Sonics Judge: The Worst Judicial Sports Metaphor of All Time?

Federal district judge Ricardo Martinez handed down his first ruling in the dispute between the Seattle Supersonics and the City of Seattle, which I blogged about last week. You can download or view a PDF of the court's ruling here.

The ruling itself resolves a matter hardly central to the underlying dispute in an unsurprising way. After removing the case to federal court, the Sonics owners sought to compel arbitration. Although federal courts generally favor enforcement of arbitration clauses, in this case the lease contract fairly clearly excludes disputes concerning the term of the lease ("Section II" of the lease) from the arbitration clause.

I don't have a problem with the decision itself. But why include this (on page seven)?:

[The Owners'] attempt to side-step Article II and shoot for Article XXVI is as errant as a typical Shaquille O'Neal free throw.

The court here not only mixes metaphors (side-stepping and free-throw shooting), it also misrepresents Shaq's free-throw shooting capabilities. Shaq is a lifetime 53% free-throw shooter. His problems have surfaced -- unfortunately -- primarily during the playoffs. Were the court inspired to use a metaphor based on O'Neal's foul shots, it should have added, "...in the playoffs." The fact is, the majority of Shaq's free throws go in! Does the court mean to suggest that the majority of the owners' arguments are convincing? Clearly not.

So what do metaphors like this add? Can a court be taken seriously when it spends time (although apparently not much time) thinking of ways to insult professional athletes? Why do courts, as one student asked me after reading the opinion, do this sort of thing regularly in sports cases but not in other disputes? (I've never seen a pun on "coke" in a case involving a steel company dispute, for instance).

Then again, maybe the court will choose to characterize the city's underlying effort to enforce the lease via specific performance as a Hack-a-Shaq technique: a somewhat unsportsmanlike and typically unsuccessful approach. Judge Martinez, with all due respect: A swing and a miss.

Settlement in Fighting Sioux Lawsuit

The University of North Dakota has settled its lawsuit against the NCAA over the school's use of the Fighting Sioux nickname. Under the settlement, the University has three years to try to get support of the several Sioux tribes for continued use of the name; if it does, it can keep the nickname. UND can continue using the nickname in the meantime. The Standing Rock Sioux and the Spirit Lake Sioux both have opposed the nickname in the past and have stated that they will continue to do so, thus this settlement just may be postponing the inevitable. But in the meantime, the school and the state can continue to lobby the tribe and individual members for support.

Manny Being Manny: Success Through Perspective

Over on The Situationist, Jon Hanson and I have a piece that uses social psychology to compare Manny Ramirez and Alex Rodriguez. The piece is entitled "The Situation of 'Winners' and 'Losers'" and it examines the very different playoff performances of Ramirez and Rodriguez over the course of their careers and suggests some possibilities for why two phenomenal players perform so differently when it "counts." We also discuss varying public reactions to these players, both of whom are frequently the target of fan and media scorn (though for very different reasons).

Here is an excerpt from the piece:

If the stereotype-threat analogy has any relevance, it helps us see that the problem is not a function merely of A-Rod’s disposition (as the kind of person who is “clutch” or the kind of person who “chokes”); it also reflects the expectations and conceptions in A-Rod’s situation, surrounding him like the chalk of the batter’s box or the love-him-when-he-succeeds-but-despise-him-when-he-fails fans. And those expectations, reactions, and resultant anxieties may be a big part of what leads to the pop-ups, double-play balls, and strikeouts that disproportionately characterize his playoff at bats. When sports writers and commentators and fans dispositionalize a player as “Mr. Clutch” or as “Mr. Choke,” they are influencing what they assume they are only describing. Blaming A-Rod is, at least in part, creating A-Rod.

At the very moment when A-Rod is attempting to be the hero or avoid being the villain, he ought to be watching the pitch. For most players, that is easier said than done — unless, perhaps, you’re a very strange bird . . . unless, in other words, you’re Manny Ramirez.

* * *

In a world in which many assume that winners and losers are determined by “heart,” “will,” “a sense of urgency,” “the eye of the tiger,” and so on, Manny reminds us that maybe we can succeed by keeping things in perspective. “Winning attitudes” are great, but there’s a lot to be said for a a little ho-hum mixed in. Why is it always “Manny being Manny?” Maybe more people, including Alex Rodriguez, should consider “being Manny.”

* * *

We hope you check out the piece. As an aside, it will be interesting to see whether Ramirez and Rodriguez are teammates next year on the 2007 World Champion Boston Red Sox, who seem poised to pursue to A-Rod now that he has opted out of his contract with the Yankees, particularly with Mike Lowell a free agent.

New Sports Law Scholarship

New this week:

Gabriel Grossman, Comment, Switch hitting: how C.B.C. v. MLB Advanced Media redefined the right of privacy, 14 UCLA ENTERTAINMENT LAW REVIEW 285 (2007)

Christo Lassiter, Lex sportiva: thoughts towards a criminal law of competitive contact sport, 22 ST. JOHN'S JOURNAL OF LEGAL COMMENTARY 35 (2007)

Jessica N. Trotter, Note, Rooting for the “home team”: how major league baseball and Latin America can better provide for the “safe”-ty of their players, 13 SOUTHWESTERN JOURNAL OF LAW & TRADE IN THE AMERICAS 445 (2007)

Another Perspective on the Torre Affair

My past blog outlined what I thought was the dysfunctional manner in which former Yankees manager Joe Torre's contract proposal was played out. I agreed the overwhelming view that the Yankees made an embarrassing offer that constituted poor negotiation skills and even a hope that Torre was reject it. As part of the problem was the uncertain power structure the team presently has.

A contrary opinion was expressed in a column by Murray Chass of the New York Times. He noted that, despite Torre's feeling of being "insulted" by the bonus provisions, the former manager had incentive clauses in his last two contracts, which covered the last six years of his employment. According to Chass, in the 2002-4 contract, Torre earned bonuses of $200,000 for winning the division series, $300,000 for winning the league championship series and $500,000 for winning the World Series. The 2005-7 contract eliminated the division series bonus but provided $400,000 for winning the league championship series and $600,000 for winning the World Series.

With respect to the one-year nature of the contract proposal, Chass reports that Torre considered a $4.5 million one year contract extension at the beginning of last season. In so many words, Chass is wondering why Torre even considered such a deal then, but felt so put-off by a one-year $5 million offer at the end of that same season.

Chass concludes his column: "Torre never mentioned those negotiations, nor did he disclose his profitable contract incentives. Should he have talked about either? Maybe he had no obligation to unless he was asked about them, but he did have a responsibility not to make misleading claims about motivation and insult."

Chass's points are well-taken and I would like to hear Torre's take on these points. However, they still do not believe that the Yankees acted with good faith in crafting a bona fide offer under the circumstances. And Chass does not address the almost two-week delay in even getting this offer to Torre. I think that is an important piece of this puzzle.

Handicapping the Oklahoma City Supersonics

We haven't blogged much about the lawsuit filed by the City of Seattle against the Oklahoma-based ownership of the Seattle Supersonics basketball team seeking to force the team to stay in Seattle. Mike had a few comments on the dispute here.

In any other setting, a commercial lease tenant should be able to break a lease, leave a space, and then pay damages, if any, to the landlord. But sports team leases are special -- particularly when local judges are involved in deciding a case. The Sonics decision may be shaped by the legacy of a Minnesota Twins relocation decision handed down a few years back by a state court judge (Metropolitan Sports Facilities Commission v. Minnesota Twins Partnership, 638 N.W. 2d 214 (Minn. App. 2002)).

In that case, the court ordered the Twins to play out the last year of their lease, scuttling MLB's plans to contract or relocate the team. The court's issuance of an "affirmative injunction" was purportedly based on the irreparable harm that would result to Minneapolis and St. Paul were the team to move or disappear. Two things should be noted about the decision: (1) It was handed down by a sentimental state court judge and (2) It was bad law. Even if one is happy that the Twins stayed put and MLB took the team out of its cross-hairs, it's hard to defend the court's ruling on a legal level. The fact is, the Twins would have been free to leave at the end of the year covered by the court's injunction -- the lease, at that point, would have expired and any specific performance clause would no longer be enforceable. The assertion that the Twins leaving a year early would cause harm that could not be repaired is a stretch given that nothing could have stopped them from leaving -- or stopped MLB from contracting the team -- a year later. For a great analysis of the Twins case, see Matt Mitten's article on the subject from the Iowa Law Review. Notably, the Sonics owners have volunteered to pay the rent for the remainder of the lease, so it would be hard to imagine a court issuing an order of specific performance unless it treads the same ground as the Minnesota court did a few years ago and takes into account the "positive externalties" that would be damaged were the team to decamp.

Still, it's easy to imagine a Washington state court being motivated to stop the Sonics owners relocation plans. Wisely, the Sonics have moved the case to federal court -- where one might expect a more disciplined consideration of the legal issues involved. Moreover, the owners of the Sonics are seeking to have the matter resolved by way of arbitration pursuant to an arbitration clause in the lease (a move the City, as indicated in its complaint, intends to fight). One wonders why MLB did not pursue these options -- assuming they were available -- in the Twins case. Overconfidence? Lack of diversity jurisdiction?

The City of Seattle's complaint itself can be downloaded or viewed in PDF form via a "related content" link here.

Will the two sides reach a deal before the October 31 NBA league meeting next week, when the Sonics will ask for permission to relocate the team (presumably to Oklahoma)? Maybe not. Acrimony has clearly developed in the Jet City. Two fans are even suing the Sonics for false advertising after the team invited fans to be part of a "New Era of Sonics Basketball."

Unless an agreement is reached, this is likely going to be the next great saga in American sports law. It seems -- based on the Twins case -- that cities now seek to delay relocation and contraction plans using litigation. That tends to muck up the best laid plans of commissioners and owners, and the result is a team tends to stay even though it could, subsequently, move without a problem. But maybe this group of owners is more determined (or more flush with cash).

For links to various articles on the Sonics dispute, see here.

SI.com Column on NFL Pat Downs and Sheehan v. 49ers

I have a new column on Sports Illustrated.com entitled "Questioning Legality of Pat Downs." In addition to examining pat downs in general, it looks at Sheehan v. The San Francisco 49ers, a pat down case that will soon be heard by the California Supreme Court.

I had the good fortune of interviewing a number of experts for this piece, including NFL VP of security Milton Ahlerich, two ACLU lawyers (Ann Brick and Rebecca Harrison Steele) working on pat down litigation, Princeton University psychology professor Emily Pronin, and Sports Law Blog's own Luis Cassiano Neves, an expert in international sports law.

I hope you have a chance to read the piece.

The Torre Travesty -- A Dysfunctional Family Business

Over the last 35 years, one constant refrain in New York sports has been the on and off-field soap opera known as the Yankees. The latest act was the attempt or non-attempt to secure a new contract for its now former manager Joe Torre. Many journalists and fans have expressed their views, with an overwhelming sentiment that Torre was poorly treated by the team. That view was reinforced by his press conference where he concluded that the team's offer of a one-year, incentive-laden contract was an insult based on his success as manager of the team over the last 12 years. I tend to agree with this view.

But that is not why I'm writing. Instead of my legal cap, I'm putting on my business school hat to analyze what went wrong from a tactical and managerial view and how this portends bad times for the team.

"Getting to Yes" is a term frequently used in negotiation strategy. It comes from a now-classic text by Prof. Roger Fisher, one of the gurus on the subject. I won't and can't summarize the book here, but there are a few important points he and his co-authors say about negotiation: it is a creative process, and the negotiator should seek to invent new options that might satisfy both parties' needs and should take the other side's needs in account when making new proposals. This did not happen here. In fact, this can be a case study in violating these norms and destroying a longstanding relationship.

Let's start with the fact that there is no one steward running the Yankees, but a dysfunctional family operation. George Steinbrenner is, to put it politely, not as active as he once was, but the reins of power have not been transferred in a coherent manner. So, we have several chefs -- his two sons Hank and Hal (who were thrust in positions of power relatively recently) , because the former son-in-law was yanked out after his wife filed for divorce), along with others in the brain trust such as team president Randy Levine, CEO Lon Trost and GM Brian Cashman.

I think the offer that was made -- one year $5 million, plus incentives for advancing in the post-season, was a product of a consensus. Some wanted Torre out altogether while others wanted to sign him to a more stable and long-term contract. No one side had absolute control, so a compromise was proposed -- one that was perceived either to be half a loaf, or a half-baked offer -- give him a temporary agreement with bonuses and see what happens next season. Did anything really think Torre would accept this?

Say this George Steinbrenner. He managed by decree, was dictatorial and sometimes irrational. Management by fear is not ideal, but everyone knew that decisions would be quick, direct and blunt. Steinbrenner the Elder would not have equivocated and would have decided not to new the contract within 48 hours of the team's elimination by the Cleveland Indians.

Now, let's examine the terms of the offer. The proposal treated Torre as a new applicant rather than a seasoned veteran. They did not guarantee the contract for more than one year. In sports, this is akin to an employee at will. That, While some in the Yankees' brain trust thought that a bonus system would work, it inferred that Torre needed the extra incentive to win in the playoffs. For a committed baseball person like Torre, that was too much.

Then there is the delay before the proposal -- an unconscionable length of time given the circumstances. To have Torre wait 10 days for an offer simply made him more resentful. From a negotiations point of view, it sent mixed signals at best and an implied message of we want you, but we REALLY do not want you at worst.

Finally, the offer was not negotiable. No counter proposals, no discussion, no debate. It was contract negotiation by dictat, which presupposed two things: (1) that the Yankees had a superior bargaining position, or (2) they just went through the motions. If it is the second, it certain guaranteed not "Getting to Yes" and served no useful purpose.

Sports Agency on the other side of the Pond

Marc Edelman recently posted on the subject of Sports Agencies representing both Players and Ownership. Conflict-of-Interest or Common Sense? Mark asked. The same question is pretty much on the European agenda at the moment. The new FIFA Players' Agents Regulations are currently being discussed by sports regulating bodies and even the EU has taken an interest in the issue.

General perception is most soccer deals in Europe are made in the following manner: an Agent is approached by, or approaches a, club regarding an offer for a player and his prospective transfer. Somewhere along the line, club and agent discuss payments to be made to player (salaries, bonuses, etc.) as well as payments to be made to agent (commissions, fees or other). In the end, the player seldom pays anything to his agent and clubs pick up the tab for the representational work undertaken by the agent on behalf of his client. In fact, I don’t think most players would react well to an agent presenting an invoice for his services, which is testimony to the current state of affairs and to the amount of work to be done in terms of avoiding conflict of interest.

1. Illegal Payments and Dual Representation

FIFA Players’ Agents Regulations (which are superseded by National Law on the subject but are basically accepted by Football Associations all over and can be regarded as the legal framework when dealing with agency issues, hereinafter the “Regulations”) set forth that "[t]he contract shall explicitly mention who is responsible for paying the players' agent's fee, the type of fee and the prerequisite terms for the payment of the fee" (article 12.3). In addition, the Regulations establish that “[o]nly the client engaging the services of the players' agent, and no other party, may remunerate him” (article 12.4).

The foregoing provisions do not preclude agents from being engaged and remunerated by clubs. In fact, article 11.4 of the Regulations clearly states that an agent has the right “to take care of the interests of any club which requests him to do so”. In this case, the agent “shall be remunerated for his services by payment of a lump sum that has been agreed upon in advance”, as per Article 12.9 of the Regulations.

A holistic interpretation of both articles 11 and 12 necessarily concludes that agents must be remunerated by the party they are representing while they must represent only one party in any given deal. However, available evidence suggests this is hardly the practice amongst European licensed agents. Illegal payments (known as Bungs in the UK) and dual representation threaten to become established traits in the trade. Ian Blackshaw, a distinguished law professor, reports that an investigation into the bung allegations commissioned by the FA Premier League in 2006 and lead by Lord Stevens undertook the review of all 320 Premier League transfers that had taken place since January 2004. Lord Stevens identified 39 transfers as requiring further investigation, while one unnamed football manager submitted that the figure should be multiplied 4 or 5 times.

The FA has been very reactive to the troubles of agency and a transfer clearing-house has been put in place, requiring clubs to submit a declaration of payments form, provided by the FA, to the Registrations departments along with the player's contract, registration form and, where necessary, transfer form. In turn the transfer funds must be forwarded to the Finance department where they are then checked and cleared to the authorized banks and only after this process can the registration be finalized. Other Associations have taken no such measures and we can only guess that Lord Stevens would have had a lot more work had he looked into transfers all over Europe.

Let's take the example with which I started this post. That same agent has two offers for his player: club A has submitted a proposal of USD 500.000 and an agent fee of USD 100.000. Club B on the other hand, is offering the player USD 350.000 whereas the agent gets USD 150.000. Guess who will end up securing the player’s signature? This may be a touch to simplistic, but it illustrates the bottom-line.

2. Cross Ownership and Conflict of Interest

Globalization has changed the face of Soccer, and in no other area is this more apparent than in ownership of players’ transfer rights. 20 years ago players’ transfer rights were the clubs exclusive property. With much more significant amounts of money coming into the sport, and with many clubs struggling to balance their accounting sheets, we’ve reached a point where clubs, individuals and funds are owners of players’ transfer rights. Nowadays, a club wishing to engage the services of a player is likely to have to negotiate the transfer with an investment fund.

This has opened up the door for obscure situations. Club managers, directors and agents are sometimes the people behind these funds. Again, how can club managers be expected to act in the club’s interest if they have a personal stake in a deal? How can an agent faithfully represent the interests of a player when his own personal interest in on the table?

Current Regulations are silent on this matter but the word is the new draft Regulations will contain provisions specifically addressing the issue. But there is no point in having legal provision if there is no monitoring of compliance.

Control seems to be the ominous solution. People need to go on record as to their status in any given transfer and cannot be afforded the chance to represent themselves and third parties at the same time. It all sounds a bit draconian. But can anyone truly disagree with the assumptions and suggested solutions?

School District and University Liability to Athletes Regarding Antibiotic Resistant Staph Infections

This week, news outlets have reported a frightening rise in reported cases of MRSA, a strain of the staph infection resistant to existing antibiotic treatment. This life-threatening infection begins as a small sore which may resemble a pimple, blister or spider bite.

Staph infections have long been a particular problem for high school and college athletes. Athletes spend time in locker rooms that are breeding grounds for staph and other bacteria, and dirty uniforms and equipment can further the spread of the bacteria. According to one report,

the bacteria do thrive in locker rooms and gymnasiums . . . . "This scenario sets up the perfect scenario for the organism to invade the skin. In this setting, you have sweat and good exposure to skin. With youths who play football or lacrosse, the skin might also be cut or scraped, making the skin more vulnerable."

According to another report,

"If you go back to the locker room and there are guys sharing towels, sharing whirlpools or sharing weightlifting equipment," said Dr. John Francis of the Johns Hopkins University School of Medicine, "there's a risk of this bacteria commonly found in your skin to then be passed from one individual to another."

The resistant MRSA also seems to have disproportionately impacted athletes.

Nine Pennsylvania football players - from various schools - have contracted MRSA this year, all having played on the same field. This week, six high school football players in Kentucky were diagnosed with MRSA. In response,

school officials said they are now going to sanitize school locker rooms every Sunday. They will also sanitize wrestling mats and weight-room towels on a daily basis.

In Fairfax County, Virginia, where six high school athletes have contracted staph so far this year,

trainers have worked with student athletes for the last two years to educate them about the risks of MRSA, said Jon Almquist, administrator of the county's athletic trainer program. Students are shown a DVD on the issue, and taught to have a trainer examine any lesion or wound on their skin for signs of infection, Almquist said.

Nor have college athletes escaped the recent rise in resistant staph.

Staph is a serious condition even in its treatable forms -- and, sadly, it is only a matter of time before a high school or college athlete loses a limb or her life as a result of the spread of MRSA. (A Virginia student died this week from MRSA, leading to the closing of 16 schools, but it is not clear that he was an athlete). Admirably, public health authorities are dedicating increasing attention to the matter.

What legal liability, if any, might rest on the shoulders of a university or high school for failing to take adequate steps to reduce the risk of such infections to athletes? Although there are several cases involving staph infections against prisons and hospitals, I could find none targeting a school district or university. However, schools have been held liable for serving E. Coli-infected tacos to students. See, e.g., Almquist v. Finley School Dist. No. 53, 57 P.3d 1191 (2002). Although schools are often immune for simple negligence, they have been held liable where they create a public nuisance or where employees of the school district recklessly supervise students. Might some of those theories expose schools to staph-related liability claims by athletes?

4th Circuit Rules in Latest Baltimore Ravens Logo Infringement Case

The U.S. Court of Appeals for the Fourth Circuit has published its opinion in Bouchat v. Bon-Ton Department Stores et al., the latest copyright infringment case concerning the logo of the Baltimore Ravens (via Above-the-Law and How appealing). In earlier litigation, plaintiff Bouchat

sued the Baltimore Ravens, Inc. (the Ravens)and National Football League Properties, Inc. (NFLP), alleging that these defendants had copied one of his drawings in choosing a logo for the Ravens. A jury considering liability found that the Ravens and NFLP had infringed Bouchat’s copyright in the drawing, but a second jury considering damages awarded none. We affirmed in each of two appeals. In the four cases before us today, Bouchat sues several hundred companies (licensees) that used the infringing logo in various endeavors, including the production and marketing of official Ravens merchandise. In summary judgment proceedings in these cases, the district court held that the licensees had infringed Bouchat’s copyright, but denied his requests for actual or statutory damages. Bouchat appeals the judgments, and we affirm. We conclude that the doctrine of claim preclusion prevents Bouchat from obtaining actual damages from the licensees and that his failure to register his copyright before infringement began renders him ineligible for statutory damages.

For more information on the underlying dispute, see Greg's post here, which links to the 4th Circuit's opinion in Bouchat's earlier case against the Ravens.

UCLA School of Law Sports Law Conference & Call for Sports Agent Panelists

Nate Jones, a 1L at UCLA Law and author of the Jones on the NBA blog, alerts me of the following:

UCLA School of Law seeks sports agents (particularly MLB, NBA, NFL) to participate in a panel slated for Thurs., Nov. 13th. The topic will center around the paternalistic structure of the league-athlete relationship. Through an examination of policy and contractual provisions by which leagues in general tend to assert their dominance, the discussion will consider areas such as right of publicity, intellectual property, moral clauses, salary cap, and minimum age requirements. By looking prospectively to the future of sports agreements, the discussion will also consider how players might increase personal and professional autonomy, particularly in a digital age. CLE credit may be available for lawyers.

For more information, please contact: Amber Jorgensen - jorgensen2009@lawnet.ucla.edu

This sounds like a great event and if you are a sports agents based in or near Los Angeles and interested in speaking at it, please contact Amber Jorgensen at the e-mail address indicated above.

Eighth Circuit's "Public Domain" Rationale Provides No Workable Standard for Right of Publicity Claims

Yesterday, the Eighth Circuit Court of Appeals issued its 13-page ruling in C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P. and affirmed the ruling of the United States District Court for the Eastern District of Missouri. The full opinion is available here.

In Missouri, the elements of a right of publicity action include: (1) That defendant used plaintiff's name as a symbol of his identity (2) without consent (3) and with the intent to obtain a commercial advantage. The district court concluded that the evidence was insufficient to establish the "identity" and "commercial advantage" elements. But the district court was clearly wrong on that conclusion as a matter of law because there is no dispute that fantasy league operators are using the players' names for a commercial advantage in the games they are selling to the public. The Eighth Circuit disagreed with the district court and correctly found that the players established a cause of action for right of publicity: "Because we think that it is clear that CBC uses baseball players' identities in its fantasy baseball products for purposes of profit, we believe that their identities are being used for commercial advantage and that the players therefore offered sufficient evidence to make out a cause of action for violation of their rights of publicity under Missouri law." I'm glad to see that the Eighth Circuit put to rest the flawed notion that fantasy leagues are just using statistics and not players' identities.

The court of appeals held that the First Amendment nonetheless trumps the right of publicity action because "the information used in CBC's fantasy baseball games is all readily available in the public domain, and it would be strange law that a person would not have a first amendment right to use information that is available to everyone." (emphasis added) Actually, it would NOT be strange law. I can assure you that there is no authority for that proposition in the context of right of publicity actions, and that's because it provides circular reasoning. Public domain, which is an intellectual property concept, simply means the public has a right to certain information, documents or writings because nobody else has rights to it under the law, for example under right of publicity law. Wouldn't it be "strange law" to say that individuals have no right of publicity if their names are in the public domain? Famous people, by virtue of their fame and fortune, are, by definition, in the public domain. Indeed, the more famous they are, the more they are in the public domain, and thus, the more likely it is that third parties will desire to use their names for commercial gain. In fact, that is the basis for even recognizing right of publicity as a cause of action.

The court's "public domain" reasoning is simply not a workable standard for evaluating when the First Amendment trumps a right of publicity claim. How is a court to use this standard in the context of other uses, for example use of players' identities in baseball cards, in video games, or on a cereal box? At least the court of appeals put to rest the notion that a picture somehow strengthens a right of publicity cause of action over merely using the name (which did seem to influence the district court). In support of its public domain rationale, the court relied on the Cardtoons case involving Cardtoons' parody trading cards featuring caricatures of players with humorous commentary about their careers. But that case is clearly distinguishable because the use by Cardtoons involved social commentary on public figures, the type of creative expression protected by the First Amendment (another case along those same lines is the Tiger Woods case which involved the defendant painter's expression through art work).

The court of appeals also justified its holding on the grounds that "major league baseball players are rewarded, and handsomely, too, for their participation in games and can earn additional large sums from endorsements and sponsorship arrangements." This justification seems odd to me for a few reasons. First, it has absolutely nothing to do with First Amendment principles. Second, the court is making its own subjective assessment about acceptable ways that certain individuals should be able to make money. The court provides no standard for determining when it is acceptable for players to be compensated in a particular context. Third, while the court suggests that players should be able to make money from endorsements and sponsorships, it obviously begs the question as to why the court's public domain rationale wouldn't trump that right as well. How is a court to analyze baseball card and video game use under this standard?

So instead of clarification involving the First Amendment and right of publicity, I walk away from the court's opinion even more confused. I wonder if the Supreme Court would endorse the Eighth Circuit's public domain standard?

MLB loses in fantasy stats lawsuit

The United States Court of Appeals for the Eighth Circuit (located in my temporary home of St. Louis) today decided CBC Distribution and Marketing, Inc. v. Major League Baseball Advanced Media. At issue was whether the MLBPA could control use of players' names, statistics, and other personal information to prevent a fantasy-sports company from using this information in its leagues without a license. MLBPA had granted exclusive right to a company formed and controlled by MLB, which planned to operate fantasy leagues.

The court held that, although the players enjoyed a state-law right of publicity in their names and other personal information, their publicity rights were trumped by CBC's First Amendment right to use this information. The court balanced the substantial public interest and value in this information against the relatively weak right of publicity in play. CBC's use of the information does not interfere with the players' economic interests, their ability to earn a living from their names or their performances, which is the interest at the heart of the right of publicity; that weakened publicity interest must give way to free speech rights.

Neil Richards at CoOp comments and links to the opinion.

Smith on Dennis Franchione

Gordon Smith (BYU) comments on Conglomerate about the controversy surrounding Texas A&M football coach Dennis Franchione, who had been selling an "inside information" newsletter, for $ 1,200/year, to selected big-money boosters, potentially in violation of his contract with the school. Smith argues that Franchione's conduct may have breached several provisions of the coaching contract and the school is investigating. Worth a look.

Thoughts on the Duke Lacrosse Case

As I mentioned recently, David Evans, Collin Finnerty, and Reade Seligmann--the three former Duke lacrosse players indicted on sexual assault charges and later exonerated--have filed a civil rights action in United States District Court for the Middle District of North Carolina. Defendants include the City of Durham; former District Attorney Michael Nifong; two Durham police investigators, Mark Gottlieb and Benjamin Himan; department spokesperson David Addision; a private DNA-testing laboratory; and a host of supervisory department officials. The players allege violations of unspecified Fourth and Fourteenth Amendment rights, federal conspiracy to deprive them of equal protection of law, and various state tort claims.

I have a guest column on FindLaw's Writ this morning, examining the lawsuit at length and pointing out some blatant weaknesses in their claims. Let me add here some additional problems with the case.

First, the plaintiffs focus a lot of attention to the failure of Nifong and the police to disclose exculpatory evidence. But while the failure to disclose may have violated state-law obligations, I am not sure it states a remediable constitutional violation. I am not aware of any constitutional duty on police to disclose evidence to defendants or targets of their investigations. On the other hand, prosecutors do have such a duty under Brady v. Maryland and its progeny. But it is not clear when, as a constitutional matter, the duty to disclose kicks in or when a Brady violation is "complete" such that a person's rights have been infringed and he can recover damages under § 1983. Brady is generally understood as a trial right and a violation will lie only where the prosecution's failure to disclose evidence materially prejudiced the defendant at trial (i.e., the defendants would not have been convicted had the material been disclosed as required). But since the three players never went to trial, I am not sure any obligation to disclose ever was triggered. Can anyone out there fill us in on that? In any event, as I state in the FindLaw piece, Nifong likely enjoys absolute prosecutorial immunity on those claims.

Second, the players bring claims against a private company called DNA Security, Inc., its president, and one of its testing scientists; DSI is the company that Nifong sought out to conduct DNA analysis when the North Carolina Bureau of Investigation initially reported that no physical evidence linked any Duke lacrosse players to any sexual contact with the victim. But DSI (and its principals) are all private actors and only state actors are bound by the Constitution. So the plaintiffs need some link between DSI and the government to make these claims work. The complaint alleges that DSI was "retained . . . to provide forensic analysis services relating to the investigation . . . and in this capacity acted under color of state law at all times relevant." I am not sure that simply contracting with government to provide a service to government is enough to make a private company a state actor; that would be a truly broad expansion of the principle.

I do think there are two possible arguments for DSI acting under color. The first is the "close nexus test," satisfied where the government facilitated/coerced/encouraged/supported the private entity's misconduct. The second is the conspiracy test, where public and private actors conspire together to engage in obviously unconstitutional conduct. Given the allegations in the complaint--that Nifong and DSI together created a plan to withhold DNA evidence or to make it appear less exculpatory than it was--I think either of these tests could be satisfied.

Third, there is an interesting causation question: What is the constitutional harm (as opposed to the state tort) from the allegedly false statements to the public and to the press about the criminal case, the evidence, and the defendants? If the purpose was to taint the jury pool, can there be a violation since no jury was poisoned because the case never went to trial? Did it poison the grand jury pool that indicted? Perhaps. The statements harm their reputations--but is that recoverable for a constitutional violation?

As I say in the column, my prediction is the case settles, given how egregious some of the conduct described was. And, if it does not settle, I do think the claim is strong in many respects and the plaintiffs stand a good chance of recovering substantial damages from somebody. But this is a huge complaint, in length and in the scope and breadth of its factual allegations and claims for relief. And while there is some in there with merit, there is much without.

Recap of Day Two of "Reversing Field" Symposium

Sports Law Blog correspondent Will Li attended the outstanding "Reversing Field: Examining Commercialization, Labor and Race in 21st Century Sports Law," a symposium organized and hosted by West Virginia University College of Law on Thursday Oct. 3 and Friday Oct. 4. I thoroughly enjoyed speaking at the symposium on Thursday Oct. 3, and Will checks in with a great recap of what took place on Friday, October4:

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On Friday, October 4, I had the privilege to attend the second day of Reversing Field, a sports law symposium held at the West Virginia University College of Law covering a variety of issues on race and labor. Some highlights from the each panel:

At 9:00, the first panel of the day addressed gender issues in sports.

Moderator Joyce McConnell noted that each of the panelists would share "progresses and disappointments," a very apt statement, as the theme would continue throughout the day; advances in race and gender in sports are to be celebrated, but at the same time, there is much work yet to be done.

Prof. Barbara Osborne exploded the widely disseminated myth that Title IX is a "gender quota system that hurts men's sports," and noted several problems with the state of Title IX.

Prof. Deborah Brake introduced a point of progress in Title IX in the recent letter the Office of Civil Rights sent to all federally funded schools in June. The letter emphasizes the protection to be extended to pregnant NCAA athletes and was prompted by an ESPN "Outside the Lines" program. The swift reaction in the public and by the OCR to address the issue is, according to Prof. Brake, testament to the "broad success of Title IX in broadening the general status of female athletes."

The second panel brought scientific insights and a challenge. On the topic of drug testing in professional sports, there are few with more expertise than Dr. Julian Bailes. Dr. Bailes shared a brief history of performance enhancing steroids and went on to discuss his recent neurological studies on the brain tissue of deceased athletes, including football players Andre Waters, Mike Webster and Terry Long, and professional wrestler Chris Benoit. In addition, Dr. Bailes emphasized the dangers of online and OTC supplements.

Wm. David Cornwell Sr. energized the room by challenging the premise for athlete drug testing. Several of his questions spoke directly to the controversies involving the rights of professional athletes, public perception of athletes and the lax scientific standards in drug testing.

If consumers are not speaking with their wallets, why should we regulate? Why should athletes be subject to such scrutiny? According to Cornwell, "the only rationale that supports [the status quo] is that we're not dealing with men and women, but athletes."

Professor William Gould gave the keynote speech, speaking about the labor, baseball, and baseball's increasing international presence. He spoke passionately about the need to foster international competition, instead of "looking inward as we have in so many cases this century." Rather than make it look like we are plundering foreign resources with player mobility and free agency an ever increasing issue, from places like the Dominican Republic and Japan, we need to show respect and dignity for the countries involved. The WBC, while there were growing pains, was a step in the right direction.

The session on Economic Weapons saw several distinguished panelists address the issue of labor dispute and mediation.

Dennis Walsh gave a detailed background and behind the scenes look on the 1994/1995 MLB strike and the weapons employed by both sides throughout the process.

Professor Daniel Silverman went on to note that there is something unique about sports cases, from the curious reactions they can sometimes elicit from the judiciary (for example, in a case before a judge in Pittsburgh in which there was talk of picketing a Steelers game, the judge noted that he had tickets to that game, prompting both sides to look towards a more speedy settlement).

Agent Joe Rosen took a look at the power of the drafted player in Major League Baseball. As a publicized event, the MLB draft is just starting to gain attention, unlike the much heralded NFL and NBA drafts, and there are several unique features to MLB draftee contracts. Drafted players are really only negotiating for a signing bonus and, if college is a possibility, whether the team will be paying for their schooling. Therefore, it is up to the agent to negotiate the signing bonus of the player. The slotting system in the MLB has seen several developments in the last year, including MLB recommending a 10% decrease in bonuses to the teams, an August 15^th signing deadline, after which teams would receive a compensatory pick for the next draft, and as a consequence of the signing deadline, the elimination of the "draft and follow" rule.

Despite these developments, which would seem to put more power in the hands of the negotiating teams and General Managers, signing bonuses rose this year to a record high. There were record bonuses handed out for their slots in the 4^th, 5^th and 6^th rounds. The Nationals went as far as to give one of their picks, hyped Newton Mass prospect Jack McGeary, significantly higher than slot money in the 6^th round (1.8 million dollars) in addition to paying for his education at Stanford, and allowing him to play for the Nationals during the summer. Yankees first rounder Andrew Brackman signed a major league deal worth 4.5 million, including a 3.8 million signing bonus. The deal could be worth over 13 million over its lifetime with various escalator clauses. In other words, with the influx of funds in baseball from MLBAM and record attendance, owners are evidently willing to pay more than ever before, despite what appear to be attempts by the league to curb the contracts being doled out.

The last panel took a look ahead, at "Purposeful Progress" and what the future might bring to the issues of sports and labor, gender and race.

Professor Andre Smith started the panel with a fascinating premise; using neo-classical economic terms to describe racial inequities. He applied his term "asymmetrical market imperfections" and rubric of free markets, perfect information, profit maximization and transaction costs to the NBA and its dress code. According to Prof. Smith, his concept shows "the context which . . . subordination can be described economically," and he notes that "the denigration of the free market does not seem to bother those who follow sports."

Professor Anne Lofaso gave an autobiographical presentation, noting the choices that were not available to her as a female athlete growing up and the pressures that were put on her to choose a gender neutral sport (in her case, diving). While speaking of her childhood, she reminisced about the U.S. boycott of the 1980 Olympics, and analogized the government's "public relations show" that denied hundreds of athletes a chance to compete at amateur athletics' highest level to today's steroid outcry and the athletes that are caught in the furor.

The symposium gave panelists and attendants a chance to confront racial and gender issues in sports head on, and Professor andre douglas pond cummings highlighted this important fact. He noted several significant power imbalances that remain to be confronted. For example, there continues to be a denigration of American Indian images in all levels of sports. Regarding the power imbalance that exists for African Americans, while progress has been made in the NFL with the Rooney Rule, the NCAA has yet to enact a similar measure.

Finally, Professor Sherri Burr gave a view of athletes and professional sports from an entertainment aspect. The questions she asked included why we watch professional sports, what price athletes pay for their fame, and whether athletes have a responsibility to the public that scrutinizes them.

All told, the panels were well organized, thought-provoking and incredibly educational. The day's panels covered a wealth of issues concerning sports, race, gender and labor and I was glad to be present for the discourse.

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Thanks again to Will for this excellent recap of the events.

What role for Politics in Sport?

Ashkan Dejagah is a German soccer player, born in Teheran, Iran. Even though his facts & figures speak of a highly promising youngster (he scored 7 goals in 15 international games for the U-19's and at the tender age of 21 he has already netted twice in the Bundesliga), his name came to the forefront after he refused to travel to Israel with the U-21 German team, citing "very personal reasons". His decision opened up a debate that has already surpassed the boundaries of his native Germany and has placed the German Soccer team at the center of the much wider struggle between Israel and Iran.

Reportedly, the German Interior Minister "is of the opinion that each player who is nominated for the national team must be willing to play in any country with which the German Football Association has sporting ties" and that "political reasons must not play a role". National team manager Oliver Bierhoff was sympathetic with the player, but underlined the nature of the responsibilities that come with representing Germany: "We want our players to identify with the team and our country", adding that "if they can't then I don't think the player should have a role on the team". Finally, Joachim Loew, the coach of the senior German team said he regretted the player's decision to refuse to play in Israel. "I know the political problems. Basically I hoped and expected that for sporting reasons, a German Under-21 player would have made a different decision. I have to be quite clear on that point".

There are obvious and contradictory concerns revolving around this episode. In a country where the Holocaust is still a daunting issue, such a decision can trigger all sorts of negative comments. It is not unreasonable to assume that with his decision Dejagah is in fact supporting Iran's position regarding Israel and President Mahmoud Ahmadinejad's outrageous statements on the topic, a stance which is totally incompatible with representing his country. In this sense, the Interior Minister's bold claim that "Politics must not play a role" is a far cry from reality. Is it unreasonable to expect politics to play a role when national interest is at stake? Can we really blame Germans and the German Jewish community for its indignation and fury?

But the public scrutiny over the young Dejagah's decision must take notice of the "other side of the story". The player's family live in Teheran and his brother plays in the Iranian premier league. Had he decided otherwise thereby deliberately breaching Iranian rule, he risked never entering Iran again (where he was born) and his family could have been put under severe distress. So can we really blame Dejagah for the decision? Is he not victim rather than culprit?

The German Association has gone about this business in dreadful fashion. Although the public statements fall short of effectively casting Dejagah from the German national side, the player is being asked to choose his allegiance (he can still play for Iran at the senior level). But from a sporting perspective, there is no choice to be made. Germany are a world-class team, vying for top honors in European and World Cups. Iran struggle to make the finals. By playing in the German side, Dejagah would in fact be plying his trade amongst and against some of the best in the World, with all the technical benefits arising therefrom, while Iran play in relatively obscure competitions, against virtually unknown names. And there is no comparison in terms of exposure, with all marketing implications. Can Dejagah be lawfully impeded from representing the National German side on the basis of a personal choice? Admittedly, this is not my area of expertise, but has he no right to freely profess a religion, to speak freely without censorship, to hold a personal view? Individual rights, religious and political freedoms are pervasively upheld as the pillars of democracy. By denying such rights to Dejagah, the German Association and the German Nation are effectively guilty of disregarding some of the most elementary rights of the player, and in the process they are restricting his ability to play at the level he probably belongs to, with severe economic effects.

And even if we were to consider that the circumstances merited the restriction of Dejagah’s personal and economic rights, could we truly say there was no more proportionate way to undertake such restriction? In any event, a messy affair with no perfect end to be met. A few years ago, Iranian ex-Bayern Munich striker Vahid Hashemian became "injured" in both UEFA Champions League matches against Israeli club Maccabi Tel Aviv to avoid legal trouble. Alternatively, the German Association could have kept things under the radar and avoid any future embarrassment by simply not selecting the player on form. The foregoing suggestions are not legally satisfactory but at least would have avoided a very distasteful (and dangerous) topic. It seems politics have a way of playing themselves into Sports…

Thanks to Tiago Martins da Cruz for bringing this story to my attention.

Can the Commissioner Discipline Players for Steroid Use Based Upon Mitchell's Report?

A lawyer for the firm representing Major League Baseball in the steroid investigation told team representatives during a conference call Friday that George Mitchell's long-awaited report is expected to be issued in November or December, and there is a strong possibility that the report will contain the names of individual players. This raises some interesting questions about how this report should be viewed in conjunction with the collective bargaining agreement, which contains specific provisions regarding the discipline of players for steroid usage. What can the commissioner do with this report? Does the commissioner have the authority to discipline the named players based on evidence other than a positive drug test result? And if so, what discipline can he impose?

Let's start with the source of the commissioner's power and authority. The league constitution and bylaws provide the commissioner with broad authority in unambiguous language to investigate any conduct not in the best interests of the game, and to determine the appropriate action to be taken. However, the scope of his authority as provided under the league constitution and bylaws must be read in pari materia (together) with the collective bargaining agreement. Thus, the CBA may alter, modify, limit or otherwise affect the power and authority of the commissioner as established by the league constitution and bylaws. In player disciplinary actions, the CBA may place limits upon the allowable suspension or fine that may be imposed by the commissioner. The CBA could also set evidentiary standards that must be met before disciplinary action can be taken by the commissioner for certain types of player misconduct. So for example, if the CBA provides that the commissioner may discipline a player for off-field misconduct upon a conviction or admission of guilt, then the commissioner could not impose discipline based upon the results of his own investigation.

In January, 2005, the MLBPA and MLB heavily negotiated a comprehensive drug testing policy that sets forth specific parameters upon which players may be disciplined for use of performance enhancing drugs. That drug testing policy was incorporated into the most recent version of the CBA and contains detailed provisions regarding (1) when and how often players can be tested for steroids, (2) the manner in which they can be tested, (3) what drugs they can be tested for and (4) the precise discipline that may be imposed on players who test positive once or more than once. Thus, two questions are raised:

1. First, does the commissioner have the authority to discipline players based upon evidence other than positive test results?

The key issue is essentially the intent of the parties when they drafted the policy, but the problem is that they didn't address the use of evidence other than positive test results. A reasonable interpretation of the CBA would be that the commissioner's authority has been modified by setting an evidentiary standard that must be met in order for a player to be disciplined for steroid use (analogous to a requirement of conviction or admission of guilt), such that a player can't be disciplined unless he tests positive. Thus, an arbitrator or judge could reasonably conclude that if the parties had contemplated that the commissioner would have the authority to discipline a player based upon the commissioner's own investigation in addition to a positive test result, then the parties most certainly would have preserved that power in the CBA (or, at a minimum, that the commissioner would have insisted upon language making it clear that nothing in the policy limits or otherwise modifies the commissioner's authority to discipline players on grounds as he sees fit).

Conversely, maybe an arbitrator or judge would conclude that the union should have insisted on adding language that prohibits the use of evidence other than positive test results. So an alternative interpretation of the CBA would be that, since the parties did not specifically address in the CBA whether a player could be disciplined for steroid use on the basis of evidence other than positive test results, the commissioner's authority has not been altered or modified in any way whatsoever. I see two problems with such an interpretation. First, it would make all of the heavily negotiated provisions contained in the CBA regarding testing and discipline for steroid use superfluous! In other words, if the CBA specifically states that a player can be suspended for X number of days if he tests positive a first time and Y number of days if he tests positive a second time, these provisions become virtually meaningless if the commissioner can circumvent them by suspending a player for X, Y or even Z number of days without a positive test result. Second, there was a true "benefit and detriment" (i.e. consideration in contract law terminology) to both sides in an arm's length negotiation over a mandatory subject of collective bargaining. Thus, with the adoption of the policy, the commissioner obtained the ability to test players for steroids with specific penalties for first time and repeat violators, which also provided the players with clarity, predictability and assurance that the commissioner has sufficient grounds to impose discipline for steroid use.

2. Second, if he has the authority to impose discipline without a positive test result, what disciplinary action can he impose? Even if the CBA is not interpreted to alter or modify the commissioner's authority to impose discipline without a positive test result, what discipline can be imposed by the commissioner? Arguably, evidence of steroid use other than a positive test result is not as reliable as a positive test result. So if the CBA states that the commissioner can suspend a player for X number of days for a first time positive test result, is it reasonable to conclude that the commissioner would have the authority to suspend a player for more than X number of days without a positive test? Could the union argue that any suspension of a named player in Mitchell's report must therefore be less than X number of days?

This is going to get interesting, and I look forward to blogging on it as events unfold...

Chicago Marathon's Meltdown

Frank Shorter, the 1972 gold medalist and the 1976 silver medalist in the Olympic men's marathon, knows a thing or two about running races. His recent op-ed piece in the New York Times, reflecting on the meltdown of the Chicago Marathon, discusses the dangers of extreme heat in long distance races and proposes some interesting solutions to prevent injury stemming from extreme heat and humidity during the 26.2 mile race.

The LaSalle Bank Chicago Marathon (this may be one case where the lead sponsor does not want its name used) takes place every October, usually a time of temperate autumn weather in the Windy City. However, this year's race occurred on a day of record-breaking temperatures and high humidity. One person died, and dozens were hospitalized. The race organizers stopped the race after four hours, angering a number of runners. Others complained of lack of adequate water supplies, due to the fact that many were using the water for dousing, instead of drinking.

As Shorter notes, such conditions impact slower runners most because they are on the course the longest. As a veteran of the New York Marathon and an admittedly slow recreational runner, I can attest that five hours on a marathon course is an awfully long time. But even shorter races can pose dangers. My worst race weather-wise, believe it or not, was a lowly 5K about 10 years ago run in such conditions in New Jersey Meadowlands (forget the name: this is basically a swamp) where I felt I the onset of disorientation after mile two. It's an agonizing feeling. (The race ended in the air conditioned Continental Arena, where I was able to recover.)

Among Shorter's solutions are to install more misters and showers the aid stations, recommending salt packets for runners and for them to strip down as much as possible (men being topless and women wearing as little as possible. The latter advice is geared toward the runners and that made me think of the idea of what duties does the race organization have to warn runners of potential perils?

Obviously, every entrant signs a waiver of liability, which essentially says that they assume the risk of harm and cannot sue the race organization, sponsors or the city for negligence. Although I could not the waiver for the Chicago race, the one from Hartford's Marathon is typical. The runner warrants he/she is trained and able to race/walk and he/she assumes all risk of harm from, among other things, heat and humidity. They are a virtual bar to a lawsuit as these agreement constitute express assumptions of risk. But part of such agreements should be a duty to warn.

And that is what bothers me. With so many first-timers running Marathons (and Chicago is a particularly good one because it is a flat course), one wonders if more specific recommendations should be stated and whether the failure to warn or give basic advice could possibly open a small window of liability that overrides the waiver.

I checked the web site of the Chicago Marathon and found that it had no such tips for runners. Maybe it would be a good idea to have a "tips/precautions/strategies" page, which outlines safety advice, from pacing, eating/drinking, how to identify symptoms of the beginnings of a heat stroke, where to get help, what to carry. Even for experienced runners from other areas, this information could be useful. Announcing any warnings on race day is fine idea and one that may have been done, but these warnings may be hard to discern with tens of thousands of runners milling about in the pre-race corrals.

Much of my pre-marathon advice came came from other runners and from coaches. When marathons were run by the few experienced and savvy runners, that was fine. But with so many novices around, such information could only help in preparation and may prevent some injuries, especially in adverse conditions like those found at this race.

On the positive side, I think the organizers did the right thing in stopping the race. They avoided more injury and acted with good judgment.

Professor Kent Greenfield on Red Sox and Blue State Voters

Boston College Law School Professor Kent Greenfield has a thoughtful and provocative piece on The Huffington Post that examines (partly tongue-in-cheek) the social context of the Red Sox-Indians American League Championship Series, which begins tonight at 7:07 EST in Fenway Park.

Here are a couple of excerpts:

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Blue State voters: get behind your Team of Destiny in the baseball playoffs, the Boston Red Sox. Rooting for the Sox this year is akin to recycling, giving to Oxfam, and hoarding old "No Nukes" buttons in your desk drawer. Joining Red Sox Nation is no longer merely an expression of fandom; it is a moral imperative.

If you're from Cleveland, Colorado, or Arizona, you get a free pass. But otherwise, any person with a shred of progressive sensibility should be ordering their replica David Ortiz jersey.

First of all, look at our competition in the American League Championship series, the Cleveland Indians. All you need to know is that their team logo trades on the worst kind of stereotypes of native people. A smiling, shifty-eyed, crooked-nose icon with dark red skin and a feather sprouting from his head is probably the most racist logo in all of sport. The mascot has a name: "Chief Wahoo." Native American groups and the NAACP have protested in the past, but the team has refused to change the logo.

The Team of Destiny, however, has named itself after hosiery. Nothing offensive there.

* * *

And when we play the Indians, we have a chance to watch sweet, sweet irony. Our best young prospect is 24-year old Jacoby Ellsbury, who should be seeing action in the outfield as a backup. He's lightning fast. Earlier this year he scored a run on a wild pitch, which is no big deal except that he started the play on second base.

The sweet irony is that he is of Navajo descent, the first ever in the major leagues. Maybe he will steal a base, beat out an infield grounder, or rob an Indians player of a double in the gap. And I want you to be cheering with me when he wipes that silly grin off Chief Wahoo's face.

For the rest of the piece, click here.

Jason Chung on Yi Jianlian and Reverse Prejudice

Over on The Situationist, Jason Chung examines reverse prejudice in the context of Yi Jianlian playing in Milwaukee.

Here is an excerpt from his excellent piece:

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In the Yi case, a negative attitude toward whites is being expressed — that is, that whites as a group would not or could not accept Yi as fully as an Asian community would or could.

But is that necessarily true? To begin with, there is little empirical evidence suggesting that ethnic communities would automatically support members of their own nationality or ethnic background in a sustained manner independent of their on-field success.

Since at least 1997, in a majority-white national population, African-American players comprise over two-thirds of the National Football League and NBA and a quick look at jersey sales in China reveals that Yao Ming, a genuine Chinese-born and bred NBA superstar, is only number six in overall sales – trailing five African-Americans. The assumption that ethnic communities will disproportionately support their own above all lacks conclusive empirical support.

Similarly, it is far from obvious that Asian players will be anything less than vaulted heroes among a team’s fans and followers - no matter the region. For example, Boston-area fans, Asian and non-Asian alike, have embraced Daisuke Matsuzaka and Hideki Okajima not due to their ethnicity but due to their exciting array of pitches and live arms. At least in the world of sports, racial biases are often dampened by primary desire to see athletic excellence. Racial-group associations, in other words, can be overshadowed by team associations. Uniforms often supplant other socially salient demarcations of group identity.

For the rest of the piece, click here.

New Sports Law Scholarship

New over the past few weeks:

Deanna DeFrancesco, Comment, Title IX, intercollegiate athletics, and sexual harassment, 15 JOURNAL OF LAW AND POLICY 1271 (2007)

Jared L. Downs, Note, Does the NFL’s pat-down policy constitute an illegal use of the hands?, 34 NORTHERN KENTUCKY LAW REVIEW 95 (2007)

Andrew Goldstone, Note, Obstruction of justice: the arbitration process for anti-doping violations during the Olympic Games, 7 CARDOZO JOURNAL OF CONFLICT RESOLUTION 361 (2006)

Ryan T. Holte, The freedom to imagine fantasy sports: applying new ideas in copyright law to professional athletes’ right of publicity, 54 JOURNAL OF THE COPYRIGHT SOCIETY OF THE U.S.A. 771 (2007)

Daniel Mead, Note, Why Major League Baseball struck out and won’t have better luck in its next trip to the plate (C.B.C v. Major League Baseball),8 MINNESTOA JOURNAL OF LAW SCIENCE & TECHNOLOGY 715 (2007)

Is Odell Thurman's Case Different from a Common EEOC Matter?

Michael McCann recently posted on Odell Thurman's decision to file an EEOC complaint against the NFL, alleging that the NFL wrongly declined to reinstate Mr. Thurman because league officials believe he is an alcoholic. (Full post available here).

I would argue that the EEOC should review Odell Thurman's case differently from a common employment matter, because here the NFL's decision not to reinstate Mr. Thurman precludes Mr. Thurman not only from working a specific job (Bengals football player), but, more globally, from practicing his profession (professional football player).

Without defending Mr. Thurman's conduct, it is worth noting that very few industries outside of pro sports have ever prevented anyone from practicing their trade based on a DWI -- and that is even absent an alleged disability. The unusual structure of pro sports makes this case unique.

In addition, while there is no perfect parallel to Mr. Thurman's suit, it in many ways brings to mind the Steve Howe baseball labor grievance from 1992 (although this was not an EEOC matter), in which Arbitrator Nicolau reinstated the former New York Yankees pitcher, even after the MLB commissioner had suspended Howe for life (repeated drug use). In that decision, Arbitrator Nicolau intertwined legal reasoning related to labor law and the CBA, with equal employment law (Howe had ADHD), and law prohibiting restraints of trade (imposition of a lifetime ban from one's profession). In doing so, Arbitrator Nicolau reached the conclusion that a lifetime ban of Mr. Howe from baseball would be inappropriate.

I find Arbitrator Nicolau's ruling in the Steve Howe case insightful, as it brings to light the wide range of issues that lurk behind the forefront of Odell Thurman's EEOC matter.

Professor Paul Secunda on Odell Thurman's EEOC Complaint

The New York Times has a good feature story today on suspended Cincinnati Bengals linebacker Odell Thurman's EEOC complaint, which asserts that the N.F.L. declined to reinstate him because officials believe he is an alcoholic. Ole Miss law professor Paul Secunda, who is an editor of the excellent Workplace Prof Blog, is quoted in the NY Times Story:

“The crux of the complaint is that they have a disability and they are not being reinstated because of that disability,” said Paul M. Secunda, a labor and employment law expert who edits the Workplace Prof Blog. “What we’re talking about is the disability of the player and the rights of the employer to run the N.F.L. as they see fit. It’s, where does the D.U.I. fit it? Does the league have the right to take further action beyond what the criminal court system does?”

Secunda added: “Potentially, these situations are boundless as far as athletes getting in trouble with alcohol- and drug-related cases. It’s the larger debate in society. At what point do people have to take responsibility for their own actions?”

For the rest of the story, click here.

"It's all a bunch of circumstantial evidence" -- Actually, no it isn't

Allow me to waste a few words on one of my biggest pet peeves when it comes to mainstream media coverage of the judicial system, especially coverage of steroids controversies: The constant confusion and misunderstanding of direct and circumstantial evidence.

The latest offender is a "For the Record" piece in this week's Sports Illustrated about track star Marion Jones, who recently admitted to using steroids (to no one's great surprise) and pled guilty to making false statements to federal investigators. The story traces Jones' past denials that "rang hollow in the face of voluminous circumstantial evidence that included damning statements by BALCO chief Victor Conte and Jones' ex-husband, shot-putter C.J. Hunter."

Presumably, the statements by Conte and Hunter amounted to, essentially, "Marion Jones used steroids, which I knew because I either saw her use/helped her use/gave her to use/injected her with those steroids." That is not circumstantial evidence of steroid use; that is direct evidence of steroid use. Circumstantial evidence of steroid use is things such as a player's performance dramatically improving when, under ordinary laws of nature, it should be declining; circumstantial evidence of steroid use is a player's head increasing in size. Direct evidence is evidence that, if believed by the jury, tends to establish the fact to be proven without more ("I saw X;" if the jury believes that, it ends to prove X is true). Circumstantial evidence is evidence that, if believed, tends to establish the fact to be proven only by the use of some logical/common-sense/experiential inference. The category of "direct evidence" is not limited only to scientific evidence (such as a failed drug test) or admissions.

The problem arises from common confusion between the question of direct/circumstantial, as opposed to the question of reliability. Admissions and failed drug tests are deemed reliable, while testimony from Hunter and Conte is not (for good reasons). But reliability and evidence type are distinct concepts that really have nothing to do with one another. Direct evidence (eyewitness testimony, for example) may be highly unreliable, as recent studies have suggested, while circumstantial evidence may be highly reliable. And scientific evidence, which many in our CSI world now regard as the only acceptable means of proving anything, often operates circumstantially. For example, imagine Jones failed a drug test in 2006. Does that prove she was using steroids in 2000, when she won five Olympic medals? Only if you draw the inference that, if she is using now, she was using then. And that is circumstantial evidence--reliable circumstantial evidences, perhaps--but still circumstantial. This, by the way, is why Rafael Palmeiro could not be prosecuted for perjury for telling the House committee that he did not use steroids. He made his statements in March, he failed the drug test in May. The failed test does not, without more, tend to establish that he had taken steroids prior to his March statement; it does that only if you draw an inference that he probably also had taken in the past, especially in light of his late-career power surge.

So, when Jones denied steroid use in the face of statements by Conte and Hunter, she was not defending herself against circumstantial evidence. She was defending herself against direct evidence with her own competing direct evidence. None of this is circumstantial. The only question is which direct-evidence witness (Jones or Conte) you want to believe. But if that is the question, then say so.

I beg reporters to be careful in its terms, especially as to central concepts such as these. OK. End of rant.

Interview with The Sports Agent Blog

My thanks to Darren Heitner, the founder and Editor-in-Chief of The Sports Agent Blog and Dynasty Athlete Representation, for his interview of me. In it, I offer my thoughts on various issues relating to sports law. I hope you have a chance to check out the interview. Thanks to Eric McErlain of AOL Sports and Off Wing Opinion for linking to it, and thanks also to Henry Abbott of ESPN for doing the same.

MSG v. NHL II: Can the NHL Apply a Single-Entity Defense Based on American Needle?

As sports-law enthusiasts wait for the NHL to answer Madison Square Garden's Section 1 Sherman Act complaint (explained previously here), some discussion has shifted to predicting what the NHL's potential defenses will be. One potential defense, suggested by a reader of Sports Law Blog, is the Copperweld or "single entity" defense, which explains that as a matter of law a single enterprise cannot violate Section 1, because a single enterprise cannot conspire with itself.

Historically, courts have repeatedly rejected the Copperweld or "single entity" defense in the context of traditionally structured sports leagues -- finding that pro sports teams are individual actors, and not a single enterprise. In fact, until very recently, the closest that any court had come to accepting the single-entity defense in traditional sports leagues was Judge Easterbrook's 1996 concurring opinion in Chicago Bulls v. NBA, 95 F.3d 593 (7th Cir. 1996), in which the revered judge stated that "[w]hether the NBA itself is more like a single firm ... or like a joint venture ... is a tough question under Copperweld" and that "we do not rule out the possibility that an organization such as the NBA is best understood as one firm when selling broadcast rights."

Very recently, in the July 2007 decision American Needle, Inc. v. New Orleans Saints, 496 F.Supp.2d 941 (N.D. Ill. 2007), Judge Moran went a big step further, actually accepting the defense in ruling that NFL teams could not violate Section 1 of the Sherman Act by allegedly collectively refusing to license their trademarks to American Needle, Inc. because "the NFL and the teams act as a single entity in licensing their intellectual property." (emphasis added). Nevertheless, Moran's opinion has three glaring flaws that greatly reduce its future value:

Flaw No. 1, Poor Legal Analysis/Legal Support: Judge Moran's opinion provides only cursory analysis of an extremely complex issue of law, rejecting existing case law to instead rely almost exclusively on the views of a single author of a 2006 law-review note. Further, Moran handles the substantial weight of conflicting law poorly. He responds with only a single sentence: "[w]e reach this conclusion while recognizing that others might well disagree."

Flaw No. 2, Dubious Presumption that Long-Lasting Behavior Becomes Legal Behavior: Judge Moran's opinion seems to imply that because the NFL had been merchandising team paraphernalia in a collective manner since 1963, the NFL has automatically transformed itself from a joint venture to a single entity. A single-entity defense based on prolonged collusion by multiple entities is simply illogical!

Flaw No. 3, Ignoring a Stronger and More Traditional Legal Theory: Finally, Judge Moran could have easily (and without much controversy) decided American Needle in favor of the NFL teams by citing to the pro-competitive effects of collective licensing. Yet, even though Judge Moran states in his opinion that "[w]e recognize, as well, that supposed efficiencies in economic arrangements are more the stuff of the rule of reason than of distinguishing between single entities and joint ventures," Moran still chose not to rule based on pro-competitive effects but rather based on a single-entity defense.