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Wednesday, February 28, 2007
Cedric Maxwell's Sexist Comments about NBA Referee Violet Palmer

Cedric Maxwell--the MVP of the 1981 NBA finals and whose number #31 the Boston Celtics recently retired--has been the color analyst for radio broadcasts of Celtics games since 1995. His thoughtfulness and humor have made him popular among Celtics fans, particularly in recent years as his performance has excelled.

But as reported by Dave Adams of Universal Hub, Maxwell has found himself in controversy due to recent on-air comments about NBA referee Violet Palmer (hat tip to Jeff Clark of Celtics Blog):
During the first quarter of tonight's radio broadcast of the Celtics game against the Houston Rockets,one of the Celtics players managed to fake out the referee to get a call to go his way. The referee who made this call was Violet Palmer, who happens to be a woman. Cedric Maxwell, the analyst / sidekick on the Celtics broadcast team, proclaimed "Get back in the kitchen!" when she made the call. Max's partner, Sean Grande, tried to throw him a lifeline by pointing out that they had both been previously impressed by Palmer's officiating, but Max continued "Get back in the kitchen and fix me some bacon and eggs!"
Somewhat surprisingly, at least from my vantage point, neither the Celtics nor WEEI, which broadcasts Celtics games, will take any disciplinary action against Maxwell. Instead, he has agreed to apologize on-air. Just compare that "sanction" with the firing of former Fox baseball announcer Steve Lyons for, at worst, ambiguously negative comments about Latinos. I recognize that Lyons' had a bigger and national audience, that he had made other curious remarks in the past, and that Fox may have employed a stricter on-air policy than WEEI, but I still find the outcomes odd. Maxwell made an unquestionably sexist remark--should it really be tolerated without sanction? Is no suspension or even reprimand in order?

Along those lines, think about what Violet Palmer must feel whenever she makes a controversial call. As the only female referee in the NBA (and there are no female refs/umps in the NFL, NHL, or MLB), her gender--which obviously has no bearing on her talent--probably enters the minds of many of those who don't like the call, and some of those persons, apparently like Cedric Maxwell and his "fix me some bacon and eggs" line, occasionally might let that bias slip. God only knows what fans yell at her when they don't like her.

And no doubt, Violet Palmer's gender makes her job harder than it would otherwise be. A favorite target of Bill Simmons and other basketball writers, Palmer is routinely criticized for not being very good at her job. For instance, Simmons has written of Palmer:
Nobody has ever been worse at their job, in any vocation – not even the people who work at Home Depot selling Christmas trees. When Violet started officiating a few years ago, she was so incompetent, players and coaches actually avoided arguing with her – whenever she screwed up, they would always glance around helplessly, the same way you would if your puppy dropped a deuce on the living room carpet.
I'm not sure if that criticism is true, but assuming for a moment that it is, might Stanford social psychologist Claude Steele's research on stereotype threat be relevant? Stereotype threat reflects the behavioral effects that result from an individual's belief and fear that his or her actions will confirm a negative stereotype of a group to which he or she belongs. As I discuss in a work-in-progress on the Wonderlic Test, stereotype threat typically manifests in anxiety, which can impair performance and trigger a self-fulfilling prophecy: because of stress related to one's group membership, one underperforms, thereby unintentionally corroborating the underlying group stereotype. Thus, the situational presence of stereotype threat, rather than the person's aptitude, skill, or talent, may generate the behavior that confirms the underlying stereotype. As I write:
[M]inority undergraduates tend to perform less well academically when they believe there are achievement gaps relative to race. In a recent study of undergraduates, African-American students performed worse than their white classmates when told that they are taking an exam that measures “their intelligence.” However, they performed equal to white students on the same exam when told that they are taking an “experimental” exam.
Whether or not stereotype threat exists with Violet Palmer, it's clear that she has an unusually tough job. Granted, I know that no one forced her to take this job; she undertook it knowing, at least on some level, what she would be getting into (although that doesn't justify those problems). Moreover, I genuinely applaud the NBA--and, yes, Commissioner David Stern, who I often criticize--for being the first and still only major pro sports league to employ a female referee. But I hope that the league and its teams do all they can to ensure that her gender not be used to marginalize her or to interfere with her work, otherwise it would seem that she is being set up to fail. With that in mind, should there really be no sanction for a radio announcer who, on-air, says of Violet Palmer that she should "get back in the kitchen"? Are we in the year 2007 or 1947?

Update: see Jeffrey Standen's vigorous and thoughtful defense of Maxwell.

American University Soccer Player's $10 Million Tort Case Against Former DC United Star

Yesterday, the Washington Post covered an interesting lawsuit filed by a former soccer player from American University against the MLS franchise D.C. United, its owners, and a former player, Bulgarian superstar Hristo Stoitchkov.

In 2003, the AU college team played the United in a scrimmage. According to the Post story:
The incident occured about 10 minutes into a scrimmage . . . during the [American University] Eagles' offseason and a few weeks before United's season opener. [The AU player] was preparing to take possession of the ball when Stoitchkov approached on the run and, in an apparent attempt to disrupt play, slammed his left foot into [the student's] right leg, which, according to the lawsuit, was planted on the field. Stoichkov, who according to the lawsuit, was angry that game officials did not disallow an AU goal moments before the tackle . . . -- was assessed a red card. Both coaches agreed to suspend the game. [The AU player] was removed by ambulance and, later that day, had a four-inch metal plate inserted in his leg.
Plaintiff now seeks $5 million in compensatory and $5 million in punitive damages. Stoichkov, now the Bulgarian national coach, was quoted by the Post's Soccer Insider blog:
"I'll leave that to my lawyers but as far as I know this case is closed. I don't care what the press say. I am concentrating on my work in Bulgaria and the national football team."
Duke Sports Law expert Paul Haagen was interviewed for the story, and offered this observation. He offered this on-point observation:
"What this will turn on is expectations -- the expectations of the participants, what the game was about and whether it went beyond those level of expectations . . . . Did the incident go beyond the normal course of the game?"
One wonders what expectations typically are for a scrimmage, as opposed to a competitive game. A player might expect and therefore assume risks in a competitive game that would not be a part of scrimmage play. I'll also be interested to see whether a court treats the AU player according to the less-plaintiff-friendly standard typically applied to professionals (in that he was playing against a pro team), or the more plaintiff-friendly standard that typically applies in amateur or recreational sports injury cases.

In any event, this seems like an odd case to expect punitive damages, since on the part of team and its investors there is certainly no "wanton and wilful" misconduct. As to Stoitchkov, it will depend on how aggravated his conduct is found to be.

HT to UT Law 3L Justin Stone for pointing me to the story.

Tuesday, February 27, 2007
Is Potato Sack Racing a "Contact Sport"?

As long-time readers of this blog know, one of my enduring sports law interests in the tort liability of participants in athletic events to one another (see posts on the subject here, here, and here). In many states, a "contact sports exception" applies to personal injury cases between co-participants in sports deemed to "inherently" involve contact. Co-participants can only recover from one another where the offender committed a "reckless" act, since the risk of negligence is viewed as an assumed risk of contact sports.

A key question that arises in cases implicating this legal rule is the line between contact and non-contact sports.

Now, an Ohio appellate court has sent a case back down involving an injury to a participant in a potato-sack race, ruling that such racing is not a contact sports. According to the Cleveland Plain Dealer story on the case:
"Intentional tackling is not a customary part of the sport or activity of sack racing," said the appellate decision. "Sack racing is not a contact sport."

A new trial will decide if Martin LaMalfa, 43, of Concord Township, was negligent when he tackled cousin Anthony Aquila, 53, of Wickiffe, during the sack race Aug. 17, 2003, at a LaMalfa family reunion at the Outdoor YMCA in Perry Township.

"It is clear from the record that roughhousing between two grown men was done in a spirit of childlike competition between cousins which unfortunately due to their respective ages and physical limitations may negligently have caused some serious damage," the appellate court said in its opinion.
Having participated in just a few such races over the years, I'm not qualified to render an opinion on the level of contact typically expected in this activity. At least according to e-how, however, contact isn't a part of the rules of potato-sack racing.

Politics, Expression, and Basketball Arenas

True Hoop (which, having asked Mike to guest-post, must be regarded as the official non-law basketball blog of the sports-law world) reports on a story from The Stranger (which I gather is Seattle's weekly independent newspaper):

The campaign finance records I’ve reviewed show that Sonics/Storm co-owner Tom Ward has contributed $475,000 to Gary L. Bauer’s Americans United to Preserve Marriage

And another Sonics/Storm co-owner, Aubrey McClendon, contributed $625,000.

During the last two election cycles, Americans United distributed $ 1.3 million, of which Ward and McClendon contributed $ 1.1 million. The group opposes same-sex marriage, which it insists "cheapens" the institution.

Neither Ward nor McClendon is the managing partner within the ownership group; that is Clayton Bennett, who apparently has not made such contributions. The Seattle Post-Intelligencer picked up the story here.

This new controversy raises a number of interesting issues.

First, there is the connection to Tim Hardaway's comments and the NBA's reaction to them. Should the league take similar action against these Sonics owners? As a private entity, the league could sanction anyone involved with it, without running afoul of the First Amendment. But I would be uncomfortable if the league began controlling what groups and ideas players, owners, and other league members can promote outside of their basketball roles. And Hardaway was dismissed from performing an official function in which he was speaking and acting on the NBA's behalf. Certainly the league has greater control over that than over what an active player says apart from his basketball functions.

But this leads to a second issue. If leagues are going to police what players, owners, and others say, do they need to be consistent? Is what Hardaway said that much worse than what Ward and McClendon are (through their financial support) advocating, such that you can punish Hardaway but not Ward and McClendon? Substantively, there is no difference between saying "I hate gay people" and "I want the law to deny gay people the same basic rights that I (and others like me) have." The former reflects an angrier, more emotional idea than the former. But both are anti-gay-rights points of view. In my view, both are fully protected expression and neither should be the basis for league-imposed punishment. But we too often get caught up in the way things are said, punishing an offensive way of saying something, while ignoring statements that express ideas that are just as troubling when they are stated in a softer way. I am not sure you can justify punishing one and not the other (although again, my preference is that you punish neither).

Third is the issue of how the controversy will affect the Sonics' efforts to secure $ 300 million in state and local funding for a new arena. Can legislators take into account the politics of some of the owners in deciding whether to approve this funding? On one hand, an instinctive notion is that government should not decide whether to award benefits on how a recipient exercises his First Amendment rights. Although doing so in this context would not, strictly speaking, violate any one's First Amendment rights, there is something troubling about public officials voting some way because of the recipient's unrelated political viewpoints.

On the other hand, they may not be so unrelated. The Sonics are asking for (nee, demanding) a substantial amount of public funds towards an arena that the team insists is essential for the team to survive and thrive financially. It also argues that building the arena (and thus keeping the team in Seattle, rather than relocating to Oklahoma City) brings economic, social, and cultural benefits to the community (putting to one side the overwhelming consensus among economists that no economic benefits exist). But the arena also benefits the Sonics owners, Ward and McClendon among them--they have to spend $ 300 million less of their own money to gain this necessary asset; plus the arena almost certainly comes with a highly favorable lease that allows the team (i.e., the owners) to keep much of the arena-derived revenue (naming rights, seat licenses, parking, concessions, etc.).

Now, could a conscientious state or local legislator decide not to vote for a project that puts more money in the hands of two individuals who likely will use some of that money to advocate public policy positions that are anathema to the great majority of her constituents? I think the answer is yes.

Monday, February 26, 2007
New Sports Law Scholarship

New this week:
Michael J. Jurek, Note, Janitor or savior: the role of Congress in professional boxing reform, 67 OHIO STATE LAW JOURNAL 1187 (2006)

Shane Mecham, The house that consensus built: consensus building in stadium construction, 38 URBAN LAWYER 1087 (2006)

Friday, February 23, 2007
Chad Cordero: Wins Arbitration But Losses Autonomy?

Attorney Bryan Stroh (a former law school classmate whose practice includes sports law and who was also a pretty darn good baseball player at Princeton), passes along this link from on Washington Nationals' closer Chad Cordero being pressured by his agent and the MLBPA into turning down a two-year guaranteed deal (said to be worth between $7 million and $8 million) from the Nationals. According to Cordero, both the MLBPA and his agent, Larry Reynolds, thought he would win his arbitration case, and that he would be making a big mistake by signing the two-year offer. They appear correct, as Cordero won his case, securing a $4.15 million contract for 2007; if the 24-year-old Cordero--one of the best young closers in baseball--has another terrific season, he would be poised to make even more in 2008.

But even though he won his arbitration case, Cordero doesn't feel good about being pressured into not signing the two-year contract offer:
"I don't know why I didn't sign [the two-year deal]," Cordero said. "I wanted to. The Players Association thought I had a good case and they wanted see how it turned out. Even if I lost my arbitration case, I wasn't going to lose. It's still a lot of money. It's still more money than I ever would have thought [I'd make]."
Assuming this media report of Cordero's feelings is accurate, what does it say about the role of the agent and the players' association? I understand that the players' association has a collective interest in trying to maximize salary averages for each position, and that Cordero's contract affects future contracts of other closers, but who is looking out for Cordero? He is, after-all, a member of the MLBPA; should he be dissuaded from his instinct, or was the MLBPA correct in taking a more guiding approach?

And what about his agent? On one hand, he probably gave his client advice that will enable him to make more money--perhaps a lot more money--but on the other hand, his client doesn't seem to feel too good about what happened. Rick has written extensively on this topic (e.g., his post Players Union Needs to Fix the Agent Business and law review article Solving Problems in the Player Representation Business: Unions Should be the Exclusive Representatives of the Players), and I would be interested in hearing his thoughts.

This topic also brings to mind that many players perceive significant value in non-monetary terms, such as getting to play in a particular part of the country or with a certain group of teammates. Sometimes players are moved by those non-monetary terms in ways that they don't fully appreciate (a subject which I examine in my article: It's Not About the Money: The Role of Preferences, Cognitive Biases, and Heuristics Among Professional Athletes, 71 Brooklyn Law Review 1459 (2006)), but sometimes they genuinely prefer to not go through a contentious salary arbitration process. Along those lines, even though we live in an American culture of "every last dollar" mattering, clearly not every American embraces that creed. And maybe Chad Cordero is one such dissenter.

Could a Gay NBA Player Sue for Hostile Work Environment?

A couple of days ago, Henry Abbot of True Hoop asked me to assume, for the sake of argument, that a handful of NBA players were gay and that many NBA players were anti-gay, and then examine whether the NBA, its teams, and/or executives could be vulnerable to a hostile work environment lawsuit. I opined that such a claim would be hard to prove based on what we know, and I explain why on True Hoop.

Also be sure to check out Howard's related posts on Sports Law Blog from earlier this week (2/21; 2/17).

Update on The Relevance of Title VII and Personal Jurisdiction: My good friend Paul Secunda, who blogs on Workplace Prof Blog and who is a labor and employment law professor at the University of Mississippi School of Law, e-mails me an important point that makes this type of claim even less likely: since sexual orientation is not a prohibited classification under Title VII, a gay NBA player bringing such a claim would very likely have to be employed by a team that plays its home games in one of the states or municipalities where sexual orientation discrimination is recognized--and since most states and municipalities do not recognize it, many NBA players could not bring a claim. But I asked Paul whether a player who does not play for such a team could make a personal jurisdiction argument based on the premise that all NBA teams--which are all part of joint venture called the NBA--avail themselves of the forums they travel to by playing games there, meaning a team traveling to the state of Washington (where sexual orientation is recognized) to play the Supersonics avails itself of that forum, but he does not believe that such an argument would work:
I think the answer would be the same as when you have a business traveler who spend much of the time on the road. You can engage in harassment or discrimination on the road, but the law that would apply to such situations is where the employer is located.
Thanks to Paul for this comment.

Equal Pay at Wimbledon: But Should Women Make More Than Men?

Paul Secunda over at Workplace Prof Blog discusses the world's most prestigious tennis tournament, Wimbledon, bowing to public pressure and agreeing to pay women players as much as the men. Wimbledon had been the last of the four Grand Slam Tournaments to pay men and women players unequally. Last year, the men's winner pocketed $1,170,000 while the women's winner received $1,127,000.

Gary Clark over at Sports Frog goes a step further and writes that women's tennis should have more lucrative prizes than men's since women's tennis--which still has volleys and long rallies--has become much more enjoyable to watch than men's. Many tennis observers agree that the men's game has become boring to watch with too many serves impossible to return; to some, the days of John McEnroe, Jimmy Connors, Mats Wilander, Stefan Edberg, and many others gracefully battling it out seem like a completely different sport than today's extreme power game.

Thursday, February 22, 2007
One Step Forward - Two Steps Back

In a blog post three weeks ago, I asked the question whether progress on the minority NFL head coach hiring front had been realized. Now three weeks later, the answer to that question appears to be “probably not.” With the hiring of Norv Turner a few days ago by the San Diego Chargers, and the recent hiring of Wade Phillips by the Dallas Cowboys, we have two white coach retreads, who are both two time losers. Both Phillips and Turner have been hired as head coaches again after literally failing in previous stints as head coaches. Turner has posted a career won-loss record of 58 wins and 82 losses in head coaching stints with the Washington D.C. professional football club and the Oakland Raiders (overseeing winning seasons in only three of nine seasons as head coach). Phillips has posted a pedestrian career won-loss record of 48 wins and 39 losses in head coaching stints with the Buffalo Bills and the Denver Broncos (as well as an interim stretch with the Atlanta Falcons). That each man has been hired as a head coach once again, for a third time, is truly confounding.

Both the San Diego Chargers and the Dallas Cowboys followed the Rooney Rule, described in this space several weeks ago. Dallas interviewed at least three minority candidates, while the Chargers interviewed at least two. Mike Singletary and Ron Rivera, in fact, have been interviewed by a number of NFL franchises in the past two years, but have yet to land a top job. Why are twice fired, often times losing white coaches being recycled into virtual “winning” situations while prolific minority assistant coaches are being passed over (many would agree that the San Diego job is the best one in the NFL, while the Dallas job has the look of a sure winner)?

The hiring of Mike Tomlin by the Pittsburgh Steelers, with the Steelers one year removed from a Super Bowl title, appears to be one of the only times an African American head coach has been hired to coach a team poised to win, rather than being hired to resurrect a moribund franchise (see Tony Dungy in Tampa Bay, Marvin Lewis in Cincinnati, Romeo Crennel in Cleveland, Dennis Green in Arizona, Lovie Smith in Chicago, etc.). While Dennis Green, Ray Rhodes and Tony Dungy have been recycled (hired a second time) after being fired previously, both Green and Dungy had winning and exemplary records with the teams by which they were fired (Rhodes was 29-34-1 with the Eagles). It strains reality to imagine that an African American head coach with a 58-82 won loss record (exactly the same as Norv Turner) would ever be hired again as a head coach in the National Football League.

Still, the NFL clubs are owned by wealthy white males. They will continue to hire retread candidates and pray that one will turn into the “recycled” Bill Belichick who was run out of town after mostly failing for several seasons with the Cleveland Browns. Will the Rooney Rule be enough to break this outdated reality?

Wednesday, February 21, 2007
Sport and the Meaning of Homosexuality

A commenter with the handle ChapelHeel makes an interesting point to the post about the reactions to John Amechi coming out. ChapelHeel tries to distinguish Tim Hardaway's anti-homosexual comments from Shavlik Randolph's statement that he was OK as long as Amechi (or anyone else) does not "bring your gayness of me."

ChapelHeel says, in part, as follows:

There are lots of people in America who are fine with gay people living a gay lifestyle, but do not want to be personally involved. Call it a middle ground of acceptance.

Let's assume Randolph is Jewish (based on his first name), and let's also assume he is heterosexual. Now suppose he said he was fine with Christians "as long as you don't bring you Christianity on me." Would we be upset? I doubt it.

So why do we get upset if we substitute "gayness" for Christianity when Randolph is heterosexual? Because it is the hot topic of the day.

I don't find his comment unenlightened. It is not as accepting as it could be, but it isn't non-acceptance. It is non-participation; and that's different.

This raises important issues about sexual orientation and the significance of having gay and straight professional athletes co-exist. And it also gets into some issues about the role of religion and sports, something I have been thinking about a great deal.

In the original post, I criticized Randolph's comment as incoherent because I really do not know what he meant by "bring your gayness on me." What is he talking about? As for suggesting it was unenlightened: I used that word not because Randolph's comment was antipathetic towards homosexuals; I was not using it in the political sense of intolerant towards gay people. In fact, if more people took the attitude of "gay people can do what they want and it does not affect me," we would all be better off.

But I think Randolph's statement is unenlightened in a different sense: Any meaning we can ascribe to it reflects a fundamental misunderstanding of sexuality and sexual orientation. As I see it, he could have meant any of three things.

Possibility # 1: Do not make me gay by being around me--as if it were catching. I think most of us can agree that sexual orientation is not akin to a communicable disease that can be passed around the locker room--that being around someone who is gay can "make you gay."

Possibility # 2: Do not try to make me gay by converting me to your homosexual lifestyle. This one gets a bit closer to ChapelHeel's religion comparison. The problem is that sexual orientation is not a choice; it is a genetically hardwired predisposition as to who or what one is sexually attracted. So the idea that Amechi might "convert" Randolph misunderstands this fact about sexual orientation. True, this point is subject to some scientific, social, and religious controversy about the ability to "cure" homosexuality. And the anti-rights movement speaks of a homosexual agenda involving "recruiting" of new members, especially children. But I think the weight of science is on my side on this one.

Possibility # 3: Do not hit on me; I am not gay and am not interested in having sex with you so don't approach me. I call this the "Get Over Yourself" Problem: Do not assume that, just because the man standing next to you is gay, he wants to have sex with you; you aren't that good-looking. Just like we would not (or at least should not) assume that the heterosexual woman standing next to us wants to have sex. (Although the rules of sexual attraction are quite different with professional athletes, but that was the subject of Michael's post). If this is what Randolph meant, it is a bit presumptuous--and again reflects a misunderstanding of sexual orientation and what it means to be attracted to particular people.

Any of these three meanings is troubling in my view, for what it shows about Randolph's misunderstanding of homosexuality and sexual orientation.

But I do find this part of the issue interesting. While all the controversy has surrounded Hardaway's openly antipathetic comments, little attention has been paid to Randolph. But in many ways the worldview reflected in Randolph's comments is more troubling than the worldview reflected in Hardaway's. Randolph presents ideas that are fundamentally wrong about sexuality and sexual orientation, ideas that, if widely accepted, hold back the ability of openly gay athletes to exist and function in professional sport. But the ideas are presented in such benign, quasi-tolerant terms ("As long as I don't have to be involved, I'm OK with you doing what you want") that the danger of the underlying ideas gets buried. He is seen as being "accepting," as opposed to troublingly uninformed. At some level, rabid bigotry ("I hate gays") is easier to confront and less harmful.

Also, I take issue with ChapelHeel's suggestion that if a Jewish athlete (and my quick check says Randolph is not Jewish. And trust me: We are so starved for Jewish sports stars that we keep a very close watch on these things) requested that a Christian teammate "not bring his Christianity on me" we would not be upset. Actually, there would be an uproar from the Christian Right and the people on Fox News like you would not believe. The controversy over prayer at football games is precisely because non-Christian athletes and fans seek to avoid the bringing of Christianity on them--how is that working out? This is a separate and intriguing subject that I would like to discuss more in the future.

Finally, a personal note to ChapelHeel. Judging by the handle, I am guessing you are a UNC fan. I commend the fact that you declined to trash, and in fact defended well, a Dukie. That is enlightened.

Tuesday, February 20, 2007
Tuesday Sports Law Panel at Western Michigan University

On Tuesday, February 27 (next Tuesday), Rick, Bob McCormick (MSU Law) and I will be doing a panel on Sports Law for the undergraduate pre-law society at Western Michigan University. The event will be from 6:30-7:30 in Bernhard Center, Room 209 (PLEASE NOTE: UPDATED LOCATION), and we are planning to address the general topic of amateruism, pay, and unionization in college sports. Anyone in the Kalamazoo neighborhood, please feel free to attend since the event is open to the public.

Dice-K, Beer, and the Feds

A follow-up to Michael's post about Red Sox pitcher Daisuke Matsuzaka taking a sip of beer in a Japanese-language television ad running only in Japan. Michael focused more on the ethics of the ad and of the close ties between professional sports and alcohol. He suggests (as I believe to be the case) the the prohibition on depicting someone drinking alcohol on television is a voluntary network regulation, not a requirement from the FCC or the FTC or other federal regulatory agency.

Well, maybe not . . .

Ilya Somin of the Volokh Conspiracy discusses here the fact that the Alcohol Tobacco Tax and Trade Bureau ("ATTB") might be contemplating future punitive action against Dice-K because the ad violates its regulations prohibiting ads depicting athletes consuming (or about to consume) alcohol prior to or during competition or suggesting that drinking alcohol enhances health or athletic prowess.

Ilya quite rightly slams this as "inane overregulation." Putting to one side any First Amendment concerns (either under current doctrine or what the doctrine ought to be): The ad is not running in the United States or in a language that most people in the United States speak or understand. The federal government, not content with telling U.S. citizens what images they can see, now want to tell the people of Japan what images they can see.

Prediction: Any penalty imposed (and it remains a Big IF whether the ATTB will actually do anything) will be reversed because such extra-territorial application of U.S. law is disfavored.

Monday, February 19, 2007
Sports and the Rule of Law

At DorfOnLaw, there is an interesting post-and-comment exchange, started by Neil Buchanan, on how rules are applied in various sports. Neil's focus is the way the NBA openly and even proudly applies rules differently for superstar players. No other sport does this, at least not as openly. For example, I feel pretty certain that the strike zone is different for certain batters or certain pitchers, but MLB strongly denies this.

Interesting stuff. And it suggests that Chief Justice Roberts's argument that a judge should be nothing more than an umpire, perfectly clear and objective, applying clear rules precisely as written, is unworkable. Because, in reality, that is not what an umpire does.

Sports Law Prof to be New Baltimore Law Dean

Following on the news that Tulane's Gary Roberts will be assuming the deanship at IUPUI this summer, I pass on the bittersweet news that my colleague, and former UT Law dean Phil Closius, has been appointed the next dean at the University of Baltimore Law School. Phil was a great dean (after all, he hired me), and a great colleague, and Baltimore is lucky to get him. Baltimore is a school with a strong sports law history: former professor William Weston (former associate dean at Florida Coastal and now associate dean of Concord) founded the Association for Representatives of Athletes and Professor Dionne Koller teaches sports law there now. Phil is a former registered NFL player agent, officer of the AALS Section on Law and Sports, and has written a number of significant scholarly works on sports law (among other topics), including:
Hell Hath No Fury Like a Fan Scorned: State Regulation of Sports Agents, 31 UNIVERSITY OF TOLEDO LAW REVIEW 511 (1999)

Involuntary Nonservitude: The Current Judicial Enforcement of Employee Covenants Not to Compete--A Proposal for Reform, 57 SOUTHERN CALIFORNIA LAW REVIEW 531 (1984) (with Henry M. Schaffer)

Not at the Behest of Nonlabor Groups: A Revised Prognosis for a Maturing Sports Industry, 24 BOSTON COLLEGE LAW REVIEW 341 (1983)
Congrats to Phil & to Baltimore!

I Want to Be Like Mike, Except in Bankruptcy Court

Last week, the U.S. Bankruptcy court overseeing the bankruptcy of Worldcom, Inc., dealt a blow to Michael Jordan in his effort to collect on unpaid endorsement fees, concluding that Jordan had failed to take mitigation efforts after Worldcom went under. See In re Worldcom, Inc., 2007 WL 446735 (Bkrtcy. S.D.N.Y., Feb 13, 2007).

Jordan had signed on as spokesman for MCI, then Worldcom, endorsing products like the pictured 10-minute phone card:
In addition to a $5 million signing bonus, the Agreement provided an annual base compensation of $2 million for Jordan. . . . The Agreement provided that Jordan was to make himself available for four days, not to exceed four hours per day, during each contract year to produce television commercials and print advertising and for promotional appearances. The parties agreed that the advertising and promotional materials would be submitted to Jordan for his approval, which could not be unreasonably withheld, fourteen days prior to their release to the general public. From 1995 to 2000, Jordan appeared in several television commercials and a large number of print ads for MCI.
After Worldcom filed for bankruptcy in 2002, Jordan eventually sought payments of "$8 million--seeking $2 million for each of the payments that were due in June of 2002, 2003, 2004, and 2005."

The case itself turns on a number of bankruptcy law issues, such as whether Jordan was an employee or an independent contractor (the court ruled the latter) or whether Jordan had no obligation to mitigate his damages as a "lost volume seller."

The interesting part of the opinion is the court's discussion of Jordan's failure to mitigate his damages by seeking additional endorsements to cover the period after Worldcom went under. According to the court,
Jordan's agent, David Falk . . . , testified that "there might have been twenty more companies that in theory might have wanted to sign him" but that Jordan and his representatives wanted to avoid diluting his image.
Jordan's financial and business manager, Curtis Polk, admitted that
Jordan did not return to the endorsement marketplace to try and replace the revenue he was to be paid under the Agreement. . . . Polk explained that Jordan did not wish to expand his "pitchman efforts with new relationships" because of his primary goal of becoming the owner of an NBA team.
Jordan argued that his pursuit of NBA ownership relieved him of an obligation to mitigate damages by seeking other endorsement opportunities. The court didn't buy it:
In short, the argument that Jordan acted reasonably by focusing solely on his efforts to become an NBA team owner is a red herring. It may have been reasonable for Jordan to focus on becoming an NBA team owner in the scope of Jordan's overall future desires but that does not mean it can support a determination that he was relieved of his obligation to mitigate damages in response to MCI's rejection of the Agreement.

Furthermore, Jordan did not have to pursue any endorsement, such as one that would be beneath a celebrity of Jordan's stature, e .g., endorsing a product likely to be distasteful to Jordan or his fans. Jordan had the duty to take reasonable efforts to mitigate, such as by seeking another endorsement for an established, reputable company for compensation near to what he received from MCI. MCI has established that there is no genuine issue as to whether Jordan made reasonable efforts to do so. The Court finds that as a matter of law Jordan has failed to mitigate damages.

Tom Brady to Father Child Out-Of-Wedlock: What Does It Mean?

Before I discuss today's news about New England Patriots quarterback Tom Brady, I thought it would be helpful to first examine legal and sociological trends relating to the subject du jour: out-of-wedlock children.

Since the 1970s, out-of-wedlock births in the United States have soared, as about 37% of all American children are now born without married parents, in contrast to less than 10% in the 1960s and less 5% in the 1950s. There are many possible explanations for this increase, such as change in attitudes toward sexual behavior, less social pressure to get married, fewer legal constraints to divorce, and other theories carefully studied in George A. Akerlof & Janet L. Yellen's "An Analysis of Out-Of-Wedlock Births in the United States" (Brookings Institution) and more ideologically, though nonetheless thoughtfully studied in Patrick F. Fagan's "Where is the Love?" (National Review).

Thankfully, every state has passed laws to ensure that these children enjoy the same legal protections as other children. For instance, Chapter 209c of the Massachusetts General Laws commands that "Children born to parents who are not married to each other shall be entitled to the same rights and protections of the law as all other children." Moreover, the social stigma attached to a child born out-of-wedlock has dissipated considerably in modern times.

Celebrities and entertainers--perhaps only because we notice their lives--seem to display a particular penchant for having children out-of-wedlock. We all followed the birth of Suri Cruise to her (at the time) unwed parents, Katie Holmes and Tom Cruise. Less famously, but still notably, award-winning actress Patricia Arquette of the show Medium has two children out-of-wedlock, as does actor/musician/freerider Kevin Federline. And of course, the nation is closely following the legal battles over which of three men could be the father to the late Anna Nicole Smith's baby girl, Danielynn.

Professional athletes and their out-of-wedlock children have also received public notice. Indeed, reports persist that many NBA players have fathered children out-of-wedlock. Consider, for instance, former NBA player Shawn Kemp, who is said to have fathered at least seven kids out-of-wedlock. Or consider Larry Bird, who was otherwise adored by Bostonians but received some critique for not having a relationship with a daughter he fathered out-of-wedlock. Similar stories have been said of MLB, NFL, and NHL players, some of whom have been sued for failing to pay child support.

So it probably shouldn't come as a surprise to learn that another pro athlete, this time Tom Brady, is going to father a child out-of-wedlock. The mother of his child is actress Bridget Moynahan, whom Brady broke up with two months ago, right before Christmas. Brady is now said to be dating supermodel Gisele Bundchen. He will certainly have the financial wherewithal to pay child-support, and unless there is question as to whether he is the father (and there is no indication of that), then this story will not attract legal attention.

But still, one might say that there is a glaring--if entirely predictable--disconnect between how the New England Patriots, and in particular their "brilliant" head coach Bill Belichick and "All-American" quarterback Tom Brady, are revered for their on-field exploits and how their personal lives do not seem nearly as laudable. We've talked about Belichick's alleged extra-marital affair with a New York Giants secretary, and now we see Brady set to father a child with a woman he recently dumped. That only brings to mind Charles Barkley's famous line, "I am not a role model." And it's a powerful reminder that no matter how graceful and inspiring they appear on-the-field, pro sports personalities are just regular folks, with the same vices, flaws, and other defects that all people have, expect, possibly, greater capacity and temptation to act on them.

Saturday, February 17, 2007
Being John Amechi, but not being Tim Hardaway

I have waited a couple of days to blog about John Amechi's new book in which he announces that he is gay (the first active or retired NBA player to come out). Or about the nuclear explosion in the wake of former All-Star Tim Hardaway's statements on a Miami radio program this week:

"You know, I hate gay people, so I let it be known. I don't like gay people and I don't like to be around gay people. I am homophobic. I don't like it. It shouldn't be in the world or in the United States."

It only has gotten worse for Hardaway as his recent attempts at damage control have included apologies, non-apologies, and the statement that he would disown a gay family member. The NBA dismissed Hardaway from his official role in All-Star Weekend events. It remains to be seen what becomes of his broadcast job.

I do not have a coherent picture to paint of this incident, other than to store it as another example of how free expression plays out in sport. For now, though, some totally random thoughts:

First, Hardaway's comments took the spotlight off the previous leader in the "What Were They Thinking When They Said That?" Competition: the Sixers' Shavlik Randolph, who said, when asked about Amechi's revelations, that he was fine with it "as long as you don’t bring your gayness on me." This one is funny, just because I have no idea what it means. I am not sure if Randolph meant: a) Don't have your sexual orientation rub off on me, like a cold or b) Don't hit on me. Either way, nothing like a couple years as a student at Duke to give someone a nuanced, enlightened understanding of the world.

Second, I cannot tell what impact Amechi coming out will have. It should drive home the point that there are gay professional athletes out there. And it makes some sense that the first player to come out is not a superstar, but a journeyman who has less to lose by bringing the political issue to the fore.

Third, this incident is a good barometer of where American society and sport (as its own insular society) is on this issue and how far we have to go. On one hand, the initial (pre-Hardaway) positive reaction to the revelation by current and former players suggests a level of acceptance that, perhaps, is higher than we might have expected. Maybe professional team sport is ready for an openly gay athlete--as opposed to the closeted gay athletes who, statistically speaking, are already in the locker room.

On the other hand, Hardaway's comments--blunt, abrasive, and offensive though they may be--may be an accurate reflection of the majority view among NBA players. Men's sports, especially men's team sports, remain (along with the military) the last bastion of high-testosterone, hierarchical, male-bonding machismo, with which homosexuality is (perceived to be) incompatible. I get the sense (with no real empirical or evidentiary support, just a feeling) that women's sports is a little more accepting of lesbian athletes and coaches (the controversy at Penn State notwithstanding). Actually, society in general is more accepting of lesbians than gay men. The point is, maybe we are not as far along as we would like to think.

Fourth, Hardaway actually deserves some credit for his honesty. I believe he holds those beliefs about homosexuality deeply and sincerely (although I do not know their source). And again, I believe many athletes hold similar (if less sharply stated) beliefs. But I am convinced there is a benefit to hateful thoughts being brought to the surface, to knowing who holds those ideas and to being able to respond to them (as the NBA and much of the media has done). I also may be unique in actually preferring that Hardaway not apologize, that he stick to his beliefs (and let me know what they are) and bear the consequences of those beliefs. (As a side note, I have said the same thing about those who express hateful views, and then try to half-apologize in the wake of an angry response, about groups of which I am a member).

Fifth, I do feel bad for Hardaway that his world is falling down around him, because (listening to the radio interview) it sounds like he did not quite know what he was walking into. I am not suggesting that he was ambushed or that he is being treated unfairly. Only that he seems not to have given much thought to the real-world consequences of his statements. There may be something to a column that ESPN's Jeff Pearlman wrote several months ago, suggesting that we ought not look to athletes for political ideas, because many (not all, but many) live in a highly insulated world.

It is hard not to think of Al Campanis, whose long career as a scout and executive for the Dodgers (the team that lead the way in integrating baseball) ended abruptly in 1987 with some ignorant and incoherent (but far less hate-filled) comments about African-Americans lacking the "necessities" to be managers and general managers.

On the other hand, Campanis did kick-start the conversation that has lead, too slowly I admit, to improvements in the number of minorities in management and executive positions. Maybe this controversy will, in the end, advance the cause of gay athletes.

Friday, February 16, 2007
New Sports Law Scholarship

Lots of good stuff this week, thanks in large part to our friends at Marquette and Tulane:
Danette R. Davis, The myth & mystery of personal seat licenses and season tickets: licenses or more?, 51 ST. LOUIS UNIVERSITY LAW JOURNAL 241 (2006)

Ian Dobson, The wrong gameplan: why the Minnesota Vikings’ failure to understand Minnesota’s value dooms their proposal for a new stadium and how the team can improve its future chances, 33 WILLIAM MITCHELL LAW REVIEW 485 (2006)

Cristen F. Hartzog, Note, The “public use” of private sports stadiums: Kelo hits a homerun for private developers, 9 VANDERBILT JOURNAL OF ENTERTAINMENT & TECHNOLOY LAW 145 (2006)

Michael J. Cramer and James M. Swiatko, Jr., Did Major League Baseball balk? Why didn’t MLB bargain to impasse and impose stricter testing for performance enhancing substances?, 17 MARQUETTE SPORTS LAW REVIEW 29 (2006)

Casey Shilts, Kate Jett & Brett Lashbrook, Major League internationals with Minor-League titles: let them in. Let them play. 17 MARQUETTE SPORTS LAW REVIEW 69 (2006)

J. Gordon Hylton, The Major League Baseball Players Association and the ownership of sports statistics: the untold story of round one, 17 MARQUETTE SPORTS LAW REVIEW 87 (2006)

Robert H. Lattinville & Robert A. Boland, Coaching in the National Football League: a market survey and legal review, 17 MARQUETTE SPORTS LAW REVIEW 109 (2006)

Martin J. Greenberg, Termination of college coaching contracts: when does adequate cause to terminate exist and who determines its existence? 17 MARQUETTE SPORTS LAW REVIEW 197 (2006)

Timothy Davis, Avila v. Citrus Community College District: shaping the contours of immunity and primary assumption of the risk, 17 MARQUETTE SPORTS LAW REVIEW 259 (2006)

Patricia A. Cervenka, Free shoes for primary and secondary schools: playing by the rules of Title IX, 17 MARQUETTE SPORTS LAW REVIEW 285 (2006)

Janis K. Doleschal, Managing risk in interscholastic athletic programs: 14 legal duties of care, 17 MARQUETTE SPORTS LAW REVIEW 295 (2006)

Anne M. Wall, Intellectual property protection in China: enforcing trademark rights, 17 MARQUETTE SPORTS LAW REVIEW 341 (2006)

Lindsay M. Potrafke, Comment, Checking up on student-athletes: a NCAA regulation requiring criminal background checks, 17 MARQUETTE SPORTS LAW REVIEW 427 (2006)

James M. Swiatko, Jr., Index: Sports Law in Law Reviews and Journals, 17 MARQUETTE SPORTS LAW REVIEW 451 (2006)

Nikki Dryden, For power and glory: state-sponsored doping and athletes’ human rights, 13 SPORTS LAWYERS JOURNAL 1 (2006)

Sean M. Hanlon, Athletic scholarships as unconscionable contracts of adhesion: has the NCAA fouled out?, 13 SPORTS LAWYERS JOURNAL 41 (2006)

Robin M. Preussel, Successful challenge, ruling reversed: why the Office of Civil Rights’ survey proposal may be well-intentioned but misguided, 13 SPORTS LAWYERS JOURNAL 79 (2006)

Jay T. Cohen, Comment, I’ll trade you Scott Podsednik for Alex Rodriguez: fantasy trademark and copyright protection, 13 SPORTS LAWYERS JOURNAL 133 (2006)

Michael Levinson, A sure bet: why New Jersey would benefit from legalized sports wagering, 13 SPORTS LAWYERS JOURNAL 143 (2006)

Anders Etgen Reitz, The NHL lockout: the trickle-down effect on European hockey, 13 SPORTS LAWYERS JOURNAL 179 (2006)

Jeffrey Hoffmeyer, Note, Fourth down and an appeal: the nonstatutory exemption to antitrust law, 13 SPORTS LAWYERS JOURNAL 193 (2006)

Antoinette Vacca, Boxing: why it should be down for the count, 13 SPORTS LAWYERS JOURNAL 207 (2006)

Bram A. Maravent, Is the Rooney Rule affirmative action? Analyzing the NFL’s mandate to its clubs regarding coaching and front office hires, 13 SPORTS LAWYERS JOURNAL 233 (2006)

Jenni Spies, “Only orphans should be allowed to play Little League”: how parents are ruining organized youth sports for their children and what can be done about it, 13 SPORTS LAWYERS JOURNAL 275 (2006)

Tulane Moot Court Mardi Gras Invitational, Problem and Winning Brief, 13 SPORTS LAWYERS JOURNAL 291 (2006)

The Peculiarities of Beer Advertising and Major League Baseball

A new commercial in Japan for Asashi Beer--Japan's highest selling "biru" or beer--features Red Sox pitcher Daisuke Matsuzaka chugging down a cold Asashi. The ad also features Matsuzaka in his Red Sox uniform. You can watch the ad here:

The ad has drawn some attention since Major League Baseball does not allow its players to endorse alcohol domestically, although that rule does not apply to international markets. (also, and not relevant to this post: the ad would not be allowed in the U.S. because industry actors voluntary refrain from televised images of persons consuming alcohol). The basic thinking behind MLB's domestic ban is that beer is a potentially dangerous product and MLB doesn't want its players to promote it--particularly because young persons watching beer ads are more likely to drink, and MLB doesn't want to exacerbate the problem.

Fair enough. But if MLB is so worried about beer ads, why does it allow beer companies to advertise their products during games? Beer companies, in fact, love to air commercials during sporting events--and these ads have been found to expose children to dangerous behaviors. Consider the following findings from the December 2006 issue of the Journal of the American Academy of Pediatrics and from Bradley S. Greenberg and Sarah F. Rosaen in their article Television and Young People: Violence, Sex, Booze, and Greed, 2005 Michigan State Law Review 857 (2005)
Alcohol manufacturers spend $5.7 billion/year on advertising and promotion. Young people typically view 2000 beer and wine commercials annually, with most of the ads concentrated in sports programming. During prime time, only 1 alcohol ad appears every 4 hours; yet, in sports programming, the frequency increases to 2.4 ads per hour. Research has found that adolescent drinkers are more likely to have been exposed to alcohol advertising. Given that children begin making decisions about alcohol at an early age—probably during grade school—exposure to beer commercials represents a significant risk factor. Minority children may be at particular risk. ----Committee on Communications, Children, Adolescents, and Advertising, 118 Pediatrics 2563-2569 (2006)).

Alcohol ads appear about once every four hours during prime-time programming, 2.4 times per hour during sports programs, and about three times per hour for ads that are within sports programs, like billboards in a stadium. On popular teen and adult TV shows, alcohol is consumed in 71 percent of all programs and 65 percent of teen programs, but only 23 percent of the episodes associated alcohol with negative consequences. These depictions are of interest because modeling occurs more often when behaviors are unpunished, according to social learning theory.

Heavy exposure to alcohol advertising leads to the view that drinkers possess the positive qualities displayed-such as being attractive, having positive attitudes about drinking, drinking heavily and thinking that it is acceptable, and driving after drinking. In fact, the American Academy of Pediatrics found that 80 percent of young people think drinking is acceptable if there is a designated driver.
----Bradley S. Greenberg and Sarah F. Rosaen, Television and Young People: Violence, Sex, Booze, and Greed, 2005 Mich. St. L. Rev. 857 (2005).
Also, why do MLB and each individual team have official beer sponsors? And why can you buy beer mugs and glasses on And why do big league teams sell to beer companies the naming rights to certain seats, such as the Washington Nationals' Miller Lite Beer Pen? Heck, if beer is such a worry to MLB, why is it even sold at games?

Now, I recognize that there is a distinction between players affirmatively endorsing a product and the league licensing its name to be used in a product ad. I suppose one could argue that the former seems more "active" and a greater reflection of the league itself. But I'm not sure that distinction is so strong or even correct. After-all, why would those companies pay MLB lots of $$ if those licenses weren't valuable?

Along those lines, if MLB really wants to deter kids from getting hurt, why doesn't it prohibit smokeless tobacco?

Wednesday, February 14, 2007
Sports Litigation Panel with Alan Milstein and James Carroll

So you want to go into sports law, but don't want to become an agent? Well one avenue is to become a sports litigator or, more realistically, a litigator whose clients include sports persons or sports businesses/entities.

If that sounds interesting and if you are near Jackson, Mississippi, next Monday at Mississippi College School of Law we will have two of the most prominent sports litigators in the country give a talk on their work and getting into the sports litigation industry: Alan Milstein, who represented Maurice Clarett in Clarett v. NFL and two disabled jockeys in King v. Jockeys' Guild, and Jim Carroll, who represented Jerrell Powe in his legal efforts to play at Ole Miss. (See previous posts on Powe: Jerrell Powe Sacks the NCAA on 8/31/2006 & Jerrell Powe Drops Lawsuit Against Ole Miss on 9/17/2006).

Here are some details on the event and please do not hesitate to contact me with any questions if you would like to attend:

Sports Litigation Panel
A Discussion With Lead Attorneys from Maurice Clarett v. National Football League, Edwin King & Gary Donahue v. Jockeys' Guild, and Jerrell Powe's Litigation/Negotiation with Ole Miss and the NCAA

Hosted by the Mississippi College School of Law Sports and Entertainment Law Society.

: February 19, 2007, from 11:45 a.m. to 1:00 p.m, in the Student Conference Center of Mississippi College School of Law, 151 East Griffith Street, Jackson, MS (directions available here).

: Professor McCann will moderate a discussion with two nationally-recognized litigators, both of whom have litigated on behalf of athletes in recent cases that have changed sports law. Food will be served at this event.
Professor Michael McCann (Moderator). Assistant Professor of Law, Mississippi College School of Law; Chair-Elect, AALS Section on Sports and the Law; and Co-Founder, The Project on Law and Mind Sciences at Harvard Law School. Professor McCann holds an LL.M. from Harvard Law School, a J.D. from the University of Virginia School of Law, and a B.A. from Georgetown University. While a Visiting Scholar/Researcher at Harvard Law School, he worked for Alan Milstein in Clarett v. National Football League.

Alan Milstein. A partner at Sherman Silverstein Kohl Rose & Podolsky in Pennsauken, New Jersey, Mr. Milstein holds a J.D. from Temple University School of Law, M.A. from the University of Kansas, and B.A. from the University of Maryland. He litigated on behalf of Maurice Clarett in Clarett v. National Football League, a case involving a prominent college football player seeking early entry into the NFL. He also litigated on behalf of two jockeys in King v. Jockeys' Guild, a case involving disabled jockeys who were denied disability funds from their guild. He periodically represents other professional athletes in litigation.

James Carroll. A partner at Carroll, Warren & Parker in Jackson, Mississippi, Mr. Carroll holds a J.D. from the University of Mississippi School of Law and a B.A. from Millsaps College. He litigated and negotiated on behalf of Jerrell Powe, a prominent high school football player seeking to attend the University of Mississippi and play for their football team, but who ran into objections from the NCAA over academic eligibility.

Performance Enhancements in NASCAR

AP auto racing writer, Jenna Fryer, reports that NASCAR, in an effort to crack down on cheaters, made its strongest statement to date by suspending the crew chiefs for drivers Matt Kenseth, Kasey Kahne, Scott Riggs and Elliott Sadler and docked all four drivers points before the season-opening Daytona 500 ("Crew Chiefs Suspended for Daytona 500"). All four cars failed qualifying inspection. Two of the crew chiefs each received a 4-race suspension and a $50,000 fine, and the other two each received a 2-race suspension and a $25,000 fine. According to Fryer, "all four drivers will start the season with negative points - a move that most likely infuriated the teams, but sent a strong message that NASCAR will no longer tolerate rule-breakers." Another driver, Michael Waltrip, who had a car part seized and shipped back to North Carolina for further analysis, is also under investigation.

Here are some excerpts from the article:
But after three cars failed inspection during Sunday's qualifying session, NASCAR decided it had up the ante to deter teams from continuously pushing the envelope....Still, NASCAR stopped short of kicking the teams out of the race, a move many believe would be the ultimate punishment. "We're going to get tough with the competitors when they push the credibility of the sport," France said Tuesday during his state of the sport address.... Kenseth and Kahne had their qualifying times thrown out after inspectors discovered illegal holes in the wheel wells, which could have improved aerodynamics. Evernham maintained the holes had been covered with duct tape that apparently fell off before the Dodge was inspected. But Pemberton said NASCAR believed the tape had been cut. Riggs and Sadler's cars both had modifications that allowed air to leak out of the trunk area. It was discovered before qualifying and had not been announced by NASCAR before Tuesday. Waltrip, meanwhile, had a suspicious substance in the intake manifold of his Camry. The part was seized before qualifying, and the car was impounded after the session.
Reading the article, I couldn't help but draw some analogies to steroid usage. So I wonder what the future has in store for NASCAR? Fast forward ten years from now:
  • Congress calls upon NASCAR to inspect cars more frequently and impose stiffer penalties upon drivers. According to one congressman, "It's outrageous that NASCAR for years has failed to include nitroid on its list of banned parts. I can remember the days when Dale Earnhardt's only competitive advantage was a fresh can of Quaker State."

  • Despite the fact that Danika Patrick's car has never been inspected positively for nitroid usage, NASCAR fans begin to seriously question her success in recent years, especially her string of consecutive Nextel Cup titles. One sports writer notes that Patrick was never that successful in her early racing years and says that "she never exhibited those sudden bursts of acceleration at the finish line like she does today." However, Patrick insists that she has become a much more experienced driver on the track over time as a result of vigorous training and participation in many championship racing events. Patrick has lost many endorsement opportunities and it's questionable whether she will ever be inducted into the NASCAR Hall of Fame.

  • Two sports writers from Daytona Beach publish a book entitled, "A Race of Shadows," which includes anonymous individuals who assert that Jeff Gordon has been using nitroid in recent years despite the lack of any positive inspections. The speculation has become so great that reports have surfaced that the France family may not attend the race in which Gordon will surpass Richard Petty for the most wins.

  • Gordon testifies in front of a grand jury that he thought he was pouring fuel cleaner in his car, not nitroid. Thereafter, federal investigators raid the computers of Gordon's mechanics and in the process confiscate thousands of computer files on other drivers' cars. Congress imposes mandatory nitroid inspections, and the Supreme Court for the first time addresses the issue of whether a car is "an extension of oneself" for purposes of the Fourth Amendment.

Monday, February 12, 2007
New Sports Law Scholarship

New this week:
Diane Heckman, One Nation, Under God: freedom of religion in schools and extracurricular athletic events in the opening years of the new millennium, 28 WHITTIER LAW REVIEW 537 (2006)

Lindsay A. Oliver, NCAA: a lesson in cartel behavior and antitrust regulation, 8 TRANSACTIONS 7 (2006)

Should an honorable bonehead get to change his name to "Peyton Manning"?

Via Above-the-Law, the press reports that Chicago Bears fan Scott Wiese has filed papers to change his name to "Peyton Manning" after losing an unspecified Super Bowl bet:
Wiese, a die-hard fan of the Chicago Bears, signed a pledge in front of a crowd at a Decatur bar last Friday night that if the Bears lost Sunday's Super Bowl, he'd change his name to that of the man who led the Indianapolis Colts to victory.

Final Score: Colts 29, Bears 17.

So on Tuesday, Wiese went to the Macon County Courts Facility and started the process of changing his name.

"I made the bet, and now I've got to keep it," said the 26-year-old, who lives in Forsyth, just north of Decatur.
From a legal perspective, I'm not sure he's bound to keep it (Contracts experts please chime in), but there's also the issue raised in some commentary of whether he's allowed to change it. Perhaps a certain Colts QB will have something to say about whether he's got a protectable property interest (right of publicity) in his good name. Illinois law (see 735 ILCS 5/21-101) provides:
If any person who is a resident of this State and has resided in this State for 6 months desires to change his or her name and to assume another name by which to be afterwards called and known, the person may file a petition in the circuit court of the county wherein he or she resides praying for that relief. If it appears to the court that the conditions hereinafter mentioned have been complied with and that there is no reason why the prayer should not be granted, the court, by an order to be entered of record, may direct and provide that the name of that person be changed in accordance with the prayer in the petition. . . .[A]ny person convicted of a felony in this State or any other state who has not been pardoned may not file a petition for a name change until 10 years have passed since completion and discharge from his or her sentence. A person who has been convicted of identity theft, aggravated identity theft, felony or misdemeanor criminal sexual abuse when the victim of the offense at the time of its commission is under 18 years of age, felony or misdemeanor sexual exploitation of a child, felony or misdemeanor indecent solicitation of a child, or felony or misdemeanor indecent solicitation of an adult, or any other offense for which a person is required to register under the Sex Offender Registration Act in this State or any other state who has not been pardoned shall not be permitted to file a petition for a name change in the courts of Illinois. . . .
No word on whether Mr. Manning nee Wiese has a felony record (although if he's the same Scott Wiese that participated in this this U-Wisconsin science fair, that seems unlikely)...

Sunday, February 11, 2007
Pound for Pound and Non-Analytic Positives

The latest chapter in the Dick Pound saga unfolded quietly on Friday. Back in 2005, Lance Armstrong filed a complaint with the International Olympic Committee ("IOC") Ethics Commission after Pound, the head of the World Anti-Doping Agency, had publicly stated that there was "a very high probability" that Armstrong had used EPO during the 1999 Tour de France. On Friday, the IOC endorsed the commission’s finding that Pound’s remarks "could have been regarded as likely to impugn the probity" of Armstrong and were inconsistent with the IOC’s goals of "a spirit of friendship, solidarity, and fair play." The commission also recommended that Pound be "remind[ed]...of the obligation to exercise greater prudence...when making public pronouncements that may affect the reputation of others."

Pound has often been criticized for publicly condemning athletes accused of doping violations prior to any formal findings of guilt. After Justin Gatlin and Floyd Landis (or, as Pound has called him, "Roid Floyd") each tested positive for abnormal levels of testosterone, Pound wrote a particularly inflammatory column in the Ottawa Citizen, stating:

We will have to wait for the United States Anti-Doping Agency (USADA) to organize an appeal process, since both are American athletes, before any formal sanction can be pronounced. Who knows, USADA may subscribe to a suggestion that both athletes, in separate sports, were ambushed by a roving squad of Nazi frogmen and injected against their will with the prohibited substances.

Pound is rarely shy when discussing drug use in sports. In any sport. Referring to Landis’ allegedly elevated testosterone level during the Tour de France: "You’d think he’d be violating every virgin within 100 miles. How does he even get on his bicycle?" About the entire sport of cycling: "Take cycling in 2006. If 2006 were to be measured in the Chinese cycle, it would be the year of the Excrement." About the National Hockey League: "The NHL has reached a deal with their players that looks as though they found an early copy of the baseball policy on the floor somewhere." Pound then estimated that 1/3 of all NHL players used steroids, and when later asked for the basis of his estimate, explained: "It was pick a number....So it’s 20 percent. Twenty-five percent. Call me a liar."

Pound, and WADA itself, have come under attack for what the LA Times has described as "a closed, quasi-judicial system without American-style checks and balances. Anti-doping authorities act as prosecutors, judge and jury, enforcing rules that they have written, punishing violations based on sometimes questionable scientific tests that they develop and certify themselves, while barring virtually all outside appeals or challenges."

Yet, Pound continues to insist that WADA needs to "use every weapon" necessary to eliminate doping in sports– including the use of "non-analytic positives," or findings of violations based on circumstantial evidence rather than actual positive drug tests. (The general issues surrounding the use of non-analytic positives has been discussed in two law review articles--Richard H. McLaren, An overview of non-analytical positive & circumstantial evidence cases in sports, 16 MARQ. SPORTS L. REV. 193 (2006); and Cameron A. Myler, Resolution of doping disputes in Olympic sport: challenges presented by "non-analytical" cases, 40 NEW ENGLAND LAW REVIEW 747 (2005-2006)). Non-analytic positives have been accepted by the Court of Arbitration for Sport ("CAS"), causing Pound to remark: "Finally a stake has been driven through the heart of the preposterous argument that you have to have a doping infraction by producing an analytical positive doping test." While Pound’s use of the media continues to create controversy, his push for greater use of non-analytic positives might cause the greatest stir of all. It will be interesting to see, particularly in light of BALCO and Congress’ "renewed support" for George Mitchell’s steroid probe in baseball, if U.S. lawmakers make any attempt to pressure the leagues and players associations into adopting non-analytic positive standards in their drug testing policies.

Saturday, February 10, 2007
New Sports Law Scholarship

Jeffrey Dunlop, Comment, Taxing the international athlete: working toward free trade in the Americas through a multilateral tax treaty. 27 NORTHWESTERN JOURNAL INTERNATIONAL LAW & BUSINESS 227 (2006)

N. Jeremi Duru, Fielding a team for the fans: the societal consequences and Title VII implications of race-considered roster construction in professional sport, 84 WASHINGTON UNIVERSITY LAW REVIEW 375 (2006)

Sue Ann Mota, Title IX, the NCAA, and intercollegiate athletics, 33 JOURNAL OF COLLEGE & UNIVERSITY LAW 121 (2006)


Friday, February 09, 2007
Virginia Sports and Entertainment Law Journal Symposium

Scott Dorfman of Virginia Law Weekly has an excellent recap of last week's sports and entertainment law symposium hosted by the Virginia Sports and Entertainment Law Journal and Virginia Continuing Legal Education. A number of Sports Law Blog readers were there, but for those of you who missed it, the recap does a nice job highlighting what was an outstanding event--in terms of substance, attendance, organization, really everything. For more on the symposium, check out this previous posting on our blog.

Update: In that same Virginia Law Weekly, I noticed that a columnist named Jerry Parker has an important column entitled "Why I Hate Peyton Manning." Check it out.

Thursday, February 08, 2007
Accountability, Independence, and Finality (or Duke, Clemson, and Pine Tar)

Some of the comments to the post about O.J. Mayo have drifted to the issue of leagues and athletic associations scrutinizing game officials for their calls. I have discussed my concerns that having leagues looking over officials' shoulders makes the latter unable to do their jobs. On the other hand, some performance review is necessary to make sure officials are doing their jobs well and properly. This is the sports equivalent of the political debate between judicial accountability and judicial independence.

The line I suggest is that leagues and supervisors cannot interfere with the outcome of the game. There is a benefit, in sports as well as law, to finality of a result--once a game (or a case) has become final, bodies other than the court (i.e., game officials) should not interfere with that result. Even if we disagree with the result or with a decision or call by the official that lead to the result. This is, I think, especially true for discretionary decisions--did Mayo do something that warranted a technical foul for taunting?

Law generally agrees with this. Once a judicial decision becomes final (i.e., all layers of appeal and review have been exhausted), the legislature cannot undo or change that result or order the case done over. And leagues generally abide by this same notion.

We can see this from the ACC's response to last month's clock controversy in the Clemson-Duke men's basketball game. As you may recall, the game official delayed starting the clock on a play with 5 seconds left, giving Duke an extra 2+ seconds at the end of the game to get the ball up-court for a game-winning shot. There otherwise would not have been enough time to run the same play, meaning the game likely would have gone into overtime. (Via Deadspin here). The ACC admitted that an error was made, but in Deadspin's words, "after much careful consideration, have decided, 'fuck it.'"

Which was the entirely proper response. What else could they have done: Send everyone back to Cameron and pick up the game with the right amount left on the clock? Replay the entire game? Plus, there no doubt were many calls and non-calls throughout the game, some right and some wrong. Should all of them be up for review? And how can we tell which ones did or did not determine the outcome. Of course, this makes one wonder why the league bothered announcing that the officials had made a mistake, given that they could not do anything about the call with respect to the game.

Now, should the officials themselves be subject to some individual sanction or punishment (including termination) for making mistakes such as these, without affecting the game result? At some level, yes. The leagues have an interest in ensuring that officials are competent and doing a good job. So something clear--the ref forgot to start the clock--could be grounds for job action. But leagues must be careful in doing this, since officials need a certain degree of discretion -- was there enough contact on a given play that one player gained an advantage, warranting a foul? -- that is lost if they know they could be fired because the league disagrees with one or a few calls. Something more should be required before calls that the league disagrees with become the basis for suspending or firing an official. Plus, I think officials know when they have made a mistake like that--and presumably regret it and will try to make sure it does not happen again. A one-game suspension is not going to do much more.

The only time I can recall a game outcome changing because of a league finding of official error was the infamous Pine Tar Game between the Kansas City Royals and New York Yankees in 1984, which itself spawned some legal scholarship. But a couple things made that situation unique. First, we could point with absolute certainty to the effect on the outcome: if the call stands, that is the final out of the game. Second, it arguably was an example of the officials misunderstanding what the applicable rule required, as opposed to a decision of how to apply the rule in that situation. Third, baseball has a process for "playing games under protest" to the league, although never for purely discretionary decisions (safe/out or ball/strike or whether to eject a player).

And even then, the league's decision to order the game resumed from the point of the error (with the home run, and the Royals lead, reinstated) was not without controversy. It is certainly not something we want to see occur regularly in other sports.

Wednesday, February 07, 2007
NCAA Football Racial Hiring Woes

With a resounding win on Sunday night over the Chicago Bears, Tony Dungy, head coach of the Indianapolis Colts, and first African American to lead a team to a Super Bowl victory, has been widely credited with guiding his team through adversity to the promised land of World Champion. In the days following the Colt’s Super Bowl victory, Dungy has been referenced as “smart,” “classy,” a “defensive whiz,” “bright,” and “intelligent,” among so many other well deserved superlatives.

But when can we expect Dungy’s status to become "genius"? Like Bill Belichick genius? Or Bill Walsh genius? Or Mike Holmgren genius?; Or Bill Parcells genius? Or Mike Shanahan genius?; Or even Eric Mangini genius (after one season as a head coach now being widely referred to as “Mangenius”).

Do American sportswriters have difficulty calling an African American coach a genius? That superlative flies freely for successful white coaches. But how often do you hear Tony Dungy, Lovie Smith or Marvin Lewis in the same sentence as “genius.” Further, do Americans in general have trouble believing the genius that is apparent in so many people of color in everyday society?

Thankfully, Dungy has not been described as “articulate” or “clean” by any of the pundits covering the Super Bowl.

As Dungy was decisively winning Super Bowl XLI, Delaware Senator Joseph Biden stepped into a firestorm of criticism when he referred to presidential hopeful Barack Obama as “articulate” and “clean.” Biden, when asked about his potential presidential rival stated that Obama was “the first mainstream African-American who is articulate and bright and clean and a nice-looking guy.” America’s media jumped on Biden for perpetuating an age old stereotype that surprise should accompany a black man who is “articulate” or “clean.” “When whites use the word [articulate] in reference to blacks, it often carries a subtext of amazement, even bewilderment.” President George W. Bush just days later, also referred to Obama as “articulate.” Biden has been backtracking for days now. No word on whether Bush intends to backtrack.

Still, are Biden and Bush’s discriminatory comments symptomatic of a larger American problem that trickles all the way back to African American coaches? Biden and Bush’s use of “articulate” to describe Obama hearken back to former Dodgers’ GM Al Campanis who, when responding to a question as to why Major League Baseball did not have more black managers stated: “I don’t think it’s prejudice. I truly believe that [blacks] may not have some of the necessities to be, let’s say, a field manager or perhaps a general manager.”

While the Rooney Rule has arguably led to 20% of NFL head coaches being African American, what is the reason behind only six head coaches (out of 119 positions) in Division I NCAA football being African American (a dismal .05 % of all head coaches)? This “inexcusably low” number of minority head coaches in NCAA football cannot easily be explained away. Over 50% of all NCAA football players are African American. Black assistant coaching ranks have swelled in recent years. So, what is the source of this dismal reflection? Surely, it cannot be that current Athletic Directors' and University Presidents’ tack toward Campanis’s way of thinking? Do they simply not know who the capable black candidates are? Is the “good old boy” network perpetuating this whitewash of college football head coaching ranks?

D.L. Hughley, comedian and actor currently playing on NBC’s “Studio 60 on the Sunset Strip” captured this conundrum beautifully in the New York Times when he said (while referring to Biden's "articulate" comment): “Everyone was up in arms about Michael Richards using the N-word, but subtle words like this are more insidious. It’s like weight loss. The last few pounds are the hardest to get rid of. It’s the last vestiges of racism that are hard to get rid of.”

When will the NCAA assist its member institutions in ridding themselves of some of the "last vestiges of racism," particuarly on the football head coaching front?

Need they be reminded: Tony Dungy is a genius.