I Want My Direct TV

Troublesome news at the TSLP home space. Come to find out that Major League Baseball's "Extra Innings" package, the league's season-long, every-game television coverage, will henceforth be available to subscribers to Direct TV and to no one else. Like most people, we have cable, and I refuse to screw a radar installation onto the roof of my house (to be more precise, Mrs. TSLP said no). So it looks like the Red Sox will have to play the 2007 season without me. This is disappointing to me and to the little junior miscreants, who have been so far socialized into Red Sox Nation that it wasn't until they turned seven that they figured out we don't actually live in Boston.

Needless to say, a lot of people are beefing about this. These special sports packages are just the thing for transplants. What can be done to rectify this injustice?

1. Who said this is an injustice? Why shouldn't the leagues be able to structure their television packages to elicit the most lucrative rights fees someone will pay? From what I've read, the satellite company basically offered a better deal (in terms of cash, broadcast channel for MLB's own channel, and so forth) than did the company that offered the package through both cable and satellite networks. This result reflects what freedom of contract can produce. We have to live with it (or without it, if you don't want to drill holes in your roof).

2. On the other hand, it looks like freedom of contract, but the law does put some limits on contracts. Specific to this situation is the antitrust law. The relevant part of that law prohibits "contracts in restraint of trade." Sounds perfect. The problem is that all contracts that are worth writing will involve some future performance ("I pay you today to deliver your goods to me tomorrow"), and all contracts involving future performance are, in essence, a restraint on trade. That's the point of a contract, to restrain trade. A contract in which the seller promises to deliver his goods to the buyer restrains trade in that the seller may no longer (with impunity) choose to deliver his goods to someone other than the buyer, and, by the same token, another person who wants those particular goods may not have them. This contract restrains trade, if only by limiting it to the contracting parties. But the Congress couldn't have intended to outlaw all contracts when it wrote the antitrust law, only some of them. So the Congress impliedly left it to judges to determine which contracts are in fact restraints on trade and which are not. (By the way, it was the judges who figured out that Congress impliedly gave over this authority to the judges. Judges aren't troubled by obvious conflicts of interest that would embarrass the rest of us.)

3. Is the Direct TV deal an illegal restraint on trade? Courts will uphold contracts that restrain trade as long as the restraint is "reasonable," by which basically is meant that the contract promotes consumer welfare. Does the TV deal? Does denying the consumer what he wants promote the consumer's welfare? Yes. Here would be MLB's argument: the league needs competitive balance among its teams. No one wants to see some wealthy team, like the Boston Red Sox, blow everyone else away all season on their way to another World Series title (although we should try this for a season, just to confirm this theory). Players are pricey. So the league needs to maximize its revenue streams and spread the wealth out among the teams so they can afford players, thus making games and seasons competitive, thus eliciting maximum fan interest, thus allowing MLB to compete with the other outlets for our time and money, like golf, movies, golf movies, internet surfing, and so forth. Consumers get a better product by not letting them see it. Sounds a little crazy, but the leagues have done pretty well with arguments just like that in litigating over player rights for the past century. In short, if the antitrust issue got litigated, don't think it a foregone conclusion that MLB would lose.

[Note to lawyers: one could also view this arrangement as a tie-in sale or a boycott case. Will get the same rule of reason analysis, I would think. I just wanted to mention these ideas so you could all justify billing this time as legal research.]

4. But maybe this argument loses. Most likely, MLB will never have to make it. That's because MLB enjoys its historic "antitrust exemption." I've written about it here, where I speculated about the putative success of an antitrust suit by Daisuke Matsuzaka. The U.S. Supreme Court gave baseball that exemption, and has never taken it back, basically daring Congress to do it. The Congress did, as far as labor issues go, with the Curt Flood Act of 1998. But arguably (and this is a close argument), baseball's antitrust exemption extends to MLB's other business dealings (apart from dealings with its players), such as television contracts. So likely MLB will never have to defend its Direct TV contract in a court of law. Baseball is exempt from the law. (Must be nice.)

5. What about football? How does the NFL get away with sticking its game package on Direct TV? Simple. The Congress, when no bloggers were looking (it was 1961) gave the NFL an antitrust exemption too! The NFL's is more limited than baseball's historic exemption; basically the NFL is exempt from the antitrust laws with respect to its (drumroll please) television contracts! Perfect. No one can be sued. (I'm going to write my congressman and ask for an antitrust exemption for the TSLP International Broadcasting Rights.)

6. Maybe the members of Congress, angered because they can no longer get free game tickets, will at the least want to watch the games too and will act to revoke these antitrust exemptions (in time for Opening Day, please). Alternatively, we'll see highly trained legislative assistants climbing on the roof of the Russell Senate Office Building following the installation steps on the satellite dish. Someone's got to back down: either MLB, the U.S. Congress, or Mrs. TSLP. This is going to be a rough summer otherwise.

Against the Infield Fly Rule

It should not come as a surprise to tell you that the sport of baseball has long been the darling of the legal academy. Maybe it's because the sport is played in the summer, when classrooms are empty and the professor can find room in his "schedule" to watch a game or two. But clearly baseball, more than all other sports put together, has found a home in the legal literature. (TSLP should note that the bulk of a professor's legal research is done during the baseball season, so perhaps some professors, having spent too long in the ivory tower, begin to think baseball is their research subject. No way. Only professors of sports law get to watch games and call it work.)

No rule of baseball has attracted more attention and adulation from law professors than the Infield Fly Rule (IFR). Let me summarize the position of these scholars succinctly: they love it. The IFR is a bit complex (compared to most sports rules), counterintuitive, has a strange history, presents an unessential appendage to the otherwise necessary rules of the game, and, most important of all, it's a rule that mitigates the competitiveness of the game, as I'll explain below. Perfect: a complex, strange and unnecessary rule that reduces competitive behavior! No wonder legal scholars love it. Serious legal articles have discussed the IFR as it pertains to baseball law, sports law, federal taxation and criminal sentencing, and I'm pulling all that just from memory. (TSLP also doesn't do any new research until the baseball season starts.) The IFR gets a lot of flattering attention.

Now that TSLP has made tenure, it is safe for me to say this publicly: I hate the Infield Fly Rule.

1. Some rules in baseball are necessary, such as the rules defining "out," "fair ball," "strike," and so forth. A baseball game could not take place without such elementary concepts defined. But without the IFR, the game could go on. To refresh your memory (assuming you too do not conduct research until the summer), here's an explanation of the rule from Wikipedia:

"The infield fly rule applies when there are fewer than two outs, and there are runners on first and second base, or on first, second and third base. In these situations, if a fair fly ball is hit that, in the umpire's judgment, is catchable by an infielder with ordinary effort, the batter is out regardless of whether the ball is actually caught in flight." [End of quote]

As every baseball fan knows, the purpose of the rule is to prevent the infielder from allowing the batted ball to fall to the ground in order to make a double-play on two of the baserunners. The implicit assumption is that the runners could not reach their next base before being forced out. The rule prevents this "gamesmanship" and was brought into being in response to some sharp practice going on back in the formative years of the sport. But, if the rule were eliminated, baseball would go on, albeit with the occasional "unsporting" double play. In other words, we could still play baseball; the IFR is not an "essential" rule endemic to the game.

2. I don't think the rule prevents anything that needs prevention. If the IFR were abolished, baserunners would respond accordingly. Runners on first and second, one out, the batter hits a pop-up directly to the shortstop. Today, with the IFR, the runners jog back to their bases and resume checking the stands for attractive fans. The batter is called out and the runners won't even think of advancing (although they may, if the pop is dropped or after tagging up). But with no IFR, baserunners would get off the base, maybe a third of the way, on the pop-up, in order to prevent the purposeful drop and double play. But the shortstop could (maybe) complete the double-play by catching the ball and throwing quickly to second or first. But the shortstop could most likely never complete the double play by allowing the ball to drop and then throwing to third with the relay to second base. The baserunner who was on first would get to second base before the throw. (And the batter will have reached first base too.) The point is, the IFR was created (actually it evolved from the old "trapped ball" rule) to prevent players from missing the pop-up on purpose to get a double play: that is, it was thought unsporting or ungentlemanly for a fielder to miss on purpose to gain an advantage. But if the IFR were abolished (and runners went down the baseline on pop-ups), the only way a fielder could get an advantage would be to catch the ball and then double the runner off the base (if he could; some pop-ups would be too hard to catch to make a quick throw feasible). The point is, the fielder would benefit only by fielding the ball to the best of his ability. This is baseball, not gamesmanship.

3. As mentioned, the aim of the IFR is to temper competitive, cunning play by eliminating one strategem that the rules of baseball (without the IFR) would permit. We might honestly wonder why a double play on an infield pop-up is considered unwelcome gamesmanship. Certainly a fielder, with runners on base, can glove a ground ball and turn two; indeed, this defensive play was prevalent even from the game's founding, and was thus well-known to the drafter of the rules (Alexander Cartwright, founder of the New York Knickerbockers). A batter who, with runners on base, hits a hard grounder to an infielder will often be part of a double play; so too will a batter who hits a line drive right at a first baseman with a runner on first. All of these double plays are "unfair" in some sense, since a well-struck hit results in two outs. In both cases, good fielding is rewarded; so too would smart fielding be rewarded were there no IFR to preclude a DP on a pop-up.

4. I like cunning, strategic plays. I loved it when some college football coaches this past year deduced that the new rule on the clock running during kickoffs allowed them to run out the clock on a tight game. (Watch here if you want to see Wisconsin outsmart Penn State, with Joe Pa throwing a fit.) I loved it when Tiger had a 400-lb. boulder declared a "loose impediment" and had six men roll it out of the way; I cheered when Bill Belichick ordered his team to take an intentional safety by hiking the ball out of bounds rather than punt the ball from the end zone. Why not use the rules to one's advantage? Wisconsin has already distinguished itself as a leader in intellectual property among big-time football powerhouses; why can't Wisconsin put all this intellectual candlepower to work on the gridiron?

5. I get it. A football player can grab and so forth, even against the rules, because he can get away with it and it's all "part of the game." But let one athlete gain advantage by use of his brains rather than brawn and suddenly it's not good sportsmanship. Watch carefully: whenever some announcer or commentator decries an athletic act as "unsporting," you can be sure that the castigated athlete was using his head. It's as if these ex-jocks turned announcers resent being outsmarted in the classrooms of their youth and see the sports field as a place where cunning has no place, where the nerdy guy who can figure out angles and exceptions is a "cheat" and not a good sport and, implicitly, cannot use his comparative advantage (brains) against his brawnier competitors. Years ago I wrote columns for a lawyer newspaper. Shortly after the golfer Jean Vande Velde basically blew the British Open, I wrote in a semi-serious tone (a very unusual tone for me to take) that Vande Velde could have won the Open had he manipulated the rules to his advantage (if he only had a lawyer, I mused). Well, I got back about 50 emails on the piece, maybe two or so saying nice job. The other 48 basically accused me of arguing in favor of bad sportsmanship. Even a USGA rules honcho wrote me just to call me a bad sport. No one said I was wrong in my interpretation of the rules, or commented on my suggestion that the rules needed to be changed lest some future competitor figure out what I had. What? Was Vande Velde just to lose the Open rather than apply a clear rule to his situation? This rule of golf (the lost ball definition) is just as much a rule as the one defining "stroke," "hole," etc. Are some rules meant to be enforced and some not? Which ones? Could someone please tell the nerdy people so we don't run around acting unsportingly and risk angry emails from muckety-mucks?

6. I just don't believe there's a "spirit of the game." There's the game, it has rules, a beginning and an end, and that's it. Where do these people get the spirit from, anyway? Why is it "proper sportsmanship" to replace an embedded ball but not good sportsmanship to declare an unembedded boulder a loose impediment? Both are permitted by the rules of golf. Sure, the rule on the latter issue is titled "loose impediment" (and so connotes loose pebbles), but if the definition includes large boulders, as it did, then the rule is that large, unembedded boulders can be moved, even if it takes a team of weightlifters to do it. That's the rule. There is no "spirit" apart from that rule. What the "spirit" people mean is that there are some outcomes to certain applications of rules that they did not think of, and so when they find out that someone else has thought of an application they did not, they charge unfairness or sharp practice or poor sportsmanship. Was Bret Bielema (Wisconsin's head football coach) a bad sport in refusing to kick off to Penn State at the close of the first half, denying Penn State a last chance to score? I would bet Joe Paterno thought so. But that's not why he was so angry. Joe Pa was mad because he was outsmarted.

7. So I break ranks with my fellow law professors. The Infield Fly Rule is designed to thwart sharp practice, to keep players from winning by using their heads. Far from celebrating the Infield Fly Rule, people who make their living teaching others to use their brains should despise it. I know I do, but then again, I guess I'm not a good sport.

Drug Testing Addiction

For now let's put aside the issue of athletic performance-enhancement through modern medicines. (TSLP reserves the option, as long as there's room left on the internet, to get back to the topic of steroids, hormones, testosterone, and other really complicated medical terms at some future time, probably after I finish my residency and have ready access to amphetamines.) Is it inappropriate for athletes, even at the professional stage, to use drugs, even legal ones, to improve their body conditioning and athletic performance? That's a great question, and one that the professional leagues and players' unions have answered in the affirmative. Parties to a collective bargaining agreement can agree to pretty much anything they want. But let's be realistic: there's a lot of pressure on players right now to agree to drug prohibitions.

A big part, maybe the essential part, of the anti-doping regime is drug testing. The extent and mechanics of drug testing vary by sport, but can include in-season and out-of-season testing, the need for athletes to register their whereabouts at all times, surprise tests at random moments during a player's day, even away from the sports arena, and, by the way, a pretty severe intrusion into one's privacy, at least if you consider having another person staring at you while you relieve yourself to be a bit uncomfortable. (How would you like that job, spending your day listening for the sounds of urination?) Again, at least with the professional leagues, all this is a matter for collective bargaining.

But here's the rub: call it freedom of contract if you like, but the unmistakable trend in drug testing agreements is that the leagues will test for so-called "street" drugs such as cocaine or marijuana at the same time they test for steroids. Why does the decision to rid the games of performance enhancers necessarily include testing for marijuana? Should it?

We've got a problem here, one that drugs can't solve:

1. First, be careful with the glib response that refers to the labor agreements. I know the players make a ton of money and get compensated handsomely for any concessions they make. I'm not infantalizing these people. Yet they are under enormous public and governmental pressure to accede to these particular demands. Despite collective bargaining, some of these testing standards have been more or less imposed by league commissioners, with players importuned to acquiesce. And even when the unions agree to drug testing, remember that unions are the embodiment of an antitrust violation. The only reason unions get to impose such conditions on its members, even those that are in fact unwilling to agree, is that labor enjoys the nonstatutory exemption from the antitrust law. I'm not saying that labor issues shouldn't be exempted from antitrust scrutiny; my point is that the claim that the tested player "agreed" to be tested depends on a rather forced understanding of the term consent.

2. Note that some of the pressure on leagues to adopt drug testing is implicit: lawmakers and opinion-makers have looked at the comparatively stringent drug testing rules of the World Anti-Doping Agency, founded in 2004, which rules govern Olympic sports, and wonder why those rules shouldn't serve as the template for professional-league rules. Should we use the WADA rules? Remember, Olympic athletes aren't unionized, so they have no negotiating opportunity to limit or even refuse the WADA rules: their sole option is simply to walk away from their sport. Yet the WADA rules, not a product of collective bargaining, become the gold standard for sports where drug testing, like other conditions of employment, is subject to the collective bargaining process.

3. These drug tests are conducted for the sake of ensuring a level playing field, by which metaphor is meant that athletes are limited, as far as their bodies go, to natural endowments and non-pharmacological improvements. How did coke and pot get into the mix, so to speak? Neither one improves athletic performance, and the leagues don't claim as much. They probably inhibit performance. Professional athletes have huge financial incentives not to inhibit their performance. It is dubious that we need to test for these street drugs to make sure athletes are not doing something they have every incentive not to do already.

4. On the other hand, it could be thought that the leagues' testing for street drugs helps to ensure the integrity of game competition by making sure all players are at their best. We can't have the running back, high on crack, taking off in the wrong direction. But has this ever happened? Did Doc Gooden or Darryl Strawberry or Steve Howe, all baseball players with notorious drug addictions, ever take the field high? (Maybe Marvin "Bad News" Barnes did: I was a Celtics fan and saw him play.) Even assuming it has happened, should there be some requirement that the leagues (or the federal government, which after all lies right behind all of this) demonstrate that we have a problem before we foist all of this on the players? Again, the players have obvious financial and team incentives not to impair themselves.

5. All of this, of course, comes with penalties attached. In the WADA setup, the penalties are mandatory and severe. Again, for substances that give athletes was is thought to be an unfair advantage in the contest, arguably stiff penalties are necessary to deter cheating. But smoking marijuana days before a big event isn't cheating! TSLP would rather compete against a bunch of pot smokers. (Indeed, I think I was, when competing for grades in college.) Why have swift and severe penalties for a detection of marijuana use when no one gains an advantage? Aren't we living in a day where lots of countries and states are further reducing penalties for personal marijuana use, where it's even punished at all? WADA is supposed to be in the business of chasing down steroid cheats: why should it be giving attention (and money and focus) to these street drugs?

6. The sports organizations defend their decision to test for street drugs primarily on a rationale other than cheating. Sports sells both products and ideas, and the leagues want to make sure nothing happens in the second category that impairs the first. Players who use illegal recreational drugs (or at least are caught at it) give the team and league a bad image, and bad images give the kids bad ideas and slow down the money-making for the league. First, a lot of professional athletes engage in bad behavior, much worse than recreational drug use, that gets disclosed publicly, yet the public seems unfazed. Kobe Bryant jerseys are the league's best-sellers, and he suffered an (unproven but never recanted) allegation of forcible rape. (By the way, Bryant was allowed to play without interruption during the entire episode.) So the leagues' claim of the need to protect its image seems dubious. Second, a lot of us are role models for younger people, probably all of us at times. (TSLP is a role model for the many millions of young people who dream about blogging about sports law for free.) Should that be a sufficient legal basis to test people? Usually courts want to see that there is some need, in terms of safety or risk to job integrity before they'll uphold mandatory drug testing, in cases of public employers. Yes, these are not public employers. But if the government is lurking in the shadows with threats of legally imposed testing standards and drug penalties, shouldn't these private rules be subject to legal requirements?

7. We have to be careful with WADA-style standards. Liability is "strict" and immediate suspension is mandatory, which means if it's in you (and it's not Gatorade) you're in trouble. No excuses, no explanations, no mitigation (although the arbitration panel can reduce, but not eliminate the suspension if the drug use was unintentional). What if the athlete drinks from the wrong water bottle? What if a the player's food is sprinkled, by an enemy, with a banned substance? Never happen? At the Sydney Olympics, a young gymnast was stripped of her gold medal for taking two teaspoons of an over-the-counter drug for her cold. For pro athletes, strict liability coupled with mandatory suspensions could mean huge financial penalties. Do we really need this response to an athlete caught smoking pot in the off-season?

8. I've also read that we need to keep athletes off of street drugs so that they don't get beholden to drug dealers and end up purposely losing games to pay them off. Again, has this actually happened? Is there a genuine problem we're addressing here? Drug dealers are in competition. A (rational) druggie could purchase elsewhere if his dealer tried to extract higher prices from him in the form of game fixing. Plus, why would an athlete trade his career (should he be caught game-fixing) for drug fixes? One thing professionals have, it's cash. They can use it to buy their drugs.

9. In case you missed this point, the WADA rules are strict. Mandatory drug testing, swift sanctions, little process. One of these years, a U.S. city will again be selected to host the Olympic games. Will a United States court find that WADA's approach is consistent with federal constitutional requirements? Could WADA treat a U.S. citizen this way? Lots of complicated legal issues here, but this will be an interesting question, to say the least.

The Laws We Don't Teach (and the FedEx Cup)

I've been trying to digest golf's new FedEx Cup, a season-long PGA competition for players to earn points. The top 144 point-earners will get to participate in a four-week playoff, with each playoff awarding more points, until the top 30 get to play in the "season-ending" Tour Championship in September. The winner takes home $10 million. Lots more details, but that's the basics.

Golf is a "naturally" beautiful game. For some sports, scoring values are contrived and even the mechanics of the game appear arbitrary. (Why is a football touchdown worth six points, instead of five or seven, or a basketball goal worth two or three? Why does baseball have four bases in a square instead of five in a pentagon or three in an isosceles triangle?) But for golf, scoring is intuitive and obvious: one stroke counted per stroke attempt, lowest score wins. Par is not relevant to scoring; it is a yardstick for one's score, but in a competition the lowest score wins regardless of its relation to par.

Why mess with golf's scoring? Why mess with golf? Some rules seem so natural and obvious that they don't need to be taught. We have some of those in law, too.

1. The Law of Averages: We don't cover this one in law school but maybe we should. Golf's majors are consistently outstanding events because the combination of their importance, the difficulty of the courses and the preparation of the players nearly always brings the world's finest to the fore. The top of the final scoreboard at The Masters usually so testifies. But now, a season-long competition for points? Be prepared for a nail-biting contest between journeymen grinders. This will not be Phil and Tiger shooting it out on the back nine. And this could happen year after year, on average.

2. The Law of Large Numbers: Okay, the winner of a golf tournament gets 4,500 points, with the remainder of the 25,000 points each tournament is "worth" being distributed to the remaining top 70 finishers. Majors are worth 4,950 points to the winner; low-end tournaments count less than half as much. Fans will love this, assuming those fans are CPA's. Why use such large, non-intuitive numbers? (Why not award millions of points, while we're at it?) Seriously, why not use the money list? The fact that tournaments vary in their prize money should be taken into account; higher prize money draws a more competitive field. Golf is the ultimate cross-over sport for non-traditional viewers. Compared to the endless complications of a football game, very few rules come into play in golf. A player commonly goes an entire tournament without once needing to summon a rules official for interpretation or assistance. One stroke counts for one stroke. Seldom does a need to ask (or answer) questions arise. Large, arbitrary numbers as promised by the FedEx Cup auger just the opposite. All you golf fans watching from home, better study up on the FedEx rules - you might need to explain them more than a few times. (TSLP is going to type up a one-paragraph summary I can silently hand out as necessary.) And really, when you're watching the U.S. Open, will anyone care about the points? Will any player?

3. The Rule of Thumb: Another rule that's not covered in the modern curriculum, and probably for good reason. Yet we can think of this rule as a generalization that might help solve problems quickly and easily without resort to more precise calculation. And here's the "rule of thumb" problem with the FedEx Cup: it's aimed at the wrong target. The purpose of a season-long competition that culminates in a tournament is to crown a champion. If Tiger takes two majors next year, and Vijay or Phil dominate the money list, will any respectable golf fan say that the best golfer for the season was Joe Durant or Stewart Cink or Steve Stricker or whoever comes out on top of the FedEx points total? People debate the best teams in sports that crown champions because we've all accepted the premise (and developed the interest) in identifying the year's best team. But in golf? Who was the best golfer in some random year? Few care. And no one except the winner will care who wins the FedEx Cup. We care about who wins particular tournaments.

4. Murphy's Law: This law should definitely form a major part of a legal education. (TSLP has a proposal before the Curriculum Committee on this very point.) Note this fact about the FedEx Cup: the winner of the $10 million will be the player who has the most points at the end of the last tournament. This player will not necessarily be the player who actually wins the last tournament. This could be a nightmare: some journeyman pro finishing fifteenth in the Tour Championship, his day ending early on Sunday, jumping around wildly on the last green, posing for pictures and giving interviews, all while the "real" tournament, with a paltry million going to the winner, goes on in the background. One of the two events will be overshadowed and I'm guessing it will be the FedEx Cup, especially if the second-place point-earner stands far back in the tournament competition. A ten-million-dollar prize awarded in the middle of a Sunday golf telecast? It sounds like some lucky kid made the half-court shot at halftime.

Sports Law as a Substitute for Morals

Many legal scholars have been writing lately about one particular function of law, namely that it fulfills an "expressive" purpose. By this is meant that the law has a role in reflecting and in turn teaching what we collectively come to view as right and wrong. Nothing earth-shattering here, but I do think this particular function of law is on the increase and I do find this development troubling. Legal rules should not be in the business of implicitly teaching us what is right and wrong. Moral conduct and minimal legal requirements are two different things. The trouble with employing law to "express" rightful conduct is that minimal standards for community peace (the law) morph into prescriptive rules that reflect one particular version of "rightful conduct" in a particular situation. Law becomes ethics. We can differ about morals (and we do); law should reflect the unanimous consensus of all reasonable people, not a particular answer to a vexing and intractable moral question.

What does this have to do with sports and sports law? A lot. Sorry to sound alarmist, but law is taking over sports, and I'm not very happy about it. Consider:

1. The latest debate in the sports world concerns the employment by women's college basketball teams of male practice players. What are the terms of that debate? The debate should center around the impact of this use on female players who are excluded from this portion of the practice, and perhaps the message the use of men sends to the whole team. Instead, the primary focus of the debate, even in the popular press, is on a federal statute, Title IX. Federal statutes can, if we want them to, address some big issues or problems; they can require equivalency in athletic opportunities for men and women, for instance. But they don't do very well when the questions get too specific or detailed. How is law made? At some point, some federal judge is deciding what point along a continuum of plausible outcomes constitutes a reasonable or appropriate standard of equivalency for opportunities for women. Trust me, folks, lawyers and judges don't get any special training on what degree of equality is appropriate; law schools offer no training in wisdom. Yet we resort to a judge to pick a point on the line and then we call it law.

2. Law is not very pretty, when you get close and see how it's made. But that's for lawyers to worry about. Why should non-lawyers think that law has to provide their answer to the question? I was listening the other day to a talk radio discussion of the topic of male practice players, and the commentators, obviously not lawyers, were debating this issue in terms of Title IX. Again, lawyers have no special wisdom. Law and lawyers and lawmakers need non-lawyers to debate such issues in non-law terms. Non-lawyers, not law, should have a monopoly on the "expressive" function: you non-lawyers need to teach lawyers about what is right, apart from the law. You know, is it right to bring in men for the women's team practice? That's a pretty good question right there. Why does everyone need to discuss this issue in legal terms, as if law had an answer and that law's answer is the right one? Why does everyone want to practice law? Law is supposed to reflect conventional morality, not create it.

3. I kid in the subtitle to my blog: "Dedicated to the complete integration of sports and law, so that one day we won't know the difference." Everybody, I'm being sarcastic! I hate the NFL replay system. It's no so much the delay in the action or the desire to get calls on the field correct. I don't like the delay and don't have a strong need for perfect calls, but these aspects don't trouble me. What troubles me is what the television announcers say during the replay challenge. Accompanied by repeated viewings from multiple angles, the announcers fish around for the applicable rule (defining a "catch," or a "downed runner," or a "touchdown"; the NFL rules are pretty complex) and then apply that rule to the facts of the case ("see his knee, right here?"). Hey, they're practicing law (without a license)! I like practicing law (and even did it for a while, until incompetence mandated a teaching career), but I don't want to see a bunch of amateurs do it on live television on a Sunday afternoon. Now everyone gets to see how law is made (was the moving ball "juggled" and therefore not a "catch"?). It's tedious. It's also ultimately indeterminate. We could sit there all day and not agree on some of these calls. Even the reviewer's standard for overturning an on-field decision ('indisputable evidence') is a legal standard that is butchered just about every week. Who can blame these quasi-lawyers? They're referees and announcers. To do it right, the NFL should have lawyers loosen their ties and adjudicate the playoff games, if we really want to watch law practiced.

4. All kinds of formerly moral or cultural decisions are nowadays filtered through law, from personnel decisions to medical treatment to college athletics. The demand for lawyers only grows. I'm working as hard as I can to produce lawyers just to keep up. Please don't complain about the number of lawyers in this country, at least not if you're someone who, by his political votes especially, furthers the hegemony of law and legal regulation into all facets of life. But however you vote, resist the senseless growth of law. Law can at times serve as the final answer to a vexing problem. But law should be resorted to only where thoughtful, civilized discourse apart from law can yield no consensus answer, and where a uniform "legal" answer is absolutely needed. A law court should be the place of last resort, not the first. I'm troubled when the first mention I've seen of the use of male practice players involves a lengthy discussion of Title IX. Is there anything else to say about this issue other than citing to a federal statute?

Book Notes: Game of Shadows

Game of Shadows: Barry Bonds, BALCO, and the Steroids Scandal that Rocked Professional Sports, by Mark Fainaru-Wada and Lance Williams (2006)

The latest bestseller! Wait, it's been out for nearly a year. Sorry, but it takes me a while to get to all the books I'd like to read. Part of the delay is due to the fact that this is not the kind of sports book I usually like to read, so I put it off.

I would divide sports books into four categories, in no particular order.

Category 1: The sports autobiography, often ghostwritten, which I never found interesting, except when I was a kid. They can be okay, as long as the reader totally suspends disbelief and absolutely adores the player. (As a kid, I read every book on Bobby Orr.) Hagiography.

Category 2: The next category I'd call sports biographies, written with or without the subject's permission, and usually by a researcher/journalist. These can be very good. (I just finished Kenny Moore's excellent biography on Bill Bowerman, legendary Oregon track coach and, by the way, one of Nike's founders.) But even though I'll read one or two of these every year (usually over the winter holidays when I'm not grading exams), biographies are simply not to my taste. Some people find the life stories of others endlessly fascinating, but for me, most lives look pretty much the same (except for TSLP's life, which is a thrill a minute; like most law professors, I lead a life of constant danger). I don't care to learn about Lebron James' childhood, whereever it took place. I don't even care about what he does once he walks off the court. Athletes aren't celebrities to me. I enjoy watching the games, but that's it.

Category 3: These are reporter's books, and I'd put Game of Shadows in this group. Investigative books, behind-the-scenes books, follow-a-team-for-a-season books, and so on. These can get pretty tedious, especially when the book ends up reading a lot like a series of newspaper accounts of the previous day's action. These books better have a big payoff in terms of insight or inside information if I'm going to wade through all the game recaps. They rarely do. John Feinstein's tedious A Good Walk Spoiled may have ruined this category for me forever. I was thinking of buying Jack McCallum's book on a season spent with the Phoenix Suns, but I'm afraid to be disappointed again. But I do like how the Suns play basketball, and Steve Nash is a passing genius. By the way, I'd also put inside accounts written by players in this category (George Plimpton's Paper Lion, Phil Jackson's and Charley Rosen's More Than a Game, etc.).

Category 4: Here we are, the sports books I love (and that I'll soon write) and where I do most of my sports book reading and on which I usually blog. I think of books in this category as offering "perspectives" on sports, such as where a game is going (Moneyball) or why it has evolved (The Blind Side) or how it should be understood (The Wages of Wins) or to what it bears significance in a broader sense (How Soccer Explains the World). I find books in this category stimulating. Often they're written by academics on a busman's holiday (I'll be taking mine soon), so I guess it's no surprise I like them.

Category Simmons: Since Bill Simmons, ESPN's "Sports Guy," writes columns, and since he's put together some of those in his book (title too long to type in), and since I read it, and since it's about sports, I guess I have to put his book somewhere. In my view Simmons is re-creating sports writing, probably ruining it for ever. If you haven't read his stuff (you should), think Hunter S. Thompson covering a Red Sox game, from his sofa, and substitute coffee for cocaine. Simmons' writing is fun, slashing and veering wildly from complaints about his dog, wife, and friends, to thoughtful paragraphs on what makes a competent baseball pitcher an ace. Now everybody's starting to write in his style, talking as much about one's personal reaction to what's happening on the field as about what is actually happening on the field. Simmons' articles are the journalistic equivalent to philosophical idealism, the view that says that everything we know is in our heads, only. Simmons doesn't really write about sports, he writes about Simmons, and it just so happens that the Simmons he writes about is the Simmons who watches and writes about sports, and a few other subjects. So he gets his own category. As much as I admire his work, for the sake of the nation let's hope he remains this category's exclusive inhabitant.

Oh, about the book:

1. Really, the authors should be in jail. As I've argued previously, there are some pretty significant reasons that grand jury testimony must be kept secret. The writers had a source leaking that information to them, and it appears to me that the source didn't just provide a few generalities. The writers appeared to have had significant access to the testimony of several witnesses, including Bonds, Giambi and Santiago. The reporters can argue all they want about journalistic privilege, but they were breaking the law when they elicited this information, and from the sound of things, they knew it. Maybe it's ironic that the reporters go to prison while Bonds goes to the outfield; on the other hand, maybe the reporters' wrong was more serious.

2. Got to love the ban on performance-enhancing drugs. By the way, in most sports, when players are tested for performance-enhancers, they're also tested for other drugs (marijuana) which do nothing to enhance athletic performance, and in fact hurt it. (Golf may be an exception here, I'm told; being high on marijuana might help even out that putting stroke. Are PGA tour pros smoking weed before putting on their plaid slacks? Now that would be a Category 3 book I'd read.) Some problems with the ban on performance enhancers: (1) it doesn't make a lot of sense, given that all kinds of non-pharmeceutical substances can enhance performance: are they any different in principle?; (2) are genetically engineered enhancements (the coming thing) any different? Given that all of us differ genetically anyway, if an athlete's very genetic makeup can be altered, in what sense is this enhancement non-natural? We can be born weak and yet lift weights to make us strong, so why can't we undergo gene therapy to accomplish the same alteration?; and (3) baseball's ban does drive drug use underground. This is the big story of Game of Shadows.

3. On this last point, the book's lasting image (much like the revelations I hear were in Jose Canseco's book, a Category 3 book too, by the way) was the vivid accounts of the relevant portion of the life of Barry Bonds. Not his life as a superstar baseball player, but his life as a druggie. Really, this account reads a lot like other stories of drug use: the shady characters, clandestine meetings, covert deliveries, secret injections in the bathroom, and so on. Not a pretty sight (especially when the boys share a bathroom stall to inject each other in the buttocks). The health risks to steroids are debateable and controllable (hey, most of these substances, as well as human growth hormone, are prescribed every day). But here's a bunch of ballplayers, track stars, and football linebackers getting health advice and, for all purposes, medical direction from this lab-owner who was a charlatan, a community college dropout, huckster and salesman whose medical training results from the frightening methodology called trial and error. How much better if Bonds and his ilk could be administered drugs in a sterile environment under a physician's supervision?

4. Don't read this book if you like your sports superstars unblemished. This account of the scandal of steroids looks at just one little corner of it, just one lab servicing a few athletes. Undoubtedly there are many, many more. The one quibble I have with the book is with its subtitle: it refers to the steroid scandal that "rocked" sports. Wrong tense. As I've said here, the steroid era is just beginning. Look for a lot more shadow games before it ends.

Free Tickets With Membership

By regulation, members of Congress may accept gifts only if the value of the gift is less than $50.00. At the same time, members of Congress have for years happily accepted free tickets to sit in luxury boxes at major sports events. How did they do it? How could one comply with a fifty-dollar limitation while accepting free game tickets? Why, our representatives figured out that the value of said tickets happened to come in at exactly $49.99. (It's a miracle!) Recently, however, careful scientific studies have hypothesized that tickets to big-time sports contests might be worth a little more than fifty bucks, maybe even a Benjamin or two.

Never one to ignore modern science, the Congress has responded. A report TSLP saw this morning says that lawmakers have recently (in the case of the House of Representatives) or will soon (in the case of the Senate, the more deliberative body) prohibit themselves from receiving free tickets to sports games.

What? Who would deny himself free tickets? What does this say about the mentality of our elected representatives? (I want my vote back.) In TSLP's un-humble opinion, this is foolishness.

1. Look at it this way: we don't pay our state and federal elected representatives, or even Ms. President, very much money, at least not in terms of salary. It's about $165,000 for federal Congressmen; maybe one-third of that for state representatives; the U.S. President earns over $400,000. Now I know that's a good deal of money, but in the case of members of Congress and Senators, it has to cover, more or less, two residences (one in D.C., one in Timbuktu), plus a lot of nice clothes. It's a lot of money, but presumably, given the importance of the job and the comparison to other high-end decision-makers, it could be a lot more. (I'm assuming the skill of running the most important nation in the world (to me) is rare and therefore valuable.)

2. But we want good people to run for office. There are high costs associated with running for office, such as the total invasion of privacy, personal attacks, public enmity and so forth that these people have to take. (All the opprobrium that comes with higher office probably, unfortunately, draws to our public offices people who are highly insensitive to the opinions of others, which may not be the best thing in a representative democracy, come to think of it.)

3. So look at these little gifts as modest salary bonuses to help encourage non-wealthy, non-insensitive people to run for office. Wouldn't it be neat to be a congress(wo)man and watch the Washington, D.C. football squad (I can't remember the nickname) from the soft leather of a plush luxury box? Or take off on silly fact-finding junkets to the finest tourist desitinations in the world (got to keep those facts straight)? There's not much harm here, no more than when I donate to my local firefighter's fund when the neighbor comes to the door. Am I seeking favor from the firefighters? (Extinguish my house first!) No, not realistically. I'm just making a (small) gesture for the sake of civic politeness, a little token of gratitude for the public service. But at these football games, can lobbying happen, at least when the cheerleaders are resting? Sure. But it's bad manners (like talking business on the golf course: despite the belief of outsiders, the truth is that it's just not done, at least not tactfully), and truncated at best. The Senator gets more lobbying in the office, from paid lawyers. Senators take meetings with lobbyists from both sides all the time; lobbyists are not evil, they're helpful. They give the Senator information and perspectives. They're specialists informing the generalist. Lots of people lobby, and they don't have to come with game tickets.

4. Without these little gifts, which admittedly do have value, theoretically the U.S. taxpayers will have to pay their representatives more money. (Probably not the President, as that person gets amply compensated by the multi-million dollar book deal and other post-term deals.) But for the run-of-the-mill member of congress who get little or nothing unusual post-term, we'll have to up the pay. Under the former system, some of the pay for these members was provided privately by team owners and other benefactors (some nice stuff too, much of it non-taxable). Now the rest of us will have to pay for luxury boxes, assuming we don't want to, in effect, reduce the total value of the compensation package.

5. Note that the regulation just says that the gift cannot have a "value" of fifty dollars or more. What does "value" mean? (Bill Clinton, call your office.) I presume it means something like fair market value. But what is that in a particular case? For the Super Bowl, admittedly it's a high number, especially if the Patriots are playing. But what's the value of free tickets to see a losing baseball team play another loser in a late-season, meaningless game in a half-empty stadium? How would you like to try "reselling" those tickets? Fair market value can fluctuate wildly; for some games, even luxury box tickets might not be worth much.

6. Or does "value" mean the nominal value on the face of the ticket? Luxury box tickets typically have none (at least the times TSLP has been invited; everybody, invite me to your luxury boxes so I can complete this important empirical study). Instead, does "value" mean the value to the recipient? Again, there are some games I'd pay fifty bucks to see; if it's a couple of teams I don't care about, I wouldn't pay much at all. The dark secret of luxury boxes is that, sometimes, the seats aren't all that good. They can be far removed from the action and not all that much fun. It's not courtside.

7. I understand the desire to limit low-gauge Congressional payola. But lots of firms rent luxury boxes at the local stadium to be good corporate citizens, to support the local pro teams, to reward key employees and their families with fun outings, and to give some tickets away to local civic leaders and elected officials. It's just slick, rich people being nice to local politicians in plaid jackets. This general benevolence helps support pro teams. For Washington, D.C. teams, where many of the local rich firms are in some way dipping their beaks in the government pool, this prohibition could dampen their luxury box rentals.

Nick Saban, Liar or Lawyer?

TSLP has envied Nick Saban's academic salary here, where I argued that we should not be tricked into thinking that Saban will be paid from the athletic department instead of the university. (That's not to say that Saban may not be worth his salary.) In that entry I also described the standard university financial gymnastics that allow U's to term certain of their departments "self-sustaining" and analogized that to Enron. (I just hope my university won't now decide to make me self-sustaining; I like being sustained.)

What I don't understand is all the vitriol and anger directed at Saban in the wake of his departure from the Miami Dolphins. His crime? He said he was staying and then he left. Even old sage Don Shula blasted him.

Is it wrong to tell a lie? (Is my mother reading?) No, not always, not here. If Saban was guilty of anything, it was in practicing law without a license.

1. It is wrong to take a sharp instrument and stab somebody in the chest. (That solves that dilemma.) Yet surgeons do it every day. They hurt us in the hope of making us better off. Lawyers also, in a broader sense, injure the body politic by lying. To use the simplest example, criminal defense lawyers lie, when for instance they argue that a person they know to be guilty is innocent. (Or when the lawyer suggests that a witness the lawyer knows to be a truth-teller is in fact lying or mistaken.) If the lawyer's argument is successful, a guilty person goes free and we are worse off. Yet we collectively risk this injury in the hope that we'll be better off (by helping to ensure that the non-guilty are not convicted). It's utilitarianism. We injure ourselves (surgeons cut; lawyers argue for counterfactual innocence) in the hope of gaining a net benefit.

2. That lawyers tell lies is ethically permissible because our justice system asks them to do so, at least in the criminal defense function. It is the lawyer's "role" as a lawyer that permits conduct that would be unethical in most other walks of life. Lawyers may lie at work, so to speak, but not at home. For example, TSLP lies all day at work, but outside of work when asked "how was dinner?", TSLP will reply to the surprised hosts, "Not very good, to be honest about it. But I do hope next time will be better."

3. Football coaches have to lie too. (They don't have ethical theorists justifying their lies, as lawyers do, so this modest post will have to do.) Essentially their role requires them to lie, and since football coaching is a role society obviously condones and even venerates, then implicitly society condones their lies. Nick Saban's lies were ethical.

4. It's a free country. (I checked.) People can change jobs, even in the middle of a contract. Courts will not enforce employment contracts by "specific performance," which is an equitable remedy that is essentially an injunction forcing a person to honor his employment contract against his will. The reason courts historically have refused to enjoin workers to work against their will is our long-standing prohibition against peonage (forced labor to pay off debt) and slavery. Courts may remedy broken employment contracts with damages, and sometimes courts will impose an injunction directed at the new employer should there be specific limits in the employment contract against re-employment in the vicinity, such as a non-competition clause, but that's about it. To my knowledge (please correct me if wrong), no football coach has a non-competition clause in his contract; impliedly freeing the coach to take another job without restriction (but for damages).

5. As a practical matter, the only way a football coach can change jobs is by lying to the press when asked about his intentions. If a coach admits, truthfully, that he is looking to leave, bad things happen. For a college coach, recruits sign elsewhere, assistant coaches update their resumes, presidents go down their private list of replacements. For a pro coach, assistant coaches and free agents might go elsewhere, general managers may look to replacements, the commitment of remaining players may wane, and fan ticket renewals may suffer. Even a non-answer or "no comment," given in response to a direct question about the coach's interest in another job, basically admits the truth, and thus substantially undermines that coach's present position with his team, and perhaps will cost him his job anyway. Additionally, a truthful answer, by more or less eliminating the coach's chances to stay with his present team, torpedoes his negotiation leverage with his new team. The new team will know the coach now has little choice but to accept their terms.

6. By steadfastly, "sincerely" (and untruthfully) denying his interest in another job, the coach preserves his position with his present team, and helps maintain that team's momentum in keeping coaches and acquiring players. Indeed, the coach's present employer would actually prefer that the coach lie, even to the employer, about his intentions, if only to preserve the team's coaching and player recruits and sales momentum. Even the players, supposedly the "victims" of the coach's prevarications, would prefer him to lie, to help the team attract additional players to improve the team's performance.

7. That's not to say that no one is hurt by the lie. Ostensibly the coaching and player recruits, some of whom came to the team to work with the coach, might feel misled, as may some ticket buyers. But these folks made their decisions knowing (at least they should know by now) that even coaches on multi-year contracts sometimes will break that contract and leave for another team. We all make employment decisions this way, betting on the future of the company. Fans are hurt too. But all of us commonly make purchasing decisions in the face of uncertainty, paying money now in exchange for performance in the future. We know that when we buy an item to be delivered months into the future that we bear the risk that the seller may go bankrupt in the meantime. We probably even get a discount to compensate us for that risk (much like ticket renewals are often discounted if paid for by an early date). So fans aren't really victims if they're paid for the risk they bear.

8. So there is pain from the lie, but there's also benefit. If the latter exceeds the former (as we think it does with defense lawyers and surgeons), usually the lie is considered ethical, even though we look the other way when it happens. Even with surgery, we don't know for sure beforehand that the benefits will exceed the costs; sometimes they don't, and the surgery itself ends up killing an otherwise non-terminal patient. So we have to do our best to guess. Since there's no law against lying to the press, at least not about one's job intentions, the better guess is that the damage caused by the coach's lie, although not trivial, is outweighed by the harm the coach's lie avoids. Coaches may lie, ethically.

9. Don Shula is no stranger to the flexibility of coaching contracts. He was the very successful head coach of the Baltimore Colts back in the 1969, the team having played in the Super Bowl the previous season. As the 1969 season neared a close, the Miami Dolphins surreptitiously contacted Shula about the possibility of his coaching their team. In a complaint to the league, Baltimore accused Miami of tampering, successfully, and the league forced the Dolphins to give the Colts their first-round pick as compensation. His position with the Colts undermined by his flirtation with Miami, Shula was allowed to resign from Baltimore and take the Dolphins' offer.

10. Dinner was great last Sunday, Mom, thank you.

Now a BCS Tournament?

In the wake of Boise State's thrill-ride finish to its undefeated season, many in the popular press are calling for the NCAA to implement a playoff for the college football season in order to be certain to crown the true national champion. Under the current formula for BCS (Bowl Championship Series) games, the contest that pits the top-ranked BCS teams is designated the national championship game. Implementing a more elaborate playoff series wouldn't be too hard, conceptually at least: just push some bowl dates around, pick an even number of teams, set them in brackets, and begin. Or the NCAA could just tack on one additional game (for 2006, Florida vs. Boise State) to determine the champion.

All of these approaches would suffice to crown a winner. But would the winner of the tournament be any more the "true champion" than the team that wins today's BCS championship game? (I've written on the trouble with tournaments before, here.)

Of course not. There's no way to determine a college football champion. So give it up.

1. The current BCS uses a complex formula (aren't they all?) to rank teams. The formula includes a heavy dose of opinion polling, computer rankings, comparisons of schedule strength and game outcomes. In short, although everything in the end is expressed numerically, there's a ton of subjectivity built into the rankings. Even computer-generated ranks have necessary subjective element in their design. Subjectivity is inevitable; anyone who has ever put a few nickels on a football game knows just how little even experienced observers can tell about the strength of a football team. "Upsets" happen all the time; one explanation for the frequency of upsets is that we really cannot tell before the fact which team is the better team. Imagine the difficulty of putting a couple of dozen plausible candidates into a rank order. Now imagine that rank order being meaningful (especially financially) and we can see what the BCS is up against.

2. But assume perfect information and perfect analysis. (Those BCS people are wicked smart.) What are they measuring? What does it mean to be the "best" team? Even a significantly better team won't ordinarily be able to beat the next-best team all the time. Assume Team A would beat Team B eight out of ten times: Team A is decidedly better. Yet when the teams actually face each other (if they do), the game could be one of those two in which Team B wins. So, if the job of the BCS is determine which of these two teams would beat the other more often, then the actual game outcome should be rather irrelevant to the question. If Team A is substantially better than Team B, then even if Team B wins the actual contest (as it might, twice in ten games) , Team A is still the better team and should be ranked higher. In other words, should rankings be determined "on paper"? The actual outcomes of games will only tend to mislead us. (That's why I seldom watch college football; I don't want to be distracted in determining which team is best.)

3. Most would say that the "best" is determined by who wins on the field, not on paper, and so game outcomes must determine rankings. Luckily, college football is pretty widespread and the leading teams don't play each other too often. If they did, then we'd have a mess. Team A beats B, B beats C, then C beats A. So we have to go back to eyeballing the teams and deciding that Team B, although it lost to A, is actually better than A. So we're back to deciding rankings on paper, so to speak.

4. With that said, at this point everyone's pretty convinced that, were the NCAA to add just one more game, Florida should play Boise State to more accurately determine the champion. But assume Boise State had lost to Oklahoma and was out of the picture. Arguably, the next best team in America after Florida would be Ohio State, which is ranked second. Should Florida and Ohio State play again? What if Ohio State wins? Now we have a problem.

5. Strangely, college football rankings are made easier by the fact that the top teams are spread out among the six BCS conferences, a few others, and Notre Dame. The result is the top teams don't play each other enough to determine which team is best (assuming that we can tell which team is best by the outcome of the games.) If they played a lot, they'd beat each other willy-nilly and we'd never sort it out. So opinions count, a lot. One problem with opinions is that they are in part the consequence of one's view at the outset. We form opinions, defend them and are slow to abandon them. So, to a certain extent the rankings at the end are a product of the rankings at the beginning. Here's an argument to that effect. For example, in 2004 Oklahoma, USC and Auburn all finished the season undefeated. Oklahoma and USC were ranked high in the preseason; Auburn started in the teens. So Oklahoma and USC got to play for the national title while Auburn got to watch. (Why do we rank preseason?; this only exacerbates the problem.)

6. So, let's assume we can push past all these problems of definition, subjectivity and the rest and actually rank the teams. What would a tournament resolve? Surely no one believes the winner of the NCAA tournament is truly the best team in the nation. It's called Madness for a reason. Any team, even the best team, will lose some percentage of its games to inferior opponents. The brevity of the contest and the element of luck ensures it. In fact, the odds are probably against the best basketball team winning the tournament. Why would a single-elimination tournament in football be any more likely to identify the nation's best team? Footballs are oblong and take funny bounces. I think luck has more to do with determining (close) football contests than any other of the big American sports. And scoring is hard in football; as a result, lots of football games are close, ending with a margin of victory of less than a single score.

7. My point is that college football is inherently resistant to the kind of organization and structure that the BCS beefers want to impose. We don't know what we mean by the best, nor how to go about measuring it even if we did. And beyond that, we don't really have a mechanism plausibly available to determine the champion. People may want a championship tournament, as so soon will the NCAA, I presume. A tournament may be justified for entertainment's sake or to make more money. But let's not say we need one to determine which team is the best in the land.

8. Boise State by 3.

Saban's Lot and the University Shell Game

1. Football coach Nick Saban will earn $32 million over the next eight years, not counting additional bonuses for bowl games.

2. He will be paid by the University of Alabama.

One of the above two statements is interesting and controversial.

The second.

Who is paying Nick Saban this huge sum? Most critics of the salary assume it is the University, and ask why an institution devoted to education should pay what is probably the top public salary in the state to a non-educator.

But according to the Sports Economist, Saban will be paid out of the revenues his football team generates. Apparently the president of the University believes that Saban will create sufficient revenue from ticket and memorabilia sales, alumni contributions and the like that the school can pay Saban his $4 million and pocket the difference. Of if there is none, I guess, still profit from the publicity and goodwill a successful football program creates.

So who pays the coach, the University or the "football program"? I stumbled into the same issue the other day when discussing athletic scholarships for out-of-state and international student athletes. Is it appropriate to view University employees as paid from an entity apart from the university itself?

No.

1. Charitable donors don't prefer to endow bathroom cleaning or sidewalk maintenance or secretarial assistance. Part of charitable giving, I suppose, is feeling good about the gift and being able to identify a worthy destination for the money. Hence gifts go to academic programs, faculty positions, student scholarships, and athletic programs. Schools know this and make those funding opportunities available by using its available tuition dollars for maintenance and the like.

2. To claim that athletic programs are self-funded, as university websites do (here's West Virginia's), may well be true, sort of. But the claim hardly tells the full story. First, what is meant by self-funded? Universities have various components. Those that make money (from tuition or ticket sales) are in a sense self-funded, but are (typically) expected to contribute to the university's overhead. Overhead at an institution of higher learning can be substantial, given the need for libraries, common areas, plush faculty lounges, gymnasia, etc., all of which are non-revenue producing (and so can't be "self-funded"). Often individual components of a university, such as a college, generate sufficient revenues to sustain themselves (were they a stand-alone school) but do not earn enough to sustain themselves and pay their allocated share of university overhead. Earnings from the university's endowment (that is, from the money donated by charitably minded philanthropists and alumni) make up the difference. Donations are sought for scholarships, buildings and programs, and they are used as such. But from an economic perspective, they're used to pay university overhead.

3. Once we understand the fluidity of university finances, we can see that a particular university can designate whatever components of the university it wishes as "self-standing." If it is clever about it, the university will designate that program most likely to appeal to donors as the program that depends entirely on the gifts of those donors, in order to present the most sympathetic object for their charitable impulse. This is not cynicism; it's just part of the big business of charitable donations. We all give money to feed the poor, but of course some of our dollars (either directly or indirectly) pay for the advertisement that brought the plight of the poor to our attention.

4. So from a practical perspective it's nonsensical to justify the salary to be paid to Nick Saban on the grounds that the football program at Alabama stands apart and alone from the university in any meaningful sense. (I think the NCAA would have a problem with a program that truly was not under the direction and control of a university.) Separating out the football program is just a shell game without economic reality. Malcolm Gladwell's recent article on Enron is one of the best non-lawyer pieces I've seen on the scandal; in it he describes what lawyers have known but the public by and large has not: that Enron's practice of sloughing off undesirable assets and trade positions into "special purpose entities" that were (fictitiously yet legally) separate and distinct from Enron itself was done to allow lenders to comply with legal lending requirements. In other words, all the accounting tomfoolery and fraud the Enron management concocted and had nothing to do with reality: a business can move its assets all around the warehouse, but the economic reality is unchanged. Part of the cause of the rapid collapse of Enron's stock was the failure of interested observers of Enron (investment professionals and others) to separate out the fictional shell game from the economic reality. The reality was that Enron was broke, no matter how it structured its assets. The reality is that the University of Alabama will pay Nick Saban.

5. With that said, it may well be that Nick Saban is not overpaid once the revenue he will generate is taken into account, and indeed that was the point of the Sports Economist. Personally, I doubt Saban's marginal revenue product will be that much (in other words, I doubt even a successful coach will add that much additional revenue to the athletic coffers), but that's for the University of Alabama to figure out. If the school is correct, Saban is worth it. The University will profit.

6. But is profitability the correct criterion for university decisions? Just as Alabama may profit from Saban's contract, so another school might profit from allocating its athletic scholarships to international student athletes who might better produce winning teams. But what about the local kid whose family's taxes have contributed to the supporting the university all these years? Is the answer, once again, that the athletic department stands alone, as if it were a separate, profit-making enterprise that gets to eat what it kills? Does it make any sense to say that the taxes of the local kid's family went to overhead, to pay for new toilets and replacement lightbulbs, so that the kid has no claim for preference in the allocation of that scholarship?

7. I understand the positioning of athletic departments as "self-supported" for fundraising purposes. But let's not confuse the shell game with reality. Confusing the fundraising fiction with the reality of university responsibility for and supervision over its athletic departmentwill lead to sloppy thinking and to mistakes. It will lead us to conclude that the "owners" of a state school should have nothing to say over how the "independent" football team pays its coaches or to whom it awards its scholarships. The mechanisms for taxpayer control may not work well, and the university administration or even the legislature may be effectively captured by the athletic department and its supporters, but nonetheless ultimately the taxpayers should feel free to exercise their dominion. They may like things just as they are. On the other hand, some taxpayers may wonder why state athletic scholarships don't often go to state citizens, or why the state has locked itself into paying a football coach four million dollars a year for eight years is the right thing to do, even if it is profitable. There may be a reason the state established its university as a not-for-profit institution.

Steroid Era Just Beginning, Not Ending

In the coming months certain professional athletes (and the sports public) will receive a memorable civics lesson in the power of the federal government. The federal grand jury investigating the BALCO steroid distribution scheme and ten or so major league professional baseball players who apparently received steroids from BALCO has become interested in the results of Major League Baseball's 2003 drug tests of its players. The tests were conducted to determine the degree to which steroid use in baseball had spread, in order to trigger further drug testing and sanctions. The players were promised confidentiality in the test results. Apparently about 100 players tested positive. The players' identities and test data are held by several drug testing labs.

A federal grand jury is practically speaking the investigative arm of the federal prosecutor. The prosecutor can ask the grand jury to issue subpoenas (basically a letter) that commands private citizens to produce documents or other evidence, including testimony. Alternatively, the prosecutor may investigate crime by seeking a search warrant from a federal magistrate to permit police officers to conduct a forcible search to locate the desired evidence. Although non-binding prosecutorial guidelines may inform the prosecutor's decision on whether to proceed by subpoena or search, as a legal matter the prosecutor's decision lies within the prosecutor's discretion.

So the federal prosecutor in the BALCO investigation ultimately chose to use the forcible approach. Federal agents, acting pursuant to a search warrant, seized from the testing labs computer files that revealed, once juxtaposed with a master code list, the identities of the 100 or so MLB players who tested positive for steroids. A very recent decision of the Ninth Circuit U.S. Court of Appeals upheld the government's seizure of this computer file, generating national news that nearly knocked me out of my holiday spirit. The court's decision has been attacked by the Players' Association, by numerious commentators, and more significantly by my friends at the Sports Law Blog, here and especially here.

Sorry, fellas, got to go with the United States of America on this one.

1. First of all, every American needs to wake up and smell the coffee. People can promise each other all kinds of secrecy and confidentiality, but very, very few of those promises can withstand a federal subpoena or search warrant. That's the law today and has been the law fora a long time. So the authors of the Game of Shadows (the Bonds expose) can promise confidentiality to the person who leaked the grand jury testimony, or MLB can promise confidentiality to the players about drug test results, or you or I can commit our innermost thoughts to the privacy of a personal diary, but if a prosecutor wants to find out the reporter's sources or the results of a drug test or the entries in my diary, the prosecutor can. Private promises don't matter, not in the face of a federal criminal investigation. (Statements made in confidence to our lawyers (TSLP has none) or psychotherapists (TSLP has several) or spouses (just one) remain inviolate, plus a few others.) The MLB players seem to have a few lawyers hanging around. Surely the players knew, or should have known, when they agreed to the 2003 tests that a federal subpoena could easily shatter their expectations of privacy. In the wake of Jose Canseco's book and the disturbing Congressional hearing where MLB stars talked their way around admissions of guilt, the players undoubtedly felt compelled to compromise. This was the deal they made.

2. The Players' Association attack on the seizure of the drug tests looked to me like the "kitchen sink" style of litigation. As a general rule, not a good approach to take with a court, especially on appeal. Usually if a lawyer gives you five legal arguments instead of one, the arguments appear weak and are weak. Doesn't matter of course; just pointing this out.

3. The Ninth Circuit upheld the Players' Association claim of "standing," which refers to the association's legal right to contest the legality of the seizure. Not sure about this one. The court's premise was that the association had standing because the individual players had standing to contest the use and discovery of the drug testing information that came from their urine. Shaky legal theory, and admittedly not an issue free from doubt. But probably the better answer (and sorry for the graphic discussion to follow; children, move on to the next point) is that people don't enjoy any privacy interest in their urine once the urine is, umm, passed. It's no longer part of our body, and whether the urine is deposited in a cup or in the mystery place deep within the earth to which toilet drains lead. It's gone. The fact that the urine is tested, consensually by the way, probably means that the former owner (the urinator) has given up any plausible claim that he might have to the test results. I realize that this is a highly debateable point and maybe goes too far, but the answer is that, nearly without exception, the federal courts have been willing to go "this far" for quite some time. Basically if we voluntarily give up something we own, we coincidentally give up our right to claim ownership in it. As your lawyer, I advise you to hold it as long as you can.

4. The key point to the case is that the government officers, when searching for evidence respecting the 10 baseball players named in the warrant, came across a computer file with a whole bunch of test results, including many players other than the 10, and just seized the whole file, with the expectation that it will pore through the file back at the office. It's not a big deal. Why? Because the government could have looked through every data entry on this file at the office of the searched party to determine which fit the warrant. The government temporarily seized the file (actually a copy of it) to allow it to search more deliberately back at the station. The appellate court ordered this "offsite" search to be conducted under the oversight of a federal magistrate, who by the way are very capable judges. All non-conforming data will be returned to its owner (the lab, not the players, in my view).

5. At this time, the documents remain under seal. Nothing will come out through the press. Everyone hears "BALCO" and assumes leaks will follow. That's why the Bonds' reporters need to be prosecuted, to deter such shenanigans.

6. But everything may come out in the form of federal indictments. The officers will be allowed to review all the test results to determine which match the materials requested in the search warrant. As they do so, they may seize any evidence in "plain view." Plain view does not permit a search, but it does permit a seizure of any document or thing that constitutes the fruits, instrumentalities or evidence of a crime, as long as that criminality is immediately apparent on viewing the document. Well, any document that says, in effect, "Player X tested positive for illegal steroids" constitutes pretty good evidence of a crime. The crime could be anyone's crime, not just the crime of one of the original 10 players.

7. Even if the police didn't want to rely on plain view to seize all the test results, the officers could simply use what they see when they review the file documents to go get another warrant, this one directed at the records of the new names the file review turns up. Indeed, in a part of the opinion that I've yet to see mentioned, the appellate court discussed the trial court's quashing of a subpoena designed to elicit precisely that information. The subpoena was upheld.

8. The Players' Association's claims of wild government overreaching and callous disregard of consitutional rights are implausible. The aim of the fourth amendment is for the government to act reasonably, which in the best case means that the government seek the approval of a magistrate that probable cause justifies the intrusion. Here the prosecutor got warrants, repeatedly. The judgment of the magistrate to issue the warrants need not be perfect, only itself reasonable.

9. Leaks to the public media may be the least of players' worries. It appears to this observer that the BALCO case has drawn the attention of a vigorous prosecutor. In my experience, prosecutorial vigor usually the byproduct of a determined, relentless investigator who will not rest until matters have been set right. I've seen more than once the name of one Special Agent Jeff Novitzky connected with this case. I sense he's been on this matter for awhile, and he's not going to let it go until all culpable parties have been prosecuted to the full extent of the law. Stay tuned on this one. The steroid era is just beginning.

Can No One Play Football in West Virginia?

TSLP spent a busy holiday season doing nothing but work. Of course, when your study is sports law, part of the assignment is cracking open a refreshment and watching the big game. For idiosyncratic reasons I prefer to watch sports with the sound off, but my in-laws were out visiting on their annual inspection tour and so along with advice on how to raise the children (just kidding, loved ones) I got to enjoy the sounds of college football.

While watching the Gator Bowl I was surprised, and perhaps I'm the only one, to hear a commentator mention casually the following observation: the West Virginia University Mountaineers football team has not one single player on its roster who is actually from West Virginia! Do the people of West Virginia know about this? Wow.

Some reflections that I've been thinking about all the new year:

1.Is this comment true? I can't imagine any coach in his right mind at a state university would have no one from the state on his entire football roster. I don't know all the rules and limitations, but I'm pretty sure football rosters can get as big as 100 players, so surely a coach can fit in some kid from downstate. But this comment could well be true with respect to the so-called "traveling roster" that a team is allowed to suit up for away games and presumably bowl games. These rosters are usually around 50.

2. One perspective is that an entire (traveling) roster made up of out-of-state students is a good thing for the university. It enhances the geographic diversity of the student body, helps the school to advertise its national appeal and prominence, and also places the football program in particular as competitive among top national football powerhouses.

3. But how do the taxpayers of West Virginia feel about this? Some might be pleased, for the reasons mentioned above but also because they want their state team to win games and compete for national rankings. But not so fast. Change the description from "out-of-state" players to "out-of-country" and then see what you think. Do U.S. taxpayers want their tax-supported universities to award precious scholarships to athletes from foreign countries, instead of to the children of the taxpayers (generally speaking) who made the scholarships possible?

4. Coaches clearly feel the pressure to win. Students from foreign countries can, particularly in certain sports such as basketball, track and tennis, improve teams a great deal. College tennis in particular has come to be dominated by foreign-born scholarship athletes. Should we care? Is the purpose of the tennis team at the state college to win matches? Or is it to provide a place for U.S.-born college students who are very good in tennis to play tennis? Should scholarships funded domestically be awarded preferentially to domestic athletes?

5. Foreign-born students also enhance a school's diversity, allow for claims of global standing by the university, and can be very deserving scholarship recipients, at least if "deserving" is defined to include comparative indigency, diligence, and achievement. American players might not always have the competitive, even desperate drive that athletes born in more difficult circumstances sometimes exhibit. So perhaps it's correct to say that the foreign-born athlete has earned the scholarship over the U.S.-born competitor. But that's only if the award of the scholarship is determined by "merit" in this simple sense.

6. That sense of merit is simple only because it assumes that the purpose of the college team is equally simple. If the purpose of the team is to win national competitions, then the scholarship should go to the best player, whatever his country or state of origin. But if the purpose of the college game is to provide young men and women an opportunity for personal growth, educational experience, individual achievement, team cooperation, and so forth; in short, all the sentimental stuff that misty-eyed coaches, athletic department faculty and administrators, and NCAA presidents talk about when they talk about the importance and virtue of the collegiate athletic experience, then the university should restrict the allocation of those scholarships to people it selects to accord all that educational value. And one important criterion on which state schools do in fact choose to allocate their beneficence is state citizenship, limiting awards to those who are subject to state taxation and who will likely reside in the state after graduation. So which is it? What is the purpose of college sports?

7. If college sports are all about winning, then the goal or aim of a college team is no different than that of any professional team. Players should be paid; ideally, we should decouple the terms "student" and "athlete." The decision to force these young people to be both students and athletes simultaneously places incommensurable burdens on both roles. One of the roles gets shortchanged, and of course it's the "student" side of things that falls off. (How can a young student resist an overbearing coach? Instead, the gentler demands of the professor are put to the side.) Inevitably, the academic institution itself is corrupted. As has happened, repeatedly.

8. So the purpose of college sport has to lie in its educational value. If so, then state residents should form the primary beneficiaries of state university scholarships, even athletic scholarships. Not exclusively, of course, as there will always be a handful of deserving athletes from foreign lands. But if some hotshot football player from Florida has a scholarship offer from a Florida school, then why should the state school in West Virginia bypass a local kid who's spent his youth dreaming of being a Mountaineer in favor of "recruiting" some reluctant Floridian to turn down his Gator offer and come to Huntington? It's not as if the Floridian will go without the substantial educational benefit of college. But the West Virginian may.

9. What would be so wrong with this? Let's see the boys from West Virginia play football against those from other states. I wonder if a state legislature that cares more about state youth than it does state pride could order the State U to limit athletic scholarships to state residents. A lot of kids spend their youth practicing their games in the hope of landing an athletic scholarship. Why isn't rewarding them more important than fielding the best team?

10. Having watched the last dozen or so bowl games (I'm a tireless worker), I now know why I don't like college football so much. It's all about assembling the best athletes and trying to win. That's what the pros are for, and I love professional sports; these college teams are second-rate,when stacked up along that dimension. I'd care more about college sports were it about local teams and local kids, alma maters and the good old try. I look at these super-teams from national football powerhouse schools more like curiosities, with detachment, not affection. I'm sure many of the players look at their schools the same way.