Knight Commission on NCAA, College Player Publicity Rights, and Fantasy Sports

Knight Commission co-chairs William E. Kirwan, chancellor of the university system of Maryland, and R. Gerald Turner, president of Southern Methodist University, have an interesting op-ed in today's Los Angeles Times on college athletes being used in fantasy sports (a topic which Rick blogged about in July). Although the NCAA claims to oppose the use of college athletes in fantasy sports, it has thus far resisted taking any legal or other meaningful action to stop the use. As Kirwan and Turner detail, the NCAA's lack of active resistance seems inconsistent with its mission to prevent college athletes from exploitation and to ensure that there is a clear line drawn between amateur sports and pro sports. I've excerpted their op-ed below.

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These online fantasy leagues, which use the real names and statistics of collegiate athletes, raise a crucial question for higher education leaders: Is it amateurism in college sports that has become a fantasy?

The National Collegiate Athletic Assn. -- the organization of colleges, universities and conferences that governs sports programs -- has long upheld the principle of amateurism. NCAA bylaws establish that students participating in college sports "should be protected from exploitation by professional and commercial enterprises." Clearly, these fantasy contests violate that tenet.

To fulfill its fundamental purpose of retaining a "clear line of demarcation between college athletics and professional sports," the NCAA and its member universities need to combat these infringements on athletes' rights and the principles of amateur sports.

Fantasy games allow fans to draft a personal "dream team" of players that earns points based on the real performances of chosen players. There are many such start-up games online, but CBS Sports' is the most prominent. That raises particularly thorny questions for the NCAA and its member institutions because the network essentially funds the NCAA through a broadcast contract worth half a billion dollars a year.

Although CBS Sports' Fantasy College Football is free, other companies charge entry fees of up to $19.95 a team and offer cash prizes of up to $25,000 for winning teams. One company goes so far as to assign salaries to top-rated college players because its game requires each team to stay under a pay cap.

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NCAA rules allow the names and images of athletes to be used only to promote their teams and their games. In fact, neither the NCAA nor the universities acquire any other publicity rights to athletes; they simply cannot license the use of their names or images -- not to fantasy leagues, not to video game companies, not to sportswear companies.

However, CBS Sports and other fantasy league operators believe that they have found a loophole. A recent court ruling found that Major League Baseball players' names and stats are not owned by the individual players or the leagues, but instead are in the public domain. This ruling was made by the U.S. 8th Circuit Court of Appeals in a case involving Major League Baseball Advanced Media and a fantasy league operator. The court decision describes these professional players as being "handsomely" compensated and able to earn "additional large sums" through endorsement contracts.

Legal scholars disagree about whether this ruling applies to amateur athletes who are not compensated for their participation and cannot earn money from endorsements.

We believe that the NCAA, universities and college athletes should take firm positions that this ruling does not apply to amateur sports -- and that all those groups should contact fantasy game operators to formally demand they stop using students' names in these games. Unless the courts clearly decide that amateur athletes' names can be used without consent and for purely commercial purposes, the NCAA and universities have the responsibility to stand up for their athletes and the amateurism principles that should guide college sports.

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To read the rest of the op-ed, click here. To learn more about the Knight Commission on Intercollegiate Athletics, click here.

Building a Successful Franchise Takes Time...and Patience

In yesterday's edition of the Washington Times, Thom Loverro rips the management of the Washington Nationals for its poor performance, including Nationals president Stan Kasten for not achieving in two years the level of success he had as president of the Atlanta Braves (Kasten's Impact Not Visible):

If Kasten is not steering this ship - and it's difficult to believe that he is - then he needs to find a life preserver and jump because, as the great Micheal Ray Richardson once said, "The ship be sinking."

The franchise has become a source of bewilderment and amusement throughout the industry, the butt of jokes and the subject of embarrassing national media reports of mismanagement within the organization that are all too evident to those who have watched this debacle unfold here. The team has been abysmal, on its way to a 100-plus losses - the worst record of any team opening a new ballpark since the Camden Yards era began. Sure, the Nationals have been hit hard by injuries, but it doesn't explain the poor play and the wasted money on those players who have underperformed when they were on the field....

If the Lerners are not spending the money on payroll, not spending the money on high-priced draft picks and not spending the money on international signings, then where is the money going?....

And as a rule, I have found that if things seem really bad from the outside looking in - they're actually much worse. Kasten has maintained a positive party line. He would chew broken glass rather than reveal any internal turmoil. But it is clear this is not the work of a seasoned sports executive, especially one as highly regarded as Kasten. In a 2006 article in The Washington Post, NBA commissioner David Stern declared, "They've gotten themselves a first-class sports executive. It's fair to say it would be hard to replicate somebody with Stan's wide range of experience and his successes." The decisions and operations of this franchise do not mesh with the track record of a sports executive who ran what was considered the model organization in baseball for years, the Atlanta Braves. Between the Braves and the NBA's Hawks, he helped them to 30 postseason appearances.

I'm not sure how this reporter professes to know (1) what management decisions the Nationals are or should be making or (2) that the decisions and operations of the Nationals do not mesh with Kasten's track record with the Braves. However, he conveniently omits the fact that, before the Braves became a "model organization," they struggled through 4 consecutive losing seasons (including a season in which they lost 106 games) under Kasten's watch during the mid to late 80's. He omits the fact that, when Kasten took over the Nationals as president two years ago, Kasten warned that it was going to take years to make the Nationals a contender and that it would actually get worse before it got better. He omits the fact that any plan to build a franchise through player development takes much longer than two years. If he had interviewed Kasten, I'm sure Kasten would have pointed all of this out for him. But rather than interview anybody from the Nationals, Loverro chose to base his assertions upon a "rule" he "found" somewhere that says "if things seem really bad on the outside looking in -- they're actually much worse." I hope that's not the ethical standard for sports journalism these days.

Building a successful team on the field is not dependent upon how much money is spent on payroll in the short term. It takes time and patience. It also takes good scouting and player development personnel who share the same vision and philosophy, and who can effectively instill that vision and philosophy into the players at both the major and minor league levels. Kasten knows this all too well from his experience in Atlanta. Give him a couple more years, and he'll get it straightened out.

LPGA English Only Requirement

The Ladies Professional Golf Association (LPGA) has been at the center of a media firestorm for the past several days. On August 20th, it announced that it was adopting a policy that requires its member golfers to speak English proficiently or face suspension. For players that have been on tour for two years, they must pass an oral evaulation of their English proficiency by the end of the 2009 season or face suspension.

LPGA commissioner Carolyn Bivens

In defense of this policy LPGA Deputy Commissioner Libba Galloway said "We're focusing on the fact that we're in the sports entertainment business and we have to interact with fans and sponsors. . . . We want to emphasize to our players that they need to be approachable."

Leading Asian American academics as well as other professional tours and players (including the PGA and ATP) have weighed in on this policy finding it offensive.

The legality of the policy remains a question. One argument frames up as follows:

"Howard Simon, executive director of the American Civil Liberties Union in Florida, said a language requirement could be in violation of state law. 'Florida law prohibits discrimination in public accommodations,' he said. 'They may well violate Florida discrimination laws because language is a key element of person's national origin. People should be judged on their ability to perform a job. English fluency has no more to do with the ability to play 18 holes of golf than whether you walk 18 holes or ride 18 holes.'"

"Deputy Commisioner Galloway, however, said the LPGA can stand its legal ground. 'Organizations and businesses in general have the right to make requirements on skill sets necessary for their employers,' she said. 'We as a membership organization have the right to establish obligations that our members must adhere to in order to do the things fundamental to conduct our business.'"

For the most part, players seem to be voicing support for the program, including many of the tour's South Korean golfers.

Two (Resold) Tickets to Paradise

As a NY Jets fan, the start of a new NFL season brings new hope. Hope that this might be the first time that the Jets make it to a Super Bowl in my lifetime, and hope that someone I know (let’s call him, “Fabe Geldman”) does not buy counterfeit tickets outside the stadium. I'll save the Super Bowl discussion and my pain in seeing Chad Pennington in a Dolphins uniform for another time and focus on the ticket issue here.

As first announced back in December 2007, the NFL launched its secondary ticket partnership with Ticketmaster in time for the upcoming NFL season. Through this ticket exchange, fans will be able to buy and sell tickets to all games for the 2008 season. According to an article in USA Today, the NFL and its teams will not limit how much fans can resell their tickets for over the face value of the ticket, and fans will be permitted to resell their tickets through other sites such as StubHub. This continues the evolution of the secondary ticket market in pro sports and the move away from anti-scalping laws. Rather than fight the secondary ticket brokers, the NFL, like MLB last year, has decided to join them.

Why the shift? Well, the most obvious answer is that the NFL and Ticketmaster want a piece of the secondary ticket market pie. Total revenue from tickets sales for the NFL last year was about $1.8 billion, with an average ticket price of just over $67. According to the NFL, 5-10% of those tickets were resold on the secondary ticket market. The NFL obviously wants a piece of that 5-10%, and is essentially looking to sell the same ticket twice (or more). I haven’t seen the financial terms of the deal, but Ticketmaster is (not surprisingly) charging an “authentication and ticketFast fee” for the purchase of tickets through the ticket exchange.

Another factor (though perhaps not quite as powerful as the leagues’ economic interests) may be the recognition that anti-scalping and anti-reselling laws and policies are not very effective or efficient. Anti-scalping laws were originally enacted to limit the resale of tickets to sporting events on the belief that allowing the reselling of tickets would lead to higher prices and an “unfair” distribution of tickets to the wealthy. In an interesting study done by Craig Depken (“Another Look at anti-scalping laws: Theory and Evidence,” 130 Public Choice 55 (2006)), however, evidence showed that the face value of ticket prices for baseball and football games were actually higher in states with anti-scalping laws. And, the prevailing wisdom seems to be that the growth of an easily accessible and free secondary ticket market leads to a more efficient and fair system for customers on at least three levels.

First, secondary markets such as StubHub and the new Tickemaster ticket exchange provide an easy way for ticket holders to sell unwanted tickets. In many cases, this creates a market for tickets at a price lower than face value (and serves a benefit to the original ticket holder who is able to get some money for the ticket).

Second, it protects against the sale of counterfeit tickets.

Third, it allows for a more efficient allocation of tickets (and a correction of the “mispricing” of the original ticket). If Fan A buys a ticket for $60, and Fan B values that ticket at $150, it is a more efficient result for Fan B to pay $150 to Fan A for the ticket than for Fan A to go to the game and for Fan B to spend his/her money elsewhere. Granted, some may vehemently disagree with this definition of efficiency (and with the notion that the NFL and Ticketmaster should get a share of that money), but I think we can all agree that this result is more efficient than Fan B (aka, Fabe Geldman) buying a counterfeit ticket from “Fan” C.

I am curious to see what impact these organized and league-approved secondary ticket markets have on ticket prices—both in the primary and secondary market. The reselling of tickets—either by scalpers, ticket brokers, or formal ticket exchanges—has always provided an opportunity for consumers to get a good deal on a ticket that is in low demand (or that a seller must quickly sell) or for consumers to pay a premium to get access to tickets that are in great demand. Will these new ticket exchanges lead to more good deals and higher premiums than would exist without the exchanges? And, will this correction of the “mispricing” of the original ticket have any impact on the face value of tickets in the coming years?

The NCAA's "No Agent" Rule Discriminates Against Baseball Players

Aaron Fitt of Baseball America wrote an excellent article this week that really delves into the issue of the impracticality of the NCAA's "no agent" rule in the sport of baseball (Secret Agent Deals: NCAA Has Rules on Agents, But They're Rarely Enforced, subscription only). In a 2005 law review article, I discussed how baseball is unique from football and basketball because amateur players in baseball have NCAA eligibility remaining before and after the draft. Essentially, baseball players have to be concerned about being disciplined for retaining an agent, whereas football and basketball players don't. I proposed that the NCAA make an exception for baseball allowing players to be represented by an agent so as to put them on par with amateur football and basketball players, but with established guidelines that clearly define the nature of the player-agent relationship and the rights and obligations of the player and agent (regarding agent fees, services to be performed, rights of termination, etc.) pursuant to a standard form representation agreement similar to the NFLPA's standard rep. agreement. Fitt highlighted my article and my proposal. It's nice to see this issue getting some attention now, and Andy Oliver's lawsuit against the NCAA is the impetus for it.

In his article, Fitt discussed the "industry norm" of players being represented by agents and he interviewed scouting directors, college coaches and agents, all of whom confirmed it:

• "Every single player that we deal with—I don't care what round you're talking about—has representation, has an agent," said an American League scouting director. "It's been that way for the last four or five years, and I'm talking even about kids drafted in the 28th round. It's a prerequisite now. These agents are barraging us with telephone calls before we even select a player. I can't even tell you how early agents try to call us and sell us on a player. It starts way before the draft. Those aren't calls that I initiate, but I'm not going to hang up on the guy. The problem is I guess the NCAA's problem, and it's wide and far and deep, but it's not an issue for us, it really isn't....The college coaches know these guys are represented. You'd think the NCAA would get more involved if they care, because we're playing a charade here if we think these players are representing themselves, and it's just family advisers after they get drafted. That's kind of a joke."

• "The kids need advice, that's precisely why they pick up an adviser," said Vanderbilt coach Tim Corbin, president of the American Baseball Coaches Association. "At the same time there's a rule against (agents representing players) and it's basically ignored by everyone. People will get away with whatever they can get away with. If there's no standards or guidelines or it's not followed up on, people are going to take advantage. If you're going to have a rule like that, you need to have some stick-toitiveness. At the college level, I don't think administrators understand this part of college baseball, the recruiting part of it, where there is this type of activity going on. I just don't think people know enough about it."

Fitt astutely notes: "If the NCAA is going to get serious about enforcement, it needs to start by coming to grips with the simple reality that agents are omnipresent in college baseball in the 21st century. Then it needs to either actively work to change that reality (a daunting and unrealistic goal), or else rethink its rules against the industry norm."

From my perspective, I just never understood the NCAA's position that drawing a line between a permissible "advisor" and impermissible "agent" is essential to preserving the line between amateurism and professionalism. Why is it that a discussion between the agent and club about the prospect of signing a contract (impermissible) is so materially different than a discussion between the agent and player about the prospect of signing a contract (permissible)? The agent-advisor distinction simply has no bearing on being, or even becoming, a professional. In other words, a player's prospect of signing a professional contract is determined by the draft, not by whether the player has an adviser or an agent or no adviser or agent. So what we are really talking about here is how much money the player is eventually going to sign for, which is where the value of an agent or adviser does come into play. Surely, the NCAA can't be concerned with how much money the player is going to get!

Fitt notes that even college coaches, like Louisiana State's Paul Mainieri—a former president of the ABCA himself—see plenty of sense in my proposal. "To be honest with you—and people in the NCAA may be angry with me for saying this—but I don't really see the problem with a representative talking to a team about a player," Mainieri said. "I would much rather my player not be distracted while he's playing the season. How would an organization determine the signability of my player if he doesn't have a chance to talk to him? So if you've got 30 different organizations trying to talk to my player and we're trying to win a regional or super-regional or whatever, it's very difficult for a player to concentrate on baseball."

When young players are "too good"

No time to analyze this, but I wanted to call attention to this story about a youth baseball league in New Haven that has prohibited a 9-year-old on one team from pitching because he is "too good" (he throws 40 MPH, apparently with control) and now has taken steps to disband the team. There also seem to be some sub-surface issues about personal disputes between the adults running the league.

Sometimes, there is nothing to say.

NFL Seeking Congressional Support to Exempt Top Exec Salaries from Public View

As Howard and TaxProf Paul Caron noted last week, the NFL is fighting public disclosure of top league executive salaries (other than that of the commissioner). According to an article published on BNA today, the NFL will continue this effort. The article features comments by attorney Martin Gold (Covington & Burling), who explained:

"Discussions are ongoing to see if there is a consensus among parties in Congress who have taken an interest in this matter."

Separate marathons

Why don't they run the men's and women's Olympic marathons together? They run every other world-class marathon together. And this is the one sport (or event) in which space, rules, and logistics allow the separate competitions to be played simultaneously. And wouldn't it be a nice symbol for gender equity?

Update: Sunday, 7:30 a.m.

In response to Joshue'a comment that inertia trumps absent a compelling reason for combining them, let me rework my point to make it an assertion rather than a question: They should run both marathons together. The compelling reasons for doing so are that they run all other road races together anyway, the symbolic value of having men and women compete together is socially meaningful and furthers one element of the "Olympic spirit," and this is one sport where they can compete together--the fastest women run about 11 minutes behind the fastest men and the logistics allow it.

So I hereby propose this change for 2012.

Tom Crean Better be "Mr. Clean"

Tropical storm Fay is getting closer and has caused us to shut down school today and tomorrow. So it's a good time to blog about IU's new contract with head basketball coach Tom Crean signed last week and announced yesterday -- a 10-year deal that could be worth up to $23.6M. Mark Alesia of The Indianapolis Star highlights the fact that Crean's contract "includes far more strict language on rules compliance, disciplinary action and personal behavior than that of his predecessor, Kelvin Sampson." IU spokesman Larry MacIntyre told Alesia, "Obviously, after our experience, president (Michael) McRobbie wants to make sure we never undergo anything like that again, and I don't think we will with Tom Crean."

The provisions in Crean's contract regarding NCAA rules compliance and for cause termination are definitely stricter than Sampson's, and are some of the most stringent provisions I have ever seen in a college coach's contract. A complete copy of the agreement can be accessed here.

For starters, Section 2.01 A. 2. creates an obligation of "strict adherence" with all NCAA rules, including strict compliance by assistant coaches, staff, players and all other individuals under his direct or indirect supervision, direction or control. In the event of any violation of NCAA rules by any of such individuals (including the university), or any act or omission that may give rise to a violation of NCAA rules, Section 2.02 provides that IU, in its sole discretion, may take any disciplinary or corrective action against Crean as determined by IU. [Yes, that is what it actually says.]

The for cause termination language in Section 6.02 B. is also very favorable to IU. Among the definitions of "Cause" worth noting are (1) any violation of Section 2.01 [see 6.02 B.1.] and (2) any act or omission of Crean that may give rise to a finding of a violation of any NCAA rules [see 6.02 B.3.]. Compare those definitions with the definitions of cause in Sampson’s contract, which required (1) “a significant, intentional, repetitive violation of any law, rule (or) regulation” of the NCAA; (2) “failure to maintain an environment in which the coaching staff complies with NCAA … regulations”; and (3) in IU's “sole judgment” Sampson’s conduct “reflects adversely upon the university and its athletic program.” It is also worth comparing Crean's contract with the for cause termination language in Jim O'Brien's contract with Ohio State, which required "a material breach" by O'Brien or "an NCAA violation that results in a major infraction investigation and which results in a finding of a lack of institutional control or sanctions imposed upon Ohio State." Section 6.02 B.3. is something all schools may want to take note of, because it permits the school to fire the coach for cause prior to a final determination by the NCAA, which is favorable to the school if confronted with a wrongful termination claim.

Last but not least, Section 6.02 C. contains a highly unusual process for terminating Crean for cause. The athletics director may, in his sole discretion, make a determination that "Cause" exists, without conducting any prior review or investigation, in which case the university can immediately suspend him without pay. Crean then has the right to have the AD's determination reviewed by the university President, and if the President decides that the AD's determination was proper, the effective date of termination for cause commences on a date determined by the President.

And if you're thinking that Crean would still be able to challenge a for cause termination in court, the contract further provides that the decision of the President "shall be final and binding on the Employee for all purposes" and that it is "the exclusive procedure that will apply to any determination (or review or appeal of any determination) of Cause sufficient to terminate the employment of the Employee." Interestingly, if President McRobbie resigns or is terminated, then Crean has the right to renegotiate a post-termination procedure that includes "impartial members of the University community."

In summary, IU can do whatever it wants to Crean if he or any member of his staff or any player does anything that results in a violation of any NCAA rules or that may give rise to a potential violation, regardless of whether Crean knew about it and regardless of whether a minor or major infraction. The agreement essentially imposes strict liability on Crean and makes him vicariously liable for the acts and omissions of anybody under his direction or control. I know there are some out there who would say, "What's the big deal? If he keeps a clean program then he has nothing to worry about." Well, Tom Crean could be Mother Teresa and it wouldn't guarantee a clean program in today's compliance environment.

The Return of The Single Entity Defense for Sports Leagues

The Seventh Circuit ruled yesterday in American Needle v. NFL (No. 07-4006) that NFL teams act as a single entity “when promoting NFL football through licensing teams’ intellectual property“ and are therefore not subject to scrutiny under Section 1 of the Sherman Act.

To give some brief background on this case, the plaintiff (American Needle) designs, manufactures, and sells apparel bearing the names and marks of pro sports teams. For more than 20 years, American Needle held a non-exclusive license from the NFL to manufacture and sell headwear with each of the NFL’s team logos. In 2000, the NFL teams authorized NFL Properties to solicit bids from vendors for an exclusive headwear license. Reebok won the bidding war and received a 10-year exclusive license. At that point, American Needle’s non-exclusive license was terminated and it responded by filing an antitrust claim against the NFL, NFL Properties, each of the NFL teams, and Reebok. The district court granted summary judgment for the NFL defendants, ruling that the NFL and the NFL teams “act as a single entity in licensing their intellectual property.” The district court opinion was discussed here.

The single entity issue is obviously very important and has been the subject of much debate over the years, and I plan to discuss that issue and this case in more detail later on, but I just wanted to give my quick reaction after reading the Seventh Circuit opinion.

The court starts from the premise that, under Copperweld (467 U.S. 752 (1984)), “when making a single entity determination, courts must examine whether the conduct in question deprives the marketplace of the independent sources of economic control that competition assumes.” The court then jumps to the conclusion that:

NFL teams can function only as one source of economic power when collectively producing NFL football. Asserting that a single football team could produce a football game is less of a legal argument then [sic] it is a Zen riddle: Who wins when a football team plays itself? It thus follows that only one source of economic power controls the promotion of NFL football; it makes little sense to assert that each individual team has the authority, if not the responsibility, to promote the jointly produced NFL football. Indeed, the NFL defendants introduced uncontradicted evidence that the NFL teams share a vital economic interest in collectively promoting NFL football.

Putting aside the need for some new Zen riddles, I’m not sure I follow the court’s reasoning, and the opinion seems to conflate the single entity analysis with the ancillary restraints doctrine (discussed in the comments to Rick’s post). Nearly every judge and commentator has concluded (sometimes even without a Zen reference) that some degree of cooperation among individual sports teams is necessary for a sports league to exist. To use a simple example, the Jets can’t play the Patriots unless both teams agree to play a game on a certain date, with certain rules of the game, etc. Courts have relied on the necessity of this cooperation to permit sports leagues to avoid per se illegality in Section 1 cases, but the Seventh Circuit seems to be taking the argument to the other extreme and arguing that NFL teams should be considered a single entity whenever they agree on rules that allow them to play the game (ie, that are necessary for the product to exist).

Assuming, for the sake of argument, the court’s analysis is correct for the single entity issue in those limited circumstances, I don’t see how that answers the single entity question when the activity in question is the sale of NFL-logoed headwear. Yes, the NFL teams have a shared interest in the survival of the NFL (because, under the court’s argument, they don’t exist unless the NFL exists), but does that also mean that the NFL teams have a shared interest (or an independent source of economic control) when selling hats with their team logos on it? It seems to me that the correct answer to that question has more to do with the fact that NFL teams share merchandising revenue equally than Zen riddles. Yet, the Seventh Circuit does not even specifically mention this fact in its opinion, instead choosing to rely on the generic notion of a shared interested in “promoting the NFL” through the sale of logoed wool hats.

There is at least one other troubling aspect of the opinion. The court asserts that: “Simply put, nothing in Section 1 prohibits the NFL teams from cooperating so the league can compete against other entertainment providers. Indeed, antitrust law encourages cooperation inside a business organization—such as, in this case, a professional sports league—to foster competition between that organization and its competitors.” Is the court concluding that the NFL is in the same relevant market as all other entertainment providers (and what is an “entertainment provider”?)? Based on what? And is the Seventh Circuit referring to the market for games (live or televised?) or the market for logoed apparel? I am all for streamlining the determination of the relevant market, but this seems a bit extreme.

I’m not surprised that American Needle lost the case—I thought this would have been a relatively easy rule of reason win for the NFL. I am surprised, though, that this case was disposed of based on the single entity issue. The holding in this case is fairly narrow, but the single entity argument for sports leagues is officially alive (at least in the Seventh Circuit), and I suspect the leagues will do their best to expand its use in future cases.

Two Olympic thoughts . . .

sort of related to law and public policy.

1) This week, I watched the women's beach volleyball (a sport I actually have enjoyed watching) match between USA's Misty May-Treanor and Kerry Walsh (they of the frolicking with W while Russia invaded Georgia) and a team from Cuba. The match was a blowout and no one expected it to be close, so the announcers naturally had to find other stuff to talk about. Nothing unusual; announcers struggle to fill during bad games all the time.

What struck me as unusual was the content: Stories about how each one met her husband and of their first dates (which apparently involved some confusion about who was being fixed up with whom) and about what happens after the Olympics, when, the announcers told us five different times, both women would like to get pregnant. I am trying to remember watching a men's sporting event in which conversation turned to how the quarterback met his wife or about the point guard's family planning. Now, in fairness, perhaps it is more relevant for women athletes, who must put their careers on hold for at least a few months, although this story in Sports Illustrated discusses the athletic benefits of pregnancy and childbirth. But I could not get past the feeling that the announcers, needing filler, just wanted to talk about the personal lives of two attractive women whose uniform is a bikini.

2) Had the U.S. athletes not taken gold and silver in yesterday's individual women's gymnastics competition, the headlines this morning would have been about bizarre/unfair/corrupt judging. As it was, the judging did produce 1) apoplexy in the American commentators about inappropriately low scores for the U.S. athletes and inappropriately high scores for the Chinese and Russian athletes and 2) the sight of the head of the technical committee (the chief judge, sort of) walking over to the judges' table after the routine of USA's Nastia Liukin (the eventual winner), it would appear to lecture them about how good the performance was and too make sure the scores were not depressed.

I continue to believe that gymnastics is not a sport, because it lacks the possibility of objective scoring or objective determination of victory. And the early grumblings yesterday (which hearkened back to the glory days of the mythical East German judge) show the inherent problem with "judging," especially when what the judges are looking for is so mysterious.

One way to eliminate some of the mystery (and suspicion) would be to require the judges to explain their decisions--to identify precisely what points were deducted and for what mistakes. Adjudication requires explanations for decisions and that transparency helps the parties and the public evaluate decisions and outcomes. And even football referees explain what happened on penalties (some refs in painstaking detail). Why not require gymnastics (and figure skating and diving and other "judged" events) provide explanation, thus bringing some transparency to what is, for most viewers, completely opaque.

Or put another way: When Harry in When Harry Met Sally talks about having sex in front of the Olympic judges and receiving a low score from his mother, disguised as an East German judge, for what "must have been the dismount," it would be better if we knew it was for the dismount.

The NCAA is at it again

The NCAA is at it again, committing what a parent to a 20 year old college athlete calls “Gestapo tactics” by interviewing his son without an attorney late into the night prior to his getting ready to pitch in a crucial regional championship game. Hours before the game, and presumably as a result of the interview, Oklahoma State declared Andy Oliver ineligible.

Oliver has now sued the NCAA and his former “advisors” seeking to regain his eligibility so he can finish his college career and to recover compensation for his damages. The NCAA’s response is typical of the cartel that never understood the concept of due process: it says only the school can seek Oliver’s reinstatement and the pitcher has no standing to sue the organization.

It all started when Oliver was still in high school contemplating whether to be drafted by a major club or attend an institution of higher learning. Like other young men in his position, he had advisors, who were certified MLB player agents, who were supposed to help him make an informed decision about his future. The NCAA rules, always a lesson in absurdity, permit such advisors so long as they are not being paid and do not speak on the player’s behalf to Major League clubs.

Apparently, the advisors were present when representatives of the Minnesota Twins were trying to woo Oliver to join the ranks of professional athletes. Oliver chose not to. He attended Oklahoma State University where he soon became one of the top pitching prospects in the nation.

The trouble started when Oliver started consulting with another unpaid advisor, Scott Boras. When the first advisors learned they had competition, they sent Oliver and his family a bill for $113,000, which the family refused to pay, saying they had never agreed to compensate these advisors who had to be unpaid to comply with NCAA rules.

The NCAA and its member schools have made billions off its student athletes while serving as a free farm system for MLB, the NFL and the NBA. The least it can do when it conducts an inquisition into whether a student has violated its arcane and hypocritical rules is to allow that student the opportunity for legal counsel in the proper setting.

Pro Sports Team Owners' Contributions to McCain and Obama

The political leanings of owners of NFL, NBA, MLB, or NHL teams are often unknown. To the extent the media reports on those owners, it's normally sports reporters who do so, and normally in the context of the team they own or the league in which they are associated.

Granted, some of the owners may have party affiliations that are publicly available, while a few owners are well known in party circles, but for the most part, we don't know where they stand on issues (and nor do we probably care).

We can still make assumptions about owners' politics, however. Given their vast wealth, for instance, we might assume that owners are more likely to support candidates who propose lower taxes (be it income or capital gain taxes or other forms of taxation).

Thanks to Kenneth Vogel and Matthew Lindsey of The Politico, we now have some suggestive empirical evidence on owners' politics. Vogel and Lindsey studied the financial contributions of NFL, NBA, MLB, and NHL owners in this presidential election cycle and discovered they seem to prefer giving money to John McCain over Barack Obama (though often they give to both) . Here is an excerpt of Vogel and Lindsey's piece.

* * *

Sports owners fund McCain, shun Obama
By: Kenneth P. Vogel and Matthew Lindsey
August 15, 2008 06:06 AM EST

Sports team owners may not be John McCain’s answer to the Hollywood elite, but they’re overwhelmingly supporting his presidential campaign over Barack Obama’s.

Through the end of June, team owners in the four major sports and their families have given or raised more than $3.2 million to McCain, the presumptive Republican nominee, compared to only $615,000 to his Democratic rival Obama, according to a Politico analysis of data from the Federal Election Commission, the campaigns and interviews.

Not only did McCain raise more than Obama from the owners in each of the four major professional sports leagues analyzed, but McCain even raised six times more from the owners of teams in Obama’s hometown of Chicago.

Sam Zell, the owner of baseball’s Chicago Cubs, gave more than $22,000 to McCain’s committees, though he also gave Obama $2,300, as did the owner of the Chicago White Sox and Bulls, Jerry Reinsdorf, who gave that much to both McCain and Obama.

* * *

Sports team owners are often either loved or loathed in their communities. But most have unquestioned financial clout and fundraising ability, because it takes extreme wealth and connections to purchase a sports team.

Though sports moguls tend to skew conservative for the same reasons as other very wealthy folks – aversion to high taxes and regulation – their interests and backgrounds are eclectic, said Andrew Zimbalist, a professor at Smith College who has written extensively about the economics of sport.

“Today, a guy who owns a sport team is somebody who has generated a big pile of money in some other industry, and it’s very likely that their primordial financial interests and instincts are rooted in that other industry,” he said. Those industries include oil, construction, real estate, entertainment, casinos, high technology, trial law, ice cream and, of course, family inheritance.

But even owners who are major Democratic donors have yet to loosen their purse strings for Obama. The owners of football’s Philadelphia Eagles, baseball’s Baltimore Orioles, San Diego Padres and Los Angeles Dodgers, basketball’s New York Knicks and Sacramento Kings, and hockey’s Anaheim Ducks and their families, for instance, gave a combined $1.1 million in political contributions this presidential cycle, mostly to Democratic political committees and candidates.

That sum includes more than $60,000 to New York Senator Hillary Clinton, who Obama narrowly edged out for the Democratic presidential nomination. As of the end of June though—the most recent month for which there are data available – those owners had not given a dime to Obama.

Most of the owners who gave to Clinton but not Obama did not respond to requests for comment on why.

* * *

To read the rest of the piece, click here.

Executive Compensation and Professional Sports

Paul Caron (TaxProf) and Verity Winship (guesting at Prawfs) both discuss recent efforts by the NFL to avoid federal rules requiring not-for-profit organizations to disclose all executives earning in excess of $ 150,000. The New York Times story on the NFL is here. The NFL follows in the footsteps of Major League Baseball's in failing to disclose salaries for anyone other than the commissioner. The leagues apparently want to argue that they are trade associations, not charities, thus not subject to the new rules. Failing that, the NFL is lobbying Congress for an exemption from the new disclosure requirements.'Brian Galle at Prawfs weighs in on some of political issues underlying the federal rule requiring this disclosure and the leagues' resistance to it.

The Times feature includes the following:

Joe Browne, the N.F.L.’s executive vice president for communications and public affairs, said league lobbyists had not yet found a Congressional sponsor for their proposal.

“I’ve been here 40 years,” Browne said. “I finally get to the point where I’m making 150 grand, and they want to put my name and address on the form so the lawyer next door who makes a million dollars a year can laugh at me.”

Pretty clever rhetorical device by Mr. Browne--picking on an unpopular group, lawyers, who typically are not the ones making huge sums of money. Note that he did not say the investment banker or the for-profit corporate VP, both of whom make substantially more than the typical lawyer.

Blogging the Olympics

At Opinio Juris, a top international-law blog, they have a bunch of posts on the Olympics, including excellent commentary on Olympic arbitration procedures, the role of citizenship in Olympic-team membership, and the influence of professionalism. They will be doing this throughout the Olympics, so it might be worth checking over there periodically.

(H/T: Alert reader Patrick O'Donnell)

Recent Sports Law Scholarship

Recent scholarship includes:

James R. Devine, The Duke lacrosse matter as a case study of the right to reply to prejudicial pretrial extrajudicial publicity under Rule 3.6(c), 15 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 175 (2008)

Aaron Brooks and David Davies, Exploring student-athlete compensation:
why the NCAA cannot afford to leave athletes uncompensated, 34 JOURNAL
OF COLLEGE & UNIVERSITY LAW 747(2008)

Todd Crosset and Lisa Masteralexis, The changing collective definition of collegiate sport and the potential demise of Title IX protections, 34 J.C.& U.L. 671 (2008)

Shannon Carroll, Note, Golfing on Green Acres: is the acquisition of golf courses an appropriate means of preserving open space in New Jersey?, 32 SETON HALL LEGISLATION JOURNAL 211 (2007)

William B. Gould, IV, The 1994-’95 baseball strike and National Labor Relations Board: to the precipice and back again, 110 WEST VIRGINIA LAW REVIEW 983 (2008)

Sean Hanlon and Ray Yasser, “J.J. Morrison” and his right of publicity lawsuit against the NCAA, 15 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 241 (2008)

Gregory D. Hanscom, Comment, Baseball juiced up: should the increased risk associated with the use of performance-enhancing substances create tort liability?, 15 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 367 (2008)

Daniel E. Lazaroff, The NCAA in its second century: defender of amateurism or antitrust recidivist?, 86 OREGON LAW REVIEW 329 (2007)

Tiffany D. Lipscomb, Note, Can Congress squeeze the “juice” out of professional sports? The constitutionality of congressional intervention into professional sports’ steroid controversy, 69 OHIO STATE LAW JOURNAL 303 (2008)

Robin L. Muir, Casenote, Drunk or disabled? The legal and social consequences of Roy Tarpley’s discrimination claim against the NBA, 15 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 333 (2008)

Tyler M. Simpson, Comment, Balking at responsibility: baseball’s performance-enhancing drug problem in Latin America, 14 LAW & BUSINESS REVIEW OF THE AMERICAS 369 (2008)

Ryan T. Smith, Note, “Bull’s eye”: how public universities in West Virginia can creatively comply with Title IX without the targeted elimination of men’s sports teams, 110 WEST VIRGINIA LAW REVIEW 1373 (2008)

Presidential Debate Moderators as Umpires

Over on The Presidential Debate Blog, Aaron Zelinsky has a really interesting piece entitled Debate Moderators as Umpires. Here is an excerpt:

* * *

The problem is that a debate moderator, like a judge, (and as Professor Howard Wasserman points out in attack on the judge-umpire analogy at Sports Law Blog , the role of an umpire and almost any other decision maker) is more complicated than merely applying a fixed set of rules. Even a moderator who remains “in the background” will have to choose when to keep “the conversation moving and orderly.”

Such decisions are ultimately subjective. When a moderator decides whether the topic discussed is worthwhile, or if all the relevant points have been exhausted, he imposes his own conceptions on the debate. There is nothing inherently wrong with this –indeed, it is an intrinsic part of a good moderator’s job— but there are limits to such discretion. The moderator must walk the fine line between facilitating discussion and becoming party to the debate.

* * *

For the rest of the post, click here.

The Web Olympics

Apologies to NBC, but I have just seen the opening ceremonies of the Beijing Olympics. Online and Live. Superb picture quality. Without commercials.

And if you wish to brush up on your high school German, German television coverage of the ceremony would help.

With the help of the New York Times blog, a link to the German TV web opened up with nary a glitch.

This cannot be good news for NBC, or the International Olympic Committee. It could portend major changes in future negotiations of exclusive television rights negotiations for the biggest sporting event.

Academic Free Agency and Sports Free Agency

Apropos of the most recent example of college coaches signing long-term contracts that are not really long-term and the broader question of movement of players and coaches and comparisons to academics, comes Clayton Gillette's Law Faculty as Free Agents. According to the abstract:

The phenomenon of law professors changing jobs from one law school faculty to another - faculty free agency - has increased in recent years and appears to be part of a general phenomenon of increased mobility across academia. In this paper, I consider the consequences of free agency in law school markets. It is likely that law professors have benefited financially from free agency. Whether it has benefited law schools generally, or advanced the quality of legal education is another matter. The paper raises some issues that at least give reason for pause about free agency. The consequences of free agency have been similarly questioned in other industries, most notably professional sports. But studies suggest that the adverse effects that some predicted when free agency was officially instituted there have not materialized. Thus, in the absence of similar studies about academic free agents, one might claim that my concerns are overstated. But those studies are often most interesting because they focus on characteristics of professional sports that have little or no analogue in faculty markets. The market for professional sports differs from the academic market in ways that I suggest have significant effects on free agency. Academic free agency may have different, and more negative, impact in academia. To the extent that is true, law schools face a classic prisoners' dilemma in adjusting. Even if it would benefit legal education generally to constrain free agency, it is contrary to the interests of any law school to constrain itself unless competitors do the same. I conclude, therefore, with some practical ideas about how to address the negative effects of free agency.

The "Pay-for-Play" Debate

Matt Winkeljohn of the Atlanta-Journal Constitution wrote an excellent article 10 days ago that debates the issue of paying amateur athletes, including the use of players' likenesses in video games (Advocates, NCAA Take Sides on Paying Student-Athletes, 7/27/09).

For further in-depth analysis and discussion on this topic, see C. Peter Goplerud III, Pay for Play for College Athletes: Now, More Than Ever, 38 S. Tex. L. Rev. 1081 (1997); and C. Peter Goplerud III, Stipends for Collegiate Athletes: A Philosophical Spin on a Controversial Proposal, 5 Kan. J.L. & Pub. Pol'y 125, 127 (1996).

No Negotiation Required Between KU and Self

It is reported today that Kansas and basketball coach Bill Self reduced to writing a contract extension announced last April, which we debated at length here on the blog. It's a 10-year, $30 million contract, and KU athletic director, Lew Perkins, said it was easy to work out:

I wouldn't even use the word "negotiate." The entire process was positive from day one. We didn't squabble over anything.

Self said he and Perkins saw eye to eye right from the outset:

When we first sat down to talk, Lew asked me, "How many years do you want?" I said 10 and he said, "Perfect, that's what I had in mind. We're going to take care of you." There was no negotiating on my part, either. I can't think of any place I'd rather work or live....But getting the security is definitely a nice thing. Our coaches and I are very happy about the commitment the university has made to us. We want to make a similar commitment back.

However, Self also told reporters, "But I'm looking at it as 10 one-year contracts."

You know what, I don't even want to comment on this situation....

United States Olympic Committee's Behavior Policies

Let's call this column a tale of two behavior policies.

Part I -- The USOC's Charm School

In a move that reminded me of attempts of my seven-year-old son's counsellor's to ensure good behavior at summer camp, the USOC began an "ambassador program" to teach all U.S. Olympians about Chinese culture, has attempted to get all of this country's Olympic participants to prevent "ugly American" incidents that have marred the last few Games. As noted in the Wall Street Journal, the The U.S. Olympic Committee, for the first time ever, is requiring all of its 596 Olympians to attend this course prior to traveling to Beijing. Despite the off-hand comparison to summer camp, the idea of teaching etiquette is long overdue.

A major reason is to prevent crude and embarrassing moments by some Americans in recent years, such as certain U.S. hockey players trashing their rooms in Nagano, and skier Bode Miller's antics in the Turin Games. However, the article, under a subheading "boys will be boys" noted that Michael Phelps showed his cultural sensitivity to using chop sticks by "stabbing" a coach, while others were content at using their blackberries and phones for text messages.

While some of the rituals could have been dropped [they are explained in the article], the USOC is correct is making sure that athletes coming to another country exhibit professional behavior and not to engage in sophomoric things that may antagonize their hosts and embarrass the country they represent. I have no problem with that. It is akin acting professionally in the workplace.

Part II -- Avoiding Hurting the Host's Feelings

Where I do have a problem, however, is when the USOC goes overboard to apologize for any act that may hurt the host's feelings. A case in point: the four U.S. Olympic cyclists who arrived in Beijing wearing USOC-issued face masks to protect against the well-document air pollution problem in the capital. After the pictures were widely circulated in the media, the cyclists apologized to BOCOG and claimed that they did so "voluntarily." However, it was reported that USOC officials were angry at the cyclists Michael Friedman, Sarah Hammer, Bobby Lea and Jennie Reed. Friedman was quoted: “They told us the Chinese were mad and that this is a politically charged issue."

Politically charged? Give me a break. I could understand the USOC's displeasure if the cyclists engaged in cultural stereotyping or made racially or ethnically insensitive comments or criticized Chinese human rights policy, but they used the masks as a way to point out the pollution problems that have cast a pall over the games.

The athletes' statement [found here] offered "sincere apologies to BOCOG, the city of Beijing, and the people of China if our actions were in any way offensive. . . The wearing of protective masks upon our arrival into Beijing was strictly a precautionary measure we as athletes chose to take, and was in no way meant to serve as an environmental or political statement. We deeply regret the nature of our choices. Our decision was not intended to insult BOCOG or countless others who have put forth a tremendous amount of effort to improve the air quality in Beijing."

If the use of the masks was a "precautionary measure," why the offense? Maybe it was not the most diplomatic thing to wear them upon arrival at the airport, but these are the athletes that will have to compete in this likely heat, humidity and dirty air. It's a major safety issue and one that the Chinese are desperately trying to improve. At this writing, the reports are not particularly encouraging.

Beijing was not forced to host the games and in doing so, they take center stage for praise and criticism. USOC and U.S. athletes cannot kowtow to every slight. As hosts to such a major event, BOCOG they should have thicker skin. And if the air problems cause injuries and illness, their offense to this minor incident will be the least of their problems. It hardly constitutes a grave political offense.

I wonder what would happen if the athletes refused to apologize and other arriving athletes wore such masks. Is there anything that the IOC or the National Governing Bodies could do? I checked the USOC's code of conduct for the 2008 game [found here] and did not find that the cyclists' conduct violated any particular provision. However, one portion of the Athlete Pledge, requires that all competitors have "acted and will act in a sportsmanlike manner consistent with the spirit of fair play and responsible conduct." Although this is a stretch, it may be possible for the USOC to use this section to discipline players. But even so, the matter would be brought to arbitration.

Unanimous Jury Upholds ATP's Tournament Restructuring Plan

Yesterday, it was reported that jurors unanimously decided "the ATP did not enter into any contract or conspiracy that might have harmed competition, and that there is no market that it monopolized or attempted to monopolize," when it reorganized its tournament structure whereby top-ranked ATP players would be required to play in each of eight top-tier tournaments, known as the Master Series 1000, and four of 11 tournaments in the second-tier Master Series 500. Earlier this week, Sports Business Journal's Daniel Kaplan reported on the testimony of ATP's expert economic witness, Jonathan Walker, who testified on the stand last Friday that what the ATP stands accused of are the normal functions of a governing body and that the ATP is allowed to make rules regarding where players compete. Walker further said:

“We are talking about rules that are necessary for the ATP Tour to exist. So before we even get to the stage of measuring market shares, we know that we are concerned with conduct that's fundamentally necessary for the product to exist. The end goal of antitrust is what's the impact on consumers, not, say, what is the result on a particular tournament.”

I posted on this case numerous times (questioning the harm to the consumer and advocating for an antitrust exemption) and, needless to say, I think the jury and Walker are right. But my question is whether this case should have even gotten to a jury. While the outcome of this case is obviously a beneficial result for the ATP, as well as the other professional sport governing bodies, third parties should not be permitted to challenge decisions of sport governing bodies that relate to rules that are necessary for their existence. The cost of these lawsuits threatens their existence and it is a waste of judicial resources. But most importantly, the players, through their elected representatives, have input and a vote, which serves as a sufficient check on the authority of these governing bodies to enact rules that serve the interest of the players and the sport as a whole.

In this case, the ATP was essentially required to prove that its new scheduling format was adopted in good faith. There needs to be a legal standard that allows judges to dismiss antitrust challenges to rules that relate to the governing body's core functions and purposes. Examples of such rules include rules regarding tournament/event format, scheduling and location, playoff structure, player rankings and playing conditions. When a third party challenges such a rule, it should be deemed to have been adopted in good faith unless the third party presents "clear and convincing evidence" to a judge that the rule was not made in good faith.

In antitrust law, there is the doctrine of "per se illegal" restraints on trade (like price fixing), in which agreements are deemed to be unreasonable as a matter of law. Recognizing that sports is unique and that restraints on competition are necessary in order for the sport to exist, courts have consistently rejected this doctrine, subjecting the rule to a reasonableness test that weighs the anticompetitive and procompetitive effects. The ATP-Hamburg case demonstrates that perhaps certain rules should not be subject to a rule of reason analysis. My suggestion essentially allows judges to decide that a particular restraint in sports is "per se legal" and therefore reasonable as a matter of law.

More against the Judge-Umpire Analogy

Some recent discussion of the analogies between judges and umpires (or other sports officials) over the past few days at the Volokh Conspiracy (here, here, here, and here) and Erike Lilliquist at CoOp (here). Ilya Somin calls the analogy "a good shorthand way of emphasizing the judge's duty to set aside his policy preferences and be impartial between litigants."

I continue to believe that the analogy does not work. First, Ilya defends it as shorthand for decisional neutrality and impartiality, responding to a particular use of the analogy by Fifth Circuit Judge Jerry E. Smith (Ilya's former judge) to explain why judges should not call balls and strikes based on which team is his favorite. But while true, we do not need the analogy for that--it seems obvious that no decisionmaker should reach conclusions based on the identity of the parties rather than the applicable rules.

Second, my disagreement with the metaphor is not that umpiring is simple and obvious while judging is complex and demands interpretation. As Ilya and Erik (in an very detailed post) both point out, there are all sorts of ways in which sports officials exercise a lot of discretion. This is especially true of choices between enforcing rules as written or in a more practical manner grounded in the game's realities and evolution and in applicable "unwritten" (Common Law?) rules that have become part of the rule set (Erik uses examples of the "neighborhood rule" on tag plays and double plays in baseball). So the analogy really becomes "a judge is like an umpire/referee because both must make difficult decisions, often requiring the exercise of discretion and the accumulation of different legal authorities, and must develop an interpretive methodology for doing so." But if that is it, then the analogy again does no work. Why are sports officials particularly illustrative of this principle, as opposed to any other decision maker? I could say the same thing about my decision whether to give my daughter a time-out.

Ultimately, the analogy (at least as used by Chief Justice Roberts in his confirmation hearings, the most recent and well-known use) is based on a (deliberate, I think) oversimplication of umpiring--the notion that an umpire "simply" calls balls and strikes and it is obvious which is which--and an effort to make judging look similarly simple and straightforward. Thus, the analogy is worthless precisely because judging and umpiring are both complex, interpretive endeavors. The analogy is accurate but it serves no meaningful illustrative or rhetorical function.

Interview on Celtics Stuff Live to Discuss Tim Donaghy Scandal

Quick scheduling note: I'll be a guest tonight on Celtics Stuff Live to discuss the legal fallout from the Tim Donaghy sentencing, a topic which I recently discussed on CNN and wrote about on SI.com. I'll be on from about 8:00 to 8:30 p.m. Hope you can listen.

Jim Brown's Lawsuit Against Video Game Company Puts Fantasy League Ruling to the Test

Bloomberg News reports that Jim Brown filed a lawsuit last week against Sony and Electronic Arts alleging that the unauthorized use of the character in the "Madden" football video game, part of the "Real Old School Teams and Players'' series -- a muscular, African-American running back wearing the number 32 jersey who is featured in the game's "All Brown's Team" -- violates his right of publicity. There will be two main defenses asserted here, neither of which is very compelling.

The first defense will be that Jim Brown's name and picture are not being used, and therefore his identity is not being exploited. However, it is well-established by case precedent that the identity element necessary for a right of publicity cause of action is met when there is a sufficient link between the particular plaintiff and the defendant’s use, in other words, that the defendant is actually referring to the plaintiff. In Doe v. TCI Cablevision, the court explained: "To establish that a defendant used a plaintiff's name as a symbol of his identity, the name used by the defendant must be understood by the audience as referring to the plaintiff....In resolving this issue, the fact-finder may consider evidence including the nature and extent of the identifying characteristics used by the defendant, the defendant's intent, the fame of the plaintiff, evidence of actual identification made by third persons, and surveys or other evidence indicating the perceptions of the audience." In Jim Brown's case, the defendants will have a difficult time convincing a court that those playing the video game do not understand that the character in the game is referring to Jim Brown. Here are a few cases that support Brown's case against EA:

• Carson v. Here's Johnny Portable Toilets, Inc. -- held the phrases “Here’s Johnny” and “The World’s Foremost Commodian” were clearly referencing Johnny Carson even though his name wasn't being used.
• Ali v. Playgirl, Inc. -- held that the defendant’s use of a drawing of a black man seated on a stool in the corner of a boxing ring captioned as “Mystery Man” and “the Greatest” sufficiently identified Muhammad Ali even though his name and picture were not being used.
• Hirsch v. S.C. Johnson & Son, Inc. -- held that use of the name "Crazylegs" on a shaving gel for women violated the right of publicity of a famous football player named Elroy Hirsch, who had been known by this nickname.
• Motschenbacher v. R.J. Reynolds Tobacco Co. -- held that the image of a race car driver in a red racing car with a white pinstripe and number "11" sufficiently identified a professional race car driver whose number "71" race car was always in red and white with the same pinstripe.
• White v. Samsung Electronics America, Inc. -- court found that the use of mechanical robots clearly resembling Vanna constituted a violation.

Jim Brown's case is similar to the use of identities of amateur players in video games, which I discussed in a "Letter to Tim Tebow" back in December.

The second defense most likely to be asserted is that the First Amendment trumps the right of publicity. The defendants will most likely rely on the Eighth Circuit's recent decision in C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P., whereby the court applied a precarious "public domain" standard to hold that the use of names and statistics of professional baseball players by fantasy leagues without authorization is protected by the First Amendment.

Jim Brown's case highlights why the Eighth Circuit's public domain standard simply does not work in evaluating when the First Amendment outweighs a right of publicity claim. Jim Brown is a high profile former professional athlete and public figure. Thus, by definition, he is in the public domain. A public domain standard would essentially eliminate ALL right of publicity causes of action where the defendant uses a high profile person's identity without authorization in every single context, whether that be unauthorized use in fantasy leagues, video games, trading cards or advertisements.

As I advocated in my Penn State Law Review article, the only practical standard to apply in determining whether the First Amendment trumps a right of publicity claim in a given context must focus on whether the primary use of the plaintiff's identity by the defendant constitutes an expression protected by the First Amendment (e.g. news reporting, opinions and critiques written in magazine and internet articles, parodies, artistic expressions, etc.). While fantasy league use, video game use, trading card use and use in advertisements serve an ancillary function of informing the public (a legitimate First Amendment concern), the primary use in these contexts is simply not to inform the public.

If this case does not settle, it will ultimately test the limits of the Eighth Circuit's decision. And even if it settles, this case highlights the confusing and nonworkable standard adopted by the Eighth Circuit. This lawsuit also raises the question whether video game companies have the right to continue to commercially exploit the identities of amateur athletes without their authorization.

More on Duke Lacrosse at SEALS

For those interested, the audio of my SEALS panel is here. Download DukePanel0730.mp3

I thought it went very well, an excellent, vibrant discussion. We managed to hit almost all the points and issues I wanted to hit, although not necessarily in any expected order; in fact, we got knocked out of expected order after the first answer. We also had a nice crowd of about 40 people, not too bad.

Ironically, the one major thing we did not get to discuss are the two pending lawsuits against Duke and Durham and its officials (ironically, since these lawsuits are what started me down this road in the first place) and the idea of using civil litigation to gain compensation and remedy for misconduct within the criminal justice system. But I spoke with an audience member afterwards about doing a follow-up at next SEALS, focusing on these post hoc remedial issues and whatever develops with them in the next year. Interestingly, the two lawsuits may have turned campus opinion somewhat against the players, painting them as greedy. I am not sure I agree with the sentiment, but a forms a good baseline for understanding this use of civil litigation.

Obama v. MacCain: No one is leading because the game has not started yet

The line between politics and sports frequently is blurred, but rarely more so than in the "horse-race" coverage of political campaigns, which treats the campaign as an ongoing game. Thus, the constant story, besides criticism of the MSM, is the narrative, based on polls, that Obama is "winning" and McCain is "losing" and the question is by how much and whether Obama should be leading by more and who is gaining or losing ground. McCain played into this a few weeks ago by insisting that he was going to make a big comeback and pull the election out forty-eight hours before Election Day.

My thought when I read that was "No, you're going to pull it out (or not pull it out) on Election Day." Prior to that, you are not leading or trailing or coming back or blowing a lead. There is nothing to lead or trail in until the polls open at 7 a.m. on Election Day and people actually begin casting votes; prior to that point, "the game" has not started. Compare it to the Super Bowl. There are two weeks of wall-to-wall coverage leading up to the game, talking about who has advantages over whom and why and how the game likely would play out, one team is installed as a "favorite" over the other (sometimes, as in this past game, a prohibitive favorite), and pundits predict who is going to win when the game finally is played. But for all that noise, at kick-off the score is 0-0. The Giants can claim a lot from their win in the last Super Bowl; "coming from behind" because all the stories prior to kick-off predicted a New England victory is not one of them. Nor would we say the Patriots "blew" a big lead because they were early favorites.

So why is that any less true of elections? Why do people still speak about Michael Dukakis (whom polls projected as winning by 20 points in mid-summer) as having lost a big lead to Papa Bush? One reason might be that the pre-Election-Day noise influences what happens on Election Day, creating something of a self-fulfilling prophecy. If the narrative is "Obama is leading," that might fix what some people do when they vote. The pre-Super Bowl hype has no direct effect on what happens on the field, except perhaps as it affects the expectations and mental preparation and attitudes of the players and coaches and those attitudes affect physical performance (probably only minimally). Another is that polls are a rough preview of the precise actions that will matter come Election Day (casting of votes); the discussion of how Tom Brady or Eli Manning will play on game day are merely predictions (really just wild guesses) of what might happen based on past performance, but do not really affect how they, in fact, perform. But are those differences so meaningful that we can say the "game" of the election is going on when no one is actually casting votes and the numbers are just projections of what we expect to happen?

The snarky line from sportscasters is "X looks like the better team on paper, but that's why they don't play the games on paper." Similarly, what representative segments of the public think on the telephone prior to Election Day may make one candidate seem better than the other, but the election is not decided by representative segments of the public on the telephone.