Do Baseball Statistics Measure Fairness?

Over on PrawfsBlawg, Matt Bodie has a thoughtful post on the oddity of Major League Baseball teams and many of their fans being so openly obsessed with nuanced, sometimes esoteric, statistical measurements of players while being tolerant or at least less vocal towards glaring inequities between teams (thanks to Octagon associate general counsel Ryan Rodenberg for the link). Here is an excerpt from Bodie's post:

Sports are supposed to be played on an even playing field. For example, every team should have an equal chance of making it to the playoffs. But there is one league that defies this logic. In this league, 20 teams have a 20% chance of winning their division, 4 teams have a 25% chance, and 6 teams have a 16.7% chance. In addition, 14 teams have a 7% chance of winning a wild card entry to the playoffs, while 16 teams have only a 6.25% chance of winning it. What league is this? Major League Baseball.

* * *

Why would any team or any sport allow for this unfairness? I'm sure there was some discussion of it at the time of realignment, and there are occasional posts about it on the Internet. But in a league newly obsessed with the smallest statistical advantages, you would think that these glaring differences would get more attention.

* * *

So is the current breakdown unfair? Statistically, it is undoubtedly unfair. But perhaps the relative silence on this issue means that the reality is somewhat grayer.

To read the rest of the post, click here.

MLB Still Fighting Slingbox

Last June, I discussed a dispute between MLB Advanced Media (MLBAM) and Sling Media Inc., manufacturer of the popular Slingbox device. Slingbox lets consumers rebroadcast the cable and satellite signals they receive on their home television to any computer, cell phone or second television located far away. Last year, MLBAM approached Sling Media about paying licensing fees for the distribution of televised baseball games and the company rebuffed. Apparently, that issue is not dead. Eriq Gardner of The Hollywood Reporter, Esq. addressed the status of that dispute in an excellent article about sports leagues' ability and efforts to legally control distribution of content in a high-tech era that entails the use of such devices as the internet, Slingbox and YouTube ("Sports Leagues' Slingbox Opposition Highlights New Game of Content Control").

Proposed UFL and Antitrust

From my FIU colleague and occasional guest blogger Andre Smith (who is the real sports law guru on our faculty):


Dallas Mavericks owner Mark Cuban is involved in creating another challenger to the NFL, dubbed for now the UFL. I’m not sure what the “U” stands for, but I am guessing United, with Universal being a slighter possibility.

According to NBCsports.com, “Each owner will put up $30 million, giving him an initial half-interest in the team; the league will own the other half. Eventually each team is going to sell shares to the public... Then the owner, the league and the fans will each own a third of every franchise.”

This ownership structure is novel in professional sports and begs a question relating to anti-trust: Which section of the Sherman Anti-Trust Act applies to a league constituted this way?

The major professional sports leagues and organizations in the United States (NFL, MLB, NBA, NHL, NASCAR) consist of individual team owners who establish league rules through a non-profit entity, i.e., the League Office. These teams can be sued under section 1 of the Sherman Act for combining or conspiring to restrain trade.

Teams in Major League Soccer, on the other hand, are owned by the league. They are managed by franchise operators, rather than team owners. Being a single entity, then, there can be no “combination” or “conspiracy” to restrain trade. Still, MLS can be sued under section 2 of the Sherman Act, which prohibits attempts to monopolize.

So the question becomes, can the UFL be sued under section 1, if the league owns 51% of all the franchises, 50% of all of them, 33% of them, or 51% of more than half of the teams and minority stakes in the rest? Often in federal taxation, a subsidiary is owned and controlled by its parent when the parent owns at least 80%; should there be a similar supermajority standard?

NFLPA Sends Stern Message to NFL Commish

In yesterday's edition of The Tennessean, Jim Wyatt reported that the NFLPA sent a letter to NFL Commissioner Roger Goodell requesting the season-long suspension of Pacman Jones be reduced. ["Players union rallies to Pacman"]. According to Wyatt, the four-page letter raised questions about punishing a player retroactively and the severity of the suspension, but did not list concerns with the NFL's new personal conduct policy. As part of Jones' appeal to the NFL, his attorneys listed more than 280 other NFL players arrested or charged since January 2000 without being suspended for a season, including several with multiple incidents. Pacman's attorneys also hinted at suing the NFL if they're not satisfied with the commissioner's ruling.

Wyatt pulled some quotes from the letter to Goodell written by NFLPA staff counsel, Thomas DePaso, who was present at Jones' appeal hearing in front of the commissioner:

The union's letter to Goodell, dated May 23, states "your suspension of Jones without pay for the 2007 season is clearly excessive and much greater than discipline imposed upon players for the same or similar incidents.'' It says Jones has been treated differently than any other player has been treated under the old personal conduct policy. "To impose discipline for pending charges also violates clearly established principles of employment and labor law,'' the letter states before going into detail on each example. In comparison to other cases, DePaso wrote that Jones should have received fines, not extra games as part of his suspension. "For all of the foregoing reasons, the NFLPA hereby requests that you reconsider the one-year suspension you imposed … as it is excessive and inconsistent with the treatment of other similarly situated players,'' the letter reads. "We will defer to Jones' counsel for appropriate discipline, if any, to be suggested.''

This is a great strategic move by the NFLPA. And the timing of it couldn't be better as Goodell is currently contemplating Pacman's appeal as well as the disciplinary sanction to impose upon Bears' lineman Tank Johnson who met with the commissioner two weeks ago. David Haugh of the Chicago Tribune recently wrote an excellent piece explaining in legal terms (with my assistance) why Tank, or any other player for that matter, has virtually no chance whatsoever of having his suspension reduced by any judge in a court of law ("Tank released - with a catch"). Haugh interviewed Dan Jiggetts, a former Bear well-versed in labor issues from his time as NFLPA vice president, who couldn't have said it any better when he applauded Goodell's intentions but cautioned that a clearer line should exist between improving the game and impinging on players' rights: "It's one thing that he's trying to clean up the league and everybody understands that, but he can't be making unilateral decisions."

At the Sports Lawyers Association annual conference in Boston two weeks ago, NFL counsel Jeff Pash made an interesting comment during a panel composed of general counsel for the four leagues. I wasn't taking notes from the audience so I don't have a direct quote, but the gist of his statement was that the players go to meet with Goodell and the players' attorneys explain to Pash, in so many legal terms, why the commissioner's suspension is excessive or should be reduced. Pash tells them, look, don't talk "legal" with the commissioner because he's not a lawyer and that's not going to get you anywhere with him.

Well, the NFLPA is now talking "legal" with the NFL, and Goodell and Pash should probably take notice. The NFLPA is essentially saying, "yes, we know that we agreed in the CBA that the commissioner is the sole arbitrator of appeals...and yes, we went along with your new personal conduct policy because we all have an interest in preserving the image of the sport, but we did so with an implied understanding between us that you would exercise your authority consistent with the manner in which former commissioner Tagliabue exercised his authority." In other words, it has always been implied that the commissioner would essentially utilize a "just cause" standard of review, which, in accordance with employment and labor law, means that the league must follow progressive discipline in response to player misconduct, imposing gradually increasing penalties for repeated offenses in an effort to rehabilitate the player and deter future misconduct by the player (which I discussed in my post last month).

It will be interesting to see how Goodell reacts going forward. Any predictions?

Hancock v. Mike Shannon's Steaks and Seafood

The title is the caption to a lawsuit filed last week in Missouri state court by Dean Hancock, the father of St. Louis Cardinals reliever Josh Hancock and the executor of Josh's estate. Josh was killed in a car accident April 29 when the rented SUV he was driving slammed into the back of a stopped tow truck in the left lane of a multi-lane highway in St. Louis. Hancock had left one bar (Mike Shannon's) and was on his way to a second bar to meet his girlfriend. Reports indicate Hancock had a blood-alcohol level of 0.157, was traveling above the posted speed limit, and talking to his girlfriend on his cell phone when the crash occurred. Stories on the accident and the lawsuit here, here, and here. A copy of the complaint can be downloaded about halfway down in this story.

There are three basic claims in the lawsuit. The first, against Mike Shannon's restaurant/bar and Patricia Shannon Van Matre, the manager of the bar, seeks damages under Missouri's dram shop law. The claim is that Hancock, a regular at the bar, spent approximately 3 1/2 hours drinking there on the night in question and became visibly intoxicated, but the restaurant continued to serve him drinks anyway. The second claim alleges negligence against the tow truck company and the tow-truck operator, claiming that the driver was negligent in stopping in the left lane of the highway and keeping the truck (and stalled car) there for a lengthy period of time, without providing adequate warning to motorists, such as flashing lights or flares. The third claim alleges negligence of against Justin Tolar, the driver of the stalled car that the tow truck had stopped to help. Tolar's car had struck the median, spun out, and stalled in the left lane of the highway.

The dram shop claim is the focal point of the suit, the one that has received the most attention, the most unique claim, and likely the most difficult to prove. Missouri's law, amended in 2002, permits liability when it is "proven by clear and convincing evidence that the seller . . . knowingly served intoxicating liquor to a visibly intoxicated person." Mo. Rev. Stat. § 537.053(2). "Visibly intoxicated" means "inebriated to such an extent that the impairment is shown by significantly uncoordinated physical action or significant physical dysfunction." § 537.053(3). A high BAC is evidence of voluntarily intoxication, but cannot alone establish the fact. Moreover, the law expressly prohibits recovery for injuries resulting from one's own voluntary intoxication. § 537.053(4). This presumably means the law permits third-party liability against a bar (A is injured by B's drunk driving, sues the bar at which B got drunk), but not first-party liability (A is injured as a result of his own drunk driving, sues the bar at which he voluntarily drank and got drunk). A good discussion of the history of dram-shop liability and of Missouri's new law is here.

The fact that the law seems to disallow first-party dram-shop liability probably defeats this claim at the start. The prior version of Missouri's dram shop law was held to allow first-party claims, although that statute required only that the "intoxicating liquor is the proximate cause of the personal injury or death sustained by such person." The explicit prohibition on claims involving voluntary intoxication should command a different result in the typical first-party claim such as this--someone willingly goes to a bar, drinks, gets drunk, and is injured.

The complaint tries to get around the voluntary intoxication language by alleging that Hancock's intoxication was involuntary, thus not within the statutory exception. But I am not sure how this can be the case. In general, one can be said to be involuntarily intoxicated only when a person did not knowingly consume the intoxicating substance (i.e., someone slipped him a Mickey). No one suggests that is what happened here. My speculation is that the plaintiff rests on some notion that the bartenders at Shannon's continued to give Hancock drinks beyond the point that he was (or could be) aware that he was drinking and getting drunker; so even if he went to the bar voluntarily and even if he initially voluntarily consumed alcohol, at some point he was drinking and getting drunk not of his own volition. I doubt this works as a matter of law. Moreover, even if Hancock clears that hurdle, he must put together a lot of evidence (more than the ordinary civil standard of more-likely-than-not) that Josh exhibited signs, visible and obvious to Shannon's bartenders and staff, of physical dysfunction caused by alcohol consumption. The spiked BAC will not be enough.

The negligence claims against the tow-truck company and driver and against the stalled motorist sound like something from a torts exam. Still, neither claim seems beyond the pale. If the motorist was negligent in hitting the median and stalling his car out, then he may (and should) be responsible for resulting injuries to any other driver on the road. Imagine that Tolar, driving negligently, had bounced off the median and struck Hancock's car as it came immediately behind him; no one would question that Tolar might be liable. The only difference here is that Hancock did not come upon Tolar's car until 20 minutes later. But the principle--Tolar drove negligently and contributed to the injuries to another driver--remains the same. Similarly, the tow truck driver/company were obligated to conduct themselves in a careful manner--specifically by either moving the car out of the traffic lane or providing warnings to motorists.

What sets this situation apart--and what has some commentators screaming about frivolous lawsuits, the out-of-control tort system, and loss of personal responsibility (you have to page down a bit)--is everything that Josh did that contributed to the accident: He was hammered, he was speeding, and he was talking on his cell phone to his girlfriend at 12:30 in the morning. I especially liked Overlawyered's suggestions for other people Hancock should have sued, including the cell-phone manufacturer and the girlfriend.

But the tort system long ago moved to a regime of comparative negligence--a plaintiff's own negligence may reduce the amount he can recover from responsible defendants, but it does not necessarily eliminate all recovery (unless the plaintiff is more responsible for the accident than the defendants). This contrasts with the old Common Law rule of contributory negligence, where any small amount of plaintiff negligence (just 1 %) precluded all recovery. So even if Hancock contributed to the accident by driving under the influence, so, too, perhaps, did Tolar's and the truck driver's behavior. The question now becomes how much each is responsible--and that is a question for the jury.

Moreover, comparative negligence is an affirmative defense--it is on the defendant(s) to introduce the issue, plead it, and to prove it. An affirmative defense is the defendant saying, in essence, "yes, what the defendant says happened did happen, but here is something that limits or eliminates my liability"(here, the plaintiff's own negligence). Right now, all we have is Hancock's Complaint--which (as I tell my civ pro students ad nauseum) is simply the plaintiff's best-foot-forward version of what happened that, for the moment, we take as true. We need to wait for more facts and evidence to come out. News stories indicate factual disputes as to why Tolar's car crashed (he may have been cut-off by another driver), how long the tow truck had been there when Hancock reached the scene (less time may mean the tow-truck operator had not had a chance to move the stalled car yet), and whether the truck's lights were flashing to warn drivers. We are an "adversary" judicial system. Hancock has put forward his initial version of events; it now is (and should be) on the defendants to put forward their best legal and factual versions. Then we ultimately can figure out what happened and who was responsible.

My guess is that Hancock loses. The dram shop claim does not work as a matter of law, given the language of the amended statute precluding claims based on one's own voluntary intoxication. The negligence claims likely fail, since Hancock's own negligence seems to outweigh that of the motorist and the tow truck (although that one probably goes to a jury). But I disagree that it is so obvious, ab initio, that all of these claims are so laughably weak. Let the system play itself out.



Updates: Wednesday, May 30:

Some additions, explanations, and elaborations in response to e-mails and comments:

First and most important for the negligence claims: Missouri follows a "pure" comparative fault regime--an injured plaintiff can recover something from a negligent defendant, reduced by the amount of the plaintiff's own culpability. Gustafson v. Benda, 661 S.W.2d 11 (Mo. 1983). Even if the plaintiff was 99 % liable and the defendant was only 1 % liable, the plaintiff still could recover 1 % of the harm he suffered. This contrasts with a "modified" comparative negligence system, in which the plaintiff is precluded from recovery (and his claim defeated) if his negligence reaches some point (either 50 % or 51 %, depending on the jurisdiction). In practical terms, that means Hancock's negligence claims simply will not simply be defeated (as I initially stated) because of Hancock's arguably greater responsibility. It also means the claims likely go to trial for jury determination. We must determine the facts as to what Tolar and the tow-truck driver did or did not do, because even a small amount of negligence would require one or both to pay a small amount of damages to the plaintiff (an amount reduced by Josh's own negligence). Unless all the evidence shows that, as a matter of law, neither Tolar nor the truck driver was negligent, a jury must measure out what portion of responsibility either bears.

Second, Professor Sheila Scheuerman, co-editor of Torts Prof Blog (who was kind enough to link to this post), had a good explanation for the visceral negative reaction many people have to this lawsuit: The problem is that the reductio summary of the suit--"father of dead drunk driver sues restaurant and others involved in crash"--runs counter to intuitive ideas about "justice." I think this is correct as an explanation for much of the public (and blogosphere) response. And it illustrates why we try so hard to get our students to step back from that initial, intuitive, empassioned reaction and to think through the entire issue with care and reason.

New Sports Law Scholarship

Recently published scholarship includes:

Suzanne E. Eckes, Title IX and high school opportunities: issues of equity on and in the Court, 21 WISCONSIN WOMEN'S LAW JOURNAL 175 (2006)

Greg Egan, Student article, Sustained yield: how the dynamics of subsistence and sport hunting have affected enforcement and disposition of game violations and wounded Alaskan culture, 28 HAMLINE JOURNAL OF PUBLIC LAW & POLICY 609 (2007)

Haley K. Olsen-Acre, Student article, The use of drug testing to police sex and gender in the Olympic Games, 13 MICHIGAN JOURNAL OF GENDER & LAW 207 (2007)

Josephine R. Potuto, Academic misconduct, athletics academic support services, and the NCAA, 95 KENTUCKY LAW JOURNAL 447 (2006-2007)

A Good Lacrosse Weekend

A good weekend in our household for, of all sports, lacrosse--a sport that looks fun and interesting but that I do not quite understand (beyond the obvious objective).

On Sunday, Northwestern, my beloved alma mater, won its third straight NCAA Women's Lacrosse Championship. I now am on the hunt for a purple "Hat Trick" t-shirt to fit my 17-month-old daughter (whose first legal phrase will be "Title IX").

On Monday, Johns Hopkins, which was kind enough to pay for my wife's alma mater (my father-in-law is a faculty member at Hopkins), won the Men's Lacrosse Championship. Of course, Hopkins will most be remembered for depriving Duke of the storybook finish to its return from the depths of a canceled season in 2006.

The Attendance Value of The First Overall Pick in the NBA Draft

Over on his CNBC blog, Sports Biz, Darren Rovell has very good news for the Portland Trailblazers: over the last 11 years, the team that obtained the first overall pick in the NBA Draft enjoyed, on average, an 11.5% increase in attendance the following season. If that percentage holds true for the Trailblazers next season, the team should receive an additional $6.3 million in attendance revenue (Rovell's calculation takes into consideration incidental revenue, such as parking and concessions).

Rovell acknowledges the limitations of his methodology. The Washington Wizards, for instance, saw their attendance increase by 24% after drafting Kwame Brown with the first overall pick 2001 (they also picked up some guy named Michael Jordan--and Rovell dropped that year when calculating the 11.5% average). Moreover, the 11.5% figure is skewed favorably by three first overall picks--Lebron James, Tim Duncan, and Allen Iverson--while some of the other first overall picks--Kenyon Martin, Elton Brand, and Michael Olowokandi--didn't seem to have much of an impact on either wins or attendance.

But considering the hype and expected performance of Greg Oden, in addition to the Trailblazers' already impressive talent, it would seem that Paul Allen's franchise is primed for a successful and lucrative season ahead (and one that will only add to Allen's net worth of $18 billion).

Vindication or Unfairness in Last Night's NBA Draft Lottery?

Last night's NBA lottery was an abject disaster for the Memphis Grizzlies and Boston Celtics. The two teams with the worst NBA records last season had the best odds of landing one of the top two picks, which will be used on Greg Oden and Kevin Durant. But the "best odds" aren't the same thing as certainty, as the Grizzlies and Celtics only had a 48% chance and 37% chance, respectively, of landing one of those two picks.

And as you probably know, the Grizzlies won't be picking one and the Celtics won't be picking two. They will be picking fourth and fifth, respectively. And thus they will lose out on the two players who project as "franchise players," and instead draft among the left-overs. The Portland Trailblazers, which only had a 5% of landing the first pick, got really lucky (read all about it on True Hoop), as did the Seattle Supersonics, which will be picking second.

There are at least ways to view what happened last night.

One way is to say that there is a certain degree of justice in the lottery's outcome. The Grizzlies, Celtics, and Milwaukee Bucks were all accused of tanking games in their quest to get the most number of ping-pong balls. And yet they had the worst results last night, falling down in the draft as far as they possibly could under the lottery rules. Sure, there is probably 0% chance that Commissioner Stern or anyone at the NBA had anything to do with that, as an independent lottery firm performs the actual drawing of the balls. But those who were upset with the tanking may feel like there was some sort of vindication last night, even if the vindication resulted entirely from chance.

But Jerry West, President of the Memphis Grizzlies, has a different take on what happened last night. He sees profound injustice rather than coincidental vindication:

It's like pitching pennies. It's grossly unfair to the team, but I've said it before, I don't think the lottery is fair. I never liked it.

It's not sour grapes. I just think it's a terrible system and it needs to be addressed. Every other league in the other professional leagues, they all draft according to how they finish the season.

There have been a lot of picks in the lottery that have (failed). There are two in the lottery this year that are not going to fail. There are two superstars in the draft. I think for the teams fortunate enough to get them, the fortunes of their franchises have changed forever.

West has a point. If the purpose of the NBA Draft is to redistribute talent in the most equitable manner, shouldn't the worst team get the best pick? Major League Baseball and the National Football League take that very approach, with the idea that the league product is enhanced when, at some point, every team has a genuine opportunity to become great through obtaining the best amateur talent. That idea hasn't worked in baseball because of the absence of a salary cap and because it's extremely hard to project the professional potential of amateur baseball players, but it seems to have worked pretty well in the NFL.

On the other hand, the NBA is likely worried that eliminating the lottery would give teams an even greater motivation to tank. But is that fear worth keeping teams like the Grizzlies and Celtics down for many years to come? Is the league product really better off with a weighted lottery, when Greg Oden and Kevin Durant don't go to the franchises most in need of their help? Should the sheer fortuity of how ping-pong balls come out of a machine really determine the fate of franchises for the next decade?

Tonight's NBA Draft Lottery: Will The Tanking Matter?

At 8:30 p.m. tonight, (Eastern Standard Time, ESPN), the NBA will conduct its draft lottery. It will determine the draft order of the 14 NBA teams that did not make this season's playoffs, as those teams will be assigned a pick between 1 and 14 in the 2007 NBA Draft, which will be held on June 28. We have examined this topic in great detail over the last couple of months, particularly in relation to NBA teams tanking, or purposefully losing games for more lottery balls.

However, as the Boston Globe photo from 1997 on the left reveals, sometimes tanking doesn't work out as planned: the photo is of a Boston Celtics fan, taken in April 1997, when the team purposefully lost games (as admitted by its former GM and head coach, M.L. Carr) in order to secure the worst record and thus the best chance to obtain the presumptive first pick, Tim Duncan. (thanks to Celtics Blog, the most popular blog devoted to any NBA team, and C's fan Daniel Babbit, for the photo). Just for good measure, check out The Sporting News cover from earlier this month on the right.

Here are our writings:

• The Situation of the NBA Draft (4/24/07)

• Tanking: The Fan's Perspective (4/21/07)

• Ryan Gomes and "The Hunt for a High Draft Pick" (4/14/07)

• Why Does Tanking Occur in the NBA but Seemingly Not in Other Leagues? (4/9/07)

• The Pursuit of Crappyness: Are NBA Teams Tanking Games for Greg Oden and Kevin Durant? (4/5/07)

• Throwing Games and the NBA Draft Lottery (4/16/06)

Yankee Stadium, God Bless America, and the First Amendment

Now that I am done grading 150 exams, I can get back to writing about important things: Answering the question of whether the New York Yankees can compel fans to remain in the seating area during God Bless America during the Seventh Inning Stretch. I first discussed this issue here and there are some good comments to that post; the original story from The New York Times (Times Select registration now required) is here; and Michael Dorf (who was quoted in The Times article) has thoughts (and some reader comments) here and here.

In the interest of shameless self-promotion: I have written about fan speech at publicly owned or publicly funded sports stadiums. In that article, I touched briefly on the vast amount of patriotic symbolism at sporting events, primarily to illustrate the import of speech occurring at sporting events. I said the following (footnotes omitted):

Fans in a public forum cannot be compelled to participate in the rituals
that attend these patriotic symbols. Rather, fans remain free to challenge the symbols by engaging in what I label “symbolic counter-speech,” counter-speech that responds to and dissents from the message expressed by a symbol or symbolic ritual using that symbol as the vehicle or medium for counter-speech and dissent. Symbolic counter-speech may take many forms. Fans may refuse to stand for “God Bless America” or may turn their backs to the flag during the anthem. Fans even may jeer one nation’s anthem as it is being played as protest against that nation or its policies.

At the time, I did not know about the Yankees' policy, thus I did not take on those particular details. But I think the above language gives a strong hint as to where my analysis would gp. Let me now get into this in more detail.

There are two separate constitutional issues. The first is whether the Yankees, by virtue of controlling a publicly owned stadium, are somehow state actors in dictating what fans can and cannot do in the stadium. This is important because, as Mike is quoted in The Times, the First Amendment only limits government, not private entities; the Yankees, as an ostensibly private organization, can exercise total control over what fans can say. Perhaps recognizing this, a lawyer for the New York Civil Liberties Union was quoted in The Times as saying that the organization would not do anything unless someone was arrested (in other words, where there was an obvious use of state authority). The second issue is whether what the Yankees are doing runs afoul of the free speech principles in the First Amendment.

State Action or Action Under Color of Law

Are the Yankees subject to the duties and limitations of the First Amendment because they are state actors in operating and controlling the stadium? The doctrine is a complex mess as to when a private entity is so closely tied to the government in some activity that the entity can be said to act "as" the government. It also requires a case-specific and fact-intensive analysis.

The strongest argument for state action is Burton v. Wilmington Parking Authority (1961). The Court there held that a private segregated restaurant leasing space in a public parking garage could be liable for violating the Equal Protection Clause in refusing to serve Black patrons. The key was the "symbiotic relationship" between government and private actor, characterized by a mutual exchange and receipt of benefits from the deal. (Totally unrelated note: I clerked in Wilmington, DE and made sure to visit that garage).

The parallel between a private business renting space to operate a restaurant in a public building and a private ballclub renting a public stadium is obvious. In fact, Burton was the basis for a district court holding in Ludtke v. Kuhn (S.D.N.Y. 1978) that the Yankees were a state actor in enforcing a rule barring women from the Stadium clubhouses during the 1977 World Series. The open question is whether Burton continues to have much meaning; Michael suggests it has been effectively gutted and not likely to have much force. It certainly represents the zenith of the Warren Court's willingness to hold private actors to constitutional limits by finding them to be state actors.

A second argument is based on the more-recent decision in Brentwood Academy v. Tennessee Secondary Sch. Athletic Ass'n (2001), under which a private entity may become a state actor when its operations are sufficiently "entwined" with the government. For our purposes, this test might look at features such as who owns the ballpark, the terms on which the team is using the ballpark, and who is making and enforcing the relevant rules. For example, it may be relevant that Yankee Stadium is owned by the City of New York but used and controlled exclusively by the team. It also might be important that the Yankees contract with the City to use off-duty police officers as security guards, who help in blocking off the exits. The open issue with Brentwood may be how long the opinion survives--the Supreme Court this term heard oral argument for the second time in that litigation and one of the issues before the Court is whether to reverse its earlier decision on state action.


First Amendment Principles

The next question is whether preventing fans from exiting the seating area during the song violates the First Amendment. One form of symbolic counter-speech is nonparticipation in a ritual or ceremony that honors and affirms a symbol. By leaving the seating area, a fan declines to participate in the ceremony or ritual (the singing of the GBA), thereby expressing his dissent from that symbol. The Yankees policy of keeping fans in place thus eliminates one form of symbolic counter-speech.

The key to the free speech argument is that forcing fans to stay put arguably coerces their participation in the ritual, in violation of the First Amendment protection against compelled expression recognized in Barnette v. W. Va. Bd. of Educ. (1943). The argument that the Yankees acted within First Amendment confines (as Mike explains it) is that "the Yankees do not in fact require that fans sing along, only that they do not disrupt others who wish to sing or listen." The do-not-leave policy is content-neutral and likely valid as a restriction on the time, place, and manner of speech. The Yankees are not trying to keep fans in place out of disagreement with or dislike for the message fans send by leaving their seats; they only are trying to keep non-particiating fans from disrupting those who do want to participate in the ritual.

Two thoughts on this. First, there are many ways to decline to participate in a ceremony or ritual that should be protected beyond simply not singing while remaining in place. Not singing sends one message; leaving sends a somewhat different (or more overt) message of dissent; turning my back to the flag my send a different (and even more overt) message of dissent. All of them should be protected under Barnette unless the government/Yankees can show that one form affects its interests differently.

This brings me to the second point (an elaboration on a point I made in comments to Mike's post): The Yankees argument would then be that leaving (as opposed to simply not singing) is especially disruptive--a neutral reason for at least keeping everyone in the seating area, even if everyone is not compelled to sing. And disruption should be the line under Barnette. This goes off the rails, however, because I do not think the disruption argument works.

In general, it is hard to see how one (or even a few individuals) walking out "disrupts" a stadium of 55,000 people who want to stand at attention and sing. More importantly, look at the photograph that ran with the original Times story: The chains are up in the main corridor, by the exit tunnel, and some fans can be seen standing in the corridor waiting for the song to end. This means that I can get up from my seat, walk out of my row (climbing across my neighbors, if I have to), and walk up the aisle, presumably while talking with my companion--all pretty disruptive, I would guess. I can do everything but walk out the tunnel to the kosher hot dog stand, away from (and out of the line of sight of) those who remain in their seats. Of course, walking completely away from the seating area ought to be least disruptive to those remaining by their seats and singing. So the argument that "fans who want to sing have rights, too" strikes me as a straw man; my leaving does not interfere with the ability of anyone else to sing and otherwise participate in this patriotic ritual.

The point is that the Yankees are not really trying to prevent disruption of others fans caused by my moving around during the song, because such disruption is, realistically, non-existent. The Yankees are trying to prevent disruption caused by the message I send by leaving during the song. The policy now is no longer content-neutral, because it is tied to dislike for the message a fan wants to send by his nonparticipation.

This conclusion is furthered by the fact that (according to Mike, who was at a game at Yankee Stadium last week), the rule is not enforced in the upper decks. So moving around during GBA only is disruptive in the more expensive seats?

I will close on this point. In a comment to my earlier post on this subject, Peter states that "'Forced' patriotism is a contradiction in terms. If it has to be forced it isn't patriotism." Agreed. And I would go one step further: One's decision to participate or not with a cloying and poorly written song (or even a poetic and tuneful one, for that matter) at a baseball game (or anywhere else) says absolutely nothing about one's patriotism.

But if forcing a fan to participate in this ritual does not create or instill patriotism and does not really reflect patriotism, what possible reason could the Yankees have for treating its fans as a "captive audience" and forcing them to partake in this ceremony?

The Legal Process and Michael Vick

A few weeks ago, I blogged about Michael Vick's possible involvement in an illegal pit bull fighting ring at a home he owns in Smithfield, Virginia, and how the NFL might react. Over on East Coast Bias, attorney Jason Reddish has a thoughtful post that defends the unwillingness of Surry County (VA) Commonwealth Attorney Gerald Poindexter to charge Vick, despite pressure from the media and from Kathy Strouse, the animal control coordinator for Chesapeake, Virginia, to do so. Here is an excerpt from Jason's piece:

Ms. Strouse, apparently, has learned nothing about the judicial process from the missteps in Durham and other places. Rather than allowing Mr. Poindexter to properly develop the case and serve the interests of the people of Surry County and the Commonwealth of Virginia, she wants a public spectacle and a premature indictment. I applaud Mr. Poindexter for the poise and diligence which he has displayed in this investigation.

There's a reason attorneys handle prosecutions rather than dog catchers. I hope the national media respects Mr. Poindexter's investigation rather than latching on to Ms. Strouse's inflammatory comments.

For the rest of the article, click here.

NBA Rules and Legal Formalism

A couple of interesting posts and comments from Michael Dorf at DorfOnLaw about the suspensions of the Spurs' Robert Horry and the Suns' Amare Stoudemire and Boris Diaw over the "altercation" in Game 4 of the Phoenix-San Antonio series.

The issue is how the NBA's rules against leaving the bench, and Stu Jackson's decision to suspend Stoudemire and Diaw for doing so (or almost doing so, since neither actually made it to the fray but quickly jumped back off the court), reflects ancient debates about legal formalism; the advantages and disadvantages of relying on hard legal rules as opposed to more flexible legal standards; and the idea of law v. morality (or justness, if you will). There also is some interesting lawyering going on among Suns backers: The argument has been made that the rule against leaving the bench to join an altercation was not triggered in this situation, because what happened on the court (Horry's hip-check of Nash) was not an altercation. It did not carry the day, obviously, but a cute argument.

Worth a read.

Quick Programming Note

I will be a guest on Bo Bounds' radio show tomorrow morning on WSFZ-SuperSport 930 AM from 8:07 to 8:20 a.m. central time. It can be heard live at this link. Bounds recently interviewed Red Sox closer Jonathan Papelbon and Cleveland Indian left fielder David Dellucci, so I will have some big shoes to fill. It should fun and we will discuss various sports law issues. I hope you get the chance to listen.

Recent Sports Law Scholarship

New sports law scholarship over the past few weeks:

Hector Del Cid, Winning at all costs: Can Major League Baseball’s new drug policy deter kids from steroids and maintain the integrity of the game?, 14 SPORTS LAWYERS JOURNAL 169 (2007)

Marc J. Dobberstein, Student article, “Give me the ball, Coach”: a scouting report on the liability of high schools and coaches for injuries to high school pitchers’ arms, 14 SPORTS LAWYERS JOURNAL 49 (2007)

Kara Fratto, The taxation of professional U.S. athletes in both the United States and Canada, 14 SPORTS LAWYERS JOURNAL 29 (2007)

Jonathan B. Goldberg, Student article. No tying in football? Re-examining the sale of NFL tickets, 14 SPORTS LAWYERS JOURNAL 1 (2007)

Jonathan Gonzalez, Trademark goodwill, brand devaluation, and the neo-political correctness of college athletics: did Marquette’s recent identity crisis cost them thousands or even millions of dollars in brand value?, 14 SPORTS LAWYERS JOURNAL 195 (2007)

Allan M. Johnson, Student article, The right of publicity gets left out in CBC Distribution, 14 SPORTS LAWYERS JOURNAL 71 (2007)

David W. Penn, Note, From Bosman to Simutenkov: the application of non-discrimination principles to non-EU nationals in European sports, 30 SUFFOLK TRANSNATIONAL LAW REVIEW 203 (2006)

Jude D. Schmit, Student article, A fresh set of downs? Why recent modifications to the Bowl Championship Series still draw a flag under the Sherman Act, 14 SPORTS LAWYERS JOURNAL 219 (2007)

Yael Lee Aura Shy, Student article, “Like any other girl”: male-to-female transsexuals and professional sports, 14 SPORTS LAWYERS JOURNAL 95 (2007)

Kelley Tiffany, Cheering speech at state university athletic events: how do you regulate bad spectator sportsmanship?, 14 SPORTS LAWYERS JOURNALS 111 (2007)

Frank P. Tiscione, Student article, College athletics and workers’ compensation: why the courts get it wrong in denying student-athletes workers’ compensation benefits when they get injured, 14 SPORTS LAWYERS JOURNAL 137 (2007)

Should Fantasy League Operators Pay Licensing Fees?

Last August, U.S. District Court Judge Mary Ann Medler ruled that players have no right of publicity in their names and playing records when used by commercial fantasy league operators without a license. MLB and the MLBPA have filed an appeal to the Eighth Circuit Court of Appeals and oral argument is now scheduled for June 14th (exactly one month from today). Fantasy league operators, including Yahoo!, ESPN and CBS Sportsline, currently pay the union a license fee between two and three million dollars. According to Sports Business Journal, a license for FoxSports.com was negotiated last summer as part of Fox’s new TV deal with baseball, but the online outlet is waiting for the outcome of the case before electing whether to pay the fee. SBJ also reported that the MLBPA has recently sent cease-and-desist letters to a collection of smaller fantasy game operators. Needless to say, the outcome of this lawsuit has huge ramifications on right of publicity tort law, and not just specifically related to the fantasy league industry. On Friday morning, I will be moderating a panel on this topic at the Sports Lawyers Association 33rd Annual Conference that includes Judy Heeter, Director of Business Affairs and Licensing for the MLBPA, and Tonia Ouellette Klausner, counsel to the Fantasy Sports Trade Association.

In my recent law review article, The Use of Players' Identities in Fantasy Sports Leagues: Developing Workable Standards for Right of Publicity Claims, I critique the district court's ruling and discuss how right of publicity claims can be viewed on a spectrum of commercial advantage. On one end of the spectrum, there are certain uses of identities that do not constitute a violation of the right of publicity because (although the use may generate economic gain to the user) the use has social value that is protected by the First Amendment making the commercial gain aspect secondary; those uses being for news reporting purposes, literary purposes (i.e. book writing, magazine articles) and expression purposes (i.e. art, parody, etc.). On the other end, there are certain uses that nobody would dispute constitute a violation because the primary use is for commercial gain; those uses being for advertisement, endorsement and marketing purposes. There are uses that fall somewhere in between these two ends, and I refer to these as "quasi-commercial" uses -- fantasy leagues, sports trading cards and video games to name just a few.

Fantasy league use, like trading card use, without a license has been held to violate the players' right of publicity. For example, in Uhlaender v. Henricksen, 316 F.Supp. 1277 (D.Minn. 1970), the court held that the defendants, which manufactured and sold without a license fantasy sports league table games that employed the names and performance statistics of major league baseball players identified by team, uniform number, playing position and otherwise, violated the players’ right of publicity. The Uhlaender court properly rejected the "public domain" rationale, and also provided the policy rationale for why a right of publicity should be recognized in the context of fantasy league use:

A celebrity must be considered to have invested his years of practice and competition in a public personality which eventually may reach marketable status. That identity, embodied in his name, likeness, statistics and other personal characteristics, is the fruit of his labors and is a type of property. Defendants’ contention has no merit that by the publication in the news media and because of the ready availability to anyone of the names and statistical information concerning the players, such information is in the public domain and the players thus have waived their rights to relief in this case. Such argument may or may not have some weight against a right of privacy claim, but in an appropriation action such as in the case at bar the names and statistics are valuable only because of their past public disclosure,
publicity and circulation. A name is commercially valuable as an endorsement of a product or for use for financial gain only because the public recognizes it and attributes good will and feats of skill and accomplishments of one sort or another to that personality. To hold that such publicity destroys a right to sue for appropriation of a name or likeness would negate any and all causes of action, for only disclosure and public acceptance does the name of a celebrity have any value at all to make its unauthorized use enjoinable. (emphasis added). Id. at 1282, 1283.

However, last summer Judge Mary Ann Medler was convinced that the players don't have a right of publicity because their names and performance statistics are in the public domain. But saying it's in the public domain only begs the question as to whether there is a violation of the right of publicity, it doesn't answer it. In other words, professional athletes are, by definition, in the public domain by virtue of being professional athletes. That doesn't mean Nike can use Tiger Woods without a license.

Was the Uhlaender case wrongly decided back in 1970? Or, does the fact that fantasy league games are now sold on the internet, as opposed to a tangible board game in a box, somehow change the outcome? If so, why? The only difference is that the internet has turned fantasy leagues into a $2 billion industry and, if anything, made it even more "commercial". Salaries of professional athletes have definitely increased over this 37 year period, but that doesn't provide any legal basis whatsoever, or even a policy rationale, for denying the players' claim.

Fantasy league operators, like trading card and video game manufacturers, sell a consumer product using players' names and statistics. Consumers are purchasing these products solely because they contain the players' names, likenesses and performance statistics. In other words, these products simply do not sell without their use. Shouldn't the players be compensated? If the Eighth Circuit affirms the district court ruling, would it mean that Topps and EA Sports could also produce their products without purchasing a license?

Valuing Loyalty & Situation: Tim Wakefield and The Reserve Clause

Red Sox starting pitcher Tim Wakefield is off to a fantastic start this season, his 13th with the Sox. The 40-year-old knuckleballer leads the American League with 1.73 Earned Run Average. Operating on a one-year contract, he would seem well poised to have a great free agent season.

But Tim Wakefield won't become a free agent after the 2007 season--unless the Red Sox let him, that is. See, in April 2005, Wakefield agreed to a one-year, $4 million contract extension that included a perpetual team option for one-year, $4 million. In other words, the Sox can keep Wakefield for as long as they want (assuming he wants to keep playing baseball), and the team can revisit that decision every year, provided they are willing to pay him $4 million for the next year. If the Sox decline to extend his contract, they don't even owe him a buyout. It should be noted that Wakefield's annual salary does contain several incentive clauses: he receives an additional $50,000 for each start between 11 and 20, and $75,000 for each start between 21 and 30; he can conceivably make up to $5.25 million--still a far cry from the annual base salaries for pitchers like Roger Clemens ($28 million), Barry Zito ($18 million), and Andy Pettitte ($16 million).

Wakefield's contract is essentially a throw-back to an era before Curt Flood sued Major League Baseball in the historic antitrust case Flood v. Kuhn, 401 U.S. 258 (1972). The case arose after then MLB Commissioner Bowie Kuhn rejected Flood's written request that the reserve clause, which was standard in baseball contracts and allowed teams to retain the rights of players after their contracts expired, should not apply to his employment. Here was Flood's famous letter to Kuhn, in which he likened himself to being treated like a piece of property:

December 24, 1969

After twelve years in the major leagues, I do not feel I am a piece of property to be bought and sold irrespective of my wishes. I believe that any system which produces that result violates my basic rights as a citizen and is inconsistent with the laws of the United States and of the several States.

It is my desire to play baseball in 1970, and I am capable of playing. I have received a contract offer from the Philadelphia club, but I believe I have the right to consider offers from other clubs before making any decision. I, therefore, request that you make known to all Major League clubs my feelings in this matter, and advise them of my availability for the 1970 season.

Unfortunately for Flood, the U.S. Supreme Court ruled 5-3 in favor of Major League Baseball. The Court upheld Major League Baseball's antitrust exemption (as detailed in Federal Baseball Club v. National League, 259 U.S. 200 (1922)) and, through stare decisis, reasoned that changing the exemption is a matter for legislative, not judicial, resolution. But Flood's loss became other players' gain, as Marvin Miller led the MLBPA to successfully demand from the owners the ability to obtain free agency.

This past March, Rany Jazayerli of Baseball Prospectus argued that Wakefield's contract was the worst contract in baseball. By implication, his analysis suggests that Wakefield's contract may be considered a disservice to other players and perhaps even a repudiation of the legacies of Flood and Miller et al.:

[Wakefield's contract] was signed less than two years ago, on April 19th, 2005, by a veteran pitcher who had already made his millions, and who was a free agent at the time. This pitcher, who was about to complete a three-year deal that paid him a little north of $13 million, agreed to a one-year extension worth 4 million dollars--a one-year deal, and a pay-cut, even though said pitcher had just gone 12-10 with a league-average ERA the year before. At the time he signed the extension, he had started the new season 2-0 with a 1.37 ERA; he would finish 16-12 with a 4.15 ERA ...

Then keep in mind that this pitcher had gone 22-12 the two years before that, with ERAs of 4.09 and 2.81 (the latter was 4th-best in the league). This pitcher was in his 13th major-league season and had never suffered a significant arm injury.

To the best of my knowledge, since the dawn of free agency, no player has signed a comparable contract ... We used to have a term for this type of contract in the annals of baseball history. What was it…oh yeah, we called it the Reserve Clause.

But let's look at the contract from Wakefield's perspective. First consider loyalty (a topic that I examined from a scholarly perspective in my Brooklyn Law Review article "It's Not About the Money"). It can be argued that without the Red Sox, Tim Wakefield's baseball career would have ended in 1995. At that time, he was 28-years-old and coming off a disastrous season for Triple A Buffalo in which he had a 5-15 record, a 5.84 ERA, more walks (98) than strikeouts (83), and 27 home runs given up--worst in Triple A. Sure, he was the National League Rookie of the Year in 1992 for the Pittsburgh Pirates, but that was three years earlier; in the interim, he had devolved into one of the worst pitchers in Triple A, and was seemingly destined for another profession--especially after the Pirates unceremoniously released him on April 20, 1995.

But former Red Sox general manager Dan Duquette had a different idea. Six days after the Pirates released Wakefield, Duquette signed Wakefield to a minor-league contract and hired Hall of Fame kunckleballer Phil Niekro to work with him.

Wakefield proceeded to pitch extremely well for the Sox' Triple A team in Pawtucket, and was then promoted to Boston--and hasn't look back since. In that 1995 season, Wakefield finished with a 16-8 record, along with a 2.95 ERA, and he was essential to the Sox winning a division title. He also won the AL's comeback player of the year award and finished third in the A.L. Cy Young Award balloting. Since that extraordinary comeback season, Wakefield has been a mainstay in the Sox rotation, and has even pitched out the bullpen when asked. For a guy who was probably close to leaving baseball at age 28, Wakefield almost certainly feels a deep gratitude to the organization that may have saved his baseball career and extended it at least 12 additional years. That has to count for something.

Wakefield also seems to appreciate the situation of playing for the Sox. The team's longest-serving active member, Wakefield is perhaps also its most popular member and seems to thrive living in Boston. He married a woman from Boston and is very close friends with a number of his teammates, including Mike Timlin, with whom he regularly hunts (see photo of Wakefield with his bow and arrow, with Timlin in the background). Put more bluntly, he's got a great gig playing for the Sox and living in Boston. Perhaps that is why he engaged in the following conversation with his agent, Barry Meister, in 2005:

Wakefield's agent, Barry Meister, told the knuckleballer during this past offseason that, given age and productivity, he might command $6 million from some club at the end of the season.

"He said, `Is that club the Red Sox?' " Meister said. "I said, `No, might not be.' He said, `If you said the Red Sox, that's one thing.'

"He waved me off and said, `Money is important, but it's kind of down the list for me. My desire is to be in Boston and be a Red Sox. That's just who I am now.' "

But did Wakefield owe a duty to other players to not take a contract with a perpetual team option? We considered players' implied contractual duties to the MLBPA when we examined how the MLBPA pressured Washington Nationals' closer Chad Cordero to turn down a two-year contract offer, and Rick has written extensively about the related topic of using unions to negotiate contracts for players. And we know that three decades ago, many players and union lawyers fought hard against the very type of contract Wakefield signed. Has Wakefield been disloyal to the players' association as a price for being loyal to his employer, and how should we regard that?

Or should we applaud Tim Wakefield for not putting money first and instead putting his loyalty and situation ahead? Who are we--and who is the MLBPA and its members--to question what a player considers "valuable"?

Birthistle on World Cup Officiating

Professor William Birdthistle of Chicago-Kent College of Law is guest-blogging at The Volokh Conspiracy on his new article, Football Most Foul, in the Green Bag. The article criticizes the officiating in the 2006 World Cup, arguing that it, more than player performance, determined the outcomes of too many games, and explores ways to reduce the power that officials wield.

His first post is here. Check back at the VC over the coming days to read more.

Manhattanville College Symposium on Best Practices in Sports Business

On Saturday, May 19, the Center for Ethics in Sports at Manhattanville College (CESAM) will host its First Annual Symposium on Best Practices in the Sports Business World. Among the speakers is Attorney Marc Edelman, who runs Sports Judge, the fantasy sports dispute resolution service that I blogged about in January.

The Symposium will be open to the public and will be held in Reid Castle on Manhattanville College's campus in Purchase, New York (directions available here). Registration starts at 10:00 a.m., followed by brief introductory remarks. Here are details on the panels:

10:30 a.m. - 12:00 p.m. "Staying on the High Road in Negotiations"

What is the art of the fair deal? Can you always maintain full integrity in all negotiations settings? Our panel will delve into these issues and more. Scenarios of peaks and shortfalls on the high road in negotiations will be discussed. Whether one works for athletes, teams, or leagues, the session will stimulate and provoke thoughts. Questions & Answers will be taken through a moderator from attendees.

Panelists:
Marc Edelman (attorney and sports judge)
Art Wiess (attorney and NFL agent to Wayne Chrebet and others)
David Burke (general manager of the Hudson Valley Renegades)
Richard Grayso (attorney)

12:15pm-1:15pm Networking Luncheon & Honors Presentation

Gus Alfieri, the biographer for Joe Lapchick, will discuss the NCAA Lapchick Character Award, which was bestowed on several student-athletes at 2006 Final Four. Lapchick, who played for the Original (New York) Celtics in the 1920s and 1930s, coached St. John’s University's men's basketball team to an NIT title in 1959. His son Richard Lapchick is a prominent commentator on sports and race issues.

Forcing Patriotism at Yankee Stadium

Thursday's New York Times reports that at Yankee Stadium, fans are not permitted to leave their seats when God Bless America is played during the Seventh Inning Stretch. Chains block the aisles and ushers face the crowd and order people to stop moving while the song is played. The story's lede captures it: "The most patriotic moments at Yankee Stadium can also be the most confining."

I will talk about what I think are the free speech problems here when I have a chance. For now, let me link to and endorse the comments from Deadspin: God Bless America is a bad song; it cannot hold a candle to America, the Beautiful (I am partial to the Ray Charles version myself); it has no place at the Seventh Inning Stretch; and I always to get to games early so I can remove my hat and sing the Star Spangled Banner before the game, so it is not that I simply dislike all patriotic symbolism and ritual.

More on this to come, I think.

Guilt by Irresponsibility or Guilt by Association? Steve McNair Arrested for DUI by Consent

Baltimore Ravens quarterback Steve McNair was arrested late yesterday in Nashville, Tenn., on a driving under the influence by consent charge. He was a passenger in his silver 2003 Dodge pickup truck, which was being driven by his brother-in-law. There is no evidence that McNair himself was intoxicated or even had any alcohol in him, as that doesn't matter with a DUI by consent charge: all that matters is the driver of the car was impaired, and that the owner of the car allowed the driver to drive the car; if so, the owner of the vehicle can also be charged with DUI, even if he isn't in the car. An increasing minority of states have this law or something similar (e.g., "aid and abet DWI" in North Carolina), and unfortunately for McNair, Tennessee is one of those states.

Rick Maese of the Baltimore Sun has an excellent column today on McNair's arrest and relates it to public reaction to Josh Hancock's death and the NFL's new discipline policy. I was interviewed for the column, and here are some excerpts:

Today we're swimming in that gray area, where you may not agree with a murky Tennessee law, where you don't know if there's a definite right and a definite wrong, and where we have no idea how the NFL will respond. With its new player conduct policy, the league has hinted that it might not see different shades in its black-and-white world.

This is made all the more difficult because sport is built within boundaries, rules and scores. Everything is measurable, the drama usually confined to a two- or three-hour block of time. But as more athletes do their in-town traveling via the back seat of a police car, there's no instant summation or clear-cut understanding.

"It's so easy to jump at the first facts," says Michael McCann, an assistant professor at the Mississippi College School of Law who runs sports-law.blogspot.com. "We're moved by the tragedy or the initial news report."

McNair's alleged infraction -- riding shotgun in a car he owned while the driver was allegedly drunk -- violated what McCann termed an "unusual law." As certain states strive to "get tough" and "crack down," they've lengthened the reach of accountability. In civil cases, you choke on food and skip over the line cook to sue the restaurant chain. And in criminal cases, authorities stretch liability as far as they can to discourage recklessness, and in theory, save lives.

"This is a law that's very scrutinizing of those who own cars and very protective of others on the road, the bystanders," McCann says. "It's built around public safety. It is your car, and there's certain expectation that you'll be responsible with it. It certainly raises the ante a bit."

If the facts come out and McNair knowingly allowed someone under the influence to get behind the wheel, he'd probably be guilty of pretty bad judgment. Did he break a law? Did he endanger others? It's foolish to even try inferring definitive answers today.

After all, the first thing to hit newsprint often only hints at the bigger truth. In this case, we're talking about "McNair charged a second time with DUI" -- even though he wasn't convicted the first time and last night's alleged infraction sure has the makings of something that will be contested.

The full story is usually too complex to fit on ESPN's crawl. As a news item, it has the movement of a knuckleball and we don't know the direction. Similar to when a stripper accused lacrosse players of sexual assault. Or to when we lionized a likable young pitcher who was killed in a car accident.

One and a half weeks ago, Josh Hancock, of the St. Louis Cardinals, died after running his Ford Explorer into a parked tow truck. Initial news reports praised Hancock and mostly ignored the unanswered questions. We later learned there was much more to the story, and that Hancock had a blood-alcohol level nearly double the legal limit.

"He went from being a hero to someone who we were suddenly skeptical of," McCann says. "I think certainly we need to be cautious until all of the facts come out. Whenever we react immediately, we're missing facts and context to the story."

This brings us to the NFL commissioner's office, which just last month issued a new conduct policy for its players, a set of vague zero-tolerance guidelines that would benefit from heeding the same warning as fans: When it comes to doling out punishment and deciding complicity, the smart area is somewhere between hard and fast and weak and slow. It's the gray area.

For the rest of the column, click here.

What does it take to be a sports agent?

Jeff Rabjohns and Mark Alesia of the Indianapolis Star have an interesting piece today evaluating Greg Oden's announcement yesterday that he hired Mike Conley, Sr. as his agent to represent him in contract negotiations ("Transition game: Oden's mentor becomes partner").

So who is Mike Conley, Sr. (pictured at right)?

• He is the father of Oden's high school and college teammate, Mike Conley, Jr.
• He is a three-time Olympian and former Olympic gold medalist in the triple jump
• He has coached summer basketball teams to six AAU national titles
• He is executive director of World Sport Chicago, a group aiming to land the 2016 Olympics for Chicago
• He spent seven years as executive director of Elite Athlete Programs for USA Track & Field, where he oversaw the agent program and wrote the agent handbook
• He established the Professional Athletics Association for track and field athletes.

And yesterday he became a partner with Oden in an eight figure business. But what Conley IS NOT, is an experienced agent. As noted in the story, "One of the most talked-about rookies in NBA history, represented by a rookie NBA agent." Mark Alesia interviewed me for the story, and we had a very interesting discussion about what it takes to be a sports agent.

The answer to the question of what it takes to be a sports agent is simply to be certified as an agent with the players association and to have a client. The more difficult question to answer is, how does a player entering the draft make a properly informed decision in selecting an agent? I discuss this issue in depth in my law review article, Solving Problems in the Player Representation Business: Unions Should Be the Exclusive Representatives of the Players. When you think about it, you have an amateur player who is below the legal drinking age, but he's expected to make one of the most important decisions of his life in selecting a fiduciary to look after his best interests in a multi-million dollar enterprise based solely upon interviews with people he has never been associated with or even met before. An interesting tidbit of information is that, if Oden was a football player, Conley would probably not be certified by the NFLPA because Conley has not received a post-graduate degree (as required by the NFLPA agent regulations).

A player in Oden's position is heavily solicited by dozens of agents influenced by dollar signs and is offered all sorts of promises and inducements. The concern is that the player is being unduly influenced by agents in the selection process. Conley is actually serving as a "buffer" in alleviating that concern. While players tend to make their decision based upon such factors as the agent's experience and who the agent represents, these definitely should not be the only factors. Oden chose somebody he has known for years and obviously trusts a great deal, both important factors. As I told Alesia, I think the fact that Oden decided not to just go with a high profile agency with a "show me the money" attitude reflects favorably upon his character.

The fact of the matter is that Oden is most likely the number one or two pick in the draft (I'm "projecting" number one). He probably feels, and rightfully so, that whoever represents him as his agent is not going to impact which team selects him in the June 28 draft. Also, with rookie scale contracts in the NBA, there is not a whole lot of room for negotiation. Is the agent worth the standard 4% commission under these circumstances? In my law review article, I mention how these factors have decreased the utility of an agent in contract negotiations. Conley's new agency, MAC Management Group, will become partners with BDA Sports Management, an experienced agency that represents NBA players. Conley's company will handle Oden's NBA contract and turn to BDA for help on endorsements and marketing.

Oden has chosen a similar model used by LeBron James, which seems to have worked for LeBron, in which Conley will essentially outsource the endorsement and financial planning services needed by Oden. In my law review article, this is the model I advocate for unions to adopt by which players would have the option to have a union-employed person handle the individual contract negotiations and oversee the outsourcing of other services to third parties. Obviously, the third-party agents currently advising all of these players have no interest in that happening whatsoever, so I'm sure agents will not be discussing such a possibility with their players anytime soon.

WAKA v. DCKickball: A Claim Worth Kicking Aside?

In March 2006, I blogged about WAKA LLC v. DCKickball et al. (E.D. Va. May 30, 2006), a federal lawsuit brought by the founders of the World Adult Kickball Association ("WAKA") that asks for $356,000 in damages from rival DCKickball. WAKA's basic claim is that DCkickball infringed upon WAKA's copyright by engaging in "unauthorized use" of two of WAKA's kickball rules. Before evaluating the claim--which remains without a trial date--let's first discuss the parties.

WAKA, which was founded in 1998, is the largest sanctioning body for adult kickball in the United States. It features tens of thousands of members and teams across 23 states and in India. It has also been credited with "the popularization of the children's game as a recreational and social activity among adults."

In contrast, the upstart DCKickball started just a couple of years ago. While growing in popularity, it features several hundred players, all of whom play in Washington D.C.

Keep in mind an obvious point about adult kickball: players in these leagues are not professional athletes; they pay a registration fee to participate in a recreational sport. Along those lines, the main purpose of these leagues--which are co-ed and primarily feature persons in their 20s and early 30s--is a social one. DCKickball has many photos of off-field social events, such as the one to the right, evidencing this point and it expressly notes it in its Q/A:

5. Is this a serious league?

God, I hope not. Maybe about drinking. The focus of DCKickball, from the beginning, is about meeting people, having fun, and not taking things too seriously. But it’s pretty much up to everyone involved to contribute to this attitude. If you encounter anyone who isn’t into this, please tell them to chill-out. It’s just kickball, people.

So if it is just a bunch 20-somethings having fun playing kickball and hanging out at parties, why would their leagues sue each other?

WAKA claims that it enjoys copyright protection in its game rules and that DCKickball stole two of those rules: 1) the "clearly unique requirement that there be 4 men AND 4 women at a minimum to play" and 2) a 21-year old age floor for play. WAKA now seeks $356,000 in compensatory and punitive damages. WAKA bases its claims on the originality of its league and rules: while the four men who started WAKA acknowledge that they did not invent kickball, they assert that they were the first to start "social adult kickball" and to come up with its rules.

M.S. Enkoji of the Sacramento Bee just published an excellent article on the growing popularity of kickball, and she includes discussion of this lawsuit. Along with a number of other persons, I was interviewed by Enkoji, and I discuss the lawsuit. Here is the legal discussion found in Enkoji's piece:

But the very uncomplicated game of kicking a big red ball and rounding the bases -- think softball without the bats -- has become a federal case. WAKA has sued another kickball league, DCKickball, in U.S. District Court in Alexandria, Va., claiming "copyright infringement." WAKA is claiming that when former members broke off to form the second league, they stole WAKA's unique rules. Neither side will talk about the lawsuit.

"They think all of a sudden they created kickball? It's kickball," said Michael Murphy, general manager of the Golden Gate Sport and Social Club in San Francisco. "You roll the ball; someone kicks the ball," he said, explaining the basic rules of the game his organization also offers. "It's a free country." The San Francisco club, which has not been sued by WAKA, is part of a multi-sport national organization that started 12 years by some Chicago women interested in co-ed football.

"It's hard to believe that people would go to court over this," said Michael McCann, an assistant professor who specializes in sports law at the Mississippi College School of Law. "The notion that they own a sport, that's just crazy." McCann said the suit boils down to a complicated legal point that will be tough to prove. No one owns the mechanics of the game, just as baseball and basketball aren't owned, he said. But the way certain rules are "expressed" or used, such as requiring at least four women and four men on each team, could possibly be a copyright issue, he said.

So while WAKA can likely establish that it enjoys copyright protection in how it expresses a rule, it is very unlikely that it can establish ownership in the mechanics of that rule. John Marshall law professor William Ford, who blogs on Empirical Legal Studies, similarly noted this in response to my post last year:

You are free to copy the method of play, but you need to express it in your own words (or in words in the public domain) . . . The protection for the wording of rules has limits, however. When there are only a limited number of ways to express a rule, which would seem to apply in this kickball case, others should be free to copy the rule's wording under copyright's "merger" doctrine . . . WAKA's claim sounds very weak. It seems WAKA thinks it can monopolize a game mechanic or a short, one-sentence statement of a game mechanic.

Aside from its intellectual property dynamics, this lawsuit can also be viewed from a competition/antitrust perspective. In that vein, one might argue that it is an attempt by the much better financed WAKA to raise DCKickball's expenses and put it - WAKA's major competitor in DC - out of business. Whether that is true or not is unclear.

We'll keep you updated on WAKA LLC v. DCKickball et al. For a thoughtful response from a DCKickball player, see Martin Austermuhle's post on DCist.

The Abbreviated One-Year Contract Strategy: Roger Clemens signs with New York Yankees

Red Sox fans received some discouraging news earlier today, when 44-year-old free agent pitcher Roger Clemens announced that he has agreed to a one-year, $28 million contract with the New York Yankees. The contract is prorated for the remainder of this season, meaning that Clemens will "only" earn $18 million (or about $4.5 million a month). The Red Sox apparently offered Clemens $10 million less than the Yankees, while the Houston Astros--the other team competing for his services--offered even less. In adding Clemens, the Yankees' 2007 player payroll will rise to about $218 million, the highest in baseball and a rather pricey sum for a team with a middling 14-15 record.

Clemens and his agent, Randy Hendricks (pictured to right), have employed a unique and apparently effective free agent negotiating strategy the past couple of seasons: wait until May or June (or whenever large market teams become unexpectedly desperate for pitching), create a bidding war between rival teams without having to compete against other marquee free agents for those teams' attention, sign a massive one-year contract, and then do it again the next year.

I'm not sure how many players could pull this strategy off, but it will be interesting to see if other star free agents try it in the future. Not only has it provided Clemens with a string of incredibly-lucrative one-year contracts, but it has enabled him to both avoid the wear-and-tear of spring training and considerably shorten his working year. It has also allowed him to obtain valuable employment perks, such as routinely being excused from traveling with the team and thus being able to spend more time with family. On the other hand, by using a one-year contract strategy, Clemens probably amplifies the risk of injury or under-performance on future earnings (although after a spectacular 23-year Major League career, I suspect that he has a decent chunk of change in the bank should either of those risks materialize).

Despite Clemens joining the Yankees, all is not lost for Sox fans. Buoyed by 40-year-old Curt Schilling, their team won today and now enjoys a 20-10 record, tops in the American League. Even better (perhaps, maybe), Jon Hanson and I published an article on The Situationist today entitled "Red Sox Magic." It examines the "faith" of Sox fans in their favorite team. Here is an excerpt:

But what about fans who merely wish ? Does wishing make a difference? And if not, why would they still wish? [Princeton University social psychologist Emily] Pronin’s research, again, indicates that wishing satisfies our urge for control at those times when actual control over outcomes we care about is in short supply.

This phenomenon was certainly apparent in the buildup to Red Sox victory in 2004. Consider the classic thread “Win it For” on the popular Red Sox fan messageboard Sons of Sam Horn (also known as “SoSH,” of which principal owner John Henry and ace pitcher Curt Schilling are members). The thread was started by high school teacher and diehard Sox fan Shaun Kelly right before Game 7 of the Sox-Yankees American League Championship Series. By urging fellow fans to dedicate the game to “the special people in their lives who had loved the team through thick and thin,” Kelly hoped that he would create some “mojo” for the Sox. He concluded his message with . . .

We hope you read the rest of our article on The Situationist.