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Saturday, July 28, 2007
On Vick, Bryant, Bonds, and Rasmussen: Athletes (Allegedly) Behaving Badly

Michael Dorf at Dorf on Law is looking for explanations for the differential treatment of athletes accused of wrongdoing. This is true of sport-related misconduct (why was Tour de France leader Rasmussen kicked off his team and the Tour, while Barry Bonds will break baseball's most-hallowed record sometime next week) or off-field (why has Vick been suspended when Kobe Bryant was not). He asks for a "principle that rationalizes the treatment of these athletes," with the caveat that "different people, different organizations" does not work as an explanation. Some interesting comments, worth looking jumping to look at . My comment, made this morning, is reproduced below:
Unfortunately, the "different people in different organizations" explanation is unavoidable, at least in part.

NFL Commissioner Roger Goodell has asserted (and wielded) a broad power to administratively punish players who run afoul of the law-with running afoul defined as the beginning of the process with the initiation of legal process at arrest/indictment/complaint. In Goodell's view, players' off-field conduct does have direct bearing on fitness for the job, because a player's public likeability and reputation affects the popularity of the game on the field. Agree or disagree with the view, it is the prevailing social policy in the NFL power structure right now. NBA Commissioner David Stern has asserted or sought to wield no such authority.

I think there is a good chance that, if Kobe Bryant played in the NFL now, he would be suspended. If Vick played in the NBA five years ago (or the NFL five years ago, for that matter), he would not have been suspended.

As for Bonds: No formal legal process ever has been instituted against him. He has not been arrested, indicted, or formally accused of anything (contra Vick and Kobe). Reports from last season and earlier this season were that MLB Commissioner was waiting for some indictment of Bonds--tax evasion, perjury, steroid buying, anything--to justify a suspension; no indictment came.

And to distinguish Rasmussen and Bonds on the issue of sport-related misconduct: Bonds has never missed or failed a drug test or otherwise run afoul of the league's steroid policies. As Aron noted, Bonds stands roughly the same position as Lance Armstrong--lots of suggestions and stories, no formal accusations.
Am I onto something? Feel free to offer your own explanations and justifications, here and over at Dorf on Law. I think his offer of a gold star for the winning explanation still stands.


Bonds wasn't charged with a crime so he vs. Vick or Kobe doesn't easily compare.

But Vick v. Kobe is easier to compare.

Kobe plays a sport where a star can catch a flight, arrive minutes before tip-off or even during the course of a game (see Derek Fisher) and make a positive outcome on the game without a major on court disruption.

Vick on the other hand plays a sport where a QB to be effective needs hours of game film review to prepare for the next opponent. An NFL QB needs hours of practice for the timing essential to good performance and for the variations to be used against the next opponent.

The NBA could let Kobe play without causing serious questions about the caliber of the product. The NFL on the other hand was likely asked by the team to step-in regarding Vick because it would impact the quality of the product.

The larger NFL roster presents the league with a PR issue. If say one in 20 athletes in the NBA has legal problems and one in 30 NFL players, in raw numbers the NFL will have more guys facing legal issues and the negative publicity that follows.

Blogger Mark -- 7/28/2007 9:17 AM  

I've said this before, but Goodell's concern with the NFL's image and its effects on the game's popularity makes little or no sense from a practical (though not necessarily moral) viewpoint. The NFL is the proverbial 800-pound gorilla of sports, with such an absolutely unchallenged level of popularity that it can survive just about anything with little or no damage. Every NFL game will be a sellout and TV ratings will be in the stratosphere even with the most egregious and widespread levels of player misconduct. It's truly a bulletproof sport.

Anonymous Peter -- 7/28/2007 9:31 AM  

There is no such thing is bulletproof. Bullet resistant but not bulletproof.

When Pete Rozelle became commissioner, the number one sport was major league baseball and that position was uncontested. I would say at the time, college football was still a bigger game than than the NFL. While commissioner, Rozelle traditionally opened a bottle of champagne after the last out of the world series to mark the true start of the NFL being the focus, though it was a hollow tradition by the end of his career.

Today major league baseball is working hard to get youth baseball restarted in areas where it has disappeared. In my community youth baseball is smaller than it was a decade ago despite rising population.

Could the NFL fall from the top next year? Of course not. But in a decade or two it could be in the #2 spot. The NFL got to the top by doing a better job of connecting with the public and I'd say they intend to stay there using that formula.

One thing should be added to the Vick thoughts. Like the two judges that have to hear the case of the other's public intoxication after they got drunk together, the second one gets the book thrown at him because its the second case we've had today.

Vick's case like Pac-Man's latest arrive on the heels of other cases that have generated bad PR.

Blogger Mark -- 7/28/2007 10:29 AM  

I find this a weird approach to deal with a question, which covers different areas of the law, different sports entities and their different attempts to rid themselves of bad people, but also different countries and different legal philosophies. Sports bodies outside the US have long held that athletes with any kind of banned substance in their bodies or their or their teams' possession are not innocent until proven otherwise. They have to somehow prove their innocence after being caught. Outside the US there is also a long history of trying hard to kick out those doping cheats, who somehow mastered to pass blood or urine tests. The reason: We now know it to be rather simple to fool the test system, which means other and harsher methods have to be applied to accomplish a sense of fair competition. In my mind: The case against Lance Armstrong was strong enough and would have led to his ban, if he would have come back to race in France.

By the way, there is enough circumstantial evidence available for baseball to punish Bonds on doping grounds (if you apply the standards of international sports). MLB just doesn't have the fortitude and will to do it. We can only speculate as to why they did not even try (unions, media, their own lack of responsibility etc.). But those efforts will get us nowhere. Because their and other people's legal reasoning will always point us to all kinds of inconsistencies. And that's a dead end to begin with.

He got lucky (so far) because he (like the other athletes who had to testify) got immunity in the BALCO grand jury investigation. He admitted to using substances that were illegal by Federal law. He just claimed not to not know what they were. Which is why there is a perjury investigation going on. You should not ban him because of that (just as you should not ban Vick or any other athlete until convicted in the court of law). But you should ban Bonds - on the basis of doping.

Blogger Jürgen Kalwa -- 7/28/2007 12:04 PM  

Mark -

I'm somewhat skeptical that the NFL can ever be toppled from its position of supremacy largely because there are no clear candidates to take its place on top of the sports world. MLB is popular, of course, but suffers from a bit of a "has-been" stigma, an image of being your Dad's sport. The NBA has troubles of its own, and is too dependent on superstars for much of its popularity. NASCAR? Well, possibly, especially as it's the only sports organization as superbly managed and marketed as the NFL. It still hasn't completely shaken off its regionalism, however, and unlike other sports cannot draw upon youth participation as a means of building its future fan base. Soccer? It's been the Next New Thing for, oh, twenty years, yet somehow its bright future never quite arrives.

So by default, if for no other reason, I just can't foresee any real threats to the NFL's absolute supremacy no matter what scandals it may face.

Anonymous Peter -- 7/28/2007 12:52 PM  

Just a technicality here, but I do not think that Michael Vick has been suspended just yet. Commissioner Goodell told him not to report to training camp while the Commissioner - and others in the league - assess the situation to decide what to do with him.

Given his trial date in the middle of the NFL season, I think its 99.99% certain that he will not play in the NFL this year. The "form" of his banishment has yet to be decided.

He isn't suspended yet and the decision as to whether or not to suspend him is a non-trivial matter.

If he is suspended, he does not get paid for this year...

Anonymous The Sports Curmudgeon -- 7/28/2007 12:54 PM  

The explanation is that it depends upon how much authority the commissioner/league has to discipline players. It varies depending upon which sport you're talking about.

Blogger Rick Karcher -- 7/30/2007 7:12 AM  

A CNN anchor attributes
the different punishments for Vick and Kobe to our (patriarchal) cultural norms: killing a dog is far worse than raping a woman.

Blogger EBuz -- 7/30/2007 9:43 AM  

To understand the different treatment of athletes in the major sports we must look at the effectiveness and advocacy of each the unions in the varying sports. It is no secret that the MLBPA is by far the strongets and most effective union among the major sports. Unlike Mr. Upshaw, you would NEVER EVER see Don Fehr or Gene Orza at a press conference concerning one of its members who is accused of a crime before they have had the opportunity to privately speak to the athlete!!!!!

Anonymous Anonymous -- 7/30/2007 5:53 PM  

Jurgen, please put down the Oliver Stone movies and think. Let me try to deal with your fantasies one at a time (for that description fits some of what you are saying).

(1) WHAT case against Mr. armstrong are you talking about?? As I understand it, the person wearing the yellow jersey is tested every day after every stage
(and I would guess that those in the other jerseys are tested daily as well), plus the top finishers on each stage. I know I may be leaving out something else, but Lance Armstrong was tested more than anyone else and nothing--NOTHING--came back positive, even when he won an Olympic medal. If you could, read the book Floyd Landis wrote on what HE is going through with fighting the doping charges; plus this lab in France has a bad history of press leaks of results, among a long list of other problems.

(2) Last I checked, unless it has happened recently, the NBA, NFL, NHL, and MLB are NOT under the dictates of WADA or USADA except when players go on international competitions (Olympics, World Chjampoinships, etc.) because no union in its right mind would put itself or its membership under your (and that Saddam Hussein of the drug fight, Dick Pound) version of WADA procedures.

(3) I am NO fan of Barry Bonds, and yes I do have my suspicions; but, since what Bonds said to a grand jury was supposed to be secret under U.S. law, the release of that testimony itself is illegal (and I do believe the reporters should be forced to tell who told them about what was said, and those person[s] jailed).

Anonymous Anonymous -- 7/31/2007 1:29 AM  

@anonymus: You might not know about Armstrongs' old urine samples which were kept and showed EPO doping when tested later (although my guess is, you do, but you will dismiss it). You might not know about athletes who have admitted cheating after having consistently passed every lab test without getting caught. You might not know about doctors who helped athletes to figure out ways to fool labs and mask critical compounds. Just as you might not know about police raids which uncovered tons of stuff like the BALCO investigators did in San Francisco. Just as you might not know about those millions of young school kids buying and using steroids and other illegal substances and how that is part of the bigger picture. It is tough to know what you don't want to know and tough to see what you don't want to see. Maybe that' why the only defense you come up with is based on technicalities. Which becomes dubious, at best, when based on outdated information. The person who leaked the BALCO grand jury transcripts was a lawyer who has confessed to it and will be punished for it ( The accuracy of the information the transcript brought to light was never challenged. Neither was the right of those two journalists to tell the public what they had uncovered. Their legal issue was contempt of court. And they might have gone to prison because of that.

Blogger Jürgen Kalwa -- 7/31/2007 12:19 PM  

Jurgen--I HAVE read, followed, etc. all you have mentioned; and even I agree, young kids (high schoolers) should NOT have access to steroids. And yes, I DO know about those who profess to have cheated years after their competitions (Jan Ullrich, et al.).
Yes, I DO know about the lawyer who will go to jail over leaked grand-jury testimony in the BALCO mess.

As to "technicalities": Let's see, one digit off on a label, samples which are mixed with other samples, improper testing procedures, outdated or improperly-used equipment, even differences between one WADA lab's standards and three others which would have had the "A" sample pass muster.
Hardly "technicalities".

Put another way: Your house is threatened with razing many times because its a health hazard, but you profess innocence because you know it isn't (multiple tests, cleanings, inspections, etc.). While you are gone, the house is torn down on order of your city or state presuming it is a health hazard. BUT, later on you find out that the number on the order was off one digit (say 4415 instead of 4425) or was the wrong direction (say, 4415 S. instead of 4415 N.). You further find out that the person signing the order was only on the job two weeks and was not authorized to issue the order in the first place--he had just been hired from the motor pool in the transport department-- and that the entire file had the one-digit or wrong-direction mistake on it. Even worse, the equipment used for the tests done by this department was 15 years out of date, out of calibration, and the technician operating it . . . was operating it completely wrong.
Hardly "technicalities".

Also remember, if YOU have forgotten (since you seem to have a fetish about Lance Armstrong):
As I understand it, out-of-competition tests are usually surprise tests, so at some point to use your "logic" someone would have to be on "whatever" (masking agents, etc.) year-round to avoid the test coming back positive; seemingly a nonsense thing to do under any circumstances. Short of having vials of urine, blood, etc. stored where one could get to them, you couldn't carry them in a case if you traveled, or have them on your bike for a short-notice test. (Besides, I would think that such urine after a while would SMELL noticeably if used to try to beat the test.)
At SOME point, you would not have the "substitute" sample available, and you're caught.

Anonymous Anonymous -- 8/02/2007 1:13 AM  

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