Thursday, August 31, 2006

Jerrell Powe Sacks the NCAA

Jerrell Powe, a prized football recruit for the University of Mississippi, has secured an important court victory in his quest to gain NCAA eligibility. Here's the story: Powe, rated as the country's top defensive tackle prospect and a top 25 overall prospect, is a learning disabled student who has played at Wayne County High School in Mississippi and also Hargrave Military Academy in Virginia (coincidentally, the same school where former NBA player Korleone Young, who I often write about, attended). But Powe received some bad news last week, when the NCAA declared him ineligible due to insufficient academics: he had to obtain a 2.50 GPA in "14 core high school classes" and a 17 on his ACT and while Powe scored an 18 on his ACT and finished with a combined high school GPA of 2.54, the NCAA apparently believes that Powe's GPA reflects too many correspondence classes at Brigham Young University, and also "too many irregularities in his high school course work and transcripts." The NCAA also alleges that Powe has repeatedly refused to "clarify" certain questions that it has about his course work.

In fairness to the NCAA, remember the context of its thinking here: it has been harshly criticized in recent months over "diploma mills" that enable high school football prospects to radically improve their GPAs, including by taking un-timed exams that they grade themselves (see our blog's coverage of Florida's infamous "University High School"). Having said that, there is no apparent evidence that Powe has received that style of "schooling" on his way to a 2.54 GPA. But still, the NCAA is probably uniquely sensitive to the topic of academic standards at this time.

But the NCAA may not have the final word. For one, Ole Miss doesn't want to lose one of its top recruits, so it immediately filed an appeal with the NCAA on behalf of Powe.

But Powe isn't waiting for the appeal to be heard. Instead, he has hired a lawyer: Attorney James Carroll (right) of Carroll, Warren & Parker in Jackson, Mississippi. And the move appears to be a good one, as several hours ago, Carroll secured a temporary restraining order requiring that Ole Miss enroll Powe. Here's the story from Robbie Neiswanger and Rusty Hampton in the Clarion Ledger:
Lafayette County Chancery Court Judge Edwin Roberts Jr. said Ole Miss must allow Powe to enroll in school by Friday — the final day students can enroll for the fall semester. Roberts also said in court papers that because Powe has met the NCAA’s minimum requirements for academic eligibility, Powe should be placed on athletic scholarship and be allowed to practice with the team, in accordance with NCAA rules and the binding scholarship papers Powe and the university signed in February.
So what will Ole Miss do: follow the NCAA or follow Judge Roberts? Although the University has no comment (other than "it's an unprecedented situation"), I think the answser is fairly obvious: follow the judge. Not matter how much the NCAA likes to flex it's muscle, it can't expect Ole Miss to pick it over a judge and face contempt of a court order.

**Please See 9/17/2006 Update: Jerrell Powe Drops Lawsuit Against Ole Miss: Where Will He Now Play Football?

An Accommodationist Season Begins


College football begins here in Toledo at 8:00 pm EST tonight when the Toledo Rockets game against the Iowa State University Cyclones arrives via satellite. The other games of the day are the ESPN-featured Mississippi State – South Carolina matchup and Northwestern’s game at Miami of Ohio, which has been dedicated to the memory of late NWU coach Randy Walker.

This season promises to be an interesting one for college football and the once-embattled Bowl Championship Series (BCS). Longtime readers will recall early postings which questioned the legality of the BCS arrangement under federal antitrust laws, such as Greg’s post from November 2003, Rick’s post from October 2005, Mike’s December 2005 post and guest-blogger Chad McEvoy’s December 2005 post.

This season represents the first to be played under a “five-bowl” BCS system. The fifth bowl was agreed to back in 2004 as part of an effort to ward off threatened antitrust action against the BCS and its privileged conferences. Under the new system, the champion of a mid-major conference like the Mid-American Conference (MAC), Western Athletic Conference (WAC), or Conference USA can earn an automatic BCS bid provided that:
a. Such team is ranked in the top 12 of the final BCS Standings, or,
b. Such team is ranked in the top 16 of the final BCS Standings and its ranking in the final BCS Standings is higher than that of a champion of a conference that has an annual automatic berth in one of the BCS bowls.
However, if two or more mid-major champions would qualify under these rules, only the higher BCS-ranked team would earn an automatic berth, while the other would be limited to consideration for an at-large berth (something that, while possible, remains unlikely).

The additional bowl and possibility of an automatic berth for a mid-major conference champion drastically reduce the likelihood of an effective Sherman Act challenge against the BCS, if for no other reason that the odds are there won’t be two such teams in a given year. Since only an undefeated, mid-major conference champion would have standing to challenge the BCS system, the new approach takes away that potential plaintiff. Now, one would likely need two undefeated mid-major champions (or possibly one-loss teams with quality wins over major conference opponents) for there to be one excluded team legally capable of raising a challenge.

For those who still dream of a college-football playoff, I guess all this means cheering for the likes of Utah, TCU, Northern Illinois, Tulsa and Toledo.

The Workaholic

My name is Charlie, and I am a workaholic. I am not in recovery, and I hope to always suffer from this affliction.
 
Some of my coworkers have been getting on me for working so much. I don't actually put in as many hours as a lot of other people. I usually work about 60 hours a week. But they say it has to do with my attitude towards work than the actual amount that I work.
 
When I am working, I feel as if I have some control over my life. I feel like I am making some headway against the forces and circumstances arrayed against me. Work gives me confidence, cures my boredom, and alleviates my poverty. What's not to like?
 
Nothing has ever depressed me more than being unemployed. I hate it more than anything in the world. I suppose a diagnosis of cancer would be worse than not having a job but not by much. My work is my life.
 
I like to have fun outside of work, but I am not into hobbies. You won't see me on the golf course or collecting stamps. I like to goof off like the next guy, but I prefer to spend my time making money or working on some important project. Most of my leisure pursuits like watching sports are done while working on a writing project.
 
I'm also lazy in a lot of ways. I don't always clean out my car or take out the trash in a timely manner. Of course, that's usually because I am working so much that I don't have the time. But I can always do more than what I am doing.
 
Currently, I'm a bit frustrated in my life because I feel that I am not making enough progress in my projects or my work. The answer? Work harder.
 
Workaholism is not a vice. I refuse to believe that it is.
 

Wednesday, August 30, 2006

Stupid Ass Women

"Where are all the good men?"
 
It always surprises me when I hear this from the mouth of some female. The reason is because I know a lot of good men, and I like to think I am one of them. I work with a couple of them, and I am related to some others. The real question is why these women are so blind that they can't see what is in front of their faces.
 
I have been AWOL on the C-blog here for awhile because I have been assisting in a situation involving domestic violence and two females. It is shit straight from Jerry Springer. I couldn't make up a story like this, but I can tell you that it involves battering of women, forced sex, weird sex, theft, false confessions of murder, etc. Folks, it will nauseate you.
 
What amazes me is how sadistic men have little if any trouble attracting women. Not all women are this ignorant, but I have witnessed with my own eyes how some ignorant bitches have left and forsaken good men to be with men who are drunks, thieves, and women beaters. So, here are some tips for women for finding a good man:
 
1. Don't get involved with a man who likes to drink.
 
This should be basic. Men who drink and use drugs have a high likelihood of being pieces of shit.
 
2. Avoid men who don't have jobs or lay out from work.
 
Laziness is another huge warning sign that your man is a piece of shit. Lazy men always have money troubles and will never provide for you.
 
3. If he hits you, it is over with.
 
Men should never hit women. EVER. I could imagine extreme scenarios where a woman might have a gun or a knife and needs to be put down. But for the most part, if a man slaps you around to make a point, it is time to get out of that relationship.
 
4. Avoid men with weird sexual proclivities.
 
I love sex just like the next man, but I draw the line at anything that involves degradation. Now, the definition of degradation can be quite slippery, but I think anything involving additional partners would most definitely qualify. Midgets, dogs, three ways, "swinging," and other such stuff just isn't something I go for nor does it represent what I consider to be normal sexual behavior. It represents boredom, and when you go down the path of perversion, it requires ever more extreme acts of degradation to get the fix. This is probably the only useful thing we ever learned from the Marquis de Sade. Sex should be an expression of love not cruelty. Avoid men into cruelty.
 
These things are pretty basic. In fact, they are grouped under that category we label "common sense." But I can tell you that common sense is never common.
 
The reason why certain women find these pieces of shit so attractive is because they find it exciting being with a dangerous man. That's all there is to it. If he has a big dick, that helps a lot, too. As it stands, I have little sympathy for these ignorant women. As Dr. Phil would tell you, you teach people how you want to be treated. Battered women share some complicity in their abuse because they tolerate it.
 
In the way of an epilogue, my Jerry Springer story is 1 for 1. One elected to wise up and move on with her life. The other chose to return. Both women were with the same man. I swear I am not making this up.
 
 
 

Tuesday, August 29, 2006

What’s Wrong with Tony Kornheiser

The hiring of Tony Kornheiser for the Monday Night Football announcing team continues an unfortunate trend. Increasingly, commentators don’t talk about the game they are supposedly covering. Instead, they talk about "sports issues," usually sports law issues, while the game goes on in the background. Both baseball and football give us the worst of this, as the many dead spots during the action give ample room for the commentators to pontificate about the state of the game, the commissioner’s doings, player-manager disputes, and the like. Last year’s MNF team, John Madden and Al Michaels, distracted the viewer constantly from game action, especially when the score became even a little one-sided. It’s as if the commentators prepare with talking points instead of game film.

But why employ ex-jocks or former coaches to try their unpracticed hands at this brand of meta-commentary when one can get a pro? Hence the hiring of a full-time, experienced opinion-maker like Mr. Kornheiser.

Maybe it’s just personal preference. I don’t want to watch the Sports Reporters or Bryant Gumbel when I tune in to a football game. It’s the game match-up that draws me, not a chance to hear Kornheiser pontificate or Dennis Miller offer canned one-liners. The constant argument is distracting. I used to go to a church that played music during the recitation of prayers. Who thought this up? Who thinks this is a good idea, to say to the audience we’re going to do one thing, lure them to the activity of that thing, and then, while doing that thing, distract them with something else? Ads for MNF hype the upcoming game and its stars; they don’t say tune in to hear someone give brief, offhand opinions on close issues. I no more want to hear Tony speculating on the legality of mandatory drug testing while a halfback runs off tackle than I want to hear soft rock music kick in while I’m reading from a prayer book. It’s also frustrating. Joe Theismann can explain how a quarterback reads defenses, but he’s obviously not very adept at trading arguments with a professional writer who in high school had his head in Latin conjugations while Joe had his arm around a cheerleader.

No, the fair opponent for Kornheiser’s attempts at quick intellectualisms would be the nemesis who helped make his career, Michael Wilbon. I enjoy PTI. I love MNF. I also have a TIVO. If for some bizarre reason I want to watch the two shows simultaneously I could make it happen. There might be a few folks for whom this sounds appealing, but I suspect not most of us. I like my expert football commentators to be expert in football.

Muslim Footballers Sue New Mexico State for Religious Discrimination


My colleague Howard Friedman's Religion Clause reports that three Muslim students dismissed from the New Mexico State football team have sued the school and coach for religious discrimination. The students are represented by the ACLU. As Howard explains,
The suit, filed on behalf of Mu'Ammar Ali, Anthony Thompson and Vincent Thompson by the ACLU of New Mexico, alleges that Mumme made Muslim students feel like outcasts, questioning Ali about his attitudes toward al-Qaida. Coach Mumme had other players recite the Lord's Prayer after practices and before each game, but made Muslim players pray separately. A University investigation of the charges found no evidence of religious discrimination.
While forced recitation of the Lord's Prayer (or any prayer) before a game is objectionable, cases like this face an uphill battle. Part and parcel of the American idea of football coaching is the paradigm of coach-as-tormentor. Comments that might be insulting, or even actionable, in a normal setting, are commonplace and expected in the post-game locker room.

Monday, August 28, 2006

Should male college athletes be allowed time off for paternity leave?

That's the question posed by a pending lawsuit filed against the NCAA by Kansas defensive tackle Eric Butler, who was denied an extra year of eligibility by the NCAA after missing the 2001 season following the birth of his daughter, Angelina (Kelly Whiteside, USA Today, 8/24/06, "Suit tests ban on leave for father-athletes"). NCAA regulations give a student-athlete 5 years to complete 4 years of playing season eligibility. However, the NCAA's pregnancy exception states a school "may approve a one-year extension of the five-year period of eligibility for a female student for reasons of pregnancy." Butler brought a federal civil rights claim alleging the NCAA violated Title IX since its pregnancy waiver applies only to females. A U.S. District Court has already denied Butler's request for a temporary restraining order, and Butler has requested emergency relief from the United States Court of Appeals for the Tenth Circuit because Kansas' season opens Sept. 2 against Northwestern State.

Butler argues that the NCAA should give college athletes the same opportunities that people in the normal workplace have, citing the federal Family and Medical Leave Act of 1993 which gives men who work at companies with 50 employees or more the right to take up to 12 weeks of paternity leave. Experts for the National Women's Law Center say that if eligibility is extended for child rearing then it should extend equally to men, but if eligibility is extended because of the physical effects of pregnancy then it should not extend equally to men. And the NCAA's position is that the rule explicitly states that it only applies to female students whose physical condition due to pregnancy prevents their participation in intercollegiate athletics.

The legal question in this case for purposes of establishing a Title IX claim is simply whether the NCAA's rule "discriminates on the basis of sex". I don't think it does. The rule doesn't treat women different from men; it treats pregnant women different from men as well as non-pregnant women. Many women (those who are not pregnant) are treated the same as men under the rule, and thus the rule does not treat similarly situated persons differently on the basis of sex.

But even if the rule does treat people differently because of, or on the basis of, their sex, disparate treatment prohibits "unjustified" sex-based distinctions. A rule that discriminates on the basis of sex is justified if the rule is necessary to address the special needs of a particular sex. For example, a rule that prohibits female students from participating in contact sports with male students is justified based upon the physical differences that exist between men and women. Here, the pregnancy exception is necessary because pregnant women can't physically participate in collegiate athletics.

New Sports Law Scholarship

New this week:
Aaron J. Hershtal, Note, Does Title IX work after school? California applies the three part test to municipal sports, 12 CARDOZO JOURNAL OF LAW AND GENDER 653 (2006)

Lacie L. Kaiser, Comment, Revisiting the Sports Broadcasting Act of 1961: a call for equitable antitrust immunity from section one of the Sherman Act for all professional sport leagues, 54 DEPAUL LAW REVIEW 1237 (2005)

Toni Wehman, Comment, Not part of the game plan: school district liability for the creation of a hostile athlete environment, 77 UNIVERSITY OF COLORADO LAW REVIEW 767 (2006)

Saturday, August 26, 2006

FIFA Election Monitors En Route to Nigeria


Back in May, I posted on FIFA efforts to suspend Cambodia's soccer federation after the ruling government engaged in manipulation of the federation's elections. In an effort at preventative shaming, FIFA has now decided to deploy election monitors to Nigeria to monitor Tuesday's election of a president for the country's soccer association. Given Nigeria's soccer prowess (currently 11th in FIFA's questionable world rankings), the state of soccer in that country is of far more international concern. Five candidates are vying for the soccer association's presidency. Although the candidates have engaged in a televised debate, critics have charged that few hard questions about candidates' ethics were raised. In a country where all major political parties have been charged with election rigging, it's no surprise that a soccer association could fall victim to the same sad state of affairs (as Greg noted in March, Nigerian soccer refs are permitted to accept bribes). Hopefully, international attention will be more lasting and effective than it has been in Nigeria's political arena.

Thursday, August 24, 2006

Why Do We Love Hating Maurice Clarett?

Harvard Law professor Jon Hanson and I have an op-ed in today's Providence Journal:

Jon Hanson and Michael McCann: The psychopathology of athlete worship

Providence Journal
Thursday, August 24, 2006

CAMBRIDGE, Mass.

TO SPORTS FANS, it probably wasn't a surprise to learn that former Ohio State University football star Maurice Clarett was arrested again the other week. The evasive running back who had carried the Buckeyes to the 2002 National Championship was unsuccessful in evading the police in a car chase that occurred near the home of a witness in his upcoming robbery trial. As if his location and the arsenal of four loaded guns in his car weren't suspicious enough, Clarett was sporting a Kevlar vest at the time.

Much like Clarett in his glory days, the story has legs, powerful legs. Everyone has now seen the post-arrest photos of Clarett, dressed in a jail-issued jumpsuit and looking beleaguered. Sports writers around America have penned countless condemnations of Clarett and his bad life choices. The following sample of news headlines give a flavor of the indignation:

"After Saying He Had Changed, Clarett Goes Down Familiar Path" (The New York Times).

"Maurice Clarett in Dire Need of a Reality Check" (The Philadelphia Inquirer).

"Clarett's Misplaced Sense of Manhood Meant Nothing but Trouble" (The Akron Beacon Journal).

Editorialists ratcheted up the righteousness. Scott Soshnick, of Bloomberg News, told readers in a column entitled "Maurice Clarett Doesn't Deserve Your Sympathy": "Clarett has no one but himself to blame for his latest incarceration." An editorial said, "all [Clarett] ever has been is a knucklehead." Another, entitled "Don't Cry for Clarett," attributes his failings to "self-absorption," "ego, and arrogance."

Letters to The Columbus Dispatch got even nastier (Ohio State is in Columbus). One: "Big Mo's actions only confirm what my pappy always said: 'Beauty is only skin deep, but stupidity goes clear to the bone.' " Another called for "a citywide ban against Maurice Clarett," saying that "[a]nyone wearing No. 13 this year during Buckeyes games should be encouraged to burn their jersey."

It is obvious that people care about this story; what isn't so clear is why. Why are Americans so interested in an event that, with a different culprit, would have spread no further than the local crime blotter? And why are so many sports writers preoccupied with a man who never played a down in the National Football League and who hasn't played college football in over three years? Most perplexing, why the vitriol? Why do we pile insults on a young man who is already a has-been?

Is it because a young black man was arrested and jailed? Nope. After all, we barely notice that over 15 million Americans are arrested each year and one out of every four black men will go to prison in his lifetime.

Might it be because he was carrying concealed weapons? Uh-uh. Thousands of people are arrested each year for that, and it is not a crime that elicits general outrage. In fact, more and more states are passing laws making it easier to carry a concealed weapon.

To understand why we Americans enjoy villainizing certain sports figures (Ron Artest, Terrell Owens, Rafael Palmeiro, Lawrence Phillips, Mike Tyson), it is helpful to understand why we make super-heroes of others.

Consider the most celebrated athlete in recent memory, Lance Armstrong. He has been the recipient of too many accolades to count, including Sports Illustrated's "Sportsman of the Year," the Associated Press's "Male Athlete of the Year" (four times), and ESPN's ESPY Award for "Best Male Athlete" (again, four times). Is Lance talented and successful? To be sure. And, yes, he won the Tour de France seven times -- more than any rider in history.

But those successes alone are not what make Armstrong our hero. In fact, not long ago Americans cared as much about French cycling races as they do about English cricket tournaments. In Armstrong's case, it wasn't so much the race that made the man; it was the man who made the race. And what we admire in this man is not that he is a winner, but that he is a winner after having nearly lost his life to testicular cancer.

We love loving Lance because his success confirms our faith in the power of perseverance. The message for us all is the American creed: We can overcome our situation, no matter how grim, if only we work hard and choose wisely.

Consider also ESPN's award for the "best sports moment of the year." In the single basketball game that Jason McElwain played in high school, he scored 20 points in just 240 seconds. Sure, that was an outstanding accomplishment, but what made it the "best moment" is that "J-Mac" is autistic and had spent the rest of the season as the team manager.

Oh, we love those stories! Indeed, we pay good money to see movies about fictional sports figures (from Radio to Rudy to Rocky) who overcome their situations.

This brings us back to the more tragic Clarett story. Why do we love hating Maurice? For the same reason -- just from a different angle. Clarett was at the cusp of fame. Had he simply chosen better, as one editorialist wrote, Clarett "would be signing autographs in some National Football League training camp right now. He'd be the face of a franchise. He'd be a millionaire. He'd be wearing Nike shoes and getting paid to do it. He'd be posing for magazine covers and billboards, instead of mug shots."

The message of Clarett's story is just the flip side of the same creed: If we work hard and make good choices we will succeed, but if we are lazy and make bad choices, we will fail.

And why do we love that message? Social science provides several reasons, but among the most important is our subconscious craving to believe that our world is just and that anyone can overcome circumstances. When our heroes are "good guys" who make "good choices" and our villains are "bad guys" who make "bad choices," that craving is satisfied.

If someone succeeds, he deserves it; if someone fails, he has no one but himself to blame. Feels good.

Jon Hanson and Michael McCann -- professors at, respectively, Harvard Law School and the Mississippi College School of Law -- are writing a book on how sports shape beliefs about law and policy.

Wednesday, August 23, 2006

Hollywood Talent Firm Consolidates Sports Agent Biz

SFX, Octagon and IMG, collectively, once dominated the player representation business. Consolidation in the sports agency industry involving these companies, which began in 1995, dramatically changed the sports agent market and transformed the industry from a "mom and pop" environment into the world of big business in which few independent sports agents remain prominent today. [However, one independent agent, Scott Boras, continues to flourish in the baseball industry and is arguably the most dominant agent in any single sport. In 2005, Boras virtually controlled the free-agent market in baseball by signing six premium free agents to more than $400 million worth of deals.]

This year, the agent business was consolidated even further with Creative Artists Agency’s decision to buy and merge the practices of former IMG football agents Tom Condon and Ken Kremer and former SFX football agents Ben Dogra and Jim Steiner. In an instant, the merger created the largest NFL player representation firm in the country, with about 140 players, including stars such as Shaun Alexander, Peyton and Eli Manning, and Carnell “Cadillac” Williams. CAA, a Hollywood talent firm, also purchased IMG's baseball practice lead by Casey Close.

When a company purchases a sports agent business, what is it really buying? The primary assets consist of the player-agent representation agreements. But the players association regulations governing agents in all four sports permit the players to terminate these agreements at will upon just a few days notice. And players frequently switch agents, so there is a risk that some of the agency's clients will not even be the agency's clients at some point or another after the sale. So in essence, the buyer is really just purchasing the future commissions owed by the player to the agents under these agreements. [The regulations only permit commissions to be paid to the agent as and when the player is paid his salary during the term of his player contract.]

The other primary asset purchased consists of the individual agents themselves via an employment agreement with the agent. But here too, it is very common for disputes to arise between individual agents and the agency that employs them, and the agent ends up leaving and takes clients with him resulting in a lawsuit. In the July 31 edition of the Sports Business Journal, Liz Mullen notes that many agents are speculating how long the marriage will last at CAA:
No sooner was the deal announced than other agents started saying it would never work. They reasoned that egos would clash, that players might shy away from being represented by what one agent called “a monstrosity,” and that Condon, long recognized as the most powerful NFL agent, and Dogra, an up-and-comer, would struggle over issues such as who would recruit which players. Arn Tellem, the prominent basketball and baseball agent who was formerly CEO of SFX Sports and is now CEO of athlete management for Wasserman Media Group, said that the most successful agents are extremely competitive and have a hard time working with their former competitors. “It is not in most agents’ nature to make it work,” Tellem said.
Another legal issue that arises from consolidation in the industry is the increased potential for conflicts of interest. Such a conflict can arise when an agency represents two or more similarly situated players at the same time who are competing for a finite number of available positions in the league, or, even if not competing for the same position, competing for a pool of available dollars that teams are willing to spend on players at that particular time. Representing over 140 NFL clients means that CAA is representing an average of 5 players per team. At some point, CAA will be negotiating contracts at the same time for multiple free agents competing for a job. An agent owes a fiduciary duty (duty of loyalty) to serve the best interest of each individual client, and it will be difficult for CAA to do so in this scenario. The NFLPA will be closely monitoring this situation.

Tuesday, August 22, 2006

Comparing Baseball Salaries to Income Inequality in the United States

Kevin Drum of Washington Monthly (probably my favorite non-sports blog) has a very interesting post on growing income inequalities in the United States, as he uses the growth of baseball salaries to explain his position (which, in sum, is that while aggregate wealth keeps increasing in the U.S., the rich and powerful have the greatest access to it, so they take most of it):
[I]t's not just the top 20% who have gained relative to the bottom 80%, it's also the top 1% who have gained relative to the 10% just below them. Do we really believe that the top 1% have an enormous educational advantage compared to the top 10%? And that this gap has increased over the past 50 years?

Consider professional baseball. Today's top players routinely sign contracts that pay them $5 million a year. A-Rod signed one that paid more than $10 million. But 50 years ago, the highest paid player earned about $300,000 (in inflation-adjusted terms). Why the 30x increase?

It's certainly not because A-Rod is relatively more valuable to the Yankees' pennant chances today than, say, Mickey Mantle or Roger Maris were in their day. Rather, what's happened is that there's fantastically more money sloshing around in professional baseball than in the past thanks to skyrocketing TV, radio, and merchandise sales. More money means higher salaries.

But that's not automatic, of course. There's another piece to the baseball puzzle: in 1966 the baseball players union hired Marvin Miller, a former negotiator for the U.S. steel workers, to head their organization. In 1972 they went on strike, and ten years later the reserve clause was history, free agency was in full swing, and player salaries were going through the roof. This is not a coincidence.

Similarly, the broader economy has grown enormously in the past few decades, but without a Marvin Miller on their side almost none of this growing pile of money has gone to middle class workers. And this, I believe, is the root cause of skyrocketing income inequality: economic growth combined with stagnating median wages has produced a colossal amount of extra money sloshing around in the system, and it has to go somewhere. And since the rich and powerful run the system, where else is it going to go but to the rich and powerful? They aren't going to dole it out to the less fortunate out of the goodness of their hearts, after all.

Alright, I'll admit it: I inserted the A-Rod picture above, which depicts his infamous and feeble attempt to knock the ball out of Bronson Arroyo's glove in Game 6 of the 2004 American League Championship Series (sorry, the Yankees' five game sweep of the Sox this past weekend still has me aggravated). But going back to Drum's post, he mentions Marvin Miller. Miller as you know, was a labor economist who served as executive director of the MLBPA from 1966 to 1982. During that time, and as Drum notes, he radically improved the rights and earning capacities of the baseball labor force.

So is Drum right: Does our country's middle class lack a "Marvin Miller type figure," and does that in part explain why so many in the "middle class" seem worse off than the "middle class" of years ago? I suppose some might describe Ralph Nader as the Marvin Miller of the middle class, although Nader, while influential, has not been in charge. What do you think?

Floyd Landis and Justin Gatlin Doping Scandals: Should Congress Get Involved?

Chris Graham of the Augusta Free Press has an excellent article on whether Congress should conduct new hearings on performance-enhancing drugs in the wake of the Floyd Landis and Justin Gatlin doping scandals ("The Politics of Steroids," Aug. 20, 2006). As you know, Landis is an American cyclist who won the 2006 Tour de France and who was recently fired from the Phonak team after a positive doping was confirmed, while Gatlin is an American sprinter who holds the world record in the 100 meter sprint and who also recently tested positive for doping. Graham wonders if Congress might consider holding hearings on doping in sports, much like it did in 2005 in the wake of the baseball steroids scandal.


Graham interviews several people for the story, including me:

"I would be surprised if Congress acted again on this issue in the near future," said Michael McCann, a professor at the Mississippi College School of Law and a regular contributor to The Sports Law Blog. "This certainly has garnered the attention of the sports world. But with elections coming up, with the war in Iraq, with Israel, it doesn't seem as if there is a window of time to address this," McCann told The Augusta Free Press.

Bob Thompson, the director of the Center for the Study of Popular Television at Syracuse University, points to another issue that could be serving to hold back congressional action. "I don't feel yet like we've really reached that point of total public outrage all united together in one sort of voice," Thompson said . . .

Arthur Caplan, the director of the Center for Bioethics at the University of Pennsylvania, thinks it is wise of Congress to steer clear of getting involved in the issue any more than it has. "The issue here is that there really isn't any right or wrong about what to ban or prohibit in sports once you get past risk," Caplan said . . .

Paul Haagen, the co-director of Center for Sports Law and Policy at Duke University, offers two other reasons for Congress to keep its nose out of the regulatory end of things. "With the international sports, I think there is a really strong case that this ought to be left to the World Anti-Doping Agency - and the reason for that is when you're dealing with international competitions, there's a lot of suspicion from country to country that individual countries are protecting their athletes, that they're not interested in rooting this out . . ."
Check out the story for more. Do you think Congress should get involved at this time, or ever?

World Series of Poker Champion to Face Lawsuit? SPOILER WARNING


For those still awaiting ESPN's September 26 broadcast of the August 10 World Series of Poker Main Event final table to find out who won it all, please STOP READING NOW.

The Las Vegas Review Journal gossip column reports that WSOP main event champion Jamie Gold may soon face a lawsuit from financial backers who will seek to claim some share of his WSOP $12 million payday.
There are rumblings of an "explosive" development in a story rife with more twists than an episode of "The Sopranos."

An insider says look for court challenges over whether Gold agreed to divvy up a share (or shares) of the $12 million prize he won at the World Series of Poker's main event Aug. 12 at the Rio.

* * *

Yes, Gold was sponsored by the gaming site, bodog.com, Horn said. But, "He will be an ambassador. No money was involved."

An Internet report claimed Gold's sponsor would get 50 percent.
According to the same article and to the Defamer blog, Gold is also coming under fire for alleged exaggerations and misrepresentations of his background and career as a Hollywood agent.

UPDATE (8/25/06): Yesterday, news broke that a lawsuit had been filed against Gold by another Hollywood promoter (rather than bodog.com). A judge has issued a TRO preventing the Rio from paying out half of the $12 million prize.

Monday, August 21, 2006

New Sports Law Scholarship

New this week:
Kevin J. Cimino, Note, The rebirth of the NBA - well, almost: an analysis of the Maurice Clarett decision and its impact on the National Basketball Association, 108 WEST VIRGINIA LAW REVIEW 831 (2006)

Jonathan Deem, Note, Freedom of the press box: classifying high school athletes under the Gertz public figure doctrine, 108 WEST VIRGINIA LAW REVIEW 799 (2006)

Leslie Ann Dougiello, Casenote, Inequitable procedures win gold in Olympic arbitration, discussing Jacobs v. United States Track & Field, 374 F.3d 85, 2d Cir. 2004, 24 QUINNIPIAC LAW REVIEW 887 (2006)

Saturday, August 19, 2006

Are golf courses good for economic growth?

At the Conglomerate Blog, Maryland Law Professor Lisa Fairfax asks whether building golf courses can spur economic growth in developing countries. She's done some research on the subject, and found studies that indicate golf courses promote growth. While there are some obvious endogeneity issues here, I wonder whether the same can be said for American states. Is building golf courses a route to economic development?

Friday, August 18, 2006

Golfer's Suit Against Agent Heating Up

Discovery battles have surfaced in pro golfer David Toms' suit against his agent, Links Management Group, LP. In a slip opinion available at 2006 WL 2355865, a federal magistrate judge denied Toms' motion to compel a deposition of Chad Campbell, another golfer and client of the same agent. Toms' lawsuit claims, as reported by a Baton Rouge TV station, "breach of contract, breach of fiduciary duty -- not looking out for Toms' best interest -- and seeks the termination of the contract and compensatory damages with interest." The federal magistrate elaborates:
Plaintiff's lawsuit generally alleges that he and Defendant are parties to a written contract; that Defendant breached the contract by not diligently developing, negotiating or managing prospective merchandising endorsements or sponsorships for Plaintiff; that Defendant alienated existing clients and other business associates of Plaintiff; that Defendant has not treated Plaintiff fairly, preferring instead to promote other golfers at the expense of Plaintiff; that Defendant has recouped fees to which it is not entitled under the contract; that Defendant held large endorsement checks for long periods of time, thereby depriving Plaintiff of interest on the money . . . . The petition asserts claims for breach of contract, breach of fiduciary duty, rescission of the contract, and unjust enrichment. Plaintiff also seeks a declaratory judgment regarding termination of the contract.
The relationship between professional athletes and agents -- and the fiduciary law issues posed by breakdowns in the relationship -- is one of the most interesting and challenging areas of sports law. This case will be one to watch for a later substantive opinion.

Thursday, August 17, 2006

NHL "Stealing" Russia's Star Hockey Players?

There's an interesting story released this week on NHL.com as well as in USA Today about hockey star Evgeni Malkin, who bolted from his Russian professional hockey league team, the Metallurg Magnitogorsk, last Saturday after it arrived for training camp in Helsinki, Finland. Malkin is widely considered the best in the world not currently playing in the NHL. Malkin's agents in the U.S. will not confirm where he is at the moment, though they believe he is "out of harm's way". This is good news for the Pittsburgh Penguins because, although Malkin is currently under contract with Metallurg, they own the rights to Malkin here in the States as he was their No. 2 overall pick in the 2004 draft. Now that he is out of Russia, Malkin is expected to sign with the Penguins, if he hasn't already done so, and report to their rookie camp. However, Metallurg general director Gennady Velichkin is threatening legal action against the Penguins: "We all are really shocked by his departure and we will take legal actions against the NHL club Penguins from Pittsburgh. Americans like to speak about democracy and teach the whole world how to live but engage in sport terrorism and simply steal people."

In the U.S., it is well established that if a player under an existing contract "jumps ship" and signs a contract with another team in a different league, the team that loses the player would generally have two claims. First, the team could sue the player for breach of contract and seek a court order by way of a "negative injunction" to prevent the player from playing for the new team. Second, the team could sue the new team on a tort claim for intentional interference with contractual relations if the new team signs (or attempts to sign) the player to a contract that overlaps with the player's term under his existing contract. However, the new team is not prohibited from negotiating a contract with the player for a term to commence after the expiration of the term under the player's existing contract because, from a policy standpoint, courts are sympathetic to the defendant's right to compete with the plaintiff for the personal services of others.

So this situation presents an interesting international sports law issue because the two teams are located in different countries, and each country has its own set of laws governing the issue. One major distinction between the two countries' laws is that Russian law apparently permits any employee under contract, even a professional athlete, to leave his or her job upon giving two weeks' written notice. Thus, unlike in the States, it appears that it might be difficult for Mettalurg to establish a claim against Malkin for breach of contract.

But what about a tortious interference claim against the Penguins? This is a complicated question. Mettalurg would most likely sue the Penguins in a Pennsylvania court and, assuming the court determines that jurisdiction is appropriate, the court would most likely apply Pennsylvania law. It then becomes a factual issue regarding the extent of interference committed by the Penguins. Mettalurg could argue that the Penguins were aware that Malkin was already under contract when they made Malkin their first round draft pick. However, that act alone probably wouldn't rise to the level of tortious interference on the part of the Penguins unless the Penguins also negotiated a contract with Malkin (or his agents) for a term to commence prior to the end of the Mettalurg contract term.

If the Penguins ultimately sign Malkin to a contract that overlaps with the Mettalurg contract term, it would make Mettalurg's case much stronger. On the other hand, even if the Penguins do sign Malkin, the Penguins could argue that the interference is not substantial (i.e that the Penguins didn't really do something that either prevents performance of the Mettalurg contract or makes performance substantially less likely) if Malkin could in fact terminate the Mettalurg contract by simply giving two weeks' notice. Mettalurg might have a good argument that the two week notice termination right simply allows the player to essentially opt out of the contract and not play, but such right does not permit a player to nullify an existing contract and sign with another team because that would make all multi-year terms in Russian professional sports contracts superfluous.

As the USA Today article indicates, Malkin isn't the only Russian player invoking the letter of resignation as a way to leave a team and play in the NHL. Draft picks Alexei Mikhnov (Edmonton Oilers) and Andrei Taratukhin (Calgary Flames) also sent such letters to their Russian teams this summer in order to join the NHL. It will be interesting to see if Mettalurg ultimately acts on its threat....

Sixth Circuit Rules Michigan High School Sports Seasons Discriminatory

In the latest opinion in a long-running dispute, the U.S. Court of Appeals for the Sixth Circuit yesterday upheld a district court opinion finding that the Michigan High School Athletic Association (MHSAA) violated federal and state law in the scheduling of girls' sports season. A news article on the case can be found here, and the court's opinion can be downloaded here. While this case may head back to the Supreme Court (which remanded the issue on a technical point in 2005), the 6th Circuit's decision also makes it likely that major changes in the state's sports scheduling will take place in the 2007-2008 school year.

Wednesday, August 16, 2006

Shoud Physicals Come Before Trades?


The recent failed Lee Suggs trade raises a curious aspect of the NFL regime for player trades. Two teams negotiate for the terms of a player’s reassignment, and once terms are “final,” the traded player reports to his new team. Only at that point does the new team conduct a medical examination of the traded player. The team gaining the player then faces a dichotomous choice: either declare the player has “failed” the physical, invalidating the trade, or declare that he has “passed,” such that the terms of the trade become finalized. Notably, the team conducting the physical does not have the option to renegotiate terms of the trade based on troubling, but not necessarily fatal medical discoveries. In addition, the team giving up the player has limited or no right to challenge the medical determination made by the acquiring team.

This is an odd way of trading, certainly foreign to most transactions in goods and services, and it may not represent the economically efficient arrangement. Consider the NFL trading regime as applied to, say, the sale of a used car. Let’s say I am selling a used car in which you are interested. As with a potential traded player in the NFL context, you have limited information about the vehicle in question; certainly, I, the seller of the vehicle, have more information. The NFL’s approach, applied to the auto context, would mean that you could look at film of other people driving the car (equivalent to watching film of an NFL player), but that you could neither test drive the car, nor take it to your friendly neighborhood mechanic, until after we had agreed to terms of the sale. Once we had inked the terms of the sale – and only then – you could take it and have someone more knowledgeable look under the vehicle’s hood, to see what it’s packing. At that point, the mechanic (presumably according to your instructions or specifications) could declare that the car either “passed” or “failed” its examination. If the car failed, you would be able to return it to me, along with a torn-up copy of our trade agreement. You would not be able to renegotiate a different price; nor would I have any power to challenge your assessment (or rather, your mechanic’s assessment) that the car was a lemon.

Can anyone imagine buying a used car this way? Yet that’s exactly how NFL trades seem to work. Wouldn’t more efficient trades be possible if the potential acquiring team could conduct a physical of the player before signing the terms of the deal? That way, the team would not face the “all-or-nothing” choice it does under the current regime. If the player were hobbled by some surprising injuries, the potential acquirer could negotiate for reductions in price (or, since trades aren’t for “cash” in American sports, other types of compensation).

To be sure, a proposal to allow pre-trade physicals might upset some players. After all, being physically examined would tip off the player that a trade was coming – something that a player under the current scheme might not find out until the deal is announced to the public. But at the same time, certainly players like Suggs would appreciate not being declared “physically unfit” to play the game – a moniker that can’t be good for a player’s next contract bottom line.

At a minimum, it seems that the NFL should clarify the standards under which teams are permitted to declare a player has “failed” his medical exam. That would reduce the likelihood of the kind of bad feeling expressed by the Cleveland Browns this week, according to the San Jose Mercury News:
The Browns released a statement that disputes the Jets' medical decision, with GM Phil Savage saying that Suggs will return to practice immediately.

"Medical opinions can vary from team to team, and obviously this is one team's opinion," Savage said.

Said Browns coach Romeo Crennel: "They've got a new regime down there, so maybe they're doing things a little differently. All I can say is the kid was practicing for us."

Tuesday, August 15, 2006

New Federal Lawsuit on Whether Fantasy Sports Are Forms of Gambling

Tresa Baldas of the National Law Journal has a feature story on a complaint recently filed in the U.S. District Court for New Jersey asserting that ESPN.com, CBS.sportsline.com, and Sportingnews.com are engaging in illegal gambling by hosting pay-to-play fantasy leagues with lucrative prizes (also available on Law.com, 8/14/2006). The claim is being brought by Charles E. Humphrey, Jr., a Colorado attorney whose practice focuses on gambling law. He filed his suit in New Jersey because of that state's gambling loss recovery statute, which, interestingly enough, was originally passed in 1710 to protect English aristocrats from gambling away their inheritance and allows for a "private attorney general," or qui tam plaintiff, to recover half of gambling losses, with the other half going to the state. As Baldas notes, six other states, and the District of Columbia, have similar laws allowing a third party to recover gambling losses-Georgia, Kentucky, Illinois, Massachusetts, Ohio and South Carolina.

Humphrey contends that fantasy players can often lose because of circumstances beyond their control, like plain bad luck. Specifically, he said that if a baseball pitcher throws out his arm, or a football player twists an ankle, or a coach pulls out a star player to give him a break, those are all circumstances beyond the player's and bettor's control and thus consistent with a game of chance.

Humphrey's lawsuit is apparently causing great consternation among fantasy sports operators, and has elicited response from their lawyers that fantasy sports are about skill:
The lawsuit has raised some commotion in the fantasy sports industry, which has invited a team of attorneys to discuss the potential impact of the suit at the 14th Fantasy Sports Trade Conference in Las Vegas on Aug. 30.

"People of course are nervous about [the lawsuit] but the general feeling in the industry is that fantasy sports are not gambling," said Glenn Colton of the New York office of Palo Alto, Calif.'s Wilson Sonsini Goodrich & Rosati, who will speak at the conference. Colton, who also represents the Fantasy Sports Trade Association, doesn't believe Humphrey's suit will succeed.

"I think that the premise that [a fantasy sport] is more chance than skill is simply wrong," Colton said. "There are very large number of ways in which someone can skillfully and intellectually predict how a player is going to perform." For example, Colton said, a fantasy football player can study offensive coordinators' techniques, evaluate who gets the ball more often-wide receivers or running backs-or study a quarterback's performance.
Baldas also interviews Attorney Rudolph Telscher and me:
Michael McCann, who teaches sports law at Mississippi College School of Law, does not think Humphrey's suit will prevail.

"Fantasy sports just don't strike people as immoral. Even if his argument is technically correct, it lacks the moral weight that is so crucial in many other litigations," McCann said. He added that the name of the game itself-fantasy-"attempts to suggest that it's not real, that there's an innocence to it."

Attorney Rudy Telscher of Harness, Dickey & Pierce in St. Louis recently won a case on behalf of a baseball fantasy league operator suing over the rights to use player statistics.

Major League Baseball argued that fantasy leagues needed a license to use the information. But on Aug. 8, a federal judge ruled that fantasy baseball operators do not need licenses to operate such leagues. C.B.C. Distribution and Marketing v. Major League Baseball Advanced Media, No. 4:05-CV-00252 (E.D. Mo.).

Telscher said that the ruling was a big win for fantasy operators, which would have had to shut down had the judge ruled otherwise, and for fantasy players, who may have had to start paying fees for player statistics. "I think a loss would have definitely crippled [the fantasy industry]," he said.
We'll keep you posted on Humphrey v. Viacom Inc., No. 2:33-av-00001 (D.N.J.). For other coverage of fantasy sports on this blog, please click here.

Monday, August 14, 2006

Marquette Conference on Individual Performer Sports

Marquette's National Sports Law Institute will be hosting an interesting conference (CLE credit available) on October 8 entitled Individual Performer Sports: Current Legal and Business Issues.

Panels include:
Internal Regulation Issues in Individual Performer Sports and Public Law Limits on Authority

Transsexualism and Athletic Competition

Legal and Business Issues in Tennis, Golf & Track & Field

Legal and Business Issues in Emerging Individual Performer Sports
For more information, or to register, go to this site.

New Sports Law Scholarship

New this week:
Melissa Steedle Bogad, Note, Maybe Jerry Maguire should have stuck with law school: how the Sports Agent Responsibility and Trust Act implements lawyer-like rules for sports agents, 27 CARDOZO LAW REVIEW 1889 (2006)

Kenneth B. Franklin, Note, A brave attempt: can the National Collegiate Athletic Association sanction colleges and universities with Native American mascots?, 13 JOURNAL OF INTELLECTUAL PROPERTY LAW 435 (2006)

Jacob Jacoby, Sense and nonsense in measuring sponsorship confusion, 24 CARDOZO ARTS & ENTERTAINMENT LAW JOURNAL 63 (2006)

New NFL Commish Has His Work Cut Out for Him

Vito Sellino has an interesting piece in Sunday's edition of the Florida Times-Union, in which he addresses a common misperception in the sports world that new NFL commissioner Roger Goodell took over from Paul Tagliabue a "well-oiled machine" ("Goodell's hands full with heavy contract issues"). Sellino interviewed Jacksonville Jaguars owner Wayne Weaver, who said the consensus of owners right now is that they need a new business model. Despite the fact that the owners passed a new collective bargaining agreement last March by a 30-2 margin, that agreement has yet to be finalized in written form and, according to Sellino, many owners appear to have buyers' remorse. Weaver said he voted in favor of the new labor deal because "labor peace was more important than having a labor strike or Armageddon."

At the final hour, the owners and the union agreed in principle on a very complex and detailed revenue sharing plan that still hasn't been reduced to writing. Indeed, the very next day following the announcement there appeared to be confusion among the owners about how the revenue sharing would work, and some owners were even questioning what it was they agreed to regarding revenue sharing. Now, five months later, 32 owners and the union are still trying to come to agreement and accurately reflect in writing what they agreed upon last March. It even appears as though there is some disagreement among the "have's and have not's" regarding the basics of the revenue sharing plan. Sellino wrote:
"The way it's set up, the small-market teams must pick up the costs that help the big-market teams make more money. Weaver has called that agreement "unsustainable" in the long term. Small-market owners will closely watch to see how Goodell handles this issue because they're concerned that big-market teams will insert qualifiers in the deal and limit the money the lower-revenue teams receive."

Here we go again! It remains to be seen how much longer the so-called "labor peace" in the NFL will actually last. Even if and when the owners and the union finally agree upon the precise terms and language, Sellino points out that, in just 27 months, the vote of only nine owners would enable them to opt out of the deal, which would then expire after the 2009 season and the onus would then be on Goodell to convince Gene Upshaw that the union should give back some of the perks it won last March. Good luck with that Mr. Goodell....

Sunday, August 13, 2006

Politics and Entertainment

Oliver Stone has recently made a movie called World Trade Center which is surprising a lot of people because it is apolitical. Stone has made such a career out of indulging his left wing bullshit and his crackpot conspiracy theories that people are rediscovering that the man is actually a pretty good filmmaker. But I've heard a few people lament that Stone has "sold out." Give me a break.
 
There's a fine line between entertainment and politics. I don't think politics should be verboten in the context of entertainment, but it needs to be done better. Clearly, Oliver Stone has been a fuck up in this regard.
 
Another example of this shit is the Dixie Chicks fiasco which they are still paying for. Then, there is Bono who I simply can't stand. Bono takes every show and turns it into a political soapbox. It is nauseating to behold. Maybe I would feel differently if he was a libertarian.
 
I'm not saying that rock stars can't be involved in politics or have political opinions. But fans pay money to be entertained and not preached at. Turning a show into a political rally is a bit disingenuous. Plus, it ruins things for the people who don't share your opinions. I love U2's music, and I think they are the best rock band in the world. I just want Bono to shut the fuck up and sing. When he starts whining about third world governments and their debts, I want to barf and ask for a refund. Suck a dick, Bono. Put your mouth to better use.
 
My advice to those in entertainment is simple. Do that shit on your own time and your own dime. If you deal with politics in the lyrics of a song or within a story, make it part of the story or song and not just propaganda or preaching. For instance, I love Stone's Wall Street. I don't agree with Stone's conclusions about those in business, but it is thought provoking.
 
At some point, you're going to lose some folks. You can't please everyone. But entertainers know who their cores are, and those are the people who you owe a good show to. In regard to the Dixie Chicks, those Chicks should have known better. I wasn't offended by the remark that put them into oblivion much like I was not offended when Sinead O'Connor shredded a picture of the pope on SNL all those years ago. But both were kinda dumb.
 
Keep your work and your politics separate.
 
 
 

Saturday, August 12, 2006

Philanthropy

Bill Gates and Warren Buffett have made headlines recently with their combined contributions of wealth towards causes they consider to be worthy. Both men believe in confiscatory tax policies and the power of government to change things. Yet, neither one has elected to donate their fortunes to the federal government.
 
Gates and Buffett are idiots with money. It happens. And like lottery winners, both these billionaires seem intent on dissipating their wealth in wasteful pursuits. But hey, they made the money, so they can dispose of it as they please.
 
Why are these rich guys giving away their money? Because they believe the Marxist lie that they have stolen the wealth they possess. So, they will now attempt to atone for this theft by returning this money. In other words, they have spent their respective lifetimes "hurting" people, so they will now try to help them. It boggles the mind.
 
What would I do with the money? Well, I'd probably do my best to make even more of it by offering products and services to customers and putting people to work. Hell, the best thing Bill Gates could do for humanity would be to develop an operating system that didn't crash all the fucking time. But I am digressing. . .
 
In the way of purely charitable causes, I would put my money to work on the causes I support now namely promoting freedom. I don't believe there is a better place to do good than here. Other places I might deploy cash to would be pure science endeavors. There are things that I would like to know and discover that would yield not a single cent of profit to anyone especially myself. SETI is one of those projects, but Microsoft billionaire Paul Allen has already tossed some money that way. But I'd probably start something called the Pure Science Foundation just for this type of stuff.
 
The bottom line is that capitalism is not evil. It's a shame that two of the most successful capitalists in history don't see it this way. But I'm not going to complain but elect to put my principles into action and accumulate some of my own wealth to deploy as I see fit.
 
 
 

Friday, August 11, 2006

Redskins Trademark Challenged as Offensive (Again)


In the latest salvo in a long-running war with the Washington Redskins, a group of Native American activists has filed a complaint with the Patent Trademark Office (PTO) seeking cancellation of the registered mark on the grounds that it is offensive. The petitioners argue that the term "Redskin" "was and is a pejorative, derogatory, denigrating, offensive, scandalous, contemptuous, disreputable, disparaging, and racist designation for a Native American person." A similar complaint was ultimately rejected by a federal court in Pro Football, Inc. v. Harjo, 284 F.Supp.2d 96 (D.D.C. 2003).

However, this time around, as WSJ Law Blogger Peter Lattman explains, the plaintiffs have an interesting strategy. The court in the previous case found that
laches (essentially, a statute of limitations) barred the Native Americans’ claim because the Redskins had registered their trademark way back in 1967. The Native Americans then appealed to the D.C. Circuit, which issued an opinion last year declining to rule on disparagement but asking the trial court to reconsider the laches issue.

So how do the new petitioners get around the laches issue? They’re young, ranging in age from 18 to 24, so their claim isn’t stale.

How Not to Teach A Softball Team to Slide

A New York appellate court has upheld a trial court's decision allowing some portions of an injured softball player's suit against her school to go forward. See Ross v. New York Quarterly Meeting of the Religious Society of Friends, 2006 WL 2291108 (N.Y. App. 2006). The plaintiff had twisted and fractured her right lower leg while performing an exercise to practice sliding. According to the court,
The drill was conducted in the school gymnasium, under the supervision of the softball team's coach and her assistant, both of whom were defendant's employees. The students took turns running across the hardwood floor toward an area where the floor was covered by parachute material, where they were directed to slide on the material. . . . [P]laintiff testified that the coach and her assistant did not smooth out and reset the material after each student's slide . . . .
The appellate court upheld the trial court's decision to let the plaintiff proceed with her case over the defendant's primary assumption of risk argument. The court reasoned that the plaintiff had raised a triable issue of fact as to whether the softball team coaches had increased the risks ordinarily associated with softball practice participation:
To begin, plaintiffs' expert opined that the coach unreasonably increased the risks of the exercise by directing the students to slide while wearing sneakers, which, according to the expert, would create traction on the gymnasium floor from which injury could result. In addition, the expert opined that, if (as the . . . plaintiff testified) the parachute material were not smoothed out and reset before each successive slide, such an omission was a breach of sound coaching practice that could have been the cause of the accident. In this regard, it is significant that . . . the accident occurred when her leg "got caught" in material that was "bunched up" from the previous slide. Finally, the expert opined that the coach should not have directed the . . . plaintiff to begin sliding before she reached the parachute material. Given that the uncovered hardwood floor would have generated greater friction than the material, beginning to slide while still on the uncovered floor (if this is what the infant plaintiff did) could have been a cause of the accident.
However, the court rejected plaintiff's claim that the failure to use a "spotter" increased the risks associated with the sport which plaintiff assumed by way of her voluntary participation. The court opined, "If plaintiffs were permitted to go to trial on this theory, predicated solely on defendant's alleged failure to realize a conceivably attainable additional increment of safety, little would remain of the well-established doctrine of primary assumption of risk."

Wednesday, August 9, 2006

Life Among the Philistines

The Philistines were a group of people that populated the Ancient Near East and were the enemies of the Israelites as recorded in the Bible. They represented the scum of the earth as opposed to the more enlightened members of the tribes of Israel.
 
The term "philistine" became a pejorative term during the 19th century and was used to describe people that are anti-intellectual. I like the term and use it quite often.
 
If you wonder why libertarianism has made such little headway in the world, it is because of the philistines. I can always tell the philistines because they regularly tell me that I am full of shit though they can never proffer a single argument defending this assertion. This is because they do not think or are even capable of thought. A lifetime spent in mindless absorption in things that don't matter have rendered them incapable of contemplation, reflection, or even the possibility that perhaps they are the victims of people who have no moral qualms in exploiting their ignorance.
 
If you do not believe this position of mine, consider these truths. People complain that they are tired of lying politicians, but they reelect them time and time again. These are the same people who want a bloated government promising them cradle to grave welfare while simultaneously not having to pay the taxes that such a welfare state would demand. These are also the same folks who will go off, fight wars for "freedom," then return home and allow themselves to be ass raped by their own governments.
 
The beauty of the free market is that it does not require people to be smart in order for it to work. Even the most illiterate, inbred, shit-for-brains idiot is often able to produce some measure of wealth and buy the things he needs. Of course, a large part of his income will go to the purchase of lottery tickets, but so be it.
 
I must admit to doing a lot of stupid shit in my life and believing in things that simply aren't true. We all get fooled from time to time, and I don't see this as being that tragic. I don't even consider myself smarter than the average bear. But there is one thing that distinguishes me from the herd, and that is the fact that I read.
 
Philistines don't read. The only books they ever read were the ones they were made to read while in school. Now, this doesn't mean that I think people should be forced to read. In fact, I think these people should be free to be as stupid as they please. If people wish to be ignorant and apathetic, this is certainly their right. I would be a hypocrite to think otherwise.
 
So, what is my problem with the philistines? It isn't that they are stupid, unenlightened, and ignorant. It is when they pretend to know something that I have a problem with them. I don't think there is a day that goes by that they don't open their mouths and say shit that makes no sense at all. Here are some examples of stupidity I hear quite often:
 
- "We need to nuke those fuckers."
 
This is the foreign policy answer of every man in the street. The reason we have so much war is because the USA doesn't kill enough people. If we kill enough people, then we will have peace. It doesn't take much to realize that we would have to kill just about every person on the planet to resolve all conflicts. It also isn't a stretch to realize that our opponents esp. Islamist terrorists have the same "nuke 'em" mindset.
 
- "There oughtta be a law!"
 
I hear this bullshit uttered on a daily basis. Some fuckhead shithead retarded mongoloid illiterate cocksucker will be going along in his life, encounter some bit of adversity (a smoker, an unsightly lawn ornament, whatever) and call for massive government intervention in order to alleviate him of this particular malady. Nothing is so small or insignificant as to not warrant some serious legislation on the matter. The latest example of this shitheadedness was when I heard a guy complain that Spanish should not be offered as a feature on ATM's or customer service lines because it requires him to press an extra button, and "there oughtta be a law!"
 
- "If you don't like this country, then leave it."
 
This is another one I hear constantly. The same people who complain about the most insignificant shit will become quite livid when you complain about shit that really matters such as confiscatory income taxes, wasteful government programs, theft of property under eminent domain and zoning, and what have you. I can't count how many times when someone has said to me, "Well, why don't you go live in China or North Korea or Iran?" In other words, I don't have a right to complain about my government because a.) I should be grateful and b.) things could be much worse.
 
These are just a few examples, and I can go on and on with them. But don't get me wrong. I have no problem with people being stupid. I also have no problem with people speaking their minds. I do have a problem when mindless fuckers speak their minds. It helps when you speak on a matter that you have something at least remotely intelligent to say.
 
So, how do I get through my days? I simply mock people all day long. My days are filled with endless amusement as I entertain myself baiting these shitheads. Remember, folks, life is a joke. The secret is learning how to laugh at it.
 
Don't these folks get mad? Hell, no. They are so stupid they don't even realize that I am having fun with them as the butt of the joke. And won't these folks read this blog and realize my secret? Once again, hell no. These fuckers don't read. And even if they did read this shit, they are either stupid enough or arrogant enough to not realize that I am talking about them.
 
But not all is lost. Philistines may be stupid on a lot of subjects, but they generally become very adept at one of them. I don't know shit about rebuilding transmissions, wiring a home, or what have you. But I know that I don't know, and I know to listen to those who do know. I can't learn it all or know it all, so I defer to those who do. I don't let pride get in the way, and I certainly don't pretend to be an expert on shit that I don't know anything about.
 
 

Tuesday, August 8, 2006

Judge Rules in Favor of Fantasy Baseball League

Today U.S. District Court Judge Mary Ann Medler ruled in a 49-page summary judgment that baseball and its players have no right of publicity to their names and playing records associated with statistics generated for fantasy baseball leagues. MLB, which paid the MLBPA $50 million for an exclusive right to license the stats for this purpose, claimed that CBC Distribution and Marketing Inc. (which runs CDM Fantasy Sports) violated the players' right of publicity by using their names in connection with the use of stats. Essentially, MLB is stepping into the shoes of the MLBPA via the license and asserting the claim that could otherwise be brought by the players.

According to Judge Medler, even if the players could claim the right of publicity to protect their names and information from commercial ventures by others, the First Amendment takes precedent because CBC is disseminating the same statistical information found in newspapers every day. Judge Medler also wrote: "The names and playing records of Major League baseball players as used in CBC's fantasy games are not copyrightable. Therefore, federal copyright law does not pre-empt the players' claimed right of publicity."

I disagree with Judge Medler's comment about the applicability of the First Amendment here because I think it's a stretch to say that fantasy sports leagues are serving any sort of newsworthy purpose. Fantasy sports leagues are basically games -- a form of entertainment. Some would even say it's akin to gambling. The issue from a right of publicity claim standpoint is simply, to what extent can third parties use the names and likenesses of athletes and entertainers, without consent, for their own commercial advantage?

So where do we draw the line on what constitutes "commercial advantage"? Obviously, newspapers are free to use the names. But if Nike were to use Tiger Woods without his consent, I presume nobody would question that Tiger would have a valid claim against Nike. What about baseball trading cards? Judge Medler's decision appears to be at odds with existing case precedent holding that Topps is not allowed to print and sell cards without the players' consent. How is the use of players' names and stats on trading cards any different from their use in fantasy leagues? Both companies are using the information for their own commercial advantage in a non-newsworthy context.

From Intern to Commish


The N.F.L. has made its choice for its next Commissioner from five finalists, and that choice is insider Roger Goodell.

Give It Up, Floyd

Floyd Landis is a doper. Both his A and B samples came back positive for testosterone. Yet, Landis is insisting that he is innocent, and he will prove it. Undoubtedly, the same people that framed Landis are also the real killers in the OJ Simpson case.
 
There is no conspiracy here. It just boggles the mind how far these dopers will go to not only deceive the public but to deceive themselves.
 

Monday, August 7, 2006

Chicago Panel on Title IX

The Federalist Society is sponsoring a lunchtime event tomorrow, August 8, in Chicago, entitled "Title IX and Athletics: The Debate over Surveys, Quotas, and the Three-Part Test." The panel includes former Iowa Athletics Director Christine Grant and University of Chicago Law Professor Richard Epstein, who has recently turned his libertarianism / law and economics analysis to Title IX.

10th Circuit Partially Reverses Jury Verdict in Broncos Ownership Dispute Case

On August 1, the U.S. Court of Appeals for the 10th Circuit partially reversed a jury verdict that had gone in favor of former Denver Broncos owner Ed Kaiser (who had sold the team in 1984). See Kaiser v. Bohlen, 2006 WL 2130439 (10th Cir. 2006). Greg blogged about the underlying dispute and jury verdict back in February 2004 in this post. As Greg's post notes, the jury gave Kaiser a partial victory; the district court subsequently ordered specific performance allowing Kaiser to buy back an ownership stake in the company that owns the Broncos.

The 10th Circuit's holding is based on a narrow reading of the Right-of-First-Refusal provision of the contract, and essentially involves a different interpretation of the contract than the district court's. A more interesting aspect of the decision may be the court's opening paragraph:
If sport be a metaphor for life, then surely the sale of a National Football League franchise must be like the game itself. Sophisticated businessmen, armed at the elbow with teams of experts, including transactional lawyers, advance their offensive and defensive strategies towards the goal of obtaining a contract, shaking hands, and sealing the deal. When the ink is dry, the game is over. If a dispute arises, our role, like that of a referee, is to ensure that the parties live up to their agreements, follow the law, and play by the rules.
Kaiser has vowed to continue his fight in state court.

Sunday, August 6, 2006

Random Thoughts on Various Subjects

1. Floyd Landis tests positive on both A and B samples. This is a milestone for the Tour de France. Landis will always live in disgrace. The sad thing is that he isn't doing anything different from what I believe 90% of cycling is already doing. Like it or not, cycling and endurance sports is drenched in doping. And what about Lance Armstrong? I don't believe that fucker one bit when he says he competed clean.

I think doping is here to stay, and the public will embrace it.

2. Steve Spurrier is a big time shit talker, so when he says this season's team at USC sucks, you better believe it. Meanwhile, I see all sorts of construction projects going on around Williams-Brice stadium in an attempt to capitalize on the increased popularity of the Gamecocks that will ensue if they ever win something big like an SEC championship or a National Championship.

Now, I root for the Cocks since I went to USC, but I temper it with a dose of reality. The USC football team has always been mediocre and is likely to remain that way. This is likely to be Spurrier's last job coaching, and he will retire after a few respectable seasons. But that's it.

I wish I was wrong on this shit, but I doubt it.

3. The current format for the Race for the Chase is getting on people's nerves. The reason is because a lot of fan favorites are getting tossed out of the running. Personally, I wished they had never fucked with the points system. I liked the old system, but NASCAR is intent on increasing its popularity and revenue with its "playoff." But people tune out when Dale, Jr. or Jeff Gordon or their favorite driver isn't in the Chase. With talk of "tweaking," I suspect that the current system will be made to ensure that these people have a spot in the end of season running. I don't see this as a good thing.

I'm all for giving the public what they want, but the public wants real competition. Hollywood doesn't always give us a happy ending and neither should NASCAR.

4. I've been having a good laugh about the Mel Gibson controversy. As someone once told me, "A drunk man's words are a sober man's thoughts." The man hates Jews. Now, he'll suffer the consequences.

5. The New York Times recently had an article discussing the trend of single guys entering middle age without getting married. A lot of explanations were given as to why this was happening. As one of those guys, I'll tell you why. It isn't worth it.

It all boils down to money. Women are expensive as hell. They live to suck and bleed a man dry. And they are never satisfied. A man on an average income wanting to have such things as his own car, a house, and a retirement would be well advised to steer clear of these greedy thieving whores.

A wife is a luxury item. Only someone earning in excess of $100K can afford to be with today's woman.

Welfare for Billionaire Team Owners? Paul Allen, the Portland Trail Blazers, and Chapter 11 Bankruptcy

Helen Jung of the Portland Oregonian has an excellent article on Portland Trail Blazers' owner Paul Allen and what he plans to do with his franchise (Will He Hold the Ball, Dish, or Drive?, Aug. 5, 2006). Until last week, Allen, who co-founded Microsoft with Bill Gates and who Forbes Magazine ranks as the world's 6th wealthiest person with a net worth of $22 billion, had planned to sell the team, in part because of frustrations over the revenue he obtains from his deal with the Portland Arena Management group, which hosts the Trail Blazers' home games in the Rose Garden, and in part because of poor management decisions concerning player talent and player contracts (e.g., Zach Randolph's $86 million deal). In fact, the Blazers, which had the NBA's worst record last season, are expected to lose over $100 million in the next few years. But Allen could not find a buyer that met his price, even though the Arena Management group claims that he turned down several lucrative offers.

Blazers' fans are now wondering what Allen--who, if the Seattle Supersonics relocate to Oklahoma City, may seek to relocate the Blazers to Seattle, where he already owns the Seahawks and lives nearby--will do.

As Jung details, one option would be to do nothing. When you are worth $22 billion and you get to own an NBA team, what's a $100 million in losses, really? And actually, because of federal income tax write-offs, he might be able to write-off the losses, thus taking some of the sting out of them.

A second option would be to buy back the Rose Garden, which he owned from 1995 to 2004. That is said to be Commissioner David Stern's preferred option, although bad blood between Allen and the Arena Management group apparently makes that unlikely.

A third and perhaps more controversial option would be to try to put the Blazers into Chapter 11 bankruptcy protection, which would enable the Blazers to stay in business while a bankruptcy court managed its reorganization and franchise-related decisions. Part of the reorganization could entail the Blazers being relieved of the obligation to pay some or all of the player contracts. However, those contracts are guaranteed by the NBA, meaning the NBA would likely pick up the tab for Paul Allen, at least until the reorganization was complete. So that means the other 29 NBA ownership groups would be paying off the contracts of Allen, the NBA's wealthiest owner.

Jung interviews me for the story on this point:
Another significant obstacle would be getting the NBA and other team owners to go along with a bankruptcy-filing-and-relocation attempt, said Michael McCann, a law professor at the Mississippi College School of Law and sports-law expert.

The league -- and other team owners -- might have to take on the responsibility of paying player contracts in a bankruptcy situation, McCann said. Plus, there's the league's image.

"There comes a point where fans say enough is enough," he said.

So how realistic would Chapter 11 be for Allen? I don't think it's very realistic. Depending upon how a court grants relief (and if it grants relief), using Chapter 11 protection to "protect" the Blazers could potentially set-off a disastrous precedent for the NBA and pro sports leagues in general: if teams can get out of bad player contracts by simply declaring bankruptcy, other franchises would seemingly be penalized, since they would be paying off the contracts of the bankrupted franchise (sort of like an unintended form of revenue-sharing). Granted, other NBA owners could agree to not use that mechanism in the future, and could try to condition future purchases of NBA franchises upon the waiving of the right to declare bankruptcy, and thus make this a one-time problem--a Coase Theorem style solution, if you will.

But even as a one-time event, an NBA franchise going into bankruptcy would seem very embarrassing for the NBA--especially considering Allen's profound personal wealth--and possibly damage the league's reputation and hurt the value of other NBA franchises. It would also call into question whom exactly bankruptcy law is supposed to protect; I don't think billionaires like Paul Allen are the intended beneficiaries.

For much more on this story, be sure to check out Henry Abbott's excellent post on True Hoop and Dwight Jaynes' excellent on-line column. There's some other great stuff on Helen Jung's blog, Playbooks and Profits.