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Saturday, June 30, 2007
 
Cheering speech through not cheering

Since silence and non-participation are a means of expression, there will be an interesting free-speech event in Pittsburgh tonight.

A group called Fans for Change has organized a fan walkout for tonight's game between the Pirates and Washington Nationals at Pittsburgh's PNC Park. The protest consists of a pregame rally and petition drive on Federal Street, outside the park, from 5-7, then a mass walkout at the end of the third inning (fans either will leave or stand in the concourse through the end of the fourth inning). Fans also are being encouraged to wear green t-shirts, symbolizing money. Details here and here; an interview with one of the organizers is here. (H/T: Pittsburgh Sports and Mini Ponies and, as always, Deadspin).

Oriole fans staged a a similar walkout in Baltimore last year. And Lions fans have been doing cartwheels for two years calling on the team to fire GM Matt Millen. Of course, the on-field performance of both teams suggests that this form of fan expression does not work very well.

The Pirates have responded to the walkout by ordering the Pittsburgh broadcast team on FSN Pittsburgh not to discuss or show the walkout and the network has agreed; both the FSN and Nationals telecasts will go to commercial at the end of the third. All references to the walkout have been removed from the team message boards. This raises some interesting issues about both networks' commitment to informing the public. If something plainly newsworthy, important, and related to the game occurs, what is their obligation to cover it, even if it is negative or critical of the home team (with which FSN has a contract)? Striking the balance between covering "their team" and some degree of objectivity is an ongoing tension for all local-broadcast outlets. But suppose the walkout is extremely successful (say 15,000 people out of a crowd of 22,000 walk out) and a foul ball is hit into a deserted section of the stands--will FSN show that?

And might the Pirates try to take even stronger steps to cut the protest off? For example, the team could try to break up the pre-game rally in the name of "keeping the street free and clear for foot traffic"? The Pirates and MLB talked seriously about different steps to control what pedestrians can do on Federal Street, for traffic reasons, during the 2005 All-Star Game. The Cleveland Indians got in First-Amendment trouble for breaking up an anti-Chief Wahoo protest rally on the sidewalks outside Jacobs Field in 2000.

Alternatively, the Pirates might try to keep fans in their seats or in the seating area during the targeted protest time between the third and fourth innings--the Yankees have showed how to do that. Just keep the fans in their seats during the period that they want to leave as part of their collective message; they can leave immediately after the short break between innings is over. But since they want to leave at a set time, the delay effectively blunts the intended message. Consider, by comparison, that the Oriole-fan walkout was deliberately staged at 5:08 p.m.--in honor of Brooks Robinson (No. 5) and Cal Ripken Jr. (No. 8). But if the team could delay the departure by one minute, that part of the message gets lost to some degree. I doubt the Pirates will try this, but it gets more interesting as I think about it.

I may have more to say on this after the events play out.

Update:

The Parrot
has further information on how the media is going to play it. The other local broadcast outlets ( are considering using helicopters or tower-mounted camera. But The Parrot points out that these outlets have to walk a fine line themselves. While they do not have the same type of close relationship with the team that FSN Pittsburgh has, there might be some fear of the Pirates retaliating against an outlet that covered the story that the team does not want shown. And that is unfortunate. Because whatever reason the team's own broadcaster might have to downplay the negative, these other outlets are operating as true journalism operations and unquestionably have an obligation to inform the public and to be critical of the team.

Friday, June 29, 2007
 
Thoughts on Last Night's NBA Draft

Like most NBA drafts, last night's made for great television (at least until things seemed to slow down dramatically with picks beginning in the 20s). There are excellent draft recaps today by Chad Ford, Bill Simmons, Marty Burns, and Charley Rosen. Jeff Clark and Henry Abbott also ran an excellent draft chat on ESPN, and its transcript is worth checking out.

To me, the most interesting development was the Milwaukee Bucks selecting Yi Jianlian at #6, even though Yi's agent, Dan Fegan, did everything he could prior to the draft to dissuade the Bucks from taking him. And that's because, according to the Associated Press, Yi "wanted to play in a city with a strong Asian influence . . . there are about 27.5 thousand people of Asian descent living in Milwaukee, population 605,000." Yi would have been selected by the Boston Celtics at #5 , but the team decided to trade the pick for Ray Allen. So will Yi demand a trade from the Bucks? According to Sun Qun, the editor of China's top basketball newspaper Pioneers, the answer is no and he managed to take a shot at American players in explaining why:
Yi probably will not say 'No' to the Bucks. He is not American. He respects the NBA very much.
In addition, there have been several excellent pieces over the last week that touch on how the law connects to the NBA draft, including Ted Miller's column in the Seattle Post Intelligencer on how the NBA's new age eligibility rule affected Spencer Hawes and the University of Washington in last night's draft (and my thanks to Ted for his kind words of my research and of Sports Law Blog), and Oscar Robinson's column in the New York Times on how the NCAA should revisit its eligibility rules on players who declare for the NBA draft.

Tuesday, June 26, 2007
 
David Ortiz's War on Umpires

Over on The Situationist--which was recently named Best Social Psychology Blog--Jon Hanson and I have a piece entitled "What's Eating David Ortiz?" that you may find interesting.

Our piece offers a psychological explanation for why Red Sox designated hitter David Ortiz--described by some as the greatest clutch hitter in Red Sox history--has become so acrimonious in his relationship with umpires this season, a season in which Ortiz has played well, but has lacked the flair for the dramatic that has signified his Red Sox career.

We contend that his frequent questioning of calls relates to a particular set motivated attributions that leads him to explain his less heroic performance in a way that doesn't compromise the hero disposition that he’s been enjoying but still explains his cooling bat (even though, in truth, his cooling bat better reflects the statistical flukiness and fortuitous circumstances of his past clutch hitting).

We hope you check out our piece on Ortiz. You might also like our post, "The Magic of Jonathan Papelbon's Knuckle-Knock."

Monday, June 25, 2007
 
Congress to Investigate Pension and Disability Treatment of Retired NFL Players

Tomorrow at 1 p.m., the House Judiciary Subcommittee on Commercial and Administrative Law will conduct a hearing on the disability benefit application system offered to retired NFL players by the NFLPA. A number of ex-players have asserted that the NFLPA has ignored the needs of former players--the very players whose labor, arguably, built the league from which current players benefit. Former Dolphins tight end Jim Mandich, for instance, has called the NFLPA "greedy [jerks] that don't care of their own."

So how much do ex-players receive in their pension? According to Andrew Abramson in an excellent article in the Palm Beach Post, former players who retired before 1993 receive on average about $250 per month for every year they played in the NFL--meaning that a retired player with four years of NFL experience earns about $1,000 a month in his pension. Granted, the number varies depending on what age a player decided to take his pension, but even the higher-end monthly stipends are much lower than pensions for other major sports.

In another excellent article on this topic, CNN Money's Chris Isidore explores the disability portion of the retirement system. He notes that while 284 players received disability payments totaling $19 million last year, that only came to a modest average of $66,000 each--"hardly sufficient for some of the players facing severe and costly medical problems."

So how does a retired player seek disability benefits? Here's how:
Six trustees, who oversee the benefits process on the NFLPA retirement board, approve disability benefits. The trustees include three former players and three team owners.

If a player is denied benefits and a court of appeals is willing to hear his case, the Groom Law Group, which wrote the NFL's collective bargaining agreement and oversees legal matters for the NFLPA's retirement plan, serves as the retirement board's attorney.

Only 284 retired players currently receive disability benefits, according to Groom Law attorney Doug Ell, and there are an estimated 9,500 retired players overall.

More than 20 players who were denied benefits by the retirement board have had their cases heard in appeals court. The Groom Law Firm was successful in preventing all but one of those players from receiving benefits.

This subject has attracted more attention in light of recent findings concerning the long-term health problems of those who play in the NFL (see Geoffrey's post, Andre Waters and Concussion Liability, and articles by Alan Schwarz in the New York Times--Expert Ties Ex-Player's Suicide to Brain Damage & Dark Days Follow Hard-Hitting Career). Perhaps more than ever, an enhanced pension and disability system is essential. Along those lines, notes committee Chairwoman Linda Sanchez, "the NFL is a billion-dollar organization built on the backs of individuals who have, in many cases, sacrificed their mobility, suffered traumatic brain injury, or worse. I called this hearing to bring together representatives of the NFL, the players union, and retired players to have an open discussion on the fairness of the system to severely disabled retired players."

Among the alternative systems that will be discussed tomorrow is whether individual franchises should carry their own disability insurance for players. But that very idea was rejected in 1993, when the NFL bargained with players that in exchange for free agency, individual teams wouldn't be responsible for disability insurance. Other ideas to be examined will include setting aside an additional 1 percent of league revenue which, according to Isidore, would more than quadruple the amount that could be paid out to in injured and disabled former players, and a $5 per ticket surcharge, which would raise even more. The NFL and NFLPA--neither of which will have their leaders, Roger Goodell and Gene Upshaw, respectively, present at tomorrow's hearing--will likely argue that the system reflects the collective bargaining desires of the respective bargaining units and that it is not one that Congress should interfere with it.

The hearing, which will be webcast at this link, features the following witness list:
  • Dennis Curran - Senior Vice President and General Counsel, National Football League
  • Douglas W. Ell - Plan Counsel to the Bert Bell/Pete Rozelle NFL Players Retirement Plan (Groom Law Group)

It should be a fascinating hearing and I look forward to watching the webcast. For additional information, please contact Jonathan Godfrey, Communications Director of the Judiciary Committee.

Update: The written testimony of the speakers is available at this link (my thanks to the anonymous commentator who provided the link in the comments section).

 
Stop Snitchin’

“I’m major leagues, who’s catching because I’m pitchin,’ Jose Canseco just snitchin’ because he’s finished.” - Rick Ross “Everyday I’m Hustlin’”

Jason Giambi and George Mitchell’s agreement that Giambi will testify so long as he does not have to rat out his compatriots begs the question, when is it okay to report or not to report illegal or anti-social activities to interested authorities? Social norms within and beyond sports are in conflict here. Individual freedom, privacy, and loyalty suggest that one has no duty to tell, and perhaps has low moral character for telling. Protecting others, the rule of law, openness and honesty, suggest that one should or must cooperate with those authority figures charged with rooting out and punishing untoward, illicit or illegal behavior.

Ray Lewis was charged with murder because he wouldn’t drop a dime (quarter? phone card? text message?) on his buddy who killed someone in a scuffle. Initially, he was disparaged by the media for obstructing justice. But he was soon forgiven.

Carmelo Anthony was chastised for appearing in a low-budget video shot in his hometown of Baltimore entitled, Stop Snitchin’. Like young Vito Andolini in Godfather II, you mind your business in the ghetto. The Stop Snitchin video was marketed towards hiphoppers who buy underground mixtapes and videos on street corners in innercities. You will not find it in Borders. It was not marketed to children or even most adults, only to those who already believe in the “code” in the first place. Carmelo was disparaged, but ultimately forgiven.

Now Giambi refuses to sing. I predict Jason Giambi will be treated the same way. He’ll be disparaged and quickly forgiven. We feel we must do something to honor the rule of law and openness and honesty. But not too much, because it seems obvious that fraternal loyalty is the greater principle. Consider that, years ago, Jose Canseco told us all about how prevalent steroids were in the game. He snitched, loudly and proudly. And he will never be forgiven.

Sunday, June 24, 2007
 
West Virginia University College of Law Symposium on Race and Labor in 21st Century Sports Law

On October 4th and 5th, the West Virginia University College of Law will host a symposium entitled "Reversing Field: Examining Issues of Commercialization, Race and Labor in 21st Century Sports Law.” I am honored to be speaking at this event, which is spearheaded by Sports Law Blog contributor and WVU law professor andre` douglas pond cummings and also includes blog contributors Joe Rosen and Andre Smith.

The symposium's sponsors--the WVU Law Sports and Entertainment Law Society, the Office of the President of WVU, and the WVU School of Physical Education--have assembled a terrific group of academics and practitioners to debate key issues related to the intersection of race and labor law in sports: commercialization of intercollegiate athletics, race issues in collegiate and professional sports, drug testing, gender equity, and economic weapons.

Speakers include:
  • Timothy Davis, member U.S. Anti-Doping Agency, Law Professor, Wake Forest University
  • Bobby Douglas, Former Olympic Wrestler, Wrestling Coach, Iowa State
  • Suzan Shown Harjo, advocate for Native American Rights, plaintiff in Mascot Debate case
  • Floyd Keith, Executive Director, Black Coaches Association
  • Gene Orza, Chief Operating Officer, MLB Players Association
  • Joe Rosen, Sports Agent, Orpheus Sports and Entertainment
  • Kenneth Shropshire, Law Professor, University of Pennsylvania, President, Sports Lawyers Association
  • Andre Smith, Law Professor, Florida International University

It should be a terrific event and is open to the public. For additional information, please contact Stacey Evans, who is President of the WVU Sports and Entertainment Law Society.

 
Judges as Umpires, Redux

On Slate, Walter Dellinger (former Acting Solicitor General, con law professor, and appellate lawyer) offers his "Five-Minute Crash Course in Constitutional Law" for non-lawyers.

He gives the best rebuttal I yet have seen to the "judges should be umpires" tripe:
Senators especially like it when a nominee says a judge's role is just to be an "umpire." But broad constitutional phrases are different from sports rules, so a judge would be like an umpire only if the game—instead of having a strike zone and a set number of balls, strikes, and outs—provided instead that "each batter shall have a fair chance to hit the ball" and "each team shall have a reasonably equal opportunity to score runs." Key language of the Constitution is that broad, meaning that men and women appointed to the bench must necessarily exercise judgment. Which is, of course, why they are called judges, and not umpires.
Wish I had said it exactly that way.

Friday, June 22, 2007
 
Associated Press Says Public Has Right to Blacked Out Names in Search Warrant

This post essentially continues the debate within the comments to Michael's excellent post yesterday regarding the disclosure of the Diamondbacks scouting report. I had to beat Howard to it.

This week, the Associated Press asked a federal judge to make public the names of baseball players a government agent said were implicated in drug use by former major league pitcher Jason Grimsley. When the affidavit signed by the government agent to obtain a search warrant on Grimsley's home was made public in June 2006, the names of the players the agent said Grimsley accused of using performance-enhancing drugs were blacked out. The AP now says it has a right to the blacked out names.

According to the AP, "Any privacy interests of individuals named in the affidavit are insufficient to overcome the public's right to access." The AP also said that if prosecutors provided the complete affidavit to baseball steroids investigator George Mitchell, "then they should not be allowed to invoke the privacy interests of third parties as a shield to prevent disclosure to others."

So let's continue the debate. Does the public have a "right" to the names of players who were blacked out by federal prosecutors? After all, the very reason the prosecutors blacked out the names to begin with was to maintain the players' confidentiality and privacy interests. Thus, the privacy interests of the players whose names were blacked out should definitely be taken into consideration. However, as Jimmy H. mentioned in the comments section to Michael's post, the public interest in steroids usage is definitely much greater than a scouting report found on a dugout floor. So the blacked out names of the players would most likely be considered "newsworthy". But there is an "entertainment" aspect working here as well. Let's face it, this would be a great sell for the AP if they could just get their hands on these names. The public loves to read about steroids in baseball. You can bet the AP wouldn't be in court this week if these players played professional football.

What I find most interesting though, is that the AP assumes it has a legal right of access to the names if prosecutors gave George Mitchell access. What law says that? So now the press can go to court and demand legal access to any information it wants whenever that information has previously been disclosed in confidence to a third party? That's a scary thought.....

 
Kevin Garnett Says No to Boston Celtics: Selfish or Understandable?

Yesterday afternoon, I was annoyed to hear that Minnesota Timberwolves star Kevin Garnett does not want to be traded to the Boston Celtics. In fact, he told his agent, Andy Miller, that if traded to Boston, he would exercise an opt-out in his contract next summer to become an unrestricted free agent.

"What is this guy's problem? Why doesn't he like Boston? Why wouldn't he want to play for the NBA team with the most championships? What's good enough for Larry Bird and Bill Russell isn't good enough for a guy who has never played in, let alone won, the NBA finals?"

Those were my initial reactions, albeit as a diehard and perhaps embittered Celtics fan. Although I had mixed feelings about the rumored trade of Garnett to Boston in exchange for Al Jefferson, the #5 pick, Gerald Green, and Theo Ratliff's contract, the thought of Kevin Garnett playing along side Paul Pierce had me thinking playoffs, and a return to something better than mediocrity and way better than whatever adjective can describe the current Celtics.

But then I thought about it more objectively. Why shouldn't Garnett maximize his rights under his contract? In effect, he's using the threat of an opt-out clause as a de facto no trade clause, since no team will likely give up what's needed to convince the Timberwolves to deal him unless that team can be certain that Garnett would be more than a one-year rental.

And what's wrong with that? He and his agent likely negotiated the opt-clause in part for the very situation described above: getting traded to a lousy team that plays in a cold weather locale and that may very well have management and coaching changes within the next 12 months. That doesn't sound like a particularly appealing prospect for a 31-year-old who is probably now thinking about his legacy, which will undoubtedly be judged in part by whether he wins or at least competes for an NBA title--particularly when the Phoenix Suns are also said to be interested in him.

Let's take this a step further. For all the money Garnett earns--and it's a lot, $21 million a year--his job has a serious drawback that few us have to deal with in our jobs: his employer can trade him to some place where he doesn't want to go, and to work for an employer that he doesn't want to work for. So when Garnett tries to prevent a possible trade to the Boston Celtics, he's enjoying a benefit that most of us have in our jobs, and he only enjoys that benefit because he is really good at his job; most NBA players have no such contractual rights. James Joyner on Outside the Beltway has a piece on this subject today. Here is an excerpt:
There aren’t many lines of work where you sign a contract with one company in one location and can be suddenly be shipped to another company, forced to move across the country–or even to Canada–and suffer the family disruption, tax implications, and other consequences at the whim of ownership. There have been instances where a player is traded three times in a single season.

Presumably, the argument is that players have agreed to those terms of employment as part of the collective bargaining process. Still, professional sports leagues operate as closed shops and there’s simply no way to earn a living.

. . .

[I]t’s unlikely anyone is going to feel sorry for the plight of professional athletes making multi-million dollar salaries. Still, the amateur draft, trade rules, and other limitations on player autonomy are quite unusual. Indeed, the only comparable labor situation that comes to mind is that of military personnel, especially in the days of conscription.

Fans have the expectation that players will display extraordinary loyalty to their teams, including extending taking a “home town discount” of millions of dollars when free agency (otherwise known as, “the right to work for whomever will hire you under whatever terms you can negotiate just like everyone else”) and “putting the needs of the team above personal goals.” Yet these same fans seem to have no problem with trading these players for better ones if the opportunity arises.

So should we criticize Garnett for what may seem like "selfish" behavior or should we empathize with him for what may also seem like understandable behavior?

 
Supreme Court decision in TSSAA v. Brentwood Academy (Updated)

The Supreme Court of the United States today decided Tennessee Secondary Sch. Athletic Association v. Brentwood Academy, involving a First Amendment and Due Process challenges to the enforcement of a high school athletic association's anti-recruiting rule against a private school. We previously have discussed this case here, here, and here. A copy of the opinion can be downloaded here (via SCOTUSblog).

As I predicted on these pages, the Court unanimously rejected Brentwood's constitutional arguments. Justice Stevens wrote the opinion for the Court, joined by all members of the Court except Justice Thomas, except as to Part II-A of the opinion, which was joined only by Justice Souter, Ginsburg, and Breyer (see below).

I have not had a chance to read the opinion carefully yet (will do so tonight and may talk more about it). On the First Amendment issue, Justice Stevens took two approaches. The one that commanded a majority relied primarily on the fact that Brentwood voluntarily joined TSSAA and thus voluntarily agreed to abide by the anti-recruiting rule. The Court relied on precedent controlling government-employee speech, which generally gives government greater control over what its voluntary employees can say. Such rules only must be "necessary to managing an efficient and effective state-sponsored high school athletic league." The Court said it needed no empirical data to "credit TSSAA's common-sense conclusion that hard-sell tactics directed at middle school students could lead to exploitation, distort competition between high school teams, and foster an environment in which athletics are prized more highly than academics."

As for the due process claim, the Court detailed the TSSAA proceedings and found that Brentwood received all the process it was due.

There are three interesting features of the decision, notable for what they tell us about the present and future of broader constitutional doctrine:

First, Justice Thomas concurred only in the judgment, declining to join any part of Justice Stevens' opinion. Thomas argued that the Court's 2001 holding in Brentwood I, which held that the TSSAA was a state actor, was wrong and should be overruled.

Second, as noted, Justice Stevens lost his majority for Part II-A of the opinion, which Justice Kennedy, the Chief, and Justices Scalia and Alito refused to join. In that part, Stevens relied on precedent upholding limits on coercive face-to-face solicitation by attorneys and other professionals, namely Ohralik v. Ohio State Bar Assn (1978), likening personal athletic recruitment to hard-sell lawyer solicitations and arguing that both should be subject to closer regulation. That Justice Kennedy and the other three declined to join that part of the opinion suggests that some members of the Court would like to expand protection for commercial speech.

The third relates to a back-and-forth in the comments to the post about the oral arguments. There was discussion of how the speech at issue fits in the heart of the First Amendment and whether the First Amendment protects the free flow of information about Brentwood's sports teams. At the start of Part II-A (for a plurality), Stevens says the following:
The anti-recruiting rule strikes nowhere near the heart of the First Amendment. TSSAA has not banned the dissemination of truthful information relating to sports, nor has it claimed that it could.
Stevens clearly wanted to make this case about face-to-face contact and not the content of Brentwood's speech, emphasizing the "difference of constitutional dimension between rules prohibiting appeals to the public at large . . . and rules prohibiting direct, personalized communication in a coercive setting.

In other words: If Brentwood put the identical information and statements in its broadly disseminated promotional materials, it could not be subject to regulation. The fact that Justice Kennedy, et al., did not join at least that idea is a bit surprising to me.

Additional Comments and Commentary: Moved to Top

Eugene Volokh has thoughts on the decision, particularly the divide among the justices as to the applicability of Ohralik to justify a total ban on pre-enrollment communication with students. Volokh suggests that if the risk of coercion is enough to support the TSSAA rule, then a broad swath of speech--not only one-to-one, but also appeals to the public at large--could be subject to regulation, because some risk of coercion is present in much communication. Volokh also questions why Ohralik should control since the coach here communicated with the students by letter, not face-to-face. The Court has distinguished direct-mail solicitations, including targeted solicitations by attorneys, from oral solicitations. Even assuming risk of coercion or undue influence, why is the letter from a coach not more like the mail solicitation from an attorney, rather than the oral, face-to-face solicitation from an attorney?

Justice Kennedy's objection to Stevens' reliance on Ohralik reflects an effort to tie the decision more firmly to the voluntary-association rationale and to make clear that the TSSAA could not impose the recruiting ban as a free-standing rule against all schools in the state, including non-TSSAA members. Kennedy argues that Ohralik undermines the understanding that, absent Brentwood's consensual and voluntary membership in the TSSAA, the speech by the head coach was entitled to First Amendment protection. This explains why Justice Kennedy did not sign on to Steven's distinction between face-to-face solicitation and broader general dissemination. For him, the only distinction driving the case was between regulation of voluntary members of an organization and general regulation of a segment of the general public. The attorney regulation cases potentially implies that this case could apply outside the membership/contractual context to a host of face-to-face contact; Kennedy (plus three, plus Thomas) rejected that expansion.

Note the unanimity among the eight justices (put Justice Thomas to the side for now) on an underlying point: The substance of the letter--information about Brentwood's football team and the eligibility (and benefit) of committed pre-enrolled students to participate in spring practice--was generally within the ambit of the First Amendment. What took the speech in this case out of that realm was the context: a) Targeted and potentially coercive and made by a member of a voluntary organization (Stevens and three), b) made by a member of a voluntary organization (Kennedy and three).

Further Update 6/23:

Another take on the case from Tony Mauro at the First Amendment Center.

Thursday, June 21, 2007
 
Theft or Finders Keepers? AP Reporter Publishes Scouting Report Found on Dugout Floor

Last Thursday, the Arizona Diamondbacks played the New York Yankees at Yankee Stadium for the final game of a three-game series. The Yankees won the game by a score of 7-1, sweeping the series; the teams will not play again this season.

After the game, an Associated Press reporter was walking through the Diamondbacks' visiting dugout. He found a scouting report on the floor. The scouting report was authored by someone on the Diamondbacks' staff and discussed how to pitch to various Yankees:

Alex Rodriguez: "HOT right now. ... Chases a lot of BB's w/2-strikes, both away and in dirt. CH is fine when away. ... (vs. left-handers) Hard in, soft away. Ladder FB w/2-strikes."

Derek Jeter: "Will bunt and H&R. ... Runs early. ... Struggles w/ball down/in and will chase SL away. ... Get ahead. Fairly aggressive so will need to mix pitches and locations 1st pitch."

Bobby Abreu: "HOT right now. ... Good guy to crowd once you're ahead. Hammers 1st pitch FB's away w/RISP."

Johnny Damon: "(vs. right-handers) Struggling w/soft stuff. ... (vs. left-handers) Keep honest w/FB up/in."

Key: FB-fastball; CH-changeup; SL-slider; BB's-balls; ladder-high fastballs, out of strike zone; H&R-hit-and-run.

The reporter published the scouting report in an Associated Press story that was picked up by various publications.

Should he have done so? Didn't the Diamondbacks have a reasonable expectation of privacy for their proprietary information? Or were the Diamondbacks merely irresponsible with their belongings, and thus did not enjoy any legal protection to the information?

There are different ways to examine the issue. My initial reaction was
surprise that the property of the Diamondbacks in their dugout would be considered "fair game" (for lack of a better expression) for a reporter to take and publish. This viewpoint was endorsed by the Diamondbacks when they formally complained to Major League Baseball about the "theft":
The Arizona Diamondbacks have contacted Major League Baseball about an Associated Press reporter who discovered their advance scouting report on the New York Yankees in the dugout yesterday and put its contents on the wire. "I am furious," one Diamondbacks executive said. "That is theft."
I can see why the Diamondbacks and perhaps also the Yankees might feel that a private team document accidentally located on the ground of a team dugout should not be removed from the premises or used in a publication without their permission. Under that interpretation, the taking and subsequent use of the scouting report might be construed as misappropriation, the unauthorized or improper use of a party's confidential information or intellectual property, or trespass to chattles, the intentional dispossession of another's property. Beyond tort law implications, one might even characterize the taking of the scouting report from the dugout as criminal behavior: theft is the illegal taking of another person's property without that person's consent, and if we are to believe the anonymous Diamondbacks' official above, then the team appears to believe that they have been a victim of a reporter's theft.

Continuing along this pro-team/anti-reporter interpretation, while I recognize that reporters are rewarded for breaking stories, might baseball officials equate what the reporter did to going through someone's else thrash? Of course, the more precise analogy would be going through someone else's thrash on that person's property, as according to the U.S. Supreme Court in California v. Greenwood, 486 U.S. 35 (1988), garbage placed at the curbside is public property--but you get my point. Similarly, when one walks through a department store, there is no expectation that a shirt located on the ground is thrash; if you pick up that shirt, you are still expected to buy it, and if you leave the store without doing so, you will have shoplifted.

Aside from the law, consider our expectations for those involved in this story: the Associated Press is a venerable and trusted news organization, and its reporters are presumably expected to ascribe to their organization's culture; it's not like a reporter from Star Magazine or--dare I say it--a blogger found the juicy info.

On the other hand, why should the Diamondbacks receive protection from their own carelessness? That was the reaction of Jimmy Golen, a buddy of mine who writes for the Associated Press and who also has a law degree from Yale Law School, when I asked him what he thought [note: Jimmy is not the AP reporter at question; he covers the Red Sox and Patriots, among other Boston teams]:
If I remember correctly, the issue is whether the Diamondbacks would have a reasonable expectation of privacy for proprietary information left on the floor of the visitor's dugout at Yankee Stadium, after the last game of their only visit to New York. I would argue that, unlike the digging through the trash example, they don't. It seems to me that if you are extremely careless with your secrets, you lose the protection of the law; if not, you should.

If you disagree, let me ask you if you'd feel otherwise if the scouting reports were picked up by a Yankee employee (whether cleaning staff or uniformed personnel) and leaked to the AP? Or used by the Yankees for their own, nefarious ends? What if they were leaked by a disgruntled Diamondbacks scout without authorization?

What if -- not to get too grandiose on you -- they weren't the Diamondbacks' failed plans to win in New York but the Bush Administration's failed plans to win the war in Iraq, left behind in a Pentagon bathroom where the media has access? Should the principle be different because it's "just sports"?
Those are some great points in favor of the Associated Press. To amplify one of his remarks, consider the significance of the game and series being over when the reporter found the scouting report; the Diamondbacks' occupancy and related possessory rights of the dugout presumably end at some point after the game ends. What do you think?

Wednesday, June 20, 2007
 
Two Views of Prosecutorial Misconduct

Two interesting and contrasting views on the disbarment of Durham County DA Mike Difong. Both pieces are by former New York public defenders: David Feige (now an author) and Brooks Holland (now assistant professor at Gonzaga University School of Law).

They take quite different views as to how common it is for prosecutors to withhold exculpatory evidence (deliberately or otherwise) and how uncommon it is for such prosecutors to be held accountable for abusive over-zealousness. Both are worth a look.

 
Will the NFL's New Whistleblower Program End the League's Concussion Headaches?

The NFL announced this week that it will implement a whistleblower program designed to deal with its ongoing concussion scandal. Under the proposed policy, the details of which still need to be worked out with the union, medical personnel pressured to clear players before those players are healthy enough to return to the gridiron, or players pressured to play, can file anonymous reports that should lead to league follow-up investigations.

Players have already expressed doubts about the likely effectiveness of this proposal. According to ESPN,
. . . a healthy dose of skepticism remains.

"I think, of all the things they're recommending [on dealing with concussions], that will be the toughest sell," said 11-year veteran tight end Ernie Conwell. "Players hate to be labeled, you know? And no one wants to be labeled a snitch or a rat -- that's for sure. So I feel like it's going to take a lot of education to make the players feel comfortable with it."
I spent a considerable amount of time last summer writing a Boston University Law Review article on corporate fraud whistleblowers (which you can download free of charge here), and one of the main conclusions I developed was that, while laudable, anonymous reporting alone does not encourage whistleblowers to report negative information about their employers. The economic, social, and psychological factors militating against whistleblowing, such as the "rat" label mentioned by Conwell, are simply too powerful. The most effective whistleblowing programs have involved financial bounties or rewards for reporting accurate information about organizational wrondoing. Obviously, the NFL is not yet prepared to take that step.

Still, this seems like progress on the concussion issue. Moreover, it may represent an increased interest on the part of leagues in developing internal reporting systems to address persistent problems. Perhaps an anonymous steroid whistleblower line will be the next step?

 
Did Vince McMahon's Fake Death Violate Security Laws?

That is a question asked by Darren Rovell on Sports Biz today, and also one that he asked me in a TV interview that will air on CNBC later today at the following times: 7:50 a.m., 11:30 a.m., and 1:55 p.m., all Eastern Standard Time Zone. I hope you get a chance to watch. The interview will first air on CNBC's morning business show Squawk Box.

McMahon, as you know, is the chairman of World Wrestling Entertainment ("WWE"), and last Monday, WWE claimed that McMahon had been killed when his limo exploded. WWE.com announced that he was presumed dead since no body was recovered, and also claimed that the FBI was investigating, but it was later learned that the event was merely a promotional stunt, like many events that occur in pro wrestling.

WWE is a publicly-traded company, and while it's stock is only down 1.8 percent since the fake death, Rovell analyzes whether investors (as opposed to fans) of WWE may have been affected by the news, particularly since McMahon is listed in the company's most recent annual report as the most important person in the organization, and thus his death would seemingly be of great consequence. Then again, according to the WWE, not one investor has contacted the company to complain. Still, Rule 10b-5, pursuant to Section 10(b) of the Securities and Exchange Act of 1934, prohibits misleading statements or omissions of material fact in connection with the purchase or sale of any security, and that includes press releases that intentionally or, according to most courts, recklessly mislead investors. Both the SEC and private citizens can enforce the requirements of 10b-5. Establishing a claim against the WWE would be difficult, but it's an interesting idea to consider.

I hope you get the chance to watch the interview.

Update: Darren Rovell has put up a transcript of his interview of former SEC regional director Ira Lee Sorkin and me, and also news that Rovell is now considered a suspect for the murder "Mr. McMahon"!

Tuesday, June 19, 2007
 
Legal Issues of Unauthorized Kobe Bryant Video

Last week, a website named "The Official Kobe Video Website" appeared. It is offering the sale of an unflattering video of Kobe Bryant, purportedly taken in late May outside a shopping center in Newport Coast, California, in which Bryant has an impromptu conversation with a small group of fans. During his conversation, Bryant disparages his employer, as well as a number of his teammates. He saves his most vitriolic remarks for Andrew Bynum, the Lakers' highly touted 19-year-old center. Bryant insists that Lakers should "f---ing ship his ass out."

As reported by Howard Beck in today's New York Times, the men responsible for the video--a few guys in their early 20s who are unwilling to identify themselves--do not believe that Bryant was aware of the video being taken. Those same men contend that someone offered to buy it from them for $100,000 in order to keep it private, but they refused, and instead intend to make it available to anyone willing to spend $1.99 to watch it, provided they receive 50,000 orders. It's unclear how many orders they have thus far received. It's also unclear if the video is all that entertaining, since other than a consistent flow of swears and some unvarnished remarks about teammates, Bryant has offered similar, albeit less explicit, commentary on his blog. Still, as ESPN's Henry Abbott writes today, the video strikes many as a distasteful attempt at "gotcha" journalism.

Could Bryant successfully sue the Kobe video guys? "Miss Gossip" over at AOL FanHouse is a student at Stanford Law School, and she addresses that issue in a post today. Here is an excerpt:
If the goal is to sell the video to a media outlet, then Kobe could sue for money damages or an injunction preventing the release of the video. As a celebrity he has a legal right in his own publicity image -- he can't stop you from showing his image on the news, but he can stop you from profiting from his image without his permission. The KVG guys told [FanHouse's] Brett that Bryant didn't know he was being filmed -- which sure sounds like he did not grant his permission for them to disseminate the video for profit.

Additionally, you have the super-legal argument that these KVG guys are just plain dumb. Why would thousands of people pay for the video when five minutes after its release they could probably see it for free on the FanHouse?
Miss Gossip is alluding to the right of publicity, which is the use of the plaintiff's name or likeness, without consent, for the defendant's commercial advantage. As Rick recently examined in regards to Drew Brees' efforts to avoid having his image used to promote his mom's congressional campaign, the right of publicity protects against commercial loss caused by appropriation of an individual's name or likeness for commercial exploitation. The right varies in strength by state, but it would be an avenue that Bryant could consider, in the highly unlikely event that he sought legal recourse. A key question would be whether the video is providing a newsworthy purpose (see Rick and Howard's debates on that subject) and to what extent Bryant's celebrity status diminishes his legal right to privacy. Also, some states, like Illinois, have passed High Tech Peeping Tom laws, whereby is it illegal to record or transmit live video images of a person without his or her permission--but the catch is that the person must be in a "private location" and Bryant was not.

Sunday, June 17, 2007
 
Alan Childress on Nifong's Disbarment

Alan Childress at the Legal Profession Blog offers his thoughts on the disbarment of Mike Nifong for his misconduct in the Duke lacrosse prosecutions.

Childress makes one very good point that I had not seen elsewhere and that I think I agree with: Even assuming Nifong deserved to be punished this harshly, disbarment after one hour of deliberation is, at least historically, a highly unusual and harsh punishment for even extreme cases of prosecutorial misconduct. And a possible explanation for that difference is the high-profile and politicized nature of the case. In other words, the very thing that allegedly caused Nifong to engage in misconduct arguably caused the Bar panel to punish him severely, unusually so.

Childress writes:

. . . On the other hand, there is some history in bar discipline across the nation that would suggest that similar prosecutorial misconduct goes less punished, generally. It may be the right decision, but is it also possible that the N.C. bar [maybe even understandably] is doing some of what it accuses Nifong of doing: treating a case differently than it might have otherwise because it has gone public and taken a political life of its own? Do not some of the handwringing statements quoted from the bar seem designed for public consumption, more so than the usual panel finding? My query probably overstates the reality that Nifong created much of the "life of own" of his prosecution, and made the statements in the press not as part of a regular process like issuing a bar decision. But my experience is that bar boards don't decide cases in a day (or really, a year), write such strong statements, or slam prosecutorial overreaching this efficiently or thoroughly. I think they should in many cases, but this one is just more public than most.


This is a different point that is implicit in Andre's post. Rightly or wrongly and deserved or not, Nifong is, descriptively, being treated in an unusual fashion.

Saturday, June 16, 2007
 
My Apology to Mike Nifong

I am not long on sympathy. I have little to no sympathy for OJ Simpson, Kobe Bryant or Pacman Jones, each of whom has suffered public and professional ($monetary$) reprobation despite not being convicted of the crimes for which they were accused. I do not quibble with those who, because of the media reports, believe wholeheartedly in their guilt.

I have a similar absence of sympathy for the Duke Lacrosse team and can’t quite come to grips with ESPN having a half hour special two days ago about them. The same media outlets wiping their tears now were the ones reporting that they had a reputation for excessive on-campus rowdiness and belligerence and that they were having a party (parties?) generously laced with alcohol, minors, and strippers. (Was Pacman invited?) The same woman to be believed when she says she did not see the other girl attacked in any way, though she could not account for her whereabouts at all times because she was, um, working, also said they had a confrontation after the boys began yelling something about a broomstick.

Somehow others invite the bad that happens upon them. They are not excused for being in the wrong place at the wrong time. Personal responsibility is the slogan of our day. But the Duke Lacrosse team gets a pass. No one had to get raped at that party for Duke to legitimately suspend that team for the year. Precisely that type of animal-housing is supposed to be the bane of college athletics, and sports generally. Beyond their guilt or innocence, why the sympathy?


Which brings me to why I have sympathy for and am apologizing to Mike Nifong. The reason he is being publicly pummeled, and in my mind the reason why he was before the North Carolina ethics board, is because he did as civil rights organizations and feminist organizations have asked white men to do since I became interested in such politics: Disregard the low-mindedness of the media which promotes the idea that status and class and race have something to do with innocence and guilt, protect women from being raped and promote their coming forward by taking them seriously even when the only witnesses are them and the alleged broomstickers.

Maybe he did so for political reasons, to retain office in a majority black district. But such an accusation is not taken seriously when alleged by any other defendant. These defendants used their wherewithal to sell it. And if it be the case, the crime he is guilty of is overzealously protecting the district he lives in from alleged rapists. What other prosecutors are publicly or professionally skewered for this? Or does it not happen elsewhere?

So I want to apologize to Mike Nifong for the absence of support he has received from the same groups who used plenty of airtime to lambaste Don Imus and HipHop for disrespecting black women. Nifong is my white man of the week because he did what groups to which I belong asked him to do, and when the chips came down we did not have your back. We dropped the ball. So when will the next prosecutor take a case where it’s his word against hers? Not soon, especially if the alleged rapists have money and connections and look good in a suit and haircut to deflect their poor reputation and all the alleged victim has is … what, 15 minutes of Oprah Winfrey’s attention?

Friday, June 15, 2007
 
Eighth Circuit Hears Oral Argument in Fantasy Baseball Case

Yesterday, the U.S. Court of Appeals for the Eight Circuit heard oral arguments in a dispute over fantasy sports operators' right to use baseball players' names and statistics. The oral argument can be heard here (it takes a while to download).

For previous Sports Law Blog coverage of this case and related issues, see:
Judge Rules in Favor of Fantasy Baseball League

Should Fantasy League Operators Pay Licensing Fees?

The Law, Politics, and Linguistics of Fantasy Sports

Major League Baseball v. Fantasy Sports

Can Player Statistics Be "Owned"?

Are Fantasy Leagues Bad for Baseball?

Sports, Technology and Law: Do Leagues Own Statistics?
HT to recent UT Law grad Justin Stone for passing along the link.

Thursday, June 14, 2007
 
Yi Jianlian's Age, NBA Employment, and Immigration Law

In the upcoming NBA Draft, Yi Jianlian, a 7'0 forward from China, will likely be among the first six or seven players selected. The Boston Celtics, which pick 5th, are said to be highly interested in him, as are the Chicago Bulls. As detailed on Rookiepedia, Yi offers an intriguing mix of size, shooting ability, and sound fundamentals. He has been compared to Pau Gasol, Toni Kukoc, and even Kevin Garnett. With such acclaim for Yi, it is not surprising to read ESPN's Chad Ford comment that "a number of NBA general managers and scouts who have followed Yi closely have said he's the third-best prospect in the draft."

But notice that we have not mentioned Yi's age as an asset. It's because there is uncertainty as to how old he actually is. His passport states that he was born on October 27, 1987, meaning that he should be 19. And the NBA believes him. So too does ESPN. But DraftExpress and NBADraft.net list him as 22. The Houston Chronicle goes further, intimating that he may be 25. Even Chinese basketball fans are not immune from confusion. All told, Yi may be as young as 19 and as old as 25. How is that possible?

Here's how:
Questions surround Yi's correct birthdate, his official passport in China has him listed as being born on October 27, 1987, but it has been rumored that his date of birth may have been intentionally falsified so to be eligible in junior competitions. The estimates of his birthday are between 1984 to 1987.

In 2004, he was listed as being born in 1984 in China's Four Nation Tournament, although authorities said it was only a "typo".

A Houston Chronicle article reported that Yi told Shane Battier he was 24 in an exhibition game before the 2006 FIBA World Championship [which occurred in August, before his October birthday]. However, Yi later denied the allegations.
As noted by Tom Ziller on AOL Fanhouse, the difference between being 19 and 25 is profound when projecting a player's upside and ability to ameliorate weaknesses. For instance, if Yi lacks strong rebounding skills at 19, teams can expect that he'll improve as he fills out and works with NBA coaches; if he lacks those skills at 25, he may never develop them, or at least not to the same extent. The age discrepancy likewise changes how we gauge his past success: dominating other the competition at 19 is a lot more impressive than doing so at 25. In short, Yi is a completely different NBA prospect if he's 19 than if he is 25, or perhaps even 22.

Determining Yi's actual age may prove to be a difficult task. Indeed, in China, the accuracy of birthdates has been called into question on numerous occasions. Such accusations are especially rife with regards to the Chinese basketball program. As recently as November 2006, Xinhua, China’s national news agency, noted that birth certificates and ID cards could be forged to register for a U-18 competition and that some players even went as far as to adopt a new name. A senior Chinese Basketball Association official, Zhang Xiong, admitted that age fraud was a problem and that past youth squads had indeed included overage players.

The implications of Yi's uncertain age go beyond the basketball court. They affect whether Yi, a foreign national seeking to work in the United States on a temporary basis, can be employed by an NBA team. To work in the United States, Yi will likely pursue an "O-1 visa" which is a visa designed for a person of extraordinary ability in his field. At the very least, Yi is a lock to qualify for the lesser “P-1 visa” which is almost automatically accorded to NBA athletes under contract. Either way, a completed I-129 visa form, which is a petition for nonimigrant worker, will be required as part of the visa application process. It will be reviewed by the U.S. Citizenship and Immigration Services agency of the Department of Homeland Security and will explicitly ask for Yi's date of birth. If it is later determined that Yi lied about his age, he can lose his visa status and even, albeit unlikely, be deported, while his team and the NBA could face sanction if they knowingly facilitated in any deception of the U.S. government. So before Yi receives his first NBA pay check, Yi will have to reveal his actual age, or risk the consequences (as some Major League baseball players have likely done, without consequence).

It is interesting how the NBA fought so hard for a minimum age floor of 19, and yet seems oddly content with sanctioning the draft entry of a player whose age may be 19, 20, 21, 22, 23, 24, or 25. We don't question the difficulty of obtaining Yi's age, but the NBA is well-financed business operation with business contacts throughout the world. Moreover, the league could deny Yi's eligibility until he and his representatives established greater certainty about his age. Instead, the NBA seems unmoved by the issue, which is puzzling given the ramifications that such a high draft pick could have on one of its member franchises and the credibility of the league itself. In the interest of sporting and legal integrity, we believe that it is imperative that the NBA be as vigilant with ensuring the accuracy of a player's birth date as it is with ensuring that the player meets the age floor.

[Note: Co-author Jason Chung is a graduate of McGill University and author of an article on race and the Wonderlic Exam. He is also a research assistant for Jon Hanson and Michael McCann at the Project for Law and Mind Sciences at Harvard Law School]

 
New Sports Law Scholarship

New scholarship:
Peter Charlish and Rob Heywood, Anti-doping inconsistencies snare American star, 8 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW 79 (2007)

John A. Fortunato and Jef Richards. Reconciling sports sponsorship exclusivity with antitrust law, 8 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW 33 (2007)

Paul Greene, Paving a new path to conviction in Olympic doping case, 59 MAINE LAW REVIEW 149 (2007)

Matt Maher, Note, You’ve got messages: modern technology recruiting through text-messaging and the intrusiveness of Facebook, 8 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW 125 (2007)

Brandon T. Moonier, Comment, The legal game behind fantasy sports: copyright protection and the right of publicity in professional performance statistics, 26 ST. LOUIS UNIVERSITY PUBLIC LAW REVIEW 129 (2007)

Wednesday, June 13, 2007
 
Law and Violence: Will There Be a "Melee" Over Bonds' 756th Home Run Baseball?

With 747 career home runs, Barry Bonds is just eight away from tying Hank Aaron's major league record of 755, perhaps the most storied record in baseball history. Bonds has already hit 13 home runs this season, and according to ESPN.com, is on pace to hit 35 by the end of the season--not too shabby for a soon-to-be 43 year old.

More meaningfully, when Bonds hits career home run #756, he will break Aaron's record. And when that happens there will be a celebration of some type--the actual "type" remains to be seen, as many in baseball will discount Bonds' achievement as steroid-assisted. In fact, MLB Commissioner Bud Selig is said to be undecided about attending, while the 73-year-old Aaron has already said that he will not be there. If it happens on the road, Bonds will certainly get his share of boos, but home or away, I suspect most of the crowd will cheer for him.

But what will happen before the celebration and right as an otherwise ordinary baseball becomes the record-breaking baseball? That baseball will travel into a part of the ballpark, and anyone who is anywhere near it will go for it, and probably go for it hard. And that's because regardless of what one thinks of Bonds and his record-deservedness, the baseball he hits to set the new record will be worth a lot of money.

Just consider what other record-breaking balls have fetched. As reported by blogger Larry Brown on Barry's World, Mark McGwire's 70th home run ball sold for $3 million, while Bond's own home run ball that broke Babe Ruth's 714 career mark sold for over $200,000. So how much will the baseball for the all-time home run champ be worth? A lot. Even if you don't like the champ's personality or question the means he employed to become the champ, you know that the record-breaking baseball he hits would be great to own.

Not surprisingly, auction houses have expressed an interest in purchasing the ball from whomever catches it. One such house, Heritage Auction Galleries, even put a $1 million bounty on it. But then it pulled the promise. Why? As Darren Rovell details on Sports Biz, Heritage claims that it didn't want to be exposed to a negligence claim should--in Heritage's words--a "melee" break out as fans compete for the ball, thereby exposing themselves and others nearby to injury. Rovell, however, believes that Heritage's real reason for dropping the bid is that company officials became uncertain about the ball's value on the open market, and thus their stated reason for dropping the bid--liability for causing or contributing to a melee--is probably pretext.

I tend to agree with Rovell's analysis. With or without Heritage's public intentions to buy the ball for $1 million, some fans in the ballpark are going to compete vigorously for the ball, assuming it is hit to a part of the ballpark that lends itself to such competition. After-all, it's no mystery that the ball will have significant market value--it's the ball that will break perhaps the most cherished baseball record--and that knowledge will undoubtedly affect the behavior of those in the ballpark; some may even become violently aggressive, particularly if they have had too much too drink. While Heritage's involvement might illuminate the ball's value, I doubt it would turn otherwise docile fans into crazed ball hawks. Along those lines, while I understand the premise of Heritage's stated worry, it seems rather quixotic in practice. Moreover, if a melee were to occur and injuries result, it would seem that the ballpark, host team, and the company employed to provide security would be more vulnerable to liability, as they would be involved in the stadium's security [for more on the subject of stadium security and tort liability, please see my article Social Psychology, Calamities, and Sports Law, 42 Willamette Law Review 585 (2006)].

I also wonder about the track record of fans fighting for home run or even foul balls. Do fans actually fight and injure one another while trying to get baseballs? The San Francisco Chronicle reports that a fist fight almost broke out over Bonds' 73rd and final home run in his record-breaking 2001 season, but I'm unaware of violence and resulting tort lawsuits from melees over baseballs. If you know of such instances, please share.

Having said that, when Henry Aaron broke Babe Ruth's record on April 8, 1974 before his home crowd in Atlanta, an unquestionably animated crowd reaction ensued (although there was no competition for the ball, as it was caught by Braves' closer Tom House):


Tuesday, June 12, 2007
 
Blogging and Broadcasting

Yesterday, Howard discussed the NCAA blogging incident primarily from a First Amendment standpoint. I wanted to focus more on the intellectual property question and respond to two points raised in his post:

First Point: "I do not think the intellectual property argument can carry the day. Bennett was reporting facts--a home run was hit, a batter struck out--which cannot be copyrighted." [The newspaper's attorney, Jon Fleischaker, said something similar to that effect: "Once a player hits a home run, that's a fact. It's on TV. Everybody sees it. (The NCAA) can't copyright that fact."]

These comments tend to echo the rationale of the Second Circuit in NBA v. Motorola. However, there is no dispute that facts cannot be copyrighted because copyright law protects "original works of authorship." Thus, the fact that SportsTrax displayed on its pagers purely factual information on NBA games in progress was held not to violate the copyright of the broadcasts. But the debatable issue in Motorola was not the copyright issue, but whether SportsTrax unlawfully misappropriated the NBA's property right in its games; it is about the protection of property rights in time-sensitive information so that the information will be made available to the public by profit-seeking entrepreneurs. I happen to think Motorola was wrongly decided, and for a contrary holding involving the same issue, see Morris Communications, Inc. v. PGA Tour.

Thus, the NCAA would not claim that it has a copyright to the facts of the underlying event. The NCAA would instead argue that it has a right to control who disseminates reports and accounts of the game and to enter exclusive license arrangements with those who disseminate them. The NCAA would rely on the landmark case of Pittsburgh Athletic Co. v. KQV Broadcasting Co. In that case, KQV had its own paid observers watch the games from vantage points outside the stadium and on premises leased by KQV such that the observers could see over the stadium enclosures, and then broadcasted radio play-by-play descriptions of the games over its airways. The Pirates sued claiming that KQV was violating its exclusive radio broadcasting arrangement with NBC. The court correctly ruled against KQV: "The right, title and interest in and to the baseball games played within the parks of members of the National League, including the property right in, and the sole right of, disseminating or publishing or selling, or licensing the right to disseminate, news, reports, descriptions, or accounts of games played in such parks, during the playing thereof, is vested exclusively in such members."

KQV certainly would not be permitted to do inside the stadium what it was prohibited from doing outside the stadium. So whether Bennett is blogging inside the stadium or outside the stadium is irrelevant. Thus, I disagree with Howard's statement that "if Bennett had live-blogged the game off a television broadcast (which is usually how bloggers do it) there would have been no conflict with any broadcast rights. It cannot be different because he did it live, rather than from his living room." Simply, radio stations are prohibited from having personnel watch games on television from their living rooms and disseminate radio broadcasts of the game without a license. The key question to me is whether disseminating "in progress" reports and accounts of the live game over the internet constitutes a broadcast. If it does, then Bennett loses, which gets us to Howard's next point.

Second Point: "No rebroadcasting or retransmission without the express, written consent of the commissioner? So the NCAA was protecting its broadcast rights? Nope. Bennett was not broadcasting the game or using an otherwise-authorized broadcast for other purposes. He was reporting (i.e., talking about) what happened as he saw it happen. [Fleischaker made a similar remark: "The blog wasn't a simulcast or a recreation of the game. It was an analysis."]

I don't see how we can easily dismiss the broadcasting question. If Bennett is talking about what happened simultaneously as he saw it happen, how is that any different than a radio broadcast? Isn't what Bennett was doing simply a broadcast of the game over the internet? Bennett was providing in-depth analysis and play-by-play of the live event, which goes beyond merely providing updates of the score over a pager. This makes the situation distinguishable from Motorola, in which the court acknowledged two products constituting the NBA's primary business: (1) generating the information by playing the games; and (2) transmitting live, full descriptions of those games. The court was of the opinion that SportsTrax was not competing with the NBA's second product because SportsTrax was collecting and retransmitting strictly factual material about the games.

The rationale here is fairly straight forward: The value of any game is at its peak while it is being played. If a third party can transmit live, full descriptions of the games without a license, then it jeopardizes the league's property interest in the live event. When that happens, the league loses the incentive to produce the live event. And I'm not buying the "fair use" defense here. Bennett isn't informing the public in a limited manner about the outcome of the game. He is simply using his capacity as a newsreporter to disguise what he is actually doing -- broadcasting the event.

Monday, June 11, 2007
 
More Speech Retrictions in Sports: The NCAA and Live-Blogging

Thanks to everyone who has e-mailed and commented on the story about Real Salt Lake. But that free-speech controversy, which occurred last Thursday, is old news; it thus takes a backseat to a newer, fresher free-speech controversy.

Last Friday, writer Brian Bennett of the Louisville Courier-Journal had his media credentials revoked and was removed from the press box at the University of Louisville's Jim Patterson Stadium. The reason? He was live-blogging the NCAA Super-Regional Baseball game between U-L and Oklahoma State. This apparently violated an NCAA policy that deems live-blogging to be a "live representation of the game" and thus a violation of the NCAA's broadcast agreements with CBS and ESPN. The NCAA also seems to argue that the events at games are its intellectual property and can be distributed while the game is going on ("between the first pitch and the final out of each game") only through NCAA-approved outlets. The NCAA wants to ensure that the public either is watching an NCAA-approved broadcast on television or on a web feed; no reading about it on other sites. Reports and comments here, here, here, here, here, here, and here. Thanks to several alert readers and commenters for bringing this up.

The Courier-Journal is making First Amendment noises, pointing out that its writers are being prevented from reporting about events occurring in a public facility. So, as my favorite Soprano's commentator would say, let's deconstruct.

Unlike our previous examples, state action is not a problem. The University of Louisville is a public institution and Jim Patterson Stadium is a public, on-campus facility. The fact that U-L was enforcing an NCAA rule, rather than one of its own making, is irrelevant. U-L adopted the rule and made it its own by enforcing it. One report on the story states that U-L acted to revoke Bennett's credentials only after the NCAA told U-L officials that failure to enforce the rules might be used to deny U-L future opportunities to host NCAA events. So it would be ironic if doing so caused U-L to violate the First Amendment. But that is what happens when institutions get into bed with the NCAA.

So, some thoughts about the free-speech concerns.

1) I do not think the intellectual property argument can carry the day. Bennett was reporting facts--a home run was hit, a batter struck out--which cannot be copyrighted. But I invite those with more knowledge of intellectual property (including my co-bloggers) to educate me on this point.

2) No rebroadcasting or retransmission without the express, written consent of the commissioner? So the NCAA was protecting its broadcast rights?
Nope. Bennett was not broadcasting the game or using an otherwise-authorized broadcast for other purposes. He was reporting (i.e., talking about) what happened as he saw it happen. And consider an additional problem with the rule--if Bennett had live-blogged the game off a television broadcast (which is usually how bloggers do it) there would have been no conflict with any broadcast rights. It cannot be different because he did it live, rather than from his living room.

3) How far can this rule extend? Could the NCAA stop a fan in the bleachers from describing the action via his cell phone? Could it stop someone from calling his friend, where the friend is sitting by a computer at Starbucks waiting to live-blog the report (remember the scene in Bull Durham, showing how they did radion broadcasts of the team's away games?)? Could the NCAA stop a fan in the bleachers with a WiFi connection or a Blackberry from live-blogging? If the answer to those questions is no, as I think it must be, then the NCAA's rule is invalid because it treats non-media speakers better than media speakers.

4) Related to # 3: Deadspin points out that wire services have historically provided running in-game updates--reporters provided editors with updates, which were sent out over the wires. Live-blogging seems to work on the same principle. It is faster and uses different technology. And it reaches the end-user (the reader) directly and in real-time, rather than being filtered through the editor and the wire. But there is no meaningful distinction.

5) Here is the potential wrinkle: The dispute here is about access to a particular, narrow part of the stadium: the press box and everything that comes with media credentials. Teams generally have greater (although not unlimited) discretion in deciding who gets such media credentials, while exercising no discretion over who can, by buying a ticket, access the broader public forum of the stands. Presumably, U-L/NCAA could set some conditions on granting those credentials (conditions it could not impose on the ordinary bleacher bum). Might one permissible condition be a limit on the time and manner in which reporters could provide information to the public--no live reports until the game ends?
It seems like a content-neutral rule--it applies to everyone reporting about the game, regardless of what they are going to say. But I would suggest it still fails because it does not appear to serve any meaningful government interest. I cannot see a valid justification or interest underlying this rule.

Let me close on two points. First, Deadspin predicts that, given the stream of bad publicity for the NCAA (which certainly does not need more bad publicity or more events illustrating its institutional incompetence), the policy will be gone within a week (i.e., by the start of the College World Series). I think they are right.

Second, and a determinant of the first, much depends the media rallies to the Courier-Journal's defense and how much noise the media makes about this. And that depends on how willing the old media is to support the new-media bloggers that MSM reports spend so much time railing about. It helps that the blogger in this instance works for a good, old-fashioned newspaper. But this is the future of sports writing.

A host of newspapers and media outlets got behind Larry Flynt and Hustler Magazine when they were sued by Jerry Falwell. If the old media can support a pornographer, can they support a blogger?