Sports Law Blog
All things legal relating
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Saturday, March 31, 2007
Another Instance of Point Shaving?

One benefit to professional athletes making substantial money is that the threat of players throwing games or shaving points at the behest of gamblers is diminished (even if not eliminated, see Rose, Pete). Gambling was a genuine threat to the integrity of professional sports in the early days of professional sport, particularly baseball, as Dean Roger Abrams describes in a forthcoming book called Dark Side of the Diamond.

But the risk remains in college sports, where players' genuine financial need, combined with access to gambling and gamblers, gives players an incentive to take money in exchange for poor performance. The latest example involves federal criminal charges filed last week against University of Toledo running back Harvey "Scooter" McDougle Jr. for participating in a bribery scheme to influence sporting events. Story here; some comments here. Scooter allegedly acted as go-between a gambler known as "Gary" and various Toledo football and basketball players, who took cash, cars, phones, and other gifts.

College basketball has had its share of point-shaving scandals: the 1948-49 Kentucky Wildcats, the 1950-51 CCNY team (that won both the NCAA and NIT championships), Boston College in the late 1970s, and the 1994 Arizona State Sun Devils. But there have been fewer examples of football players tanking in this way, probably because one (or even a few) players cannot alone affect the outcome of a game. The only example I recall off-hand (I say with the pride of an alumnus) involved former a Northwestern running back named Dennis Lundy, who deliberately fumbled on the one-yard-line in a 1994 game against Iowa to keep NU from covering the spread (he had a $ 400 bet on the game). Lundy was sentenced in 1999 to one month in prison for lying to a grand jury.

Scooter McDougle admits he accepted gifts from Gary, but insists it never changed the way he played to affect the outcome of games. That becomes the key fact the prosecution must prove. We shall see.

Friday, March 30, 2007
the disappearance of the Activist Athlete

Where have the Activist Athletes gone? In the 1960s and 1970s, Kareem Abdul Jabbar, Bill Walton and Muhammed Ali (amongst many others) advocated, even agitated for political change. A few days ago, Professor Wasserman suggested in connection with HBO's "The UCLA Dynasty" that the Activist Athlete has waned in recent years, due in part to college athletes being less politically involved than they used to be, social activism now coming from the political right (i.e. devout Christian athletes) as opposed to the political left, and that coaches, in particular Coach Wooden not allowing political expression on the playing field or court.

Folks may wonder why athletes today refuse to take strong political stands when the stages that they occupy would allow great influence. Certainly it is not for a lack of controversial political activity. The nation is currently embroiled in an unpopular war, much like Vietnam years ago. Issues of race and gender continue to fill the airwaves, the newspapers and the law reviews.

After reading about Tiger Woods in this week’s Sports Illustrated, it seems abundantly clear why the Activist Athlete has disappeared: Corporate Endorsements (and the potential for superstar athletes to become “billionaires”). Woods’ states in SI when asked about his business acumen and decisions: “It all depends on how much risk you want to take on. . . The things I do are very conservative. . . . I guess you don’t become billionaires by making bad decisions.” Corporate dollars were far less available and significant in the years of the activist Lew Alcindor, Walton and Cassius Clay.

Recall, that Tiger Woods refused to hold Fuzzy Zoeller’s feet to the fire, when Zoeller made fairly egregious racist comments in connection with Tiger as a young professional. Recall that Michael Jordan sprinted away from political controversy during his career, in particular when the issue of child labor abuse and Nike’s manufacture of “Air Jordan’s” overseas surfaced. In fact, it is almost stunning today to hear an athlete take a controversial position. Several years ago Kellen Winslow, Sr. talked openly about affirmative action during his NFL Hall of Fame induction ceremony. Eighteen years ago John Thompson, Jr., boycotted a Georgetown basketball contest while the coach to protest NCAA admissions standards he deemed harmful to young African American athletes.

It is difficult to imagine that Kellen Winslow, Jr. would strike any type of controversial political position today. Similarly, John Thompson III would stun pundits were he to advocate a controversial position in the manner that his father did.

The allure of corporate sponsorship dollars keeps the modern Activist Athlete in check. Why would Tiger Woods risk his fortune? Why would Michael Jordan risk his empire? Why would Larry Bird risk his legacy? The fear of being seen as controversial or risky keeps Activist Athletes from voicing activist positions. I fear that the race for corporate dollars not only silences athletes that might be politically motivated, but also discourages the modern athlete from even carefully examining controversial issues of the day.

That said, Kobe Bryant, who was dropped by several sponsors after allegations arose as to sexual battery, seems to have now been forgiven by corporate America for the time being . . .

Race Attributions and Georgetown University Basketball

Earlier this afternoon, Jon Hanson and I posted on The Situationist a piece entitled Race Attributions and Georgetown University Basketball. Our piece is inspired by Sean Gregory's new article in Time Magazine on the sociological role of race in how fans regard the Hoyas.

Using social psychology, Jon and I examine why so many doubted how well the Hoyas would be able to implement the "complex, precise" Princeton Offense, as directed by John Thompson III after he became coach of the Hoyas in 2004.

We connect those doubts to stereotypes about white persons playing basketball, and the larger issue of how implicit attitudes cause us, often unknowingly, to interpret another's behavior based on his or her race.

We hope you check out our post on The Situationist.

Thursday, March 29, 2007
Rethinking Contact Between NBA Executives and Parents of College Players

Last week, I blogged about the NBA fining the Boston Celtics because their executive director of basketball operations, Danny Ainge, sat next to the mother of University of Texas star Kevin Durant during a recent game. Durant will likely be the second player selected in this year's NBA draft, after Greg Oden, and the Celtics currently have the second worst record in the NBA (however, because of the NBA's weighted lottery system, the team with the second worst record only has a 38.9% chance of landing one of the first two picks). As we examined, the NBA has a strict liability policy on team executives sitting next to family members of amateur players. That's true even though the "desired" players among them are not going to become free agents out of college, since they will be drafted and their NBA employment rights will be controlled by whatever team drafts them. In other words, NBA general managers can't "recruit" prospective draft picks like college coaches can recruit high school players.

Sports Law Blog reader and fellow Celtics fan Matthew Dinan e-mails a fascinating question that highlights a peculiar implication of the NBA's strict liability rule:
Given that Celtics head coach Doc Rivers is a parent of a potential NBA player--point guard Jeremiah Rivers of Georgetown University--could the NBA fine Danny Ainge and Doc Rivers for sitting next to each other, even though it is a prerequisite of their job?
I know the NBA would say it makes an exception in this instance since Ainge and Doc Rivers work together in running the Celtics, but it brings to mind other potential instances that might also, if less clearly, warrant exception.

For instance, say Danny Ainge happens to be friends with former tennis star Yannick Noah. Can they not sit next to each other at a game because Noah's son, Joakim, will be a top 10 pick in this year's draft?

Or how about if Ainge sits next to the parents of BYU basketball star Keena Young to talk about how their sons play together on the same team--Austin Ainge also plays for BYU. Since Young might be drafted next year, would Ainge's seating be a problem with the NBA? Should it be a problem? Where do we draw the line?

Taking it a step further, what's really the point of this rule? It's not like college players become NBA free agents right out of college (at least the draft-worthy ones don't). Can Ainge really brown-nose his way into getting Greg Oden or Kevin Durant or Roy Hibbert or whomever? No. They're subject to the draft. And they will clearly be drafted.

And it's not like getting to know the parents would even help to sign a drafted player--the NBA has a rookie salary scale that determines how much a draft pick will earn based on when he is drafted.

I suppose, as we discussed in last week's post, the NBA might be worried about Danny Ainge encouraging underclassmen to declare. But would that even benefit him in a draft situation, when there are 29 other teams drafting? I guess one could say that every additional top player eligible to be picked makes the draft deeper for all teams, but again, the benefit there seems diffuse . . . unless, of course, you are picking #2, and you know that Greg Oden will go #1, and there is a huge drop-off in talent from Kevin Durant to the next best available player, so you better hope that Durant declares for the draft. Maybe David Stern was right after-all to fine Ainge!

Wednesday, March 28, 2007
FSU College of Law Entertainment, Arts, and Sports Industry Breakfast

The Entertainment, Arts & Sports Law Society of Florida State University College of Law will be hosting the Entertainment, Arts, and Sports Industry Breakfast this Saturday, March 31, at 8:30 a.m.

I am honored to be one of the speakers at the breakfast, which will also include former Auburn head football coach and current ABC Sports broadcaster Terry Bowden, among other distinguished speakers. Details for the event are below, and if you are interested in attending, please click here.

Entertainment, Arts & Sports Law Society

presents the

Entertainment, Arts, and Sports
Industry Breakfast

Saturday, March 31, 2007 8:30 a.m. to 1:30 p.m.
Florida State University, College of Law, Rotunda
425 W. Jefferson St., Tallahassee Florida

All Students and practitioners are welcome!!! Light Breakfast and Refreshments will be served

Terry Bowden, 1993 Coach of the Year, College Football Analyst, Motivational & Keynote Speaker, and FSU College of Law Alumnus

Michael McCann, Sports Law Professor, Representative of Maurice Clarett against the NFL, and Chair-Elect of the Association of American Law School's Sports Law Section

Dr. Thom Park, National Expert on Coaching Contracts

Jan Michael Morris, Representative of Venus & Serena Williams' Father

Steven Newburgh, Cast Attorney for Reality Television's Miami Ink

Rob McNeely, Entertainment Law Professor & Former Creed Counsel

Sponsored by Fowler White Burnett, Attorneys at law

Thanks to Mike Giraud, Shane Costello, and Ryan White for their excellent work in putting this event together.

Tuesday, March 27, 2007
March Madness and Groupism

Jon Hanson and I have a post up on The Situationist on what March Madness and, more generally, our team allegiances and group affiliations, might say about us and human behavior.

We believe that the very same attributions that drive us toward caring so deeply about our schools and teams emerge in many other life contexts, some good, some not so good.

We hope you check out our post.

UCLA's Dynasty

Last night, I watched the HBO Sports documentary The UCLA Dynasty, which recaps (in a too-short 60 minutes) UCLA's run of 10 NCAA titles in 12 years under Coach John Wooden. Definitely worth a look when it re-airs (if you have not TiVoed it).

The show does a great job showing how the program played against the backdrop of the social and political upheaval of the late 1960s and early 1970s on issues of civil rights and Viet Nam. And it shows how activist and politically involved many of the players (including star players such as Lew Alcindor and Bill Walton were. For example, I never knew that Walton was arrested at an anti-war rally while in school.

Interestingly, Coach Wooden comes across as having been somewhat supportive of his players' activism, at least out of season. Wooden had strict short-hair/no-facial-hair rules during the season, but, for example, allowed the African-American players to express identity growing it away from the season. Similarly, in the recap to the incident where Walton was arrested, Wooden expresses support of the player's right to speak out, but only asks him to "keep an open mind" and to think through the consequences of his actions.

Perhaps this all is a product of its time in three senses.
First, athletes (especially college athletes) today are, as a whole, far less politically involved than they were--but so are college students generally.
Second, whereas the activism of the late 60s/early 70s came on the political left, most athletes' activism today comes from the political right, especially among the many devoutly Christian athletes.
Third, the activism never made its way onto the floor, probably because Wooden would not have allowed it. On the other hand, those athletes today who do take a political stand--Carlos Delgado and "God Bless America," Toni Smith and the national anthem, the role of God and Christ in a player's victory--all are on display on the playing field.

Monday, March 26, 2007
Issues in College Sports Lecture Series at the University of Memphis

The University of Memphis Sport and Leisure Commerce program is in the midst of hosting its 2nd Annual Issues in College Sports Lecture Series. The series features coaches, scouts, agents (including Jimmy Sexton), sports business professors, and sports law professors, among other distinguished guests. The series has been put together largely through the excellent work of University of Memphis Professor Richard Southall (pictured to left), who we recently blogged about in regards to the White v. NCAA lawsuit, and some of his students like Carrie Sordel and Charley Fausey. Here is a schedule of upcoming events (and if you would like to attend any of these discussions, directions to the University of Memphis are available at this link and all of the events will be held in Room 124 of Ball Hall).

Monday, March 26th, 4:00p.m. - The Business of College Sports. (Ryan McPhail, Titus Jackson – student moderators)

Dr. Ronald Dick – Duquesne University

Dr. Mark Nagel – University of South Carolina

Dr. Kadie Otto – Western Carolina University

Mr. Jimmy Sexton – Memphis, TN

Dr. Nathan Tomasini – The University of North Carolina at Chapel Hill

Friday, April 6th, 4:00p.m. - Division I College Recruiting: The good, the bad, and the ugly. (Ryan Ivey – student moderator)

Coach Jimmy Adams – Head Boys Basketball Coach, Raleigh-Egypt High School

Mr. Chad Alexander - Midwest Area Scout, Baltimore Ravens

Mr. Bobby Burton - Chief Operating Officer and Editor-in-chief

Dr. Joe Luckey – Director, Center for Athletic Academic Services, The University of Memphis

Dr. Fritz Polite – The University of Tennessee-Knoxville

Friday, April 13
th, 4:00p.m. - Congress, Intercollegiate Athletics, and Higher Education: Is college sports a tax-exempt enterprise or an unrelated business? (Shawn Fayard, Walt Barton - student moderators)

Prof. Paul Anderson – Marquette University Law School - National Sports Law Institute

Prof. John Colombo – The University of Illinois Law School

Prof. Michael McCann – Mississippi College School of Law

Dr. Dave Ridpath – Ohio University

Prof. Linda Sharp – University of Northern Colorado

Dr. Ellen Staurowsky – Ithaca College

Mr. Welch Suggs – University of Georgia

Friday, April 20th, 4:00p.m. - White v. NCAA: Greed or Monopsony – A discussion of the case’s legal merits. (Carrie Sordel, Dawnyell Fletcher – student moderators)

Prof. Paul Batista – Texas A&M University

Mr. Tony Bonds – Suntrust Financial

Mr. Patrick Byrne – The University of Memphis

Mr. Ramogi Huma – College Athletes Coalition

Dr. Allen Sack – The University of New Haven

Friday, March 23, 2007
New Sports Law Scholarship

New this week:
M. Christine Holleman, Recent Development, Fantasy foot-ball: illegal gambling or legal game of skill?, 8 NORTH CAROLINA JOURNAL OF LAW & TECHNOLOGY 59 (2006)

Aaron Levy, Note, A risky bet: the future of pay-to-play online fantasy sports, 39 CONNECTICUT LAW REVIEW 325 (2006)

Paul D. Trumble, Comment, “Knickel” and dime issues: an unexplored loophole in New York’s genetic discrimination statute and the viability of genetic testing in the sports employment context, 70 ALBANY LAW REVIEW 771 (2007)

Wednesday, March 21, 2007
Brooklyn Law Prof Takes on the NFL

Wendy Seltzer, a visiting assistant professor at the Brooklyn Law School, is embroiled in an intellectual property battle with the National Football League. Seltzer has been detailing her battle with the league over her posting of an NFL clip from Youtube on her own blog for a while. Yesterday, ars technica picked up the story, which has since been reported in the mainstream media (I heard about this through fark).

No, Seltzer didn't post a clip of a hard hit, a long pass, or an impressive run up the middle. Rather, she posted the NFL's copyright notice, which most football fans have seen numerous times on TV:
This telecast is copyrighted by the NFL for the private use of our audience, and any other use of this telecast or of any pictures, descriptions or accounts of the game without the NFL's consent is prohibited.
According to Seltzer, she wanted to demonstrate to her students that, from a legal perspective, the NFL's statement was false. Namely, the NFL's warning fails to make any mention of "fair use."

Likely unaware that it was dealing with an Electronic Frontier Foundation lawyer, the NFL pursued its Digital Millenium Copyright Act remedy, asking Youtube to take down the clip. Seltzer filed a counter-notification, claiming that her posting represented fair use.

As a blogger who regularly lifts copyrighted images (but so far, no video clips) for educational purposes, it may be obvious that my sympathies lie with Professor Seltzer. I've long thought that law professors who blog could claim a fair amount of fair use protection for images (those blogs sponsored by deep-pocketed publishers seem to avoid possibly copyrighted images). However, I have to admit that were anyone to ask me to take down a picture the rights to which they own, I would probably pull it off the blog.

Tuesday, March 20, 2007
Close Encounters of The Stern Kind: Danny Ainge Fined

The NBA has fined the Boston Celtics $30,000 for general manager Danny Ainge unintentionally sitting next to the mother, step-father, and grandmother of University of Texas freshman Kevin Durant, who will likely be the second player selected in the 2007 NBA Draft, during the Big 12 tournament a couple of weeks ago. They were all seated five rows behind the Texas bench. NBA rules prohibit team executives from contact with college players until they officially declare for the draft.

But 1) was that rule actually violated; and 2) even if Ainge violated the rule, does it make much sense?

Let's take the first question first. It should be noted that Ainge sat next to Durant's mom and not him. The rule expressly prohibits contact with the college players, although the NBA is interpreting it to also include family members and "advisers." Notwithstanding what I think about the rule, I believe the NBA is making the correct interpretation: it would seem to be in the spirit of the rule for it to extend to immediate family members of the player, otherwise there would be a rather jarring loophole.

It should also be noted that Ainge's contact with Durant's family was unintentional; their seats for the game happened to bring them to the same place, five rows behind the Texas bench. Having said that, the NBA's rule appears to be based on strict liability; intent, or even a lesser element like recklessness or negligence, does not seem to be required.

But the second question is perhaps more intriguing: Why does this rule even exist? After-all, it's not like Ainge, or any NBA executive, could actually recruit Durant by speaking with him or his mom. That's because the NBA, like other major sports leagues, employs an amateur draft, meaning college players are not free agents. Moreover, even if the Celtics tried to lose enough games to secure the second worst record, which they presently "enjoy", they may not wind up with second overall pick--and as all of us Celtics fans know, sometimes a weighted lottery doesn't work out the way it should (i.e., Tim Duncan should really be a Celtic, but isn't. I still haven't gotten over that). In fact, securing the second-worst record only provides the Celtics with a 38.9% chance of landing one of the top two picks.

Now, I suppose NBA Commissioner David Stern could say that by sitting next to Mrs. Durant, Ainge might somehow try to persuade her that if the Celtics don't land the second pick, then she should convince her son to holdout from whichever team drafts him and then demand a trade to the Celtics. Or maybe Durant's grandmother is really the influential one, and Ainge could try to employ the same plan with her. Or maybe its the step-dad. Or maybe these are far-fetched ideas that sound in paranoia, rather than reality.

Another possible and perhaps more legitimate NBA concern: Danny Ainge might encourage Mrs. Durant to convince her son to declare for the NBA draft, rather than to stay at Texas. This concern seems more plausible, especially since the NBA seems intent on protecting the NCAA and its member schools, which obviously make a ton of money off the free labor of these players. Henry Abbot over at his new home for (congrats Henry)--explains in his post "The Myth of Amateurism" why this rationale may not be the most meritorious, even if it is commonly mentioned.

One last contextual point: the fining of the Celtics for Danny Ainge's "inappropriate contact" is the latest in a string of recent NBA fines of NBA executives for comments or actions related to potential draft picks. Namely, the Charlotte Bobcats were fined $15,000 for comments made by co-owner/CEO Michael Jordan regarding Durant, and the Golden State Warriors were fined $15,000 for comments made by coach Don Nelson about Durant and presumptive number one overall pick, Greg Oden.

Monday, March 19, 2007
Baseball and the Brain

Interesting David Brooks column in The Times today, talking about the way in which baseball players depend almost exclusively on the unconscious brain to play the game and how baseball has developed drills to reinforce those unconscious responses.

New Sports Law Scholarship

New this week:
Glenn George, Playing cowboys and Indians, 6 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 90 (2006)

John A. Gray, Sports agent’s liability after SPARTA?, 6 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 141 (2006)

Jonathan Jenkins, Note, A need for heightened scrutiny: aligning the NCAA transfer rule with its rationales, 9 VANDERBILT JOURNAL OF ENTERTAINMENT & TECHNOLOGY LAW 439 (2006)

Peter Kreher, Antitrust theory, college sports, and interleague rulemaking: a new critique of the NCAA’s amateurism rules. 6 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 51 (2006)

Andrew E. Rice, Eddy Curry and the case for genetic privacy in professional sports, 6 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 1 (2006)

Ronnie Wade Robertson, Comment, Tilting at windmills: the relationship between men’s non-revenue sports and women’s sports, 76 MISSISSIPPI LAW JOURNAL 297 (2006)

Leena M. Sheet and A. Benjamin Katz, Protecting rights in videogames: next generation licensing, 6 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 124 (2006)

George D. Turner, Note, Allocating the risk of spectator injuries between basketball fans and facility owners, 6 VIRGINIA SPORTS & ENTERTAINMENT LAW JOURNAL 156 (2006)

Saturday, March 17, 2007
RIP, Commissioner Bowie Kuhn

I should have posted on this yesterday, but I came late to the New York Times obit of former Commissioner of Major League Baseball Bowie Kuhn, who died Thursday at age 80.

Kuhn's name is familiar to most law students because he was the named respondent in Flood v. Kuhn, the 1971 case in which the United States Supreme Court rejected former player Curt Flood's challenge to the Reserve System, holding (actually, reaffirming an 80-year-old holding that the Court thought was wrong) that Major League Baseball was not subject to federal antitrust laws. For both student and professor, that opinion is either fun or ridiculous (depending on one's point of view) because all of Part I was an ode, written by Justice Blackmun, to the history and majesty of baseball. It included a listing of many great players of the pre-WW II era. Chief Justice Burger and Justice White refused to join that part of the opinion and, the story goes, Justice Marshall demanded that Blackmun include some Negro League players. Dean Roger Abrams, one of the leading sports-law scholars, recently wrote a paper on the players listed in the opinion.

What I think is noteworthy about Bowie Kuhn is that he may be the last independent baseball commissioner to serve for a substantial period. He was willing to wield his "Best Interests of Baseball" powers against the owners who, as a legal and practical matter, employ him. As the Times story describes, Kuhn repeatedly took on owners in a way I am not sure Bud Selig or whomever replaces him two years from now will be willing or able to do. Most notably, Kuhn wielded his "Best Interests" powers to void a series of deals when Oakland A's owner Charlie Finley tried to sell off the star players from his championship teams to avoid losing them to the early days of free agency.

Kuhn's commissionership is historically significant (arguably the second most historical, after Landis and before Selig) because of the massive changes that occurred on his watch. Some were for good (increasing attendance, increased television viewership, a fair labor system), some were for ill (multiple work stoppages and lingering racial tensions in the game) and some were for very ill (have you checked out the uniforms teams wore in the 1970s?).

Wednesday, March 14, 2007
On the Limits of Analogies Between Baseball and the Law

I love baseball. And I love law. And I like judges and lawyers who share those twin passions. But the repetitive analogies between umpiring and judging are getting old and inaccurate very quickly.

The latest comes from Justice Samuel Alito (UNRELATED ASIDE: When Alito was a judge on the United States Court of Appeals for the Third Circuit and I was a law clerk for a judge on that court, Alito swore my co-clerks and me onto the bar). Anyway, Justice Alito was in St. Petersburg, recently to throw out the first pitch at a Devil Rays-Phillies game (Alito is a life-long Phillies fan, but donned a D-Rays jersey). Rick Garnett has the photo and story here. And I agree, Rick: Alito has pretty good form.

But the story describes Alito giving a talk at a dinner while he was there and saying the following:

One of the things I am asked is if I believe in a living Constitution," Alito said in his speech, referring to a thought that the Constitution can reflect the times. "Umpires face this very same problem. For example, do we want a living strike zone?"

These analogies do not work and they must stop.

First, whether a legal rule should or will "live" depends to some extent on the nature of that rule. There is not much interpretative life in:

"The STRIKE ZONE is that area over home plate the upper limit of which is a horizontal line at the midpoint between the top of the shoulders and the top of the uniform pants, and the lower level is a line at the hollow beneath the knee cap."

There is inevitably and necessarily more life (with the attendant evolution and change) to interpreting and applying broad, amorphous principles or ideas such as "the freedom of speech" or "cruel and unusual punishment."

Second, we do have a living strike zone. If you don't believe me, watch a baseball game from the 1970s or 1980s on ESPN Classic. Pitches at the letters were routinely called strikes, as were pitches slightly below the knees (what was then called a "National League Strike"). Neither one is ever called a strike now. True, the strike zone was lowered slightly in 1988. But rarely is any pitch above the belt called a strike nowadays.

Third, the fact that there were differences between National and American League strike zones tells us that some "life" was present. Back in the 70s and 80s, AL umpires used large exterior balloon chest protectors, which required them to stand more upright--allowing them to see the high pitch more easily than the low pitch. NL umpires wore chest protectors under their shirts, allowing them to crouch lower and thus better see the low strike.

Fourth, even with uniform equipment, no two strike zones are exactly the same simply because no two umpires are exactly the same. There will be slight variations in each umpire's crouch or the angle of her head or her position behind the plate. Such differences produce variations in how each umpire sees a given pitch and thus how each umpire calls a given pitch--what each strike zone looks like.

The point is that umpiring, particularly balls and strikes, is not a perfectly objective determination. Of course, neither is judging the meaning of the First Amendment.

So, on second thought, perhaps the analogy between judging and umpiring works. Just in the precise opposite direction from what Justice Alito was trying to suggest.

Hiring a Union Executive Director 101

In my post last Friday, I discussed the latest developments in the ongoing battle between the NHLPA and its executive director Ted Saskin. On Sunday evening, the 30 player representatives voted to put Saskin and senior director Ken Kim on paid leave, and to hire an outside lawyer to investigate whether they were reading private player emails. All indications lead to the conclusion that the union will be searching for new leadership. As stated in a comment to my post, maybe the players will now have an ample opportunity to deliberate about who they really want to lead them going forward.

But how do the players go about making such an important decision? What may seem like a common dilemma often faced by any organization or company at any given time is, conversely, atypical in professional sports unions. With the exception of closely-held and family-owned businesses, turnover in top executive office positions occurs on a relatively frequent basis (about every three or four years). Contrast the situation with the tenure of the executive directors in the NFLPA, MLBPA and NBPA: Gene Upshaw - 24 years; Don Fehr - 21 years; Billy Hunter - 11 years. And Bob Goodenow was the executive director of the NHLPA for 14 years before Saskin took his place.

So the first question would be, what qualities and background should an executive director of a professional sports union possess? Should an executive director have experience as a former player, like Gene Upshaw? Should it be a prerequisite that the person have experience as a lawyer, like Don Fehr and Billy Hunter? Or maybe it should be a prerequisite that the person have prior experience as a president of a labor union. Maybe an accomplished person in business with an established track record running a successful company would be a good quality to have. Or maybe a person who has a well-rounded knowledge of sports law :)

The next question is how do the players go about finding the right person? Players could seek the advice of their agents, but there is a conflict there when the agent represents the individual interest of each player, not the interest of the players collectively. Agent Matt Keator said he would offer his opinion if asked by his clients, but he doesn't believe agents should be involved in the decision: "We work for the players. It's not our association. It's their association. In my mind, it needs to be the players setting the tempo." (See Kevin Allen, Players making sure Saskin case handled properly).

Kevin Paul Dupont of the Boston Globe provides an answer to both questions: "[H]ire a small panel of corporate job hunters who can identify two or three worthy candidates to take over the union. Someone the players can trust. Someone with no ties to hockey." (Leadership on thin ice again) When I first read this, I thought, WHAT? A CORPORATE JOB HUNTER? AND NO TIES TO HOCKEY? But on second thought, his suggestion isn't a bad idea. It's time to bring in some new blood, and with the aide of an outside firm that has no skin in the game whatsoever. Search firms are often utilized by companies to fill vacancies in top executive positions. It makes even more sense for the players to hire a search firm because they, similar to all members of labor unions, are not involved in the day-to-day operations of the organization. What makes it even more complicated is the fact that there exists no "pool" of potential candidates that have prior experience running sports unions, as is typically the case when a company is searching for candidates. The players also have conflicting interests among themselves (i.e. rookies vs. veterans) that can cloud their judgment in making a decision about who the best person would be to represent their collective interests.

Monday, March 12, 2007
New Sports Law Scholarship

New this week:
Lindsay C. Ferguson, Comment, Whistle blowing is not just for gym class: looking into the past. present, and future of Title IX, 39 TEXAS TECH LAW REVIEW 167 (2006)

Jodi A. Janecek, Comment, Hunter v. hunter: the case for discriminatory nonresident hunting regulations, 90 MARQUETTE LAW REVIEW 355 (2006)

Sunday, March 11, 2007
Update on White v. NCAA

Robin Acton and Richard Gazarik of the Pittsburgh Tribune-Review have an interesting article on a class action lawsuit filed on behalf of over 20,000 current and former Division 1-A football and major Division 1 basketball players from 144 schools against the NCAA ("NCAA: United Steel Worker Union is trying to Make Athletes 'Paid Employees,' 3/11/2006). In White v. NCAA, the plaintiffs allege that the NCAA violated Section 1 of the Sherman Act, which prohibits illegal restraints of trade, by 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--expenses that the plaintiffs claim are collectively worth between $2,500 and $3,500 a year per student.

The lawsuit also seeks elimination of earning caps for NCAA players, better health care coverage, higher death benefits, and legal assurance that athletic scholarships--which under NCAA bylaws are renewable each year at the discretion of coaches and injured athletes routinely lose them--become guaranteed for four years. If successful, White v. NCAA could require the NCAA to pay more than $100 million in damages, which would be trebled under antitrust law to over $300 million. The plaintiffs are represented by Attorney Marc Seltzer (pictured to left) of Susman Godfrey in Los Angeles, while the law firm Bingham McCutchen is representing the NCAA. I analyzed this lawsuit last February in a post entitled Incidental Matters: Antitrust Class Action Filed Against NCAA.

Acton and Gazarik interview a number of prominent experts for their story, including Professors Richard Southall of the University of Memphis, Stephen Ross of the Penn State Institute for Sports Law, Policy and Research, and Rodney Fort of Washington State University.

Here are some excerpts:
Richard Southall, assistant professor of sports and leisure commerce at the University of Memphis, said highly paid coaches exercise too much control over the players who are struggling financially while making millions for their schools. "Either it's a free market, or it's not," Southall said. "The NCAA says it can't constrain coaches, but yet it can constrain athletes. It's very hypocritical."

* * *

"If you're a really poor kid, you can get a full grant-in-aid and additional money from Pell grants. If you're not desperately poor and not wealthy enough for your parents to send you an extra couple hundred dollars a week, you still fall short," said Stephen Ross, director of the Penn State Institute for Sports Law, Policy and Research. Ross said a star athlete can generate as much as $1 million annually by attracting fans. In a free market, he said, that athlete could be worth a salary of $100,000 per year.

* * *

Rodney Fort, a sports economics professor at Washington State University, said studies show that playing Division 1 football or basketball is a full-time job. He said scholarship athletes, who fit the description of an employee in IRS guidelines, can lose their "jobs" without guarantees.

For more from the article, click here.

Friday, March 09, 2007
Interesting Developments in NHLPA Investigation

In January, I did a post regarding the approval of an independent investigation into the hiring of current NHLPA executive director, Ted Saskin. There have been a couple of interesting developments since then.

First, about three weeks ago, Liz Mullen of Sports Business Journal reported that there are 9 side letter agreements entered between the NHL and the NHLPA in conjunction with the 2005 CBA that have been kept secret from the players (NHL says players' union should keep side deals secret, 2/19/07). These side letters add to or elaborate on details of what was agreed to in the CBA. According to Mullen, Saskin said in an email that he agreed with the league to keep these side letters confidential because they contain "sensitive economic data" but he also stated that "the material provisions contained in the letter agreements were shared with the players during ratification" of the CBA.

However, some players and agents say that players were not told about the contents of the letters, including one that pledges union money to the league if players are paid too high a percentage of leaguewide revenue, until after they had voted on the labor deal. According to Richard Marcus, an attorney representing the players, "How can the letters be not confidential to Ted Saskin but confidential to the people who employ him?" Mullen also noted the observations of two unnamed labor lawyers who stated that, while there is precedent in which management has been able to keep proprietary information secret from unions, they have never heard of a case in which the union already has the information and keeps it secret from its own members. Also, the NLRB has taken the position that the union's "failure and refusal" to give the players access to the side letters constitutes a violation of the NLRA.

The second latest development was reported today by Kevin Allen of USA Today ("Players trying to find out if NHLPA accessed private e-mails"). I guess the title of the article sums it all up. But what is interesting is that Saskin is not denying the allegation that union executives have been reading private player emails, but is instead pointing the finger at the former executive director of the union, Bob Goodenow. According to the article, in regards to a conference call that is scheduled for Sunday with the board of player representatives, Saskin told the Canadian Press: "I plan to address the board on Sunday night and the board will learn that Bob Goodenow had instructed NHLPA employees to review player e-mail accounts and this occurred during the lockout and I was not aware of this until much later." Goodenow, in a statement released through his lawyer, responded:
"The allegations made by Ted Saskin against me regarding player emails are false. To date I have not made any public comment since leaving the NHLPA, and I won't now comment on, or get embroiled in current NHLPA issues. That said, I will be glad to respond to questions from players on any NHLPA policies or practices while I was the executive director. I am unaware of an instance where the security of a single player's email or other personal information was compromised."
Stay tuned, there's more to come.....

Thursday, March 08, 2007
One-Sport Only

Alfred Yen posts on Concurring Opinions about a case in Massachusetts in which a high school freshman violated the state's rule that students can play only one sport per season by playing on both the hockey and swim teams. The student was declared ineligible for the season (in both sports) and the school forfeited all the games in which she played.

Professor Yen raises two issues on this: 1) The seeming harshness of the penalty (it is the same penalty as if the student had accepted money for playing) and 2) The questionable wisdom of the rule. I want to consider the second.

According to the post, the state defends the rule as intended to protect athletes from injury and to ensure they have adequate time for academics. But the rule is so under-inclusive that one wonders whether it could be said to rationally further those asserted interests (as all legal rules must do at a minimum).

Professor Yen notes that there is no prohibition on playing a sport and simultaneously participating in another, non-athletic time-consuming extracurricular activity (school play, band, student newspaper, chorus, debate team, pick your geekdom). Indeed, there is nothing (other than the laws of physics and the space-time continuum) to stop a student from playing a sport and participating in all those other activities. And there is nothing (again besides the laws of physics) to stop a non-athlete from participating in every extra-curricular under the sun. So there seem to be too many other things that are allowed to take-up one-sport-athletes time to justify the rule.

As for the increased likelihood of getting hurt playing multiple sports: There is no prohibition on playing a sport for a school team while also pursuing another sport outside the school context, although risk of injury (and loss of academic time) would be identical. For example, this student could play hockey for the school and be a competitive figure skater. Or she could have played hockey for the school and swam for a club team. So again, the rule does not prohibit something that poses the identical risk to the students' well-being.

There is a tendency in schools to single-out athletics for special regulation beyond that for other activities--schools got their foot in the door for drug-testing by going after athletes. And Massachuseets apparently regulates only athletics, not activities more broadly. Even so, I do not see how this rule is justified in furtherance of the stated interests, given the numerous harms the rule leaves unregulated.

Updated: In an e-mail exchange, Professor Yen suggests that the real reason for the rule is to prevent one great athlete from dominating in a bunch of different sports. In the Comments to this post, Anonymous (one of them) offers a different version of that: It is a way to prevent one athlete from taking spots away from her other classmates to maximize the number of people able to participate in sports.

But either or both rationales are even less legitimate than the avoid injury/enhance academics rationales that have been offered. If one student is both the best hockey player and the best swimmer (both winter sports), she should not be prohibited from seeking to maximize her gifts in both. After all, we do not impose a similar limitation where the best debater in the school is also the best actor in the school. And we want to encourage participation in debate or drama as much as participation in sports, no?

Update # 2: If the MIAA is serious about any of these rationales (maximizing diverse participation; avoiding injury; ensuring time for academics), the rule should not be one-sport-per-season, but one (maybe two) sports per year. If there is a risk of injury from a student playing multiple sports, that is true whether those sports are played concurrently or in different seasons (I still lament that my high school's hopes for a second-straight state basketball championship were dashed when our best player, also the star quarterback, was injured in the last football game of the season). So we are back to the rule being so under-inclusive as to render its logic questionable.

Retiring Chief Illiniwek

The University of Illinois, in a recent move both heralded and reviled, “retired” its 81-year-old mascot “Chief Illiniwek” following the Illini’s last home basketball game of the season. In a controversy that has plagued the University of Illinois for at least the past fifteen years, administration officials finally bowed to pressure applied by the NCAA, deciding to discard the “mascot” that has represented the University since the 1920s.

Supporters of the Chief Illiniwek mascot claim that the white student that dresses in buckskin, native headdress, and face paint pays homage to American Indians in the United States and honors the history and tradition of the original Americans. American Indian groups and other opponents of Chief Illiniwek decry the student mascot as demeaning, derogatory, offensive and disrespectful to Native Americans and their traditions.

In 2005, the NCAA agreed, albeit tepidly, with opponents of American Indian mascots and demeaning imagery by barring any University that makes use of offensive, hostile or abusive American Indian images from hosting any postseason tournaments or events. Thus, the NCAA banned its member institutions from hosting postseason events if it continued to use derogatory or offensive American Indian mascots. The NCAA in so deciding, placed itself in the position of “arbiter of offensiveness” by allowing member institutions to petition the NCAA for exemption from the new policy. Several University’s successfully petitioned the NCAA to allow continued use of American Indian nicknames and logos, including the Florida State Seminoles and the University of Utah Runnin’ Utes, based in part on the local Native American tribe approval of the continued use of the mascot and image.

The University of Illinois “Fighting Illini” and the University of North Dakota “Fighting Sioux” both petitioned the NCAA for exemption and were denied based primarily on the continued derogatory imagery associated with the mascots at those schools, as well as staunch opposition to continued use by local American Indian tribes. In response to the denial of the petitions, lawsuits have been filed against the NCAA by both the University of North Dakota and by two former Illinois students who had previously portrayed Chief Illiniwek. A state district court judge in North Dakota recently entered a preliminary injunction against the NCAA allowing North Dakota to host a home playoff football game this past season. North Dakota claims that the NCAA’s ban breaches contractual relationships with its member institutions and is in violation of antitrust laws. The NCAA plans to vigorously defend its ability to regulate member institution activities. A trial has been set for December 2007.

This running controversy raises several questions of great import: First, since Tarkanian, the NCAA has been afforded nearly carte blanche authority over its member institutions. It is difficult to envision a scenario wherein the NCAA will be found to have exceeded its authority, breached contracts or violated antitrust laws in banning member institutions from hosting postseason events so long as the voluntary member institution continues to use hostile or abusive mascots or logos. Second, if American Indian citizens of the United States are in fact offended, deeply offended, by the mockery of traditions and sacred rituals, why are University administration officials fighting, literally scrapping to continue to offend American Indian citizens? Third, what difference should it make that some American Indian citizens are offended while it is well documented that other Native Americans are not bothered at all by the imagery and in fact claim to be proud of the recognition?

Some argue that the NCAA’s ban is a step in the right direction. Others suggest that the NCAA has been cowardly in not mandating an outright ban against any continued use of American Indian imagery by member institutions. This debate promises to continue for years to come.

And, what is to be made of the continued use of professional sports franchises that cling to American Indian symbols, logos, mascots and images (i.e., Atlanta Braves, Washington Redskins, Chicago Blackhawks, Kansas City Chiefs, Cleveland Indians, etc.)?

Tuesday, March 06, 2007
Banning Boo Birds

The Washington Interscholastic Activities Association is considering a rule that would ban booing, negative comments, and offensive chants at high school sporting events.

I previously have written on whether any type of fan "cheering speech" can be regulated or prohibited at college and professional sporting events. My conclusions in those contexts has been (not surprisingly to those who have been reading me the past few months) that such prohibitions violate the freedom of speech. They also are practically unenforceable, at least in a fair, neutral, and even-handed way. And they are a really stupid idea.

As to banning booing and negative comments: This would run afoul of the First Amendment's basic prohibition on rules that discriminate based on "viewpoint"--rules that permit speech on a topic from one point of view while prohibiting speech on the same topic from a different point of view. Allowing me to cheer for and praise Player X on Team A, but prohibiting me from booing or criticizing Player X on Team A obviously discriminates against one point of view--the negative or critical one. Government cannot require people to "keep things positive."

As to offensive chants: This breaks down on the problem of "offensive to whom?" Is the level of acceptable cheering whatever is acceptable to the most sensitive/least tolerant person in the audience? Acceptable to the school administrator? To the usher?

Plus, much offensive speech is subtle enough that those in charge do not actually recognize that it might be offensive. My favorite example (which I always run back to in all my articles) is what happened when Texas Tech played at Kansas in men's basketball in 2004, a game played a few days after Tech Coach Bob Knight's infamous altercation with the university chancellor at a salad bar in Lubbock. During the game, Kansas fans chanted "salad tosser" at Knight and most listeners (including KU Coach Bill Self and university administrators) praised the students for their cleverness. But go look-up the term salad-tosser as a piece of slang. Think the students knew this when they picked out that phrase?

The point is that prohibiting "offensive speech" is both over-inclusive and under-inclusive. It is over-inclusive because officials tend to get overly sensitive and thus to over-regulate. It is under-inclusive because more subtle (but not less offensive) examples will be missed.

All that said, the fact that this is occurring at the high school level potentially (likely?) changes the analysis. High schools are able to regulate student expression (certainly in school-sponsored and school-funded activities, if not beyond) in ways that would be unacceptable and impermissible on a college campus or in society at large. This includes prohibiting particular points of view on some subjects from being presented within the school confines.

That is why it is important to consider, First Amendment rules to one side, the stupidity of such policies. Whether or not Washington officials could do this gives way to whether Washington should do this. My answer is they should not.

Monday, March 05, 2007
Florida Coastal Symposium: The NCAA Enforcement Process

On Thursday March 15th, there will be an in-depth panel discussion at my law school about the practical and theoretical aspects of the NCAA enforcement process. We have invited some of the key players to serve as panelists who are entrenched in the enforcement process: Jo Potuto, Chair of the NCAA Infractions Committee; Jerry Parkinson, one of the committee's two coordinators of appeals; and Rick Evrard, attorney at the firm of Bond, Schoeneck & King. Their bios can be accessed here. The panel will be moderated by my colleague, Professor Nancy Hogshead-Makar, who teaches our Amateur Sports Law course and has a very impressive bio in collegiate athletics as well.

Joe Drape wrote a timely piece in yesterday's edition of The New York Times about the increased hiring of specialized law firms by universities for representation not only with respect to a pending investigation by the NCAA as one might expect, but to actually perform an internal audit and recommend sanctions before the NCAA has even started investigating ("Facing N.C.A.A., the Best Defense Is a Legal Team"). The article features Evrard, who spent seven years as an NCAA investigator, and his law firm, which represents more than 60 colleges and universities on matters of eligibility, compliance and major infractions investigations. Drape makes some interesting observations:
It used to be that the N.C.A.A. caught wind of a problem at a university, investigated and meted out punishment. Now, with a stretched staff and member institutions often feeling wary of the enforcement process, outside firms have become the nexus for law and order in college sports.
The N.C.A.A.’s Division I, the major athletics division where the bulk of serious recruiting and academic violations occur, has 325 institutions and 150,000 student-athletes. Yet the enforcement division for major violations has only 29 staff members, with each working on no more than three cases at a time.
Athletic directors say a thorough and quiet internal investigation provides an institution with a greater understanding of what went wrong and minimizes the risk of a public relations disaster. Because these lawyers were once a part of the N.C.A.A., they say they understand what punishment fits a particular offense, so they recommend a course of corrective action for the university and penalties it can immediately impose. Although the N.C.A.A.’s infractions committee sometimes adds further restrictions, it rarely rejects the recommended sentence.
According to Evrard: “Some institutions distrust the N.C.A.A. enforcement staff. There is a feeling that the N.C.A.A. is not attuned to the sensitivities of the institution. And some of it is that the N.C.A.A. staff are often young professionals just out of law school, and they are running a case from beginning to end, which, if they were litigators at some firms, they may not be allowed to do for 10 or 12 years.”

To me, Drape's last comment pretty much sums up the purpose for hiring outside law firms to perform internal audits and recommend self-imposed sanctions: The infractions committee "rarely rejects the recommended sentence." And let's face it, cooperation with the NCAA is key. The outside law firm appears to almost act as an intermediary as opposed to the adversarial role typically performed by lawyers. In a previous post, I discussed how universities could benefit from hiring a full time in-house attorney to work exclusively in the athletics department, and this is definitely an area by which in-house attorneys can play a valuable role as well.

UPDATE 3/16/07: Jason Schneider of the Florida Times-Union wrote a great article about the issue ("Firms offer help when schools face legal woes")

Thursday, March 01, 2007
Harvard Law School Conference on Law and Mind Sciences

For those of you interested in social psychology and the law (such as how cognitive biases affect the decision-making of athletes or how situational influences distort fan perceptions of the NBA) and who live near Cambridge, Massachusetts, I am pleased to announce that Harvard Law School's Project on Law and Mind Sciences (which Jon Hanson and I recently co-founded) will be hosting The Conference on Law and Mind Sciences on Saturday, March 10, in Austin Hall at the HLS campus. Our conference will introduce to lawyers, law students, and legal theorists some of the key discoveries and insights of social psychology, social cognition, and related fields regarding the purposes, motives, and consequences of law. It will also bring together some of the country’s most distinguished social psychologists (e.g., Jennifer Eberhardt, John Darley, John Jost) and legal academics (Duncan Kennedy, Charles Ogletree, Martha Minow)--many of whom blog on The Situationist--and will include both the presentation of research by psychologists and a discussion of that research with legal scholars.

It should be a fantastic event, and please let me know if you can make it. I would welcome the chance to meet you in person.
If you would like to attend, please register at this link--that way, you will be sure to get a seat and, just as importantly, some food!

Also, for more general information about our Project, please check out