Monday, July 31, 2006

The Pursuit of Happiness

I read a lot of philosophy, and there is no part of philosophy that I enjoy more than the question of happiness. And why is this? Because I agree with Aristotle that happiness is the end or purpose of life. It is what we seek for its own sake. Ask anyone why they do anything, and their logic will eventually end with the statement that they are doing this to be happy.
The problem with Aristotle is that he really never tells us what happiness is. He comes to a logical dead end. I think Epicurus answered Aristotle's problem by defining happiness as pleasure. Religious people desire heaven or paradise which is always described as a place of immense and unending pleasure. The same is true of drug addicts, athletes, or what have you. They all seek some pleasure as their end.
Where Epicurus comes up short is that he defines pleasure as the absence of pain. The result is a prescription of simplicity, mild asceticism, and boredom. The reality is that pleasure is multiple. For some people, it is simply a case of getting drunk and getting laid. For the workaholic, it is simply a matter of performing labor that is satisfying. By looking at life, we must conclude that pleasure and happiness is not the same for everyone. This is probably a good thing since if it were I doubt any of us would be very happy. For instance, I find pleasure in listening to music, but I wouldn't have music if someone didn't find pleasure in creating it.
My viewpoint on this is a blending of Aristotle and Epicurus. I believe happiness comes from finding the things you enjoy doing and then just doing them. Happiness is the pleasure that comes from a life of productive activity. Activities such as drinking or screwing can be fun, but they have their limits. I also don't see the pleasure people derive from hurting others.
I think if Aristotle and Epicurus had gotten together that Aristotle would have simply worked out a taxonomy of pleasures. For instance, there is the pleasure that comes from friendship, the pleasure that comes from virtue, the pleasure that comes from hard work, etc. There are also the pleasures that sick fuckers like the Marquis de Sade or a child molester would have. Not all pleasures are equal or valid.
The pleasures I enjoy the most come from intellectual contemplation, aesthetic enjoyment, hard work, writing, and eating fatty foods. This brings us to the discussion of virtues and vices. My tentative theory is that a virtue is a legitimate pleasure while a vice is an illegitimate pleasure. What makes something a vice is that it causes harm to either yourself or to others. Vices are simply excesses while virtues are the means between these excesses.
This is fascinating stuff to me. By synthesizing these elements, we find that a truly happy life comes from a life of virtue which is simply moderation in all things. I think this stuff could make a great book. It is definitely something I intend to explore.

Sunday, July 30, 2006

Two Lawyers Among Five NFL Commish Finalists

It looks like Secretary of State Condoleeza Rice, who is otherwise occupied, will not be the next NFL Commissioner, contrary to earlier speculation. Nor did Forida Governor / First Brother Jeb Bush make the cut. Instead, the NFL announced today the following five finalists, including two lawyers:
ROGER S. GOODELL, 47, New York, N.Y. Executive Vice President and COO, NFL
GREGG H. LEVY, 53, Washington, D.C. Partner, Covington & Burling law firm
FREDERICK R. NANCE, 52, Cleveland, Ohio. Partner, Squire Sanders & Dempsey law firm
ROBERT L. REYNOLDS, 54, Concord, Mass. Vice Chairman and COO, Fidelity Investments
MAYO A. SHATTUCK III, 51, Baltimore, Md. Chairman of the Board, President and CEO of Constellation Energy
The owners will apparently make a final decision from among these candidates between August 7 and 9. While handicapping the decisions of NFL owners is always a risky measure, the smart money would seem to be on non-lawyer Goodell. While current commissioner Paul Tagliabue held the same job as Covington partner Gregg Levy when he was appointed back in '89 (that is, principal outside counsel for the NFL), Tagliabue's appointment came at a different time for the NFL. The league had recently emerged from a major intra-league antitrust case (USFL v. NFL), which Tagliabue successfully defended (in the sense that the jury's verdict was a rather meager $1). The '80s were also a divisive time for labor relations in the NFL. A tough litigator like Tagliabue was the obvious choice at that time. But in today's era of labor peace and market dominance, a tough litigator may be make less sense than a business insider with a public relations background. Mr. Nance, Lebron James' lawyer, might trouble some owners because of his player-side experience (although the line between Lebron and the NBA as a league has certainly faded, and Mr. Nance does have some experience representing the Cleveland Browns). Shattuck and Reynolds, while certainly savvy boardroom leaders, would appear to lack the sports industry experience that usually inspires confidence.

The Law, Politics, and Linguistics of Fantasy Sports

Tim Lemke of the Washington Times has an excellent piece on how courts and Congress may address the growth of fantasy sports ("Licensing Case Could Hurt Rotisserie Sports," 7/29/2006). As also discussed recently by Geoffrey Rapp and Greg Skidmore (Geoff's post; Greg's post), Major League Baseball, which requires fantasy sports operators to obtain a license to use MLB statistics, is scheduled to go to trial on September 5 in a federal case against CDM Sports, a fantasy sports operator that claims that statistics generated by MLB players and teams should be useable without MLB's permission. In other words, CBC and MLB disagree on whether MLB has intellectual property rights in publicly-available statistics. Significantly, this is a case of first impression for fantasy sports, and should a holding eventually emerge (i.e., if the parties don't settle, which they probably will), it would have precedential value.

Considering that more $4 billion is spent annually on fantasy sports--with fantasy football and fantasy baseball leading the way--
leagues obviously have an interest in obtaining as much fantasy sports revenue as possible. So what legal arguments can they use to obtain that revenue? Here are a few arguments, each with its own set of flaws:

1) Statistics generated purely by league activities (i.e., the playing of games), comprise legally-protected league work product.

2) Fantasy league operators are using statistics not for a newsworthy purpose, but rather to profit off of them, and to do so with neither obtained consent nor payment made. There is precedent for this reasoning: baseball card companies and videogame companies must pay a fee for the use of team logos/colors/statistics etc., just as they must pay a fee for player names/images/statistics etc.

3) One might analogize league required licenses for commercial use of statistics to how movie and music industries require licenses in order to prevent pirated products.

Lemke also discusses how a recent effort by Congress to curb online gambling has exempted the fantasy sports industry. Specifically, in all three bills introduced in the 108th Congress that seek to prohibit Internet gambling (H.R. 21, H.R. 2143, and S. 627), the definition of “bets and wagers” excluded two types of activities: 1) certain financial instruments (stocks, commodities, derivatives, and insurance products) and 2) fantasy sports leagues.

Lemke interviews Christine Hurt and me for the political portion of story:
Why the exemptions?

"It makes passage more likely," said Michael McCann, an assistant professor of law at Mississippi College who specializes in sports law. "Most people like fantasy sports. It doesn't have that moral stigma that betting does. Fantasy sports can be just as addictive, but there's not as much outrage."

Supporters of the exemption argue fantasy sports are considered games of skill, but that characterization has angered some fans of online poker, who have pushed for their own exemption on the grounds their game is equally independent of luck.

The Senate could take up the online gambling bill when it reconvenes in September, but whether it will be passed into law is still unclear.

Perhaps the biggest reason for the fantasy sports exemption is that sports leagues, which have often railed against gambling because of its potential influence on the outcomes of games, have actually created and hosted their fantasy games, seeing them as a major part of what drives interest in their sports.

"Fantasy sports does not hurt the integrity of the sport, because it would almost be impossible to rig every game to make as much money" as straight betting on games, said Christine Hurt, a law professor at the University of Illinois who has examined Internet gambling laws. "Your success or failure doesn't depend on one team." But, she added, "if you're talking about the impact on the gambler, there's not that much of a distinction."
There's another portion of this topic to consider: the very use of the word "fantasy," almost as if
fantasy sports are somehow make-believe, even though real money is often used.

So what then distinguishes "fantasy" sports from online "gambling"? There are probably several things, including:

1) Fantasy sports are often more about staying in touch with friends and winning grudge matches than about making money; the subjective value of beating your friends in fantasy football is probably more valuable than the few hundred bucks you might make.

2) Some fantasy sports leagues do not involve money changing-hands, and are thus clearly not gambling in any way.

Any other thoughts about fantasy sports? Are they, in fact, "sports," much like poker or spelling bees are now apparently sports?

The Enemy is Islam

Watching all of the recent bullshit in the Middle East, I have to wonder what all of these people have in common. Osama bin Laden, a Sunni, hated al Zarqawi and hates Hezbollah, a Shiite sect. Iraq is torn by civil war between Sunnis and Shiites with Americans caught in the middle. The Arab world could give a shit about Palestinians, but they hate the Jews with a passion. What is wrong with all of these people?
The one thing all of these people have in common is that they are Muslim. They are united by a dogmatic belief in their dogshit religion and the acceptance of force and violence as a legitimate means of achieving conversion. This goes all the way back to the Prophet Muhammad himself. In short, they are religiously inspired fanatics who do not respect the lives, liberty, or property of those who differ with them. It doesn't matter if they are Sunni or Shiite.
The other thing that unites them is a hatred of the secular west and a hatred of Israel. They especially hate the Jewish presence in Jerusalem. This is purely religious. Looking back over history, you see that religion has always been the problem in this region of the world.
Is it possible to simply mind our own business and hope they will leave us alone? No, this won't happen. Despite its name, Islam is not a religion of peace. You don't see Buddhists or Hindus blowing up people and buildings or beheading them. And even if you convert to their religion, if you don't accept their version of Islam, you will probably find yourself dead anyway. These are not nice people.
These radicals know that secularism and freedom mean death for their thinking and ways. This is why they are universally opposed to democracy. But this should also tip off policy makers in the West. It is one thing to shoot and kill these fuckheads, but the fundamental way to beat Islamists is to question their religion. Islam isn't true. People find it hard to kill or die for something they suspect is a lie.
I don't know if it means airlifting copies of Darwin or what not, but this war will not be won until the Islamic world faces up to the fact that their religion is utter horseshit. It is an intellectual war, and it is one that needs to be fought. Islam will not be destroyed so much as hamstrung and castrated. There will always be fanatics, but if we can keep them trying to achieve some degree of intellectual credibility, viz. Christianity, then we will have made the world a better place.

Saturday, July 29, 2006

Playing for Peace: The Power of Basketball to Promote Peace

ESPN's Chad Ford--who is also a professor of international cultural studies at BYU-Hawaii, with a J.D. from the Georgetown University Law Center and an M.A. in conflict resolution from George Mason University--has two excellent articles on Playing for Peace, a non-profit organization founded in 2001 that uses the game of basketball to unite and educate children and their communities. The core idea of Playing for Peace is that when kids play basketball, they learn to work together on the court, and that makes them more likely to work together off the court. As a result, children from different and opposing demographic groups learn to view "the other side" with less fear and more objectivity. As they mature, they will hopefully continue to feel that way, thus making peace between the groups more likely. The program has been implemented with success in South Africa and Northern Ireland, and was instituted in Israel and the West Bank in December 2005.

Chad traveled to Israel back in May to see how well Playing for Peace had improved relations between Israeli and Palestinian children. Check out this ESPN article and an excerpt from Chad's Willamette Law Review article for more--they are must reads. The law review article is from the same Willamette Law School symposium on the Future of Sports Law that Chad, Rick Karcher, and I were a part of back in March.

Also, Playing for Peace will be featured tomorrow (Sunday, July 30) on SportsCenter and Outside the Lines. Check out both on ESPN. Particularly considering the current turmoil in the Middle East, any ideas for peace should be given serious consideration.

War is Expensive

I am against war. This does not mean that I am a peace loving hippie who would run and smoke dope instead of protecting himself. I am a big believer in having a strong national defense. But I would prefer to never have to use it.

If you've noticed the rising prices at the gas pump, then you know that war comes at a price. War is destruction--pure and simple. It takes a nation's resources and squanders it all in an attempt to destroy another nation's resources for the sake of politics, religion, or what have you.

War is the primary occupation of the parasites that I call the political class. In the days of feudalism, lords would wage war on other lords. This was because the lords had lots of leisure time and were given to theft since this was how they made their way in the world. Once a tyrant has cowed his people into submission, he must turn to other conquests which usually involves taking land and resources from some other tyrant. This thinking persists even to this day. Much of Hitler's conquests were fueled by the insane demands of the German welfare state. In order to keep Germany going, he had to steal from other countries.

Welfare and war also go hand in hand. It surprises people to learn that Hezbollah runs many social welfare programs. It does not surprise me. All political groups use welfare to buy off the public from governments to terrorists groups to leaders of organized crime. People are willing to overlook a great many atrocities and injustices if they are getting some cold hard cash in the process.

In all of this, you can see that warfare is antithetical to liberty, prosperity, and the free market. It is the occupation of thieves and parasites who cannot produce but must loot and destroy. The current crisis in the Middle East has less to do with Israel's occupation of Palestine than it does with Iran and Syria's political aims. They co-opt the Palestinian struggle as a moral justification for their tyranny. But don't be fooled by all of this. The leaders of Iran and Syria want power, and there are those in the West who will use the latest crisis to follow their own course of looting and destruction. Meanwhile, the price tag for all of this goes higher and higher.

The real tragedy in all of this is Lebanon. Here was a country torn by war that decided to give peace a chance and move on with things. The result of this was miraculous as Lebanon began to return to its previous glory. It is really a great country from what I hear. Now, it has been ruined by Hezbollah--a foreign funded terrorist organization which was founded to "protect" Lebanon. Instead, it was a cancer that was in remission but has returned with a vengeance. Peace meant death for Hezbollah. So, they started a war.

It is pretty sad to see all of this, but it is not surprising. Where it will go only time will tell. I just hope people realize the true reasons behind all of this conflict.

Friday, July 28, 2006

Top 50 Earning Athletes in the United States

Jonah Freedman of Sports Illustrated has compiled a list of the top 50-earning athletes in the United States. Not surprisingly, Tiger Woods leads the way, although the size of his most recent annual earnings may startle you: $97.6 million, or twice as much as what the #2 person on the list, Phil Mickelson, earned in the last year ($46.0 million). These figures include winnings, salaries, endorsements, and appearance fees. In his career, Woods has earned over a half-billion dollars; he could earn well over a billion dollars by the time he retires from golf.

Here are the top earning players from each league/sport, and their most recent annual earnings figure (salary, endorsements, and appearance fees):
  • PGA: Tiger Woods, $97.6 million
  • NBA: Shaquille O'Neal, $34.0 million
  • NFL: Carson Palmer, $31.6 million
  • MLB: Derek Jeter, $28.0 million
  • NASCAR: Dale Earnhardt, Jr., $25.8 million
  • Tennis: Andre Aggasi, $24.6 million
  • NHL: no NHL player is on the list
Does David Dunn, Carson Palmer's agent, deserve an award or what? No offense to Palmer, an excellent quarterback for the Bengals, but does he really deserve to be the highest-earning NFL player? What about Tom Brady or, I suppose, Payton Manning? But Dunn negotiated a 9-year, $119-million extension for his client, and that deal included $24 million in up-front bonus money.

Thursday, July 27, 2006

The KCSD is a joke

I just got done getting my car back from the Kershaw County Sheriff's Department. What a bunch of idiots. I am fairly confident that justice will not be served in this incident. How do I know this? Because these guys keep asking me who the deputy was who took my statement the morning I reported it. The shitheads don't even know who is working for them, what they do, or anything else. If these folks can't even find out who took my statement, it is a virtual certainty they won't find out who took my car.

Your tax dollars at work.

Ex-NBAer Mashburn sued for golf injury

One-time Miami Heat basketball player Jamal Mashburn (who retired from basketball in March after he was waived by the 76ers), has been sued by a Florida man who claims Mashburn failed to shout “fore” or provide any warning before hitting a golf ball in the man’s direction. The plaintiff claims to have suffered serious injury.

Mashburn developed an interest in golf at the University of Kentucky. At least that’s what he told the Charlotte Hornets, as reported in a puff piece “Getting to know . . . Jamal Mashburn”:
"I'm a big-time golfer," Mashburn said in reaction to what he likes to do off the court. "I started playing when I was in college. They turned me on to that at the University of Kentucky."

"It was either that or horses," Mashburn continues, grinning as he recollects. "I didn't get into horses, so I got into golf." Golf is just one of his hobbies.
The lawsuit gets coverage here, here and here. The basics:
Jerome Crance was hospitalized on three separate occasions after the ball struck him in the eye, his lawyer Dennis Koltun said Tuesday.

The lawsuit was filed Monday in Miami-Dade Circuit Court and seeks an excess of $15,000 in damages.

Crance and Mashburn, who retired from the NBA after an injury last year, were both playing golf at the upscale LaGorce Country Club in March 2005. Crance was teeing off on the 17th hole when Mashburn hit a shot off the 18th hole that struck him in the eye, the lawsuit said.

Mashburn didn't yell "fore" when he hit the stray ball and failed "to give any warning whatsoever," the lawsuit said.

Koltun said his client suffered serious injuries after the incident.

"He's permanently lost vision in one eye because of a detached retina," Koltun said.
The Hawai’i Supreme Court rejected a similar case earlier this year, as I discussed in this post. In Florida, the issue of a golfer’s ability to recover from a co-participant was squarely addressed by an appellate court over thirty years ago. In Rindley v. Goldberg, 297 So.2d 140 (Fla. App. 1974), a golfer sued after she was hit by a ball struck by another member of her foursome. The court was able to resolve the dispute in just three paragraphs: “Viewing the above facts in the light most favorable to the party moved against, we conclude therefrom that plaintiff’s injury was a result of the certain obvious and ordinary risks of the sport of golfing which she assumed as a member of a golfing foursome with full knowledge of the normal dangers of participating therein.” Perhaps the plaintiff is hoping Mashburn will offer him some money as a nuisance settlement, since the Rindley case would seem to doom his litigation.

The plaintiff might find some solace in a somewhat more recent case in which a golfer (at a Par 3 course) hit a ball which ricocheted back and hit him in the eye. In that case, Potter v. Green Meadows, Par 3, 510 So.2d 1225 (Fla. App. 1987), while denying defendant summary judgment on an express assumption of risk theory, the court implied that it might not extend the contact sports rule on assumption of risk to golf ("There is no evidence of an express covenant not to sue in this case and golf is not generally recognized as a "contact sport.'").

I wonder if Mashburn is wishing he'd taken up horses at UK instead...

Wednesday, July 26, 2006

Excitement of USA Basketball.

First, I want to thank Rick Karcher and Michael McCann for inviting me to be a guest. After several days of trying to log on, I finally listened to and followed Michael's instructions and was able (hopefully) to make a post. While its tempting to post a comment on the on-going issues concerning anti-doping, it seems the resurrection of the USA Basketball team recently is a new, fresh topic for discussion.

Depending on your age, you probably recall the first "Dream Team" that went to Barcelona and walked through the 1992 Olympics on its way to the gold medal. Once the U.S. got comfortable that these "professional" NBAers could play on the Olympic team, the only remaining issue was how to allow the athletes wear uniforms, shoes, and other gear that was not made by the compaines that were sponsoring them.

Over the past few years, a combination of the world players catching up to the our talent and what appears to be us taking the Olympic and World Championships victories for granted has resulted in poor (in comparision) results. (what other factors contributed to our decline?)

Now, with the recent headlines, it looks as if USA Basketball has made a firm commitment to obtain a cohesive team put together well in advance of the Olympics under a Coach (Coach K) who will focus on the game as played in international competition.

Whole lot of legal issues such as player likeness, injuries, sponsors, drug testing, etc....any thoughts?

(For those that do not know, those athletes who are not normally subject to drug testing standards set out by WADA (such as those that fall under a CBA) are subject to the WADA rules prior to the Olympics and World Championship games including the USA Basketball team currently put together).

Harold Reynolds Fired: Is Sexual Harassment Situational or Dispositional?

Neil Best of Newsday writes about Harold Reynolds' surprising firing from ESPN--allegedly because of a sexual harassment complaint filed against him--and in the process, suggests that sexual harassment is a significant problem at the network:
Harold Reynolds, one of ESPN's most visible analysts and a longtime panelist on "Baseball Tonight," has left the network in the wake of one or more incidents of sexual harassment.

Three people who work at ESPN and were familiar with the case said the cause was a pattern of sexual harassment, apparently culminating in a recent incident involving one of the network's young production assistants . . .

Harassment charges are nothing new at ESPN, which operates out of a sprawling "campus" in relatively isolated Bristol, Conn., and employs many production assistants in their early 20s. The network has an extensive program of education and sensitivity regarding gender issues and an elaborate system for pursuing claims of sexual harassment.

Keith Olbermann of MSNBC, a former ESPN host, told The New York Observer in 2004 he had testified in "three or four major cases at ESPN."

Among the prominent ESPN personalities accused of improper behavior in the past is Mike Tirico, who will debut as the play-by-play man for "Monday Night Football" in the coming season. He was suspended by ESPN in 1992 for what were reported at the time to be allegations of sexual harassment. Another host, Jason Jackson, was fired in 2002, reportedly for harassment.
If these accusations are a true--a big "if" since we've seen no evidence in a court of law--what do they suggest about the power of workplace "situation" on the behavior of employees? In other words, to what extent do the workplace circumstances in which ESPN anchors find themselves--being famous ex-jocks or sports guys around young women in a college campus-style setting--cause or encourage some of them to do really stupid things? Has ESPN created a workplace enviroment akin to a male locker room, or is this really about the individual wrongdoers and not about their workplace?

Note: please see update from 10/31/2006: Harold Reynolds Sues ESPN for Wrongful Termination

Tuesday, July 25, 2006

Good Info on Law Career Blog re: LL.M. Degrees

Slightly off topic, but likely of use to some readers: I periodically receive e-mails and questions about the benefits of obtaining an LL.M. degree, or a masters degree or a Ph.D., as well as inquiries about going on the tenure-track law professor market. For some great information on these and other topics, please check out Law Career Blog, which is run by my good friend and colleague, Gregory Bowman. Here are the relevant posts: Pros and Cons of LL.M. Part I, Part II, and Part III.

Recent Events

Folks, I'm sorry I haven't written in awhile. My car was stolen about a week ago, and I have been dealing with getting another one. The police are working on finding my car, but I fear the car is wrecked to shit.

There's not much to say about being a crime victim though I have to thank the government for one blessing. The regular larceny that the federal and state governments perform on my paycheck has made me accustomed to getting fucked such that I could be philosophical about the theft of my wheels instead of giving into despair and doing something drastic like eating a bullet, going on a drinking binge, or praying to Jesus to give me my shit back.

Life is a joke. Learn to laugh at it.

More on "Donated" Sneakers, Brand Loyalty, and Title IX

In the last couple of weeks, we've discussed how shoe companies are arguably manipulating children by "donating" high-priced sneakers to young basketball players as a way of building brand loyalty, and also how by only donating to boys, they may be inducing schools to violate Title IX (see The Salivating Army and Justin Jenifer post).

There are two more great stories on this topic. One is by Rachel Bachman of the Portland Oregonian ("Shoe deals sidestep rules on equality in schools," June 12, 2006, archived). She details possible Title IX infractions and interviews a number of key people involved, including a surprisingly-forthcoming Tony Dorado, Nike's national manager for high school basketball, and Tulsa Law professor Ray Yasser, who has handled over 40 Title IX cases:
Hoping to curry favor and associate themselves with budding sports stars, usually in basketball, companies give shoes and gear to high school teams. Nike, Adidas and Reebok sponsor about 300 high school basketball teams nationwide, a widely accepted practice that merely rewards the best programs, some coaches say.

But experts say that when a school accepts free goods for a team of one gender while providing nothing for a team of the other gender, it is breaking the law. Title IX bans sex discrimination in
schools, whether in the classroom or sports. And although most high school officials grasp the need to provide equal opportunities and facilities, the issue of private donations to sports teams remains misunderstood.

"The school has an obligation under Title IX to provide equal benefit,"said Linda Carpenter, professor emerita at Brooklyn College and co-author of a book on Title IX. "So if the guys' team receives benefit from Nike in the form of shoes, bags, etc., then an equal proportion of the women's program needs to receive similar benefit."

At many schools, that is not happening. About 75 percent of the high school teams sponsored by Nike, the national leader in basketball-shoe sales, are boys teams, said Tony Dorado, Nike's national manager for high school basketball. That figure is driven by a market in which boys buy far more basketball merchandise than girls do, Dorado said . . .

Nike's goal in sponsoring high school teams is to identify with the nation's best programs and players and boost sales of gear to schools' nonsponsored teams, Dorado said. The idea is to build brand loyalty, and the jackpot is when a player on a sponsored team reaches the NBA, signs an endorsement contract and helps the company sell millions of shoes.

Ray Yasser, a law professor at the University of Tulsa, said he has worked with the Schiller Law Firm of Cookeville, Tenn., to handle about 40 Title IX cases. All of them have settled favorably for the plaintiffs, Yasser said. The issue of schools accepting shoe-company donations for only one gender has come up before, Yasser said, but has not become public because none of his cases went to trial. "The irony of the shoe thing is, every time we've done it, we've raised it, all I had to do is ask the shoe companies," Yasser said. "And if they're giving shoes to the boys, they'll give them to the girls. They're further ahead of the curve than some of the administrators are."
Here's another great piece: Bob Hohler's stunning exposé in the Boston Globe on independent coach/recruiter Thomas J. ``TJ" Gassnola, whose tactics in building "brand loyalty" have earned him a notorious and feared reputation ("$neaker War," July 23, 2006). Check out how Hohler's piece--the first of an of an excellent three-part series on youth basketball and marketing--begins:
A brazen foot soldier in a multibillion-dollar war between sneaker makers for the soles of America's youth, Thomas J. ``TJ" Gassnola has peddled basketball dreams to inner-city adolescents across New England despite a lengthy criminal history and prodigious legacy of financial delinquency.

The face of youth basketball in the region for Adidas, Gassnola is a free-wheeling recruiter whose tactics often have clashed with rules set by the National Collegiate Athletic Association to protect amateur athletes who aspire to careers in college sports. Some of his practices underscore the inability of the NCAA and other watchdog agencies to adequately police abuses in summer youth basketball.

A Globe investigation of the sneaker industry's influence on youth basketball in New England found that Gassnola has handed cash to members of his Adidas-sponsored summer travel teams for expenses unrelated to basketball. Several parents of elite players said the Springfield-based recruiter offered them free airfare or Adidas merchandise while pursuing their sons, and another parent said he interpreted Gassnola's sales pitch to mean the recruiter would provide his son improper financial aid. NCAA rules bar amateur players from receiving anything but ``actual and necessary travel, room and board, and apparel and equipment for competition and practice."

The Globe also witnessed Gassnola drive his teenage players in several states, even though his Massachusetts driver's license has been revoked or suspended 24 times and was not valid from 1993 until last month.

It seems like there's a movement afoot to clean up youth basketball, with the first step being exposing what's really going on. Then again, did Hoop Dreams (one of my favorite two or three films of all time) generate any reforms?

New Sports Law Scholarship

New this week:
Sabrina Bosse, Casenote, Is the price of victory just?: Attorney's fees, punitive damages, and the future of Title IX in . . . (Mercer v. Duke University, 401 F.3d 199, 4th Cir. 2005), 13 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 319 (2006)

Jackie J. Cook, Casenote, Determining who wears the pants in thoroughbred horseracing (Albarado v. Ky. Racing Comm'n, 2004 U.S. Dist. LEXIS 16378, W.D. Ky. July 20, 2004), 2004 THOMAS M. COOLEY LAW REVIEW 635 (2005)

Casey N. Harding, Casenote, Nickel and dimed: North Carolina court blocks Carolina Panthers' attempt to avoid payment of workers' compensation benefits to injured athletes (Larramore v. RIchardson Sports Ltd. Partners, 540 S.E.2d 768, N.C. Ct. App. 2000, aff'd 546 S.E.2d 87, N.C. 2001), 28 NORTH CAROLINA CENTRAL LAW JOURNAL 241 (2006)

Matthew Levine, Comment, Despite his antics, T.O. has a valid point: why NFL players deserve a bigger piece of the pie, 13 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 425 (2006)

Sue Ann Mota, Title IX after thirty-four years--retaliation is not allowed according to the Supreme Court in Jackson v. Birmingham Board of Education, 13 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 245 (2006)

Brian R. Moushegian, Comment, Native American mascots' last stand? Legal difficulties in eliminating public university use of Native American mascots, 13 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 465 (2006)

Monday, July 24, 2006

Phil Kessel: Getting Help from a Family Friend or Representation by an Agent?

But you say he's just a friend.
But you say he's just a friend.
--Biz Marke, from his sublime 1988 song "Just a Friend"

It's not too often when I can invoke lyrics by the great artist, Biz Markie, but they come to mind when reading about the Boston Bruins' contract negotiations with first round draft pick Phil Kessel, a rising sophomore at the University of Minnesota, and Kessel's "family advisor," Wade Arnott.

Here's the deal: although Wade Arnott is an NHLPA certified agent--and a well-respected one at that--who works for the sports agency Newport Sports Management, he is not acting as Kessel's agent in Kessel's contract negotiations with the Bruins.

Rather, he's acting as Kessel's "family advisor" or "family friend."

What's the difference? Well, possibly two things: Arnott is not being compensated in any way by Kessel, and there is no contractual relationship between the two. But those may only be illusory distinctions: even if Arnott were Kessel's agent, his compensation would likely be derived by a 2% or 3% cut of Kessel's contract, and because it's expected that Kessel will sign with Arnott as a client right before he signs with the Bruins as an employee, Arnott will still get that cut as a friend. Moreover, Kessel, like any player, can likely drop Arnott at any time, for any reason, with or without a contractual relationship (meaning the existence of a contractual relationship may not be meaningful).

So why the difference? By Arnott being labeled a "family advisor" or "family friend," Kessel can maintain his NCAA eligibility. So if Kessel's contract talks with the Bruins were to fail, he can return to the University of Minnesota and play there in the 2006-07 season. In contrast, if Kessel were to formally sign with Arnott, NCAA rules dictate that he would immediately forfeit his collegiate eligibility.

While I understand that this arrangement bolsters the negotiating power of amateur players, is the NCAA really fooling anyone by engaging in name semantics? If they are really worried about the undue influence of agents (a legitimate concern) why are they letting the very same agents get around the rules by acting as "family friends"?

Sunday, July 23, 2006

My New Law Review Article on Social Psychology, Calamities, and Sports Law

A draft of my article Social Psychology, Calamities, and Sports Law, 42 Willamette Law Review __ (forthcoming, 2006) is now available for download on SSRN for free, right beneath the article abstract. I hope you give it a read. Through social psychology, the article addresses such topics as the future of the New Orleans Saints; how the fear of catastrophic weather influences where players want to play; natural disasters and franchise relocation; the NFL pat-down policy and stadium security; and communicable disease and restrictions on scouting and player contracts. If you have any thoughts, I would very much welcome them by e-mail (mmccann[at], particularly since the article is only in draft form. Thanks!

World Poker Tour Target of Antitrust Case

With the World Series of Poker underway in Las Vegas, it's fitting that Dewey Ballantine attorney Jeffrey Kessler chose this month to launch an antitrust case against the World Poker Tour on behalf of champion players including Chris Ferguson and Howard Lederer. The AP's story is here, and the Poker Prof comments here.

The plaintiffs
argue that WPT Enterprises Inc. made them waive lucrative rights to use their images and names to promote products and video games before they could enter WPT tournaments. . . . [T]he suit accuses WPT Enterprises of "price fixing" and "group boycotts" by colluding with 12 member casinos to prevent players from entering tournaments unless they forfeit their rights.
Kessler, according to his firm's web site, "one of the most prominent sports lawyers in the country," brings significant professional sports antitrust experience to the case. And the sports law comparision is obvious, as Kessler emphasized:
Kessler said he has tried similar suits that have changed the way major sports businesses run, including the NBA and NFL.

"Imagine if they were to have said to John Elway in the NFL, 'Well we should just be able to use your image for any product or service that we want,'" Kessler said. "No professional sport has been able to get away with that and the same will be true with respect to the World Poker Tour."

Basketball Player Sues Yearbook After He's Indecently Exposed

A New Jersey high school basketball player has sued his school district and the editors of his high school yearbook after a yearbook photo appeared in which portions of his genitals were visible. The New Jersey Law Journal has the story:
Tyler Bennett of Colts Neck claims he suffered emotional distress because his genitals were partly visible in a basketball game picture in his 2001 school yearbook.

The suit says Colts Neck High School authorities acted slowly to suppress the yearbook, worsening the distress Bennett suffered as a senior the next year.

And there's a novel issue: Does the publisher of such a picture violate child pornography laws if publication was inadvertent?

So far, the answer to that question has been no. Indeed, the whole litigation has been a dud for the plaintiff. In 2005, a trial judge cited Bennett's lack of evidence of psychological harm and found no basis for a suit under the Tort Claims Act. On June 23, an appeals court affirmed the dismissal.

Undeterred, plaintiff’s attorney Steven Kessel notified his adversaries this month that he will seek review by the state Supreme Court. He is drafting an appeal that raises the issues anew and will set off a new round of defense briefs in the case, Bennett v. Board of Education, Freehold Regional High School District, Mon-L-4700-03.
High school athletes – like all athletes – assume certain risks when they take the court. Had Tyler Bennett been elbowed during practice, he would not have been able to recover (absent unusual circumstances). This case poses some interesting questions about the degree to which athletes assume the risk of other likely results of participating in high school sports. Here, does an athlete assume the risk that his private areas may be visible, and possibly be recorded and published by student journalists?

The most damning piece of evidence for the plaintiff?
The offending photograph, taken from a low angle, showed Bennett shooting a basket on a day he wore boxer shorts instead of an athletic supporter . . .
Hat tip to my colleague Howard Friedman for the link.

Friday, July 21, 2006

Sign of the Apocalypse? Bill Belichick's Alleged Affair and The Boston Herald's Front Page

It might seem peculiar for someone who contributes to a sports law blog to question a major regional daily devoting nearly its entire front page to a sports and the law issue. But I ask that you to take a look at the front page of yesterday's Boston Herald:

Yes, Patriots coach Bill Belichick has been named as the dreaded "other man" in a messy New Jersey divorce case involving Sharon Shenocca, who worked as a receptionist for the Giants while Belichick was the team's defensive coordinator. According to Vincent Shenocca, his wife and Belichick have had a long-term extra-marital relationship, with Belichick buying her many gifts, including "expensive clothing, pocketbooks, watches, a treadmill and maid service” and he also allegedly flew her to be with him at Super Bowl XXXVIII, which the Patriots won. Vincent asserts that he has pleaded with Sharon to break-up with Bill (who separated from his wife Debbie last year), but she won't. So now Vincent wants to divorce Sharon, who might soon be spending more time with Bill.

I'm not sure that the late and great Aaron Spelling could have scripted a better story. And it's so interesting because it mixes a hugely successful sports figure with a soap opera scandal. I know I read the story--which was a Herald scoop--with great interest (I am a lifelong Patriots fan after-all).

But did this story warrant nearly the entire front page, especially at a time when there's a major crisis occurring in the Middle East with many people dying and, more locally, Boston is embroiled in the Big Dig Disaster? Even if the Boston Herald believes that its readers want to read this story, and even if the paper is a tabloid daily, did it have a journalistic duty to treat its editorial decisions with more gravity? And as you can see, the paper even used the top of the same front page to tell readers about Josh Beckett's contract extension!

So is the Herald's front page a sign that sports now attract too much attention? A critic might say no--readers want a break from all of the bad news going on (although a couple's divorce is also bad news, if not quite so terrible), and if they want to read about more depressing things, they can go buy a Boston Globe, turn on a TV, or go on the Internet. What do you think?

The Salivating Army? Shoe Companies that Donate Free Sneakers to Youth Basketball Players

A couple of weeks ago, we discussed Eli Saslow's excellent piece in the Washington Post on Justin Jenifer, the 10-year old basketball phenom who is already being aggressively recruited by shoe companies. This theme of marketers' exploitation of kid athletes resonates again in Mark Alesia's excellent piece in the Indianapolis Star on shoe companies "donating" free sneakers to youth basketball teams that often feature elite players. Interestingly, the schools receiving these sneakers may be violating Title IX, since only the boys' teams tend to get the donations, while the girls' teams do not. As a result, the boys get free sneakers while the girls end up paying a lot of money for the female version of the same shoes.

I think there are two stories going on here.

1) The Gender Equity Story: the obvious, but still important story. Shoe companies supplying sneakers to boys but not girls is probably a wide-spread phenomenon, and is probably apparent in every state. The disparity in treatment probably comprises a violation of Title IX, which takes a fairly inclusive approach to measuring equal athletic opportunity students of both sexes. In fact, Title IX expressly instructs the U.S. Department of Education's Office for Civil Rights to ensure that there is "equivalent treatment, benefits, and opportunities" in equipment and supplies (among other things). This is the kind of story that got Title IX passed in the first place, and one that further validates its existence.

2) The Sneaker Marketing Story: the more interesting story, I think, because it's subtler and yet potentially far more significant. Consider recent comments by Susan Linn, co-founder of the Campaign for Commercial Free Childhood, told to Julie Sabatier of the New Standard:
"Essentially, it's a way to promote brand loyalty. It makes the corporations look as though they're doing a positive thing. It looks like corporate social responsibility, but in reality, its marketing."
In a way, Linn's comments remind me of a complaint against the tobacco industry and their public service advertisements: those PSAs seem to provide a forum for companies with dubious histories to rectify their image, which turn may help their sales (and thus achieve the opposite of what the PSAs were ostensibly designed to achieve). In a recent Wisconsin Law Review article, I outlined a similar idea in regards to fast food companies promoting "eat well" campaigns, while simultaneously promoting the consumption of Big Macs and Happy Meals etc.

It would be interesting to hear what these shoe companies have to say about their donations, but they have declined comment. I imagine that they have concluded that the value of the brand loyalty they are establishing with boys is worth more than the cost of the donated sneakers, while for girls, they have reached the opposite conclusion: the value of establishing that type of brand loyalty is less than the cost of donations.

Economically-sensible, perhaps, but socially desirable?

Note: the picture above is from Aaron Renier's art collection.

Thursday, July 20, 2006

Welcome Travis Tygart

I am delighted to announce that Travis Tygart will be filling in for me as a guest contributor next week. Travis is the Senior Managing Director, General Counsel of the United States Anti-Doping Agency (USADA). USADA is the independent, nongovernmental anti-doping agency for Olympic sports in the U.S. and is dedicated to protecting the integrity of competition and the rights of clean athletes to participate in drug free competition.

Travis is responsible for all legal matters of USADA including the handling of alleged doping offenses in arbitration before the American Arbitration Association and the Court of Arbitration for Sport. He was responsible for the investigation into the designer steroid THG and the BALCO drug conspiracy. Travis was involved with drafting the USADA Protocol for Olympic Movement Testing and the World Anti-Doping Agency’s Code. He served as the legal expert for the WADA Independent Observer Team at the 2002 Commonwealth Games in Manchester, England and was a USADA representative at the 2003 World Conference on Doping in Sport in Copenhagen, Denmark. Travis has been a participant at the Council of Europe, the Association of National Anti-Doping Agencies and was a presenter at the WADA OOC Symposium in October 2003.

While Travis will be unable to answer specific questions about legal matters involving USADA (his client), his insight and experience with respect to the use and testing of performance enhancing drugs will make an interesting read.

Wednesday, July 19, 2006

Steroids in Golf?

By now you are probably tired of reading and hearing about the Bonds indictment and his possible suspension by MLB. But you might not have read or heard about the latest in the "war on steroids": Testing for steroid use has officially begun within the sport of golf ("Golf Tournament Doing Drug Testing"). According to the press release, testing will be administered at the World Amateur Team championship in South Africa at the end of October. What's amazing is that the tournament directors don't even think at the moment that there is much use of performance-enhancing drugs in the sport. They support drug testing in golf "to put the sport into line with the World Anti-Doping Agency's code governing all sports, and to stop performance-enhancing substances from creeping into the game."

Will somebody please STOP THE MADNESS! First and foremost, why test for steroids when there is no evidence whatsoever of any steroid use in the game of golf? Secondly, why would they think that such use would "creep" into the game? Are they afraid that golfers are going to start bulking up in order to give them more distance on their drives? Is "muscle recovery time" a big issue among golfers these days? Basically, it's complete speculation!

I came across an interesting article on this subject written by Matthew Rudy of Golf Digest ("Steroids: How real a threat?"). Rudy notes that no professional tour has specific language in its rules prohibiting performance enhancing substances. The PGA and LPGA tours' professional conduct rules prohibit players from using or selling illegal substances, but neither tour has a testing procedure in place to detect any kind of illegal drug, recreational or otherwise. PGA Tour commissioner Tim Finchem says the tour would not hesitate to incorporate a random drug-testing program IF it had evidence of a pattern of use by players:
"I don't think it is naive to think our players follow the rules. Maybe there are doctors who would say that steroids would help a player hit a golf ball farther. We could debate that, and we could debate that the side effects might hurt a player other ways. I don't go there. We have a rule, and we expect players to follow it. If we have credible evidence to think that a player was taking them, we would consider taking other measures. The speculation about steroids in golf isn't surprising. There is so much focus on steroids in other sports. There's an influx of more athleticism in our sport, and the workout regimens our players are undergoing. And there's a focus on the increased distance players are hitting the ball. That's what it is -- speculation. We rely on our athletes to call the rules on themselves. We have a long tradition of players following the rules, even when some of the rules are odd."
I suppose that if you believe that steroid use would help a hitter drive a baseball farther, then to be consistent you must also believe that steroid use would help a golfer drive a golf ball farther. All this time, I suspected that the reason professional golfers have been driving the ball better over the years was mostly attributed to technological advancements in golf clubs, golf balls, and training equipment.

Tiger, you're next....

Tuesday, July 18, 2006

World War III

I haven't written in awhile because I've been so wrapped up in the Middle East conflict. Things look grim, and I hear "world war" tossed about. This is regrettable.

I don't have an answer to the conflict in the Middle East, but I still believe in adhering to the Broadway Doctrine. That doctrine states, "We don't start shit, but we will finish it." Unfortunately, I am not in a position to see this doctrine put into practice, but it will help explain the current mess that we have in the Middle East.

Basically, Hezbollah stuck its nose into something that wasn't their business. They crossed into Israeli territory, took two soldiers, and essentially, picked a fight with the Israelis. In short, they started this shit. People will argue that this or that shit was started long before, but this is simply stupid. Right now, traditional haters of Israel like Egypt, Jordan, and Saudi Arabia have actually been sympathetic to Israel's plight. They are not happy with Hezbollah's actions. This is why they remain silent. This is a good thing.

But it is in the nature of Israel as well as the US to overstep in their retaliation. For instance, Afghanistan was justified. Iraq was not. You can expect the same thing with Israel. Pounding the shit out of Hezbollah is justified. Pounding the shit out of the rest of Lebanon isn't. It's like beating up a bully and then raping his girlfriend. Leave the girlfriend out of it.

Israel is probably going to expand this thing and retake territory and/or reinvade Lebanon. This isn't good or justified. This is how world wars begin. As it stands, Israel is given credit for trying to get along with everyone involved while Hamas and Hezbollah are the bad guys. This is probably the only good thing to come out of the "peace process." The conventional wisdom is that the pro-Palestinian side used all of the concessions that Israel made merely as a pretext for the present conflict. They were never interested in a peaceful solution.

The Broadway Doctrine might seem a bit pussified compared to the neocon position, but it is important. You should always seek peace first. Mind your own business. But governments don't do this. They almost always use these things as justification for grabbing power and territory. The Bush Administration post-9/11 is a classic example of this. To borrow some thinking from Nietzsche, people play the victim card in order to gain power. "Morality" is merely a pretext for tyranny. When you see someone whining and crying, never forget that those tears are merely camouflage for a sucker punch. Lincoln did much the same thing using slavery as a means to strengthen federal power. Cheney and Bush do the same thing with the Patriot Act and whatever other power grabs they have made since 9/11.

The problem with the will to power is that it results in endless warfare. This is part of the reason why we have this shit in the Middle East. It goes back to World War II which was a backlash from World War I. It just goes on and on. Everyone is justified in their tyranny because they have suffered at the hands of some other tyrant. The result is a ceaseless train of atrocities.

So, is this the beginning of World War III? Probably so.

New Sports Law Scholarship

New this week:
Lindsay M. Korey Lefteroff, Student Article, Excessive heckling and violent behavior at sporting events: a legal solution?, 14 U. MIAMI BUS. L. REV. 119 (2005)

Clary Moorhead, Note, Revenue sharing and the salary cap in the NFL: perfecting the balance between NFL socialism and unrestrained free trade, 8 VAND. J. ENT. & TECH. L. 641 (2006)

Richard H. McLaren, An overview of non-analytical positive & circumstantial evidence cases in sports, 16 MARQ. SPORTS L. REV. 193 (2006)

Stphen F. Ross & Stefan Szymanski, Antitrust and inefficient joint ventures: why sports leagues should look more like McDonald's and less like the United Nations, 16 MARQ. SPORTS L. REV. 213 (2006)

Geoffrey Christopher Rapp, Affirmative injunctions in athletic employment contracts: rethinking the place of the Lumley rule in American sports law, 16 MARQ. SPORTS L. REV. 261 (2006)

Ola Olatawura, The "theatre of dreams"?--Manchester United FC, globalization, and international sports law, 16 MARQ. SPORTS L. REV. 287 (2006)

Holly Hogan, Student Article, What athletic departments must know about Title IX and sexual harassment, 16 MARQ. SPORTS L. REV. 317 (2006)

Matthew R. Wilmot, Baseball Bats in the high tech era: a products liability look at new technology, aluminum bats, and manufacturer liability, 16 MARQ. SPORTS L. REV. 353 (2006)

Susan K. Menge et al., 2005 annual survey: recent developments in sports law, 16 MARQ. SPORTS L. REV. 381 (2006)

Paul M. Anderson, Book Review, Reviewing Welch Suggs, A Place on the Team: The Triumph and Tragedy of Title IX, 16 MARQ. SPORTS L. REV. 461 (2006)

Darren R. Merten, Index: Sports law in law reviews and journals, 16 MARQ. SPORTS L. REV. bi-bvi (2006)

Friday, July 14, 2006

New Sports Law Scholarship

New this week:
W. Burlette Carter, The Age of Innocence: the first 25 years of the National Collegiate Athletic Association, 1906-1931, 8 VAND. J. ENT. & TECH. L. 211 (2006).

Amanda Schlager, Note, Is the suite life truly sweet? The property rights luxury box owners actually acquire, 8 VAND. J. ENT. & TECH. L. 211 (2006).

Open Letter to Bud Selig

Dear Mr. Selig:

I understand that you are disappointed and angered by Jason Grimsley’s recent admission that he used the human growth hormone (HGH) and by his statements that other major leaguers use the banned substance. Last month in your “open letter to fans” you said that you will not tolerate the use of HGH and other performance-enhancing drugs in baseball.

It is time to get aggressive with the union, more so than you have ever been before. On the eve of negotiations over a new collective bargaining agreement, and with the fans 100% on your side in "the war on steroids," the timing could not be better. Major League Baseball should not waste its time and money on research to determine how to detect HGH, because while it is doing that, somebody else will be developing the next masking agent or magic "whizzer" apparatus to prevent MLB’s new testing methodology from detecting the HGH. By the time your new test is ultimately developed, players will be experimenting with gene therapy and the replacement of human tendons with animal tendons.

So how do you fix the problem? Suspensions and fines for positive drug tests are not the answer because (with a few limited exceptions) players are not testing positive! In your open letter, you alluded to the powerful investigative efforts of the FBI and that players are no different from anyone else in our society. Maybe you could consider how the FBI catches people who lie and cheat -- they use lie detector tests. For example, the FBI is now administering polygraph tests to hundreds of state and local police officers assigned to terrorism task forces across the country as part of a new effort to battle espionage and unauthorized information leaks. As one particular FBI director noted, "There is no more powerful tool in our tool bag than lie-detector tests."

Now, I know what you are thinking: Drug testing and discipline is clearly a "mandatory" subject as defined in the National Labor Relations Act (i.e. “wages, hours and conditions of employment”) that requires you to negotiate with the union because it pertains to conditions of employment. So how do you get the union to agree to polygraph testing with respect to performance-enhancing substances (including gene therapies, surgeries, etc.)?

Here’s how. We all know the first question that union head Don Fehr is going to ask you at the bargaining table in a few months: “What’s your proposal on revenue sharing?” You should take the position that revenue sharing is an issue that only concerns the teams and is not a mandatory subject that you are required to negotiate with the union because it does not relate to players’ wages. Mr. Fehr will respond that revenue sharing impacts wages because if large market teams must pay a certain percentage of their revenue to small market teams, it constitutes an expense that impacts a team’s bottom line and the amount it is able or willing to spend on payroll. Of course, so does a team’s stadium lease expense and the amount it charges customers for tickets, hotdogs and beer, but those are not mandatory subjects. For example, if General Motors enters a joint venture with a competitor agreeing to share a percentage of revenue, it obviously impacts GM’s bottom line and indirectly impacts how much it pays its workforce, but it is not a mandatory subject that needs to be negotiated with the union. Simply tell Mr. Fehr that you will negotiate revenue sharing if the players agree to periodically take lie detector tests regarding their use of performance-enhancing substances, surgeries, therapies and the like.

Now when he jumps up and down and screams at you such phrases like “decertification,” “strike” and “unfair labor charge,” stick to your guns. Because even if you have to spend legal fees to validate your position in front of the NLRB or in a court of law, the legal fees will be much cheaper than funding research to detect HGH and, more importantly, much more effective in catching cheaters!


Rick Karcher

Wednesday, July 12, 2006

New Article on Bill Walker and Possible Legal Options for NBA Draft Eligibility

Tom Groeschen of the Cincinnati Enquirer has a new and interesting article on the possible legal options for Bill Walker, the high school phenom who has good reason to argue that he should be eligible for the 2007 NBA Draft ("Lawyer: Walker Has a Case", 7/11/2006). Yesterday we discussed Chad Ford's article on Walker's potential arguments, and those of O.J. Mayo.

I am the lawyer referenced in Groeschen's article title, and while I do believe that Walker would have a strong case (as I discuss in the article), I would like to add the following proviso: if Walker were to pursue eligibility for the 2007 NBA Draft, his best initial approach would not be litigation with the NBA, but rather a concerted and constructive effort to discuss the matter with the NBA, and hopefully persuade the league to reconsider its thinking; litigation here, as in every dispute, should only be used if all reasonable attempts at negotiation fail. Moreover, being a litigant can be stressful and emotionally-draining, and that's especially true in a highly-publicized trial.

But as we also know, sometimes all reasonable efforts at negotiation do not succeed, and litigation is the only and correct option to right a wrong. Should that occur in this instance, I believe that Walker would have an extremely strong case.

Does a "Diploma Mill" School Have a Defamation Claim Against the NCAA?

Last week the NCAA released its second list of high schools from which it will no longer accept transcripts that supposedly provide easy academic solutions for high-profile athletes. According to Pete Thamel of The New York Times, none of the 25 disqualified schools on either list are recognizable athletic powerhouses, with the exception of maybe Christopher Robin Academy in Queens where New York City students have long gained high school credits during the summer and winter breaks ("N.C.A.A. Schools' List Stirs More Controversy"). However, the NCAA also announced a separate list of 22 schools that it had cleared for prospects for only the fall of 2006 and that will be subject to review by the NCAA, which list includes some traditional prep powerhouses with strong academic traditions such as Oak Hill Academy in Virginia, Bridgton Academy in Maine and Fork Union Military Academy in Virginia.

According to Steve Smith, who has coached basketball at Oak Hill for 23 years: "Its embarrassing to be on the list with some of those schools. Twenty-two schools in the whole country, and we're one of them. To me, it makes the N.C.A.A. look like it's not credible." Oak Hill president Michael Groves added: "I'm absolutely stunned on a couple of levels. I've never spoken with anyone from the N.C.A.A. I'm a bit outraged that I'm learning about a list from reporters that's damaging Oak Hill's reputation."

Last month on the blog, I discussed how a claim against the NCAA by an affected prep school alleging a constitutional violation would most likely fail because the U.S. Supreme Court has made clear that the NCAA is not a state actor when it establishes rules and regulations pertaining to academic standards to be followed by its member schools. But the statements made by Smith and Groves at Oak Hill have connotations of a possible defamation claim against the NCAA, which could possibly be a much tougher case for the NCAA especially since Oak Hill is obviously not a voluntarily member of the NCAA and thus not subject to its rules and regulations. Under most state defamation laws, entities may be defamed with respect to institutional characteristics such as honesty and efficiency.

In a defamation case, Oak Hill's damages would most likely be presumed because its inclusion on the list of 22 schools would be a libel action (in slander, a plaintiff typically must prove pecuniary loss). Oak Hill could argue that the fact of being included on the list is essentially a statement made by the NCAA that Oak Hill's (or any other school on the list for that matter) quality of education is poor and that some or all of its offered courses are simply not worthy of recognition by any college or university. Such statements are most likely "defamatory" by definition because the list is a national publication that could easily deter prospective students (athletes and non-athletes) from enrolling.

It would also seem that the NCAA would have a difficult burden to prove the truth of its assertions when Oak Hill has such a strong academic tradition (Oak Hill opened in 1878, costs $21,000 a year in tuition and has about 50 staff members). Indeed, the NCAA didn't even visit Oak Hill's campus. According to NCAA representative Kevin Lennon, irregularities in paperwork caused the NCAA to flag some schools despite not having visited them and that a "time crunch" prevented the NCAA from visiting every school. Smith said: "I'm sure if they come visit, we'll be off the list. But you can't take back what they already did. To me, it's a total sham, a joke." Oak Hill is not the only school listed that wasn't visited by the NCAA. The Associated Press reported that Lt. Gen. John E. Jackson Jr., president of Fork Union Military Academy in Virginia, said NCAA officials have neither visited its campus nor expressed specific concerns about its curriculum either.

It's interesting that the NCAA chose to single out specific schools by name. Couldn't the NCAA instead have listed all of the specific criteria that a high school must meet in order for a transcript to be accepted (i.e. minimum number of faculty members, minimum number of hours of instruction in the classroom, etc.)? The NCAA might want to reconsider what it's doing on this one....

Tuesday, July 11, 2006

O.J. Mayo and Billy Walker to Challenge NBA Age Restriction?

ESPN's Chad Ford has an excellent and extensive piece on two amateur players who may put the new NBA age restriction to the test next year: O.J. Mayo (right) and Billy Walker (left), the top two high school seniors in the country. Both players are one year older than a traditional high school senior and, for different reasons, if they decide to drop out of high school and not graduate, they could argue that they "would have graduated" this year. If successful in that argument, they would then be eligible for next year's NBA Draft, since according to the new CBA between the NBA and NBPA, an American amateur player must be at least 19 years-old on December 31 of the year of the NBA Draft (both Mayo and Walker would be in 2007) and that at least one NBA season must have passed from when he graduated from high school, or when his graduating class graduated from high school, and the NBA Draft. If eligible, both would likely be lottery picks, with Mayo possibly going second overall, right after Greg Oden.

Walker has the stronger case for arguing that he "would have graduated in 2006" because the Ohio High School Athletic Association just announced that he should have been a senior this past year. Why? Because a transcript error that resulted from transfering between different schools caused his credits to be counted incorrectly. So according to the Ohio High School Athletic Association (which obviously has no stake in whether Walker can turn pro), Walker has completed four years of high school and four years of high school basketball.

Mayo's claim is based on the fact that he was held back a year early in his schooling, and would have graduated in 2006 but for that, and that he has played high school ball since he was in the 7th grade.

Ford interviews Tim Frank of the NBA and me for the story. Perhaps not surprisingly, we don't agree on whether the players (and especially Walker) should be eligible:
NBA spokesman Tim Frank said that he believes neither player is eligible for the 2007 draft.

"It's when you graduate (or when your class would have graduated), not when your eligibility is up," Frank said via e-mail. "So just because Walker is ineligible [to play high school basketball], he still hasn't graduated, so his class is the 2007 class."

"Mayo being held back eight years ago does not give you a claim to [the 2006 graduating class] as his 'original class.' " Frank said. "He is clearly scheduled to graduate in 2007."

However, sports law expert Michael McCann disagrees.

McCann, a law professor at the Mississippi College School of Law, is the author of the popular Sports Law Blog. He was part of the legal team that represented Ohio State running back Maurice Clarett in his (unsuccessful) legal challenge of the NFL's age restriction.

"Billy Walker should be eligible for the 2007 NBA Draft," McCann told me in an e-mail interview. "An honest interpretation of the CBA dictates that conclusion: His high school class would have graduated, and he would satisfy the requirement that he be at least 19 years old during the calendar year in which the 2007 NBA Draft is held. I believe that the NBA would ultimately recognize the expertise of the Ohio High School Athletic Association (which presumably knows its schools better than the NBA), because if it doesn't, it may unwittingly invite Walker to challenge the age restriction in court, something which the NBA likely wants to avoid."

"Walker's claim for eligibility appears stronger than that for Mayo, although Mayo's situation invites the question of how to measure one's graduating class," McCann said. "Mayo could argue that it should be measured from when he originally began schooling, although the NBA would likely argue that it should be measured from when he began high school. Both arguments are rational, and would likely require the opinion of education experts. The fact that he was playing high school ball as a seventh-grader seems to suggest what his school thought of his class."

We then discussed the implications of either Mayo or Walker bringing a lawsuit, and the applicability of Clarett v. NFL in that lawsuit:
"Unlike when Maurice Clarett challenged the NFL's age eligibility rule, Walker's lawsuit would enjoy empirical data showing that prep-to-pro players have, on average, performed better than any other age group to enter the NBA," said McCann.

"Moreover, while it is commonly assumed that Clarett v. NFL is the definitive case on age restrictions, it isn't. It is the holding of one United States Court of Appeals, and it is unclear how the other 12 United States Courts of Appeal would hold on the matter.

"Even though the NBA's age restriction has been collectively bargained, a good argument can be made that it only affects parties (prep players) outside of the two collective-bargaining units (the NBA and the NBPA), and thus should not enjoy immunity from antitrust laws."
As a separate matter, we also discussed the legal implications of why 19-year old international players are able to more easily enter the NBA Draft than are 19-year old American players. While both groups of players must be at least 19 by December 31 of the year of the draft, the international players do not have a one-year waiting period after high school.

"Should a litigation occur, a court would likely wonder why there exists a more restrictive rule for American amateur players than foreign players, and should it apply antitrust law, a court would likely compare the respective NBA performances of those two groups," McCann said.

This will be a very interesting to story to watch. Ford's article also states that while both Mayo and Walker presently intend to attend college, they would rather go to the NBA directly if possible. The article addresses other topics as well, and is well worth a read (and I strongly recommend ESPN Insider if you don't yet subscribe, especially since you also get ESPN The Magazine).

On three separate notes: 1) thanks to Michael Ryan of Bearcat News for his excellent insight earlier in the day; 2) thanks to Jeff Clark of the highly-addictive Celtics Blog, who wrote a nice posting about the ESPN article on the equally-highly-addictive True Hoop; and 3) since the ESPN article is bringing us a large number of new visitors today, welcome to our blog!

Monday, July 10, 2006

NBA Earnings as a Marathon, not a Race: Lebron James to Take Less Than Max

According to ESPN's Stephen A. Smith, Lebron James has informed the Cavaliers that while he is willing to sign an extension, he will not sign a max contract (5 years, $80 million), which the Cavs prefer. Instead, he is only willing to sign a 4-year extension worth $60 million. Considering that NBA contracts are guaranteed, you might wonder why he wouldn't want to maximize his earnings and take as much money as is on the table? It's because of this:
With the NBA's collective bargaining agreement set to expire at the end of the 2010-11 season, James could be positioning himself for an even bigger payday as a free agent when the cap goes up. Under a new agreement, James and other big stars could be in line for deals in the neighborhood of six years and up to $150 million.
James' age may be a factor here as well. Incredibly, he's still just 21 years-old. And when his 4-year extension expires, it will be the summer of 2011 and he will be 26 years-old. It would seem that he would be better positioned for the $150 million, 6-year contract at that point than if he were 27 years-old. But then again, it probably won't matter because he'll likely be the NBA best's player and able to command the max regardless of whether he is 26 or 27.

But here's where age may matter: let's think about James' bargaining position after that $150 million, 6-year contract expires: he would undoubtedly be in a better position for another lucrative contract at age 33 than at 34. So perhaps Lebron and his agent, Leon Rose, are astutely thinking ahead, to a time that may seem very far off (2017 or 2018) but is highly influenced by what they do now, in 2006.

Virginia Sports and Entertainment Law Journal's Article Submissions Drive

The Virginia Sports and Entertainment Law Journal ("VaSE") is conducting a submissions drive for possible publication in the journal. So if you are a law professor, other type of professor, practicing attorney, judicial clerk, law student, or graduate student who has written a substanative piece that pertains to sports or entertainment law, please consider submitting it. Unlike some law reviews, VaSE accepts note submissions from other schools' students, so if you are currently a law student, you don't have to be one at the University of Virginia School of Law to submit.

I was Editor-in-Chief of VaSE from 2001-02 and published an article in VaSE in 2004. I believe it is an excellent scholarly publication with an outstanding reach into the sports and entertainment world. It certainly helped me break into the industry. And it's readership includes sports agents, sports litigators, team executives, music industry executives, recording studios, and perhaps less interesting academic types--people like me and law librarians.

To submit a piece, all you have to do is attach your writing to an e-mail and send it to Robby Forbes, VaSE's current Editor-in-Chief, to his e-mail address: rdf4v[at] It's as easy as that.

Give it a shot!

Saturday, July 8, 2006

Random Thoughts on Various Subjects

1. North Korea rattled its sword, and I expect the rest of the world to give Kim Jong Il what he wants.

You probably won't get this explanation in the mainstream media, so I will give it here. Kim Jong Il's regime sits atop a powder keg of public unrest ready to explode and consume him in a firestorm much like they did in Romania under Ceaucescu. Mass starvation has a tendency to cause this. Kim Jong Il does a desperate balancing act of extracting as much as he can for his war machine while winning concessions from the West for foreign aid. That's right, folks. Kim Jong Il is propped up by the United States, the UN, China, South Korea, etc.

Why do they do this? The first reason is that South Korea and China don't want the refugee problem. They'd rather see North Koreans starve in their country than come to their own and cause unrest. The second reason is that the US doesn't want those nukes Kim Jong Il has to be sold on the black market to groups like al Qaeda. So, Kim Jong Il acts a bit nutty every so often and these countries open their pocketbooks to bail his tyrant ass out.

Without a doubt, North Korea is a threat to the United States. But it is the one country that would be easy to destabilize. The neighbors don't want this. This is why North Korea is such a problem. It is a boil on Asia's ass.

My take? Don't invade, but don't give Kim Jong Il a damn thing. His days are numbered. In the meantime, I would have forces in place with no other task except to secure those nukes when the inevitable fall comes.

2. I had to laugh when people were openly pissed that Ken Lay got off light with a massive heart attack and death. Damn, that is some serious hatred there.

3. Pepsi is being lauded for not buying a secret Coke formula from some corporate spies. But let's be real about this, folks. Pepsi already knows what is in Coke. The Coke formula is not a secret. Any decent lab can tell you what is in Coke. And you better believe that Coke knows what is in Pepsi.

Pepsi did the smart thing in this situation. They did what was in their self-interest, and they have reaped a reward. Hooray for capitalism and selfishness. What is so interesting is how the media and the public think Pepsi was being altruistic in all of this. Their feeble minds can't grasp the logic behind Pepsi's actions. If Pepsi had bought that formula, they would have been subject to blackmail, bad PR, and overpaying for information they probably already had by buying a bottle off the shelf and running a few chemistry tests on it. Hell, the ingredients are listed on the fucking can!!

4. The Israeli-Palestinian conflict has heated up a lot since Hamas took over. What I find intriguing is how everyone else in the world has wised up and stayed out of that shit. It's like neighbors who have learned to ignore the wifebeating going on next door after learning that the wife fucks other men on the side and has a nasty crystal meth habit. If anything good comes out of this, I hope the term "peace process" has been retired once and for all. I say let them fight and kill each other.

5. My cable news channel of choice is CNN. MSNBC has a pretty good anchor in Keith Olberman, but the network is kinda sucky. Fox News is too much of a branch of White House Communications. So, that leaves CNN for me.

I'm cool with Anderson Cooper, Wolf Blitzer, and whoever else, but I really fucking hate Lou Dobbs. There isn't a day that goes by that he isn't harping about illegal immigration. Now, he supports raising the minimum wage and his Quixotic fight to save the American middle class as if what middle income Americans need is to form a special interest group the way geriatrics, gays, blacks, transexuals, and midgets have done. And who are the enemies of the middle class? Mexicans and corporations who corrupt the political process.

Lou Dobbs is simply an idiot. He was a respected newscaster until CNN let him open his mouth, viz. Bill O'Reilly. What Dobbs fails to see is that the number one enemy of the middle class is high taxation. Going after immigrants and corporate America isn't going to change this.

Friday, July 7, 2006

Parties, Politics, and Persuasion

"You guys will never win an election."

Someone told me this in response to my declaration that I was a libertarian. I had to laugh a bit because I could really give a shit about winning an election or getting people like myself into public office.

There are two basic reasons for my peculiar stance. First of all, the Republican Party and the Libertarian Party have consistently sold out on any principles they may have had. The fact is that just about any libertarian candidate that did win would do so on a lot of compromise and then compromise even further to remain in office. This is the nature of politics.

Secondly, I see it as hypocritical to force a libertarian agenda. You don't make people free at the point of the gun. They must choose to be free.

The bottom line is that I see voting as a waste of time. It really doesn't matter who gets elected because democracy works. Those representatives will do exactly as they are told no matter what principles they profess. If they don't, they are out of office. This is why both Democrats and Republicans often resemble each other in practice.

So, what is a libertarian to do? My strategy is the only rational one and that is to educate the public at large. Like it or not, an enlightened government will only spring from an enlightened society. This may seem daunting considering how stupid the population is, but this is the same public that overthrew slavery and Prohibition and went against McCarthy's witch hunt.

To me, the libertarian mission is an educational mission. The true power of the movement is not in parties but in think tanks like Cato or the Mises Institute, thinkers, journalists like John Stossel, and popular culture such as South Park. In addition, libertarians often share common ground with liberals and conservatives on various issues. We are not the mainstream, but we aren't on the margins either.

I have no real interest in political power or movements such as the Free State Project which is essentially the same as trying to achieve freedom through force. I think the best thing I can do (along with any other libertarian) is to present my ideas in whatever forum is available and hope they catch on. This means writing entries in this blog, writing letters to the editor on specific issues, and telling people about my beliefs. It worked for Thomas Paine.

I also need to stress that freedom is a relative thing. America has greater freedom than North Korea. About the only thing a libertarian can do in NK is get the fuck out. In the absence of libertopia, I'll take the next best thing. Right now, the USA is it.

The fact is that it doesn't matter if you win an election or not. All politicians are beholden to their constituents including the President. Hell, even the emperors of Rome had to appease the horde. From this, we see that power is at best a momentary illusion. In addition, ignorance cannot last forever. Flawed governments will fail, and they do so out of logical necessity. The only difference is how long it will take.

So, what keeps someone like me going? It is the knowledge that I am right. They could pass a law tomorrow repealing the law of gravity, but it doesn't change shit. I can't unlearn what I know to be true. Reality always wins. Also, this fidelity to truth has already made a huge improvement in my life even if no one else buys into it. While everyone else lives in fear, paranoia, and guilt, I go on my merry way seeing the bullshit for what it really is. This is freedom even if it isn't complete freedom.

I admit that I probably will never see many of my ideas come to pass. But being a libertarian is essential to my sense of humor. Life may be a joke, but I can laugh at the joke.