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Wednesday, October 31, 2007
Sonics Judge: The Worst Judicial Sports Metaphor of All Time?

Federal district judge Ricardo Martinez handed down his first ruling in the dispute between the Seattle Supersonics and the City of Seattle, which I blogged about last week. You can download or view a PDF of the court's ruling here.

The ruling itself resolves a matter hardly central to the underlying dispute in an unsurprising way. After removing the case to federal court, the Sonics owners sought to compel arbitration. Although federal courts generally favor enforcement of arbitration clauses, in this case the lease contract fairly clearly excludes disputes concerning the term of the lease ("Section II" of the lease) from the arbitration clause.

I don't have a problem with the decision itself. But why include this (on page seven)?:
[The Owners'] attempt to side-step Article II and shoot for Article XXVI is as errant as a typical Shaquille O'Neal free throw.

The court here not only mixes metaphors (side-stepping and free-throw shooting), it also misrepresents Shaq's free-throw shooting capabilities. Shaq is a lifetime 53% free-throw shooter. His problems have surfaced -- unfortunately -- primarily during the playoffs. Were the court inspired to use a metaphor based on O'Neal's foul shots, it should have added, " the playoffs." The fact is, the majority of Shaq's free throws go in! Does the court mean to suggest that the majority of the owners' arguments are convincing? Clearly not.

So what do metaphors like this add? Can a court be taken seriously when it spends time (although apparently not much time) thinking of ways to insult professional athletes? Why do courts, as one student asked me after reading the opinion, do this sort of thing regularly in sports cases but not in other disputes? (I've never seen a pun on "coke" in a case involving a steel company dispute, for instance).

Then again, maybe the court will choose to characterize the city's underlying effort to enforce the lease via specific performance as a Hack-a-Shaq technique: a somewhat unsportsmanlike and typically unsuccessful approach. Judge Martinez, with all due respect: A swing and a miss.


Even very casual fans know about Shaq's reputation as a poor free-throw shooter. Only the more dedicated ones will know that it's mainly a playoff thing.

Anonymous Peter -- 10/31/2007 11:12 AM  

Not to put too fine a point on it: A 53 % career free-throw percentage stinks; a "decent" free throw shooter should be in the mid/upper 70s. This is not about reputation or just the playoffs; Shaq is, by any basketball definition, a bad free throw shooter. And how much worse is he in the playoffs? So the metaphor, although perhaps uncalled for, is not inapt.

The use of metaphors seems to come up throughout cases involving disputes from "lighter" industries--sports, music, entertainment. I think when the case relates to a popularly enjoyed and understood subject, judges want to show they can relate to the public enjoyment by speaking on a public (rather than a rarefied legal) level. It also may be the judge trying to have some fun in a less heavy case, although that ignores the seriousness underlying many of the legal issues. Geoff is right that it rarely works.

Blogger Howard Wasserman -- 10/31/2007 12:14 PM  

"Judge Martinez, with all due respect: A swing and a miss."

I completely agree. The judge was apparently attempting to insert a little humor and maybe make a name for himself (which he apparently did, because you have now blogged about him and posted his picture).

This was a bad choice of metaphor, because although Shaq does miss lots of free throws, he is still successful more than half of the time he steps to the line, as you state. Sports statistics can be deceiving, as shown by the judge's interpretation: 53% at the free throw line is terrible, while in baseball, 33% at the plate for a career will get you into the hall of fame.

Bottom line? The judge should stick to what he knows - the law. There was no need to add the metaphor.

Anonymous jackie bost -- 10/31/2007 12:26 PM  

53% last season would make a player 404th out of all NBA players. His season average of .422 last year put him at 428 of the 453 who made it on to

Sorry its an apt analogy.

Blogger Mark -- 10/31/2007 12:41 PM  

I have had Shaq on my fantasy team for the last two years.

I have first hand knowledge that he has single-handedly assisted me in losing my head-to-head results primarily due to his poor free throw %age. It was always a clear loss every single week.

I rebounded, however, and this year avoided him altogether.

Mr. Rapp, you are no fantasy player...this is a fine analogy even if the judge wants to make a name for himself.

Anonymous Anonymous -- 10/31/2007 1:16 PM  

Debating whether Shaq is a good or bad free throw shooter is not the point. The question is, why do judges treat professional athletes different from people in other professions and industries? Another analogous situation is when judges say that players make enough money and don't deserve to make more...a judge would NEVER say that about somebody in another profession (not even Bill Gates). I'm not sure why the sports/entertainment industry is treated by judges differently (i.e. Howard referred to it as a "lighter" industry and one in which judges try to have some fun with it). The question is, should they be doing it? Another question is whether this sort of mentality influences the decision of the case or in other cases?

Blogger Rick Karcher -- 10/31/2007 2:03 PM  

Part of being a judge is writing an opinion. Key word: "opinion."
Making analogies is quite within that realm. This analogy to Shaq seems quite apt.

As far as the reference to the MLBAM decision (i.e., as you say "players make enough money") it seems to me that that is within the realm of their "opinion" as well whether you like it or agree with it or not (admittedly, it's not really an opinion based on law). If a party doesn't like it, well, appeal the decision.

Anonymous Anonymous -- 10/31/2007 3:04 PM  

A judicial "opinion" is a statement of the court's reasons for its decision. It is not supposed to be an "opinion" about Shaq's ability as a basketball player. Analogies are within the realm, but at least try to write well and with style. A clumsy metaphor such as what the judge used here is just bad writing, regardless of the merits of what he is saying.

Blogger Howard Wasserman -- 10/31/2007 4:13 PM  

"Clumsy metaphor." That's your opinion, not his. Once again you argue for the way things ought to be (how judges should write opinions), not the way things are. At least you are consistent in your idealistic vision of the judicial profession and the legal system.

Anonymous Anonymous -- 10/31/2007 4:51 PM  

I'm wary of criticizing judicial writing styles, mostly because most of them are so terribly dull - I don't want to discourage the next Cardozo or Hand or Scalia or Kozinski or (insert judge with distinctive and readable style here) from indulging their more artistic sides.

Blogger Jason Wojciechowski -- 10/31/2007 6:17 PM  

53% career (actually 52.5% according to is Shaq's regular-season percentage; it drops to 50.1% career in the playoffs.
Worse, Shaq's FT% has been below 50% for the last four seasons.

The judge was right on in the analogy.

Anonymous Anonymous -- 10/31/2007 10:50 PM  

Anon 4:51,

What's your point? In the classroom we question things: we discuss whether it makes good sense and policy, we ask if the judge is correct or incorrect, we discuss ramifications of statements made by judges and whether there is a better way or standard of resolving particular issues. We don't put up a powerpoint slide that merely provides what the judge said in a case, and then move on to the next case. On this blog, we engage in the same type of discussion and debate. That's just "the way things are" on this blog (to use your terminology). If you don't like what we do, then go to another site.

Blogger Rick Karcher -- 11/01/2007 8:38 AM  

The Shaq analogy does make the decision look a little less classy, though it is right on point. It's kind of like academic freedom for judges, if you think about it (i.e., writing an opinion): it is part of the job of an academic (and arguably a "right") to question the status quo, the direction of the law, the role of the law, and express one's opinion even if it is corny or entirely way off base. I do not think many people would have even known about this Shaq analogy without Howard's keen eye. While one has the right to discuss their opinion on this blog and to be critical of a judge, putting forth a position exposes you to the same scrutiny that this judge now faces. If you cannot accept that maybe you should not post your position either.

Anonymous Anonymous -- 11/01/2007 9:07 AM  

You want sharply written borderline clever writing that stands out? You've got to get some stinkers too. The best entertainment writers swing and miss (sports analogy) so I'm hesitant to be too critical of attempts that fall as short as a weak air ball for the simple reason that no one bats a thousand and you can't hit it without swinging.

Blogger Mark -- 11/01/2007 10:25 AM  


It's Geoffrey's post, not Howard's. But in any event, all you've basically said so far is that Shaq is a bad free throw shooter, and therefore the analogy is right on point. [And also that Howard has an "idealistic vision of the judicial system" and that MLBAM can appeal the CBC decision if they don't like it].

The larger questions raised in this post are: what do metaphors like these add to the case; why do judges feel it is acceptable to criticize (or treat differently) people in the sports industry from people in other industries; is this a good thing and if so why; is this a bad thing and if so why. So why don't you articulate an answer to the question you raised in your last comment, e.g. whether criticizing Shaq's free throw ability addresses "the status quo, the direction of the law, and the role of the law."

Here's my answer: This metaphor does absolutely nothing but criticize Shaq. Are we suppose to read the judge's statement and say, now it's more clear to me why the owner's interpretation of the lease is so incorrect -- it's because Shaq is a bad free throw shooter! The fact that Shaq is a bad free throw shooter provides no clarification whatsoever as to why one party's interpretation of a lease is incorrect or how the lease should be interpreted. Is this a bad thing? Possibly, because it suggests that judges should be allowed to interject their own personal views about individuals and their performances, habits, etc. Here, it's actually worse because the judge isn't referring to a particular class of individuals, but is referring to a particular person by name who isn't even a party in the case.

Blogger Rick Karcher -- 11/01/2007 10:31 AM  

Maybe the judge had Shaq on his fantasy team last year and is still bitter so he wanted to interject his personal feelings into the case? Maybe (probably) the judge wanted to be light-hearted? Maybe the judge was trying to show that he is "real"? Maybe the judge wanted to make a name for himself so he can get his on t.v. show? Maybe the judge is a fan of the sports law blog and wanted to instigate debate (probably not, but you never know!). Is all that wrong? No. Is that right? No. It just is what it is and you (all) are right and justified to critique it. Just feel free to be criticized yourself, however, if you want to call it a "clumsy metaphor" or an erroneous decision because it singles out a popular figure (Shaq) and has nothing to do with a legal decision/analysis or rarely "works" in your opinion. Also, take a chill pill and understand that most people who read this blog are thoroughly impressed. If you get overly defensive with others disagreeing with you, you lose your own credibility. Here's my final comment: Try give the judge SOME credit here for being creative. Can you do that, Rick, Geoffrey and Howard? Can you? Can you?...even a little bit?

Anonymous Anonymous -- 11/01/2007 11:33 AM  

I'll try....since you asked nicely. (one of those little smiley face things goes here)

Blogger Rick Karcher -- 11/01/2007 12:09 PM  

Not really an improperly mixed metaphor -- it says the "attempt to sidestep" is "as errant as" a Shaq free throw. The judge is comparing one metaphor with another -- unwieldy, yes, but it's not as if he said Shaq is built like a brick Mack truck.

Anonymous Anonymous -- 11/01/2007 12:15 PM  

The ruling itself resolves a matter hardly central to the underlying dispute in an unsurprising way. After removing the case to federal court, the Sonics owners sought to compel arbitration. Although federal courts generally favor enforcement of arbitration clauses, in this case the lease contract fairly clearly excludes disputes concerning the term of the lease ("Section II" of the lease) from the arbitration clause.

Anonymous Emily -- 11/26/2007 5:10 AM  

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