Final Entry from Boston

The last panel of the conference was comprised of the heads of three of sports major unions: Billy Hunter of the NBPA, Donald Fehr of MLBPA, and Gene Upshaw of the NFLPA. Most of their comments were (consistent with the theme of the conference) in the nature of informing attendees of the news. I spoke to one veteran lawyer who said he attends the conference every couple of years "just to make sure he learns nothing," in other words, to be certain his knowledge is sufficiently complete even before arrival. That comment's more than a little smug, but it's also sad that a conference could assemble so many bright, innovative lawyers and have nothing of value in terms of new thinking to give this veteran lawyer something to take away. Sports law is a far too intellectually stimulating field to aim this low.

Not much in the way of news to add from the union bosses' panel, although it did appear that some news reporters were in attendance. I'm not sure what should be done about their inclusion, as reporters often show up at conferences, but certainly their visible presence (one even asked a reporter-like question about the executive directors' salary) undoubtedly makes the commentators more guarded. But like I said, what to do about it? Bloggers like me could just as easily use our little forums to break news or disclose unusually frank and perhaps newsworthy comments by public figures. Not that I would. In TSLP's world, only what TSLP says is news. Let these public figures get their own blogs.

Instead, since the lack of genuine reflection in the comments leaves little grist for my particular mill, I thought I'd use the last panel to try to take measures of the men. How would I describe Hunter, Fehr and Upshaw? Here's my scouting report:

1. Billy Hunter: It was hard to get a read on this guy, since it looked like he really didn't want to be here. His speaking manner was quite rough, with poorly formed sentences and incomplete thoughts. All this suggested to me that Hunter really didn't care what impression he made on the rest of us. Yet here's a guy negotiating a pretty complicated CBA and butting heads with David Stern's fast crowd, so obviously he knows what he's doing in his practice. I would worry about working with a union boss like him, as I'd wonder if the disdain his manner suggested today indicates he's someone who doesn't listen much to others. But hey, as he said, he serves at the pleasure of the players, so his lengthy tenure suggests he's doing something right. Hard to figure this one out. Grade: Incomplete.

2. Donald Fehr: My heart goes out to Bud Selig, and I'm as surprised as can be to feel that way. Fehr was the opposite of Hunter, taking every opportunity, and even making a few more where none existed, to lecture the rest of us about whatever was on his mind. This man came across as insufferable, and I was only in the room with him for an hour. At one point, a person in the audience innocently and concisely asked Billy Hunter about the NBA's age limit on entry. After Hunter gave his answer, Fehr butted in to say he "found the question offensive," as if just the idea of asking about an age limit was tantamount to a frontal attack on the union or racist speech or something. If these kids can go to war, then by golly why can't they play basketball too? Gee, Don, nearly every worthwhile occupation in the world, including your little learned profession, has various requirements to entry: do all such requirements offend you? Next time someone asks me about the need for a bar exam, I'm going to reply that the question offends me and refuse to answer it. Grade: C (plus a half-grade off for bad conduct).

3. Gene Upshaw: Can we form a union of law profs and hire this guy? He absolutely stood out. Cogent, principled, decisive, knowledgeable. And the irony is that this is the union chief who by far gets the most flak in the public discourse. He's clearly a guy who would be a tough negotiator yet at the same time someone who would listen to reason. TSLP will soon be putting together my all-star roster for my biennial sports law conference at Willamette. I'm going to ask Upshaw to give the keynote. Grade: A

4. Off the Red Sox game tonight and back to sunny Oregon in the morning. I'll get back to my regular substantive posts starting next week.

Getaway Day

I am an occasional speaker at academic conferences, and know that the timing of the panel on which I am invited to speak is crucial. When the conference organizer asks me to present my thoughts at a Saturday morning panel, the only self-respecting response is to hang up the phone (and wait for the conciliatory call). Everyone knows Saturday is Getaway Day, with attendees parking their luggage in the corner of the ballroom, constantly checking their watches, and leaving abruptly (and noisily) at inopportune times during the presentation. A Saturday assignment is a sign of disrespect; accordingly, the slots are typically assigned to young professors looking to make their mark. (TSLP, no longer young and having made no mark, still puts up a fuss over the smallest slights, having been raised wrong.)

Not so here at the annual meeting of the Sports Lawyers Association. The Saturday panels feature the conference's high-flyers, the in-house lawyers from the major sports leagues and their respective player associations. But it's still getaway day for everyone else, so amidst the applause and happy feelings for the big fish in this small pond are the usual luggage piles and noisy departures. (TSLP, whose lifestyle is hemmed in by the financial need to fly commercial, can't get back to the west coast until tomorrow, so I'll be braving it alone in the hotel for one last night.)

First panel up this morning (in all senses) is the management side, featuring a number of league in-house general counsel types. It's an outrage, along many fronts:

1. The NHL lawyer couldn't be here, as he has to be in Buffalo to present a conference trophy, if it's won tonight. I can't believe the league uses its lawyer for such a function. As much as practicing lawyers make in salary (their lifestyle is not hemmed in), lawyers should charge more, if only to remind our clients to employ us for those tasks that only we can do.

2. The baseball lawyer just said that he wouldn't answer any questions on Barry Bonds or baseball's steroids problem. What is this, a news conference? I can't imagine a law professor in giving a paper state that he refuses to speak or take questions about certain aspects of his comments. The fact that the baseball lawyer felt comfortable in setting the parameters of the discussion (if we ever get to one) shows me that this conference, although it has its moments, fundamentally does not aspire to be a "real" conference, where topics are thoughtfully considered and debated among like-minded colleagues. I realize that an MLB insider has certain duties not to spoil the pitch for his sport, but if his comments must be filtered then to me that's a strong reason not to include such a person on a panel. Do you realize we've now had several very high-level baseball officials on the podium and yet we've yet to have one serious discussion of what MLB should do, if anything, about Barry Bonds and the whole steroids issue, even though one could make a pretty strong case that that's the most pressing issue confronting baseball in this entire era? Don't you think baseball's lawyers might like to give their thinking on the permissible and appropriate legal response to performance enhancement and then open the floor to questions and comments, if only to hear what a roomful of very bright people might come up with that would add to baseball's collective thinking? Might we have something to offer?

3. Instead, what we get are "updates" and reports on the latest business successes of the sports leagues. (For example, right now the NHL person is reporting to us on "how very excited" her league is to issue new team uniforms next season. Glad I came 3000 miles to hear that.) I find this fundamentally disdainful, as it presumes that there is nothing I nor anyone else here could offer by way of useful commentary on issues of somewhat greater importance. Even thoughtful questions can often lead to valuable reconsideration of difficult subjects. Yet throughout the conference seldom is time left for audience comments, and even where it is, the nature of the presentations ("here's the news") doesn't invite contemplative rejoinder. One wouldn't ask a witness to a train wreck if some other method of railroad safety would work better; the witness is just reporting on the facts. Admittedly, the news has value. But I think the SLA is selling itself and its conference participants short. The best thing about the SLA and sports law is that its a small enough backwater of the legal world that most of its major people (and many of its minor ones, including TSLP) can be easily gathered in a single mid-sized hotel and put into what is more or less a single conversation. We could all learn a lot from each other. The lack of a meaningful conversation, and indeed its replacement with the guarded commentary of the press conference, not only fails the advancement of sports law, it's presumptuous, implying that some have nothing to learn from their colleagues.

4. Up next is the union side. Maybe these wild men of the modern sports era will open things up. TSLP, now fully re-caffeinated after a late night out with an old friend, is ready to go.

The SLA Goes Over to the Dark Side

Basically legal conferences come in one of two flavors. One flavor, the kind I prefer, I'll refer to as an "academic conference," one where issues are explored in a way that interrogates nearly every aspect of a rule. Rules are looked at as provisional and subject to rethinking and change. (Perhaps needless to say, speakers at these conferences, and most attendees, are law professors or academic-minded practitioners.) The other flavor of conferences might be thought of as a "practitioner conference," where the rules are taken as an inalterable given and the main mission of the conference is to inculcate the rules, perhaps discuss their manipulation, and focus on enforcement mechanisms and other practical concerns. Since I don't practice law (I tried it for a while, but was paid too much money, more than I needed), I don't have more than a passing interest in the latter type of conference.

With that said, many law conferences try to mix it up, filling their podia with a mix of academics and practitioners and spending a fair amount of time in both the information-impartation mode and the rule-interrogation mode. Those conferences can be tricky to pull off, but can also be the best for all concerned. For the academic lawyers in attendance, a small understanding of seemingly intractable practical problems that practicing lawyers face infuses our thinking with helpful factual information; for the practitioners, learning about plausible alternatives to extant doctrines gives their practice a more thoughtful, creative possibility. I thought last year the SLA conference did a pretty good job being useful along both tracks.

This year, not so much.

1. Just found out tonight's Red Sox game is rained out. Now I'm really in a mood. I had planned to go to the game with an old friend and eat hotdogs. Now we'll have lobster bisque in the hushed quiet of some Boston restaurant. Not the same and not as good, although I'll make do.

2. I'm sorry to say that today's panels were unrelentingly in the mode of information-impartation. Here's the rule, and here's what we do about it. The panel on sports gambling by athletes, a particular interest of mine, was particularly telling. First a person connected with the NCAA enforcement told us that the NCAA's rules prohibited all bets by athletes, with severe sanctions for non-compliance. Even a college golfer in a non-scholarship Division III program who puts five bucks in the March Madness pool violates NCAA rules, the NCAA lawyer told us, unblinkingly. Then the NFL lawyer told us how all bets, even on one's team to win, like Pete Rose's bets, are corrupting of the integrity of the contest and to be punished seriously, and here's how we do it. The discussion was all about how enforcement is accomplished, how we catch them, how we fought against the pro-gambling lobby, and so forth. Basically it was a presentation by cops. Not one minute was spent on the actual wisdom of these rules. Why does the NCAA chase after D-III golfers betting a few dollars on a nassau? Did those benighted pro-gambling folks have anything to say about the NFL's policy that the NFL should consider? Another panel employed a "mock negotiation" between two lawyers with respect to a fictitious female golfer. Practicing law is fun, most times, but there's a reason it's not a spectator sport, at least not with respect to made-up clients.

3. I do enjoy getting information and having some new issues brought to my attention. The best panel so far was an explanation of the financing vehicles used in major team sports. Presented by a lawyer and an investment banker, the panelists laid out the ways professional teams use holding companies, and even holding companies to hold their holding companies, to get around (evade, it looked like) the limitations leagues impose on the total debt that a particular team may carry. It's not quite an evasion because the leagues are well aware of the practice (indeed, one of them ties its debt limit to the entire enterprise, not just the team, specifically for this reason), and seem to condone it. There is an economic reality to the super-holding companies, in that they tie their loans to assets other than the basic team revenues, such as concessions and the like. Still, the bottom line is that the enterprise that fundamentally consists of the revenue derived (in various forms) from a single team can be leveraged far in excess of the publicized limits to which the major league sports claim they adhere. I suppose we should worry about this, but it strikes me that the greater liberality of the investment bankers suggests that the leagues' debt limitations are unworkable, and probably (and needlessly) serve to drive up the cost of debt financing of their member clubs.

Day Two:TSLP The Morning

Overslept the alarm by about 15 minutes, raced through the shower, and ran down the hallway to get to the free breakfast at its opening. I was about five minutes late; I might as well have waited for lunch. The continental breakfast setup looked as if it had been picked over by two college football teams and an army regiment. Food particles were everywhere, showing that the hungry horde of sports lawyers had tried bites of all the food, homing in on the best, which was evidenced by empty trays. There was some coffee left (milk gone) and some kind of mango juice. Of course, plenty of cheese always present.

While I'm beefing, all the materials for the conference were provided on a CD, which is fine, except the ballroom used to hold the meetings has only a few electrical outlets along the wall, none at all among the chairs lined up across the room. Not so useful when the battery runs out, which is fast when you're uploading from a CD. Luckily, TSLP found an empty chair along the rear wall, right next to one of the carnage-strewn "dirty-dish" tables, and so I got myself computing power. And even better, a weak yet functional wireless signal is reaching this corner of the room, broadcast from the business center down the hall. The fellow next to me and I are just giddy with our luck, giggling like schoolchildren who stumbled across the answers to the exam. I'm here on the cutting edge of technology, right in the grand ballroom of the Hotel Royal Sonesta.

Nice hotel. Except I hate the fact that hotels today have these little cards that provide a few paragraphs about the importance of the environment and the hotel's particular commitment to it, and then, in about paragraph three, tell you that if you want your bed linens changed you have to leave the darn card on your bed pillow. The default rule, if the card is not properly positioned on the pillow, is that the hotel staff will just make up your bed and leave it at that. First, the default rule is probably contrary to what most people want: having crisp, clean sheets on the hotel bed is one of the few petty luxuries that we middle-class people can enjoy when we travel. Second, placing the option to change the default rule on a small card with lots of inane writing, instead of on a bright red-lettered and brief card that says "Put on Pillow to Change Linens," just shows me that these hotels are as enthusiastic about changing the sheets as Best Buy is about making its heavily advertised rebates easily available to its customers. I've learned the hard way to ignore the claimed rebates when shopping at Best Buy because I know I won't go through the paperwork hassle of getting the refund. But where's my purchasing option when I check into the Hotel Royal Sonesta? Can I just notify the front desk upon arrival that I want clean sheets daily? Should I make up my own card that informs the maid that, after lengthy explanation of my personal philosophy and commitment, should a tip be desired, to please place this card on the pillow of my freshly made bed?

As you've guessed, and as Mrs. TSLP well knows, TSLP does not travel well. I am a pretty veteran consumer of law conferences, however, so here's my report on the morning at the annual meeting of the Sports Lawyers Association:

1. The first panel was of a type we often see at law conferences, and is nearly always a mistake. The topic was the athlete's right to publicity and the advent of fantasy leagues, so basically we got a discussion of the CBC decision (now on appeal) refusing to require fantasy league owners to purchase licenses from MLBPA to use player names and statistics in their games. What happens is the conference organizer basically invites the lawyers from each side of the case to present (which is what happened here) and assumes that the ensuing discussion will be a good one. Nope. Never happens, not in my experience. There's no way that lawyers, especially when still in the midst of litigation, can rise above their partisan positions and offer sagacious, detached comments on the merits of their position or the state of the jurisprudence. They're paid representatives, and they're going to use this forum, and every forum to which they're invited, to further their client's interests and to moot their case. So what happens is that, instead of providing a thoughtful review of the issues, the participants battle each other at every turn, over which area of the law applies, over which particular legal standards or doctrines are the relevant ones, over the facts of the case, over everything. That's what happened here. The panelists began about 90% of their comments with, "I completely disagree." It reminded me of my days as a clerk for an appellate court, and was about equally useful. When I was a clerk, we would hear the oral arguments, sigh deeply at how unhelpful they were, and then resolve to head back to the law library to figure the matter out for ourselves. One day oral advocates will realize that their job is to help the judges, not convince them. The best oral advocate I ever heard while clerking was Prof. Alan Dershowitz of Harvard. He did it right: explaining the law, considering it fairly from both perspectives, and then explaining why his client's position made more sense. It was masterly. He lost.

2. Got Alan "Bud" Selig stopping by for lunch. I look forward to it. I once had lunch with Justice William Brennan, and I remember it well. While we were drinking coffee after a fine meal, Bill smiled, looked up and said to me . . . . May I legitimately say that, to put it so intimately? Does it matter that there were about 2000 other people sitting in the room having lunch with Justice Brennan? Is it relevant that I was sitting in the far back of the ballroom, as I will be today, and that Justice Brennan could no more clearly see me than he could an airplane soaring past at altitude? I wonder what the rules of expression are here. Can I now claim to future generations of sports law classes that I had lunch with Commissioner Selig? Can I call him "Bud" and add whatever he says to my list of self-aggrandizing war stories with which I try to excite cynical students? May I say that "Bud said to me" whatever of interest he says? Yes, I can, and I will. Got to end this for now. I'm having lunch with the Commissioner of Major League Baseball and Bud hates it when I keep him waiting.

3. One more thing: so I'm sitting in the back of the hotel ballroom luxuriating in my wireless access, but since I'll need a seat at a table for my intimate lunch with Bud Selig, I put some of my stash on a nearby chair at a table. So some guy walks up, moves my stuff, and sits down. I go over to retrieve my stuff, and the guy says "sorry" to me for taking my chair. So I wait. He sits. If he's sorry, why doesn't he remedy the wrong by moving (plenty of room up front, where of course no one wants to sit, more or less alone). He wasn't sorry. He just took my place and figured he'd say he's sorry and that's it. TSLP is now one grumpy guy. Maybe lunch with my pal Bud Selig will brighten my mood. Bud is such a card; he always cheers me up.

First Day Review and Comments

Back in my room; internet connection reestablished. I wonder how a huge, high-end hotel can broadcast its wireless signal to every room in two skyscraper towers but can't manage to beam it to the comparatively small common areas where people would actually use their laptops to do some work. On the other hand, I do like the flat-screen television on the wall. Got the Red Sox-Tigers on one channel, the Pistons-Bulls on the other, remote at my side for rapid channel reversals. For most guys, this is slacking off; for me, this is the job. I keep up as best I can.

Hey, that's Bud Selig doing a guest interview during the Red Sox telecast. Can't type fast enough to report it all (not with a beer resting on the pillow to my right) but Selig did say how the idea of interleague play (which starts tomorrow) came to him as a kid listening to Bill Veeck on the radio. Gee, I hope more thought went into it than that. Veeck was the flamboyant owner who made his name as a promoter/salesman, cooking up wild schemes to draw fan interest. Is Bud basically admitting that interleague play is a marketing ploy and nothing else? Let the owners market the teams; the commissioner should stick to game integrity. As for interleague play, what about the schedule inequities? Bud, do you realize playoff races are being decided on the differences in the schedules? The NFL is lucky: football is such a great game that the NFL can get away with huge schedule discrepancies, yearly rule changes, random expansion, bogus penalties and other shenanigans. MLB has to be more careful and must hold on to its traditions, as it's the game's history that propels the passing of baseball, an acquired taste, from father to son. Stop screwing around with the game, Bud. Veeck is also the guy who sent a "small person" to the plate to draw a walk. Gee, if more fans would watch, would Bud try that one too? Selig also allowed how MLB will celebrate Bonds' record home run, but that he won't reveal presently exactly how MLB will celebrate that homer. Such suspense! I can't wait to find out all the celebration details. Will there be fireworks? TSLP likes bright, flashy things. This will be good.

So here's Day One at the Sports Lawyers conference, reported in the form of irresponsible generalizations and half-baked opinions:

1. As I guess is the custom, Professor (now Dean) Gary Roberts kicks it off with a 90-minute chronicle of the year in sports law. It sets a nice tone for the weekend and brings up some interesting issues and developments. Not even going to try to summarize all the points, as the talk just runs around, rapid-fire, through a host of issues. But here's the problem with the summary: as is common in the genre, it can devolve into a mere rapid reading of unrelated points and case dispositions. Just the news, really. Now I guess there's value in bringing the news to the attention of people who need it, but I'd bet the great majority of those in attendance had heard of nearly all that Roberts mentioned. Still, it's good to be reminded of it all (and given an outline), but I'd like to see Roberts do more. The outline is really good, so let it speak for itself. Instead of reading parts of it, instead spend the hour putting some of these developments into historical perspective, or discussing developing themes in the jurisprudence. Roberts has the candlepower to do more, having co-edited the best casebook in the field, but he seems to content himself with adding a few smart comments and little jokes to the materials, but not much more.

2. One issue Roberts mentioned that caught my attention: apparently a Canadian labor relations board ruled that the players on the Vancouver Canucks may form their own bargaining unit apart from the NHLPA, under Canadian law. (Owners of team sports have always had a morbid, and perhaps overblown, fear of groups of players fewer than the whole banding together for bargaining purposes: the fear of Mike Schmidt and Larry Bowa doing a two-man negotiation led to MLB's insistence on the "no collusion" language in the CBA, a clause that came back to haunt the owners just a few years later when it formed the basis for the huge collusion damages that the owners had to pay the players.) The other development that bears watching was the report that the IRS in the near future plans to investigate "unrelated business" income of otherwise non-profit universities, with the possibility of income tax resulting. The biggest unrelated business of universities? What everyone calls the "revenue" sports (football and basketball). Bet the U's won't be calling them revenue sports any more.

3. The other topic of interest was the ethics panel. Basically there's an elephant in the room (metaphorically speaking; the hotel's common areas are too small) that no one really wants to discuss. Here's the problem: I used to teach legal ethics, as many young professors have to do until they make tenure and beg their way out of it. That's a problem, but not the problem here in Boston. Again, here's the problem: most sports agents are lawyers and (clearly) act as lawyers when they represent athletes; just as clearly, the ethics rules that govern attorneys prohibit, in no uncertain terms, exactly what sports agents do every day, such as soliciting clients, performing legal work in states where they're not admitted (unauthorized practice), representing multiple clients with conflicting interests, etc. These are major ethics issues. So basically the first speaker on the panel, a law professor who teaches legal ethics, reads the rules verbatim and concludes that lawyers who are sports agents cannot solicit athletes for their business, cannot represent multiple athletes competing for the same job, etc. Uncomfortable silence ensues, a little polite applause at the end. Everyone here knows that solicitation is prohibited but everyone has to do it, because if they don't, then the unconstrained non-lawyer agents will get all the representations while sports lawyer-agents sit behind their desks waiting for clients to find their names in the phone book. We sports law professors need to switch off the games and get these big ethical issues resolved, pronto. (Two minutes left in the third quarter; I'll get to it soon.)

4. The other guys on the panel provided the comic relief. Here we just had a panelist (most cordially) accuse the entire room of unethical conduct, and the response of those who even addressed the accusation? They said that, as long as the agent looks out for the best interests of the client and treats the client fairly, all is well. In other words, just do good business. But doing good business is the road to hell, or at least to the wrong side of a bar disciplinary decision. Legal ethics command lawyers to act in ways that are often counter-intuitive in a business sense. The very point of prohibiting a conflict of interest is that, no matter how well-intentioned the actor, he or she cannot act "fairly" because every act that helps one client (to use a conflicts example) hurts another. So when the agent representing two free-agent first basemen pushes one player for an open position with a certain team he necessarily injures the interests of the other. The last speaker defended large, consolidated agency firms against a conflict-of-interest charge on the grounds that large firms are good for the athletes and create business efficiencies. I've never heard a conflict of interest defended on the ground that it generated an efficient business model; undoubtedly separate representations are financially costly, but that argument proves too much.

5. On to tomorrow. Free breakfast in the morning, so I'm calling in for an early wake-up call. One comment on the Bulls-Pistons game: I realize Bill Simmons has made this point repeatedly, but really, couldn't somebody at ESPN mention to Hubie Brown that he incessantly, irritatingly, repeatedly talks in the second person? That he has two other persons to try out? Hubie is so constantly in the second person that he gets other people talking that way too: Mike Tirico just used the second person in asking Hubie a question. How can ESPN have so much money but not hire anyone to offer Hubie even this small suggestion?

Inside Account at the SLA Annual Conference

TSLP here reporting live from the annual meeting of the Sports Lawyers Association. This year's event is being held in Boston (by wild coincidence, the Red Sox are in town!), surely part of the reason this year's conference (we're told) is the largest yet in terms of attendance. I've seen the SLA meeting touted as a good way for newcomers to make contacts and spread their name in the industry. Not sure about that claim, but it does seem like, more than the last time I attended (last spring), there's a large number of young people here all looking around the room constantly for familiar or famous faces. Academic conferences are the worst at this: people talk to each other without looking at each other, instead looking around the room to see who else is there. What's wild is that all the glances that come my way seem to be at my chest, where my name badge rests. (Now I know what it must be like to be a woman: my sincere sympathy goes out to every woman in the world (and a belated apology to some for TSLP's pre-pubescent glances).) Yes, even academics swathed in the cocoon of tenure evidence deep insecurities and job-envy. Luckily TSLP is above all concerns about privilege and standing, although I did complain to event staff within minutes of my arrival that my school affiliation is misspelled in the conference materials. A person of my status, with a blog and all, certainly deserves better.

So here's the inside scoop, after I complain about the hotel's failure to provide me adequate pampering. I'll add some thoughts as the days go by:

1. Hotel Royal Sonesta, in Cambridge, is the spot. Nice, kind of art-deco theme, on the banks of the Charles River. The river provides a nice view and walking feature; TSLP, although very poorly sighted, did see a couple of fishermen in a boat netting those blue/black river herring just outside the hotel very early this morning. I don't keep up too much anymore on Massachusetts politics, but aren't those fish protected? These guys were netting the fish in the hundreds, right in plain view, so I must be wrong in that recollection (maybe the mind is waning along with the eyesight). So I guess the fish have to fend for themselves. But back to me: this hotel, expensive at every turn, charges me $10 per day just to access its wireless internet. So I pay (or rather, my dean just did, as I'll soon let him know), and come to find out, that access is only usable in my hotel room or in the cramped business center off the main lobby. In other words, no internet access in the lobby areas, ballrooms and meeting rooms, the very spots I want it (to pass the time during the conference events). The only way to write this entry is from here, the business center, where I stand shoulder to shoulder with every other lawyer on break from the main meeting, all of us moving our laptops around trying to get an internet connection. For over 200 bucks per room per day, plus 10 for the internet, couldn't the hotel let me access anywhere on the property? I love the capitalist system, having made some money from it, but there's no way a competitor can compete away these growing user fees that get tacked on to one's hotel bill. We need a huge federal oversight regulatory agency to look at this problem, and quickly, before I check out.

2. So I took a break from the meetings to eat a quick lunch (along with this break to write for the blog, that's two breaks, and it's only the first day). I sat at the hotel bar, where the Red Sox game was showing. At the bar were about seven other conference attendees also on their first break. They all looked like sports agents. (Stereotype warning; if you're offended by gross generalizations about people, scroll down quickly.) How do sports agents look? Picture driven, high-energy young people, well-dressed, with an ear that has re-formed itself into the shape of a cell phone. So I'm at the bar seated alone (TSLP refuses to socialize at the conference, in order to maintain my critical distance) and so are these other seven friendless people, but here's the difference: they spent the entire lunch talking, rather loudly, on the phone. Picture seven people all sitting within a few yards of each other having involved conversations into cell phones, a couple of the phones of the "handless" type, where the user appears to be speaking into the air, like an idiot. These are sports agents.

3. Speaking of sports agents, if you thinking about being one, two words of advice: (1) buy a good cell phone, and (2) read Pete Williams' The Draft: A Year Inside the NFL's Search for Talent. I read it on the plane to Boston. The book needs better editing (several anecdotes and descriptions are needlessly repeated), and is only moderately insightful, but it does give a pretty closeup description of the life of the sports agent. Most agents are lawyers, but it looks like to me that the practice of law is only a very small part of the job. A lot of one's time is spent snuggling up to college athletes, hoping to attract their signature on a representation agreement. It's a very competitive business, to be sure, and not for the faint of heart. It's also a business where the winners and losers are determined by the decisions of young, capricious students (much like being a professor, now that I think of it).

4. I have more to say; in fact, I haven't even commented on the conference yet. But I see it's break time, which means free food and coffee in the lobby. TSLP has to hurry, to beat the agents to the food. Although generally I'm laid back, TSLP will compete for food.

Racial Bias in Foul Calls

Today's big debate is over this report in the New York Times of a study purporting to find a detectable bias among referees in calling more fouls against members of a "race" other than their own. (The NBA's own account of the data, or perhaps a different data set, apparently shows no discernible differences.) According to the Times, the paper will be presented in the near future, so I should be able to get a copy shortly. In any event, just from reading the Times' account, I do have a few questions (which admittedly the study may answer adequately).

Here's why the study's conclusions may be wrong:

1. As I write, the majority of NBA referees are white; the majority of players black. The study examines summary game data and the race of the players and officials; the study shows a correlation between the mere presence of white referees with an increase in fouls. In other words, the study did not have specific data on which of the three referees working a particular game called particular fouls, only that the presence of white refs meant more fouls for black players. The increased fouls may, in fact, have been called by the one or two black refs working a particular game. All the study proves is that games refereed by white refs are called "tighter" than games without them. I'm guessing (pretty confidently) that the white refs are also the more veteran refs, on average. In other words, one plausible interpretation of the data is that the NBA's veteran refs tend to call a slightly tighter game, giving out more fouls.

2. Black players may in fact commit more fouls than white players. Why? Let's assume black players in the NBA are, on average, better players than the white NBA players. "Better" means better along all dimensions, including defense. Thus a coach will assign his best defensive players (black, on average) to guard the opponent's best scorer (black, on average). Top scorers draw the most fouls. The Times reports that the study controls for a player's position and all-star status, but that seems inadequate to me. Some players, even if not all-stars, are excellent scorers who are adept, even on entering the league, at drawing fouls. These black scorers will tend to be guarded by black defenders (again speaking of averages). These black defenders will be whistled for a greater number of transgressions. This effect could be magnified if, as is often claimed, certain referees favor certain star players. Think of Dick Bavetta sending Dwyane Wade to the free throw line at every conceivable opportunity: the poor player guarding Wade (presumably a black) will be assigned these fouls.

3. Why does a study that shows an enhanced likelihood of fouls suffered by blacks prove racial bias? I watch a lot of NBA games. It is not at all uncommon to see but two whites on the court at any one time, and often they are guarding each other (for example, opposing centers). So when two black players get involved in a charge/blocking call situation, the toughest of all calls to make, why is the fact that a foul call is made (either way) instead of not made evidence of bias against a player on account of his race? A black player will be unhappy in either case, either from the foul being called or not called. If a foul is called, then by definition it will be assigned to a black player. I would think conclusions of the sort the authors seem to claim in the Times article would require one to examine plays where whites and blacks are involved in contact, and the foul is called against the black disproportionately. Yet the author of the study is quoted in the Times as claiming that "if you spray painted one of your starters white, you'd win a few more games." The study does not seem to support that conclusion.

4. I might have mentioned I watch a lot of NBA games. What I also see is that most NBA teams feature a lot of "isolations" in their offenses. (We have Pat Riley, Mike Fratello and other control-freak coaches to thank for this wonderfully entertaining style of play.) The way it works is this: take your offensively challenged players, tell them to stand as far away from the basketball and the hoop as possible while still being over the half-court line, then give the ball to your superstar, let him dribble around for a while, go one-on-one, and then shoot. Who are these isolation stars? Kobe Bryant, Paul Pierce, Lebron James (blacks). And who stands around on the outside watching play, just like us at home? Usually the less-skilled big people, which often means the centers, which means Chris Dudley-types (whites). (Forgive the gross generalizations, but that's what this story is about.) Now granted, with the recent rule changes and the arrival of Mike D'Antoni, isolation offense is on the decrease (my prayers answered). But with that said, clever offensive coaches (Doc Rivers, Phil Jackson, for instance) are able to design offenses that still get the ball to the star player in isolation situations. These isolating blacks are being guarded by fellow blacks. These isolators are very skilled at drawing fouls; these top defenders play physically and thus are vulnerable to fouling. Where's the racism? The story might just be that blacks get the ball more and play a more physical game, and that white refs detect fouls within that physicality more often than non-blacks. But it's the physicality to which they respond, not the race.

5. Whites may be better at drawing fouls. "Flopping" is a special (and specially hated) part of the game. For the uninitiated, flopping means pretending you've been fouled (basically by dropping to the floor in a screech of pain as the offensive player brushes past on his way to the basket). The greatest (worst) flopper in history was Vlade Divac, who I'm assuming qualified as "white" (he is Serbian) in the study. Divac was hated (at least by me) for his skill at pretending to be fouled, with success. In today's league, Manu Ginobili of the Spurs (who is Argentinian) is probably also called "white" in the study and is the current cinematic protagonist of the thespian flopping all-stars. Who else can flop? Kirk Heinrich of the Bulls is a master, as is Shane Battier of the Rockets, as is Matt Harpring of the Jazz. I'm not sure about this, but most of those players would be classified as "white." Maybe whites are good at flopping? (TSLP is white, but alas is too afraid to flop; six feet down is too far to go.) Maybe some players (who may be white) learn to flop in order to mask defensive deficiencies or overcome speed disadvantages, and thus find a way to contribute to team victories without scoring? Maybe, after a lifetime's learning, they get good at it? This study could be subtitled, "Whites Good at Flopping; Refs Buy It."

6. What is "white" anyway? Did the study label Europeans as white? If so, European players for years have been described by NBA scouts and insiders as "soft." "Soft" means that they shy away from physical contact on both ends of the floor. Well, if this stereotype is true and these white players are settling for jump shots or playing half-hearted defense or not going hard for rebounds, then won't they be less likely to commit fouls? Is the study really showing that referees favor whites, or is it showing that whites commit fewer fouls in the first place?

7. I'll get the paper soon and see if my concerns are satisfied. It may well be that the authors were able to control for all the factors I mentioned and have indeed uncovered an instance of unconscious racial bias. But I do doubt, in the fluid and confused environment of an NBA game, the referees have time to form and exercise a racial bias, even an unconscious one, as they call fouls. The games move very fast, and the whistles are immediate. I don't think it's even possible to see race in that context.