Friday, September 30, 2005

Iowa Law Professor Sees Red Over Pink

A law professor at the University of Iowa has caused a minor stir by complaining about the visitor locker rooms at the university's Kinnick Stadium. In an apparent attempt to "soften up" the opponents, the home team decided to make the entire locker room pink: pink walls, pink toilets, pink floors. ("Professor says pink locker room promotes sexism, homophobia," 9/23/05). According to this displaced Bostonian (I wonder if she hails from Mike and my old stomping grounds?), decorating the room in a lighter shade of red promotes sexist and homophobic stereotypes.
    "With a pink locker room, you're saying that 'You are a girlie man. You are weak, like a girl,'" Buzuvis said. "That implies that girls are non-dominant, therefore, lesser. And that is offensive."
If Iowa meant to insult its opposing teams, it probably failed. If anything, it was probably seen as humorous by most -- after all, how many pink urinals have you seen? It seems that Buzuvis is making the wrong claim -- she should be saying that the locker room color has no bearing on gender or sexual orientation relations, because pink is not a color of females or homosexuals. By making the opposite argument, she is promoting sexism and homophobia.

Pink is not a female color or a color of homosexuals. It is a passive, soothing color that is worn by men and women, regardless of sexual orientation. A quick search for "pink mens shirt" on Froogle pulls up nearly 6000 results. I own a pink tie; my straight male friend has a room in his house painted a shade of pink. But for Buzuvis, "pink" automatically signifies either women or homosexuals. I am sure there are many people in both categories that would be offended by that. She is also stating that the color pink is a "weak" color, and thus, women are weak by being associated with pink. She correctly states on her blog that pink has traditional ties to females, but she is doing nothing to change this by yelling about using the color in an athletic setting.

If Buzuvis is truly concerned about sexism and homophobia in football locker rooms, she should focus on something more important than the color of the urinals. This argument seems unlikely to make important strides for either of the groups she claims to support.

FN 1: A number of people dislike Buzuvis' argument and have sent threats. ("Law professor gets death threats over pink locker room," Sioux City Journal, 09/25/05). This is despicable behavior, and I hope those responsible are caught and punished. Responding in this manner points out the ignorance of the one making the threat, not the one being threatened.

FN 2: Thanks to Opinion Journal for pointing out the story first.

Wednesday, September 28, 2005

Congress Ready to Crack Down on Steroids in Baseball?

U.S. Senator Jim Bunning, a Republican from Kentucky and Hall of Fame baseball player (he was a star pitcher for the Detroit Tigers and Philadelphia Phillies between 1955 to 1969), proposes a new federal law that would dictate that pro athletes who test for steroids for the first time be suspended from their leagues for 2 years without pay. (James R. Carroll, "Congress Ready to Crack Down on Steroids," Louisville Courier-Journal, 9/28/2005). For baseball players, that would mean 324 games, plus any lost playoff games. Under baseball's existing plan, such players only miss 10 games without pay, so Bunning's plan would raise the penalty for first time offenders by at least 3,140 percent--a substantial increase indeed, and deterrence would certainly be escalated exponentially, especially considering that the average baseball player can only generate income between the ages of his early twenties and early-to-mid thirties. In other words, 2 years of lost income for a baseball player is akin to most of us being suspended from our jobs for 8 or 9 years. Bunning's law would also dictate that second-time offenders be banned from their leagues for life.

James Carroll interviews several people for the story, including me. While we all agree that Senator Bunning's proposal has significant merit and would add legitimacy to pro sports and particularly baseball (if proving a tad draconian for first time offenders), its timing may not be ideal, particularly in light of larger social problems. Here are some excerpts from those interviewed:
"If you passed a steroids bill now while letting the deficit careen out of control and not doing much to get Iraq on track, they would attract a lot of ridicule for spending their time on it," said Norman Ornstein, senior analyst with the American Enterprise Institute for Public Policy Research, a Washington think tank.

Thomas Mann, senior fellow at the Brookings Institution, another Washington think tank, said steroid-testing legislation would face a schedule squeeze.

"The problem will be finding floor time, especially in the Senate, where Supreme Court nominations, appropriations bills, (budget) reconciliation, and post-Katrina/Rita measures leave little time for anything else," Mann said by e-mail. "Steroids are likely to carry over to next year."

Michael McCann, a sports law professor at Mississippi College School of Law in Jackson, said the political moment for action may not be now.

"I don't know if it's in the public consciousness as it was a few months ago," McCann said, saying the hurricanes diverted people's attention. "Steroids are bad, we don't want our athletes to use them and they set poor examples for our young people, but we've just seen a massive failure of governance on the national and local levels."

A DNA Contractual Showdown Looming? Eddy Curry's Cardiologists Say DNA Test Unwarranted and Unnecessary

Bolstering the argument of Chicago Bulls center Eddy Curry and his attorney, Alan Milstein, that Curry not submit to the Bulls demand that Curry take a DNA test, Los Angeles cardiologist Dr. David Cannom--who examined Curry in June--says Curry's heart is structurally sound, and a DNA test for the heart affliction hypertrophic cardiomyopathy ("HCM") is unnecessary. As we discussed on Monday, the Bulls believe that Curry may have, or have a propensity for developing HCM, and should he re-sign with the Bulls to a one-year, $5.14 million contract, the team would require that he take the DNA exam as part of his physical. If the Bulls were to discover that Curry had HCM, they might then seek to immediately void the contract.

Perhaps most significantly, Dr. Cannom contends that the Bulls are treating Curry unreasonably and, by implication, unethically:
"There's a standard being applied that wouldn't be applied if he weren't a $60 million athlete. This is beyond clinical routine care." Dr. Cannom's opinion is corroborated by another of Curry's former cardiologists, Dr. Mark Estes, III, a professor at Tufts University School of Medicine and Director of New England Medical Center's Arrhythmia Center. Estes examined Curry back in May.

The National Basketball Players' Association ("NBPA") has also addressed the Bulls-Curry DNA test dispute. Spokesman Dan Wasserman contends that Curry would have to voluntarily agree to the testing, as "there is nothing in the collective bargaining agreement that allows a team to compel a player to undergo DNA testing." The NBPA's position is predictable: it doesn't want a "right" (in this case, the right of a team to force a DNA test of a player) to be allocated to the owners without a corresponding trade-off in collective bargaining.

Despite the support of several prominent cardiologists and the NBPA, Curry is still faced with a practical dilemma: the Bulls are offering him much more than any other team, and have indicated that they would match any reasonable contract that Curry were to sign with another team as a restricted free agent. That is, if Curry were to sign with another team, the Bulls could match the contract, and he would then find himself in the same situation that he now finds himself in. The Bulls and Curry are thus likely going to have to come to some form of an agreement, although it might ultimately involve an arbitrator.

Along those lines, one strong possibility is that Curry signs the one-year, $5.14 million qualified offer from the Bulls, and then refuses to take the DNA test--thus triggering a contractual showdown on DNA testing. The Bulls can obviously not "force" Curry to take a medical exam, but they can then seek to void the contract. Article II, Section 13 of the NBA-NBPA collective bargaining agreement specifies that a team may void a players' contract if the player "does not pass a physical examination pursuant to Exhibit 6 on Physical Exams." Turning then to Exhibit 6, it notes:
The Player and the Team agree that this Contract will be invalid and of no force and effect unless the Player passes, in the sole discretion of a physician designated by the Team, a physical examination in accordance with Article II, Section 12(h) of the CBA.
Exhibit 6 thus confirms that a Bulls-designated physician (rather than an independent one) would have to approve Curry's physical, which the Bulls consider inclusive of a DNA test. Exhibit 6 also invites us to turn to Article II, Section 12(h) for further clarification (only relevant portions included):
(i) The player must report for such physical examination at the time designated by the Team and must, upon reporting, supply all information reasonably requested of him, provide complete and truthful answers to all questions posed to him, and submit to all examinations and tests requested of him. The determination of whether the player has passed the physical examination shall be made by the Team in its sole discretion.

(iv) A player who knows he has an injury, illness, or condition that renders, or he knows will likely render, him physically unable to perform the playing services required under a Player Contract may not validly enter into such Contract without prior written disclosure of such injury, illness, or condition to the Team.
What does this language tell us about a hypothetical event in which Curry signs with the Bulls and then refuses to take a DNA test? Could the Bulls really void the contract? Could Curry then sue the Bulls?

On one hand, the Bulls would argue that Curry must, pursuant to Section 12(h)(i) of the CBA, "submit to all examinations and tests required of him," and must pass them to the satisfaction of the Bulls. On the surface, this language appears to provide the Bulls with significant latitude in what they can request from Curry: the team requires a particular physical, and it must be passed to the satisfaction of the team, and by refusing to take the DNA test, Curry fails the physical. Contract voided. Case closed.

But not so fast. The CBA is strikingly imprecise as to the parameters of medical information required of players. For that reason, a "reasonable" standard would likely be applied, which would consider the circumstances in which the Bulls and Curry found themselves. For Curry, the fact that a DNA test would be unprecedented would likely prove most valuable: if a DNA test is such a reasonable demand from the Bulls, then how come no team, in any sport, has ever made such a request before? The Bulls might argue that Curry's circumstances are unusual, but in response, Curry might question how
Monty Williams could play for 5 NBA teams in 9 seasons, while having the disease that Curry might have, and yet not be required to take a DNA exam? But the Bulls would then assert that Williams' illness was diagnosed after his freshman year at Notre Dame, thus rendering a DNA exam unnecessary. In response, Curry might wonder how Williams could play for 5 teams and not be any kind of apparent liability to his employers, and yet the Bulls evidently believe that Curry would be a liability if he has HCM--why, Curry might ask, are the Bulls so different in their medical practices than were the 5 teams that Williams played for (Knicks, Spurs, Nuggets, Magic, and the 76ers)? But then the Bulls could reply that those 5 teams may have taken additional safety precautions to employ Williams--to which Curry could retort that prominent cardiologists have already determined that he doesn't need such precautions.

Taken together, should an arbitrator (or a court, if one party were to appeal the decision of an arbitrator) ultimately hears a dispute between Curry and the Bulls over a refusal to take a DNA test, I suspect Curry would likely have the upper-hand.

**UPDATE January 2006**: I have a forthcoming law review article on this topic: The Reckless Pursuit of Dominion: A Situational Analysis of the NBA and Diminishing Player Autonomy, 8 University of Pennsylvania Journal of Labor and Employment Law __ (forthcoming, 2006). I invite you to download the draft on the Social Science Research Network ("SSRN") -- the download is free, and all it requires is an SSRN account, which is itself free and which provides you with access to thousands of interesting articles, papers, and drafts.

Past Coverage: Brave New World? Eddy Curry and Chicago Bulls in Dispute over DNA Test, 9/26/2005.

Disclaimer of Interest
: I was a member of Maurice Clarett's legal team, of which Alan Milstein--Curry's attorney--was lead counsel.

Tuesday, September 27, 2005

UPDATE: It Ain't Over 'til You Settle

As anticipated (2/20), Yogi Berra has agreed to drop his lawsuit against TBS in exchange for an undisclosed settlement. The terms are confidential but Berra's lawyer calls it "substantial." (Rovell, "Misuse of Berra's name costs network, ESPN, 9/16/05). As you may recall, TBS used Berra's name in an advertisement without his permission to promote the syndication of 'Sex and the City.' The ad, which appeared on buses, billboards and in magazines nationwide, read: "Yogasm: a) a type of yo-yo trick b) sex with Yogi Berra c) what Samantha has with a guy from yoga class."

Sports as a Measure of Healing

This is a common theme, but one that bears repeating: the importance of sports on morale and recovery from a tragedy. As the New York Times states, "Football, and a sense of normalcy, returns" to Louisiana with the LSU-Tennessee game (9/27/05).
    Playing Monday's game might have been considered a frivolous and callous exercise, given that New Orleans is largely empty and crippled, and the coastal region of Louisiana is essentially under water. But not now, not when Louisiana desperately needed confirmation that something was still functioning as normal, that a patch of grass existed that was not littered with splintered homes or had not become a newly flooded playground for alligators.

    * * *

    Louisiana's first major sporting event since the devastating hurricanes was meant to serve, through a national broadcast on ESPN2, as a symbol of the state's resolve and recuperative willpower. For many, the playing of the game seemed as important as the outcome.

    "Sometimes sports can provide a medicine that no doctor can provide," said Skip Bertman, director of athletics at Louisiana State.
The Volunteers partly spoiled the big day for the Tigers and their fans, by staging a great come-back win. But this loss pales in comparison to the losses suffered by thousands during Katrina, and the win of even staging the game is one that will not soon be forgotten.

The Onion Takes on Sports

I realize that I may be a bit late to the party on this, but The Onion has begun regularly featuring sports stories along with its usual excellent material. This week, "Terrell Owens Pre-Emptively Disparages Next Contract," (9/21/05).
    PHILADELPHIA—Eagles wideout Terrell Owens, who recently returned to his team after a training-camp holdout on the second year of his seven-year, $49 million contract, took time Monday to verbally blast the amount, duration, and bonuses of whatever contract he signs next.

    "It's going to be a damn travesty," said the 31-year-old All-Pro, speaking to reporters months or even years before the hypothetical contract is drawn up. "A travesty. I'm one of the best receivers in this league—hell, after the incredible, record-breaking season I'm sure I'll have had when I sign this next contract, I might be the best ever. But I wouldn't go so far as to call this next contract the best ever. It's going to be an insult on the part of whichever team I eventually sign with, and they'll know it. I demand they give me what I really deserve."

    "I know I'm a top player in this game," Owens added. "But my next contract simply won't reflect that."
Somewhere, an agent is smiling.

In real NFL news, this weeks Sports Illustrated reports that NFLPA Director Gene Upshaw is somewhat confident that a new CBA will be in place by December. Perhaps the players and owners should read this week's Tuesday Morning Quarterback (9/27/05-scroll down) for an interesting compromise position that would make everyone but agents better off. (This, of course, means that the idea has no chance.)

Monday, September 26, 2005

Brave New World? Eddy Curry and Chicago Bulls In Disupte over DNA Test

Please Also See Update on Curry v. Bulls, 9/28/2005

Chicago Bulls center Eddy Curry, a restricted free agent who averaged 16.1 points and 5.4 rebounds last season and who was 5th in the NBA in field goal percentage, is refusing to take a DNA test as part of a one-year qualifying contract offer from the Bulls. (Garcia, "Bulls' Deal With Curry On Hold Without Test," South Bend Tribune, 9/25/2005). The Bulls want Curry--who was diagnosed last season with an irregular heartbeat and an enlarged heart, but still played in 72 games--to undergo a DNA test in order to determine whether he is afflicted with, or susceptible to developing hypertrophic cardiomyopathy ("HCM"), a condition that afflicts the heart muscle.

As a matter of background, HCM is usually an inherited disease that causes the heart to become too thick, which in turn obstructs blood flow and impairs breathing. However, among young adults, HCM often presents no symptoms and goes undetected. Moreover, routine physical examinations may not reveal HCM, and instead DNA exams are typically required. With proper medication, those with HCM can usually live normal lives, although because it is often undetected among young persons, HCM can cause death in young athletes who seem completely healthy but die during heavy exercise. In fact, HCM was the cause of death of such prominent basketball players as Reggie Lewis of the Boston Celtics and Hank Gathers of Loyola Marymount. On the other hand, Monty Williams played 9 seasons in the NBA with HCM (from 1994 to 2003).

Curry's attorney, Alan Milstein, raises several important privacy issues in regards to a DNA test of his client. He also does not want a DNA test of Curry to become a precedent for future contract negotiations between NBA teams and players:
If employers could give employees DNA tests, then they could find out if there's a propensity for illnesses like cancer, heart disease or alcoholism. They will make personnel decisions based on DNA testing . . . We are not about to waive privacy for Mr. Curry or set a precedent for any other NBA player.
Milstein's point is especially interesting in light of our discussion earlier this month on sickle cell trait and college football players: it appears that as technology becomes more capable of revealing genetic makeup, teams perceive a greater opportunity to add predictability to their contractual relationships. From a normative perspective, such predictability might be considered "socially-beneficial": it may save a player from continuing in a sport that can kill him, while enabling teams to more intelligently invest their resources.

On the other hand, Curry is a presumptively rational person: Why would he want to assent to something that may reduce his earning power from millions of dollars a year to zero, especially when he has no legal obligation to do so? Along those lines, is the HCM test really in Curry's best interests, or his family's best interests? And does Curry not have a "privacy right" in refusing the exam? And if he takes it, will it open a Pandora's box and require other NBA players--and perhaps all pro athletes--to take DNA exams?

Curry is also only 22 years old, and has watched his career blossom; acquiescence to an invasive DNA test may seem understandably untenable. As you may remember, Curry went straight from high school to the pros in the 2001 NBA Draft, as has become a near-elite center over the last four seasons. In fact, when he led the NBA in field goal percentage in the 2002-03 season, he became the first Bull to lead the NBA in a major statistical category since Michael Jordan in 1998 (scoring). Although his ability to rebound the basketball has left some to be desired, his extraordinary shooting skill places him within the group of premier NBA centers (of which their are few). In fact, Shaquille O'Neal has said, "Outside of myself, Eddy Curry may be the best center in the league."

Despite possessing an enviable mix of youth and talent, Curry has not attracted competitive offers from any other team this off-season, largely because of heart concerns (and also because he is a restricted, rather than an unrestricted free agent). So should the market--nobody else wants him, despite his youth and talent--encourage him to acquiesce to the DNA test, or is he right to philosophically and ethically oppose it? And would he encounter "stigma" among other NBA players, especially those active in the players' association, if he capitulated to the DNA test, thus setting a new contractual precedent for teams and players? Would a DNA test of pro athletes become infamously known as the "Curry Provision"?

Disclaimer of Interest: I was a member of Maurice Clarett's legal team, of which Alan Milstein--Curry's attorney--was lead counsel.

Sunday, September 25, 2005

President John G. Roberts?

Elanor Clift of Newsweek muses that Judge John G. Roberts, who will soon be confirmed as Chief Justice of the United States Supreme Court, may ultimately seek the White House:
Roberts has led such a charmed life that heading the Supreme Court may not be the end of the road for him . . . Roberts looks like William Holden, a Hollywood leading man when Ronald Reagan was still a B actor. A son of privilege with a Kennedyesque family, Roberts recalls the heady days of Camelot. He’s a man of great intellect, and in about 10 years time, maybe longer, he’ll be bored with the high court, and a Republican Party starved for charisma will draft him to run for president.
Clift might be ignoring perhaps the most important reason: when he was a partner at Hogan & Hartson, Roberts was lead counsel for the NCAA. And has the NCAA ever lost, at anything? And does the NCAA not always get its way, even when its actions appear profoundly unfair? Talk about manifest destiny. If I were Larry King, I would end this post with something like, "John Roberts, President. Book it."

Saturday, September 24, 2005

The Tony Allen Story: Gunshots, Punches, and Mysterious Knee Injuries

Earlier this month, we discussed an investigation by the Chicago Police Department into a shooting that appears to involve Tony Allen, a second-year player on the Boston Celtics. Accompanied by teammate Will Bynum and an entourage of about 15 people, Allen is said to have gotten into a heated verbal confrontation with Marktwain Johnson, a patron in a Chicago restaurant. The argument arose on Sunday, August 28, at 3 AM. The remainder of the story is uncertain, but at some point, Allen allegedly directed someone in his entourage to "F--- him up," and then shots were fired, with one hitting Johnson in the left arm and another in his torso. A melee then broke out, during which Allen is also alleged to have punched Nigel Odum, a member of Johnsons' entourage, leaving him with a broken eyesocket. Johnson has since filed a civil suit against Allen for battery and the restaurant for negligent security. Apparently, Allen and Johnson have a history of animosity, as one report claims they had sparred months ago at another restaurant, though it only involved jabbing and not shooting.

Last week, the story took a peculiar turn, when the Celtics unexpectedly announced that Allen would undergo surgery on his right knee to repair a tear, and that he would be out of action until at least the start of the 2005-06 NBA season. Allen allegedly told the Celtics that he couldn't remember when the pain started. He had been healthy enough to play in the July summer league, where he excelled.

The Celtics appear to believe that Allen's knee injury is unrelated to basketball activities. This past Wednesday, on a radio interview with 1510 The Zone Sporting News Radio Boston, Celtics' general manager Danny Ainge apparently said, "Tony made a mistake, and he knows it. He had to have surgery to pay for that mistake.
" Thus, it appears plausible that Allen's knee injury may have been related to the melee in the Chicago restaurant.

The possibility that Allen may have directed someone else to shoot Johnson should be a worry to Celtics fans. In criminal law, commanding another person to use lethal force can be considered armed assault with intent to murder, which, if convicted, carries a long-term prison sentence (often in the range of 10 to 15 years). Less severe possible charges include aggravated assault, which refers to an attempt to cause bodily injury with indifference to human life, and felony battery with serious bodily injury. Both are still felonies, however, and thus command at least one and a half years of prison time upon conviction. On the other hand, Allen might be able to argue that he was provoked or acting in self-defense, or that his command "F--- him up," was unreasonably misinterpreted by the shooter.

We'll keep you posted on any developments. However, it should be noted that Tony Allen has not yet been charged with any crimes, and that the preceding paragraph is merely hypothetical analysis should he eventually be charged.

**See Update**: Chicago Police Issues Investigative Report to Question Tony Allen (10/4/2005)

Related Analysis:

My recent study on arrest propensity among NBA players and age/education. I found a peculiar and counter-intuitive trend: NBA players with four years of college represent a disproportionately high percentage of arrested NBA players, while those with no college or one year of college represent a disproportionately low percentage. Perhaps then it is not surprising that Tony Allen is a college graduate (Oklahoma State '2004).

2) In his column from last month in the Portland Tribune, Dwight Jaynes discusses my study and offers several explanations.

Thursday, September 22, 2005

The Robots Are Coming! The Robots Are Coming! Will Artificial Intelligence One Day Solve The Things That Don't Make Sense in Sports?

Ray Kurzweil's new book The Singularity is Near concludes that by the year 2025, we will have invented machines that are as smart as humans; according to Kurzweil, even the best of today's computers only have an artificial intelligence of an insect. After we have invented machines that are as smart as humans, "we" (meaning humans and the computers themselves) will soon develop machines that are millions of times smarter than humans. Kurzweil estimates that by 2045, such superior machines will exist, and when that happens--a moment Kurzweil calls "singularity"--there will be a "profound and disruptive transformation" in society.

I know what you are all thinking: Kurzweil has watched The Terminator too many times. But he is no James Cameron rip-off artist. In fact, he is a graduate of the Massachusetts Institute of Technology ('70) who has won numerous awards for his inventions in computers and scientific studies, and he has become quite wealthy in the process. In fact, earlier this year, Bill Gates called Kurzweil, "the best at predicting the future of artificial intelligence."

So let's assume that Kurzweil is right, and that by 2045, machines that are millions of times smarter than us will exist. How would we put them to work (unless, of course, they trick us and put us to work)? One way might be to solve all of the things that don't make sense in sports (I know, there would obviously be better ways to use them, but indulge this for a moment).

Here are some things that don't make sense in sports and that perhaps our superior robot "friends" will help us with:

1) The BCS System for college football rankings. There must be a better system, and one that actually anoints the number 1 team as . . . The Number 1 Team.

2) The "tie" in the NHL, and how its point-significance seems to change every season. For a league that has gone from thriving to fledging in a mere decade, let's hope that a robot can save the day.

3) The antitrust-exemption for Major League Baseball. Unless a robot becomes MLB Commissioner and justifies the exemption on some ground that none of us have or can deduce, the robots should help to get rid of it (perhaps by starting a lobby group on K Street).

4) A clear definition of what "is" a sport. Does it include athletic activities that have no "defense" (e.g., golf), or those that feature animals (e.g., horse racing)? How about cheerleaders? And does it include poker players and pre-adolescent spelling bee contestants--two groups that are prominently featured on ESPN?

5) An explanation for how, after 10 seasons on the job, Chuck Lamar was still the general manager of the Tampa Bay Devil Rays in 2005 (note: this could be edited if he somehow continues on the job next season). As of a couple of months ago, he had posted a 480-720 record as general manager, "leading" his team to successive last-place finishes. Blame could certainly be shared by many in Devil Rays organization (including its owner, Vince Naimoli), but the buck has to stop somewhere. And 10 years on the job isn't exactly a "look-see" as to whether the GM is good. Only a super robot could explain this one.

6) A reason for why there is moral outrage when 18-year old basketball and football players are eligible to play in the NBA and NFL, respectively, but not when there are 14-year old soccer pros, or 14-year old tennis pros, or 15-year old golf pros. Or kid actors or kid musicians. Or 18-year old soldiers risking their lives for us in foreign lands.

7) A study on why people assume that education among athletes has a direct correlation with their propensity to stay out-of-trouble with the law. Oh, wait, I think I've got that one - maybe the robots won't consider me "obsolete"!

What are some other things that don't make sense in sports and that might be solved by robots that are millions of times smarter than us?

Tuesday, September 20, 2005

Major Lawsuit over Australian Television Rights

I admit to knowing nothing about Australian Football, a sport whose final will be played this Saturday. All I know is that it must be big business, because it is the subject of a billion-dollar lawsuit in a Sydney federal court. (Arnold, "Media barons head to court in war over Australia's TV future," Int. Herald Trib., 09/11/05).
    Seven Network, controlled by the self-made billionaire Kerry Stokes, is suing a group of companies, including News Ltd., which is controlled by Rupert Murdoch, and Publishing & Broadcasting, controlled by Kerry Packer, for 1 billion Australian dollars, or $774 million, alleging that the companies conspired in 2000 to kill off Seven's cable sports network and create a monopoly in pay television. They did so, the suit alleges, by snatching the rights to broadcast the league's games for Foxtel, the cable broadcaster jointly owned by News Ltd., Publishing & Broadcasting, and the government-controlled telecommunications provider Telstra.
This fight stems from a long-running war between Australia's television providers.
    Unlike in the United States, where cable companies were given geographic monopolies and then regulated on price, Australia chose to let all comers compete for subscribers, laying cable along the same streets and competing for content.

    As a result, Stokes, Murdoch and Packer have been locked in a bitter fight that analysts estimate has cost them 8 billion dollars collectively and stunted the growth of cable TV in Australia. Only one of every four Australian households has cable, compared to three of every five in the United States.
The case, which is supposed to last nine months and involve over 80,000 documents, could have a long-standing impact on sports television rights in Australia, and an adverse judgment against any of the companies could affect stock prices and US subsidiaries.

For more, see updates from Reuters and Bloomberg.

Monday, September 19, 2005

No, I'm Famous...Really

NFL players have to deal with vicious hits, a short playing career, abusive coaches and unforgiving fans. But now you can add to that list the threat of . . . impersonation. Unlike many other athletes, the helmets and other padding worn by NFL players often makes them hard to recognize on the street; thus, there are a number of people out there claiming to be these players. (Crouse, "To NFL Player, Imitation Isn't a Form of Flattery at All," NY Times, 09/14/05). The pathetic attempts at fame range from trying to seduce women in bars to attempting to open checking accounts in the player's name.

The NFL's vice president for security reports 37 such cases last year, with many more likely unreported. In many of these cases, no laws are broken. It may be against good taste to pretend you are someone else in a bar, but if it was against the law, a number of people would be in trouble. And the woman likely will figure out the scam when taken to the basement of a mother's house, rather than the larger dwellings usually associated with professional athletes. The most likely legal remedy is a civil claim that an impersonator damaged the reputation or earning potential of an athlete. Imagine if a woman came forward claiming to have had an affair with an NFL player -- a player who is happily married and has no idea who this woman is. Such allegations, even if untrue, could hurt a player's reputation, endorsement potential, and personal life.

The law usually comes into play when money is involved. If an impersonator accepts an appearance fee while claiming to be an athlete, or if the fake-athlete perpetrates some other type of fraud while claiming to be someone else, then he will have to answer to authorities other than the NFL. And then there is identity theft, which is a separate offense, and one that is much more serious.

In our culture of reality television and American Idol, everyone wants to be famous or know someone famous. It might behoove some NFL players to begin mugging for the camera without their helmets -- or risk never knowing all the places they "turn up."

Post Katrina Thinking: Should Pro Sports Leagues Force Geographically-Vulnerable Franchises to Relocate?

The devastation of Hurricane Katrina will remain a focal point of policy-makers for years to come. Beyond any reasonable doubt, government actors and agencies--at the local, state, and federal levels--failed miserably in preparing for, and responding to, Katrina. Hopefully the government will learn from its failures, and become better equipped by the next time a category 4 or 5 hurricane strikes.

But therein lies the real and frightening concern: the prospect of another Katrina-like storm hitting the United States isn't remote. In fact, the odds appear to be only rising: sea surface temperatures have escalated steadily over the last 30 years, a phenomenon that has raised the frequency of catastrophically-strong hurricanes. Indeed, hurricanes can form when ocean temperatures rise above 78.8 degrees Fahrenheit, and the warmer the water, the stronger the storm. A startling piece in this week's New Scientist Magazine evidences these points: the proportion of hurricanes reaching categories 4 or 5 has risen from 20% in the 1970s to 35% in the past decade, and that percentage is only expected to climb. (Fred Pearce, "Warming World Blamed for More Strong Hurricanes," New Scientist Magazine, 9/15/2005).

As a separate measure, consider the recent findings of MIT Professor Kerry Emanuel: over the last half-century, there has been a 50 percent increase in the destructive power of hurriances. In short, these storms aren't going away and they aren't likely to be fluke events ever fifty years or so; just the opposite, we should expect them to gradually become more frequent, and more devastating.

Given the expected frequency increase in category 4 and 5 hurricanes, and the uncertain capacity of our government to effectively respond to these kinds of hurricanes, it is worth asking the following: How might Hurricane Katrina change the way sports leagues operate? Namely, should leagues consider the relocation of franchises that are located in areas typically affected by hurricane paths? For instance, should the NFL consider moving the Miami Dolphins further inland, perhaps to Orlando? Or should Bud Selig & Co. contemplate whether the Houston Astros are properly-situated? We've seen the financial and emotional damage inflicted upon the New Orleans Saints and their fan-base: Should this not be something that leagues want to avoid? The decision may even be harder for minor-league franchises, which usually feature facilities that are more vulnerable to hurricane damage.

Granted, I cannot recall an instance where a pro sports league unilaterally forced a franchise to move to a new geographic area. The "ownership agreement" signed by each owner upon purchasing the team almost certainly includes language as to the owner's rights versus the league's rights in franchise relocation--they can thank Al Davis and his nomadic Oakland Raiders for that. But do these agreements contemplate forced removal by the league over the objection of the team's owner? I suspect not, and such a maneuver would undoubtedly trigger litigation, if in fact the owner objected to the move. Moreover, a number of teams have signed stadium leases with cities that can impair their capacity to move. In addition, respective players' associations would almost certainly enjoy some suasion, as any forced relocation would affect a significant percentage of their membership. Separately, consider the almost "spiritual effect" on population groups that would watch their beloved franchises flee: it may very well precipitate fear and angst, and possibly encourage other businesses to get up and leave.

Aside from legal and sociological analyses of a forced removal, consider an economic approach: leagues might compare the benefit/cost of forced removal to the cost of keeping franchises in vulnerable areas. Along those lines, how might leagues preserve the opportunity for cities like New Orleans and Miami to feature pro teams, and to do so in ways that make economic sense? One option might be to pool resources among teams, much like an insurance policy. Perhaps leagues could create a disaster-fund that would enable affected teams to remain in operation. Of course, some teams in "safer" geographic settings might not perceive the same risk/reward of such a fund, but the more enlightened teams would presumably take a less selfish approach, and recognize the dramatic costs (both financial and reputational) to an entire league when one team is unexpectedly dislocated.

Another economic aspect to consider is how the prospect of more frequently-devastating hurricanes might affect the way in which free agent players select teams. In my upcoming law review publication"It's Not About the Money: The Role of Preferences, Cognitive Biases & Heuristics Among Professional Athletes, 71 Brooklyn Law Review __ (forthcoming, 2006), I discuss preferences among players, and how those preferences impact their contractual decision-making. One of those preferences is weather. Might the traditional appeal of warm-weather coastal cities take a nosedive, while teams located in previously-unpopular areas become more attractive? Might the Detroit Tigers indeed become the Major League Baseball team to play for?

A separate question concerns college sports: Will an increase in the propensity of category 4 and 5 hurricanes encourage top high school athletes to think more favorably about their full-scholarship offers from schools like Syracuse and Notre Dame than their full-scholarship offers from schools like the University of Miami and the University of Florida? Might we see a talent-shift from Southern schools to Northern schools?

As a final point, consider that the logic described above could also be applied to geographic areas that are likely terrorist targets. In that vein, might we ask if the New York Yankees should be moved to Buffalo? And are the Los Angeles Angels of Anaheim due for yet another name change?

At some point, of course, we can't fear the unknown, and we would likely be better off encouraging people and businesses to stay, while simultaneously learning how to better prepare for, and respond to, hurricanes and other risks. The cost of wide-spread fleeing by people and businesses would be far greater than dollars and sense; it would be a sign that we are not strong enough to defend our own land.

Saturday, September 17, 2005

Profiles in Sports Law: Orpheus Sports and Entertainment Company

Many of our readers are interested in pursuing sports law careers, so when we know persons who have actually pursued that career, it's worthwhile to describe their work and how they got to where they are. Our good friends Joe Rosen and Chris Brown are two such persons. With 14 years of law practice between them, Joe and Chris recently started the Orpheus Sports and Entertainment Consulting Company in Boston. They also maintain a separate law practice, Brown and Rosen LLC.

So what do Joe and Chris really do as sports agents? Are they basically living the lives of Jerry Maguire and Arliss? Well, Joe and Chris are engaged in a number of interesting activities, including the negotiation of individual player contracts, endorsement contracts, and personal appearance contracts. They also provide media coaching, and offer a network of advisors for referrals. Remarkably, despite starting Orpheus less than two months ago, Joe and Chris have already secured a bevy of clients, including San Francisco Giants pitching prospect Ryan Shaver, former University of Mississippi basketball star Justin Johnson, and former University of Idaho basketball star Dandrick Jones.

So what makes Orpheus Sports and Entertainment work, and why has it worked so quickly? Keep in mind, the instant success of Joe and Chris is unlike the experience of most sports and entertainment companies; many sports agents have no clients: In 2002, the National Football League Players' Association reported that while there were 1,196 certified football agents, more than 800 had no clients--meaning that more than 2/3 of NFL licensed agents had no NFL clients (granted, some may have had clients in other sports, but you get my point).

I suspect the uniquely fast start exhibited by Joe and Chris has to do with at least three professional and personal assets.

1) Practical Experience & External Awareness

For seven years, Joe practiced corporate law and sports law at two prominent Boston law firms (Goulston and Storrs and Testa, Hurwitz & Thibeault). During that time, he was able to receive "big firm" training, while also making important contacts in the sports and entertainment industry. Through those contacts, he was able to bring in his own clients. In fact, Joe was the driving force behind the implementation of the sports and entertainment division of Goulston and Storrs' corporate group. He also partook in less traditional external activities, such as writing for the Pro Football News Network, and contributing commentary to Sports Law Blog, Off Wing Opinion, and main stream media. In other words, Joe used his time at a big firm to learn how to practice law and to cultivate an outside network of industry contacts.

Like Joe, Chris brings with him seven years of big firm practice. He served as Chairman of the Sports & Entertainment Group at the law firm of Murtha Cullina in Boston and was a senior associate in the firm's litigation department. And like Joe, Chris was able to parlay a big firm experience into learning how to practice law in a setting rich in resources, while simultaneously making important contacts in the sports and entertainment industry. Through those contacts, he too was able to bring in clients at an early stage of his career.

Both Joe and Chris also attended conferences and meetings, including the annual Sports Lawyers' Association conference, and they have or will be speaking at assorted symposia (e.g., this November, Joe and I will be speaking at the Case Western Reserve School of Law's symposium "Sports and Eligibility: Who is Eligible to Play?"). In short, they received valuable training at their big firms, while also being engaged in professional activities that were "external" to their big firm experience, such as broadening awareness of their talents and developing industry contacts. Thus, for those seeking to enter into sports law, remember that it is important to "network" at functions outside of the firm, and make those in the industry aware of your talents--including through on-line contributions.

2) Teaching Experience

In addition to their legal practice, both Joe and Chris serve as adjunct professors of law at Boston College Law School, where they teach sports law and entertainment law courses. By teaching, Joe and Chris likely stay on top of emerging issues in sports law, which can enhance the quality of their representation and boost their awareness of new strategies for client recruitment. Indeed, by engaging in frequent debate and discourse, teaching law can dramatically improve one's negotiating skills. Moreover, teaching likely makes them better communicators, and more capable responders to questions. All of those benefits likely bolster their sports law practice.

3) Decency and Work Ethic

Many people dismiss sports agents as unethical and unsavory, but I suspect most agents are, like most people, decent folk. Joe and Chris are no exception. I can vouch for their honesty and generosity, as well as their work ethic, and I suspect those traits translate well when recruiting prospective clients and appearing credible to the families of those prospective clients. The fact that Joe and Chris have so quickly secured clients appears to evidence that point. Those traits also increase the likelihood that Joe and Chris can develop long-term relationships with general managers, and thus be able to more readily place clients than can other sports agents.

For more on Orpheus Sports and Entertainment, check out their website. Especially for those of you interested in becoming sports agents, Joe and Chris would be great guys to contact (and they would welcome your calls and e-mails).

Friday, September 16, 2005

More on Roberts and Umpires

I am afraid I have to disagree slightly with Mike's assessment of Judge Roberts' umpire analogy (9/14). As a youth baseball umpire for nearly eight years, and also a follower of the judiciary, I believe that Roberts' simile is an apt comparison, perhaps not of what judges always are, but of what they should be. As this hearing is largely about what Roberts will do on the Court, and what the proper role of a Supreme Court Justice is, the analogy takes on a new significance.

"Judges are like umpires. Umpires don't make the rules; they apply them." I concede the point on accountability, but that does not make the analogy unsound. Just as every judiciary has its corresponding legislature, baseball has its governing body that sets forth the rules of the game. As neutral arbitrators, both umpires and judges should apply the rules set forth by these bodies, regardless of personal beliefs, biases or preconceived notions. An umpire should not change the rules for his favorite team; a judge should not adjust the law to benefit a favored litigant. This does not mean that judges and umpires are unthinking robots -- indeed, far from it.

The mark of both a good umpire and a good judge is the ability to apply established rules to new, unexpected situations. It is here that the analogy is stretched the furthest -- it is rare that umpires encounter situations unimagined in the rules. But it does occur. In 1984, Dave Kingman hit a towering flyball in the Metrodome in Minnesota. After several seconds, the players and umpires realized that the ball was not coming back down -- it had gotten stuck in the roof. Faced with a situation not covered in the ground rules, the umpires made a sound decision, awarding Kingman a ground-rule double. After the incident, the rules of the stadium were changed to formally adopt the umpires' judgment. An umpire, like a judge, must be able to do more than blindly apply established rules. But also like a judge, an umpire should not change the rules on a whim. The Angel Hernandez strike zone example given by Mike is an example of "umpire activism."

"The role of an umpire and a judge is critical. They make sure everybody plays by the rules." Much of what I said above applies here. A good judge, like a good umpire, should have the same rules regardless of the player and team involved. But, as an umpire is apt to give more leeway to an established player, so too is a judge more likely to be convinced by a seasoned attorney. Barry Bonds gets the benefit of the doubt on balls and strikes because he has an excellent reputation as knowing the strike zone. The Court might be more receptive to arguments made by Laurence Tribe because they know his reputation as a brilliant legal mind. Bonds can still strike out; Tribe can still lose. But you cannot fault the neutral arbitrators from viewing them in a slightly different light -- as I said above, umpires and judges are humans, not robotic applicators of rules. In the end, it is their good judgment that keeps them anchored to the laws, and not to personal feelings.

"The role of an umpire and a judge is critical . . . But it is a limited role. Nobody ever went to a ball game to see the umpire." The first part of this statement is undoubtedly true. Judges and umpires both play critical roles, but neither should be the focal point. At the end of the game, if no one has noticed the umpire, he has done his job perfectly. And people do line up to see Supreme Court cases, but are they lining up to see the Justices, or to see the Court? I submit that those waiting outside are not clamoring for a view of Justice Scalia or hoping to get the autograph of Justice Souter. Regardless of who sits in those nine chairs, people come to see The Court -- the institution that occupies such a hallowed, and important, place in the American legal system. In this way, "fans" are coming to see "the game" and "the stadium," not the individual "umpires." Justices should not attempt to be stars and should not try to be bigger than the Court as an institution.

Because long after we are all gone, my hope is that both baseball and the Supreme Court still exist, and people are still lining up to see both, confident in the neutrality of the arbitrators and the fairness of the outcome.

Wednesday, September 14, 2005

Evaluating Judge John Roberts' Analogy of Justices to Umpires

Sports Law Blog readers John M. Powers, Jr., an attorney at the Henderson Law Firm in Phoenix (and also a former minor league baseball player), and recent Dartmouth grad Will Li brought to my attention Judge John Roberts' opening remarks to the Senate Judiciary committee, and specifically his analogy comparing justices to umpires.

Judge Roberts stated:
Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them.

The role of an umpire and a judge is critical. They make sure everybody plays by the rules.

But it is a limited role. Nobody ever went to a ball game to see the umpire.

It is an interesting analogy by the man who will likely become the next Chief Justice of the United States Supreme Court, and who will remain so for perhaps the next 30 or 35 years. And it is from a man who understands sports. Back in July, we discussed how Judge Roberts--the captain of his high school football team--is a sports fan and a sports lawyer (he was the NCAA's lead counsel in NCAA v. Smith, 525 U.S. 459 (1999), from which he secured an impressive 9-0 victory, with the majority opinion authored by Justice Ruth Bader Ginsburg). So we know that his reference to umpiring is based on some appreciation for sports, and not an artificial attempt to sound "normal" during his Senate confirmation hearing (something that, of course, Judge Robert Bork failed to do in his Senate confirmation hearings back in 1987).

But is Judge Roberts' analogy accurate? Let's look more closely at his exact remarks, of which there are three key statements.
Roberts' Statement 1: "Judges are like umpires. Umpires don't make the rules; they apply them."
A rhetorically-appealing comment, no doubt, but not entirely accurate in practice. Granted, a literalist would agree with Judge Roberts: umpires and judges don't "make the rules," they just apply them.

But what happens when, say, one MLB umpire intentionally employs a different strike zone than is enunciated by umpiring rules? Angel Hernandez is one such umpire. He often draws the ire of fans and players for his uniquely-wide strike zone. In using a modified strike zone, is Hernandez merely applying the standard MLB strike-zone according to his own interpretation, or is his interpretation so far off that he is essentially replacing the standard rule with his own rule? If Hernandez' strike zone is indeed "different" from the rules, then isn't he "making the rules" rather than applying them?

Now, one might argue that umpires don't "make rules" such as strike zones because there are two deterrences that should disuade them: 1) the Questec Umpire Information System tracks the quality and accuracy of umpiring, and that data is used by the MLB in ranking umpires; and 2) umpires are evaluated at the end of each season by MLB, and the lousy ones can lose their jobs, or suffer less severe sanctions, such as not being invited to umpire playoff games. For that latter reason, Hernandez presumably can't be as bad as some of his critics allege, or otherwise he wouldn't have been an MLB umpire over the last 12 years. In that respect, his unique strike zone appears more like interpretation than invention.

But that just begs a question for Judge Roberts: if umpires are indeed like Supreme Court Justices, then where is the "Questec system for Justices," and how are bad Justices held accountable? Unfortunately for Judge Roberts and his analogy, there is obviously no "Questec for Justices," and since Justices receive life-time appointments, bad Justices aren't held accountable. Now sure, trial and appellate judges risk their decisions being overturned on appeal, but U.S. Supreme Court Justices don't share that fear: their word is the last one on any given subject. And that, of course, illuminates how Justices and umpires are engaged in disassociated activities: Justices write opinions that are subjectively-evaluated without repercussion, while umpires apply rules that are objectively-evaluated with repercussion.

Evaluation of Statement 1: Thumbs Down
Inaccurate in both concept and practice, and it ignores how deterrence and supervision distinguish Justices from umpires: Justices enjoy almost dictatorial power over the law--and that enjoyment lasts for the remainder of their lives--while umpires must watch out for their jobs if they stray too far from the rule book.

So let's turn to Statement 2.
Roberts' Statement 2: "The role of an umpire and a judge is critical. They make sure everybody plays by the rules."
Judge Roberts, the rules according to who? His generic statement fails in its application: judges and umpires can apply rules in ways that create uncertainty and unfairness. For instance, if umpires exist to ensure that everybody plays by the rules, then how come NFL line judges often refrain from calling offensive holding, even when they see it? And why do NBA officials not call fouls on superstar players with the same frequency that they call them on regular players (i.e.,"the Michael Jordan rule")? And why do NBA officials tend to call more fouls on visiting teams than on home teams? Are umpires really then, as Judge Roberts contends, "making sure everybody plays by the rules" or only some persons, some of the time, and in some places?

Evaluation of Statement 2: Thumbs Down
A wonderful ideal that doesn't exist in reality. Maybe Judge Roberts' comment would play over well in the Field of Dreams or that home court in Hoosiers, but not in Fenway Park or Madison Square Garden. In other words, another bland, even misleading precept shared by Judge Roberts. It may sound reasonable and appealing in sound-byte, but it appears incompatible with how things really work in sports. And as former lead counsel for the NCAA, Judge Roberts is presumably aware of that--which makes one wonder about his motivations for using the Justice-umpire analogy.

Lastly, let's look at Statement 3.
Roberts' Statement 3: "The role of an umpire and a judge is critical . . . But it is a limited role. Nobody ever went to a ball game to see the umpire."
I agree with Judge Roberts that nobody ever went to a ball game to see an umpire. But is that really true with judges, and particularly Supreme Court Justices? I appreciate Judge Roberts' humility and his sense that he and his colleagues on the Supreme Court shouldn't be the center of attention, but there's a reason why people wait in long lines to see the Supreme Court in action, regardless of the case. I remember taking a high school trip to Washington D.C. and waiting in a long line--early in the morning--to watch a mere two minutes of oral arguments at the Supreme Court. We didn't know or care what the arguments were going to be about, and we didn't understand them when they occurred, but we wanted to watch the Justices in action. That's why we were there.

Perhaps more telling, people don't write biography after biography about umpires, who are generally unknown and remain so throughout their careers. In fact, it is often said that the best umpires are those who are never noticed. But that's not true of judges, who are frequently the subject of biographies, law review articles, and media. And that is particularly true of Supreme Court Justices--another indicator that judges--unlike umpires--can often be the main attraction, rather than the mere referee. Along those lines, the potential apex of any attorney's career is to become a United States Supreme Court Justice. That's the high-water mark, and less than .0000000000000000001% of attorneys ever obtain it. Thus, for Judge Roberts to suggest that Justices, like umpires, are just there to "regulate the game" ignores the fact that Justices are the game.

Evaluation of Statement 3: Thumbs Down
Inaccurate, much like Statements 1 and 2. Perhaps it reflects Judge Roberts' humility, but it doesn't reflect reality. I recognize that Judge Roberts wants to convey to his critics that he is not going to radically change existing laws, particularly those impacting controversial social issues. But perhaps he might want to try better sports analogies next time. And one would think that the former lead counsel for the NCAA could do a lot better.

Monday, September 12, 2005

Welcome Massachusetts Lawyers Weekly Readers

A gracious thank-you to Attorney David Frank, news editor of Massachusetts Lawyers Weekly, for his article on Sports Law Blog in this week's publication. (Frank, "Couple of Good Sports," Massachusetts Lawyers Weekly, 9/12/2005). David, along with Attorney Scott Gilefsky, co-hosts Sports Court on Sporting News Radio Boston on Sundays from 6 PM to 8 PM.

Here are some excerpts from the piece, which appears on page 5:

So, what do sports and law have in common? For a pair of recent Harvard Law School graduates, the answer is a lot.

Michael A. McCann and Greg L. Skidmore have developed the Sports Law Blog into a nationally recognized website that explores the legal issues in sports through postings and lively e-mail debate amongst readers.

"When the site began, no one expected it to grow," Skidmore, 25, comments. "It was something fun to do and not anything we thought would actually become popular."

Two years after its creation, though, the Sports Law Blog receives between 3,000 and 4,500 visitors per week and has become a must-read for a wide-audience.

Skidmore and McCann, who write all of the postings on the site, say they feel their readership includes individuals from legal and non-legal backgrounds.

"Our hits have skyrocketed this year," 29-year-old McCann notes. "Having an audience that you don't want to lose makes you want to work harder and it gives you a real sense of reward. It's been incredible to have experienced lawyers tell me that they've read an article I've written and feel that I turned a subject on its head" . . .

Recent subjects have included the legal consequences of Red Sox officials banning the displaying of offensive signs and shirts at Fenway Park, the role that insurance plays in baseball and other action sports, and U.S. Supreme Court nominee John G. Roberts Jr.'s views on sports and his work on a Title IX sex-discrimination case.

For more on the story, Massachusetts Lawyers Weekly is available in most book and magazine stores in Massachusetts. If you live there, we hope you pick up a copy.

For those of you have just discovered Sports Law Blog, either through David's piece or otherwise, please take a look at a sampling of our works, which we compiled a couple of weeks ago for a story on the Blog by Mark Hyman in Street and Smith's Sports Business Journal.

Perhaps most importantly, we thank all of our readers and those who contribute comments and e-mails. We are truly grateful for your contributions to this website.

Do Colleges and the NCAA Have a Heightened Duty of Care for Student-Athletes with Sickle Cell Trait?

Jennifer Price and Dusty Luthy have an extensive piece in the Columbia Missourian on the recent deaths of two college football players: Devaughn Darling of Florida State University (died at age 18 in February 2001) and Aaron O'Neal of the University of Missouri (died at age 19 in 2005). (Price & Luthy, "Autopsy Results Probed," Columbia Missourian, 9/11/2005). Both players died immediately after partaking in rigorous training sessions that were supervised by their teams' coaching and training staffs. The sessions were also conducted in very hot and humid conditions, and both players complained of chest pain and dizziness while exercising.

In futilely attempting to treat their infirmed players, neither Florida State University nor the University of Missouri were aware of a critical piece of information: Both Darling and O'Neal carried the sickle cell trait, meaning they inherited from one parent a normal hemoglobin gene (hemoglobin is a protein within red blood cells that carries oxygen throughout the body), and a sickle hemoglobin gene from the other parent. In practice, sickle cell trait can have little or no effect on a person's life activities, although some with sickle cell trait may develop blood in their urine, and others may feel pain while flying in unpressurized planes at high altitudes. Sickle cell trait should be distinguished from sickle cell disease, which refers to when a person inherited a sickle hemoglobin gene from each parent. Sickle cell disease may cause a blockage of blood flow, a phenomenon that can trigger serious complications, such as stroke, kidney damage, and lung blockage. Importantly, since a person with sickle cell trait inherited a normal hemoglobin gene, his sickle cell trait cannot develop into sickle cell disease. In striking contrast to the dire effects of sickle cell disease, the primary drawback to sickle cell trait pertains to child-rearing: when both a man and woman with sickle cell trait have children, their children have a 25 percent chance of being born with sickle cell disease.

As noted in the preceding paragraph, serious health complications are thought to be rare with sickle cell trait. Nevertheless, David Craig, the medical examiner of Devaughn Darling, concluded that while there was no definitive cause of death, Darling had developed red cell sickling in most of his blood vessels. This condition can lead to a fatal cardiac arrest: “Although rare, sudden unexpected death has been associated with healthy, athletic males with sickle cell trait." Craig's observation suggests that the stress imposed on Darling's body during practice may have morphed his sickle cell trait from a benign condition into a deadly infirmity. Valerie Rao, the medical examiner of Aaron O'Neal, concluded otherwise with her examinee: lymphocytic meningitis, and not sickle cell trait, had caused his death. However, subsequent medical opinions disagreed with Rao, contending that she too quickly dismissed the salience of sickle cell trait in O'Neal's death, particularly given Craig's examination of Darling.

The notion that athletes with sickle cell trait may be at great risk is a developing theme in medical and science literature. Indeed, new research suggests that taxing training conditions can exacerbate the danger of sickle cell trait. According to Michael Bergeron, an applied physiologist at the Medical College of Georgia and American College of Sports Medicine fellow, "given the right conditions of strenuous exercise, dehydration and heat strain, sickling can occur and that can lead from mild symptoms of discomfort to severe pain to significant organ damage and ultimately to death.” Similarly, Dr. John Kark, M.D., a former professor at Howard University Medical School and a leading expert on sickle cell research, contends that those with sickle cell trait have a multiple-fold increase of dying from sudden death whenever engaged in strenuous, high-heat activities (such as military boot camp or demanding football practices).

Not surprisingly, both Darling's and O'Neal's deaths triggered legal action. Last year, Darling's parents filed a wrongful death suit against Florida State University, alleging that the school had failed to treat their son after he complained of dizziness and chest pains. As a matter of background, a wrongful death lawsuit usually entails an allegation that a person was killed as a result of the negligence on the part of the defendant. The Darlings and Florida State University settled, with FSU agreeing to pay the Darlings $2 million. As to O'Neal, his parents recently filed a wrongful death suit against the University of Missouri, alleging that the Missouri athletic staff were negligent in waiting too long and doing too little to respond to O'Neal's symptoms. As noed above, neither FSU nor the University of Missouri were aware the players had sickle cell trait.

The schools' lack of awareness as to the players' sickle cell trait may pertain to NCAA philosophy. Namely, the NCAA appears unconcerned by the risk of sickle cell trait to student-athletes. In fact, it describes sickle cell trait as a “benign condition that does not affect the longevity of the individual” and not a barrier to “outstanding athletic performance.” Moreover, the NCAA Committee on Competitive Safeguards and Medical Aspects of Sports does not recommend that colleges ask applicants if they have sickle cell trait.

Adding to the question of legal liability is the sociological question of race. Sickle cell trait and sickle cell disease disproportionally afflict African-Americans and, to a lesser extent, those of Arabian, Indianan, Turkish, and Greek ancestry. In fact, one in 12 African-Americans has the sickle cell trait, and 1 in 500 has sickle cell disease. For that reason, apparent indifference by team and NCAA officials to the health concerns of athletes with sickle cell trait might trigger questions of racial insensitivity. Of course, the counter-argument is that coaches have a vested and selfish interest in seeing all of their players healthy; otherwise, their team may not perform as well. Moreover, even if limited resources forced coaches into calibrating levels of therapeutic care among players, such levels would presumably be based on expected performance, rather than on race -- the team's star player would likely get the best care (since the coach wants him back and back healthy ASAP), while the team's version of "Rudy" would likely get the worst.

It will be interesting to watch if potential tort liability and sociological concerns encourage colleges and the NCAA to modify their treatment of players with sickle cell trait. It appears plausible that colleges will soon begin to request that information from student-athletes prior to their engagement in team practice, particularly if those practices require heavy exertion in warm, humid weather. In addition to obtaining such information, college trainers and medical staff might modify their standard operating response to players with sickle cell trait that exhibit any dizziness, stomach aches, or related conditions. In other words, there would be an elevation of the "legal duty" owed by colleges to their student-athletes who carry sickle cell trait.

Moreover, though the NCAA was not sued by either Darling or O'Neal, one suspects that their official position on sickle cell trait -- that it is not a threat or an impairment -- might trigger liability should future deaths arise that involve sickle cell trait. On the other hand, there remains a scientific debate as to whether sickle cell trait actually increases the likelihood of death for those players, and perhaps colleges and the NCAA will resist acting until that debate is resolved.

Thursday, September 8, 2005

It's Not About Being an Attorney

Syndicated columnist Bob Novak has a seething piece on Real Clear Politics in which he argues that because DHS Secretary Michael Chertoff and FEMA Director Michael Brown are attorneys, they have incompetently handled Hurricane Katrina. He doesn't offer any reasoning as to why the legal training of Chertoff and Brown is somehow relevant to their performance, but he begins and ends the column with the same conclusion: get the lawyers away from the relief efforts and things will get better.

Novak's premise is absurd. Sure, Secretary Chertoff and Director Brown have failed rather spectacularly, but so have a number of others who aren't attorneys. Louisiana Governor Kathleen Babineaux Blanco isn't an attorney (she holds a B.S. in business education from the University of Louisiana), and neither is New Orleans Mayor Ray Nagin (who I think has done some good things and has at least spoken candidly)--he holds a B.S. in accounting from Tuskegee University and an M.B.A. from Tulane University. And how about President Bush and Vice-President Cheney, the duo from whom the buck ostensibly stops? Neither are attorneys (Bush holds a B.A. from Yale and an M.B.A. from Harvard, while Cheney holds bachelors and masters degrees from the University of Wyoming). The same can be said of top White House strategist Karl Rove, who attended the University of Utah.

In other words, almost all of the decision-makers are not attorneys, and yet Novak's premise is that the attorneys are at fault. Moreover, even if Chertoff and Brown deserve most of the blame, how is their legal training relevant? Novak doesn't say. And why doesn't he say? Because it's not relevant. Brown's failures probably have most to do with his missing qualifications: he's a GOP operative who's loyalty to Bush and friendship with former FEMA Director Joe Albaugh got him the job. I'm not sure why Chertoff has failed, but I don't think his Harvard Law degree has anything to do with it (at least, I hope not).

Lastly, if attorneys are so inept at managing relief efforts, then how come former New York Mayor Rudolph Giuliani--a graduate of NYU Law School and a former US Attorney--did so well in responding to the September 11th terrorist attacks?

I admit: this post is "law" and not "sports," but sometimes you read such an incongruous anti-lawyer piece that you feel compelled to respond.

Wednesday, September 7, 2005

NCAA v. Yeo: Does the Law Lose its Meaning When Fairness is Ignored?

Eric McErlain of Off Wing has an engaging take on NCAA v. Yeo, which we discussed earlier today:
Can somebody tell me where there might be a scintilla of fairness or justice in this kind of decision? I know competing in intercollegiate athletics are a privilege, not a right, but just whose interest was served by such a non-sensical ruling (on the part of the NCAA, not the court), especially after Yeo declined to participate in NCAA competition for a full year?
His post, entitled "The Monster that is the NCAA," generates interesting reader comments, and be sure to also check out the excellent reader comments generated from our post below.

Although NCAA v. Yeo may be a correct ruling by the Texas Supreme Court, it begs the question of why have laws when the "correct" result is so profoundly unfair? Along those lines, notes McErlain,
As I've written before, if an athlete has to sit out of competition for a year if they transfer, then it is only fair that same rule apply to coaches and university administrators as well. But like Congress, the mandarins of Kansas City wouldn't dream of holding themselves to the same standards of behavior that they demand of the athletes they regulate.

Feasibility of Lawsuits by Athletes Against Coaches and Schools for Lack of Playing Time

Timothy Epstein, an associate at O'Hagan, Smith & Amundsen in Chicago, recently published an excellent law review article entitled "Splinters from the Bench: Feasibility of Lawsuits by Athletes Against Coaches and Schools for Lack of Playing Time." The article appears in Volume 4 of the Virginia Sports and Entertainment Law Journal (2005). It discusses the feasibility of lawsuits brought by athletes against their coaches and schools for lack of playing time--a timely topic in light of NCAA v. Yeo, No. 03-0753, 2005 Tex. LEXIS 606 (August 26, 2005).

Yeo features a superstar college swimmer that ran afoul of the NCAA and it's myriad, and often confounding set of eligibility rules. Specifically, Joscelin Yeo, a native of Singapore, first attended University of California at Berkeley, but then transferred to the University of Texas in 2000 after her UC Berkeley coach took a job there. Pursuant to NCAA rules, UC Berkeley disallowed Yeo from swimming for UT for one year following her transfer (UC Berkeley could have, but didn't, sign a waiver exempting Yeo from that rule). As a result, UT deemed Yeo ineligible to swim for its team; otherwise, it risked sanction from the NCAA. Yeo then did not enroll in UT classes for the fall semester of 2000, instead competing for the Singapore Olympic team. She then enrolled in classes for the spring semester of 2001, and when fall 2001 semester started, Yeo and UT assumed that she had satisfied the one-year wait, and she started swimming for UT. They were wrong: because Yeo did not enroll in classes in the fall, that semester did not count toward her one year wait. The NCAA then ruled that she was ineligible to swim for the rest of the spring + the number of events she partook in the spring. But then it gets worse: UT tried to get around the added penalty by simply adding early events in the spring 2002 season. Berkeley complained, and, with sanctions looming, UT again deemed Yeo ineligible.

Understandably frustrated with the whole process, Yeo then sued the NCAA, claiming that UT never provided her notice of a hearing or a hearing in its decision. She won her trial, with the court granting a temporary restraining order and permanent injunction, thus allowing her to compete. The NCAA appealed, and lost, with the appellate court finding that (1) Yeo had already established an outstanding athletic reputation not only in her native Singapore, but throughout the world; (2) if NCAA rules did not forbid it, said fame would allow her to immediately reap the benefits of marketing and endorsement monies, while her athletic abilities would allow her professional compensation as a member of Singapore's national team; and (3) UT represented to Yeo that if she were to transfer to Berkeley, UT would not endanger Yeo's NCAA eligibility. Based on these facts, the appellate court ruled that Yeo had established an athletic reputation prior to attending Berkeley and competing under NCAA regulations, which was "a protected interest for purposes of due course of law." The appellate court did acknowledge that the due process protection that Yeo should have received was fact-specific, though, "depending on that athlete's specific situation and reputation." In other words, exceptional athletes like Yeo enjoy greater protection than other, not as noteworthy competitors.

The Texas Supreme Court disagreed, though, affirming the principle laid down by the U.S. Supreme Court in Board of Regents of State Colleges v. Roth, 408 U.S. 564, 570-571 (1972), that due process protection is afforded to something based on its nature, not its weight. NCAA v. Yeo, No. 03-0753, 2005 Tex. LEXIS 606 (August 26, 2005). As such, the court found that, "the nature of one's interest in a good reputation is the same no matter how good the reputation is."

The court did not stop there, though. Following the determination that Yeo's reputation enjoyed no greater due process protection than anyone else's, the court found Yeo's financial damages to be too speculative. "While student-athletes remain amateurs, their future financial opportunities remain expectations." Further, the court refused to equate the interest in intercollegiate athletic participation to that in graduate education.

The court then concluded with a chilling warning to potential claimants in disappointment lawsuits:
We have twice reminded the lower courts that 'judicial intervention in [student athletic disputes] often does more harm than good.' As the Fifth Circuit has said, judges are not 'super referees'. Along the same vein, the United States Supreme Court has observed: 'Courts do not and cannot intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values.' We reiterate this counsel to the trial courts and courts of appeals.
According to Epstein, while this decision strikes a blow to potential "disappointment" plaintiffs, the tremendous "compensation" available to athletes in the form of scholarships, salary, and product endorsement, coupled with the growing amount and sophistication of athletic ability ratings systems and services, suggest these types of lawsuits will likely continue to be filed. For further analysis of this topic see Epstein's article in the latest issue of the Virginia Sports and Entertainment Law Journal (4 VA. Sports & Ent. L.J. 174).

Sunday, September 4, 2005

Chief Justice William Rehnquist Dies: A Look at His Passion for Sports and the Future of the U.S. Supreme Court

Chief Justice William Rehnquist passed away yesterday at the age of 80. The valedictorian of Stanford Law School in 1951, Rehnquist served on the Court for 33 years, the last 19 as Chief Justice. What you might not know about Rehnquist was his passion for sports. He was a cross-country runner at his suburban Milwaukee high school, and played tennis competitively into his late 70s. He was also said to be an avid sports trivia buff.

Despite his position, fame, and intellect, Rehnquist was regarded as a regular guy when outside of the Court. An afficiando of Miler Lite, Rehnquist enjoyed watching sports on TV with beer in hand. According to Joseph Hoffman, a law professor at Indiana University and a former Rehnquist clerk, Rehnquist "came across as a person of grandeur and importance [but] if you saw him on the street, you'd expect him to be the kind of guy coming out of a bowling alley or a corner pub, not one of the most powerful people in America."

Perhaps Rehnquist's passion for sports influenced his style as Chief Justice. Known to embrace rules and efficiency, Rehnquist seemed like the Bill Belichick of Justices: he avoided making favorites among attorneys who frequently argued before the Court, and he would sharply cut off any attorney who went over the time limit--and would do so without pleasantry--just as he would unreluctantly dispense disagreement without worrying about hurting anyone's feelings or upsetting the legal community around him. He also expected decisions be written quickly by his Associate Justices (much like, I imagine, Coach Belichick expects of the game prep by his assistant coaches).

So who will replace Rehnquist? It remains to be seen, but my money is on President Bush changing John Roberts' nomination from that of Associate Justice to that of Chief Justice, with Justice Sandra Day O'Connor staying on (she hasn't resigned yet) until another nominee, perhaps Janice Rogers Brown, is confirmed.

For several reasons, it would be reasonable for President Bush to move Roberts from Associate Justice nominee to Chief Justice nominee. First, it would be unusual for President Bush to nominate a current Associate Justice for Chief Justice: 11 of the 16 Chief Justices in U.S. history had not been Associate Justices. That may surprise some, but contrary to popular belief, both outside nominees for Chief Justice and Associate Justices nominated for Chief Justice have to be confirmed by the Senate. Chief Justice Warren Burger, for instance, was--like Roberts--serving on the U.S. Court of Appeals for the D.C. Circuit at the time of his nomination by President Nixon in 1969. Similarly, Chief Justice Earl Warren was Governor of California when President Eisenhower nominated him to become Chief Justice in 1953. Second, Roberts possesses certain characteristics that might make him both a natural successor to Rehnquist and an appealing choice for President Bush: he's a former clerk to Rehnquist, relatively young (50), conservative but not--from what we can tell--extremist, and, perhaps most importantly, a near sure bet to be confirmed.

As a nominee for Associate Justice, Rodgers, 56, would be more of a wild-card choice. Formerly an Associate Justice on the California Supreme Court, Rogers is African-American and considered ultra-conservative. Though she recently received Senate confirmation to the U.S. Court of Appeals for the District of Columbia Circuit, her philosophical views might precipitate a rough Supreme Court confirmation hearing. Moreover, her views, like those of Justice Clarence Thomas, may not be embraced by many in the African-American community. On the other hand, many expect President Bush to nominate a woman, and given the President's disastrous management of the New Orleans Hurricane Relief Effort, perhaps he will (and should) feel an extra obligation to nominate an African-American, even one that engenders a lukewarm response from the African-American community.

So I predict the new Court will be:

John Roberts (Chief Justice)
John Paul Stevens
Antonin Scalia
Anthony Kennedy
David Souter
Clarence Thomas
Ruth Bader Ginsburg
Stephen Breyer
Janice Rogers Brown (replacing Sandra Day O'Connor)

Related Post: Judge John G. Roberts and Sports Law, 7/24/05 (as featured in the Washington Times)