are grateful as well.

But I wonder what thoughts crossed Randy Livingston's mind when he saw that Jonathan Bender retired? We'll never know, but I suspect it was something along the lines of, "Take it from me: It's not that bad being Jonathan Bender."

 
Thanks To Our Guests

We would like to take a moment to thank all of our guest bloggers. Over the past three months, we have featured authors who represent a range of backgrounds and professions. The blog has certainly benefited from all of the well-written posts and innovative topics. We appreciate all of the time and effort contributed by the guests.

It's back to just the two of us for the time being, but more guests will be appearing soon.

And, as always, a big thank you to everyone for reading and commenting. The conversations in the comments are often insightful and are truly the best part of the blog.

--Greg and Mike

Sunday, February 05, 2006
 
Tip of the E-Iceberg?

The New York Times is reporting that America Online and Yahoo will begin giving preferential treatment to the email messages of companies that pay 1/4 cent per message sent. (Hansell, "Postage Is Due for Companies Sending E-Mail," NY Times, 02/05/06). The preferential treatment includes being delivered straight to the recipient's Inbox, without having to pass through the gauntlet of spam filters that often divert legitimate messages.

The Internet was founded on a neutrality principle -- every packet of data treated identically and able to be read by any other system on the network. As the Net becomes bigger and bigger business, this principle has been harder to realize.

Are we heading towards an Internet where paid-for emails arrive instantaneously, but free emails take a few hours? Where you can only send attachments if you pay a small fee? Where certain individuals can pay to have their information/data routed more quickly? This certainly would violate the original spirit of the Internet, but in a world filled with spam, viruses, and truly, a great deal of junk on the web, is creating some form of market such a bad idea?

 
Super Bowl Thoughts

I thought this year's Super Bowl was an average game overall, with a few big moments. But can someone tell me what was going on with Seattle's play-calling at the end of the halves? They had two weeks to prepare -- was that not enough to practice a hurry up offense? Perhaps they were too busy posing with the Super Bowl trophy and practicing saying "I'm going to Disney World!"

My vote for best commercial -- the guys in the apartment worshiping the "Magic Fridge." The worst? Jay Mohr as the agent for Diet Pepsi.

UPDATE: You can watch all of the commercials here.

Saturday, February 04, 2006
 
Super Bowl XL and Stadium Security

With about 24 hours to go before Super Bowl XL, let's briefly consider a topic that probably won't generate much fanfare: stadium security, and how well American pro sports leagues have ensured fan safety.

This topic comes to mind after reading how earlier this morning, 73 Filipinos were trampled to death in a Manila stadium, as thousands were trying to enter a popular TV show where prizes are awarded to audience members. Most of those trampled were elderly women. It is unclear why the stampede started. One report, now apparently dismissed, is that a person yelled "bomb"; another report, also in doubt, suggests that a railing collapsed, precipitating mass panic. Regardless of cause, there was apparently mass panic in the Manila stadium, prompting a spontaneous stampede, and security was not able to prevent it or suppress it before 73 people died and 353 were injured.

I suspect we should be grateful that these mass tragedies don't happen in our professional sporting or entertainment venues, in spite of the tens of thousands of people typically attending them and the persistent threat of mass panic inducible by so many things. Perhaps we have been more fortunate than good, but I suspect it also reflects how seriously teams and leagues take security. Take the Detroit "melee" last year--and do notice how so many observers described it as a "melee" even though no one died or was seriously hurt: it was clearly terrible, avoidable, and embarrassing and yet there were no deaths, no serious injuries, no stampedes. Really, after seeing what happened in the Phillipines today, we might be able to look at the Detroit "melee" and think: security did a good job.

Let's hope we continue to be so fortunate (or good, or both).

Related Post: Greg, Pat Downs at Sports Arenas: Necessary Precaution or Unconstitutional Search?, 10/26/2006

Friday, February 03, 2006
 
Reciprocal Bootlegging???

Damon Jones, back up point guard for the Cleveland Cavaliers, signed a sneaker deal with China's largest sportswear manufacturer. The shoes will only be available for purchase in China.

First, let me say that Damon Jones obviously has the best agent in all of sports. Jones is a marginal player who made a ton of three pointers last night strictly because he was playing on the perimeter while Shaquille O'neal drew Jones' defender inside and the rotation concentrated on Dwyane Wade. His agent parlayed that performance into several summer appearances on TV, a new longterm contract with the Cavaliers, and now the first American player to have a Chinese shoe contract. Wow!!! If I ever go back on the law teaching market, I want that guy to negotiate for me.

Second, I wonder if American merchants who've been lobbying Congress to do more to stop Chinese counterfeiting of American goods will ask Congress for an exemption from our own counterfeiting law so they can sell cheap versions of Jones' sneaker on New York's Canal St? After Jones' performance the first half of this season, I'm not sure a dealer could even get a bootleg price for them.

"Bobo's, they cost a $1.99...."

Andre Smith

 
113 Points

Adrian Wojnarowski has an excellent column on the absurdity, and bad sportsmanship, of allowing a high school player to score 113 points on a clearly inferior team. As he points out, the reason given for allowing the outburst -- that the player was "bored," is ridiculous and exactly the opposite of what high school coaches should be teaching.
    "We play the schedule we're dealt and some of those teams are weak," Bergtraum High School coach Ed Grezinsky told the New York Post. "But I didn't think I should punish Epiphanny for that."

    Punish her?

    It isn't punishment to teach a great young basketball talent that the games aren't played to keep her interested, that the rules of sportsmanship and manners aren't eliminated for the sheer reason that she could score every time she touched the ball. So, the coach let her go on a night when she was determined to chase Kobe Bryant's 81 points and ended up passing Wilt Chamberlain's 100 with room to spare.
With 'role models' like this out there, is it any wonder that many superstar young athletes believe that the world revolves around them? I recommend the whole article.

Thursday, February 02, 2006
 
Players Unions Need to Fix the Agent Business

In the Sports Law Blog comments this week, Anonymous mentioned the temporary restraining order that IMG received this week to prevent a former IMG employee from soliciting IMG clients to leave the agency for his newly-formed sports marketing business. Two days ago, I posted a story about the NFLPA's pursuit of agent David Dunn for violating agent regulations that involved similar behavior. Next month, I will be participating in a symposium at Willamette University College of Law with other distinguished sports law experts (including Michael McCann!). The symposium is entitled, "The Future of Sports Law," and I will be speaking about the regulation of sports agents.

In my article entitled, "Solving Problems in the Player Representation Business: Unions Should Be the Exclusive Representative of the Players," which is being published in the Willamette Law Review, I discuss how client solicitation by agents is harmful in multiple ways to the players, the teams and the leagues. I am referring to the "acceptable" solicitation in the player representation business -- commonly known as "recruiting". The player-agent relationship is a fiduciary relationship, and in such a relationship (i.e. lawyer-client relationship) solicitation is considered unethical and unlawful because of the potential for undue influence, intimidation and overreaching. So why is client solicitation acceptable? I also discuss how the "babysitting" role that agents play is harmful to players because it fosters dependency and irresponsibility.

As players' salaries keep increasing, so do the agents' fees because they are paid on a commission basis. Simply, the agent's fee far exceeds the legitimate legal work and negotiation involved with a player contract, and the players are essentially funding the solicitation expenses incurred by agents. With such a huge commission at stake, agents have an incentive to invest an incredible amount of time and resources in client solicitation. And many of the reasons or justifications typically cited for paying a fee on a commission basis in other industries are not applicable to the player-agent relationship.

In my article, I advocate that the players associations should consider hiring agents as full-time salaried employees and give each player the option to retain a union agent as his representative in club negotiations. This could alleviate many of the current problems associated with the agent business, including solicitation, agent incompetence and conflicts of interest. The union agents would only represent the players in their individual negotiations with the clubs, and would not work on behalf of the union in collective bargaining negotiations. In my opinion, there are many players that would take advantage of this option if it were available. Oh, and if the unions needs a model for it, they can look at the the union for British soccer players, the English Professional Footballers Association.

I welcome your comments.

 
Teacher Violates First Amendment Rights of Young Broncos Fan

Good morning. My thanks to Mike McCann and this week’s primary guest blogger, my friend and colleague Andre Smith for allowing me to participate in the discussion. I have been thinking for a while about blogging as a medium and as a scholarly exercise and about whether or not to take the plunge. I can think of this as my tryout, my September Cup of Coffee in the Show.

Finding an initial topic was easy when this story broke. Ridiculed Over Broncos Jersey. Joshua Vannoy, a student at Big Beaver Falls Area Senior High School (in Pennsylvania, outside Pittsburgh) who wore a John Elway/Number 7 Denver Broncos jersey to school the Friday before the Broncos played the Steelers in the AFC Championship Game (which Pittsburgh one). In an ethnicity class, teacher John Kelly made Vannoy sit on the floor, in the middle of a circle of desks, to take a quiz in, during which other students (at Kelly’s suggestion) threw wadded-up paper at “the Broncos fan.” Kelly later claimed he was trying to teach a lesson about ethnic hatred and how it feels to be on the receiving end. Tung Yin quotes the article at length.

Some of my recent work has focused on the link between sports and free expression and the constitutional protection for what we might call “sport speech” or “cheering speech.” In a forthcoming piece, Wasserman on Fan Speech, I discuss what fans can and cannot say in the stands during games, arguing that the category of protecting cheering speech is extremely broad at the game. The Vannoy situation exemplifies a different aspect of cheering speech—the conversation about sports that occurs outside the confines of the game and that is similarly entitled to protection.

It is easy to chalk the case up to being about the teacher “taking sports WAY too serious.” And much of the media reportage has viewed this as a “lighter-side of the news” story; on ESPN Radio’s “Mike and Mike in the Morning,” it was reported as a fun, not-too-serious tale for a segment called “News of the Weird.”

But, as is often the case with sports speech, the lightness of the sport connection masks the seriousness of the underlying issue. The First Amendment violation would be obvious if we imagine a teacher doing exactly the same thing because a student wore, for example, a Boy Scout uniform or a t-shirt reading “Kerry for President” or “National Rifle Association” or “Proud Member of Local 242.” Or if he wore a black armband to protest the war. It would fly even less as a real-life lesson in how it feels to be discriminated against. It is true that lower courts give schools a great deal of (too much, I would suggest) leeway in regulating the t-shirts and clothing that students are able to wear in order to prevent “disruption” of school activities. But singling out a student for organized in-class abuse at the hands of his teacher and classmates because he espoused such messages goes far beyond the school’s authority.

Obviously, allegiance to the Denver Broncos (or John Elway) is not political in the same way as these other messages. But the freedom of speech generally is understood to protect more than the purely political; on libertarian-oriented individual liberty/autonomy and self-realization or self-actualization theories, it protects expression on the entire range of matters that define us as individuals, as fully formed humans ready and able to make and carry out life-affecting choices, as members of society, and as members of smaller communities within society. Certainly sports allegiance defines us and our personhood in this way, especially 16-year-old high-school juniors. Joshua Vannoy is a Denver Broncos fan and he decided to announce his membership in that community at an appropriate time—when everyone around him was announcing their membership in a rival community of Pittsburgh Steelers fans. Indeed, twisted as it was, Kelly’s actions themselves were an expression of his own allegiance.

For expressing that allegiance, Vannoy was subject to abuse (no matter how minor the abuse might seem—and minds may differ as to whether the shame and humiliation Vannoy claims is a genuine harm) at the hands of a government official. The nature of any harm he suffered to one side (a question that goes to damages, if he decides to bring suit), that sounds like precisely what the freedom of speech is supposed to prohibit and to protect individuals against.

For better or worse (I would suggest for the better), sport helps define modern American society. Perhaps because we are a society in which too many members have too much recreation time and too much disposable income. But perhaps, as sociologists and anthropologists suggest, sports fandom and team allegiance provides individuals access to an important and meaningful community, one that defines and benefits its members. The association between fan and team allows the fan to take a personal stake in the team’s success—personally experiencing the “thrill of victory” and the “agony of defeat,” the agony and the ecstasy of the competition. Sports fandom brings, the late A. Bartlett Giammati wrote, however briefly, a happiness, an absence of care and an escape. Or it brings self-imposed misery (I say this as a member of Cubs Nation and an alumnus of Northwestern University—Go ‘Cats).

That being so, it should not be surprising that fans want to express that allegiance and that passion, verbally and symbolically. And just as membership in the community of fans is a matter of import and worthy of protection, so too is expression of that membership.

Howard Wasserman, Associate Professor
Florida International University College of Law

 
Three Eyed Fish in the St. Louis Cardinals' Parking Lot???

The AP reports that Greenwich Insurance Co. is suing the St. Louis Cardinals in an attempt to rescind their contract relating to the construction of new Busch Stadium (is that still the name?). The Cardinals say they had to spend $14million cleaning up petroleum and other landfill type stuff from the site of what is now a bus parking lot, and that Greenwich should reimburse them. Greenwich claims that the Cardinals misrepresented their lack of knowledge as to the existence of the waste when they applied for the insurance. All of that is fine, but what the rest of us want to know is, 'does the beer taste funny?'

Wednesday, February 01, 2006
 
Patrick Dennehy's Old Coach Gets New Job

The Dakota Wizards of the CBA just hired former Baylor coach David Bliss. Bliss you might recall was fired from Baylor after it was discovered that during the investigation of Patrick Dennehy's murder at the hands of another player Bliss encouraged his students to tell investigators that Patrick Dennehy was a drug dealer.

How does this man get another coaching job? I guess I'm thankful it's not in academia. And why is L'il Kim in jail, but Bliss was never prosecuted?

 
SuperBowl Players Stuck Up in Michigan For $200K

The state of Michigan and city of Detroit, both of whom are in desperate need for revenue, are taxing the participants in this Sunday's SuperBowl. Because they work in the state on that day, the players have sufficient contact with the state and are thus subject to income taxes. Additionally, they increase the rate for nonresident athletes, the "jock tax".

They are neither the first nor the only. The word is, California first imposed this type of tax in the early 90s, targeting the Chicago Bulls. Illinois reciprocated in an attempt not to raise revenue but to "protect our athletes". Of the 24 states that have major professional league sports teams, 20 of them impose an extra tax on athletes, with rates almost as high as 10%. Michigan's rate is actually among the lowest. Washington state does not have an income tax and no jock tax. But that may change according to a Washingtonian legislator.

According to the Tax Foundation, "The principles of sound tax policy dictate that taxes be neutral, fair and levied on the broadest base possible. A tax, such as the jock tax, that is levied on just one group of people violates all these tenets. " Also, in some states the statutory language permits the extension of this tax to others for whom it was arguably not intended: the low- to mid- salaried cameraman, etc. It is even being extended into other professions, such as (gasp!) nonresident lawyering.If they come after the lawyers, we'll finally see how these taxes stand up against the Privilegs and Immunities Clause. (I have no idea whether this challenge has already been undertaken.)

According to FreedomWorks, here are some other "ridiculous" taxes:

10. The Amusement Tax (Most States)
9. Fountain Soda Drink Tax (Illinois)
8. Fur Tax (Minnesota)
7. Take-Out Tax (Chicago, Washington, D.C.)
6. Blueberry Tax (Maine)
5. Playing Card Tax (Alabama)
4. Sparkler and Novelties Tax (West Virginia)
3. Jock Tax (Many States)
2. Facial Hair Tax (Massachusetts)
1. Illegal Drug Tax (Alabama, North Carolina, Nevada)

Andre Smith
(Much info for this post was gathered at the Tax Professor Blog, http://taxprof.typepad.com)

 
Duke Law School Symposium on Age Restrictions in Professional Sports

I will be speaking at Duke Law School tomorrow (Thursday, February 2) from 12:15 PM to 1:15 PM. Here is the official symposium description:
Age Restrictions in Professional Sports: From Maurice Clarret to LeBron James

Thursday, February 2, 2006. Time: 12:15 p.m. - 1:15 p.m. - Location: Room 3041. Panel discussion of legal issues associated with age restrictions in professional sports. The panel will focus on a recent paper written by Professor Michael McCann of Mississippi College School of Law entitled "Illegal Defense: The Irrational Economics of Banning High School Players from the NBA Draft." Professor McCann served as a member of Maurice Clarett's legal team in his lawsuit against the NFL. The panel will include Professor McCann, Professor Barack Richman, and Professor Paul Haagen. The symposium is being hosted by the Duke Sports and Entertainment Law Society.

The symposium will be webcast live at this link [note: this link is archived and provides the webcast at any time]. I hope you get a chance to watch. For related information, please check out my law review articles in the Virginia Sports and Entertainment Law Journal, Brooklyn Law Review, and the University of Pennsylvania Journal of Labor and Employment Law.

Also, special thanks to Duke Law student Michael Sopko for his excellent work in putting this event together. Mike is my former research assistant and was instrumental in my law review article on high school players and the NBA Draft.