Treating Players Like Property

Back in 1976, baseball's "reserve clause," which effectively bound a player to his club for his career, was coming to its end. Faced with the prospect of losing some of his star players for nothing, Oakland Athletics' owner Charles O. Finley sold Joe Rudi and Rollie Fingers to the Boston Red Sox for $1 million each and Vida Blue for $1.5 million to the New York Yankees. Commissioner Bowie Kuhn, however, voided the transactions as not in the "best interests" of baseball, specifically citing the danger to the league's competitive balance from the prospect of wealthier clubs purchasing players from comparatively poorer clubs.

Now thirty years later Kuhn's decision seems almost quaint. Today, free agency enables any club willing to dedicate the funds to stock its roster with players at all levels of quality. Clubs willing to pay even have advantages in trades: veterans in the final years of large contracts are often exchanged for inexpensive rookie or minor league players. Although rare, clubs can even compete financially for the Japanese star "posted" to the American major leagues.

So money is clearly the bottom line in player movement. Yet, dating back to the Fingers-Rudi-Blue sale, baseball still retains its limitation on the direct sale of major league baseball players. Kuhn set the maximum at $400,000 for all cash deals; Bud Selig has raised the number to (what I last understood to be) $1,000,000. Now, in the wake of the Matsuzaka deal, surely some struggling MLB clubs eyed with envy the neat $51 million the Red Sox mailed the Seibu Lions for the right to negotiate a contract with the young pitcher. Just as surely these struggling MLB clubs hold much of their capital in player contracts. These clubs (and these contracts) would be worth more if the clubs were able to sell contracts for cash to clubs willing to pay.

Why does MLB limit the sale of player contracts? I like the posting system for Japanese players so much, I think it's time to import something new.

1. It is axiomatic that an item of property is more valuable if the owner enjoys the right to sell it. Among other reasons, the ability to sell an item ensures a measure of liquidity and helps owners get out of acquisitions that in retrospect didn't pay off. Liquidity is good.

2. Let's say a baseball team is in contention late in the season; adding an additional bullpen pitcher could put the team over the top. But pitchers are expensive; so this team, to raise the funds needed to pay a pitcher, decides to sell some of its prospects. It then takes the sale proceeds and purchases the pitcher. Is this scenario problematic? Does it threaten the integrity of the game? Clearly this exchange could happen today (within the trade period) as long as the prospects were exchanged directly for the pitcher. No cash limitations would apply; no matter what amount the pitcher's compensation, the prospects could be accepted in trade.

3. But if the team with the pitcher wanted cash instead of prospects, the team could receive no more than $1,000,000. Or, if the team wanted prospects or players other than those available from the trading partner, then a third team with desirable and surplus prospects would have to be located.

4. Why prohibit a team from doing directly (exchanging prospects for cash to acquire the pitcher) what it may do indirectly (by trading the prospects for the pitcher) or more indirectly (by involving a third team and cash and extra players)? The fear, cited by Commissioner Kuhn, that relatively wealthy clubs would translate their financial advantage to competitive advantage seems trivial. Wealthy clubs have plenty of avenues to use wealth to their advantage. Wealthy clubs can and do buy players through free agency and through their willingness to absorb expensive player contracts in trade.

5. If MLB allowed the direct sale of player contracts, without commissioner-imposed cash limitations, the marginal competitive advantage would accrue to poorer teams, not richer ones. The Yankees and their like already have ample liquidity and can use that liquidity in free agent player acquisitions. Poorer teams hold most of their wealth in player contracts. Yet MLB's cash trade restrictions inhibit the liquidity of player contracts. To move a player to the Yankees for a pennant run, a team like the Royals must take their payment in players and prospects (and the permissible cash), and will be limited (practically speaking, given the difficulty of three-way trades) to players and prospects who are owned by the Yankees and who are in some sense surplus players for the Yankees.

6. In addition, trading a bullpen pitcher for some surplus prospects or players is dicey business, given the failure rate of minor league baseball players. Wouldn't the Royals (often) prefer to get a check from the Yankees for some number like the 20-50 million dollars paid this fall to the Japanese clubs in exchange for what appear to be quality major leaguers, and then be able to use that cash to acquire established major league players from any club where they are surplus? Liquidity is good, cash is king. The rich clubs have plenty of both. Allowing the poorer clubs to sell players would help, not hurt.

7. It costs a ton of money to develop young players, especially starting pitchers. Most prospects don't make it to the major leagues, never mind major league stardom. So investments in developing young players are risky propositions. Which clubs are better able to absorb the risk inherent in investing in prospects? The wealthy teams. Yet the current system basically makes the poorer teams carry this risk, as they trade their established players for uncertain prospects instead of for the cash to acquire more proven players. A risk is a cost. So, in effect, the limitations on cash deals makes the poorer teams carry risks they may not want; the restrictions on cash make the poorer teams poorer.

8. The result of poorer teams carrying the risk of prospects is that the poorer teams inevitably function like farm clubs. Look at it this way: today, the Red Sox draft players and send them to the farm club in Pawtucket. In a few years, once some of the prospects appear ready to help the parent club, the Sox call them up, sending new draftees to take their place. That's the farm system. Now change the name Pawtucket to Kansas City and what's the difference between a farm club and the Royals? Both take prospects and develop them and exchange them for more prospects. The Royals, unable to trade the best of these prospects for cash will always draw poorly (who wants to see a AAA team lose so often to superior major league teams?) and so will always be poor and so will always have little choice but to perpetually take back inexpensive prospects in trades.

9. Except for very sure things (Jonathan Papelbon), wealthy clubs like the Red Sox will never want to bear the risk of prospects. The large profitable market the team has created for itself in New England means that the club's and the league's revenues will be maximized by putting proven players on the field to produce perenially competitive teams. Even the Royals profit from this arrangement, given revenue sharing. So it may well be that the Royals willingly play the role of the farm club; just food for thought. In other words, one could argue that MLB restricts the sale of players in order to make the Kansas City's of the league into de facto farm clubs. But this would be odd given the vast farm system MLB already has and given that the continued profitability of the revenue-sharing clubs depends in part on rival teams like the Royals fielding competitive teams.

10. Even as a perpetual farm club, a team like the Royals would still be better off if it could sell players for cash, if only to pour that money into a greater number of prospects, furthering the odds of some of them paying off while they were still comparatively underpaid. MLB also prohibits the alienation of draft rights, which also impoverishes those clubs that hold the highest draft positions (the biggest losers, usually poorer clubs). The right to alienate property is a valuable attribute of property ownership. Why does MLB continue to impoverish itself?

The Costs of Climbing

The story of the stranded Mt. Hood climbers is an unmitigated tragedy and dampens this holiday season. One climber has been found dead; the other two remain lost. Just today, the county sheriff has called off the search. Here's the detailed story of the search. The rescue effort was very impressive, involving hundreds of people, state and local government agencies, including law enforcement, and many volunteer organizations. Although it's unpleasant whenever a tragedy generates a debate, a debate nonetheless has arisen over the costs of the rescue. In my mind it's a legitimate question, although we discuss it at the risk of appearing callous. Nonetheless, here goes.

Should lost climbers have to pay for the costs of rescue?

1. First, the term "costs" needs a little definition. Many of the rescuers are volunteers; they certainly incur costs (time, materials, etc.) but they and their organizations are willing to give away these costs. We don't charge recipients for the generosity of volunteers, so these costs should not count. (They count in a social sense, of course, and should figure into any discussion of prohibiting certain sports or activities.) The salary of the governmental employees at all levels must also be included as costs. The claim that some climbers' groups have made that these costs should not count because "they're just getting paid anyway" goes too far. All employees on salary are "just going to get paid anyway," but that's not a reason for me to refuse to pay the plumber when I call him to the house. The lost climber is using the sheriff's services as much as I am when I call the sheriff about my neighbor's dog. Should I have to pay for the sheriff's services with respect to the dog? Yes, and I do when I pay taxes.

2. So we probably need to develop a rough taxonomy of costs, dividing those that arise from an ordinary and expected function of public employees (calling cops about barking dogs) and those that are in some sense extraordinary. Sometimes we get to use government services at no additional cost (police for local matters) and sometimes we get assessed added amounts (sidewalk built in front of our house). I'm thinking a police officer driving around town looking for a missing kid is an ordinary and expected police function; Air National Guard personnel firing up the Blackhawk helicopter ($5000 per hour operating cost) seems to fit in the "extraordinary" category. We could think of other taxonomies (such as whether the government action is directed at a public or private benefit, or general or specific beneficiaries), but no matter how we define the issue, we'll need to identify those functions that might be subject to surcharge, were we to impose one. We'd also need to figure out whose functions "count": surely we should include the salary of the airplane pilots circling the mountain; probably also the deputy at the command station; but what about the dispatcher coordinating agents from the stationhouse? Should we include office overhead? Since overhead is a charge routinely included in business charges, the presumption would be to include it here too.

3. Next, along with defining what we mean by costs, we'd also need to come to some agreement on what sports or activities should be subject to a rule requiring reimbursement of rescue costs. Let's start with mountain climbing. Should all climbers have to pay, or only those who attempt notably dangerous climbs, as did the climbers who are lost on Mt. Hood? They attempted to climb the north face; I'm told this is a dangerous climb any time, made particularly risky when attempted in the winter months when severe snow and wind storms often arise. Although these climbers from New York and Texas were experienced, I live in Oregon, and locals have told me (and I've read) that these particular climbers were flat-out foolish to attempt this climb. I see Mt. Hood from a distance nearly every day. It looks so peaceful, yet it and other parts of Oregon's beautiful but rugged wilderness claim lives with regularity.

4. Many people, not just climbers, need to be rescued from Oregon's forests. These forests are dense and vast; the federal government alone owns about 60% of Oregon, with much else owned by the state. Oregon's a big place inhabited by only 3.5 million people, most of whom live in Portland or the Willamette Valley to its south. The rest is all forest, mountain range, high desert, rugged coastline and wilderness. It's a huge outdoor playground, but a seductively dangerous one. So, that means, just here in this neck of the woods, Oregonians have to rescue (and pay to rescue) lost climbers, hikers, walkers, fishermen, hunters, boaters, surfers, kayakers, canoeists, dirt bikers, snowmobilers, mountain bicyclists and so on and so on. You name it: if you can do it outside (and it's fun), then people will do that in Oregon and some of them will get lost or in trouble. Is climbing dangerous? Sure, at least it seemed so when I read Krakauer's book on Everest. But so is a lot of this stuff. Even driving at night in Oregon's mountains and forests is risky, as the sad plight of the Kim family so testifies. Accidents happen.

5. Bad incentives loom either way. If we charge lost climbers the true costs of their rescue, climbers will perhaps choose not to ask for help even when it's needed, worsening their situation and making eventual rescue costs higher. But if we don't charge them, then we create incentives for inexperienced adventurers to get themselves in trouble without fear of financial reprisal. Probably these incentives cancel each other out; more likely the incentives don't matter much here at all. People do not usually gamble with their lives, at least not once the threat to the life becomes apparent, and so it's likely the rule of law is irrelevant to people's behavior. In other words, probably neither the skilled veteran nor the reckless adventurer genuinely believes he will get into life-risking trouble; probably both, once that trouble is apparent, will take every step to remedy it, despite the prospect of financial costs.

6. Let's not shrink from what requiring lost climbers to pay would mean. It means any one of the following: sending a bill to the rescued climber, or to his estate, should he not be found; requiring the climber to post a bond before departing; folding the costs of rescue into a license fee, or mandatory insurance, or permit, or user's fee, etc. Regardless of whether the climber pays before or after, the climber is still paying. A user fee and the like simply socialize the costs across a broader group, although it's limited to those who specifically engage in activity that at least bears a generic resemblance ("climbing") to the risks to which the Mt. Hood climbers subjected themselves. The costs could alternatively be socialized across the entire taxpaying public through a marginal hike in taxes. Just raising taxes is not a bad move here: all of us have some probability (however minute) of being in need of rescue some day, so we could plausibly consider a tax payment to be the equivalent of paying a user fee. But of course that is an overstatement: serious mountaineers and certain "thrill seeker" types put their lives more in danger than does, say, the average law professor, who's more likely to die from falling out of his chair than from tumbling off a cliff. One side note: if we do assess a seriously high user fee or insurance requirement on climbers and others, then to the same extent we are shutting off the comparatively indigent from engaging in outdoor recreation. Since outdoor camping, hiking, etc. has traditionally been the "vacation of the poor," imposing a fee for usage is problematic.

7. A few states (Oregon, Colorado and Utah) by law do create the possibility of assessing rescue costs. Oregon's statute is a joke because it caps reimbursement at $500 per individual. The Blackhawks use that much in oil. It also requires only negligent climbers to pay. Plus the statute isn't even written properly. Here, take a look at it, if you want to practice law for a minute (it's ORS 401.590, so you have to scroll down some). The statute just says "a public body may collect": who collects and how? The statute doesn't even provide a cause of action or assign liability. Anyway, no one's going to go to much trouble to collect a mere $500. Plus the climber can substantially negate a claim of negligence by showing he was carrying a cell phone (utterly useless, since we haven't yet filled Oregon's national forests with cell phone towers) or one of those locator devices, which could help in the right conditions, assuming trackers were nearby. (Let's not make the recent Mt. Hood climbers an example of the need for locators; those men were far out of reach of rescuers due to weather.)

8. Another issue to sort out is the definition of rescue itself. Just as we might ask climbers to be reasonable or non-negligent in assuming the risks of a climb, so we'd ask the same of rescuers. When should a rescue begin and end? What costs should be undertaken? If the climber is to pay, he might have an interest in a check being written on his account. In the days of the Oregon's settlement, people who did not purchase fire protection didn't get the benefit of the fire department's services. Some people rationally chose to bear the risk of fire themselves, just as today some of us choose to bear the risks of earthquakes. What if a rescue attempt is made but later shown to be unnecessary when the bemused climbers show up back at camp? What if the climbers didn't want the expenditures made on their behalf? On the other hand, what if the rescue is stopped, when modest further efforts might have been fruitful? Should the climbers still have to pay? You see, if we start collecting payments from climbers, and these payments become $50,000 instead of $500, then the survivors might want a judge or jury to second guess the conduct of the sheriff. Today we cheer rescuers. Do we want to make them defend their conduct in a court of law?

9. Finally, if we're going to seek reimbursement from lost climbers, we have to ask for what purpose. If we want reimbursement to refill depleted public coffers, then the present limitations on recovery in Oregon law make no sense. Oregon taxpayers undertake these expenditures on behalf of climbers who do not pay Oregon taxes. A far more substantial user fee or reimbursement charge would be needed even to begin to comprise true rectification. On the other hand, instead of compensation, state authorities may seek reimbursement in order to make these risk-loving people think twice about their intended conduct. If that's the case then we should make sure the collection fee is equal to all the costs of the rescue, even those borne willingly by volunteers. The person causing the social problem should consider all the social costs his conduct will generate in order to decide if the conduct is truly worth it.

10. Collecting the costs of rescue is virtually impossible to implement. The difficulty of identifying the people to be charged, the sports to be covered and amount to be collected are so significant that the problem defies resolution by a rule of law. Law has its limts. If we really think some of these sports or activities are so dangerous that no reasonable person would attempt them, then we should ban them, much as we have bare-knuckle fighting. But if we're going to permit people to use our wildernesses for recreation, then impliedly we're letting people risk their lives on the promise that we'll make some plausible effort, or even an extraordinary one, to rescue them should trouble arise. Lots of people risk their lives, in the wilderness and elsewhere. We need to allow them that latitude. Indeed we profit from it, as those who push the envelope of human capacity help the rest of us learn about the contours of the envelope and thus live more safely within it. With the benefits from thrill seekers come the costs.

Fourth Down Debate

A nice debate is forming in the sports world over the paucity of NFL coaches "going for it" on fourth down. A good summary of the discussion with all the necessary links appears at The Sports Economist. It all starts with a paper by economist David Romer that argued that NFL coaches do not maximize their team's chances of winning. Instead of attempting to gain a first down (or a touchdown) on fourth down, they opt for a punt or field goal attempt. So, duly informed by Romer's analysis, how have NFL coaches responded? By punting even more. Boo.

Michael Lewis of Moneyball fame has the lastest word, writing in the pages of ESPN The Magazine that the reason that coaches decline to opt for the winning strategy is that they don't want to appear reckless to their fellow coaches, who regard the punt as sound strategy and who will likely hire them into their next job. The Sports Economist figures that we'll see coaches become more emboldened to take "job risks" (by going for it on fourth down) once they gain tenure. (I would also think one could see a similar story with college coaches.)

But still the question nags. Why are football coaches neglecting a proven and relatively simple winning strategy? Is it fear of blame and ridicule, as Tuesday Morning Quarterback has argued, should the "unusual" strategy backfire? Is it peer pressure from the coaching ranks, as Michael Lewis suggests? No and no. TSLP is not influenced by peer pressure. My thoughts:

1. Romer's paper is clever and enlightening, but I did have a problem with his using third-down data to estimate the outcome on fourth down were an offense to go for it. Romer had no choice but to use third-down data simply because fourth down non-kicks are so rare. But one problem with using third down to provide information about fourth down is that the defense on third down as a practical matter has to prepare for a wider range of offensive plays: on fourth and short yardage, in contrast, an offense is very unlikely to put the quarterback in the shotgun, although this formation is common on third down. Defensive formations lack the variability of offensive formations, and thus the effectiveness of the defense will not be diminished due to down and distance. As a result, the average yards gained on third down might be higher than they would be on fourth down because the offense on third down can take advantage of the variability of play calls and the implicit requirement that the defense prepare for that variability. In sum, defense, on fourth and short, should just blitz into the backfield.

2. Romer acknowleges this problem with his use of third downs, but argues that it is unlikely that the defense has an advantage on fourth downs that it lacks on third downs. (He states that it "seems unlikely that the defense has substantially more scope than the offense to affect the distribution of outcomes.") I think it is likely. Offenses in short yardage situations will have to show the defense a formation that, at least to a small extent, threatens a pass, but in reality the defense knows that the play will nearly always be a run, most probably one up the middle, or perhaps a short pass. Defense, on fourth and short, blitz.

3. For a comparison, we all see how difficult it can be for an offense to score a running touchdown when the line of scrimmage just a few feet from the goal line. Many times in those situations we see defensive linemen and linebackers advancing into the offensive backfield to stop the ballcarrier. Why is the defense often so effective in making these goal-line stands? Why don't the lineman penetrate into the offensive backfield on every play? Defenses are effective because in a goal-line situation the defense "knows" what is coming. Options are reduced due to the small size of the field the defense must cover and due to the offense's reluctance to attempt a risky pass. The "goal-line-stand" defensive advantage is replicated whenever a team goes for it on fourth down and short yardage. In effect, fourth and short yardage becomes a "small field," no matter where the play originates.

4. The defense has an advantage on fourth downs that it lacks on third down. If I'm right, then Romer's use of the third-down data will lead him to overestimate the likelihood of success of going for it on fourth down. If I'm wrong . . . nothing happens. This is a blog.

5. The other problem with third-down data is that third down, although pressurized, requires less of the offensive players than does fourth down. Third down is important; a failure will typically lead to a punt. But fourth down is crucial: failure might lead to extraordinary field position for the opposing team. Players get more nervous. Offense is harder than defense (that's why all the "skill position" players are on the offensive side of the ball). Nervousness can show itself in errant passes, fumbled handoffs, or dropped passes. Just yesterday I saw a receiver on fourth down drop a perfect pass. See, that proves it.

6. Romer did analyze available fourth-down outcomes and found no significant difference between third and fourth downs. So probably I'm wrong. But he admits the fourth-down sample size is small. So maybe I have a point.

7. It could be that NFL coaches have some intuitive feel for the problem of using third down results to predict fourth down outcomes. The downs may differ in some fundamental way that impacts the likelihood of making a first down. I'm not saying Romer's analysis is wrong; it's probably not. But I am saying that NFL coaches may be responding intelligently to Romer's analysis by rejecting it on the grounds of inconclusiveness or dubiousness about the use of third downs. When in doubt, punt.

The Brawl: What's Happening to American Sports?

By now everyone's heard and (through the miracle of the internet) seen the latest NBA fistfight. In this one various members of the Knicks and Nuggets went at if for a couple of rounds. Commissioner David Stern has issued suspensions, and they are big ones. Perhaps even an arrest should be made?

Had this fight happened in a bar, criminal prosecution might indeed be on the horizon. But it didn't. It happened in a public sports arena, punches were thrown, spectators could have been injured, and younger fans witnessed real violence. Should the players have been charged, or even suspended? Nope. Sports are different.

1. Sporting contests condone actions that would be condemned elsewhere. Tackling comes to mind. The players consent to be touched or even hurt, and that consent in effect forms the defense to what otherwise would be an intentional tort or wrong. By not outlawing football, as it has with certain other sports, our country allows players to consent to being touched and grabbed and so forth in ways that cause pain. In a way unlike any interaction in a bar or other place, sports legally permits participants to be rough.

2. This is a tricky proposition: roughness is part of the sport, even when it violates the rules of the sport. Unnecessary roughness is a football penalty, yet even if intentional is still a regular and expected part of an NFL game. The same could be said for illegal blocks, facemask grabs, roughing the passer, and so forth. Other sports too feature regular events that, though a transgression of the rules, are part of the game: the pitcher who intentionally throws at a batter, the hockey player who hits with his elbows and a loose stick, and . . . the basketball player who defends his goal in an aggressive manner to send a message of some sort to the other team. It's out of line and against the rules, yet we've all seen it and will see it again next time we tune in to a professional game.

3. When these "expected illegalities" occur, at times opposing players will retaliate in kind. We can't expect players who are already subject to rough (but legal) contact during the course of a game to quietly withstand this additional provocation. Sometimes, they will respond in kind. Response is natural, it's not too surprising or even all that unexpected. How often do fights break out in hockey?

4. I can remember (from the glory days of TSLP's youth) the Celtics and Lakers trading punches, and the fighting players not even getting thrown out of the game! Yet Carmelo Anthony, a big NBA star people will pay to see, gets 25 games. What has happened?

5. Should we outlaw contact sports? If not, then we should be willing to tolerate a modicum of extra-legal violence. We can't have it both ways. If a person directly in front of you taunted you, as the "victim" Mardy Collins of the Knicks appeared to do to the "perpetrator" Carmelo Anthony, many of us would respond with a punch, as did Anthony. (And by the way: That's not a sucker punch, either, as it has been portrayed: it was the first punch. Fights have to start somehow.) Tru, the law condemns throwing the first punch; at the same time, the law condemns "fighting words" too, implicitly recognizing that the latter can lead to the former and partially justifies the former.

6. Today we punish Anthony punching Collins. Soon we'll punish, to the same extent, the hard foul that started the whole thing. The punch is a plausible, if not common, result of the hard foul; the two are inseparable. Once we start drawing a line, the line always moves back. Why? Because when we draw lines without plausible principle, then the lines will move in search of a principle. The line will move to proscribe all conduct not sanctioned by the rules of the sport. That's a principle, so that will be the line.

7. But it's not a good principle. What's wrong with drawing the line at the edge of conduct permitted by the rules of the sport? Why not suspend players who attempt to injure or are recklessly aggressive with respect to other players by throwing a baseball at them or tackling them illegally or fouling them unnecessarily? Let's go further: assume we did, as many propose, use the rule of law and arrest these brawling players, much as we would someone who acted this way outside the arena. Here's the problem: sports depends on players who will go to the limit, tackling hard or fouling hard or pitching inside, even at the risk of exceeding the limit. Football depends on defenders going all-out to make a tackle, without worry or hesitation. Make the penalty for excessive conduct a substantial one, and players won't go near the limit.

8. The brawl didn't bother me much; the reaction to it does. I think part of this is the NBA's response to the non-stop publicity ESPN and its fellow outlets give to this sort of thing. Not long ago, a fight between NBA players might have been, at most, part of the highlights package. Now, a single fracas gets its own "Outside the Lines" introspective. This incessant negative publicity demands a response; our spectating of sports is itself changing sports. You know, the observer effect.

9. Can we please knock it off before the NBA gets to be Italian soccer? Tune in some night to an Italian league game. A great sport (yes, soccer is) has been (for this spectator) pretty much ruined by players looking to get their opponents in trouble, flopping around and falling to the ground in what looks like Lady Macbeth's death scene. Can we say all this playing hurt is not very manly and let it go at that? Aren't we all glad Vlade Divac has retired?

10. So let's cowboy up, America. We want contact sports, which means we should be willing to accept the occasional fistfight that goes with it. Our penalties for fighting should be moderated; throwing the offender out of the game (or, if at the end of the game, the next one) is a time-honored response to game misconduct. It should have been enough for Anthony as well.

Running Up the Score, Again

Now Lincoln University's basketball team ekes out a 201-78 win over Ohio State-Marion (I'm assuming that's not the Ohio State that Greg Oden's attending). That's good, because I had Lincoln giving 100 points. Anyway, perhaps needless to say, the final score earned the attention of the news media and others who search the daily scores for signs of "unsportsmanlike conduct." Some complained personally to the winning coach, an ex-Marine who was reduced to tears by the helpful feedback of these folks hell-bent on making sure sports players are nice to each other. The media outrage was led by Mr. Tuesday Morning Quarterback himself, Gregg Easterbrook of ESPN. Easterbrook has made it a running theme of his (otherwise wonderful) column to identify and condemn instances of these lopsided travesties that threaten "the integrity of the sport." I've been on Easterbrook's case before, if you really want to kill a lot of time at work.

How can someone so bright be so wrong (him, not me)?

1. It bears noting that these were college teams, and the leading scorer for the victor is 28 years old. Not children going home crying. From the sound of the news accounts, the losers thought little of their loss, and were surprised by the public reaction. If the "victims" weren't upset, why should we be? No social impact here; this was just a basketball game.

2. Lincoln's 201 point total set an all-time DIII scoring record and a record for three-point goals. If Easterbrook has his way, I guess all current scoring records are permanent. What coach wants to risk setting a record and seeing his name ridiculed by the Worldwide Leader in Sports?

3. How does a basketball team avoid lopsided victories? It's not easy. The coach can call off the press (apparently Lincoln's coach did this but not soon enough), pass the ball around on offense, walk the ball up (again, done by this coach but perhaps not soon enough). Even with such tactics, the game itself rewards superior players: that's the point of it. Should a player shoot to miss? Not take open shots, even from three-point distance? Not take the ball away from an opposing player even when he dribbles right in front of you? Let him score? At some point, and we're close, the teams might as well go home. Calling off the press and passing the ball around is customary for teams winning big. But it's no fun playing ball if you can't play defense or take open shots when they present themselves. As the coach said, when the game got lopsided he put all his scrubs into the game and used the game for instruction and practice. Should we complain if his team practiced perfectly?

4. Losing by over 100 points is a painful loss. But not as painful as having your opponent forego open shots or play no defense in order to avoid the lopsided victory. The first is a deserved loss; the latter is an insult, and says to the loser that the loser doesn't really belong on the court with the winner. The first treats the loser as an equal; the latter treats the loser as a child.

5. Can we really stare at the final score of a game and condemn the coach for unsportsmanlike behavior? We weren't at these games. Maybe the losing team had no discipline and refused to play defense. Maybe the losing team took plenty of good shots but missed them. Maybe the losing team, also using the lopsided game for practice, was trying to push the ball to practice uptempo basketball? And so on, hypothetically speaking. Lots of explanations could account for a lopsided final score, all of them consistent with good sportsmanship and fair play. In the Lincoln game, the losing team had but six players, and apparently did not play in the same division as Lincoln. If you set up a lopsided prize fight, someone's going to get killed. Perhaps the tournament organizers need to share some responsibility.

6. With that said, the winning coach shouldn't have been pressing in the second half. So he's guilty, but only of bad judgment. Usually these mistakes are corrected during the game, as one coach has a word with the other. In my experience, when the issue is brought to their attention, coaches will call off the press. Coaches are busy coaching their players, trying to get them to play their positions correctly; in a blowout they are not as aware of the score as fans or others might be. The losing coach (who somehow was a player-coach in this game) has a responsibility too. My point is, let's not make more of this slight than needed. Easterbrook goes way too far in terming the coach's conduct "bottom-of-the-barrel," "without class," and "bad sportsmanship." This is pretty personal. Easterbrook complains often of parents who take sports too seriously. Maybe that's what is happening with his comments.

7. The best solution, as I've said before, is to turn off the scoreboard and run the clock. Perhaps that solution, a standard happenstance in youth leagues, would not work in a college game. Why not? Because we want to know the final score in part to determine all-time scoring records and the like. We can't have it both ways. Either the final score matters or it doesn't. If it matters, then we give teams inducements to run it up and set those records, and we shouldn't complain when they do. If the score doesn't matter, then the losing team can concede the game, turn the scoreboard off, and just enjoy playing basketball.

Is Posting of Japanese Baseball Players Legal?

As I write, reports are that the Red Sox and Scott Boras, agent for Japanese baseball star Daisuke Matsuzaka (DM), are oceans apart on coming to terms. I have heard that, if the negotiations do not result in a deal by tomorrow's deadline, Boras might challenge the Japanese-American posting system in court, in an effort to have Matsuzaka declared a free agent or get some other relief (perhaps re-posting) that allows his client an opportunity at a more lucrative deal.

So here's the 51.1 million dollar question: could Boras win?

1. Let's assume Boras decides to file a claim in American court under the federal antitrust law, arguing that the posting system amounts to an unfair restraint of trade. (I suppose a suit in Japan under Japanese law is another option, but since I know nothing about Japanese antitrust law, I'll just ignore the possibility. Hey, it's my blog.) The first obstacle is baseball's historic antitrust exception. The exception comes from a rather quaint (and factually wrong) judicial decision that held that baseball did not constitute interstate commerce (even though every other professional sport does). The Congress over the years refused to overturn this wacky decision, so the courts reaffirmed the initial decision on the basis of Congress' implicit decision. Whatever. In 1998 the Congress did revoke the exemption to allow MLB players to sue over agreements "directly relating to or affecting employment of major league baseball players," but nothing else. So, Boras' first issue will be to argue Matsuzaka qualifies as a "MLB player" and that his suit involves an employment issue.

2. The first issue is a close one, and provides a real hurdle for Boras. Boras' argument is that, although DM is not currently an MLB player, Matsuzaka is seeking to enter the MLB, and so, like rookies, free agents and other players who are not yet in the league but seek to be in the league, he should be considered a MLB player under the act. I'm thinking of the Wood vs. NBA decision, which held that even a player not currently in the bargaining unit is nonetheless represented in the bargaining unit. However, there's a meaningful distinction between concluding that a non-member is in effect a member of a bargaining unit and saying that a non-member fits under a federal statute that carefully limits standing to "MLB players." Boras' contention will be that, if DM is denied standing to challenge the Japanese-American posting agreement, then effectively no one could challenge it (since American players cannot be posted to Japan). Maybe Boras can prevail here, maybe not. See you in court.

3. Easier to satisfy is the second requirement: that DM's suit involves an employment issue. The Japanese-American posting system appears to qualify, since it could have been the subject of bargaining when the current CBA ends at the end of this season (although of course the issue is moot with the new CBA extension). Clearly it's hard to classify DM's issue as anything else that is listed in the 1998 act. Stipulation city.

4. So now let's assume that Boras can overcome these first two "standing" issues and get his case heard in a federal court. If antitrust law were to be applied to the posting system, the application would be somewhat relaxed: courts have long recognized that strict application of antitrust laws to sports leagues makes no sense. Teams, although separate entities, must cooperate in order to run a joint enterprise (the league) and this cooperation will entail a degree of anti-competitive behavior (such as revenue sharing, restrictions on player movement, etc.) that would be condemned if practiced in other industries. Courts instead apply the rule of reason to assess whether or not this cooperative act of the MLB clubs has the "ancillary effect" of unduly or unreasonably restraining trade. In this case "trade" would refer to the tendency of the posting system to reduce output (reduce the number of Japanese players able to enter the US) and thus frustrate consumer (fan) demand for the best players. In short, the test will be whether or not the posting system enhances or inhibits consumer welfare. Testifying experts, begin your billing.

5. There are at least two ways of looking at this issue. One view starts with the fact that DM is currently under contract with the Seibu Japanese baseball club. Seibu owns DM's contract, much the way the Red Sox own David Ortiz' contract. In theory the team that owns the contract can customarily trade that contract for whatever price it can get (although MLB clubs are somewhat limited in how much cash they can receive in trade). So, the fact that the Red Sox are willing to pay a large amount to Seibu (without any of that money going to DM) doesn't matter, although that fact nettles Boras. Acquiring any player (short of a free agent) involves both some acquistion fee (in the form of traded contracts) plus the assumption or renegotiation of the acquired player's contract. In this view, the posting system is no more a restraint of trade than is the practice that player contracts can be moved among teams via trades consented to by the respective teams. DM, it's our country, love it or leave it.

6. The opposing view focuses on one peculiar (and perhaps unforeseen) aspect to this posting system: the system can be "rigged" to effectively curtail or even eliminate the possibility of player movement. Here's a wild hypothetical: assume MLB had two highly wealthy and unusually competitive teams. Assume a very valuable Japanese player became eligible for posting. The posting rules allow for one of these rivals to bid wildly high for the player (just throw a number out there, maybe 50 million!), then knowingly offer a sub-market bid, knowing the player will likely reject the offer. The result? The player goes back to his Japanese club and is kept away from the rival for an additional baseball season. Hmm, it just might work, no? And if it did, well, now the Japanese-American agreement appears to diminish consumer welfare and thus restrain trade by keeping quality players out of MLB. Scott Boras, call your office.

7. Sure, DM could just try again next year. But what are the limits to the Red Sox' bid? Since the Commissioner is involved and seems to have some supervisory role over the bidding, I would assume the bid must be plausible in light of the financial assets of the bidding club. But given the Sox vast financial capabilities and large payroll, a very large number is very plausible. Who's to say that the Red Sox couldn't write $75 million on next year's anonymous bid sheet, just to keep the player away from the Yankees? And maybe, if DM really does want to spend some time in the major leagues, he'll have little choice but to accept the sub-market contract offered. Daisuke, try the lobster at Anthony's.

8. This posting system bears some comparison to baseball's annual waiver-wire claims. Under MLB rules, after the trade deadline has passed, only players on waivers may be traded (see, another restraint of trade). So the custom has developed where teams will place much of their roster on waivers so that either they can shed bad contracts (if a claim is made) or make a player eligible for trading. Alongside this custom has emerged another: that teams will make waiver claims on the best players not because they hope to acquire the player, but to keep the player from being traded to a rival. Only middling players make it through the waiver process. I think the Sox and Yanks do this to each other, pretty much every season. So there's a history of these clubs exploiting baseball's rules to thwart the aims of their chief rival. With the Matsuzaka episode, the greatest rivalry in sports has been taken to the international stage. One day, soon I think, each team will drop the charade of "friendly competition" and will align its interests with distant warring factions, using its finances and worldwide connections to funnel arms and mercenaries to allies. Then we'll really see the Sox and Yanks do battle. Let's settle this score once and for all.

NBA Draft Dodging

This article from Yahoo (I saw it linked on Hoopshype) tells us that Kentucky star center Randolph Morris is currently an NBA free agent, available for any team to sign. Given that he's 6-10 and apparently has ability that would place him in the first round of the NBA draft, were he eligible, it would seem inevitable that some NBA team will contact the player to find out just how much he likes going to school. "Let's see, what shall I do tomorrow, attend my 9:10 seminar on Social Developments After the Industrial Revolution, or cash a multi-thousand dollar bonus check and pick out a number for the back of my jersey?"

Did I mention free agent? Morris gets to be a desirable young center unconstrained by the NBA's rookie salary scale, by which salaries for drafted players are tied to draft position. For instance, assuming Morris were to enter the supposedly talent-rich 2007 draft, and assuming he would indeed be a first-round pick, somewhere around the middle-to-late part of the round, Morris would receive compensation in the amount of about one million dollars each year for two years, with team options for years three and four. Not bad, but I bet he could get a lot more as a free agent, unconstrained by the scale (assuming the salary scale was instituted to constrict salaries, not expand them). (See Dan Rosenbaum's paper on the amount by which rookies are underpaid for some statistical evidence.) Morris got himself into this enviable position by entering the previous NBA draft, going unselected, then returning to college.

What if everyone did this?

1. Not too many players could do this. Most players with NBA talent would probably get drafted, if only in the second round, and would be paid/cut accordingly. The player would, like Morris, have to be initially unattractive who blooms "late."

2. Still, I wonder why many draft-eligible players (19 years old plus one year removed from high school) don't register for the draft, knowing they will not get drafted, on the off-chance they grow into a first-round talent by their senior year in college. The NBA can only draft 60 players; if many college freshmen flooded the pool, most would escape the net. The players could then return to the peaceful serenity of the college campus, work on their games (and slip some studying in on the side), continually testing the NBA waters, looking for a paycheck. The college game could further its role as a farm system for the professional league.

3. What stops the "flood" of players is probably a coordination/collective action problem. Each individual player is afraid of leaving money on the table by entering the draft, going in the second round, and then being relegated to reduced salary and the threat of being cut. So each player opts out. If all did it, then the marginal-pro prospect would be much more likely to enter the draft, secure in the odds that he could escape undrafted. Hmm, maybe college basketball players need a guild of some sort? They do solve collective action problems.

4. What's wrong with the NBA bidding against the University of Kentucky for Morris' services? The plethora of professional leagues throughout the world are always available for a player like Morris should he choose to quit college; I would think players who have genuine professional prospects choose to go to college because they correctly perceive it as the primary path to the NBA, the top pro league in the world. (Okay, maybe they go for the education and enjoyment too, but certainly the historical role of college as the gateway to the NBA must form a significant part of their decision.) Don't think that the NBA will always win; players often choose to stay in school, usually to enhance their job skills in order to increase draft status. In Morris' case, because he may not re-enter the draft (as I understand it) Morris will stay in school to the point where he believes he will earn the maximum compensation from entering the league. In other words, like any other player, he will balance further job training against the prospective value of the contract. Unlike other players, Morris gets to make that decision on a continual basis (not just in the off-season) and gets much better information about the terms of his initial professional contract.

5. What about disruption to his Kentucky team? Sure, Morris might well take this disruption into account in weighing an NBA offer. But could anyone blame the kid if he took the money? Basketball is his career, most likely, and a college degree appears of negligible value to this career. Both in and out of the sports world, many young people drop out of school; a lot of them do so because job opportunities are presented to them. Sometimes it makes sense to take the job. It might for Morris. Many colleges give student-athletes academic credit for taking classes in basketball or in other sports-related subjects, on the theory that there is much to learn about sports that is amenable to crediting. So let's consider basketball as a class: should we be upset when a kid drops a class? It's just college, right? Would we be upset if a player sat out some games because his studies needed attention? No, in fact we would praise a coach who gave his players adequate time to pursue academic interests and complete academic requirements. (We love those graduation rates.) To me, there's no difference if Morris dropped a class to take a job, albeit in the NBA.

6. Is this kid any good? The Celtics could use a center, immediately.

White Men Can Jump

ESPN commentator and former star receiver Michael Irvin goes on one of ESPN's national radio programs and suggests, albeit in jest, that Tony Romo, the Cowboys (white) new quarterback is so athletic that he must have "some brother" in his ancestry, perhaps when his "great-, great-grandmother" had a romp in the hay with a black man. Here's one link, among many. Irvin's comments were crude, to be sure, but a fireable offense? Not if I'm the boss.

1. Irvin's comments recall to mind similar statements on "racial athleticism" a few years ago by NFL commentator Jimmy the Greek (which by the way caused an immediate and non-stop media firestorm and resulted in Jimmy's rapid job termination). For some, it also brings to mind Rush Limbaugh's comments on Donovan McNabb. The Limbaugh comparison is analogically incorrect: Limbaugh chastised the media (claiming that the liberal media wanted a black quarterback to succeed, and thus overrated McNabb), accusing the media of slanted coverage on a racial issue, and made no comment on race as a predictor of athleticism. Why Limbaugh's comments were considered a transgression, and what standard or piety they transgressed, escapes me to this day.

2. So should Michael Irvin get the Jimmy the Greek/Rush Limbaugh termination letter? No. Irvin gave voice to a stereotype, and stereotypes are by definition inexact and (at times) counterfactual generalizations, but it's a stereotype that (warning: stereotype coming; if you're easily offended, stop reading now) white people are repeating/generating/stating all the time: the stereotype of the non-athletic white man. What was the movie "White Men Can't Jump" but the embodiment of exactly that sentiment, a two-hour joke about white people's inathleticism and how that assumption allowed the white basketball player to trick money out of blacks who (operating on the same stereotypical assumption) bet they could beat him? Do you think a movie titled, "Black Men Can't Think" would have been green-lighted? No, we'd be up in arms, appropriately. So where was the anger over the "White Men" movie? Why do numerous sports commentators and bloggers and others casually repeat the pejorative "white stiff" in referring to tall, white basketball players? My point is, white people (by and large) have made the "inathletic white man" stereotype part of our contemporary lexicon. Irvin implicitly invoked it in his comments. If Jay Bilas (ESPN's NBA draft analyst) said of a white center, "he's not a white stiff," no one would give that comment a second thought. Why should Irvin be precluded from making such a comment because he's black?

3. Message for white people: stop invoking this stereotype. Not only is it demeaning, it's factually incorrect. You can't just scan the racial composition of the NBA and assume that whites are inathletic. Look at some other sports. You ever try surfing? Don't laugh until you've attempted to stand up on a board in a turbulent ocean. How about sitting on a dirt bike and flipping over backward through the air? (Yes, TSLP does that all the time.) How about hitting a good curveball? I could go on. I look at these sports and I see lots of whites doing these very difficult athletic activities very well. (Some) whites are very athletic; the same is true for (some) blacks.

4. Some black comedians, presumably for shock value or to get a cheap laugh, have more or less made the "N" slur part of their act. To me, it's like a comedian using the "F" swear: it's a crutch to cover up material that is not always funny. People can say what they want, I guess. What angers me is that the audience will laugh at non-funny jokes simply because the comedian filled his delivery with slurs and curses. Why not make the comedian come up with something that's actually funny? Yet we laugh, just as we're happy to repeat racial stereotypes instead of actually going to the trouble of saying something interesting and insightful about Tony Romo or a college basketball center. Michael's message about Tony Romo was not a product of racial thinking; it's a product of the stereotypes that Michael reads and hears about every day. Let's stop pretending we're offended.

5. Why is job termination always and reflexively the remedy of choice for every transgression of the political correctness law? Is this some kind of mandatory minimum? Don't we understand how serious this sanction is? Jimmy the Greek never worked in television again, as far as I know. Termination is the workplace equivalent of capital punishment. If we "throw the book" at Michael Irvin for this single episode, what are we going to throw at more serious offenders? Wouldn't a reprimand and some supervisory instruction suffice?

Hunting and the Law of Property

Ever been to Central Oregon? One of the best patches of earth in the country, without doubt. And the very best spot in the area is the gorgeous little town of Sisters. But it turns out that in this seeming western utopia, all is not well, not always. Even endless outdoor recreational opportunities can lead to trouble. Here's a story of "elk stealing," I guess we'd call it, where two hunters join in downing an elk, and disagree over the ownership of the animal.

In a nutshell, here's what happened: Hunter One wounds an elk, to a mortal degree (his view); after the wounding, the elk runs off, and is eventually downed by Hunter Two (apparently a rascal from Sisters), who quickly tags the animal and commences field dressing. Hunter One shows up, claims the animal as his own; tempers flare, and Hunter One grabs his . . . pen and writes the account linked above. The lesson of his story, imparted to his son (who had accompanied him on the hunt) and indirectly to the reader, is that Hunter Two's conduct had violated the "ethics" of hunting and thus brought shame upon the otherwise fine inhabitants of this little cowboy nirvana in the mountains.

Just a minute, there, partner:

1. Although it's hard to tell, from the newspaper account it seems that the elk ran off quite a ways after the first shot. I'm not an elk hunter, but that fact seems inconsistent with the claim that the elk was mortally wounded. Hunter One's account concedes that mortally wounded elk don't run much. If the elk was not in fact mortally wounded, and Hunter Two in fact imparted the mortal blow, then Hunter Two has a proper claim to the animal. Clearly Hunter Two had an obligation to finish the wounded animal off; it's inhumane to prolong suffering.

2. In the eyes of the law, the hunter who deals the mortal blow to the animal has legal claim to the animal. This rule of law (called the law of capture) comes from the law of natural resources, and makes sense in that context. We want to encourage actual harvesting of resources, so the property right is accorded to the person who can actually manage to bring the resource to market (here, reduce the elk to meat), not the person who (unsuccessfully) tramped over hill and dale trying to harvest the resource. To the victor goes the spoils.

3. Yet the rule of capture is inapposite to hunting. Hunting is a sport, not an effort to harvest resources. Here's where non-hunters (including the lawyers and judges who devise legal rules) get utterly confused about hunting. They see hunting as killing (as resource harvesting). Yes, hunting involves killing. But the goal of hunting is not killing, simpliciter, at least not in this day and age where we don't need to kill to eat. The goal of hunting is killing in a certain way, according to certain practices and ethical rules.

4. If the goal of hunting were killing, then many of the ethical rules that hunters voluntarily adopt and inculcate into novices make no sense. Just to give a couple of examples of hunting practices, the rule of "fair chase" (a fundamental hunting norm) dictates that hunters only attempt shots when the prey has a reasonable chance to escape. Thus, one doesn't point a shotgun at a bird on the ground or in the nest; one waits for the bird to "flush" (take flight) and then tries to shoot the bird out of the air. Similarly, hunters have ethical obligations to avoid wounding animals: thus hunters must practice their shooting, take only reasonable shots, pursue wounded game, etc., all to make sure that unnecessary suffering is avoided. I could go on, at length; the point is there are a lot of constraints on hunting, constraints that hunters voluntarily place on themselves, and constraints that inhibit the killing of animals. This is because hunting is a sport, not an effort to kill. (Hunters make a mistake when they refer to hunting as "harvesting" because that term suggests that hunting is another form of resource exploitation.)

5. But the law regards hunting as killing, not as a sport. That's why the legal rule of "capture" does not comport to the reality of hunting, even as it regulates it. That's also why Hunter Two was "right" to claim the elk (assuming that he delivered the mortal blow) in the eyes of the law, but wrong to claim the elk in the eyes of fellow hunters.

6. Yes, of course I hunt. Why? Try it once and you'll see. I take my boys (who have their own shotguns, have been trained, certified, and are very good shots) out to very rugged terrain far from any towns or cities. We hike all day through canyons, fields and streams in wild, gorgeous country, attuned to the workings of the tireless dogs. Our hearts race when the dogs come to a point; my boys and I, alone in this vast wilderness of creation, take positions consistent with safe zones of fire. The pheasant or chukar flushes, and who gets the shot is dictated by the bird's direction and movement. I've seen my ten-year old take down a flighty chukar with a crossing shot from a 410 shougun at about twenty yards or so. I've seen my older boy patiently wait on a bird to dive toward a canyon, taking the shot at the last possible instant, bringing the bird down at the edge. We hunt, we clean, we spend the time outdoors, away from the video and information revolution, at least for a few days, just us, alone. We create memories, instill confidence, and bond in a way that no other sporting activity can match (we also fish, and that's a good one too). Sports are part of our lives, like they are for many parents and their kids. But for most dads, participation is limited to cheering for your child from the sideline. Hunting is just as hard for me as it is them (harder, actually, as I can't hit anything: bad eyes). We share this sport and this experience. That's the true purpose of hunting, whether the law (or Hunter Two) recognizes it or not.

U-Wisconsin Will Not Be Denied

Check this out from the Milwaukee Journal Sentinel. The University of Wisconsin has asked Waukee High School, just outside Des Moines, Iowa, to stop using the "motion W" on the side of its football helmets. UW claims this letter belongs to the university and no other. What? Can we start claiming trademark in letters? (I tried to register the letters "TSLP" for football helmets but found out that the teams from Tulane, Stanford, Louisville and Paraguay beat me to it.) Okay, I understand, it's the "motion W" that Wisconsin owns, not the letter W, and that's a whole different thing. Right? Well, maybe not. Consider this:

1. For a sign or symbol to qualify as a trademark it has to be distinctive. Is the "motion W"? You be the judge. It looks like just a "W" to me, maybe a little fancy and decorative, but hardly something that people are going to identify as distinctive from any other W. I'm sure the university spent a ton of money getting someone to come up with this trademark (hey, let's try a W!), but investment doesn't matter: the question is whether or not the mark is distinct from the ordinary appearance of the letter. But it's difficult to make a single letter into a trademark simply because, if one monkeys around too much with the letter, it ceases to be recognizable as a letter and has no usefulness. (See the contrivances to which Major League Baseball clubs put their team letters to ensure distinctiveness: I never knew what the shape on the Montreal Expos hat was supposed to be.)

2. Plus, it's just a W. How many schools have W on the side of their helmets? The W is descriptive of the University of Wisconsin. A "W" is also descriptive of a lot of other schools. And a W can be quite generic, as all of these schools beginning with a W probably use W in their school acronym. Terms that are merely descriptive and generic cannot properly be registered as trademarks. Now to be clear, I'm not saying Wisconsin's "W" is not a valid trademark; but I will say it looks to me like a close call.

3. Even granting the proposition that this motion W is indeed special and distinctive and non-generic and thus qualifies as a trademark, in my view trademarks and university sports are inimical. The purpose of trademark protection is commercial: to preclude unwary customers from being misled as to the origin or quality of a product. I can understand UW protecting its commercial interest in selling merchandise. If the Waukee booster club were selling sweatshirts with the funny W than I guess UW had to put a stop to that. But is the same thing true with symbols on football helmets? Is anyone watching the Waukee Warriors high school football team going to say, "Gee, I wonder why the Wisconsin Badgers are playing football on a Friday night here in rural Iowa?" There's no consumer confusion possible, so there's no consumer protection needed.

4. MLB allows Little League baseball to use team logos, hats and jerseys. That's why your little kid gets to play on the Mets. The real New York Mets understand that the purpose of trademark law would not be served by refusing to license kids to wear the big league hats: only a loving parent watches his nine-year-old play baseball and thinks he's seeing a major league player. Why can't UW see things the same way?

Sports Salaries

Today I received an email from a high-school reader who was assigned to interview someone and write a paper on it. Apparently Jessica Alba wouldn't respond, so he turned to me. But hey, I don't write for private consumption. So for B.L. from Jayhawk country, here goes:

Q: Do you think professional athletes are overpaid?
TSLP: Not if you compare them to other performers like movie actors and singers. They're getting paid a portion of the revenue they help to generate. Winning teams make the most money; the best players are those who most help teams win. It's all good, dude.

Q: Do you think athletes should be paid more than people who run the country?

TSLP: Presidents get paid a ton, when you add in the post-term book deals. Even Senators essentially get a life-time income, as they can become well-paid lobbyists once they leave office. Athletes get paid over a brief career. But, instead of arguing with your question, I'll answer it. Yes, athletes should get paid more than the people who run the country. It's rarer to find a coordinated 6-10 athlete than to find someone who can get himself elected and sit through Congressional committee meetings. Scarcity commands higher prices. Look around your school: how many of your peers have what it takes to serve in student government? More than those who can shoot in the 70's around your local golf course, I'd bet.

Q: What about garbagemen and policemen who keep the country safe and sanitized?
TSLP: Jobs aren't valued by some sense of the "importance" of the task. Cleaning dishes in a restaurant is very important (fights germs) but it's also pretty easy and just about anybody could do it. Few of us can throw a baseball 90 mph. We pay for rare things; that's why it's more entertaining to witness a rare singing talent than a common one.

Q: Do you think that most athletes play for money or the love of the game?
TSLP: Hmm, both. The great majority of them must love their game: they're good at it and spend their youth on it, and usually people like things they do well and often. With that said, I love golf, but I don't spend much time on my game. Why? So far, no one's paying me to play. Most of us have several things we enjoy and do well; we ultimately direct our time and efforts at one such activity because we can make a living at it. So, yes, pro athletes love the game and play it for the money.

Q: Do you think Alex Rodriguez should be paid $25.2 million per year?
TSLP: Yes, he's absolutely the best player in the game, a good shortstop who hits 40 homers a year. The Yankees have so much cash they can put him at a sub-optimal position (third) and still extract value from his contract. On any other team he'd play short in order to maximize his production. It's a ton of money, but he's worth it to the Yankees.

Good luck with your paper. Hope I didn't write it for you.

Offensive Team Nicknames

This is tricky topic. On the one hand, the NCAA in announcing its categorical prohibition on indigenous American nicknames has come off as officious, doctrinaire and blindly adherent to the silly dictates of political correctness. On the other hand, the NCAA has a point. Some of these nicknames seem little more than slurs. I detest the political correctness movement in the same instinctive way I abhor any totalitarian claims. But still, basic charity and considerateness suggests some of these teams should find a new identity.

Let's look at this issue from a couple of angles:

1. One issue with the native American nicknames is that they're caricatures (much like "Cavalier," "Pirate," "Yankee," etc.). For instance, the nickname "Braves" would seem an accurate, descriptive and dignified word. Yet the term captures an image of a tomahawk-bearing, warpaint-wearing, horse-riding male member of a plains tribe with which the American immigrants and settlers came in contact as they moved west. I've met a number of native americans in my work (mostly from the river tribes of the Northwest) and have yet to see one adorned in anything close to such garb, and unless I attend a ceremonial event most likely never will. These braves aren't contemporary Indians, they're historical artifacts, or maybe a caricature of historical artifacts.

2. So one question is should non-native Americans have access to or appropriate those artifacts for their own (largely commercial) purposes? Or instead do the tribes "own" these artifacts? One attribute of ownership is the right of alienation. Could an Indian tribe sell the right to these artifacts to a sports team? If the answer is that a team need not purchase an "Indian" nickname from an Indian tribe, then that fact is strongly suggestive that the tribe does not own these historical caricatures. A new sports team tomorrow could call itself the Braves or even the Sioux or Seminoles, apparently without further obligation. (Ironically, the sports teams that appropriate the Indian names have asserted intellectual property rights in the name: you can't just start marketing "Florida Seminoles" football jerseys without a license from the University.)

3. If it's true that the contemporary Indian tribes do not own their ancestral caricatures (no more than I, as a native New Englander, own "Yankee"), should they be offended when sports teams employ those caricatures as nicknames? Can one be offended by another's legal conduct? Yes, of course. But requests for amelioration of the slight are not grounded in legality, but in good manners or polite social relations. That is why the NCAA's clumsy employment of a strict rule seemed so heavy-handed, given the nature of the perceived slight.

4. With that said, judgment is needed. Some nicknames are unnecessarily offensive and should be done away with. It is difficult to understand "redskin" as anything but derogatory. Historically, Indians would refer to their own race as "red," in contrast to the "whites." But in contemporary social intercourse, describing a person along the dimension of race or color is rude, both because it draws attention to an immutable characteristic and because it threatens to set the person apart from others. No one who was raised right would refer to a group of native Americans as "those red skins." Even if one wanted to identify the group as a group, one could refer to their tribe membership in terms that didn't draw attention to skin color.

5. In the same vein, some of the historical caricatures sports teams employ also seem unduly unkind. Images of Indian braves in full headdress howling, mouth agape, do not present a pleasant picture; of course contemporary Indians will not like it. Again, no one has to make that change; we can make fun of each other as much as we want, pretty much with impunity. But let's be reasonable: the historical treatment of the natives by the white immigrants was in many cases utterly shameful. I now live in the Northwest, and the deal the Nez Perce got was about as raw as can be. This is a tribe that was nothing but helpful to early American settlers, and without whose help these settlers, and the Lewis and Clark expedition that preceded them, would never have survived the difficult immigration over the Rockies and the harsh Bitterroots. Yet, to put it bluntly, this large tribe was forcibly kicked off its designated reservation (where it had been located forever) once the settlers realized they had allocated to the tribe some very nice real estate. Let's be blunt, white people: there's something owed to Native Americans. We can go a little out of our way to be considerate, especially on something as inconsequential as the nickname for a sports team.

6. I guess some tribes have consented to the use of their name (the "Seminoles"), and in that case, the continued use is legitimate because the team is using the specific name of a specific tribe. More generic nicknames (Braves, Indians) cannot be subject to consent because the group is too diffuse. So I only buy the consent defense in limited cases. Plus some of the more objectionable images are coarsening and affect more people than just native Americans.