Podcast Links to Interview on Sirius Radio

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

(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 outlaws 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

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

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

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

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

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.