Sports Law Blog
All things legal relating
to the sports world...
Friday, August 31, 2007
 
Saving the Puerto Rican League

Puerto Rican athletes play an important part in MLB tradition. Since the 1950s, more than 200 Puerto Ricans have earned spots on MLB rosters. The list extends from old-timers such as Roberto Clemente to today's stars, which include Carlos Beltran, Carlos Delgado and the brothers Bengie, Jose and Yadier Molina.

As MLB has expanded its scouting into Puerto Rico, however, trouble ensued for the Puerto Rico Winter League, which after 69 seasons announced this month that it is shutting down operations.

Next week, MLB executives will meet with Puerto Rican League owners to discuss a bailout of their storied league. In my view, this bailout would not only be a kind gesture, but it also fulfills an ethical obligation, recognizing all that Puerto Rico has given back to baseball.

While most baseball fans know that the Puerto Rican League was the starting grounds for legends such as Clemente and Orlando Cepeda, few are aware that it is also the home of baseball's earliest racial integration. During an era in which MLB Commissioner Kenesaw Mountain Landis was wielding his power to keep Blacks out of MLB, the Puerto Rican League welcomed with open arms African-American great Josh Gibson, who promptly in 1941-42 set the league's single-season batting average record with a .480 mark.

Back in December 2004, I had the chance to visit San Juan, PR and attend a game at Hiram Bithorn Stadium between the Santurce Crabbers and the Ponce Leones. During the game, I struck up a conversation with the owner of the Leones, in which it was revealed to me that the Puerto Rican League was in trouble. Despite the vibrancy of that day's crowd, the economics for Puerto Rican League baseball were no longer what they once had been. MLB's Arizona Fall League was now competing against the Puerto Rican Winter League for players, and unlike in the United States, Puerto Rican governments were not subsidizing new multi-million dollar stadiums.

MLB owners have enjoyed high double-digit return-on-investment for many years now, and they finally have the opportunity to show the world that they are not all Montgomery Burns. For all that Puerto Rico has given to MLB, hopefully MLB owners will save the Puerto Rican League without stripping away its dignity, independence or autonomy. If MLB decides to lend a hand, our national pastime will enjoy benefits that simply cannot be measured.

Thursday, August 30, 2007
 
Duke Lacrosse and Prosecutorial Misconduct

Interesting discussion of the Duke Lacrosse case, the disbarrment of prosecutor Mike Nifong and what it tells us about the criminal justice system and the issues of prosecutorial misconduct. This plays into one of my recurring interests in what sport-related legal issues can tell us about legal issues generally. The link to the show is here. According to the web site, the audio is available one hour after the program ends. The original broadcast ended at noon EST, so it should be up by 1 EST.

Tuesday, August 28, 2007
 
The Aluminum Bat: Weapon of Physical Harm or Relatively Innocuous Piece of Sports Equipment?

That's the question presented in Eric Fisher's excellent piece, Debate over metal bats on the upswing, published in the August 13-19 edition of Street & Smith's Sports Business Journal (subscription only). As Fisher correctly notes, ever since the aluminum bat's widespread introduction in the early 1970's, arguments have centered on safety concerns, aesthetic concerns such as the pinging sound of ball hitting metal, and the sharp rise in scoring that many levels have play have experienced. Advocates of the metal bat over this 30 year period have been arguing that wood bats are more difficult for younger players to use and that wood bats are much more costly to use than aluminum bats.

Fisher notes that, while this debate has stayed outside the mainstream without any true level of critical mass, that is no longer the case as legislative efforts to ban the aluminum bat in high school play are developing in states such as New York, New Jersey and Pennsylvania. North Dakota has a statewide ban on metal bats in high school play and some towns in New Jersey have banned metal bats as well. Tuesday, U.S. District Judge John G. Koeltl ruled that it was constitutional for New York City to ban metal bats from high school baseball games. The new law had been challenged by an organization representing national high school baseball coaches and several companies that make metal bats. Judge Koeltl said the new law, which is set to take effect September 1, fits the purpose of legislative bodies like the City Council to protect the public health and safety:

"The protection of the health and safety of high school-age students is entitled to great weight. While the record does not include clear empirical evidence showing that more serious injuries would occur without the ordinance, it is the city's legislative assessment that the risk is too great."

According to Fisher, New York City attorney have cited several physics studies showing a heightened ball-exit velocity from metal bats. Yet, the bat manufacturers and other metal bat proponents argue that the issue is based on emotion and anecdotal data as opposed to reliable statistical evidence. According to Little League Baseball (LLB), the number of batted-ball injury claims has steadily decreased since 1992 and there are only approx. 20 or 30 injuries out of more than 160 million at-bats per year. While LLB is not overly concerned about the safety issue, it continues to monitor and implement bat performance standards.

Well, it is comforting to know that major league pitchers can't even agree on the answer. Fisher notes that Mike Mussina has spoken out against the metal bat ban, but relief pitcher John Franco supports the ban. But maybe that has something to do with the fact that one plays for the Yankees and the other plays for the Mets.....


 
Thoughts on Michael Vick's Guilty Plea, Supersonics' Possible Move, and new NFL-Related EEOC Claims

Some thoughts and links on various topics:

Michael Vick Guilty Plea

I have a new Sports Illustrated.com column on Michael Vick's trial, entitled "What's Next for Vick After Guilty Plea." I hope you get a chance to read it. I know I said my column, "Sports and the Law," would run once a month, but it may run more regularly.

I was also interviewed for a story by Tim Tucker in the Atlanta Journal-Constitution entitled "Vick's Wasted Fortune of Epic Proportions." It's an excellent article, particularly for those of you interested in how the Falcons can get their money back from Vick--who may end up losing over $100 million. I also discussed this topic in an interview with Chris Clark of Sports Radio 850 (Raleigh, North Carolina)--thanks to Chris for having me on last night.

Can Seattle Keep the Sonics?

The Sonics may have received a breath of fresh air in the off season by adding two outstanding young players in Kevin Durant and Jeff Green. But the people of Seattle may not enjoy the franchise's resurgence for long, as Sonics' owners, dissatisfied with the city-owned KeyArena and frustrated by the city's reluctance to build a new arena, want to move the team to Oklahoma City. Their capacity to do so may come down to a specific performance clause in the Sonics' contract with the KeyArena.

I discussed the significance of the specific performance clause with Jim Brunner in his terrific Seattle Times story on the topic entitled "Can Lease Keep Sonics Here?" (and many thanks to Jim for linking to Sports Law Blog on the Times' website--and a welcome to those of you who came to our blog from the Times). Jim also interviews University of Alabama Law Professor Alfred Brophy, who writes for PropertyProf Blog, for the story.

Be sure to also check out Henry Abbott's excellent coverage of the Supersonics possibly moving on True Hoop.

Odell Thurman and Torrie Cox filed EEOC claims against NFL

A few weeks ago, I wrote about Roy Tarpley's successful EEOC claim against the NBA. Tarpley, a longtime alcohol and drug abuser, based his claim on the American with Disabilities Act. The post generated a number of terrific reader comments, and I appreciate all of those who commented.

We now see two suspended NFL players, Odell Thurman of the Cincinnati Bengals and Torrie Cox of the Tampa Bay Bucs filling discrimination claims with the EEOC. Both players claim that they were suspended for being alcoholics in violation of the ADA, and they cite Tarpley's successful claim as support for their proposition.

University of Mississippi School of Law Professor Paul Secunda, who is Chair of the AALS Section on Employment Discrimination Law and an editor of Workplace Prof Blog, examines the claims and how those currently abusing alcohol are not covered by the ADA, while those who have a record of alcoholism and have received treatment are considered disabled for purposes of the ADA. Paul's post is a great read.

Additional great comments on these claims come from David Fischer, who practices at Shook Hardy & Bacon in D.C. and is an editor of Antitrust Review. He lays out the claim:
Odell Thurman, a young, promising but deeply troubled linebacker for the Cincinnati Bengals filed a disability complaint with the EEOC against the Bengals and the NFL claiming he is being discriminated against because he is perceived as an alcoholic. Not surprisingly, Thurman's lawyer mentions the Tarpley case . . .

Thurman was drafted by the Bengals in 2005 (from Georgia), started as a rookie (middle linebacker) and lead the team in tackles (148 tackles, one sack, five interceptions, nine passes defensed and four forced fumbles). Bright future ahead of him (especially playing for Marvin Lewis who has always had great middle linebackers). During the off-season, he missed a drug test and was suspended for four games. During his suspension, he was arrested for DUI and the suspension was increased to a year. He applied for reinstatement this past summer but was the reinstatement was denied. This was a surprise since the Bengals (and Thurman) thought he would be reinstated and said so publicly. One reason for the optimism was that he had served his suspension and was in compliance with all of its terms (or at least the Bengals thought so).

I am surprised that - as far as I know - the players association has not appealed the denial of reinstatement or publicly commented on it. I would think the union would NOT take kindly to the league refusing to reinstate a player who has served his suspension and complied with its terms. If I was the union, this would be a major issue I would want addressed.

 
Taxing and Selling the Barry Bonds Home Run Ball

Rick commented several weeks ago on the tax consequences that might befall Matt Murphy for catching Barry Bonds' 756th home run ball. Last week came reports that Murphy was going to sell the ball specifically so he could afford the coming tax bill.

Andre Smith, FIU colleague who teaches and writes on tax and frequent guest at Sports Law Blog, adds his two cents:


I disagree with IRS attempts to collect taxes presently from Matt Murphy, the catcher of Bonds’ 756th home run. In my view, catching a baseball is not a taxable event pursuant to section 1001 of the Internal Revenue Code.

“Income” includes accessions to wealth, CLEARLY REALIZED, over which the taxpayer has dominion and control. Glenshaw Glass v. Commissioner. Section 61 of the IRC requires taxpayers to include in their gross income “income from whatever source derived.” In section 61, Congress provides a list of types of income, but also declares that the list is not exhaustive. Fortunately for Mr. Murphy, Congress specifically contemplates his situation, “gains derived from dealings in property.” Unfortunately for the IRS, gains derived from dealings in property are determined pursuant to section 1001, which states that “the gain from the sale or other disposition of property shall be the excess of the amount realized therefrom over the adjusted basis.”

When Mr. Murphy caught the baseball, he had not experienced a taxable event, he merely established his ‘basis’ in the property such that if he eventually disposed of it his tax liability would be based on how much he got over what he spent to get it. His basis in the ball is either zero (likely), or the price of his ticket (unlikely). When, and only when, he disposes of the ball does section 61 require him to report his “gains from dealing” with this property. Until then, his dealings with the property have only begun. He may have wealth in a theoretical sense, but no actual wealth has been realized.

The Supreme Court has held that found money constitutes income, even though finding things is not specifically listed as an income generating activity. Cesarini v. U.S. In the Cesarini case, a taxpayer found $5,000 hiding in a piano they purchased. The court held that treasure trove is includable in gross income. But Cesarini is distinguishable because in Cesarini the taxpayer found money where Mr. Murphy ‘found’ property. Had Mr. Murphy caught $5,000 in cash, he would be taxed presently with no argument. However, Mr. Murphy’s wealth is theoretical, not real. To the extent Cesarini is the basis for taxing Mr. Murphy, it is being abused by the IRS.

The realization requirement with respect to property cannot be overstated. It is why the IRS cannot tax you on the present value of your stock portfolio. Yes, you have wealth, wealth you can even put to use by using it as collateral for loans. Still, the IRS cannot tax you until you realize it, until you dispose of that property for something else (cash or other property or services rendered). Regardless how much we “know” about the ball’s value, it is not taxable until that value is realized by the taxpayer.

Another counter-argument the IRS may use is that the receipt of property for free has been taxed with less controversy. Remember the small furor over taxing entertainers on the value of so-called ‘goodie bags’ they received when participating on award shows like the Oscars. Another close analogy is taxation on the present value of stock options. These situations are also distinguishable, in that Congress specifically deals with them in section 61 under “compensation for services, including fees, commissions, fringe benefits, and similar items.” Mr. Murphy is not receiving any form of compensation. Thus, these situations are irrelevant.

Mr. Murphy is not living the good life off of profits earned while leaving the rest of us to pick up the tab for our massive federal government. He caught a ball that will likely have value when he disposes of it (provided he makes sure the dog doesn’t get to it). But the IRS must wait until he disposes of it, until he actually gains something from dealing with it, before they can tax him on it. Otherwise, if you discover an oil well or diamond mine, the IRS can tax you on its value before you ever attempt to extract a drop. Until cash is derived, an oil well is just a hole in the ground and Barry’s 756th is merely a tightly wound ball of string with a small dent in it.

Monday, August 27, 2007
 
The Best and Worst of Organized Children's Sports

Each year, the final week of August reminds us about the best and the worst that organized children's sports has to offer.

Yesterday afternoon, at the finals of the Little League World Series, grace and innocence was personified by 12-year old Dalton Carriker, who hit his opposite field, game-winning home run to help his team from Georgia to defeat a group of boys from Tokyo, Japan. When interviewed after the game, Carriker gave the kind of quote that only a teenage boy could give after one of the greatest moments of his life. Unabashedly he admitted, "[m]y adrenaline was about to go crazy ... My legs were about to fall off. I really thought I was flying, like Peter Pan."

It is the pure bliss of being part of a team that makes playing sports so sacred. Just helping children to reproduce those Peter Pan-like moments is what made me want to spend my college summers working at a sports camp and then my adult years working in the sports industry. It is moments like this year's Little League World Series that makes me generally thankful for adult involvement in children's sports.

Sadly, however, not every child gets to feel like Peter Pan. Not only does today mark the end of an exciting Little League World Series, but it also marks the four year anniversary of a high-school sports travesty in my hometown, Merrick/Bellmore, NY. On this day four years ago, a local football coach at Mepham High School took his team on a week-long trip, during which time he failed to impose proper supervision. During the trip, three of the older players tied freshmen (ages 13 and 14) to the ground and merciless rammed golf balls, pine cones, and broomsticks into their rectums. The freshmen's cries for help went unanswered by the team's coaching staff.

I do not know where the survivors of the Mepham High School attack are today. Presumably, they are now freshmen in college, and hopefully they are doing well. Due to callous school leadership, these survivors unfairly had the Peter Pan-like feeling that all children deserve ripped from their very core. Whereas children like Dalton Carriker will always associate sports with pride and accomplishment, society's hazing survivors may view sports as a source of terrible pain.

Over the years, I have written extensively about how to prevent hazing in high school sports. My first article on the topic appeared just months after the Mepham hazing incident, in Pace Law Review. It was a very important piece to me, given my closeness to that situation, having graduated from a school in that same district.

As I performed my research, I learned that hazing rarely occurs as an isolated incident, but rather as part of a pattern of abuse, and that coaches of teams with hazing are often just as culpable as the perpetrators. It made me come to terms with a lot of what I had seen at my own high school. Hazing is a viscous cycle, and if someone wants the joy of working with kids, that person needs to take the responsibility to break the hazing cycle, not exacerbate it.

Today, while we are still all feeling giddy from yesterday's Little League World Series, I hope that we can take a moment to make sure the children around us have a safe, protective environment where they can grow up loving sport. Not every kid can hit a game-winning home run in front of a big crowd like Dalton Carriker, but every kid can at least get to play the game free from the fear of physical and mental abuse.


 
Interesting New Paper on Sports Agent Ethics

Melissa Neiman, a lawyer and a doctor, has posted an interesting new paper on ethical issues for attorneys serving as sports agents, Fair Game: Ethical Considerations in Negotiation by Sports Agents. You can download the paper free of charge from this site. The paper does a particularly good job of exploring the application of the Model Rules of Professional Conduct to ethical issues a sports agent-lawyer is likely to face. Here's an abstract of the paper:
Over the past several decades the sports agent has emerged as an increasingly important figure in the negotiation of contracts for professional athletes. Although agents may have varying backgrounds, attorneys now comprise more than 50% of all agents representing professional athletes. This paper will focus on the attorney as sports agent. The agent is subject to regulation by the federal government, some state governments and the players associations. In discussing the role of the players associations the National Football League Players Association (“NFLPA”) will be focused on for exemplary purposes although other associations will be mentioned.

The agent is also bound by the Model Rules of Professional Conduct (“MRPC”) which include regulations regarding conflicts of interest and fees. Concurrent conflicts of interest may occur when an agent represents several athletes on one team or simultaneously represents athletes as well as coaches or management personnel. These conflicts are magnified in leagues in which an overall team salary cap exists. Careful examination of these conflicts and application of the MRPC clearly shows that the conflicts are unlikely to be resolved even with the athlete's express informed consent.

There are also ethical considerations regarding agents' fees, particularly when they are based on a percentage of the value of the contract negotiated by the agent. Arguably, these fees are not reasonable under the MRPC. Uniform rules should be established by players associations to identify conflicts of interest and prevent their occurrence. With regulations in place, ethical concerns in the negotiation process will be reduced so that the athletes' interests are more exclusively served by the agent.

Sunday, August 26, 2007
 
Media Matters

Lots of media entities calling on the phone this week, thanks largely to my work here.

Last week, I appeared on Legal Talk Network's Lawyer 2 Lawyer, discussing the legal issues facing Major League Baseball, including steroids, the Barry Bonds home run ball, and Bonds' threatened defamation lawsuit. I was the guest along with Professor Paul Finkelman of Albany Law School, who was co-editor of Baseball and the American Legal Mind, the best book yet about baseball and the law. It was a fun discussion. You can listen to the show by clicking on the Lawyer 2 Lawyer link above.

Also, I am quoted in this week's issue of Sports Illustrated (current partial-employer of my co-blogger), in the "SI Players" section. The piece is called "See You in Court," with blurbs discussing Kia Vaughn's suit against Imus, Bonds's potential suit against Curt Schilling and/or many other people, and Jonathan Lee Riches's lawsuits against various sports figures and memorabilia. No on-line link, but the issue is on newsstands now (see p. 28).

Saturday, August 25, 2007
 
Is the "Ricky Williams Rule" about to be Sacked?

Since the NFL announced its suspension of Michael Vick, many of my esteemed colleagues have presumed that Vick will also get banned from the Canadian Football League ("CFL") based on the "Ricky Williams Rule," which prevents any player suspended by the NFL from entering the CFL. Michael McCann even touches upon this point in his wonderful first column in Sports Illustrated.

I am not sure, however, whether the Ricky Williams Rule is even legal. Isn't it true that an agreement amongst all of the teams in a pro sports league to boycott a class of players would indicate a prima facie case of an antitrust violation? Isn't it also the case that the CFL has market power in the labor market for players banned by the NFL (presuming that issue is even relevant) because NFL teams are not part of the viable market for such players' services?

For purposes of background, the Sherman Act states, "every contract, combination ... or conspiracy, in the restraint of trade or commerce ... is declared to be illegal." Applying the Sherman Act, American courts on three different occasions have found agreements amongst professional sports teams that boycott a certain class of players to be illegal. For example, in the case Denver Rockets v. All-Pro Management Inc., 323 F.Supp. 1049 (C.D. Cal. 1971), a court struck down then-NBA commissioner Walter Kennedy's rule that banned all players from the NBA that were less than four years removed from high school. This was the ruling that ultimately allowed Spencer Haywood to enter the NBA at a more junior age.

Indeed, the more recent case Clarett v. Nat'l Football League, 369 F.3d 124 (2d. Cir. 2004) potentially limits the holding of cases like Denver Rockets to only situations where the agreement to exclude a class of players is reached outside of the collective bargaining process. However, for purposes of analyzing the "Ricky Williams Rule," which presumably was unilaterally implemented by the CFL, the Second Circuit's limitation in Clarett is entirely irrelevant.

With that said, under antitrust law, there are less restrictive alternatives for the CFL to prevent the entry of troublesome players, such as for the CFL to review the candidacy of each prospective player on a case-by-case basis. A case-by-case review of players banned by the NFL would make more sense given that the CFL has already "grandfathered" players that are currently playing in the CFL but previously banned from the NFL. In a statement that may prove especially damning to the CFL, the CFL in November of 2006 stated that "one of the reasons for the ban is to maintain a good relationship with the NFL."

Indeed, the biggest challenge to bringing a suit against the CFL may involve proving U.S.-based anti-competitive effects given that much of this allegedly anti-competitive conduct occurred outside of the United States. However, given that most of the football players that would be banned from the CFL under this rule live in the United States, as well as that some of the CFL fans reside in the United States, and that CFL games are broadcast into the American market through Dish Network, DirecTV and America One, these concerns should not prevent a bona fide antitrust challenge against the Ricky Williams Rule in United States federal courts.

Friday, August 24, 2007
 
My First SI.com Column: Michael Vick's Plea Deal and Its Legal and Career Ramifications

Last week I was hired by Sports Illustrated.com (SI.com) as a columnist. My column, which will appear once a month, is entitled "Sports and the Law." I will also be involved with other SI stories relating to sports law.

As someone who has read Sports Illustrated every week since I was a kid, I'm genuinely honored and thrilled to have this opportunity. I will still be blogging regularly on Sports Law Blog and the Situationist.

My first SI.com piece is now up, and it concerns the legal and career ramifications of Michael Vick's plea deal, which was filed today. I hope you have a chance to read it.

Thursday, August 23, 2007
 
Economics of Steroid Use

Interesting commentary on the economics of banning steroids as opposed to permitting anything-goes doping and steroid use in sports. I previously pondered the question (although not from an economic perspective) of why steroids should be banned, and got some very thoughtful comments, here.

Dave Hoffman at Concurring Opinions looks for an economic justification. He concludes, tentatively, that the social ills (particularly fan dissatisfaction) associated with steroids and doping are connected to monitoring for performance-enhancing drugs, not the use of drugs themselves. That is, if the leagues were not monitoring and exposing drug use, but allowing all the players to do what they could to play better, fans actually would be happier (assuming the drug-enhanced players were on their teams) by the benefits of improved performance. The costs of steroid use disappear if we do not know what the players are doing and only that they are improving on the field. The lone remaining cost is to player health, but Hoffman discounts that because players can control whether and how they choose to play along.

Dave then calls on his readers to make the economic case for or against anything-goes.

Randy Picker of the University of Chicago Faculty Blog makes the case against. Picker argues that the competitive advantage of doping disappears if everyone is doping. Competitive success is relative rather than absolute, thus the game looks exactly the same, competition-wise, if everyone is using enhancers. Except now we get the same level of competitive play combined with the potential and real physical harms associated with steroid use. So anything-goes yields 1) a no-better (in terms of competition) game and 2) worse-off players. That, he says, is an inefficient economic trade-off.

I agree with Picker's point as to relative competition and it is the first time I have seen the point made.

But is there an aspect of absolute competition, for which # 1 above may not be true? Is "the game" played by equally competitive drug users "better" than the game played by equally competitive non-users? An equal game played by "clean" players yields 61 homers as a season record, 755 homers as a career record, and 383 strikeouts as a season record. An equal game of enhanced players might yield 80 homers in a season, 800 in a career, and, say, 450 strikeouts in a season. The players are on a level playing field, but the level is higher than without steroids because the quality of the "human equipment" is better. To the extent we hold numerical records dear, this is another argument against anything-goes (the records are "tainted"). To the extent we want an overall better game (as indicated by numerical records and overall achievements beyond wins and losses) and steroids gives us that, might it then overcome the health trade-off?

 
Fantasy Meets Reality (Part II)

Back in January, Professor McCann wrote a blog entry about Sports Judge -- my small business that uses legal principles to resolve fantasy sports disputes. Professor McCann's blog-entry was so widely read that several other publications picked up his story. In fact, in the August 27 edition of ESPN the Magazine, author Paul Kix wrote a six page piece called "Truth, Justice and the Fantasy Way," in which Kix discussed the emerging world of fantasy dispute resolution. Playing off Sports Judge's strict interpretation of fantasy league constitutions, Kix even wrote that "[i]f Antonin Scalia played fantasy, he'd take his disputes [to Sports Judge]."

Since SportsJudge.com launched, so much has changed in terms of fantasy sports. Initially, my goal was to standardize fantasy rules. However, in just a short period of time, I found that owners do not want their rules standardized. In fact, often as new default rules emerge, fantasy sports owners revise their constitutions to "opt out" of them.

To provide one such example, shortly after Sports Judge published the case Big Red Rockers v. The Big City Bombers, which states "the standard of review [of a trade] is simply whether the trade adequately benefits both teams," several fantasy leagues changed their constitutions to avoid this default rule. One fantasy league added to their constitution that "as neutral arbitrator, SportsJudge.com shall approve all trades absent evidence of collusion or bad faith." Another league changed its constitution to state "[t]he arbitrator should lean towards rejecting any trade that he feels may possibly be inequitable."

In many ways, one should not be surprised by this development, as businesspeople act in a similar manner when they draft contracts that include out-of-state choice-of-law provisions or liability caps.

According to Kix, one day people will "look back at our mad roto world and laugh." I think Kix is right, but maybe not for the reasons that he thinks. To me the funniest part about the emergence of a complex fantasy universe is not that universe is both complex and make-believe (as ESPN points out), but rather that what was once just fantasy has actually morphed into something real. Now, as to whether or not that is a good thing, I will reserve judgment.

 
Thoughts on Michael Vick, Ruben Patterson, and Lawrence Pedowitz

Some thoughts on new developments concerning Michael Vick, Ruben Patterson, and the NBA's hiring of Lawrence Pedowitz:

Michael Vick

On ABC News, Russell Goldman examines Michael Vick's future in his extensive piece, "In The Dog House: Will Michael Vick Ever Play Again?" In addition to UMass sports management Professor Stephen Jefferson and public relations guru Alan Caruba, I was interviewed for Goldman's story (related aside: I was interviewed on MVN's Outsider Radio to discuss Vick, thanks to Brandon Rosage for having me on). I emphasized that Vick's best approach from this point on is to appear apologetic and contrite, rather than defensive and argumentative. Granted, for reasons that we've discussed on this blog, I believe that circumstances and persons around Vick have contributed to his bad decision-making, but I recognize that many people don't like dispersing blame like I do, and thus Vick needs to tailor his message to the audience. Here are some of my comments from the story:

Mississippi's McCann agreed that it was best to be contrite rather than try to offer justifications.

"Strategically it's best to be apologetic. Most people will not find the circumstantial reasons compelling. It's a hard argument to make to engender empathy and has the risk of backfiring."

After Vick gets out of prison, he will likely be 28- or 29-years-old, and will then face a lengthy suspension from the NFL. What should he do while suspended by the NFL? Unfortunately for Vick, playing in the Canadian Football League won't be an option. Rick Matsumoto of the Toronto Star reports on what might be called the Ricky Williams Rule: "Criticism over last year's signing by the Argonauts of running back Ricky Williams, who was under suspension by the NFL for drug use, led the league's board of governors to pass a bylaw that prohibits an NFL player who is currently under contract or is serving a suspension from signing a CFL contract."

Ruben Patterson

There is no question that 32-year-old Ruben Patterson is a good, maybe very good, NBA player. Last season, he averaged 15 points, 5 rebounds, and 3 assists in 31 minutes a game for the Milwaukee Bucks. Even better, he shot 55% from the field, which is outstanding for a 6-5 guard/forward, particularly one who is also known for his excellent defense on some of the NBA's top scorers. And he's now a free agent. You might think there would be serious interest in the swing man, but his phone hasn't been ringing off the hook.

Why not?

It's not entirely clear. One reason may be that he recently turned 32, but he's still likely young enough to have at least a couple of more good seasons--and it's not like there are many guys, of any age, in the NBA who can neutralize the other team's starting 2 guard and also shoot 55% from the field.

A more explanatory reason may be that Patterson is a registered sex offender, and he must register himself as a sex offender in any state he lives, in accordance with his guilty plea stemming from an attempted rape of his child's then 24-year-old nanny in 2000. Patterson avoided prison time through the plea. Since then, as noted above, he has had a solid NBA career, with last season being his best yet. But I could see some teams weary of signing a player with that background and condition. Patterson, however, would like to play for the potentially championship-bound Boston Celtics, and Celtics fans are now debating the wisdom of signing him (check out heated debates on Celtics Blog and Real GM).

It's interesting to consider Patterson in the context of Michael Vick, as some fans seem willing to forgive a player's mistakes, while others believe that certain crimes are so egregious that no amount of time should lessen them. That legal debate is certainly not confined to sports, but it's interesting when it comes up in this setting, and will likely come up again when Vick returns to football.

8/24/07 Update on Patterson: Check out these comments by Jeff Clark on Celtics Blog. Jeff examines the different free agent and trade options for the Celtics in light of 42-year-old Reggie Miller saying "no thanks" to a comeback. Also check these comments by Darren Heitner on I Want to Be a Sports Agent. Darren examines Patterson's situation in the broader context of character in sports.

NBA Hires Lawrence Pedowitz

Henry Abbott on True Hoop explores the merits and drawbacks of the NBA hiring someone to conduct an internal review relating to gambling and NBA officials. The NBA has retained Lawrence B. Pedowitz, a former Chief of the Criminal Division in the United States Attorney's Office for the Southern District of New York and current partner at law firm Wachtell, Lipton, Rosen & Katz, to review of league rules, policies, and procedures relating to gambling and its officiating program. I agree with Henry that Pedowitz is well-regarded and highly-qualified to conduct a review, and also agree that Pedowitz working directly for the NBA might influence or perhaps limit how he conducts the investigation.

Wednesday, August 22, 2007
 
Michael Vick and The Influence of Adult Heroes

Professor James Sonne of Ave Maria School of Law has an excellent op-ed in today's Detroit News on what Michael Vick's litigation teaches us about role models and how role models influence the behavior of not only children, but of adults like ourselves. Here is an excerpt from Jim's piece:
There is a hero crisis in America, and Monday's guilty plea announcement by Atlanta Falcons quarterback Michael Vick for his alleged dog-fighting shenanigans is but the latest example.

Sure, culture experts and parents have been grappling with a seeming decline in role models for years. And yet, one key aspect of the crisis has been ignored. Someone please tell Mr. Vick and his colleagues, grown-ups need heroes, too.

From Barry Bonds' dubious home run kingship to guilty pleas by basketball referee Tim Donaghy in connection with a gambling ring, and now Vick, few would dispute that this summer has been tough for sports. Although many have been harmed, much of the outrage has focused -- as it has in the steroid saga -- on "protecting the children." Unfortunately, the kids are not the only ones in need of protection.

There is no doubt adults have a solemn duty not to lead "the little ones astray." And yet, what happens when they (we) grow up? Do we cease to be subjected to bad influences?

One need only consider common phrases used in response to acts by our world's "grown-ups" to see the point. "She was a consenting adult." "All he did was lie." "That music's just not for kids." Even our language is distorted by messages like "mature audiences only," which often raise more questions than they answer.

The retort is that, unlike children, adults can choose for themselves what is appropriate. In light of moral theories in vogue from college classrooms to the Supreme Court, this has some support. But is such relativism the stuff of which heroes are made?

Much of the inattentiveness to the effect of bad adult behavior on other adults can be seen in a misunderstanding of scandal. In modern usage, the word describes a wrongful or salacious act that places the relevant actors in a bad light. When such events involve higher-profile people, this bad light is then beamed by our media to millions in an effort to shock, disgust and entertain.

The classical understanding is quite different. The Greek word skandalon was used to suggest a "stumbling block," while according to Thomas Aquinas, scandal is "something less rightly done or said, that occasions another's spiritual downfall." In other words, though the light cast on athletes, entertainers or politicians is a factor, the core problem is the impact on others, and in its effect there is no maximum age.

The opposite of scandal is heroism. It is the stuff of legends, champions and saints. As Harvard professor Harvey Mansfield notes in his provocative book "Manliness," there may be dispute as to who heroes are and what makes one a hero. But, in the end, there is no mistaking the differential impact on our culture of qualities like virtue over vice, courage over cowardice, humility over pride. If you doubt this, ask your kids.

For the rest of this great piece, which also ran in the Naple Daily News, click here. We look forward to Jim guest blogging in the future.

 
American Acquiescence to Dog Fighting and Michael Vick

Let me begin by saying that I find dog fighting disgusting and reprehensible. Taking a fellow animal--and one with which we share a surprisingly similar genetic makeup--and training it to attack, maim, and kill other members of its species, all for the pleasure thrill of our fellow humans, seems immoral per se. That's particularly true when considering the catastrophic injuries often suffered by those dogs, some of whom are also beaten, electrocuted, drowned, hanged, or shot. Put another way, dog fighting doesn't say much for the human animal, other than that we, just like the dogs we train to maim and kill, can be a sickeningly violent and sadistic species.

But maybe I am wrong to prejudge dog fighting so harshly. After-all, as numerous articles over the last day have revealed, thousands of Americans participate in dog fighting each year, suggesting that many of my fellow Americans disagree with my outsiders' take. In fact, dogfighting is, as the Washington Post's Paul Duggan writes, a popular and longstanding American blood sport. It became a prominent betting pastime in the mid-1800s, and while many state laws subsequently banned it, those laws have often lacked serious enforcement (what a surprise). Consequently, dog fighting has remained a celebrated ritual in some rural communities and urban settings.

So if dog fighting is popular, even beloved, in some pockets of the country, with the government largely unable or unwilling to stop it, are those who grow up around it less culpable for engaging in it? Imagine, for a moment, the following: your dad and older brother are big fans of dog fighting and you grow up watching it with them, watching them genuinely love the "sport," much like you watch them genuinely love rooting for your local NFL franchise. How would that experience shape you as a person?

One strong possibility, it seems, would be for you to gradually regard dog fighting as acceptable behavior and something fun to watch--after-all, who do we look up more to than dad and big brother? And the grotesqueness of it would probably be obscured, with the dogs' injuries and fatalities rationalized away. While not normally an oracle of wisdom, New York Knicks guard Stephon Marbury alludes to this line of thought when talking about Michael Vick:
From what I hear, dog-fighting is a sport. It’s just behind closed doors and I think it’s tough that we build Michael Vick up and then we break him down. I think he’s one of the superb athletes and he’s a good human being. I think he fell into a bad situation.
So let's say, for the sake of argument, that Vick grew up watching dogfighting with family and friends, and thus has always regarded it as acceptable, even if he knew, as evidenced by his keeping his involvement largely secret, that folks like me and probably you loathe it. Would that change, in any way, how we explain his participation in dog fighting? And will our outrage toward Vick's connection to dogfighting lead us to crack down on this longstanding, hitherto unimpeded "American blood sport," or has our outrage been more motivated by Vick himself, with the dogs merely soon-to-be forgotten role players in the story? If so, what might that say about us?

Tuesday, August 21, 2007
 
Mark Hyman's Book Project

Mark Hyman, an attorney and journalist who writes for Business Week and the Sports Business Journal, and who wrote an excellent piece about our blog in 2005, is writing a book on youth sports and the role of adults. The book will be published by Beacon Press and is expected to come out next year. Mark is interested in interviewing former athletes who stopped playing due to injury or burnout. Here are some details and please contact him if you might be able to help:
I am working on a book about youth sports and the role of adults. The book will examine the ways in which parents, coaches and other interested adults have become deeply invested in the sports lives of children. I'll then be asking why and exploring the consequences for kids.

I became interested in the subject when my son Ben suffered a serious elbow injury while playing high school baseball in 2006. Last December, he underwent "Tommy John" surgery - a tendon transplant to replace the damaged ligament in his throwing elbow. He is attempting to play this spring for the George Washington University baseball team. The experience got me thinking seriously, and critically, about my role in his sports activities.

I'm writing to ask for your help. I'm interested in speaking with former youth players (now adults) who played sports intensely and who dropped out early because of an overuse injury or because they burned out emotionally, i.e., lost the desire to continue playing competitively. Often, these are children who specialized in one sport from an early age, sometimes 7 or 8. I'd also be interested in speaking to parents and children who are going through this now. I'd welcome a range of stories - girls and boys; players in many sports.

If you know of someone who might want to be included in the book, please let me know. They can learn more about the project, and about me, at a web site I recently put up, www.markhyman.com.

Thanks for keeping me in mind.

Best, Mark
______________________________________________________________________
Mark Hyman
Baltimore, Md.
www.markhyman.com
Voice 410-664-6435/ Fax 410-664-6095
E-mail Mark_Hyman@Businessweek.com, MHyman@SportsBusinessJournal.com, Balthyman@aol.com
Contributing editor - sports business, BusinessWeek
Contributing columnist - sports law, Street and Smith's Sports Business Journal


 
Eddie Gaedel and the ADA

This past Sunday marked the 56-year anniversary of the debut of professional baseball's shortest player, 3-foot-7 Eddie Gaedel. As part of a publicity stunt, on the preceding Friday, St. Louis Browns owner Bill Veeck secretly signed Gaedel, a midget, to a big-league contact -- knowing full well that the commissioner's office would not review Gaedel's contract until the following Monday morning.

That Sunday afternoon, before Commissioner Happy Chandler reviewed Gaedel's contract, Veeck suited-up his newest player for the second game of a doubleheader against the Detroit Tigers, giving Gaedel a jersey with the number 1/8. Gaedel was sent into the game as a pinch hitter and, as expected, he walked on four pitches. Gaedel was then lifted for a pinch runner.

The following Monday, Major League Baseball voided Gaedel's contract and changed its its rules, requiring that all contracts needed to be ratified by the commissioner before any player could appear in a big-league game. Implied in this rule change was a ban of midgets and other players uniquely suited to draw walks.

Although certain aspects of the Gaedel's appearance were socially insensitive (for example, Veeck had Gaedel enter the game by jumping out of a cake), from a strategic perspective, many baseball teams have game-related reasons for wanting to hire a player based on his small strike zone. When big-league rosters expand from 25 to 40 players on September 1, the legitimacy of signing a "walking specialist" becomes even greater.

That begs an interesting question -- in light of the Americans with Disabilities Act ("ADA"), may a baseball commissioner legally refuse to ratify the contract of a prospective player merely because that player is a midget (or otherwise short)? Indeed, allowing a player of Gaedel's size would not require any special accommodations on the part of Major League Baseball.

Also, could baseball change its definition of "strike zone" to include a minimum size to the zone, removing any advantage of shortness beyond that of certain height (and arguably replacing it with a disadvantage)? Would this situation be viewed any differently if a public league (for example, a high-school baseball league) or a league involving children (for example Little League) sought to impose a minimum height requirement?

Finally, on the day after Major League Baseball voided Gaedel's contract, Veeck, in jest, asked the commissioner to also void the contract of the late Yankees shortstop, Phil Rizzuto, who at 5-foot-6 was one of the game's next shortest players. While Veeck's request was not serious, there is a serious slippery slope argument against contending that someone is too short to play big-league ball. If Gaedel at 3-foot-7 is too short, then what height is just tall enough?

Monday, August 20, 2007
 
New sports law scholarship

New this week:
Blake J. Furman, Note, Gender equality in high school sports: why there is a contact sports exemption to Title IX, eliminating it, and a proposal for the future, 17 FORDHAM INTELLECTUAL PROPERTY MEDIA & ENTERTAINMENT LAW JOURNAL 1169 (2007)

Robert T. Ferguson Jr., Comment, Extreme makeover: redefining athletes’ identities in a fantasy world, 14 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 287 (2007)

Richard J. Hunter, Jr. & Paula Alexander Becker, Is it time to revisit the doctrine of “state action” in the context of intercollegiate and interscholastic sports?, 14 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 191 (2007)

Sarah McCarthy, Comment, The legal and social implications of the NCAA’s “pregnancy exception”--does the NCAA discriminate against male student-athletes?, 14 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 327 (2007)

Sunday, August 19, 2007
 
Thoughts on Michael Vick, Tim Donaghy, and Baseball Umpires' Implicit Attitudes

Here are some thoughts I have on new developments concerning Michael Vick, Tim Donaghy, and Baseball Umpires' implicit attitudes:

Michael Vick

Various articles today indicate that Vick and his legal team are debating whether he should accept a plea deal that would call for a 12 to 18 month sentence in a federal prison, or go to trial. There are myriad factors for Vick to consider, including that his co-defendants have already agreed to plead guilty, but also that it can be hard for the government to convince every member of a jury that a defendant is "beyond a reasonable doubt" guilty, particularly when the defendant has almost limitless litigation resources at his disposal and a top legal team to utilize them. And, as we have discussed on this blog, there are potential questions as to how the evidence against Vick was obtained.

Mark Purdy of the San Jose Mercury News has an interesting take on Vick's trial: Were the NFL and the Falcons in any way aware of Vick's association with dog fighting, and if so, should they also bear responsibility? Purdy wonders if this was a case of "see no evil, hear no evil," with Vick's employers tacitly acquiescing to the dog fighting, only to feign surprise and outrage when Vick was charged. In developing that argument, Purdy quotes Deion Sanders, who claims that many NFL players have a passion for dog fighting. If Sanders is telling the truth, I question why the NFLPA, in addition to the NFL and its teams, hasn't (apparently) sufficiently tried to dissuade its members from engaging in that behavior. I know it is difficult for unions to impose behavioral restrictions on their members, but sometimes eliminating a nefarious hobby is in both the individual and collective good.

The Austin Statesman examines how Vick's personal situation, and especially the lifelong friends he took care of but have now betrayed him, contributed to his legal problems. Along those lines, it's easy to look at Vick in the abstract and savage what appear to be terrible and disgusting decisions--I admit to doing that at times over the last couple of months--but his good guy/bad guy rating seems more complicated when considering his extraordinary loyalty to those who may have led him into a bad situation. That's obviously not to say he doesn't deserve an appropriate punishment if guilty, but there's a part of me who sympathizes with someone who didn't ditch his childhood friends or abandon his past just to become a "mainstream" American star--a mainstream that is probably more tolerant of certain types of childhood friends than those who Vick grew up with. And Vick has employed many of those friends in various capacities, providing them otherwise unavailable employment opportunities. But unfortunately for him, his loyalty wasn't reciprocated, and in hindsight, it may prove to be his undoing.

Gary Myers of the New York Daily News assesses Vick's prospects for future NFL employment. Some have argued that Vick's future in the NFL is over. I couldn't disagree more, and Myers lays out why Vick will almost certainly play again in the NFL. I think he sums it up best with this exchange:
Here's how one GM predicts a conversation would go with his coach if Vick was a free agent after getting out of jail:

GM: "Michael Vick is available for the veteran minimum."

Coach: "Let's bring him in."

Tim Donaghy

Chris Mannix over on SI.com outlines how new information provided by Donaghy, who apparently is prepared to name as many as 20 referees who have been involved with some of form gambling, could prove disastrous for David Stern. Will Stern have to suspend or fire 20 referees? Will he have to retract his brazen "rogue, isolated criminal" characterization of Donaghy? When does Congress get involved? At what point are there too many individual wrongdoers who work for the NBA for the NBA to pass all of the blame on to them?

Joe Duffy on Eye on Gambling questions how many are using data about point spreads in Donaghy's games. Interesting piece, as Duffy believes that no empirically-valid connection has been shown yet.

If you are interested in legal issues concerning Tim Donaghy and the NBA, I will be guest tonight on Celtics Stuff Live between 7 and 9 p.m. EST. I look forward to being on the show, and more details about listening to the show are available here (and thanks to JB for the kind write-up of Sports Law Blog and me).

Implicit Attitudes and Baseball Umpires

Over on The Situationist, we examine a new study indicating how baseball umpires may alter their strike zones based on the race or ethnicity of the pitcher. Previous Situationist posts have discussed the significance of implicit associations (a key feature of the human animal’s “interior situation”), including “Hoyas, Hos, & Gangstas,” “Race Attributions and Georgetown University Basketball,” “Black History is Now” and “Implicit Bias and Strawmen.” Our new piece collects summaries of a number of recent studies suggesting how routinely implicit associations may bias decision making even among those individuals presumed to be least biased.

Saturday, August 18, 2007
 
Baseball, Pine Tar, and the Law

Today (8/18) marks the 24th anniversary of the ending to what has become known amongst baseball fans as the Pine Tar Game -- a game legendary not only amongst baseball historians, but also amongst legal scholars.

Playing at New York's Yankee Stadium on July 24, 1983, with the Kansas City Royals trailing 4-3 and two outs in the top of the ninth inning, Hall of Fame third baseman George Brett hit a pitch from Yankee reliever Rich "Goose" Gossage for a two-run home run, seemingly giving the Royals a 5-4 lead. As Brett crossed home plate, Yankees manager Billy Martin approached umpire Tim McClelland and requested that Brett's bat be examined for an illegal amount of pine tar. With Brett watching from the dugout, McClelland measured the bat against the width of home plate and determined the amount of pine tar on Brett's bat exceeded the amount allowed by Rule 1.10(b) of the Major League Baseball rule book. The umpire crew called Brett out, and an irate Brett ran onto the field where he was ejected. The game was declared over.

After the game, Royals management appealed the umpire crew's ruling to American League president Lee MacPhail, who overturned the umpire's decision and ordered the remainder of the game replayed, with Brett's home run allowed. In allowing Brett's home run, MacPhail ruled that the amount of pine tar on Brett's bat did not affect the distance of the home run, and that any challenge to the amount of pine tar on Brett's bat should have been brought, if at all, prior to Gossage throwing his first pitch.

Although Lee MacPhail is no Judge Cardozo, his ruling is almost as widely used in law school classrooms. In his heralded civil procedure course, Michigan law professor Richard Friedman often analogizes Billy Martin's decision to challenge Brett's excessive pine tar only after he hit his home run to an attorney that would argue for a court to dismiss a case for lack of personal jurisdiction, or improper venue, only after an answer to a complaint had been filed. Many other law professors use the Pine Tar case to introduce the difference between the letter of the law, and the spirit of the law.

As a sports enthusiast (albeit a New Yorker), I look back at Lee MacPhail's ruling and believe he made the right call. In some respects, however, MacPhail's ruling may not have gone far enough. In the original game, umpire Tim McClelland ejected George Brett for arguing about the original pine tar ruling. Given that the game was replayed from the point in time of Brett's home run, and arguably from before Brett was ejected, Brett's subsequent ejection should have been erased from the game record, along with his being called out. Nevertheless, when the Pine Tar game was continued on 8/18, Brett was deemed ineligible to play, and the rarely used Royals backup Greg Pryor replaced Brett at third base. (As a side note, the Yankees resumed the game with first baseman Don Mattingly playing second base, and pitcher Ron Guidry in center field).

As a final point of note, when the Pine Tar game resumed, Yankees manager Billy Martin again challenged Brett's home run on the grounds that Brett had not touched all the bases, maintaining that there was no way for the current umpires (who were a different crew from those who worked the earlier part of this game) to resolve his contention. The new umpire crew, however, was prepared for Martin's challenge, as umpire Davey Phillips produced a legal affidavit signed by the July 24 umpires, which stated that Brett had indeed touched all of the bases.

Ultimately, the Royals went on to win the Pine Tar game 5-to-4, thanks to Brett's controversial home run. And, as for sports lawyers, the outcome was indoctrinated in our own unique world of case law.

Friday, August 17, 2007
 
More on Vaughn v. Imus: Law and Morality

Professor Scott Moss (Colorado) offers some excellent thoughts on the lack of merit of Kia Vaughn's lawsuit against Don Imus. Scott agrees with Mike's comments that the lawsuit likely will fail, in part focusing on a point I made in comment that, despite what the Complaint alleged, Imus's statements could not reasonably be understood as pronouncing anything factual about Vaughn's chastity or character. Interestingly, Moss (a former plaintiffs' lawyer) takes Vaughn's lawyer to task for not following his ethical and professional obligations to properly counsel a client who, while sympathetic and obviously having been hurt, has not suffered the type of hurt that can be remedied by law.

Moss's column highlights this case as a good example of the often-present gap between law and morality--between what is "wrong" in a moral/ethical sense and what is (and should be) unlawful and thus remediable at law. The public is sympathetic to Vaughn and unsympathetic to Imus. Imus "wronged" Vaughn in some moral way. But that does not mean that Vaughn will or should prevail in the judicial system.

 
MLB Can't Contain Draft Bonuses

The newly-imposed Aug. 15th signing deadline for drafted amateur baseball players and league-recommended slot bonuses that were 10 percent lower than last year couldn't contain the dollars dished out this week. Three weeks ago, I questioned what these league-recommended bonuses really mean legally and whether they have any teeth when the clubs are not penalized for paying more than slot money. At the time of my post, half of the first rounders had already signed and they all actually signed for slot money or less. Well, on the Wednesday signing deadline this week many of the clubs broke the bank and doled out some record bonuses to the remaining unsigned picks. According to Baseball America:
For all the effort MLB put into reducing bonus slots by 10 percent from a year ago and trying to strong-arm teams into toeing the line, the average first-round bonus went up anyway. All 30 first-rounders signed in both years, with the 2006 crop averaging $1,933,333 and this year’s group averaging $2,098,083. The 2007 average is also the highest since 2002 ($2,106,793).
The average increase in bonuses this year went beyond just the first round. Baseball America also reported that the recommended slot bonuses for the first five rounds this year averaged $568,944 (down 10 percent from last year's slot money for these rounds which averaged $631,870). However, the picks in the first five rounds this year actually received an average of $685,328 (up 3 percent from the average received last year which was $662,531). Keep in mind that this 3 percent jump occurred despite the fact that half of the first rounders signed for 2007 slot money or less! What does this data say to all of those first rounders who hastily signed this year for slot money or less?

Unsurprisingly, no Scott Boras client received slot money, or even close to it. One of his clients even received the highest up-front bonus in draft history at $6 million. Every year there are clubs that voluntarily and knowingly draft his players and then mumble under their breath as they voluntarily sign the bonus checks: "That $*%$*@$!#&*$ Boras!". So the new draft rules this year designed to give the clubs more leverage, combined with recommended slot bonus amounts that were 10 percent lower than last year, couldn't control the purse strings of many teams, including the Yankees, Tigers, Orioles and Devil Rays. But they did prove to be effective in reducing the bonuses paid to half of the entire first round class this year. On the other hand, we'll never know whether those clubs paying slot money (or less) a month ago would have ultimately decided on Wednesday to pay substantially more than slot money if faced with the prospect of failing to sign their first rounder.

A draft in and of itself operates as a restraint on competition among the teams for the top amateur players. But what this year's baseball draft demonstrates to me is that there is still a viable market for the top amateur players, and there always will be as long as competition among the teams for the top talent is not further impeded by restraints in the form of rookie bonus pools and caps. In my opinion, slot money should be universally viewed by agents (sorry, "advisors") as representing a dollar amount proposed by the club as merely a starting point in the contract negotiation process between the two sides. It will be interesting to see next year what the league "recommends" as slot money -- Maybe this year's draft will cause players and their advisors to be a little more skeptical about it next year.

Thursday, August 16, 2007
 
Kia Vaughn's Slander Lawsuit against Don Imus

Earlier today I was interviewed by Nina Mandell of Sports Illustrated on Rutgers women's basketball player Kia Vaughn's slander lawsuit against Don Imus. I hope you have a chance to read the transcript of my SI interview. In summary, I believe that Vaughn will have a difficult time succeeding in her claim, but that the claim itself is damaging to Imus, and that makes a settlement likely.

As a related writing from back in April, Jon Hanson and I wrote about Imus in a Situationist piece that generated quite a few reactions, "Hoyas, Hos, and Gangstas." That piece relates to our book project on Situationist Sports and in it, 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.

 
"The Chicken Filed its Motion for Summary Judgment"

Ordinarily, a baseball fan struck by a batted ball during a game is barred from suing the team or stadium to recover for injuries suffered. For nearly a century, fans have been said to assume the risk of being struck by a batted ball, something that is considered a fundamental part of the game of baseball (see Greg's posts here, here and here).
As an aside, I've never been a fan of this rule. If spectators could sue stadiums after suffering injuries, one of two things would happen. Either stadiums would raise ticket prices, to offset potential litigation exposure, or they would put up nets or walls to protect fans and reduce the likelihood of injuries. Most defenders of the rule are aghast at the latter possibility -- unobstructed views and the prospect of catching (or being hit by) a batted ball are considered to be fundamental to baseball enjoyment. My guess is that faced with increased tort exposure, stadiums would raise ticket prices. Why is that so wrong? If all fans enjoy the benefits of unobstructed views and the fun of catching or getting hit by a ball, what is wrong with having all fans pay a small amount for that privilege?
A few years back, a California court carved out an exception to the general rule that fans can't recover for batted balls. In Lowe v. California League of Prof. Baseball, 65 Cal.Rptr.2d 105 (Cal.App. 1997), a fan sued after he was struck by a foul ball. The fan argued that he had been distracted by the antics of the team mascot. The court allowed his case to go forward, holding that baseball teams and stadiums have a limited duty not to increase the risk of injury to spectators and that mascots are not an essential part of the game.

In a case published this spring, an Ohio court disagreed. The plaintiff in Harting v. Dayton Dragons Professional Baseball Club, L.L.C., 870 N.E.2d 766 (Ohio App. 2007) was injured at a minor league baseball game. She claimed that she was distracted by the antics of the Famous San Diego Chicken, who entertained fans during the game. The court didn't buy it:
Harting argues that because she was distracted by the antics of the Chicken, who was allegedly performing during the game, she was relieved from the assumption of any inherent risk associated with the game. This argument ignores the fact that team mascots and their antics are common phenomena and the mascots are normally present during the entire course of the game. In many cases, the team mascots are more popular than the team itself. The fact that the Chicken appeared while the game was being played does not absolve Harting from the duty to protect herself from the ordinary risks inherent in the sport. . . .

Given the prevalence of costumed team mascots at sporting events such as baseball, football, or basketball games, it is perfectly reasonable for a spectator at one of these games to expect to observe those mascots during the normal course of the game. The fact that Harting was allegedly distracted by the Chicken during the bottom of the sixth inning when she was struck by the foul ball did not negate her duty to pay attention to the action taking place on the field.
The best part of the opinion, of course, is the following line: "On March 6, 2006, the Chicken filed its motion for summary judgment."

 
Policing Violence in Baseball

For those that thought assault charges for on-the-field violence was reserved for hockey misconduct, Bridgeport, CT police have arrested former Major League Baseball player Jose Offerman for allegedly charging the mound with his bat during an August 14 independent league baseball game between the Long Island Ducks and Bridgeport Bluefish. Offerman, who says he believed that he was intentionally hit by a Matt Beech pitch, purportedly swung his bat at least twice, striking catcher John Nathans in the head with his back swing and then striking Beech with a front swing. It has since been reported that Nathans suffered a concussion as a result of the attack, and Beech a broken finger.

Presuming these events actually transpired as they have been reported, I think few would argue with the Bridgeport police's decision to arrest Offerman and charge him with two counts of second-degree assault, even though the last recorded time that a baseball player struck another player with a bat, the San Francisco's Giants' Juan Marichal walked away with a mere eight-game suspension from the league, and no criminal record.

Obviously, since the Marichal incident in 1965, police have become more willing to charge professional athletes with gross wrongdoing for conduct indirectly related to the game. The interesting question, however, is what this arrest means for the next time a batter charges the mound in Bridgeport, CT, presuming that batter does not carry a bat, as did Offerman. Is there really much difference between a raged Jose Offerman charging the mound with a bat, and any other raged player charging the mound with just his fists? What if that player is trained in martial arts?

As a sports fan, I do not want to see athletes fear the risk of criminal charges for aggressive play related to the game itself. However, charging the mound in baseball has nothing to do with playing hard-nosed winning baseball. If more professional athletes are arrested for charging the mound and hitting opposing pitchers, whether it be with fists or bats, presumably such behavior will decline -- not only in the professional game, but also on the amateur level where fans often emulate the pros. That would be a positive result for society overall.

 
Iran-Vick Affair? Michael Vick Sued for $63 Billion

It's certainly been a rough couple of months for Michael Vick. Indicted on felony charges relating to dogfighting and gambling. Endorsement contract suspended by Nike. And the NFL may soon ban him for a year.

But he now faces what may be his greatest challenge yet: he is being sued for $63,000,000,000.00. That's right. $63 billion!

Even worse, the lawsuit alleges that Vick is connected to both the Iranian government and Al Qaeda (but not, it appears, Kim Jong-il).

Now the good news for Vick: the lawsuit has been filed by a South Carolina inmate who contends that Vick, after pledging allegiance to Al Qaeda, stole his pit bulls, sold them on EBay, and then used the proceeds to buy missiles from Iran.

Makes sense to me.

You can read the entire frivolous complaint in PDF, and here's the story from Ian McCaleb of Fox News:
Embattled NFL quarterback Michael Vick, facing federal charges related to his alleged participation in dogfighting, has been hit with a "$63,000,000,000 billion dollar" lawsuit filed by a South Carolina inmate who alleges the Atlanta Falcons star stole his pit bulls and sold them on eBay to buy "missiles from Iran," FOX News has learned.

Jonathan Lee Riches filed the handwritten complaint over "theft and abuse of my animals" on July 23 in the U.S. District Court in Richmond, Va.

Riches alleges that Vick stole two white mixed pit bull dogs from his home in Holiday, Fla., and used them for dogfighting operations in Richmond, Va. The complaint goes on to allege that Vick sold the dogs on eBay and “used the proceeds to purchase missiles from the Iran government.”

The complaint also alleges that Vick would need those missiles because he pledged allegiance to Al Qaeda in February of this year.

“Michael Vick has to stop physically hurting my feelings and dashing my hopes,” Riches writes in the complaint.

Riches wants $63 billion dollars “backed by gold and silver “ delivered to the front gates to the Williamsburg Federal Correctional facility in South Carolina. Riches is an inmate at the facility serving out a wire fraud conviction.

Oh, by the way, it's not clear how Mr. Riches (fitting name) came up with $63 billion in damages. Maybe, like Dr. Evil in Austin Powers, he initially thought of $1 million but was talked into something more, well, evil.

Thanks to my new colleague at Mississippi College School of Law, Chris Lund, for the link.

Wednesday, August 15, 2007
 
Authority through Morality: Nike Can Terminate Michael Vick's Endorsement Contract

A couple of weeks ago, I wrote about the morals clause in Michael Vick's endorsement contract with Nike. Despite publicly supporting Vick immediately after his indictment, the company suspended Vick's contract. The clause's language entitled Nike to do so.

At the time, however, the exact language of the clause was unknown, and we were left to speculate its possible meaning. We wondered if, for instance, Nike could terminate the contract based alone on Vick's indictment. Another and more contentious possibility would be that Nike could terminate the contract based on public outrage directed at Vick. That speculation generated some outstanding reader comments, and I appreciate all of those who commented.

Thanks to the intrepid reporting of CNBC's Darren Rovell, we now know the language of Vick's morals clause. Over on SportsBiz, Rovell reveals that if Vick is indicted or if he "causes harm to company," Nike can unilaterally terminate the contract. In other words, Nike could have already terminated Vick's contract based on his indictment, but has not. Instead, it has suspended the contract. It will not pay Vick while the contract remains suspended and could still terminate the contract at any time.

As Rovell discusses, Vick's particular morals clause is somewhat unusual, as historically, moral clauses usually require a conviction before a contract can be terminated. On the other hand, as Rovell notes, a recent trend in endorsement contracts between athletes and companies has been to characterize an indictment as a sufficient condition for termination (for a related television interview with Rovell, click here). For another recent trend on morals clause, check out a Harvard Law Bulletin article on "reverse morals clauses."

Rovell's article also poses an interesting poll question:
Nike Has Suspended Vick. Knowing this information, do you think it will help their brand at all to terminate him?
Interestingly, 80% of readers have thus far said "yes." Granted, the poll is not scientific, but any thoughts on why folks do not see a suspended contract as a sufficient-enough separation for Nike from Vick? Put another way, is Nike doing the right thing by not terminating the contract until more information about Vick's potential criminal exposure emerges, or should it have already severed all ties with him?

 
Update on AT&T - NASCAR Litigation

A report in this morning's Charlotte Observer notes that an AT&T spokesman said the company will "continue to pursue its right to use its logos" on the No. 31 Chevrolet driven by Jeff Burton despite Monday's unanimous decision by the 11th Circuit Court of Appeals. Its choices include the following options:

1. Attempt an en banc ruling by the entire 11th Circuit.

2. Appeal to the U.S. Supreme Court.

3. Pursue its claims of misrepresentation and estoppel in the trial court.

I am betting on number three. It's rare that an en banc panel reconsider a unanimous ruling and a Supreme Court appeal would take a great deal of time, with no assumption that the court would grant certiorari.

 
Tim Donaghy to Plead Guilty: What Will be The Fallout?

According to the Associated Press, former NBA referee Tim Donaghy will plead guilty in federal court later today to charges that he bet on games he officiated. It's not yet clear which specific charges he will plead guilty to, or how much, if any, prison time he faces, but among related criminal offenses are mail and wire fraud; racketeering (under the Racketeer Influenced And Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq., which is a general law against bribery and racketeering, and normally involving organized crime); conspiracy to commit sports bribery (under 18 U.S.C. § 224); and interstate travel with the intent to commit bribery (under 18 U.S.C. § 1952).

What might a guilty plea mean? There are different possibilities.

One is that investigators enjoy an overwhelming amount of evidence against Donaghy and he feels that he is better off cutting a deal early than having the investigation continue. This would probably be the best outcome for the NBA: Donaghy as an isolated bad guy, with the league being able to go back to business as usual. Early indications, based on media leaks from investigators and/or NBA officials, are that no other officials or players will be charged, so this may be the correct explanation.

Another possible explanation is that Donaghy is worried about his safety, and that of his family, from mafia threats, and the sooner he ends the litigation, the better for him and everyone around him. Certainly, the mafia have been known to intimidate witnesses and their loved ones, but I'm not sure how often that actually happens, or whether it has happened here.

The most worrisome explanation for the NBA would be that the NBA betting ring extends beyond Donaghy, and investigators want to expose it. Maybe they are offering Donaghy lighter charges in exchange for "spilling the beans," so to speak. That is pure speculation, of course, and early indications are that other officials and players will not be charged. But what investigators leak to the media early on doesn't always prove true, and if Donaghy is indeed cooperating with investigators to expose a league-wide problem, his guilty plea could prove devastating for the NBA, and particularly for top NBA officials.

As I wrote about on ESPN.com and on Sports Law Blog, David Stern has attempted to portray Donaghy as the bad apple--"the rogue, isolated criminal," in Stern's words--in an otherwise good barrel. That is corporate management 101 whenever an employee is found to have done something wrong: immediately distance the employee from the organization, not only to protect the organization, but to protect those running it. We also see that same modus operandi when there is a hazing incident at a college campus, as once school administrators realize that defending the offending students will not work, they often try to place all of the blame on those students, even though the same hazing rituals had been going on at the school for years. To some extent, I suspect much of the "personal responsibility" rhetoric that we hear now-a-days is driven by the same tactic: get others to believe that fault should rest entirely with the individual (e.g., "an obese person is overweight because he or she 'chooses' to eat too much") to avoid considering more difficult questions of causation and social responsibility (e.g., prevalence of fast food restaurants, psychology of marketing, economic explanations etc.--see our series of food and drug law posts on The Situationist).

But back to Donaghy, what if, contrary to initial reports, other officials and/or players are in fact involved? What if the NBA has harbored suspicions about this for a while, and not done anything or not done enough? Indeed, as detailed by Henry Abbott on TrueHoop, numerous recent news stories discuss different angles of possible NBA corruption. If Donaghy's guilty plea indicates governmental interest in that same topic, we might, at the least, see more vehement calls for congressional hearings (which I blogged about here); at the worst, we might see other officials and players facing charges, and top league officials facing resignations.

Of course, there is no indication at this point that other officials or players will be charged. Moreover, Donaghy is not exactly the most reputable witness around, so whatever he says should be taken with caution. But investigators already know that. And they also know that none of this looks good for the NBA, which, despite its new slogan, may not feel so "amazing" by the end of the Tim Donaghy affair.