The Sports Law Professor

NBA at the Crossroads

2011-11-13T14:13:00.000-08:00

The NBA and its players appear unable to reach an agreement on the terms and conditions of labor. A number of proposals have been rejected. From available reports, the primary difference appears to center around the division of income. I suspect, however, that the division of income forms only part of the dispute; the owners have been seeking some very fundamental alterations in the structure of the league, including limits on individual salaries, terminable contracts, and a tightened salary cap. But even if the popular reports are correct and the revenue split is all that stands in the way of an agreement, the fact that the sides have been unable to arrive at satisfying division implies more is at work than simply recalculating percentages.

What could be emerging in the NBA is a complete re-working of league arrangements. The NBA, like most professional sports leagues, embodies a delicate balance between owners with profitable teams and those without, between players paid huge sums and those paid much less, and between agents on the inside and those on the out. There are a lot of moving parts here, and the threat of union decertification that has emerged in the last few weeks suggests that the whole edifice may be about to crash to the ground.

I suspect there is something important going on with the talk by players of decertification. As we've seen recently with the NFL, the usual purpose of decertification is to unleash an antitrust suit against the owners. But it appears that the NBA players who are pushing for decertification may not be targeting the owners. They may be targeting the union.

1. As a formal matter, decertification ends the union, after a period of time. With the end of the union comes the end of the owners' collective exemption from antitrust law. This means that the owners' ability to act jointly in setting the terms and conditions of labor would then be subject to antitrust scrutiny. Although the owners have some very good arguments to justify their collective action, the fact of the matter is that sports owners in general have not done well at the bar of justice. If these hypothetical antitrust suits were to be filed and proceed all the way to the merits, the owners could find many of their questionable labor practices ended, including the rookie draft, salary restrictions, including maximum salaries and the cap, and limitations on freedom of movement by both players and franchises. Decertification could radically change the league.

2. So decertification does provide a means to attack restrictions imposed by owners, albeit by a very long-term and unpredictable process. But decertification provides this means by eliminating the union. Might the intermediate step be the real goal? Might the players be better off without a union?

3. It depends on the player. Like other unions, the NBPA is organized around the principle of "one member, one vote." Each player's vote counts the same. This practice can be problematic in any union where members might have significantly disparate interests. Salary and tenure in professional sports varies markedly among players. In the NBA, star players typically make several times the salary of the journeyman. Arguably, the stars could make even more. The NBA is a league of stars, and with only a few players on the court at a time, stars determine winners and losers. Despite the salience of stars, NBA teams have deep rosters, high minimum wages, and carefully negotiated salary cap exceptions. All of these features are designed to funnel higher wages to veteran, league-average players. Thus, a lot of the money putatively earned by the stars is allocated to average players. The union exists for its majority, and the union's business is to redirect money that would go to stars toward the union rank and file. In a workplace situation where salaries are so disparate, such an arrangement is a powderkeg.

4. The owners have a similar predicament. Most businesses are organized in such a way that the person who has the largest stake in the business is accorded the most control. Someone who owns 70% of a corporation, for instance, will not expect merely "one vote" among other owners in setting the course of the enterprise. Yet that's exactly how the NBA, like other sports leagues, is arranged. The teams that generate the most revenue and thus keep the league afloat are given no more say in running the league than is the most inefficient, money-losing owner of the worst franchise. "One member, one vote" is not only an odd way to run a business; it condemns the league's owners to a perduring state of squabbling among the wealthy and the poor. And the squabble has a theme: the poor want to take from the rich. The small-market owners want the big-market owners to send them a cut of their revenues. Because the owners need to be sure that any revenue-sharing arrangement is protected from antitrust attack, the owners use the periodic reopening of the collective bargaining agreement as an opportunity to reset revenue sharing agreement. Every labor battle contains an "owner battle" too. Like star players, highly profitable owners chafe in having to share their earnings with their less-productive brethren.

5. So the existence of the union sets up a class battle of the haves and have-nots (granted, among wealthy people). The practice of "one member, one vote" means the have-nots among both players and owners outnumber the haves, and will use the collective bargaining process to increase their earnings. Yet it doesn't have to be this way. It is not written in stone that professional athletes must be represented by a union. Might the stars have had enough? Lebron James is paid only 13 million dollars per year (yes, not bad). But that's 13 million per year for 82 games plus another pile of playoff games. On an open market, his salary would likely increase by several times. (For evidence, ten years ago, without a salary cap and without free agency, Michael Jordan was paid a salary over 30 million per year for a similar slate of performances.) The star players, and the "star" franchises, are leaving a lot of money on the table. I can't imagine that sits too well with them, all this talk about unity and brotherhood notwithstanding.

6. Which finally brings us to the agents. They have been mostly invisible during the entire labor dispute. Yet they bear, as usual, the brunt of media displeasure, being blamed for fueling the complaints of the star players, holding up union approval, and generally standing in the way of the return of NBA basketball. (I don't see why it's wrong or nefarious for an agent to advise a star player that the player could significantly increase his earnings if only the union gave greater deference to the stars who generate most of the profits.) The process would be smoother if the agents were given a place at the table. The view that the agent is paid by the player and has interests that dovetail with the player is antiquated. The word "agent" is a misnomer. It is more realistic today to think of sports agents as placement professionals (the ubiquitous "headhunters" that are common in white-collar occupations). Sports agents represent numerous clients with similar skills who seek a limited number of positions. Although the agent answers to the player (and the union), their salary comes from the money paid by the team. (Some headhunters are paid directly by the business.) If there were no agents, it is probably not the case that all of the agents' salaries would go to an increase in player salary; at least with respect to the journeyman, league-average player, that savings would likely accrue to the team. Thus, for these players, agent salaries are paid by the team, in effect. Why shouldn't the agents negotiate the terms of their salary?

By bringing the agents directly into the process, the NBA would have a better chance at finding a place of provisional repose among its many competing elements.

NFL Players Sell the Rookies Short

2011-07-25T21:49:00.000-07:00

Although details remain undisclosed, it appears the new NFL/NFLPA collective bargaining agreement will contain a substantial limitation on the terms of rookie salaries, especially at the top of the draft. This development is troublesome to me, but to others seems to be a point of celebration. I suspect the players association simply didn't care much about the rookies and were oblivious or even dismissive of their best interests. But not even the media or other commentators appear to care about the rookies either. All seemed to agree that the rookie wages were "too high" and "should" be transferred to the pockets of other players. All seem happy that veteran players and team owners reached an agreement to reduce the salaries of players not yet in the league and not yet part of the union. Why do we celebrate this? We should call the police.

Am I the only person alive who cares about children?

1. Start with the unchecked presumption that there is something wrong with a salary structure that lavishes high salaries on very high rookie draft picks. This money, we've been told forever, "should" go to veteran players who have proved themselves, not to these green, ungrateful kids. Repeatedly we're told the story of the high draft pick who earns a large salary but flops in the league. Yes, that episode is a concern. But what about the larger problem, that of the veteran player who gets his large, front-loaded contract and proceeds to lose interest in football? Why don't the union and the owners conspire to take his money away too?

2. It's simply untrue to claim that rookies drafted in the top of the first round are overpaid. They've been drafted in the top of the first round! They've just won a huge tournament, one for which they've been competing since they first put aside the flag belt and put on real football pads. Their stellar play has earned them fans. They will attract attention to the team, like any new acquisition. They show the team's fans that the team has a chance to improve. Assuming your team is a losing one (and thus likely is awarded a high pick), would you rather have your favorite team re-sign one of its veterans (one of the players who contributed to the losing season) or take an educated chance on landing a new star? Top rookies draw fans and generate hope for the franchise.

3. Football is a young man's game. Yet the rookies, bound by dubious interpretations of federal labor laws to be "represented" by a union they are not yet eligible to join, have money taken out of their pocket by the veterans who control the players association. Why is no one writing that story? Why do the media and commentators swallow without question the union line that trumpets seniority over apprenticeship? If veterans are so valuable, then why aren't teams happy to give up their first-round draft picks for aging stars? Why did star receiver Randy Moss, even in the prime of his career, get traded for a fourth-round draft pick? Because high-round rookies are more valuable than veterans! Yet the media continues to think that Randy Moss was worth far more than a mid-round pick, and that somehow the Patriots "stole" him from the misguided Raiders. It's not the Raiders who are misguided, it's the football media that thinks that veterans are worth more than rookies! Tell me again why the veterans should take the rookies' money?

4. One consequence of the rookie wage scale will be a disappearance of the professional sports agent from the scene. With the contract terms for rookies set in the CBA in both salary and years, there will be little left for the agent to do. If this prediction comes true, this will be a problem. Rookies are very young adults. What they need, as they while away their last years of formal education, is help making the important, impactful decision about whether and when to turn professional. Draft status is huge. Today, agents fill that need. Tomorrow, not so much. How would you like a system that forces you to give up your present occupation (college education, by extension) before you are able to find out if someone else will hire you? Most of us like to have our landing spot secure before we tell the boss to get lost. College kids now will have to take a large jump into the unknown, unaided.

5. Keep in mind that the draft system limits player salaries already. A college player who is drafted may negotiate salary with only one potential employer, unlike the rest of us who can negotiate salary with every employer who has an interest. Although the team that drafts a player is under great pressure to sign the player, lest the valuable asset of the draft pick be wasted, on balance the team has the drafted rookie over the barrel. A rookie who declines the team's best offer can forget about playing professional football, a career for which he's been training most of his life. So, the better argument is probably that salaries for the best rookies, high as they were, are probably smaller than the market would pay without a draft.

Now they will be smaller still.

Why The NBA Labor Fight Will Be A Doozy

2011-06-29T13:23:00.000-07:00

I enjoyed the chance the other day to speak with a magazine writer about the impending NBA lockout. Time permitting, I'm happy to oblige. In our conversation we reviewed the basic issues in the NBA labor-management discussions and their likelihood of resolution. But what troubled me was his last question, for which I admitted not having an answer. Why, he wondered, is the current NFL lockout receiving so much more public attention than the NBA's labor troubles? Why the apparent disparity in media coverage? Does the NFL situation raise more issues, perhaps as a legal matter, than does the NBA's predicament?

No, in fact, less. Comparatively speaking, the NFL labor negotiations should be child's play. The NFL owners already have their league set up in a way they like. But it's the owners of the NBA who are deeply dissatisfied. They are hoping to remake the structure of their league in a very fundamental way. It's the NBA situation, not the NFL's, that should garner most of the media attention and cause worry among sports fans.

Let's break this lockout down, pre-game style.

1. Start with the NFL. From an owner's perspective, the basic labor structure of the league is golden. Player contracts are not guaranteed, meaning that players may be cut at several junctures throughout the NFL year with little financial obligation, short of an injury settlement. Teams operate under a "hard cap" that ensures spending parity among teams. Vigorous sharing among teams of revenue from nearly all sources results in a unified, cohesive and nearly foolproof means of sustaining operations and making a profit. Add in beautiful cheerleaders, huge public exposure, lavish media attention and glistening luxury boxes and, well, it's good to be an NFL owner.

2. So why do we have an NFL lockout? What's the big beef? Not much. There are a few pimples left on the fanny of NFL progress to be sure. The owners want to address inordinate rookie salaries at the top of the draft, to resolve complaints about health care for retired players, and to knock a percentage point or two off the current split of revenue with the players. But none of these seem large enough, even in combination, to justify such a significant labor action as the current lockout. I'm convinced that the owners' beef at this time isn't really with the players or the players association. The owners beef is with themselves. The financially successful teams are tired of subsidizing the financial losers. The NFL's insistent and pervasive approach to revenue sharing is simply irksome to certain owners, like Jerry Jones of the Cowboys and Dan Snyder of the Washington team. Implicitly, revenue sharing rewards failure and penalizes profitability. Yet the only way owners can try to adjust extant revenue sharing provisions is to rewrite the document that contains them, the Collective Bargaining Agreement. And the only way to rewrite the CBA is to let it expire (done) and then negotiate a new one with the players. It's odd, but the owners have to lock out the players in order to renegotiate among themselves.

3. So the NFL lockout in theory should be easy to resolve. The owners have to devise a more acceptable formula for revenue sharing, perhaps including a reduction in overall player compensation to make up for some of the shortfall. But that's it, the lockout is just about money, and for the NFL, there's plenty of that to go around.

4. Things look different in the NBA. It appears the league is not awash in money. The owners have tried to make the public case that they are collectively losing money and that those losses are substantial. Indeed, if the NBA is to be believed, it loses more as a league in total than the entire amount the NFL designates as "revenue sharing" among its teams. So, if the NFL is willing to risk adverse public reaction and experience a prolonged labor battle over revenue sharing, imagine the lengths to which the comparatively smaller NBA will go with even more at stake. The NBA is not asking its players association to give back a small portion of salaries to iron out revenue sharing. Instead, the NBA wants to become the NFL. It wants a hard salary cap, an end to the various cap exceptions, increased revenue sharing, and an overall diminishment in league-wide player compensation. These are big issues that involve changes to the fundamental relationship between players and teams.

5. If the NFL owners are serious about these fundamental changes, and it appears they are, then the players will dig in for a protracted fight. The NBPA is not the NFLPA. The football players union has a sketchy history. Members crossed the picket line with regularity during the last NFL interruption in 1987 and who would likely do so again. That the NFL owners hold the upper hand in their negotiations is beyond dispute. But in the NBA, it's a players league. The players are very well paid, and all but the most profligate should be able to withstand even a significant job action. (For the liberal spenders, they might be able to sign with a foreign league to help make ends meet during the lockout.) The players are also tight, having grown up together playing all-star level basketball and commonly hanging out together after games. This is not the NFL, where players will do nearly anything to win the competition among their teammates to get on the field, and then to win the on-field competition for victory and its spoils. This is the NBA, clubby, tight, and friendly. If the owners want a fight, these players will stick together and give it to them.

6. And they will fight, as will the owners, over the one issue that most animates both sides. Above all, this is the key issue in the NBA labor battle. The issue is the guaranteed contract. Take Rashard Lewis of the Washington Wizards. (Take him, please!, beg the owners.) Lewis is at best a journeyman pro. He is also the second-highest paid player in the league. For the owners, Lewis embodies all that is wrong with the league, where such a mediocre player draws such huge compensation and the owners are powerless to change it. Devoting large compensation to underperforming employees is hardly the ideal business model. For the players, Lewis is the poster child for the good life. A few quality seasons, well-timed with impending free-agency, landed Lewis one of the richest contracts in the sport. This contract ensures him against bad play, poor coaching, or injury, and sets him up financially for life. NBA players have long grown accustomed to teammates with bloated guaranteed contracts sitting on the bench. To them, the situation is not troubling; it's inspiring.

7. So forget about the NFL lockout. That will get fixed soon. Instead, keep your eye on the donnybrook just getting started on the NBA side. If the owners are to ever impose such radical changes in the structure of the sport, if the NBA is to become the NFL in terms of labor relations, then the NBA may have to emulate its brother league. Not the NFL, but the NHL. The NHL had to sacrifice an entire season to bring about fundamental, structural changes in player relations. So might our other favorite winter sport, I'm afraid.

More on Online Poker

2011-05-10T10:32:00.001-07:00

Nobody's very happy about the indictments over online poker. I was a guest this morning on NPR's "On Point" program, hosted by Tom Ashbrook. I repeated the same themes about "state-by-state" regulation. I think we look in vain for a single, national resolution to this issue.

Here's Tom's website. Follow the link to "listen to this show" to hear the discussion.

Online Poker Will Come Again

2011-04-27T21:38:00.000-07:00

Yesterday I did a podcast with Chad Millman of ESPN. You can listen to the conversation here. (It's also available on itunes.) We talked about the indictment of the officers of three of the major online poker operators, including Full Tilt and Poker Stars. Basically I try to make the point that, despite the indictments, online poker is legal in many states, and could soon be in several more. Once online operators realize that federal law prohibits only those games that are unlawful under state law, then the operators should resume offering online poker to U.S. citizens who live or happen to be in one of those states. Once the market is large enough (that is, once it includes California), then we'll have a significant online poker presence in the US again.

I also argue that the DOJ overreached with this indictment. It's a nice discussion. My thanks once again to Chad Millman for the opportunity.

Why An NFL Lockout Makes Sense

2011-01-20T11:52:00.000-08:00

The coverage on the impending NFL labor battle sounds a single theme. The story goes something like this: that if only these greedy and dumb billionaires (the owners) and greedy and dumb millionaires (the players) acted reasonably (in other words, if only they were as generous and smart as the rest of us), we'd have a new NFL labor agreement. If only for once these spoiled rich people would think of the good of the game and the needs of the fans, then all would be well.

Does that account seem sufficient? Is "greedy/dumb" the best explanation we can come up with for why the nation's most popular sports league seems about to shoot itself in the foot? The common story seems a bit glib, even dismissive.

Before we conclude someone's acting irrationally, we observers should first see if we can come up with a rational explanation. Why would the NFL owners and the players rationally choose to take the league into a labor crisis? Given that similar labor battles nearly put the NHL into a death spiral and forever blemished MLB's World Series, how can a work stoppage be desirable? What are these people thinking?

They are thinking rationally. At this point in time, it serves the interests of the NFL owners to lock the players out. A labor fight also serves the interests of the NFLPA. Believe it or not, a labor struggle might also serve the rational interests of the fan. That's what I'm rooting for. Let's not have any football in 2011!

1. Let's start with the owners. It's pretty obvious they believe the last collective bargaining agreement was flawed from the start, even as they voted to adopt it. Then-commissioner Paul Tagliabue's lengthy seventeen-year tenure had established immense credibility that he relied on in his final act in selling the labor deal to reluctant owners. In effect, Tagliabue's generous revenue-sharing deal with the players bought labor peace. He succeeded in avoiding the debacles that had recently plagued other professional leagues. But he also lit a time bomb that will soon burn to the end of the fuse.

2. Given their unhappiness with the last deal, the owners have to lock the players out at the outset of next season. It's the only rational move to make. Staging an NFL season involves huge outlays of money by the owners and their licensees. The itemized list is nearly endless, and includes salaries for players, team officials and staff, game officials and others, plus expenses for stadium use and other physical plant. Add in the costs for contracted licensees, including broadcast, merchandise and concessions companies, and the picture grows larger. For sure the NFL and its licensees make some money back as the season goes along. But all the investments are made with an eye to the big payback, the Super Bowl playoffs, the tournament that caps the season and drives the television ratings and advertising revenue. Why would fans care about a regular season if there were to be no crowned champion? If the owners don't lock out the players, they will risk all their substantial investments on a Super Bowl tournament that may never happen. If the owners fail to lock the players out, they in effect give the upper hand to . . .

3. The players. The players association got the benefit of the "Tagliabue payoff" last go round and have long known this fight was coming. Their new chief, DeMaurice Smith, seems exactly the kind of combative and determined union leader who will push the players' side as much as he can. Imagine if the owners decide not to lock the players out for 2011, proceeding to invest in the coming season without the benefit of a labor contract. Smith would time a strike, or at least the threat of one, at the most propitious time. Much like the MLBPA struck and thus precluded a World Series in 1994, Smith could threaten to dismantle the single most compelling and lucrative day in the sports calendar, Super Bowl Sunday. The owners cannot give the union such immense bargaining leverage.

4. The NFLPA is generally thought to be a relatively weak professional athletes' union. The last time it called a strike, in 1987, member loyalty was erratic. Many NFL stars openly crossed the picket line. Player careers in the NFL are short and pay disparity is large; perhaps those factors account for what appears to be the differing interests of players and the endemic weakness of the players association. Or perhaps union leadership has been lacking. What DeMaurice Smith needs is a stronger union. The selection of Smith, along with some of the strident rhetoric that has come from prominent members, suggests that the NFLPA is trying to mimic the more aggressive leadership style of Major League Baseball's players union. Remember, most of the NFLPA's success as a union during the last century came in courtrooms, not at the bargaining table. To get to the courtroom, the NFLPA has to decertify and then litigate; in other words, the NFLPA in effect has been better off dead. But antitrust litigation is expensive and unpredictable; plus courts are today more agreeable to collective action by employers. The new union leadership should (rationally) want to avoid the courtroom; it should want to enhance member loyalty, improve internal discipline, and hammer out a new CBA from a position of strength. Nothing like a good fight to improve the zeal of the rank and file. At bottom, the NFLPA is spoiling for a fight, and rationally needs one for its own good.

5. And you, Joe Fan, you want a labor fight too. The NFL is a great product, but it's just so expensive to be a fan. It's crazily spendy to see games in person: the costs of tickets, parking, seat licenses, concessions, and the like keeps schoolteachers like me at home. But it's even pricey to watch at home, in a sense, as we free viewers "pay" with our impatient attention to games that feature increasing commercial interruptions, sponsor mentions, and product placements. The NFL even makes its tedious "replay reviews" a chance for commercial sponsorship. I watch very few games live any more, not when I can view a game on my DVR in about 30 minutes. The NFL is just getting too expensive. The game has to reduce costs, and one big cost, the major one actually, is player salaries. Don't think the owners (or the players) are just greedy. The owners are in a very competitive market, probably the most competitive market in contemporary America: the market for your leisure time. Any costs savings the owners can wring from the players will find its way into your pocket, making NFL games more accessible in person and more enjoyable at home.

6. Ssshhh, boom, bah
Player lockout, hurrah!
Cut those costs!
All is not lost!
Don't litigate,
Negotiate!
"Won't be a next year,"
He says, moping,
"Try something new, dear,"
She says, hoping.

The Best of the Year

2010-12-21T16:47:00.000-08:00

Here are some of my favorite things from the past year. I'll try to add a word or two of constructive criticism along with my praise, just in the hope of making these favorites even better the next time the sun orbits the earth.

1. The Best Sports Law Blog of 2010
This was a tough one, as obviously I have a horse in the race. So I checked my calculations twice, tried to remain as objective as I could . . . and the winner is . . . The Sports Law Blog! (Darn it. The Sports Law Professor came in 2139th place, in case you were wondering. There's always next year.) The boys at The Sports Law Blog have pretty much become my go-to people for links to new developments, academic articles in the field, and upcoming conferences. There's really no substitute, and I point my browser to the site nearly every day. At times the blog can become a bit self-promotional, but that's an excusable folly. What's less excusable is the habit into which some of the authors have fallen of just raising an issue for discussion and (apparently) hoping for an answer to grow from the comments. That approach may be a way to generate some traffic, but I'd encourage the writers to try for more. Why else take the time to write a blog if not as a forum for your views? (Wait, don't answer that.)

2. The Best New Sports Blog of 2010
Hey, I don't even know if this site is "new" in chronological terms, but it's new to me and this is my blog. (Yes, for you philosophers out there, I'm a radical idealist; nothing exists until I stumble across it.) So I scoured the internet, searching every single server in the world, and have determined that the best new site of the year is . . . Wei Under Par! It provides the insider story of the professional golf tours. Golf is a sport that, as compared to the daily rumor-trading about other important sports, has always been kept buttoned-up. I guess the Tiger Woods fiasco took the wraps off, so to speak, and Wei Under Par shows the golf fan a different side of the great game. The writer (Stephanie Wei) has a clever way of mixing in photos, comments and some genuine reporting to present a fun, quick package. Wei is also cute as a button and spreads plenty of photos of herself on the page, which I suspect is part of the draw. (We at TSLP are considering a similar marketing strategy for next year. May I take photos of Wei off her site and put them on mine?)

3. The Best Sports Magazine of the Year

No contest here, Sports Illustrated has solidified its traditional spot as the king of the general-interest sports magazine. For a few years, a few years ago, SI had become predictable, and had clearly dumbed-down its writing and its subjects. Yet the advent of a strongly edited competitor (ESPN The Magazine) has had a good effect on SI. (I suspect SI initially tried to answer the competitive challenge issued by ESPN by trying to appear more hip and youth-oriented; I don't know.) The magazine seems to this long-time reader to have regained its more literate voice. It is also devoting more of its pages to that which it does best: lengthy articles on the trends in the game, the controversies or scandals surrounding it, or the stories on the redemptive (or tragic) power of sports. I'm glad the experiment with style over substance is ending; I'll be happier when it's over. With all that said, the magazine disappoints recently with its consistently mawkish, leftist, and obvious political tone. The back page editorial is the worst; only Phil Taylor ever gives due regard to what might be considered the opposition view. It worries me that the moralists who inhabit SI's pages seem either unwilling to give (or worse, incapable of giving) due regard to the very substantial arguments that might slow down their rush to a sanctimonious conclusion. For example, a few weeks ago Sports Illustrated published what looked like a Cliff Notes version of the plaintiff's brief in the antitrust case against the BCS. Couldn't the writer have at least called one of the many BCS defenders (or me, if no competent person were available) to make the reader aware that the BCS has some compelling arguments in its favor too?

4. The Best Great Novel of the Year
I mean, wow, I'm sorry about this, but my sense of propriety had long made me shy away from ever reading Lolita, by Vladimir Nabokov. I have owned the book forever, but couldn't bring myself to walk around the house with it, owing to the racy art on the cover and the famously scandalous subject matter. (Yes, I blush easily.) But finally, at the end of last summer and looking for a study break, I finally felt mature enough to turn to the first page. Lo-li-tah, a trip of three steps down the palate. What a book. What an incredible piece of writing. It's a thrill and humbling, all at the same time. That's all; I'm not an English major.

5. The Best Sports Television Show
None. Not one show merited this prestigious, coveted award. In past years I had given this prize to Pardon the Interruption, but that show has slowly morphed into a slightly more thoughtful version of its competitors: increasingly louder, more abrasive, more concerned with the gag or the schtick than with actually saying something about the subject. The show has gone from unmissable to unwatchable. The gimmick where some fellow "scores" the hosts on their comments is just annoying. Here's my constructive criticism: Stop It! Get rid of all the silliness (it doesn't work and at best is stale) and just present two thoughtful commentators debating sports and you'll be back.

6. The Best New Sports Documentary Series By a Worldwide Leader
I guess ESPN's 30 for 30 wins. I didn't see all the documentaries in the series but watched enough of them to bestow the top honor in the category. The good part: the series represents an ambitious project, and ESPN must be commended for devoting so much time and money to programming it most likely does not need. Most of the programs have been good, a few even riveting. Sports has long been a perfect subject for documentaries. The story usually has a denouement (victory on the field), with lots of happenings off-field (obstacles to overcome) to fuel the film. Few walks of life present such a ready-made subject matter for documentaries. But the downside of the sports documentary has been evident in many of the 30-for-30 episodes: it's hard to tell an historical, off-the-field story without a lot of narration. The only film footage typically available is the on-field sports action, which works fine for the sports but less so for the off-field stuff. So at times you find yourself watching people talk, which (like my students, I'm sure) I seldom enjoy.

7. The Best of the "30 for 30" Documentaries
I know the general acclaim has been missing for this episode, but I found "Pony Excess," the story of recruiting scandals at SMU, to be stunning. What made the film work was that so many of the interviewed subjects (being sports stars) were interviewed at the same time the scandal was occurring, and (amazingly) gave pretty much the same answers then that they give now. They confessed to the money! In any event, the spectacle of former coaches and boosters admitting without shame or hesitation their direct involvement in paying football players was a shocker to this viewer. Wow, they (and apparently most everybody else) really bought players! Where is the NCAA (today) in all of this? If we're going to chase down Reggie Bush for his college years, why not go after the hundreds of athletes and dozens of schools from the "money era" of college football? Aren't there more trophies to be returned, more wins to be forfeited, and more money to be recouped? Let's get after it!

8. The Best Television Show I Want to See
This is an award I'm giving out preemptively. Dear major television networks, if you will please just spend millions of dollars and create this show, I promise I will give you my award next year. Here's the show: take the late-night talk show format, cross it a bit with Charlie Rose, and focus it on sports! (Thank you, thank you, please sit back down. Please.) Here's the problem with all of today's sports talk shows: the creators think that because viewing sports involves lots of brainless cheering, shouting and quasi-loutish behavior, then so must the show about sports be commensurately riotous. Why? People watch election returns with some of the same emotion as sports but can talk about it dispassionately later on. So here's the show: the genial host (let's call him TSLP) comes out for the opening monologue, offering a few wry observations, jokes and perhaps a humorous video clip or two from the sports world. Then, while the band plays, TSLP gets behind the desk. Over the next hour, divided into three 20-minute segments, comes the evening's guests. The guests would be drawn from star players, industry officials and insiders, and thoughtful commentators (TSLP again!). The discussion would be focused on current controversies and, in the case of star players, some personal issues. Players would adore this; Tom Brady supposedly loved being interviewed on 60 Minutes. The conversation would be thoughtful, interesting, controversial. This show would be great. I don't have a name for it yet (TSLP! is the working title), but everything else is fully conceptualized. Help yourself, ESPN.

9. The Best Coach of the Year
The award so many have been waiting for goes to . . . Bill Belichick, New England Patriots! Congratulations Bill. (We look forward to presenting the award to you at our annual TSLP Awards Dinner in Salem, Oregon. We'll cover your lunch bill if you can pick up the rest.) Why Belichick? I just love the guy. He flat out doesn't care about anything or anybody other than his team. This fact, by the way, is true of all coaches, but unlike everybody else, Belichick shows it! He gives us his honest perspective. He hates the media and makes his disdain evident. He cares not a bit for publicity, or NFL promotions, or playing up the big game, and he shows his lack of care for all to see. Unlike most coaches, Belichick never allows his players to be "miked up" (notice how all the shows reviewing past Super Bowls never include sideline remarks of Patriots' players?); Belichick seldom does routine NFL promo commercials. He just doesn't care. Again, no coaches do. But the media hate Belichick because he is honest in showing his lack of regard. I like people who are that honest. Even in the notorious "Spygate" scandal, Belichick took his medicine and uttered not one public word in his defense. He did once let slip that he thought the rules permitted his taping practices (which interpretation, as I wrote at the time, I agreed with), but that was it. Not another word said. He just doesn't care that he was and continues to be excoriated in the public conversation. You go, Bill.

10. Legal Brief of the Year
Out of the Milwaukee offices of the estimable law firm of Foley & Lardner, with Mssrs. Leffel and McKeown on the brief, comes the TSLP Legal Brief of the Year: the Brief of Economists in the American Needle v. NFL appeal. Here's the link. The amicus brief does an incredible job translating arcane economic concepts to legal prose; more importantly, the analysis is simply correct. How the Supreme Court couldn't have taken quality work like this and given a better, more thoughtful opinion on the case (even one that disagrees with the brief's recommendations) is beyond me. The Court should have answered the brief's arguments, if only to refute them. Answering would have elevated the court's opinion; instead the court ignored the brief. One reads the opinion in American Needle in the same manner one watches a politician make a speech (with which one disagrees) on television: how can Politician X claim everything's better, you mutter to yourself, when (to you) everything's worse? The American Needle opinion reads that way, like a politician preaching to his followers, blithely ignorant that nearly everything that is said in the opinion is conclusory and objectionable. You could have done better, Supreme Court of the United States. The Economists' Brief gave you that opportunity. You missed it.

Lucky Dominican Baseball Players

2010-12-18T20:28:00.000-08:00

The sports law world is abuzz with the revelation that baseball super-agent Scott Boras provided very large loans to young baseball players in the Dominican Republic. It turns out other groups of American investors, allied with other player agents, are also making a business out of investing in young Dominican players. Although it appears that this practice does not violate any restrictions imposed by Major League Baseball or the MLB Players Association, many commentators have termed this funding practice of dubious ethical merit and at bottom exploitative. It's the assertion that lending money to a young athlete is exploitative that seems a bit hasty to me.

Lending money to a young athlete is not exploitation. It's empowerment. Why do these commentators, whom I assume would profess to love sports, want to keep money out of sports? Sports aren't free. What exactly is wrong with wealthy Americans issuing "micro-loans" to fund the hopes and dreams of young, impoverished Dominicans?

1.This is baseball, friends. Not football or basketball. Baseball requires a lot of athleticism, of course, but also involves a great deal of skill, attention to detail, and training over a long period of time. I'm not saying other sports are easy or don't require just as much skill. But in the U.S., serious young baseball players nowadays play year round. They attend baseball camps and academies, play on private travel teams, and enter themselves in expensive "showcase" events to expose their skills to scouts at the next level, be it special regional all-star teams at the youth level, special off-season high-school age travel squads, college programs and of course the pro level. It takes a lot of commitment and naturally a lot of money for a young baseball player to make it to the next level, whatever that level may be. Notice nowadays how few inner-city minorities make it to baseball's highest levels? Baseball is no longer the inexpensive, easy-access sport that basketball is and football (the latter thanks to school programs) remains. Baseball requires a long apprenticeship and a lot of money.

2. Golf requires a lot of money too. Young golfers need money for course access, practice expenses, specialized instruction, and tournament fees. Baseball is not quite golf in terms of expense, but today it is a lot closer to golf than it is to basketball. So how do young American golfers make it? How do they play in state-wide and national junior tournaments, on elite junior golf tours, on college teams and eventually even on one of the many pro tours? How can they afford this expensive sport, with its protracted, specialized apprenticeship and extensive travel requirements? They are sponsored. Their efforts are funded. At the amateur level, well-off parents (or those who angle to get themselves golf industry insider jobs) provide access and pay for instruction. Yet parents can only take the player so far. Making it on the professional level requires a very deep pocket: even on the minor tours, players need money for large travel expenses, high tournament fees, equipment, and continued instruction. For an aspirant to the highest level, the PGA or LPGA Tour, the requisite stakes are multiplied.

3. So once past the amateur stage, where do these young, hopeful professional golfers get the needed money to start their careers? Most of them borrow it, but not from a bank or wealthy relative. Tool around on your favorite internet search engine. It won't take long to find opportunities to invest in aspiring professional golfers in exchange for a share of the winnings. That's right: young American golfers raise money through a self-created capital market. American investors looking to promote young golfers, and take a chance on getting a return on their money, have made possible the launch of the careers of most of today's touring golf professionals. This situation is neither corrupt nor exploitative. It's a benefit to the player.

4. It is undoubtedly true that the advance of money from a lender or investor carries with it certain obligations. The young athlete now carries a debt, and will have to give his best efforts to earn enough to pay it off. Undoubtedly many aspiring professional athletes fail to make the grade, and the lender or investor might go unpaid. Certainly this risk will be factored into the promised return. [In theory the lender stands in a better place than the investor; the latter's security will be nonexistent, while the former could demand repayment whether the professional earnings happen or not. But the difference in the method of financing probably reflects the longer gestation period for success in golf, compared with the large signing bonuses paid to pro-quality non-American baseball players.] But if we allow the young American golfer (or the young American college student, for that matter) to take on very substantial financial obligations, why deny that opportunity to the Dominican athlete?

5. Ironically, if U.S.-born baseball players could borrow against their "sports capital" as do players from outside the country, then we might see a change in baseball's dearth of African-American players. The very restrictions that Major League Baseball imposes on U.S.-born players effectively diminish the supply of minority players. American players cannot become professionals until they are age-eligible and are drafted or signed after the draft. As a result, American-born ballplayers must delay their professional careers, and may only negotiate with one team when they begin it. These rules lower the compensation for novice professionals, and thus raise the cost of entering the occupation. With no outside funding permitted to amateurs, young baseball players must rely on their families or their own wherewithal to undertake the considerable expense of training. Is it any wonder that U.S. minorities are disappearing from the major leagues?

6. The more money we can lure into investments in young athletes the better and more numerous those athletes will be. The fact that Dominican players are receiving direct funding from American interests will only further promote the Dominican player and further disadvantage the American one. Expect to see even fewer American-born players from impoverished backgrounds make it to the major leagues.

Legalization of Sports Betting, or Not?

2010-11-18T00:38:00.000-08:00

I had the pleasure of participating in a podcast program with Chad Millman of ESPN. The podcast is here, if you want to listen or download. We talked about the current state of the law with respect to sports betting and about the prospects for legalization.

One point I tried to get across was that, as a practical matter (if not a legal one), things are pretty good just the way they are. Most U.S. citizens who want to make a bet on a game can find a way to do so without too much trouble. Payouts from the big on-line sports books are to my understanding quick and reliable. And the vig/overhead is not too bad.

In my view, there's one problem with legalization that has not been fully considered by its proponents. The call for legalization typically means a call for regulation and taxation, much as Congressman Frank's bill would provide. Is that really what people want? Do U.S. gamblers wish to trade today's permissive liberality for government oversight and control?

Last I checked, governments do not come cheap. I would imagine an overhead fee sufficient to fund a new government "sports betting" division would be quite a bit higher than the vig needed to pay the bookie's cell phone bill. Further, when it comes to gambling, governments do not like to lose. Take a look at state lotteries. Only a portion of state lottery revenues is paid out in winnings; the state diverts the lion's share to public uses. States regard gambling as a means to increase the fisc, not as an opportunity to take a counter-position on a wager. The limited forays by state government into sports betting (in Oregon, Delaware, Montana) prove the point: the only bets allowed were multiple-pick parlays against the spread, a bet that the state was overwhelmingly sure to win.

Even if "legalization" meant that private enterprises, and not the state, would run the sports book, undoubtedly the regulatory costs would be substantial, as they are for casinos. The cost of state regulation and the accompanying tax/rake would likely render payouts not as generous as the private bookmaker. You'd get the same thing as now, only at higher cost. The widespread legalization of sports betting might lead to an inferior betting product.

Should Favre Be Fined Too?

2010-11-05T10:09:00.001-07:00

The Patriots' defensive lineman Myron Pryor was fined for hitting Brett Favre. Pryor's apparently legal hit resulted in a cut to Favre's chin. Pryor hit Favre in the chest, but then Pryor's helmet slid up and caught Favre under his chin, lacerating it.

Favre likely would not have been cut had he been wearing a hard-cup chin strap, as do most players, including quarterbacks. Favre continues the wear the old-school soft strap, which is little more than a patch of nylon.

Had Favre not been cut we probably would never had heard another word about Pryor's hit.

Remember, law students, it takes two to tort.

Rules vs. Standards and the NFL

2010-10-25T23:40:00.000-07:00

A difficult and pervasive issue involves the optimal degree of specificity with which statements of law should be expressed. Should lawmakers take the time and trouble to try to define laws with great precision and particularity? Or should laws be expressed in more general terms, leaving some judgment and discretion to the enforcer of the law (police officers, lawyers, judges and juries) to define the more exact contours of the law in a particular case? In short, should the law be written as a "rule" (with great precision) or as a "standard" (more general statement)?

This is the exact predicament that the "lawmakers" who create rules for our professional sports leagues face. How specific should the rules of a sport be? Why not make all rules as specific as can be?

The answer is that the "laws of sports" should be standards, not rules. Overly specific rules are in most cases inapt. Inapt case in point: the National Football League.

1. Let's start with professional hockey. Most of the NHL's rules are written as general, nonspecific standards. For example, "charging" is defined as "the actions of a player who, as a result of distance traveled, shall violently check an opponent in any manner." See all the room there for referee discretion? All checks are violent. How violent must a check be to constitute charging? How much distance must be traveled? The rule is silent, implicitly leaving the matter to the judgment of game officials. Other NHL rules are similarly expressed as standards. "Hooking" is "the act of using the stick in a manner that enables a player to restrain an opponent." That's it; that's the whole rule. "Elbowing" is "the use of an extended elbow in a manner that may or may not cause injury." These are significant rules for the sport of hockey that are regularly applied. Notice how simple and brief they are. Notice also that the rules of hockey seldom change. The same hockey rules we played under as kids still govern the sport today.

2. Now let's use our imagination to think of the rules for the NFL. We have to use our imagination because the NFL refuses to release its rules, as far as I know. (I've been searching for an official rulebook forever.) Why does the NFL keep its rules secret? I suspect it's because the NFL does not want to allow people like me to examine its work. You see, the NFL does not follow the approach of the NHL and most other sports leagues. It does not express its rules in the simple language of standards. Instead, the NFL's rules are expressed with great specificity. For instance, here's the NFL's nice, straightforward definition of a "catch":

"A player is in possession when he is in firm grip and control of the ball inbounds. To gain possession of a loose ball that has been caught, intercepted or recovered, a player must have complete control of the ball and have both feet completely on the ground inbounds or any other part of his body, other than his hands, on the ground inbounds. If the player loses the ball while simultaneously touching both feet or any other part of his body to the ground or if there is any doubt that the acts were simultaneous, there is no possession. This rule applies to the field of play and in the end zone."

Add this, under "Note 1," the "going-to-the-ground" clause.

"A player who goes to the ground in the process of attempting to secure possession of a loose ball [with or without contact by a defender] must maintain control of the ball after he touches the ground, whether in the field of play or the end zone. If he loses control of the ball, and the ball touches the ground before he regains control, there is no possession. If he regains control prior to the ball touching the ground, it is a catch, interception or recovery."

[I found this by poking around on Google; apparently someone has a copy of the rulebook.]

3. Let's keep in mind that this is just one rule (or part of one rule, for all I know; there being a "note 1" implies there are more). It would be eye-opening if the NFL allowed us to see the whole thing. Imagine the contradictions in these voluminous rules, the problematic constructions, the unintended consequences? In other areas of rule-making, seldom is law expressed with the kind of specificity the NFL employs. When we do see such specific rules (for instance, the Internal Revenue Code, or rules respecting ultra-hazardous substances), we also see large numbers of lawyers employed in drafting the rules (either at the legislative or regulatory level), applying them, critiquing them, and challenging them. All this lawyering is good for the rules, as lawyers can point out ambiguities and identify needed corrections. Not to sound arrogant, but really could the work of the NFL Competition Committee withstand lawyerly review? But wouldn't the rules be improved if we could all take a peek at them and offer comments?

[Just look at "note 1" above. For how long "after" must a player hold the ball for there to be a catch? Could the player juggle the ball (after completing all the requirements of the rule and note 1), yet still be deemed to have made a "catch" as long as the ball does not touch the ground? Note 1 seems to allow it; the rule seems to prohibit it. Plus note 1 seems to create bad incentives: after a receiver has made a touchdown catch while falling to the ground out-of-bounds, a defensive player should proceed out of bounds and dive into the receiver in an attempt to dislodge the ball. If the ball comes loose, no touchdown catch. At least the rule/note seems to allow for such conduct. That's a bad incentive.]

4. There are good reasons why very few rules in sports are expressed with the kind of specificity the NFL employs. It's too hard to write them successfully. Highly specific rules cannot account for every possible situation. Inevitably, the rule-writers find themselves adding qualification after qualification, rendering the rule lengthy and unmanageable. Further, in the sports world (unlike in federal taxation or transportation of hazardous materials), rules have to be applied instantaneously and by people (athletes, referees) under some stress. With tax compliance or other highly specific rules of law, lawyers bill by the hour. What is the NFL thinking? Why take hundreds of words to define a "catch"? Children playing ball games or even backyard football know whether or not they have caught a ball. Why can't the NFL trust its referees to make the same, easy determination?

5. Watching an NFL game lately can have extended moments of tedium. The replay review, the endless chatter about technical definitions and their application, the absurd outcomes. (It's like being a student in federal taxation! Notice how the NFL RedZone channel, dedicated to showing the most exciting action, switches away from a game the moment a replay review is initiated.) Calvin Johnson's obvious touchdown catch is not a catch because he flipped the ball to the referee while getting up off the ground? The officials lack "indisputable video evidence" that Miami came up with Ben Rothlisberger's goal-line fumble even after the replay showed a Miami player handing the referee the ball? These are easy calls to make. Yet the league says the calls were "correct" in that the officials applied the written rule correctly. Yes, the refs weren't wrong; the rules are wrong, written to cover every situation but leading in some situations to absurd, patently unintended and unjust results. Games have been won and lost because the written rules were inadequate to meet the question presented.

What will the NFL do in the wake of these debacles? Write an additional amendment to the rules, I'll bet.

Can the NFL Change Its Game, Legally Speaking?

2010-10-20T11:33:00.001-07:00

It seems pretty clear the NFL is out to change the game by vigorously enforcing certain rules against certain kinds of tackles. (What those rules are is anyone's guess; I have for years been unable to find or be issued an official NFL rulebook.) So let's say a few years down the road a wide receiver is hit by a safety while the receiver is leaping in an attempt to make a catch. Assume the worst. The hit is a blow to the head; serious, long-term injury to the receiver follows. Assume further that the hit was intentional and that the safety is unrepentent. "It's how I play the game," the safety says. What can be done?

League discipline is one thing. A league fine, however, is not going to help the injured receiver deal with a diminished life, one that might involve expensive surgeries, extensive rehabilitation, and specialized equipment. Nor will a league-imposed suspension of the safety assuage the injured receiver's lifetime of diminished capacity and circumscribed activities. He may be confined to a wheelchair and worse. I'm not trying to sound like a plaintiff's lawyer here, but you see the point. What if, in an attempt to address these serious consequences, the receiver sued the safety?

Here's the likely answer: no matter what the NFL rulebook says, no matter how harshly the league punishes illegal hits and educates its players about them, devastating helmet-to-helmet hits will always be "part of the game." In other words, the injured receiver will lose his suit. The NFL cannot change the game of football.

1. It might seem preposterous that the NFL cannot change the game of football. One would think the NFL could make any change it pleased. It could give teams three downs to make ten yards, it could widen the field, it could make touchdowns count for ten points, it could tape its quarterbacks in bubble wrap. How ever the NFL defines the game is the NFL game. The same could be said, one might think, of any other sport. The leagues make up their rules. All sports are just made-up games with arbitrary rules. There is no game of "football" apart from the rules that define it. Right?

2. Wrong. The last surviving Platonists in the world have somehow found their way into federal and state judgeships. For unexplained reasons, judges believe that there is a concept of "sport" that in some undefinable way exists apart from the sport as it's played. They believe that the game has certain aspects to it that are part of that game, even if the game and league officials have stated repeatedly that that particular aspect is not part of the game, and have arrayed rules against it and punish it severely when it arises. Sound incredible? Courts have held that physical checking is part of the sport of hockey even in a non-checking hockey league. Courts have found intentionally thrown beanballs to be part of baseball despite rules against them. This zaniness reached its zenith when the U.S. Supreme Court declared in the Casey Martin litigation that "walking" is not part of the game of golf, at least at the PGA level, even though the PGA had an explicit, unambiguous rule that said it was!

3. You see, courts are a long way into the business of creating or divining a concept of a sport that "exists" in court opinions, and not on the playing field. No matter what the NFL does, even if it renames the sport "rugby with helmets," as Steve Young jocularly suggested on television, hard hits to the head will for a long time be part of the sport.

4. What this conclusion means from a legal standpoint is that league discipline of wayward players making illegal, vicious hits will be the end of the matter. Neither suits for damages (tort) nor even criminal liability will help restrict the violence of the NFL. Should the law have a role in regulating on-field violence?

Devastating Hits in the NFL

2010-10-19T10:14:00.000-07:00

Nearly all the "talking heads" studio shows that dominate contemporary sports coverage are a waste of time.

And then there's this.

Brett Favre and the NFL's Personal Conduct Policy

2010-10-18T15:24:00.000-07:00

Back in 1919, Ban Johnson, the president of the American League, suspended pitcher Carl Mays from the New York Yankees. While with his former team, the Boston Red Sox, Mays had walked off the mound and taken the next day off to go fishing. Johnson suspended Mays under the provision in the league constitution that gave the league president the power to suspend players "for conduct detrimental to the general welfare of the game." Sound familiar? The NFL's Personal Conduct Policy gives the NFL Commissioner power to suspend players for "conduct detrimental to the integrity of and public confidence in the National Football League." Like the suspension of Mays by Ban Johnson, it appears Brett Favre may be subject to suspension for sending sexually provocative photographs and engaging in other sexual conduct directed toward some Jets' employees.

So why bring up the 1919 suspension of Carl Mays? How is that event relevant to the Favre situation?

Here's why. When Johnson suspended Mays, the New York Yankees sued. They termed Johnson's suspension an impermissible interference with Mays' contract and a violation of their property right to the player and to pursuing a championship. The Yankees argued that the president's constitutional power, while sweeping, was limited to misconduct on the playing field and went no further. Johnson's contention that "conduct detrimental" extended to any conduct, anywhere and anytime, according to the Yankees effectively converted Johnson from a constrained league president to an "unmolested despot."

And the Yankees won. The league's personal conduct policy did not extend to off-field conduct. Should it?

1.The limitations imposed on the commissioner's authority by the court in the Mays case are history, so to speak. Beginning with baseball's decision, in the wake of the 1919 Black Sox scandal, to create the office of the commissioner and endow the commissioner with virtually unconstrained authority, no court would find that baseball's constitution today limits the commissioner as it did the league president in 1919. The NFL patterned its sweeping personal conduct policy after similar language in baseball's current constitution. Clearly Roger Goodell has the legal authority to suspend Favre for his off-field conduct.

2. Consider this problem with including off-field events under the personal conduct policy. What happened, out there in the real world? It's easy when there's criminal misconduct that results in a prosecution: the police investigation, grand jury subpoenas, and probation report give all the details that the commissioner would need. But what about when the off-field misconduct falls short of a crime? It's not easy to determine "what happened" in any situation. The Commissioner cannot easily replicate the painstaking fact-finding of the criminal justice process.

3. Consider this other problem. What kind of misconduct fits the bill? The NFL policy, by way of example, lists several crimes and other threatening behavior. But the personal conduct policy is not limited to criminal behavior. It proscribes any conduct that is detrimental to the integrity and public confidence in the NFL. Does a married man's making romantic/sexual advances to women/employees meet the standard? Favre's personal conduct appears not to have been admirable. But can the commissioner seriously suspend a player for (potentially) breaking his marital vows? From what I hear, quite a few players might fall short of this standard.

4. Goodell should exonerate Favre and in doing so should clarify the limits of his authority. The personal conduct policy is not unlimited. It proscribes conduct that affects the integrity of the NFL and public confidence in the NFL. The NFL is a fall football league that features sixteen regular season games and a playoff tournament. Does anything Favre allegedly did threaten public confidence in the integrity of those contests? Is the argument that, if Favre cheats on his wife, he'll cheat during the game? No, there's no threat to the game's integrity. There's no threat in the public confidence in the NFL. The commissioner's authority extends to off-field conduct only insofar as it threatens that confidence. The commissioner should not punish off-field conduct just because it's bad conduct.

5. What about illegal dog-fighting? Should Vick have been suspended? Dog fighting is terrible. So is cheating on your spouse.

Why Is the Randy Moss Trade So Hard To Figure?

2010-10-07T17:27:00.000-07:00

Sometimes it seems the media commentators ignore simple explanations. In the wake of yesterday's trade by the New England Patriots of wide receiver Randy Moss to Minnesota in exchange for a 2011 draft pick, reporters are picking apart the Patriots locker room, searching for the "real reason" the Patriots made this trade. Speculation and rumor abound, with disputed stories of Moss not getting along with teammates, arguing with coaches and even disrespecting the team owner. Meanwhile the man responsible for trading Moss, Bill Belichick, has stated repeatedly, categorically and emphatically that there were no personal problems or discipline issues with Moss, that he was a pleasure to coach and was professional at all times. The media just can't bring themselves to believe him.

I believe him. Moss was traded for the obvious reason. He's in the last year of his contract and the Patriots, unwilling to pay market value (or use the franchise tag) to retain Moss' services for next season, wanted to get something for him rather than nothing. The mid-round draft right is something. The Patriots figured that the value of the pick was worth more than the value Moss gave them over his replacement player for the rest of the season. In other words, if the Vikings offered Moss to New England as essentially a 12-game rental in exchange for a third-round draft pick, New England would refuse the trade and keep the pick.

Reporters search for the "real reason" because at bottom they don't see the value in any draft picks except those in the first round or two of the draft. Years of reading the sports pages has convinced me that NFL teams value draft choices much more than do NFL sports writers. Every year at draft time, sports writers write the easy column about how worthless most draft picks are and how poorly teams do at selecting players. It is true that many drafted players never perform up to expectations. Teams draft poorly (sports writers don't grade on a curve, it appears), while players who went undrafted become stars. So, in the eyes of the media, lower-round draft picks are just a waste. (Put it this way: if Moss had been exchanged for Minnesota's first-round pick, reporters would not be poking around for dirt on Moss.)

Yet the fact of the matter is that nearly every NFL player and even moreso nearly every star NFL player was in fact drafted. Most players were drafted below the first two rounds. These low-round picks have real value. What was the value to the Patriots of the sixth-round pick that netted Tom Brady? Even if only one in one-hundred sixth round picks ever become stars (as opposed, as a guess, one in ten of first-round picks and one in forty of third-round picks), there's still value there. Finding a single star contributor is worth "wasting" many draft picks. Even if the player the Pats ultimately receive for Moss turns out to be a dud, there's still value in having the chance.

As a nice bonus, these mid-round drafted players come cheaply in terms of salary. As another bonus, the Patriots gain next year by giving Moss' young replacement some valuable game experience this year. Judging from their history in trading away players in the last year of their contracts (Richard Seymour, Deion Branch), the Patriots do not like to let valuable players leave for nothing. The simplest explanation is the best.

Jeter Cheater?

2010-09-16T15:04:00.000-07:00

First of all, Derek Jeter did not cheat. He broke no rule of baseball. He simply hammed it up to get a call. With that said, it seems to me that acting/flopping/diving is diminishing the enjoyment of watching professional sports. Few bad calls frustrate fans more. Yet, flopping is widespread. It's so pervasive in some leagues (such as Italian league soccer) as to make the games unwatchable for me. Baseball is actually one of the least affected sports, simply because the game doesn't lend itself to so many interpretive umpiring decisions involving physical contact. Yet outside of baseball, one sees flopping and "drama-queen" falls even in youth sports. Athletes compete in their drama to earn favorable calls.

What can be done? What are the options?

1. Amend. Amending the rules of sport to proscribe flopping is probably inadequate. Some soccer federations do prohibit diving, yet the call is seldom made. In the NBA, flops are expected and are usually rewarded. Players and coaches today define "defense" in part as the act of sliding under an airborne or nearly airborne offensive player and getting the charging call. It's not defense; it's not even basketball. In theory, the rules of any sport could be amended to prohibit faking, even after the fake is over and the whistle has blown. For example, in baseball players like Jeter before being awarded first base could be asked if indeed they were hit with the pitch, with penalties for answers later determined to constitute knowing or reckless fabrication. ("I had to lie; I told one for the team.") Although there seems to be a trend to make professional sports into morality plays, I would doubt we'd want to introduce a rule against perjury. So the rules of the game probably cannot adequately respond to the problem.

2. Boo. We could respond with sanctions outside of the game rules. Along with ruining the game for viewers, players who fake consequences in order to get calls are exhibiting poor sportsmanship. We could boo them mercilessly. This would mean that Lakers fans would have to boo their team of floppers for nearly the entire game. (Of course, TSLP, as a die-hard Celtics fan, might have to consider booing my favorite player, Paul Pierce, should he ever pretend he was hit on the arm while in the act of shooting. So far in his career, he hasn't, I don't think.)

3. Fight. Another plausible option is to rely on players policing themselves. This is unrealistic too. Should the Rays now throw a ball at Jeter to hit him for real? (Should other teams throw at him too? Just everybody throwing at Jeter for a couple of weeks?) Given the reward for being hit by a pitch (the batter is awarded first base), being hit is not an unalloyed penalty. Same thing on the basketball court: a player frustrated with repeated flopping is said to be "taken out of his game," and thus his retaliatory efforts might actually inure to the benefit of the flopper. Players can police their own game on big things, like overly rough play or repeated beanballs. They can't be expected to police themselves on every little instance of the numerous flops and falls. Fighting over such small events seems unreasonable.

4. Suspend. The only plausible option to rid the games of flopping is to sanction players on a league-wide basis. Game rules have to be specific and clear; league-wide rules can be expressed in greater generality, as standards. Game rules say ten yards produces a first down; league rules say players may not act in conduct unbecoming the game. Isn't flopping unbecoming? At a minimum, it's bad sportsmanship; at worst, it's damaging the product. Just create a rule that says flopping and fakery and the like will be met with a suspension, and the problem will be over. Even Little League does this for players and coaches who get out of hand. Just send them home for the next game. Why is this so hard? Suspend Jeter (the one Yankees player I like) for a game and be done with it. Suspend Kobe and yes, even Paul Pierce for a game next time they ham it up. (Just throw Anderson Varejao out of the NBA now to save the trouble.) This simple, unhurried, discretionary response by the leagues involved could go a long way to creating and enforcing an overriding norm of "good sportsmanship" that ought to be part of the professional sports landscape.

Reggie Bush and the Heisman Heist

2010-09-16T10:43:00.000-07:00

Star running back Reggie Bush gave back his Heisman Trophy. Although he did so voluntarily, quite obviously he would not have done so without the mounting public displeasure over the revelation that Bush received money from marketing representatives during his college football career. Bush's action also was timed to preempt the imminent Heisman Trust reconsideration of his award. Bush has of course known of his NCAA rule violation for many years, and held on to the trophy since its award even though rumors and later more substantial evidence of Bush's payoff become public. Only with the whole scandal coming to a head did Bush "do the right thing." I'm not writing to call into question Bush's motivations in making this public act of contrition. I'm wondering if he has anything to be contrite about in the first place. The fact that Bush for so long delayed his act of contrition suggests to me he didn't.

I understand why the NCAA desires student-athletes to compete as amateurs. For that matter, I also understand why OPEC wants to drive up the price of gasoline. What perplexes me is why we help them.

1.There's really no two ways about it: the NCAA is a cartel. On behalf of its members, it procures the services of athletes at a fixed price. That price is the athletic "grant in aid," more commonly termed a scholarship. The price is substantial, and indeed for many student-athletes, the price might even be excessive. Some athletes contribute little to their team's success and profits. But for other athletes the price is substantially less than the athlete would command in a competitive market for his services. For which athletes is the fixed price too low? For those who are provided offers of compensation from other sources, such as boosters, agents, marketing representatives, or financial advisors. The offer of superior compensation identifies and measures the inferior fixed price of the scholarship.

2. The NCAA's reasons for imposing this cartel are valid and admirable. The NCAA wants athletes to focus on their studies, and not be distracted by monetary pursuits. The image of the part-time amateur athlete remains the ideal in contemporary college sports. Further, colleges and universities know that maintaining a competitive program in the revenue-producing sports (football and men's basketball) is hugely expensive. Prohibiting athletes from profiting allows the school to capture much of those profits for itself, by exploiting the athlete's likeness and image in merchandise sales and broadcast revenue. This money also funds other sports programs within the school, and goes a long way to maintain compliance with the equality dictates of Title 9. So the money's put to good use, for the most part. (Some might be troubled by the fact that part of the expenses needed to maintain a competitive program include paying the head coach's very large salaries. I don't begrudge the coaches their salaries, but I would posit that, if players were compensated by schools, that money would in part come out of the coach's salary. Because schools and their boosters can't pay players directly, they pay proxies (coaches) who are skilled at recruiting them.)

3. Other cartels also have benign motivations. During the oil criss, OPEC consistently maintained its goal in restricting the supply of oil was to ensure the continuance of a scarce natural resource. This is much the same language that governmental entities employ in imposing taxes on gasoline consumption or in limiting domestic production. Yet the fact that the oil-producing nations were profiting mightily from this concert of action obscured the benign message. To the contrary, the fact that governing authorities with respect to gasoline and NCAA member institutions with respect to athletes also profit mightily from exercising their market power is seldom mentioned. It is Reggie Bush who is the "cheater," people say, not the NCAA that cheats Bush out of the market price his services could command.

4. We cheered those oil-producing nations (e.g., Nigeria) that had the fortitude to defy OPEC during the hey-day of the oil crisis. The nations that defied OPEC (with Saudi Arabia as the center of OPEC) were heroes. Why didn't we call them cheaters? They had agreed to restrict output in order to drive up prices in order to conserve oil supplies, and then they did the opposite. Why did we cheer the OPEC cheaters yet now revile Reggie Bush?

5. I'm not saying that Bush, like all student-athletes, didn't know the rules. He knew he had agreed not to make money, yet he did it anyway. But our condemnation has to stop right there. Bush went back on his word, and that's it. He did nothing wrong in any additional or greater moral sense. Taking money for one's labor or services is not wrong. (In fact, why do we say college athletes "take" money, while the rest of us "make" or "earn" money? Bush earned it as much as any celebrity makes money off his fame.) Being paid for the use of one's name or public persona is not wrong. Bush took money from marketing representatives who planned, once Bush finished college, to find Bush advertising opportunities, a staple product of the modern celebrity athlete. It is not wrong to be paid for marketing one's name.

6. It is wrong to promise one thing and do another. But when the promise that is made (or for all practical purposes, required to be made lest the athlete end his football career on the spot) is one that cheats the promisor out of making a living, why should we, the public, be on the side of the promisee? Why should we use public pressure, including media scrutiny and even federal prosecution (yes, it's happened to agents) to help the NCAA maintain its private cartel? Why should we put those who try to break the cartel in prison (Norby Walters, an agent) or use public shaming and the threat of trophy revocation (Reggie Bush) to help out the cartel? Did we send Nigeria's cheap oil back?

7. To be clear, the NCAA has been for the most part successful in defending its restraint on trade in litigated cases. OPEC too, for different reasons, could not be broken through litigation. But I don't understand why we root for the cartel. The athletes who take money while in college are claiming what is theirs: the rights to their own property, namely the rights to one's labor and to one's publicity. Why should the NCAA be allowed to require the athletes to transfer those rights to the NCAA as a condition of his playing on the college football team, whether the player receives a grant-in-aid or not? Personally, I would have preferred to see Reggie Bush stand up to the public vilification and defend his right to earn a living.

Daredevil Boys and the Manly Sports

2010-08-30T14:18:00.000-07:00

Throughout American history, the "manly" sports have provided a perpetual test to the legal limits of consent. They have also make us think hard about the boundaries of social welfare and morals. Among the manly sports, the blood sports involving animal fighting, such as bear baiting, dog fighting, cock fighting, and even cricket fighting (who cares about bugs?) can be put to one side. They do not involve true cases of consent as the fighting animal cannot be said to consent to the fight, and thus be complicit in its own demise. (Notably, defenders of these sports in days past argued the opposite. They contended that certain animals, bred to the mast, did have it as their nature to fight, and thus were acting consistent with their preferences.) But the blood sports that involved men, the so-called manly sports such as bare-knuckle boxing, knife fighting, and dueling, were justified on the grounds of consent. Even today the rougher sports, such as boxing, combat and football, survive as a legal matter on the complicity that results from consent. Combatants who are injured or even killed while playing the sport are without legal cause against those who have injured them.

Most of the blood sports involving animals have failed to survive public scrutiny and have been driven underground or even to extinction. Yet some of the blood sports, such as hunting and fishing, survive largely intact, although are highly regulated in terms of time and method. As to the humans-only blood sports, the record is similar. Those that survive are regulated, both publicly and privately, in an attempt to ensure some degree of safety and fair competition within the spirit of the sport. Boxers are matched by weight class and experience; football leagues require helmets and limit blocking and tackling techniques. But many manly sports are no longer legal. Social convention, coupled with the jurisprudence of consent, over time rendered these sports illegal. The practice of bare-knuckle fighting, for example, was banned because it was deemed to corrupt public morals and incite violence. Fighters, the courts held, could not legally consent to acts that might cause them substantial bodily harm and even death.

Our historical ambivalence over the manly sports brings us to the sad case of the thirteen-year-old boy who died racing a motorcycle on the Indianapolis speedway. Which brings us once again to the limits of consent, the role of public morals and sensibilities, and the continuation of dangerous sports. There are no new answers. But there are certainly new questions.

1. What's been happening in the world of sports all around us, right under our noses yet largely unexamined, is the advent of an entire new range of risky sports, including combat in its various forms, "extreme" or "X" sports, and just general daredevilry. Youth motorsports, on motorcycles, dirt bikes or go-carts, fits the bill as well. Even tame pursuits such as bicycling or skateboarding can be easily converted into high-risk activities. Spend a few minutes at your local skatepark or at the ski mountain terrain park. As the father of a daredevil, I have. You will see young prepubescent children flipping and twirling in the air, all without a net and without any formal training. They just go for it. I attended what was called a "jam" session at a local ski area last winter. To the sound of very loud music (yes, TSLP was a bit out of his element), kid after kid rode his snowboard down a short hill, hitting prepared jumps, metal rails, and wood fixtures. Many of the kids did flips and spins; quite a few fell, one so badly I couldn't believe it when he later got back up. (Good luck to the ski resort that one day bases its defense to a law suit on the consent of a twelve-year-old.)

2. Despite what some would like to believe, the fact of the matter is that consent is not an absolute defense. It hasn't been so in this country for nearly a century. Athletic participants can consent to acts that fall within the rules of the game (such as a tackle in football) or to acts that, although against the rules, are fairly within the contemplation of participants (such as the brushback pitch in baseball). But participants cannot lawfully consent to violence that lies outside these common occurrences. Consent is limited.

3. Social approbation is limited as well. Probably nothing happened during a bare knuckle fight that wasn't within the participants' expectations. Yet the sport is banned because lawmakers did not want to allow people to consent to such a contest. Athletic participants can validly consent, but not to acts that carry a high likelihood of causing substantial bodily harm or death. While we vindicate consent, at the same time we have a long history in this country of limiting the scope of permissible consent.

4. Children (perhaps especially boys) love to do risky things. They like to go fast and fly through the air. Left to their own devices, boys will jump off bridges into rivers and lakes, race their bikes, and race on skis. As teenagers they may also race their cars. When they race, they will want to go faster and faster; when they jump, they will want to go higher, further and with higher degrees of danger in their aerial tricks. Despite their danger, few of these activities are prohibited; few are even regulated or supervised or "made safe" to much of an extent. We parents stand by with eyes closed, or look away and hope for the best. But how could these risk-taking boys be stopped? How could they be made safe? Are we to prohibit boys from going fast and jumping high?

5. There are some sporting activities that appear benign but are actually dangerous. The backyard death machine known as the swimming pool fits this bill. Then there are some activities that seem crazily dangerous but that, with adequate training and sensible precautions, can be quite safe, statistically speaking. Rock climbing scares the bejesus out of me, but I've been told often of its comparative safety. From what I've read, it sounds like the motorcycle racing the young boy in Indianapolis was doing falls into this category. It's pretty safe. Yet here's the glitch: the sport is pretty safe, yet it looks so unsafe. The child was traveling over 100 miles per hour! Like the rock climber high on the mountain face or the snowboarder trying to complete two revolutions before landing, the immediate chance of mortal peril are obvious. One slip up and the participant will be badly injured if not killed. No parent panics when his child goes off to baseball practice or takes a swim in the pool, yet all parents swallow hard when their child scales a mountain ledge or flips over backwards on his bicycle. The expected value of injury (so to speak) from all these activities is probably roughly the same. Some sports (football, hockey) carry a high probability of serious yet non-catastrophic injury; other sports (motorcycle racing) carry a very low probability of very catastrophic injury. The nature of the risk and its likelihood might differ, but the risk is still there. Boys will take risks.

6. I think the old-time defenders of animal fighting had it right, in a limited sense. (Not that I condone animal fighting; I don't.) They argued that some animals were born to fight. Putting aside the nature/nurture aspect, I think boys are the same way. As a general matter, boys like to take risks. Some boys are born (or made) to like to take their risks in the catastrophic sense. They want to dangle high on the bridge over the water, and leap far off, narrowly missing the outlying rocks before they splash into the small area deep enough to stop their descent. Others will take on different risks, playing football or baseball or other, non-"extreme" sports. They still take on the risk of injury, albeit with a higher degree of incidence and a lower degree of catastrophy. Maybe others take on non-physical risks as well, playing fantasy sports or online poker. Boys will find their own level of acceptable risk, and what is acceptable will run the gamut from sailing the world's oceans alone to "daring" to hit a wedge shot over a pond in front of the green.

7. There's undoubtedly a large social value in allowing boys (and girls, if they share these preferences) to undertake risks. They learn to function under pressure; they learn the consequences of risk through trial and error; they adopt a competitive, risk-taking approach to life that might pay off for them personally and for us socially as they mature into adults and enter the work world. We try to protect our children and keep them from acting too stupidly. Children are likely to discount the probability of harm and exaggerate their competence (much as parents are likely to do the opposite; my mother had an incredible fear of me having an eye poked out). But all parents know we can't stop them. If they want to take risks, they will find them, even if they have to invent "sports" to provide those risks.

8. Of course it is an unspeakable tragedy when the consequences of all this risk-taking is death. Every year here in the wilds of Oregon, adventuresome people, including young ones, die from rock climbing, mountain climbing, hunting accidents, boating accidents, and the like; plus like everywhere the usual run of automobile accident fatalities and other misfortunes claims victims. Risk and its consequences are all around us. But even death teaches the survivors. It teaches them that the activity indeed is very risky. For adults, the riskiness of most of these activities is self-evident; for children, much less so. The death makes that nature apparent. The death both lures more participants to the sport while it also repels others. Those children who prefer to risk their lives will know of an opportunity to do so, just as those who prefer not to risk so much will shy away. It is gruesome, sad business. Yet it is the business of young men to learn about fire, and despite what parents say, they learn by playing with it.

American Needle and the Future of the NFL

2010-08-23T11:42:00.000-07:00

As suggested in my several previous posts on this litigation, I can certainly understand why the Supreme Court was unwilling to side with the NFL in this appeal. The NFL wanted itself declared a "single entity" for antitrust purposes. This pronouncement would ostensibly have put the NFL beyond the reach of the antitrust law for all practical purposes. Such a decision might also have allowed the NFL to operate in the labor market for players without antitrust oversight. In theory, the NFL could have imposed restrictions on player salaries, free agency and tenure, limited only by the collective willingness of the player union to withhold labor by going on strike.

[It should be noted that, for many decades, the NFL has in fact dealt with its players without antitrust concern simply because the presence of the Collective Bargaining Agreement with the Players Association gives the league an exemption from antitrust scrutiny. But the players always had the implicit threat, once actually utilized and even more often raised, of decertifying itself (thus terminating the NFL's exemption) and resorting to antitrust law to challenge league labor practices.]

The Supreme Court was offered several plausible middle grounds short of the NFL's desired decree. Most notable was that of the intermediate Court of Appeals for the Seventh Circuit. The lower court had ruled that the NFL constitutes a single entity for some purposes, but not others. This nuanced, sophisticated rule promised a gradual iteration in antitrust law, separating instances where the NFL in fact competes with other business entities in the large, national market for entertainment from those instances where the NFL (as in the hiring of football players) for all practical purposes has no competitor at all. Instead of adopting this complex but promising middle ground, the Court wrote the easy opinion. It described the NFL as a joint venture much like any other, and held it to be a multiple entity subject to antitrust review.

In my view, the Court committed a serious mistake. This decision will hinder the continued prosperity of the NFL, and could devastate other, less secure professional sports leagues.

1. The NFL is a growing business. It has evolved from a sport that depended mostly on local ticket sales to one whose business model encompasses a national market. Today, most fans consume professional football on television. The league's television package is sold to national networks; its best games feature the top teams, regardless of geography. Even in its ancillary businesses, including merchandise and fantasy play, the NFL competes with other sports and other brands. Of course there remains some competition among NFL teams for local revenue in merchandise, radio broadcasts, and stadium-derived revenues. But the national television contracts dominate the league profits, and coupled with aggressive revenue sharing among teams, form the principal reason for increased value of franchises.

2. The Court's resolution of the appeal should have taken some account of the predominately national character of this particular professional sports league. The jurisprudence should advance to reflect contemporary economic realities. "Substance over form" is the maxim the court promised in its opinion to follow. It must have been joking. The punchline is that the Court did the opposite, concluding that a business entity that is divided into 32 separate franchises is a joint venture for antitrust purposes, even though the reality is that those franchises are locally owned primarily to enhance on-field competition and are united as one for most everything else. Yet the court took no account of the evolving national character of the NFL. It treated the league as if it were 32 independent mom-and-pop operations staging football games. That is the league of the 1960's and 70's, the football the ancient Justices remember from their youth. It is not the league today. Yet, as a result of the court's opinion, antitrust law will continue to regulate every aspect of the NFL.

3. Despite the claims of those who favor the American Needle decision, the continued threat of antitrust scrutiny presents a serious obstacle to efficient business operations. The governing standard in antitrust law is the "rule of reason," which calls for an assessment of the the competitive effects of a joint action. It sounds great on the page, but in practice the rule of reason is a nightmare as a regulatory tool. Fundamentally, the rule requires a difficult and intensive factual inquiry, buttressed by the testimony of expert witnesses. Consequently, antitrust litigation is notoriously expensive. To make matters worse, it is unpredictable. No easy rubric exists to compare the pro-competitive and anti-competitive effects of any course of action. Yet because the NFL is a multiple entity, every one of its business decisions potentially opens the league up to an unpredictable and expensive antitrust lawsuit. Every business decision must be considered not only for its wisdom in terms of profits and costs, but also for its possibility to give rise to a major piece of litigation. This is a serious cost that is not imposed on the NFL's numerous competitors in the entertainment market.

4. Few people are aware that the NFL, like other professional sports leagues, stands on very thin ice. As a joint venture, all meaningful league decisions and contracts are vulnerable to antitrust review. In the area of marketing, the American Needle decision renders objectionable the league's decision to license its valuable trademarks exclusively to one head wear company. Similar deals in other sports, such as Major League Baseball's lucrative exclusive license for baseball caps, are now similarly open to antitrust scrutiny. The NFL's even more huge broadcasting agreements are also objectionable, as are those of the other major professional sports leagues. Despite the common understanding, the exemption from antitrust law created by the Sports Broadcasting Act is far too narrow to encompass the NFL's contracts with ESPN and Direct TV. The sport's ongoing efforts to claim ownership of intellectual property in the significant fantasy markets will also one day become an antitrust issue. Add to these the longstanding and unanswered antitrust questions involving player drafts, salary caps, schedule restrictions, revenue sharing, waiver restrictions, arbitration rules, salary slots, and limitations on free agency, and one can see that the pro leagues could have quite a bit of litigation on their hands. Now the NFL may well win many of these cases, as I suspect it eventually will in American Needle with respect to its trademark licensing. The league will, I predict, be able to justify its conduct under the rule of reason. But the victories will be costly, if only in substantial legal fees. Any litigation losses will be devastating. For example, a decision that precludes the NFL from enforcing its schedule on teams, allowing teams to set their own schedule, would alter the league forever.

5. Other professional sports leagues are even worse off. The NFL stands today as America's premier league, and has already advanced its industry far into the national market. A fan will watch a key game featuring top teams no matter where that fan lives. Other sports, however, lag behind the NFL, and still depend more heavily on local broadcast contracts and local ticket sales. These other leagues see the NFL as a model in moving their products up from a local to a national or even international market. These leagues do not have the resources of the NFL to wage major antitrust litigation wars, and are less able to withstand a negative ruling. The American Needle decision deals these leagues a heavy blow.

6. Of course, it is always true that the leagues could be disaggregated. Players could be perpetual free agents, much like any worker. Teams could be free to relocate at will. Owners could barnstorm their teams, playing in only the most desirable contests at optimal times. Football and other sports would persist at the professional level. Only they would persist in a form very different than that to which Americans have become accustomed. But for unaccountable reasons of taste, Americans do not seem to like their professional sports in disaggregated form. They like players to remain with teams for a time, teams to remain in cities, and schedules to culminate in earned berths in playoff tournaments. We could consume our sports differently and maybe one day we will. But that change, if it ever occurs, should be in response to changing consumer preferences. It should not result from the injunction of a federal judge wielding the outdated, amorphous standards of antitrust law.

The Clemens Indictment Misses An Opportunity

2010-08-20T13:33:00.000-07:00

Roger Clemens still holds his cards. How he plays them will of course have a huge impact on the rest of his life. Perhaps more importantly from a social perspective, Clemens' litigation strategy could also have a huge impact on the past and future of major league baseball and even professional sports more generally.

The fact that the indictment has been issued actually helps Clemens to a degree. The indictment means that the prosecutor at long last has shown his hand. He has played his cards, and judging from the shape of the indictment, the prosecutor is playing his hand aggressively. The indictment consists of two counts for perjury in lying under oath to the Congress, three counts of lying under oath in his deposition, and one count of obstruction of the Congress. These are a lot of counts, considering that they basically derive from a single episode of criminal conduct, namely Clemens' voluntary appearance before the Congressional committee. Clemens could end the matter right here, by pleading guilty, accepting the conviction, and hoping for a decent sentencing outcome. The fact that the counts arise from a single episode, coupled with a guilty plea, would give Clemens a significantly mitigated sentence, although it would most likely include some prison time.

But the fact that the prosecutor has played his hand so aggressively basically rules out any incentive Clemens might have to plead guilty as charged. By so overbidding, the prosecutor is in effect inviting Clemens into a negotiation that will likely result in a compromise, probably on a single count of perjury. Clemens will plead guilty to a single count, pay a steep fine, serve some time in prison, and that will be the end of the matter.

It could have been so much more.

1. Prosecutors typically charge at the "high end" of the provable evidence. In other words, prosecutors will indict on as many counts and on as many legal theories as the prosecutor believes the evidence will support, given the stringent standard of proof in a criminal case. This typical approach works best in this era of overflowing dockets and rampant plea bargaining. By starting with the high bid, the prosecutor leaves plenty of room for an adequate plea agreement. The strong charge also gives the defendant a commensurately strong reason to negotiate a reasonable plea. If the defendant refuses to bargain and instead stands trial on the indictment, the defendant could be convicted as charged, with severe sentencing consequences to follow. Although criminal defense lawyers decry the practice, the habit of prosecutors to frame their charging decisions by the full extent of the law actually greases the skids on an otherwise unworkable and archaic system of criminal justice.

2. The prosecutor should not have treated Clemens as just another defendant. Celebrities are often treated "specially" in sentencing: many judges have justified imposing unusually harsh sentences on convicted celebrities on the grounds that the defendant's notoriety presents an opportunity for a strong deterrent message. In other words, the criminal courts have used the opportunity in sentencing celebrities to achieve other social aims. Prosecutors and judges will use the celebrity at the sentencing phase; why not use them at the charging phase too? Instead of bringing impossibly severe indictments, why not indict celebrities on a single, strong count? Why not leave no room for plea bargaining? The celebrity would have no reason to settle. He could plead guilty and take his medicine (the likely outcome from a negotiated plea anyway), or more likely, take the case to trial. Instead, with his severe indictment the prosecutor is basically giving Clemens every incentive to plea bargain. The result is that we will be cheated out of a trial.

3. And what a trial it would have been. The issue in the perjury case is whether or not Clemens lied to the Congress. But the underlying issue is the real one: did Clemens in fact take performance enhancement drugs? The prosecutor's case would have ripped open the seamy underside of professional sports. The unseen world of drug suppliers and steroid smugglers that shadows pro sports would have been brought to light. The locker room culture of shared information and shared bathroom stalls would have been made plain for all to see. Teammates, trainers, coaches and managers and many others would have called to testify. This trial would not be another feckless "Mitchell Investigation" that had to beg reluctant witnesses to share their stories. This would have been a federal criminal trial, with subpoenas flying all around the baseball world, followed by vigorous cross-examination under oath. This would have been very serious business.

4. My suspicion is that a full-blown trial of the famous former member of the New York Yankees would have been the source of daily revelation and shocking news. A Clemens trial could have generated real public momentum for reform and even a serious commitment from lawmakers and league officials to separate baseball and all professional sports from their historic drug culture. A lot of public good might have come from the latest trial of the century. Yes, trials are expensive. But aren't they sometimes worth it?

5. Instead, what we'll likely see soon is a negotiated plea arrangement. The saga of Roger Clemens will be regarded as nothing more than the sad example of the high being brought low, of a fall from grace for a former all-star pitcher. The Clemens case will provide nothing more than the fulcrum for that fall. There is certainly a public interest in punishing the guilty, don't get me wrong. Certainly the case will generate a new respect for the importance of telling the truth under oath. But the case could have accomplished so much more. Following the leads a trial would inevitably have generated, the Clemens case could have started us on the ultimate trail of truth: it could have told us who used and who didn't. Wouldn't it be great, as we (supposedly) turn the page on baseball's steroid era, to know who used and who did not, if only for the sake of baseball's records and baseball's criteria for the Hall of Fame?

I'm hoping the prosecutor pares down his indictment substantially so that we're left with a single count or two. Make this charging indictment into a document on which Roger Clemens can plausibly stand trial. My suspicion about Clemens is that, faced with a reasonable challenge, he'll accept it and try to make his case before a jury. That turn of events would be in the public interest.

Our Little Baby's All Growns Up

2010-01-26T22:13:00.000-08:00

Of course we're talking today about Major League Soccer, the little baby in the American professional sports world. Like the growing pains experienced by its more mature siblings, MLS is facing the expiration of its collective bargaining agreement, on January 31, and the distinct possibility of a labor interruption. Is MLS doomed to repeat the labor strife experienced in baseball and football? Or can "the beautiful game" follow a different path?

[I had the opportunity to participate in a podcast discussion of the status of MLS labor issues today on a website called "MLS Talk" Here's the link.]

1. From its inception, MLS has tried to follow a different path. Well aware of the trouble antitrust law has caused for owners in other professional sports, MLS was organized in a very specific way in order to avoid antitrust liability. Antitrust law, in relevant part, prohibits an agreement that restrains trade. One way to avoid antitrust problems is not to restrain trade. The other is not to enter any agreements. MLS chose the latter. It avoids entering any agreements, in effect. Under the MLS ownership structure, the MLS constitutes a "single entity." As a result, the kind of arrangements or agreements among teams that have gotten other leagues in trouble (such as salary scales, salary caps, player drafts, limitations on free agency, and so forth) are not, in the view of the MLS, "agreements" under the antitrust law at all. They are merely internal business decisions, no different than any coordinating activities among divisions of a single manufacturer. Thus, MLS is incapable of violating the antitrust laws, no matter how much it restrains trade.

2. The union fought this "single entity" characterization in the 2003 litigation styled Fraser v. MLS. The league won, sort of. The appellate court in that case (the U.S. Court of Appeals for the First Circuit) found that the league lacked sufficient "market power," given the ample competition for players from the various international soccer teams, to give rise to a cognizable antitrust claim. So the best reading of that decision (and this reading is debatable; the court's opinion is less than clear on the point) is that the First Circuit gave no ruling on the single entity argument. In any event, in the wake of the decision, the union in its next collective bargaining agreement promised not to contest MLS's single entity status, at least for now. It remains contestable, however, at least in my view.

3. Of course none of this should matter, and courts will say as much. Whether or not a sports league is a single entity for antitrust purposes should have nothing to do with what form of business model a league adopts. League structures should be based on the most efficient forms to enhance fan interest. Most leagues have a more decentralized structure, featuring independent team ownership, on the view that teams owned locally will promote local rooting interests to a greater degree than would a centrally managed league in which teams were mere divisions of the same company. Structure shouldn't matter for legal purposes, but it does. MLS, which has "investors" instead of owners, and has player contracts entered into by the league, not the team, simply looks more like a single entity than does Major League Baseball, for instance, and thus is more likely to sustain that conclusion in court.

4. It is this "single entity" status that is at the heart of MLS current labor issues. The players' union is not asking for more money or better benefits. It wants free agency: the right of players whose contracts have expired to shop their services among competitor teams. The union understands that it has been free agency that, along with salary arbitration, has been instrumental in bringing about the enormous salaries that are common in other pro sports. The union wants the MLS to treat itself, essentially, as not a single entity, and to allow their "divisions" to bid against each other for assets. This is a serious divide. The entire league is set up to promote single entity status, yet it is exactly that status (or more exactly, the benefit from that status) that the union wants to negate. Soccer fans, this could get ugly.

5. The MLS collective bargain agreement expires in a few days. I have no idea what the parties will do. I know what I would advise the owners to do: offer a better financial deal, and if it's refused, lock the players out. This is a huge year for MLS. The league's public prominence has crested during times of significant USA success in international competitions, such as the 2002 World Cup, where the US made the quarterfinals, or last year's Confederations Cup. 2010 is of course a World Cup year, and the attention of the US on its national team will be intense. This is exactly the wrong time for a labor stoppage. Yet the union by requesting free agency is threatening the very heart of the MLS cost-control measures. The union is picking a big fight.

6. MLS is currently enjoying some profitability. It has a few very successful franchises (Toronto, Seattle) and (finally) a profitable television contract. It has some money to spread around and adjust some of the very low player salaries. But the union doesn't (at this time) appear to want money; it's arguing for a principle that the league will be very loathe to adopt. By not locking the players out at the inception of the season, the league risks making major investments in the season (in salaries and in staging contests) only to see the players threaten a strike toward the late summer, when World Cup interest reaches its peak and the MLS season heads towards the playoffs. A failure by the owners to lock the players out only transfers the leverage to the players, who would now get the pick the date of a work stoppage to exert maximum leverage. By locking the players out early, the owners retain the upper hand and will be able to exert maximum leverage to sustain the season.

7. I like MLS. I don't want to see the season interrupted. I think the best way to avoid an interruption is for the league to put out its best financial offer presently and then plan on a lockout. The prospect of improved wages will be very attractive to the union's rank and file, many of whom earn less than $50,000 per season, and who may care less about free agency than does the higher-paid players. Also, the huge divide in player compensation (David Beckham earns over six million for his limited work) will render a strike very hard for the union to sustain. Players will cross the lines, or go back to Europe. The union has to know this, and know also that the owners could withstand a lockout much more easily than could the players. Let's hope a reasonable salary compromise can be reached.

No Good Argument in American Needle

2010-01-14T14:07:00.000-08:00

Two observations about last week's oral argument before the Supreme Court in American Needle v. NFL:

1. Neither position seemed entirely plausible
Lawyers like to ask questions based on completely unrealistic hypothetical situations because they allow us to locate the outer limits of a rule. Figuring out to what situations a rule of law would not apply helps lawyers determine where it does. The Justices in the American Needle argument spent much of the time trying to locate limits. They took turns asking the lawyers for each party about football leagues playing on Saturday, rogue non-sanctioned games between NFL teams, Red Sox fans wearing Yankees' shirts, and purchases of office stationery by NFL commissioners. No matter how far-fetched and silly the Justices' questions appeared, they couldn't find a limitation to the rules proposed by the litigants. The lawyers blithely insisted that antitrust law would (or would not) apply to everything.

The Court couldn't find limits because there weren't any. American Needle's position is that the antitrust law must be used to examine all aspects of a joint venture. Since the NFL teams are independent businesses, in Needle's view, then when those teams conspire to take joint action then that joint action is subject to examination under the antitrust law. That sounds fine, until one realizes that "subject to examination under antitrust law" is lawyer's code for intrusive and very expensive federal litigation. Expensive antitrust lawsuits to review every action of the joint venture, from awarding trademark licenses to buying one brand of football; that sounds sub-optimal, no? Similarly, the NFL's position is exactly the opposite, that the league is a single entity for virtually anything it does that is related to the game of football, which means that the NFL is basically immune to antitrust liability. Which also sounds about right, until one recalls that the owners have a long history of restricting the salary and movement of players, and that the players won much of their labor rights through antitrust litigation in the 1980's. In short, no hypothetical seemed too outrageous. Neither proposed rule appeared to have a limit.

It will be difficult for the Court to write an opinion embracing either position, since both lead to places the Court will surely not wish to go. The lawyers did their clients no favors by not being able to articulate a plausible limiting principle to their proposed rules.

2. This case might not be about sports law at all
What was also strange about the argument before the Supreme Court was that most of it had nothing to do with the question the Court had intended to answer, which involved an economic analysis of single entity vs. multiple economic actors with respect to the NFL. Instead, the argument was all about the meaning and reach of the rule of reason. The problem with the rule of reason is that, although it is generally thought to be a generous approach to antitrust law (and it is, compared to the dogmatic "per se" approach that dominated the early antitrust jurisprudence), it is nonetheless onerous in terms of its costs of application. What the Court seemed interested in doing was to use the "single entity" idea much as did the Seventh Circuit: to cabin or calibrate the rule of reason element of Sherman Act liability. In other words, the rule of reason is so uncertain, and thus so costly to implement, that the single entity doctrine might become a proxy to allow for rapid and cheap resolution of joint action litigation.

If I'm right in this analysis of the argument, then the eventual decision of the Court will not be about sports law. We won't know if, as a matter of law, the NFL (and other professional sports leagues that share key attributes with the NFL) are to some extent "single entities" that are incapable of concerted action. Instead, American Needle v. NFL will become another antitrust decision about the rule of reason, a case that just happened to have a sports league as a litigant. The decision will fail to secure a place in the pantheon of sports law, a position it once appeared poised to hold. An opportunity to answer an important and perduring question in sports law will go by the boards.

Teams That Tank

2010-01-07T15:25:00.000-08:00

NFL Commissioner Roger Goodell is the latest sports leader to fret publicly about an increasing problem among professional sports leagues. With so many benefits available to a team from losing a game, or more specifically from not trying very hard to win, then it appears that sometimes teams appear indifferent to winning. I can think of three instances where teams play indifferently. First, where an amateur star player is about subject himself to the entry draft, and a losing team tries to position itself in a better position to obtain the highest draft choice. Second, where a team in the latter stages of the regular season has no chance to qualify for the playoffs, and thus plays rookies and scrubs in order to assess player abilities in preparation for the following season. Third, where a winning team is assured of a playoff berth and therefore uses the remaining regular season games to rest stars and avoid injuries to key players. For shorthand, I'll refer to all of these situations as "tanking."

[Of course situations one and two in the tanking list might in many cases be coincidental; I suspect that sometimes we think we're seeing a team lose for draft position when we're really seeing a losing team making assessments for the next season. So the problem, in my view, is likely overstated.]

Assuming tanking is a problem (Commissioner Goodell clearly seems to think so), let's see what if anything can be done about it. I've read about lots of proposals. Every one of them involves additional rules. I've heard of proposed rules that require stars to play, rules that fine teams for shirking, rules that threaten the forfeiture of a draft pick if teams shirk. Why does everyone always want to make up new rules for every problem in the world? Maybe fewer rules would work better.

So let's eliminate all of the following rules and see if this problem of tanking goes away.

1. Before we discuss remedies, we should ask if tanking is all that bad. In TSLP's glorious formative years in the Commonwealth of Massachusetts, although of course I wanted my teams to be in contention and win (vain hope in those days), I used to love when the Red Sox fell out of contention. It was a chance to see the top prospects, or the part-time rookies, get a chance to play. You could estimate their potential and whet your appetite for their eventual contributions. Granted, watching the kids play is a different kind of fan interest than watching your team drive for the championship. Yet sports fans do consume their fanaticism in various ways. Only one team can win the trophy, and only a minority of the teams (one would hope) can qualify for the playoffs. It is important for teams to learn how to market their non-competitive games as much as the ones with immediate playoff implications.

2. Again before we discuss remedies, realize that this presumed problem of tanking is a very modern phenomenon. Although I'm not that old (my internet persona TSLP is a mere twenty-nine, and handsome to boot), part of the current fixation on tanking stems from the current fixation on the playoffs. Of course the playoffs are entertaining and fun, but they are also contrived: they do not determine a league champion in any true sense. Instead, they crown a champion and make everyone call that team the champion. For instance, beyond doubt the New England Patriots (with a 17-0 record) were the best team in the NFL in 2008, and indeed might have been the greatest NFL team ever, yet an improbable upset meant that the Giants were the season's "champion." The Giants were a very good team, but hardly the best. Does anyone really think that the NCAA men's basketball tournament crowns as its victor the best team in college hoops? It would be amazing if it did. Yet winning that tournament, although obviously the product of a large dollop of luck, has become the defining characteristic for NCAA basketball programs and coaches. Anyway, the result of our modern and indefensible addiction to playoffs and champions is that the enjoyment of the game itself has diminished. I grew up rooting for a losing teams. To be a fan meant to follow that team and root for its gradual improvement over the course of many seasons, looking for small signs of hope in promising rookies, cheaply acquired veterans, and improved skills from present players. Today it's playoffs or nothing. My point is that losing teams that play rookies is nothing new; our terming it "tanking" and considering such games "meaningless" is a reflection of the limits and shallowness of the contemporary fan experience.

3. But before I run out of internet space, here's my first reform (by which I mean rule-elimination, not rule-addition): end the limitations on trades of draft picks. If losing teams are in fact tanking for draft picks, they must believe that the draft pick is more valuable to them than is the fan anger their tanking will likely generate. Which means either that young, unproven but talented players are worth it (sometimes, but not routinely) or that the rules of the professional leagues artificially inflate the value of those picks. I suggest it's the latter. The leagues make it either impossible or difficult to trade picks. Draft picks in major league baseball cannot be traded. NBA teams may not trade first-round picks in consecutive years. The NFL allows for trades of picks. Notice how tanking concerns (at least in Situation One, that is, losing for draft priority) are seldom discussed with respect to the NFL. Why don't NFL teams tank for superior draft position? Because the (relatively) free alienability of draft choices makes it comparatively easy for any team to move up or down in the draft. Why would a team tank to turn its high draft pick into one or two spots higher? History shows it's easy and common to trade up as desired. Plus, where a team has traded away its top pick, it no longer has an incentive to increase the value of that pick.

So one solution to the problem of tanking is to allow teams to trade their picks freely. Then a team that wants a particular high draft pick could weigh the cost of moving up in the draft (say its own pick plus a valuable player) against the cost to its fan support from tanking. In many cases, it might be better to play hard now and trade later. Limiting the tradeability of draft picks means teams have no choice but to make their picks as valuable as possible.

4. The leagues also err by imposing rookie salary scales. These scales are designed to pay rookie players less than their market rate. I understand the various rationales for wage scales. But one unintended consequence of rookie scales is that draft picks are more valuable than they would be otherwise. Would teams be as eager to tank games to get high draft picks if those picks cost the teams a market rate in terms of salary? Again, look at the NFL, where the picks in the top half of the first round are paid something close to their market value. Teams that hold such picks have trouble trading them. The "value" in the NFL draft, I've read, is in the lower part of the first round and the second round, where the pay for players is much lower. These cheaper players from the second round are sought after, while a very top pick might be a curse. If the NFL does adopt a rookie wage scale in its next round of collective bargaining, as has been discussed, then the NFL will usher in an era of tanking. The NBA, which has what is probably the clearest slotting system among the major professional sports, has the biggest problem with tanking, and has had to adopt a crazy-quilt series of lotteries to try to dissipate the obvious gains from tanking. Instead of adding lottery rules and other contrivances, let's try eliminating a rule instead!

5. The other side of the problem is Situation Three, where playoff-bound teams save their stars for the post-season. Part of this problem stems from the uber-importance that the leagues give to their playoffs. But that issue aside, the remedy here is simple: just let teams pay their employees for doing good things! Radical idea, yet the American professional sports leagues prohibit it. Players and coaches must be paid in salary, and that salary cannot be contingent, even in part, on the player's or coach's performance. By rule, the terms of bonuses are carefully circumscribed: in general, players may be given what I'll loosely characterize as "participation" bonuses (number of games played), but for the most part are prohibited from any performance bonuses. (Some exceptions: players can get (limited) bonuses for winning or placing high in the individual voting for league-wide awards.) But bonuses are not permitted for home runs, basketball goals scored, or touchdown passes caught. Okay, I can see how those bonuses might be disruptive to team chemistry. But why not allow individual bonuses to players and coaches for the number one thing that (supposedly) the leagues and the fans all care about, that is, winning the darn games? Why not allow teams to make bonuses contingent on winning? Why is this practice prohibited by the rules and by-laws of every major professional sport?

If players and coaches actually earned money by winning games, don't you think we'd have seen Peyton Manning and the rest of the Colts playing in the second half against the Jets last week? How much would the Colts have paid in bonuses for an undefeated season? Would veterans claim their little toe hurts in order to sit on the bench in "meaningless" late-season contests if they stood to gain financially from getting in the game?

6. There may be times teams would want their veterans to sit. The team may want to give the rookies a chance or rest a star for the playoffs. Teams could still do this, only now by guaranteeing the veteran his bonus. What would be wrong with this? Yet, today we have a rule prohibiting paying bonuses for wins, for fear of making the pro contests look like a gambling event. Yet because of this rule, they look like a tanking event. End this rule and let's see if the problem of tanking persists.

Tim Donaghy on 60 Minutes

2009-12-07T11:30:00.000-08:00

It doesn't take much daring to say that 60 Minutes messed up. The seminal investigative news program lost its teeth a long time ago. But still, it would have been interesting and educational if the program had treated the Tim Donaghy story as something more compelling than a banal morality tale about the depths of addiction. 60 Minutes had the first public interview of the disgraced former NBA referee. It consequently had the opportunity for the first serious examination of the scandal that exposed the hidden underside of professional sports leagues, namely that game officials are omnipresent third-players in the game contests and have a mind of their own.

The 60 Minutes interviewer pressed the point repeatedly that Donaghy was guilty of an act of moral turpitude, a description that Donaghy was very willing to concede. Indeed, the one small act of self-preservation on Donaghy's part, coming when he described his conduct as a "bad choice," drew the interviewer's pointed response that Donaghy's choice was more than bad. So let's try "horrible," Donaghy responded helpfully. The one substantive point Donaghy tried repeatedly to make was that the personal vendettas and whims of game referees go so far to determine game outcomes as to render Donaghy's picks correct about 75% of the time. Yet the interviewer's lame follow-up to this telling assertion was a question put to the FBI investigator, of all people, asking whether the NBA had a problem with biased referees. The agent's reluctant agreement was underscored by the interviewer, as if a key point had been conceded. But how would an FBI agent be in position to confirm or deny such a charge? Biased refereeing hardly rises to the level of a federal crime.

I would have preferred that the investigative report have been more thought-provoking. The story about a lone NBA ref who goes bad tells me nothing new, and indeed mimics the NBA's line. But what was the NBA's role in all this? There can be no question that refereeing a game has a strong subjective element, particularly when the game is NBA basketball, which strikes me as the most difficult sport to officiate at its highest level. So many big men collide in such a small space, rendering the constant charge/blocking call all but impossible to make with any practical consistency. Referee calls will be inevitably variable, regardless of whether the referees are motivated by a pursuit of objectivity or base revenge.

Subjectivity in refereeing will always be with us. The question is what to do about it. The NBA did exactly the wrong thing. It made a policy to keep the referee assignments a secret until game time. The NBA did so in order to keep its referees away from the corrupting influence of gamblers, who had they been aware of which referees were assigned to a particular game would have had an opportunity to fix the game. Yet instead of protecting its referees, what the league's policy did was to make it possible for a referee to be corrupted. By keeping referee assignments secret, the league created inside information. Donaghy and the gamblers he tipped used this inside information to gain a betting advantage. In a point overlooked by the interviewer, Donaghy drew this analogy to inside information explicitly.

Had the league routinely released referee game assignments well in advance of the contest, gamblers would have helped the league keep the game clean. Sports bettors leave no stone unturned in seeking even minute competitive advantages. A referee's biases and proclivities (regardless of whether their cause is malign or benign) would likely be detectable in historical game data; certainly sports gamblers would do their best to discover any foul-calling tendencies both for totals bets but also to see if a referee's calls might tend to favor a particular team. How hard could it have been to discover biases? Donaghy was able to pick 75% of the games based on little more than offhand, anecdotal knowledge.

Had the NBA released its referee assignments, it would have negated their importance. Bettors and touts would have competed to use this new information, and in short order the tendencies and biases of individual referees would have been reflected in the point spreads on side bets or in the over/under on the totals bets. I made this point repeatedly on this blog as the Donaghy scandal was unfolding. Interestingly, in its response to the Donaghy episode, the NBA decided to announce referee assignments well in advance of games.

60 Minutes should have investigated why the NBA unnecessarily created inside information, information moreover that was valuable to gamblers and no one else. Why did the NBA make this mistake? As importantly, why do pro sports leagues continue to keep secrets? The NFL won't even release the rules of its game. Major League Baseball keeps secret the formula it uses to rate free agent players; its umpire ratings are guarded like the colonel's chicken recipe. The NBA does not have an NFL-like requirement for teams to disclose injury information. What is going on here? These are games we're talking about. If the NBA had never kept its silly secret, Tim Donaghy would have had no inside information on which to base his bets.

Just So We're Clear, the NFL Steroid Policy is Dead

2009-12-06T17:52:00.000-08:00

I want to report to the world that I just saw the NFL's steroid policy violated on national television during the Vikings-Cardinals game. The Minnesota Vikings are fielding ineligible players. Their defensive tackles, Kevin and Pat Williams, tested positive before the season for a steroid masking agent and thus are subject to the four-game suspension prescribed in the NFL steroids policy. This suspension is supposedly mandatory; moreover, the policy does not give the commissioner any discretion to curtail the suspension. It's mandatory and automatic. Yet neither Williams has suffered a suspension. Several players for the New Orleans Saints are similarly ineligible yet they too continue to play, all in direct contravention of the league policy.

These players are playing because the NFL steroid policy is dead. The NFL tried to suspend the Vikings players, but in the ongoing "Star Caps" litigation the players successfully challenged their suspensions in state court under state law. They won an injunction restraining the NFL against imposing its policy against them; the court's reasoning (that the NFL policy contravenes state law) would also prohibit the league from suspending any Vikings player under its policy, no matter how egregious the violation. Brett Favre could take a needle on the sidelines in full view of the "Favre Cam" and there's nothing the league could do about it, assuming the league discovered the nature of the injection by following its drug-testing policy.

Not only are the Vikings players essentially free from the NFL policy. Most likely, no player from any team will ever be suspended again. Any player who tests positive for a banned substance will hire a lawyer. That lawyer's first job will be to explore the possibilities of a law suit in state court, much like the one the Williams brought successfully. Indeed, it would presumptively be professional malpractice for a lawyer to ignore this possibility. The lawyer would then sue the NFL in state court, invoking any state law or state constitutional rule that might provide state workers with greater protection against workplace drug testing than that prescribed under the NFL policy, as did Minnesota law. If the state law does confer greater protections, then the players will likely be granted an injunction against the NFL. This result should not be too hard to achieve, especially if the NFL continues to enhance its steroid policy to make it less protective of player privacy than the typical state worker law.

Even if the applicable state law is not more protective than the NFL policy and the steroid-using player does not sue, the NFL policy will still not produce the "mandatory" suspension. The treatment the NFL accorded the Saints players shows us why. The Saints players could have been suspended. Louisiana drug-testing law provides an exception for the NFL policy. Yet the NFL decided not to suspend the guilty Saints players because the Vikings players were allowed to play despite being guilty of ingesting the same substance. To punish the Saints but not the Vikings would have appeared palpably unfair and would have violated the league's overriding goal of competitive balance. The reasoning that kept the Saints players on the field would apply with equal force to the next player who violates the policy. Why should one team ever get to field players who violate the policy and but not another team? Why treat teams unequally?

Of course, the NFL's "fairness" perspective is contestable. State law, some might argue, confers both advantages and disadvantages on local teams and does so in ways that are not mirrored in every other state with an NFL franchise. For example, states subsidize their teams unequally, affecting the financial health of franchises and their ability to attract and retain players. Some states provide financial support for their teams in the form of stadium building or even in a direct monetary payment (as Louisiana does for the Saints). Marginal state income tax rates on individuals vary noticeably, and are thought to constitute a significant factor in player relocation decisions. So the fact that some players in certain states benefit from pro-worker labor laws could be characterized as simply another unavoidable variation in the attractiveness of certain franchise locations. Indeed, if drug-testing protections become important to athletes, states may help their franchises compete for free agents by passing protective state laws to override league-wide policies.

But this analogy seems overly simple. Unlike favorable tax laws or variations in state subsidies, were the league to allow some players to violate the league policy with impunity while denying the same treatment to others, then the league is generating a competitive advantage that would be exercised on the field. Certain teams may field substance-abusing players while others may not. This is no hypothetical; this is exactly what has been going on in the NFL this very season. The Vikings and Saints are playing ineligible athletes and enjoy a competitive advantage as a result.

By sheer coincidence, the Vikings have one of the best won-loss records in the league. The Saints have yet to be beaten.

The Coming Federalization of Anti-Doping Policy

2009-11-06T19:37:00.000-08:00

Just this past week, a Congressional subcommittee held a hearing on the recent Starcaps decision out of the Eighth Circuit. (I wrote about that decision here, and not all that favorably.) To refresh your recollection, the court decision allowed two NFL players, both named Williams and both playing defensive tackle for the Minnesota Vikings, to assert claims for damages against the NFL in state court. The players argued that the NFL's anti-doping policy violates Minnesota state law governing workplace drug testing. The NFL's position was that, even if the NFL policy and state law conflict, state law claims are preempted by federally protected collectively bargained agreements. The "Starcaps" court said they weren't. So we're left with the prospect of two NFL players having violated the NFL anti-doping policy with apparent impunity. We're left with two NFL players (or one team of players) subject to one (more lenient) set of rules, and everyone else subject to the NFL's more punitive policy. One league; different rules.

Pretty clearly, the NFL and interested members of Congress are not pleased. Roger Goodell testified at the hearing, asking the Congress to intervene by reasserting the supremacy of federal law and federally protected collectively bargained agreements over state law. The Players Association's executive director, DeMaurice Smith, along with most of the other witnesses at the hearing, advised the Congress to delay action on the grounds that the Minnesota court could still see things the NFL's way, or that the Minnesota state legislature might amend its law to accommodate the NFL's policy.

I can't speak to the politics in Minnesota's state house. But I can offer an opinion on the legal case: nothing's going to change. No good result for the NFL can possibly come out of the state court proceeding. If the Eighth Circuit's decision stands, the drug-testing policy of the NFL and other sports leagues has been balkanized. It's a done deal; the NFL policy is as good as dead. By waiting, the Congress is only inviting a crisis. And the crisis will not produce the modest intervention prescribed by Goodell and another witness at the hearing; instead it will result in the Congress' sweeping takeover of anti-doping policies for all sports. The union, which should have asked the Congress to protect the collective bargaining process, will instead find its players subject to a set of rules much harsher than ever before.

1. As it relates the the NFL anti-doping policy, the Minnesota state trial that looms in March 2010 is irrelevant. Indeed, it's on that precise ground (that the state case and the NFL CBA are not relevant to each other, thus rendering the state case not preempted) that the federal court allowed the state case to proceed. So how can the state case uphold or reaffirm the NFL policy? The state court will have nothing to say about the NFL policy. I think the suggestion made to the Subcommittee that things can somehow turn out all right in Minnesota is unsupportable. The Minnesota court could, in theory, read Minnesota's law to mirror the current NFL policy, but this suggestion (also made at the hearing) is very dubious. Minnesota's law prohibits any suspension for the first positive test; the NFL policy mandates a four-game suspension without pay. How can those opposites be reconciled? Remember, a Minnesota state trial judge already granted the players a preliminary injunction on the grounds that the players would "likely succeed" on their claims that the NFL's policy violates Minnesota law. These players will win. As far as the NFL policy is concerned, of course, they already have.

2. Regardless of any interpretation of state law by a state court, what's on the books is a decision by a federal appellate court that holds that players may assert state-created rights to avoid being subject to the league's anti-doping policy. Nothing in the opinion limits this principle of law to the NFL; the same reasoning should apply to the policies of other professional sports leagues. Indeed, nothing limits it to the pros; some courts have held that NCAA scholarship athletes comprise "employees" for state law purposes, so perhaps even amateurs will be able to challenge drug suspensions, should they live in a state that has a law in disagreement with the testing protocols of the governing body of the sport.

3. We're not just talking of a few states that have, like Minnesota, workplace drug testing laws more protective of worker rights than the NFL policy. Nearly all states are home to a professional team in some sport. Potentially, the state law of any of these states could form the basis for nullification of a drug suspension. These state laws could also change, as of course they are subject to legislative amendment and judicial interpretation. How effective would a sport league's anti-doping policy be if it were limited by the "most protective" state law? State laws vary a lot on this subject. Some require all tests be based on suspicion; some limit sanctions; some place limits on the means by which urine samples are taken. Writing a policy that complied with all applicable state laws would be difficult.

4. More importantly, the resulting "state-law-proof" policy might not serve the needs of professional sports. State laws on workplace conduct are written with typical workers in mind. In that setting, careful proscription of testing procedures and significant allowances for rehabilitation of the worker make sense, given the typically long employment relationship and given the substantial investments worker and employers make in each other. In the NFL, however, careers are short and pay and public salience is high. Players are well-compensated for their agreement to submit themselves to more rigorous testing procedures; the public attention the league earns makes the teams interested in providing that compensation to present the public a clean image. The short career suggests that swift punishment, not interminable rehabilitation, provides the preferable response to the first positive test. Finally, the need for competitive balance on the playing field requires that players who have helped themselves to an unfair pharmacological advantage need to be removed from the field, not sent to mid-week counseling meetings.

5. Soon enough we'll see other athletes go through the door opened by the Vikings' defensive tackles, challenging drug suspensions in state courts. Indeed, in the wake of the Starcaps case, what competent lawyer for a player would fail to assert a state law claim? Remember, because this claim is not based on the CBA, the players union has no say in the matter, as it would ordinarily in an arbitration claim. The player need only retain a private lawyer for hire to file suit and needs nobody's permission to bring that suit. State courts and state laws will soon define the permissible boundaries for doping policy in major sports. It won't take much of this for the federal Congress to intervene.

6. And when the Congress intervenes, I predict it will do so in a forceful way. Uninterested in the legal complexities of federal law preemption, lacking faith in the collective bargaining process, and perhaps responding to a public outcry, the Congress will proceed to adopt national drug-testing standards for all professional and amateur sports. Most likely these standards will mirror the very strict and most intrusive rules of the World Anti-Doping Association. No one's going to be very happy if this comes to pass.

7. The unions and the Congress could have avoided this path had the unions and the other panelists agreed with the recommendation that Congress intervene currently, but in a modest, surgical way. The Congress was advised at the hearing to adopt a simple measure: amend Section 301 of the Labor Management Relations Act to preempt any state claim that would conflict with any drug-testing policy incorporated as part of a valid collective bargaining agreement. This small measure would have in a stroke of the President's pen taken all the sting out of the Starcaps case and completely insulated sports CBA's from the vagaries of state law. It would also have upheld the significance of the collective bargaining process in sports. It would have maintained the union's relevance by giving the players a voice in establishing doping policy. Instead, they will one day find themselves subject to doping policies set by WADA: a group of unseen people in far away countries, an organization over which American athletes and American sports leagues will have no influence.

The Starcaps Case and the Impending NFL Labor Fight

2009-09-21T15:35:00.000-07:00

The recurring drama of the National Football League season is off to a great start, except for the part where my beloved Patriots took it on the chin last week against the hated Jets. Looming over all the optimism of a new season is the much-anticipated labor crisis that threatens a return to the strike-filled era of the late part of the last century, an era in which sports unions flexed their young muscles against entrenched management interests. All football fans are hoping for an interruption-free continuation of America's most popular spectator sport.

For the most part, the job of the courts is to stay on the sidelines during labor negotiations. Their limited role is to police unfair labor practices and keep the parties negotiating. On occasion, in the course of a negotiation or immediately afterwards, courts are also called on to affix the scope of the non-statutory labor exemption. The importance of this exemption cannot be overstated. The non-statutory labor exemption basically means this: it's "non-statutory" (that is, a court made it up); and it's a "labor exemption": not an exemption from federal or state labor laws, but an exemption that exempts "labor" from the federal anti-trust law. That's right. Labor unions and management interests can together reach agreements and otherwise act in concert in ways that violate federal antitrust law, and no one can do anything about it. A private agreement to break the law renders the law invalid.

Which brings to mind the recent decision of the United States Court of Appeals for the Eighth Circuit in the matter of the Minnesota Vikings' defensive tackles, Kevin and Pat Williams, against the NFL in the "Starcaps" dispute. The appellate court upheld the trial judge's decision to subject the NFL's steroid-testing policy to the dictates of Minnesota's drug testing workplace act.

As I said, courts don't often get much involved in labor negotiations. But they can sure mess them up.

1. The issues are a bit too complex to submit to easy summary, but at the nub of the case is whether or not federal law "preempts" state law. Kevin and Pat Williams tested positive for a weight-loss substance, apparently a common masking agent to hide steroid use. It appears the players ingested the substance by taking "Starcaps," an unregulated dietary supplement. The players were suspended by the commissioner's office (acting as arbitrator of the validity of the test) in keeping with the NFL's Steroid Policy, which policy was negotiated between the NFL and the players' union. The NFL's drug testing procedures, however, may not comply with Minnesota's state law that sets the parameters for workplace drug testing schemes in Minnesota. So the issue is this: may the NFL and its players agree to a policy that violates state law, just like they have agreed to many policies (such as the NFL draft) that violate federal law?

2. There's a lot more going on in this case than just who gets to play defensive tackle for the Minnesota Vikings. On the one hand, you might wonder why any two people or parties should ever be at liberty to agree to anything that violates the law. After all, if the State of Minnesota has decided that no Minnesota worker in any context should be drug-tested without the careful adherence to stated procedures and opportunities for appeal, why should NFL workers be treated any differently? The point of Minnesota's law is prevent anyone from agreeing to anything less, no matter what pressures the employer may bring to bear. Aren't those pressures every bit as substantial in the NFL, with its short player careers and the constant threat of contract termination?

3. On the other hand, the NFL is undoubtedly trying to run a business on a national scale. The NFL rightly argues that, if this decision stands, players in each state could theoretically be subject to differing rules insofar as steroid testing goes. The next version of the collective bargaining agreement will have to be written in terms of the "lowest common denominator": the most pro-worker state statute will by necessity form the bottom floor for any national testing plan, assuming the NFL and NFLPA want a single, national standard for all its players. This result requires more than a big legal research project: the supposed effectiveness of the NFL's current policy could be significantly undercut if testing conditions and player sanctions were limited by Minnesota law. (The Minnesota statute, for example, precludes an employee from discharge without first being relegated to treatment; the NFL policy provides for strict liability for all positive tests and requires an immediate four-game suspension for first-time offenders.)

4. The Eighth Circuit court was a little flippant in its dismissal of the NFL's arguments. Quoting from another court's opinion, the Eighth Circuit stated that "[federal labor law] did not give employers and unions the power to displace any state regulatory law they found inconvenient." The federal Congress did not "wish to give the substantive provisions of private agreements the force of federal law, ousting any inconsistent state regulation." (This quote came from a Supreme Court decision.) This is unconvincing. Private agreements override laws all the time. Private agreements determine legal rights. I own my laptop computer: if you borrow it without my agreement, you're a thief; with my agreement, you're a borrower. What is the nonstatutory labor exemption but a private agreement to waive federal law as it applies to the subjects of that agreement? The law is not in place to preclude private agreements; it's there as a "default rule," to supply a fictitious agreement where none was reached explicitly.

5. The better approach for the court would have been to ask whether federal law should empower these particular parties to form an agreement to override contradictory state law provisions. It should. These are well-represented antagonists who are very fully aware of their rights and interests and are both willing to make horse trades on all aspects of employment, including drug-testing protocols and procedures. Agreeing to a relatively intrusive steroid testing program might serve the interests of both the NFL and the NFLPA, given the league's salience in the public mind and its appeal to America's youth.

6. A decision that significantly handicaps the latitude of permissible agreements that the NFL and the NFLPA may strike creates one additional impediment to a successful bargaining resolution. The Eighth Circuit's opinion, remember, in effect prohibits the negotiators from striking any deal on a steroid policy that violates Minnesota law. It will render a successful negotiation more problematic. And any future change in law, in Minnesota or elsewhere, could also render a negotiated resolution immediately obsolete. Courts tend to defer to collectively bargained agreements in resolving labor disputes for good reason. Judicial pronouncements on the terms of labor usually do little good.

Final Word On Delaware Lottery Decision

2009-09-02T16:31:00.000-07:00

By the title of this entry I don't mean my final word. I'm referring to the very recent decision of the U.S. Court of Appeals for the Third Circuit, which decision most likely comprises the final word of the federal judiciary on Delaware's planned sports lottery. Here's the link to the court's opinion.

I've complained previously about the unnecessary haste with which this court decided to resolve this important legal issue. If this decision stands, as most likely it will, then it represents the permanent resolution of Delaware's status under the federal PASPA statute. It's an important issue, one of salience to Delaware's ability to take advantage of its unique status under federal law. That Delaware's federal exemption from PASPA should have been conclusively resolved, and resolved in a way apparently contrary to the spirit of the law and to Delaware's expressed sovereign interest in raising state revenue, is problematic. That this resolution was done in the hasty manner normally reserved for cases involving the potential loss of constitutional rights (abortion, free speeech) is even more troubling. No threat to life or liberty necessitated this action.

The court's opinion justified the rush to judgment as follows: "When a party seeks injunctive relief, the stakes are high, time is of the essence, and a straightforward legal question is properly presented to us, prudence dictates that we answer that question with dispatch." This statement may sound convincing, but it seriously misstates the law. It is simply not true that "when a party seeks injunctive relief" that that fact alone means the "stakes are high" and "time is of the essence." The plaintiff (here the professional sports leagues) has to prove that time is of the essence and quick judicial action is needed. The leagues tried to prove that the stakes were high and time was of the essence before the trial judge in this case, and failed to convince that judge to issue the injunction. No new proof of the need for haste was offered (or could be) to the appellate court; indeed, the appellate court specifically refused to address the issue of the potential of "irreparable harm" should the injunction stopping Delaware not be granted.

The fact of the matter was that there was no hurry. The NFL and the NCAA in particular, whose games are already subject to widespread and much-discussed betting action, would likely suffer no harm at all (never mind "irreparable" harm) should Delaware have been allowed to go forward with its lottery scheme. To imply that there would be harm and that Delaware's lottery plan required emergency judicial intervention seems doubtful, if not incorrect.

What we're left with is the claim that, because in the court's view no factual issues remained for resolution and because the legal issue was "straightforward," then the appellate court should proceed to conclusively resolve Delaware's statutory authority. This is not the law that the Supreme Court decision from which this authority is derived, the 1986 Thornburgh decision (about which I've written previously), expressly established. The Thornburgh decision did allow for final appellate resolution of a case on an emergency basis. But in a majority opinion (that collected only four votes) Thornburgh made clear that such an intervention "deviated from the stated norm" and that an appellate court should "ordinarily limit its review to abuse of discretion," and not to a resolution on the merits. The Supreme Court made plain that such intervention was justified in a "constitutional case" where "the unconstitutionality of the particular state action is clear." The Court also noted in Thornburgh that the appellate process in that particular case was benefitted by "an unusually complete factual and legal presentation from which to address the important constitutional issues at stake."

Obviously, no issue of constitutional rights, important or otherwise, was presented by Delaware's plan to expand its state lottery. No "unusually complete factual and legal presentation" was available, particularly considering that the entire case was litigated in a matter of weeks. Prudence did not "dictate" that the appellate court act with dispatch; it dictated the opposite. The claim that the stakes were high militated in favor of holding a trial on the merits, not rushing forward without one.

On the merits of the federal law, the appellate court limited Delaware to offering a lottery game "to the extent" it offered a game in 1976. Thus Delaware may offer parlay bets involving at least three games, and only on NFL games, because that is "the extent" to which Delaware offered bets in 1976. However, the court continued, Delaware's new game may differ from the 1976 game in "certain aspects," such as at what betting locations the game is offered. In short, the court held that Delaware may introduce changes to the game "as long as they do not effectuate a substantive change from the scheme that was conducted" in 1976.

This reasoning begs the question. The whole issue in the case was whether or not shifting from a three-game bet to a single game bet constitutes a "substantive change" from the 1976 game. For the court to tell Delaware that it may make non-substantive changes but not substantive changes tells Delaware nothing new. And when the appellate court holds, as a matter of law, that a change from a three-game bet to a single-game bet is a "substantive change," then the appellate court is resolving a factual issue, and is doing so without the benefit of a trial record.

Here's the factual issue: Is a three-game bet all that different (and different enough to be "substantive") from a single-game bet? The outcome of both bets involves a lot of luck; certainly the three-game bet involves more luck, but most sports gamblers would say that even winning a single-game bet against a point spread involves a lot of luck as well. Is the limited skill involved in a sports bet all that more prevalent in a single-game bet as opposed to a parlay? Is the greater degree of skill in a single-game bet enough of a difference to make the bet "substantively" different than that made in 1976? That's the issue the appeal presented. The issue presented cannot logically supply the rationale for the court's decision. Yet in the Third Circuit it did.

A trial on this point would have been very illuminating. Experts would have testified as to the mathematical differences between parlays and single-game bets; a trial judge would have marshaled and assessed the evidence in creating a record for appeal. Instead, the appellate court resolved the appeal on the merits because the court decided that there were no factual issues left in the case.

Assuming factual issues away doesn't make them go away, not really.

Delaware's Next Step

2009-08-25T10:36:00.001-07:00

I have only a few minutes this morning, but with the phone ringing and emails chirping I want to try to offer a few comments on the dark day in Delaware.

1. The decision of the appellate court to convert the preliminary injunction appeal into a decision on the merits is problematic. But it's not unprecedented. Federal courts may do this, as the Supreme Court allowed in the 1986 Thornburgh decision involving a statute limiting abortion. The court can rule on the merits "when the facts are established or of no controlling relevance." It's a controversial decision and should be used only in "unusual cases," as the Court admonished in the Thornburgh opinion.

2. It appears from reports in the popular media that Delaware's counsel conceded that the facts were established, thus obviating the need for a trial. This concession, if true, befuddles me. (Granted, I get confused easily.) Why would Delaware's counsel essentially tee the ball up for the appellate court to rule on the merits? Especially when it appeared, from the (reported) tenor of the hearing, that this particular panel of judges was strongly inclined to rule in favor of the sports leagues? Really, without a trial record (there's never been a trial), how could the appellate court know that the "facts are established" unless the appellate counsel conceded as much?

3. What facts could be developed at a full trial that are relevant to Delaware's statutory exemption from the federal PASPA statute? First, what bet exactly will Delaware offer? I understand that Delaware's plans on this point are incomplete at this time. If they are incomplete, then it is possible that Delaware could devise a game that fit within the PASPA exception. Second, what game exactly did Delaware offer back in the mid-1970's? Delaware offered several games, and changed one in mid-season. All of these games involved NFL bets. Which 1975 bet defines the lottery game that Delaware may now offer? One game involved parley bets requiring picking winners of at least four contests and also picking the point spread for the game. Is that game all that Delaware may offer today? Third, a trial court would take evidence, in the form of expert opinion, as to whether a single-game bet was different in some meaningful, qualitative or quantitative way from a parlay bet. Does the game involve different outcomes, or put the counterparties to the bet in a significantly different position than they were in 1975?

4. The most significant problem with the appellate court's apparent decision on the merits is that the briefing on which it ruled was incomplete. The only element of a preliminary injunction that has anything to do with the legal merits of the case is that the court is to determine if the plaintiff is "likely to prevail" at trial. Lawyers briefing this issue will of course discuss the law as it relates to this element. But they will also spend much of their brief and much of their oral argument discussing the other issues relevant to a preliminary injunction, most notably the possibility of irreparable harm to the plaintiff and the chance of undue hardship on the defendant. In other words, the key legal issue, here the issue about the scope of Delaware's exception under the federal statute, gets only partial consideration in a preliminary, emergency action. The briefing and argument on this legal point are nowhere as substantial as they would be on an appeal devoted to that issue exclusively.

5. The federal statute at issue is a complicated one, and the legislative history that surrounds it is fairly voluminous. Many statements can be found in that history that support Delaware's position; many also can be found that favor the position of the leagues. To resolve this complex legal issue on the basis of incomplete briefs and no factual development, and to rule that Delaware is permanently stopped from enjoying its exception under PASPA in the way that Delaware interprets that exception, strikes me as unnecessary judicial lawmaking. This isn't an abortion case: no salient legal rights or human lives might be affected by the court's ruling. There was no need for the court to take this hasty action, based on a spontaneous and probably ill-advised concession by Delaware's counsel during oral arguments.

I hope Delaware has the wherewithal to fight this decision, either by direct appeal or by a collateral attack on the federal statute.

Not the End in Delaware

2009-08-24T12:33:00.000-07:00

Today the U.S. Court of Appeals ruled on a motion for a preliminary injunction brought by the NFL and other sports leagues against the state of Delaware over its plan to offer a sports lottery. The injunction is a preliminary injunction, not a permanent one. It prevents Delaware from offering the sports betting games, for now, until a full trial adjudication can consider the legality of Delaware's plan at a more reasonable pace. So, as a legal matter, Delaware is no worse off today than it was before today; it had no sports bet lottery, and for the near future, it will continue with none. It may take a year to resolve the issue more dispositively, and if Delaware wins, it will be able to offer the games in time for the 2010 NFL season, if not sooner.

Even as a temporary measure, the court's ruling today seems problematic. Like many judges when given a chance to intervene in a legal dispute, the court of appeals failed to give adequate attention to the elements of the process that are designed to limit emergency judicial action to the most severe of cases. For a federal court to intervene so strongly at this stage, and most notably against the wishes of a sovereign state, threatens the presumption of latitude that underlies the delicate federal-state balance. And it's also a bad way to make law.

1. No harm has happened yet. Delaware has not offered a sports bet. At this stage, a court may intervene only if the plaintiff, in this case the professional sports leagues, will suffer a harm from the delay in adjudication that is "irreparable." In other words, the leagues must prove (1) that they will suffer a harm from Delaware's lottery, (2) that that harm will happen between now and (let's say) one year from now (at which time final adjudication would likely be completed), and (3) that that particular harm will be "irreparable," either by the granting of a permanent injunction or by an award of money damages. On all counts the leagues should have lost.

2. First, are the leagues harmed at all by Delaware's plan? Gambling on sports, especially on NFL games, the Super Bowl, and the NCAA's March Madness, is a very common legal and illegal practice that produces an industry that totals billions of dollars in transactions. Sports gambling has been going on for years, apparently without blemish to the leagues' reputations (and at considerable enhancement of their fan interest). How would the leagues be harmed by one more state (joining Nevada) offering a bet? Delaware's plan was to offer the game by contracting with privately owned "racinos" who would create a casino-based sports book: to a bettor, the game would appear indistinguishable from that offered by a sports book in Las Vegas. The fact that the state owned the game means only that Delaware would be the residual claimant on any profits, instead of collecting monies through a tax. How would the leagues be harmed?

3. Look at the leagues' arguments. They claimed they would be harmed in two ways: through fans doubting the integrity of close penalty calls by game officials, and by children being led to gamble by the fact that their sports heroes were playing a game on which gambling was conducted. Again, how would the advent of a comparatively small Delaware game bring about these concerns? Would a fan yelling about a call be more likely to think the officials bribed than the fan thinks already? Remember, millions of dollars rides on game outcomes today, without Delaware's modest entry. As for the children, they know that professional athletes play sports for money. (Indeed, I suspect that's precisely why so many children aspire to be professional athletes.) How would knowing that others also enjoy sports in part along a financial dimension corrupt them, or to be precise, corrupt them more than they might be corrupted already?

4. Second, the leagues must prove they would be harmed not by the fact of sports betting, but by the judicial delay in reaching a more deliberate result. Would one season of NFL sports betting in Delaware harm the leagues? In other words, if Delaware offered its game, and then after the season a federal court rules that Delaware's game violates state or federal law and thus must be stopped, the leagues must prove that this temporary game caused the leagues some harm that they otherwise would have avoided. Most likely Delaware's nascent sports game would likely be small. Delaware and its contracted agents would be unlikely to make large investments in a game that could be subsequently ruled illegal; plus Delaware would have to spend some time ironing out the processes for the game, such as how it should obtain the best point spreads, how to market the game, how to share in profits, and the like. It seems doubtful that a temporary, small game could harm the giant leagues irreparably.

5. Third and finally, the leagues have to prove that the harm from this temporary game would be irreparable by a later injunction or money damages. Assuming Delaware offered the game for one NFL season, then the NFL upon winning permanent relief would be right back where it is now, with widespread betting on its games but with the tiny game in Delaware ruled illegal. Surely a permanent injunction, even coupled with some payment or disgorgement by Delaware of its profits from the game, would fully protect all the NFL's interests. The fact that the NFL is now partnering with (non-sports) lotteries in other states suggests that the NFL's interest is as much monetary as moral anyway.

6. The fact that the law limits judicial intervention to cases where the plaintiff can establish the threat of "irreparable harm" suggests that courts should prevent defendants from planned conduct only in the rare case. So too does another key element in a motion for a preliminary injunction, specifically that the court must determine that the preliminary injunction, if granted, would not cause "undue hardship" on the defendant. Delaware and its contracted parties, I would presume, have already spent some time and money in developing this game. More importantly, if it is later determined that Delaware may legally offer this game, but was prevented from doing so by a wrongfully granted injunction, then Delaware would have lost one year's worth of profits from its lottery game. Estimates of the value of this game vary. But Delaware could recover its lost profits from the NFL and the other plaintiff leagues. Do the leagues realize they could be on the hook for millions of dollars in damages should Delaware turn out to be acting lawfully? The trial judge, in implementing the injunction, should require the leagues to post a substantial bond payable to the state of Delaware should it turn out the leagues, in their haste for a quick judicial victory, have led the courts down the wrong path. Make the leagues put their money where their mouth is.

7. The Circuit Court's decision did not decide the case "on the merits." We don't know any more now than we did before about whether or not Delaware's planned lottery game is legal under federal and state law. In ruling on a motion for a preliminary injunction, the court is only to decide on whether or not the plaintiff is "likely to prevail." This is at best an offhand, brief look at the law. Unfortunately, given the contemporary willingness of courts to issue emergency relief, it is not uncommon that this brief prediction as to the likelihood of success becomes the de facto law of the land. Often once defendants lose at the preliminary stage, they give up trying to pursue their legal rights. If Delaware stops now and does not seek a ruling on the merits after a full trial, then today's appellate ruling on a preliminary injunction will become permanent federal law.

The emergency processes for temporary injunctions were not designed to produce statements of law. That they were used as such today by the NFL and the other leagues only exacerbates a trend of using the threat of legal action, rather than the rule of law itself, to influence others to behave in preferable ways. It is the rule of law, and the rule only, that should limit Delaware's options on raising revenue from its citizens.

The (Un)Importance of American Needle

2009-07-29T20:23:00.000-07:00

To most everyone's surprise, the American Needle litigation has found its way to the U.S. Supreme Court. When that court grants cert it's usually to reverse, but because of the strange posture of this petition (both sides sought the grant), the usual rules don't apply.

Plenty of commentators have reviewed the appeal and discussed its prospects before the high court. What has surprised me is the discussion of the decision's potential ramifications. Judging from the weight of expert opinion, if the NFL prevails, the players will suffer complete reversals of the wage and work condition gains from the past several decades. For a particularly notable example, see this article by ESPN's Lester Munson. Under the understated title, "Antitrust Case Could Be Armageddon," Munson paints a picture of owners gone wild: players bound to their teams for life, baseball games barred from cable broadcast, extravagantly expensive game mementos, and players retaliating with widespread strikes. It's a bleak picture; one can only hope Judge Sotomayor comes to the court's rescue, much like her court (thought it) did during the baseball strikes decades ago.

I'm more than a little dubious about these conclusions. I doubt the Supreme Court will use the American Needle litigation to make the pronouncement about the nature of the NFL's business and its relation to antitrust law that the NFL wants it to. Even if the Court obliges the NFL, I doubt that any of the predictions Munson and other commentators make will come true. In short, there will always be an NFL, regardless of what the Court writes.

1. First of all, I thought it was the common consensus that professional athletes are overpaid? Doesn't that mean owners are underpaid? It's a zero-sum game. If we want athletes to make less money, then we have to empower the owners to cut back salaries.

2. But, one might ask, would empowering the owners (should the NFL win the Needle appeal) necessarily come at the expense of the players? In other words, wouldn't the fans also get ripped off, as Munson suggests? I don't see this happening. I assume that every sports franchise is in a competitive market for fans. Each team competes against all the other entertainments and leisure activities which fans might consume in lieu of spectator sports. If the market is competitive, or even approximately competitive, then if the price of spectating is raised the teams will lose profits, no matter if those profits eventually accrue to the owners or the players.

3. Should we, as spectators, care much about who wins the battle between the players and the owners? As long as players command a sufficient salary to keep them from leaving the field, and owners make enough to maintain their investments, why should fans care? Maybe we as fans prefer the current era of comparative player liberty (free agency, arbitration rights, limitations on draft rights), but a lot of anecdotal evidence suggests fans like when players stay on the home team.

4. What may underlie concern about the American Needle case is a preference for the labor side. That's fine, as far as it goes, but really shouldn't be conflated with a concern over the well-being of fans. And even on the labor issue, I doubt that a pro-owner decision in American Needle would do much to alter the balance of power. Undoubtedly the NFL players have had a great deal of historical success attacking the NFL's labor practices under antitrust law. But contemporary courts have adopted a more modern view of business practices. They understand that most significant markets are national in scope, if not international, and that some degree of cooperative behavior among firms is necessary to produce cost-savings and other efficiencies to allow firms to compete. Undoubtedly the NFL today competes in a national market. It will adopt whatever rules on player movement and salary rates that best position it to compete for the nation's attention. In other words . . .

5. Assume the NFL wins and the owners were allowed complete collusion. To put the case more strongly, assume that the NFL were purchased by a single owner and run as a single business. Would the owner prohibit all player movement, despite the attention the league earns from the draft, trades, and free agency? Would the owner eliminate terminable contracts? It strikes me that the NFL already has all the rules in place it wants.

6. Would player salaries diminish? Few employees take salary diminishment lying down. The NFL's salary structure could change, with more wages being devoted to the star and less to the star's complements. Look for quarterbacks to make more; left tackles less. One historic effect of unions is to redistribute salary among themselves. Have the unions also increased the total amount of salary distributed to players? Yes, if we assume that the collective bargain extracts a larger amount of money devoted to labor than would a series of individual negotiations without the constraint of salary slotting and the implicit sharing demanded by unionization. That's a large and very contestable assumption. In any event, it's unlikely the union or the collective bargaining agreement will go away.

7. I'm not saying that the case is insignificant; if the court resolves the case on any but the narrowest grounds, it would give the NFL a significant victory and clear away any antitrust worries for the league when it operates outside of the collective bargaining agreement. But the real balance of power is struck in the CBA; the union is endemically weak because the short-term nature of the NFL player career makes it so. Nothing the court says about antitrust law will change that.

8. As for professional leagues other than the NFL, the newer ones (see Major League Soccer) have from their inception organized in order to appear a "single entity" for antitrust purposes. The older leagues don't have the luxury of starting from scratch. But what would stop the owners in a league from selling their shares to a common company and then "redistributing" owner-like authority back to the former franchisees? It might appear a cynical attempt to avoid antitrust problems, but how would this device be any different from MLS? Recall a few years ago when some wealthy person put in a bid for the entire NHL at a very substantial price? He argued that if he bought the whole thing he could achieve efficiencies that are lost in a league with individual, non-cooperating owners. In other words, along many dimensions it makes business sense for the leagues to act as a single entity. If the courts decide they can't act as a single entity, then they can reorganize to achieve it anyway.

Will Selig Reconsider Rose?

2009-07-28T11:36:00.000-07:00

A few months ago I was given a chance to speak at the annual meeting of the Baseball Historical and Sociological Conference, an esteemed group of baseball historians and other researchers. I used my time to argue a favorite point in my agenda, specifically that Major League Baseball should allow Pete Rose to be admitted into the Hall of Fame. I hoped to kindle in these influential baseball scholars a small spark that might set off some reconsideration of Rose's case. I'm sure I failed. Nonetheless, since it appears that Commissioner Selig is about to reconsider the matter, I wanted to disseminate my small contribution to a wider audience. I put the paper on SSRN.

Here's a link to download the paper.

The paper will be published in print form in the periodical, "Nine: A Journal of Baseball History and Culture," in the fall.

NFL v. Delaware: Round II

2009-07-24T11:18:00.000-07:00

All of the major professional sports leagues plus the NCAA today filed suit in federal court in Delaware. The "Leagues" as I'll call them are suing the state of Delaware (actually suing the governor, to avoid 11th Amendment complications) for its plan to offer sports wagers as part of its lottery as soon as this fall, just in time for that bettors' paradise known more commonly as the National Football League. (I received a copy of the complaint courtesy of Chad Millman of ESPN.) The complaint seeks preliminary and permanent injunctive relief on two theories: (1) that Delaware's plan to offer sports wagers offends the federal Professional and Amateur Sports Protection Act (PASPA) and (2) that the proposed wagering scheme violates Delaware's constitution.

Delaware is one of the few states that is explicitly authorized by PASPA to offer lottery games based on sports contests. PASPA "grandfathered" Delaware (and Oregon, Nevada and New Jersey) when it created the general federal prohibition on sports bets on the grounds that those states had at the time more or less existent sports lotteries. (I've written about challenges to PASPA here.) The plaintiff Leagues are not challenging Delaware's grandfathered status; indeed the Complaint implicitly concedes that Delaware could offer lottery games based on the outcomes of sports contests. What is new and different about Delaware's plan, and what has drawn the Leagues' ire, is that Delaware plans to offer "lotteries" based on the outcome of single games, either by picking the winner (a sides bet) or picking the over/under on the total score (a totals bet). Back in the mid-1970's, Delaware had offered only "parleys" in its brief foray into sports lotteries. A parley requires the bettor to pick the winners of several games in order to win a single bet.

This litigation could prove enormously important for the world of sports and the world of gambling (two worlds I tend to inhabit). My first-blush thoughts:

1. The Leagues' federal PASPA claim rests on a rather ambiguous phrase in the statute. In the section relevant to Delaware's grandfather status, PASPA states that its prohibitions are not to apply to a "lottery, sweepstakes, or other betting, gambling, or wagering scheme in operation in a State or other governmental entity, to the extent that the scheme was conducted by that State or other governmental entity at any time during the period beginning January 1, 1976, and ending August 31, 1990." The Leagues state that the phrase "to the extent" essentially limits the grandfathered states to offering (roughly) the same games that were actually offered at the time prior to or surrounding PASPA's passage. In other words, these states weren't grandfathered; rather, the particular games in those states were grandfathered.

2. This interpretation of PASPA, although certainly plausible, is nonetheless contestable, on three grounds. First, the phrase "to the extent" as a grammatical matter seems to refer to and is part of the clause describing the time period concerning which putatively any state could have qualified for the grandfather exception. States could be grandfathered to the extent (meaning "if," they offered games during that time period. The phrase does not seem to modify or qualify the types of games that are listed in the first clause; indeed, if it were meant as a delimitation on the first clause, it would be a clumsy way to do it. (Admittedly it's a clumsy phrase no matter how you view it.) Second, the only states to which this entire clause could apply are Oregon and Delaware. No other state had offered such games in the relevant time period, and New Jersey and Nevada have their own grandfather clauses in PASPA. Oregon and Delaware at the time offered only parley wagers. If the PASPA legislature wanted to limit Oregon and Delaware to parley wagers only, then why did the statute list "lottery, sweepstakes, or other betting, gambling, or wagering schemes" to describe the scope of Oregon's and Delaware's exception? Either these words are surplusage or they describe the exception. If it's the latter, then it seems Delaware has a pretty good argument to make.

3. Third, even assuming the Leagues are correct and that PASPA's "to the extent" limits Delaware to the betting games it offered back in the 1970's, the question is whether or not parley bets are really all that different from single-game bets. Here is, quite literally, the multi-million dollar question. If Delaware has permission to offer bets on the winner of three games, may it also offer bets on the winner of one game?

4. Before I suggest how the court will answer, we should look briefly at the Leagues' state law claim because it raises a similar question. The issue here is one seen in lots of gaming cases throughout U.S. history. Basically, Delaware (like most states) has a clause in its state constitution (original version) that prohibits gambling in all its forms. Like most states, Delaware sometime back in its history amended its constitution to permit state-run lotteries. Like most states, after the passage of the "lottery exception," Delaware's state legislature commenced to push the limits of the exception by offering to the public all kinds of betting games that bear scant resemblance to the common conception of a traditional state lottery, with its weekly drawings of winning numbers and such. Although the judicial outcomes are decidedly a mixed bag, for the most part the states succeeded. A "lottery," courts have held, doesn't have to include spinning balls and winning numbers and smiling television hosts. A lottery is a game where the player provides (1) consideration for a (2) chance at a (3) prize. Many games apart from the traditional lottery fit this legal definition. As did Delaware's old sports parley game. You see, we've been down this road before, in Round I.

5. In 1977, the NFL sued Delaware (I suspect the NFL has it in for Delaware; Wilmington will not be awarded a football franchise anytime soon) on the grounds that Delaware's parley sports lottery did not fit within the Delaware's constitutional lottery exception. The key issue in that case, which will be the key issue in the new litigation, is whether or not the sports bet is at bottom a "game of chance." Remember, to constitute a lottery, the game must be one of chance. (The other two elements, consideration and prize, will undoubtedly be conceded.) In the 1977 decision, Delaware won. The federal court decided that in a parley bet, although some measure of skill was obviously involved, chance was the "dominant factor" in deciding the outcome of the bet. Picking the winner (against the spread) of three or more contests was predominately a manner of chance, not skill.

[6. Interestingly, before signing the new scheme into law, Delaware's governor recently asked the Delaware Supreme Court for an advisory opinion on whether or not a single-game bet fell outside this "game of chance" rule from the 1977 federal court decision. Helpfully, the supreme court conceded that this was a good question that it would presently decline to answer. Now, with this new federal lawsuit, the federal judge might well decide to certify this exact question, which involves state law, right back to the very same state supreme court. Usually certified questions are treated more seriously than requests for advisory opinions from the attorney general, so this time the Delaware court will make a decision.]

7. Not afraid of tough questions (and with a little less riding on my decision), I'll attempt an answer. I think the Leagues will win the state law claim and that Delaware will win the federal law claim. A split decision. The champions will have to fight again in Round III.

8. On the federal PASPA claim, I think the Leagues will be hard-pressed to convince a judge to read the ambiguous "to the extent" language as constituting a complete, permanent ban on Delaware's offering any sports wager other than the parley games it offered in 1975. This reading seems to put too much weight on words that do not make the ban explicit, particularly when explicitness would have been so easy to accomplish as a linguistic matter. (Of course, the federal Congress could, in response to such a decision, amend PASPA to make this ban more explicit, and presumably if it did so the Leagues might win in the next battle, Round III.)

9. On the state constitutional law claim, here I think the smart money will be put on the Leagues. Delaware won this fight in Round I (the 1977 litigation), with the court finding that the parley bet comprised a game of chance and therefore fit within Delaware's lottery exception. But if some sports bets are indeed games of chance, then logically some other sports bets must not fit the bill. Some bets must be games of skill. Is winning a bet on a single game predominately a matter of luck or skill? (Depends on if you're talking to the winner or loser.) Certainly winning this single-game bet involves more skill than does a parley bet. Trying to pick winners against point spreads for three or more contests is the quitessential crap shoot. (Actually, I'd have a much better chance shooting craps.) For a single game, fewer breaks have to fall in one direction. Reduced opportunities for luck necessarily means enhanced opportunities for skill.

10. Of course, just like the Leagues could induce the Congress to amend PASPA should Delaware prevail on the federal claim, so could Delaware induce its voters to amend the state constitution should the Leagues prevail on the state law claim. And we'd be off to Round III.

May Lawyers Play Golf?

2009-07-21T20:21:00.000-07:00

I'll stipulate up front that I'm not the most socially adept person and make frequent blunders. (Luckily for me, I'm often accompanied by loved ones who are quick to point out my errors.) My question today has to do with the mix of sports, law and culture. Specifically, is it ever "wrong" in some social or moral sense to use the rules of a sport in one's favor? Can it be "unsporting" or socially inept or something along those lines for an athlete to apply the rules of the game in a manner that might be surprising, even apparently wrong, yet upon close reading is permitted? I have written on this theme before (here's the link), and I remain bewildered by the claim that there exists some concept of a sport apart from the rules by which the sport is played.

Let me explain my latest confusion. A few days ago I was doing parental duty spectating at a junior golf tournament. On a par four, one of the players in my son's group shanked his approach shot dead right into the woods; he then dropped a provisional ball from the original spot and struck the provisional ball to within a few feet of the hole. Spectators are allowed to assist players in finding lost balls, something I customarily do. But in this case I hung back, and waited to see if the player wanted to look for his original ball or instead proceed to play his provisional. (If he were able to play his provisional he would surely score a bogey.) In a misjudgment, the player trudged into the woods, and I followed. A tournament rules official (this was a serious tournament) was already in there, poking around for the ball. A few minutes later he found the ball, but it was unplayable, stuck in a bush. No plausible place to drop it was nearby or back, and so the only choice for the golfer was to replay the original stroke and see if he could duplicate the excellent provisional shot. Before he did so, the player asked the rules official if he could forget about the first ball and go play the provisional. The official replied in the negative. He said that with the original ball found the provisional had to be abandoned and that to play the provisional ball would be to play the wrong ball, with attendant penalty. Glumly, the junior golfer dropped the original ball back at the original spot and replayed the shot, albeit into a bad lie in a sand trap. He ended up with a triple bogey. He also lost the tournament by a single stroke.

Tough luck for the golfer? Certainly. But also a questionable call by the official. To be clear, the rules of golf provide exactly what the official described. He got it right. But the rules just as clearly provide for exactly the opposite conclusion. So he got it wrong. Which rule should apply? Why not allow the golfer the benefit of the rule that militates in his favor? When I happened to mention all of this to the rules official after the round was over, even showing him the relevant rule in the book (my son keeps a copy in his bag; he's a born lawyer) that provides for the conclusion opposite the one he declared on the course , the official became quite agitated. He said that I was ignoring the spirit of the game and was arguing for bad sportsmanship and that we (adults) need to set a better example for these young men and women.

But how could I be right on the rules yet a bad example at the same time? If the rules provide for differing outcomes, why is one rule (the official's punitive one) morally superior to the other? Could someone please explain this to me so I don't set a bad example for my children?

Here's the rule the official cited, and the one I did. See who you think is both correct and right.

1. Rule27(c) gets to the heart of the matter. It provides that if a provisional ball has been played in case the original ball is lost, once the original ball has been determined not to be lost the player must abandon the provisional ball and play the original. This is undoubtedly the rule the official had in mind when he directed the junior golfer to play the original and, if he chose, proceed under the unplayable ball rule to drop the ball back at the original spot. The rule appears clear. But lawyers are paid to create ambiguity. So keep reading. (And yes, this is why people hate lawyers.)

2. Notice that the paragraph above never said that a ball thought to be lost was "found." It said the ball thought to be lost was determined not to be lost. Rule 27 itself contains the same circumlocution, stating that the putative lost ball is (in fact) "not lost." Why not just say the ball has been "found"? Because for the rules of golf, a lost ball doesn't mean a ball no one can find. A ball can be "lost" even if the golfer can see it right in front of him, right in the middle of the fairway.

3. Section II of the Rules of Golf set forth definitions, and "lost ball" means, as everyone knows, a ball the player cannot find within five minutes of beginning a search. But a ball is also "lost" where "the player has made a stroke at a provisional ball from the place where the original ball is likely to be or from a point nearer the hole than that place." That's the definition, as much a definition of "lost ball" as a ball not found in five minutes. This other, alternative definition means that if the player, upon finding his original ball stuck in a bush, proceeds forward to a point nearer the hole and taps in his provisional ball, then at that moment the original ball back in that bush has now become a "lost ball." Don't believe me? Back to Rule 27, under the heading "When Provisional Ball Becomes Ball in Play": "The player may play a provisional ball until he reaches the place where the original ball is likely to be. If he makes a stroke with the provisional ball from the place where the original ball is likely to be or from a point nearer the hole than that place, the original ball is lost and the provisional ball becomes the ball in play under penalty of stroke and distance."

4. So the rules of golf, in literally adjacent provisions, provide specifically for exactly opposite conclusions. Under the first specification (the rules official's), the provisional ball must be abandoned and the golfer who plays the provisional suffers the severe penalty for playing the wrong ball (two-stroke penalty plus player must go back and play original ball). Under the second specification (mine), the player can walk away from his original ball (or better, not look for it at all) and tap in his provisional for a bogey. Under my approach, the player can hit a provisional and decide later if his chances are better by playing the original or taking the stroke and playing the provisional. I realize my approach "sounds wrong" and that the common understanding is that a "found" ball cannot be "lost." But that's not what the rules say. Indeed, what is the point of that entire alternative definition of a lost ball and all that extra explanation in Rule 27 if not to apply precisely to the situation it describes, a golfer who plays his provisional ball again from a point nearer the hole?

5. The USGA's Decisions on the Rules, which are deemed by the rules to also constitute the rules of golf (resulting in this simple game with balls and sticks being regulated by literally hundreds of rules) provide numerous examples of just the situation I described. Once the provisional ball is played from a point nearer the hole, then the original ball is lost, even if the original ball is found in a literal sense. Keep in mind, nowhere do the rules of golf create an obligation for a golfer to search for a ball. The rules and decisions do of course say (as the rules official pointed out) that once the ball is found (or the player is notified that it's been found) then the provisional ball must be abandoned and the original ball becomes the ball in play. But, again, the rules also provide the alternative, deeming a ball "lost" when the provisional is played for the second time, in essence. The rules and decisions also make this opposite conclusion (the one for which I argued) just as clear.

6. The Decisions are written in question-and-answer format. Check out Decision 27-2B1:

Q. At a par-3 hole, a player hits his tee shot into dense woods. He then hits a provisional ball which comes to rest near the hole. In view of the position of the provisional ball, the player does not wish to find his original ball. He does not search for it and walks directly towards his provisional ball to continue play with it. His opponent (or fellow-competitor) believes it would be beneficial to him if the original ball were found. May the opponent (or fellow-competitor) search for the player's ball?

A. Yes. In equity (Rule 1-4), he may search for five minutes provided that in the meantime the player does not play a stroke with the provisional ball, it being nearer the hole than the place where the original ball is likely to be. The player is entitled to play such a stroke. If he does, the original ball is then lost under Rule 27-2b and further search for it would serve no purpose.

See? I told you. Just go hit that provisional ball. In the junior golfer's case, just hit it and say that the original is "lost" as defined by the rules.

7. The Rules also say, if one encounters a point not covered by the rules, one should fashion a ruling "in accordance with equity." Here one can't say that this point is "not covered" by the rules (indeed, over-coverage might be the problem), but in any event, what is equitable here? One could say it's the process outlined by the rules official. But why? Why is it inequitable to abandon the first ball and play the provisional? The player will take his stroke penalty and did execute the very same shot that would be required upon re-dropping the original under the unplayable ball rule. Is it that the player played the provisional with less pressure, knowing that there was a chance the provisional wouldn't count? Okay, but if the rule were opposite (as actually, it is) and golfers could proceed to play the provisional (as the rules explicitly permit) then that provisional shot would have some added pressure, as the golfer would know this was his only chance to salvage the hole with a good provisional shot.

8. I asked a friend, not a golfer, which rule she thought more equitable and she said the one where the golfer gets to play his provisional shot: why waste time walking back to hit the same shot for the third time? She thought that stupid, given that the penalty was fully assessed. Is this friend wrong? Wouldn't most golfers (older than the junior player in this case) have strolled right past those woods, ignoring that ball in the thicket, and tapped in the provisional for the bogey? Indeed, wouldn't it be bad form (and hyper-competitive) for another player in the group to go looking in the thicket for the original when the player clearly was advancing toward the provisional? The more equitable outcome is the one commonly practiced.

9. Here's the rub of the green: the rules of golf are chock full of such contradictions and ambiguities. Other sports with thick rule books have a similar problem. (Football rules are so full of verbiage, nuance and interpretation even in defining such basics as touchdown or pass reception that I've suggested, only half-jokingly, that a lawyer be added to the studio announcing team; I've even volunteered for the role, promising to laugh uproariously at all the inane jokes.) But is it proper to push the rules of a sport so hard? Should people like me look for loopholes and ambiguities and alternative meanings and find ways to justify applications of the rules that seem at variance with their intention? The intention, it seems to me, is to encourage players to look for original balls and play them if found. The alternative ruling (mine) would allow the golfer to be able to pick from two shots. Say some PGA golfer reads this and uses my reading of the rules in a PGA event. Would that be a good thing? Would that player be vilified (as I was) for being a bad sport? Or would he, by spurring reconsideration and amendment of the rule, be doing golf a favor? In the legal field, lawyers are trained to push the rules at every juncture on the premise that this practice produces better rules. Athletes and coaches in sports often push the rules too. Are the rules of sport the proper subject of such stress? Or is there a spirit of the game that overrides specific provisions?

And if there is an overriding spirit to our games, could someone please reduce it to writing so all of us insensitive sorts don't go around setting bad examples?

Podcast Links to Interview on Sirius Radio

2009-06-21T20:35:00.000-07:00

Sarah Meehan, host of UnderScore Sports radio program on Sirius Radio, interviews me on my latest book, my next book, and lots of things in between.

In Part One she reads a bit from my book, before I'm on the program. Here's the link to part one of the podcast.

In Part Two, I say something too. Here you go for that one.

PASPA Under Fire

2009-03-25T21:23:00.000-07:00

(This was cross-posted on my new blog, Gaming Law Memo.)

A state senator in New Jersey has filed a federal lawsuit to challenge the constitutionality of the Professional and Amateur Sports Protection Act. Here's a link. (Note the nutty professor quoted toward the end.)

PASPA, signed into law in 1992, prohibits states or any person from offering or authorizing a lottery or other betting game based on the results of any competitive game in which amateur or professional athletes participate. Read literally (and statutes are meant to be read literally), PASPA seems to outlaw any bet sanctioned by state law, even so-called social gambling where state law permits it, such as a parlor poker game or a five-dollar bets at your local golf course. In practical effect, the law prohibits states from raising revenue by permitting Las Vegas-style sports books, or lottery games like the NFL parley lottery game Oregon recently discontinued. (Four states were implicitly exempted from PASPA: Nevada, Montana, Oregon and Delaware.)

Will this litigation test the issue? I hope the Senator has the wherewithal to pursue the question through the appeals process. The trial litigation should be relatively inexpensive, since the legal question can probably be raised on a stipulated factual record, obviating the need for extensive discovery and fact-finding. I would imagine the district judge will issue an opinion on the question and hurry the case along to the appellate courts, the inevitable destination.

And what will the courts say? Is PASPA unconstitutional? I'd rather try to pick a four-game parley on an NFL weekend than predict judicial results. But here are some thoughts:

1. One infirmity in the statute is that it treats states differently from each other; specifically, those four states mentioned above get special treatment. The argument is that the federal Congress has an obligation under the commerce clause to treat states equally. This theory was raised a few years ago in an article in the Virginia Law Review. I just don't see it, although I'm of course willing to be convinced. The commerce clause in the federal constitution does not explicitly require that the Congress deal with states uniformly. Since other clauses of the constitution do contain such an explicit requirement, its absence from the commerce power is telling. Congress' authority to regulate commerce is plenary; as long as the law is rational, it's good to go. I think this argument loses. (Take the points.)

2. I think the more interesting constitutional argument arises under the tenth amendment: that PASPA violates the principles of federalism that the federal courts have come to recognize in the tenth amendment. Specifically, the tenth has been held to prohibit the federal government from forcing states to enact specific laws. What does PASPA do if not compel states to prohibit sports betting games? Put it this way: if PASPA were nationally uniform, then Nevada would have to change its laws to conform with the federal law. In this sense, a state (other than Nevada or one of the other exempted ones) in passing a lottery law must include a provision prohibiting games based on sports contests. So PASPA in effect requires states to pass state laws to conform with federal law. This poses a substantial tenth amendment issue. (Give the points.)

New Jersey's governor has said, according to the link above, that he will wait for the federal law to be tested before backing any plans to institute sports bets. He should throw his support behind the proposal now, in order to ensure that the federal court finds that New Jersey is sufficiently serious about sports wagers to present a real conflict for the court to resolve with a declaratory remedy. I would hate to see this important test case fail for lack of justiciability.

Rethinking the PED Ban: The Rights of Cyborgs

2009-02-23T21:47:00.000-08:00

I know I'll likely lose my last reader over this. (Goodbye Mom.) But, just like Alex Rodriguez, it's time for me to come clean on performance-enhancing drugs. As more than one email message has mentioned, every time this blog deals with the PED issue, TSLP quickly turns the cannon, aiming at the prosecutors, cops, reporters, parents . . . just about anybody I can think of except the players themselves. I guess there's plenty of blame to go around, and I like to see that everyone gets his comeuppance. Plus I get to dodge the most obvious issue the "steroid era" presents: specifically, should PED's be banned?

My answer is complicated, but the summary is not. I think, maybe, possibly, the answer just might be "no." I think. Very provisionally. Here's why:

1. All kinds of technologies enhance sports performance. My golf clubs have U-shaped grooves. I've fished on boats with depth finders to locate fish. I've launched myself in pole-vault competitions with super-strong and light carbon composite poles. (Yes, being a college professor is nothing but fun.) I could mention huge equipment improvements in tennis strings or archery bows, and changes in discus composition, barbell strength, kayak materials, artificial surfaces, and shoewear. All of these developments, and countless more, make the games easier to play. All of them enhance performance.

2. Let's pause for a moment to consider the fact that these technologies enhance performance. By making performance easier, a technological improvement changes the game. It promotes the shattering of extant performance records. It also changes the skills needed to perform. Athletes who may have mastered the old technology will find their hard-earned comparative advantage wiped away. New technology yields new winners. New technology will also invite more people to play the game, thus crowding our competitions and increasing demand on shared resources. Nice to have some of those easy-turn skis that came out in the past few years; not so nice that I need them to avoid all those new skiers turning right in front of me.

3. It seems too facile to distinguish equipment improvements from biological ones. Some of those improvement technologies are biological, both indirectly and directly. An equipment technology is biological indirectly in the sense that certain biologies can best take advantage of it. Golf's square groove technology, by facilitating and thus lessening the penalty on shots from the rough, gives advantage to the long hitter, who can strike tee balls as hard as possible while suffering minimal penalty from wayward shots. Some technologies are more directly biological, such as prosthetic devices on amputated limbs, laser eye surgery, or hypoxic chambers. These last three are clearly products of advanced technology. In the case of the prosthetic device, like the "Cheetahs" employed by the Olympian Oscar Pistorius, the technology is applied and remains on the body; both lasik surgery, undertaken by golfer Tiger Woods, and hypoxic chambers, used by athletes in many sports, are applied to the body and leave the body altered. All three impart a technological enhancement that is distinctly biological. All three enhance performance.

4. As an ethical matter, biological improvements cannot be separated from other technologies. Most technological improvements at bottom give the athlete improved performance that is in some sense "unearned": the athlete passively sleeps in the hypoxic coccoon or is given a faster swimsuit. Yet the athlete enjoys the improvement nonetheless. Some technologies do require adaptation, and so the practice spent on that adaptation does look like the traditional road to athletic accomplishment. But the practice is only necessary to perfect the adaptation, not to perfect the sport itself. In a sense, the competitors now compete to master the adaptation, not the sport, and thus the victory goes to the swiftest and best adaptor of the new technology. The athlete who could best perform with the old technology, under which conditions performance was more difficult, now loses. Technological change rewards those who best adapt to it.

5. Parimutuel betting on horse races has long been an exception to the widespread prohibition on sports gambling in this country. Why are the horses so lucky? Because state legislatures have long held to the (now antiquated) notion that horses should be encouraged to race (hence the betting as an incentive) so that the horse stock and breeding practices could be improved. Horses were a vital part of the American economy. What's important today? Human health. Indeed this subject may be the salient public policy concern in this still-new century. Sports is more than entertainment. Sports serves a useful purpose in finding and expanding the limits of human performance and health. New technologies and therapies are tried in the world of sports on a regular basis. Why can't athletes, within the walls of safe practices and with full knowledge of known risks, push the limits of the human ability to adapt to and profit from distinctly biological technologies? I know steroids are dangerous. But part of that danger must stem from their illegality. Would their dangers be mitigated in the hands of an experienced medical doctor? Plus the steroids era has come and gone. Few athletes intent on employing biological technologies would today resort to the crudiites and attendant side-effects of steroid use. Why use steroids when you can use . . .

6. Genetic modification. It's coming. What's wrong with this exactly? If a person can in some real sense alter his genetic makeup, then isn't his very person altered? Isn't he competing in as natural a state as he can achieve? Consider the athlete whose genes were modified at infancy. Is that person to be forever banned from sports? What if the genes were altered in utero? What if the parents themselves were altered, and that alteration was passed along to the athlete/child? Are children to be disqualified from birth? Have I asked enough questions?

7. I haven't even mentioned drug testing, which is intrusive, legally problematic, always one step behind, expensive, unavoidably subjective, and doomed to failure. I also haven't mentioned the huge problem with drawing the line between therapy (ethically permitted, to bring the athlete back to normal) and enhancement (ethically not permitted, because it brings the athlete beyond the normal). Andy Pettitte of the New York Yankees did this for me, when he claimed, after being found to have taken steroids, that he only did so to overcome injury and return to the field. Isn't he correct (whether truthful or not)? Why deny an athlete or any person a drug that can safely restore him to health?

8. I think performance enhancements are inevitable, regardless of whether those enhancements involve biological technologies or not. Safety is a concern; but safety usually supplies a reason to regulate, not ban. Fair competition is a concern, but competitive advantages will have to be regulated through restrictions on equipment, not with biological bans. In other words, if Oscar Pistorius is allowed to line up at the start of the 200 wearing his Cheetahs, then I get to be in the next lane revving the engine in my Ford F-150.

9. If cyborgs may compete, will the natural human have no chance? Will bionic legs propel runners and jumpers, laser-aided eyes aim rifles, external lungs sustain endurance? How can biological technology be contained? Honestly I think it can't. I think the future of sport lies in competition classes. We classify competitors now: by gender, by weight, by experience. I think more of the same lies ahead. This splintering of sports may diminish our fan experience, as multiple competitions crowd the airwaves and compete for our attention. More sports may become "minor league" in the pejorative sense. But that's okay. The purpose of sports is competition, not to provide an entertainment spectacle. I could live with enhancements, so to speak.

Alex Rodriguez and the Real Victim of Steroids

2009-02-09T20:37:00.000-08:00

Two years ago I predicted everything that we see today would come to pass. Here's the link. All that was left was to fill in the blank with the names of the guilty. Finally, one leaked out. We should not be surprised that the name is probably the most famous name on the positive test list: Alex Rodriguez.

Imagine being a lawyer, or working in some support position for those lawyers or for a court, and knowing that none other than Alex Rodriguez failed a drug test for steroids. What a difficult secret to keep. Yet your professional or occupational obligations require that you take that knowledge with you to your grave. How hard would that be? Lawyers have this obligation drilled into them in law school and in the culture of legal practice; nonetheless, despite the explicit court order to the contrary, maybe one of them let it slip. Alternatively, maybe a non-lawyer, perhaps lacking that practiced response, also gained knowledge of Rodriguez' test results and squealed.

In any event, it's out, and Rodriguez has more or less owned up to his steroid use. The leak was inevitable, right? Not in my view.

1. As I explained in the post linked above, the government seized the testing data by executing a search warrant. The legality of that seizure remains a matter of ongoing litigation. The Ninth Circuit appellate opinion, to which I referred in the post two years ago, is currently being re-examined by the entire Circuit "en banc." The appeal involves a number of issues, one of which (the rights of a person in his expended urine) may even interest the Supreme Court. Fearing premature release of this information, the federal judge presiding in the case specifically ordered all parties to the action not to disclose the contents of those test results while the appeals were pending. My point here is that, especially while the ability of the prosecution to use that evidence remains contested, the release of some of its contents to the public arena constitutes a notably disturbing development.

2. A disturbing development, I should add, that was created by the Sports Illustrated reporters who enticed several insiders with knowledge to break their legal duty and finger Rodriguez. Where is the reporters' complicity? I see Selena Roberts, Sports Illustrated's new back-page moralizer (assuming the high ground vacated when Rick Reilly assumed the pontificator's role at ESPN) being interviewed on evening news programs without having to answer for her conduct. If it is not permissible for an insider to reveal the contents of sealed evidence, then why is it morally permissible (if not illegal) for an outsider, especially a veteran reporter experienced in prying admissions out of reluctant innocents, to cajole and entice such insiders to break their known legal obligations? Isn't luring another to commit a wrong just as culpable as the wrong itself?

3. Yet the reaction is precisely the opposite. Mark Fainaru-Wada, the reporter who abused the legal system by digging out the secret transcripts of grand jury proceedings respecting BALCO and Barry Bonds, instead of spending more time in prison, lands a gig with ESPN. Selena Roberts will undoubtedly rise within the ranks as well. Why does the news reporting industry visibly and tangibly reward employees who lure others to break the law? Today, media writers from every corner are weighing in on how much Alex Rodriguez has destroyed his name and the game he plays. But why doesn't the media examine its own contribution to the destruction of something far more important than a game? The actions of Roberts, like that of Fairnaru-Wada before her, threaten the very legal system on which this country relies. Their actions reveal a disregard for the social good that runs far deeper than that of some twenty-three year old shortstop sticking a needle in his arm.

4. Roberts will enjoy her day in the sun. But I look forward to the trial. Not that of Alex Rodriguez: I doubt anything he did will interest a prosecutor. And certainly not the tawdry matter involving the pitiable Barry Bonds. No, I'm looking forward to the day when reporter Selena Roberts gets to squirm on the hard wooden chair in the federal courtroom. I'm getting the sense that the federal judge presiding in this matter will not be pleased by this latest leak. I'm also guessing that the federal prosecutor to whom this judge will likely refer this leak problem will want to do his very best to impress the new federal administration. This is not the end of the matter.

Will Selena Roberts write her moralistic SI back-pagers from the confines of federal prison, where she'll be on her civil contempt penalty?

The Bonds Tapes

2009-02-04T22:27:00.000-08:00

Today much of the evidence the federal government will present against Barry Bonds in his perjury trial was unsealed. I have yet to have a chance to review the entire file (I have a day job), but one piece of evidence in particular has received the pointed attention of the press: a tape recording of a conversation made by a business associate of Bonds. The tape contains statements by Greg Anderson, Bonds' former trainer and alleged steroid supplier, describing the process by which Major League Baseball was to test Bonds and containing Anderson's prediction that his substances would prove undetectable. This evidence, of course, is pretty damaging to whatever credibility Bond's protestations of innocence retain in the court of public opinion. In a court of law, however, where this drama will be played out, the tape will likely be of no moment. At least if the judge is awake.

This recording is not admissible, at least under the theory the major sports media is discussing. It's not even close.

1. First, put aside issues as to the sketchiness of the recording; I listened to it and had trouble discerning the words. (And TSLP, with eyesight possible only through the thickest of lenses, hears like a bat.) The recording is of a conversation, with typical interruptions and half-sentences, that undoubtedly was aided by gestures and inflections to help convey meaning, all of which is lost on tape. Even if we could parse its words, the conversation, we are told by the national media, is hearsay. The tape would be offered in evidence to prove the truth of its contents, specifically, that Anderson did know how to create a drug to beat the MLB testing system. From this contention the jury could plausibly conclude that Anderson put that knowledge to use in aiding Bonds. Hearsay is inadmissible.

2. Unless the hearsay fits one of the many hearsay exceptions. Only one exception seems reasonably appropriate, and that is the exception for statements against interest. But like most shorthand labels, the phrase "statements against interest" is misleading. A statement against interest requires more than that the statement be against interest in some general sense. One requirement is that the statement is only admissible if the declarant, i.e., the person who uttered the words (Anderson), is "unavailable" in a legal sense. In a perplexity typical of the law of evidence, a person who is sitting in the front row of the courtroom can be legally unavailable, for example if that person's testimony falls under an evidentiary privilege. In this case, the prosecution will argue that Anderson, although dragged to the courtroom and sitting in a pink jumpsuit with a number across its back, is unavailable due to his unwillingness to testify. But what if Anderson stops refusing to testify and takes the stand, and then testifies that he genuinely does not recall the details of this particular conversation with the business associate? Indeed, Anderson may well recall having the conversation but may not recall the particular statements made during the conversation. It is unlikely the conversation was significant to him at the time, thus making his vague memory quite probable. If Anderson can recall having the conversation, even if he cannot recall its details, then Anderson is no longer an unavailable witness. The tape recording would be inadmissible.

(3. Indeed, were Anderson really willing to do anything, as it appears, to help Bonds, then he should take the stand and testfy as I've described, to render the damaging tape inadmissible. But I'll put this in parentheses so that Anderson, if by chance he's reading this, will skip over the parenthetical comments. The state could try to use the tape to impeach Anderson's claim of forgetfulness, but remember, all this assumes the judge is competent: no judge would allow the prosecutor to put damaging inadmissible hearsay in front of the jury just for impeachment purposes.)

4. Now let's assume Anderson refuses to testify, as he has all along, and thus is not "unavailable" in this legal sense. Would the tape be admissible as a statement against interest now? No. To be admissible in this case, the statement must be against the declarant's penal interest; that is, the interest of Anderson, not Bonds. In fact, the statement must be so far contrary to the declarant's penal interest that no reasonable person would have said it unless it were true. Does Anderson's rather deadpan description of the dates for MLB's urine tests so far subject Anderson to criminal liablitity that no one would utter those statements unless they were true? The statements barely subject him to criminal prosecution at all; I would bet many players and agents (even innocent ones) gave some thought to MLB's rather odd testing procedures. Clearly, Anderson's statements that the drugs he designed would be undetectable (if that's what he said; it's hard to discern) are more problematic. Yet it is not illegal to design drugs that happen to be undetectable. The statements are incriminating, yet do they so far subject Anderson to criminal liability that we can believe he wouldn't have said them unless they were true? Might he just have been bragging, or even making something up entirely, just to impress a person (the business associate) who obviously appeared not to know the very first thing about performance-enhancing drugs? This part of the conversation, a very small part by the way, does appear mildly incriminating, but seems to fall short of the stringent demands of the law.

5. I'll admit I'd prefer to see the government and everybody else just leave Bonds alone at this point. His career is over and he'll have to live with his public shame forever, as will Mark McGwire. So I hesitate to help the prosecution. But it's an honest blog, so here goes: the media legal experts are wrong, not just about the hearsay exception. They're wrong about the statement being hearsay. It's not hearsay. The prosecution would be foolish to concede that it is. The conversation between Anderson and Bonds' business partner was a conversation among conspirators, all a part of the conspiracy between Bonds, Anderson, the business associate and who knows whom else to get Bonds pumped up and hitting home runs and to get themselves rich. Statements made during and in furtherance of a conspiracy are admissible against all co-conspirators. To make this work, all the prosecution would have to offer is some proof that Bonds himself was part of the conspiracy. Hard to do? Under federal evidence law, the statements themselves can be used to prove that Bonds was part of the conspiracy the statements further. The statements can be used to justify the statements.

If you understand that point, you should be in law school.

Athletes, Guns and Money

2008-12-02T14:40:00.000-08:00

New York Giants' wide receiver Plaxico Burress got himself shot yesterday and got himself arrested today. The shooting was accidental; nothing that happens after this will be. Burress has been charged with two counts of criminal possession of a firearm. Under his new contract with the Giants, he could be cut from the team and forfeit much of the remaining salary. Under league policy, he could be suspended without pay, indefinitely, interrupting or even ending his playing career. Under state law, he could face a mandatory minimum sentence of three and one-half years. Burress' entire livelihood could be lost from this one incident.

And what was this incident? Burress isn't charged with injuring someone or even with carrying a weapon with malicious intent. His conduct (carrying a weapon) is perfectly legal. What he did wrong was fail to get permission. He violated a mere regulation.

If Burress does indeed suffer the full gamut of possible consequences, the fault lies only in part with him. It also lies with the absurd policies of the NFL and the state of New York concerning the possession of handguns.

1. What many media commentators and many of those who shape public policy fail to understand is why a star athlete like Burress might rationally choose to carry a handgun. The most obvious motive is protection. Athletes are targets: coming from and venturing back into neighborhoods blighted by crime, their high public stature and published wealth must ineluctably draw avaricious stares from thieves. The seemingly frequent news of another athlete being attacked and robbed testifies to the predicament of life as a public star. The response that a pro athlete should never venture into a dangerous place (and thus never have need for a gun) is facile and wrong: any public venue, even a restaurant or cinema, might house potential danger. Should a star athlete turn his back on the neighbors and friends of his youth? Just buy a mansion in a gated community and live inside the walls? In any realistic sense, an athlete will venture out, and it stands to reason that a handgun might be needed for protection. The paucity of news reports describing the use of a gun for protection might suggest such uses are rare; it might also suggest that a thief stopped in his tracks or deterred from even starting is not the kind of news that will bubble to the surface and make its way onto the evening telecast. Such beneficial uses of guns probably go underreported.

(2. I heard one prominent former pro athlete say he would never carry a handgun. No, it turns out he hired private security people, themselves armed, to accompany him. How is that all that different? If guns are so dangerous and wrong, why have them along? The answer is they're needed, if only as a deterrent.)

3. But the justification to carry a firearm doesn't rest on a hypothesized utilitarian claim; it's more profound. Deep within the American sports tradition are the "manly sports," a term no longer in vogue but not without significance. The manly sports, like bare-knuckle fighting, boxing, wrestling, fencing, marksmanship and the like were once very popular. Men engaged in manly sports for no utilitarian reason: not (at first) for prizes or fame or enhancement of martial arts. No, men engaged in these sports simply as an expression of manliness, out of simple preference. When my brother and I were teenagers my father, in an act unthinkable in today's world, bought us boxing gloves: the best gift ever. We and our friends spent many a winter's night in our basement, basically punching the heck out of each other. Was this "useful" in some sense, to protect us from bullies or prepare us for fighting unforeseen wars? Not really. It was just fun, the kind of fun boys love to have. It was just sport for its own sake, not for any purpose other than itself, a simple, direct expression of what it meant for us to be young men.

4. It's the utilitarians who eliminated or curtailed the manly sports. Sports are lawful today only if they're useful in some greater sense. Bare-knuckle fighting used to be popular; the utilitarians (sitting on judicial benches) came to the opinion that such fights served no purpose and tended to incite breaches of the public decorum. Thus fighting was outlawed and slowly converted to boxing (itself actually more dangerous, as the gloves were added to protect the hands, not the face, and thus permit harder blows), not initially through legislation, but through judicial decisions holding fighters acting within the rules of the sport to have committed torts or even crimes against their voluntary, consenting opponents. To survive the scrutiny of the utilitarians, sports had to prove they were useful in some sense apart from the sheer pleasure of the sport itself. Not many manly sports can survive this scrutiny. We see this very phenomenon going on today with respect to hunting: to justify hunting, contemporary hunters' groups point to the "usefulness" of the sport as a means of providing food for the table or thinning overrunning animal populations. Hunting as "harvesting" or "wildlife control." Why can't we say that hunting is fun, that it appeals in some indescribable way to many (men, for the most part) in our population, and call that justification enough?

Further, why does the preference to bear arms need a justification, any more than does any other constitutional right? The point of putting rights in the constitution was to eliminate the need to convince people that this preference is a good or useful one. Why do arms-bearers have to make the case that free-speakers or free-religionists don't?

5. Which brings us back to Plaxico Burress, today's poor hounded subject of the swarming round-the-clock, tabloid journalism in which ESPN is starting to specialize. Why did he possess a gun? For the same reason that men like to purchase guns, and fire them, and use them to provide added protection or shoot targets or bring down game. Because he wanted to, as a man. No further justification is possible for manly pursuits, and no more explanation is desirable: you either understand it or you don't. It's a man thing. And that so many media commentators can't make a distinction between Burress doing a perfectly lawful thing, had he had the requisite permission, and the other crimes that athletes and others commit that involve assaults against comparatively defenseless persons is a reflection on the media, not the athlete. If the media don't understand manly sports or manly pursuits then how is that the fault of the man?

(And why did the overbearing police feel the need to "perp walk" Burress on the street in handcuffs for the benefit of national television? I'm sure he would have been happy to surrender to authorities at the time and place of their choosing. Why the felt need to take the public figure, the innocent person, down a peg, all without a trial by jury? Envy is never a pretty emotion to see in action.)

6. I'm not saying Burress shouldn't be punished. But let's be clear: Burress' crime is what is called a regulatory crime, or a crime malum prohibitum. It's a crime just because we (that is, the State of New York) say it is. It's not a crime because it's wrong in some profound sense, what the law used to term male in se, wrong in and of itself. New York is using a criminal sanction to enforce a regulation, the regulation being that arms-bearers in New York have to have a permit. (Some legal commentators think that the criminal sanction, society's most serious, should never be used for mere regulatory purposes.) So must people who plan to stage a parade or a protest. We have a right to protest, but we must do it with lawful permission. Martin Luther King, for example, once staged a protest without a permit. His consequence? He spent a single night in the Birmingham jail. (And by the way, that particular restriction on protesting was later held unconstitutional.) But Burress will get over three years and the loss of his livelihood? Sure, MLK had greater things in mind, but that's not my point of comparison: both King and Burress exercised a constitutional right, albeit one that had to be exercised with restriction; both violated the restriction, and both got or will get punished. But the crime is a minor one at most, and the public reaction should be commensurate.

Obama Playing Fantasy Football

2008-11-23T20:16:00.001-08:00

President-elect Obama has recently added his presidential-elect voice to the chorus calling for the demise of the BCS college football championship. The primary reason for eliminating the BCS and instituting a playoff for the top level of college football is the desire to crown a "true champion." Some people also express concern over the fact that the BCS system limits eligibility to champions from certain conferences, plus (as of recently) a possible at-large bid for other teams. In short, the BCS smacks of the elitism of a select private club: eligibility limited members only. No wonder populist politicians rail against it.

And what is the position of one obscure professor of law? (The internet waits for the answer.) It's this: the BCS is not a bad way to determine a national champion. Nor is a playoff. Nor is a popularity poll. We could throw dice for that matter. The point is, there is no way to determine a national college football champion. Not even a single plausible way. Just a lot of bad ways. And there's a good argument that the BCS (or something along its lines) is the best of the bad ways to determine a champion. So when football coaches and other world leaders complain about the BCS, they might as well complain about the weather while they're at it. It's out of our control.

1. Of course the model for the ideal college sports playoff system is the NCAA's annual gamblers' extravaganza, March Madness. The tournament is a lot of fun (and also puts about one-half of the American population in violation of the federal Wager Wire Act), but no one really believes its "champion" is anything more than a mythical champion. Some of the best teams in the country get eliminated far short of the final four on fluke shots, crazy bounces and bad calls. The surviving team is no more the best team in college than is the champion of the World Series of Poker or the winner of the Super Bowl (especially last year). The Patriots were the best team in football last year, winning seventeen of eighteen games. I'm not begrudging the Giants their trophy: they won by the rules in place. But let's not trick ourselves into thinking that trophy makes them the best team for the year, any more than the Patriots were the best team in 2001 when the upset the heavily favored (and better) St. Louis Rams. These are tournaments. They crown tournament champions, not "true champions" except by coincidence. So if it's a "true champion" you want, a tournament's not the obvious choice.

2. One other little problem comes to play in tournaments: who wins is to some extent the product of initial seedings. Assume four college football teams: Team A has a strong running game, Team B has a strong passing game, Team C has weak run defense but a strong pass defense, and Team D has a great run defense but a poor passing defense. Assume all other team strengths are equal. If the four-team tournament is seeded A v. C and B v. D in the first round, then we would expect a championship game pitting A v. B. If the first round is A v. D and B v. C, then the title contest would be C v. D. Same teams, different champions, all depending on the initial seedings. Or, what if Team E is better than Team F, and F is better than Team G, but G (for whatever matchup reason) can beat E? (And by the way, we see this all the time in college football, where Oregon State beats USC, then USC beats Stanford, then Stanford beats Oregon State: which is the best team based on game results?) We'd cycle around forever, with E beating F, F beating G, and G beating E forever, or at least until an upset happened and we could pretend one of these teams is "the champion." The point here is, it's very hard when dealing with more than one candidate to ever arrive at a "true" sense of who the best one is. (Hey, I should win a Nobel Prize for this! Wait, I think someone already did.)

3. A tournament would be fun and produce some wild betting, so for sure I'm for it. But I don't think a national political leader would want to put it quite that way. Maybe the fun of it all is justification enough (although we'd probably kill the players with all these games). But the "true champion" thing does not pass even basic sense. Plus, how is the BCS, which (with some arbitrariness) designates a single one of its four bowl games "the national championship game" any better? Isn't it obviously a joke to designate a game as the championship one and expect the rest of us to go along?

4. But there is some plausibility to the BCS' claim to crown a national champion. First, by limiting BCS eligibility to schools from certain top conferences (and Notre Dame, which stinks but has its own television contract), the BCS eliminates to some degree the "fluke elimination" that renders the NCAA basketball tournament (and the World Series of Poker) so obviously susceptible to random luck. Second, by relying in part on opinion polls and game results, the BCS makes an earnest attempt to identify the best teams in the nation. Now I'm not for a minute kidding myself into thinking that the two teams selected to participate in the final game are necessarily the best two, but I think the better case could be made for the proposition that they are more likely to be the best two teams than would be the two teams that survived some single-elimination tournament. Even if the selectors are in error, the odds are even higher that at least one of the teams selected to play in the national championship game was the "right" one, thus ensuring the crowning of the best team in the country as champion. If your interest is in identifying the very best team, then we must be exclusive, precluding eligibility for those teams whose only shot at a title would be to win by a fluke. Members only.

5. Although I could be talked out of this, I don't agree with those commentators who have suggested that the BCS constitutes an antitrust violation. The BCS is a private organization (much as is the NCAA) that is separate from the NCAA and that came about by a joint agreement of its member conferences (and Notre Dame, which stinks but has its own television contract) and certain bowl games. That the BCS people claim its champion is the finest in all the land seems mere hubris: that the rest of us go along with the claim in part shows its plausibility, in part shows its marketing, and in last part shows our gullibility. The excluded schools could of course form their own little club and crown their national champion. Although in the short term this claim would appear foolish, over time it could become plausible as some super-team from a non-BCS conference could have a dominant season (go Boise State!). We could have multiple national champions, just like in professional boxing. In other words, the excluded schools can compete in the market, and so appear unlikely to win an antitrust suit.

6. If we really cared about identifying the best team in college football, we'd scheme a way to have the better teams play each other, as often as possible, and hand the trophy to the team with the best overall record. The more trials, the better the evidence. But college teams play in conferences scattered all over the country, and play strong opponents outside their conference as infrequently as they can (except Notre Dame, which stinks but does have that television contract). So any national champion in football, under any system, will be the product of guesswork or worse. It's always been called "the mythical national championship" for good reason. It still a myth.

What Golf Can Teach the Rest of Us (Part Three)

2008-11-14T00:51:00.000-08:00

Here at TSLP International, we're studying three of the many lessons we can take from the great game of golf. (Ideally, we'd be examining this issue at a golf course.) Part One described the fledgling golfer's manner of financing, and wondered why other young professionals (lawyers, college athletes) couldn't fund their formative years in the same way. Part Two looked at the implicit betting system that underlies tournament golf, with its perfect incentive for competitive play, and suggested that other sports (and by implication, other occupations) could mitigate any bad incentives produced by their compensation schemes by mirroring golf's payoff system.

What else can we expect out of a game? What else can golf teach us? How to stop cheating, that's all.

1. The other week I was watching an NFL game and couldn't believe what I saw. Just after the whistle blew, ending a play, one of the defensive players gave what could only be characterized as a slight push to an offensive player, a lineman I think. The lineman keeled over like he had fainted. The referee, apparently catching only the aftermath of this inconsequential contact, called the punitive "personal foul" penalty on the defensive player, giving the offensive team fifteen yards and converting what would have been a difficult down and distance to a first down. A flop. (If flopping becomes endemic to pro football, not only will I stop watching, but the NFL will begin a slow death spiral to match the fix in which the NHL finds itself.)

2. All the major sports suffer from rampant cheating, right in front of our eyes. Players flop at the slightest contact, falsely signaling that an opponent has broken a rule. Players fake injuries, exaggerating the severity of contact in an effort to influence an official's decision. Players will even lie directly to officials, pointing the wrong way on a basketball going out of bounds or pretending to be hit by a baseball pitch when they weren't. Worse, players will even commit purposeful violation of the rules if they think they can get away with it. A football lineman might hold an opponent if he thinks his hold might be shielded from an official's sight; in a similar instance a basketball player might do the same. (For the most egregious example of faking, scan through your cable channels one night and find a game from Italian League soccer. So many players take (fake) tumbles, moppy hair flying, hands clutching pretend wounds while voices scream out in pain, that spontaneous laughter is the only possible response. It is a scream, indeed.)

3. All this conduct is a form of cheating: breaking the rules on purpose (or accusing the opponent of breaking the rules) in the hope of not getting caught. All athletes cheat, right? Wrong. Professional or other serious golfers don't cheat. They don't kick their ball out of a bad lie when no one's looking; they don't re-place a ball on the green closer to the hole; they don't pretend to find their ball in the deep woods when no competitor is nearby. Why are golfers (nearly) alone among professional and other serious athletes in their honesty? Why don't golfers cheat?

4. I'm not going to offer a paean to golf's traditions and values or the honesty of the golfer: the assumption that golfers are in some fundamental way more honest or trustworthy than are other professional athletes begs the question. No, this is sports law, and so (naturally) we're going to try to identify and examine the role that the rules of golf play in this outcome. In what fundamental, pervasive sense do golf's rules differ from those of other professional sports? How do they promote more honesty? And what can we learn from golf that might help solve the endemic problem of flopping and other forms of cheating?

5. Golf is distinct in this way: the rules of golf make the player the referee. Putting aside the (unfortunately increasing) instances where a professional player asks a tournament official to provide a ruling (to help apply golf's perplexing rules), for the huge majority of "calls" the player just makes them on his own, and does so honestly, even when honesty inures to the golfer's detriment (which is the only instance where honesty matters). Where the players are the referees, there's no incentive to fool somebody: any flop or fakery would make no sense, as the player would be trying to trick himself into a scoring error. In addition, although perhaps some outright cheating goes on in golf, maybe deep in those woods where no one is around, any deceitful act on the golf course might easily be witnessed by one's playing partners. No player in a serious competition is going to be able to toe the ball out of the deep rough and get away with it, at least not very often.

6. Are other sports ever self-officiated? Sometimes. Think of a "pickup" basketball game, one where the participants (usually those on the offense) make foul calls. Never in such a game would a player flop around pretending to be affected by a blow that never came. In a sense, the player would be fooling "himself," in that both players (the one faking the affect and the one who is implicitly accused of the blow) share unblemished knowledge of the truth, and know that the other knows the truth: that the blow never happened. But introduce a referee, and suddenly players are cheating, trying to mislead the official in erroneous calls to gain advantage. But without the referee, players don't cheat because to cheat is to lie and the lie is evident for all to see.

7. Now obviously it won't do to have the deciding moment in an NBA championship game decided by a player awarding himself two foul shots after callling a foul on his opponent. But other sports can adopt self-policing as much as possible. For instance, all player rules that regulate off-court conduct should be relegated to the player's union or to self-policing. The most significant and oft-cited reason to ban performance-enhancing drugs is their potential effect on non-using players, putting them at a competitive disadvantage. So if the PED ban inures to the benefit of other, non-using players, why not put those other players in charge of enforcing the ban? Why not use an employee-run honor system, much like the student-run honor organization many law schools use to protect against cheating? Don't be dismissive of honor systems: peer pressure, plus jealous protection against competitive disadvantages, give these systems real teeth. Of course, illicit drug use (unlike exams) is done in secret, away from suspicious eyes. But remember the choice is comparative: how well do you think the present "proctor" approach (where instructors walk around the room, looking for wayward eyes) to PED enforcement is working? Tricking the authority figure is for some an accomplishment; gaining undue advantage on one's peers seems base.

8. As for those acts of cheating that practically cannot be relegated to self-policing, namely those that take place during the course of the game, the solution is easy: add a game official to watch the action and penalize cheating. It's easy to see: anyone can watch an NBA game and see players faking to draw offensive fouls. The penalty for cheating should be as severe as the erroneous penalty call the cheater was trying to induce.

9. Conceptually, a cheating referee can be justified along the same lines as instant replay. Instant reply is annoying, time-consuming, and disruptive. Its justification, however, is a powerful one: it helps to ensure the correct result in a game. On-court cheating, such as fakery and flopping, produces erroneous decisions by game officials that is just as threatening to the correct result as would be any other incorrect call that a replay might reverse. Consequently, the remedy, even if instrusive, can be justified along the same lines as the instant replay. If other sports cannot mirror the near-complete self-policing of golf, then they need to address the problem of cheating by increasing their scrutiny of the players.

ESPN vs. Sports Illustrated

2008-11-06T21:36:00.000-08:00

In this corner, we have the self-proclaimed Worldwide Leader in Sports, which has added to its multiple cable television channels a weekly sports magazine and a heavily visited website, and which can justly claim to have revolutionized sports viewing in the U.S. In the other corner, we have the venerable SI, long the official voice of the thoughtful sportsman, whose principal medium, a weekly magazine, basically invented the genre of serious and reflective sports writing, and whose contemporary presence is enhanced via its own popular website. Ladies and gentlemen, the two most important and influential voices in contemporary sports journalism squaring off, right here at the TSLP international headquarters! If you could only have access to the magazine and internet site of one of them, which would you take?

Let's get ready to ponder!

1. I loved the old Sports Illustrated (and today I'm not just talking about the swimsuit issue.) Long, circumspect articles. The best ones were (and remain so today) the pieces about trends in the game, or about athletes in sports other than the main four sports. Sports Illustrated took chances in its pages, betting that the sports fan might have an education and always treating him as if he did. Even its covers might feature a race horse or a yachtsman or some badminton ace. Sports Illustrated was literate. With that said, it had some weaknesses. One of its staples was the "rags-to-riches" tale: these articles were of a piece, hagiographies that reviewed the star's meager childhood, his rise to prominence, and his contemporary greatness. I usually skipped most of those paragraphs. Still, the magazine was an institution and meant something every single week.

2. Today's version is more limited. As a general rule, the pieces are shorter and edited for a somewhat less literate readership. The subjects of the articles, and certainly the cover photograph, are taken almost always from one of the three or four major American sports, except in Olympic years. Still, the magazine is weighty, particularly when it includes an investigative report or an article on contemporary trends. A staple of the magazine remains the reportage from the week's "big game," which articles are always insightful and fresh no matter how much the big game has been over-reported in the press. Sports Illustrated: I look forward to its arrival every week.

3. As I do ESPN The Magazine. One aspect I can't stand: the typeface/page backgrounds that permeate the magazine. Although it seems to me that the magazine has gravitated in the past year or so more towards a traditional look, nevertheless the ESPN magazine can at times be hard to read. I don't have ADD, but I suspect the editor does: it's hard to tell the articles from the ads. Arrows, boxes, and wacky typeface abound: intentional zaniness aimed at making the magazine look fun. It's not fun. It's sometimes a chore to read through the magazine.

4. Which I do, regularly. It's that good. Although the typeface is goofy and some of the articles have clearly been written with easy access in mind, the content of the magazine is sheer genius. The reader can count on the ESPN magazine to offer an interesting angle on nearly any aspect of sports. Many of the articles offer an insider's perspective, which can be illuminating, even if you never once imagined yourself there. The magazine also takes up some of the old Sports Illustrated's ground, taking time to discuss weird sports and unknown people. Whoever dreams up the story angles in that shop deserves a raise.

5. As for the columnists in the respective magazines, clearly SI has the big edge. The ESPN columns (Stephen A. Smith, Stu Scott, Kenny Mayne) are for the most part self-referential, essentially a celebration of the wonderful personalities of these news readers (Scott and Mayne) or this windbag (Smith). Bill Simmons' columns are not his best: he's essentially a free-form blogger (and for me, that's praise) and doesn't do well within the confines of word counts. As for ESPN's new acquisition, Rick Reilly, formerly of SI of course, he specializes in feel-good morality tales. He's a chick flick, not an action movie. The SI columns are superior because they are in fact columns. They are about some thing, not about the columnist. The two-page column in the front is always a good read; less so is the back-pager, which in Reilly's tradition tends to be admonitory and mawkish. I get enough lecturing at work; I don't need more of it from people who publish a swimsuit issue.

6. The websites differ even more than the magazines. ESPN.com is truly the worldwide leader: it is the authority when it comes to breaking news and live coverage. In a way, the ESPN website has become the "official" site, taking over from the old Sports Illustrated the job as the authorized voice for the American observer of sports. It's a great site, easily the best on the web for sports fans. Yet, strangely, ESPN.com lacks for good columnists. Of course we must first put aside from this comment Bill Simmons, the Sports Guy. His electric pyrotechnics and rambling, inventive and wildly funny columns never fail to draw my cursor the moment they appear on my screen. He was born for the internet. But after Simmons and Gregg Easterbrook (more on him below), the columns on the site present slim pickings. Reilly re-prints his magazine piece, a short column the goal of which is to make the reader cry. Jamele Hill writes pretty well but obviously struggles for something to say. The rest of the columnists (to my recollection) don't address the big picture, instead writing "information-provision" pieces about their assigned sports. These pieces are authored and presented in the guise of a column, but in reality they (typically) are news pieces, giving straightforward information and reporting on rumors or player unrest. But, amazingly, nearly none of these glorified beat reporters is a very good writer. By and large throughout the ESPN site, the prose is unimaginative and offhand, the ideas expressed unthoughtfully. Why would such a powerhouse site, such a loaded outfit like ESPN allow its website to suffer due to a lack (in quality and in number) of outstanding columnists and writers? Take Simmons away, and ESPN will be left without a single leading columnist. (Gregg Easterbrook, Tuesday Morning Quarterback, is quite good too but his column ideas are starting to seem a bit repetitive. Besides, his shrill and embarassingly sanctimonious assaults on Bill Belichick from last season made me question his judgment. Still, he does often offer some pretty good ideas.)

7. The SI.com site presents more "the amateur hour" for sports columnists. It's philosophy seems to be to hire a bunch of unknown writers, give them all columns as an outlet, load the pieces up on the web, and see who draws an audience. Maybe SI is hoping it can luck into its own Bill Simmons. So SI has the advantage in terms of the number of columns. It also offers columns that, unlike the ESPN site, are real columns. These unknown amateurs are actually trying to say something, and SI is devoting some bandwidth to help develop tomorrow's writers. SI also offers a few "big name" columns, most notably Peter King of Monday Morning Quarterback fame; King's column has become increasingly personal and self-referential, with a lot of his weekly column skippable. Don Banks also writes a sports column, but his approach is ESPN-style: a report (disguised as a column) on the latest rumors and insider information from the world of the NFL.

8. So the winner, in a split decision: ESPN! The innovative magazine coupled with the clever stylings of Bill Simmons on the web give the Worldwide Leader the slight edge. Sports Illustrated's superior columnists, overall, both in its magazine and on its website, are not sufficient in my view to overcome the gap. So, if I were stranded on a remote desert island (that luckily got both regular mail service and a strong wireless internet signal) and had to pick just one journalistic combination of magazine and website, I'd have to go with ESPN.

Good fight.

What Golf Can Teach the Rest of Us (Part Two)

2008-11-05T22:20:00.000-08:00

In Part One I discussed how golf teaches us how to fund legal education and college athletics. (And they say golf is a waste of time.) In Part Two, we'll see how golf can fix sport's most pervasive problem. No, I'm not talking about drugs and groupies; I'm talking about money. The current financial structure of sports (professional and collegiate) stinks. Teams profit from winning; athletes profit from individual stardom, even if it comes at the expense of winning. (Makes me wonder how Allen Iverson, Mr. Individual Stardom, will do on the Pistons.) Individual contracts pull players away from team goals. They also put players on different "time frames" from the team and from other players on the team. This different time frame gives the players all potentially opposing reservation prices, causing some players (those trying to get the next big contract) to play harder than others (those who just got the big contract).

What a problem! All solvable by reference to golf, the most radical, non-structured sport in the world.

How to Compensate Everybody
Golfers are independent contractors. They get paid when they win, or come reasonably close to winning. Thus their incentives are perfectly aligned with those of the fans: every week, every pro you see on television is doing his or her best to do his or her best. They are all trying to win, or at least trying as long as winning remains a possibility. Golf is the one sport fans are assured of seeing players go all-out. (Ever see those sweat stains soaking through the belly region of the pro golfers polyester shirt, right above his white belt? That's the proof that these athletes are giving their all.)

Other athletes try too. Indeed, it's a credit to them that they do exhibit such professionalism when lots of financial incentives direct them not to bother. They want to win, of course. But they don't get paid to win. Sure, a star performer who contributes mightily to his team's good results will be in place for a raise when it's time for the next contract. But that incentive is attenuated and discounted. A more immediate incentive would be to pay the athlete to win, right now, as soon as the game is over. Or in a team sport, pay the team. Why don't any of the great American sports leagues structure their compensation practices this way, you know, to actually make winning games a priority? If the "entertainment" the league is offering fans is competitive basketball or what have you, then the league should have every incentive to pay the winning players some kind of bonus for doing their part to produce the very product the league is trying to sell.

Yet amazingly, not only do the professional leagues not provide bonus money for winning teams, they actually prohibit its payment! Indeed, any small hint of such a payoff, however modest, will draw the ire of the league. Why would a sports league want to make sure none of its athletes is provided a financial incentive to win a game? Because the leagues are deathly afraid of gambling, and any financial benefit that hinges on the outcome of a game looks an awful lot like a bet. Leagues are so afraid of bets that they will carefully police individual player contracts for bonuses that might be tied to game outcomes, rather than to (selfish) individual statistics, like innings pitched or at-bats.

The fear of the fix is misplaced. What sports competition could be easier to throw than a golf tournament? One mistimed swing equals one lost tournament, and no one would ever be the wiser. And yet golf welcomes the bet, even setting its tournaments up like a bet (with players putting up entrance fees and playing for the pool), and even tacitly allowing players to bet big sums of money during practice rounds. Now granted, there are reasons no one would want to induce a golfer to throw a tournament (too many players, so no concentration of benefits: in other words, even if you could get John Daly to lose on purpose, that doesn't mean you'll win your bet as there are so many other competitors). A football contest involves just two possible outcomes, so if one side is induced to shirk then a bet on the opposing team will be a winner. But at bottom, if a quarterback is going to throw the contest (or shave points), under which compensation regime would he be more likely to do it: under a regime where the outcome of the game is of no moment to his financial future, or under a regime where the quarterback has a clear financial stake in his team winning? Exactly. Giving players a stake in winning will actually help deter the problem about which the professional sports leagues are worried.

Everyone's better off having a stake in the firm's success (stock options, ESOP's, profit sharing). It's a wonder why our professional leagues for the most part ignore this widespread approach and refuse to take advantage of the lessons that golf teaches. It's much like the point we saw back to Part One: giving law schools (or other institutions of higher learning) a direct financial stake in the future career of their graduates would give institutions a better set of incentives to see to the education of their students. Athletes with a financial stake the success of the team will do their best to generate victories.

Public Funding of Private Sports Stadiums

2008-11-02T13:39:00.000-08:00

It is something of a litmus test among sports academics and other commentators: to be admitted to the club, one must be against public funding of sports stadiums. Everyone's against it. The chief reasons are several: that funding constitutes a subsidization of the wealthy, that new stadiums do not pay off economically in terms of increased business activity, and that new subsidized stadiums ultimately generate ticket prices that are beyond the financial reach of the average fan. Indeed, these points seem beyond debate. Every examination I've read or read about confirmed that the claims of net economic benefits from a new stadium are illusory. The fact that the taxpayer subsidies accrue to the benefit of the wealthy seems undeniable given the prevalence of luxury box seats. Even the pricing effect seems obvious: teams have to raise prices to pay their end of the stadium costs, never mind field a competitive squad. So why subsidize a product that doesn't pay off, for the benefit of people wealthier than you and, worse, prices you out of the product?

Sorry to play the contrarian, but I've never followed the academic/political orthodoxy on this one. Public help for stadium construction seems unobjectionable, at least to me.

1. One point in favor of public funding seems simple, perhaps simplistic, yet deserves consideration: public funding of privately consumed goods is pretty common. Parks tend to be utilized mostly by their neighbors, museums and libraries and public television by those with tastes for those goods, swimming pools and schools by those with children, and so forth, yet all of the above are typically constructed and maintained with public funds. Admittedly in a sense this argument proves nothing, for just because (one might argue) previous errors have been committed is not a reason to make another. Plus the magnitude of the public subsidy of a sports stadium is probably great enough, as compared to a public park for instance, to render the comparison faulty. Nonetheless, seldom are these other, substantial public expenditures put to a cost-benefit analysis. Some of us may not ever use a particular park or visit a new library, but few of us would want to live in a locale with none of them.

2. The high price tag doesn't bother me. The market for sports franchises is competitive. Cities bid against cities, so presumptively the price/subsidy is a competitive one. It doesn't matter whether a city is bidding to be awarded a new franchise, to lure an existing one, or retain an incumbent: all cities are bidding against the next best empty venue. Now it is true that the "free market" claim only goes so far: clearly the major professional sports leagues have something close to a monopoly (at least at this moment in history) on the highest level of competition in their respective sports. This monopoly gives the leagues a measure of market power. This power is limited, of course, because the professional leagues, although without competition against a rival, do compete with each other for fans' attention and compete with other entertainments and leisure activities. So the market power is limited. The market power is also contrived: it's a product of the leagues' decisions to limit the number and location of franchises. This engineered scarcity makes cities bid on teams; without scarcity, anyone interested in a team could just start one and schedule games. (Presumably Boston and other baseball hotbeds would have about five professional teams each.) Cities bid because the leagues make them.

3. It's a manufactured scarcity, but in my view a desirable one. Although I think amateur sports should eliminate their monopoly for the sake of inclusiveness, I don't want professional sports franchises to be as ubiquitous as fast food. Organizing a competition between the finest players in a sport necessarily means excluding those players who don't qualify; the only way to limit the number of players is to limit the number of teams. Some scarcity of franchises is endemic to professional sports; thus the market among cities is unavoidable. The price is high.

4. That cities should bid on teams, and help build stadiums to lure and retain them, also seems unobjectionable. Having a major sports franchise makes a city into a major city. The team provides luster and publicity. Think of what a treat it must be for the mid-sized city of Green Bay to have its own NFL franchise. I would love for the mid-sized city in which I live to have one too, and would support any reasonable tax increase to make that possible. A major sports franchise also provides a means to create or improve community fellowship and good feeling, surely a matter that a city council or mayor might find important. A sports franchise is a significant asset; the fact that the team may be owned by a private citizen, even a non-resident, is irrelevant: the team is a city asset, although privately supplied. The city should subsidize this privately owned asset to the extent of public benefits, and indeed will have to given the competition among cities for teams.

5. To me, a professional sports team has attributes of a public good. The "no-subsidy" school of thought (I'm pretending that enough people agree with me to call my position a "school," too) focuses on the fan experience from inside the stadium in assessing the benefits of a team. (To be fair, assessing the more diffuse, public benefits is probably too difficult.) But many fans never set foot in the stadium, yet still benefit from the team. For these fans, the pro team product is non-excludable and non-rivalrous. The owners of the team can't exclude these fans (and thus can't make them pay for their consumption); consumption by one fan doesn't diminish the product for another. (Indeed, something like a network effect probably happens: the more fans the team has, the more the other fans enjoy their own fanaticism.) These non-attending fans do pay the teams indirectly, by watching television ads or buying some merchandise, but nowhere near their consumption. The price for the rest of their consumption is paid by the city.

6. Here's the real mystery: some critics of public funding say that presence of sports teams does not generate economic renewal or improvement in the area surrounding the stadium. I was on a panel recently at a symposium at Villanova Law School (click here for brochure and webcast). In the panel previous to mine, an economist (an opponent of public subsidies) showed the audience two images. The first, of Wrigley Field in Chicago from an aerial view, showed how the famous stadium is surrounded by bars and restaurants. The second image, of the new, publicly financed U.S. Cellular ballpark, showed the big ballpark enclosed by highways and parking lots, with none of the neighborhood amenities proximate to Wrigley. His point was that Wrigley, built a century ago with private funds, had generated area economic benefits, namely jobs, whereas the White Sox new home obviously had not. To me, the slides were utterly confusing. First, I wasn't sure exactly how the source of the funding contributed to the demise of the "neighborhood" ball park. Second, it struck me that certainly the new stadium has given rise to plenty of bars and restaurants, it's just that these new bars and such are located inside the stadium. The decision about the location of the amenities involves consideration of fan convenience and safety. Regardless of the location of the bars, the jobs provided to the local workers, and even ownership opportunities, are the same. How the stadium looks from the sky seems quite irrelevant.

7. The economist at the conference, in response to my question, said the difference was that the stadium concessions were owned by the team, or by its contractee, and not by local inhabitants. The format of the conference didn't really conduce to a further exchange of views, but I can't see why that's necessarily true, and if so, why it matters. It's just an accounting detail as to who owns the asset. Indeed, the fact that the team can (with a contractor or wholly owned concession) profit further from the good it creates gives the team the desirable incentive to produce as many concesssions and the like as fans would desire. What's the harm in that? I thought fan convenience was a good thing.

8. Of course, if one really for some reason wants fan concessions located outside the stadium (perhaps for use at times other than game times -- although many stadium restaurants have outside access already), then localities should insist that stadium developers purchase the land surrounding the stadium in order to ensure such amenities are created. Indeed, many team owners do purchase the adjacent properties, and presumably use that land for restaurants instead of parking lots if it is more profitable to do so. Yet when stadium developers or team owners do buy up surrounding parcels (as has Ratner in Brooklyn), then the critics charge the owners with hogging all the neighborhood benefits for themselves. But what better way to ensure desirable neighborhood economic effects than to have the developer own a personal stake? What exactly do the critics want? And should the desirability of a stadium and its team be judged by its ability to effect urban renewal anyway?

9. Even the seat licenses and higher ticket prices that come with new stadiums seem unproblematic. Everyone likes a winning team. Winning takes money, and teams have to make that money from their fans. If reducing the number of seats and making them more expensive raises revenue, then it has to be done. It is unreasonable to want a monopolist to come to town and then complain when the monopolist extracts monopoly profits.

10. The fans who are priced out of the stadium I'm sure don't like it. They would regard this whole affair as a transfer of public funds from their pocket to those of their better-off brethren. But remember that these fans, who may fall into the "non-attending fan" category, have their consumption of games subsidized by public funds too. More abstractly, what does it mean to be a fan? Would I want my team to be poorer, and thus less competitive, or even potentially leave town just so I could sit in my cheap seat? At bottom, the price of fielding a competitive team has gone up. The new stadium provides a vehicle for the team to extract that price; it's not the cause of the price increase, only the vehicle for it. Bad stadium seats are pretty inexpensive, and always will be. (One can swing from the lights at a Dallas Mavericks game for $2.00.) Good seats are pricey; if a nice, new stadium has nothing but good seats, then it will have nothing but expensive ones.

11. All is not perfect, of course. Sometimes cities, like any buyer, get a bad deal. The distortions of the NFL's revenue sharing (share ticket gate, not concessions and luxury boxes) certainly drive the new stadium market forward at the margin. (Indeed, this is probably not an unintended consequence: the NFL obviously prefers to take its monopoly profits by driving the cities to produce new stadiums.) Some of the sparkling new arenas seem excessive by any measure (check out this Texas-sized example of conspicuous consumption). But it's still not too bad a market, and certainly not deserving of the widespread academic criticism it receives.

New Book! A Must Read for (My) Christmas

2008-10-29T17:38:00.000-07:00

Looking for the ideal Holiday present? I mean for me. How about buying my new sports law book and giving it to someone, even yourself? It makes an ideal gift for any religious holiday, birthday, or even your anniversary. Taking Sports Seriously: Law and Sports in Contemporary American Culture takes on all the fun issues of sports law, collecting a selection of my essays from this and other blogs, opinion journals and lawyer newspapers, plus a few items that have yet to appear anywhere. I plan to give it to every loved one I know (so if you know me and even barely qualify as a loved one, it's coming), and as your sports lawyer, I would urge you to do the same. The book can function as a classroom discussion-starter in a law or management course or as a good read on the weekend. I have two other book projects in the works, so you'd better get started with this one lest you fall behind.

The book is available at the publisher's website or from Amazon.

What Golf Can Teach the Rest of Us (Part One)

2008-10-28T19:36:00.000-07:00

Golf is a great sport for many reasons, just one of which is the fascinating counterpoint it provides to the other professional sports, and perhaps even to much of life. For golf is unique, even among the individual sports. Professional golf is pure, unalloyed competition. It has no unions, no leagues, no guaranteed contracts, no appearance fees, no parity rules, no striving for competitive balance, and no games determined by dubious referee calls. Its only rules are those essential for staging tournaments and playing the game. It is about as close to the economist's imagined "free market" model as we're likely to see in this age of the modern administrative state where people are defined in substantial part in terms of their group affiliations, workplace status, ethnic identity, and legally validated relationships. Golf is wide open, unadulterated, unvarnished competition. It shows the virtues (and limitations) of a radical free market approach to sports.

Above all, golf is instructive. It provides a serious argument against the top-heavy, rule-bound structure of other American professional sports. Have a serious problem? Look to golf for an answer, at least the answer a free market might provide.

Don't believe me? Here are three serious problems in contemporary American sports. Watch how golf supplies a creative solution. Due to fears of overwhelming the internet, I'll break this discussion into three separate posts, one for each problem.

How to Finance Beginners

The other night I was having dinner with three amicable law students. One of the topics of discussion was the significant financial debt with which law students, like most college and graduate students, enter the work place. Of course for most of these students the debt repayments are subsidized by the federal government: free money. Nonetheless, the weight of the impending debt repayments poses significant problems for these young people, and come at a time in the young lawyer's life when earnings will be at their lowest. Added to the mix is the reality that other, non-tuition debt obligations have often piled up after three years (mostly) out of the work force. This overwhelming debt undoubtedly influences career and life decisions, forcing these young people to seek the highest wage possible, postpone child-bearing, and avoid any pleasurable or socially beneficial pursuits that might interfere with their earnings. Debt matters. Debt hurts.

I recently had occasion to have lunch with a young man (a son of a friend) who shall in a couple of years try his fortune as a professional golfer. (Yes, I eat often, every day in fact.) Just like the young lawyers, this person plans to spend three or four expensive years learning his trade, in his case taking his game on the road to play in various minor-level pro tournaments in the hope of playing his way up to the lucrative PGA Tour. Would this young golfer, like our young lawyers, turn to debt (albeit without the nice government subsidy) to fund his education? In small part, yes, he will borrow a little money. But the amount of money he'll need to fund three years of full-time golf approximates the funds the student needs to complete law school, something approaching $100,000. With no government handout available and with no bank willing to lend on such an endeavor, where will this talented young golfer get that kind of money?

The answer: he plans to sell himself. Or more specifically, he'll sell shares of his future earnings in exchange for cash up front. His investors will give him thousands of dollars each in exchange for a small percentage of his future winnings over a specific period of time. (Indeed, I'll invest some; this kid can really play.) He's just a businessman raising venture capital, only this investment is directed into human capital, not into some business plan. This method of financing is common among fledgling golfers.

What perplexes me is why don't law students (or other higher education students) do the same thing? Why don't they raise funds like any other new business, on the venture capital market? Don't they watch golf? (Indeed, why don't colleges and universities make this market? Just give away their education in exchange for an equity position in the graduate's future. You mean to tell me a school couldn't make money from this? And eradicate the onerous distortions of debt?) A law student could raise his tuition by selling a small percentage of his future wages. The student could graduate debt free but have to pay 3% of his income to his investors for the next twenty years, or something like that. Indeed, given the fact that so many graduates do so well financially (at least in the law profession), I wonder sometimes why schools basically demand that students incur debt. If I ran a university (for some reason, no one's asked me yet), I'd take an equity position in my graduates, some of whom are sure to hit the jackpot. Moreover, I'd be doing my students a favor, helping them avoid the distorting influences of debt on their career and personal choices. What student wouldn't take "free tuition" in exchange for a tiny percentage of their post-graduate salary spread over several decades?

Golf's approach to funding its young players could also help solve some of the problems surrounding college athletic scholarships. Universities who admit students for their athletic prowess could, instead of supplying a grant-in-aid, be required to purchase (perhaps with the proceeds held in trust during the amateur career) an equity stake in the student's future earnings, whether the student makes it as a pro or not. What better way to put the university on the athlete's side? The school will do everything it can to further the player's career chances, helping him leave school early if his pro prospects are bright, or to work further on his game if they're not. And what about the washout? No longer will the student whose athletic light has dimmed be cast aside, later to be sent home uneducated and un-graduated at the conclusion of his college eligibility. The school will do everything it can to re-train this young person and place him in a productive career.

Golf's historic practice of investors sponsoring a young player puts everyone on the same team. The golfer and his investors all want the same success. With the debt financing that is common in higher education and the scholarship that is the means to employ labor for college sports teams, the various relationships are at bottom antagonistic. The student incurs debt and demands a product from his supplier (the educational institution) that will suffice to pay that debt back; today's student-athlete is given a payment (the scholarship) and now has to work it off each season, much like an employee. None of these relationships are optimal.

Equity puts everyone on the same side.

Book Notes: Game On

2008-10-11T21:37:00.000-07:00

Tom Farrey, Game On: The All-American Race to Make Champions of Our Children (ESPN Books, 2008)

Sorry for the inattention, blog readers, but a recent motorcycle accident knocked out a few weeks I'll never get back. (I performed an aerial maneuver while my bike stayed on the ground.) One good aspect of suffering broken bones: a family-sized prescription to percocet, supplied by a doctor indifferent to my volatile addiction profile! Thanks doc. The other upside is a little extra time to read, even in the middle of a busy semester. (Of course I can only cover about one page per hour with my eyes dancing over the words.)

There's so much to like about this book that I hesitate to criticize. Tom Farrey looks at all aspects of youth sports. And I mean all aspects: his reportage at times careens around from topic to topic. Obviously a discussion of such breadth is going to be difficult to organize. Farrey settled on arranging each chapter by the athlete's age: except for chapter one (discussion of sperm banks) and chapter twelve (discussion of Little League World Series), the age thing doesn't quite work. The result produces a narrative a bit hard to track (especially if one is loaded up on painkillers and has to close one eye to find the next line of text).

Nevertheless, the book is absolutely an essential read for anyone who cares about youth and amateur sports. Farrey is insightful and diligent, and makes an overwhelming case that the biggest mistake in American youth sports is our collective insistence on winnowing out the weaker players in favor of the stronger. Farrey also delivers several criticisms of the easy target, the ultra-competitive youth coach who overemphasizes victory at the expense of development.

One of those criticisms is frighteningly true. The other is so wrong it threatens to undo whatever benefit the first criticism may produce.

1. The heart of the problem is the mirage of the early developing child athlete. We see this mirage all the time. We see the twelve-year-old, larger and more muscular than his peers, throwing a baseball at sixty miles per hour and project him right into the Mariners' starting rotation. It's ridiculous, obviously, but something about human perception or psychology (it's either the "salience effect" or the "recency effect," I can't figure out which) makes us draw the ineluctable, yet utterly erroneous, conclusion about future performance. It's the same mistake Malthus made. The past is not prologue, friends. The kid's not going to play pro ball. He's not even going to get the college scholarship. He's just developed early, and in many cases, his development may be close to done. The peak of his athletic career may be now.

2. The early developer may not even make the high school varsity. At least may not if the competition were on a level playing field. But it turns out it's not. The youth sports system effectively guarantees the early developer a varsity spot. For at the same time as we fawn over the early developing athlete, praising and promoting him, we dismiss the late bloomer. The smaller, slower kid is discouraged in a thousand ways: on average, he plays less important postions, sits more on the bench, gets cut from the team, is channeled to less competitive sports, and by and large quits most sports by the age of fourteen. Frustrated with his apparent lack of athleticism, he quits just as he starts his growth spurt and begins to develop adult musculature and coordination. As a result, when our children reach the age of maximum athleticism, probably in their early twenties, the late blooming child and probably even the normal developer are both long gone. We stupidly push the great majority of our potential athletic stars away from sports. With so many athletes cast aside, those early developers who remain form the entire pool eligible for our national teams and professional sports.

No other nation in the world so determinedly and inexplicably discourages the large majority of its young athletes from playing. It's no wonder that even some of America's great professional leagues suffer from perceived dilutions of player talent. As Farrey writes, if the U.S. ever kept all its athletes involved in sports, as do other nations, and picked national teams from the entire pool of available athletic talent, then given America's vast sports-minded and athletic population, we'd never lose another international competition. We shoot ourselves in the foot, repeatedly.

3. The main culprits in this sad story are three, as best I could count. (You try counting on drugs, even to three.) First is the indefensible latitude most states give to parents to hold their children back in school in order to gain academic and athletic advantages. I've written about this here. It's nothing short of cheating. At a time when even a single year's difference can mean a lot in terms of size, musculature and athletic performance, these overage children literally drive the younger ones off the playing field and out of competitive sports. A few states have laws precluding nineteen-year-olds from playing high school sports. This simple rule tells parents of newborns that they can't manipulate their little boy or girl into high school stardom and collegiate scholarships. Every state high school association should adopt it, just to put an end to the grade terror that is destroying youth sports.

4. The second guilty party is the schools themselves. Young athletes at about age thirteen typically graduate from broad-based, participatory, quasi-recreational sports leagues (think Little League, but don't think of the Little League World Series) to middle school sports. In this day of consolidated, overcrowded classrooms, schools still cling to the antiquated "one school = one team" tradition. It's cheaper to boot. Consequentially, dozens of athletes from the youth leagues now have to compete for a comparatively very few spots on the school team. Even if they make the team, they must compete again for scarce playing time and coveted positions. Left behind are committed and talented young players. They are eliminated not just from the team, but essentially from the entire sport, as non-scholastic opportunities to play are hard to find and typically not very serious. Similar in effect to the school teams are the youth "travel teams," which can reach down to even elementary school age groups. By selecting some players and excluding others, the travel teams basically decide which players get to continue in that sport and which don't. Even worse, once the travel team takes away the best players from a sport, in most cases the leftovers are insufficiently numerous (or interested) to form a team to carry on. The travel team destroys the recreational league and kicks most of its players to the curb.

5. According to Farrey, the final main culprit (and there are many lesser ones) are the youth coaches who focus excessively on winning games. Here I think Farrey's argument falters. Farrey is a fan of an outfit called the Positive Coaching Alliance. (You can check out their web site here.) These people obviously mean well. But I am leery of any efforts to minimize the competitiveness of sports, youth or otherwise. I like the coaches of my sons to be competitive and try to win. I cringe when the coach says he wants to teach a "life lesson" as the PCA group describes, meaning some lesson or goal other than trying to win. Sports is about trying to win; that's the point of it and the only reason to play.

One of my boys once had a basketball coach who wanted to make sure everyone on the team got to score. So after a while during a game, the team essentially (in my view) stopped playing basketball. Whoever's turn it was to score had to take the next shot. The team would come down the court on offense and players would pass up wide open shots to feed the ball to the kid whose turn it was to score. My kid once sat down on the court in the middle of this nonsense, bored. He wanted to play a competitive sport; it wasn't "sharing time." I've seen another coach order something similar in soccer, with his team forced to not take wide open shots in favor of additional passes to under-served teammates. Now one might say those coaches went "too far" or something like that, but really, if one is going to be non-competitive and egalitarian then isn't the approach of those coaches simply a frank and honest attempt at being noncompetitive? If the aim of the contest is not to win then why pretend otherwise?

The egalitarians in sports always want to temper competition, whether it be youth coaches instructing players not to shoot or national columnists castigating professional or college teams for running up the score. (Gregg Easterbrook of Tuesday Morning Quarterback fame is particularly zealous in his egalitarian efforts to take the competition out of sports. See here and here, for my particularly unzealous reactions.) But sports is about unalloyed competition. If the score gets out of hand, turn off the scoreboard. If a youth team is overmatched, change a couple of players over to the other team. Don't stop trying to score. Competition is fun. I want my sons to play sports to learn a life lesson, but just a single life lesson, the lesson of trying as hard as you can to win at something, then winning with grace or losing with dignity. Learning how to compete and, yes, how to win is an important life skill and life lesson. Youth sports is one of the very few socially sanctioned opportunities left to today's children to actually try to win at something, to prevail over another person or another team. It's the last remaining outlet for competitive children. Let's not throw out the baby with the bathwater here.

6. The supposed lack of positive coaching has nothing to do with the current crisis in youth sports. Limit children to playing organized sports with others of the same age, and require large schools to field sufficient varsity teams to accommodate all interested athletes. These simple reforms would create ample room to maintain widespread participation in youth sports. High schools have to provide enough language or math classes to meet student needs; similarly they should have to meet student interests in athletic endeavors, except where costs are prohibitive. Maybe one football team per school is the financial limit. But basketball teams could more easily be multiplied. One of the main costs, transportation, could be mitigated by more intra-school games. Further, with multiple teams per school, the rigid classification system that groups schools by size (and hence creates travel nightmares) would be unnecessary. So what if high school sports takes on some of the attributes of intramurals? I played intramural basketball in college. Those games were some of the most intense, competitive and fun sports, ever. Guys wiped away the blood and kept playing. Middle and high school athletes would enjoy such games just as much. Even more, they would keep playing the sport, so that, when sports get serious at the college, Olympic and professional levels, they'd still be around to try out for the team.

All's Not Perfect With Sports Either

2008-09-03T22:52:00.000-07:00

A paper (linked here, which I came across here) by law professor Clayton Gillette compares the market for law professors to the market for free agent professional athletes, notably baseball players. And guess what: the athletes come out on top! (Sports and law plus a little industry gossip: basically everything TSLP cares about, all in one paper!) Gillette's basic point is that sports free agency works pretty well for sports, in terms of bringing about at least a decent version of an optimal distribution of the best players among teams. But in the world of legal education, "free agency" among law professors (by which he means the growing phenomenon of professors' quitting one employer for another) does not obviously seem to auger much good for anybody except the free agent professor, and even then not for sure.

It is nice to be flattered, and Gillette's rosy view of sports presents exactly the kind of idyllic image that keeps those stadia turnstiles spinning. But alas, it's all untrue! I'm unhappy to report that the world of sports is just as screwed up as the nutty world of legal education. If free agency works well enough in the former then it should work just as poorly in the latter.

In other words, if Gillette is looking for an ideal version of an unfettered labor market, he's looking in the wrong direction. To put it another way, if you like it when people use sports metaphors to talk about serious subjects, then grab a bat and step up to the plate, this entry is for you.

1. First of all, baseball general managers in hiring free agents make mistakes all the time. Players typically perform better in their final contract year on the cusp of free agency. They just as typically suffer a drop in performance after the big free agent deal is signed. Teams signing free agents do not on average win more games (compared to their previous season) than those that refrain from signing free agents. So how is that a good free agent market? Gillette points out that sports GM's have the luxury of looking at relatively clear performance data in selecting free agents, whereas law schools have only the murky and subjective analysis of the quality or merit of academic performance. True, but sports GM's have a huge disadvantage in comparison to law faculties: the careers of athletes are remarkably short. Unlike law professors, who dawdle in comfortable desk chairs and lean on the podia for decades, athletes come and go in a few brief seasons. What's more, even a great law professor whose performance, due to age or indifference, diminishes over time still brings huge reputational benefits to his new school. In the world of sports (outside of perhaps a few legendary players) once a player's performance diminishes he loses most of his value to his new team. So, even though baseball GM's do have better data to examine in hiring than does the law school hiring committee, the relevance of that data to future performance is pure guesswork. In legal education, hiring schools get exactly the reputation they buy. Law schools have better data in hiring free agents.

2. Next, Gillette argues that hiring faculties focus almost exclusively on a free agent's published scholarship, and thus do not usually examine closely all the relevant performance data about a free agent professor, such as classroom teaching or institutional service. Gillette envies the baseball general manager, who has data about every aspect of the free agent's performance at his fingertips. Yes, the GM has all this information, but appears not to use it! Chicks dig the long ball, and so do baseball's GM"s. Salaries correlate highly with slugging; everything else seems to matter barely at all. Think Manny Ramirez' next contract will be diminished much because the guy plays the outfield like a little leaguer? The same holds true in other sports: NBA players get paid according to scoring averages, no matter how many zillion shots (and team losses) it took the ball hog to achieve that average. Remember, Allen Iverson is a wealthy man. Even though hiring GM's have all this data about every aspect of player performance, when it comes to setting the salary at the highest end they throw all that data away and pay for home runs, much like hiring schools pay for the "home runs" in legal scholarship. Is it irrational, as Gillette suggests? Or is the school/baseball GM simply responding to an explicit or implicit understanding that the home runs contribute more to winning games (or achieving school rank) than do other assessment factors? In other words, would a hiring faculty that had cheap, quantifed and meaningful evidence of the teaching/institutional performance of a potential hire rationally give it much regard?

3. Gillette's big point is that baseball teams have a residual claimant (that would be the team owners, although perhaps the season-ticket holders might qualify too). The presence of a residual claimant ensures that all the costs and benefits of a new hire are considered before an offer is made. In comparison, the "owners" and other stake-holders for law schools are too diffuse, disinterested and impermanent to oversee the machinations of the hiring committee. In legal education, he argues, the fact that a new hire may, for instance, be a substandard teacher or a negligible institutional contributor will be overlooked simply because the people affected by these performance deficits (students, alumni, even other professors) will not be involved enough or care enough to assert their interests.

This optimistic view of baseball mischaracterizes it. Unlike law schools, baseball teams are not engaged in unalloyed competition. They compete on the field, but cooperate off it. Just ask Bud Selig. Bud says that MLB is a single product, a single entity, an argument he and every sports commissioner has made for years in court and everywhere else. The Red Sox vs. the Yankees is a competition between teams, but it is the competition itself (brought about by cooperation between the teams and oversight by MLB) that is the product fans pay to see. This unique blend of cooperation/competition that characterizes professional sports in America is also its greatest obstacle: there is no single residual claimant for Major League Baseball, no single owner who can assess the aggregate costs and benefits in filling rosters, scheduling games or anything else. So to get his teams to do the "right" thing, by which I mean the profitable thing, Selig has to lead his collection of teams through weeks of discussion and argument, and months of haggling and cajoling. Just like a faculty committee. Remember, it took nearly a decade for MLB to put a franchise in Washington, D.C. (even though it was completely obvious that it would be hugely successful, which it has been) all because the law school grad who owns the team in Balitimore didn't want some newbie stepping on his turf. Sound familiar? Sounds like a faculty meeting.

4. Gillette seems pretty happy with the results of free agency in baseball. Clearly he's a Red Sox fan.

Tennis' Problem with Gambling

2008-09-01T16:13:00.000-07:00

I'm no gambler. My infrequent trips to the local Indian casino, coupled with my annual entry into a friendly March Madness pool, have made it clear to me that gambling is, at least for me, a losing proposition. Yet just because I lose doesn't mean everyone does. Someone's a happy counterparty to my bets, even if it's the rake.

That's what people sometimes forget about the betting scandals that have come to light in professional tennis (and of course pro basketball): bets are exchanged. Every seller of a wagering proposition has to find a buyer. It's just a market transaction, albeit a prohibited one.

There's nothing necessarily wrong or obviously unwise with banning certain market transactions. The usual reason has to do with morality (prostitution is an example) or with perceived neighborhood effects (controlled substances). I'm not going to argue that betting by athletic participants on their own games has no moral dimension or no neighborhood effects. (I've done that before.) Prediction exchanges on sports results has many beneficial aspects too, by the way.

What I want to argue here is that, in the world of impermissible sports wagering, betting by tennis players in particular is the least of our worries. In other words, if you don't care about tennis betting, you're right.

1. It is predictable that tennis players in particular would bet on their matches. Without the vagaries of teammates' play, game outcomes in individual sports are easier to predict. Higher-seeded tennis players customarily prevail over inferior players. The very top players, like Federer and Nadal, often win without losing a single set. Strong favorites in any sport draw heavy betting action in disproportion to the chances of winning: people love to bet the favorite. Hence bookies must offer more favorable odds (or larger point spreads) to attract sufficient wagers on the underdog to even out the betting action. Disproportionate odds help increase the number and size of bets. The odds are "wrong" (at least in terms of the comparative strength of the players), the money is flowing, the action is everywhere. Players might well be tempted to join in the fun.

2. Individual sports contests are also easier to throw. No cooperation or coordination among teammates is necessary: just a few bad swings of the racquet or golf club and the deed is done. The favorite has lost but the bet has been won. Some might be surprised that betting scandals in tennis have not been more numerous. How could anyone, even an opponent, detect with conviction when an opponent purposely returns a ball just wide, or a bit low and into the net? The answer is that in situations where there is heavy betting action (and thus money to be made) the player who has to throw the match would be the heavy favorite. (After all, the weaker player cannot plausibly throw a match he was destined to lose anyway.) One or two bad shots wouldn't suffice. The superior player would have to intentionally misplay shot after shot, making himself far more vulnerable to detection. So illicit player gambing in tennis appears uncommon.

3. Golfers also could easily and without chance of detection lessen their contest performance. Yet to my knowledge golf has never been disturbed by the news of a player purposely throwing a tournament. In tennis, the disincentive to bet comes from the ease of detection should a heavy favorite intentionally lose. In golf, the problem is it's not easy to identify the player who wins when another loses. With multiple competitors, the one other player who could profit from the leader's purposely losing a tournament may not be identifiable until the final round, or even the final few holes. Until that time, too many competitors would benefit from one player losing, but no one player would benefit sufficiently to induce the competitor to shirk. Golf, like tennis, has endemic properties that are resistant to game fixing.

4. Nonetheless, short of the big payoff from game fixing, tennis players can make some money from placing bets against themselves and then losing. It won't be the big money that a heavy favorite would make from throwing a match to a low seed, but it appears there's enough action on the side bet, even in matches between journeymen pros, to make throwing a match worthwhile financialy. To continue the comparison between the predominate individual sports, a golfer similarly could bet against himself. Again, unless he were Tiger Woods (who because of the heavy action on him could win a large amount), the player couldn't practically fix a match, but could take whatever action he could find and bet against himself to make money. It is always easier to lose than to win, or hit a bad shot instead of a good one.

5. So the recent tennis scandals must be kept in perspective. The money's not as big as a fixed match by a tournament favorite. The players most likely to bet against themselves are journeymen. The ultimate results of the tournament will not be changed. The sport will go on, even if a few lower-level matches are determined by betting rather than on the court.

6. The other important factor is that all bets require a counterparty. Players who wish to bet against themselves must find a sucker to take the action. Since presumably no one would willingly stand as the counterparty to a player's bet against himself, players who wish to profit from a bet to lose must find cut-outs to place bets for them, or must settle to taking some percentage from some others who can bet without easy detection. In other words, the athlete is the agent, never the principal. (It is possible that a bettor would willingly take an athlete's action, much like investors take the opposite side of insiders selling stock of their own company, but unlikely, given the athlete's control over the outcome.) This reduced role limits the athlete's profits from the bet, further diminishing the likelihood of thrown contests.

7. As far as the counterparties go, why should the rest of us care? Implicit in any exchange of a prediction is that the some members of the opposing parties may have superior information. In the sports world, such information could take the form of injury data, player performance information, coaching advantages, and the like; it could also stem from information direct from the athlete's mouth. Any bettor is by definition aware that a roughly equal number of bettors is taking the opposite position. The market for bets seems to clear itself without the need for public intervention; a healthy, thriving market presents no evidence of "market failure." Some legal scholars see a market failure under every rock, calling for legal measures to cure imagined economic problems. In the betting world, both sides to a transaction are vigilant in watching their money. If they're not, they'll learn or get out of the market. Bookies are skilled at discovering fixed contests. The market functions fine.

8. All that's left is the claimed spillover effects. The supposition is that members of the public will lose interest in a game that might be fixed. I doubt it. Sports fans seem to tolerate all kinds of contests that are obviously not on the level: fans flocked to see pitchers trying to strike out known steroid users; fans will soon tune it to pro football games whose gargantuan linemen boast seemingly unnatural physiques. We'll even tolerate unmotivated athletes who seem to care little about winning but much about their salaries. Sports is full of corruption. Indeed, it's part of its fascination, sort of like the marital habits of celebrities is for fans of popular culture. Tennis goes on, betting scandals or not. Players can choose to lose a match for all kinds of reasons having nothing to do with money. That money may occasionally provide a motivation is consistent with the vagaries of individual contests.

In English, Please

2008-08-27T19:49:00.000-07:00

The Ladies Professional Golf Association stirred up some controversy this week with its announcement that soon LPGA tour players will be required to be able to speak English. SI.com has a good piece here outlining the tour's position and discussing its legality. The tour's argument is that communication in English is needed during pro-am rounds, post-round interviews and victory speeches. (The many South Koreans on the tour have increasing occasion to make victory speeches.) The putative argument of an upset, litigious, non-English-speaking lady golfer would be that English requirements are allowable only where English-language communication is necessary for worker safety or work-place efficiency, and that neither applies here. Obviously the LPGA's defense will rest on the latter consideration. All the LPGA has to do is provide a legitimate reason for its restriction and it's good to go. Well, maybe.

Most lawyers, like the one interviewed for the SI story, will suggest that the LPGA's English requirement will be struck down. Although I'm not optimistic that the requirement will be upheld, I think it should be upheld. The reason it won't be vindicated has nothing to do with the law. It's because of the bar and the bench. Lawyers and judges don't understand sports, and their failure to understand sports leads them to err.

1. First of all, I am a fan of the LPGA tour, at least as far as watching its tournaments on television. (I would love to attend the local tournament in person if it came at a slower time in the academic schedule; yes, even the academic life gets busy.) These women play very well, and with the likes of Lorena Ochoa, Paula Creamer, Annika Sorenstam, and Suzann Pettersen leading the way, today's lady professionals play a brand of golf that, to this golfer, looks just a few shades below that of the men. The players hit it further and attack the pins better than ever before; long gone are the days of LPGA players hitting drives 225 and bouncing the ball up to greens. Add in the sex-appeal angle from Natalie Gulbis (I'd link you to her racy calendar but of course I've never seen it) and some other pros, and arguably the LPGA is in its golden years. It should be drawing fans and generating purses like never before. Apparently it's not.

2. I've read that the LPGA is healthy, but the current economic slowdown (I won't say recession; it's an election year) has apparently slowed the tour's growth and led to the cancellation of some tournaments. Unlike the PGA tour, where huge television contracts provide the bulk of the purses, the LPGA tour functions more like a traveling goodwill show. The LPGA stars do not have the luxury of remaining coolly aloof like the pampered aristocrats of the PGA: interaction with fans and sponsors is clearly expected and is apparently vital to the tour's financial survival. Of course for the individual players all this forced friendliness is likely a chore, at times. All the players care about is winning the purse. But the LPGA as an entity or business is indifferent as to who wins the tournaments. Its money is made by good competition. It's also made from pricey amateur player fees for pro-am's, from happy, generous tournament sponsors, and from press and television coverage. In short, the LPGA profits from players doing things that don't enhance their chances at winning tournaments, and in fact may diminish them.

3. The LPGA tour, much like the PGA, imposes quality-control restrictions on its players. The tours have dress-code standards, require pro-am attendance, obligate media interviews and the like. How is a requirement that the players speak a modicum of English all that different from the one that they wear golf-appropriate clothing or place sponsor advertisements only in certain areas of their garments? Here's how: language is unavoidably and completely bound up with national and cultural identity. Language triggers all the anti-discrimination rules that pertain to the workplace or to places of public accommodation, like a tour golf course. Language is important (just ask the Quebecois, who are ready to divide a country over it). The LPGA's reason for implementing a language requirement is going to be subjected to a level of judicial scrutiny far exceeding what might be the case for some more trivial tour rule.

4. So far the LPGA's language restriction seems legitimate: the tour makes money in substantial part from its personal player interactions, the tour is an American tour, and so such interactions are much more easily accomplished in English. This reason seems so powerful and persuasive that it should (in an ideal world) hold up even under intense judicial scrutiny. (Indeed, the apparent surprise with which the LPGA tour officials have reacted to the public firestorm suggests that they felt themselves to be on solid legal ground.)

5. But here's why I'm not optimistic about the restriction's legality: a court will likely overturn it not because the tour's reasons lack requisite legal legitimacy. Instead, a court will strike down the restriction because it does not understand the sport. Case in point: the famous Casey Martin decision of the U.S. Supreme Court. Recall that the PGA tour had implemented a requirement that all players walk the course. Martin couldn't, due to his particular physical condition. In ruling against the PGA, the Court (modest as always) impliedly decided that the PGA officials didn't understand golf, at least not as clearly as did the hackers on the bench. The PGA had said that golf, or at least PGA tour golf, included walking. No it doesn't, said the court. According to the judicial duffers, golf is the act of hitting a ball at a hole. In other words, the court defined golf in a way different from the golf officials. The court ruled as if it had in mind a platonic ideal of "golf" that exists apart from the rules of the sport devised by those empowered to define the rules of the sport.

6. So what is "golf"? Isn't it just what we golfers (or the PGA or LPGA, or the USGA, etc.) say it is? If tomorrow the golf lords decided that lost balls should be penalized by just one stroke, and not stroke and distance (as should be the rule, I argue here), should a court have anything to say about it? I realize one can always characterize this differently, but in this case isn't the LPGA (which after all is accustomed to imposing quality control restrictions on its players and product) now defining this thing called "LPGA tour golf" to include a requirement (however harsh it may be) that its members have some minimal or sufficient English skills? Does this re-definition of "LPGA Tour golf" conflict with the platonic conception of "golf" presumed in the Martin decision?

7. Courts have always been this bold when it comes to sports, feeling free to tell sports people just what their sport is. It is an odd approach: no judge in America is going to, for instance, tell a corporate business how to organize itself. The "business judgment rule" insulates corporate business maneuverings from judicial oversight, no matter how dumb the judgment may in fact be. Yet when it comes to sports, apparently judges watch the big games on the weekend and, just like everybody else, feel no hesitation to second-guess the managers. Baseball leagues can explicitly prohibit intentional beanballs, imposing ejection and suspension penalties for perpetrators, yet courts have decided that the intentional beanball is just "part of the game"! It's part of the game and there's (apparently) nothing baseball can do about it. Why? Can't baseball change its rules without judicial approval? It's a game, just arbitrary make-believe. When kids playing some made-up contest in the yard decide that the driveway is "out" then it's out. There's no normative grounds to appeal; there's nothing "wrong" with the driveway being out instead of the sidewalk. Would a judge prohibit MLB from implementing a rule that said two strikes make an out? Yes, a judge would, probably. "Baseball" exists apart from the rules that define it, right up there in the judge's head. (I addressed this issue in a mere three-part post, to be found here, if you scroll down.) The judge watches baseball every Saturday, and it always takes three strikes to make an out! It's part of the game.

8. I suspect the LPGA will avoid a court fight on this one by toning it down a bit, making the rule advisory instead of obligatory. One thing that tour doesn't need right now is bad publicity and an expensive court battle. Indeed, the battle might be one it loses, not that it should. The courts are off and running with a judicially created definition of sports contests. It's not a good development. I see the Martin decision as potentially a devastating one for professional sports, as it limits the latitude sports leagues and associations have always enjoyed to define and modify their contests as they see fit, to keep pace with evolving conditions and changing fan interest. In an era where judges are increasingly reluctant to invoke the "natural law" or some other non-textual inclination as a source of legal rules, the emerging sports law jurisprudence stands out, and not in a favorable light.

The Donaghy Sentencing and its Discontents

2008-07-29T07:01:00.000-07:00

At least two well-devised descriptions of former NBA referee Tim Donaghy's impending criminal sentencing and its ramifications are on the web. Lester Munson of ESPN.com, who seems to know everything (I say in awe, not sarcasm) supplies all the information one could want on the relevant sentencing issues here. Michael McCann of SI.com, who seems to have an academic position everywhere (I'm lucky I hold even one, just barely), explores the possibilities of a Congressional response here. Well done, men. That frees TSLP up to do no further research and supply no further information (yes, Munson and McCann work for TSLP Worldwide Global, of which SI and ESPN are mere subsidiaries).

So here's a content- and information-free comment on the latest turn in the Donaghy episode. To lead off with my conclusion, Tim Donaghy obviously has a problem, but so does everybody else. So far, the NBA has (in part) responded to the scandal like a cornered porcupine, repeatedly lashing out at Donaghy. The supposedly circumspect federal Congress is acting like an officious school principal, threatening the dread Congressional hearings. Folks, the Olympics are soon upon us; how about a little Olympian detachment? Put another way, could everyone please stop posturing and posing and instead discuss this issue like an adult?

1. The most childish behavior comes from the Congress. According to McCann, a certain representative from Illinois has threatened to open hearings to revisit the scandal and, in a broader vein, the examine the integrity of NBA basketball itself. We saw much the same behavior from a Senator from Pennsylvania with respect to the Patriots' videography practices. What's the federal hook, the justification for all this special federal intrusion into the privately owned and operated world of professional sports? Why it's the much-referenced but seldom-discussed federal antitrust exemptions for professional sports. So let's call the Congressional bluff. Is the antitrust exemption a big deal? Nope, not any more.

2. Major League Baseball enjoys the remnants of a very old and very flawed Supreme Court decision, discussed here. That decision today is so full of limits and statutory loopholes that it takes a skillful lawyer (that means not me) to figure out to what it does continue to apply. Let the Congress (finally) abrogate that decision, an action the U.S. Supreme Court has repeatedly suggested, and nothing will change. MLB no longer needs that decision; it can use the "nonstatutory labor exemption" to the antitrust laws (which basically renders the league-union collective bargaining agreement paramount in defining permissible collective action) to run its entire operation. The threat to revoke MLB's judicial protection? Empty.

3. The NBA obviously does not participate in MLB's judicial exemption, so in an attempt to justify this nascent Congressional concern over the integrity of NBA games, the member of Congress who is threatening a hearing has apparently hinted at abridging the Sports Broadcasting Act of 1961 (SBA). What a joke. First of all, why does every public move by the Congress and the leagues have to involve threats and counterclaims? My middle-schooler can resolve disputes in a more mature fashion. Second, would the federal Congress really do this? Would a scandal, even one as significant as Donaghy's, in actuality move our supposedly august and deliberate federal legislature and executive to amend federal law on the broadcasting of sports? It's a juvenile form of punishment, and I'll believe it when I see it. Why does the Congress feel compelled to treat its subjects (you know, the rest of us, we humble citizens) like miscreant children? Who works for whom here? Third, even if the Congress idiotically followed through on its threat, nothing would change. It's an empty threat, as I'll discuss next paragraph. Commissioner Stern should respond to reasonable and legitimate inquiries reasonably. He should respond to contrived, idiotic threats like this one by calling the Congressman an idiot or by calling Ron Artest. (Just kidding on the last point! Don't investigate me please.)

4. I've written a brilliant piece of legal guesswork and mumbo-jumbo about the SBA here. In theory, the SBA allows MLB, NBA and NFL teams to join together to market their broadcast rights. In practice, it's needless. First, think of all the teams in leagues other than those three who similarly join together to market their broadcast rights; none of them are included in the language of the SBA (which is limited to MLB, NBA and NFL) but they all get away with collective sales of broadcast rights. If they were sued, I strongly suspect their practices would be sustained under antitrust law under the theory that collective marketing is ultimately pro-consumer (allows for widespread viewership and helps to sustain a competitive league). Second, even with regard to the special leagues protected by the SBA, the terms of the SBA explicitly apply only to "sponsored" broadcasts, by which was meant free, over-the-air network dissemination. Can anyone think of any significant NFL, MLB or NBA broadcast outlet that does not provide free, sponsored airborne broadcasts? Does ESPN ring a bell? In other words, would the federal Congress or a federal appellate court really bring ESPN to its giant knees? (And how would Lester Munson fairly assess ESPN's likely antitrust damages without getting himself fired?) The point is, a great deal of sports broadcasting, arguably even the bulk of it, is conducted today outside of the narrow protections of the SBA, all without a whimper. For the Congress to claim a legitimate interest in the affairs of the NBA by virtue of the SBA of 1961 borders on absurdity. If the Congress does call a hearing, Stern should send a low-level deputy in his place. (Or send TSLP: I'll be happy to smart off at a Congressional hearing on someone else's behalf.) And by the way, it's only a "hearing": why is holding a mere hearing construed as a "threat"? Congress holds a dozen hearings a day. Big deal.

5. I've written about Donaghy's scandal before. As I pointed out then, the NBA's fault in the misbehavior was its curious decision to make referee assignments a secret, thus giving Donaghy a gift-wrapped bundle of valuable insider information to sell to the only people who would pay for such information, namely professional gamblers. In short, the NBA foolishly had made a powderkeg just waiting for someone to light a fuse. Shortly after the scandal broke, and shortly after I wrote, the NBA reversed its policy and now makes referee assignments public. (Yes, the subtextual theme of my blog is that everyone should listen to me, I'm always right.) That's the main reform that was needed, and in my view should go a long ways to preclude a reccurence of such scandals. That's enough. The NBA is done, no matter what some Congressman seeking to see his name in the paper has to say. A single scandal followed by a single, surgical, curative reform. Nicely done.

6. All this talk about greater and more intrusive supervision by the NBA over its referees strikes me as either facile posturing at best, or badly mistaken at worst. It's facile because the claim for heightened supervision is easy to say, requires no thought as to consequences, and assumes that tighter oversight would have revealed how Donaghy or some other referee spent his private time and to whom he spoke on his cell phone. Really? Would some reasonable form of more stringent oversight actually have prevented this episode? Would more detailed disclosure forms or what have you have actually worked to prevent this crime? Shouldn't we think that supposition through before we recommend and the NBA adopts all these intrusive measures, and not afterward? Next, the proposed but unspecified "increased scrutiny" reforms strike me as mistaken or even undesirable. Everyone complains about the quality of refereeing, especially in the NBA. (I know I do, at least when my teams are involved. See here, for abject homerism.) The most obvious solution to sub-standard performance is to hire better people. So here's the NBA's implicit plan: let's impose more onerous and intrusive oversight on our referees, and then go out and attract better ones. Don't employers looking to upgrade their staff usually try to make the jobs more attractive, not less?

7. I like David Stern. Sure, he comes across as a smirking know-it-all sometimes, but that's only because he knows everything and thinks less of others who don't. After the scandal broke, Stern immediately implemented the TSLP-approved institutional reform, thereby obliterating the means of a future rogue referee from doing this again, then labeled Donaghy the outlier that he is, and then did his best to move on. That's exactly the right approach David; now let it go. Let sycophantic Congressman threaten to eliminate some useless, antiquated statute; let legal commentators (even smart ones like McCann and Munson) outline the personal hell facing one Tim Donaghy (if anyone cares; I don't), but for the league itself, learn from this, take the high road, and go back to business. Stern did get in the mud a little bit with his personal attacks on Donaghy, but that's understandable coming from the victim of the crime. But from now on, David, just ignore these schoolyard bullies. They'll grow up eventually.

Slow Play and the Rules of Golf

2008-07-25T22:03:00.000-07:00

It's golf season in the TSLP house, which means putts across the carpet, chip shots onto the sofa, and yard golf with plastic balls and crazy routes around the house for holes. The boys and I do get out to the real golf course too, once and a while, but the cost of a round limits us a little. We're also limited by the fear of slow play, particularly on certain days and times, namely when the course is packed with players. Slow play has long been a bane of the sport. What can be done?

Many golf writers have addressed the problem. Most of what I've seen amounts to preachy exhortations to speed things up by playing "ready golf" (basically hitting out of turn), by lining up putts while others are putting, by hitting tee shots from the next hole while playing partners finish off the last one, and by other such nonsense. At best, hustling around on the golf course in the recommended manner will shave but a few minutes off a round. Worse, some of these recommendations counsel rudeness. Golf is fun in part because of its relaxed camaraderie and time-honored etiquette. Leaving the green early or playing out of turn is not playing nice.

So what can be done to speed up golf? What's the problem that produces slow play? In TSLP's view, it's not the golfers who cause the pile-ups on the tee. It's the rules of golf that, oddly, impose needless costs to the game, bringing a wonderful, relaxed sporting pastime to a crawl.

1. Before we get to solving the problem of slow play, let's first put the problem in perspective. Just how slow is golf? People typically complain about golf rounds lasting much more than four hours. Indeed, some of my golfing buddies limit their play because they say they cannot find that many free hours in their schedule. But is four hours too long? Think of other sporting endeavors filling up the schedule of the typical suburban parent. A morning of fly fishing on a mountain river will easily take up more than four hours, especially since fishing holes are not nearly as accessible as golf courses. A youth baseball game takes about two hours, but really the total time is closer to four when you add in the hour-long warm-up period, the twenty-minute post-game coach's lecture, and the drive time. What about other individual sporting endeavors, like cart racing, horse competitions, or motocross, all of which usually involve travel and camping for an entire weekend? The worst of all sports? Competitive swimming. All day at the pool, and your kid's in the water for about two minutes total. At least in golf your kid gets to play every shot.

2. What's the baseline for golf? In other words, if four and a half or five hours is too long, what's just right? I would think a single golfer playing decently well and playing alone, with the no one else on the golf course, could complete a walking round of golf in about three hours. Each additional golfer probably adds at least fifteen minutes to the total time (if only from the added waiting for one's turn to play), bringing a fast-playing foursome to almost a four-hour round. That's four hours of golf at a point pretty close to the ideal, four golfers all playing well. So a round of golf that includes at least one sub-average golfer adds more time. Even still, a "bad" round that takes four and a half hours only wastes thirty minutes. Think of all the ways of wasting time; I could think of a lot worse than lingering with your pals on a beautiful golf landscape waiting to play a stroke. We can't compare four and one-half hours to zero; it should be compared to four. Golf is not that bad.

3. Further, slow play in golf is commonly misunderstood. What's slow is not necessarily measured in reference to the total time spent playing the game. Slow play can denote the minutes spent hanging around on the tee or fairway, waiting and waiting for the coast to clear for your next shot. A round of golf with little waiting feels fast; a round of the same total duration where one has to wait often feels slow. So what accounts for the waiting? Sometimes, yes, it can be golfers taking too long up ahead to line up putts or play shots from the fairway. But it can also constitute players of different abilities and strengths playing in consecutive groups, or from overbooked tee times or other traffic issues. But the "blame the slow player" explanation doesn't adequately account for slow play. That explanation is too facile. As always, when we see costs and delays and the like, I suspect the rules and rulemakers have imposed unnecessary infringements to impede the natural order of things.

4. What rules of golf unnecessarily slow down the playing of golf? The most costly of rules is the inordinate penalty for lost or out-of-bounds balls. The penalty is stroke and distance. It's a killer, along several dimensions. First, the penalty kills your score. Even a well-played provisional ball (for a par) results in a double bogey on the scorecard. Play the provisional ball for a bogey, the mean score of handicap players, and you get to record a triple bogey, basically ruining any chance of completing the round with a good score. It's a huge penalty from just a single stray shot.

5. Second, the harsh stroke-and-distance penalty is a killer on another front: it causes delay. Remember we're not talking here about the PGA tour. Most golfers carry significant handicaps. The hardest shot in golf for the majority of players is not the rare long bunker shot. It's the long, straight drive. Most golfers will send a pretty high number of their fourteen tee shots (not counting par three's, although we could) somewhere astray. On most golf courses, "astray" usually means some combination of rough, woods, water, rocks, and white stakes indicating the edge of the golf course. Put four golfers in a group, and that group is going to be searching for a stray drive or other shot pretty near every hole, especially on a tougher, tight golf course. It's not uncommon to have to look for more than one ball per hole. That can take a lot of time. In addition, the "fast play" commentators exhort players to play provisional balls whenever there's "even a chance" of the original ball being lost. This advice is fairly unrealistic. Even decent golfers hit so many balls that have a decent chance of being lost that we'd have to have a significant increase in the number of provisionals to make this approach work. And hitting a provisional is not easy: one's playing partners typically have begun their march down the fairway; everyone's a little annoyed at the extra shot; the provisional shot is often rushed, to repeated bad results; and finally it's not a "real" stroke, so it's usually played a little more carelessly. All this provisional playing takes time. Finally, the harsh penalty exacts an additional time penalty: even if one has hit a good provisional shot, the duration of one's search for the original ball will extend as long as possible in an attempt to avoid the two penalty strokes. Of course, if the extensive search is successful and the original ball is found, the provisional ball is picked up; in other words, the time spent playing the provisional was wasted. In casual rounds, notably, where often players take just a one-stroke penalty for a lost ball, golfers search less diligently.

6. The better rule is to treat the all stray areas of the course as lateral hazards. A lateral water hazard supplies the perfect penalty: the ball is obviously gone, so no time is wasted in search. Just drop the next one at the point of entry and you're in play. Indeed, in a casual round, or even a serious round with below-average players, this "rule" is the mode. Just drop a ball, take a stroke, and keep playing. "Let's play a fast round" is a golfer code phrase for a mulligan on the first tee (saves warm-up time) and abrogation of the stroke and distance penalties.

7. Why are the rules of golf to the contrary? Why does the rule contradict the common, speedier practice? The penalty for a ball in a lateral hazard is a stroke; for an unplayable lie, one stroke. The penalty for lost ball and out-of-bounds balls is (essentially) two strokes (the stray stroke, plus the penalty, plus the drop at the original spot) so that the course designers can have the option of a more severe penalty for variety. Golfers should regard woods, rocks and other nightmares as "more dangerous" than water simply because of the heightened penalty the woods and rocks potentially carry. Yet no golfer does. Woods and other lost-ball zones permeate every hole. Yet water scares golfers every bit as much, and creates the "forced carries" that so influence shot-making decisions. We're afraid of the water when we should fear the deep, dark forest even more. (Perhaps only slightly more, since a ball in the water is with near certainty unplayable, while a ball in the woods may with luck be located and with more luck be located in a playable position.) Treating the forest like the water would provide plenty of penalty for the stray shot. It would even supply enough penalty for the advanced golfer or professional. Pros don't appear indifferent to water hazards or rough; so too they would adequately fear and be penalized by woods and little white stakes, all of which would present equivalent obstacles to be avoided.

8. Golf is certainly a tradition-bound game, but the tradition here is pretty unclear. It seems as if the original penalty for a lost ball was "stroke OR distance" (the same penalty as for a lateral water hazard, in other words), not stroke AND distance. See here for some evidence for that point. Interestingly, the traditional penalty for an unplayable lie was stroke and distance, which of course has now been mitigated. So the rules can change.

9. Other rules that inhibit the normal pace of play: all of them, collectively. Each year the USGA sends out a rules quiz to a couple of hundred golfers. These golfers carry various handicaps, but all have in common a serious devotion to the game. They have something else in common: they all fail to get the test completely right, or even nearly so. Players of other sports would not misunderstand the rules of their sport: baseball players would score one hundred percent, presumably, except perhaps on the dread infield fly rule, which came under vicious TSLP attack here. Yet even devoted golfers don't know the rules. Trust me, this sad state of affairs is not the players' fault: the rules are just too convoluted and nonintuitive. Don't believe me? Speaking of the devil, what is a "lost ball"? Believe it or not, it can include a ball that sitting in the middle of the fairway in plain sight. See Rule 27 and work it out for yourself. The rules of golf could easily be simplified. One place to start is to change the penalty for lost balls.

10. The downside of my proposal? Golfers wouldn't look too hard for their stray shots in order to avoid difficult situations. They might not ever make themselves play tough shots; they might even avoid entirely the penalty for unplayable lies. The attraction of a one-stroke drop at the edge of the woods would quickly make the new lost ball rule the normal penalty for stray shots. But is that so bad? The outlets for relief (under penalty) provided by the unplayable lie rule offer no real relief on some of the rocky areas in the mountain courses I frequent. There's nowhere to drop the ball, or even to drop again after the first drop (with a second penalty). And there's no where to go back in the line to find a drop area; just rocks everywhere. The only practicable resolution is to replay the original shot, which means walking back to the tee and hitting again. Talk about slowing down play! Balls in bushes, on rocks, and in unspeakably long and unprepared grasses are not meant to be played. Whacking a ball out of bushes is not golf. A drop at the point of entry coupled with an added stroke is penalty enough. That's golf, in about four hours.

Let Them Run: Pistorius and the Olympics

2008-05-22T09:45:00.000-07:00

People complain all the time about the corrupting influence of money in sports. I think it's just the opposite: the lack of money corrupts. Money purifies, giving every competitor the identical incentives to compete and win. Look at PGA tournament golf, for instance: no guaranteed salaries, no long-term deals; only the best finishers get paid, and the "best" is determined on the golf course each week. Money provides the incentive to excel. I love it when the winner holds up the huge check, and that the first-place check is substantially larger than the second.

Money and the unalloyed competition it generates has another benefit: by giving athletes tangible incentives to win, it gives athletes huge incentives to design, adapt and utilize the very best technology. Think of car racing: the fact that many major car manufacturers dabble in automobile racing advances their technological knowledge, furthering their main mission in producing passenger vehicles for everyday travel.

What does this have to do with the Olympics and Oscar Pistorius and his prosthetic leg devices? The common fear is that Pistorius has or will find or help develop super-fast leg devices and so will prevail over non-disabled competitors. I'd like to see him do it. Why not create sizable financial bounties (Olympic victory) for the athletes who invent or use the best devices? Don't we want to push the technology as far as it can go? Isn't the financial bounty of an Olympic victory a perfect way to accomplish this?

1. Sports gambling is generally not permitted in this country. Yet we do have some notable exceptions, one being horse racing. Why is parimutuel horse track betting permitted? The historical reason may surprise you: states and localities permitted and actually encouraged horse racing not to satiate public demand for wagering or entertainment. No, it was permitted for the sake of the horses! Betting on horse races, along with supplying entertainment, imbued those races with cash. Horse breeders (to this day) typically take a large part of the action on their horses. Giving horse breeders a tangible financial incentive to win races infused their breeding and training efforts with clear rewards for excellence. Breeding horses, even just race horses, for strength, speed and stamina pushed the technology, helping breeders learn the best methods and practices. Those who work on the cutting edge of horse breeding developed information that, it was thought, would eventually help the whole horse stock. In an era where the stock and quality of horses was an important component of social capital, this benefit of wagering on horse races was not insubstantial.

2. I have noticed, glancing out my office window (yes, this is the empirical method), that the quality of the horse stock seems somewhat less socially important today than in ages past. Just as clearly the utilitarian value of parimutuel horse race betting is today pretty small, and probably it survives by historical inertia as much as anything else. But I've never understood why we don't allow (or even encourage) betting in other areas of more obvious contemporary significance, such as automobiles, for instance. Why not use the power and incentivizing magic of wagers and payoffs from bets on auto races to trigger super-advances in automobile technology? Instead we (collectively) carp at the automakers and set fuel-mileage standards and the like, all to try to cajole them to accomplish through regulation what the promise of giant wagering payoffs might accomplish costlessly. And by the way, I would definitely become a gold-card patron at a casino that had its giant floor space surrounded by a six-lane racetrack with cars ripping by at 200 miles per hour. That would be a betting experience. Isn't there enough room left in the Las Vegas desert to make this happen?

3. I'm not saying that people who oppose sports wagering don't have a point. But my point is that we need to understand that wagering is not necessarily socially wasteful either. Betting does have a benefit. It throws cash money at a problem (just like the government does), but here the money is paid only to the winner. It makes people go crazy to win, and the means they devise to win money can sometimes benefit the rest of us. If the stock of horses is so important as to justify two centuries' worth of parimutuel wagering, why not allow wagering on things that are more important in today's world?

4. Like prosthetic devices, or medical advances more generally. I once wrote an article for a lawyer newspaper where I (half-jokingly) suggested that athletes should be allowed to use performance-enhancing drugs if only to assess the potency and test the limits of experimental treatments. Why rely on lab rats where highly compensated humans were completely willing to give it a go? No, I'm not saying we should set the lethal dose limits with human-subject trials. But within the broad range of drugs with known lethal dose limits, why not allow people to make calculated, informed experiments with their bodies, especially where they're doing so for the sake of a substantial payoff in the form of a professional sports career? Haven't we learned something about the possible benefits (and negative side-effects) of PED's in part because certain rogue athletes have used them? Would we learn even more if that use were done under medical supervision, with appropriate data collection and sharing of knowledge? Wouldn't allowing Pistorius to go as fast as he can with the best device he or his doctor can design further that particular realm of medical technology? Isn't that something good too?

5. Now I realize I'm completely ignoring the large counter-argument to all of this, specifically that the prohibition on enhancements (be they pharmacological or prosthetic) is justified not in the main by health-preservation but by the desire to ensure a "fair" contest. That if Pistorius, using his "Cheetah" devices, is allowed to compete against runners without such devices then Pistorius (or the next user of the next device) may have an advantage that a non-equipped runner cannot plausibly overcome. (I even read somewhere the view that crazed athletes, willing to try anything to win, might saw off their legs to take advantage of the latest prosthetic technology. The evidence for this was that athletes were willing to take PED's and that therefore they will risk anything to win. I'm no doctor, but I sense that taking a few injections of a naturally occurring growth hormone lies on a lower plateau of risk-taking and potential downside than is sawing off one's appendages.) If it eventually happens that artificially enabled athletes begin to win with regularity, then the runners could be divided into two groups, the disabled and the non, just like Olympic boxing is divided into weight classes, Olympic track is divided by distances, and Olympic competitions generally are divided by gender. It should not be a big deal. But I would want to share the Olympic stage with disabled athletes as much as possible, to capture the incentivizing effects.

6. But my other question about the "fairness" claim is this: just how important is "fairness" in the terms the proponents of this argument imply? Clearly some athletes have better natural endowments, or get better training or nutrition, or have access to better technology. (The technology comes into play in Olympic sports that feature appliances, such as the bobsled (love that thing) or swimming suits, etc.). In what sense is the game "fair" if one athlete, due to his innate or acquired superiority, is highly likely to prevail? One can draw the line on technology or enhancements or bobsleds or what have you, but that's my point: we're drawing a line. Any line drawing is arbitrary to a large extent. We can say no prosthetic devices, but what about a heart monitor? What about a stent that assists blood flow? What about drugs that speed recovery from injury? Again, we can talk about all of these issues and try to reach a sensible resolution. I'm not saying a sensible resolution is not possible. But still, whatever resolution we reach, we have to acknowledge that our definition of "fairness" is replete with many, many qualifications, and is a long way from the simple notion that everyone starts at the same point with an equal chance to win. Pistorius is standing at the starting line on two legs. He's not in a motorized wheelchair. There is a substantial claim that it's a fair race, even if it's one the non-augmented athlete is likely to lose.

7. So rather than fight the clear financial payoffs from Olympic success I would suggest we embrace them and put them to good use. Even if one day we have a separate division for athletes such as Pistorius, we should do what we can to give the victor the same stage as we do currently for Olympic champions. It's important that the disabled athlete have payoffs too. It was thought important enough for horses.

What's Wrong with Metal Bats?

2008-05-19T09:09:00.000-07:00

Twelve-year-old Steven Domalewski, a New Jersey boy, was struck just above his heart by a baseball hit by a high-tech TPX composite bat. The bat is manufactured by the Hillerich & Bradsby Company of Louisville Slugger fame. The boy's injuries are extensive and tragic. I've written before about the ongoing controversy over metal bats, here. Domalewski filed suit today seeking damages from the bat maker, from Little League, and from the Sports Authority, the bat's retailer.

I feel very badly for the child. I think the current Little League bat specifications need to be amended. I think that the youth bats allowed today are obviously too lively. Yet I think the lawsuit will fail, and at the risk of sounding callous, I hope it does.

1. In much of life, injured people can (with much success) assign the cause of their injuries to others, even if that "other" is an inanimate product whose use instigates some calamity. The contention or perspective that the injured plaintiffs were in part or substantially responsible for their injuries, by failing to take proper precautions to protect themelves, is not usually successful. Plaintiffs are infantalized, allowed to behave carelessly and carefree, even where risks and dangers are obvious and even explicitly disclosed, such as with the use of tobacco products.

2. But not so with respect to sports activities. Sports law remains one of the last bastions of traditional tort doctrine. Sports participants, or in this case the parents who consent, are treated like grown-ups. Athletes who choose to participate in sports that carry patent dangers are held to their decision and are not heard to complain when those dangers become a reality. Even spectators however unfamiliar with the sport are generally precluded from legal complaint when they are in their seats and struck by a batted ball or deflected hockey puck. Sports is true reality television: an unvarnished competition in which athletes compete without favor or advantage, and largely without protection from injury save one's skill or wits. It can be rough stuff, and everyone knows it. Therein lies the magic that lures some while repelling others.

3. The very obviousness of the risk from a batted ball, coupled with the continued willingness of courts to apply the law's tough assumption of risk doctrine to injured athletes, will likely doom the New Jersey lawsuit, in my view. Even in a products liability case the "assumption of risk" idea has a foothold. The bat must, to be deemed "unreasonably defective," be dangerous to an extent beyond that which would be contemplated by its ordinary purchaser and beyond ordinary knowledge as to its characteristics. Any parent, like the tired TSLP, who has sat through the long hours of many, many youth and Little League baseball games knows full well of the velocity at which these new bats (and these seemingly new kids, bigger and faster than the skinny boys I remember from my wasted youth) accelerate the baseball. It's truly astonishing. I saw a big kid the other day (in a travel ball game, where the LL-style checks on birth certificates are less thorough) hit a line drive just slightly over the pitcher's head. The ball also, on that same line, went slightly over the centerfielder's head, clanging off the center field fence just barely lower than its height when leaving the infield. It may have been the hardest hit ball I've seen this side of a Mariners game. Yet the batter took his double with little more than a clap of his hands, just another routine hit, like he's done it before. I suspect he has. No twelve-year-old (even if he is 13) should be able to hit a baseball that hard. Stories like this abound. Kids are killing the ball, and everyone knows it. Strangely, the very obviousness of the danger the bats have created will likely insulate the manufacturers of those bats from liability.

4. Metal bats are here to stay. It is a false dichotomy to present the antiquated wood bat as the alternative to metal. Wood is comparatively flimsy, and the good wood is in short supply. The alternative to metal is metal, albeit metal manufactured to specifications that restrict its performance. One key performance characteristic of a metal bat is the difference between a bat's length and weight. For instance, the metal bat that hit the ball pitched by Steven Domalewski was 31 inches long and weighed 19 ounces, which meant the bat, in colloquial terms, was a "-12" bat, or a "12" weight drop. Little League, at least at the time Domalewski was injured, allows up to a -12 or -13 (not sure of this; I already bought TSLP Junior his bat, so I'm out of the market), with bats up to 32 inches in length and a 2 1/4 inch diameter barrel. Composite bats are also permitted. Little League to its credit is working with the bat manufacturers to put some limit on bats: starting in 2009, bats will be limited to (basically) the current "performance characteristic" (how fast a ball comes off a bat) that they now possess. Other leagues have greater limits: the state high school association where I live limits the "weight drop" to -3. Certain softball leagues have prohibited the use of some composite bats, which are thought to perform with a "trampoline effect" superior to aluminum. So the "cost savings" argument for metal bats misses the point: yes, metal bats are cheaper than wood, but that's not an argument against sharp restrictions on the capabilities of those metal bats.

5. Why doesn't Little League simply make all the kids hit bats that have a weight-length ratio that mirrors a wood bat (as do the high schools) and preclude composite or "two-barrel" bats that apparently, at certain velocities, spring the ball off the bat? Remember the controversy over the square-grooved irons made by Ping? That multi-million dollar antitrust suit brought by Ping against the PGA was eventually "settled" on the following complex terms: Ping won. Square grooves are now a fixture on the pro golf tour, rendering shots from the rough (unless it's US Open-style rough, about knee deep) to be more or less non-punitive. With their square grooves players can spin the ball from anywhere, so the only defense most golf courses have to marauding pros is length and glass-like greens. The old saw about the importance of keeping the ball in the fairway is becoming anachronistic, much as are the golf courses that defended par with rough. The Ping lawsuit reverberates though the sports law world to this day. Little League knows that any serious restriction on the specifications of metal bats would generate a serious antitrust lawsuit featuring seriously expensive lawyers, and at this point at least, LL doesn't likely enjoy immunity from suit. Like PGA golf, the game of baseball at the youth level has changed, probably forever.

6. So what to do? Sadly and with trepidation, I think we may see more Steven Domalewskis. The bat manufacturers claim there has been no increase in injuries from batted balls, and they may be right. But that's historical data, and the new bats presage the possibility of a new experience. The ball is being hit like never before. Big sweet spots, super-light bats, composite trampoline effects, big kids. One solution: why not look to the fielders? Instead of restricting the batter, leagues could require all fielders to wear heart guards and facemasks to prevent catastrophic injuries from these smashed baseballs. Parents could purchase these protections on their own, of course. But few boys, given peer issues, would willingly wear face masks on the field when no one else does. But a general obligation to wear this gear could make the game safer, at least if "safer" means fewer catastrophic injuries to fielders. I played youth and college hockey in an era where helmets were first required. We complained. A few kids (the ones with smart parents) even wore mouthguards. TSLP didn't, of course (sorry Mom), and got his pretty teeth knocked out. Today, all hockey kids have to wear helmets fitted with face protection. It can happen.

7. Requiring safety gear could generate undesirable side effects. Maybe a shortstop wearing a face mask and heart guard will not learn to properly protect himself with his positioning and glove work. Maybe kids, faced with wearing hot masks and chest protectors all over the diamond on a sunny summer afternoon, will opt to quit the game. These are real downsides, and so make me hesitate. I don't require my kid to wear this gear, and he usually pitches or plays the infield. (He also plays catcher; should I require a mask? I'm debating this.) I also, in the interest of full disclosure, have outfitted my kid with the bat he wanted, and it's a "-12," just like the bat that was involved in Domalewski's tragedy. But could any parent (except those blessed/cursed with utterly compliant children) make his kid wear headgear when no one else does? Could a parent stick a wood or mere -3 bat in his kid's hands and watch while his child struggles to get hits while the other kids clang out homers and doubles, bat cleanup and make the all-star teams? Collective action is needed. Help me, says the parent defenseless against his eleven-year-old!

8. By the way, I think naming Little League as a defendant in this suit was probably for show, not dough. Domalewski was not playing in a LL game when he was hurt. LL approves of equipment for LL games, and doesn't present itself as a body that certifies the safety of baseball equipment more generally. Similarly, the teenagers who sold this child the bat at the Sports Authority don't need to get a lawyer. This is a suit against the bat manufacturer. It's an attempt to get a jury to create a "bat regulation" where the league and manufacturer couldn't come up with one on their own. I don't like juries making laws; they're not equipped for nor charged with that task. I'd prefer to see it done with more widespread contemplation, and include comments from people outside that courtroom (namely me). In the meantime, I'm going to purchase my little pitcher a heart guard and tell him to keep the ball on the outside corner.

Roger Goodell and the Cheating Scandal

2008-03-10T20:49:00.000-07:00

The NFL Commissioner, Roger Goodell, appears soon to hear the claims of one Matt Walsh, a former Patriots videographer. From reports, it appears Walsh will claim that the Patriots went so far as to record the "walk-through" practices that teams sometimes conduct on the eve of games. The particular game in question involves none other than the Super Bowl of 2002 against the St. Louis Rams. Pennsylvania senator Arlen Specter stands at the ready to appear in any more headlines the story earns. What's holding things up is some sort of indemnification commitment (see it all explained here) Walsh's lawyers are seeking from the NFL. On their part, the Patriots have denied all wrongdoing, going so far as to suggest that, if Walsh indeed recorded the practice, he did so on his own.

What a mess. A murky mix of legal maneuvering, sports spying, and grandstanding politics. In a case like this, only the carefully worded pedantry of an able law professor could clear things up. Unfortunately those people are very expensive and busy. You'll have to take what the lowly TSLP is peddling for free.

So who's primarily to blame for all this bickering? The over-competitive Belichick? The grasping former assistant Walsh? The insufferable Specter? None of the above.

It's the righteous one, Commissioner Roger Goodell.

1. I was worried about Goodell from the day he was appointed commissioner. He's not like most executives in sports. He's not a businessman spending his latter years and earned wealth fulfilling a lifelong love of sports. He's not a lawyer whose successful big-firm practice translated into an "inside" job with this most public corporate giant. He's not an accomplished political leader gracing the sports world with his savvy and worldliness. No, Goodell has never been successful at anything outside of football. He graduated from a small, middling liberal arts college one year and joined the NFL as an intern the next, and basically he's never left. No advanced degrees, no professional achievement, no major milestones. Although he moved around the NFL office a bit, it seems most of his years and job functions were devoted to public relations. This man is a bureaucrat. It took five votes for the owners to agree to his hiring. His first big job? How about Commissioner of the NFL? It amazes me that the most profitable sports league in the world could do no better.

2. Of course academic credentials and career accomplishment are not a necessary qualification for the job of league commissioner. Perhaps a lifetime's investment in league affairs provides a plausible (or even superior) substitute. In the right person, it would be. But I worry about hiring people because they appear to be "the right person," especially where the resume falls a bit short of the norm. In the law school business this mistake is made all the time. A candidate for a faculty position comes in with an incredible resume and an interesting set of early-career publications, but will often fail to get the job offer because the faculty relies more on its impression of the candidate formed after the personal interview. The personal stuff counts, a little, but sometimes we give it too much credit and override the years of work and accomplishment reflected in the resume. (We also give ourselves too much credit in thinking we can say something meaningful about a person's personality and make a prediction about a person's career path after just a few hours' exposure.) When the objective criteria fall a bit short, you'd better be darn sure the personal characteristics are very exceptional.

3. So here's my worry about Roger Goodell, the person. Sometimes, certainly not always or even usually, but sometimes people who don't have a lot of higher education or a lot of occupational accomplishment can tend to be a bit moralistic. Not dumb, not uneducated, not unable or untalented, but moralistic: they tend to see the world in stark colors (usually in black and white, as the saying goes) and feel the need to define most ethical issues accordingly, no matter how nuanced, subtle or difficult the ethical issues may be. They're just not very thoughtful or reflective about matters that require it. Of course higher education or success in business doesn't guarantee more completely theorized and qualified ethical reasoning, but on balance it does predict it. Education has some value, right? We all know what I mean by a moralist: the kind of person who prefers to arrive at the facile, stark ethical conclusion than to perform the heavy mental exercise of making fine distinctions that might produce a better answer. I might add that, in my limited experience, career regulators seem particularly susceptible to this particular tendency: the regulators come to view the regulated as mischievous miscreants who need to be watched.

4. The job of a sports commissioner is charged with moral reasoning. The commissioner hears discipline cases, metes out punishment, protects the integrity of the game, leads the owners and the players in reaching labor agreements, and represents the league to media and other public concerns. In my mind the job cries out for intelligence, passion and sagacity. The best? Bart Giamatti, lover of baseball, doctoral graduate of Yale, professor of literature. Another? David Stern, graduate of a top law school, accomplished lawyer, successful commissioner of the NBA. Both men understood the moral demands of the job. Giamatti banned Pete Rose, but by all evidence (including from Rose himself) planned to grant Rose's petition to return after a year. Stern dealt forcefully with the Detroit brawl, but at the same time handled the politically charged Kobe Bryant rape trial with deftness.

5. Do we see similar promise from Goodell? Has he shown, in his first year on the job, an ability to handle difficulties with a deft hand? With all respect, I would suggest quite the opposite. Instead of issuing the Patriots a fine and moving on, Goodell termed the "Spygate" incident "a calculated and deliberate attempt to avoid long-standing rules designed to encourage fair play and promote honest competition on the playing field." All they did was videotape signs! Sign stealing is legal in football; it was the videotaping that was the problem. Yet despite Belichick's contention that he had in good faith interpreted the rules (see here, if you want my take on the interpretation, plus a lot of debate), Goodell chose to call Belichick essentially a liar, in public. Or take the Pacman Jones suspension. Exactly why is that young man suspended? (I know the answer, but I had to look it up.) Yet I've asked a number of sports-minded people that question and no one's quite sure. Don't you think before Goodell utilizes his nuclear weapon he ought to be pretty clear and public about exactly why? Why does Pacman deserve what is approaching a two-year suspension? I'm not saying he doesn't, or that Goodell is not entitled to conclude Belichick is a liar. My point is that Goodell is starting to look like an unthinking moralist.

6. Now we hear that Goodell is going after "cheating" in other forms. He intends to require team employees to report (presumably to him) actual or even suspected violations of league rules. He plans to make unannounced inspections of locker rooms and press boxes. All this to "preserve public confidence in the integrity of the game." Is it in doubt? Do fans think the games are fixed or that teams are cheating? Strongly enough to justify these measures? If the public thinks so, it's in part because Goodell called the integrity of the games into question by his treatment of the Patriots. What kind of Commissioner would create an issue (theretofore undiscussed) of the integrity of the games (namely the Patriots') and then, ostensibly to calm the fears he had generated, institute these suspicious activity reports and unannounced searches? An unthinking moralist who sees corruption where there is none and makes it his mission to eradicate it.

7. The moralist never rests, not as long as "unfairness" remains on the loose. So now Goodell is engaging in this long flirtation with Walsh, the former Patriots video recorder. Why? What possible purpose does Goodell have in investigating conduct that may have happened in 2002, long before Goodell became commissioner? Is this a truth and reconciliation exercise? Will Roger right every historical wrong? First he'll strip the Patriots of their 2002 title; what's next? Reverse the Tuck Call? Require a do-over on the 2006 shafting of the Seahawks in the Super Bowl? Recall the titles of the steroid-ed Steelers of the 1970's? Maybe the 1925 title will be awarded finally to the Pottsville Maroons. If Goodell thought this through, he'd close the book on the Patriots and tell Walsh to get lost with his requests for indemnity. Instead he continues to drag one of his flagship franchises through the mud, taking the image of his league along with it. If the integrity of the game is in question it's because Roger puts it there every day.

8. What will Roger do now? I saw where one of the Steelers, linebacker James Harrison, recently was arrested for domestic violence. If Pacman gets two years for a barroom brawl and related mischief, how much for striking a woman in the face? It seems to me there's quite a bit of the latter in the realm of professional athletics, much as there is in other walks of life in this country. Surely that's a year's suspension. And what about the honors to be accorded to Brett Favre, retiring hero who publicly admitted to a drug addiction. Surely sometimes those drugs (painkillers) were taken illegally (without a prescription) and were used to help Favre get back on the playing field. In fact Favre has admitted as much. Now I'm not saying Favre deserves condemnation for this, but shouldn't Goodell condemn this use of drugs to "cheat" and deny Favre admission to the Hall of Fame? Or do we need to start making some ethical distinctions here and treat these athletes and coaches more carefully?

9. People learn and grow. By all accounts Goodell is a good and smart guy. I suspect he may have painted himself into a corner with the severity of some of his sanctions. He's already given Belichick the harshest penalty he can in terms of a fine, and that's just for violating a poorly worded rule appearing in the game operations manual. What will he do with a team that tampers, as must have been the case given the speed at which free agent players come to terms with new teams? What about teams that he finds have monkeyed with the audio capabilities for play-callers? Isn't player tampering (affects game personnel) worse than audio tampering (affects game play), which is in turn worse than videotaping (used for future games)? Belichick got the max. Will Goodell take more draft picks and impose lengthy suspensions to clean up a sport no one thought was dirty until he arrived?

10. The ever-widening cheating scandal that now plagues the NFL would never have happened under Paul Tagliabue's watch. He would have quietly fined the Patriots and moved on. A commissioner only has so much moral capital to expend and moral condemnation to express. Tagliabue would have saved his for something more important than sign stealing.

Legal Opinions For Free

2008-02-09T21:50:00.000-08:00

Seldom does a day go by in the thrill-a-minute life of a sports law professor without being asked to give an opinion on Roger Clemens. Did he use performance enhancing drugs? Is he lying? Should he be elected to the Hall of Fame?

I always give an answer, albeit just for fun not the same one every time. Sometimes I point out Brian MacNamee's obvious motivations to fabricate (to get a deal); other days I sum up the direct (MacNamee's claim) and circumstantial (Clemens' late-career success) evidence and pronounce Clemens' guilt; at other junctures I argue that such drugs should not be against baseball's rules to use. But did Clemens use the drugs? The truth is that I'm just as much in the dark as everyone else. The other truth is that I'm reluctant to admit it.

Contrary to popular belief, lawyers have no special training in truth or justice, nor does our limited life experiences make it otherwise. We can talk about evidence and procedure, process and proof, and perhaps we can even hazard an informed guess as to likely jury outcomes, but that's about it. We no more know if Roger Clemens actually doped up than does any other outside observer; indeed, our preoccupation with the technicalities of the law likely puts us at a disadvantage in knowing the truth. We may either be professionally uninterested in the truth or be so distracted by legal matters that we spend little of the time we devote to a particular issue actually thinking about the ultimate issue.

To put it succinctly, WE DON'T KNOW.

Yet we law professors are asked anyway, in person, by phone, in emails, on the radio or even on television, and instead of giving the forthright response (see the capital letters, just above) we fumble around and try to find something interesting to say. It's a weird position we're in. We're professors, whose job description is to take the long view and to give opinions haltingly, with qualification, and only after prolonged contemplation and study. Yet the fellow with the microphone in our face doesn't want to wait six months for what will be at best an equivocal answer. So why do we answer the phone? Why give a reporter (as I just did today, as it happens) all kinds of quickly qualified opinions when obviously he, like most reporters, wanted none of it? He just wanted a punchline he could put my name to and that was that. I guess a professor who spends his days carving out very small pieces of lucidity in the opaque world of legal scholarship, which pieces will one day form the modest insight of modest legal scholarship, wants instead to be relevant to and noticed by a larger audience (speaking for myself, for sure), even when the translation of our thoughts to that audience is necessarily inexact, unqualified, and often even dishearteningly wrong.

Yes, we're often wrong.

1. A lot of what we law professors say in public is wrong, factually so. I see it all the time, at least when the confident opinions of professor/media stars veer into legal issues with which I am intimately familiar. Even my own words quoted in a news story, isolated as they are from the entirety of the sentences that surrounded them when I uttered them, have appeared strange to me, appearing to endorse positions I would deny. Yet it has to be this way. Take, umm, sports law for instance. Sports law is (potentially) all the law in America applied to sports. That's a lot of law. A typical news cycle (I think that means about a week, in journalist-lingo) will find people asking me opinions on the first amendment, the fourth and fifth, criminal law, criminal sentencing, civil procedure, torts, defamation, drug use, and drug testing. Periodically issues will arise in sports that involve international law, antitrust law, labor law, copyright, trademark and broadcast rights, plus who knows what. Not too long ago I was giving an opinion about dog fighting, of all things. Now sure, the research team here at the TSLP website is hard at it around the clock researching all the law in America as it applies to sports. But even our impressive resources (we're funded by several huge multinational conglomerates) are stretched thin. Let's hope this Clemens thing stays as simple as it is. Heaven help me if Clemens resorts to witness tampering or outright bribery to stifle MacNamee; what will I say then? What are those statutes? Worse still if Clemens' conduct raises a tricky choice of law question: what if Clemens, a Texan, purchased steroids from Radomski, a New Yorker, and then was injected by MacNamee, a Californian, while Clemens' ample buttocks were in Florida? Which state law applies? Should I have kept my darn law school notes from twenty years ago? Would I go on television that night to offer an opinion about conflict of law doctrines? Sure, just give me a call.

2. Of course there's a patent psychological aspect to all of this. The hardest answer is the easiest: just admit you don't know. I do this all the time on the telephone with reporters. I can sense the palpable disappointment in the voice of the reporter, but so what: I've yet to see this statement of mine quoted, as illuminating as "I don't know" might be. But on live television or the radio? I can't honestly say I would just admit ignorance. I'd probably dodge the question and try to find something interesting or distracting to say instead. (Perhaps this moment would be an optimal time for me to accuse Clemens of taking steroids or MacNamee of lying, depending on my mood.) Media interviewers seem to think we sports law professors know everything, just because the law has intersected with sports and we're sports law people, so there you go. I have seen law professors on television (like, say, during the Bush-Gore election fight, or the O.J. Simpson trial) dodge questions; like me, these are people who are at times answering questions far, far afield from their areas of particular expertise. Just once I'd like to see a law prof on a live broadcast admit he doesn't know something. I just hope when that happens, it wasn't me doing the admitting.

3. There's also an ethical point here as well. The easy, glib, smug, "correct" observation, which I am entirely convinced is wrong, is that we professors should either refrain entirely from media appearances, or should speak only to those matters that fall squarely within our zones of expertise, and even then only after appropriate reflection. This position sounds nice, but is untenable. First of all, except in very limited circumstances, perhaps where a professor or other expert is merely providing some banal background information ("the formal criminal process begins with an indictment"), never, ever is there enough time for appropriate reflection, at least not in the way my business defines it. Law professors study problems literally for years before offering comments or solutions. The timetable of the professor is wholly incompatible with news journalism. Second, almost never does a salient public matter fit squarely or even substantially within a particular professor's particular specialty. We may teach a basic survey course with a large title (like "Criminal Law"), but every professor within that field is devoting his or her research and writing effort to a much more specialized set of issues within that field. No one is really a specialist in all of the criminal law. Third, however ignorant we are outside of our particular specialized branch (at least as compared to a specialist in that sub-field), we do know more than our interrogator. Thus, our answers, although not informed enough to support academic legal scholarship, are informed enough to help non-lawyers understand a problem and perhaps leave them better informed. We can help these reporters (and by extension their readers/viewers), even on legal topics well outside our field. What should we say, "I don't know"? We do know, we know something anyway, and what we know may help things along a bit. What's the alternative, for the reporter to call on different professors each time the reporter's questions cross over sub-specialties? How would the reporter know whom to call in the first place?

4. Sports law is especially difficult on all these counts. The (theoretical) breadth of the field is enormous, even unwieldy, and thus utterly resistant to any one person's implicit claim of mastery. On the other hand, relatively few law professors venture into this field (the others are cowards), and so the need for those of us who do affix this claim to our bio's to help the media out is acute. To be honest, I have no doubt that the reason I (and I suspect others in this field) tend to draw quite a few media inquiries is because reporters need help, and the label "sports law" seems to fit the bill whenever the law and sports intersect. We can't just shirk; we have to take our share of media inquiries and give some (dangerously offhand) legal opinions for free. So we'll be talking about the law of labor relations one day and criminal trials the next. I'll admit it doesn't always feel good, and sometimes I find myself wishing I had thought through a particular question a little more thoroughly before answering. I'll add that I turn down more chances to comment than I accept, and that television particularly concerns me, because the unstated expectation of omniscience (coupled with my hubristic insecurity) would make me unable to admit ignorance when such admission is fairly required. I have turned down repeated requests to appear again on the various Fox news programs, after being tormented on the Hannity and Colmes show (thanks, I should add, to the many, many, many of you who have written to make fun of me for that; I love you too.) So I guess I sort of put my money where my mouth is, although all opinions could change if I get my own radio show, which I want.

5. So, did Clemens do it? Of course I know the answer. I'm a sports law professor, right?

Boston Forever?

2008-01-28T19:35:00.000-08:00

Many have commented lately on the recent ascendance of Boston's professional sports teams. The Red Sox reign as champions, the Patriots have put together something of a dynasty and are on the (likely) verge of a perfect season, and even the lowly Celtics have posted the NBA's best record at the half-way mark. These things come in cycles, we're told, so Boston fans better enjoy it while they can.

True, much of life comes in waves, and for sure the three (major) Boston sports teams have all peaked simultaneously. But is it necessarily the case that this peak is a fortuity? Is it plain luck that Boston now features the nation's best squads? What if it's not luck?

It's not luck. It's law. Boston's teams are among the best this year and, if the laws of sports have anything to do with it, will remain among the best, maybe forever. How does the law contribute to Bostonian dominance? Here's how:

1. The best article in the history of sports law was not written by a lawyer. Simon Rottenberg, a professor of economics, writing several years before Ronald Coase gave us his supposedly seminal paper (which paper was the primary basis for Coase's Nobel award), wrote "The Baseball Player's Labor Market," published in the Journal of Political Economy (1956). This is a great paper and a wonderful read. Basically Rottenberg's idea is that the initial assignment of property rights has no impact on resource allocation, all in reference to baseball players. To quote the paper, "It seems, indeed, to be true that a market in which freedom is limited by a reserve rule such as that which now governs the baseball labor market distributes players among teams about as a free market would." In other words, the rule of law (assigning property rights) doesn't matter; players will end up on teams that more highly value their services regardless of what particular restriction exists on the transfer of their contracts. (The idea that the law doesn't matter is dangerous thinking, if "danger" is defined as me losing my job teaching law.)

2. By the way, contrary to popular belief, there is no Nobel Prize in Economics. The Economics prize was first awarded nearly 70 years after that in the other disciplines, and bears a different name (and is signified by a different medallion) than the other prizes. See the full account in Wikipedia, here. (I include this point to settle a bet; I won!) Also by the way, Coase's paper, called The Problem of Social Cost, stands as the most-cited academic article in the history of legal scholarship. Coase of course was also not a lawyer. The fact that both Coase and Rottenberg were not lawyers is pure coincidence, unlike Boston's sports dominance.

3. So Rottenberg's Theorem (as TSLP will henceforth call it) suggests that, when figuring out which teams have the best players (and thus the most wins) , we should try to figure out which teams most highly value those players. The law either is irrelevant to the distribution of players (one strong reading of Rottenberg's Theorem) or at best should grease the skids to bring about the transfer of players to their "best" teams as cheaply and costlessly as possible. Do we see this? Do we see the rules of sport helping to bring the best players to the best markets?

4. Start with major league baseball. MLB has several rules that encourage parity among teams: the worst teams draft first, the poorest teams receive revenue sharing, the highest-payroll teams pay a luxury tax. Some of these "parity rules" backfire, however. Losing teams get premium draft choices, true, but these teams are prohibited from trading those choices. This rule is supposed to help ensure that these teams get great players, but it actually diminishes the value of those draft choices. Poor teams often have to pass on the best draftees in favor of lesser players who are more signable. (The high cost of the best draftees would require the poor teams to risk too much money on one player.) Other MLB practices also counteract the parity goal. Teams share revenue and some pay a tax, but baseball's lack of a salary cap allows teams to increase their payroll without limit. Although MLB has a league-wide television contract in which all share, teams are allowed to sell television and radio broadcasts of their games locally, thus providing a huge revenue boost to teams in large, fan-crazy markets.

The final rule that in the end helps the best players go to the biggest markets is the (commissioner's) rule, stemming from Bowie Kuhn's 1976 decision to void the sale of several Oakland A's stars to the Yankees and Red Sox, that prohibits including more than a few million dollars in any player transaction. This rule keeps the poor teams down. Instead of being able to sell their young stars for cash (something like the 50 million dollars the Red Sox coughed up for the contract rights to star pitcher Daisuke Matsuzaka of the Japanese league) which could then be invested in established major league players, poor clubs are obliged to take back most of their trade revenue in the form of risky minor league players. The cash limitations only further impoverish the poor teams. Nice, if the Sox are in Tampa Bay and need to pile up some wins.

5. Let's assume the people who run MLB are not stupid. It seems pretty clear that the various rules of the game basically ensure that baseball hotbeds like New York and Boston will be able to capitalize on their economic advantages. These rules also make it difficult for the poorer-market teams to stand in their way. Indeed, why wouldn't MLB want to have strong teams in big markets like Boston and New York? Don't all the teams profit, if indirectly, from the Yankees' big profits, both from revenue sharing and from large gates when New York is in town? Baseball would be crazy to run its league any other way.

6. To shorten this up (the internet is nearly full), similar sets of rules are afoot in the NBA, thus again helping to ensure that winning teams are to be found in the best markets. The NBA has a "soft" salary cap and a steep luxury tax in place to help maintain competitive balance. Nevertheless, wealthy teams can spend over the tax threshold if they are willing to pay. Thus, exceeding the tax line provides an explicit and tacitly approved method for the wealthy teams to generate competitive advantages. (The Celtics, naturally, went well over the tax threshold in acquiring its many star players this off-season, especially with respect to James Posey, a valuable substitute player whose entire contract is "taxable" at twice its amount.) Now of course the fact that the NBA has more limits than MLB makes it harder for the wealthy teams to translate their wealth advantages into wins. (As I write, the New York Knicks provide some evidence of this, although I'm sure a winning streak will start any day now.) How is the NBA served by having a bad team in New York but a strong one in New Orleans, where no one comes? Here's the problem with Rottenberg's Theorem: it's correct, but it does require low transaction costs for players to wind up on the team that values them most. The NBA is full of transaction costs, namely the rule that unnecessarily limits trades according to the salaries of the players traded, requiring rough equivalency. The NBA also precludes the trade of draft picks in consecutive years. This is crazy. Look for the NBA to iron out these transaction costs by eliminating some of these impediments to trades. We'll get a winner in New York somehow.

7. Yes, even the parity-crazed NFL has its Rottenberg examples. A rigid, hard salary cap, even-steven revenue sharing, exclusive national contracts the proceeds of which are equally divided, league-wide merchandising, etc., yet still, the wealthy teams do have opportunities to exploit their wealth. How? Teams may get the same revenue, but they vary in their value of the franchises. The Cowboys and Patriots, for instance, have a much greater franchise value than do the Cardinals or the Rams. Robert Kraft and Jerry Jones cannot, under the strictures of the cap, offer players all that much more in salary than their competitors. But they can offer benefits that are uncapped, such as superior training facilities, stadium quality and comfort, and, most importantly, coaching acumen. Coaching salaries are uncapped, so teams can compete for players in that market. Owners know that, despite the requirements that they share much of their revenue, their investments will still pay off in increased franchise values. As franchise values continue to skyrocket, look for owners of the most valuable franchises to continue to acquire the most valuable players.

8. For a long time it's been accepted as a given in the world of sports law scholarship that league games are a joint good, and that both teams to a contest benefit financially from close competition. Fans wouldn't come to games, the argument ran, unless both teams had a roughly equal chance of winning. Boston's stunning success questions that bromide. Parity may be overstated.

9. It's often thought that the snazzy NFL represents the future of sports, supplanting the NBA in the wake of Michael Jordan's retirement. Maybe not; think again of the claimed need for parity. Of all the sports, baseball would seem to be most in need of close competition. Baseball stages many games over a long season, with teams typically visiting the home team for a three- or four-game set of matches. That's a lot of baseball to sell. Yet among the major sports, baseball has the fewest parity rules. (Perhaps some level of parity is inherent in the game itself, as even the best teams win only about 60% of the time.) Perhaps it's MLB, the much maligned, antiquated old grandpa of the modern sports, that has it about right: it has set up its rules in such a way as to make pretty sure that strong teams are fielded nearly every season in its best markets. The NFL, on the other hand, with the most parity rules, may be the league least in need of parity. The Patriots just won 100% of their games, while at the same time becoming the NFL's dominant television feature. I thought we needed parity because everyone would be bored otherwise? Not so; instead of parity among teams, what may be more important is that the biggest markets have the best teams.

10. Bostonians love sports, and will pay to watch them. Economics matters; sometimes rules don't. Look for Boston to field winners for a long, long time.

Why Study Sports Law?

2008-01-14T12:52:00.000-08:00

Recently over at some of my favorite websites geared to sports economists, an interesting discussion arose over whether or not and why a trained economist should spend his days studying sports. The biggest downside to the study of sports is that, apparently for an academic economist, the subject of sports economics veers dangerously close to career suicide. The upside? Here are the initial thoughts, posted by economist Justin Wolfers on the Marginal Revolution site. Although you can judge for yourself, Wolfers basically says sports is interesting, fun, culturally significant and (probably most importantly) produces lots of decision-points that are transparent and thus ripe for study. (Wolfers also says sports-lingo is great for classroom analogies, but this sort of thing is considered a problem in law teaching, not a virtue.) Other economist-bloggers have weighed in. See here, here (suggesting that, because sports research is fun, others think it can't be work) and here (sports economics is instructive).

That's fine for sports economists. But more importantly, what about me? Should an academic lawyer study sports? Is it okay to have fun at work? In other words, will I make tenure?

1. First, some frank career advice for want-to-be sports law professors. If you are poking around for a job as a law professor, either as a newbie or a lateral transfer, it is clearly to the better if you do not sell yourself as a specialist in sports law. The best bets? Unless you're a hugely well-credentialed faculty candidate, go for one of the business areas, such as commercial law, securities law or taxation. These are always need subjects for law schools and most professors don't want to teach them. If you think you can swim with the big fish and are willing to court failure (or banishment to a low-tiered law school), then go ahead and declare yourself ready to write in federal courts or constitutional law or criminal procedure. Fun areas, lots to read and write, but everyone is here or wants to be here. A candidate in constitutional law, for instance, competes for a position both with other novice candidates and with entrenched professors who have long had their covetous eye on that open course. Finally, if you don't have the credentials for one of the big ponds and just can't in good conscience bring yourself to teach business law, you might try to get lucky with a hot "boutique" subject, such as intellectual property or environmental law. Although you'll have precious few potential job openings, you will get a favorable reception and face diminished competition. But representing yourself as a specialist in sports law? Sports law is a very small boutique, but it's not hot. No big fishes swim here: most of the sports law scholarship is descriptive at best. No law faculty in America, in assessing its needs for the coming hiring season, will put sports law on the list. Career suicide? You can't kill a career you won't even get started.

2. So how did I come to sports law? I spent the first half of my career (that's assuming I live to at least 100) specializing in criminal procedure, writing the long articles for the big publications. Great field, until the O.J. Simpson verdict coupled with a series of Supreme Court decisions on the federal sentencing guidelines killed my faith in the system (that would be OJ) and my interest in sentencing law (that would be the Supremes). I went from caring deeply to not at all. What to do? I considered resigning my post and returning to my first professional love (litigation practice: I like to argue), but cooler brain regions prevailed, so I decided to cast about for a new academic field. Feminist jurisprudence seemed full-up, so here I am, thanks to an agreeable dean and a lifelong interest in sports. I suspect my story is not unusual: many tenured-up professors like me sneak in to sports law from the side door. For beginning law professors who want to write about sports law, often they will hide their true interest, promising overworked hiring committees a lifetime's interest in business law or civil procedure or something. Sports law is presented as an insignificant part of the teaching package, only to become the primary focus of scholarship a little down the road, when one hopes hiring committees have lost their institutional memory and have no members in common with the tenure committee. So these professors sneak in too.

No one comes through the front door into academic sports law.

3. So why do it at all? Why devote your career to teaching, studying and writing sports law? We lawyers cannot simply piggyback on the economists here. Lawyers study law, we don't model human behavior (we just presume it), and so sports presents no special opportunity to cull data. Even worse, the collection of rules and statutes that apply solely to sports (such as Title IX) that are properly described as "sports law" are few and unrelated. Law professors usually refer (quite inexactly) to all kinds of legal doctrines as "sports law" to the extent those legal doctrines affect sports (such as the application of antitrust law to sports leagues). Thus sports law in this looser sense is little more than the application of all of law (theoretically) to sports situations. A legal subject that theoretically includes all of law is no subject at all. So to profess to make "sports law" one's particular field of study usually means, for most law professors, that they study some distinct area of law (antitrust, labor, first amendment) as that distinct area applies to sports issues. These folks are not really studying and professing sports law, not as it might be, as a separate and intellectually coherent body of law. To profess sports law per se, in a conception that imagines it as a distinct body of law, requires some substantial justification.

4. Here's my justification: I profess sports law because it needs it. Sports law is exactly what its critics charge: an incoherent, undeveloped, underwritten, poorly described afterthought in the law school curriculum. There is no "sports law" because no one's done the work to adequately develop it. Perhaps its current plight suggests that no coherence is possible, that sports law is and will remain a discrete series of issues resistant to abstraction and generalization. But the same might have once been said of the law of commerce or the law of the environment. There seems to be enough similarity in the organization of our sports leagues and even the structure of our games to generate a similar uniformity of structure in the relevant legal doctrine. Sports leagues and competitions entail a unique blend of cooperation and competition and thus might deserve a unique set of legal doctrines. It may take me well past my 100th birthday to make progress, but I do hope to be part of the effort to create the law of sports.

5. And sports is fun.