Sports Law Blog
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Sunday, April 29, 2007
 
Boston Celtics and the Law

Tonight at 7:15 p.m. EST I will be a guest on Celticsstuff Live (update: podcast available here) a radio show devoted to discussion of the Boston Celtics, my favorite NBA team. We will be discussing a recent post that I helped to write on The Situationist entitled "The Situation of the NBA Draft," which examined how NBA players' success is often based on the situation in which they play, even though we tend to judge them as individuals.

We will also be discussing four Celtics-related legal developments that have arisen in the last week:

1) Tony Allen Acquitted: Shooting guard Tony Allen, who had been charged with aggravated battery relating to a Chicago restaurant shooting and was facing two to five years in prison, was acquitted last week in a bench trial before an Illinois state judge. Last September, I wrote a lengthy article on Allen's trial entitled "Tony Allen's Trial: Contemplating Guilt." At least from afar, it's interesting that Allen was acquitted since, according to some reports, the Chicago Police Department had the entire shooting on videotape (although I've also read that the videotape actually exonerated Allen--and as we know, establishing reasonable doubt in a criminal trial is a low threshold). In any event, Allen, who is rehabbing from a serious knee injury, still faces a civil lawsuit from Marktwain Johnson, the man whom Allen allegedly directed someone in his group to "F--k him up!"

2) Sebastian Telfair Arrested: Point guard Sebastian Telfair, who had a disappointing season after the Celtics traded the #7 pick in the 2006 NBA draft to obtain him, was arrested by the NYPD last week after officers, who had pulled Telfair over for speeding, found a loaded .45-caliber Colt semiautomatic handgun in his car. The gun, which was not registered in Telfair's name and does appear to be his, was under the passenger seat. A victim of a robbery last fall, Telfair has been charged with felony second-degree possession of a weapon since under New York law, "when drugs or weapons are found in a car, everybody in the vehicle is charged with the related offense, unless a single person admits it belongs to him."

Controversially, the Celtics responded to the arrest by removing Telfair's nameplate from his practice facility locker and pledging that he would never play another game for them. Telfair's attorney, Ed Hayes, lambasted the Celtics for this presumption of guilt maneuver, saying,
"It's a cheap shot and my client is very disappointed. It seemed to me that they were looking for an opportunity to dump this kid who has worked really hard in his life . . . He's never been arrested before. He came from total poverty and made enormous sacrifices for his family and I think that entitles him to the benefit of the doubt from the public as to what really happened here."

3) Kendrick Perkins Sued for Breach of Contract: Center Kendrick Perkins, who will hopefully be supplanted by Greg Oden next season (I can dream), has been sued by Michael Rylas, his former high school assistant coach who would later become his personal trainer/manager/confidant, for breach of contract. Right after Perkins was selected with the 28th pick in the 2003 NBA Draft out of Ozen High School in Beaumont (TX), Rylas moved with Perkins to Massachusetts and lived with him until last fall. During that time, Perkins paid Rylas, apparently without a contract and perhaps under the table, for various services (training, investing advice, tax advice--basically being Perkins' Chief of Staff).

Then, on September 7, 2006, Ryals and Perkins entered into a formal written contract that called for Rylas to continue to perform those services in exchange for 6 percent of whatever Perkins earned from his NBA contract, but excluding monies he would receive from endorsements or incentives. Perkins would then sign a 4-year, $16 million contract extension with the Celtics but did not, according to Rylas, live up to his end of the bargain.

4) Kevinn Pinkney Arrested for DUI: Forward Kevinn Pinkney, a key member of the Celtics' late season tanking efforts after being signed to a 10-day contract, was arrested on suspicion of driving under the influence in Reno, Nevada last week. He failed several field sobriety tests and was later booked for DUI. I suspect he won't be coming back to the Celtics next season.

I hope you get to listen to the show or its podcast. Thanks to Jon Duke, Justin Poulin, and JB for having me on.

Saturday, April 28, 2007
 
Brady Quinn, the NFL Draft on ESPN, and Confirmation Bias

For those of you who are also watching the NFL Draft, I wonder if we can get any more attention devoted to Brady Quinn, who has received more air time (and at least three personal interviews, including one with a moribund Suzy Kolber who tried desperately to get him to shed a tear or at least a swear) than all other players there, combined? Quinn, who was projected by most mock drafts to not fall past Miami at #9 (and many drafts had projected him to go #3 to Cleveland) has not yet been drafted, and we are on pick #16 as I write this. What I find interesting is how confirmation bias appears relevant in ESPN's coverage of Quinn.

What is confirmation bias? It's a cognitive bias that we all suffer from, and it causes us to interpret information, and to amplify certain information, that validates our beliefs at a particular time. So our minds cherry-pick facts and observations that help to validate an opinion, but discount or altogether ignore information that contradicts that opinion. I write about confirmation bias, and other cognitive biases, in my law review article It's Not About the Money: The Role of Preferences, Cognitive Biases, and Heuristics Among Professional Athletes, 71 Brooklyn Law Review 1459 (2006). In the article, I examine how Jermaine O'Neal seemed to suffer from confirmation bias when he thought that Larry Bird would keep Isiah Thomas as head coach, a belief that many found dubious and yet one that O'Neal regarded as crucial in re-signing with the Pacers in 2003.

But back to Brady Quinn. When the draft began, the ESPN guys were flowering him with superlative after superlative. Steve Young was particularly effusive, gushing that Quinn had remarkable intangibles and would be a fantastic pick. Chris Berman couldn't get enough of the guy. It was as if Brady Quinn was a can't-miss prospect.

But he didn't go number 1. And then Cleveland passed on him at #3 (at which moment the ESPN cameras focused not on the Browns pick, Joe Thomas, or on the Browns fans, but rather on a dejected Quinn and his mom and girlfriend, followed by a photo of Quinn when he was 5-years-old wearing a Browns uniform. Oh the sadness!). Worse yet, when Miami surprisingly drafted Ohio State wide receiver Ted Ginn at #9, suddenly there was a need to explain what's wrong with Brady Quinn. Why had no one picked him? There must be some reason.

Well in came the ESPN trio of Michael Smith, Sean Salisbury, and Mark May who proceeded to deride Quinn as "overrated"; "doesn't play big in big games"; "not accurate"; "even his name 'Brady' is a problem," Michael Smith curiously put it. No longer was Brady Quinn a can't-miss prospect, he had become the beneficiary of playing at Notre Dame, a product of Charlie Weis' play book, and certainly not worthy of a high draft pick. Even worse, his first name was Brady. What were his parents thinking?

It's interesting to observe the rapid shift in "expert" observations of Brady Quinn to fit an unexpected development in the draft. When things looked good for Brady Quinn, Brady Quinn looked good; when the going got tough, so did how others characterized him.

Still, it's undeniably fun to watch the NFL Draft.

Update: As I pat myself on the back for my prediction in the comments section coming true (a first, no doubt), the Browns traded with Dallas to take Quinn at #22, and now ESPN loves Brady Quinn again--"he's not afraid to throw the tough throw,"Braveheart as QB if you will--while doubting the Dolphins for passing on him at #9 (where were those doubts earlier?). And as I type this, Suzy Kolber is interviewing him again, except asking softball questions this time around.

Friday, April 27, 2007
 
Honoring Harvard Law School Professor Paul Weiler

Harvard Law School professor Paul Weiler is considered by many to be the founder of American sports law and the most distinguished sports law professor around. A renowned expert in many legal fields, including labor law and entertainment law, his extraordinary legacy in sports law is the focus of this post.

From a pedagogical perspective, Professor Weiler's sports law course at Harvard Law School has been crucial in turning our favorite area of the law into a respected and legitimate field. Even more impressive, Professor Weiler has been a wonderful mentor to so many students and former students, including me. He is always available to provide advice and guidance, and his friendship is invaluable.

Professor Weiler's scholarship has also been essential to the creation and growth of sports law. He is the co-author of perhaps the leading sports law case book with Gary Roberts, "Sports and the Law: Text, Cases, and Problems" as well as many influential books and law review articles, including "Leveling the Playing Field: How the Law can Make Sports Better for Fans," which the New York Times Book Review called "a provocative book that combines the broad knowledge of an all-seasons sports fan with the clarity of an antitrust lawyer."

Beyond his teaching and writing, Professor Weiler has been a noted public advocate for sports law. He has testified before the U.S. Congress and met with various political leaders in Canada, his home country. Given the trust that so many influential persons have placed in Professor Weiler, it's not surprising that the late Boston Globe columnist Will McDonough once said, "When it comes to sports law, Paul Weiler knows the answer before you ask the question."

Tonight, Harvard Law School will honor Professor Weiler, who has taught there since 1979. I am honored to be participating in this great event, which will feature a keynote address from Peter Gammons and the following schedule:

The Rules of the Game:

The Winning Effect of Paul Weiler


Friday April 27, 2007

3:45 to 5:00 Panel (Austin West): "Rules of the Game: The Winning Effect of Paul Weiler"
Roger Abrams
Professor and Former Dean of Northeastern University School of Law

Stuart Brotman
President of Stuart N. Brotman Communications

Peter Carfagna
Lecturer on Law and Covington and Burling Distinguished Scholar at Harvard Law School

Michael Curley
Partner in the L
abor and Employment Law Department of Morgan Lewis in New York City

Donald Fehr
Executive Director of the Major League Baseball Players' Association

Rick Horrow
CEO of Horrow Sports Ventures

Rob Manfred
Executive Vice President of Labor Relations & Human Resources at Major League Baseball

Jeffrey Pash
Executive Vice President of the National Football League
5:30 Reception (Caspersen Room in Langdell Hall)

6:30 Dinner (Caspersen Room in Langdell Hall): Keynote speakers:
Elena Kagan
Dean of Harvard Law School

Peter Gammons
Baseball Commentator on ESPN
Other speakers:
Stephen Greyser
Richard P. Chapman Professor of Business Administration, Emeritus, at the Harvard Business School

Joseph Weiler
Professor of Law at the University of British Columbia

Robert Weiler
Attorney

Please contact Professor Weiler's assistant, Susan Smith, with any questions. It should be a great event.

Update: See Professor Weiler's new blog, which includes a post on the event and one on an interview with his family. You can also see tons of great photos from the event.

Thursday, April 26, 2007
 
Michael Vick, Pit Bull Fighting, and The NFL's New Personal Conduct Policy

Last week, Rick had a terrific post that examined whether the NFL's new personal conduct policy affords Commissioner Roger Goodell too much discretion. We now hear, through Deadspin, that Michael Vick has possibly been running an illegal pit bull fighting ring, and it's interesting to speculate how Commissioner Goodell might apply the code to Vick.

So what has Vick allegedly done? Well, he owns a home in Smithfield, Virginia, where state and county animal abuse investigators were recently called in to investigate after local law enforcement officers, who were acting on a search warrant relating to drugs, found that the property was hosting fights between pit bulls. You can read the details here, but basically they found 70 dogs, many of whom were suffering from neglect (including injuries and dehydration). They also found overwhelming evidence of organized pit bull fighting that took place in three buildings behind the home. That evidence included "rape stands (used to allow fighting dogs to breed while preventing them from attacking each other), equipment used to build strength and endurance in fighting dogs, and controlled substances frequently used in dog-fighting." Pretty disgusting stuff, if true, and not to fan the flames, but check out some of the horrific injuries to dogs who are forced to partake in pit bull fighting, as found on Google Images--but be warned, they may make you sick.

In fairness to Vick, 1) no charges have been filed (yet); 2) while he owns the home, he doesn't live there; his nephew does; 3) we have not yet heard his side of the story--it's always easy to jump to conclusions when only side of the story is available; Vick may have an explanation that mitigates, if not exonerates, his role in what appears to be an illegal operation.

But what will Commissioner Goodell do if Michael Vick is indeed charged with animal abuse, which, under Virginia Law (Virginia, Code Ann. 3.1-796.122), is punishable by up to one year in prison and a $2,500 fine?

Sports Law Blog reader Will Li considers that question and wonders whether the sheer expansiveness and vagueness of the new personal conduct policy--characteristics that at first glance would seem to empower Commissioner Goodell--might ultimately prove to be his undoing:
With the news that Michael Vick is in trouble again, I'm wondering how Roger Goodell will act on this.

Ultimately, I think the vague nature of this policy will come back to haunt the Commissioner - in my opinion, the new conduct policy is not only bad for the players, but will be bad for the Commissioner as well.

By not codifying the new rules, each suspension and fine he sets down will more than likely impact public opinion on NFL player discipline and vice versa.

For example, how do we (and perhaps the Commissioner) judge the Vick case? Inevitably, whatever suspension or fine Vick receives is going to be compared and analyzed against the discipline Pac-man got. But how do you compare the actions of the two individuals when they are so different (even if they are both criminally liable)?

Does this seem dangerous to anyone else but me? Because ultimately, the fines and suspensions will be based on morally relativistic judgments, and will be subject to a host of biases, ranging from player prominence, level of public/media outcry, special interests (animal rights groups in the Vick case, potentially), even time of year (off-season, playoffs . . . ).

I don't see how the commissioner can hand down "fair and consistent" decisions when all he has to go on is previous disciplinary actions and public opinion. Such a disciplinary system does not seem very sustainable to me, and could end up reducing the credibility of the Commissioner's role.
Will makes a compelling case. Is he right?

Wednesday, April 25, 2007
 
The Lost NCAA Conference

In 2002, John Thelin noted:
"[I]n recent years there has been a groundswell of excellent scholarly works dealing with intercollegiate athletics. The topic has both endurance and significance now that such disciplines as history, economics, law, literary analysis, and political science have been brought to bear on the serious study of college sports. Don't hold your breath for any strong connection between research and reform. As the scholarship on college sports gets better, the educational and ethical problems of college sports get worse."
In 2006, apparently unaware of such a groundswell, and noting the lack of such research, Dr. Myles Brand and the NCAA decided to sponsor an academic conference to encourage scholars to study college sport.
"The NCAA decided to sponsor the academic conference, he [Brand] said, because it wanted to involve faculty members not in role they sometimes play on their campuses — helping to oversee and govern the sports programs — but in their primary role as scholars. 'The idea was that there’s another role for faculty in intercollegiate athletics that we haven’t taken up at the NCAA, and that’s to treat intercollegiate athletics as the subject matter for research,' said Brand, a philosopher who was president of Indiana University before taking the reins at the NCAA. 'We thought it would be helpful if the NCAA would be supportive of that effort.' "
As a result, the NCAA announced it would host a conference: The 2007 Conference on Intercollegiate Athletics and Higher Education in America an "inaugural, academic, juried conference...intended to summarize scholarships from the last several years on the context of intercollegiate athletics in higher education in America and role of sport in American culture."

I found out about the conference when I was contacted by an NCAA staff member and asked to serve on the conference abstract review board. As the months went by, and after submitting 7 abstracts and previously published papers (per the conference guidelines), I contacted the NCAA to determine the status of the conference and find out when I could expect to receive abstracts or papers to review. It seemed to me time was running out. That's when I found out the conference had been postponed. No formal announcement, no press release on the NCAA website, nothing. And more interestingly, no abstracts or papers to review.

That's when I made a few phone calls and found out that another reviewer had also not received any material to review. After a few more phone calls and a few emails back and forth with NCAA staffers, I was told the conference had been "postponed" because of a lack of interest on the part of scholars. Unable to determine how many scholars had submitted papers, I began contacting several individuals and kept hearing back that they, too, had submitted to the conference. But, evidently there was not enough interest...

Then a story appeared--citing a lack of quality papers, Dr. Brand postponed the conference and the "spin" began:
"...when he looked at the papers — 'and having been in the academy for 40 years, I think I can tell the difference between a good paper and something that’s not high quality,' Brand said — he saw too many of the latter and too few of the former, he said."

"That’s when the association decided to start from scratch, and to convene 'the leading scholars in their fields, from sociology, history, literature, economics, business,' to plan the meeting and, ultimately, referee the papers. Brand says he is confident that the 2008 conference will produce important work that measures up to material published in scholarly journals."

"The NCAA’s announcement of the new event said its theme would be “College Sports: A Legitimate Focus for Scholarly Inquiry,” and noted that it would feature “invited scholars of international repute” — suggesting that submissions would not be welcomed."
Okay, so what's the problem? The NCAA and Dr. Brand didn't like the papers submitted. It's their conference and if they want to take their academic "ball" and go home, so what? A reader may simply say, "What's the big deal?"

But, as an academic I think it's relevant to point out several things that shed light on the NCAA organizational and institutional cultures:

1) I was asked by the “nice people” in charge of the postponed NCAA conference to serve on the conference’s review committee, but never received a single submission (inferior or otherwise) to review.

2) Since the only faculty members identified in the article as submitting papers or abstracts to the postponed conference are Drake Group members (who are often identified by Dr. Brand as ill-informed faculty who have their "facts" wrong), Dr. Brand’s comments indirectly and very subtly disparage the scholarship of such scholars,while not mentioning anyone by name, and actually not commenting on any specific work. Maybe all the deficient scholarship was submitted by NCAA Faculty Athletic Representatives? Of course, we can’t say any such thing, since the process is a blind-review one. (Unless Dr. Brand saw the names of the authors.) Dr. Brand’s comments are similar to those found in a non-apologetic apology that actually denigrates those who criticize the individual.

3) I volunteered (as I have on two previous occasions) to help the NCAA in planning their next conference.

Now the NCAA has announced that in 2008 they will convene a "Scholarly Colloquium on College Sports"

According to the Chronicle of Higher Education "The gathering next year will feature four invited speakers who will be asked to talk about what kind of research is needed — for example, a closer look at athlete or fan behavior, or whether sports has a negative effect on certain minority groups — and speculate on the consequences further study might have on NCAA policies."

As Brad Schultz on Journal of Sports Media noted: "The NCAA’s announcement of the new event said its theme would be “College Sports: A Legitimate Focus for Scholarly Inquiry,” and noted that it would feature “invited scholars of international repute” — suggesting that submissions would not be welcomed."

It seems pretty apparent to this "ill-informed" faculty member that the NCAA (or at least Dr. Brand) has little interest in a peer-reviewed academic conference. The NCAA tried that and they didn't like the submissions. Instead of rejecting individual submissions, or allowing "their" invited reviewers to perform their reviewer function, Dr. Brand unilaterally canceled the conference. He did not postpone the conference, he changed the format, the purpose, and the participants. In addition the NCAA and it's representatives and spokespeople disparaged the academic integrity of all those who submitted to the aborted conference, noting:
"We're hoping to get more people in nonkinesiology departments, people who don't do research on sport because it's not front and center in their disciplines, to come out of the academic closet, so to speak, and study sport," he said. "College sports have a tremendous impact on our educational institutions, our towns, our budgets. We think the time is right for a more serious look at the subject."
I guess all the jokers and academic imposters who have studied college sport for the last 100 years should be glad that serious "closeted" scholars can come out and take a more "serious" look at the subject. I'm sure I won't be invited to speak in Nashville next January, but hopefully I can find other less rigorous venues for my scholarship.

Recently Dr. Brand has taken the tact of dismissing any critics of the NCAA and/or college sports by utilizing the off-hand comment that "They have their facts wrong." Recent peer-reviewed research discussing the lack of educational content in 2006 NCAA Division I men's basketball broadcasts was referred to as "defying logic." However, the accuracy of the study's results was not questioned. Such tactics are all well and good, and expected as part of the NCAA's lobbying efforts, but now the NCAA has gotten into the academic and scholarly-inquiry business. The NCAA's proposed colloquium is even entitled "Scholarly," just in case people forget that it is intended to be scholarly. It's all part of the NCAA's branding efforts (pun intended).

The NCAA, in my humble professional opinion, is not satisfied with sponsoring athletic championships, and monopolizing college sports. It seems determined to also purchase any and all critical academic discussion surrounding intercollegiate athletics. I am struck by the similarity of this situation to the NCAA's tactics in its recent purchase of the NIT.

To purchase as much of the dialogue as possible, the NCAA will sponsor a BCS-like colloquium with only four scholars speaking as representatives for all. I have not doubt the NCAA will publicize this controlled scrimmage as an example of its commitment to its educational mission.


Note:

Next time I'll post information about the founding of the College Sport Research Institute (CSRI), a new journal entitled: Journal of Issues in Intercollegiate Athletics (JIIA), and next year's 3rd Annual "Issues in College Sport" colloquium and conference to be held April 16-19, 2008 on the campus of The University of Memphis.

FYI: Dr. Brand will be invited to serve on the institute's advisory board, and also contribute as a member of the journal's editorial review board. In addition, he will be asked to be a colloquium panelist and to submit an abstract or paper to be "blind peer-reviewed" for the conference.

It's the least one would expect as part of a legitimate scholarly inquiry into college sports.

Tuesday, April 24, 2007
 
The Importance of Which Team Drafts You

We have an article up on The Situationist today entitled "The Situation of the NBA Draft." It's premised on the idea that many, if not most, players selected in the NBA Draft will succeed or fail largely due to the situation of the team that drafts them. In other words, some players will find themselves in the right environment in terms of teammates and coaches and fans, while others will wind up playing in the wrong offense, with the wrong coach, in the wrong city. These situational factors can be enormously influential in whether the player succeeds or fails in the NBA.

However, when we evaluate these players, we usually focus on presumed, but often immeasurable and perhaps misunderstood qualities, like "how hard they work" or whether they have the "drive to succeed" (whatever that actually means). In other words, we tend to overlook the situation, and focus on the disposition, and that may not be the best way to judge players.

This same point is true of most jobs, of course. Who we work with, and who we work for, have enormous influence on how well we work. Yet often the situation of our employment (and of our relationships and pretty much anything we do) is overlooked by others. Indeed, the only way to really appreciate the situation of others is to be in it.

We hope you check out our analysis.

Monday, April 23, 2007
 
New Sports Law Scholarship

New this week:
Vanessa Bovo, Comment, Keeping the public in the public use requirement: acquisition of land by eminent domain for new sports stadiums should require more than hypothetical jobs and tax revenues to meet the public use requirement, 16 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 289 (2006)

Thomas Brophy, Casenote, Icing the competition: the nonstatutory labor exemption and the conspiracy between the NHL and OHL, 14 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 1 (2007)

Meri J. Van Blarcom-Gupko, Should NASCAR be allowed to choose the tracks at which its series’ races are run? 16 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 193 (2006)

Parker B. Parker, Jr., Take me out to the metaphor, 5 PIERCE LAW REVIEW 313 (2007)

Oscar N. Pinkas, Comment, The wisdom of Major League Baseball: why free agency does not spell doom for European football, 16 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 257 (2006)

Vittorio Vella, Comment, Swing and a foul tip: what Major League Baseball needs to do to keep its small market franchises alive at the arbitration plate, 16 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 317 (2006)

Saturday, April 21, 2007
 
Tanking: The Fan's Perspective

Will Leitch, the editor of Deadspin, has an interesting op-ed in the New York Times wondering how fans can be so accepting of their teams tanking. This is a different perspective on the issue of tanking that Michael considered here and here.

Leitch's point is that being a fan (as opposed to being the team's GM) is a game-by-game, short-term consideration, rather than a long-term, big-picture commitment. You want the team to win this game once it begins; you are not thinking about how a loss may help you three months down the road.

Money line:

"Because I am a fan. And if a fan doesn’t root for his team to win, who is he, exactly?"

Thursday, April 19, 2007
 
Oral Agruments in TSSAA v. Brentwood Academy (Updated)

For those interested, this morning's oral argument in TSSAA v. Brentwood Academy is available here (HT: SCOTUSBlog).

I will provide some comments and thoughts once I have a chance to read it, probably tomorrow.


UPDATE and MOVED TO TOP

Having read the oral argument transcript, it appears one of my earlier predictions proved false: No sports puns or analogies from anyone. I stand by my other prediction, however: the Supreme Court will reverse the Sixth Circuit.

Some random thoughts:

* The TSSAA focused the First Amendment argument on its interests in preventing the exploitation of young student-athletes and on ensuring that athletics do not take precedence over academics. The lawyer never mentioned the interest in maintaining a level playng field, although the Chief tried to bring her in that direction at one point, by suggesting that public schools cannot recruit while private schools can.

* Several justices, including the Chief and Justice Kennedy, seemed inclined to accept that the recruiting rule should be subject to the First Amendment analysis reserved for government-employee and government-contractor cases, a less-burdensome analysis for the government to clear. There also was a lot of discussion of the voluntary nature of TSSAA membership and the fact that there are other, smaller athletic associations in the state.

* Several Justices seemed concerned with the possible breadth of the recruiting ban. They pushed both the TSSAA and the attorney for the United States about whether the rule would apply to all contacts between a school and prospective student--such as a brochure that mentioned Brentwood's stellar football program. Both the TSSAA and the United States pulled back from suggesting that the rule could apply that broadly. This allowed them to argue that Brentwood had other ways to get its message out, an important First Amendment consideration. There also was an interesting exchange between the lawyer for the TSSAA and the Chief about whether a coach could be penalized for criticizing game officials; the lawyer suggested that might not be within the Association's power.

* Brentwood's lawyer got hit hard about the fact that the speech at issue was more than general expression to the public at large about the school and the football program. This was recruiting; it was targeted at student-athletes and signed "Your Coach."

* Justice Breyer was extremely skeptical of Brentwood's procedural due process claim, in part because Brentwood was not clear about the precise nature of the claim. To the extent the problem was that a TSSAA investigator had ex parte contact with the Board, Breyer pointed out this happens every day in federal administrative agencies and that Brentwood's argument would invalidate the Administrative Procedures Act (Breyer is a former Ad Law scholar). To the extent the problem was lack of an opportunity to present certain evidence, it is not clear that opportunity mattered.

So, I still go with a reversal of the Sixth Circuit, probably unanimous. The rub in the case(and perhaps the source of divisions in the Court) may be what type of First Amendment analysis the Court adopts--whether it treats this as the equivalent of a government-employee speech case, which could have far-reaching effects.

Wednesday, April 18, 2007
 
How Many Wheelchair Seats Does the Big House Need?

News broke this week of a lawsuit filed by the Michigan Paralyzed Veterans of America under the Americans with Disabilities Act (ADA) against the University of Michigan. The suit concerns the number of seats that need to be wheelchair accessible in the stadium, which to this point has been exempt from the 1990 ADA because it was constructed decades before the statute was enacted. With the University poised to launch a major renovation of the 100,000+ seat stadium, plaintiffs argue that the stadium must now comply with the ADA. Under the ADA, public accomodations, like stadiums, must include wheelchair seating. The U.S. Department of Justice has indicated that 1% of stadium seating must be wheelchair accessible to comply with the ADA.

The plaintiffs and U of M differ, however, as to whether that 1% figure applies to the new seats to be added as part of the renovation, or to all the seats in the post-renovation stadium. Although more than 1% of the new seats will be wheelchair accessible (increasing the total number of wheelchair accesible seats from 90 to 282), according to the campus student newpaper, the Michigan Daily,
Stadium-wide compliance would include making 1 percent of all seating handicap accessible and offering a variety of seating locations and ticket prices for disabled visitors. For the officially 107,501-seat stadium, that means there must be at least 1,000 handicap accessible seats.
In addition, the plaintiffs object to the lack of "companion" seats (for the family and friends of a disable fan) adjacent to wheelchair seats.

The plaintiffs in this case are represented by Richard Bernstein, a blind Michigan lawyer (and U of M alumnus) who himself successfully sued Northwestern Law School over its use of the LSAT, which did not offer Braille exam.

The law is likely on the plaintiffs' side. The DoJ "1%" interpretation is entitled to judicial deference. Not only are wheelchair patrons entitled to a certain proportion of seats; as established in a series of recent cases involving stadium seating at movie theaters, they must also be provided with equivalent lines of sight.

It is nevertheless interesting to speculate about exactly how many "accessible" seats the stadium should have. Currently, only 53 Michigan ticket holders request wheelchair seating. The difference between that number, and the number of seats requested by the plaintiffs, is striking.

Michigan's is of course not an ordinary arena, in the sense that games at the Big House are sold out, and there is a multi-year long waiting list to obtain season tickets. It is not unreasonable to think that the number of available handicapped accessible seats could affect the interest of disabled fans in making the multi-year donation commitments necessary to preserve a place on the waiting list. In an ideal world, stadiums would be built with some sort of modular seating that could accomodate the changing needs of fans. As new disabled patrons obtain seats, or as current season ticket holders age and develop disabilities that require wheelchairs, permanent seats could be relocated or adjusted to increase wheelchair-accesible space. Unfortunately, our engineering capabilities may not yet allow such an approach in a cost effective manner that wouldn't at some point result in a pile of chairs tossed onto the field.

Still, I'm not sure that lawyer Bernstein's strategy of comparing Michigan's stadium to recent renovations at OSU and Notre Dame--"Ohio State University and the University of Notre Dame have recently undergone significant renovations compliant with ADA guidelines"--is likely to convince many in the Wolverine state to follow suit.

 
Does the NFL's New Personal Conduct Policy Afford the Commissioner Too Much Discretion?

Last Friday, I participated on a panel at DePaul University College of Law on the topic of regulating off-field misconduct. We had a lively discussion and debate regarding the timely issue of NFL commissioner Roger Goodell's one year suspension of Adam "Pacman" Jones. I raised a number of questions that should be considered by the players regarding this particular suspension, but more importantly, any future disciplinary actions taken by the commissioner under the NFL's new personal conduct policy.

1. Is it connected to the NFL's business?

Internal league discipline of players is warranted in situations that directly influence competition or affect the business side of the game. Examples of such situations would include gambling on the sport, use of performance enhancing drugs, or when a player unloads a slew of racial and ethnic slurs directed at New Yorkers, Mets fans and one of his teammates. But how does a fight in a nightclub (or any other violent behavior off the field) arise to the level of affecting the "integrity of the game"? And if it affects the "business side" of the NFL, how so? Where's the data to suggest that incidences of off-field misconduct are influencing the decisions of consumers in purchasing the NFL's product? The justification for a "get tough on crime" policy seems to be that the owners, coaches and a majority of the players all agree with the commissioner when asked about it -- Well, of course they do! Are they really going to publicly say, "No, I think players getting arrested is none of our business"?

2. Should discipline be imposed without a conviction?

Are player arrests on the rise in the NFL? The advent of 24 hour news from multiple sources in which we are told 100 times per day that Pacman was arrested definitely makes it appear on the surface to be a growing problem in the NFL. But where's the data to suggest that it is. Recall a sampling of some of the headlines back in 2000: Ray Lewis (murder charge), Rae Carruth (charged with murder in the shooting death of his pregnant girlfriend), Mark Chmura (sexual assault charge) and Peter Warrick (charged with grand theft). League officials that year also reported that the number of players arrested for violent crimes actually dropped from 38 players in 1997 to 26 in 1999.

Under the previous violent crime policy created and administered by former NFL commissioner Paul Tagliabue, punishment was triggered only by a conviction or its equivalent, including a plea of no contest or a plea to a lesser charge. That's obviously not the case under the new policy, but the same concerns surrounding disciplinary action before a conviction still exist. League officials seem to have forgotten when they suspended James Lofton for the last game of the season in 1986 because of a rape charge, which then backfired when Lofton was acquitted during the off-season.

Off-field misconduct is laden with factual issues, which distinguishes it from on-field misconduct in which there are no factual issues because there are multiple camera angles of the behavior captured on videotape. Thus, in situations involving off-field behavior, the commissioner performs his own investigation and formulates an opinion. But the commissioner has no subpoena power and can't force witnesses to testify, and all of the safeguards afforded the accused in criminal proceedings are lacking (e.g. cross-examination of witnesses). Finally, and most importantly, a player disciplined prior to a conviction can be prejudiced in the criminal proceeding because prosecutors may subpoena the results of internal league investigations and use them against the player at trial.

3. Does the appeal process ensure fair and consistent disciplinary action?

Pacman has publicly stated that he will be appealing the suspension. The NFL is unique from the other sports in one critical respect: NFL commissioner discipline for off-field misconduct is not subject to review by a neutral arbitrator. Instead, the player's sole right of appeal is to the commissioner -- in other words, no right of appeal.

In the other sports, the arbitrator reviews commissioner disciplinary action using a "just cause" standard. "Just cause" is evaluated according to the common law of the workplace. Generally, this means that the league should follow progressive discipline in response to player misconduct, imposing increasing penalties for repeated offenses in an effort to rehabilitate the player and deter future misconduct by the player. It's arbitrary to impose an overly aggressive disciplinary action upon an individual player with an ulterior motive of sending a message to all players that "this is not to be tolerated". Arbitrators reduce suspensions when the suspension is unduly harsh or not in line with established precedent involving similar situations. Unfortunately for Pacman, and any other player subject to league discipline, he will never have that opportunity.

Monday, April 16, 2007
 
New Sports Law Scholarship

New this week:
Brett Gibbs, Note, Antitrust and sports league franchise relocation: bringing Raiders I into the modern era of antitrust law, 29 HASTINGS COMMUNICATION & ENTERTAINMENT LAW JOURNAL 217 (2007)

Paul C. McCaffrey, Note, Playing fair: why the United States Anti-Doping Agency’s performance-enhanced adjudications should be treated as state action, 22 WASHINGTON UNIVERSITY JOURNAL OF LAW & POLICY 645 (2006)

Jason Shane, Note, Who owns a home run? The battle of the use of player performance statistics by fantasy sports websites, 29 HASTINGS COMMUNICATION & ENTERTAINMENT LAW JOURNAL 241 (2007)

Sunday, April 15, 2007
 
The Constitutionality of Regulating High School Sports

This Wednesday, the Supreme Court of the United States will hear oral argument in Tennessee Secondary Schools Athletic Ass'n v. Brentwood Academy.

Brentwood Academy, a private school in Tennessee and a TSSAA member, was sanctioned for violating the prohibition on recruiting student-athletes through the exertion of "undue influence." Brentwood's football coach sent a letter to twelve eighth graders who planned to attend Brentwood the following fall; the letter informed them that they were eligible to participate in spring practice and, although they did not have to, it would be to their "advantage" to do so. Brentwood sued, arguing that the enforcement of the recruiting rule against it violated the school's free-speech and due process rights.

This is the second trip to the Court for these parties. In 2001, the Court held that the TSSAA--which is not an official state agency, but a private membership organization comprised of public and private schools whose regulatory authority over interscholastic athletics long has been recognized by the Tennessee State School Board--is a state actor and thus subject to constitutional limitations. The Court now will consider whether the TSSAA's rules against recruiting student-athletes are constitutionally valid.

The court of appeals held that the anti-recruiting rule was unconstitutional as applied to Brentwood for two reasons. First, the letter to the prospective student-athletes did not impose undue or unfair influence on them, because neither the students nor their parents felt imposed upon and, in fact, welcomed, the information from the school. Second, TSSAA's desire to ensure a level competitive athletic playing field (by preventing some schools, particularly private schools, from stockpiling talent by enticing, pressuring, or convincing talented athletes to attend) was not a substantial governmental interest that justifies limitations on free expression such as the anti-recruiting rule.

The latter point is potentially far-reaching, since organizations such as the TSSAA (or, for that matter, the NCAA, which filed an amicus curiae brief in support of the TSSAA) exist specifically to ensure competitive balance in interscholastic athletics. If that interest does not justify some limitations on expression (such as recruiting contacts between schools and student-athletes), the organization no longer can perform its regulatory function, at least with respect to private schools.

The other issue floating here is the argument (emphasized in the NCAA's amicus brief) that the Court should overturn its earlier ruling that the TSSAA is a state actor (which would, of course, eliminate the need to resolve some tricky First Amendment issues). The 2001 decision was 5-4 and two seats on the Court have changed since then, including the replacement of Justice O'Connor (who joined the majority) with Justice Alito.

I wrote a short essay on the case for the ABA's Preview of United States Supreme Court Cases, which I hope to be able upload prior to Wednesday. My quick prediction is that the Court will not overturn its earlier state-action ruling, but that it will reverse the lower courts; I do not see the Court recognizing, in essence, a right of schools to recruit student-athletes.

And I predict a lot of sports puns, metaphors, analogies, and stories in the argument and the opinion; the parties and the Court cannot help themselves when sports are at issue.


UPDATE # 1: I neglected to mention that Michael discussed this case when the Sixth Circuit's decision came down last May. I largely agree with his analysis, particularly the notions that letters such as the one from Brentwood's coach obviously affected the twelve student-athletes (all twelve--surprise, surprise--showed up for spring practice) and that if such letters cannot be restricted, then high school sports becomes the unregulable wild west. All the more reason to believe the Sixth Circuit opinion will not stand.

Saturday, April 14, 2007
 
Ryan Gomes and "The Hunt for a High Draft Pick"

Ryan Gomes Greg Oden Kevin DurantEarlier this week, I published a couple of posts on NBA teams deliberately losing games in order to secure a better lottery position ("Why Does Tanking Occur in the NBA but Seemingly Not in Other Leagues?" & "The Pursuit of Crappyness: Are NBA Teams Tanking Games for Greg Oden and Kevin Durant?"). The readers' comments to the those posts are fantastic, as are reactions on other websites and blogs. My genuine thanks to all those who commented and who linked to the post, and particularly to ESPN's Bill Simmons and Henry Abbott and Sports Illustrated's Kelly Dwyer.

But despite what most would say is fairly strong evidence of NBA teams tanking, some are skeptical that players would ever agree to a scheme where games are purposefully lost. And there are some compelling reasons for that skepticism.

First off, aren't players prideful about competing and winning games? And even if they aren't--let's say they are completely selfish--wouldn't they care about their stats for their purposes of future contract and endorsement opportunities? So why would a player play worse to help a team lose? Or why would he not play in games, or parts of games, due to what are really phantom injuries, thus potentially making him appear less durable and less tough (which again would seem to jeopardize future contract and endorsement opportunities)?

Those arguments certainly have some logic to them. But to counter them, I bring you Boston Celtics forward Ryan Gomes, a graduate of Providence College and the Celtics' second round pick in the 2005 NBA draft. Gomes is one of the Celtics better players, averaging 12 points and 6 rebounds a game, making him the Celtics 4th leading scorer and 3rd best rebounder. Of interest to this topic, Gomes and starting point guard Rajon Rondo were curiously benched for the fourth quarter of the Celtics home game against the Milwaukee Bucks last night--a game the Celtics lost by two points, thereby securing the second worst record in the NBA this season, and preventing the Bucks, holders of the third worst record, from "overtaking" them for that honor/dishonor.

When asked why he didn't play in the fourth quarter, Gomes surprisingly admitted the obvious:
"I probably (would have played), but since we were in the hunt for a high draft pick, of course things are different. I understand that. Hopefully things get better. Now that we clinched at least having the second-most balls in the lottery, the last three games we'll see what happens. We'll see if we can go out and finish some games."
The "hunt for a high draft pick." Gotta love this game.

Friday, April 13, 2007
 
Harvard Law School Panel on NBA Regulation of Player Expression

Harvard Law School and Lebron James

Next Wednesday, April 18th, Harvard Law School's Committee on Sports and Entertainment Law will host a panel entitled On & Off the Court: The NBA's Regulation of Player Expression. The panel will discuss the new NBA age limit, new technical foul rules, the dress code, and other issues that relate to life as an NBA player and life as a prospective NBA player.

The panel will begin at 7:30 p.m. in Pound 107 (directions to HLS/campus map). The event is open to the public.

I am honored to be a panelist, particularly since this subject is near and dear to my heart and particularly since each of the other panelists brings with him extraordinary experiences and insights on NBA player issues (just take a look below at who the other panelists are--it's an incredible group). Here is the official flyer on what should be an outstanding event:


Harvard Law School Committee on Sports and Entertainment Law Presents

ON & OFF THE COURT
The NBA's Regulation of Player Expression

Wednesday, April 18, 2007 7:30 p.m.
Pound 107
Harvard Law School
Cambridge, MA

Panelists

Hal Biagas
Deputy Counsel of the National Basketball Player's Association (NBPA)

Maverick Carter
LeBron James' representative and CEO of LRMR Marketing

Michael McCann
Sports Law Professor, Scholar, and Litigator

Kurt Schoeppler
Business Manager of Vince Carter and LeBron James

Jason Whitlock
Columnist of the Kansas City Star and AOL Sports

Moderator

Peter Carfagna
Lecturer on Law at Harvard Law School and former Chief Legal Counsel at IMG


If you are in the Boston area next Wednesday, I hope that you are able to attend what should be a fantastic discussion on issues concerning player autonomy in the NBA, and it would be great to meet you and any reader of this blog. For more information about the panel, please e-mail Mike Menitove at mmenitove@law.harvard.edu.

Thursday, April 12, 2007
 
What Don Imus Tells Us About Georgetown Basketball and the NBA

Don Imus and Allen IversonEarlier today, Jon Hanson and I published a lengthy article on The Situationist entitled "Hoyas, Hos, & Gangstas."

We argue that the underlying prejudice found in Don Imus' comments about the Rutgers' womens basketball team can be found in other sports contexts, including in how we talk about male African-American basketball players, such as Georgetown University basketball players, and in how we regulate the behavior of basketball players, such as the NBA's recent attempts to make its players seem more "likeable" to mainstream America. However, unlike with the universal outrage we all expressed at Imus for his comments, these instances occurr in ways that we take for granted, find unoffensive, or even support. Jon and I try to examine why that might be the case.

We hope you read our article on The Situationist (and a thank you to Henry Abbot for linking to it on ESPN.com).

Wednesday, April 11, 2007
 
Scarlet Devils and Blue Knights

What makes Sports Law so interesting is how society plays out its neuroses through the microcosm of sports. Just look at the controversies involving two college sports teams: the Rutgers Women Hoopsters and the Duke Lacrossers.

When the Duke story first broke, the liberal media was quick to assume their guilt as an inevitable byproduct of privilege and indulgence. These were rich white spoiled jocks, the story went, and the law and its protectors should deal with their behavior in the harshest terms. We all learned eventually the facts were quite different and the real villain turned out to be the Arm of the Law who thought these sportsmen were an easy mark who could advance his career. The case has now been dismissed.

Next we have Mr. Imus who didn’t think at all because it was so easy to make a sophomoric racist joke about a predominantly African-American team.

Neither attack proved so easy and may likely end the careers of the attackers.

What have we learned?

First, when real life events enter the sports bubble, they are typically blown out of proportion.

Second, and more importantly, sportsmen and women are not all of a type. While they may work wondrously as a team during the game, off the field they are individuals, often as different from one another and from the stereotype as can be imagined. Both the Duke men and Rutgers women turned out to be accomplished and articulate, deserving of dignity not ridicule.

Most athletes, even the Pros rich in income and adulation, don’t want to be either made examples of or coddled; nor do they deserve such disparate treatment when they are out of the park.

 
Fordham University School of Law Symposium on Sports Law

Next Friday, April 20, the Fordham Sports Law Forum will be hosting the 11th Annual Fordham Sports Law Symposium. The event, which will be held in Fordham University School of Law's McNally Amphitheatre (which is located on Fordham's Lincoln City Campus), has a great lineup of speakers and topics. It also offers 6 New York CLE credits. Here is the schedule:

9:30 am – Panel I: Sports Re-Broadcasting and Exclusivity Rights in the Changing Media Landscape. This panel will discuss the development and impact of new media platforms and devices like YouTube, Slingbox, satellite radio and MLB.tv on the sports world.

Moderator: Anthony J. Dreyer, Skadden, Arps, Slate, Meagher & Flom, LLP

Panelists:
Mark Conrad, Associate Professor of Business Law, Fordham University
Mark Loughney, VP of Sales & Strategy Research, ABC
Michael Mellis, Senior VP & General Counsel, Major League Baseball Advanced Media
David Proper, Senior Counsel, National Football League

11:10 am – Panel II: International Player Transfer Systems and Related Immigration Issues. This panel will focus on the legal regimes in place for bringing international players, such as Dirk Nowitzki, Jaromir Jagr and Hideki Matsui, to the US. The panel will also discuss the relevant immigration law issues with regards to the growing influx of foreign players to professional sports leagues.

Moderator: Jennifer Gordon, Professor, Fordham University School of Law

Panelists:
Jean Afterman, Assistant General Manager, New York Yankees
Lisa D’Avolio, Skadden, Arps, Meagher & Flom, LLP
Bill Daly, Deputy Commissioner, National Hockey League
Sunil Gulati, President, US Soccer

1:45 pm – Keynote Address: Tim Brosnan, Executive VP of Business, Major League Baseball “MLB’s Extra Innings Package”

2:30 pm – Panel III: Potential Criminal and Civil Liability for Athletes’ Conduct During the Ordinary Course of Game Play. This panel will discuss past cases involving players such as Marty McSorely, Todd Bertuzzi and Albert Haynesworth, address the application of criminal and civil law in both the US and Canada and debate the extent to which athletes should be liable for their actions during game play.

Moderator: Anastasia Danias, Counsel, National Football League

Panelists:
Tim Danson, Danson, Recht & Voudouris
Paul Kelly, Kelly, Libby & Hoopes
Roy Reichbach, General Counsel, New York Islanders
Michael Weiner, General Counsel, Major League Baseball Players’ Association

To register, click here. You may also contact the symposium's co-chairs, Rebecca Ronzio at rronzio@gmail.com or Jonathan Kotler at jak015@aol.com.

Monday, April 09, 2007
 
New Sports Media v. Old Sports Media

There is ongoing tension between the new media and the old--between bloggers and mainstream media ("MSM" in the parlance). That tension is particularly noticeable as to sports media. Bloggers make a living (or at least a nice avocation) by criticizing (often justifiably, in my view) announcers such as Billy Packer, Dick Vitale, and Joe Buck. The old-guard regularly derides the unnamed "bloggers" out there on the Internets, who level criticism at them and at the athletes and coaches, in their view without any knowledge or basis for those criticisms.

That tension came to a head last Thursday when Colin Cowherd of ESPN Radio encouraged his listeners, on the air, to launch a "Denial-of-Service" ("DNS" or "DoS") attack on the sports blog The Big Lead. As Professor Susan Brenner explains, in a DNS attack, users flood a network so as to consume scarce resources or disrupt physical components of the network. The purpose of a DNS attack is to prevent the web-site operator from providing information to those who wish to visit the site for that purpose. Here, users flooded the web site with so many hits that the server became overloaded and the site shut down from Thursday morning until sometime on Saturday. Good summaries here and here. A good explanation of DNS attacks is here.

The incident unified most of the major sports blogs and their readers in condemnation of Cowherd and ESPN (a list of, and link to, blog commentary can be found here and here -- some of it less than politic.). The general view is that Cowherd crossed an ethical line, both for journalism and for the internet. ESPN's new ombudsman, Le Anne Schreiber, discussed ESPN's adoption of a (new) "zero-tolerance" policy for personalities using the airwaves to attack businesses in this way. This says nothing about whether ESPN will sanction Cowherd for an act in which he obviously took great delight, as when he gloated about the DNS attack sending bloggers the message "just don't screw with us." Unfortunately, there was no policy against what he did at the time he did it. Deadspin has thoughts on Schreiber's column here. The Big Lead has its thoughts on the whole thing here.

Some of the commentary also suggested or wondered whether what Cowherd did was unlawful or whether The Big Lead should pursue legal action against Cowherd and/or ESPN. The Big lead's editors stated they were surprised by how often commenters suggested suing and they are "looking into it."

So it is worht considering whether there is any legal there there. That, of course, is why this site exists. For starters, thanks to my colleagues Hannibal Travis and Andre Smith, both of whom know more about the Internet, computer law, and telecommunications law than I do and who provided thoughts, guidance, and initial research suggestions for me.

First, was the DNS attack unlawful?

The conduct, standing alone, may not have been. Cowherd's listeners simply visited the blog (a lawful activity) all at the same time. The question is whether Cowherd's (and his listeners') apparent intent to disrupt the blog's operation (as opposed to reading what was on the blog) renders that conduct criminal or tortious. And if so, what legal rules does it violate?

For purposes of applying general tort law, the question is what a DNS attack most resembles in the real (non-electronic) world. The application of law to the electronic world still (for better or worse) still requires such analogies.

At one end, we might compare this to a boycott or protest of The Big Lead--a large number of people refusing to read or patronize a business, perhaps by picketing or protesting on the sidewalks outside the store and encouraging others to respect the boycott; this have the effect of deterring or preventing others from patronizing the business. Perfectly legal (and constitutionally protected), although I am not sure the analogy works here.

At the other end, Professor Brenner argues that a DNS attack is vandalism, because it damages the victimized web site’s functionality, impairing its ability to provide the services or information it offers to the public." Functionality, she argues, is an essential and integral element of a site operator's property. It is a "nuance" of web-based property that must be taken into account in understanding property and property rights on-line. It is not enough to have a web site up--a blog must be functional and accessible to those who want to see the information posted. So destroying functionality is equivalent to physical destruction of or interference with physical property or the stuff on display within the physical proper. Obviously tortious.

Somewhere in the middle are other analogies I have been turning over that may or may not be tortious in the real world. Maybe this DNS attack is comparable to an organized effort to buy up every copy of a magazine from every newsstand so no one in the general public can read it. Or maybe it is comparable to gathering an enormous group of people and going into a bookstore (off public property and onto the private property) to stand around and browse but not buy anything, just to so overcrowd the place that no one who does want to browse or buy can do so. Not sure which side of the line these fall on.

One last point on framing the appropriate analogue: Much depends on how the DNS attack was carried out. Was it in fact the lawful act of many Cowherd listeners accessing the site at once? Or was it done by a small number of individuals using computer programs to constantly reload the site (apparently as often as once per second)? If the latter, it begins to look more like so-called "cyber-vandalism" and less like a large number of people lawfully accessing the site.

A potentially applicable internet-specific source of law is a federal law prohibting fraud in connection with computers. The law prohibits "knowingly caus[ing] the transmission of a program, information, code, or command, and as a result of such conduct, intentionally caus[ing] damage without authorization, to a protected computer." 18 U.S.C. s. 1030(a)(5)(A)(i). A protected computer is one "used in interstate or foreign commerce or communication." 18 U.S.C. s. 1030(e)(2)(B). And the statute allows the injured party to sue for damages. 18 U.S.C. s. 1030(g). It seems that this should apply to the circumstances here. There was intentional damage, the computer is in interstate commerce (the blog's server at the time was in Romania), and there seems to have been intent.

Second, assuming the attack on web site is unlawful, what is Cowherd's liability (as opposed to the liability of the individuals who took part in the DNS attack)?

The likely legal theory is that Cowherd incited his listeners to engage in the atatck. Under the First Amendment, speech rises to the level of unprotected incitement only "where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." This includes inciting others to engage in tortious as well as criminal behavior.

This traditionally is a very high hurdle. The theory of the First Amendment is that we punish those who engage in unlawful conduct, not those who speak about it, especially those who are speaking to an unseen mass audience. Did Cowherd intend for his listeners to do this and is it likely that they would have? The intent part seems present, especially since (according to ombudsman Schreiber's column, Cowher proudly announced that they had crashed the site in 90 seconds, then told them to "knock it out again, just for fun." But how likely was it that people would act on his words? Cowherd might try to argue, for example, that he was just using rhetorical hyperbole and that he did not expect anyone to take him seriously (even if he hoped they would).

The other theory as to Cowherd would be conspiracy to crash this site, but this is much more difficult. Conspiracy requires an agreement among the speakers and actors and there was no such agreement between Cowherd and his listeners.

Third, is ESPN potentially in trouble with the Federal Communications Commission?

The FCC can sanction a broadcast licensee where on-air personalities incite listeners to engage in unlawful conduct, since it calls into question the licensee's basical qualifications to hold a license. But in (stated) light of First Amendment concerns, the FCC narrowly interprets and sparingly wields this power. In 2004, the Commission refused to take enforcement action against several Clear Channel subsidiaries that broadcast hosts and callers urging drivers hit bicyclists or run bicyclists off the road or throw bottles at them as they drove by. The FCC typically declines to undertake enforcement unless a court first determines that some unlawful incitement, as defined in Brandenburg, occurred.

So I am not sure where that leaves us--but in this forum, I do not have to decide anything. Depending on what The Big Lead does, this could be a test case of how sports blog and mainstream sports media will interact with one another and with the law.

 
Why Does Tanking Occur in the NBA but Seemingly Not in Other Leagues?

In response to my post last Thursday on NBA teams purposefully losing games to increase their odds of drafting Greg Oden or Kevin Durant (a post that generated some wonderful reader comments and posts on other websites), George Mason University law professor and Volokh Conspiracy contributor Todd Zywicki asked me the following question:
Why do you think it is that the "tanking" concern seems to arise uniquely with respect to the NBA? There seems to be no concern about tanking in the NFL for instance and it is not uncommon to see a team spring an upset the last week of the season and knock them down a few spots in the draft.

One possibility is that the top players in the NBA draft are more "impact" players. But that might explain no tanking in baseball, but not the NFL.

Another possibility might be that the number of close substitutes is deeper in the NFL, but that doesn't seem clear either.

It is just odd--the NBA seems to be the one sport where this concern arises repeatedly over time. Indeed, that's why the NBA adopted the lottery--yet there are still allegations of tanking.

Any thoughts?
I e-mailed him back the following five possible explanations, which I have edited to incorporate his insight:

1) Impact Player & Lack of Close Substitutes explanation: It seems that there are certain drafts where there is at least one player who many believe projects as a future NBA superstar. With the caveat of complete subjectivity, I recall the last 10 drafts as follows in terms of players who, at the time, projected as superstars, followed by a significant drop-off in expectations:

2006: weak draft, no superstar projections
2005: weak draft, no superstar projections
2004: Dwight Howard and Emeka Okafor, and then a big drop off
2003: Lebron James, Darko Milic, Carmelo Anthony, drop off (I don't remember Dwayne Wade, who went #5, projecting as a future superstar).
2002: Yao Ming, drop off
2001: Kwame Brown, Tyson Chandler, Pau Gasol, Eddy Curry, drop off [maybe no superstar projections here?]
2000: weak draft, no superstar projections
1999: Elton Brand, Steve Francis, Baron Davis, Lamar Odom, drop off
1998: weak draft, no superstar projections
1997: Tim Duncan, drop off

But Professor Zywicki raises a great point: the NFL draft is just like the NBA Draft in that it often has a few guys at the top who are coveted, followed by everyone else, and yet allegations of tanking are much less common in the NFL. But his other point about close substitutes in the NFL draft also appears explanatory: there is likely more depth in a typical NFL draft than in a typical NBA Draft, meaning acceptable substitutes to top players in any NFL draft can usually be found throughout the first round, and sometimes even in the second and third rounds. Also, it strikes me that NFL teams often trade down in the first round, while that doesn't seem to occur nearly as often in the NBA, and that would appear to lend credence to a lack close substitutes in a typical NBA draft.

2) The NBA Is a League for Superstars explanation: One might argue that unlike the NFL and its focus on teams (e.g., the New England Patriots), the NBA is more individualistic and individual players get more attention. I suspect this is in part because we see NBA players' faces and expressions on the court, while NFL players are largely obscured in their helmets, and because there are only 10 players on an NBA court, while there are 22 on an NFL field. And maybe this also relates to the close substitutes idea and how there are fewer close substitutes in an individualistic NBA, while close substitutes are more possible in a team-based, organic NFL. But this explanation has some flaws, too (look at all the individual attention Peyton Manning gets etc.).

3) One Player Can Change an NBA Team explanation: The Spurs go from 22 wins in the 95-96 season to 56 wins in the 96-97 season after drafting Tim Duncan [along with getting a healthy David Robinson back].; the Magic go from 21 wins in the 91-92 season to 41 wins in the 92-93 season after drafting Shaquille O'Neal. This type of rapid, draft-based improvement would seem harder to do in the other sports. Along those lines, if either the Bobcats or Celtics draft Greg Oden, I wouldn't be surprised to see a similar upswing in wins next season. In contrast, it just doesn't seem that one great player will change an NFL team. Sure, Reggie Bush made the Saints better, but there were a lot of other new players who arguably had more of an impact (e.g., Drew Brees, Marques Colston, a healthy Deuce McCallister)

4) The Comparative Gambling Interests explanation: I would hate to think that this is relevant, but if an NFL team throws a game, there would probably be far more outrage than if an NBA team were to do the same. The bookies, gamblers, and Vegas types have too much on the line on every NFL game.

5) Nobody Cares explanation: Not many people follow bad NBA teams, and since each game is only one out of 81, people probably pay much less attention to each NBA game than they do to each of an NFL team's 16 games. Also, the NFL seems to promote their product better (i.e., most NFL games are on Sunday, which for many Americans has seemingly become a day built around NFL football, and there is always the sweet Monday night game to follow; in contrast, NBA games happen every night and there is no real build-up to any one game--this may make it easier for an NBA team to throw a game).

In summary, and as Professor Zywicki notes, we essentially have two categories of explanations: 1) the incentives are greater to tank in the NBA or 2) the costs of tanking are lower (e.g., either easier to get away with or less outrage if they tank). Even if both factors are small, they seem to push in the same direction.

But are our explanations correct? Are there are other explanations? And does tanking, in fact, occur more often in the NBA, or do we only see it more often because it is more noticeable?

Update: Other Takes

In addition to the outstanding reader comments to this post, several writers on other websites/blogs have responded:

"I think all the possible explanations suggested by the professor are at play here. There certainly is a perception in the NBA that if you can just land that one player, you can completely turn your team around. . . . If tanking is unique to the NBA vis-a-vis the NFL--and I'm not convinced that it is--then it is because winning matters in a more meaningful way in the NFL than in the NBA and because losing NBA teams think that one player can turn their entire franchise around in a way that NFL teams don't."

"Sports Law Blog's Michael McCann recently did a fine job breaking down the usual reasons behind the sort of hand-wringing that follows every supposed "distasteful" loss by a potential lottery participant. While there is absolutely nothing to disagree with in McCann's breakdown, I think he's giving the hand-wringers a little too much credit . . ."

"Professor Michael McCann of Sports Law Blog had a post on the recurring concern about whether bad NBA teams "tank" late in the season in order to secure a better draft pick. Concern about this phenomenon is what led to the unique "lottery" system in the NBA. I wrote him asking why this concern continually arises in the NBA and not other pro leagues. Michael has written a long and persuasive response to my query . . . In a nutshell, his argument is that the benefits of tanking are higher in the NBA and the costs are lower. Seems persuasive to me . . ."

"Four columns I really enjoyed this week: 4. The Sports Law Blog did a good job of breaking down every possible reason why tanking occurs in the NBA and not other sports. I think it's a little more simple: The NBA season is so damned long, it lends itself to throwing in the towel ... especially if there's a franchise rookie coming out. But I liked all their theories."