Thursday, March 31, 2005

Extreme Sports and Assumption of Risk

Ted at Overlawyered points out a case arising out of Hawaii, where a newlywed disappeared while kayaking, and her husband filed a lawsuit against the rental company, Extreme Sports Hawaii. The husband claimed that the couples were caught in strong winds and were taken out to sea, where a shark attacked and killed his wife. Many questioned the claim, though, as her life jacket was found, unbuckled and with no rips or tears, there was no damage to the kayak, and both oars were found on shore (one propped up against the rocks). (Song & Kubota, "'Unusual': No blood on kayak", Honolulu Star-Bulletin, 03/26/99). In short, this seemed more like human error while engaging in a somewhat dangerous sport.

Even still, the husband filed suit against the rental company. (He also filed suit against the Coast Guard under the Federal Tort Claims Act for negligence in attempting to rescue her, but that case was dismissed.) Ted asks a good question: Does "anything remains of the doctrine of 'assumption of the risk' if a company called Extreme Sports Hawaii' can't invoke it without going through a trial and an appeal?"

Sadly, little does remain of the doctrine of assumption of risk. In some states, it has been abolished altogether, or it has merged with a system of comparative negligence. This prevents defendants from using assumption of risk as a complete defense and moving for summary judgment. Thus, more and more of these defendants are forced to bear the expense of litigating a trial and putting their financial fate in the hands of a jury.

In this case, the jury did find the company to be not negligent ("Company not guilty in Maui kayak death", Honolulu Star-Bulletin, 05/09/2003), most likely based on the company's statement that it warned the couple not to paddle beyond a certain area and the many factual inconsistencies in the husband's story. The only reason the case got before a jury was because there was an issue of material fact: whether or not the company warned the couple of the small craft wind advisory that was in effect that day. This distinguishes the case from an earlier Hawaii case, Wheelock v. Sport Kites, 839 F.Supp 730 (D.Haw. 1993), where a signed liability release agreement was held valid as to negligence claims. In this case, the plaintiffs most likely argued that the failure to warn would be gross negligence, rather than negligence, and thus summary judgment was not appropriate.

I think that is probably the correct result. I certainly do not want to see extreme sports companies (or any sport provider) faced with a rash of lawsuits for simply providing the survive that the customer wants. However, in cases where there is a factual dispute about the nature of the warning, and whether it was complete given a unique weather situation, perhaps the question should go to the jury. What the legal system must ensure, though, is that this limitation on summary judgment is not extended any further, as this would greatly increase the potential legal costs for sports providers and potentially jeopardize the recreational sports industry.

Wednesday, March 30, 2005

Supreme Court Broadens the Scope of Title IX

Those that were concerned about the reach of Title IX in the wake of last week's Policy Clarification (here, here, here) can rejoice today. The Supreme Court held today, with Justice O'Connor writing, that Title IX not only protects girls and women who might be victims of discrimination, but also those who seek to enforce its guarantee of equal treatment. In Jackson v. Birmingham BOE, the Court ruled that a male high school basketball coach that was fired for complaining about the lack of funding for his women's team should be able to bring a lawsuit under Title IX.

The decision seemed to come down to one fundamental question: How should statutes be read? The majority believes that statutes should be read broadly, taking into consideration the context in which they were passed and the believed policy goal of Congress. The dissent, on the other hand, takes the position that these factors are subservient to the actual language of the statute, which the Court must follow as the only indicator of Congressional intent. Which of these positions you agree with also determines whether you will agree with the decision in Jackson.

Title IX states that, "No person in the United States shall, on the basis of sex, be...subjected to discrimination under any education program or activity receiving Federal financial assistance..." (20 USC s.1681). The majority opinion states that Title IX has always been "construed broadly" to prohibit intentional discrimination based on gender and that the retaliation Jackson claims to have been subject to is clearly a form of intentional discrimination. The Court also found it important that the statute was passed three years after the decision in Sullivan v. Little Hunting Park, which implied a right of action for retaliation in a different anti-discrimination statute (42 USC s.1982). Perhaps most importantly, the Court held that Title IX applies to Jackson, a male coach.
    The statute is broadly worded; it does not require that the victim of the retaliation must also be the victim of the discrimination that is the subject of the original complaint. * * * Where the retaliation occurs because the complainant speaks out about sex discrimination, the "on the basis of sex" requirement is satisfied. The complainant is himself a victim of discriminatory retaliation, regardless of whether he was the subject of the original complaint.
For the Court, this broad construction of Title IX is the only way to ensure the policy goals of the statute, to prevent gender discrimination, are protected.

The dissent takes a very different view and sees the majority as ignoring the law in order to reach a desired result. In the eyes of the dissenting Justices, providing a right of action for retaliation is the role of Congress, and Congress must "speak unambiguously" to subject recipients of federal funds to potential liability. Using numerous examples, the dissent claims that Congress has not done so in this case. The opinion argues that retaliation is not discrimination "on the basis of sex." Jackson suffered no discrimination; he was fired for complaining about potential discrimination. For the dissenting Justices, this is too far removed from the purposes of Title IX to allow such a claim without specific Congressional authorization. The fact that the word "retaliation" does not even appear in Title IX, when Congress has specifically authorized such claims in other statutes, indicates a desire to exclude it. For the dissent, allowing such a claim creates a "prophylactic enforcement mechanism" that Title IX does not support.

The most interesting part of these opinions is how they largely ignore administrative remedies (i.e., taking away part of the school's funding). Although discussed at length in the oral argument (see transcript here), the Court seems to indicate that the only plausible enforcement mechanism is private lawsuits. This potentially can be justified because of the largely individual nature of retaliation, but it nevertheless is alarming to those who are concerned about the proliferation of litigation. For statutes that deal with federal funding, administrative remedies need to serve as an efficient deterrent or else plaintiff's attorneys will dictate the anti-discrimination policies of our country. If the current administrative remedies are too draconian, or conversely, too weak, then they should be re-examined so as to remain a plausible alternative, or even substitute for, private litigation.

The full opinion can be found here.
For the briefs and other links about the case, click here.

Tuesday, March 29, 2005

Supreme Court Decision on Title IX

The Supreme Court ruled today in Jackson v. City of Birmingham that a teacher who is disciplined after complaining about gender discrimination can bring a retaliation claim under Title IX. The decision was 5-4, with Justice O'Connor writing the majority opinion.

I will have more on this landmark case later in the day.

Greek Duo Cleared of Drug Charges

In another bizarre twist to a bizarre story, the two Greek athletes that skipped town on the eve of the Olympic Games, presumably to avoid a drug test, have now been cleared of any wrongdoing by the Greek Athletics Federation, an independent tribunal.
    [The two athletes] had been charged with avoiding drug tests in Tel Aviv, Chicago and Athens and failing to notify anti-doping officials of their whereabouts before the Olympics.

    They withdrew from the Olympics after missing a drugs test at the Olympic Village on 12 August. The pair then spent four days in a hospital, claiming they had been injured in a motorcycle crash.

    It was the International Olympic Committee's demand that the IAAF investigate the affair that led to the hearing of the Greek tribunal.

    The head of that tribunal, Kostas Panagopoulos, said it had not been proven that the athletes refused to take the test in Athens.
The international track and field governing body (IAAF) has the option of contesting the decision at the Court of Arbitration of Sport.

Monday, March 28, 2005

The Next Generation of Baseball Cheating?

The results of Congress's hearings into steroid use in baseball continue to grow. Baseball has re-worked its new drug enforcement policy so that it now mandates suspension. Barry Bonds, besieged by both questions and injuries, may not play this season. Mark McGwire, once considered a lock as a first-ballot Hall of Famer, is now facing critics who say he does not belong there at all.

But steroids may not be the worst form of cheating that baseball will see. As Wired Magazine discusses, innovations in medicine and technology may produce a new form of advantage that baseball, and other professional sports, will need to regulate:
    Let's say you're a big-league pitcher, blessed with a good but not great arm. You've played several seasons in the majors, yet you've never managed to hold down a steady place in a starting rotation, mainly because you can't get quite enough velocity on the ball. You work with different pitching coaches and sports psychologists. You try new exercise and diet regimens. Ultimately, you decide that your innate talents aren't going to take you to the all-star level you've always dreamed of. You need a little help.

    So you find a surgeon willing to drill a series of small holes in the humerus and ulna bones at your elbow, slice open your wrist and remove a tendon from it, and then weave the tendon in a ­figure eight loop through the holes. After a year or so of rehab, you're throwing a 97-mph fastball for the first time in your life, and your career is transformed.


    To date, pitchers have opted for the surgery only after suffering ligament damage, but elective-enhancement surgery in baseball is inevitable - and it will show up in lots of other professional sports, too.
The article points out the first of these surgeries that have become common: laser eye surgery that corrects vision to better than 20/20. Should this type of "enhancement," and others that will come later, be prohibited by professional sports? Legally, can it be? The real question may not be these surgeries, but perhaps the next generation of enhancements that now can only be considered science fiction. Sports most likely will have to draw a line somewhere, but where and how will be questions that puzzle scientists, lawyers and sports fans for years to come.

Thanks to TJ Graham for the link to the article.

Playing Pepper: Fast and Furious Headlines

A California jury has ordered former NFL linebacker Bill Romanowski to pay ex-teammate Marcus Williams $340,000 for a punch delivered during practice that ended Williams's career.

Mickey Mantle's widow has sued (scroll down) a maker of baseball bats, claiming the company made a limited edition bat bearing the ex-Yankee's name and likeness without her permission. The suit alleges trademark violations and asks for $75,000.

A man in Arkansas was arrested for drunken cycling (the actual charge was for public intoxication). No word on whether his Schwinn will be taken away.

Finally, bad news for the pseudo-monopoly Clear Channel. A federal jury has assessed damages of $90 million against the company, finding that it engaged in unfair practices against a small Chicago promoter in a battle over holding Supercross motorcycle races. From the story: "Some analysts suggested that the case would invite closer scrutiny of the company's conduct, and potentially more litigation from competitors." Clear Channel plans to appeal the ruling.

Sunday, March 27, 2005

Jets Sue Madison Square Garden

"The New York Jets have sued the owner of Madison Square Garden, claiming it holds a monopoly over major events. The lawsuit claims Cablevision Systems Corp. – the Garden's owner and an opponent of a proposed stadium for the Jets in Manhattan – took steps to exclude any competition, resulting in fewer choices and higher ticket prices for New York fans. It also claims Cablevision has spent millions of dollars on a 'false and misleading disinformation campaign' against the stadium and denied the Jets a chance to 'set the record straight' for New Yorkers by denying them a chance to buy ads on their cable systems."
    Read more here.

    Saturday, March 26, 2005

    ESPN Accused of Wrongfully Terminating Pregnant Broadcaster

    Luz Ramos, formerly a commentator on ESPN Deportes, has filed a wrongful termination suit against ESPN, claiming that the network let her go because she was pregnant. Ramos asserts that she consistently received positive reviews up until she became visibly pregnant, after which she received negative reviews, ultimately prompting ESPN to decline her contract renewal. Her claim is under Title VII, and she seeks reinstatement to her job and damages. ESPN disputes the claim, noting how SportsCenter personality Chris McKendry worked throughout her recent pregnancy while staying on the air.

    State High Court Reinstates $94M Award for Deaths at Miller Park

    The Wisconsin Supreme Court has reversed a state appellate court and reinstated a $94 million punitive damages award to the families of three men killed during the construction of Miller Park. The defendant in the case is Mitsubishi Heavy Industries, that built and provided the crane that collapsed in swirling winds, causing the men to fall to their deaths.

    The state appellate court ruled that the state legislature had intended to limit punitive damages to cases where a defendant acted with malice or intent to harm. The jury found neither with respect to Mitsubishi. The state high court disagreed with this interpretation, and quoting the statutory language, held that state law requires only a finding that the defendant "acted maliciously toward the plaintiff or in intentional disregard to the rights of the plaintiffs" (W.S.A. 895.85). The court held that a reasonable jury could have concluded that Mitsubishi acted with intentional disregard in this case.

    The supreme court did not address the issue of whether the damage award is excessive under state law. Chances are good that after the case goes back down to the lower court, it will be appealed on that question.

    The case is Wischer v. Mitsubishi Heavy Industries. The full opinion can be found here.

    Friday, March 25, 2005

    D-minus? That's Going on the Fridge!

    From Opinion Journal:
      Right now, students in Atchison County, Kan., need a C average in order to participate in extracurricular activities. As of next year, however, even a D-minus average will be good enough. A district school board in northeastern Kansas voted last week to lower its threshold after asserting that efforts to determine eligibility under the C rule were distracting teachers from their job of helping pupils learn.
    I'm sorry -- distracting how? Are the distractions coming from coaches pressuring teachers to give their star athletes a C? This seems inexcusable to me. Students go to high school to learn, and if they are lucky, to participate in extracurricular activities. Lowering the bar like this is just another step towards a culture where children get whatever they want and never are told they are wrong. What a grave disservice this is to both America's youth and the future of society. Even the NCAA is implementing stricter academic requirements. High schools should follow suit and remind students that they must at least be average in the classroom (if not above-average) before they can worry about sports.

    Thursday, March 24, 2005

    Title IX: A Step Towards Less Regulation?

    The mainstream media has gotten word of the Title IX story and has begun writing on it. Juan Non-Volokh has comments and Women's Hoops, which has a number of great links on the story, quotes from this USA Today article:
      Cary Groth, the athletics director at Nevada-Reno, was another of the 15 Title IX commissioners. She recounted a story from the commission hearings that she said was "staggering." The Illinois high school athletic association said it sent out surveys asking girls if they would be interested in playing volleyball. The surveys came back showing little or no interest in the sport. Lacking confidence in their own abilities, perhaps, and never having played the sport before, the girls by a resounding margin said, no, they didn't have any interest in volleyball.

      But the athletic association, seeking more opportunities for female athletes, took it upon itself nonetheless to start volleyball for high school girls in Illinois. And, wouldn't you know, volleyball became one of the state's most popular girls sports, with more than 300 high school teams in the state.

      "If they had judged by the survey," Groth said, "they would have thought there was no interest."
    At first blush, this evidence seems compelling. But it fails to take into account that it was a survey of high school students, not college students. I do not have any empirical evidence for this, but my own experience has shown that interest for most sports is developed during high school. Most sports are only offered on the high school level, and it is in high school that skills develop and athletes begin to come into their own. If a high school does not offer a sport, the chances are good that a student will not develop an interest.

    The same does not hold true for college. Most students have explored a range of athletic opportunities before coming to college. In addition, any student that has no previous interest or experience in a sport is not likely to be able to play that sport at the varsity level in college. Obviously, there may be exceptions, but the same dangers seen in the high school survey do not seem to arise in the university context.

    Now, one criticism that has been raised and seems more cogent is the question of the burden of proof. Under prong 3, the burden of proof has always been on the school to show "full" and "effective" accommodation. The online survey seems to be the red herring of the new policy interpretation. The real change is the shifting burden of proof. Under the new prong 3, a school using the model survey will be presumed to be in compliance with Title IX. The burden will then shift, to the federal government or to the students, to show by a preponderance of the evidence that a school is not in compliance.
      The presumption of compliance can only be overcome if OCR finds direct and very persuasive evidence of unmet interest sufficient to sustain a varsity team, such as the recent elimination of a viable team for the underrepresented sex or a recent, broad-based petition from an existing club team for elevation to varsity status.
    Reasonable minds can differ about the merits of this shifting of burden of proof. The administration seems to be saying that Title IX does not need to be as stringent as in the past, due to the incredible popularity of women's sports that is not likely to wain. Females make up nearly 60 percent of college students -- they will migrate to the schools that provide equal opportunities for women. On the other hand, women's rights groups will argue that progress has been made but equality has not been achieved. Weakening Title IX could reverse the progress that has already been made.

    Congress passed the anti-discrimination statutes with the hope that one day, they would no longer be needed and could be allowed to peacefully fade away. Barring intervention by the courts (which is highly unlikely), it will be at least three years until another party is in the White House and this new policy can be revisited. Thus, there will be ample time to evaluate the change and monitor the state of gender equality in this country, in athletic and non-athletic contexts. At the end of this three years, society can then determine if Title IX requires a re-strengthening, or perhaps, if the proper move is another step towards sunset.

    Plaintiff in NCAA Antitrust Suit Seeks Class Certification

    Last May, a former football player at the University of Washington filed a lawsuit against the NCAA, claiming that the association's rule limiting football teams to 85 scholarships per season was a restraint of trade in violation of antitrust laws. An earlier post contains my analysis of why his suit is destined to fail.

    Now, he has filed a motion for his lawsuit to be declared a class action. This is a key juncture in the suit: if the court denies class status, then it will probably not be economical for a single plaintiff to continue. The damage awards, if any, will simply be much smaller than the costs of litigation. This lawsuit seems to have a decent chance at class certification: the plaintiff's claims are typical of the class, the issue of law (violation of the Sherman Act) is common to all class members, there so many class members that individual suits and joinder would be impracticable and the plaintiff seems to be an adequate representative.

    However, courts often use the class certification stage to get rid of frivolous lawsuits. In addition, courts have always been more reluctant to certify nationwide classes. Thus, I would not be surprised to see class certification denied after the motion is argued in June.

    The case is Carroll v. NCAA, in the Western District of Washington. For those with Westlaw, the cite for the motion is 2005 WL 544116.

    Who Owns the NASCAR Trophy?

    Kurt Busch, right? After all, he won the 2004 Nextel Cup and took home the trophy. But no, the more pressing issue is who owns the copyright in the trophy: NASCAR, the Franklin Mint (whom NASCAR asked to design the trophy), or the independent contractor that actually completed the design?

    According to a federal district court, it is NASCAR. The contractor had claimed that since his work went into the drawing and that he had no written agreement granting the rights in his work to NASCAR, the stock-car racing association could not prevent him from asserting a copyright claim. The judge, disagreed, though, holding that (1) the contractor's agreement with the Franklin Mint constituted a written agreement and (2) that agreement extended to NASCAR because the contractor had knowledge of of the agreement between the Mint and NASCAR and that the Mint would assign the copyrights to NASCAR.

    The case, in the Eastern District of Pennsylvania, is NASCAR v. Scharle.

    Wednesday, March 23, 2005

    More on Title IX: Much Ado About Nothing?

    Today has brought some new criticisms of the Title IX clarification issued last week (see earlier post). Most notably, NCAA president Myles Brand has come out against the new regulations. In addition, the Feminist Majority and other women's rights groups have come out against the bill. The people at Inside Higher Education have excellent articles on the clarification and the debate.

    The focus of most criticisms, though, seems to be centered not on what the clarification actually does, but (1) how it was enacted and (2) problems that might arise in implementation. Brand and others have talked about the lack of debate and how the DOE quietly tried to "sneak" this in when no one was looking. I agree, this appears to be what happened. This was proposed two years ago in very public debates and while it could have passed over 2 dissenters, it would have created a hot political issue before the election. But it was still proposed and debated at the time, so the idea does have merit.

    In addition, many critics focus on how online surveys will not adequately gauge student interest. But are they that much worse than what has been used. As one article points out, this is not a very radical change.
      Schools have long been able to comply with the Title IX law by proving they have met the sports interests of women, but never before has the government endorsed and promoted a way to measure that.
    So the problem is that the government has provided a convenient way for schools to comply with the requirements? This seems unconvincing. This seems like a better way for the government to ensure that schools are actually in compliance and not just relying on "fake" procedures that purport to measure interest.

    Another criticism of the methodology is that it does not "encourage women to participate" or that "women and girls might not express interest and ability in particular sports if they have not had the chance to play them." This seems to be misguided for two reasons. One, college is not the first place women play sports. Young girls are now introduced to a variety of sports at a young age, sparking the interest that will be reflected on such a survey. And even if there is some sport that a female may have wanted to play, but her high school or childhood sports leagues did not offer it, and thus she did not know if she had an interest, this could apply equally to males. I fail to see how this discriminates against female athletes.

    Finally, the most misguided criticism, which I discussed yesterday, is that "no one answers email surveys." As I have said, if you have enough of an interest to play a varsity sport, you also should be able to answer and return a survey. The federal government should ensure that universities do not avoid high answer rates through conspiratorial procedures, but barring this, online surveys are the wave of the future.

    Thus, it seems like the new methodology should be given a chance to succeed. If schools cheat or if it does not work, it can always be changed. And as Baseball Crank argues, women's sports probably has enough momentum now to grow on its own. But most likely, this procedure will work, schools will comply and Title IX will continue to be as relevant as is needed.

    Boston Mayor to Red Sox: Thanks for Everything, Here's No Money

    You have to love the city of Boston. It had no trouble pouring billions of dollars (somewhere between 14 and 18) into the Big Dig, a disastrous tunneling project that will not greatly alleviate traffic congestion and that has already been shown to be full of leaks. But when it comes to supporting the worshiped Red Sox, the team that has pumped countless dollars into the city and the area around Fenway Park, the city says, "No thanks."

    Boston mayor Thomas Menino did not even wait for the team's owners to ask for money (they were not planning to do so just yet). He made it perfectly clear that the city is willing to benefit from the Sox staying in Fenway but is not really willing to contribute to the effort. If the team wants to spend its own money renovating the surrounding public streets and commercial areas, that is fine. But the city's money is all under water.

    This strikes me as the city taking advantage of benevolent owners. If the owners of professional sports teams have to threaten to leave town or move ballparks in order to secure public funding, then they will do just that. It would be nice to see the city offer to help share the costs to make improvements that will obviously result in shared benefits. I understand that the team's owners are wealthy and can afford to pay for much of these changes, but that does not mean the city should not pitch in.

    The area around Fenway is old and in many ways, run-down. The subway station serving the stadium is a joke, there is no parking to speak of, and the streets have more potholes than lane markers. Much of this is due to years of neglect by the city and poor decisions that have funneled money into other areas. It does not seem right to make the Red Sox solely responsible for fixing these mistakes. The city does not have to give billions, but a pledge of some funds to improve public transportation, parking, and street conditions (all of which will have benefits far beyond the Red Sox) would not seem to be too much to ask.

    Then again, perhaps the Red Sox should propose a tunnel to run under Fenway. The city would jump all over that.

    Tuesday, March 22, 2005

    Are Black NBA Coaches Fired Sooner Because of Their Race?

    David Leonhardt and Ford Fessenden have an intriguing piece in today’s New York Times concerning black coaches in the NBA. Their two core findings are as follows:

    Over the last decade, black N.B.A. coaches have lasted an average of just 1.6 seasons, compared with 2.4 seasons for white coaches. That means the typical white coach lasts almost 50 percent longer and has most of an extra season to prove himself.

    The pattern holds in almost any important category of coaches. Winning black coaches have been replaced sooner than winning white coaches on average, and experienced black coaches have served shorter tenures than experienced white coaches. The same is true among losing coaches, among rookie coaches and among coaches who played in the N.B.A. and those who did not.

    For these reasons, a number of black coaches are expressing frustration with what appears to be race-influenced decisions on the part of NBA general managers and owners. For instance, Paul Silas, who was fired yesterday by the Cleveland Cavaliers, finds that, "[o]ur white counterparts are given more the benefit of the doubt. Things have changed dramatically in our society, but it still has a long way to go."

    From a legal standpoint, these coaches have several options. For instance, they could file a complaint with the
    U.S. Equal Employment Opportunity Commission against the NBA and individual teams. Considering that NBA teams with similar records are indeed terminating black coaches sooner than white coaches, such a claim might warrant considerable attention, especially if the coaches could somehow demonstrate collusion among NBA owners and front offices. Also, as a group or individually, these coaches might consider wrongful-termination claims against NBA teams—and discharge due to race is certainly a cognizable claim that courts take very seriously.

    However, there would be a number of hurdles to any such legal action.

    First, there is the very practical: a coach who participates in such a claim might fear that he will never get another job in the NBA. That is, the prospect of being stigmatized as “one of those guys who sued the NBA” might be sufficiently deterring.

    There are substantive challenges as well. For instance, just because black coaches are fired sooner may not—by itself—reveal anything, unless there is a corresponding control for quality of teams, as well as stability of front offices and ownership groups. Another needed metric might be where the coach was previously employed. For instance, I suspect NBA coaches (black or white) who just rose from college coaching positions are fired sooner than are other coaches, but only because college coaches tend to take over inferior NBA teams.

    Another hurdle might be the significant number of “recycled” coaches (i.e., those who have been fired and then hired by another team) who are black. For instance, though Paul Silas has been fired four times, he has also been hired four times. Also consider Doc Rivers, head coach of the Atlantic Division-leading Boston Celtics. He was fired last year by the Orlando Magic, but months later was awarded a 4-year, $20 million contract by the Celtics—whose general manager, Danny Ainge, and Managing Partner, Wyc Grousbeck, are white. Lenny Wilkens has been fired several times, but always seems to reappear somewhere, every year. Bernie Bickerstaff was the head coach of some horrid Denver Nuggets teams, but after being fired by the Nuggets, the expansion Charlotte Bobcats (who are owned by Robert Johnson, who is black) made him not only their head coach, but their general manager as well. Recently fired Johnny Davis of the Orlando Magic had been head coach of the Philadelphia 76ers before. In other words, to the extent it is true that black coaches get the hook sooner than white coaches, they, like recycled white coaches, nevertheless seem to reappear later.

    Also meaningful might be how black coaches are treated relative to other groups. For instance, how are women coaches treated in the NBA? Well, there aren’t any. And for that reason, I wonder if women might have a better argument for discrimination. Pat Summitt—who is on the verge of
    breaking Dean Smith’s record for most Division I wins—has (to my knowledge) never had even a sniff of an NBA job. And as we discussed earlier this year, there is already considerable evidence that women coaches of men’s teams are treated poorly by management and ownership (see 1/30/05 post on Ashley McElhiney of the Nashville Rhythm of the American Basketball Association).

    I also wonder about other potential “trends” among all coaches. For instance, do American coaches get the gate sooner in the NHL than do Canadian coaches, or is it vice-versa? And how about overweight coaches, or short coaches, or old coaches? And are coaches from “laid back” west-coast backgrounds afforded fewer breaks than are intense guys from the northeast? Similarly, are MLB managers of Latino descent cut the same rope when their teams go bad as are white managers, or black managers? And in women’s basketball, are male and female coaches treated similarly by athletic directors? Lastly, if Rick Pitino and John Calipari had instead been named "Rick Smith" and "John Harrison", would they have been fired so quickly by the Celtics and Nets, respectively? Or were they actually cut more slack because of their Italian heritage?

    I have no idea how to answer to any of these questions.

    And that is really the point: there are so many interpretive characteristics evident in each coach that, absent proof beyond naked statistics, it is difficult to conclude there is racism (or sexism, or cultural discrimination). That’s not to say black coaches aren’t afforded fewer breaks than are white coaches, as the numbers revealed in the New York Times article are indeed troubling. Moreover, as noted in the article, black persons tend to be fired sooner in many professions, thus lending credibility to the idea that one's race may accelerate how quickly one is discharged. But, at the same time, drawing absolute assertions from NBA statistics has its own set of drawbacks, particularly given the scope of variables among NBA coaches, not the least of which includes quality of players’ coached and relative stability of ownership and management groups.

    File under: intriguing and alarming, but still more evidence needed.

    Update: For an engaging economic view of this topic, see Skip's post over at The Sports Economist

    Title IX Returns to a Three-Part Test

    In 1979, the federal government issued a policy statement intended to clarify how an educational institution could comply with Title IX in regard to athletics. Under the directive, which has been reaffirmed on two occasions in the intervening years, a school can show compliance with Title IX by:

      (1) having the percentages of male and female athletes substantially proportionate to the percentage of male and female students enrolled at the college;

      (2) having a history and continuing practice of expanding participation opportunities for the underrepresented sex (almost always women);

      (3) "fully and effectively" accommodating the interests and abilities of the underrepresented sex.
    In practice, however, the test has collapsed into a single prong, the first. Colleges and universities, afraid of the interpretations that courts might give the "mushier" and more subjective second and third prongs, have defaulted to the "substantial proportionality" test. This has led to a far stricter application of Title IX than was originally intended, which naturally, some groups applaud and other groups lament. (Scott Jaschik, "Changing the Rules," Inside Higher Ed., 3/22).

    Now this has all changed. In a letter sent last week to universities nationwide, the Department of Education sets out a method whereby schools can comply with the third prong, alleviating the de facto need to fall back on the 'substantial proportionality' prong. The policy clarification recommends the use of an online survey to gauge the interests of females on campus.

      When the Model Survey is properly administered to all full-time undergraduate students, or to all such students of the underrepresented sex, results that show insufficient interest to support an additional varsity team for the underrepresented sex will create a presumption of compliance with part three of the three-part test and the Title IX regulatory requirement to provide nondiscriminatory athletic participation opportunities. The presumption of compliance can only be overcome if OCR finds direct and very persuasive evidence of unmet interest sufficient to sustain a varsity team, such as the recent elimination of a viable team for the underrepresented sex or a recent, broad-based petition from an existing club team for elevation to varsity status. (emphasis added)
    Not surprisingly, a number of groups and people are not happy with this change. Already, the National Women's Law Center has issued a statement decrying the change and Ted at Women's Hoops correctly points out the politics behind the announcement. And as Eric at Off Wing points out, the story has not yet hit the MSM. Once it does, the criticisms will be loud and a debate may emerge about the purposes and successes of Title IX.

    I have two preliminary thoughts. The first is, bring on the debate about Title IX. I think it is time for a wholesale re-examination of the statute, its purpose and its application to athletics. I agree completely that women's athletics has not reached the level of men's athletics, but this seems to be much more a product of interest (from fans, not participants) than from lack of access. Girls and women now have incredible opportunities for athletic participation, beginning in grade school and continuing up through college. Perhaps Title IX does not need to be applied as strictly as it did in the 1980s and 90s.

    Second, the online survey appears to be completely in line with the 1979 Policy Interpretation. Many of the critics, I believe, will be upset because they like the fact that 'substantial proportionality' is the only current method of evaluation. But this is not what Title IX was supposed to do. In an attempt to achieve strict compliance, schools have been cutting men's sports and elevating women's sports to varsity status, regardless of the level of interest. Under the new policy, schools will be able to gauge student interest in athletics and act accordingly.

    Of course, the new methodology will not be perfect. No survey is. But I am not persuaded by the arguments made by the NWLC, who argued that no one opens and responds to email surveys. On the contrary, if students have enough of an interest to play a varsity sport, they should have enough interest to fill out a survey. At Duke, I knew a number of women who played softball, which is a non-varsity club sport. I guarantee that if an email survey had been distributed, these women would not only have filled it out, they would have mobilized all of their friends to do so as well. Sufficient interest (if not overstated interest) will come through on a survey.

    The key concern should not be the survey, but rather its implementation. Scheming universities should not be permitted to send out the email when it knows it will receive few responses (i.e., during exams or over vacations). In addition, adequate time must be allowed for students to respond. Finally, good records must be kept so that the government can make an independent evaluation if needed. However, if these procedural safeguards are ensured, the online survey seems to be an excellent mechanism for ensuring compliance with Title IX, not through strict numbers and quotas, but rather through the actual interests of the student body.

    Equality for all students, male and female, demands nothing less.

    UPDATE: You can read the latest on the Title IX development here.

    Red Sox to Stay in Fenway

    Ending years of political debate and speculation, the Red Sox have announced that the team will remain at Fenway Park in the near future, rather than try to build a new stadium. The team will assist in the revitalization of the area around Fenway, rather than trying to deal with a citizenry that, in the wake of the $14 billion Big Dig, is wary of any publicly-funded projects.

    Hopefully, the gentlemen at the Sports Economist can comment on another reason the team feels secure in Fenway: the park's small size. The lack of seats meant that last year the average capacity was 100.7%. This created an intense demand for seats, driving the average ticket price up to $42. The next highest average ticket price in baseball: around $25 (statistics from interview on NPR, 3/22). Thus, the Red Sox can remain competitive, despite having the smallest ballpark in baseball.

    Monday, March 21, 2005

    Group Sues Over Illinois Mascot

    A year just would not be complete without a debate over Native American Indian mascots. Last year, it was Iowa's ironic policy not to play teams with Native American nicknames (even though the University of Iowa's mascot, the Hawkeyes, is in fact a reference to Indian leader Chief Black Hawk). This year, a group has filed suit against the University of Illinois, claiming that its mascot, Chief Illiniwek, violates state laws protecting equal rights and preventing discrimination. The problems with the mascot are apparent, as a few vocal protests have caused the university to cut back on the appearances made by the student playing the Chief.

    But how big of a problem are Native American mascots? As I noted last fall, one study has shown that only nine percent of Native Americans in this country oppose such mascots, as opposed to 90 percent that do not find them offensive. From that earlier post:
      I agree that there should not be a tyranny of the majority in this country. That is why decisions like Brown v. Board and Loving v. Virginia were important; the courts stood up and said, "It does not matter what the majority says, this policy violates the constitution and norms of human decency." But it is important to note that the Supreme Court did not take this action when the split was 90/9. By the time the Court ruled, its decision went against the majority, but public opinion was split much more evenly.

      Adopting a rule based on such minimal opposition threatens creating a tyranny of the minority, where a small segment of the population dictates policy for the remainder of the country. There is another word for this: elitism. Anytime a small group tries to dictate policy on the basis that "it knows better," democracy is being subverted. The American Indian peoples suffered a great injustice at the hands of white settlers hundreds of years ago. But the majority of the group now seems to be saying: we have more important issues to address than the name of a sports team.

    Sports, Technology and Law: Do Leagues Own Statistics?

    The intersection of sports and technology has raised a number of legal issues. The first is: who owns player statistics? Now that fantasy sports has become a $1 billion a year industry, not surprisingly, the leagues are attempting to keep it to themselves. Major League Baseball, through its Advanced Media division, requires fantasy sports operators to obtain a license to use player statistics in their operations. Now, one such company, CDM Fantasy Sports, has sued for a declaratory injunction that the statistics can be used without MLB's permission.

    MLB's in-house counsel has not commented and a senior official, who appears to not know the law, said this:
      "Player statistics are in the public domain. We've never disputed that," Gallagher said. "But if you're going to use statistics in a game for profit, you need a license from us to do that. We own those statistics when they're used for commercial gain."
    This flies in the face of settled legal precedent. In 1997, the Second Circuit ruled in NBA v. Motorola that the NBA does not have a legal right to prevent another party from repeating facts learned from its broadcasts. Motorola charged for its service and provided updates in real-time. Last year, the Eleventh Circuit ruled in Morris Communications v. PGA Tour that selling compiled real-time golf scores does not raise a copyright issue. Under an antitrust analysis, the court ruled the scores are a product, which the PGA Tour has no right to control.

    Baseball's best argument is that even if the statistics themselves are not copyrightable, the method for compiling the statistics is. Baseball may draw support for this argument from Matthews Bender v. West Publishing, the case that held West's "star-pagination" system of publishing judicial opinions (which themselves, as a government publication, are not copyrightable) to be protected by copyright law. It is unclear what novel method baseball uses to compile its statistics, though, and courts may be very reluctant to extend the holding of West much beyond its facts.

    Thus, it seems to me that baseball will lose this claim. Statistics are facts, nothing more, and can be disseminated as freely as can news stories. It is unclear how extending copyright to statistics would not also impact newspapers, television stations and commercial websites that also report baseball statistics. Baseball's methods for "compiling" these statistics consists of the advanced mathematical functions of addition and averaging.

    Thus, while professional sports leagues can still control its trademarks, hopefully it will soon be shown that they cannot also control use of its players' statistics.

    "Students Use Sport to Hide Brains"

    From Australia:
      Young Australians are hiding their academic talents and feigning an interest in sport to avoid being ostracised by their peers, researchers have found.

      "If you're academically gifted and inept at sport, you are seen as a double nerd," said Miraca Gross, of the University of New South Wales. Since 1983 she has tracked 60 exceptionally gifted students and documented their study, work and social lives. Many such pupils sacrificed their school results to gain acceptance.
    Great, now there's a name for it.

    Can You Trust Us Now? Baseball Closes Steroid Loophole

    It seems that Congress (motto: If it won't win us votes, we're not interested) actually accomplished something in last Thursday's hearings. Baseball has closed the "unintentional" loophole in its steroid policy and now mandates a suspension following any positive test for banned performance-enhancing drugs. Undoubtedly, this is good for the game.

    I also join Mike in agreeing with Senator McCain: the collective bargaining processes of the league and players association will not result in the best testing policies. But does that mean Congress needed to get involved? Presumably, if sports fans are not happy with baseball and feel it is a sport of cheaters, they will stop spending money on the game, forcing a change. I am not convinced, though, that steroid use is an issue of national importance. If it were, wouldn't the NFL be a more natural target for a congressional inquiry? Baseball's steroid problem pales in comparison to that of professional (or collegiate) football. One need look no further to find a testing policy with loopholes.

    No, this was not about the ineffectiveness of the bargaining process. It makes for a nice soundbite, but at the end of the day, this was about Congress using baseball's antitrust exemption to induce celebrity testimony, and at the same time, getting publicity that will serve them well in the upcoming elections.

    Sunday, March 20, 2005

    Senator McCain: Major League Baseball "Can't Be Trusted" & Mark McGwire Needs a New Lawyer

    Earlier today, on ABC's "This Week", Senator John McCain (R-AZ) had some harsh words for both MLB and Mark McGwire's attorney:

    "It just seems to me they can't be trusted . . . [W]hat this highlighted was the absolute insensitivity of both the owners and the players to the American people . . . What do we need to do? It seems to me that we ought to seriously consider a law that says all professional sports have a minimum level of performance-enhancing drug testing."

    "The first thing Mark McGwire should do is get himself a new lawyer. I was saddened by what he had to say, and it's unfortunate, because he's one of America's heroes."

    I believe Senator McCain is correct (disclaimer: I was a volunteer on his presidential campaign back in 2000, but that has nothing to do with my opinion on this issue), in identifying the underlying flaw in allowing MLB and the MLBPA to collectively-bargain effective testing policies: they probably won't do it. And no matter how you look at this issue, it's really difficult to get beyond that.

    NCAA to Consider Banning Use of Athletes' Names, Likenesses in Video Games

    Under a proposed bylaw, institutions, conferences, and the NCAA would be prohibited from using the names or likenesses of individual student-athletes on retail products, including video games.

    From a technical standpoint, the bylaw wouldn't appear to change all that much in the video game industry. Currently, in basketball and football video games, college athletes appear at their appropriate positions, along with their appropriate jersey numbers, and their video game images play according to their unique strengths and weaknesses. Their names, however, are not included (for example, in ESPN College Hoops 2K5 for the Playstation 2 and XBox, this image shows how N.C. State's Julius Hodge appears in his correct jersey, #24, but without his name). Though the NCAA claims that it does not currently allow video game images to reflect the likenesses of individual players, I found the video game image and an actual image of Julius Hodge to appear strikingly similar. To further cast doubt on the NCAA's contention, video game players have the option of editing players, so that if one edits the player's name from "#24" to "Julius Hodge", not only will player's jersey now say "Hodge", but the announcer in the video game will start saying "Julius Hodge" rather than "#24." In other words, the idea that these images are not actual representations appears rather inconsistent with practical realities. Perhaps the proposed bylaw would preclude "back-doors" like player edits and player images that bear more than a passing resemblance to the real player.

    But that only begs the question: Who is really being harmed if Julius Hodge and his N.C. State teammates are represented the same way in video games that Emeka Okafor and his Charlotte Hornets' teammates are represented? Well, the NCAA, which receives over $500 million for each March Madness tournament along with significant revenue from the $1.7 billion collegiate merchandise sales market, claims, in Article 2.8 of its Constitution, to be "protecting [student-athletes] from exploitation by professional and commercial enterprises." See, that's why college players don't receive any of the revenue from the video games that depict them -- they are being "protected" from receiving that revenue.

    You wonder why some 18- and 19-year olds would rather go to the pros, where they opt out of such "protection."

    Friday, March 18, 2005

    More on the Legality of Tournament Pools

    Darren Rovell discusses how many executives in the sports business avoid participating in NCAA tournament pools.
      "Anyone involved in sports from the business side needs to be careful about office pools," said Tony Ponturo, vice president of global media and sports marketing for Anheuser-Busch. "In our office, the office pool is a fun thing to do for those who aren't closely attached to the sport. But for those of us who are very close, it could be more of an issue. For someone who is involved as close as I am with the NCAA, I don't do it. You know too much, you are involved too much and you want to stay separated from that."
    As I discussed in my first post, the NCAA aims to end all gambling on its games, despite the interest that the pools arguably generate. Thus, those in the sports industry could jeopardize business relationships with the NCAA by participating in such pools.

      Thursday, March 17, 2005

      More on the Steroid Hearings

      I did not get to see as much coverage of the congressional hearings as I would have liked. The combination of work to do and great basketball meant that I caught only bits and pieces. Thankfully, though, Mike has some great insights (below), as do John at Only Baseball Matters and David at Baseball Musings.

      From the parts that I saw, along with what I have read, it seems that the hearings accomplished very little. There apparently is no bill being proposed, and other than the congressmen involved getting some publicity, little benefit seems to have come of all of this. There is one big loser, though: Mark McGwire. Unlike Schilling, Palmeiro and Sosa, all who vehemently denied steroid use, McGwire refused to answer the questions, stating that he would not be believed if he answered "no" and would be vilified and possibly prosecuted if he answered "yes." Thus, he invoked his 5th Amendment rights, looking horribly uncomfortable in the process.

      If McGwire did this to avoid admission of steroid use, he may have bought himself some time, but the truth will emerge eventually. If he thought this would be a good way to fight the injustice of the hearings, it was a severe miscalculation on his part. Rightly or wrongly, this will be seen by many as an admission of drug use. The hit that McGwire's reputation took today could have longstanding implications. Baseball would love to have him as an ambassador for the game but that may not be possible now.

      And one question that has been running through my mind the past few days: where are the hearings over professional football? You want to talk about potential steroid use...

      You can read more about the hearings from ESPN, San Jose Mercury News, and the New York Times,

      You can view the MLB Drug Testing Policy here.

      And, for the history buffs, a story of how Congress has always been involved in baseball.

      Quick Thoughts on Today’s Steroids Hearings & Players

      First off, I didn’t see the first panel which apparently included gripping testimony from the parents of children who died due to use of steroids. I did, however, watch the baseball players’ panel, and below are my reactions to how the players did:

      Mark McGwire: May have been better off going to jail than showing up for this beating. He kept saying, “I’m retired. I’m not here to talk about the past. I’m here to bring a positive message for the future.” He refused to answer any questions pertaining to his playing days, including any questions about steroids or performance enhancers. In what I think may have been bad advice on the part of his lawyer/representative, McGwire also offered to be the chief spokesman for some kind of national anti-steroids campaign designed to tell kids that steroids are bad – to which Representative Patrick McHenry (R-NC) adroitly asked, “How do you know that steroids are so bad?” An awkward pause ensued, and McGwire looked a deer in the headlight and could say nothing. To McGwire’s luck, however, Chairman Tom Davis (R-VA) interrupted by saying that McGwire didn’t have to answer that question, but the damage was already done: How can McGwire be the chief spokesman for something that he can’t talk about? It’s absurd. Another tough question/statement came from Representative Mark Souder (R-IN), who noted that if Enron executives or former President Richard Nixon had used McGwire’s “I’m not here to talk about the past” line, then the House Government Reform Committee would serve no purpose. It’s probably never good to be referred in the same sentence as Enron and Richard Nixon, and no, it was not a good day to be Mark McGwire.

      Jose Canseco: Began by looking very nervous and the picture of him turning away from McGwire as McGwire read his opening statement will likely grace the front page of many of tomorrow's newspapers. As the hearing progressed, he became much more comfortable and well-spoken, though looked stunned when Representative Stephen Lynch (D-MA) asked him if he was going to write a new book to reconcile all of the inconsistencies between his book and his testimony (in his book, he praises steroids as some kind of panacea; in his testimony, he didn’t – and his sheepish response to Lynch’s question was “I wrote the book two years ago” and things have since changed. Yikes). Canseco was, however, the only one to claim that steroids are a serious problem, but undercut his message by continuously referring to his book, almost as if he were on an infomercial.

      Curt Schilling: Most articulate and most comfortable, by far. I believe the only one who considered steroids use to be “cheating.” Also said, “in 19 years in the big leagues, I have never seen a syringe.” Called Jose Canseco a liar on several occasions, and chastised him for ratting out ex-teammates. Careful, thoughtful answers, but may have underplayed the significance of the steroids issue, and overplayed the capacity of self-regulation by Major League Baseball and the Players' Association.

      Sammy Sosa
      : Didn’t say much, other than that he never used steroids. Highlight may have been responding in English to Rep. Dennis Kucinich’s question in Spanish.

      Rafael Palmeiro
      : Like Sosa, didn’t add much other than vehemently denying ever using steroids and echoing whatever Curt Schilling said.

      Frank Thomas: From a satellite location on monitor, Thomas eloquently read a well-written, though generic-sounding opening statement, but had no other involvement. Chairman Davis noted that Thomas and Schilling were there only because they are strong proponents for tough testing.

      Wednesday, March 16, 2005

      43 out of 65 Men's Teams in March Madness Fail to Graduate Even Half of Their Players

      A study released this week by Dr. Richard Lapchick of the University of Central Florida reveals that 65 percent of participating schools in the NCAA Tournament fail to graduate even half of their players. The study was based on the 2004 NCAA Graduation Rates Report, which also indicated that two schools, Louisiana State University and the University of Minnesota, failed to graduate even one player on their men's basketball teams.

      Such data isn't entirely surprising, as it has been known for some time that college basketball players often don't graduate. Yet, coupled with other data indicating that college basketball players spend, on average, 40 to 50 hours per week engaged in team-related activities (e.g., playing games, practicing, traveling, lifting weights etc.), Dr. Lapchick's study further casts doubt on the wisdom of a 20-year old age-floor for the NBA--an idea currently being negotiated by the NBA and the Players' Union.

      It also makes one wonder whether an 18-year old who could otherwise earn guaranteed millions in NBA would be better off in college, where he would encounter extraordinary difficulty finding time to study and where most of his time would be spent partaking in the very same activities that he would experience in the NBA, except for free and at the risk of uncompensated injury. Granted, for those players not ready to enter the NBA, college appears to be the better route, but considering that 83 percent of high school players eligible to be picked in the last nine years were drafted, the ones that are ready already seem to know it prior to each draft.

      Tuesday, March 15, 2005

      Is Your NCCA Tournament Pool Illegal?

      March used to mean something other than basketball, but trademark lawyers took care of that. Now, it is official — March means “March Madness,” and “March Madness” means basketball. At no other point does the entire country become as consumed over a sporting event than during the last two weeks of March. Workers across the country use ALT + TAB with abandon to check scores and statistics; smarter workers save their sick days for the “flu” they just know will be coming during this time of year. People everywhere analyze schools they have never heard of — UAB, St. Mary’s, Montana (the last one’s a state) — with one question on their mind: Who will pull the upset?

      Why agonize over the relative strengths of unknown teams? Why focus on confusing terms like “strength of schedule” and “RPI”? Why groan when Gonzaga beats Winthrop or Penn upsets LSU? Why risk being fired if the boss peeks over your shoulder and sees you watching a webcast rather than completing that TPS report? Why else? Because there is money on it, baby.

      The NCAA tournament has become almost synonymous with gambling. March Madness is the busiest time of year for the $3.5 billion sports gambling industry. Every office, college dorm, grandparents’ coffee group, and convent has a tournament pool going. All told, more than 25 million Americans participate each year in some form of pool. Brackets are filled out — some with the help of ESPN and advanced statistics; others with the help of a two year-old and the family dog. Both have an equal chance of winning. Just put in your five dollars and you could win hundreds.

      But gambling is illegal in the United States, isn't it? Sure, there are exceptions for Nevada and Atlantic City, our country frowns on such moral turpitudes. You want an assault rifle? No problem. You want to bet your assault rifle that Boston College makes the Final Four? Hold on there, tiger. The law has to protect you from yourself. So, could entering the pool run by that annoying guy in accounting have the police beating down your door?

      In theory, yes. The majority of states have anti-gambling statutes that cover wagers for almost any amount. In Massachusetts, betting any amount over five dollars can subject an individual to a misdemeanor charge. And organizing the pool is even more dangerous, leading to a possible felony in many states, or worse, federal criminal charges. With few exceptions, states do not have ‘de minimis’ exceptions for tournaments pools or exemptions if the person running the pool does not take a percentage as a service fee. Thus, in most states, unless your pool does not involve the exchange of money, submitting that bracket likely means you are breaking the law.

      I would not change your name or flee the state just yet, though. Despite the fact that pools are technically illegal, police will not be busting down the doors of offices in a nationwide sting. Despite the large amount of money changing hand nationwide, the average $100 pool is simply too insignificant for the state to care. Usually, the police do not get involved unless you have ignored your employer's request to stop, the pool is so large that substantial sums of money are involved, or there are minors implicated.

      This is not to say that the authorities will never get involved. Although nothing came of it, officials in Charlotte, NC announced last year that no gambling violations, no matter how small, would be tolerated if reported. And, somewhat paradoxically, the NCAA has pressured local officials around the country to crack down on betting pools, especially around college campuses. Despite the incredible attention the pools help bring to the tournament, the NCAA’s greatest fear is that wagering will find its way to the athletes, leading to point-shaving or other illicit conduct.

      In addition, you won’t care at all about the police if you get fired over your basketball obsession. Some employers have a no-tolerance policy on gambling and other contests, including tournament pools. Others may not appreciate the fine art of the ALT + TAB between scores and the budget spreadsheet. One study estimates that employers lose nearly $900 million in wasted employee time during the last two weeks of March. Thus, your boss may not care to hear about the ‘Cinderella’ run of Nevada, or the ‘de minimis’ exception to the local gambling law.

      But, if the pool stays small and the boss understands, then tournament pools can continue as always. Far be it from the law to try and suck the fun out of something. So, continue to lose five dollars to your neighbor’s dog. Continue to cheer as the ten-seed upsets the seven. Continue to hope your alma mater defies the odds and makes it to the Final Four. Because this is college basketball. This is what March is all about.

      Note: Please keep in mind that this is intended to be a fun read and is not legal advice.

      Monday, March 14, 2005

      UPDATE: Baseball and Steroids

      There is simply too much out there on the potential congressional hearings to try and keep up. To summarize, Congress is going forward with the hearings, has subpoenaed the players, and as expected, has threatened baseball with the loss of its antitrust exemption and tax exemption, if it does not comply. Are the legislatures in charge of this grandstanding? Or are they doing the nation a great service? I leave the decision with you.

      For more on this, Only Baseball Matters has excellent coverage (here, here, and here).

      One thing I will comment on: if it turns out baseball players were juiced, what about their records and awards? Mike commented on this a while back in regards to Mike Greenwell and the AL MVP award and I have been meaning to jump in. This is a tough question. I am never one to overturn what happens on the field, but something seems different when cheating is involved. After all, the NCAA reverses the outcomes of games and takes away trophies and banners when it is determined an ineligible player participated (I think this is even more objectionable than cheating involving one player's achievements, by the way, but that is a subject for another day.) So, should Greenwell get the AL MVP? Should McGwire's record be wiped from the books? How about Bonds's?

      I am going to have to think about this one. I have some initial thoughts but I want to clarify them before I post anything. I would be interested to hear any thoughts or ideas that people have. Do the records stand? Are they erased? What about the Hall of Fame?

      School Bans Soccer Due to Legal Fears

      In a decision that I am afraid will soon be repeated in the United States, a group of Scottish schools has banned after-school soccer programs because of potential legal liability.
        Nineteen schools have introduced the ban across the county after advice from the local council. They were banned because volunteer coaches were not covered by the schools' insurance schemes for after-class games. *** The only teams to continue playing will be those coached by teachers, who are covered by council insurance.
      Interscholastic sports may face a real threat, both in this country and abroad. Now that any inadvertent injury, coach's decision, imperfect facility or a host of other problems could lead to a substantial legal verdict, schools are facing tough choices about the options provided to students. Schools in one county are debating charging students for competing in athletics to cover the cost of liability insurance. Other schools may soon be forced to do the same.

      This is not to say that charging students for participating in athletics is necessarily bad. After all, students often have to pay small fees to participate in other school activities. But for many students, at many schools, the fee may be the difference between playing a sport and not playing a sport. Or the money may come from funds for other important educational items, such as books or supplies. Students that do not have sports will be left with a lot of free time, which while sometimes good, can often lead to troublemaking or worse.

      The solution to this problem does not readily present itself. However, those that think about sports and the law should give this issue some thought, because anyone who loves sports recognizes the importance of interscholastic competition and the need to protect it.

      Sunday, March 13, 2005

      Bridgestone Sues Titleist Over Golf Ball Patent

        In what could become a major battle between two golf ball powerhouses, Bridgestone Sports Co., Ltd., and its wholly owned subsidiary, Bridgestone Golf, Inc., have filed a patent infringement lawsuit against the Acushnet Company, the parent of the Titleist and Pinnacle golf ball brands, in the U.S. District Court for the District of Delaware.

        In its complaint, Bridgestone charges Acushnet with "willful infringement" of 10 U.S. patents from Bridgestone Sports' patent portfolio covering multi-piece solid core golf ball technology. Among the Acushnet balls charged with infringement are the Titleist Pro V1, Titleist Pro V1x, Titleist NXT, Titleist NXT Tour, Titleist DT SoLo, and Pinnacle Exception.
      Bridgestone is seeking an injunction to prevent further infringement, as well as unspecified damages.

      Friday, March 11, 2005

      Broken RSS Feed

      My RSS feed does not seem to be working. It keeps pinging the same post from December. Does anyone have any suggestions on how to repair it? Many thanks.

      Tice Gets Scalped

      Mike Tice admitted last week to scalping his Super Bowl tickets this year, selling the $500 tickets for $1900. He has certainly violated the NFL rule against scalping and may face a hefty punishment, including suspension or a fine. He could also be fired by the Vikings. In addition, Tice may have violated Minnesota Statute s609.805, which makes it a misdemeanor to "Sell[] or offer[] to sell a ticket to an event at a price greater than that charged at the place of admission or printed on the ticket."

      My question: Why? Tice made $750,000 last year. Did he really need the extra thousands he made from this sale? One response to this: everyone does it. The NFL distributes Super Bowl tickets to every player and coach in the league. Of course, most of them do not go, and so they decide to make a profit on the sale.

      I, too, wonder why the NFL is deciding to crack down on this practice now, but I don't care. After all, why aren't these million-dollar players and coaches giving away their Super Bowl tickets rather than greedily selling them for a profit? If they are looking for sympathy, I doubt many will be eager to give it.

      Debate on Liability for On-Field Actions:

      There is a great debate going on in the comments of this previous post, about the proper place of legal regimes for on-field activities. A key question -- what is "part of the game"?

      UPDATE: Mighty Casey Goes to Washington:

      So, the battle between baseball and Congress continues, but it may not be much of a battle, after all. People have lined up on both sides, some praising Congress for taking the initiative to clean up baseball, others crying foul for legislators interfering where they should not, in the stead of more pressing national concerns. Curt Schilling, Frank Thomas and Jose Canseco have agreed to testify, as have Donald Fehr and Rob Manfred, the union chief and baseball's executive vice president, respectively.

      Baseball officials have realized they cannot win this battle and are reportedly negotiating a compromise to protect many of the players. The deal may include changing the roster of players to testify, in hopes of keeping the game's biggest stars from having to testify under oath. In response, baseball would agreed to adopt a more comprehensive testing policy. Unless the scope of the investigation is narrowed, baseball has vowed to fight the inquiry.

      As for the subpoenas themselves, no one is now seriously questioning their legality. The more pressing issue seems to be immunity. Jose Canseco has requested immunity and other players may follow suit. At this point, the committee has said it has no plans to offer immunity, but it could be included in the deal. If players are granted immunity, then their statements cannot be used against them in a criminal case. A prosecutor would have to prove that any charges brought were based on other evidence independent from the congressional testimony. Giving the players immunity would mean that they could not claim the 5th Amendment privilege against self-incrimination.

      Another question has no satisfactory answer: What about Barry? Surprisingly, Barry Bonds was not subpoenaed, despite the widespread speculation that he may have used performance-enhancing drugs. Committee chairman Tom Davis (R-Va) said that Bonds was not invited because his presence would be a distraction. Good thing he is thinking -- I would hate for this to get any media attention. So what is the real reason?

      Stay tuned for more in the next few days....

      Thursday, March 10, 2005

      Baseball vs. Congress: The Showdown Looms

      There is a steroid problem in this country, and professional baseball is partly to blame. This is what Congress would have you believe, as it has issued subpoenas to 11 individuals involved with Major League Baseball, including Mark McGwire, Curt Schilling and Bud Selig. The subpoenas, which require the players to testify before Congress or face possible contempt charges, come on the heels of the same individuals declining "invitations" to appear before the House Government Reform Committee.

      Major League Baseball and the players have said that they will not comply with the subpoenas, as Congress has no jurisdiction to hold such hearings or compel such testimony. In response, at least one member of Congress has said that this is "a national public health issue" that Congress has the authority to regulate.

      So if the issue goes to court, will Congress or Baseball win in this clash of the titans? I have done a review of the law,* and it seems that Congress does indeed have such a power. My review, though, was cursory, and so I would appreciate any comments or notice of possible errors.

      Though unstated in the constitution, it is uncontested that Congress has the power to conduct investigations in accordance with its primary function of passing laws. Thus, if a constitutional law could result from an investigation or hearing, then a hearing is a proper exercise of congressional power. Arguments that legislation will not result from an investigation, or that invalid legislation will result, does not relieve Congress of this power. In addition, Congress can hold hearings to determine if existing legislative schemes are functioning as intended. Congress cannot, however, investigate matters of purely private concern.

      In the situation at hand, it appears that legislation could result from this investigation. Under its commerce power, Congress could pass stricter laws relating to steroids and other performance-enhancing drugs, using the testimony given as evidence of how steroid use has become prevalent in society. And remember, this committee may not stop at professional players -- it might also subpoena individuals from the college or high school level to submit further evidence of a national epidemic.

      If Congress has the power to hold the hearings, it likewise has the power to issue subpoenas compelling individuals to testify. An individual compelled to appear must do so, or be liable for contempt (2 USC s192). An individual can claim the 5th Amendment protection against self-incrimination, but only if a criminal charge can result from the testimony. Refusal to testify cannot be based on the grounds that the testimony will disgrace the witness. In addition, while Congress may not compel disclosures for the purpose of aiding the prosecution of pending suits, its authority to seek information for its own purposes is not limited on the grounds that such information could be of relevance in those suits. Thus, it also seems as if the 11 individuals here must appear, or face contempt charges. Some may refuse to answer on 5th Amendment grounds, but only if their answers could result in criminal prosecution. For others, such as the team executives, there likely will be no grounds on which to avoid answering the questions.

      But even if Congress has this power, why in the world are they going after baseball? As many commentators have noted, does Congress really have nothing else to do? How about Social Security? How about confirming a few judicial nominees? Professional athletes use performance-enhancing drugs. I don't think we need a congressional hearing to determine this. Too often, though, congressional hearings are held not for the purpose of passing legislation, but for legislators to get an issue, or themselves, into the spotlight. These subpoenas have already generated a lot of press, and some House members that are up for re-election in 18 months may need the publicity. Others may want to be "tough on drugs" or "looking out for our youth." What better way to win an election?

      Despite these potentially impure motives, baseball should tread lightly in this matter. As I have noted, the law is on Congress's side. And baseball should be wary of angering Congress, which has the power to revoke the often-reviled antitrust exemption that professional baseball enjoys. Angering key legislators does not seem a good move for baseball at this point, although disgracing the game through admissions of steroid use could arguably be worse.

      I am not sure what the final result of this showdown will be. Congress might back down and let this issue fade away. After all, the institution probably does not want its power to hold hearings limited by a skeptical federal court. However, Congress does not like to have its authority questioned, and now that it has been, the legislators may stop at nothing to ensure these hearings take place. In addition, there are many applauding Congress for calling baseball to task. Thus, the public may have more interest in discovering baseball's dirty little secrets than concern over wasted tax dollars. What emerges at these hearings remains to be seen, but no matter what is said, it likely will not be good for baseball.

      * This legal analysis is based largely upon Najaran, 77 Am Jur 2d United States, s.14-18. For those that do not know, Am Jur is a legal encyclopedia. The points made are based on the holdings of numerous cases, many of them Supreme Court cases, but in the interest of simplicity and aesthetics, I have not listed the citations.

      Wednesday, March 9, 2005

      Baseball: The Grass Is Greener

      Good news via the New York Times. For the first time since the Astrodome was built in 1966 (trivia question: who hit the first homerun in the Astrodome?), all National League teams will play their home games on natural grass. The last artificial turf park in the NL was Olympic Stadium in Montreal -- now, the only plastic fields left are in Minnesota, Tampa and Toronto.

      AstroTurf (named after the Houston Astros and the Astrodome, where it was first installed) was hailed at the time of its inception as a suitable alternative to grass for indoor ballparks. Originally, the Astrodome had glass panels on its roof, which allowed light to shine in and the park to have natural grass. Unfortunately, the glass panels created incredible glare and made it all but impossible to catch flyballs. So, the panels were painted, but this killed the grass. Solution? AstroTurf. And the sports world was never the same.

      Domed playing fields became the rage in baseball and football, and entire teams (i.e., the St. Louis Cardinals of the mid-80s) were built around AstroTurf. But unforgiving nature of the synthetic surface led to recurring injuries and player complaints. The completion of Camden Yards in 1992 began the movement to more "traditional" baseball parks, and with it, the movement back to natural grass. Hopefully it will not be too long before new venues replace the last three domes, so that baseball can forever be rid of this well-intentioned, but failed, experiment.

      For more on ballparks (and a great procrastination tool), you can't beat the comprehensive site.

      Neuheisel Settles with NCAA for $4.7 Million

      On Monday, former University of Washington head coach Rick Neuheisel settled his wrongful termination lawsuit against the university and the NCAA for $4.7 million. Neuheisel said that he is 'vindicated' by the settlement; the NCAA says it paid largely because of a technical violation, not because it was wrong on the merits. So what should we take out of this whole mess?

      The first is that the NCAA got a dose of its own medicine. Admittedly, the NCAA does not have an easy task in managing intercollegiate sports for the entire country. But the association has made a number of poor decisions in the past few years, relying on strict readings of its rules, that have harmed the welfare of student athletes. The Jeremy Bloom and Mike Williams cases spring to mind. This has led to a number of calls for reform from state legislatures. Now, the NCAA has paid $2.5 million because two of its employees did not know about and follow a procedural change that went into effect six weeks before their investigation into Neuheisel's activities. If the association itself cannot even keep up with the myriad of technical rules and regulations, how are athletic departments expected to comply?

      But, is Neuheisel really "vindicated?" In the end, he did win on a procedural technicality, not because he was proven correct on the merits. Chances are good that he did lie, convinced that he could slide his way out of trouble with a slight of hand and a decent winning percentage. Speculation has already begun that Neuheisel will have another opportunity to be a college head coach, but athletic directors beware. Neuheisel has had only two head coaching gigs -- Colorado and Washington. And he won't be invited back to either (UW Daily, Seattle P-I) . He left Colorado with a mess of violations that tarnished the program after he left. And the once-proud Washington program has been reduced to a team that went 1-10 this past season. In his wake, he has left a trail of distrust, forgotten promises and broken programs. He may get another opportunity, but chances are good it will be the same Neuheisel.

      In the end, there seem to be no winners in this mess. The NCAA tripped up; Neuheisel was not really vindicated; and UW came off as incompetent. But the biggest loser against seems to be college sports. Once the bastion of amateur athletic greatness, this mess is indicative of what it has become -- a struggle between the egomaniacal and the greedy, all wanting more power and more money. Forgotten are the student-athletes at Washington, whose dreams of playing for a national contender have been shattered. And at the bottom of the pile sit the fans, who may continue to love college sports, but will now wonder if college sports cares about them at all.

      Sunday, March 6, 2005

      UPDATE: Pistons-Pacers Brawl

      I still cannot believe that fans are allowed to rush the court after college basketball games in the wake of the Pistons-Pacers brawl. Sadly, I feel it is only a matter of time before an altercation ensues. The only reason it hasn't happened yet (and the reason it may not) is because college arenas do not sell alcohol.

      NBA teams, on the other hand, have set out to prove that arenas can have effective security to control exuberant crowds. After hiring consultants and working for two months, the league has revised its arena security policy. The changes primarily focus on alcohol and the presence of security, believed to be the two main causes of the November 19 brawl. Alcohol sales must be cut off before the fourth quarter and the NBA wants to limit both the size (max 24oz) and the number (max 2 per customer) of beer sold. The NBA also called on teams to create drunken driving programs.

      On the other end, the league has created a Fan Code of Conduct, which requests that fans not cuss or make obscene gestures, not have any obscene gestures or phrases on signs or their clothing and sit only in their ticketed seats. It is unclear what "request" means, especially in arenas that are publicly-owned, and thus could possibly run afoul of the First Amendment. Chances are good, though, that the only fans that will be disciplined are those that can justifiably be detained for disorderly conduct.

      Back to the Nov. 19 brawl, lawyers for the Pacers players that have requested separate trials for each of the five men involved in the incident, arguing that the cases all involve distinct incidents even though they occurred in the same place.