"Friendly" Confines = Confines with a Civility Code?

Yet another fan speech controversy is brewing, this one in the left-field bleachers at Wrigley Field. Cub fans have been booing Alfonso Soriano for his poor defense, which prompted Cub officials to warn fans that "any profane or inappropriate comments" toward Soriano would result in immediate rejection. (H/T: Adam Wasch, Sports Law Blog reader and president of the FIU Sports and Entertainment Law Society).



Nothing actionable here because Wrigley remains privately owned (although a move is afoot to try to get the State of Illinois to buy it, partly to keep new and despised Cubs owner Sam Zell from selling naming rights). But this example captures problems inherent in all the attempts to regulate fan speech. This is ground I have covered before, but it bears repeating.

First, "inappropriate" is vague to the point of meaningless as a standard. Inappropriate in whose eyse? The usher's? Soriano's? Some might argue that booing the home team always is inappropriate.

Second, profanity is the coin of the realm in the bleachers at Wrigley Field. The left-field bleachers were my area of choice in my Chicago days (because, after all, Right Field Sucks). And, in fact, the Cubs have gone out of their way to promote and market this image of the Bleacher Bums and their interactions with the players, fully recognizing that profanity and pointed criticism (clever or otherwise) always have been part of that. Yet now, when the fans' ire and "wit" have turned on their own, sensitivity and civility suddenly is at a premium. And again, note that it was "profane or inappropriate" comments. This was not just about stopping profanity.

Do you really want to stop fans from criticizing and jeering the home players? Do not bother trying to stop fans from speaking out. Instead, engage in a little counter-speech, Lee Elia-style.

Intentional Tort of Last Resort Alert: Clemens Adds "Outrage" Claim to McNamee Suit

Yesterday, Roger Clemens added a claim for "Intentional Infliction of Emotional Distress" to his lawsuit against former trainer Brian McNamee. Prior to this, Clemens claim was based on defamation (false statements harming his reputation).

Intentional infliction of emotional distress ("IIED"), also known as the tort of "Outrage", is the new kid on the intentional tort block. A defendant can be liable for IIED if she intentionally (or recklessly) engages in extreme or outrageous conduct causing severe emotional harm to a plaintiff. Conduct meets the requirements of the tort if, when recounting what happened to an average member of "the community", one would produce the following response: "OUTRAGEOUS!" This is essentially a "oh no he didn't" standard for imposing tort liability. Such conduct must be more than mere insult or "petty oppression", but must be the sort that is utterly intolerable to a civilized society.

This is the first good piece of lawyering I've seen out of the Clemens team. His defamation claim is both a loser and a disaster. A loser because even if Clemens never used steroids (i.e., it really was B12 vitamin McNamee injected into his all-star client), the Constitutional dimension of defamation requires a showing that McNamee was at least reckless as to the truth or falsity of the statements he made (since Clemens is clearly a "public figure"). In addition, many of McNamee's statement's, made in the context of government investigations, would be subject to a privilege and could not lead to liability. The defamation claim was also a strategic disaster, because by claiming McNamee harmed his reputation, Clemens made his own character and reputation an issue. Apparently underage mistresses, mental stability, and the like, all become an issue. And in the defamation case, Clemens could be called to the stand to answer frank questions about performance enhancing substances, and, if he lied, prosecuted for perjury.

The IIED claim, however, avoids many of these pitfalls. Was the anything "OUTRAGEOUS!" about what McNamee did? Certainly there is nothing unusual, or intolerable, about alleging that a professional baseball player was on the juice. They all were, whether there was anything wrong with that or not. But here's what McNamee did that is so odd that I might be inspired exclamation: He kept dirty bandages, and Roger's bodily fluids, in sealed bags for years, just in case he might need them later. This is Monica Lewinsky not taking the blue dress to the cleaner, and it is shocking. If I learned that my doctor or trainer had kept my medical waste for years, well, I would have something to say about it.

Put on the stand in an IIED case, Clemens would not have to testify about whether he used steroids or not (assuming the defamation claim is by that point dismissed, which I think is a safe assumption). His reputation would not be an issue. The only major hurdle would be demonstrating that he did in fact suffer the "severe" emotional distress IIED requires. But on that issue, he would likely get to a jury.

The Bioethics of Oscar Pistorius Competing in the Olympics

Last week, Geoff wrote an excellent post on whether double amputee sprinter Oscar Pistorius should be able to compete in the Olympics. Over Blog Bioethics, Dr. Arthur Caplan, Chair of the Department of Medical Ethics and the Director of the Center for Bioethics at the University of Pennsylvania, has a compelling analysis that largely argues against allowing Pistorius to compete. Here's an excerpt:

Continuity with history

Pistorius' amazing drive to compete may cause an even more troubling problem.

Sport demands continuity with its own history. If you make technological changes in the equipment — swimsuits, pole vaults, running shoes, skates, skis, baseballs, bats, playing surfaces, etc — then you undermine the ability of today’s athletes to be compared not only with their peers but with their predecessors.

Similarly, if people with artificial legs, artificial eyes that permit exquisite focus, pharmacologically enhanced muscles or emotions, or brain implants that permit unprecedented concentration or endurance enter into competition, then you no longer have a sport. The athletes are not comparable to those who attempted the same feats in earlier times.

We don’t expect to compare the performances of today to those of the ancient Greeks, but we do expect some ability to compare what happened today to be compared with what happened yesterday, a year ago, a decade ago or even 50 years ago.

It may be fascinating to see who can go the fastest on rocket-powered legs or throw a heavy weight the farthest using performance-enhancing drugs, or genetically engineered muscles. But what you have then is an exhibition or a show, not a sport. In some ways, this is what the professional wrestling and no-rules body building already are.

To be a sport you need something approximating a fair playing field, some boundaries on the attributes of those who compete so they are comparable to one another and some ability to compare today’s performance with those in the not-so-distant past.

That is why I am not sure Oscar Pistorius should compete.

For the rest of the post, click here.

New Sports Law Scholarship

Recently published scholarship, including a symposium on Title IX:

Omar Hafez Ayad, Note, Take the training wheels off the league: Major League Soccer’s dysfunctional relationship with the international soccer transfer system, 10 VANDERBILT JOURNAL OF ENTERTAINMENT & TECHNOLOGY LAW 413 (2008)

Sen. Birch Bayh, Personal insights and experiences regarding the passage of Title IX, 55 CLEVELAND STATE LAW REVIEW 463 (2007)

Deborah L. Brake, Title IX as pragmatic feminism, 55 CLEVELAND STATE LAW REVIEW 513 (2007)

Tim Bezbatchenko, Comment, Bend it for Beckham: a look at Major League Soccer and its single entity defense to antitrust liability after the Designated Player Rule, 76 UNIVERSITY OF CINCINNATI LAW REVIEW 611 (2008)

Linda Jean Carpenter & R. Vivian Acosta, Title IX--two for one: a starter kit of the law and a snapshot of Title IX’s impact, 55 CLEVELAND STATE LAW REVIEW 503 (2007).

John DiMascio, Note, The “jock tax”: fair play or unsportsmanlike conduct, 68 UNIVERSITY OF PITTSBURGH LAW REVIEW 953 (2007)

Marcia D. Greenberger & Neena K. Chaudhry, Worth fighting for: thirty-five years of Title IX advocacy in the courts, Congress and the federal agencies, 55 CLEVELAND STATE LAW REVIEW 491 (2007)

Bernice Resnick Sandler, Title IX: how we got it and what a difference it made, 55 CLEVELAND STATE LAW REVIEW 473 (2007)

Two from The Times

Two interesting sports-related op-eds in The New York Times:

First, former major leaguer Doug Glanville (a Penn grad and a very thoughtful person) discusses the "unwritten rules" of baseball, mostly as the relate to players' obligations to fight.

Second, Francis Clines considers what he sees as the new practice of fans booing their own players.

Sports Media Ethics (or lack thereof)

Bonjour from France. I am teaching an international sports law course in France, so my blogging will be limited during the next several weeks.

But I wanted to mention the panel on sports media ethics that I moderated last week in San Francisco at the Sports Lawyers Association annual conference. The panelists included members of the sports media, Lester Munson (ESPN) and Jon Wertheim (Sports Illustrated), Jane Kirtley (media ethics professor and expert) and Michael Huyghue (commissioner of the newly formed United Football League and former agent of Pacman Jones).

Media ethics codes have been established (in writing) by a variety of news outlets, parent news companies, and trade associations working in different media. These codes provide guidelines for journalists "to seek and report the truth" and "to minimize harm". For example, with respect to accurate reporting, the ethics code established by the Society of Professional Journalists provides that journalists should:

• Test the accuracy of information from all sources and exercise care to avoid inadvertent error. Deliberate distortion is never permissible.
• Diligently seek out subjects of news stories to give them the opportunity to respond to allegations of wrongdoing.
• Identify sources whenever feasible. The public is entitled to as much information as possible on sources' reliability.
• Always question sources’ motives before promising anonymity. Clarify conditions attached to any promise made in exchange for information. Keep promises.
• Make certain that headlines, news teases and promotional material, photos, video, audio, graphics, sound bites and quotations do not misrepresent. They should not oversimplify or highlight incidents out of context.

It also provides that journalists should:

• Show compassion for those who may be affected adversely by news coverage.
• Be sensitive when seeking or using interviews or photographs of those affected by tragedy or grief.
• Recognize that gathering and reporting information may cause harm or discomfort. Pursuit of the news is not a license for arrogance.
• Only an overriding public need can justify intrusion into anyone’s privacy.
• Show good taste. Avoid pandering to lurid curiosity.
• Be judicious about naming criminal suspects before the formal filing of charges.
• Balance a criminal suspect’s fair trial rights with the public’s right to be informed.

Sports journalists seem to routinely get away with reporting inaccuracies (e.g. falsely reporting that the Grimsley affidavit contained the names of certain high profile players connected to steroid use) as well as intruding into the private lives of sports participants including players, coaches and front office personnel. I questioned the panelists why there is a more "relaxed" code of media ethics with respect to news reporting in the sports industry as compared with other industries. On the privacy issue, the response was essentially that professional athletes seek attention (e.g. by endorsing products) and thereby "assume the risk" that their private lives will be exposed by the media. I never understood that rationale (legally or otherwise), so when I challenged that proposition, I was told that I was "beyond my years" in a google/myspace era.

In my view, the problem is that the media determines what is "newsworthy," combined with the fact that (1) there is no external mechanism or independent body to enforce their ethics codes (like the state bar enforces ethics codes in the legal profession) and (2) the First Amendment trumps state tort laws in the courts. While the media plays an important role in reporting news, media sources are essentially product and service providers that compete with each other in a free market. The sports media "needs" sports participants in order to provide a quality product -- it needs access to sports participants; it needs cooperation from the participants; and it needs to interview the participants and highlight their views, perspectives and commentary. To put it simply, despite the enforcement and First Amendment hurdles, the participants are not powerless with respect to the media.

I suggest the players unions and the leagues find creative ways to "deal" with the media on terms that are mutually beneficial to both the participants and the media -- in other words, cooperation and access in exchange for accuracy and privacy.

California's Miller-Ayala Act and the O.J. Mayo Situation

Most states have a statute regulating agents that is modeled after the Uniform Athlete Agents Act. The one in California is not based upon that model, but section 18897.6 of the California Business and Professions Code does seem to apply to the Mayo allegations:
“18897.6. No athlete agent or athlete agent's representative or employee shall, directly or indirectly, offer or provide money or any other thing of benefit or value to a student athlete.”

The USC Trojans website actually contains a link to the Miller-Ayala Act at http://usctrojans.cstv.com/genrel/usc-agent-page.html.

I wonder if anyone in the California Office of the Secretary of State is looking into this.

Labor-management conflict brewing in the NFL (in 2011)?

The Workplace Prof blog links to the ESPN stories.

Are aluminum bats an unreasonably dangerous product?

The Tort Law Professor blog has details (and links) regarding a products liability lawsuit filed over an injury to a little league baseball player hit in the chest by a batted ball against, among other defandants, the manufacturer of the bat.

Under the "risk-utility" test for products cases, the plaintiff will have to show that the "usefulness" of the bat's design (aluminum, as opposed to wood), is not outweighed by the higher risks to players in the field that aluminum bats pose.

An interesting case to watch.

UPDATE (7:38 pm): A sympathetic Jeff Standen (The Sports Law Professor), in a wonderful post, predicts the case will fail.

Double-Amputee Pistorius Wins Right to Run with Cheetahs; Most Offensive Metaphor in a Disability Case Ever?

Oscar Pistorius has become "the first amputee to successfully challenge the notion that his carbon-fiber prosthetics gave him an unfair advantage and assured his right to race against able-bodied athletes in the Olympics . . ." The full text of the Court for Arbitration of Sport ("CAS") panel's decision can be downloaded here. However, since CAS has not yet created a searchable database of past decisions, the PDF will only be available as long as it is classified a "recent" decision. For a background on the dispute, see my January post on this blog or Marc Edelman's Above-the-Law piece.

The meat of the CAS panel's decision begins around page 10. The panel characterized the IAAF's investigation of Pistorius's case as procedurally "off the rails." The IAAF expert recruited to analyze whether the Cheetah prosthetic gave Pistorius an advantage was tasked with examining the runner's performance only in the "straight" portions of a run (it appears that Pistorius is slower than other runners in the curved and starting portions of his races, but faster in the straight portions). The expert's analysis, in the panel's view, was flawed from the start and rigged to produce a conclusion that Pistorius had a competitive advantage.

The second issue considered by the panel was whether the IAAF's exclusion of Pistorius amounted to unlawful discrimination. The panel, hopefully not intending this rather shocking and offensive pun, opined that "disability laws only require that an athlete such as Mr. Pistorius be permitted to compete on the same footing as others." Maybe some law clerk or research assistant was playing a joke on this panel by trying to see if s/he could slip this in? Regardless, Pistorius attempted to demonstrate that the IAAF had violated the international Convention on the Rights of Persons with Disabilities. Since the IAAF was not a signatory to the convention, the panel ruled that the Convention did not impose any obligations on the federation.

Pistorius earned his victory thanks to the panel's analysis of whether the IAAF violated its own Rule 144.2(e) in declaring him ineligible. That rule forbids the use of "any technical device that incorporates springs, wheels, or any other element that provides the user with an advantage over another athlete not using such a device." The panel begins with some snide commentary about the rule itself -- asking whether it might bar the use of the "natural human leg" which "is itself a spring." This is kind of a silly venture, of course, since the rule bans any "technical device" - whether springed or otherwise. Any sensible observer of this dispute and this rule knows the Cheetah prosthetics qualify as a "technical device."

But does the system give Pistorius an advantage over an athlete not using the prosthetics? Here, the panel had to decide what the rule meant by "advantage". The panel reads the rule as barring only devices that provide a "net advantage" -- "If the use of the device provides more disadvantages than advantages, then it cannot reasonably be said to provide an advantage over other athletes, because the user is actually at a competitive disadvantage." Since the IAAF investigation did not explore whether the Cheetah provided a "net advantage" (in comparison, I take it, with running on a pair of natural legs), the IAAF's exclusion of Pistorius was reversed.

The CAS panel here has embraced a very similar notion to one of the bases of the U.S. Supreme Court decision in the Casey Martin ADA golf cart case. (I raised the analogy in my last post on the case). Although the panel did not cite Martin, it shares the view that a disabled athlete who requests the use of a technical device as an accommodation should be permitted to use that device if, even after using the device, he will still be as fatigued as healthy athletes not using that device.

As NY Times reporters Robinson and Schwarz astutely observe: "The ruling’s direct impact on disabled athletes could be limited, in part because Pistorius, 21, still must post a time fast enough to qualify for the Games."

Run, Oscar, run!

The Cost of College Sports

A new article in the Chronicle of Higher Education reveals that from 2004-06, only 17 out of 330 Division I athletic departments operated at a profit, with universities making up the difference, usually out of general operating revenues. This marked the first time the NCAA had reported budgetary numbers by focusing on revenues allocated to athletics departments by the school, rather than on revenues generated by athletics themselves.

Why is this necessary

Senator Arlen Specter has called for an independent investigation (a la the Mitchell Commission) into the New England Patriots' videotaping practices, apparently dissatisfied with the inquiry conducted by Commissioner Roger Goodell. Specter is particularly upset with the fact that an attorney for the Patriots sat-in on Tuesday's meeting between Goodeel and former Patriots video assistant Matt Walsh and that Goodell's prior investigation was not candid or complete, was marred by a conflict of interest, and did not serve the public interest. Specter issued a Floor Statement on the matter.

I have asked this before and I will ask it again: Why does the NFL owe the public anything, other than what it believes is in its best business interests? And why does or should a member of the United States Senate care how a private entity conducts its business, so long as it is not violating any actual laws or any laws that Congress believes ought to be enacted? Reading the statement, Specter talks about sports as big business, the league's antitrust exemption, and the role-model status of professional athletes. But none of that justifies congressional involvement simply to ensure that the league is abiding by its own internal rules. And it certainly does not justify Congress trying to tell the NFL how to run its business--again, absent some actual law or legislative proposal.

College Education: Hold the Mayo

Here is an interesting article from the New York Times about O.J. Mayo, the “freshman” basketball talent at the University of Southern California. The article argues against the absurd age eligibility rule of the NBA enacted with an eye and ear toward what David Stern admits was the mutual back scratching interests of the NBA and the NCAA.

The beauty of the Rule, as revealed in the case of Mayo, is that it makes transparent the hypocrisy of big time college basketball. The requirement of one year of college, “one and done,” compels players, often from poor backgrounds, who are otherwise eligible to earn a living doing what they do best, to enroll in an institution of higher learning for one and a half semesters until their team exits the NCAA tournament. No less an ethicist than Bobby Knight has said, the rule is “the worst thing that’s happened to college basketball since I’ve been coaching.”

Unlike the NFL in the Clarett case, the NBA could not with a straight face argue that the purpose of the rule is to further the education of young athletes and to prepare them for life after a pro career. (Not that anyone believed the NFL in Clarett.) Instead, the purpose of the NBA’s rule is strikingly clear: it gives their scouts a full year of adequate competition to be able to judge the potential of the talent working for free on the farm.

More on Steroids....

Sarah Kellogg has an excellent piece in this month's issue of Washington Lawyer magazine, Juiced: Congress, Steroids, and the Law. Here are a few probing questions and comments from people she interviewed:

Washington Times sports columnist Tim Lemke:

“Most people look at sports simply as entertainment, and they don’t really get emotionally tied up in it. As long as sports leagues are doing something about the issue, I think fans are pretty content. Congress is sort of overreaching here with the Roger Clemens situation, which turned out to be over the top and not remotely connected to the original purpose here—protecting kids and public health.”

“Sports leagues can’t simply put in place policies as if it’s a dictatorship. Everything goes through collective bargaining. Most people understand that the steroids testing policies in place are pretty good, especially given the fact everything has to be approved by a union. The job of union leaders is to look out for their players and not to give too much away. They’ve had to walk a fine line there.”

“If baseball and sports are filled with people who are dishonest and cheating, is that affecting the public welfare? I’m not sure, but maybe it’s a question that’s worth asking.”

NFL Executive V.P., Harold Henderson:

“Why let steroid use be rampant down at Gold’s gym but legislate against it in sports leagues? If you want to do something about it, get it off the Internet. Ban the nonmedical use of it. Devote some resources to law enforcement and dry it up.”

Author of Freedomnomics and a senior research scientist at the University of Maryland, John Lott Jr.:

“We go and watch sporting events because of the amazing feats these guys are able to perform. If they’re able to do a bit better job with performance-enhancing drugs, then these athletes should be able to make the choice. They take risks all the time. We pay to watch them take those risks. Why are we interested in legislating against these risks but not against others?”

Professors Thomas Hazlett and Joshua Wright on Insuring Top College Basketball Players

George Mason University School of Law professors Thomas Hazlett and Joshua Wright have published a provocative and engaging op-ed in today's Chicago Tribune that proposes insurance as a way of offsetting the risk to players and schools that the players leave early for the NBA Draft.

Here is an excerpt from their piece:

* * *

Cross-town rival USC was left in even worse shape by its freshman sensation, O.J. Mayo. A bitter fan posts: "As a Trojan alum, I have a hard time feeling like O.J. Mayo was ever a Trojan at all . . . I'm glad he's off to mediocrity in the NBA."

Many call for an end to this "college" charade. Proposals include urging the NBA to restore its old rule, drafting high schoolers, or going back to the old-old rule, waiting to draft until four years after high school. But the NBA is unlikely to be moved: This isn't the NBA's problem. Our suggestion is to attack the problem at the college level, where the sport is left twisting in the wind.

First, we note a standard economic problem. Players jump to the NBA because prices (wages) tell them that that is where they are valued. But those price signals are wrong. The college game delivers as much or more excitement, pound for pound, as the pros. What mucks up the system is the NCAA cartel, which restricts payments to college players. The universities maintain that students are amateurs and that it would violate ethics to pay them cash money. This recalls the elitist tripe that the International Olympic Committee maintained for a century, a laughable lie that fell soon after the collapse of Soviet communism—a provocative correlation we'll leave to historians.

Second, we posit that there are two reasons that freshman stars are so likely to leave college early. One is that NBA salaries are high, and that each year a player waits to cash in is one very rich year they lose. Until the NCAA cartel is smashed, that problem is beyond our solution. But the second motive is to mitigate risk. One clumsy leap and a $7.6 million guaranteed contract—the expected price tag for this year's 12th NBA pick—goes poof! And, as financial economists will tell you, that first $7.6 million is probably more important to you than the next.

So the answer, given that universities cannot pay athletes market wages, is to at least insure them. Were underclassmen to be appraised, via draft rankings, and then offered compensation in the event—post-graduation—they slipped by some increment, they could hedge this very considerable exposure. The NCAA allows players to insure, but the player pays even though it is largely the university (and its fans) that benefits. Moreover, policies can only insure against career-ending injuries, leaving the more common outcomes—less serious injuries and performance-related changes in draft status—terrifying prospects.

The schools should extend broader coverage. The contracts we propose do not fully compensate college athletes for their valuable service, and would thus retain only some of the talent now jumping early to the pros. Yet, the approach would preserve the NCAA's "amateur" wink, while allowing student-athletes to play college ball until their 21st birthday without risking the family jewels. A slam dunk, really.

* * *

To read the rest of the piece, click here. To check out Professor Wright's excellent blog, Truth on the Market, click here.

Defining Sport

I jokingly have been interested in trying to define "sport." I have toyed with a definition that requires objectivity in scoring and determining winners. Thus, if it is about objective questions such as who runs faster or who scores more points, it is a sport; if it is about getting a 5.6 from the East German judge, it is not a sport.

But John L. Jackson, an anthropologist at Penn's Annenberg School identifies three necessary conditions:

1) There must be a ball or ball-like object that organizes everyone's attention.
2) There must be a sense of physical urgency when the ball is in play.
3) The opponent must be able to take steps to thwart your efforts with respect to the ball.

Everything that does not possess all three elements is not a sport. it is a contest, a game of skill, an athletic competition, but it is not a sport,

Jackson put this out there to suggest that much of what we focus in during the Olympics is not, in fact, sport, including the privileged Olympic events such as track and field and swimming. His broader point is that the Olympics really is not about sport; it is about non-sport athletic competition--not the same thing.

Mike Zarren: The Growing Importance of Statistical Analysis in the NBA

Great piece by Stephen Dubner and Steven Levitt on the NY Times' Freakonomics on my good friend and former law school classmate Mike Zarren, who is the Boston Celtics' associate counsel and also, more significantly, the team's statistical expert.

Here is an excerpt from their piece, which highlights the growing importance of "Moneyball" - type thinking in basketball:

* * *

But the team also employs what the general manager, Danny Ainge, calls his “secret weapon,” a 32-year-old named Mike Zarren, who seems to know every data point about every N.B.A. player, past and present. Garnett calls him Numbers, the Celtics Dancers call him Stats and Paul Pierce, the team’s longtime standout, calls him M.I.T. even though Zarren never went there. . . .

Ainge hired Zarren simply because he wants any advantage worth having, and Zarren’s insights are “more information on every decision we make,” Ainge says. “Mike is a much smarter guy than I am. I’m open to smarter people than me. It still comes down to my instincts. I have to make the choice, no matter what my scouts say, no matter what the models say. I don’t think it’s realistic to think that a statistical model will ever be foolproof in basketball because there are so many variables, but I do think it can help us.”

There are two channels through which Zarren can help the Celtics. The first is by assessing potential deals and draft picks, which means bouncing information off of Ainge. The second channel is strategic advice, which means going to Coach Doc Rivers, whom Ainge says is “skeptically receptive” to Zarren’s insights. You sense that Zarren has gained credibility within the Celtics not because the basketball people adore his regression analyses but because he adores the sport. “Most geeks are not basketball guys,” Zarren says, “and most basketball guys are not geeks. You have to be both to be successful in this developing field.”

What’s the most efficient shot to take besides a layup? Easy, says Zarren: a three-pointer from the corner. What’s one of the most misused, misinterpreted statistics? “Turnovers are way more expensive than people think,” Zarren says. That’s because most teams focus on the points a defense scores from the turnover but don’t correctly value the offense’s opportunity cost — that is, the points it might have scored had the turnover not occurred.

* * *

For the rest of the piece, click here. For ESPN's Henry Abbott's take, click here. And for previous Sports Law Blog coverage on statistical analysis and the NBA, check out our post on Houston Rockets GM Daryl Morey.

For my sports law students at BC Law in the fall and Vermont Law in the spring, I hope to get Mike to speak to the class.

Applying Antitrust Labor Exemptions to Professional Golf and Tennis

Daniel Kaplan of SportsBusiness Journal (subscription only) has an interesting piece in this week's edition in which he reveals that The ATP World Tour is losing millions of dollars because of steep legal expenses tied to an antitrust lawsuit brought by one of its tournaments against the men’s circuit (5/5/08, Mounting Legal Expenses Add to ATP's Losses). According to sources, last year the ATP lost $5 million, and it is projected to lose $6.4 million this year. The ATP event in Hamburg, Germany, filed an antitrust suit against the ATP for trying to downgrade the event in the tour’s tier structure next year as part of the calendar remake. The Monte Carlo event also sued the ATP over the same issue, but that lawsuit was settled.

I've always thought that rules and regulations established by the ATP, PGA and LPGA should be exempt from the antitrust laws under the same rationale for exempting rules established by professional sports unions and rules established by the unions and leagues via the collective bargaining process. Although they are not certified as labor unions under the National Labor Relations Act, all three associations essentially act as labor unions and serve as the voice and representative of the players as a collective group.

When labor unions enact rules and regulations in their own self-interest, those rules and regulations may have an anti-competitive affect on third parties. Hence, the rationale for what's known as the statutory labor exemption. The source of the statutory exemption is found in the Clayton Act and the Norris-LaGuardia Act, and it "removes from the coverage of the antitrust laws certain legitimate, albeit anticompetitive, union activities because they are favored by federal labor policy." Powell v. NFL, 678 F.Supp. 777, 782 (D. Minn. 1988). For example, courts have exempted claims by agents against unions alleging that agent regulations adopted by the unions constitute an illegal restraint on trade. See Collins v. Nat’l Basketball Players Ass’n, 850 F. Supp. 1468, 1474 (D. Colo. 1991), aff’d 976 F.2d 740 (10th Cir. 1992). The U.S. Supreme Court, in H.A. Artists & Associates v. Actors’ Equity Ass’n, 451 U.S. 704 (1981), held that labor unions acting in their own self-interest and not in combination with nonlabor groups are statutorily exempt from the antitrust laws. If the ATP or PGA adopted regulations governing agents with various certification requirements, should the simple fact that they are not certified as labor unions subject them to antitrust scrutiny?

The non-statutory exemption insulates from the antitrust laws league rules and regulations that constitute mandatory subjects of collective bargaining (i.e. "wages, hours and working conditions") and that primarily affect only the parties to the collective bargaining relationship. All three associations -- ATP, PGA and LPGA -- have player representatives that serve on their boards of directors. The board votes on all sorts of subjects that affect the players and which are akin to "working conditions" -- for example, issues concerning format of play, where they are going to play their tournaments, how they are going to be ranked, etc., etc. The ATP's board of directors is made up of three player representatives and three tournament representatives. When the player and tournament representatives adopt rules and regulations that govern their particular sport and primarily affect only them -- which is essentially analogous to collective bargaining between unions and leagues -- why should those rules and regulations be subject to antitrust scrutiny?

The Economics of Baseball Fandom

From Daniel Hamermesh at Freakonomics:

A recent article notes that attendance in Major League Baseball parks is actually above last year, despite, so the story says, the economic downturn (recession?).

But despite is incorrect — it should be “because” of the economic downturn. The story notes that cheap seats at the Dodgers Stadium go for $8 to $13. Not bad for three plus hours of entertainment; but in good times who can afford that time?

In bad times, when the opportunity cost of time is reduced, the total price of an afternoon at the ballpark is lower for many people than it is when jobs are more plentiful. I see this in my own planning. Though I like baseball, I haven’t been to an M.L.B. game in over five years — I’ve been working too hard; but I do plan to attend more once I partially retire and the opportunity cost of my time drops.

Baseball watching is a time-intensive activity; and when time becomes “cheaper” for many people, as it does in a recession, it’s not surprising that the demand for watching M.L.B. games rises. The price of the complementary good to the ticket price — the price of one’s time — has fallen.

This might explain why one of the historic heydays for baseball was the 1930s, the worst economic period in the country's history.

(H/T: My colleague Tom Baker at FIU)

They Shoot Horses, Don't They?

At Saturday's "dramatic" Kentucky derby, runner-up Eight Bells broke both ankles and had to be put down.

Two years ago, when Barbaro suffered the injury that eventually ended his life, I asked, Was Barbaro Abused?

Imagine if every year, one player died in the Superbowl. Or if a player died every year during the NBA finals. Would we tolerate such a result? Should it matter that the athletes who are pushed beyond the quite literal breaking point are animals?

In fact, Kentucky has a "cruelty to animals" statute. Under the law, a person is guilty of a second degree misdemeanor if "he intentionally or wantonly...subjects any animal to cruel neglect or . . . kills any animal." Is it not possible to argue that pushing horses beyond their physical limits, causing their death, meets the statutory standard here? The statute provides immunity for euthanizing suffering animals, but I'm not asking if the euthanasia is illegal; rather I think the sport of horse racing itself -- at least as it seems to be run these days -- is a crime!

A Different Way to "Hold" Coaches to Contracts

We have had some discussion here lately about colleges using injunctions to try to keep coaches who are under contract from jumping to other schools.

Well Memphis, fresh off its Championship Game appearance (and almost victory) gave Head Coach John Calipari a five-year extension, averaging $ 2.35 million per year. And, according to the current Sports Illustrated, the school found a way (it hopes) to keep him from jumping ship: a $ 5 million bonus if he stays until the end of the contract. Think about that--an extra $ 5 million just for adhering to the terms of the contract.

We could look at the bonus as the school really paying him $ 3.25 million per year and backloading some of the money). Or, this is the mirror of the liquidated damages clause that schools have been trying to enforce lately--if you stay to the end, you get $ 5 million; if you leave early, we get $ 5 million. In other words, rather than using equity to keep coaches, schools will use a different form of market incentive.

Clemens and the Rules of Evidence: A More Absolute View

The whole Roger Clemens story has been a big Claude Raines Moment: "I'm shocked, shocked, to find that a Major League Baseball player cheated on his wife."

But I am going to take a more absolute view than Michael did: There is no way, if the judge is not asleep at the switch, that any evidence about Clemens' alleged affairs with McCready or Paulette Dean Daly is admissible.

It cannot come in for any substantive purpose. First, as Michael notes, any effect on Clemens' reputation from these statements came after McNamee's statements and the Mitchell Report and damage to reputation must be measured from the time of the libelous statements. Second, McNamee's statements damaged Clemens's professional reputation--his status as the greatest pitcher of his generation--and his reputation for marital fidelity has nothing to do with that professional reputation. Third, character is not the same thing as reputation. So the fact that damage to reputation is an element of Clemens' claim does not open the door to a lot of evidence that shows nothing more than that Clemens is a bad person (bad husband, etc.). And that is before we even get into the question of unfair prejudice.

Nor can it come in for impeachment/credibility purposes. Even assuming Clemens did have sex with McCready when she was underage, he never was convicted on statutory rape or anything similar and he is not going to be, since, as Michael noted, the statute of limitations has run. The only thing that can be used for credibility is the fact of conviction, not details of the underlying conduct. So, if there was no conviction, this is not in play.

Specific instances of conduct also can be used for credibility, but subject to key limitations that will keep evidence of any affairs from being admitted. First, the rules only allow evidence of conduct that is probative of a witness' truthfulness or untruthfulness--meaning past lies or untruthful acts. Marital infidelity is kind of a gray area. Cheating on your spouse (the actual act of having an affair, apart from what he told his wife or anyone else about the affair) is not really an untruthful act--it does not involve falsehood. Cheating involves breaking a promise--a contract, if you will--but breaking a contract is not per se an untruthful act. And for all we know, Debbie Clemens knew about the affairs and maybe even acquiesced. We refer to cheating as being "false, but I think that is more a colloquial usage than a legally accurate one. It is sleazy, morally frowned upon, and makes people think that the actor is sleavy and immoral--but credibility is only about character for truthfulness, not character generally. Now, whether he lied about the affair when asked about it (by the press, by his wife, by whomever) is a different story and could be used. So, too, is whether, he lied to either woman about being married when he began the affair.

But that runs into the second limitation. Under the rules, instances of untruthful conduct only can be asked about on cross-examination of the witness being impeached (Clemens) or another witness called to testify to Clemens' truthful character; they cannot be "proven up" by other evidence besides the target witness' testimony. So, at most, McNamee's lawyers could ask Clemens if he had an affair with McCready or Daly (or if he lied to his wife about having an affair with them). If Clemens denies the affair on the stand, that is the end of the inquiry. The lawyers are stuck with the answer and cannot bring in any outside evidence to show that Clemens is lying on the stand right now (to "complete the impeachment"). So do not expect McCready or Daly to be called as a witness. And do not expect to hear any of the details of any affairs. None of that is coming in.

One More Thought: Any FIU College of Law students planning on taking Evidence next spring: Take careful notes.

New Sports Law Scholarship

Recently published scholarship:

Anthony N. Cabot and Louis V. Csoka, Fantasy sports: one form of mainstream wagering in the United States, 40 JOHN MARSHALL LAW REVIEW 1195 (2007)

Peter Charlish and Stephen Riley, Should Oscar run?, 18 FORDHAM INTELLECTUAL PROPERTY MEDIA & ENTERTAINMENT LAW JOURNAL 929 (2008)

A. Jerome Dees, Bring back the crowd? How governing bodies for sports should provide victims of athlete doping a better remedy, 9 FLORIDA COASTAL LAW REVIEW 179 (2008)

Marc Edelman, Why the “single entity” defense can never apply to NFL clubs: a primer on property-rights theory in professional sports, 18 FORDHAM INTELLECTUAL PROPERTY MEDIA & ENTERTAINMENT LAW JOURNAL 891 (2008)

Jason Gubi, Note, The Olympic binding arbitration clause and the Court of Arbitration for Sport: an analysis of due process concerns, 18 FORDHAM INTELLECTUAL PROPERTY MEDIA & ENTERTAINMENT LAW JOURNAL 997 (2008)

Bryan Lipsky, Note, Dealing with the NFL’s concussion problems of yesterday, today, and tomorrow, 18 FORDHAM INTELLECTUAL PROPERTY MEDIA & ENTERTAINMENT LAW JOURNAL 959 (2008)

Bradley S. Pensyl, Note, Whistling a foul on the NCAA: how NCAA recruiting bylaws violate the Sherman Antitrust Act, 58 SYRACUSE LAW REVIEW 397 (2008)

Implications of Mindy McCready Affair Allegation on Roger Clemens' Defamation Lawsuit

Earlier this week, I wrote a column for SI.com on the implications of Roger Clemens' alleged sexual relationship with a then 15-year-old Mindy McCready on his defamation lawsuit against Brian McNamee. I was also interviewed by Russell Goldman for his piece on the same topic for ABC News.

In his lawsuit, Clemens claims that McNamee defamed him by asserting that Clemens used steroids. For a variety of reasons (e.g., Clemens is a public figure; he will likely find it difficult to establish that McNamee is actually lying) I don't believe Clemens' lawsuit has much of a chance of succeeding. Nevertheless, as I explain in the column, the McCready accusation--which she claims is true--would probably prove difficult for McNamee to bring in, though there's a chance it could play a role in assessing Clemens' character. Hope you have a chance to check out the column and the ABC News story.

I was also interviewed on The Papa Joe Chevalier Show, which is aired on KLAV 1230 Las Vegas, to discuss Clemens' alleged affair and Josh Howard's admission that he smokes pot during the NBA's off season. It can be heard at this link and I'm on from 19:20 to 30:30. I was also interviewed by Ed Berliner of the Speeding Bullet Network on Clemens' various legal problems and it can be heard at this link.

Judge Rules in Favor of NCAA in Alabama Football Booster's Defamation Lawsuit

In my post last November, "Alabama Jury Gets Revenge Against NCAA," I discussed a jury's $5 million award in favor of former Alabama football booster Ray Keller on his defamation claim against the NCAA alleging that the NCAA slandered and libeled him during the announcement of penalties against the Crimson Tide by referring to Keller and others as "rogue boosters," "parasites" and "pariahs." In November, I said: "This trial wasn't about defamation. It essentially amounted to a rehearing of the penalties imposed on the Alabama football program five years ago by the NCAA, but this time the case was heard by 12 Crimson Tide fans!"

This week, Circuit Judge William Gordon agreed, and threw out the verdict and granted the NCAA a new trial. According to Wednesday's press release:

Gordon said in a 13-page opinion that the multimillion-dollar verdict wasn't supported by evidence, and he ruled the award "is the result of passion or prejudice." He also sided with several other arguments by the NCAA, including a claim that jurors at the trial in Scottsboro heard improper instructions.

In my November post, I also discussed why I don't believe that the NCAA's alleged statement even rises to the level of defamation. Perhaps the fact that Judge Gordon sided with the NCAA on its argument that the jurors heard improper instructions indicates that he doesn't believe it either.