Sports Law Blog
All things legal relating
to the sports world...
Tuesday, October 31, 2006
Jeffrey A. Williams, 1980 - 2006
Over the weekend of August 28th, our good friend and fellow sports law blogger Jeffrey A. Williams died suddenly of a subdural hematoma. He was only 26. A graduate of Columbia Law School and Columbia University, Jeff was a second-year attorney at the prestigious New York City law firm Milbank Tweed Hadley & McCloy, where he worked primarily on mergers, acquisitions, and other aspects of corporate governance. You may remember Jeff from his wonderful guest posts on Sports Law Blog, as they astutely examined the interaction of race, sports, and the law. For instance, he discussed the Duke lacrosse scandal (5/4/2006 & 5/7/2006), race and the NFL Draft (5/7/2006), liability of the fan who started the Pistons-Pacers fight in 2005 (5/7/2006), masculinity and boxing (5/4/2006), and World Cup politics (6/18/2006).
Jeff was also a prolific scholar, publishing three law review articles in the last year and a half. They were Flagrant Foul: Racism in 'The Ron Artest Fight,' 13 UCLA Entertainment Law Review 55 (2005), Re-orienting the Sex Discrimination Argument for Gay Rights after Lawrence V. Texas, 14
I know Jeff had aspirations of one day becoming a fellow sports law professor, and he undoubtedly would have achieved them. The sports law community has lost a great guy, a great friend, and an extremely promising young scholar. May he live on through his outstanding published writings and may God bless his family at this most difficult time.
Harold Reynolds Sues ESPN for Wrongful Termination
Back in July, we discussed ESPN's decision to fire baseball analyst Harold Reynolds for allegedly sexually harassing a female employee. His firing in July occurred only four months after the 11-year employee had signed a six-year contract that would have paid him approximately $1 million annually. Be sure to check out the outstanding comments in response to that post. We debated the extent to which the workplace "situation" in which ESPN anchors find themselves--being famous ex-jocks or sports guys around young women in a college campus-style setting--might cause or encourage some of them to do really stupid things. In other words, we wondered whether ESPN has created a workplace environment akin to a male locker room, or whether this is really about the individual wrongdoers and not about their workplace.
Yesterday Reynolds struck back at ESPN, filing a wrongful termination lawsuit. His lawsuit seeks at least $5 million for the lost contract and unspecified amounts for "damages for lost future opportunities." Significantly, his employment contract included a clause that enabled ESPN to void the deal if Reynolds engaged in behavior that "would constitute an act of moral turpitude," but according to Reynolds, ESPN has never given him a "specific reason" for his firing.
Wrongful termination claims provide a wide-range of legal theories for discharged employees to recover. For instance, a successful wrongful termination can arise if the termination was the result of discrimination (race/gender/age/handicap/marital status etc.); violation of a statute; violation of an implied or oral contract; preventing an employee from receiving a benefit that is about to accrue; or a violation of public policy. If they have an employment contract--like Reynolds--they can also sue for breach of contract. In certain instances, although not apparently in Reynolds' instance, wrongfully discharged employees can also recover under tort law, including claims for defamation, invasion of privacy, and intentional infliction of emotional distress.
According to the media coverage of Reynolds' complaint, he will argue that his contract's moral turpitude class was overly-ambiguous and that ESPN fired him in a more rapid and less deliberative way than they have fired, or would have fired, other employees for similar allegations. Along those lines, Reynolds will contend that ESPN failed to properly investigate the allegations leading to his discharge, and that its workplace environment contributed to, and perhaps even rewarded, sexist behavior.
Should this case go to trial, it will be interesting to see what details emerge about the ESPN workplace. Reynolds v. ESPN might unintentionally update Michael Freeman's ESPN: The Uncensored History (2001).
Update: Will Li alerts me that The Smoking Gun has just posted Reynolds' complaint, which was drafted by Reynolds' attorney, Joseph Garrison of Garrison, Levin-Epstein, Chimes & Richardson, P.C. in New Haven, Connecticut. As usual, Will also has some great comments and thoughts:
A couple of interesting things:
Monday, October 30, 2006
Can parents be liable for coach-bashing?
A pending case in the Utah Supreme Court will address the status of public high school coaches under defamation law. According to the Salt Lake Tribune,
The case pits Michael O'Connor, who coached the Lehi High School girls' basketball team for three years, against parents who alleged he was demoralizing team members by berating them and favoring one player over the others.A lower court judged dismissed O'Connor's case on the grounds that he was a public official and therefore had to show actual malice to recover for defamation (which he failed to do). The parents' complaints about O'Connor
began piling up over alleged abusive comments, a suspected recruitment irregularity and possible mishandling of money raised by players. Particularly troublesome to many of the parents was O'Connor's perceived favoritism toward Michelle Harrison, a 6-foot-2 forward considered one of the top players in Utah. . . . [T]he parents were . . . upset by the way the coach yelled at their daughters and allegedly failed to give them their share of playing time.Even if O'Connor wins his appeal and is found to not be a public official, his damages might be slight. He has not been terminated from his employment as teacher, nor as golf coach. HT to Ben Maller.
New Baseball CBA Worse for Draftees and Minor Leaguers
Last week, MLB and the MLBPA agreed to a five-year labor contract that will allow play to continue uninterrupted through the 2011 season. While the players, team owners and fans are praising the new agreement and exclaiming that "it's such a great time in the game," the ones not applauding are all the minor leaguers and prospects for next year's draft. That's because the new CBA includes a revamped draft for amateur players, but nobody's talking about that. Here's a summary of some new provisions that substantially affect only drafted players and minor leaguers:
1. Clubs that fail to sign first or second round draft pick will receive the same pick in the subsequent draft as compensation. A club that fails to sign a third round pick will receive a sandwich pick between rounds three and four in the subsequent draft as compensation.
2. Signing deadline of August 15 for draft picks other than college seniors.
3. Period of time before a Player must be protected from the Rule 5 Draft is changed from three years (players who signed out of college) or four years (players who signed out of high school) to four or five years, respectively.
The changes to the draft described in Nos. 1 and 2 above substantially affect the negotiating leverage of drafted players. First, under the old rule, clubs had a huge incentive to sign their top picks because they wasted those draft picks if they didn't sign them. Now it's not a big deal if the clubs don't sign the player because they'll get that same pick again in the following year's draft (in addition to the pick they would otherwise have that year). Second, under the old rule, the clubs lost the rights to the drafted player when the player entered classes in the fall. While the new rule merely shortens the negotiation window by a few weeks, it will affect the ability of players to "hold out" during the negotiation process. Finally, under the old rule, clubs were forced to put minor league prospects on 40-man rosters a year sooner than they will be forced to do under the new rule. The Rule 5 draft is somewhat complicated, but essentially, if a club does not protect the player on the 40-man roster, then another team can draft that player and the drafting team is required to put the player on its 40-man roster.
I wonder if anybody within the union got any input from the draft prospects and minor league players before they agreed to the new provisions? So when Don Fehr says to the union player representatives, "are we willing to sacrifice the rights of prospective members of the union in exchange for something beneficial to the existing members," do you think anybody objected? Oh well, five years from now Mr. Fehr might be asking his player reps. a different question: Should we cut the farm system in half, reduce the number of draft rounds and impose a college draft age rule in return for increased benefits to major league players? Can anybody guess what their answer will be?
New Sports Law Scholarship
New this week:
Joel Bulleigh, Note, The slippery slope of ski tort reform: will the judiciary uphold legislative intent?, 59 OKLAHOMA LAW REVIEW 155 (2006)
Saturday, October 28, 2006
A Sports Law Retrospective of the late Red Auerbach
Boston Celtics' chairman and president Arnold "Red" Auerbach passed away tonight at the age of 89. Auerbach was well-known for his coaching and player personnel accomplishments with the Celtics over the last 56 years. He was tied with Phil Jackson for the most NBA championship rings as a coach with nine, and pulled off a number of great draft picks and trades, including drafting Larry Bird and Kevin McHale and trading for Robert Parrish and Dennis Johnson, among many other accomplishments.
Auerbach's career also affected developments related to sports and the law. For instance, and as the Boston Globe's Peter May details in his Auerbach obituary tonight, Auerbach helped to break racial barriers in the NBA. Most notably, he drafted the league's first African-American player in 1950 in Chuck Cooper, hired pro sports' first African-American head coach in 1966 in Bill Russell, and started five African-Americans on the Celtics, an NBA first. Particularly when juxtaposed with the less racially-tolerant practices of the Boston Red Sox during that time, Auerbach's decisions seemed ahead of not only other NBA personnel, but sports actors and perhaps even people in general.
The low point for Auerbach in his career also influenced sports and the law. It occurred right after the Celtics, courtesy of an earlier trade engineered by Auerbach, drafted University of Maryland superstar Len Bias with the second overall pick in the 1986 draft. If any of you have seen ESPN Classic footage of Lenny Bias, you'll know exactly why he was drafted so highly--the guy was simply amazing, almost like a more gifted and rugged version of Elton Brand. But two days after the 1986 draft, Bias died of cardiac arrhythmia, most likely related to a cocaine overdose. His death would motivate NBA teams to conduct far more extensive background checks of prospective draft picks. The untimely death of Celtics' guard Reggie Lewis' in 1993 also led to reconsiderations of monitoring players with heart conditions (a topic I discuss in my recent publication in the University of Pennsylvania Journal of Labor and Employment Law). While Auerbach was no longer as actively involved with the Celtics by that point, he did draft Lewis back in 1987.
But all in all, Auerbach should be remembered far more for the good times than the bad times. He was probably the most influential coach and general manager in NBA history.
Thursday, October 26, 2006
LSU Has Assistant Coach Arrested
LSU assistant strength coach, Travelle Gaines, was arrested and jailed this week for.... illegal steroid distribution? No... For assault and battery? No... For gambling, stealing, possession of narcotics? No, no, and no. Gaines has been accused of violating Louisiana state agent regulations by inviting student-athletes to his home to meet a sports agent and suggesting the agent should represent the athletes. University police also arrested sports agent Charles Taplin earlier this month for attempting to contact student athletes. According to LSU, notes and a cellphone gathered during Taplin's arrest, combined with interviews with several student-athletes, pointed to Gaines as assisting Taplin.
Louisiana, like most states, requires agents to be certified and prohibits all sorts of behavior by agents. Section 4:424 of Louisiana's statute regulating agents prohibits an athlete agent or an attorney from:
(1) entering into "any agreement, written or oral, by which the athlete agent offers anything of value, including the rendition of free or reduced-price legal services, to any employee of an institution of higher education located in [Louisiana] in return for the referral of any clients by that employee, and
(2) directly or indirectly contacting "an athlete who is participating in a team sport at an institution of higher learning located in [Louisiana] to discuss the athlete agent's representation of the athlete in the marketing of the athlete's athletic ability or reputation."
The statute provides that an athlete agent commits an offense if the agent knowingly or intentionally violates the provisions of Section 4:424, and that conviction of an offense is a misdemeanor and punishable by a fine of not more than ten thousand dollars, or by imprisonment of not more than one year, or both.
The statute regulates the conduct of agents and defines "athlete agent" as "a person who, directly or indirectly, recruits or solicits an athlete to enter into an agent contract or professional sport services contract with that person, or who for a fee procures, offers, promises, or attempts to obtain employment for an athlete with a professional sports team."
Unless there is more to the story, Gaines was put in jail for introducing some players to an agent. NCAA bylaw 220.127.116.11 even permits head coaches to contact agents to assist the athlete in selecting an agent and determining his market value. LSU might be justified in firing him, but is it justifiable for LSU to have this guy arrested?
Wednesday, October 25, 2006
Cool Papa Bell's Daughter in Suit Against Topps
The WSJ Law Blog picks up on a New York Sun story regarding a lawsuit filed by the daughter of James "Cool Papa" Bell against baseball card giant Topps. The Law Blog explains:
Bell’s daughter, Connie Brooks, sued Topps over its description of Bell on the back of a 2001 baseball card. The squib said Cool Papa “earned his nickname after falling asleep right before a game.” In court papers, his daughter calls this a “bogus painful lie.” It belittles the hard lives of Negro League players and suggests her dad was an alcoholic or drug addict, she says, adding, “[t]hey take a Negro Leaguer and think it’s okay to make him a little buffoonish, a little clownish, and suggest that he’s nodding off.”Although Topps has offered the plaintiff a $35,000 settlement, which she rejected, commentators do not expect her to have much success in court, according to the WSJ blog:
Legal beagles say the suit looks dead on arrival. The deceased cannot be defamed under New York libel law, says Peter Harvey, a partner at Patterson Belknap. Harvey passes on some free legal advice to the daughter via the Sun, suggesting a better argument would be that Topps can’t use Bell’s likeness without the permission of his estate.For more on the dispute, see here and here.
Deputy Shaquille O'Neal Part of Botched Police Raid?
Back in May, Geoff blogged about Miami Heat star Shaquille O'Neal "assisting" Florida law enforcement in busting those who sell or possess child pornography. At the time, O'Neal said that he only arrived at the defendant's house after the arrest, so it wasn't entirely clearly what services he provided, other than, I suppose, the novelty of having a 7'1, 220+ pound future hall of famer suddenly appearing in a police uniform at the bad guy's house. I imagine that might disorient the defendant and maybe make him more likely to talk to Shaq than other uniformed officers--I'm not sure. Regardless, O'Neal said that his reasons for tagging along were not entirely voyeuristic, as he plans to pursue a career in law enforcement after his NBA career ends.
But Shaq's post NBA law enforcement career might be in jeopardy before it starts. Last month, while working in Bedford County, Virginia as a uniformed reserve sheriff's deputy, O'Neal allegedly took part in a botched child porno raid at the Gretna, Virginia home of A.J. Nuckols, a married man with kids. The police raided Nuckols' home, believing that they had the correct IP address for someone selling child porn, but unfortunately for both the police and Mr. Nuckols, they had the wrong IP address--and thus the wrong home and the wrong guy.
Although O'Neal denies that he was at Nuckols' home, the Bedford County Sheriff's Office confirms that he was there. And what happened at Mr. Nuckols' house wasn't too pretty:
Nuckols described being "held at gunpoint, taunted and led into the house," and said the home was ransacked by a "paramilitary search-and-seizure team" that took computers, cameras, DVDs and VHS tapes.When asked why they brought Shaq onto its staff, the Bedford Sheriff's Office said that they enlisted him "to be the spokesman and public face of its anti-child pornography and child predator campaign" and because of that, they deputized him last year. So Shaq apparently does offer something to the Sherff's Office, at least in terms of public relations. And, in his defense, it doesn't appear that he was in any way at fault for what happened to Mr. Nuckols and his family (and his home). But should Shaq even be on these missions? Setting aside the potential of him getting hurt, what about him hurting other police officers or innocent victims? Really, what is he doing? Can anyone with a lot of money and fame go on active police duty and raid people's homes?
Monday, October 23, 2006
New Sports Law Scholarship
Thanks to the publication of a Case Western Law Review symposium, there's a bunch of new stuff this week:
Daniel A. Applegate, Comment, The NBA gets a college education: an antitrust and labor analysis of the NBA’s minimum age limit, 56 CASE WESTERN RESERVE LAW REVIEW 825 (2006)
Saturday, October 21, 2006
Sports Law Blog Honored by Fast Company
On page 41 of its October 2006 issue, Fast Company, a monthly magazine that reports on the technology industry and that was launched in 1995 by Alan Webber and Bill Taylor, two former Harvard Business Review editors, names Sports Law Blog one of the three best sports business blogs. We appreciate this honor and reporter Michael A. Prospero's kind comments about our blog:
Sports Law BlogOur blog has come a long way since Greg wisely started it in 2003 and its progress largely reflects the outstanding comments by you, our readers. We really appreciate you visiting our blog and making comments.
Friday, October 20, 2006
The Russians are coming! The Russians are coming!
Each month there is a new development regarding the Penguins' signing of Russian phenom, Evgeni Malkin (See my Sept. 18 post and my Aug. 17 post). In the latest development, the Russian team Metallurg Magnitogorsk filed an antitrust lawsuit in U.S. District Court in Manhattan on Thursday against the NHL and the Pittsburgh Penguins. Here are some of the allegations made by the Metallurg according to the press release:
The antitrust claim, however, is creative. Section 1 of the Sherman Act makes unlawful agreements to restrain trade. When the league enacts a rule or makes a direction, it's deemed an agreement among all of the member clubs for purposes of Section 1. If the press release is accurate that the Metallurg is alleging that the NHL told the clubs they could sign Russian players if the players secured releases, then I don't see a Section 1 antitrust problem because the NHL is essentially saying to the clubs, first make sure that the players are not bound to a contract with another team under Russian law. In other words, there is no agreement to restrain trade. All you really have here are individual NHL teams taking the initiative on their own to negotiate and sign players to contracts.
The Metallurg could also be asserting a Section 2 claim, which makes it unlawful to monopolize or to attempt to monopolize. Section 2 claims are very difficult to establish. Here, the fact that the NHL and the Russian hockey league were unable to reach a transfer agreement is probably not sufficient. Moreover, the Russian hockey league is not a fledgling league trying to compete with the NHL in the U.S. -- it's a well-established league in another huge country that arguably competes with the NHL for Russian players. The fact that the NHL may have more money and is able to draw the top talent doesn't make for an antitrust violation. On the other hand, it could be argued that the NHL has a "natural monopoly" in the U.S. and, therefore, its conduct in dealing with competitors is going to be more heavily scrutinized. But regardless, if the NHL negotiated a transfer agreement in good faith, the Metallurg should definitely lose on Section 2.
Geoff Rapp brought to my attention that there was another lawsuit filed this week, which has not received much press, by the Russian hockey club Lokomotiv Yaroslavl against the NHL, the Calgary Flames and the Edmonton Oilers alleging similar claims involving the signing of Andrei Taratukhin of the Flames and Alexei Mikhnov of the Oilers. So this issue is not going away anytime soon for the NHL. If the NHL loses on summary judgment, I predict settlement (i.e. transfer agreement)....because, as Gary Roberts put it once, "anytime you put an antitrust lawsuit in front of a jury, it's a crapshoot."
Give Maggs the Ball
Jon Fenlon, a 23-year-old Eastern Michigan University student, won’t give to Magglio Ordonez (or the Baseball Hall of Fame) the ball Ordonez hit into the stands to clinch the pennant for the Tigers in the ninth inning of Game Four. According to published reports:
The day after Fenlon snatched the homer, he told the Detroit Free Press: "I hope Magglio doesn't want it back. I'm not sure what I'll do if that happens." Well, it has happened. Ordonez already gave the Hall of Fame his bat, and he has offered Fenlon one of his bats in exchange for the ball. But Fenlon is between a rock and a hard ball.Although the Hall of Fame wants the ball, they won’t pay for it:
Brad Horn, communications director for the hall of fame, confirmed that museum officials had requested Ordonez's bat. He said they would take the ball, if it were offered, but they didn't plan to go after it.The issue of home-run ball ownership is one of the first things that piqued my intellectual interest in sports law; previously, it surfaced in a published decision, Popov v. Hayashi, concerning Barry Bonds’s record setting ball, and in a dispute between the Red Sox and Doug Mientkiewicz, which Mike blogged about here. In a piece published on Findlaw’s Writ, I argued that ownership of a homerun ball – particularly one of historical significance (and therefore significant value), should rest with the player who batted the ball. The player is the one who has a moral claim to the ball, having through his labor added value to what would otherwise have none. Moreover, awarding a claim to a fan creates dangerous incentives for fans to engage in violent conduct to get their hands on a potentially valuable piece of baseball memorabilia.
Fenlon, of course, is far more sympathetic than either of the litigants in Popov v. Hayashi or late-inning Red Sox replacement Mientkiewicz. A lifelong Tigers fan, he has so far expressed no interest in profiting off the ball; rather, he seems to want to keep the ball for sentiment's sake. Still, I think Maggs has the best moral claim for ownership, and the law should reflect that.
Tigers Understand the Difference Between the Law and the Spirit of the Law
Yesterday, Howard Bloom at Sports Business News notes that the pennant-winning Detroit Tigers have been exploiting a rather wide loophole in the State of Michigan and City of Detroit prohibitions on ticket resale. While “scalping” is prohibited both by state law and municipal ordinance, tickets can be resold if the team itself is doing the re-selling. The Tigers, exploiting this loophole, have created a web-based ticket exchange which allows season-ticket holders to sell their playoff / world series tickets above face value. The Tigers claim a 10% fee for the service of matching buyers with sellers. When I checked this morning, tickets could be had for Game 1 of the Series for between $550 and $5500 a ticket. Bloom writes:
If you can't use all of your postseason tickets, you can make them available to other Tigers fans with this efficient and easy-to-use service. As a full season ticket holder, you post your available unused tickets and name the price you want for each ticket.Sports economists have dealt with the policy consequences of scalping in a number of blog posts and articles. Some have argued that legalizing scalping (or, as its proponents might argue, legalizing the resale market for tickets) would increase the supply of tickets and thus lower the price, although the debate continues. And as criminal law students are no doubt aware, criminal statutes (or municipal ordinance) must be interpreted strictly because of their harsh consequences for alleged offenders. This principle of statutory interpretation has been applied before to anti-scalping laws, as Greg noted here.
Still, there’s something about the Tigers Ticket Exchange that strikes me as unfair and leads me to sympathize with Bloom’s position. After all, just last year the City of Detroit was insisting it could arrest people for selling or buying tickets at or below face value. That law was struck down as unconstitutional; still, the idea that the same city that thought it was okay to lock someone up for buying a ticket on the street below face value would create an exception big enough for a fleet of Little Caesar’s delivery trucks to drive through seems to be just another piece of evidence of the power of well-heeled special interests in municipal affairs. Two dozen people have been arrested in Detroit for scalping since the playoffs began. Yet the Tigers will collect $550 on that $5500 ticket. Fair?
Thursday, October 19, 2006
FBI: Terrorism Threat Against NFL is a Hoax
The FBI announced this evening that the purported terrorist threat against NFL stadiums is a hoax (Todd Zeranski and Robert Schmidt, "NFL Football Stadium Terrorism Bomb Threat Is a Hoax, FBI Says," Bloomberg News, 10/19/2006). Earlier in the week, the Department of Homeland Security had warned of a threat against NFL stadiums involving an al-Qaeda operative smuggling radioactive materials into the U.S. from Mexico. While the story seemed a little bit "24ish" it obviously presented a serious concern.
In my recent article in the Willamette Law Review entitled "Social Psychology, Calamities, and Sports Law," I examine the law and social psychology of terrorist threats against the NFL. For instance, I study the effects of major sports events like NFL games being “soft targets” or those particularly vulnerable and difficult to secure. Indeed, NFL games tend to feature large numbers of persons constantly entering and exiting a confined facility, as well as significant and often congested movement of persons within that facility. Less obviously, patrons at NFL games, like in other pro sports ettings, tend to be highly-focused on the game rather than on their surroundings, and are thus less likely to detect wrongdoing and nefariousness than in other settings, such as in airports or subways.
Making matters worse, stadium security personnel are disadvantaged by the situational pressure of impatient fans seeking to enter the stadium, as well as by the practical necessity of preventing long and slow-moving entrance lines. Stadium security personnel also seldom possess sufficient anti-terrorist training, and are thus especially vulnerable to the “situation” of large numbers of fans anxiously waiting to enter the stadium (which may present a secondary target: all of the people waiting outside the stadium). Put more bluntly, NFL games, like those in the other pro leagues, often entail tens of thousands of distracted persons moving in and around difficult-to-secure areas that are protected by questionably-trained personnel.
I also explore the financial considerations of a terrorist strike on an NFL game. Aside from inflicting untold human suffering (both from the attack itself and the "after-effects" of an attack, such as people being trampled while fleeing the stadium and the lack of available hospital beds), an attack could impose massive tort liability on the NFL, the hosting NFL team, and stadium operators for inadequate security. And perhaps not surprisingly, the cost of property and liability insurance for all professional sports teams and related actors has skyrocketed in recent years.
As Geoff (8/4/2006) and Greg (10/26/2005) have discussed, and as I also detail in my article, the NFL has attempted to employ a pat-down policy, which has drawn the ire of state and federal courts in Florida, both for its invasiveness and its apparent lack of efficacy. It will be interesting to see how leagues and teams develop stadium security policies that stop both domestic crimes and terrorist acts, while preserving patrons' constitutional and historical protections.
I apologize for minimal posts this week, but work has gotten hectic. I want to point the readers to a fascinating story, though. . .
"Extreme" sports have become wildly popular in the last decade. But before Tony Hawk, Shaun White, Travis Pastrana, et. al., we had Mickey Thompson and Mike Goodwin.
UPDATE: And not to be outdone. . .
Wallet-Seeking Lyons Signed an Agreement Not to "Mess Up" on Air
On Sunday, Mike provided an excellent analysis of broadcaster Steve Lyon's odd and, in some minds, insensitive on-air remarks. Now, it turns out that Lyons signed some type of contract with Fox after a 2004 incident in which made comments about Shawn Green perceived as anti-Semitic. The LA Times relates Lyons's characterization of the agreement:
"It said, 'If I mess up again, they can fire me,' " Lyons said. "But it's what they deem a mess-up-able offense."I doubt very much that Fox used the term "mess up" in the contract. However, Lyons appears to be positioning himself to claim that his "wallet" comment did not breach the agreement (probably some express waiver of a right to sue in the event of a termination). The Times continues:
Lyons, who was fired even though his contract was due to expire at the end of the season, strongly believes that what he said last Friday during Game 3 of the American League Championship Series does not fall under that category.The most telling fact here may be that his contract was set to expire at the end of the season. That being the case, he'd have a relatively small amount of damages even if he had a valid cause of action.
Tuesday, October 17, 2006
Whether or not it is a sport is debatable, but poker (and other gambling activities) has been severely affected by the Unlawful Internet Gaming Enforcement Act. See WaPo article here. Espn and FSN televise poker tournaments on a loop, so let's cede that it's a sport for now. . .
Party Poker has already stopped taking deposits and wagers from American "players," saying as much on their site: "The United States Congress has passed a bill that seeks to prevent you from playing cash poker online. If, as expected, [it's already happened, ed.] that bill is signed into law by President Bush. . .many of your favorite sites will cease taking deposits and wagers from American players and that includes your very favorite--partypoker.com." I am close to a "professional" who made his living playing poker on that site. But no longer, as he is now blocked.
With American players now limited in their access to so much poker, advertising revenues from websites like Party Poker should decrease or even disappear. The same goes for the televised tournaments since interest will wane.
I posit that there is a way around the law for these athletes, however. The law is geared toward preventing financial institutions from processing transactions intended to be used for online gaming. Well if one opens up a foreign bank account (the more protective the country's laws the better--Antigua, Cayman Islands), then one's domestic bank would not know the money is then being wired into these gambling websites. This is the process required at Tradesports--introduced to me by a law professor of mine--which is a favorite of American traders (and even has predictive value). For now Tradesports seems safe from regulation, but we'll see what happens in 270 days, when the law is implemented.
George Will on Baseball's Competitive Balance
Last week, I did a post on baseball's competitive balance and explained that high payroll simply does not equal success. Well, I was delighted to read George Will's Op-Ed column in the Washington Post this past weekend (Baseball's Real 'Golden Age'). George Will is one of my all-time favorite commentators on the business of baseball. I don't think I've ever disagreed with anything he has said about baseball. He makes some excellent points to demonstrate "the steeply declining utility of the last $100 million of payroll" (as he puts it) and that baseball's competitive balance is a diminishing problem:
John Powers: Guest Blogger
We are excited to have Attorney John M. Powers, Jr. guest blog this week. Like Rick Karcher, John brings pro baseball experience to his analysis of sports law. After being named the Pac-10 Conference All-Southern second baseman while a senior at the University of Arizona, John was drafted by San Diego Padres in the 21st round of the June 1996 MLB Draft. Over the next eight years, John would play in the Padres, Chicago Cubs, and Texas Rangers organizations and was named a Double A All Star in 1998. He also excelled off the field, winning the San Diego Padres Community Service Award for his work with underprivileged youth. Perhaps most impressively, John somehow found the time to obtain a J.D. from the University of San Diego School of Law during his pro baseball career. He last played pro ball in 2003, when he was with the Triple A Oklahoma Redhawks, an affiliate of the Texas Rangers. John now practices real estate law at The Henderson Law Firm in Phoenix, Arizona. We look forward to his posts.
Monday, October 16, 2006
UVA Law School Softball Invitational
Registration is now open for the University of Virginia's Law School spring softball tournament, which is open to teams from any law school. Information on how to apply can be found here. For the second year, the tournament will feature first-round "pod play." This may help alleviate some former competitors' grumbling that tournament match-ups have historically been arranged in a manner most favorable to UVA's own various softball teams (further enhancing the already significant home-field advantage of playing in Charlottesville, VA).
New Sports Law Scholarship
New this week:
Joel Eckert, Note, Student-athlete contract rights in the aftermath of Bloom v. NCAA, 59 VANDERBILT LAW REVIEW 905 (2006)
Sunday, October 15, 2006
Welcome to Big-Time College Sports
As a member of the faculty at Florida International University, I suppose I have to talk about the brawl that broke out in the third quarter of last night's 35-0 loss to the University of Miami. A pretty detailed account of the story, along with video, can be found here.
Thirteen players (eight from FIU and five from Miami) were ejected. The brawl apparently was the culmination of a great deal of taunting between the teams since pre-game warm-ups. The immediate trigger was Miami's Jamie Bryant catching a touchdown pass to make the score 13-0, then pointing at the FIU bench, earning an unsportsmanlike conduct penalty. The brawl, which last about five minutes, started on the subsequent PAT. The story reports that Miami has suspended eight players. No word on how many FIU players will be suspended. There also were reports of at least one fight in the stands.
One interesting thing is that the story does not seem to have any information from FIU's side (perhaps because Miami is the high-profile party here). But two things jumped out at me. The first is a quotation from a Miami player insisting FIU "totally started" the brawl. The second is a quotation from Miami Coach Larry Coker explaining the chippiness throughout the game by noting that the schools are in the same city and many FIU players want to be playing for Miami. The storyline right now seems to be FIU started it.
Now, I admit to being unsure about FIU's plans to compete in Division I-A football (we play in the mid-major Sun Belt Conference in all other sports). I have a background in college sports--I was a student manager for the men's basketball team at Northwestern; I coached men's basketball at the Division III level for three seasons; and I made sure I was in Pasadena when my beloved Wildcats played in the Rose Bowl in 2006. And I recognize the theory that having successul big-time sports programs (especially football) brings money and attention to the university, benefits that will inure to the university as a whole. The September 9 New Yorker discussed efforts by schools to combine great academics with great athletics, in talking about Duke University and the lacrosse scandal. On the other hand, I also recognize the recent studies suggesting that sports do not bring about those benefits--or do so at a far higher cost.
For obvious reasons, I hope we succeed in the endeavor of playing big-time football and I hope the university realizes the benefit sought. An annual game with Miami is intended to be a step in that direction. Interestingly, stories have referred to it as a "friendly rivalry" (as compared with, for example, UCLA and USC) because FIU is not expected to compete with Miami--although we played it close for about 2 1/2 quarters.
But last night's events illustrate the bitter that might come with the sweet. Someday FIU may be known as a powerful mid-major program or better (how would it be to be Miami of Ohio or Boise State?). Right now, we are an 0-7 program being blamed for a brawl that is being replayed in the national media. And we lost 35-0.
UPDATE: Here. Thirty-one players suspended in all--13 from Miami, 18 from FIU, many of them starters. And FIU has to play at Alabama next week.
Psycho Firing? Making Sense of Steve Lyons' "Insensitive" Remarks
Fox Sports baseball broadcaster Steve Lyons was fired immediately after Game 3 of the Oakland Athletics and Detroit Tigers ALCS for making what Fox deemed "inappropriate comments" during the game. The 46-year-old Lyons, a first round pick of the Boston Red Sox back in 1981 who went on to a nine-year MLB career as a utility player, made the objectionable comments during the following exchange, as recounted by Chris De Loduca of the Chicago Sun-Times:
During Game 3 between the Oakland Athletics and Detroit Tigers, Lou Piniella compared the production from A's infielder Marco Scutaro to finding a wallet. Piniella later said the A's needed slugger Frank Thomas to get ''en fuego'' (on fire in Spanish) because he had been ''frio'' (cold). Lyons said Piniella was ''hablaing espanol'' -- butchering the conjugation for the Spanish word ''to speak'' -- then said, ''I still can't find my wallet. ... I don't understand him, and I don't want to sit too close to him now.''I think going through each line might help assess whether Lyons indeed made racially-insensitive comments.
1) First we have 63-year old Lou Piniella, who is working the series for Fox and will likely take a big league managing job soon, comparing Marco Scutaro's production (or lack there-of) to the luck of finding a wallet.
Interpretation: Piniella seemed to be saying that the A's getting production from Scutaro, a native Venezuelan with a lifetime MLB batting average of .258 and very little power, was as unlikely to happen as someone finding a wallet. Was Scutaro's ethnicity somehow related to Piniella's "finding a wallet" analogy? I doubt it, but perhaps Piniella should have used some other vehicle to make the point; racist or not, the "finding a wallet" expression isn't often used, and I suspect many of those listening found it a little odd.
2) Piniella then states that the A's needed Frank Thomas to get ''en fuego'' (on fire in Spanish) because he had been ''frio'' (cold).
Interpretation: Like many sportscasters, Piniella was using Spanish expressions to describe player performance. "En fuego" is regularly used to describe players playing so well that they are "on fire." Indeed, ESPN's Dan Patrick and Chris Berman have both made it a common expression in their on-air lexicon. "Frio" appears less commonly employed, perhaps because it's not all that endearing--the player is "cold" or in a slump--and sportscasters usually avoid critique in order to preserve good relationships with players. I don’t see the racist angle here, but if it's there, Piniella, rather than Lyons, said it.
3) Lyons then enters the conversation by stating that Piniella was "hablaing español."
Interpretation: Lyons was attempting to say, in some form of Spanish, that Piniella was "speaking Spanish," but he, like many middle schoolers, high schoolers, and college students trying to learn Spanish and perhaps even like our supposedly but not quite "bilingual" President, messed up the verb conjugation of the verb "hablar" which means "to speak." To be correct, I believe Lyons should have said, "hablando español.” So it would seem that Lyons knew the correct verb--"hablar"--but didn't know how to conjugate it, so he added an "ing."
Should Lyons have refrained from using hablar without knowing how to conjugate it? Yes, because he sounded idiotic with millions of people listening. But was it insensitive? That's a harder call. I suppose you could say that Lyons, by adding "ing," was implying that he didn't need to know the correct Spanish, since he felt comfortable incorporating an English suffix into a Spanish verb, and we live in an English-speaking country that has become less and less tolerant of those who only speak Spanish or any non-English language. This is sort of the “American Idiot” explanation, with Lyons as the intolerant American. Alternatively, maybe Lyons was just was being a dope, trying in humor to follow Piniella's lead by using Spanish, and had no racist/ethnic-phobic intent or even implicit attitude.
4) Lyons then says that "I still can't find my wallet. ... I don't understand him, and I don't want to sit too close to him now.''
Interpretation: By saying "I still can't find my wallet," Lyons may have been referring to the fact that he was a lousy hitter when he played in the big leagues from 1985 to 1993. A career .252 hitter with little pop, Lyons was better known for his on-field antics, such as when he dropped his pants at first base, or his penchant for the hidden ball trick. I guess you could say that he was a "throwback" of sorts, but I'm not sure which time in history that was. But in any event, Lyons was basically a goofy player--hence his nickname, "Psycho"--who couldn't hit, yet was affable and well liked by fans and teammates. Alternatively, Lyons may have simply been joking that Piniella had stolen his wallet.
The "I don't understand him," remark could suggest that Lyons realized, correctly so, that he didn't have a good grasp of the Spanish language. Or it could mean that he didn't understand Piniella's somewhat obscure wallet analogy.
The "I don't want to sit too close to him now," appeared to be a joke by Lyons of his co-broadcaster Piniella's use of the wallet analogy.
Conclusion: Lyons appeared to sound more stupid/goofy than racist, and I think his remarks were largely brought on by Piniella's weird remarks. Having said that, Lyons has gotten himself into trouble in the past with his on-air comments. A couple of weeks ago, he regrettably said that a visually-impaired fan wearing special glasses has "got a digital camera stuck to his face," and two years ago, he was suspended for criticizing outfielder Shawn Green, who is Jewish, for sitting out a game on Yom Kippur. Lyons said: "He's not even a practicing Jew. He didn't marry a Jewish girl. And from what I understand, he never had a bar mitzvah, which is unfortunate because he doesn't get the money." But I'm not sure those two incidents make him more "guilty" in this instance.
Could Lyons sue Fox for wrongful discharge? I imagine he had a contract with Fox, rather than being an at-will employee, so without seeing the contract, it's not clear how much discretion Fox had in terminating him. However, absent express provisions to the contrary, a court would likely accord significant latitude to Fox in policing its on-air content.
Update: for another take on this story, see Paul Secunda's thoughtful post on Workplace Prof Blog.
Saturday, October 14, 2006
A Proposal to Unions: The Agent Business May Require Systemic Change
For anyone interested, I just posted on SSRN my recent article published in the Willamette Law Review, Solving Problems in the Player Representation Business: Unions Should be the "Exclusive" Representatives of the Players. You can access it by clicking on the link to my articles posted on the blog. You will need a free SSRN account to read it, and you can get such an account here.
My article examines how the economics of the player representation business, with increasing player salaries under a commission-based agent fee system, are fueling more intense competition among agents, which is detrimental to the players, the teams and the leagues. I argue that players associations, as the exclusive representatives of the players under the labor laws, must consider whether the third party agent representation system serves the best interest of the players collectively, and whether the system can be improved for the betterment of all union members, not just a handful of premier players. I propose that the players associations establish internal player management agencies giving players the option to retain a full-time salaried agent employed by the union. I also propose some revisions to the unions' existing agent regulations, including an alternative agent fee structure, a complete ban on client solicitation, and more union administration and oversight in the agent selection and representation process, which would substantially reduce the incentive for agents to engage in harmful competition and would ensure that players are paying their agents a reasonable fee but would at the same time maintain the player's autonomy in selecting his own agent.
I understand that the concept of unions representing players seems unrealistic and difficult to do from an administration standpoint, conflicts of interest, etc., and my article discusses these issues in-depth.
Friday, October 13, 2006
Death of an unsung supporter of the First Amendment
Earlier in the week I blogged about Tommie Smith and John Carlos as one of the most-famous examples of athletes' political speech. This week's Sports Illustrated reports on the death of Peter Norman, the Australian sprinter who won the silver medal in that race and shared the medal stand with Carlos and Smith in the famous photo. (See at left). A fuller story on Norman (and on the Carlos/Smith protest) is available here.
According to the blurb in SI, Norman supported the protest by wearing a human-rights button during the ceremony. Also, it apparently was Norman's idea that Carlos and Smith each wear one glove. Carlos had forgotten his gloves, so Norman suggested that each wear one of his gloves, on different hands. Norman was reprimanded by Australian sports authorities, although not as severely punished or ostracized as Carlos and Smith.
Norman appeared with Carlos and Smith in 2005 at a ceremony at San Jose State University, where a statue of the two American sprinters was unveiled.
Do New NHL Sticks Threaten Workplace Safety?
In an effort to boost goal scoring, the National Hockey League has decided to increase the allowable curvature of sticks from a half-inch to three quarters of an inch. The new sticks will enable players to better aim their shots, and will mimic the stick curvature rule in Europe's International Ice Hockey Federation, an important NHL consideration in light of the increasing number of NHL players from Europe. Moreover, while the NHL enjoyed something of a renaissance last season--scoring and attendance were up from pre-lockout figures and the game was faster and more interesting (unless you were a Boston Bruins fan!)--television ratings, which may be the most crucial metric for evaluating a league's success, went "from bad to worse." Along those lines, the NHL apparently believes that TV ratings will improve with more goal scoring (even though scoring went up last year and TV ratings went down), so they are allowing increased stick curvature.
Michael Farber of Sports Illustrated, however, speculates that while 3/4 curved sticks might enhancing scoring, they will likely increase eye and facial injuries ("Rising Concern," Sept. 20, 2006):
"The perception of the bigger curves might change when a rising shot clips a visor-less defenseman's eye and changes that player's perception permanently."Despite Farber's concern, the National Hockey League Players' Association supports this new rule. As Farber details, the NHLPA's position is consistent with its laisez-faire approach to player safety, such as by not advocating that players wear visors and other forms of facial protection. Indeed, the NHL and NHLPA largely allow players to play as they desire, even when doing so may impose significant safety risks on themselves and other players. And even when they regulate player safety, they often don't impose deterring sanctions. For instance, if a player's stick exceeds the allowable curvature, he is only assed a two-minute penalty (as opposed to a baseball player being suspended for a corked bat, if that is a fair analogy). Other hockey experts corroborate this broader concern. For instance, Eric McErlain of Off Wing Opinion recently wrote,
One of the little known secrets of the NHL, is the fact that players regularly make modifications to their equipment for the sake of comfort and convenience -- modifications that often come at the expense of safety.Similarly, as McErlain discusses today, the NHL has just voted to ban mirrored visors (most famously worn by Washington Capitals' star Alexander Ovechkin) because they allegedly supply wearing players with a "competitive advantage." This type of move may further corroborate the contention that the NHL is concerned more about product success than product safety.
Having said that, do we even know if the new sticks are more dangerous? I know they are used in Europe, but Farber doesn't cite injury statistics from Europe. And even if there more eye and facial injuries in the European leagues, couldn't there be other variables (e.g., rink dimensions; comparative style of play etc.) that might also prove explanatory? Moreover, back in the days of Bobby Orr, the NHL allowed sticks curved up to 1.5 inches--were there more injuries because of that? In other words, there seems to be potential empirical data that Farber could use to corroborate his allegation, and it would be helpful if he employed it.
Here's another thought: If the NHLPA genuinely represents the will of the players, should we even question its decision to value "style" over "safety"? Or might the NHLPA be under-appreciating importance of player safety? Is this a case of both collective bargaining units ignoring player/employee safety and perhaps even morality for the sake of profits?
Are Sports Different?
Governor Arnold Schwarzenegger last month signed into law California Assembly Bill 2165, which prohibits athletes from competing for any schools in the state college systems (UC, CSU, and Community College) if they have been convicted of certain violent felonies, unless and until they have completed their sentences. The impetus behind the law, described here, was a 2004 beating of a San Diego State student by three football players from Grossmont College (a nearby junior college); the players pled guilty in May 2005, but remained on the team until October 2005, when they were sentenced to jail time. In signing the bill, Schwarzenegger spoke of it being a privilege, not a right, to play a college sport, so a felony conviction deprives you of the privilege until you serve the time.
The problem is that everything about college is a privilege rather than a right. It arguably is a privilege simply to be admitted as a student and to be able to attend classes. It is a privilege to engage in many extra-curricular activities--playing in the band, playing intramurals, joining a fraternity or other student organization, acting in a school production, living in student housing.
But we do not attach similar conditions to any of these privileges, at least by law, only to sports. Why not?
I imagine that the answer to this basic question, and thus the explanation for this issue, lies in the fact that I am writing on something called "Sports Law Blog," but not something called "Fraternity Law Blog" or "Marching Band Law Blog" or "Chemistry 101 Law Blog." Sports are higher-profile (even at a junior college) and players are seen to "represent" the school. But so does the marching band and, in fact, so does the student body as a whole. Is it any more troubling that one of the school's football players continues to play after pleaing guilty to assault than that the president of Lambda-Lambda-Lambda or the vice president of the Student Government continue to serve after pleading guilty to the same crime?
If we are serious about wanting to deter misconduct by students (as the Governator said in signig the law), why stop with athletes?
Thursday, October 12, 2006
Referees, Judges, Mistakes, and Do-Overs
I have been fascinated by the reaction to the officiating errors in last month's Oklahoma-Oregon game. The refs blew two calls late in the game that helped lead to Oregon's win--1)Allowing Oregon's recovery of its onside kick that did not travel ten yards (and the replay official failed to overturn the call, although it showed pretty clearly on the replay); 2) On the same possssion, calling pass interference on Oklahoma on a pass that was tipped at the line of scrimmage.
Two things came out of the controversy. First, the Pac-10 suspended the officiating crew for one week and the replay official (a veteran official who received death threats -- not protected expression, by the way--from Oklahoma fans) took a leave for the remainder of the season. Second, Oklahoma's President argued that the game should not count as a loss for his team, because of the officiating mistakes.
I think both of these tell us things about judges and the judicial system.
As to the first, this is why there is so much debate of late about "judicial independence." And this is why the Constitution provides federal judges with tenure during "good behaviour" (which, in practice, means life tenure) and a guaranteed salary. The idea is that judges should not be sanctioned for making what they believe in good faith to be the proper decision in particular cases. Even if the judge was, in some objective sense, "wrong" (which is more determinate in sports than in law). We do not want the specter of punishment hanging over officials' heads. Mistakes happen. But we want them to continue to make their best, most fearless decisions without concern for personal consequences if they are wrong. That only makes judges hesitant--and more likely to err.
But the Pac-10 did what many leagues and conferences are doing more frequently. The office, having had two days to review a video multiple times, can determine that an official's spur-of-the-moment decision was wrong. And, under pressure from fans and teams--who had the chance to review the same video--feel compelled to take some action to show that mistakes will not be tolerated. But I wonder how effective this is in preventing future mistakes.
As to the second, one of the things the judicial system favors is finality--once a case is resolved (through all layers of appeal, etc.) it is over. We will not reopen or let a party out of a final judgment, except in rare circumstances. Rule 60 of the Federal Rules of Civil Procedure sets out limited (and time-bound) grounds for reopening and getting relief from a final judgment. Those grounds do not include that the court "got it wrong." This is especially true where the issue the court got wrong was not the end decision, but an earlier decision (for example, a decision excluding a piece of evidence) leading up to (and perhaps causing) that end result.
But this is what Oklahoma's President is asking for. His argument is that the officials made incorrect decisions on a couple of plays during the game , resulting in his team losing (a result that likely would not have occurred absent those mistakes). Therefore, his team should be relieved from the final judgment and not have it count as a loss. That is not something the judicial system would recognize, at least in the context of a civil action.
Wednesday, October 11, 2006
Managers and Coaches with Law Degrees
The WSJ Law Blog has a post up on Cardinals manager / FSU Law grad Tony La Russa, which notes that a total of seven J.D.'s have managed baseball teams. Are lawyers-turned-managers more common (or more effective) in baseball than in other sports? Or is the fact that Wikipedia can name seven lawyer-managers merely a feature of the national pasttime's longevity?
Texas Tech football coach Mike Leach is a Pepperdine law grad. And of course the great Vince Lombardi attended law school at night (Fordham, but for only one semester, apparently). Former Missouri basketball coach Quin Snyder was a J.D./MBA (Duke), although it didn't help him avoid allegations of NCAA violations or keep his job. Who else am I missing?
White Sox Selling Game Start Times
The New York Times reports that the convenience store company 711 has "purchased" start times for Chicago White Sox home games. The night games in question, which would have begun at 7:05 or 7:35 pm, will now begin at 7:11 pm. Will this trend catch on? For instance, will the emergency assistance number 911, in an effort to prove it's not a joke, purchase some 9:11 pm Monday night football starts? Will the new Bond movie promote itself by buying some 12:07 am (00:07 military time) finishes? Will cities, so often identified in contemporary pop culture by area code, purchase start times (e.g., will Detroit buy a 3:13 pm start time for a day game, New York a 2:12 pm start, etc)? The possibilities are limitless.
I would love to see the contract 711 signed with the White Sox, since there are a number of wrinkles to consider. If a particular game is rain delayed (and starts at 7:45, instead of 7:11), will the store get a make-up? What if a pitcher takes longer warming up and the game, while "starting" at 7:11, doesn't actually get underway until 7:19? Breach of contract?
Tuesday, October 10, 2006
Why is Steroid Use Considered Cheating?
This week Sports Illustrated named its All-Time All-Star Baseball Team. It is based on a poll of 22 baseball experts and features a pretty cool color drawing of the players sitting in the dugout. Notably absent from the team is Barry Bonds; the accompanying story by SI’s Tom Verducci explains that "because of how his freakish late-career production has been linked to the use of steroids and other performance-enhancing drugs," Bonds "has numbers that are not to be believed."
But this raises a question:
Why, exactly, is steroid use considered cheating? Obviously it now is, because the rules of Major League Baseball prohibit it. But we regarded it as cheating even if the steroid use occurred prior to the MLB ban in late 2002 (that is, before steroids were prohibited by rule). And MLB (and other sports) would not have banned steroids (and fans and media members would not have pushed for a ban) if there were not a sense that steroid use was “wrong” and had to be banned.
But why are steroids bad? And. in turn, why should they be prohibited?
The fallback argument is that steroids and other performance-enhancing drugs afford modern players an unfair advantage over the players who came before them, enabling them to break old records and put up gaudy numbers because they have “help” that old-time players never had. In a sport as history- and number-obsessed as baseball, this is a big deal.
The problem with this argument is that there are so many scientific, medical, nutritional, technical, technological, and health advancements that modern players use to their benefit that old-timers never had. We know more about what players should eat; what nutritional supplements they should take; how they should work out; and how they should take care of their bodies both to remain healthy and to recover from injuries. Surely that allows them to play longer and better. Equipment (baseball gloves, football helmets, basketball shoes) is better-made, bringing both safety and performance benefits.
To say nothing of the medical advances that allow players to return from what used to be career-ending injuries. How many pitchers now have “Tommy John” Surgery or surgery to repair the dreaded torn rotator cuff and come back as good or better than before? Compare that with Mark Fidrych, whose promising career was over in three years because of arm problems. And how should we understand the concept of “performance-enhancing” when it comes to science and medicine? Greg Maddux had laser eye surgery that improved his vision, allowing him to see better on the mound (where he did not wear glasses), presumably with performance benefits. How about Ritalin, which basically functions as speed in a person without the chemical imbalance of ADHD; what could that do for a player on a Sunday afternoon during the Dog Days of August?
So why are steroids, human growth hormone, and other substances not regarded as kindred medico-scientific advances that simply help players recover from injury, remain healthy, and play longer and better? Is there any meaningful difference that justifies the differential treatment? To put it in constitutional law terms: What is the rational basis for banning steroids?
One difference might be that the negative long-term health consequences associated with steroids—enlarged head, shrunken testicles, and ‘”roid rage” for starters, plus unknowns down the line (stories of a cancer link abound, although I am not aware of any scientific evidence)—outweigh any benefits for players. The question then becomes why players should not be allowed to balance whether the performance benefits outweigh the health risks and to choose what they believe is best for them. Perhaps many professional athletes are competitive enough to sacrifice long-term health for something that will help them achieve greatness right now. This is a micro-version of the broader societal debate over governmental paternalism.
Is that the explanation? And is that sufficient justification for a ban? Or is something else going on?
Did the Mountain West Conference Bungle its TV Deal?
Conglomerate Blog's Gordon Smith, a Wisconsin law professor and BYU fan, thinks so.
Hate Speech as Cheering Speech
Alert Reader Will Li points me to this article in The Sun containing this picture that is worth 1000 words. Anyone else see the irony in this occurring at a "friendly?"
So is this constitutionally protected "cheering speech" or something different? According to the story, Croatia could be kicked out of the 2008 European soccer tournament if their fans (who have a history of presenting racist taunts and symbols in the stands) continue to pull stunts like this one.
But the law of the European Union is far more restrictive on the display of racist symbols, especially swastikas (given European history) than is the law under the First Amendment.
In general, racist symbols are constitutionally protected under the First Amendment--remember that Nazis can parade through the streets of a largely Jewish suburb waving swastika banners--unless and until they cross the lines into direct "true threats" (words placing the listener in fear of imminent physical harm) or targeted "fighting words" (words that, by their very nature, would provoke a reasonable person to respond with immediate physical violence). For that to happen, however, expression must be directed at or addressed to a particular person or persons, usually in some close-up, face-to-face, confrontational exchange. Otherwise, it simply is symbolic expression that causes anger, offense, or even intimidation--but a listener's anger or offense is not a basis for restricting speech.
It is hard to tell from the photo, but it looks like these fans are pretty far from the action and pretty far from other fans, making it unlikely there is any face-to-face, directed encounter going on. In my article on the subject, I offered the hypothetical of a KKK protest at Shea Stadium during Jackie Robinson Day, featuring Confederate flags and signs remembering the "good old days" of segregated baseball. Offensive as that might be, I think that would be protected, especially in the political context of a day to honor Jackie Robinson. It seems to me the swastika is a difference in degree--it is more offensive, more intimidating--not in kind.
Much of my argument regarding speech at sporting events turns on the notion that the rules governing expression in the stands should be no different than expression occurring in any other expressive forum. So if this symbol would be protected on a stree parade, it is protected at a soccer (nee, football) match.
Sport and Speech: The Athletes Speak
The expression that pervades sport falls into three categories. The most interesting, category is expression by the athletes, both on the field and off. Professional and college athletes possess a unique forum in which to express their views during and through the event itself. And, by virtue of their fame (or notoriety), their messages attract a broad audience. Unfortunately, the public seems to be of two minds when it comes to athletes speaking out.
On one hand, the public occasionally demands that athletes take a stand. Michael Jordan often was criticized for his unwillingness to speak out on political and racial issues, notably when he declined to endorse Harvey Gantt, an African-American Democrat running for United States Senate in North Carolina against Jesse Helms in 1990 (never mind that Jordan at the time lived, and presumably voted, in Illinois). The New York Times was similarly critical of Tiger Woods for failing to speak out against Augusta National’s exclusion of women several years ago. In both, the expectation was that, as high-profile and influential minority athletes, each had a special obligation to raise his voice in support of other oppressed minorities.
On the other hand, when athletes do speak out, they often present a message that proves unpopular with much of the public. The unfortunate response to that expression often is something along the lines of “Who does he think he is and why should anyone listen to him just because he can run fast or throw hard?” Or worse, the suggestion is that such expression has no place in sports because sports should be apolitical--although sports clearly are not. This was the response to Boston Red Sox pitcher Curt Schilling, during the locker room celebration following the Sox 2004 World Series victory, when he gave an on-camera endorsement of President George W. Bush, shortly before that year’s presidential election. Even Jackie Robinson, someone who take a stand on behalf of racial equality, was criticized for supporting Richard Nixon.
A more visceral response has greeted the several athletes over the years that have declined to participate in pre-game and in-game patriotic rituals. In 1996, NBA star Mahmoud Abdul-Rauf refused to stand on the court during the pre-game Star Spangled Banner and was fined and suspended by the NBA. In 2004, Toni Smith, a senior basketball player at tiny Manhattanville College, drew public attention (and the ire of opposing fans) for turning her back on the flag during the anthem as a protest against the Iraq War. Most recently, baseball player Carlos Delgado refused to stand on the field during the in-game playing of God Bless America. Delgado, who was protesting the war and U.S. bombing exercises off the island of Vieques in his native Puerto Rico, was booed at Yankee Stadium back in 2004. He halted his protest when he went to the New York Mets in 2006. Frequently, the objection that greets such protests (especially when done by well-paid stars such as Abdul-Rauf and Delgado) takes the unhelpful and unfair form of “How dare you protest the country when you are paid so well? If you don’t like it, leave.”
One objection to team athletes taking expressive stands within the game is that their individual expression interferes with the “team concept.” Ironically, however, the harshest sanctions have fallen on the individual athletes who took the most-famous expressive stands. First is Muhammed Ali, who was stripped of the world heavyweight championship (back when that title meant something) when he declined military induction. Ali could not get sanctioned to fight by any state within the United States for several years (an action that itself raises some interesting First Amendment issue) until the Supreme Court of the United States reversed the conviction. Second are Olympic sprinters Tommie Smith and John Carlos, who gave a gloved “Black Power” salute on the medal stand at the 1968 Mexico City Games. Both were kicked out of the Olympic village and permanently suspended from Olympic competition.
An interesting question is how the public would respond to both situations today. We are, I think, more tolerant of unpopular political speech than we were forty years ago. Certainly the scope of the freedom of speech is broader than it was forty years ago, so formal sanctions are less likely against speakers.
And consider the power of hindsight. Ali is widely haled today, in part for the very willingness to take a political stand that made him unpopular 35 years ago. The same for Carlos and Smith, who were honored in the House of Representatives in 2004 for taking “a courageous stand for social justice in one of the most powerful moments in Olympic history.”