much ado about . . . ?

Perpetuating stereotypes is nasty business. One of the more prevalent and damaging stereotypes in collegiate and professional sports in that of the criminalized African-American athlete. According to Kinesiology Professor Damion Thomas at the University of Maryland, “Images of black male athletes as aggressive and threatening ‘reinforce the criminalization of black men.’” Almost weekly now, stories of athletes being arrested for criminal mischief dominate the news cycles. Cue the latest stereotyping controversy:

The April 2008 cover of Vogue Magazine features LeBron James and Brasilian supermodel Gisele Bundchen. Editors of Vogue hailed the cover as an historic moment as James became the first African American male to ever grace its cover. Unfortunately for Vogue, this historic moment has come under fire as commentators and pundits decry the photo as perpetuating racial stereotypes. According to some, the cover conjures an image of “King Kong” and Fay Wray, perpetuating the idea of a criminalized black man.

Magazine analyst and critic Samir Husni believes that the Vogue cover was intentionally provocative, deliberately attempting to perpetuate the stereotype: “It screams King Kong. . . . [W]hen you have a cover that reminds people of King Kong and brings those stereotypes to the front . . . it is not innocent.” Husni continues that magazine covers, particularly for publications as influential and prominent as Vogue, are not rushed into without careful deliberation.

For his part, James is pleased with the cover claiming that he was just trying to show “a little emotion.”

Still, critics claim that this type of stereotyping, criminalizing the black athlete, is nothing new. Memorable magazine covers in the past have portrayed black athletes in unflattering ways. To wit:

No one would or could reasonably argue that black athletes are more inclined to break the law than are white athletes. Still, troubling images only lend themselves to perpetuating unfounded stereotypes.

Ballpark construction, public culture, and public resources

In the current Sports Illustrated, S.L. Price, an SI writer and resident of DC, offers some thoughts on the soon-to-open Nationals Park. The park cost almost $675 million, 97 % of which (an absurdly high percentage compared with other ballpark deals) is public money. And the deal hands almost total control over the park, and all proceeds from tickets, parkings, concessions, and advertising signs, to the team. Everyone in DC government recognizes this was a terrible deal, particularly in the face of the district's underfunded and crumbling schools and libraries. Ironically, Price reports that the city has increased funding for both libraries and schools out of an apparent guilt over the stadium deal. Price calls the park a "deal so bad it might do some good."

As a baseball fan (indeed, one of those fans with a fetish for old-style ballparks) I always have been of two minds with respect to public funding of stadiums. And I speak as my hometown of Miami prepares to pay more than half of a $ 515 million price tag for a new park for the Florida (soon-to-be Miami) Marlins.

On one hand, the economic reality is that if my city does not build this park, some other city will and the team will be leave town, a psychic loss for the community as a "major city." And we want and need public support for the arts, science, and culture--so why not also for sports, which are, in a real sense, an important part of our public culture?

On the other hand, the competing economic reality is that the city's goals in building the park--revitalize the neighborhood and bring money, people, commerce, and services to the neighborhood--are not going to come to pass, at least not fully, because, all economists agree, the numbers do not add up. And one reason to publicly fund culture is that the arts, often operated through not-for-profit enterprises, cannot exist without that public support. That is a far cry from a deal to make an already profitable private individual and entity even more profitable. And when we factor in everything else that necessarily falls by the wayside--schools, libraries, parks, and social services (stuff that ordinary people actually need)--the deal looks even worse, and even more unsupportable, as a public investment.

One of things driving my arguments on fan speech in publicly funded/privately operated ballparks is kind of a quid-pro-quo notion: If the private teams are going to demand large amounts of public financial support for their toys (which the team easily could pay for itself), teams must deal with unpopular or distasteful expression by the fans who are given access to the ballpark--who, after all, help pay for that ballpark. If a team is to receive this unique benefit of exclusive control over publicly owned and (largely) publicly financed property built expressly for that team, it ought to be subject to the limitations of the First Amendment in ways that private entities ordinarily are not bound.

Second Circuit Affirms Denial of Preliminary Injunction in MSG v. NHL Antitrust Lawsuit

Last fall on the blog, Marc Edelman discussed (here and here) the pending antitrust lawsuit brought by Madison Square Garden, L.P. (MSG), the parent company of the N.Y. Rangers, against the NHL. On November 2, 2007, the district court denied MSG's request for a preliminary injunction against the NHL’s effort to ban the Rangers from operating an independent website, holding that MSG had failed to demonstrate a likelihood of success or a sufficiently serious question going to the merits. Last week, the Second Circuit Court of Appeals, in a summary order, affirmed the district court's ruling and stated: "While there will certainly be substantive issues for the district court to address on the merits - for example, how the antitrust laws apply to the NHL as a sports league, and what the relevant market is in this case - the district court’s conclusion that preliminary injunctive relief was unwarranted falls well within the range of permissible decisions, and did not constitute an abuse of discretion." (emphasis added)

In Marc's previous posts, single entity has been raised as a possible defense for the NHL. I'm not an advocate of applying the single entity defense to professional sports leagues, at least not in the context of claims brought by league members. Of all the cases addressing the application of the single entity defense to professional sports leagues, the case of Chicago Bulls v. NBA, 95 F.3d 593 (7th Cir. 1996) provides, by far, the most comprehensive discussion and analysis of the single entity defense. In the concurring opinion in that case, Judge Cudahy makes some very compelling arguments for rejecting the defense (and I would argue especially in the context of claims brought by league members). Here are some excerpts:

[T]he fact that the venturers remain competitors in other arenas might either distort the way the joint product is managed or allow the venturers to use the joint product as a smoke-screen behind which to cut deals to reduce competition in the other arenas.

....

It is perhaps true, as argued by the NBA and many commentators, that sports are different from many joint ventures because the individual teams cannot, even in principle, produce the product -- league sports. However, the fact that cooperation is necessary to produce league basketball does not imply that the league will necessarily produce its product in the most efficient fashion. There is potential for inefficient decisionmaking regarding the joint product of "league basketball" even when the individual teams engage in no economic activity outside of the league. This potential arises because the structure of the league is such that all "owners" of the league must be "owners" of individual teams and decisions are made by a vote of the teams. This means that the league will not necessarily make efficient decisions about the number of teams fielded or, more generally, the competitive balance among teams. Thus, the the fact that several teams are required to make a league does not necessarily imply that the current makeup of the league is the most desirable or "efficient" one.

And Judge Cudahy probably summed it up best by stating:

In any event, sports leagues argue that they must maintain independent ownership of the teams because separate ownership enhances the appearance of competitiveness demanded by fans. But the leagues cannot really expect the courts to aid them in convincing consumers that competition exists if it really does not. If consumers want economic competition between sports teams, then independent ownership and preservation of independent economic interests is likely an efficient choice for a sports league. But that choice, as with other joint ventures, brings with it the attendant antitrust risks. The NBA cannot have it both ways. (emphasis added)

The single entity defense shouldn't be used as a "shield" for independently-owned league members with independent economic interests to make decisions that may have minimal pro-competitive effects when compared with alleged anti-competitive effects. In the context of antitrust claims brought by league members, the rule of reason essentially constitutes a "checks and balances" on the decisions of entities with independent economic interests acting in concert. The league could avoid all of the risks inherent in a rule of reason analysis through collective ownership interest, thus eliminating any economic competition among members. But unless and until they implement that model, I agree with Judge Cudahy -- the league cannot have it both ways.

Congress and Sports

Daniel Libit of the Politico has an informative piece today that provides some highlights of Congress’ historic interest in sports (Timeline: Politicizing America's Pastimes, 3/25/08). Although Congress has recently focused its attention on issues that affect the "integrity of the game" such as steroids and videotaping of team signals, the bulk of its attention through the years (and where it has arguably had the most impact) has been in the antitrust arena. But did you know that, in 1912, Congress banned the interstate transfer of boxing films?

New Article on Recklessness

The tort standard of "recklessness" is essential in sports injury cases. At least until the Illinois Supreme Court's decision last month in Karas, the universal rule was that participants in contact sports could not recover for personal injuries from other participants for mere negligence. Instead, "recklessness" or "wanton and willful" misconduct was required. In some states, this limitation on liability is extended to all sports, not just contact sports (although, at least here in Ohio, not to potato-sack racing)

One problem that has plagued both courts evaluating particular cases and law students studying the doctrine is the point at which conduct becomes more than "mere" negligence and crosses into "recklessness" territory. Similarly, at some point conduct crosses a line from "recklessness" to "intentional." Cumbersome descriptions of recklessness in the Restatement of Torts have not helped clarify the meaning of this concept in tort law.

I've posted a rough draft of my new paper on the subject, tentatively entitled "The Wreckage of Recklessness." In the piece, I discuss a number of sports torts cases and lines of cases, including golf injury lawsuits, the recent Illinois line of cases culminating in Karas, and the seminal (and odd) case of Hackbart (which Greg discussed in this post). I'd welcome feedback on my piece, which will be coming out later this year in the Washington University Law Review, via e-mail. You can download the piece free of charge from SSRN. Here's an abstract:

"Recklessness" is one of the oldest concepts in Anglo-American tort law, but also one of the most poorly understood. Often identified as a tort falling somewhere between negligence and intentional misconduct, recklessness has evaded precise judicial interpretation for two hundred years. The Restatement of Torts defines recklessness as conscious disregard of a substantial risk of serious harm, but courts have been unable to interpret consistently the key elements of this definition. This Article suggests that judicial confusion is not simply the product of linguistic imprecision on the part of the ALI. Rather, the Restatement version of recklessness is inconsistent with the actual behavioral and cognitive processes humans employ in the face of risk and uncertainty. Recent work in behavioral economics and neuroeconomics indicates that individuals fail to process risk in the way the black-letter-law definition of recklessness presumes, and calls into question the degree to which decisions can easily be classified as conscious or unconscious. Rather than continue to struggle to add clarity to an already convoluted articulation of doctrine, law reformers should reconceptualize the tort concept of recklessness not in terms of what it is, but in terms of what it does: allow a particular plaintiff to recover for a defendant's carelessness where ordinary negligence doctrine would bar relief.

New Sports Law Scholarship

Recently published scholarship:

Derek Marks, Casenote, One for twenty-five: the federal courts reverse a decision of the NFL’s disability board for the first time since 1993 in Jani v. Bert Bell/Pete Rozelle NFL Player Retirement Plan, 15 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 1 (2008)

Jonathan M. Etkowicz, Comment, Professional athletes playing video games--the next prohibited “other activity?”, 15 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 65 (2008)

William C. Martin, Comment, The graduate transfer rule: is the NCAA unnecessarily hindering student-athletes from traversing the educational paths they desire?, 15 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 103 (2008)

John O'Brien, Comment, Political balk: opening the door for U.S.-Cuba policy reform via diplomatic blunder at the World Baseball Classic, 15 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 135 (2008)

Elizabeth Rocco, Casenote, “Inequality in the game” vs. “inequality in the legal system”: the constitutionality of searches and seizures in United States v. Comprehensive Drug Testing, 15 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 33 (2008)

Whitman, Joshua H. Whitman, Note, Winning at all costs: using law & economics to determine the proper role of government in regulating the use of performance-enhancing drugs in professional sports, 2008 UNIVERSITY OF ILLINOIS LAW REVIEW 459

NBA to Raise Minimum Age Limit to 20?

Over on ESPN's TrueHoop, Henry Abbott discusses my law review article Illegal Defense: The Irrational Economics of Banning High School Players from the NBA Draft. I also respond to Commissioner David Stern's recent comment that he hopes to raise the age floor for entry into the NBA to age 20, and to do so through the next round of collective bargaining with the Players' Association. Hope you have a chance to check out Henry's comments and my comments on these topics.

Also, we know that our posts have been few and far between the last couple of weeks. We're all up against deadlines for scholarly projects or have other work commitments, but we'll soon return to more regular content. We appreciate your readership.

Supreme Court Grants Cert in 'Fleeting Expletive' Case

In a case that has application to sports broadcasters, the Supreme Court will hear an appeal involving the validity of the FCC's "fleeting expletive" standard for determining broadcast indecency. As I wrote in prior blogs (and in Sports Business Journal), the new standard -- which treats the accident airing of a single profanity as within the definition of indecency -- may be especially risky for live sports broadcasts. As noted, it can force broadcasters to take costly steps to avoid the unintended airing of four-letter words from fans, coaches and players and heap fines of up to $325,000 per incident on television and radio networks, as well as individual licensees.

The U.S. Court of Appeals for the Second Circuit invalidated the rules and remanded the matter back to the FCC because the agency failed to give an adequate justification for applying indecency to fleeting expletives. It did not address the First Amendment claim head-on, but a majority, in dicta, noted doubts about the constitutional viability of those rules.

The cert petition filed by the Department of Justice discusses administrative law issues (the amount of deference given to an administrative agency's policies) and substantive ones (involving whether the appeals court, by its actions, contradicted the import of the Supreme Court's Pacifica ruling).

I get the feeling that the Supreme Court will decide the First Amendment implications of the proposed indecency standard head-on. The reasons: (1) since the matter was remanded to the FCC for further justification, why wouldn't the court simply wait until the next round of likely litigation; (2) although this may surprise some, the present court is sympathetic to free speech issues; (3) the time is overdue since the court dealt with the issue of indecency in broadcasting as Pacifica was decided three decades ago.

Arguments will be scheduled for next fall.

Are Steroids Ethically Good for Athletes?

Really interesting piece in Science Progress by Dr. Arthur Caplan, Chair of the Department of Medical Ethics and the Director of the Center for Bioethics at the University of Pennsylvania, on the ethics of steroids. In short, he argues that the commonly-endorsed logic of "steroids are evil" is at least partly misguided, if not altogether wrong. Here are some excerpts from his piece:

* * *

John Harris, a British bioethicist, is a useful example of someone who is not at all sure that a bit of the “juice” is such a bad thing in athletic competition. In his Enhancing Evolution (2007), he argues that performance enhancement is not only ethically acceptable, but that sometimes it may be morally obligatory.

Harris sees a legitimate role for the use of drugs and genetic engineering to improve performance in sport. But sports are not his main target. He sees a future in which parents happily and willingly use genetic and reproductive technologies to design their children with more capacities and abilities than they otherwise would have had. His main argument in the book is that there are no convincing arguments against performance enhancement and plenty that support it.

* * *

Well, Harris is right that you don’t need to make a great effort to accomplish great things. Every once in a while someone wins the lottery or finds an old heirloom worth a lot of money in the attic and no one seems to mind that they have advanced themselves through luck, not exertion. But that is not true in sport. A lucky bounce or a gust of wind can determine the outcome, but athletes get praise for performance linked to effort, not luck. The whole point of sport is to try and reward effort even if luck plays a crucial role in the outcome. Harris’ point that small efforts can produce big rewards does not moot the point that big efforts that produce big rewards get the praise, not just the notice.

* * *

The idea that we value a performance because we admire the random luck of the lottery of life that gives some of us genes for singing, others for strength and still others for superb vision seems implausible. Why is randomness to be admired? Looking for value in the natural distribution of talents and skills is like looking for the source of free will and autonomy in the random nature of evolution or the Heisenberg uncertainty principle. Estimable value does not lurk in random luck. We can accept that luck can bring us fortune and enjoy it, but it is hard to see what role the luck of the draw in genetics has in esteeming sports performances.

The battle over performance enhancement is often fought out as if one size fits all—what makes performance enhancement acceptable in one domain, sports, will make it acceptable in all aspects of life. What the fight between Harris and [Harvard University's Michael Sandel] reveals is that this is not so. There are reasons to believe that steroids don’t belong in sports, even putting safety concerns aside. But this does not mean that performance-enhancing drugs have no appropriate role in any areas of life and achievement. The decision about what role pharmacology and genetics ought to play depends on whether you are trying to travel to another planet, solve a difficult math problem, learn a new language, or hit a home run.

* * *

For the rest of Dr. Caplan's piece, click here.

What Happens When a Video Game Gets a Player's Race Wrong?

Sports Law Blog reader Scott Timmerick checks in with an interesting question (between the asterisks):

* * *

I just started playing MLB 2K8 on PlayStation 2. Facing off against the great Tampa Bay Rays and their ace Scott Kazmir, seven innings later I found myself taking pitches from Gary Glover, a (understandably) unknown relief pitcher whose 5.00 career ERA has earned him the rights to be a major league journeyman.

Anyway, since I spent some time as part of the Rays' organization, I know Gary Glover. Which is why I was surprised to find that, in MLB 2K8, he is a black man...when in real life, he is indeed quite white.

My question then, is this: Could Mr. Glover sue 2KSports for misrepresentation of any sort? Putting aside the sheer absurdity of such a lawsuit, is there any kind of precdent for this sort of thing (wrongful use of image in a video game), and would Gary have any argument?

Many thanks for your time,
Scott Timmreck

* * *

I am unaware of litigation arising from this type of issue, and I suspect Glover would not succeed in a defamation suit, for multiple reasons, including that he probably isn't harmed by the game's mistake, which was undoubtedly innocent in nature (though a reflection of not very good game development).

Also, it's possible that Glover and other big league players may have contractually waived away any right to bring such a claim in the deal between 2K Sports and both Major League Baseball and the Major League Baseball Players' Association, which together licensed the players and their respective images to 2K Sports. In fact, 2K Sports has an exclusive deal with baseball to make official Major League Baseball games, though that exclusivity does not apply to first-party publishers, such as games published by Microsoft for the X-Box 360, by Sony for the Playstations 2 and 3, and by Nintendo for the Wii. But that deal does mean that 2K Sports has no competition from Electronic Arts, arguably the most prominent third-party publisher of sports video games and which, until 2K's deal, had published a very popular baseball game called MVP Baseball.

Especially considering the lukewarm reviews for MLB 2K8, perhaps baseball should think twice about exclusive deals, particularly when a company like Microsoft does not offer its own baseball game for the X-Box 360 (unlike Sony, which offers the hit MLB: The Show for both the PS2 and PS3). Of course, baseball isn't alone in negotiating an exclusive third-party publisher deal, as the NFL and NFLPA have one with Electronic Arts, publisher of John Madden Football, NFL Tour, and NFL Head Coach. That deal with EA, however, knocked off the gaming market 2K's popular football game ESPN NFL 2K.

In fact, one might say that the comparative advantages for 2K Sports and Electronics Arts have been voided by these exclusive deals: 2K Sports can't make its excellent football game and Electronic Arts can't make its excellent baseball game, while both have exclusive rights to publish games--2K Sports with MLB 2K and EA with Madden--that some would consider inferior to those that had been published by each other prior to the exclusive third-party publisher deals.

I suppose what goes around comes around with exclusive third-party publisher deals, though probably never in the consumer's best interests.

Harvard's Women-Only Gym Hours

Last week, my undergraduate alma mater made the Fox News hitlist for announcing that it had decided to make a campus gym, the Quadrangle Recreational Athletic Center (QRAC) closed to men for a few hours a week. As the Harvard Crimson's former editorial chair Andrew Fine wrote, this story wouldn't have been news (or all that controversial) were it not for the source of and justification for the request: a group of female Muslim students requested women-only hours because they must otherwise be fully clothed when working out alongside men.

Much ado about something? The QRAC is not the centrally located gym on campus -- in fact, it is a 20-30 minute walk from the main classroom area and the bulk of the university's undergraduate population (a far closer gym, the Malkin Athletic Center, has its own problems). The hours selected for the gender limitation are "off" hours, during which very few students would likely trek from their classrooms to the QRAC. Still, the confluence of religious and gender concerns has made the story on subject to much commentary in the press and blogsophere, including some good discussion of the legal issues involved:

My colleague Howard Friedman's Religion Clause

Volokh Conspiracy, "Women Only Exercise"

Title IX Blog

Harvard Crimson, "No Boys Allowed: Women-only hours at the QRAC constitute a pareto inefficient policy"

Harvard Crimson, "The All New Girls' Club QRAC Turns Single Sex"

Chicago Marathon Study

During the recent Sports and Recreation Law Association conference, I presented a paper on the legal and risk management issues involving last year's LaSalle Bank Chicago Marathon. The race, run under unusually warm weather in Chicago, resulted in the cancellation of the race after one entrant died and hundreds were taken to hospitals. [To read my prior blog on the race click here; to see videos on YouTube, click here and here]

I became intrigued for personal as well as professional reasons. I have run a number of long distance races (often at the back of the pack) and have long considered whether the preparation done by the organizers are adequate to ensure an efficient and reasonably safe race.


As far as liability is concerned, most litigation is precluded by tort and contract law limitations. Assumption of risk is a venerable tort concept that creates a defense to negligence cases because the participant, by voluntarily entering the event, assumes all reasonable risks of injury which in a marathon include many factors, such as physical difficulty, running surface and the weather. Assumptions of risk can also be created under contract, through a waiver agreement or an agreement to participate. It is a rule of thumb that any athletic event organizer who markets a competition open to the public includes such agreements, which tend to broadly disclaim liability to the organizers, sponsors and municipalities (or facility owners) for negligence. Most states do not recognize a waiver of all liability (meaning for intentional or reckless acts), but uphold assumption of risk clauses against negligence claims.



But what happens when difficulties in the race are partially caused by the event coordination itself? Before answering this question, I wanted to find out more about the recollections of the runners involved in the race. I put together a questionnaire and e-mailed it to running clubs across the United States and to specific runners that I identified through news articles and YouTube videos. The questions included:

Did the weather forecasters predict such a hot and humid day or did the weather exceed their predictions in both temperature and humidity?

When did you find (if you found) water and Gatorade lacking? At what mile? Did the race have (or supposedly have) water stops every mile?

Did you see runners in distress? At what point?

In some of the videos I saw, there seemed to be efforts by others (firefighters, e.g.) to spray water on the runners or have makeshift areas. Did you see anything like that?

Did you see ambulances? How were the paramedics able to take the injured runners out of harms way?

How would you rate how well the organizers handled the situation? If you can, please explain the basis for the rating.

–a. In initial preparations?
–b. Water supplies?
–c. First aid?
–d. Organizational skills to cope with an unexpected event?

When did you hear that the race was canceled? What was your reaction?

Did the people who announced the cancellation tell runners what they should do and not do?

Some interviewees said that runners were taking a large number of cups of water, which contributed to the shortages for the runners toward the rear. Do you think that was true?

If you have run other marathons, what do you think could have been done differently?

Do you know if anyone (e.g. a law firm) contacted you regarding the proposed class action?

Many of the runners I contacted criticized organizers for lack of adequate amount of liquids (although they increased the water supply based on the weather forecast and took other measures like more emergency vehicles and misting stations) and for a perceived breakdown in organization after the race was cancelled. A number of respondents were confused as to what to do and some claimed that promised transportation did not arrive. However, only one of the 40 plus runners I surveyed welcomed the idea of a lawsuit. Most said that the organizers distributed warnings about the heat. A number of respondents suggested that the race should have started earlier and some were incensed by the comments of the race director that seemed to blame runners for taking too much water. And most of the respondents agreed that the race should have been cancelled. The runners who were most affected by the logistical problems were those who tended to be slower or novice runners.

Although there is a paucity of cases involving lawsuits against marathon organizers, I did find one case that concluded that an assumption of risk clause did not preclude a lawsuit against marathon organizers where lack of water and electrolytes occurred during the race. The California appellate court in Saffro v. Elite Racing, 98 Cal. App. 4th 173 119 Cal. Rptr. 2d 497 (2002) ruled that the trial court's summary judgment ruling was reversed.

I would be happy to send my presentation to anyone interested. E-mail me at Sportslaw@aol.com.

UNC-Duke and Cheering Speech

">" border="0" alt="" />



Last night's UNC-Duke game provides a good opportunity for two quick thoughts on cheering speech. The game was another chapter in what is supposedly the nastiest and deepest rivalry in all of college sports, played at the arena whose fans get the most attention for their clever/rude (depending on your point of view) cheering speech.



First, Duke fans wore Carolina-blue ribbons in memory of Eve Marie Carson, the UNC Student President who was killed last week. I assume there was a moment of silence, but I did not see the beginning of the game. A wonderful gesture--and an illustration of precisely why cheering speech is so important and why I define it as such a broad category of expression. Sporting events are a unique secular gathering place at which we can express, as a collective, a great many messages and ideas (here, ideas of sadness and mourning and sympathy). Of course, many of these messages, including the memorial here, have absolutely nothing to do with sports or the game. That's the point--what touches "the game" is enormously broad.



Second, early in the week, Coach K met with Duke students to talk about their cheering and urging them to keep it classy and supportive of Duke and to be particularly sensitive in light of the events of last week. (H/T: Deadspin). Good for him and for Duke. Because, ultimately, the key to controlling fan behavior is for those in charge (coaches, university administrators) to convince the bulk of students to keep it clean and to have the student-section mores self-police, for social pressure to bring everyone into line. That, in fact, is how we develop and maintain a functioning civil society--not through government coercion, but through social pressures.



But here is a question: Suppose one asshole decided to depart those mores by displaying a sign saying "Our President Lives, How 'Bout Yours?" Without question this is insensitive and obnoxious and rude and disrespectful. But it is not defamatory; it is not a targeted threat; it is not obscene (or even indecent); and it is not fighting words--it falls in no unprotected category of speech. So is there any theory of free expression (other than a sort of Borkean, the-First-Amendment-only-protects-political-campaigns-and-policy-discussions position that never has gotten anywhere) on which that sign should be formally punishable (put aside for the moment that Duke is a private university)?

USA Today on Fan Behavior

I provide the Opposing View in a debate in USA Today over speech and behavior by college basketball fans. Nothing new from either side, but a quick distillation of competing positions.

Ethics and Agent Fees

In this month's issue of the ABA Journal, Kathryn Thompson has a very informative piece about the ethics standard for lawyer fees pursuant to Rule 1.5 of the ABA Model Rules of Professional Conduct, which simply prohibits fees that are "unreasonable" ("Let's Be Reasonable: Client consent to a fee agreement doesn't mean it's ethical"). Agents who are lawyers are obviously bound by the legal ethics rules. However, non-lawyer agents also act in a fiduciary role on behalf of their clients, which subjects them to common law agency principles of "duty of care" and "duty of loyalty". I have always questioned the reasonableness of a commission-based agent fee system by which agents are paid a percentage of the entire value of the player contract negotiated by the agent. In my Willamette Law Review article, I examine how the economics of the player representation business, with increasing player salaries under a commission-based agent fee system, fuels intense competition among agents, which ultimately harms the players, the teams and the leagues in multiple ways.

The typical counter-arguments to my position are two-fold: First, a commission-based fee is the "normal" fee charged in the player-representation business and players are willing and able to pay the fee. Second, the agent does much more work for the player than simply negotiating a player contract, which makes it difficult to charge a flat fee or an hourly rate fee for the agent's services, i.e. agents put a lot of time and expense into "babysitting" their existing clients and recruiting prospective clients. Although Thompson's article is not specifically addressing agent fees, it essentially addresses why each of these two counter-arguments is not compelling. Regarding the first one, Thompson notes:

A meeting of the minds between lawyer and client does not necessarily mean, however, that a fee agreement is reasonable in the eyes of disciplinary tribunals or courts. A case in point is In re Sinnott, 845 A.2d 373 (2004), where the Vermont Supreme Court affirmed a disciplinary panel’s finding that a fee was unreasonable even though it was based on a valid contract knowingly signed by the client. The court said it is unethical for lawyers to charge unreasonable fees “even if they are able to find clients who will pay whatever a lawyer’s contract demands.”

Regarding the second one, Thompson notes:

Courts also have held that it is unreasonable for lawyers to charge their own rates for services provided by nonlawyers or for their own law-related tasks that do not constitute the practice of law, such as sending faxes or delivering documents to opposing counsel. Lawyers should similarly avoid charging clients for services that fall outside the confines of traditional law practice. In Cincinnati Bar Association v. Alsfelder, 816 N.E.2d 218 (2004), the Ohio Supreme Court affirmed the finding of a disciplinary board that it was unreasonable under Ohio’s version of Rule 1.5 for an attorney to charge a client for “friendly advice” unrelated to the cli­ent’s legal needs. Often meeting over lunch or dinner, the client consulted the attorney about personal relationships, finances and restaurants, among other things. Despite the attorney’s assertions to the client that he had only “attorney’s time” to give, the result was “allowing the client to consult him as a friend while charging for his time as a lawyer,” the court concluded.

The NFLPA and the NBPA have been proactive in this regard by capping the commission that an agent may charge the client. The NFLPA agent regulations, for example, provide that the maximum fee chargeable is 3% of the player's compensation, which is reduced to 2% for players who are Restricted Free Agents or tagged with a Franchise or Transition designation, and further reduced to 1.5% and 1% when tagged with a Franshise or Transition designation a second and third time, respectively. Presumably, the idea here is that the agent's fee should be appropriately tied to the time, difficulty and skill of the work involved (which are factors listed under Rule 1.5 to consider). Thus, the agent's fee should be less to the extent the agent is doing less work or when the work involves less skill because there is little or no negotiation involved in determining the player's compensation. This is also the rationale behind the MLBPA's agent regulations (which do not impose an agent fee cap) that prohibits an agent from receiving a fee to the extent of a player's guaranteed "minimum" salary as set forth in the CBA.

Is it "reasonable" for agents to charge fees on a commission basis? Should A-Rod be required to pay any agent a commission on the first (pick an arbitrary number) $15 million in salary he receives each year? My 10 year old could obtain that, and even more than that, on A-Rod's behalf. Fifteen years ago, Don Fehr said: "As an athlete begins to earn 3 or 4 or 5 million dollars a year, is the work involved that much more lengthy than it was before? As a matter of fact, the agent’s skills may improve and his or her bargaining power may be greater which could mean the process entails less work. Do percentages make any sense? Well, maybe not."

Well, in today's dollars, that 3 or 4 or 5 million is now 10 or 11 or 12 million....

Clemens v. McNamee: Your Civil Procedure Exam

Apparently, the new goal of sports figures is to educate the public about civil procedure (not a bad thing, actually). First came the lawsuit between West Virginia University and Rich Rodriguez, its former football coach, which taught us about removal and the difference between a citizen of a state and an arm of the state for purposes of diversity jurisdiction and now is going to demonstrate just what the discovery process looks like. (WVU Law's Sports and Entertainment Law Society and Professor Beth Thornburg (SMU, visiting at West Virginia) both are doing a great job watching and reporting on the procedural details).

Now comes the defamation lawsuit that Roger Clemens filed against Brian McNamee, his former trainer, over McNamee's statements to law enforcement and the Mitchell Commission that Clemens used performance-enhancing drugs. Clemens filed the lawsuit in January in state court in Houston; McNamee removed to federal court (on diversity--this was an obvious move). Yesterday, McNamee brought Rule 12(b) alive for civ pro students and sports fans alike. Get ready for your final exam, featuring a motion to dismiss for:

1) Lack of Personal Jurisdiction: McNamee argues that his allegedly defamatory statements were made in New York (where he met with Mitchell Commission investigators) about actions that Clemens took in Toronto and New York. McNamee went to Texas several times to train Clemens (about 2-3 times per year since the late 1990s) but none of those trips had anything to do with his injecting Clemens or with his statements. Clemens suffered harm in Texas, where he lives, but McNamee did nothing to direct his statements to Texas, and 5th Circuit precedent holds that the situs of harm alone is not enough. More interestingly, Clemens' complaint argues that McNamee is subject to general jurisdiction based on 2-3 annual trips to Texas.

2) Improper Venue: Under § 1391, a diversity case can be brought in a federal district in which a defendant resides or in a district where a substantial part of the events and omissions giving rise to the claim occurred. McNamee resides in New York, which also is where the events and omissions (his statements and the subject of those statements) occurred. It is not clear any of the key events occurred in Texas.

3) Failure to State a Claim: McNamee argues that Clemens' complaint is factually insufficient, by failing to allege with specific detail the defamatory statements--when the statements where made, when, to whom--and cites, of course, Bell Atlantic v. Twombly, the current focus of much academic obsession. There also is citation to prior case law that required higher pleading for defamation claims, such claims being "disfavored."
McNamee also argues for dismissal of Clemens' claim for a declaratory judgment that Clemens did not defame McNamee, arguing that case law generally prohibits a potential tortfeasor from seeking a declaration of non-liability, since doing so would allow a potential defendant always to trump the potential plaintiff's choice of forum. This likely is a first step towards McNamee bringing a defamation counterclaim (which likely would be compulsory) if he is unsuccessful in getting Clemens' complaint dismissed.

Notably missing is a motion to transfer venue from Texas to New York--that even if Texas is appropriate, the case can more easily and more appropriately be litigated in New York. This probably is because it is tough to get a case transferred out of the plaintiff's home forum (Clemens lives in Texas). But I am surprised McNamee's attorneys did not spot that issue and at least try to bring that motion.

Sports Lawyers Association Annual Conference

The Sports Lawyers Association 34th Annual Conference will be held at the Westin St. Francis in San Francisco, May 15th - 17th. The three-day conference is a premier event each year for sports law attorneys, agents, professors of sports law, students, and personnel from professional sports teams, leagues, player associations, governing bodies and companies tangentially involved with professional and amateur sports. It is a great educational experience and networking opportunity. The conference brochure (pdf) is now accessible here. The ING Bay To Breakers 12K race will be held Sunday, May 18th, in San Francisco, attracting 100,000+ participants, so attendees are encouraged to reserve their hotel room early.

Three Clemens-Related Stories for Monday

1) Darren Rovell has an excellent piece on CNBC's Sports Biz examining how Rusty Hardin's business may be hurt by his representation of Roger Clemens. Here is an excerpt:

Now I'm hardly suggesting that if the public decides that Clemens is guilty his lawyer Rusty Hardin, who has had a distinguished career, should call it quits. What I am suggesting is that if the Department of Justice does have enough evidence to bring Clemens up on perjury charges, Hardin is going to have to reconsider whether he should pack it in at 66. Because at the very least, his business is going to take a hit.

I understand why Hardin took this case. Look at his web site and you see he has a fascination with representing sports figures Calvin Murphy, Wade Boggs, Scottie Pippen and Warren Moon, among them. And he obviously had a client in Roger Clemens who was interested in doing everything (read: many billable hours). As a lawyer, Hardin has simply done everything his client has wanted, while presumably advising him of the legal risks. But I'm honestly shocked as to how much Hardin has been willing to put himself in the public eye. Roger's words have now become his words as well.

Be sure to read the rest of Darren's piece, it is an excellent read.

2) Our friends and colleagues Alan Milstein and Jeffrey Standen were interviewed by Cybercast News in regards to Clemens. Here are their comments:

Alan C. Milstein, a nationally recognized expert in sports law and bioethics who has followed the steroids hearings closely, told Cybercast News Service that it's not clear from the testimony who is lying, and it may not be for some time. Inconsistencies in statements do not necessarily amount to perjury. "I don't think from what we've heard so far that we know who is telling the truth and who's not," Milstein said.

Willamette University Law professor Jeffrey Standen agreed but said the committee's attorneys may have the inside scoop. "They probably know more than we do," Standen told Cybercast News Service. "If the committee is willing to make some kind of referral to the Justice Department, we don't have to trust that as being conclusive, but it does tell us who they believe."

3) Tommorow's Yale Law School Panel on "The Mitchell Report and Beyond: Steroids, HGH, and the Future of Baseball" -- which I'm thrilled to be a part of and which begins at 5 p.m. -- is open to the general public, so if you are near New Haven, hopefully you can come by. The panel is co-sponsored by the Yale Entertainment Sports Law Association and the Yale Law School Dean’s Office. If you would like additional information, please contact Aaron Zelinsky, a 1L at YLS who has played a major role in organizing the event, at aaron.zelinsky[at]gmail.com.

4) Bonus story: on SI.com I wrote about Barry Bond's attorneys securing a minor victory in court last Friday. The government's indictment against Bonds has been deemed duplicitous, a correctable problem, though one from which Bonds may take confidence.

Recent Sports Law Scholarship

Recently published scholarship:

Kathryn Keen, Note, The Equity in Athletics Disclosure Act: does it really improve the gender equity landscape?, 34 JOURNAL OF CONTEMPORARY & URBAN LAW 227 (2007)

Dionne L. Koller, Frozen in time: the state action doctrine’s application to amateur sports, 82 ST. JOHN'S LAW REVIEW 183 (2008)

Jeffrey F. Levine, Note, Meeting the challenges of international brand expansion in professional sports: intellectual property right enforcement in China, 9 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 203 (2007)

Chris Miller, Comment, Hockey’s cold war--Russia’s defiance of the IIHF and the Evgeny Malkin saga, 17 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 163 (2007)

Melissa Neiman, Fair game: ethical considerations in negotiation by sports agents, 9 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 123 (2007)

Rohith A. Parasuraman, Note, Unionizing NCAA Division I athletics: a viable solution?, 57 DUKE LAW JOURNAL 727 (2007)

Griffin Toronjo Pivateau, Tackling the competitive sports doctrine: a new proposal for sports injuries in Texas, 9 TEXAS REVIEW OF ENTERTAINMENT & SPORTS LAW 85 (2007)

Richard Salgado, A fiduciary duty to teach those who don’t want to learn: the potentially dangerous oxymoron of “college sports”, 17 SETON HALL JOURNAL OF SPORTS & ENTERTAINMENT LAW 135 (2007)

Sports and Recreation Law Association Conference

Many law professors center their sports law classes on professional sports league issues, notably labor law, antitrust and contracts. However, many sports law teaches and practitioners focus on amateur and recreational sports issues, such as personal injury, risk management, disabilities and gender discrimination. While some of these subjects do not get the frequent news coverage that professional sports issues do, they involve far more individuals and organizations than found in the pros. For those attorneys who wish to get a foothold in sports law practice, there may be more opportunities to represent a student injured in an intramural high school event than arguing in a grievance arbitration involving a Major League Baseball player.

I just came back from the 21st annual Sports and Recreation Law Association conference (SRLA), a small organization of scholars who teach in sports management programs throughout the United States. Many teach sports law, but some also teach classes in in sports management and risk assessment. As a member for a number of years, I enjoy the company of my colleagues in SRLA, but more importantly, as somehow who concentrated in pro sports issues, I have learned a great deal in the areas involving recreational and school sports.

For those interested, the presentations given are listed as follows and if anyone is interested in becoming a member, check out the home page and contact page.

[I will discuss my research presentation in a separate post]

Why did the Committee Turn on Clemens?

Mike has written a couple recent SI pieces (here and here) on the unraveling of Clemens' legal strategy and the resulting referral from the House Committee on Oversight and Government Reform. Particularly in the second piece, he describes the way that committee Republicans, who had staunchly defended him and attacked Brian McNamee mercilessly and personally during the hearing, have joined Democrats in wanting to investigate Clemens further. I wrote about the surprising partisanship, and received some good comments, here and here.

My question, for Michael (who, unlike the rest of us, now has sources) and anyone else with a guess: Why? Why did the GOP turn on him? Speculation after the hearing was that the GOP rallied around Clemens because he is a Republican and a Friend of W--but none of that has changed. Did it just become so irrefutable that something was amiss in Clemens' testimony? Perhaps, but GOP members could have stood on a "this is none of our business" principle and avoided a referral. What could cause Davis, Burton, and Shays (in particular) to do a 180 and decide Clemens likely lied and McNamee, whom they all called a liar in one form or another during the hearing, is not even worth further investigation?

Happy Anniversary: Why Write Here?

To mark what apparently is this blog's 203d post, I want to add my own spin to much of what Geoff writes here and in his comments to The Sports Law Professor.

When I was interviewing for teaching jobs five years ago, I frequently was asked why sports law was not part of my teaching package, given my sports background: student manager for a Big Ten basketball program; a short-lived career as a small-college coach; a love of most things sports; and early work on my fan-speech project. My answer largely followed Greg's original post: "Sports law" is a specific application of areas of law (contracts, torts, antitrust, business organizations) that I am not particularly interested in studying. On the other hand, I share Geoff's view that law comes alive for much of the public (and for many students) most when it involves sports. Is there more interest in how the discovery process works when it involves a run-of-the-mill commercial dispute between two multi-national corporations or when it involves a dispute arising from a football coach allegedly leaving his school high-and-dry for a better job? The latter, I believe--which is why the Rich Rodriguez Blog (run by the WVU Sports and Entertainment Law Society and guest blogger dre cummings) is such a great project.

For myself, I have been drawn to writing in this forum because sport provides a great example of s small, closed society through which we can study rules and legal processes. Much of the theory of what is law, how legal rules should operate, and how legal rules should be enforced can be captured, at a micro level, in sport. Should there be instant replay? Allows us to consider the balance among finality, truth, and human abilities, as well as questions of the accuracy of video in general. Should steroids be banned and steroid-users punished? What is the balance among fairness in competition (whatever that means) and success in competition by using available means of achievement. Even seemingly mundane questions--should based coaches be required to wear helmets--can be abstracted to tell us about broader legal ideas of assumption of risk and paternalism (although the author of that post rejects the idea of baseball-as-societal-lens). Finally, how do (and should) the rules of this closed society interact with the rules of the broader society? Should leagues punish players who commit societal wrongs that have nothing to do with their roles or duties as athletes?

Sport is both unique and not unique for purposes of the study of rules and law and process. But it forever presents new examples and illustrations. For that reason, we can expect to keep writing another 200 entries.

Happy 2000th Anniversary, Sports Law Blog!

Rick's post on Thursday represented a milestone of sorts for this blog: It is our 2000th published post! Four and a half years and 2000 posts ago, Greg wrote:

Since there is no such thing as 'Sports Law,' this blog will be dedicated to the law and the role it plays in the sports industry. I hope to have it up and running soon.

In the time since, the blog has grown from one contributor to five, helped its authors land numerous interviews, speaking opportunities, and even (presumably paying) gigs with mainstream media outlets. We've welcomed over 790,000 visitors, beat out the faculty at the University of Chicago law school, and attracted some nice accolades.

In the spirit of the times, I thought I'd revisit the first words that appeared on the blog (and invite my co-contributors to share their thoughts in later posts or comments): "there is no such thing as 'Sports Law'." Still true?

Wake Forest's Timothy Davis has written a classic article called, "What is Sports Law?" In that piece he describes three answers to the question posed in his title. The first is the "traditional" view embodied in Greg's first post -- that there is no separate body of law called "Sports Law," but that what we teach in the class that goes by that name is just a little bit of contracts, torts, antitrust, etc., as applied to the sports industry.

Even if that view is right, I'm not sure that undercuts the case for including Sports Law in the law school curriculum. There is a move afoot at some top law schools to introduce interdisciplinary courses that study different branches of law "horizontally" rather than "vertically". For instance, the University of Colorado has offered a course called "Wal-Mart". The idea is that studying a particular firm (large enough to be called its own industry) from different legal perspectives might add something that reading about the same firm in 12 different, isolated classes might miss. Teachers of Sports Law have been teaching in this interdisciplinary way for years (as well as helping refresh some core bar subjects in a fun and interesting way).

Professor Davis also describes "moderate" and "separate field" views of Sports Law -- that it may not be but is on the way to becoming a separate field, or is already there, based on the emergence of specialized laws to regulate sports (or laws, like Title IX, that apply most prominently in sports cases).

I would add a fourth view, which is my own, called the "institutional" view. Sports law may be worth studying for two reasons. First, there are now separate legal institutions -- particularly on the international side -- for addressing legal issues arising from sports. Studying those institutions separately may make sense.

But more significantly, sports law may be worth studying because of the way sports cases seem to gum up otherwise (mildly) effective legal institutions. Too many "sports law" cases (and the differences between them) seem to turn on whether the judge, underneath that black robe, is wearing the jersey of the plaintiff or defendant team. In that sense -- where we encounter decisions in which the law seems to have been left at home and fandom reigns supreme -- studying Sports Law sometimes resembles legal realism on steroids (as I noted in a comment to Jeff Standen's post here).

This is not to say that marketing yourself as a "Sports Law" person -- whether applying for a job at a university athletic department, law firm, or law school -- makes sense. Probably the opposite. But I think its fair to say that Sports Law offers enough meat to justify its place at the table.

Thanks to all our readers for their support over the years! (And to Greg and Mike for building this blog from the ground up).