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Thursday, January 31, 2008
Baseball's "Secret Police" as Unfair Labor Practice?

The Umpires' union is upset about Major League Baseball's agressive background investigations of its members. According to ESPN, MLB began to conduct checks on umpires in the wake of the Tim Donaghy scandal in the NBA.

The union has not decided whether or not to pursue legal action. Although members have characterized the questions asked as "defamatory" (for instance, "Is umpire __ a member of the KKK?"), it doesn't seem like a tort claim would have legs. Intead, the issue would likely be whether an employer can unilaterally implement background investigations of union members. This would turn on whether a background investigation amounts to a "condition of employment" and is therefore a mandatory item of collective bargaining (an issue that we have discussed on the blog a number of times, such as here and here).

I am aware of only two cases touching on the unilateral implementation of background checks of union members. After September 11, airlines conducted background checks of various airline employees. In Aircraft Mechanics Fraternal Ass'n v. Northwest Airlines, 2002 WL 598418 (D. Minn. 2002) (unpublished opinion), a union sought to stop criminal background checks of its members, claiming that the checks were a "repudiation" of the collective bargaining agreement. The court did not address whether unilateral implementation of background checks needed to be negotiated because it found that the CBA expressly authorized Northwest to make the change: "the CBA explicitly allows Northwest to promulgate 'rules, regulations, and orders ... which are not in conflict with the provisions of [the CBA] or applicable state or federal law.'"

However, in Board of Educ. of City School Dist. of City of New York v. New York State Public Employment Relations Board, 75 N.Y.2d 550 (N.Y. 1990), the New York high court found that financial disclosure requirements and background checks of school employees were a mandatory item of collective bargaining.

How would the umpires' union fare were it to file an unfair labor practice charge based on the background checks? Is there a provision in the umpires' CBA that allows baseball to take such action? (Perhaps a "best interests of the sport" clause?).

Salary Arbitration - Most Deals Are Below the Midpoint

It has been a quiet few days on the arbitration front. Since my last posting, two $1 million deals were signed (Esteban German - Kansas City Royals and Todd Wellemeyer - St. Louis Cardinals). Wellemeyer’s deal includes $100,000 in performance bonuses.

A number of reporters have written that the midpoint is a common settlement point. My research covering the past four years placed 45% of the deals below the midpoint while 22% were actually at the midpoint. For the purposes of my analysis, I am using the base salary. In some instances, the parties agree to performance bonuses that often take the deal to the midpoint or even slightly above the midpoint. My research totals are outlined below:

Multiyear deals - 2004 (5), 2005 (8), 2006 (7), 2007 (10)
Above the midpoint - 2004 (1), 2005 (3), 2006 (8), 2007 (4)
At the midpoint - 2004 (6), 2005 (5), 2006 (9), 2007 (12)
Below the midpoint - 2004 (8), 2005 (21), 2006 (14), 2007 (22)

Totals for 2004-2007

Multiyear deals - 30 (21%)
Above the midpoint - 16 (11%)
At the midpoint - 32 (22%)
Below the midpoint - 65 (45%)
Total - 143 (99% - a result of rounding fractional percentages)

Wednesday, January 30, 2008
NCAA Convention Session Videos On-Line

Anyone with an interest in the regulation of college athletics may want to check out the NCAA's web site, which now includes videos from the NCAA Convention earlier this month. There are a number of panels of potential sports law interest, including Sports Wagering and Legal, Medical and Treatment Aspects of Student-Athlete Pregnancy.

Tuesday, January 29, 2008
The Strange New Offering from the Clemens Team

Yesterday, in an effort to undercut suggestions that the longevity of Roger Clemens could only have been the product of steroid use, Clemens's agents released the "Roger Clemens Report." According to the New York Times:
His agents, Hendricks Sports Management, issued a 45-page statistical analysis Monday arguing that Clemens prolonged his career by making adjustment in his pitching, not by drug use.

“Clemens’s longevity was due to his ability to adjust his style of pitching as he got older, incorporating his very effective split-finger fastball to offset the decrease in the speed of his regular fastball caused by aging,” the report says.
Leaving aside the fact that it is long on assertion and short on analysis, the report is one of the strangest items to surface in connection with Roidgate 2008. It looks to me like the bulk of the report was recycled from submissions made to teams and salary arbitrators when Clemens sought to negotiate or obtain new contracts. The tables -- comparing Clemens to Randy Johnson, Curt Schilling, and other "stars" and tracking his performance over time -- are precisely the kind of thing that agents use to negotiate higher salaries for their clients.

Monday, January 28, 2008
Baseball Salary Arbitration - Second Post - With a Particular Emphasis on the Houston Astros

After a little over a week since 48 players exchanged numbers with their teams, and according to my research 13 players have signed if you include the Robinson Cano deal with the Yankees. The recent discussion about a trade involving Erik Bedard puts one of the players who exchanged numbers with his team in a position of negotiating with a different general manager.

Six of the deals are multiyear contracts with 1 above the midpoint, 3 at the midpoint, and 3 below the midpoint. The multiyear deals went to Rafael Betancourt (Indians/2-years), Cano (Yankees/4-years), Michael Cuddyer (3-years), Endy Chavez (Mets/2-years), Yadier Molina (Cardinals/4-years), and Rafael Soriano (Braves/2-years). The number of multiyear deals is interesting in terms of my research back through 2004 on players and teams who exchanged numbers but settled before a hearing. In 2004, 5 of the 21 players signed multiyear deals (24%). In 2005, the numbers were 8 of 40 (20%). In 2006, it was 7 of 38 (18%). Last year, 10 of the 48 agreed to multiyear deals (21%). I am certain that the current rate of 46% will come down.

Dave Borkowski (Astros) signed for $800,000 with a performance bonus package of $50,000 based upon appearances or innings pitched. That is still below the $925,000 midpoint ($750,000/$1,100,000). Kyle Snyder settled at $835,000 with a performance package of $15,000 based upon appearances. That still puts him below the midpoint of $875,000 ($725,000/$1,025,000). Michael Wuertz of the Cubs accepted $860,000. That was just barely below the midpoint of $862,500 ($750,000/$975,000). Note that none of these final salary figures exceed $1,000,000.

Settlements at the midpoint include Chad Gaudin (Athletics) at $1,775,000 ($1,500,000/$2,050,000), Matt Guerrier at $950,000 ($750,000/$1,150,000), and Scott Proctor (Dodgers) at $1,115,000 ($930,000/$1,300,000).

The one player to exceed the midpoint is Geoff Geary of the Houston Astros at $1,125,000 ($950,000/$1,250,000). His midpoint was $1,100,000. Geary is also a newcomer to the Astros who dealt Brad Lidge and Eric Bruntlett to Philadelphia for Geary, Michael Bourn, and Mike Costanzo. Speaking of the Astros, they exchanged figures with four players: Dave Borkowski, Geoff Geary, Mark Loretta, and newly acquired Jose Valverde. The Tuesday, January 22, deal with righty Borkowski for $800,000 plus incentives is quite similar to the deal with Brandon Backe allowing both sides to skip exchanging numbers. The deal with Backe for $800,000 plus incentives was reached on January 11. Ty Wigginton was a deadline day signee. Wigginton received a $4.35 million deal plus incentives on Friday, January 18.

Hoping to force a settlement, general manager Ed Wade imposed an end-of-the-workday deadline of Wednesday, January 23, for agents Bob Garber and Bill Rego to complete negotiations with Wade on contracts for Mark Loretta (Garber) and Valverde (Rego) or proceed directly to a hearing. When the deadline passed, the Astros were committed to their first hearings since they lost to Daryl Kile in 1997. Wade’s decision to proceed in this way is a major departure from the club’s past practices. The Astros are 5-6 in their 11 hearings since 1974. The ledger for Houston including the arbitrator if I have located the information is as follows:
The Astros wins were Bill Dawley (1986 - Stephen Goldberg), Bill Doran (1987 - Raymond Goetz), Frank DiPino (1986 - Bernard Melzer), Darryl Kile (1997 - Morton Michnick), and Al Osuna (1994 - Pat Hardin).

The Astros losses were Joaquin Andujar (1980 - arbitrator information not located), Kevin Bass (1987 - Glenn Wong), Glenn Davis (1989 - Stephen Goldberg), Joe Sambito (1980 - arbitrator information not located), Denny Walling (Frederick Reel), Rick Wilkins (1996 - Morton Mitchnick).

As you can see from the list, the Astros have not been to a hearing in over a decade and never before a three-arbitrator panel.

Loretta is seeking $4.9 million and the Astros countered with $2.75 million. The midpoint is $3.825 million and the gap is $2.15 million. Last year Loretta received a base salary of $2.5 million plus a reported additional $1 million for reaching his performance bonuses. Loretta hit .287 while playing all four infield positions. The veteran of 13 big-league campaigns has over 1,500 hits in his career and a .298 lifetime batting average. He signed as a free agent last year with the Astros after the Red Sox cut him lose after the 2006 season when he made $3.25 million.

Valverde was acquired from the Arizona Diamondbacks after amassing 47 saves in 65 games last year when the Astros sent Chris Burke, Chad Qualls, and Juan Gutierrez to the D-backs in December 2007 for the first-time National League All-Star. Valverde received $2 million for that effort, and he is seeking $6.2 million from the Astros for 2008. Houston countered with an offer of $4.7 million. The midpoint is $5.45 million with a gap of $1.5 million.

Sunday, January 27, 2008
Tribute to Harvard Law School Professor Paul Weiler

I was recently asked by Harvard Law School to write a tribute for Professor Paul Weiler, my former sports law professor who is retiring from teaching this year. I was deeply honored by the request. My tribute appears in the most recent issue of the Harvard Law Bulletin and I have excerpted it below.

Passion in His Playbook

If there’s ever a Hall of Fame for sports law, Paul Weiler is a shoo-in

Photograph of Paul Weiler

The late Will McDonough, the Boston Globe columnist, once said: “When it comes to sports law, Paul Weiler knows the answer before you ask the question.”

In fact, for many law students, attorneys and professors, Paul Weiler is indisputably the founder of American sports law and the field’s most distinguished member, having virtually invented the specialty by merging his expertise in labor law with his love of sports. As one of his former students and now a colleague in legal academia, I appreciate him more and more every day.

Weiler’s passion for his subject—and for teaching it—has inspired countless HLS students to successfully pursue careers in sports law. Since he began teaching at Harvard Law School, an astonishing number of his students have become sports law scholars, agents, litigators, mediators and other professionals engaged in what is quite possibly the most competitive specialty within the law. Their success is a testament to the man who taught them things such as the powers of the commissioner, the legal ramifications of steroid use, the nuances of Title IX, the intersection of torts and sports, and myriad other topics that define the field that has so defined him.

Just consider, for a moment, the body of written work he has produced, and how his students can so readily draw on it. Most notably, he has co-written what is probably the leading casebook on the subject, “Sports and the Law,” as well as numerous law review articles and journal publications that have established and substantiated the growing canon of sports law scholarship.

And, aware that many people who aren’t lawyers will seek instruction in the topic, Weiler has also written more popularized sports law entries. The most significant among them is the transformative book “Leveling the Playing Field: How the Law Can Make Sports Better for Fans,” which, according to The New York Times Book Review, “combines the broad knowledge of an all-seasons sports fan with the clarity of an antitrust lawyer.” Reaching both an academic and a popular audience is never easy, and yet Weiler has done it with the adroitness and grace that have distinguished his career.

Weiler has also been the leading public advocate for sports law. He has testified before the U.S. Congress and met with politicians in Canada, his home country, on a seemingly boundless range of issues. Many leaders here and abroad consider him sports law’s leading guru.

The true essence of Paul Weiler, however, cannot be captured by the long list of his professional accomplishments, contacts and honors. Instead, it rests in his heart, in his soul and in his undying warmth. Like all of his former students, I can personally attest to his profoundly deep and unqualified compassion for everyone who seeks his guidance. I will never forget, nor fail to appreciate, the enormous amount of time, energy and emotion he spent with me on a paper that I would eventually publish in a law review. There were certainly many demands on his time—demands that seemed to me to be much more important. But never once did he put those demands ahead of me. Paul Weiler just doesn’t do that. His students always come first.

It may be just a coincidence that such a friendly professor held the prestigious Henry J. Friendly Professorship of Law, but it couldn’t be more fitting. As much as I hate to disagree with the late Will McDonough, when it comes to sports law, it’s not about the questions that Paul Weiler can answer. For me, as for so many others, Paul Weiler is the answer.

Saturday, January 26, 2008
Florida Coastal Database of College Coaches Contracts

In December of 2006, I wrote a post titled, "Lawyers in Demand at University Athletic Departments?" At the 2006 Street & Smith's Intercollegiate Athletics Forum, NCAA president Myles Brand and other panelists were asked what they thought would be the most important story to follow in 2007, and they said "coaches' contracts". Brand added that "agents have the upper hand" now. In a separate interview, Brand also said the following: "Negotiations have become tougher, and there's a lot of competition for the best coaches. It might make sense for schools to have representation. They use outside counsel on other things."

As director of the Center for Law and Sports at Florida Coastal School of Law, I am pleased to announce the creation of the "Florida Coastal Database of College Coaches Contracts." The database houses detailed summaries of the pertinent provisions contained in the contract of each college coach within the "Big 6" conferences in football and the Big Ten, Big 12 and SEC conferences in men's basketball. The database contains a spreadsheet for each conference per sport, summarizing the material terms of each coach's contract at each school within the conference. Each spreadsheet contains separate tabs with specifics regarding term, base salary, bonuses, supplementary compensation, deferred compensation, guaranteed compensation, termination, liquidated damages/buyout and retirement.

We started the project in January of 2007, and it is an ongoing work in process in which we will be adding additional conferences as well as providing updates to accommodate new hires and contract extensions. I say "we" but I can't take any of the credit. This database is the culmination of the hard work of my student research assistants who are enrolled in our sports law certificate program. This project was created with two primary objectives: to provide students in the program with a valuable research and practical skills exercise, and to provide a resource for the collegiate athletic community. The spreadsheets are useful from the standpoint of providing an overview of various trends in the industry, as well as being able to compare and contrast at a glance the material terms of each coach's contract within each conference. The database will remain permanently linked on the blog under the heading, "Sports Law Resources".

Friday, January 25, 2008
A Catholic Perspective on Rick Majerus

Rick Garnett at Notre Dame, who blogs at the Catholic-legal-theory site Mirror of Justice, offers some thoughts on the Majerus matter.

Two points on Rick's post. First, he wonders whether the reaction from SLU or much of the sports-media world would have been different if Majerus had "appeared at a Tom Tancredo rally and complained about immigration, or at a League of the South rally and complained about Emancipation." A similar point was raised in the Comments to my earlier post here. I agree with Rick that, unfortunately, the reaction probably would have been far less supportive of Majerus, especially among the professoriate. But that reflects what I view as a common problem of lack of consistent support for the idea of people speaking out where one disagrees with the ideas expressed.

Second, Rick suggests that Archbishop Burke missed an opportunity for a more constructive response that would have engaged Majerus, and all area Catholics, in a conversation about the dignity of life and the Catholic faith. Such a response might have played better, particularly given that Majerus' support for stem-cell research grows out of his having watched a close friend die of ALS. This was a chance to talk to the faithful (whom the archbishop is charged with pastoring) about this area of Catholic thought, rather than falling back on the blunderbuss weapon of stating that someone simply is wrong (in defiance of the basic tenets of Catholicism) and calling for sanctions against the speaker. Majerus has said that he would like to meet the Archbishop and discuss these issues, which might make for an interesting conversation.

The Substance of WVU v. Rodriguez

In an interview yesterday about West Virginia's suit against Rich Rodriguez, I made two points to a reporter (prior posts here and here). First, I think the case is going to end up back in state court--the university is an arm of the state and not subject to diversity jurisdiction in federal district court, not to mention the uncertainty about where Rodriguez was living on December 27. Second, I think this controversy could have significant future effects on the relationship between coaches and schools, the mobility of coaches, and the ability of schools to protect themselves from vagabond coaches.

Today's Charleston (W. Va.) Gazette prints in full a letter Rodriguez sent earlier this month to WVU Athletic Director Ed Pastilong (this is the letter that had as a return address Rodriguez's West Virginia residence and was used by the school as evidence that he remained a West Virginia citizen). The letter seems to hint at what Rodriguez's substantive case will be in the lawsuit and it includes the following:

On Page 6 of the lawsuit (Article 17) it mentions that the University and I mutually understood and agreed on all the terms, conditions and understandings either oral and or written. It also mentioned that any further modification or amendment was effective only if made in writing and signed by both parties. This is not true - several issues were promised and discussed and were oral agreements that I thought would be upheld. Verbal promises and statements made by Mike Garrison, Craig Walker and several Board of Governor members were a factor in my agreeing to sign the second amendment. They include:

a) Mike Garrison stated that he did not believe in buyouts and that if I wanted to leave that "the buyout would be reduced to 2 million or eliminated altogether". He knew I did not want to sign it with the large buyout but assured me that as soon as he took office he would address it. I told him the four million buyout was unfair and Garrison agreed but said the Board of Governors would not change it at the time due to publicity concerns (the University leaked the term sheet information to the press in violation of the Agreement. I was also misled when I was told when I originally agreed to sign the term sheet in December that the boosters who paid my salary "insisted" that I have the four million dollar buyout clause. I have found out that this was not true.)

b) I told Garrison that I knew everyone was under pressure to get me to sign the contract (I was getting calls by Board Members, the President and the Governor.) I told him I was not comfortable signing it with the buyout clause and other issues but Garrison said it would be a personal favor for him and several Board Members and said I needed to do it to help Garrison's start as the new President.

In other words, Rodriguez is arguing that he does not owe $ 4 million; he owes at most $ 2 million or maybe nothing at all, because university officials orally agreed to waive the clause, although it remained in the agreement. Now, it was been almost 15 years since I dealt with contract law (back when I was slogging through Contracts as a 1L). But am I completely off in remembering that a basic doctrine of contract law prohibits a party from arguing in court that an oral agreement altered or overrode a contract term--that the terms of the contract control over any oral representations to the contrary, unless the contract allows for oral amendment? Can anyone educate me on this part of contract law?

Clearly, those facts could set up an issue of fraudulent inducement, either as an affirmative defense or counterclaim. But can he defeat the university's basic breach of contract claim in this way?

Agent-Author Ron Shapiro at Toledo Law on Monday

For anyone within driving distance, I'll be introducing famed Baltimore baseball agent and author Ron Shapiro on Monday, January 28 (at 11:55 am) at a public event at the University of Toledo College of Law. Known for his books and instruction on negotiation ( The Power of Nice: How to Negotiate So Everyone Wins, Especially You; Bullies, Tyrants & Impossible People: How to Beat them Without Joining Them, and Dare to Prepare: How to Win Before You Begin), Shapiro has represented the likes of Kirby Puckett, Eddie Murray, Cal Ripken, Jim Palmer, and Brooks Robinson. This promises to be a fun and informative event, which you can read more about here.

Baseball Salary Arbitration

I am pleased to have the opportunity to share with Sports Law Blog readers some of my insights and research concerning baseball salary arbitration. Going back to my time teaching a seminar on the regulation of the sports and entertainment industries at Loyola New Orleans in the 1990's, I have been interested in the arbitration process. In particular, I was interested in researching the decisions of individual arbitrators to determine their team-player record. It was oft asserted that in order to remain an arbitrator you needed to maintain a roughly 50-50 decision percentage. I have been able to locate arbitrator information back to 1984 through research in newspaper articles on Westlaw and LexisNexis. My interest in the process began to expand beyond that particular point. Over the past five years and with the help of numerous research assistants, we have researched all 3,000-plus players who have filed for arbitration since 1974. Over the next month, I hope to post comments about the 2008 process.

This year, 110 players filled for arbitration by the Tuesday, January 15 deadline. By the Friday, January 18 deadline for exchanging numbers, only 48 players remained unsigned.

One of the most intriguing stories of the this year involves the Phillies and Ryan Howard. The Phillies enjoy a 7-0 won-loss record over their players since the beginning of salary arbitration in 1994. The Rays are the only other team without a loss to a player. They have gone to 3 hearings. By the way, the Phillies unbeaten streak breaks down as follows: Willie Banks (1996), Kevin Gross (1987), Alan Knicely (1986), Jerry Koosman (1985), Travis Lee (2001), Dale Sveum (1992), and Dickie Thon (1991).

Howard requested $10 million and the Phillies countered with $7 million. The gap is $3 million with a midpoint of $8.5 million. Although Howard did not match his offensive production during his 2006 MVP season, he will substantially increase the $900,000 that he received last year. That deal was the largest for a player with less than two years of service time. Howard is eligible for arbitration as a Super 2 player. Phillies General Manager Pat Gillick and Assistant General Manager Ruben Amaro, Jr. are in discussions with Howard’s agent Casey Close. Could the result here be a long term contract?

The Phillies had six players who were arbitration-eligible this year. The only other player that they exchanged numbers with is Eric Bruntlett. Bruntlett wants $800,000 while Philadelphia offered $550,000. The midpoint is $675,000. Prior to the exchange of numbers the Phillies reached agreements with Brad Lidge ($6.35 million), Ryan Madson ($1.4 million), Chris Snelling ($450,000), and Jayson Werth ($1.7 million).

Thursday, January 24, 2008
More on Rick Majerus

The story, first mentioned here, of Saint Louis University Men's Basketball Coach Rick Majerus' comments at a Hillary Clinton rally supporting reproductive choice and stem-cell research, and the calls by St. Louis Archbishop Raymond Burke for university sanctions against Majerus, is becoming a national controversy. Majerus today defends himself in a very thoughtful interview with Bernie Miklasz, a sports columnist from the St. Louis Post-Dispatch, that is worth reading. He obviously has spent some time considering and forming his views and beliefs about these issues, about his right or duty to speak about them, and about what his Jesuit education (Majerus graduated from Marquette) teaches him about forming ideas and speaking out.

I am spending a very enjoyable year as a visiting faculty member at SLU's School of Law this year. So I wanted to weigh in on a couple of points.

First, the Archbishop's call for Majerus to be sanctioned makes for great rhetoric, but is not going to happen. And it has nothing to do with the control the Catholic Church does or does not wield over the university. Rather, I doubt the faculty would stand for the university sanctioning a member of the university community for engaging in political speech. If Majerus can be sanctioned, so could any untenured faculty member be sanctioned for her scholarhsip or blogging or public comments. I get the sense that SLU's president, Father Matthew Biondi (whom I never have met), recognizes this unique and important element of being a university and, in particular, being a Jesuit university, with its tradition of open thought. So while Archbishop Burke is right that the school, as a private institution, could sanction Majerus for his speech, my guess is the school, as a university, would not seriously think about it.

I remember having a conversation with a dean at a different Jesuit law school, who assured me that, being a Jesuit institution, there would be full freedom to think and write as we will. My laughing response was that any other possibility never entered my mind. In fact, I said I might be more concerned being on a public-school faculty in some states.

Second, I would highlight the following exchange:

I asked Majerus if speaking out on controversial matters is the proper thing to do for a basketball coach.

"The wisest thing probably is not to be involved in any of this," he said. "But I feel like, in my heart of hearts, that I should talk about what I believe in.

"A lot of people like the safe harbor. And perhaps my comments will hurt my recruiting efforts, or damage the relationship I have with our (basketball) supporters. I hope not. But I can't divorce what I believe from who I am."

Bravo to Majerus; great answer. But the exchange highlights a few concerns.

One, I am troubled that the question was asked because it is inconsistent with our demands elsewhere that athletes (and sports figures generally) speak out. In deciding to speak out, he ran the risk that his comments will offend some listeners and, perhaps, someone will not want to support the Billikens anymore (a point he addresses in the inteview). But to suggest that speaking out on controversial matters (since everything worth talking about is controversial) is not the "proper thing" seems hypocritical in light of our insistence that athletes should speak out and take public stands.

Two, would we ever ask a plumber or a bank teller or a doctor or a stay-at-home mother whether it was proper for her to speak out on controversial matters? If not, then how could it be for a basketball coach? Don't they all share equally the right and opportunity to take part in the public debate? Is it because of his fame, which gives his comments an audience the bank teller does not enjoy? But it would be ironic, to say, the least, if our rule was that the more power or influence one's words can have (because of the fame or wealth or power the speaker has accumulated), the less one should speak. It is fair for one to say "Majerus [or any other sports figure] doesn't know what he's talking about, he's just a baskteball coach"--although I think that response is wrong as to Majerus. But suggesting that what he said was wrong is much different from suggesting that he was wrong to say something at all.

Update: Thursday, 10:00 p.m. C.S.T.:

Great profile by Pat Forde on ESPN about Majerus as a person and why his speaking out, and sticking to his guns, is so in character for him.

Wednesday, January 23, 2008
Proposed Three-Prong Anti-Steriod Strategy for Baseball

University of Chicago economist Steven D. Levitt has a good post over on Freakonomics that discusses a plan by Aaron Zelinsky (who last week on our blog wrote a guest piece on steroids in baseball) for a three-prong anti-steroid strategy for Major League Baseball.

Here is an excerpt from Professor Levitt's post discussing Aaron's idea;
Aaron Zelinsky, a student at Yale Law School, recently proposed an interesting three-prong anti-steroid strategy for Major League Baseball:

1) An independent laboratory stores urine and blood samples for all players, and tests these blood samples 10 years, 20 years, and 30 years later using the most up-to-date technology available.

2) Player salaries are paid over a 30-year interval.

3) A player’s remaining salary would be voided entirely if a drug test ever came back positive.

I’m not sure about points 2 and 3, but there is no question that point 1 is essential to any serious attempt to combat the use of illegal performance enhancers. The state-of-the-art in performance enhancement is the best set of techniques that cannot be detected using current technology. So, by definition, the most sophisticated dopers will evade detection, unless they are unlucky or make a mistake.

For the rest of the post, click here.

Tuesday, January 22, 2008
Sports Mixing With Religion and Politics: Majerus, Abortion, Basketball Arenas, and Tax Abatements

This morning at the March of Life in Washington, D.C., St. Louis Archbishop Raymond Burke criticized Majerus' support of Hillary Clinton, publicly stating that he supports stem cell research and abortion rights (Majerus was interviewed by KMOV Channel 4 in St. Louis on Saturday night). Burke's issue is that Majerus, a practicing Roman Catholic, is the head men's basketball coach at a Jesuit, Catholic University (St. Louis University), and as such, should be disciplined. Burke's comments follow:

"It's not possible to be a Catholic, and hold those positions. When you take a position in a Catholic university, you don't have to embrace everything the Catholic church teaches, but you can't make statements which call into question the identity and mission of the Catholic Church."

Jeff Fowler, spokesman for SLU, responded that Majerus made his comments based on his own personal beliefs, and not as a representative of SLU, seeming to indicate that SLU will not take any action.

Keep in mind that SLU is a Jesuit University run by the Society of Jesus (like all Loyola's, Boston College, Georgetown, etc.), separately autonomous, and legally chartered with its own Board of Trustees.

Some of you may recall that opponents of the SLU Billikens receiving public financing for the new Chaifetz Arena lost in a case that made it up to the Missouri Supreme Court (St. Louis Univ. v. Masonic Temple Ass'n of St. Louis, 220 S.W.3d 721 (Mo. 2007)).

SLU sought Tax Increment Financing (TIF) from the State to support urban renewal in blighted areas through tax abatements. The Masonic Temple Association of St. Louis sought to have the ordinances introducing these abatements declared unconstitutional in Federal court (later dismissed upon defendants' motion), thereafter, SLU sought declaratory relief in State court upholding the ordinances.

Masonic first argued that the ordinances violated Missouri's Establishment Clause as the abatements would be impermissible financial aid to a university under the control of a "religious doctrine or creed." Id. at 726. The Court (internal citations omitted) found that just because a school was affiliated with the Jesuits or the Roman Catholic Church, did not make the same a religious institution. Further, simple affiliation with a religion does not equal control by a religious creed for purposes of Missouri's establishment clause. Id. at 727. SLU has a Jesuit president, but he serves at the pleasure of a lay board, and SLU's bylaws displayed an aspiration to ideals, not an adherence to a creed. Id. at 727-28. As such, the Court found that SLU was not controlled by a religious doctrine or creed, and further added that the purpose of the funds was to redevelop a blighted area, not advance religion. Id.

And as a result...we get to see the offensive juggernaut that is the Billikens in their new digs!

Hat tip: Deirdre Shesgreen and Tom Timmerman of the St. Louis Post-Dispatch for Majerus comments and backlash.

More on WVU v. Rodriguez

Last week I talked about West Virginia University's lawsuit against former football coach Rich Rodriguez. Rodriguez removed the case to federal court based on diversity-of-citizenship jurisdiction, arguing that he became a citizen of Michigan prior to the filing of the lawsuit on December 27.

Last Friday, WVU filed a motion to remand to state court. It hit both of the points I discussed in the earlier post. First, the university is an arm of the State of West Virginia and not a citizen of West Virginia for diversity purposes. Second, Rodriguez was a West Virginia citizen on December 27. WVU points to four facts: a) Rodriguez had lived in West Virginia for a number of years prior to the lawsuit; b) Rodriguez and his family still live in their West Virginia residence (the place where Rodriguez was served with process); c) Rodriguez's children continue to attend school in West Virginia; and d) on January 10 (two weeks after the lawsuit was filed), Rodriguez sent a piece of correspondence listing his West Virginia residence as return address.

WVU also amended its complaint to add a claim for breach of contract. The first payment on the buyout clause apparently was due last Friday and was not paid.

Monday, January 21, 2008
ESPN Relies (in part) on CDM Fantasy League Case to Renegotiate Licensing Fees

In today's edition of Street & Smith's SportsBusiness Journal (subscription required), John Ourand and Eric Fisher report that ESPN is renegotiating its digital rights deal with MLB Advanced Media, looking to pay a significantly lower fee after finding several pieces of the original agreement it signed in 2005 no longer cost effective ("ESPN Seeks Better MLBAM Terms"). According to the authors, ESPN is exercising an out-clause three years into the seven-year agreement worth $20 million a year that provided ESPN with numerous digital and fantasy rights.

Ourand and Fisher noted:
ESPN’s push to restructure the deal comes less than two months after MLBAM’s latest court defeat in the CDM Fantasy Sports case at the federal appeals court level. ESPN thinks the court’s decision means that it was paying a license fee for fantasy rights that others, such as CDM, were getting free. It’s unknown if others who are paying for fantasy rights, such as Yahoo!, Fox and CBS Sports, have the same opt-out rights as ESPN.
The day after the Eighth Circuit's decision was rendered, I discussed why the court's "public domain" standard is simply not a practical standard to use in balancing the First Amendment with the right of publicity. Nevertheless, this is the first instance that I am aware of in which a fantasy league operator (other than CDM) has relied on the Eighth Circuit's ruling to justify its refusal to pay a licensing fee for fantasy rights. Keep in mind that this is just one federal circuit court's opinion on the issue, and the decision adds even more confusion to right of publicity law than already existed.

Sunday, January 20, 2008
Attorneys for Gabbibo Respond

Last month, I blogged about an unsuccessful lawsuit brought by Western University University in an Italian court against Mediaset, an Italian company, for trademark and copyright infringement, claiming that Gabibbo, the mascot for the satirical show "Striscia la Notizia," is a carbon copy of Big Red, the Western Kentucky mascot since 1979, and which is depicted to the left. The short post excerpted a post by CNBC's Darren Rovell, which provided a preliminary description of why Western Kentucky lost the lawsuit.

Italian attorneys for Gabibbo's creators read my post and wrote me a letter. The letter goes into depth about the legal issues involved in the case, from the perspective, of course, of those representing Gabibbo. Below are the relevant portions of their letter, as well as the 8 images contained in the letter (the first set of four images are of Gabibbo, the second set displays images of four characters who are arguably similar to both Big Red and Gabibbo).

* * *

[On December 11, 2007, the Judge of the Court of Ravenna, division of Lugo] ruled that both the Big Red (whose relevant exploitation rights within the European territory has been licensed, on a non-exclusive base, from company CEI to company Adfra together with the rights of other 56 American universities' mascots for the lump sum of US$ 7,500!) and Gabibbo may be protected by the law on copyright with regard to and within the limits of their personal features being much different the one from the other: sport mascot the former, TV character the latter (“a very weak personality the former, a stronger one the latter”).

The esthetic forms have been accurately assessed, following a long and sophisticated investigation, recognizing relevant differences described in the decision.

From such investigation, it appeared that the graphic image of the Big Red does not show the minimum creativity required in order to protect it and that its external form recalls the graphic idea of puppets already well known in the cartoon world (Barbapapa, both morphological and conceptual identity ten year younger than the American mascot; Elmo, Gossamer, Jelly Belly, in addition to all “blobs” we deem useless to mention, without assuming any original feature.

Plagiarism has therefore been excluded, recognizing that the only element of contact between the two characters may be identified in their “external form” which, in any case, as above reported, has no “identifying feature” and is, on the contrary “repeating an already known idea”.

These are the true facts. Incredibly, the news – not yet confirmed – are circulating about a possible “appeal” against this decision. RTI, Striscia la Notizia and Gabibbo have nothing to fear from a possible appeal, as they have always been sure about the positive issue of the first grade. Of course, we do hope that after a deep reassessment of the issue ADFRA, WKU and CEI renounce to initiate again a risky and groundless lawsuit bereft of any reasons at least in fact and in law.

Stefano Longhini, barrister
Direzione Affari Legali
Reti Televisiva Italiana SpA

Saturday, January 19, 2008
Playing for the Coach or Playing for the School? A Modest Proposal

While I recognize that college sports are a corrupt and unfair sewer in many ways, I never have been on the bandwagon for radical changes such as paying players. But I would support the proposal that NPR's Frank Deford makes in this NPR commentary arguing that student-athletes should be able to transfer freely, without having to sit out a year, if the coach who recruited them leaves mid-contract to go to another school or to coach in the pros. (H/T: Civil Procedure Prof Blog, which linked to my post about the Rich Rodriguez lawsuit).

The argument against Deford's proposal--the player came to play for the school, not the coach--is verifiably false for the majority of athletes. The player is not ordinarily attracted by what the University of Florida has to offer as an institution of higher learning as compared to Florida State University or the University of Georgia. Players are lured by "the program." And that is inseparable from the player's personal feeling/rapport with the coach who recruits him. That is the person with whom is going to work closely for four years--more closely than anyone else he will encounter at the university. So you cannot really separate the coach from the school with respect to the player's choice.

And this is not without academic parallels, even for undergraduates. One of my dormmates freshman year was a music major (I think she was a cellist) who came to Northwestern specifically because of one particular faculty member. If that faculty member left, this student would have the option of transferring and might well do so. Although she chose to attend the institution of Northwestern, this prof was part of that institution; without him, this may no longer be the best place for her.

Now, the devil with Deford's proposal is in the details. For example, it is not clear why the coach leaving for another school is distinct (from the player's standpoint) from the coach being fired or the coach retiring. In all cases, the coach for whom he came to play no longer is there--and neither is a major reason he chose to attend this school. But to allow players to leave freely whenever there is a coaching change potentially creates too much instability and uncertainty for schools (schools, after all, invest resources in student-athletes in a way they do not invest them in my cello player). Of course, the option to transfer always is present and a new coach has to "sell" the inherited players. But that is easier to do if the player knows that transferring means sitting out a year.

But this is an interesting starting point.

Not Exactly Nostradamus

In December 2006, I predicted in this space that George W. Bush would be the next commissioner of baseball. Bud Selig had just signed a new contract but basically had promised to step down in 2009--right about when W would be out of his current job.

So much for accuracy. On Thursday, MLB owners extended Selig's contract another three years, until 2012. Bruce Reed at Slate says this development means Bush "just lost the job he has always wanted much more than the one he's in." Reed adds two considerations to the mix.

First, he relays a comment from 2000 by Doug Hannah, one of Bush's childhood friends, that Bush ran for president (the quotation was in a Vanity Fair article during the GOP primary) as a resume enhancer and that Bush really wanted (and still wants, perhaps?) to be commissioner.

Second, Reed suggests it is remotely possible that Selig and the owners do want Bush, but believe he would be too toxic to hire in 2009. The extra three years allows for a cooling off and makes for an easier transition.

Friday, January 18, 2008
Aaron Zelinsky's "Three Strikes for the National Labor Relations Act"

We received an excellent submission from Aaron Zelinsky, a 1L at Yale Law School, concerning the National Labor Relations Act and the steroids scandal in baseball. Without further adieu . . .

* * *

Three Strikes for the National Labor Relations Act

It’s baseball season again in Washington. Representative Henry Waxman is calling everyone from Roger Clemens to Bud Selig to testify about performance enhancing substances in Major League Baseball. For all the hype, these hearings are less likely to curb steroid use than the Nationals are to win the pennant. If Waxman is serious about combating performance enhancing substances in professional sports, he should propose modifying the National Labor Relations Act (NLRA) to allow the Commissioners of the major leagues to impose unilaterally performance enhancing substances testing. Overseers already have this power in the minor leagues and the Olympics. The pros should be no different.

Senator Mitchell’s report on performance enhancing substances in baseball suggests improvements for baseball’s testing policy. In particular, Mitchell calls for increased transparency of the testing process, independence for testing authorities, and greater frequency of unannounced testing, particularly in the off season.

The NLRA effectively blocks the adoption of Mitchell’s suggestions by making drug testing of employees a mandatory subject of collective bargaining. This means that the Players Association must agree to any change in testing. Needless to say, the foxes rarely seek stronger protection of the henhouse. In Mitchell’s words, the Players Association has historically “opposed mandatory random drug testing.”

Moreover, the policy behind the NLRA does not apply to pro sports. The general counsel of the National Labor Relations Board declared that “a drug test is designed to determine whether an employee or applicant uses drugs, irrespective of whether such usage interferes with ability to perform work.” Since, for many workers, drug use is unrelated to job performance, their unions have a legitimate interest in protecting their privacy rights. Such a rationale does not apply to baseball. Performance enhancing substances fundamentally undermine the players’ ability to perform their work; being clean is an intrinsic part of their job.

Congress should, therefore, modify the NLRA to allow the major league commissioners to impose unilaterally performance enhancing substance testing. Both the Olympics and minor leagues allow their overseers similar power. The mere presence of a union should not insulate the pros from such testing.

Modifying the NLRA is neither difficult nor unprecedented. The Omnibus Transportation Employee Testing Act of 1991 mandates that over 12 million employees in the transportation industry undergo random drug and alcohol testing.

Like workers in the transportation industry, the use of drugs in pro sports poses a public safety risk. Young athletes watch and emulate the pros. The National Institute on Drug Abuse estimates that hundreds of thousands of high school athletes currently use steroids each year. After Mark McGuire went public about his use of androstenedione, andro use in high school student increased tenfold the following year. Performance enhancing substances in pro sports pose a public health hazard that deserves congressional attention.

Some may argue that the commissioners will abuse their power to impose testing for performance enhancing substances. However, there is no evidence of abuse in the Olympics, minor leagues, or amateur sports where overseers have imposed testing unilaterally.

As any good ballplayer knows, the only important pitches are those ahead. Instead of focusing on the steroid use of the past, Representative Waxman should concentrate on the testing program of the future. Bud Selig should have the same ability to impose testing on the pros as he does in the minor leagues. David Stern should be able to test basketball players just as the IOC tests them. Congress should modify the NLRA to remove drug testing as a mandatory subject of collective bargaining and allow the commissioners to clean up their sports.

Aaron Zelinsky is a first year student at the Yale Law School. He can be reached at aaron.zelinsky[at]

Golf Week and the Noose: Context Matters

Dre Cummings discusses the new wrinkle in the Kelly Tilghman/Lynching controversy--the Golf Week magazine cover featuring a photograph of a noose and the headline "Caught in a Noose." Dre asks whether this "represent[s] a collosal lapse in judgment on the part of Golfweek editor Dave Seanor or is this a merely a nefarious attempt to grab attention . . ."

Let me propose a third choice: This was a legitimate and effective visual representation (after all, one picture is worth 1000 words) of the essence of a genuine public controversy that Golf Week was obligated (given its editorial focus) to cover. That noose is at the heart of the concept of lynching. Indeed, I would speculate that Kelly Tilghman forgot how central the noose is to the concept when she used the word as carelessly as she did. If we are going to have a public debate about what Tilghman did wrong in using that word (which we have had and must have, in arguing for her punishment), then the noose is and should be a part of that discussion--both verbally and visually.

As for PGA Tour Commissioner Tim Finchman's outrage, I think his agenda is revealed by a different part of the quotation in The Times, where he decries Golf Week "keep[ing] alive an incident that was heading to an appropriate conclusion." In other words, the PGA is outraged because it wants this to go away and does not want to talk about it anymore. But Golf Week (or any other magazine) has an obligation to talk about matters of public concern. And certainly, given the involvement of Al Sharpton and many others, this was a matter of public concern.

I title this post "Context Matters" because it does. A swinging noose, in one context, may reflect a true threat and should be punished. A photo of a noose in the context of a journalistic, political, or academic discussion of lynching (and thus the noose) is very different. Otherwise, I cannot include a photo of a burning cross in a historical account of the Klan or of the Supreme Court's decision in the first cross-burning case or a photo of a swastika or the entrance to Auschwitz in a story about Holocaust denial.

Update: Friday, 1:30 p.m. C.S.T.:

As Rick notes in the Comments, the magazine fired its editor today. Story here.

golfweek magazine and judgment

As the Kelly Tilghman maelstrom had begun to abate in connection with her Tiger Woods "lynch him in a back alley" blunder, Golfweek has just published the image of a noose in connection to Tilghman's ignorant commentary in this weeks edition of its magazine.

Does this represent a collosal lapse in judgment on the part of Golfweek editor Dave Seanor or is this a merely a nefarious attempt to grab attention for a weekly mag that distributes approximately 160,000 copies per, mostly to subscribers? The cover page reads: "Caught In A Noose: Tilghman Slips Up, and Golf Channel Can't Wriggle Free."

PGA Tour commissioner Tim Finchem weighed in with a statement in the New York Times decrying the imagery of a "swinging noose" as "outrageous and irresponsible." Seanor defends the cover as not intending to be “'racially provocative,' but to illustrate a noose tightening around Tilghman, the Golf Channel and golf."

Last week, vigorous debate was heard on this blog and around the country in connection with the imagery and psychology of "lynching" and "the noose" in the United States, particularly in connection with the historically racialized practice of lynching African American citizens, mostly in the South, in our nation's fairly recent past. National attention has been shined on the incident by Reverend Al Sharpton and the Golf Channel's highly publicized suspension of Tilghman resulting in both platitudes and harsh criticism. Few images in the U.S. are more insulting or racially charged than the noose.

Thursday, January 17, 2008
Randy Moss Hit With Temporary Restraining Order

Last night, I wrote a piece on concerning New England Patriots' wide receiver Randy Moss' newfound legal troubles. I hope you have a chance to check it out.

Wednesday, January 16, 2008
When Academic Interests Meet: Thank you, Rich Rodriguez

I got involved in this forum because of the overlap between sport and one of my primary scholarly interests--free speech. It is nice to see one time in which sport meets my other scholarly interest--civil procedure geekiness.

West Virginia last month sued former football coach Rich Rodriguez in state court in West Virginia seeking to recover on a $ 4 million buyout clause in Rodriguez's contract, after the coach left WVU to become head coach at Michigan. Today, Rodriguez removed the case to federal court; Rodriguez argues there is federal jurisdiction over the case because he was, at the time the lawsuit was filed, already a citizen of Michigan. The theory underlying diversity always has been that an out-of-stater should be able to avoid the likely local bias by proceeding in federal court, where judge and jury are deemed to be insulated by local passions. I guess that is even more true for a football coach who just jilted an entire state. As Prof. Steve Gensler said in a list serv comment, "I guess Rich Rod didn’t like the idea of facing a Monongalia County jury (or judge)."

The key is how quickly Rodriguez was able to change his citizenship. The petition alleges that in the eleven days between his hiring (December 16) and the suit (December 27), Rodriguez became a Michigan citizen because he and his wife registered to vote in Michigan, obtained Michigan drivers' licenses, set up home mailing address and telephone, and set up a business office in the new state. Pretty quick moving. But it is not clear generally how long it takes to become a citizen of a new state; can it be done in less than two weeks? There also are indications in news reports (and from sources teaching at WVU) that the Rodriguezes have not sold their house in West Virginia, that their children still are in school in West Virginia, and that Mrs. Rodriguez, at least, is spending her time in W. Va.

I already have made copies of the petition to distribute to my students.

Update: Thursday, 10:50 a.m.:

Putting aside whether Rodriguez is manipulating citizenship, an e-mailer points out two potential problems with the petition:

1) The Removal petition nowhere asserts that Rodriguez is a citizen of Michigan, only that he has changed domicile to Michigan and had "established residency in the State of Michigan at the time this lawsuit was commenced." Now the latter goes into the analysis of the former. But the statute (and the rules) look solely to whether the "Party is a citizen of ____" and that is missing. Oversight?

2) It is not clear this case is removable to federal court. The petition alleges "the Plaintiff is a resident of the State of West Virginia." But the plaintiff is the West Virginia University Board of Governors, which may, in fact, be an alter-ego of the State of West Virginia, rather than a citizen of West Virginia. State law provides that the Board "is the governing body with the mission of general supervision and control over the academic and business affairs of West Virginia
University. The West Virginia University Board of Governors (hereinafter, the "University") is a resident of the state of West Virginia."

The diversity statute only gives jurisdiction over actions "between citizens of different states" and case law since the late 19th century makes clear that a state is not considered a citizen for purposes of that provision. Given the above language about being a "resident" of the state, does that also make it a citizen for diversity purposes? Or does it remain an alter-ego of the state?

Tuesday, January 15, 2008
Illinois Joins NJ, FL, and TX With High School Drug Testing

Yesterday, the Illinois High School Association's Board of Directors voted to implement a performance enhancing drug testing program beginning this fall for state championship competitions. The Board's vote came after reviewing the results of a survey sent to all 765 member schools on December 11, 2007. Curiously, only 414 schools (54%) responded to the survey that was due on Sunday, with 294 schools (72%) voting in favor of implementing a testing program.

Illinois becomes the fourth state to implement such testing, following New Jersey, Florida, and Texas. Illinois is unique in that its implementation is not the result of state government action, but rather a voluntary choice by IHSA member schools, albeit with an affirmative response from less than 40% of the membership. The IHSA still has to select a collection agent and lab, determine the exact scope of the testing, select a medical review officer, and determine the relative penalties for the athletes and schools after a positive test. Interestingly, the aforementioned survey reveals that while the schools (the voting was done by either the principal or athletic director) were heavily in favor of making the athlete ineligible for testing positive (97% in favor), the schools were against forfeiting a post-season team award for the same offense (60% against).

See Board of Education v. Earls, 536 U.S. 822 (2002), and Vernonia School Dist. 47j v. Acton, 515 U.S. 646 (1995), for the legality of such testing.

Monday, January 14, 2008
Preview of Tomorrow's Congressional Hearing with Major League Baseball

Earlier today, I wrote a 12-part Question/Answer for that previews tomorrow's Congressional hearing featuring former Senator George Mitchell, Bud Selig, and Donald Fehr.

I address such topics as:
  • The types of questions likely to be asked of Mitchell, Selig, and Fehr
  • Whether there will be finger-pointing by Selig and Fehr
  • Whether Roger Clemens' name and situation will come up
  • Whether Donald Fehr will argue against new testing
  • Whether other pro sports leagues will be following the testimony
  • Whether Congress should be spending its time on the topic of steroids and baseball and how might this topic influence the 2008 Presidential Election
It's lengthy (about 2,500 words), but I hope you have a chance to check out the Q/A.

Update: Rick and I are interviewed by the Washington Times' Mark Zuckerman in his Jan. 15 article "Hearing Could Be Influential."

Update 2: On Tuesday, I wrote two additional pieces for

Tejada Facing Trouble with Investigation

MLB Could Punish Teams, Too

The thorny and challenging issue of disabled track and field athletes

Track and field competition presents unique challenges when it comes to how to handle disabled athletes. The latest example is the international track and field governing body's decision to bar from the Beijing Olympics "Blade Runner" Oscar Pistorius, a South African double-amputee who participates in sprint racing using prosthetic limbs. According to the IAAF's press release:
It is evident that an athlete using the Cheetah prosthetic is able to run at the same speed as able bodied athletes with lower energy consumption. Running with prosthetic blades leads to less vertical motion combined with less mechanical work for lifting the body. As well as this, the energy loss in the blade is significantly lower than in the human ankle joints in sprinting at maximum speed. An athlete using this prosthetic blade has a demonstrable mechanical advantage (more than 30%) when compared to someone not using the blade.

IAAF Council has been able to review the full report and has decided that the prosthetic blades known as “cheetahs” should be considered as technical aids in clear contravention of IAAF Rule 144.2. As a result, Oscar Pistorius is not eligible to compete in competitions organised under IAAF Rules.

Pistorius has vowed to appeal the case to the Court for the Arbitration of Sports. Presumably, the resolution of the case will turn on whether the IAAF has applied its own eligibilty rule accurately, rather than on any particular jurisdiction's disability protection laws.

Still, it's interesting to speculate as to how would this case be resolved under the famous Casey Martin decision were the IAAF subject to American anti-discrimination law? Remember that in the Martin case, the majority of the court opined that while riding a cart might be an advantage for most golfers, it would not be in Martin's case because he would be more exhausted than others even if he were allowed to ride a cart. Might the same logic allow an athlete who has no legs to use a device that would give an unfair competitive advantage in most instances but not in light of a particular athlete's condition?

Another great example of the challenging issues raised by disabled track and field athletes can be found in a case published last year, McFadden v. Grasmick, 485 F.Supp.2d 642 (D.Maryland 2007). In that case, a federal court considered the issue of whether not counting a wheelchair track athlete's performance in assigning "team competition" points at track meets violated the ADA. Since very few schools competed in wheelchair racing, the track association decided that it would be an unfair competitive advantage for the athlete's school. The district court denied plaintiff's request for an injunction.

Hat tip to UT 3L Matt Budds for bringing the IAAF ruling to my attention.

New Sports Law Scholarship

New this week:
N. Jeremi Duru, Friday night ‘lite’: how de-racialization in the motion picture Friday Night Lights disserves the movement to eradicate racial discrimination from American sport, 25 CARDOZO ARTS & ENTERTAINMENT LAW JOURNAL 485 (2007)

Arturo J. Marcano Guevara & David P. Fidler, Fighting baseball doping in Latin America: a critical analysis of Major League Baseball’s drug prevention and treatment program in the Dominican Republic and Venezuela, 15 INTERNATIONAL & COMPRARATIVE LAW REVIEW 107 (2007)

William N. Wright, Note, Not in whose name?: evidentiary issues in legal challenges to Native American team names and mascots, 40 CONNECTICUT LAW REVIEW 279 (2007)

Saturday, January 12, 2008
Sad Injustice

Another African American superstar athlete has been prosecuted by the Justice Department for perjury arising from the Balco Grand Jury. Now Marion Jones, winner of five Olympic medals and probably the best female athlete of our time, has been sentenced to 6 months in prison by a federal judge in New York.

The Judge’s remarks in sentencing Jones are curious and reflect the double standard facing celebrated sports figures. On the one hand, the Judge said: “I want to make [people] realize no one is above the law,” reinforcing the myth that these athletes are too often given passes by the media and the law when they get in trouble. In fact, just the opposite is more likely to be the case as evidenced by the reason the Judge gave for handing out such a harsh sentence to someone with no criminal history and who is not a threat to anyone. “Athletes in society,” he continued, “have an elevated status. They entertain, they inspire and perhaps most importantly, they serve as role models for kids around the world. When there is a widespread level of cheating, it sends all the wrong messages to those who follow these athletes’ every move.”

What is that? Jones, who is still nursing her seven month old, has to spend six months locked away from her family and the rest of us because she disappointed the kids who idolized her? Where in the sentencing guidelines is that factor?

I said it before and I will say it again. This Bush-Gonzalez Justice Department does not have the moral authority to sentence anyone, but particularly African-Americans, to prison for not telling the truth about whether he or she took performance enhancing drugs. Not when the President commuted the sentence of Scooter Libby who was convicted of lying about an issue that led the country into an unjustified war and when the Attorney General himself had trouble telling the truth under oath before Congress.

Should Role Model Status Influence Sentencing Decisions?

I woke up this morning and read a very disturbing quote made by Federal Judge Kenneth Karas who gave Marion Jones the maximum sentence recommended under Jones' plea deal:
The use of performance-enhancing drugs "sends all the wrong messages to all who follow the athlete's every move," Karas said, apparently referring to children. "Athletes in society have an elevated status. They entertain, they inspire and, perhaps most important, they serve as role models."
Wow! I can't ever recall a situation in which "role model" status of the defendant had any impact on a judge's sentencing decision. And there is good reason for that.

First, role model status is entirely subjective and personal. Some people have role models who are close family members. Some consider their role models to be firemen, teachers and doctors. Why do we insist that athletes are in fact role models to our children? Just because my kid's favorite baseball player is Manny Ramirez and he wears Manny's jersey, doesn't mean that Manny is his role model. My kid doesn't want to be like Manny nor do everything that Manny does. If Manny is ever implicated in wrong doing, my kid will simply say "that's really sad and unfortunate." Regarding external forces that have an influence on my kids, athletes taking steroids or lying about taking steroids is not even remotely on my list of concerns, which includes among other things exposure to violence/sex on television, video games and surfing the internet. In any event, I certainly don't want judges deciding which criminal defendants they "deem" to be role models.

Second, even if Jones is in fact a role model, what relevance does it have with regards to a sentencing decision?! Do teachers and firemen receive harsher sentences because many consider them to be role models? Role model status influencing public opinion is one thing, but influencing judges imposing prison sentences is another....

Friday, January 11, 2008
Did Clemens' Attorneys Violate Ethics Rules with Phone Conversation?

Attorney Paul W. Schwarzenbart of the Madison, Wisconsin-based law firm Lee, Kilkelly, Paulson & Younger e-mails me a really interesting thought:
I am curious why no question has been raised (that I have seen anyway) as to whether Roger Clemens' attorneys violated attorney disciplinary rules by (apparently) engineering and participating in (by listening in) on the subject telephone conversation with Brian McNamee.

This conduct seems to skirt very close to the line of what is permissible under ABA Rule 4.2, which provides:
Model Rules of Professional Conduct. Transactions With Persons Other Than Clients Rule 4.2 (Communication With Person Represented By Counsel)

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.
Has there been any suggestion that this rule is implicated by the attorneys' conduct? (Perhaps it does not apply in TX and NY?) As a practicing attorney, the tactic strikes me as slimy, whether or not rising to the level of a technical violation.

Thursday, January 10, 2008
Rebuking Excuses to Lynching Tiger Woods Jokes

The Golf Channel reporter Kelly Tilghman stated the only hope young professional golfers have in competing with Tiger Woods would be to “lynch [him] in a back alley.” The three common excuses have risen again to urge that such comments are not really such a big deal: (1) Tiger Woods is not offended so neither should we, (2) the comment was a joke, without ill-intent, and (3) any punishment is only misguided mislabeled “political correctness”.

As to whether Tiger Woods’ lack of offense excuses her from offending others I offer the following analysis. If the comment was made at a private dinner party between the two of them, then fine. If Woods was not offended from that interaction between the two of them the only parties to the discussion can resolve the matter. But the comment wasn’t just between the two of them. The comments were part of what is shared with the public. The Golf Channel (TGC) is in the business of sending messages on public airwaves designed for the public. On air reporters like Tilghman comprise the talking face of TGC. More importantly, they are paid professional wordsmiths, hired to use professional judgment consistent with the business plan of TGC. The target of the crafted messages therefore is not just the individual (Tiger Woods), but the public and audience from which TGC has the privilege of reaching and profiting from through an FCC license. The FCC only gains its authority statutorily through Congress, and Congress gets its authority from the votes of the public. TGC and PGA’s business plan is to gain more audience share through inclusiveness – bringing more minorities and women into its market share tent. Antithetical to that business plan is any comment that links lynching with African Americans, particularly with the current Jena 6 and related incidents within present memory. So such comments are not about her personal relationship with Woods, whether Woods would be offended, or political correctness. Most fundamentally, this was an error of professional judgment by a person who is paid to craft words carefully. [1]

And whether Tilghman intended harm by the comments is not nearly as important as the consequences of those statements. The consequence of showing insensitivity to a group of the audience the company is trying to include is more important than her intent. We, in fact, will not definitively know her intent as there is no empirical test that proves it either way.

And saliently, none of the excuses can excuse a joke that ties lynching with an African American because it dismisses and insults those who care about unjustified brutal killings. Historians note that between 1889 and 1918, a total of 2,522 black Americans were lynched, 50 of them women.[2] There is nothing funny about people who were hanged and often burned alive. In far too many instances the crime was petty offenses such as stealing a cow, arguing with a white man, or attempting to register to vote. No one was punished in the South for taking part in a lynching until 1918.[3] As a writer opined, “The real purpose of these savage demonstrations is to teach the Negro that in the South he has no rights that the law will enforce.”[4] Lynching has been recorded at least into the mid-1930’s, which is within the lifetime of millions of African Americans, some of whom probably watch TGC or the media reports about it. Lynching jokes would not be funny to those who lived with it, those who actually identify with those who suffered or those who simply want people treated fairly in this country. So unless we want to be the United States of Amnesia, we should remember this part of our history with the same sober-mindedness we would have at a funeral, or at a museum that commemorates fallen heroes from other types of atrocities. None of which, like lynching in America, is funny.
[1] TGC suspended her, but the terse announcement I read did not state whether the suspension was with or without pay. If with pay, then shame on TGC and its lack of honesty, sensitivity and hypocrisy. If with pay, then but for the time it took to decide, it remains on my remote’s auto favorites.
[2] Georgia

[3] Id.
[4] Id.


Lynching Tiger Redux

As the story has enlarged nationally, the Golf Channel announced yesterday that it would suspend Kelly Tilghman for two weeks in connection with her casual statement that the only hope for young up and coming professional golfers to compete with the great Tiger Woods would be to "lynch [him] in a back alley."

The Golf Channel's official statement reads:

"While we believe that Kelly's choice of words was inadvertent and that she did not intend them in an offensive manner, the words were hurtful and grossly inappropriate,'' Golf Channel said in its statement. "Consequently, we have decided to suspend Kelly for two weeks, effective immediately.''
The national debate on this subject of "hurtful" and "grossly inappropriate" words (i.e. "lynch") has become vitriolic. Some argue that political correctness has run amok and if the individual saying the words meant no ill will, then let it go. Others contend that if the target (i.e. Tiger Woods) is not offended, then no harm done. Still others argue that the ignorant use of the word "lynch" in connection with an African American in the United States is deeply offensive and a punishable, if not fireable, offense.

The Golf Channel has chosen for now that Tilghman's choice of words in this context is a punishable offense.

Wednesday, January 09, 2008
BCmesS: The 2008 Edition

The BCS has gotten old, or at least talking about it has. No, it's still not legal. No, the accomodationist reforms introduced in 2006 have not solved things. No, it's not all that interesting. After crowning a two-loss "champion" this week, the BCS system is something not even its creators and enablers seem to love.

In what can only be described as a cynical ploy to appease disgruntled boosters, UGA President and NCAA Executive Committee leader Michael Adams has now abandoned his 20 years of opposition to a playoff system and called for reform. SportsProf has some good analysis, concluding by asking the question, "What does the BCS really do?" (Think about how the lack of any real answer to this question would translate in terms of procompetitive justifications for trade restraints in an antitrust case).

In other amusing BCS news, Neil Abercrombie (D-HI), my former U.S. representative, has demonstrated why it is useful to have a law degree if one wants to be a lawmaker, declaring last month that the BCS was an unconstitutional antitrust violation (HT Lion in Oil via Hawaii Supreme Court blog):
Hawai'i Rep. Neil Abercrombie is prepared to propose a bill that would declare the Bowl Championship Series as unconstitutional and call for a playoff system.
* * *
Abercrombie said a system that limits automatic berths to six conferences "is restraint of trade. The automatic qualifiers are still taking care of themselves. I'm saying regardless of what good intentions may be behind this, it's restraint of trade. It's illegal. It's unconstitutional."
The amusing part of this is, of course, the labelling of anything one doesn't like as "unconstitutional."

The sad thing is that things almost worked out for the perfect antitrust claimant against the BCS this year. For a time, it seemed possible that Hawai`i would go undefeated yet miss the BCS. Had they done so, the WAC or the school itself would have been ideally situated to raise an antitrust objection to the current system. For better or for worse, the team made one of the big games, losing its ability to challenge the current system in court. Although last year's Boise State WAC victory over Oklahoma was thrilling, it may have been a fluke. From here out, one can safely expect that any WAC or Conference USA (and maybe even MAC) team which manages to end up undefeated will be given a BCS spot and then destroyed on the field. Once a school has a choice between the easy money for playing bowl patsie, or the long saga of litigating against the BCS cartel, it's hard to turn down the money.

Who is the next best hope? It seems to me like the Mountain West Conference has both the biggest gripe with the current system (among non-BCS conferences) and the best chance of effecting change. For some reason, the Big East is an "automatic berth" conference, and the Mountain West isn't. This is the case even though the top teams in the Mountain West (BYU and Utah) could likely compete in the PAC-10 against everyone but USC (which is a pretty fair description of most NCAA schools). One scenario: an undefeated Utah or BYU team gets a BCS bowl, while the other team, with one loss (to the undefeated team) and a win over a PAC 10 school, is excluded in favor of a one loss (or two loss) SEC team. Or what about a situation where an undefeated BYU or Utah team is excluded from a national title game in favor of a one or two loss "tie-in" school? Remember, BYU and Utah are not Hawai`i -- BYU has won a national championship and Utah has won a BCS game and gone undefeated. To be sure, Utah did not complain too loudly when it was excluded from the title game at the end of the 2004-2005 season (when both title contenders, as well as also-excluded Auburn, had perfect records), but should the Mountain West be happy with just a BCS berth every 2-3 years? It would seem that the current system would make it virtually impossible for a non-automatic berth conference team to ever earn a spot in the title game.

"Lynching Tiger Woods"

The issue of race and sports law was a hot topic in 2007 and continues to be in 2008. At the beginning of each new year, along with personal resolutions, I optimistically hope beyond hope that our nation, the United States of America, can take transcendent steps toward alleviating our festering race problem. I always hope that the fields of sports and entertainment might lead the way. Individuals of all different races and stripes join together as teammates to work for common causes on high school, collegiate and professional sports teams.

Unfortunately, barely hours into 2008 we were hit with what can only be described as a breathtaking breach in the world of sports and race equality. A few days ago, while broadcasting a PGA tour event, Kelly Tilghman, the Golf Channel’s main play-by-play anchor commented nonchalantly to co-anchor Nick Faldo when discussing Tiger Woods’ dominance on the Professional Golf Tour that his competitors should “lynch Tiger Woods in a back alley.” Tilghman stated on live television that today’s young players should “lynch Tiger Woods.”!?!

Seriously? In 2007, with nooses making despicable appearances in Jena, Louisiana and at Columbia University; In 2007 where a young black woman, Megan Williams was kidnapped, tortured, sexually assaulted with cords and ropes draped around her neck in southern West Virginia*; In 2008 with the State of New Jersey offering a formal apology for its connections to slavery; In 2008, against the backdrop of a not-to-distant-past national crime against African American citizens in the form of the illegal and reprehensible practice of lynching (as chronicled recently on CNN) – We are presented with a 2008 sports anchor casually dropping the phrase “lynch Tiger Woods in a back alley.” Seriously?

Of course, Tilghman and the Golf Channel have rushed forward with the requisite apologies and have reached out to Woods personally to apologize to him directly. And, as per the usual, the formal Tilghman apology asks forgiveness from those viewers that “may have been offended by my comments.” This "may have been offended" language suggests that Tilghman does not appreciate nor recognize the depth and reprehensibility of her comments. She seems to say: these comments were certainly not meant to be racist and terribly objectionable and if one happens to be an individual that is easily offended, well then my intent was not to offend.

Woods, famous for his multi-culturalism, with an African American father and Thai mother, is one of the most prominent athletes on the planet. As a black man, in a supremely dominant professional position, he is apparently not immune to the racist specter of lynching. In my mind, this is an unforgivable offense by Tilghman -- at least as egregious (if not more so) as Don Imus and his racist reference to the Rutgers female basketball team members as “nappy headed ho’s.”

Perhaps most offensive to some is the Golf Channel’s tepid apology and apparent continued support of Tilghman as its anchor. Certainly Tilghman’s employment contract with the Golf Channel contains a provision that constitutes breach if inflammatory or racist views are espoused over the airwaves. If so, the question remains: what is the Golf Channel waiting on? Imus was shown the door.

Simply stated, any reference in this country to the lynching of a black athlete cannot be excused away. Ever. And certainly not in 2008.

A few questions: Will Tiger Woods respond? The Sports Law Blog contemplated this last year. Will the U.S. public care? The Sports Law Blog contemplated this a few days ago in the context of Roger Clemens and the assassination of Bhutto.

* Megan Williams is a 20 year old African American woman from Charleston, WV. She went missing and for six nightmarish days was held hostage in a mobile home and tortured by six white perpetrators, four men and two women, in Big Creek, WV. Her story became national news. An anonymous tip led Logan County Sheriff’s deputies to the property where her ordeal ended as she was able to limp to safety, arms outstretched as she cried “Help me!” Williams was tortured for days, sexually assaulted, beaten and forced to eat animal feces. Her captors choked her with a cable cord and stabbed her in the leg while calling her racial slurs, pouring hot water over her and making her drink from a toilet.