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.