Sports Law Blog
All things legal relating
to the sports world...
Tuesday, May 16, 2017
 
Hope to see you at the 2017 Oregon Law Summer Sports Institute


Looking to study sports law this summer?

You might be interested to know that I’ll be teaching again this July at the University of Oregon’s annual Summer Sports Institute. This is a five-week, six-credit program that brings together faculty and experts from across the nation to teach in an immersive environment. The program is designed for students who are interested in sports law but attend law schools that don’t offer a meaningful regular-semester sports law program.

Like last summer, I’ll be joined by Matthew Mitten (Marquette), Gabe Feldman (Tulane), Jo Potuto (Nebraska), Andrew Brandt (Villanova), Maureen Weston (Pepperdine), and a host of others. Also, I’m told the program will feature around 20 outside speakers from as far away as Barcelona, including Ed Goines, the general counsel of the Seattle Seahawks, Paul Loving, US sports law counsel for Adidas, and Marcos Motta, the Brazilian lawyer who represents Neymar.

To apply, or if you have any questions, contact program director Robert Illig at rillig@uoregon.edu.

The final deadline is June 2nd. Former participants have raved to me about how much they’ve learned from the program and how much fun they had making connections with other like-minded students, faculty and practitioners. Hope to see you there!

Thursday, May 04, 2017
 
Sport and speech, part 766

Two news stories, submitted largely without comment:

1) The Boston Red Sox banned a fan from Fenway Park for life for using a racial slur in a conversation with another fan, describing the Kenyan woman who had sung the national anthem. The fan who heard the slur complained to an usher, the speaker was removed from the park, and on Wednesday the team announced the ban.* The Red Sox are private and there is not even a whiff of public funding surrounding Fenway Park, so the First Amendment is nowhere in play. But how is this not protected speech? It is not incitement. It is not fighting words, because an insult about someone else is not likely to induce the listener to punch the speaker in the face. There is no general "harassment" exception to the First Amendment, and even if there were, I am not sure it would apply for the same reason this is not fighting words.
[*] Separate question: How do they enforce the ban? Tickets do not have names on them and we do not have to show ID to enter a ballpark. Will his picture be posted at every entrance? And will ticket-takers have the time or patience to look when 35,000 are streaming through the turnstiles?
2) LSU ordered its student-athletes to abide by certain guidelines when participating in any protests of the decision not to bring civil rights charges against the police officers involved in the shooting of Alton Sterling. Among the guidelines (although phrased as a request) is that they not where LSU gear or branding while engaging in these activities. To its credit, the Athletic Department expressed its "respect and support" for the players' right to speak. They just want to control what the athletes wear--itself a form of expression--when they speak.

Wednesday, May 03, 2017
 
Infield fly rule is not in effect and it produces a triple play

The Baltimore Orioles turned a triple play against the Boston Red Sox Tuesday night (video in link) on an unintentionally uncaught fly ball into shallow left field. With first-and-second/none-out, the batter hit a fly ball into shallow left. O's shortstop J.J. Hardy moved onto the grass and signaled that he had the ball, then had it carry a few feet behind him. But the umpire never called infield fly, so Hardy threw to second baseman Jonathan Schoop, who tagged the runner standing near second, then stepped on second to force the runner on first, then threw to first to get the batter, who stopped running. According to the article linked above, the Orioles turned an identical triple play in 2000, where the shortstop intentionally did not catch the fly ball, as opposed to this one, where it seems Hardy misjudged the ball.

On one hand, this play shows why we have the Infield Fly Rule--without it, shortstops would intentionally do this constantly and double plays would multiply. Had the baserunners tried to advance when the ball landed, they would have been thrown out, given how shallow the ball was and how quickly Hardy recovered it.

At the same, it shows a problem with the Rule--everything depends on the umpire invoking. And failing to invoke may create its own problems. Here, the Sox players all assumed the Rule had been invoked, so the baserunners retreated to their current bases and the batter, assuming he was out on the call, stopped running to first.  It is a close question whether infield fly should have been called on this play. Hardy misjudged the ball, so he was not actually "settled comfortably underneath it." But he acted as if he was and umpires ordinarily use the fielder as their guide. Plus, in watching every infield-fly call for six seasons, I have seen it invoked on numerous similar balls that carried just over the the head or away from the settled fielder. At the very least, this was a play on which the umpire could not determine whether to invoke until the end of the play, because it was not clear the ball was not playable until it carried over Hardy's head at the last instant. And that hung the runners up, because once the non-call was clear, it was too late for them.

So I must consider a new issue that I had not considered before, at least in these terms: There needs to be a bias in favor of invoking the rule in uncertain or close cases. The presumptive move for the baserunners in a close case is to retreat and wait, as the Sox runners did here. But retreating leads to the double play on the close case, because the runners will not be able to reach the next bases when the ball lands. I have discussed this in terms of false positives and false negatives. But this goes further--there may almost be a presumption of infield fly, so the rule should not be invoked except the obvious cases in which no double play would be possible.

Of course, my interlocutor on the Rule, Judge Andrew Guilford of the Central district of Florida, would say this is just proof that we should dump the rule, let the players figure it out for themselves, and not have everyone standing around looking confused while four guys in blue jackets confer.