Legal Strategies for NHL Players to Obtain Free Agency

As reported in the Ottawa Sun, if there is no new NHL collective bargaining agreement in place by July 1 -- the date players whose contracts expire must receive qualifying offers -- a group of NHL players are prepared to sue to be declared unrestricted free agents. (Garrioch, "Free Agent Frenzy," 4/27/05)

Although still hypothetical, this is certainly an interesting issue. I imagine that an American court may be reluctant to jump into this type of dispute, unless there was evidence that the NHLPA had lost its bargaining power. A similar, though not entirely analogous, issue arose in National Basketball Association v. Williams, 809 F.2d 954 (2nd Cir. 1994), which dealt with the NBA labor strife of 1994. In that case, the 1988 CBA between the NBA and the Players' Association had expired, and the two sides were unable to agree on a new CBA for almost a year. A group of NBPA members brought suit, alleging that because the 1988 CBA had expired, it no longer received the protection of the federal labor exemption. The court disagreed, holding that antitrust immunity remained in effect so long as a collective bargaining "relationship" existed. Thus, if the NHL and NHLPA remain in a state of negotation into the summer, and the NHLPA has sanctioned that negotiation, I suspect a court would be reluctant to interfere. Bear in mind, for purposes of determining a bargaining relationship, "negotiation" typically requires only limited engagement between the parties, making it less likely that affected NHL players could prove otherwise.

But that begs a question: What happens if, frustrated by the failure of negotiations, a majority of NHLPA members voted to decertify the Players' Association? In that case, the fact pattern changes dramatically, since decertification would remove the NHLPA's collective bargaining power, and the federal labor exemption would almost certainly no longer apply.

There is some precedent for this strategy. In Powell v. National Football League, 930 F.2d 1293 (8th Cir. 1989), cert. denied, 498 U.S 1040 (1991), eight players brought suit against the league, alleging that provisions of the CBA between the NFL and NFLPA violated antitrust laws. Significantly, even though the CBA between the NFL and NFLPA had already expired, the players were only able to succeed with their suit after the NFLPA was decertified.

In short, if these NHL players really want to become free agents, they should probably first seek to decertify the NHLPA and then sue.

Of course, the best thing they could do is work out a new CBA with the NHL, but that's another story.

FN: Thanks to Ralph Hickok for pointing out this story, and Eric McErlain has more over at Off Wing on how NHL rosters might dramatically change with new free agency rules.

"Judge orders Tennessee officials to reconsider Bowe application"

A Tennessee judge has ruled that state officials must reconsider the boxing license application of Riddick Bowe, former heavyweight champion. Bowe was denied a license based on medical reports issued in 2000 that claim Bowe has brain damage and should not be able to fight. The judge, though, ruled that officials must study new medical records submitted last year or have their own doctor re-examine Bowe before ruling on his application. Full story from FindLaw.

Should Congress Regulate Drug Testing in Sports?

Perhaps Congress has discovered that professional sports is a major untapped source of campaign contributions. You certainly can expect some campaign money to be flowing in to the Capital in the next few months, as certain legislators have floated the idea of taking the testing for performance-enhancing drugs out of the hands of the leagues and placing it into their own.

For the most part, Congress seemed satisfied with the testimony given yesterday by Paul Tagliabue and other NFL representatives, but some lawmakers still believe a uniform policy for all leagues, one that is far stricter, is the best for sports and the best for the country (Farmer, "NFL boss blasts interference, Chi. Trib., 04/28/05; Brown, "Unified Steroid Rule is Proposed in the House," N.Y. Times, 04/28/05).

Under the current NFL policy, one positive test means suspension for 4 games; the second violation brings a 6-game ban; and the third results in a suspension of at least one year. Baseball's new policy calls for a 10-game suspension for the first violation.

Under the proposal submitted by the World Anti-Doping Association, a positive test would bring a two-year ban and a second positive test would result in a lifetime suspension. In some sports, a suspension for two years would be an effectual lifetime ban, as an athlete would never be able to return to the same elite level, and a replacement would be found. It is true that some track-and-field athletes have waited out long suspensions in the past, but team sports are far different. An athlete training on his/her own is not the same as playing with a team, against the top competition, on a regular basis. And teams will move on.

Even more frightening for the leagues, though, is the prospect that the testing procedures themselves could be taken out of their hands. There is a great deal of speculation that leagues are "selective" (putting it euphemistically) in their enforcement of drug testing. Many believe that although the leagues are strengthening their policies and adding drugs to the banned list, the existing testing loopholes will mean little difference. (Anderson, "The undiscussed issue: steroid test loopholes," N.Y. Times, 04/28/05).

The thought of an independent testing group coming in and suspending a few superstars for two years will cause considerable nervousness in league headquarters. Leagues are fine suspending a few role players to make an example and show they are in compliance with the policy, but does anyone really believe that no superstar athletes have taken performance-enhancing drugs? Don't think the NFL or Major League Baseball is going to give up this control without a considerable fight.

Gary Roberts on Impact of Clarett v. NFL on NBA Draft Issues

I exchanged e-mails today with Gary Roberts, Deputy Dean and Director of the Sports Law Program at Tulane Law School, and he has kindly allowed me to post his thoughts pertaining to Greg's post below and my coments in today's story by Mark Alesia in the Indianapolis Star:

Michael -- It is interesting, but I still disagree with you and Matt Mitten completely, as I did in Clarett. This 20 year old rule is being discussed in collective bargaining. Regardless of whether the union agrees to include it in the CBA or not, it will qualify for the labor exemption. End of discussion. The Brown case in 1996 makes this very clear. People may not like it, as Judge Scheindlin didn't, but that's pretty clearly the law today, as the 2nd Circuit recognized. This result has nothing to do with the antitrust merits of the case (whether 20 year olds can play in the NBA -- obviously some can) -- the rule might be found to be completely stupid and indefensible, but its a collective bargaining issue, not an antitrust issue. I said that in the press when Clarett filed his case, and I say it again now. I don't see how one can read Brown any other way unless you want to twist and contort the Brown result (and Clarett) into oblivion b/c you don't like it. I would bet the ranch on it. -- Gary

Quick reference note: Matt Mitten is Director of the Sports Law Institute at Marquette University Law School.

Thanks again to Gary for sharing his thoughts.

More on Age Limits in Professional Sports

The Indianapolis Star asks, "Is it fair for NBA to keep youth out?" (04/27/05). The article discusses both the quality of play in the NBA, as well as the potential success of any legal challenge a new age restriction.

Legal experts say new restrictions could be vulnerable to a challenge in court, despite the failed effort by Maurice Clarett to overturn the NFL's limits on entering that league's draft. That's because, unlike in football, there is plenty of evidence that basketball players straight from high school can succeed in the pros.

Any change in the NBA's rule would be part of a collective bargaining agreement to replace the current deal, which expires June 30. NBA deputy commissioner Russ Granik predicted earlier this week there would be increased restrictions, based on age or years out of high school.

The current rule requires a player's class to have graduated high school.

One of the legal experts quoted by the article is our own Mike McCann:

Michael McCann, a member of Clarett's legal team and a law professor at Mississippi College School of Law, said it's inevitable that someone will mount a legal challenge to any new restriction in the NBA. He said a reasonable case could be made based on the success of players drafted out of high school, dating to Kevin Garnett in 1995.

"I think there's a mistaken impression that (the Clarett case) dictates that a player could not challenge any ban," McCann said. "There's a big distinction in issues -- namely a track record, a 10-year track record of players going from high school to the pros and succeeding. I think that's a critical distinction that a court would consider. Clarett had to argue a hypothetical."

The debate over an age limit in the NBA will continue throughout the summer. It appears that the league will really push such a limit and will vigorously defend it in court. The outcome of a potential case could have a lasting impact on both professional sports, and antitrust and labor law.

More on Performance Enhancing Technology -- Contact Lenses

In response to last week's post on performance-enhancing surgery (4/21), reader James Meier pointed out an excellent article in the Sporting News about the newest in contact lenses. The article highlights Orioles' player Brian Roberts, who is off to a monster start and is the only known player in the major leagues wearing the new lenses. What do the lenses do?

Known as performance-enhancing contact lenses, they were designed to help hitters pick up the seams on the ball better and to protect the eyes from the sun.

"They're almost like wearing sunglasses without wearing sunglasses," Roberts says. "I could tell such a huge difference right away that I was willing to give them a shot."

More on the lenses:

Seven years in the making by Nike and Bausch & Lomb, the lenses -- which will be known in the retail world as MaxSight -- are so new they have made their way only into a few major league clubhouses so far.

Roberts, the Orioles' leadoff hitter and second baseman, is the only player the Sporting News could confirm is wearing them in games. Reds center fielder Ken Griffey has tried them in batting practice and plans to break them out for real once he becomes more comfortable with them. Reds closer Danny Graves also is wearing them during pregame work. Red Sox pitchers Bronson Arroyo and Mike Timlin and Twins catcher Joe Mauer have been fitted.

(Stan McNeal, "New contact lenses clear baseball's future," Sporting News, 04/21/05).

Are the lenses behind Roberts' fast start? Even if they create no physical edge, is it the psychological edge that has helped him to a career-month? It is hard to say, but all fans should keep a close eye (pun alert) on these lenses and other technologies. Changes are gradual, but over time, technological advances such as these could have a far more serious impact than any performance-enhancing drug.

"Jockeys' Guild, Churchill Downs Reach Deal"

From FindLaw, Churchill Downs and the Jockeys' Guild reached an agreement last week that will keep riders from boycotting races in protest of medical insurance and safety issues.

According to the "joint stipulation and consent order," the Jockeys' Guild has agreed to instruct its members - including more than 1,200 riders - not to stage any activities that would disrupt racing at any of the seven tracks owned by Churchill Downs Inc., including the Churchill track.

In exchange, the racetrack company has agreed to withdraw the motion for a preliminary injunction it sought to prohibit the Guild and its representatives from boycotting and price-fixing activities.

The jockeys walked off from two races in November in protest of inadequate health insurance, causing the cancellation of an entire race card. The Kentucky Derby, run at Churchill Downs, is in three weeks.

More on jockeys and insurance in an earlier post (12/1/04).

New Book by Stefan Szymanski and Andrew Zimbalist

Next month, I will be reviewing on Sports Law Blog a new book by Stefan Szymanski and Andrew Zimbalist: National Pastime: How Americans Play Baseball and the Rest of the World Plays Soccer. In the book, Professors Szymanski and Zimbalist explore why baseball is so popular in the United States, while soccer is so popular everywhere else. In doing so, they evaluate the contrasting organizational structures that run the two sports. They then conclude with recommendations on how both sports can learn from each other.

I'm looking forward to reviewing this book. It's a fascinating topic, and certainly the authors are two of the most prominent sports economists around. Stefan Szymanski is professor of economics and strategy at the Tankaka Business School, Imperial College London, and has written two books on soccer: Winners and Losers: The Business Strategy of Football (Penguin, 2000) and Il Business del Calcio (Egea, 2004). Andrew Zimbalist is Robert A. Woods Professor of Economics at Smith College. He has published fifteen books and has consulted for players associations, governmental bodies, cities, owners, corporations, and international development organizations. His most recent book is May the Best Team Win: Baseball Economics and Public Policy (Brookings, 2003).

Look out for the review next month. In the meantime, if you are interested in picking up National Pastime, check out this link.

Don't Like Sports? Too Bad, Say Cable Companies

The L.A. Times has a few interesting editorials today. One calls for the end of the filibuster entirely in the Senate ("Nuke the Filibuster," 04/26/05) and another decries the increasing costs of cable television, driven mostly by sports. As the piece correctly points out, with the new NFL deals signed by ESPN and NBC, cable costs are certain to rise ("Players and Payers," 04/26/05).

Fueled largely by programming fee hikes demanded by sports networks, monthly cable bills have risen steadily in recent years, a trend likely to worsen. ESPN says it won't increase programming fees to pay for "Monday Night Football," but when its contracts with cable systems are renewed, the network undoubtedly will try to offset its higher costs with higher rates. So will NBC, which will want to raise prices for its cable channels, such as MSNBC, the USA Network and Bravo, to make up for the costs of its NFL deal. Ditto for the other networks that broadcast sports.

Cable operators have proposed a solution that makes sense: pushing sports networks out of basic cable packages and parking them in higher-cost tiers so customers could decide whether sports programming is worth the added cost.

But sports networks, leagues and advertisers are dead set against that idea because they want their broadcasts and commercials to run in front of the greatest possible number of eyeballs.

The cable industry is headed in the right direction, but it's not going far enough. Why not let the free market sort it all out? Let viewers pick programming on an a la carte basis — choosing their own packages from a menu in which each network has a set price. It's a revolutionary idea, but so was football under the lights on Monday nights.

I am in favor of 'a la carte' cable. Even though I would choose the more expensive ESPN, I would probably choose little else, meaning that I would still save on my cable bill. And this is exactly why cable television providers, most of whom have a monopoly in a given area, are not about to offer such a service. Most likely, it will take government regulation (and many rounds of litigation) to secure such a pricing plan. But if cable companies continue to raise their rates, at some point they will run afoul of legislators and the battle will begin.

Tales of Woe, Gore and Age Limits

Mike tells an excellent story below about Frank Gore, a Miami running back who suffered a damaging knee injury in college and had his draft status suffer as a result (full story). Mike asks:

What purpose did the age floor serve Frank Gore? What good did it do him or his family?

I agree with this statement completely: the age limit did Frank Gore no good; in fact, it did him incredible harm. But the age limit is not in place to protect Frank Gore and players like Frank Gore. The age limit is in place to protect the NFL as a business and to protect the members of the NFL Players union. I would argue that the age limit served both of these parties well.

It is a shame when a gifted athlete suffers a damaging knee injury. From the player's point of view, obviously it would be better for him to suffer the injury while already making millions of dollars. But perhaps Gore's knee (or other players' knees) are more susceptible to injury. Injuries suffered in college help the NFL to make a more informed decision when selecting these players. If the NFL feels the player really has a high level of talent, and can make a full recovery, the player will not suffer that much. Willis McGahee is the prime example of this. Buffalo was so impressed with his talent that it was willing to draft him (in the first round) and wait a year on him. Now, McGahee is running so well that the Bills are trying to trade their other running back. Barring another injury McGahee will be in line for a huge contract. Likewise, if Frank Gore shows the brilliance of his first season, he will be rewarded with a multi-million dollar contract.

What Mike seems to be really talking about is the fact that these players should be entitled to make millions of dollars without ever playing a professional game. I just fail to see the entitlement. If the NFL wants to place limits on itself -- either through a rookie salary cap, a regular salary cap, an age limit, or another legal regulation -- from lavishing giant contracts on unproven players, I say so be it. And the players union says the same thing, which is why the NFL won in the Clarett case.

And why should the players union, either in the NFL or the NBA, not want an age limit? If Gore had come out two years ago, he would have taken a veteran's job. After his injury, chances are good that another young (and cheap) running back, and not that old, expensive veteran, would have been given the job. The same applies in the NBA. Will Jermaine O'Neal cry racism (4/12)when an 18 year old takes his job in ten years? Unions are not designed to protect future employees but to protect current employees. If the league and the union agree on an age limit, principles of fairness are not enough to overturn them.

Feel bad for Frank Gore because his mother is ill, but don't feel bad for him because he was selected in the 3rd round of the NFL draft. He now has a chance to prove himself, be a professional athlete, and make more money than most of us could ever dream of. Or, if it turns out he is really not that talented, and his one good season was a fluke, then the NFL has not wasted money, nor a roster space, on another average athlete.

Related Posts:
1. Mike on Frank Gore
2. Greg on Clarett and Williams
3. O'Neal Cries Racism

Damaging Goods: The NFL Age Floor and Frank Gore

In response to Greg’s post below about the age debate, I found neither the drafting of Maurice Clarett nor that of Mike Williams most telling. Rather, I was most struck by the drafting of Frank Gore, who was selected in the third round by the San Francisco 49ers.

As many of you know, Gore was one of the most heralded high school players in the country in 2000. He attended the University of Miami and had one of the best freshman seasons of any running back in college history. At the time, had he been eligible to enter the NFL Draft, he likely would have been a first round selection, perhaps even a high first round pick. But, as we all know, NFL rules didn't offer him that option. So he returned to Miami for his sophomore season. But tragedy struck before that season began: he tore the ACL in his left knee. After taking one year to recover, he suffered a similarly-devastating injury in his other knee.

Leading up to this draft, I can't tell you how many stories I read about those knee injuries have robbed Gore of his trademark speed, and turned one of the most dynamic running back prospects into merely a good or very good one. Even the 49ers acknowledge that he is a serious health risk, while other observers question how long Gore's reconstructed knees will hold up.

Gore had another year of eligibility remaining, but because his mother needs costly medical treatment for a kidney problem and because their family lacks the means to pay for it, Gore felt that he had no choice but to enter this year’s draft.

I'm sure I wasn't the only one who thought, "What might have been?" Forget the potential money that Gore lost over the last two seasons (which is somewhere in the neighborhood of $10 million, including what he would have received as a signing bonus as a first round pick). And forget the money that he loses by being a third round pick instead of a first round pick. And you can even forget all the money that he might lose going forward, particularly since injuries have 1) made him a worse player; and 2) decreased the expected length of his career.

Instead, just ask yourself this: What purpose did the age floor serve Frank Gore? What good did it do him or his family? Had he been eligible for the NFL Draft after his freshman season, I don’t know if Frank Gore would have declared. The only person who knows that is Frank Gore. But that’s not really the point. The point is that an age floor has real costs on people and their families, who are often very poor, just like their ancestors were. And after centuries of poverty, when a family finally sees one of its own possess the rare skill to get them out of poverty, it finds out that, unlike if he were a baseball player, hockey player, basketball player, soccer player, tennis player, golfer, musician, artist, actor or just about anything else in life, he can’t earn that money because his rare skill happens to be in football.

Sure, I understand college football is much better off with Frank Gore and others like him. But is it so much better off to justify how much worse off he is?

Gore’s saga is reminiscent to that of high school basketball phenom Randy Livingston. In the early 1990s, Livingston was deemed the "next Magic Johnson", and had he made himself eligible for the 1993 NBA Draft, was a sure lottery pick. But he took the safe route: he chose to attend college instead. However, before his first college practice, Livingston blew out the ACL in his right knee and was never the same thereafter.

Of course, Randy Livingston made a choice, whereas Frank Gore had no choice. And in that sense, it seems much worse.

More on Aluminum Bats: An Overreaction?

John at Only Baseball Matters has posted an excellent critique of my earlier post (4/25) on the dangers of aluminum bats. He points to the study I cite that says baseball is one of the safest sports to play and echoes my statement that there may not be a problem at all.

One person or two people getting seriously injured, or even killed, while a tragedy for the families and friends of the individuals; do not give us a reason to create even more "risk-preventative" laws. Or put another way, you cannot legislate risk, although we continue to try and do so regardless of the cost. Children in most states can no longer ride a bicycle without a safety helmet, even though the facts do not support the claims that it saves lives, although it seems that it does reduce the number of children actually riding bikes.

Do we really need to have all young pitchers and infielders wearing helmets because there is a one in a million chance that they could suffer serious injury?

I have two responses. One, I agree completely that there is really not a problem and that imposing extra rules is problematic. From my first point, "[R]ules cannot account for all freak accidents." No matter how many rule changes are implemented, there is still a chance that a person can be seriously injured or killed in almost any activity.** As a society, it seems we are becoming too risk averse -- and it is harming society. As John states, "Children are at risk to a million dangers, as are all of us. It's called life."

Despite my agreement, the law may (unfortunately) dictate a change. The tort law is moving in a dangerous direction -- where injured plaintiffs must have a chance to be compensated no matter the remoteness of the danger. The case I cited in the first post, Sanchez v. Hillerich & Bradsby Co., 128 Cal. Rptr. 2d 529 (Cal. App. 2002), is an example of this. If the law continues to impose potential burdens on those that provide youth sports opportunities, then some preventative measures must be taken. Otherwise, one injury could potentially lead to a lawsuit that will bankrupt youth sports in an area. Whether this is softer balls, duller bats or extra helmets, it seems that under the current legal regime, some changes need to be made. And are helmets really that bad? It may seem odd today, but it was also odd when hockey goalies first wore masks.

**I do disagree, though, with John's claim (and the study) that bicycle helmets do not save lives. Around ten years ago, my brother was hit by a truck when riding his bicycle. He slammed his head on the concrete, cracking the helmet down the middle. He was fine, but I do not want to even think what would have been cracked had he not been wearing a helmet.

Clarett and Williams Drafted- Legal Case Revisited

Mike Williams and Maurice Clarett ended their long legal battle over the weekend, when both were taken in the NFL draft. Williams was taken by the Lions with the 10th overall pick and Clarett was selected by the Broncos with the last pick of the third round (which was surprisingly high for him). Both players were drafted significantly lower than they would have been if they had been selected when they wanted to enter the draft, but this does not change my view of the legal argument. Mike will have a different view (and I hope he shares it).

For those that want a recap of this seminal legal case, see these earlier posts:

Analyzing the District Court opinion, which ruled Clarett eligible for the draft (2/8/04)
Fall-out from the District Court opinion (2/8/04)
NFL Appeals District Court ruling (2/29/04)
Appeals Court issues a stay, preventing Clarett and Williams from entering the 2004 draft (4/20/04)
More on Clarett and Williams and the problems faced (4/20/04)
Appeals Court rules against Clarett (5/25/04)
Supreme Court denies to hear Clarett (4/5/05)

Aluminum Bats: Creating an Unreasonable Risk of Harm?

Anyone who has been around youth or college baseball recognizes the definitive 'ping' of an aluminum bat as it squarely strikes a pitched ball. Unlike professional baseball, which uses the traditional wooden bats, all other levels of organized baseball have switched to aluminum bats. The change is due mostly to cost: wooden bats break, and thus, have to be replaced. Aluminum bats, on the other hand, will last for years, if not decades. I have used the same aluminum bat at the batting cages for over twelve years.

There is a growing dark side to aluminum bats, though. As the technology continues to improve, and players continue to grow stronger, especially at the high school and collegiate level, the risk of injury due to aluminum bats grows higher. It is now routine for balls hit with aluminum bats to travel at over 100 miles per hour, increasing the danger for pitchers and infielders. In 1999, a college pitcher suffered a fractured skull when he was struck with a line drive off an aluminum bat. In 2003, a similar line drive struck and killed an 18 year-old Montanan pitcher (Wilkinson, State wants crack of bat to replace 'ping'," Christ. Sci. Monitor, 04/24/05). Most "catastrophic" injuries in baseball are caused by players being struck in the head with batted balls.

Due to these incidents, a movement has begun to ban aluminum bats and return the sport to traditional wooden bats. In Montana, the governor has signed a resolution calling for the adoption of wood bats by all American Legion teams nationwide. The proponents argue that wooden bats are safer and do not produce the inflated results of aluminum bats. But are such drastic measures really needed? There seem to be other, more workable, solutions.

First, some may argue that there is not a problem at all. One study has found that baseball is one of the safest sports to play -- with only 6.1 injuries per 1000 players. In addition, the great majority of these injuries are in no way related to aluminum bats: many are sprains, broken bones (many due to sliding incorrectly) and abrasions. There are only 0.11 "catastrophic injuries" in baseball per 100,000 (0.0001%). Admittedly, these numbers are small consolation to the two players listed above, but rules cannot account for all freak accidents. At least one court, though, has found that questions of the liability of aluminum bat manufacturers and leagues using aluminum bats must go to a jury and cannot be defeated on summary judgment (McKee, Bat ups chance of baseball injuries, appeals court rules," The Recorder, 12/24/02) . Thus, the legal regime may dictate a change.

This change, though, does not necessarily have to be a movement to wooden bats. While I would like to see all leagues use wooden bats, I am afraid that the cost of replacing broken bats could be prohibitive, especially in poorer areas. Thus, these alternatives could provide for more safety while still allowing for aluminum bats.

1. Place restrictions on aluminum bats. As technology continues to improve, so too will the quality of bats. Players want to have gaudy statistics; thus, they will use the "latest" bat that incorporates the newest technology and produces the farthest hit balls. The leagues have the option, though, of stepping in and placing regulations on which bats are permissible. Perhaps limitations could be placed on the "spring" of a bat (or some metric like this) that measures the speed of a batted ball. All sports regulate equipment; it would not seem difficult for baseball to regulate the bats.

2. Softer balls. Another measure, though one that could be more difficult, is to switch to a ball that is "softer." This would decrease the speed of batted balls and would also lessen injuries upon impact. I would think this would be the least popular of the proposals.

3. More protective equipment. This is probably my favorite idea. Why not give the pitchers, or all infielders, helmets? As a sport, baseball has remained largely unchanged for the past 80 years, even as players have grown stronger and technology has improved. Why not give the fielders a little more protection? This may seem a radical idea, but then again, so have other changes. Players that first used fielding gloves were mocked by their teammates, and batting helmets only became standard in Major League Baseball in 1956, after one player had been killed and several others severely injured by pitched balls. The most serious risk of injury is from a blow to the head; wearing helmets in the field would reduce the risk of this injury and allow youth baseball to continue with the current bats.

It seems certain that the combination of increased technology and litigation will result in changes to youth and college baseball. I hope, though, that the changes implemented to do not fundamentally alter the game or impose costs that will prevent some children from playing baseball.

FN: Thanks to TJ Graham for pointing out this story.

Bobby Orr: Gary Bettman & Bob Goodenow are "Strangling" Pro Hockey

In an op-ed in the Lawrence Eagle-Tribune, former Boston Bruins great Bobby Orr lambasts NHL Commissioner Gary Bettman and NHLPA Executive Director Bob Goodenow for "strangling" pro hockey. He believes that neither was interested in getting a deal done this past February, and that both have "squandered" any remaining goodwill. He encourages the NHL and NHLPA to either immediately agree to a new deal, or anoint new leadership teams. He also cautions, "Our sport is in danger of becoming irrelevant." ("Get Deal Done or Get Out of Way," Lawrence Eagle-Tribune 4/24/2005).

Making Players Accountable for their Actions

When asked about his run-in with a fan after the April 14th Yankees-Red Sox game, Gary Sheffield's had this to say:

It all happened so quickly -- I don't really remember what happened. It seemed like the fan was taking a shot at me and so I reacted without thinking, and I apologize for that. The fan was wrong to have reached into the field of play, but I was wrong to react as I did in confronting that idiot fan.

Of course, Sheffield didn't say this. He offered a self-congratulatory statement instead, "It could have been worse if I didn't hold my composure" (Ulman, "Gary Sheffield scuffles with fan, Sacramento Union, 4/15/05). Baseball, of course, has backed this up, praising Sheffield for his "restraint" and not disciplining him, while inconceivably suspending Boston's bench coach for yelling from the dugout (because that has never been done before) (4/21).

Sheffield made a mistake -- he took an unnecessary swipe at a fan that only seemed less despicable because it was not in the form of a punch. Then he ran back to the wall and began screaming with the fans in the area, until a stadium security guard arrived. And we are supposed to praise his "restraint" because he did not leap over the barrier like a madman and barrel into the stands? Has the Pistons-Pacers debacle set the bar so low? Is an athlete to be commended now for not doing what should seem obvious?

But it is not even Sheffield's actions that I think should earn him a sanction (albeit a minor one, perhaps one game and a fine). He clearly overreacted, but I think many people in the same situation would have done exactly the same thing. It is the fact that he never took any responsibility for his overreaction. Thus, he has become another athlete excused for "defending his honor" and then praised by the league because at least he didn't start a brawl. Does anyone think this is going to prevent similar incidents in the future?

Baseball officials should ask themselves this question: what is more dangerous to the sport? Coaches yelling at umpires from the dugout, as has been done for 100+ years? Or players and fans getting into altercations, with the players having immunity so long as they do not go into the stands? The answer seems clear, and so too does the absurdity of baseball's decision.

Papa Don't Preach . . . Even if I Can't Hear You

In what seems like a curious assessment of behavior, Major League Baseball has decided to fine and suspend Boston Red Sox hitting coach Ron Jackson (AKA "Papa Jack") for one game due to his actions (or mouthed expressions) in the now infamous Red Sox - Yankees game from April 14. In that game, a fan interfered with Gary Sheffield, who after completing the play, ran back to confront the fan (but, unlike Jackson, Sheffield will not be punished by Major League Baseball). Bob Watson, MLB's vice president for discipline, cited Jackson's "excessive arguing" with home plate umpire Greg Gibson after Gibson had ejected him for arguing a pitch. But Gibson didn't actually hear Jackson argue; rather, he only read Jackson's lips from behind his umpire's mask while Jackson was sitting in the dugout. So irate with Gibson for ejecting him, Jackson was then restrained by a couple of other Red Sox coaches.

So let me get this straight: In the same game where Sheffield is not tossed for physically confronting a fan, Jackson is tossed because the home plate umpire believes he could read his lips? And then, on the same day when Bob Watson praises Sheffield for "showing restraint," he fines and suspends Jackson? Huh?

I wonder: If baseball officials had the same passion for curbing steroids use in the 1990s that it now apparently has for deterring mouthed expressions, would there ever even have been a steroids scandal?

Performance-Enhancing Surgery and Sports

Last month, I wrote about what could possibly be the "next generation" of cheating in sports: medical and biological enhancements through surgery (3/28). William Saletan has also explored this, wondering why LASIK, the laser surgical procedure that improves eyesight, is not also considered cheating ("The Beam in Your Eye," Slate, 04/17/05).

You don't need bad vision to get the surgery. Wavefront, if you've got the bucks for it, reliably gives you 20/16 or better. If your vision ends up corrected but not enhanced, you can go back for a second pass. Players calculate every increment. Pro golfers seek "to optimize any competitive advantage," a LASIK surgeon told the Los Angeles Times. "They're already tuned in to the best clubs, the best putter, the best ball. ... Clearly having great vision is one of the best competitive advantages you can have." Eyes are just another piece of equipment. If you don't like 'em, change 'em.

The sports establishment is obtuse to this revolution. Leagues worry about how you might doctor bats, balls, or clubs. They don't focus on how you might doctor yourself.

Tiger Woods used LASIK to improve his vision to 20/15 -- meaning he can see at 20 feet, what the average person can only see at 15. Mark McGwire wore specially-designed contact lenses that improved his vision to 20/10. Is this any less cheating than using a supplement or drug that was legal at the time (i.e., andro)?

On the one hand, such corrective surgery can be distinguished from using performance-enhancing drugs and supplements. Surgical techniques, rehabilitation options, nutrition and diets, weight training, equipment: all are technologies that have made sports far different games from 50 years ago, or even 10 years ago. Is surgery that enhances vision all that different from new surgical techniques that can help prevent major damage to aging joints? How different is it to pay a doctor to fine-tune your eyes versus paying personal trainers and nutritionists to fine-tune your body? In contrast, drugs such as steroids produce unnatural levels of hormones in the body so as to move past mere "fine-tuning."

Second, and perhaps more important, is the "role model" difference. Professional sports (and legislative bodies) are concerned not as much with the prospect of "cheating" in athletic competition, and more with the danger that younger athletes will follow the example of the pros. Use of performance-enhancing drugs among high school athletes has been well-documented in the past few months, which indicates the ease in which they can be obtained. Teenagers can also walk into nutrition stores and emerge with a number of dietary supplements, not all of which are free from side effects. At this time, however, corrective eye surgery is not easy to obtain. The procedure is costly (several thousand dollars) and not all doctors will perform it on someone with good vision. In addition, most (reputable) doctors will hesitate, if not refuse, to perform a surgical procedure on a minor without parental permission.

Despite these differences, compelling arguments exist for leagues to consider regulation of bio-technological "enhancements." Today, the enhancement is of eyesight. Perhaps the next enhancements will be of muscle, bone structure, pain threshold, or joints. Is the next generation of "super-athletes" around the corner? I am not one to doubt technological advances, but what, if anything, should the leagues do to curtail it?

If regulation were to occur, the most rational line to draw seems to of "correction" versus "enhancement". An injury should be able to be corrected: ligaments re-attached, poor vision improved to 20/20 (through lenses, surgery, or both), bone chips removed. But the line should be drawn at "enhancements": improving eyesight to better than 20/20, "bionic" surgeries, replacement of organic body parts with synthetic parts. Some of these improvements may seem more appropriate for science fiction stories, but so too did vision correction thirty years ago.

Obviously, this line is hard to draw, and even harder to implement. When does a procedure or device cross the line from "correction" to "enhancement"? If a player blows out his knee, should the reconstruction procedure attempt to restore the original condition or use all available techniques to make the best knee possible? Even if the standard is the "average knee," this standard will change over time. What happens when it becomes standard, at least among wealthy individuals, for vision to be corrected to 20/15? All of these factors raise obstacles to defining and implementing regulations.

In addition, there is the problem of penalty. If a player has undergone certain enhancement surgery, perhaps as a child or in response to an earlier injury, an outright prohibition would mean a lifetime ban from that sport. The only alternative would be additional surgery, to undo the correction, and "de-enhance" the player. Does the PGA want to ban Tiger Woods because he cannot "uncorrect" his vision? Should an athlete be punished for his parents taking the whole family for muscle-strengthening surgery? These questions have no answers, at least not now. Perhaps there can be two leagues: a "super-athlete" league and a "traditional" league. Or maybe technology will not continue to improve at this exponential pace, though there are no signs of innovation slowing down.

It seems that leagues will have to confront this "problem" of medical technology improvements and the inequalities it can cause. Laser eye surgery may not be cheating, but leagues should begin to consider the potential for future innovation and the impact these "enhancements" could have on the world of sports.

"Italy Approves New Soccer Anti-Violence Measures"

In the wake of the Fan-Gary Sheffield incident (listed in the order of blame, from my point of view), I sincerely hope that American sports leagues never have to resort to measures such as these.

The Italian government backed a series of new "zero tolerance" measures Thursday designed to curb fan violence at soccer matches.

Effective immediately, matches will be abandoned if objects are thrown from the stands. The team whose fans threw the objects will be penalized with an automatic 3-0 loss.

The new rules come in the wake of several violent incidents at Italian soccer matches, including fans fighting with police at one match and throwing flares on the field at another (AP, "Italy approves new soccer anti-violence measures," FindLaw, 04/14/05).

Yes, fans is short for fanatics. But this is sports, people. In a world where people are fighting and dying every day, is a little perspective too much to ask?

Please Take a Survey for My Study on Nutritional Labeling and Related Issues

I am conducting a study on nutritional labeling and related issues, and would very much appreciate your assistance in completing this survey. It is anonymous and should take you around seven or eight minutes to complete. If you are inclined, please forward or share the survey link with others, as I would like to obtain a sufficiently large and diverse sample class. The results will be used only to develop legal scholarship. Thank you, I really appreciate it.

Update: Special thanks to Todd Zywicki at the Volokh Conspiracy for posting a link to my survey.

Bart Giamatti on Law and Baseball

Terrific post by Professor Rick Duncan on Only Baseball Matters regarding the late A. Bartlett Giamatti and his belief that baseball and the law have much in common. Giamatti served briefly as MLB Commissioner in 1989, but died shortly after being named to the post. He also served as president of the National League from 1986 to 1989, and president of Yale University from 1977 to 1986. Amazingly, he was named president of Yale at the age of 39. Quite a life indeed. It's just too bad that he wasn't alive to have seen his son, Paul, become such a movie star.

Olympic Bombing Trial Update

In the "better late than never" category, I thought I would post some limited thoughts and links on the trial of Eric Rudolph, who has plead guilty to planting the bomb that exploded at the 1996 Olympic Games in Atlanta, killing 1 person and injuring over 100 others. Rudolph entered his guilty pleas, for the Olympic bombings as well as others, on Wednesday (Barry and Jarvie, "Rudolph Admits Bombing '96 Olympic Park, Clinics," LA Times, 04/14/05). The pleas will mean that he will spend the rest of his life in prison, but he avoids the possibility of the death penalty.

His plea agreements can be found here and here. The indictment can be found here.

In exchange for pleading guilty to the federal charges, the state officials have agreed not to bring additional charges against Rudolph. Without this fear of prosecution, Rudolph can be compelled to testify at the civil trials stemming from the Olympic bombing. Victims of that attack are suing both Rudolph and the Atlanta Committee for the Olympic Games, whom the plaintiffs claim did not provide adequate security or take reasonable measures to prevent the attack from taking place (Ringel, "Guilty plea may lead to Rudolph being key witness in Olympic bomb civil trials, Fulton County Daily Rpt, 04/12/05).

A key issue in the case will be whether or not Centennial Park, where the bombing took place, was for recreation or commercial activity. Based on a Georgia Supreme Court ruling from last year (ACOG v. Hawthorne, 278 Ga. 116), if the jury finds the park is recreational, the state Recreational Property Act would immunize ACOG from legal liability. If, however, the park is found to be commercial, liability can attach. The park, like most things at the Olympics, was full of tents, stores and advertisements for the big sponsors, including a sports bar run by Anheuser-Busch, a souvenir shop and a food court.

I hope that ACOG is not found liable in the civil case. This was the work of a madman, and it is unclear if additional security would have been any impediment to his malicious intent. But if the Olympic committee is found liable, then it will mean a new era of security at Olympic Games. The games of 2002 and 2004 already featured heightened security in the wake of 9/11, but the chance for legal liability would mean that any future games in the United States would be heavily locked down. There would be no more open gathering spaces like Centennial Park. Every entrance would feature intrusive security and the Games would more resemble a military compound than a place for human gathering. This would run counter to the spirit of the Games, which attempts to bring people together, not put up additional barriers.

Perhaps I am being naive; perhaps the days of large-scale international gatherings without imposing security are past. But I hope this is not true and not imposing liability upon a group that was clearly acting in good faith to protect everyone in Atlanta would be a positive step.

Update on NIT v. NCAA

The Indianapolis Star had an article last week on the upcoming trial between the Metropolitan Intercollegiate Basketball Association (MIBA), which runs the National Invitation Tournament, and the NCAA. You read read a summary of the case in this earlier post (4/5/04) -- basically, the MIBA claims that the NCAA engages in anticompetitive practices by forbidding men's college basketball teams from entering the NIT if they have been extended an invitation to the NCAA. This prevents a team from turning down the NCAA in order to attempt a long run in the NIT, which means a number of home games (and the associated revenue), as well as a chance at a championship (only one team lower than a six-seed has ever won the Final Four).

The NCAA does not seem concerned with the lawsuit.

"There is such a remote possibility the NCAA would lose that we're not uncomfortable at all," NCAA vice president David Berst said. "The difficulty is that the five schools on the MIBA side have the same opinion. We are confident an association can set season limits, rules and say you have to participate in the association's championship."

The case is set for trial in July (Alesia, "NIT will battle NCAA in court -- maybe on it," Indy Star, 04/13/05). Obviously, a ruling against the NCAA would have an enormous impact on Division I men's college basketball.

What Will Happen to Youppi?

Baseball returned to Washington, DC this past week, as the Nationals played their first home game in front of a crowd of political bigwigs and, hopefully, some diehard baseball fans that will keep the team going for many years. But the dismantling of the "Montreal Expos" is not yet complete. One of the lingering issues is what will become of Youppi, the giant orange mascot that kept fans at Olympic Stadium entertained for the past twenty-five years. Right now, the mascot sits stuffed into a duffel bag in Montreal, awaiting a buyer (Carpenter, "Alas, Youppi! Unable To Shout 'Yippee!'," Wash Post, 04/16/05). The delay, of course, is due to the law.

The problem of the sale is a complicated one. Delorme says the deal would probably have been completed weeks ago if not for the issue of Youppi's trademarks. When Youppi! was first created in 1979, the Expos registered their logos on his cap and shirt. The registers lasted even as the team's insignias changed. Now in order to get rid of him, they must first "de-register" every logo, Delorme said, then register it again without the word "Expos."
And so Youppi! rests in his duffel bags while Montreal waits to hear what will become of him.

Hopefully, the legal issues will be resolved quickly and Youppi can move on to a happier place. After all, wasn't being subjected to Expos games over the past decade punishment enough?

Group Files Suit over Stanley Cup

A group of hockey players in Canada is not happy that the Stanley Cup is not being awarded this year, so they are taking a lesson from their neighbors to the south and going to court. The group has filed suit in an Ontario court against the NHL and the Cup's trustees, seeking clarification of the terms under which Lord Stanley provided the Cup and how it is to be awarded today ("Group goes to court over Stanley Cup," CBC Sports, 04/13/05). The lawsuit coincided with the day in which the NHL play-offs would have begun. Fans across the US have reacted with outrage, because the lack of hockey has led to greater airtime for Stephen A. Smith on ESPN.

You can read more on the Free Stanley movement in this earlier post (2/18). And the Dallas Morning News, has an article on the lockout's impact on employees in the hockey business (Durrett, "No hockey leaves Stars employees, fans in the cold," 04/13/05).

And to keep himself busy, look at what Eric is linking to. Funny stuff.

Thanks to reader Sean Smith for the tip.

ABC Not Fined for Monday Night Football Opening

The FCC has ruled that it will not fine ABC for a Monday Night Football introduction that featured Terrell Owens and actress Nicollette Sheridan of "Desperate Housewives" (FCC News Release, 3/14/05). The skit featured Owens ready to go out and play the game until Sheridan drops her towel (presumably the only thing she is wearing) to the ground. Viewers, of course, saw nothing more than the back of the actress on the telecast. From the Opinion and Order:

We conclude that the material in question is not patently offensive, and thus, not indecent. In particular, the “Monday Night Football” segment, although sexually suggestive, is not graphic or explicit. Owens is fully dressed throughout the segment, and, with the exception of a moment when her bare back is exposed to the audience, Sheridan is at all times fully covered with a towel. No sexual or excretory organs are shown or described, and no sexual activities are explicitly depicted or described. Furthermore, the scene where Sheridan drops her towel and jumps into Owens’s arms is brief. Although the scene apparently is intended to be titillating, it simply is not graphic or explicit enough to be indecent under our standard.

This is absolutely the right result. There was nothing about this scene that even came close to crossing over into indecency. If parents do not like what ABC is broadcasting, then they have the right to make their voice felt by not watching the network's programs. They can even unplug the television altogether if the material does not meet their approval. But censorship or possible penalty for material that is "edgy," no matter how unnecessary some may feel it is, has no place in our society.

Jermaine O'Neal: Racism Motivating Efforts to Ban Teenagers from NBA

Indiana Pacers' All-Star forward Jermaine O'Neal, who was drafted out of high school in 1996, raises an important social point when considering the desirability of banning teenagers from the NBA:

"As a black guy, you kind of think [race is] the reason why it's coming up. You don't hear about it in baseball or hockey. To say you have to be 20, 21 to get in the league, it's unconstitutional. If I can go to the U.S. Army and fight the war at 18 why can't you play basketball for 48 minutes?"

In addition to O'Neal's concerns about a ban, you might also want to take a look at my published study on the law and economics of high school players in the NBA, which, among other things, indicates that graduating high school players have proven to be the optimal age group to enter the NBA, and this outcome is the result of natural incentives/deterrences consistent with the NBA's economic system.

When Drugs Are Good for Baseball Players

St. Louis Cardinals' reliever Bill Pulsipher, the one-time New York Mets phenom who was out of the big leagues from 2001-2004, talks to Alan Schwartz of Baseball America about how medications have helped him overcome clilnical depression and bring him back to the big leagues. Maybe it's me, but Pulsipher's comments remind me a little bit of what Billy Beane said in Moneyball, particularly when talking about his own playing days (I know Beane wasn't depressed, but like Pulsipher, he too was an extraordinarily successful young person who didn't respond well to failure, only to see his problems snowball out-of-control).

Still only 31 years old, let's hope Pulsipher can continue his inspiring comeback. (Schwarz, "For Pulsipher, Down Doesn't Mean Out," Baseball America, 4/12/2005).

NBA, Players to Negotiate New Steroids Policy

Once the current collective bargaining agreement between the NBA and the NBPA expires on July 1, 2005, the parties expect to negotiate a new steroids testing policy. The existing policy, which was instituted in 1998, calls for a five-game suspension for the first positive steroid test, 10 games for the second, and 25 for any subsequent positive results. Veteran players are tested only once a year--and only during training camp--unless there is "probable cause" for additional screens. In contrast, first-year players may be tested as many as three times during the season, in addition to once during training camp.

Since implementation, only three players have tested positive: Don MacLean (suspended five games in 2000); Matt Geiger (suspended only two games in 2000 because substance had been only recently banned); and Soumaila Samake (suspended five games in 2002).

Although neither the NBA nor the NBPA believes that steroids use presents a significant problem among basketball players, fallout from the recent congressional hearings on baseball/steroids has prompted reconsideration. Look for any new NBA steroids policy to include more frequent testing. (Hu, "Steroid Issue a Layup, So Far", San Fran. Chron. 4/10/05)

Baseball and the Silver Screen

There are few things better than baseball movies. America's Pastime and the Silver Screen are two of my favorite things, so it is only natural that the marriage of the two makes me quite happy. Prof. Rick Duncan at Red State Lawblog agrees and discusses some of his favorite baseball movies.

For me, it does not get any better than Field of Dreams:

The one constant through all the years, Ray, has been baseball. America has rolled by like an army of steamrollers. Its been erased like a blackboard, rebuilt, and erased again. But, baseball has marked the time. This field, this game, is a part of our past, Ray. It reminds us of all that once was good, and could be again.

The end of this movie, where Ray asks his father if they can play catch, is one of the few times I have teared up during a movie. There is just some connection between baseball and fathers and sons that few other pastimes can emulate. I have a good friend that watches Field of Dreams every year at the start of the baseball season. I usually try to come up with my own traditions, but that is one that I took pride in mimicking.

Bo Knows Lawsuits?

It appears that at least one former major league player will test the legal waters over an allegation of steroid use, but it is not who most would expect. Bo Jackson, the famed two-sport star of the late 80s and early 90s, has filed suit against a group of newspapers in southern California after the papers insinuated that his career-ending hip injury stemmed from "anabolic use" (Foltman, "Jackson sues paper over steroids story," Chi. Trib., 4/7/05).

As I have discussed (2/28), professional athletes accused of steroid use will have a tough time making a legal case. As a public figure, Jackson must prove that the newspaper acted with "actual malice" or with "reckless disregard" for the truth. Thus, filing the lawsuit (and more importantly, holding the press conference that announced the suit), may just be a way for Jackson, who is now out of the public spotlight, to publicly deny the allegations that he used steroids.

Also: I tried to find a link to the famous "Bo Knows" commercials for this post, but was unsuccessful. If anyone knows of a link and can send it along, I would appreciate it.

Clarett Case Comes to an End

On Monday, the Supreme Court declined to hear the case of Clarett v. NFL, the case in which former Ohio State running back Maurice Clarett challenged the NFL's age limit. There was little chance of the Court taking the case, since the legal issue remains relatively new. In addition, despite Clarett's legal team asserting that the case would have an impact on a number of other players, Clarett is eligible for this month's draft, meaning the case most likely would have been ruled moot (not affecting the legal rights of the parties).

For now, this ends the legal struggle against the NFL's requirement that a player be three years out of high school in order to be eligible for the draft. I say "for now" because it is only a matter of time before another football player challenges the rule, in hopes for a more favorable ruling. And, depending on how the collective bargaining session in the NBA proceeds, rumors abound that basketball may soon have a similar eligibility limitation. This, too, will most definitely prompt litigation. Eventually, the Supreme Court will hear this case. The result will change the face of sports, and the law, for some time to come.

Injured Phillies Fan Strikes Out Again

As expected (2/6), the Philadelphia fan who was injured while attempting to catch a foul ball will not be allowed to pursue his lawsuit against the city and the Phillies. A state appellate court has upheld the grant of summary judgment and thus the case will be dismissed. The court first ruled that "[o]ne who attends a baseball game as a spectator can properly be charged with anticipating as inherent to baseball the risk of being struck by a foulball while sitting in the stands during the course of a game." Next, the court held that the team and city cannot be liable on a theory that the screen put up directly behind home plate provided insufficient protection.

By placing the protective screen behind home plate, [the city and team] did not assume a duty to use reasonable care with respect to the design of the barrier beyond seeing that it did not deviate from the established customs used in baseball stadiums. To conclude otherwise would lead to absurd results in that it would require an amusement facility to have screens encircling the entire field, or, alternatively, would allow an amusement facility to avoid liability by leaving stands unprotected, but expose the facility to liability when it erects protective barriers.

The full opinion can be found here.

Hat Tip: Overlawyered

History of Baseball's Antitrust Exemption

Skip over at the Sports Economist points to a great article detailing the history of baseball's antitrust exemption (Ratner, "Orioles run-ins with law historic," Baltimore Sun, 4/3/05). Skip also helpfully points out one error the author makes, relating to franchise location. I have done some analysis of the decision in Federal League Baseball Club of Baltimore v. National League, which created the exemption, in this earlier post (12/8/04).

Opening Day in Baseball

I love opening day. The first game might have been last night, but the baseball season starts today. Opening day is great, not only because it signals the beginning of a new baseball season, where anything can happen, but because it officially marks the beginning of spring and summer. Warm weather, green grass and swimming pools await, while snow shovels, ice and heavy winter coats can be put away until next year. For more on Opening Day, see this post from last year.

Hopefully, too, Opening Day can take some of the spotlight off of baseball's legal problems. Alex Sanchez has become the first player suspended under the new steroid policy (ESPN, 4/4), which will hopefully encourage others to leave the juice behind. At the very least, it proves that baseball intends to enforce its policy. Now, it remains to be seen how the new policy affects player statistics, if at all.

Even the phrase "opening day" cannot escape litigation. In January, a federal court ruled that Major League Baseball did not infringe the trademark of Opening Day Productions, Inc., through its use of the phrase. Although the company claimed to have registered the phrase as a trademark and had discussions with baseball in the early 1990s about a marketing campaign centering on "opening day", the talks never came to fruition and the company had never made more than sporadic use of the slogan. The court observed that the right to a particular trademark grows out of its use, and the use must be deliberate and continuous, not sporadic or transitory. Thus, the company's use of the phrase is not protectable under trademark law. (MLB Properties v. Opening Day Prod., 2005 WL 53260 (S.D.N.Y. 2005)).

For more baseball litigation, check out this list of Baseball's Looniest Lawsuits.

Steroids in NASCAR?

Charles E. Yesalis, a health professor at Penn State and a former trainer, wonders whether NASCAR, which does not have a mandatory drug testing policy, should investigate whether its pit crew members are using illegal substances in order to improve their strength, speed, and agility. Under current NASCAR rules, testing may only be imposed upon "reasonable suspicion of abuse of an illegal substance," a standard which Professor Yesalis deems insufficient. NASCAR dismisses this suggestion, with a spokesman noting, "there's not even a suspicion of a problem in the sport." (Newton, "NASCAR Comfortable with Current Drug Tests," The State, 04/03/2005).

North Dakota Seeks To Restore Roger Maris' Home Run Record

In light of apparent steroids use by Mark McGwire et al., the North Dakota Senate yesterday approved a resolution urging MLB commissioner Bud Selig to reinstate Roger Maris' 61 home runs in 1961 as the official major league record. The vote was 45-0. And in case you are wondering, yes, Roger Maris was from North Dakota.

The Home Run Record Resolution now moves to the North Dakota House for additional review.

The sponsor of the resolution, Sen. Joel Heitkamp (D), believes that although this matter may appear neither deserving of a state legislature's attention nor germane to any state policy, it actually reflects a broader commitment among North Dakotans to prevent cheaters from rewards.

Alabama Sues Artist Who Created Football Paintings

Daniel Moore is a proud graduate of the University of Alabama. He loves his alma mater and likes to express his feelings through paintings that depict great moments in the history of Alabama football. Unfortunately, Alabama does not much care for his artistic desires, and it has filed a lawsuit against him, claiming the paintings contain Alabama trademarks for which Moore has not obtained a proper license. The Alabama press has jumped all over this, vilifying the University for taking a beloved artist, and one of the school's biggest fans, to court over a few thousand dollars in royalties. (Walton, "UA Sues Artist Over Trademark Violation," Birmingham News, 03/23/2005; Finebaum, "Alabama Paints Itself Into a Corner," Mobile Register, 03/29/2005).

Public relations aside, does the legal case have any merit? Moore claims that his paintings, which depict famous moments in Crimson Tide football history, should receive First Amendment protections for free expression and free press. Says Moore, "It is a fact that artists were the first journalists." The University claims, however, that the paintings contain University trademarks that cannot be used without payment of required licensing fees.

There is some precedent on this issue. In 2003, the Sixth Circuit upheld an artist's right under the 1st Amendment to create paintings of historical golf moments over a challenge by Tiger Woods (ETW v. Jireh Publishing, 332 F.3d 915). That case was slightly different, because it dealt primarily with a right of publicity claim, but there were also trademark issues. The court emphasized that the work contained "significant transformative elements" that made it worthy of 1st Amendment protection and minimized the economic impact on Woods' protected right of publicity. Because the work "does not capitalize solely on a literal depiction of Woods" but rather "consists of a collage of images . . . which are combined to describe, in artistic form, a historic event in sports history and to convey a message about the significance of Woods's achievement in that event," it is entitled to "the full protection" of the 1st Amendment.

I believe that a similar argument could be made in this case. Moore is depicting an historical event that contains "significant transformative elements." There is probably also little economic impact on the university's trademarks. In response, Alabama will most likely argue that, unlike in the Woods case, which featured his image along with many other golfers, these paintings depend on the use of Alabama trademarks. Without the Alabama name, colors and logo, there would be no painting.

In addition, what of Moore's argument that he is a journalist and his work is protected by the guarantee of a free press? If these paintings make him a journalist, does this not also open the door to bloggers, street artists, and anyone else who depicts an historical event, no matter the form? I do not know if courts will be willing to make such a leap. Are there any cases that speak to this? If anyone is aware of one, please let me know.