What a Lawyer Can Do About the Ryder Cup

Not good news from the K Club. Once again the United States got drubbed by the Europeans. Nice piece on the ESPN site spreading the blame. Okay, maybe they have better golfers than we do, but American lawyers can't be beat. Here's a lawyer's solution to the American problem:

1. The selection process is terrible. How do I know? American golf stars include John Daly, Fred Funk, Fred Couples, Corey Pavin, Justin Leonard, Davis Love, Tim Herron, Brad Faxon and Billy Andrade, none of whom were on the team. Wouldn't a selection of players from this list have helped the U.S. team more than some of the journeyman pros who made up half the squad? I'd take Daly over Zach Johnson: Daly's birdie/bogey binges are killers in stroke play but ideal for team matches. Players like Couples, Funk and Pavin, although past their primes, are still playing competitive golf. If you had to bet your fortune on someone to beat Henrik Stenson and David Howell in singles play, would you pick Davis Love and Tim Herron, or Vaughn Taylor and Brett Wetterich? Me too. Yet somehow the US picked the latter, who combined to lose 9 and 7. Rule Change #1: Institute a fan vote; these players are popular for a reason. I guarantee you the fans would have picked a better US team.

2. The selection process is flawed because it's based on the wrong measure. It's complicated, but in brief the current points system favors players who win or finish high in tournaments near in time to the coming Ryder Cup competition. Any tournament. So if a JJ Henry wins at Hartford he has a great chance to make the team, which he did and he did. The winner of the B.C. Open got more points than the runner-up at the contemporaneous British Open. In short, the system looks for the hot pro, and favors these backwater tournaments where few of the top players compete. But golf isn't played in streaks, and the Ryder Cup isn't played in seclusion. Great players can work on their games to prepare for big tournaments. Count only the big tournaments. To me, a player like Daly, with two majors trophies in his trunk, should be an automatic. Plus I like to watch him play. Rule Change #2: Ignore the BC Open; start with majors winners who are still playing well; then take winners of the "near-major" tournaments, like the Players Championship. If you need any more, take Fred Couples. Or just use a fan vote; we'll do the job.

3. For the Junior Ryder Cup matches, the kids must have a US citizenship. Oddly, the rules for the grown-ups are less conspicuous. At one point, Ryder Cuppers had to be "native-born," but the rules were eventually changed to citizenship, as best I can determine. Hey, lots of golf pros have taken US citizenship, including Greg Norman, Aaron Baddeley, and Annika Sorenstam. They want to enjoy our sunny tax havens, so let's make them wear those silly shirts and play for the team. Plus, the Ryder Cup is a big deal: exposure, fame, eventual fortune. We let it be known that accepting US citizenship makes one eligible for the Cup, then we'll see a team with Ernie, Vijay, and maybe even a Euro or two (Paul Casey lives in the US). Captain Tom Lehman needs to stop worrying about color-coordinating the outfits and start issuing passport applications. But be careful. We don't want to lose Tiger Woods to Thailand. Rule Change #3: let all Americans play. Ours is a generous country.

Journalists in Jail

It's facile to make the point that the journalists go to prison while Barry Bonds, the actual steroid user, gets to play baseball. It's coincidental that the grand jury testimony the reporters leaked involved the Bonds investigation, which remains incomplete. And it's incorrect to say that the reporters were "convicted" and were "sentenced" to eighteen months' imprisonment.

There has been no crime. There has been stubbornness and defiance. The reporters were ordered to reveal the source of the grand jury leak. They said they would refuse the court's order, and told the world they would go to jail to keep their promise to their source. In short, the reporters publically rubbed their defiance in the judge's nose, leaving him little choice but to employ one of the strongest powers of the trial judge: civil contempt. Because the contempt is civil in nature, and not criminal, the reporters will hold the keys to their cell. The very day they decide to answer the prosecutor's questions is the day their jail stay will end. This "sentence" may be no longer than a few days or weeks. If the reporters want to hold out, a relatively new federal statute limits the duration of their stay to eighteen months. They're lucky: until the statute was passed, the time limit was the life of the contemnor.

The problem is the promise the reporters made to their source. Their claim is that they promised confidentiality. That's a great idea, but very few of us can legally maintain confidentiality in the face of a grand jury subpoena. Lawyers can, as can clergy, spouses as to confidential marital communications, and now, recently, psychotherapists. That's about it. Reporters didn't make the list, even though it has long been a fervent wish and lobbying effort of journalists that they be accorded a privilege. "The public has a right to know," they say in pleading with legislatures to give them a privilege to protect the confidentiality of sources. But here is the public, in the form of the grand jury, asking these reporters for their knowledge. The right to know doesn't stop at the reporter's file cabinet.

Don't have sympathy for these guys. They made promises that they knew they could not keep.

Bush's League

It has been reported that Reggie Bush received upwards of $100,000, directly and indirectly, while in college from professionals seeking his representation. My comments:

1. College students may borrow money to pay college expenses. They can also borrow extra, if they choose, if only from the plethora of credit card offers with which freshman students are inundated. When students borrow, they are borrowing against future earnings. A college degree has value, hence making students a hot target for credit companies.

2. Reggie Bush happens to have had a large and immediate future earning capacity as a high NFL draft pick and endorsement magnet. If the NCAA allowed athletes to borrow against their future earnings, athletes could borrow from banks just like the rest of us, and not have to turn to agents and the like.

3. Many college athletes come from comparatively poor backgrounds. Even middle-income college students need some spending money, beyond room and board. Let's not call college athletes greedy, even if at times their first purchase (fancy new car) strikes us as somewhat extravagant and unduly conspicuous. Let's be realistic and admit that college kids need some cash. By the way, Reggie Bush used the money to provide housing for his loved ones.

4. Could we please end the bizarre caricature of the agent as sleazy, greedy, self-dealing and conniving? These people are often lawyers, are intelligent, make smart decisions, and perform well in a very, very competitive business. They are successful people, for the most part. Now look at the college student-athlete. They are kids, first of all. Some of them come from homes without two parents, and from difficult neighborhoods. Some of them suffer from an impoverished educational background. Even at college, they might not be surrounded by the most mature influences, at least not at the frat house. Bringing smart, successful people into contact with college athletes is helpful to the athlete. Yet smart, successful people don't show up at the door for free. By denying the athlete and agent a chance to do business, the NCAA denies athletes a chance to benefit from professional assistance. (The NCAA does allow some consultation, I should note, but it's limited, and should not be compared to the full benefits that can flow from a unrestricted lawyer-client relationship.)

5. If college athletes could be represented, what would happen? For most kids, nothing: college sports is the end of the line, and their lack of professional prospects would preclude early capitalization. But for stars like Reggie Bush, they might actively consider whether it better to go pro or spend one more year in school; they might take part of their future earnings at an earlier age; they might even endorse products. They might even stay in school longer. If Bush is making good money as a college junior, the tug of professional money would be mitigated. A top college program playing for the national title probably provides football stars a better platform for fame and endorsements than does toiling for the pro team that drafts them. Usually those teams are losing teams, lacking the complementary players (blockers) that help make the running back look good. Reggie Bush gained five yards on six carries last game. He won't be a star much longer if that keeps up.

How to Define Baseball (Part Three)

Maybe the California court believes it true as a empirical proposition that batters at the collegiate level do actually expect beanballs. If so, the court should have told us how often beanballs have to occur for the "reasonable batter" to impliedly assume the risk of getting one in the head. But in my last post I suggested that courts pose empirical questions without really trying to find empirical answers, and that they do so all the time. In other words, putting aside the actual answer to the question of the expectations of the average batter, the more plausible observation is that the California court chose to define "baseball" to include beanball. The interesting question is why.

Several reasons suggest themselves. One, a problem the opinion raises, the court may have been concerned about the introduction or intrusion of tort liability to sporting activities. Tort liability for wrongful pitches would involve judges and juries assessing the unstated intentions of pitchers. It would also involve asking if the club or coach followed the proper standard of care in training the pitcher, and did not negligently employ a pitcher with adequate control so as to avoid wild pitches. So the introduction of tort law would put a premium on control pitchers over hard-throwing but comparatively wild pitchers, and perhaps would introduce a measure of self-dealing into game decisions (as coaches might put less effective but better-control pitchers on the mound, even if the team interests were otherwise, in order to avoid personal liability). In short, a mess.

Two, the court might have picked the rule it did because opposing teams can better (than courts) minimize the frequency and danger of brushback pitches. By concluding that the batter "assumed the risk" as a matter of law (primary assumption of risk), the court was effectively saying that the intentional harm done by the pitcher would result in no legal remedy. The batter would be left to self-help, a private remedy. Often courts relegate tangible and substantial harms to private remedy (which is to say no legal remedy at all). The batter's remedy is retaliation: the pay-back pitch where his teammate throws at an opposing batter. Crude, but effective. In short, the rule of no remedy makes sense if the teams can together minimize the joint costs of batting (by working together, under the implicit threat of retaliation, to take care not to unnecessarily throw at opposing batters). The alternative to teams working out their problems is to ask a jury, looking back at the event, to decide over the need for retaliation on their behalf. The California court chose to leave the remedy to the players.

Armchair Empiricists (Part Two)

Previously I explained the California court's decision in the case where a batter sued the pitcher for intentionally hitting the batter in the head. The court held that the batter "assumed the risk" of being struck by a pitched ball, even intentionally. The interesting question is whether or not the court was right.

The usual approach to questions of this type is for a court to wonder whether or not people in this situation (batting in a baseball game) reasonably "expect" beanball pitches. This is a factual, empirical question, and the court's answer to this question was derived from anecdote: the court's opinion recites various instances of beanballs and statements concerning beanballs and concludes that beanballs are within the common expectation of batters. At best, this form of offhand empiricism is a poor substitute for the real thing. Do batters truly expect beanballs? Should someone sample them for their opinion? If so, what degree of a shared opinion would suffice for a court to decide that beanballs are in fact "normally expected"?

Grand empirical pronouncements based on anecdote, if based on anything at all, permeate legal decisions. I don't think courts actually care about the true empirical answer: in other words, even if some enterprising social scientist were to present a court with convincing evidence that batters do not to any significant degree expect a pitcher to throw at them intentionally, I don't think the California court would change its decision. Maybe its reasoning, but not its decision. Courts do not really care what actual people actually expect. Indeed, now that this decision has been handed down, as a matter of law, at least in California, the intentional beanball is within the field of risks that batters assume.

Courts don't care about these empirical questions they pose, and I'll argue next that they shouldn't care. The purpose of legal decisions is not to describe reality; there is a large prescriptive component, one that aims to shape reality as much as describe it. We'll see how the court prescribes "baseball."

What Is a Sport? (Part One)

No better question could start a sports law blog. Football is a sport; so's the discus. Is golf? Darts? Horse racing? (For the jockeys too?)

Surprisingly, sometimes seemingly academic issues need to be resolved by a court of law. The issue came up last spring when a baseball pitcher for a California junior-college team hit an opposing batter on the head, splitting his helmet and causing injury. Because the pitcher's teammate had been hit the previous inning, the purpose of the pitch was seemingly retaliatory. (Curiously, the appellate decision doesn't mention whether or not the pitcher, on cross-examination, admitted to throwing at the batter intentionally. I would think the plaintiff's lawyer would have spent some time on this issue and would not have had too much trouble in eliciting this confession. If so, I wonder why the California Supreme Court chose to treat the issue of "intentional hitting of the batter" as a hypothetical.) One defense offered by the County, which operated the college and hosted the game, was that the batter, by choosing to play in a baseball game, "assumed the risk" of being thrown at by an opposing pitcher, even (hypothetically) if the pitch was aimed at his head in anger and intentionally.

California divides the doctrine of assumption of risk into two: primary and secondary. Under the latter, the pitcher in this case would owe the batter a duty of care (here a duty not to negligently or intentionally injure the batter) and the question would be whether or not the batter knowingly exposed himself to the risk of the pitcher's failure to meet that duty. But the under the former, "primary" assumption of risk doctrine, the pitcher owes the batter no duty of care at all. Being thrown at is just part of the game, and no matter what the pitcher intended or of what the batter had knowledge, no liability attaches.

The California Supreme Court played hard ball, applying the doctrine of primary assumption of risk to hold that, as a matter of law, a pitcher intentionally throwing at a batter is part of the game, and thus one of the risks the batter assumes when he steps into the box.

Playing Little League for Keeps

In the last inning with a one-run lead, the youth baseball coach in the championship game of a 9-10 age league had his pitcher intentionally walk the opponent's best hitter. He did so to get to the next batter, a weaker hitter and cancer patient, who struck out to end the game. Big-time commentary ensued, and it wasn't nice. The coach was called a jackass, and that's on MSNBC. He was called worse in the unconstrained blogosphere.

Sorry, I'm with the coach. Albeit with some qualification. I've coached youth baseball at this exact level and others, higher and lower. At certain levels, and it differs by skill level, the games become competitive. And I'm not making an argument here: the games actually become competitive in the sense that the score is kept. At lower levels, score is not kept. These levels are separated by ability, not just age, so that older children with less developed skills might play in a noncompetitive league, and more skilled younger players play at the competitive level.

Once score is kept, then coaching strategy matters. The kids with the best arms get to do most of the pitching, the best fielders play infield, the weaker players hit toward the bottom of the lineup and rotate in the outfield. Now for most coaches, in a routine game and at this very young level, players will rotate so frequently that most kids get a fair chance to play most positions and in roughly equal measure. But this was the championship game. If the league doesn't want competitive games then why was it awarding a championship? When I coached a 9-10 team we rotated players all over the field, usually. But with that said, clearly some players with certain skills got to play more of the key positions in the key moments of some games than did certain other kids. It's just realistic. Not every kid can pitch a baseball for a strike, and no one enjoys a "walkathon," least of all the players. And when the final game came to be and we found ourselves playing the team with which we were tied for first place, I changed my strategy: instead of my usual rotations, with most kids pitching just an inning each and playing all over the field, I threw my two best pitchers for three innings apiece, ordered my lineup to group the best hitters at the top, and rotated the less-skilled players in the outfield. As did the opposing coach. And we won, narrowly, and my players piled all over each other in celebration. Parents can pretend it's all non-competitive and say only the coaches care about winning and these volunteer coaches are jackasses and so forth, but in my coaching experience, kids always know the score. I might add that it's always the parents who don't contribute one bit who are the first to call the coaches names.

My qualification is this: I would never order a batter intentionally walked in a youth game. And one of my teams was once beaten in a key divisional game by the third home-run by a batter we couldn't get out, so I had the chance. One of my coaches even suggested the walk, but I wanted our pitcher to challenge the batter and learn from the encounter. With that said, I've seen other managers order walks, and I completely support that decision too. It's not a moral decision, it's a baseball decision, balancing the team's goal of winning with the individual player's need to develop and improve. Sometimes you let the player swing on three balls and no strikes, sometimes not. It's a baseball decision.

Winning games is considered bad form by some people. They're wrong; winning is a good thing. It's the best goal for the team, because it alone teaches players the importance of sublimating their personal needs for the good of the whole. Every kid I've ever coached profits from trying to win. In my experience, kids always want more for themselves: part-time players want to play full-time; outfielders want to play infield; infielders want to catch; catchers want to pitch; and the pitchers want to pitch more. Without the goal of winning, why shouldn't every kid get to take turns at pitching, just throwing ball after ball until the league-limit of runs is walked home? The team goal of winning explains to children why, at this point in their development, their talents are needed elsewhere, and that the best thing for the group is that another kid plays that position. It's a hard lesson, but an important one. In my experience, kids easily perceive why their role on the team is what it is; it's the parents who just can't understand, no matter how patiently it's explained to them, why their little Junior doesn't get to play instead of that other kid.

I don't know all the details of this game where the coach ordered the walk. I wonder why, if the league was competitive, what has been described as a recovering but still-weakened cancer patient was allowed to participate. Was there no noncompetitive alternative for him? And why was he batting right behind the team's best hitter, nearly inviting the intentional walk strategy? Some youth sports leagues want it both ways. They want to be egalitarian, letting every kid play regardless of skills, while at the same time making the games competitive. Someone's going to get hurt, and here perhaps someone did: maybe the player, maybe the coach.

Guest Blogger Entries on The Sports Law Blog

Links to my posts as a guest blogger at The Sports Law Blog:

• What's wrong with Tony Kornheiser?
• Investigation Discovers College Athletes are Paid! Part One
  
• Investigation Discovers College Athletes are Paid! Part Two
  
• Investigation Discovers College Athletes are Paid! Part Three