Gabibbo Talks Its Way to Victory over Big Red

Back in February 2004, Greg wrote about Western Kentucky University suing Mediaset, the television company run by Silvio Berlusconi, the richest man in Italy and the country's then Prime Minister, for trademark and copyright infringement, claiming that Gabibbo, the mascot for the satirical show "Striscia la Notizia" is a carbon copy of Big Red, the Western Kentucky mascot since 1979. The suit sought $250 million in damages.

Over on his excellent blog, Sports Biz, CNBC's Darren Rovell writes about Western Kentucky losing in an Italian court, in large part (apparently) because Gabibbo talks and Big Red doesn't.

Here is an excerpt from Darren's piece:

As many of you know, the legal standards vary depending on where you are, but in Italy -- at least according to a Italian judge's ruling earlier this month -- Gabibbo is similar to Big Red, but he is not Big Red. That means that Mediaset owes nothing to the Western Kentucky, ADFRA or Crossland.

I haven't had the 90-plus page ruling translated yet, but the summary I got from the plaintiffs was that the main difference is that Gabibbo talks and Big Red doesn't.

I can't let this go without saying that there's politics behind every story. Mediaset is owned by Silvio Berlusconi, Italy's richest man, former prime minister and, as sports fans have come to know him, president of A.C. Milan. Despite what they are up against, sources tell CNBC that WKU, ADFRA and Crossland Enterprises will file an appeal by Jan. 20.

For the rest of the post, click here.

New Sports Law Scholarship

New scholarship over the past several weeks:

Dana Howells, Note, Log me in to the old ballgame, 22 BERKELEY TECHNOLOGY LAW JOURNAL 477 (2007)

Kelly P. O'Neill, Note, Sioux unhappy: challenging the NCAA’s ban on Native American imagery, 42 TULSA LAW REVIEW 171 (2006)

Joel Michael Ugolini, Even a violent game has its limits: a look at the NFL’s responsibility for the behavior of its players, 39 UNIVERSITY OF TOLEDO LAW REVIEW 41 (2007)

Broadcasting the Patriots - Giants Game

The saga of the right to telecast Saturday evening's game between the New England Patriots and the New York Giants ended in a strange, but satisfying conclusion. The game, to be broadcast on two terrestrial television networks, one niche cable network and even a local independent station or two, guarantees maximum exposure for a potentially history-making game. A victory by the Patriots guarantees them a perfect season at 16-0.

Not only are the fans served well, but the NFL gets slapped. After years of masterly hardball tactics in negotiating ever more lucrative broadcasting deals (to the tune of $3.7 billion annually under the present agreement), it overplayed its hand with regard to its cable service, the NFL Network. A relatively new venture, the NFL Network is available on select cable systems covering about 50 percent of the cable households. Cable operators such as Time-Warner have balked at including it in their systems because of ongoing disputes over fees and placement, meaning whether the service would be on some kind of "basic" tier or would it be an additional pay tier, like, say an HBO.

By coincidence, this game was originally going to be covered by the NFL Network, meaning that millions would not be able to see the game. When a game is on the NFL Network, the only non-subscribers that can see are those from the local markets of the particular teams, where the game can be simulcast on a local over the air station. In New York, that station was going to be WWOR-TV Channel 9.

The NFL, acting in traditional high-handed fashion, rejected any change in this arrangement until this week, when the outcry -- from fans, commentators, and members of Congress -- was such that the NFL had to back down. So he NFL decided to do something unique -- broadcast the game nationwide on two terrestrial networks: CBS and NBC. They will simulcast the game from the NFL Network, but such an action would be the first time since Super Bowl I that a joint network telecast will occur.

But the problem is not solved. WWOR in New York is angry about this arrangement and possibly, an equivalent independent station in the Boston-Manchester market is as well. WWOR plans to also simulcast the game, but there is a real question of how many fans will watch that broadcast and how much advertising loss will occur for that station.

The result: a total of three networks will cover the game: CBS, NBC and the NFL Network, coupled with one or two additional local stations.

Enjoy!

(Postscript: I recall that at the very beginning of the 1967 Super Bowl I game, NBC had technical difficulties and was off the air for 30 seconds to one minute, driving millions of viewers to CBS. I would appreciate it if anyone can confirm the truth of this statement.

UNEQUAL TREATMENT UNDER THE LAW

In 1986, Congress passed the Anti-Drug Abuse Act which, among other things, mandated sentences for offenses involving crack cocaine to be 100 times more severe than for crimes involving powdered cocaine. Many have seen this disparity in sentencing guidelines as reflecting the similar disparity in the way the law treats the poor and the not so poor. Whether true or not, crack cocaine is typically associated with urban neighborhoods while powdered cocaine is seen as the drug of choice in the Hollywood hills and townhouses of Manhattan.

What does this have to do with Sports Law?

A major impetus for the Anti-Drug Abuse Act was the death earlier that year of Len Bias, the University of Maryland basketball star and number one pick of the Boston Celtics. Bias reportedly died of a cocaine overdose.

And today, the Washington Post is reporting the tragic story of Willie Mays Aikens, the former Kansas City Royals first baseman noted for being the only player in baseball history to hit two homeruns in a game twice in the same World Series. In 1994, Aikens was sentenced to 15 years in prison for possessing 64 grams of crack cocaine, about the weight of a candy bar; to receive a similar sentence for possessing powdered cocaine, one would need to be caught with more than 6 ½ kilos or more than 14 pounds.

Aikens has become the symbol of what many see as the unequal treatment of the poor and minorities in America’s judicial system. As he told the Post, "The disparity, as far as I'm concerned, is totally wrong. This took me away from my family. My girls were 4 and 5 years old when I was sentenced. Now they're 18 and 19."

Aikens is not scheduled to be released from the federal penitentiary in Jessup, Georgia until 2012.

Introducing Blog Justice

Alan Milstein and his law firm, Sherman Silverstein, Kohl, Rose & Podolsky, have started a new blog that will be of interest to many of you: Blog Justice. It will examine legal issues that intersect with social justice. While Alan is regarded by many as the nation's leading sports litigator (he has litigated on behalf of Allen Iverson, Eddy Curry, and Maurice Clarett, among other prominent athletes), he has received even more acclaim for his litigation in the areas of insurance law, products liability, bioethics and clinical trials litigation. Perhaps his most notable case was his representation of the family of Jesse Gelsinger, an 18-year-old who died during an early gene therapy study at an Ivy League university. Alan's expertise on these issues will no doubt prove illuminating when examining various legal topics.

Consider some of the first posts on Blog Justice:

Bad Blood Redux (questioning the FDA knew that a company testing the safety and efficacy of the artificial blood substitute Polyheme would draft primarily African-Americans as test subjects)

Tragic Pittman Case May Land In The High Court (discussing the tragic case of Christopher Pittman, who was 12-years-old when he shot and killed his grandparents while using the drug Zoloft)

New Jersey Repeals Death Penalty (discussing the end of the death penalty in the state of New Jersey)

There are many other great posts on Blog Justice. Be sure to check them out.

JUSTICE DELAYED IS JUSTICE SERVED

A state judge in Baton Rouge, Louisiana granted a request to adjourn a personal injury trial scheduled to start the same day LSU plays Ohio State in the BCS national championship game. The defendant’s attorney, Stephen Babcock, requested the delay claiming he had tickets to the January 7^th game at the New Orleans Superdome. In his request for adjournment, Babcock wrote: “All counsel to this matter unequivocally agree that the presence of LSU in the aforementioned contest of pigskin skill unquestionably constitutes good grounds therefore. In fact we have been unable through much imagination and hypothetical scenarios to think of a better reason.” In his papers, Babcock referred to the Buckeyes as “Slowhio . . .due to their perceived lack of speed on both sides of the ball.”

I have my own reasons for rooting against Ohio State, but this gives me one more.

Fantasy Baseball Implications of Mitchell Report

Over on his blog, SportsJudgeBlog, attorney Marc Edelman has an excellent look at how the Mitchell Report might impact fantasy baseball in 2008. He has five key points, here are the first two:

1. Players Named in the Mitchell Report will Likely be Underrated in '08. Many fantasy owners are going to predict a decline in the statistics of players named in the Mitchell Report. Don't be one of them. The findings in the Mitchell Report are distant in time, and they only focus on a few teams based on witness availability (Mets, Yankees, Orioles, Giants, Athletics). Therefore, the Mitchell Report is not likely to help predict the specific players that will lose their power or velocity next season.

2. Don't Trust Anybody Over 35. Before 1995, it was very rare to find a power surge or velocity increase in any player over 35. Recently, we have seen examples of both. However, most of the players experiencing a renaissance in the twilight of their careers were cited in the Mitchell Report for allegedly doping. Without assessing the merits of any individual allegation, I would move any player over age 35 down a tad my draft list. (Unless, of course, the player is a knuckleball pitcher such as 41-year old Tim Wakefield).

For the rest of Marc's piece, click here.

More on the Knicks and Fan Speech at the Garden

Stefan Fatsis of the Wall Street Journal, who does an outstanding weekly Q&A on "All Things Considered" about the business of sport, talked Friday about the Knicks recent actions to stop Garden fans from criticizing the team, the players, the coach, and anyone else fans might want to criticize. Fatsis and I spoke at length about my work and arguments about cheering speech and he gave a nice shout-out to this blog on the segment.

Paradoxically, this could be the incident to draw public attention to the protected nature of cheering speech and what should be the real limits on teams' ability to restrict fan speech. Although there is no First Amendment issue here because of the private nature of the Garden, it is receiving more attention (because it is New York, the Knicks, and the Despised Isiah Thomas) than any of the other cheering-speech incidents that I have written about previously.

Overall Thoughts on the Mitchell Report

I have a FindLaw guest column today giving my full thoughts on the Mitchell Report, helped along by some of the posts and comments on this blog in the past week.

Quality of Evidence in the Mitchell Report

Howard and I are interviewed by Jimmy Golen of the Associated Press in an extensive piece he has written on the quality of evidence found in the Mitchell Report. Jimmy has a law degree from Yale Law School and he brings a particularly insightful perspective to legal issues involving the Mitchell Report. We hope you take a look at his piece.

When Will They Ever Learn?

Count the New York Knicks as the latest team to think it is a good idea to restrict fans from criticizing an incompetent coach, team, and organization. The New York Times reports on two recent examples. (H/T: Deadspin). Last week, a fan was moved to a new seat and issued a written warning for heckling Head Coach Isiah Thomas; the card read "You are being issued a warning that the comments, gestures and/or behaviors that you have directed at players, coaches, game officials and/or other spectators constitute excessive verbal abuse." On Monday, a fan had a "Fire Isiah sign" confiscated, pursuant to a policy that prohibits signs that block the views of other patrons.

No First Amendment problem here; the Garden is privately owned and privately financed, so the Knicks can control fan speech however they want. And at least the sign policy is content-neutral, thus likely valid even in a publicly owned arena.

But at some point won't teams figure out this is not worth it? In exchange for removing one sign that probably was not blocking anyone's view (see above), the team gets more bad publicity and it sent the fans into the streets, literally: A "Fire Isiah" rally was held on the 7th Avenue side of the Garden today, complete with an 8-foot-tall pink slip. Maybe the Knicks are so desensitized to bad publicity at this point that it does not matter.

But professional sports teams sell themselves to the community as a public good; that is the argument for obtaining public financing of stadiums and other public support. In exchange for that, teams ought to expect some criticism from fans when they run that public good into the ground.


Update: 7 p.m. C.S.T.:

ESPN story on the protest, which drew about two dozen people. You can see the 8X4 pink slip in the photo.

Using a Libel Lawsuit to Test the Mitchell Report's Credibility

Here’s a thought. Many of us here have written that a libel suit against George Mitchell, his firm, and his “informants” would have little chance of success because the players are all public figures. If the maligned players want to clear their name, it makes sense for someone to file a law suit just for the purpose of being able to cross-examine Kirk Radomski and Brian McNamee, which I would think would be ‘easy pickins.’ He could then release the deposition transcript to the media or to Sports Law Blog and we could all judge the credibility of these charges.

"Fundamental Fairness in Union Regulation of Sports Agents"

That's the title of my latest article published this month in Connecticut Law Review, which can be downloaded from here. By now you may be tired of my views regarding the agent biz, as well as my disdain for lack of due process generally. Well, this piece combines both, and addresses whether the agent regulations unilaterally adopted by the players associations afford agents a fundamentally fair enforcement process when the agent is accused of misconduct by the union. This issue involves a complicated interplay of multiple bodies of law that govern the unique tripartite player-union-agent relationship, including Section 9(a) of the NLRA, basic notions of due process, the laws governing private associations, contract law and the Federal Arbitration Act (FAA).

My article compares and contrasts various provisions contained in the agent regulations of all four players associations. While I certainly acknowledge the union's compelling interest in combating agent misconduct and that the union should be afforded deference to enact and interpret its own rules and regulations, I am only willing to stretch those concepts so far. In my view, there are two provisions particularly concerning from a fundamental fairness standpoint: a provision that permits the union to suspend or revoke an agent's license prior to a hearing when the union determines that "extraordinary circumstances" warrant it; and a provision that allows the union to unilaterally select the arbitrator to decide all agent appeals. My article opines that the first provision violates basic notions of due process because suspension of an agent's license not only directly and immediately impairs an individual's livelihood but can cause irreparable damage as well, and that the second provision is invalid under the FAA on grounds of both procedural and substantive unconscionability. I conclude that neither provision is essential to preserving the union's legitimate Section 9(a) interest, and should therefore give way to the agent's compelling interest in a fundamentally fair enforcement process.

If you're looking for something to read over the holidays, I hope you'll check it out.

Dimino on Punishing Steroid Users

Mike Dimino at PrawfsBlawg argues that players found to have used steroids should receive lifetime bans for threatening the integrity of the game. The post and the ensuing comments are worth a look.

Christmas Came Early for Mitchell's Law Firm

In the prior posts, a number of you criticized the shoddy work product created by Sen. Mitchell and his law firm DLA Piper. In reading the report (aka term paper?), which was ripe with secondary sources as footnotes and with proposals for change that very so general that a reasonable person could figure them out, it made me think: how much in legal fees did Mitchell's firm earn producing this piece of work? From what I heard, there was no budgetary limits imposed by Major League Baseball over the last 20 months.

I do not know how many people -- partners, associates, paralegals, secretaries, others -- were involved in preparing the report. Does anyone know about how many were involved and what the hourly rates are at DLA Piper? I figure the fees almost certainly would be in the millions. Can anyone venture a guess?

Given such a public and in some cases damaging report, isn't there a duty to disclose how much DLA Piper was paid for their work.

In any event, I'll bet that the partners will have a very happy holiday.

Milwaukee Journal Sentinel Empirical Study of Players Named in Mitchell Report

The Milwaukee Journal Sentinel has conducted an empirical analysis of the statistical performances of the 90 players named in the Mitchell Report. The study, conducted by JS writers Ben Poston, Derrick Nunnally, Bill Glauber, and Don Walker, compared the players' first two seasons while being linked to performance-enhancers with their career averages.

Acknowledging that there may have been other casual factors (e.g., entering one's prime, hitting in a better lineup, receiving better coaching etc.), the study found that more than half of the named players experienced improved performances after being linked to roids. A full image of the chart to the left, which details the findings, can be seen here. The authors interview Gary Wadler, an internist who chairs the World Anti-Doping Agency's Prohibited List and Methods Sub-Committee, and me, for reaction.

Also, Tim Lemke of the Washington Times has an extensive piece on the prospects for a libel lawsuit, should any players be erroneously named or described in the Mitchell Report. He interviews MLBPA chief Donald Fehr, Jim Astrachan, an adjunct professor at the University of Maryland College of Law, and me.

Update: Alan Milstein discusses some interesting stories below in the comments:

Pettitte says he had two shots of HGH to see if he would heal faster, based on the recommendation of a trainer. Considering HGH was not a banned substance, how can anyone fault him for taking a drug to heal better? Don't we all do that?

Donnelly says he called Radomsky who recommended a steroid and he declined. He also said he was a marginal player who is now out of baseball and is sickened that his name has been tarnished.

David Justice, who I always thought was a class act, says the informant is lying and wonders how come there is no copy of any check he wrote when the report has copies of other checks? Good question. The answer is because there is no justice for Justice.

Mitchell and DLA Piper have done a real hatchet job here. They should be lambasted, not applauded. While a libel suit would be tough because the players are all public figures and because the law firm can say it in good faith relied on what the sources reported, the court of public opinion is a different story. Did some players take steroids or HGH? I'm sure they did. But, as a lawyer, I am more disappointed by the work product of Mitchell's team than I am of my home baseball team.

Alan Milstein

Jenkins Ruins USADA's Perfect Record

On Friday, a AAA arbitration panel in the case of United States Anti-Doping Agency v. LaTasha Jenkins ruled in favor of 2001 world track medalist LaTasha Jenkins, who had been sanctioned in 2006 for using the anabolic steroid nandralone but now has the option of resuming her effort to try for the 2008 U.S. Olympic team. The arbitration panel ruled that the results of Jenkins' positive doping test from a track meet in Belgium last year were compromised because both European labs testing her sample violated World Anti-Doping Agency rules that require the tests be run by two different technicians.

Jenkins was represented in the case by the Valpo Sports Law Clinic, which is directed by Professor Michael Straubel of the Valparaiso University School of Law. In the law school's press release, Professor Straubel stated:

This addresses a crucial issue emerging in sports law. Has the science been done well? Anti-doping enforcement relies heavily on still-developing science. The standard these labs violated is a safeguard that prevents labs from providing doctored results to mask testing process error or to intentionally harm the athlete’s standing. The burden of proof is on the laboratory to demonstrate that both the science and ethics of the test were properly managed. Assertions of propriety are partial and therefore not reliable proof.

According to USADA CEO, Travis Tygart: "USADA is not the judge. At the end of the day, independent arbitrators make a decision through an established process that's designed to protect the accused athlete's rights. They base the decision on the evidence presented."

According to the press release, USADA's overall record fell to 36-1.

Something else that is W's Fault

Jack Balkin argues that the entire steroids mess can be traced back to Bud Selig's refusal to step aside back in 1992-93 and let George W. Bush become commissioner.

Bonds and Clemens, Distinctions and Differences

I have not yet written about the Mitchell Report at length; I am working on a longer piece for FindLaw for next week (in between showing my daughter her first snowfall) and will link to that. I did want to jump in quickly on the comparisons between Barry Bonds and Roger Clemens. The two now are inextricably linked forever in baseball history--the greatest pitcher and the greatest hitter of this generation both used performance-enhancing drugs. And both experienced similar late-career resurgences and high-level performances past the age of 40--although we now have evidence that both were drug-enhanced.

Michael noted a post by Paul Butler at BlackProf arguing that the charges against Bonds should be dropped, in light of the revelations about Clemens, that this is another example of racial inequality in the way the criminal justice system handles drug crimes. And the disparity of treatment between Bonds and Clemens has been a recurring theme in the blogosphere.

I want to disagree up to a point.

I agree that we (the press, the fans, etc.) were much more suspicious of Bonds's late-career revival and body changes than Clemens's--whether for reasons of race, non-New-England-based love of Clemens, dislike of Bonds personally, or a combination of all four.

But I reject the notion that the federal government is acting in a racially biased fashion if it continues to prosecute Bonds in light of the revelations about Clemens. Bonds is not being prosecuted for using steroids. He is being prosecuted because, having (allegedly) used steroids, he was a material witness to a grand jury investigation of the producers of PEDs (BALCO) and, testifying under a grant of immunity, he lied to the grand jury about his steroid use.

This is not a distinction without a difference. If Brian McNamee (Clemens's former trainer and his purported steroids source) is prosecuted for distributing steroids, Clemens testifies and denies using steroids in the face of what we now know, and the government does not, at least, investigate Clemens for perjury and obstruction of justice--then I will agree that something might be amiss. On the other hand, if MLB punishes Bonds for using steroids and does not punish Clemens, it might suggest some racial bias. Failing either of those two situations, Clemens and Bonds are not similarly situated.

Leaving the Falcons' Nest: A Tort in the Making?

The news that Bobby Petrino left the Atlanta Falcons for the Ivory Tower at Arkansas ranks as the piece de resistance of a year of turmoil for the team. With Michael Vick gone, the team sank to a 3-10 record, and Petrino, like a rat on a sinking ship, decided to bail out -- despite a five-year $24 million contract.

To add more acrimony, team officials claimed that Petrino was negotiating with Arkansas without permission, a breach of etiquette, to say the least. According to the New York Times, Petrino's rationale for leaving was because his "family was struggling" with the team's losing season. For almost $5 million per season, that's a stress that many families can live with.

But what can the Falcons do? The NFL has no jurisdiction over Arkansas, but team owner Arthur Blank has recourse in the courts: the venerable claim of tortious interference with contract. Although minor differences may exist from state to state, the following elements must be found:

(1) The existence of a contractual relationship or beneficial business relationship between two parties.
(2) Knowledge of that relationship by a third party.
(3) Intent of the third party to induce a party to the relationship to breach the relationship.
(4) Damage to the party against whom the breach occurs. (Source: Wikipedia)

I think that a good case can be made. The key requirement is (3) and I think that may not be that difficult to prove. If Arkansas officials knew about Petrino's unhappiness and induced him to leave for the confines of Fayetteville, they exercised unethical and tortious conduct, along with bad faith. Damages -- finding a replacement, dealing with the negative effect on the team, a possible loss of fans and ratings -- may well be shown.

As quarterback Joey Harrington said: "He [Petrino] preached team and he preached family and then he quit on it. . . He lied to us." To Mr. Blank, who was quoted as being "betrayed" by this act: don't get mad, get even.

More Good Stories on the Mitchell Report

The Mitchell Report has generated a bevy of excellent news, media, and blog stories. To add to those mentioned in previous posts, check out:

• Geoff Rapp has some terrific comments in a piece today by Tim Lemke of the Washington Times.

• Don Walker of the Milwaukee Sentinel Journal examines the quality of evidence used to implicate players. He interviews Marquette Law Professor Matt Mitten and me for his piece.

• George Washington University law professor Paul Butler, in a post on BlackProf entitled Free Barry Bonds, argues that "If the other players [named in the Mitchell Report], most of whom are white and Latino, do not face criminal charges, the prosecutor should drop the charges against Bonds."

• Willamette University law professor Jeffrey Standen, in a post on Sports Law Professor entitled Mitchell Report Reactions, argues "The report names a lot of players; presumably many more are involved. At some point the law of diminishing returns kicks in and we no longer care."

• In a press release, Duke law professor Paul Haagen and Duke cultural anthropology professor Orin Starn discuss the desire the affix blame for the steroids problem.

• George Mason law professor Illya Somin, in a post on The Volokh Conspiracy, argues that George Mitchell did not have a conflict of interest in his role as director of the Red Sox. I argued the same on SI.com

Others' Thoughts on the Mitchell Report

I will have more to say about the Mitchell Report later. For now, let me note a few other commentators:

1) I agree with much of Alan's point that this turned out to be much strum und dranghttp://www.blogger.com/img/gl.link.gif about nothing, because the Report did not really tell us anything we did not know or at least suspect, beyond specific names (although I think I have less problem with naming names than Alan did). I also thought the divide between Mitchell ("move forward") and Selig (punishment on a case-by-base basis) was notable.

2) I second Rick's shout-out (in the Comments) to the Sean Gregory piece in Time.

3) Jack Balkin comments on the defamation issues for Roger Clemens here and why constitutional rules make it impossible for Clemens to use defamation law simply to clear his name.

4) Michael Dorf suggests that the one person who came out ahead here is Barry Bonds. First, we no longer can single out Bonds as a unique cheater, because others were doing it (this is not an excuse, but it takes the uniqueness out of the mix). Second, Bonds set his records against pitchers who themselves were juicing, suggesting that the playing field was, in some sense leveled.

5) To jump and answer a question from Jimmy H in the comments to Alan's post about the "leaked" report that included some big-name current players, including Albert Pujols: Again, defamation remains on the table, subject to NBC having done something to suggest it published the leaked names with knowledge or recklessness as to the truth of those players being in the Report.

6) See Jeff Lipshaw at CoOp taking the time to correct the media on what hearsay means and why most of the evidence in the Report is not, in fact, hearsay. I was yelling at Peter Gammons and John Kruk everytime they threw that word around without having the first clue what it means.

OVERHYPED AND UNDERWHELMED

After all that, this is what the fuss was about? Let’s take a deep breath and consider this Report by George Mitchell which ESPN headlined “Culture Shock.” A few facts would be nice.

First, despite what Mitchell says, baseball had no policy or regulation expressly banning steroids until September 2002, did not have testing with penalties until 2004 and did not ban HGH until 2005. Should Mark McGwire, for example, be vilified for taking androstenedione, a supplement that produced testosterone, when it could have been bought at the time over the counter by anyone and, of course, did not violate MLB rules?

Second, Mitchell did not test anyone, relied mostly on the word of New York Mets clubhouse attendant Kirk Radomski and hearsay from anonymous sources, and yet accused dozens of players by name of taking or using these drugs. Can you imagine any other professional endeavor or class of individuals subjected to such treatment? It is one thing if a player tests positive under rules he knows about and quite another to accept the unsworn testimony of a clubhouse staffer no one had the opportunity to cross examine.

Third, does anyone believe any player has made it to the major leagues who would not have if he had not taken such substances or that anyone is not in the professional ranks because he chose to abstain? Would Bonds have been passed over for any of his MVP awards without Balco’s products; would ARod have hit in the playoffs if he had used them?

Fourth, while the multi-million dollar Report provided a few big names such as Clemens, Pettitte and Tejada, most of the names were fairly mediocre players no longer in baseball. What good did it do to sully the reputation and integrity of these guys? What a low class shot for Mitchell and his law firm to take at athletes who played a few years, made a few bucks, and retired. Can we survey the associates at DLA Piper and see whether they have ever taken performance enhancing drugs to stay up for an all nighter or to party into the night?

Why does the public and the media continue to impose standards and rules on professional and college athletes no one else would stand for?

The hypocrisy is deafening.

Between innings, we listen to advertisements selling drugs to help us sleep, be less depressed, concentrate in school, have better sex, and degrunge our toe nails.

Colleges make millions off the sweat and hard work of their athletes in an archaic system that makes the Confederacy look like the beacon of free enterprise, all on the overstated promise that if they improve their performance they have a good shot at making millions themselves.

And now we are to be shocked and up in arms that a small minority of professional baseball players may have used artificial means to perform better.

Media, Law, and the Mitchell Report

I have a Q/A for Sports Illustrated on the Mitchell Report. I also have a couple of TV appearances, one with Darren Rovell on CNBC's Power Lunch and the other on CNN Headline News' Glenn Beck Show (it just first aired, and airs again at 9 PM and 11PM Eastern Standard Time, I appear in the first segment). Also be sure to check out Howard's chat on WashingtonPost.com.

Chat on the Mitchell Report

Earlier today, I did a live chat about the Mitchell Report on WashingtonPost.com.

I thought blogging was an off-the-cuff style of writing.

Mitchell Report is Up

The Mitchell report is available for download from MLB's web site. Deadspin is supposedly live-blogging Senator Mitchell's press conference.

Patriots v. Jets: Spies Like Us?

This Sunday the 3-10 New York Jets travel to Foxboro, Massachusetts to take on the 13-0 New England Patriots in what will be the teams' first meeting since the Jets complained about the Patriots violating the NFL gameday manual by having a video assistant tape the Jets coaches and players on the sidelines in Week 1. We had several posts on that topic, including a terrific one by Geoff entitled "Sign-stealing, Trade Secrets, and Corporate Espionage." The relevant rule reads as follows:

"No video recording devices of any kind are permitted to be in use in the coaches' booth, on the field, or in the locker room during the game . . . . [all video for coaching .purposes must be shot from locations] enclosed on all sides with a roof overhead."

Although the Patriots were apparently neither the first nor only NFL team to break this rule---former Dolphins and Cowboys head coach Jimmie Johnson admitted, "I know for a fact there were various teams doing this . . .that doesn't make right, but a lot of teams are doing this"---the Pats got caught red-handed, and it led to a severe punishment from Commissioner Roger Goodell: Bill Belichick was fined $500,000, the Patriots were fined $250,000, and, of greatest value, the team's 2008 first round pick was confiscated. The Patriots rule-violation has been great fodder for Patriots haters, who now believe the Patriots "cheated" (I guess any time a rule is broken, we can call that cheating? Or is breaking a rule just breaking a rule?).

Interestingly, Tom Rock and Bob Glauber of Newsday reveal that the Patriots caught the Jets breaking the same rule last season, but instead of telling the NFL, they apparently laughed it off:

According to league sources familiar with the situation, the Jets were caught using a videotaping device during a game in Foxborough last season that resulted in the removal of a Jets employee. After Gillette Stadium officials saw him using the recorder early in the game, he was told to stop and leave the area. He had been filming from the mezzanine level between the scoreboard and a decorative lighthouse in an end zone. The camera was not confiscated by the Patriots or stadium security.

Tuesday night the Jets admitted that they did videotape the game and their employee was confronted, but said they had permission from the Patriots to film from that location.

An NFL source told Newsday the league office is unaware of the incident, and that the Patriots did not bring it up during the investigation into the Jets' charges of illegal videotaping by the Patriots in September.

It always seems the Patriots get the last laugh. Not only are they 13-0 and perhaps headed for 19-0, but courtesy of an earlier trade, they hold the rights to the San Fransisco 49ers 2008 first round pick. As it stands now, that pick will be the 2nd overall pick, meaning the Patriots could go undefeated, win the Super Bowl, and then--right before the Jets pick 3rd--draft a potential franchise player like University of Arkansas running back Darren McFadden. Now that sounds like cheating!

Sharpton - Chicago Olympic Bid Update: Daley retorts; Abuse Settlement Advance

The following is an update on yesterday's post on the Rev. Al Sharpton's threats to lobby the IOC to not consider Chicago in its bid to host the 2016 Olympic Games if the City does not reform its policies of dealing with accusations of police misconduct.

The Tribune reported that later on Monday, the City Council's Finance Committee sent a proposal to the full council for approval of an advance on a $19.8 million legal settlement with four alleged torture victims of former police Cmdr. Jon Burge. When told of Sharpton's demands, which include stripping the mayor of the final decision in the firing and suspension of officers accused of misconduct, and releasing the complete records of police officers who have had repeated complaints of misconduct filed against them by African-Americans, the Mayor instructed Sharpton to "get in line".

Commenting on why Sharpton did not use the same tactic against New York, which has dealt with its own abuse problems within its police force, when the Big Apple was bidding for the 2012 Games, the Mayor responded: "It's interesting, nobody opposed New York -- very, very interesting. Why all of a sudden is it opposed here?" Specifically, Sharpton was a supporter for Abner Louima, a Haitian immigrant who was arrested and brutalized by NYPD officers in a police station restroom.

UPDATE ON 12/13/07: Thanks to Peter for the notice. Today, Federal agents issued subpoenas for financial records of Sharpton's non-profit and for-profit businesses, as well as his election fund from the 2004 Presidential Election, and personal financial records of Sharpton and his wife. As many as 10 Sharpton associates are to appear before the Grand Jury in Brooklyn, NY on 12/26/07. Merry Christmas, indeed.

Anticipating the Mitchell Report

Howard Bryant has a lengthy and detailed (albeit anonymously sourced) story at espn.com about the soon-to-be-released Mitchell Report and the various problems and intrigues that have confounded the now-20-month-old investigation. The article describes, among other things, pressure from MLB and the investigative team on GMs, trainers, strength coaches, and clubhouse managers to speculate as to possible steroid users. It also contains information suggesting that the investigators were unprepared to ask more than surface questions and did not know enough about the day-to-day life of professional baseball to ask the kinds of questions that would draw out meaningful information. Finally, there is a sense of competing views of the purpose of the report: While Mitchell's team seems to want to name names and expose past wrongdoing, many of the team employees and executives interviewed were hoping for a more remedial, forward-looking report on how to get steroids out of the game going forward. See also the sidebar Q & A with Lester Munson.

Whatever it says, the Report will have a lot of people talking.

Update: 9 p.m. C.S.T.:

A good story from John Donovan at cnn.si discussing what people in baseball are expecting. Donovan reports that only two active players--Jason Giambi and an unnamed player--spoke with investigators. The report also relies heavily on testimony from former Mets clubhouse attendant Kirk Radomski.

This story says that MLB received a draft of the report earlier Tuesday and release is expected on Thursday. It also reports that 60-80 current and former players are named, most off Radomski's testimony.

Michael Vick's Sentence: 23 Months in Prison, 3 Years Probation

Yesterday I did a Q/A on Michael Vick's sentence for SI.com. In addition to discussing the sentence--which will last for at least 20 and a half months--I discuss the prospect of Vick's state trial, the factors that will likely be considered by the U.S. Bureau of Prisons in where it decides to incarcerate Vick, and what Vick's supervised release following his prison sentence might entail. I interviewed Tom Hutchison, the chief of staff for the U.S. Parole Commission, for the piece, and he provided some great insight. I hope you have a chance to check it out.

I also contributed some comments to Jeff Barker for his piece in the Baltimore Sun on Vick's sentence. Barker also interviews University of Richmond law professor Carl Tobias.

Freakonomics and NBA Officiating

Ian Ayres has a piece in the November 2007 issue of the Economists' Voice urging NBA Commissioner David Stern to "give Freakonomics a chance" as a way to get to the bottom of whether there is pervasive point-shaving or other cheating by NBA officials. Ayres argues that the emerging field of forensic econometrics has been successful in presenting statistical evidence of misconduct, including match-fixing in sumo wrestling, possible point-shaving in college basketball, and racial bias among NBA officials.

Ayres current concern is the case of former official Tim Donaghy, who has confessed to gambling on games he officiated and to manipulating calls to benefit himself and other gamblers. The NBA has insisted that Donaghy was an isolated bad-apple employee. Ayres argues that the league should be more substantively transparent in order to prove to fans that they can trust the league and its officials. Releasing its internal officiating data (tracking which refs made what calls in each game) for study by outside forensic statisticians goes a long way to restoring that trust--whether by assuring fans that the league is, indeed, clean or by exposing more malfeasance and giving the league a chance to really clean itself up.

(Cross-Posted at PrawfsBlawg)

Quirky Clauses in Baseball Player Contracts

The Mental Floss Blog has put together an amusing list of odd clauses inserted into the contracts of certain major league baseball players. The Uniform Player Contract (page 210 etc. of the Basic Agreement), of course, permits "special covenants" of this nature, but some of these seem quite weird.

Test your knowledge by matching the contract clause to the player in the list below:

Players:

Roy Oswalt

Charlie Kerfeld

A.J. Burnett

Rollie Fingers

Contract quirk (team to provide...):

Nine limo trips for player's wife from Maryland to Canada

$100 worth of mustache wax

37 boxes of orange jello

Caterpillar Bulldozer

You can view the full list here.

Sharpton Threatens Chicago's Olympic Bid if Demands Not Met

Today, the Chicago Tribune reported an interesting news item out of the newly established Chicago branch of the Rev. Al Sharpton's National Action Network (NAN), which could present a challenge to Chicago's bid to host the summer Olympics. Chicago, the USOC's choice to bid for the 2016 Olympic Games, has recently had a number of controversies surrounding its police department involving both on-duty and off-duty (here and here) actions of its officers. Sharpton now seeks to link the Department's troubles with the Games.

NAN's Chicago branch has focused on addressing the relationship between Chicago citizens and the police department, and with the Tribune's special report addressing the justification rate of police shootings that hit newsstands on December 5th ("Shielded from the Truth"), Sharpton is seizing the opportunity. The following is an excerpt from the Tribune piece:

"Chicago police shoot a civilian on average once every 10 days. More than 100 people have been killed in the last decade; 250 others have been injured. But only a tiny fraction of shootings are ruled unjustified -- less than 1 percent, police records and court testimony indicate. Despite these rulings, police shootings have led to $59 million in settlements and civil judgments against the city in the last decade, including nearly $8 million from just two jury verdicts in recent months."

I do not claim to have any expertise in the area of police conduct. In fact, these statistics may be on par with police departments nationally (any input is welcome here), and the relationship between the civil judgments and settlements may correspond with the justification statistics. As such, I am not attempting to open up a debate on this issue. My concern for purposes of this post is that to get the attention of Chicagoans, and Mayor Daley, Rev. Sharpton has targeted Chicago's bid for the 2016 Games as a way to draw attention to the issue of police misconduct.

Sharpton threatens that if his group's demands are not met, namely reform of the system by which allegations of police misconduct are dealt with, he will lobby the International Olympic Committee (IOC) to not consider Chicago's bid.

Sharpton's initial, specific demands are supposed to be announced later today, but his main focus appears to be the establishment of a civilian review board and to address police misconduct and the City's response to the same.

"Chicago 2016" is regarded by many to be Mayor Daley's lasting legacy if Chicago won the bid. To say nothing of the strength and worth of Sharpton's cause, he is attacking something very dear to the Mayor, many Chicagoans, and Olympic supporters.

A Letter to Tim Tebow

Dear Mr. Tebow,

Congratulations on winning the Heisman Trophy Saturday night, and you most certainly deserve it. I have been waiting for the appropriate time to discuss something with you (and similarly-situated high-profile collegiate athletes). Did you happen to catch the Associated Press release last friday, "Florida threatens legal action against sites selling Tebow items"? Your school has sent cease-and-desist orders to various web sites that are selling pictures, autographs, T-shirts, license plates and others items with your name on them, asserting that the web sites do not have your permission nor your school's permission to do so. It is understandable that your school would do that, because it does not make any money every time a non-licensed company sells something with your name or picture on it.

Third parties (including your school, the NCAA and EA Sports) are profiting immensely from the commercial use of your identity and celebrity status. But the NCAA and its member schools want you to think that you do not have a right of publicity in your identity. They accomplish this by telling you, and third parties using your name and/or likeness, that the NCAA bylaws prohibit you from profiting in this context. Buried in the current version of the 453-page NCAA Bylaws Manual contains the following pertinent provisions:

12.5.2.1 Advertisements and Promotions After Becoming a Student-Athlete. After becoming a student-athlete, an individual shall not be eligible for participation in intercollegiate athletics if the individual:
(a) Accepts any remuneration for or permits the use of his or her name or picture to advertise, recommend or promote directly the sale or use of a commercial product or service of any kind; or
(b) Receives remuneration for endorsing a commercial product or service through the individual’s use of such product or service.

12.5.2.2 Use of a Student-Athlete’s Name or Picture without Knowledge or Permission. If a student-athlete’s name or picture appears on commercial items (e.g., T-shirts, sweatshirts, serving trays, playing cards, posters) or is used to promote a commercial product sold by an individual or agency without the student-athlete’s knowledge or permission, the student-athlete (or theinstitution acting on behalf of the student-athlete) is required to take steps to stop such an activity in order to retain his or her eligibility for intercollegiate athletics.

Obviously, I understand the vital importance of maintaining your eligibility, and that your eligibility is determined by compliance with NCAA bylaws. These bylaw provisions make it clear that you may not accept payment for the use of your name or picture to advertise, recommend, promote or endorse the sale of commercial products and services, and that you and your school must try to prevent the use of your name or picture on commercial items. So the NCAA takes the position that it is o.k. for it and other licensed commerical entities to profit from jersey and video game sales because your name and picture are not being used in violation of these bylaws, and that, by them not using your name or picture, it also preserves the concept of "amateurism".

However, the fact that your name and picture are not being used by these entities in violation of NCAA bylaws does not mean that your identity is not being used in violation of your right of publicity. When my son put together his Christmas wishlist this year, he wrote down, "a Tim Tebow jersey." He did not say, "a Florida Gator jersey with number 15 on it." He also knows that the computer image of a UF player with #15 that has your build, hair color, facial features and skill level in the video game I paid $50.00 for, is in fact YOU. I can assure you that there is plenty of legal precedent establishing that the identification element is clearly met for a right of publicity claim.

So who do you enforce your claim against? Suing the NCAA after you just won the Heisman is probably not a good PR move. Besides, the NCAA would probably take the position that it and its member schools own the rights to the logos, team names, colors and numbers, and that those are the only rights they have licensed for use by third parties. If you sue the jersey and video game manufacturers, they will assert that they are not using your identity, but no court would buy that argument. And, in the alternative, they will assert that the NCAA granted them a license to use your identity. There are two problems with this argument. For one, the NCAA did not grant them a license to use your identity, they licensed the logos, team names, colors and numbers. But more importantly, the NCAA cannot grant such a license because it does not own the rights to your identity, and thus does not have the right to assign those rights for use by any third party.

That takes us back to the eligibility issue. If you sue these commercial entities, it should not affect your eligibility. By filing a lawsuit, you would not be accepting payment for the use of your identity in violation of the bylaws; you would be protecting your property rights in your identity from theft. Once you ultimately obtain a judgment, the NCAA could take the position that receipt of a judgment constitutes acceptance of payment. But by the time you receive that judgment, you will have already exhausted your eligibility. Your lawsuit could be the impetus for the NCAA to begin negotiating with its licensees for an annual royalty to be held in trust for the benefit of collegiate athletes in the future, without destroying their eligibility.

Sincerely,

Rick Karcher
Sports Law Professor


UPDATE 12/10:

P.S. Timing is everything. Last Wednesday, the NCAA formed a presidential task force to examine limitations on the future use of your name, image and likeness by your school, conference and the NCAA to promote the competition and events in which your school participates. You are the ideal person to suggest that this task force be adequately represented by student-athletes to ensure that this task force considers your interests in addition to the NCAA's interest.

Trouble on the Bonds Defense Team

Interesting story in the Wall Street Journal today about disarray on Barry Bonds's legal defense team, on the eve of Bonds's arraignment tomorrow on federal perjury charges.

According to the story, Bonds is finally trying to hire a criminal defense attorney with federal experience, having made due previously with a high-school friend/private inevstigator, a lawyer with a history defending police in state court, and a plaintiffs' lawyer, and the latter two do not like one another. The result has been several empty threats http://www.blogger.com/img/gl.link.gifof civil lawsuits, one against Curt Schilling and the other against newspaper reporters, and no clue that last month's indictment was coming. Apparently, part of Bonds's problem in finding a lead federal defense lawyer is his efforts to get reduced rates (one attorney he spoke with charges $ 900 per hour) and dispute over control of public relations.

Tomorrow's arraignment, while likely pro forma, could produce an interesting story.

Update, Friday, 1 p.m. C.S.T.:

Bonds pled not guilty this morning and was released on $ 500,000 personal recognizance. He was accompanied in court by two new lawyers, both experienced federal defense attorneys, whom he hired last night.

More Sport and Speech: The Athletes' Turn

Most controversies about speech and sports involve fan speech. But sometimes controversy arises over what athletes themselves say, on or off the field.

Robert Edwards Auctions got its hands on an 1898 document entitled "Special Instructions to Players," which warns professional baseball players to stop profanity to intimidate opponents and umpires. And since you cannot stop anyone from using bad language without providing examples of that bad language, the instructions give ten examples of unacceptable offensive language. (H/T: BoingBoing). At University of Chicago Blog, Randy Picker decries the fact that the dirty words of 2007 are basically the same as our dirty words of 1898. As Picker puts it:

Perhaps foul language is like classical music: we came up with all of the really good ones a long time ago, and now we are just condemned to repeating, combining and permuting.

The question is whether sports trash talk has gotten more creative in 109 years.

(Cross-Posted at PrawfsBlawg)

Making the Best of It: BC's Bailout of Boston Achdiocese to Benefit Baseball

Today's USA Today discusses the sale of church lands to finance abuse settlements, with specific focus given to Boston College announcing a $1.6 billion strategic investment plan with a $400 million dollar development of property that it purchased from the Archdiocese of Boston, which the Archdiocese sold to help finance abuse settlements.

I was contacted based on on a law review article I drafted on religious retirement funds, and possible implications of the same from abuse settlements ("Surviving Exemption: Should the Church Exemption to ERISA Still Be in Effect?" 11 Elder Law Journal, 395-424, 2003), since churches are exempt from ERISA, and as such, are not required to segregate its retirement funds. Exciting stuff, sports fans!

Instead of the Archdiocese of Boston selling property (specifically, 65 acres and 14 buildings in Brighton, Mass.) to a condominium or shopping mall developer, the Church sold the property to neighboring Boston College, the Jesuit university across Commonwealth Avenue.

This morning, BC announced a development plan that will, among other things, boost its athletic profile with the construction of four athletic fields, an athletics center, and a new baseball stadium.

While the abuse crisis has damaged the Catholic Church and its flock, this is a nice story on how the victims are receiving compensation, with an ancillary benefit to the student-athletes of a Catholic institution of higher learning.

(More) Cheering Speech at Public Universities

You all know well that my ongoing First Amendment obsession remains what I call "cheering speech"--oral and written expression by fans in the stands at sporting events, focused on the game and its participants, about sport more broadly, or about society as a whole. Because sport is such an essential aspect of our culture, speech about sport possesses serious cultural value. Relatedly, the grandstand is the essential public forum for cheering speech, subject to the ordinary rules of public-forum analysis, namely few if any content-based regulations. The First Amendment problem arises most vividly in arenas owned and controlled by public universities, where the necessary state action is obvious. I have focused scholarly attention here, here, and here; I have blogged about it, among other times, here, here, and here.

The trigger for these controversies usually is an effort by a public university to institute and enforce a code of fan conduct at games, prohibiting profanity, vulgarity, and offensive speech, particularly anything having a sexual connotation. What is overlooked in all of these efforts is one simple fact--under Cohen v. California, profanity and offensive speech is constitutionally protected, outside of narrow categories (such as fighting words or threats) that simply do not arise in the context of a crowd of 15,000 screaming sports fans. So, too, is sexually explicit speech.

And yet schools keep trying . . .

The latest example comes from Ferris State University in Big Rapids, MI. A student (I am removing his name for this post) sent an e-mail to the editors at First Amendment Center Online, which was passed along to me.

According to the student, the school sent the following to students:

"Hello, Bulldog Hockey Fans,

Your tremendous support of Bulldog hockey is great for the program andis appreciated by everyone associated with it. However, recently we have crossed the line in fan support by having vulgarity and profanity become a large part of what should be Dawg support. This will not be allowed to continue.

Those chants that contain profanity or are vulgar in content, especially those that have a sexual connotation, will not be tolerated. For those of you who are regular attendees to Bulldog hockey games, these chants
are, most notably, before many face-offs when it is chanted, "Drop it. Drop it. Thank you, A***ole!", and those where a word is spelled out (for example, "Give me a D….") that leads to a message with a sexual
connotation.

You are important to our program, but so are the families and children that also look forward to attending the games. As a result, anyone that insists on using profanity and vulgarity will be removed from the arena
and forfeit their ticket privileges. If you do this as a season ticket holder, this means you will forfeit your tickets, with no refund, for the remainder of the season. In addition, any FSU students caught using
profanity and vulgarity will be referred to the Office of Student Conduct for further action."

The student then tells the following story. I concede there likely is more to the story, but for now I will apply Rule 12(b)(6) analysis and accept all the facts alleged as true:

I recently was removed from a hockey game and my ticket privileges were revoked for participating with the entire student section in a chat that goes "Give me a D, Give me a I, Give me a L, Give me a D, Give me a O, What's that spell? Dildo, What does that mean? Put it between the pipes." [Ed: College hockey fans may be the most unique and creative in their cheering speech, for better or worse.] My participation in the cheer was limited to the "What does that mean? Put it between the pipes." Along with my privileges to hockey games (which I payed for and never signed a document stating that I would not participate in such cheers) I have been referred to the Office of Student Conduct for Judicial Discipline. This referral remains on my student records even after I graduate. I was the only person that was removed for this cheer and I was not the one to initiate it.

Again, taking these facts as true, the student at least states a First Amendment claim. Where to begin

First, this is pretty typical of college policies in seeking to get students to clean up their speech to protect objecting audience members from having to tolerate offensive or objectionable speech. But this policy simply codifies a heckler's veto--government prohibits and punishes some speech because some in the audience may not like that speech and may not want to hear it. The University's reference to fan support "cross[ing] the line" is nonsense. The only line that can be crossed is into an unprotected category of speech; short of that, speech is not sanctionable simply because it crosses some line concerning what government approves of or likes.

Second, the university has acted here in the name of protecting the "families and children that also look forward to attending the games." The hope/belief is that protecting sensitive young ears and eyes provides the necessary compelling interest to regulate speech based on its offensive/profane content. And while courts continue to blandly accept protecting children as a compelling interest, that does not permit the school to reduce the population of adult fans to saying and hearing only what is appropriate for children.

Third, this situation illustrates a major problem with these fan-conduct policies--arbitrary and inconsistent enforcement. Accepting this version of events as true, it appears they picked out just one student from a crowd of people when a large number of people were engaging in the same speech.

Fourth, in some ways, this is an unfortunate test case for attacking cheering speech regulations because it lacks any political or social content, as cheering speech often does. This is just a large group of college students trying to irreverent and provocative and, in the end, being just silly, "crossing the line" as the University's letter said. But the First Amendment does not make (and precludes the state from making) such value judgments about protected speech--it is with the individual speaker(s) as to how best to express their ideas, silly or otherwise. And sport clearly remains an important cultural institution on Ferris State's campus, lending this speech some cultural import.

Finally, the sense that this all is not important as a First Amendment matter because of the speech at issue is tempered by the fact that, under the policy, student fans are referred to the Office of Student Conduct. The typical response to arguments about the protection for cheering speech usually runs along the lines of "It's not real punishment, he just was kicked out of the game." Not anymore; this student is potentially facing (possibly serious, we don't know) university sanction for speech that is otherwise constitutionally protected. That somewhat takes this out of the realm of being "just about sports."

[Cross-Posted at PrawfsBlawg]

SI.com Column on Sentencing of Michael Vick's Co-Defendants

I have a new column on Sports Illustrated.com entitled "As the Dominoes Fall: Assessing Michael Vick's Fate after Co-Defendants' Sentencing." It examines the potential impact of today's sentencing of Vick's co-defendants, Purnell Peace and Quanis Phillips, on his upcoming sentencing on December 10.

Earlier this week, Alan Milstein wrote an excellent piece that takes a critical approach in studying the Justice Department's high degree of interest in the wrongs committed by Vick and Barry Bonds.

Hope you have a chance to read my column.

As an aside, good luck to all the law students who read this blog and who are taking final exams over the next few weeks.

Alabama Jury Gets Revenge Against NCAA

Yesterday, a jury in Alabama awarded $5 million to a former University of Alabama football booster, Ray Keller, who claimed the NCAA defamed him when it imposed penalties on the Crimson Tide in 2002. Keller maintained that the NCAA wrongly lumped him in with other boosters who were accused of making improper contacts and payments to recruits in the 1990s. A timber dealer and Crimson Tide fan, Keller argued that the NCAA slandered and libeled him during the announcement of penalties by referring to him and others as "rogue boosters," "parasites" and "pariahs." According to the press report, the NCAA didn't use the name of Keller or other boosters in announcing penalties against Alabama, but their names appeared in news accounts and the university sent Keller a letter barring him from its athletics program. The jury awarded him $3 million in punitive damages, $1 million for mental anguish, $500,000 for economic loss and $500,000 for damage to reputation.

This trial wasn't about defamation. It essentially amounted to a rehearing of the penalties imposed on the Alabama football program five years ago by the NCAA, but this time the case was heard by 12 Crimson Tide fans! As a torts professor, I've read plenty of defamation cases and I will be really surprised if this judgment ends up sticking on appeal (but I've been surprised before so I guess that's not saying much).

First, a statement must be defamatory by definition, which means that the statement must tend to adversely affect the plaintiff's reputation, for example, by impeaching the plaintiff's honesty or integrity. Referring to the former boosters collectively as "parasites" and "pariahs" is not any more defamatory than it is to simply say that the boosters made improper contacts and payments to recruits in violation of NCAA rules. In other words, what is potentially damaging to the former boosters' reputations in the community is the fact that the NCAA implicated them in wrongdoing which led to sanctions imposed on Alabama's football program, not that the NCAA called them parasites and pariahs.

Second, even if the NCAA's statement is deemed defamatory, the damages award seems excessive. Keller would most likely be classified as a private person, not a public figure. However, when the defamatory statement relates to a private person involving a matter of public concern or controversy -- such as penalties imposed on Alabama's football program as a result of improper activity by boosters -- the U.S. Supreme Court in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) held that the plaintiff has the burden to prove that the defendant was negligent in ascertaining the truth of what it published. The NCAA performed a full investigation and determined that the boosters made improper payments and contacts. To my knowledge, there is no evidence of bad faith or even a negligent investigation on the part of the NCAA.

Finally, even if the NCAA was negligent in ascertaining the truth of what it published, Gertz held that damages are limited to the "actual injury" sustained by the plaintiff, which includes out-of-pocket loss, impairment of reputation, humiliation and mental anguish. However, there must be competent evidence of actual injury. Damages are not presumed, which is typically the case in libel actions relating to private persons involving matters of purely private concern. Thus, any award of punitive damages in this case can hardly be justified absent a showing that the NCAA made the statement knowing it was false or with reckless disregard for the truth. Also, $1 million for mental anguish on these facts seems fairly excessive.

More on instant replay

At ESPN, Jim Caple argues, on the eve of The Big Game and the 25th Anniversary of The Play, that it is a good thing there was no instant replay in 1982.

Three key comments from the story:

First:

Nowadays, officials would review replays of The Play for so long that before they reached a verdict, Silicon Valley engineers would have developed another digital recording system that Microsoft and Apple would make us purchase in order to further analyze the decision. And then the refs would undoubtedly overrule The Play -- with more than two dozen players from both teams on the field, plus more than a hundred band members and cheerleaders, a replay official surely would find something objectionable -- and ruin the greatest play in college football history.
* * *
With today's video technology, we could review The Play from a dozen angles and use computer enhancements until we felt certain whether Dwight Garner's knee was down or if Mariet Ford's lateral really was backward. But, chances are, neither side would go away happy with the result.

Second:

But football is a game, not a court of law. And if you try to achieve perfection, you lose something more important. The beauty of sport is that it is played by humans, not computer programs. We are imperfect. We make mistakes. We fumble the ball, drop passes and trip over our own feet when there is nothing but open field ahead. And sometimes, Gary Tyrrell runs onto the field with a trombone. That's what makes the game unpredictable. That's what makes it compelling. That's what makes it fun.

[Editorial Comment: Even if it were a court of law, I remain unconvinced that video evidence necessarily gives perfection or even brings us closer to it].

Third:

What matters is that a group of trained, dedicated referees followed The Play that day as best they could, and they ruled on it as fairly and honestly as possible.

I have made before how I feel about instant replay. Looks like I found at least one person who agrees.

Loyola Law School Los Angeles Symposium on Discrimination in Sports

Professor Daniel Lazaroff of Loyola Law School Los Angeles and director of his school's Sports Law Institute, passes along the following info about what should be an engaging and provocative sports law symposium:

* * *

On Friday, January 18, 2008, the Loyola Sports Law Institute and Loyola Law School will be presenting our fourth annual symposium. This year's event is entitled "Discrimination Issues in Sports: Race, Gender & Sexual Orientation." The symposium will begin at 8:30 A.M. and run until 3:45 P.M. We think it will be an informative and enjoyable event.

The race discrimination panel will include Dusty Baker (Manager, Cincinnati Reds), Bill Gould (Professor, Stanford Law School) and Ken Shropshire (Professor, Wharton School). The gender panel features Anita DeFrantz (IOC Member), Nona Lee (V.P. and General Counsel, Arizona Diamondbacks), Jacqueline Michaels (OCR, U.S. Dept. of Education) and Kim Ng (V.P. and Ass't G.M., Los Angeles Dodgers). The scheduled sexual orientation speakers are Jim Buzinski (Outsports.com), Karen Doering (Senior Counsel, National Center for Lesbian Rights) and Claire Williams (Graduate Teaching Ass't, Ohio State University).

Beginning on Thursday, November 29, 2007, access to registration will be available online at this link. I would greatly appreciate it if you would share this information with your colleagues and students. We will admit students from any law school at no charge, Others will be required to pay $50 for the symposium and lunch ($70 with 5 hours of MCLE credit).

* * *

Please feel free to contact Dan with any questions.

Where Have You Gone Barry Bonds?

Over on The Situationist, Will Li has an excellent piece on the myth-making of baseball records. He takes particular notice of Joe DiMaggio's 56-game hitting streak and Barry Bonds career home run record, which currently and maybe permanently stands at 762 home runs.

It's an enjoyable read for anyone interested in baseball history. The lack of attention DiMaggio received at the time of his record is almost unbelievable, though years later he would be duly honored.

As Will details, the treatment of DiMaggio's record invites the intriguing question of how Bonds and his record might be remembered decades from now. Might future generations hold Bonds and his record in higher esteem than do many of us today, perhaps because they will focus more on the extraordinary raw number and less on the flaws of the person responsible for it?