Sunday, December 31, 2006

2006-The Year in Review

At the end of the year, the media is replete with end of year retrospectives. This is because most of their staffs are home for the holidays, and it helps to have all that shit in the can to run in their absence.

Here at Charlie's Blog, we don't do that. Fuck no. That's because we have a staff of one, and I only get to write on vacation. But you'll still get an end of year retro from me.

2006 was one of the happiest years of my life. I shit you not. I had a lot of drama happen to me. I've been sick for damn near two months. I had a flare up of Achilles tendonitis that nearly crippled me for a week. I finally got my first speeding ticket (Thanks, Georgia, you shithole state.) I had my car stolen and wrecked. Then, there's the Alma Jean story which I am going to finish up (I promise.)

I've been through a ton of crap this year. But I shook that shit off. And how did I do this? I did what Cool Hand Luke couldn't do. I got my mind right.

Life is a joke. I've simply learned to laugh at it. That's all there is to it. Depression is not so much a mental illness than a philosophical crisis. It is an inability to have one's worldview jibe with the reality of the world.

I am the happiest person I know. I still get pissed off. I get sad when something happens like when somebody dies. But happiness is not about emotions. It is a feeling of joy and wellbeing that is based in reality. I'm not talking Tom Cruise happiness, folks. I'm not into religion or drugs or other forms of mindless bullshit.

My happiness is also not the product of hitting the lottery or embracing some Tony Robbins self-help horseshit. Successwise, I am a total failure. I am broke. I am fat and bald. I am really out of shape. I have a small penis, and I am unable to bring a woman to orgasm. But I am a happy motherfucker.

I really can't say why I am happy except that I think it has something to do with my philosophy of life. This philosophy has no name, and it is not original with me. It is an eclectic mix of libertarian politics, empiricism, skepticism, and Aristotle. I have a manifesto in the works which I intend to publish here when I get off my creative ass and write it.

The bottom line is that I don't take things too seriously anymore including myself. I enjoy working. I question things. I laugh at absurdity. The happiness I have found is the real thing, and I have a year of shit to prove it. Will it last? I don't know. My happiness may evaporate like a fart in a hurricane if I were to fall victim to a homosexual biker gang or get hit by a stray asteroid in the gonads. But so far, I feel great.

Looking back over my life, the last time I was happy like this was a seven month stretch back in 1989 and 1990. The difference between now and then is that I had no idea why I was happy back then. The depressing aspect of all this is that 19 months of happiness out of 36 years is not a whole lot of happiness. But it is a lot more than a lot of other people have had. I know people who have everything going for them but are utterly miserable. It really boils down to mindset.

All I can say is that it has taken me my whole life to get to this happiness. I've been up many blind alleys, but I finally figured it all out. Like Edison with his lightbulb, I know what doesn't work. But you are probably looking for a recipe, so I'll give it to you.


1. Stop believing in God.

Nothing will make you more miserable than believing in a deity that doesn't exist. I know because I used to believe in God, and I was convinced that the fucker hated my ass. Now, I realize that things happen out of chance. I'm not a sinner facing eternal condemnation in Hell. I don't have to feel guilty anymore, and I don't have to wait for God to answer my prayers for me. I know if anything is ever going to get done it is up to me. And this life is the only shot I get, so I'm not going to waste it. I intend to live it up.

2. Stop believing in love.

The most miserable times of my life have a woman's name on it. One of the dumbest things a person can do is expect happiness to come from another person. A lot of shitheads will tell you that you can't be happy unless you find that special someone to spend the rest of your life with. But those same people are left with frustration and disappointment. All of the data indicate that the business of love is a recipe for misery and disaster. People like to make fun of the love disasters out in Hollywood, but all those infidelities and break ups are a more accurate reflection of American life than the movies that get made. Hollywood stars aren't any worse than the rest of us. Love is misery.

3. Stop being afraid.

Marcus Aurelius stated that fears are greater in your mind than they are in reality. He was absolutely right. Things have never turned out as bad as I thought they would. This doesn't change the fact that shit happens. The key to overcoming fear is not to think that things won't happen to you but to believe in your ability to get through them. It also helps to realize that most of the fearmongers are full of shit.

4. Become a workaholic.

I don't know how working long hours became a vice, but vice or virtue, working is great. The one thing I take from Aristotle is that happiness flows from a life of activity. For me, nothing is more exhiliarating than getting things done. My only regret is that I can't do more. The result of workaholism is that you make a ton of money, feel good about yourself, and sleep well at night (or any other time you get a chance to snooze.) Working is the most important element in this recipe.

5. Be selfish and don't feel guilty about it.

Altruism leads to bitterness. There's nothing wrong with looking out for number one. Be selfish and pursue what makes you happy. Just remember this caveat. Don't hurt other people. This is the essence of the Golden Rule. Treat others as you would have them treat you.

Guiltmongers love to throw your selfishness in your face, but remember that they are full of shit like the fearmongers. Unlike you, these people pursue their self-interest at the expense of others. They are parasites who demand that you sacrifice for them. They love to use words like "compassion" and "service" and the "greater good." But don't be fooled by the PR. These selfless people are just as selfish as you are. They simply lack ethics and live off of deception and theft. It is no crime to refuse to be a sucker, so tell the guiltmongers to go fuck themselves.

6. Be self-effacing.

Fuck the positive self-image horsecrap. Make fun of yourself. People will like you a lot more, and you'll like yourself a lot more, too.

7. Enjoy the good things in life.

I can't tell you what those good things are because they are different for everyone. For some people, it is bowling. For others, it is golf. For still others, it is having sex with two midgets while wearing a pink corset and eating chocolate cake. But my sex life is irrelevant to this discussion.

Pleasure lies in neither abstinence nor overindulgence. Both Epicurus and Aristotle agree on this. If you overdo it or underdo it, you are not enjoying it. That's all there is to it. I have been through enough hangovers and indigestion to know the truth of this.

That's it. That's my recipe, but it really represents the tip of an enormous philosophical iceberg. I don't know if doing these things will bring you happiness without the understanding that comes with it. In addition, you could probably omit some of these things and still be just as happy. I don't know. But I'm happy, and I hope to stay that way.

The Ford Legacy

Gerald Ford, the 38th President of the United States, died this week. He was 93.

Ford was not president long. He was the only president to never be elected to the office. He was a decent man as far as presidents and politicians go. But his presidency was overshadowed and undone by Watergate and his pardon of Richard Nixon. That pardon would cost him the election.

There are a lot of laudatory remarks about Ford this week and a bit of historical revisionism. Many people who were critical of Nixon's pardon such as Ted Kennedy reversed themselves and said that Ford had done the right thing. It is a bit sickening to watch this.

I'm not going to trash Ford as a person, but I will say that I disagree with his decision to let Tricky Dick off the hook. Watergate shattered the public's confidence in government. The American people couldn't let it go. So, Ford pardoned the criminal in order for America to move on, and that's what America did. This was unfortunate.

Nixon should have stood trial. He should have answered for his crimes. But it never came to that. And the reason why people give credit to Ford for his "wisdom" was because Ford moved to restore the people's faith in government. This is why even the political enemies of Nixon now reverse themselves because those enemies are first and foremost politicians with a vested interest in encouraging faith in government.

As a libertarian, I have no faith in government. Watergate was a good thing because it was a wake up call to the American people. Because of Watergate, Americans have a healthy cynicism regarding their elected officials. Ford cut this short, and he should not have done this. The only upside of the whole affair was that many considered the pardon another one of Nixon's "backroom deals." It wasn't, but it still pissed off a lot of people.

Goodbye, Mr. Ford.

Popularity from Sports to Politics and Back

This Bush-for-Baseball-Commissioner thing is taking me in a bunch of different directions. Not bad for a random thought hatched over Christmas-Day Chinese food with my family.

One commenter questions my suggestion that Bush's unpopularity would not necessarily bother people or cause them to stop watching baseball. He raises a really interesting question about contextual popularity or unpopularity of public figures that is beyond the scope of this forum. But sports links are everywhere, so I thought I would respond:

George W. Bush, the President, is unpopular. Many, many people do not like his policies, his politics, or the manner in which he conducts himself in the Office of the President of the United States. But that does not necessarily translate into a general dislike of George W. Bush, the Person (whom I do not know). It will translate with some people. Many will respond negatively to anything Bush does, especially those who believe he is unintelligent. Many also see Bush not only as following bad policies, but as following illegal (and thus impeachable) policies. The commenter captured the latter point when he used the analogy of the CEO of Enron not becoming beloved as President. The CEO of Enron was unpopular not because he did a bad job as CEO (lots of CEOs do a bad job), but because he did illegal things.

Note, however, that those objections to Bush as commissioner are based on his ability, as opposed to his popularity--the assumption that because he is a bad president, he would be a bad commissioner. Maybe so. But if we focus solely on popularity, I do not know whether or not I would dislike or disagree with Bush's ideas and views in a different context, such as running baseball. Maybe we share a dislike for the wild card, inter-league play, the designated hitter, and the obscenely small strike zone (to cite a few examples). And maybe I would appreciate his frat-boy-charming personality wielded towards ends I like.

The converse of this phenomenon--athletic popularity translating into political popularity--is at the heart of the growing trend of former professional athletes running for public office. The most recent examples were Lynn Swann's unsuccessful run for governor of Pennsylvania and Heath Shuler's successful run for U.S. House of Representatives from North Carolina, as well as Charles Barkley's continued promises/threats to run for governor of Alabama in 2010. All are counting on name recognition, reputation, and popularity built in one context carrying into a different context. Shuler, of course, had to overcome the fact that he was not a very good NFL quarterback.

In any event, we hope the voters will consider the candidate on the merits (on his ability to perform in office) before supporting him and not automatically assume that popularity and likability on the playing field means likability in public office. So why should the reverse not be true--unpopularity (again, distinct from competence) in political office does not automatically mean unpopularity in a sports-related job?

Saturday, December 30, 2006

More on Bush as Commisssioner: Someone is Reading

Jonathan Weiler at Sports Media Review responds to my earlier post about George W. Bush being the next Commissioner of Major League Baseball.

Weiler suggests this will not happen (or at least should not happen) for three reasons:

1) Baseball commissioner no longer can be a celebrity/figurehead position. The big-time-business nature of modern professional sport requires a saavy, hands-on, somewhat visionary, detail-oriented, technocrat/manager, all things we can agree (whatever one's politics) Bush is not.
2) Bush is wildly unpopular and divisive, particularly in the Blue States, so it might be a bad PR move for baseball.
3) Bush was not really a "baseball guy" when he was involved with the Rangers and was not involved in day-to-day baseball operations, so he does not even bring that to the table. Mostly, he was the public face of the team, whose name (Papa was POTUS at the time) carried weight.

All good points that weigh against MLB making such a move. And, as Weiler notes, I was half joking in the original post. But not entirely. So let me respond to each as a way of defending the idea:

1) MLB long functioned in a decentralized (federalist, if you will) system in which the separate league commissioners did much of the day-to-day management and the commissioner sat atop the pyramid as the public face. That no longer is true, a result of one of Selig's innovations to centralize operations and make it more akin to the NFL and NBA set-up. So the role of commissioner is, indeed, different, requiring more of a hands-on manager. But I could envision MLB (although perhaps not the other major professional sports) still going the celebrity/figurehead route. I think it has to do with baseball still being the highest-profile sport, even if the NBA is more popular.

Plus, we have something of that in place now. Selig is the public face of the game (for better or worse). But he delegates a lot of responsibility, and limelight, to his underlings, notably Robert DuPuy and (when he was in the job pre-2005) Sandy Alderson. Certainly we see and hear more of them than of David Stern's deputies (with the exception of punishment chief Stu Jackson, but that is a different problem). Is it conceivable to have Bush as commissioner and an experienced and high-profile baseball exec (say, Theo Epstein?) as President/COO or Chief of Baseball Operations?

2) Yes, Bush is unpopular. But presidents have a way of becoming more popular once they leave office (see, e.g., Nixon, Richard). I would not envision a significant number of people finding Bush so distasteful that they will boycott baseball if he is commissioner. Most fans would even say it is bad form to boo or heckle Bush at a game. In other words, I am not sure his political unpopularity would carry-over into this new role.

3) Yes, Bush is not a hands-on baseball guy. But he is a good politician, something that would help MLB in its dealings with Congress (steroid eruptions, anti-trust rumblings) or with state and local governments (ballpark deals, etc.). As I said in # 1, MLB might believe that such political skill at the head, with a skilled baseball person at the right hand, is a good way to go.

Again, I am or endorsing it. Just suggesting the possibility.

Thursday, December 28, 2006

Ninth Circuit Ruling Isn't Just About Steroids in Baseball

The Ninth Circuit's ruling, as discussed by Howard Wasserman earlier today, has broad implications regarding the ability of the government to seize evidence in all criminal investigations that go beyond just a few baseball players alleged to have taken steroids. While the opinion is 115 pages long, here are some of the pertinent facts taken directly from the opinion:
1. On April 7 and April 8 of 2004, search warrants were issued authorizing the seizure of drug test records and specimens for ten named Balco-connected players. The warrants authorized the search of computer equipment, computer storage devices, and—where an on-site search would be impracticable—seizure of either a copy of all data or the computer equipment itself. “[L]aw enforcement personnel trained in searching and seizing computer data” (designated “computer personnel”) were responsible for choosing the appropriate course of action to capture the electronic data sought. If seizure of all data or equipment was necessary, “appropriately trained personnel” would review the data, retaining the evidence authorized by the warrant and designating the remainder for return.

2. During the search, a CDT director identified a computer directory containing all of the computer files for CDT’s sports drug testing programs. This directory, labeled by its original compiler as the “Tracey” directory, contained numerous subdirectories and hundreds of files. Seeing this, Agent Abboud recommended copying the entire directory for off-site analysis, because of the time and intrusiveness involved in searching the voluminous directory on site. Knowing that the warrant required them to rely upon the advice of a computer analyst—here the advice of Computer Investigative Specialist Agent Joseph Abboud—agents copied the directory and removed the copy for later review at government offices. Before he left the premises, Agent Novitzky reviewed with CDT directors the evidence seized during the search. The documents seized included a twenty-five-page master list of all MLB players tested during the 2003 season and a thirty-four-page list of positive drug testing results for eight of the ten named Balco players, intermingled with positive results for twenty-six other players.

3. On May 5, using information culled from the Tracey directory, the government applied for and obtained new search warrants to seize all specimens and records relating to over one hundred non-Balco players who had tested positive for steroids.

Violations of due process and Fourth Amendment privacy rights get me fired up fairly easily, and this case deals with the latter. Simply, by allowing investigators to use the initial warrant as a basis for gathering gobbs of incriminating information with respect to non-targeted individuals, the investigators, in effect, were able to use a generalized search warrant to obtain evidence without probable cause. The court used the difficulty of retrieving and separating electronic data as an excuse to allow federal investigators full discretion to not only retrieve private and confidential information about thousands of individuals that are not even the subject of the warrant and for which there is no probable cause, but to also determine when there is "intermingling" such that an on-site search would be impracticable. This puts way too much discretion in the hands of federal investigators. Even further, the court didn't place any limitations on the government's use of incriminating evidence obtained with respect to non-targeted individuals.

This decision can't be the right result. What happened to the requirement of "particularized" search warrants? This decision has nothing to do with whether baseball should have a stricter steroid policy or no policy, nor whether all steroid users in baseball should be ousted. This ruling affects every citizen, because virtually all confidential records and information is stored and intermingled in electronic form on computers (hospital records, employment records, etc.). Isn't the more logical and reasonable approach to have a magistrate review and segregate the intermingled electronic data BEFORE allowing the government to seize and review it? --especially in circumstances when the evidence is not in jeopardy of being destroyed. That is the only way to ensure a proper balance between the government's criminal investigatory efforts and the privacy rights of non-targeted individuals.

Federal Government May Review MLB Player Drug Tests

In a lengthy 2-1 opinion in United States v. Comprehensive Drug Testing, Inc., the United States Court of Appeals for the Ninth Circuit held that the federal government could keep and review (under direction and supervision of a Magistrate Judge) records of drug- tests from more than one hundred Major League Baseball players. As part of its BALCO investigation, the government issued grand-jury subpoenas and obtained search warrants for computer files and paper information held by CDT and another company, Quest Diagnostics; both companies had performed drug tests on MLB players in 2003 pursuant to a contract with MLB. The government was looking for (and actually entitled to seize) only information on eleven specific players.

But in the course of the search, agents came across "intermingled" files and documents containing information on many other players who were not believed to have any connection to BALCO, in addition to the eleven targets. Under the majority's holding, the government may be able to retain and use initially non-seizable evidence that was initially mixed-in with seizable evidence. That determination will be left to the Magistrate.

For MLB's purposes, the impact of the ruling is not clear. News outlets are talking about the effect this could have on the investigation into perjury before the grand jury by Barry Bonds, apparently on the assumption that the records may show that Bonds did use steroids prior to giving his testimony. The absence of such evidence to this point may explain why the perjury investigation has not gone anywhere. Prosecutors generally (and properly) are reluctant to pursue perjury charges in a he said/he said situation; non-testimonial evidence that Bonds took performance-enhancing drugs might strengthen the case.

The records also could show just how pervasive steroid use is in baseball. The testing done in 2003 was anonymous and not under threat of penalty and MLB has downplayed what those tests showed.

Finally, since the BALCO grand jury has been famously leaky, there is a good chance that the names of some of these hundred players are going to get out to the public at some point.

Wednesday, December 27, 2006

Sports Prediction for the New Year

A random prediction for the new year: George W. Bush will be the next Commissioner of Major League Baseball.

Current Commissioner Bud Selig announced earlier this month that he will retire when his contract expires at the end of 2009 (although apparently, back in in 2003 he said the same thing about retiring in 2006, so stay tuned). Bush will be out of a job at 12:01 p.m. on January 20, 2009. And he will need something to do, since one cannot imagine him monitoring foreign elections and fighting world health battles.

Baseball commissioner always has been a job that has attracted people from politics and public service. Commissioner A.B. "Happy" Chandler served as Kentucky's Governor and U.S. Senator both before and after his term in baseball. Chief Justice Fred Vinson considered resigning from the Supreme Court to take the job after Chandler's term ended in 1951. Names such as Mario Cuomo and George Mitchell have surfaced in the past as potential candidates. And, of course, Bush used to own the Texas Rangers, so he combines a political background with baseball-insider status, which would make him very appealing to the owners.

And there is the fact that this may be the job Bush wanted all along. Recall that Commissioner Fay Vincent was forced out of the job in 1992 by an owners' vote of no confidence and replaced, on an "interim" basis, by Selig, then owner of the Milwaukee Brewers. This move was the prelude to the owners' hard-line stance in the 1994 players' strike that forced the cancellation of the 1994 World Series and a one-month delay in the start of the 1995 season. And a search for a permanent commissioner went along. According to Vincent's 2002 book, The Last Commissioner, Bush let both Selig and Vincent (who was a friend of Papa and Barbara Bush) of his interest in the job. Selig purportedly told Bush that he was "his man but that it will take some time to work out." At the same time, Bush was considering running for governor of Texas. With the clock ticking (and Vincent suspecting, ultimately not incorrectly, that Selig wanted the job for himself), Bush gave up on the commissioner's job and ran for public office. He won the Texas governorship in 1994 and the rest, as they say, is history.

It would be an interesting turn for Bush to get his dream job--17 years, and many world events, later.

Monday, December 25, 2006

Bah Humbug

I hate Christmas.

I spent Saturday fighting people in Wal-Mart to get my last minute Christmas shopping done. I have to buy for people for Christmas because they have bought for me. I would feel bad if I didn't get them something. But I'd rather the entire custom of gift giving would disappear altogether.

I'm not one of those types that laments the commercialization of an essentially religious holiday. I'm an atheist, and I could give a shit about all that. I just hate the hassle. I hate all the car wrecks that happened in Columbia on Friday as fools eager to celebrate left work with their cars in DRIVE and their brains in NEUTRAL. I hate turning on the radio and having to listen to Christmas songs that I've heard at least one thousand times since I was a kid.

For me, the only bright spot about Christmas are the kids. I admit that I like seeing children enjoy the holiday. I don't have kids, but I made sure a couple got something under their tree.

Finally, Santa did come by my place last night. The SOB left me a bag of switches. I'm not making this up. I must have been a bad boy this year. Sorry 'bout it.

Wednesday, December 20, 2006

Titans Sued for Mascot's Behavior

This story isn't as interesting as Tara Conner, but last Friday, ex-Saints fourth string quarterback Adrian McPherson filed a lawsuit against the Tennessee Titans because their mascot hit him with a golf cart while he was warming up on the sidelines before the second half of an August exhibition game. The short 4-page complaint (actually three because the fourth page contains the signature block), which can be accessed at The Smoking Gun, does not state what his injury was, but does seek $5 million in compensatory damages and $15 million in punitive damages. It's unusual to make a request for relief for that amount of money without even describing the injury. But according to an AP release, McPherson incurred "a deep bruise" in his right knee, and the Saints cut him three weeks after the incident. The complaint, however, spins it a little differently stating that McPherson was forced to miss the remainder of the pre-season, and was ultimately placed on injured reserve which meant he was forced to miss the entire NFL season.

Assuming the person performing as the mascot is an employee of the Titans and not an independent contractor, the Titans would be vicariously liable for personal injury proximately caused by his unreasonable conduct. Driving a golf cart into an opposing team's player warming up on the sidelines is most likely negligent. But McPherson has the burden of proving his damages. What's a knee bruise worth to a fourth string quarterback? Definitely not $5M. McPherson alleges that the injury forced him to miss the entire NFL season. However, the Titans will argue that the reason he missed the season is that he was cut by the Saints as the fourth string QB and would have been cut anyways, not because of the knee bruise. The Titans can also point to the fact that he now plays in the Arena Football League, and no other NFL team was interested after he was cut.

What is unfortunate for the Titans, however, is that damages are typically a question of fact for a jury to decide, especially in this situation because it involves determining McPherson's worth as a player as well as the issue of whether he would have made the Saints' roster if he had not been injured. So unless this mascot is an independent contractor, the court would probably not dismiss it as a matter of law on the liability issue.

My prediction is that the Titans will sit on this case for awhile. If McPherson continues playing in the AFL, it tends to establish that the injury he incurred was not that severe. And if he doesn't ultimately get picked up by an NFL team, it tends to show that he would have been cut by the Saints anyways.

Sunday, December 17, 2006

DVD-Some Kind of Monster

Once upon a time, there was this hard rocking band that came out of the bay area of San Francisco and took the world by storm. Then, they got rich, started pissing off their fans by suing them over file sharing, hired a therapist at $40K per month, started navel gazing and sharing their feelings, and made a suck ass album. Some Kind of Monster is the chronicle of the demise of this once great band.

Metallica got together to record the album that would become St. Anger. Bassist Jason Newstead quit the band, and he comes off looking like the smart one. The rest of the band come off looking like a bunch of whiny dipshits. Lars Ulrich is totally effeminate, and he fully realizes his role as the band's bitch. You can sense a certain homosexual attraction between him and Hetfield. Hetfield would be the top while Ulrich is the bottom.

Basically, the band sucks, but this is a great DVD. I highly recommend it.

Saturday, December 16, 2006

Random Thoughts on Various Subjects

1. Governor Sanford is asking for a tax hike on cigarettes. This is to pay for a corresponding decrease in the income tax. Governor Sanford is a piece of shit for doing this. I'm all for a tax decrease especially on the taxes I pay. I don't smoke, so the tax hike wouldn't directly affect me. But I think this proposed tax hike is a violation of principle. Sanford should just call for tax cuts across the board and quit trying to "compromise" on this shit. It's like letting yourself get ass raped because there might be a reacharound in it for you.

Wake up, governor.

2. I don't sit on the Iraq Study Group, but I can already tell you what the US should do in Iraq. Let the Kurds establish a separate homeland in the north. Then leave. This may sound crazy, but I think staying over there is even crazier. There is even talk of working out a deal with Iran. What a joke.

The simple fact of the matter is that the USA needs to mind its own business when it comes to foreign affairs. How many time do US politicians need to get slapped in the face before they realize it makes no sense to keep sticking their noses where they don't belong?

I would love for Iraq to be a free country. But it isn't my country. It is their country. Let them do with it what they will.

3. I'm not a big fan of Steve Spurrier. In two years at USC, he hasn't done much of anything, and he acts like it is someone else's fault. It's as if he isn't a coach so much as a visiting consultant to give tips to a bunch of losers. I'm sorry, but Spurrier was brought to USC to win not belittle the team in the media. We'll see what he does next season. But win or lose, the Gamecocks are his team, and he bears the responsibility for their performance.

4. I'm going through serious NASCAR withdrawal, and I can't wait for Daytona. But I have to say that the "Car of the Future" is going to really suck because I see those new spoilers littering the track on a regular basis. We'll see what happens, but it will probably be as popular as the NBA's new basketball.

5. Finally, Michael Richards shouldn't feel bad. His career was done long before that racist tirade. It's like sending a torpedo into the Titanic.

Friday, December 15, 2006

Money for the Blind

A judge's recent ruling that American currency represents a discriminatory hurdle against the blind is something I can agree with. Naturally, the federal government is balking about changing the current system. Nevermind that this is the same federal government that mandates all sorts of byzantine laws and regulations for everyone else concerning the handicapped and "reasonable" accomodation. Uncle Sam should be given a pass because it will cost about $300 million to change the current currency. It just boggles the mind.

I'm a weird type, but I always thought the government should live by the rules it writes. As it stands, blind people have to take people's word for it when they are handed a bill. A one dollar bill is indistinguishable from a twenty to someone who can't see. This is a bad thing, and the feds don't give a shit about it. Where's the "compassion?"

John Rocker and Free Speech (Again)

John Rocker is back. Rocker, remember, is the former reliever who went on an anti-homosexual, anti-immigrant, anti-grunge, anti-unwed-mother, anti-New York, anti-7-Train diatribe in a 1999 Sports Illustrated article. This got him a one-year (later reduced by an arbitrator) suspension from Major League Baseball, made him a pariah among fans, and was the first step in a strangely precipitous decline in his pitching ability that had him out of baseball a few years later. Rocker was the subject of a lengthy interview on, apparently triggered by the correspondent's desire to learn what Rocker thought of the Michael Richards controversy.

The interview shows that Rocker has not changed his mind about many things. He is writing a book containing "more conservative Republican rantings." Muslims are too sensitive and easily offended. He is promoting a campaign called "Speak English." The SI story did not present the correct version of his comments or events and took things out of context. Michael Richards will bounce back and work again, although Rocker was not given such leeway even after he apologized. His girlfriend is Black and two or three of his best friends are Dominican or Puerto Rican. And Jeff Pearlman, the author of the article, is a "liberal Jew from New York" with an agenda. The last point prompted this response from Pearlman on's Page 2.

One problem with trying to develop a framework to discuss athletes' speech is that for every Muhammad Ali, John Carlos, Tommie Smith, Toni Smith (the college basketball player who in 2003 turned her back to the flag during the national anthem as a war protest), or Carlos Delgado, there is a Rocker. The former involve (at least viewed with a modern lens) involves unpopular, but at least arguable political stands that the majority generally recognizes as within the realm of acceptable debate and dissent. The latter made comments that, while political in the broad sense and unquestionably constitutionally protected, run afoul of what society considers acceptable discourse. And MLB and its teams, as entities with their own expressive interests, may want to make clear their objection to the former but not the latter.

But both are within the bounds of constitutional protection and we do not draw legal lines between them in the pure First Amendment context of government action--neither Ali nor Rocker could be subject to legal penalty for his respective expression. So, if we are discussing a framework (albeit not a First Amendment one, obviously) for what professional leagues should or should not do in response to athletes' off-field speech, do we still have to avoid such lines? It follows that, if we believe (as I think most people do, now) MLB should not punish Carlos Delgado for his war protest and Muhammad Ali should not be stripped of his title for refusing military induction on relio/political grounds, it becomes more difficult to justify Rocker's suspension for his comments.

Thursday, December 14, 2006

Leaking Information: National Security and Sports Security

Bobby Chesney, Heidi Kitrosser, Jalk Balkin, and Marty Lederman all blogged recently about a case brewing in the United States District Court for the Southern District of New York involving a federal subpoena issued to the ACLU seeking confiscation of "any and all copies" of secret government documents leaked to the organization. The ACLU this week moved to quash the subpoena. The crux of its argument is that a subpoena to seize all copies of these documents is the functional equivalent of an injunction against publication of the contents of the documents, which generally is prohibited by the First Amendment and the landmark Pentagon Papers case. This is only the latest of many controversies involving federal-government efforts to punish leaks by pursuing and seeking to punish, in various ways, the recipients (often the media) of leaked information.

What's it got to do with baseball (or any other sport for that matter)?

One recent example of such pursuit involves San Francisco Chronicle reporters Mark Fainaru-Wada (a former journalism-school classmate of mine, although I did not know him) and Lance Williams, authors of the 2006 book Game of Shadows. The book reveals, in detail, Barry Bonds' alleged steroid use, based in part on leaked testimony and evidence from the grand jury investigation into BALCO. The book put teeth into the widespread belief that Bonds used steroids to produce his dramatic late-career evolution into the greatest hitter who ever lived (sorry, Teddy Ballgame); may have committed perjury before the grand jury; and may have evaded federal tax laws by not disclosing certain income. Fainaru-Wada and Williams have been sentenced to federal prison for contempt for refusing to reveal the source of the leaked evidence (although they remain free pending appeal).

What is interesting about the Fainaru-Wada/Williams case is the interplay among the myriad ways that the federal government could pursue leaks to the media and the publication of leaked information on one hand, and the First Amendment on the other. And, once again, a free-speech issue plays itself out in a controversy over our beloved sports. (Full Disclosure: I am supervising an FIU College of Law student writing a law review article on this interplay in the Fainaru-Wada/Williams case).

How can government punish a particular leak and, since law works through deterrence, stop leaks in the future? Consider several options and their constitutionality:

1) Enjoin publication of the leaked information. Not allowed under the First Amendment, unless the information to be published concerns specific troop locations and movements or similar information that could immediately threaten lives. Certainly not satisfied in Bonds' case, where the information concerns Bonds' allegedly unlawful/unethical activities.

2) Punish publication after the fact. As I discussed here, Bonds tried this when Game of Shadows was about to be punished. He sought an injunction that the authors and publisher be made to give up any profits on the book, arguing that, because it was based on leaked information, it constituted an unlawful or unfair business practice. The argument failed (properly) because of a key First Amendment principle that one cannot punish (by criminal, civil, or other liability) the publication of truthful information, lawfully obtained, on a matter of public concern. Since nothing prohibits the receipt of leaked grand jury testimony (as opposed to actually leaking it) and cheating in baseball is a matter of public concern, Fainaru-Wada and Williams were protected from such an injunction.

3) Convene a grand jury to investigate the leak, with an eye towards punishing the leaker; subpoena the reporters to testify and reveal the leaker's identity. If the reporter reveals the leaker, the government can prosecute the leaker--and the reporter can forget about ever getting a confidential source to talk again. If instead, as generally will happen, the reporter refuses to reveal the leaker's identity, jail the reporter for contempt of court for refusing to cooperate with the grand jury.

This is, of course, precisely what happened in this case. But the practical effect is the same: Reporters will be extremely reluctant in the future to receive and publish leaked confidential information, even on matters of as great public concern and import as cheating within The National pastime, for fear of having to reveal their sources. And potential sources will be similarly reluctant to leak, despite the public good to be served. The government gets, in a sense, what it wants: No more leaks or at least no more publication of leaks.

The ACLU case now reveals a fourth way. Suppose, in the Game of Shadows case, the government had learned of the leaks to the Chronicle reporters before the book came out, while they still were writing the book. And suppose the government issued to them a similar subpoena, demanding any and all copies of the testimony and evidence from the grand jury. The practical effect would be to freeze Game of Shadows (and any newspaper stories based on the material) in its tracks--just like an injunction against the book.

We shall see how the ACLU subpoena plays out. But, as always, there is a sports link.

Does Baseball Need to Broaden its "Other Activities Clause" to Include the Nintendo Wii?

Out of Detroit today comes the news that star pitcher Joel Zumaya's playoff sputter may have been due to excessively enthusiastic strumming of the Playstation video game "Guitar Hero." According to the Free Press
The Tigers are satisfied they won't see a recurrence of the right wrist and forearm inflammation that sidelined Joel Zumaya for three games of the American League Championship Series.

Why? Club president and general manager Dave Dombrowski told WXYT-AM (1270) on Wednesday the team had concluded Zumaya's injury resulted from playing a video game, not from his powerful throwing motion.
Did Zumaya breach his contract? As readers are aware from our discussion of Ben Roethlisberger's misadventures in motorcycling, sports leagues frequently bar players from engaging in dangerous outside activities. Major League Baseball's provision, however, is more limited than the NFL's. It provides:
The Player agrees that he will not engage in professional boxing or wrestling; and that, except with the written consent of the Club, he will not engage in skiing, auto racing motorcycle racing, sky diving, or in any game or exhibition of football, soccer, professional league basketball, ice hockey or other sport involving a substantial risk of personal injury.
In other words, baseball's clause only involves dangerous "other sport[s]", not other activities. While some Gamers might argue that video games are a sport (if poker is, why not?), that's probably not going to cut it in contract interpretation land.

Should baseball broaden the scope of its clause to include more general dangerous activities? Amidst the news of the rash of injuries caused by the Ninendo Wii, maybe the times call for a video game-injury clause. HT to Fark.

Lamar Hunt: A Sports Law Memorial

With the passing of Lamar Hunt, it seems appropriate to reflect upon some of the great cases and moments in sports law in which he was involved. Some of the more memorable published opinions:

American Football League v. National Football League, 205 F.Supp. 60 (D.Md. 1962), aff'd 323 F.2d 124 (3rd Cir. 1963)
Hunt was the owner of the AFL Dallas Texans; the AFL sued the NFL, claiming "monopolization, attempted monopolization and conspiracy to monopolize major league professional football." According to the court,
Among others who applied for NFL franchises in 1957 and 1958 w[as] Lamar Hunt, of Dallas, . . . [The NFL] suggested [Hunt] try to purchase the Chicago Cardinals and transfer that franchise. [Hunt] conducted unsuccessful negotiations with the [Chicago team's owners]. . . .Hunt, having been rebuffed in his efforts to purchase the Cardinals or obtain a new NFL franchise, began secretly to plan and organize a new league. He was then 27 years old, without experience in professional sports. He surveyed various cities and made tenative overtures to individuals who seemed likely prospects for becoming owners of franchises.
North American Soccer League v. National Football League, 465 F.Supp. 665 (S.D.N.Y. 1979)
The NASL sued the NFL over the NFL's "cross-ownership ban," which prohibited NFL owners from owning other sports franchises. According to the court,
An important element of stability for the NASL has been furnished by individuals or families who own member soccer clubs, and also own NFL football clubs. Perhaps the foremost among these "cross-owners" is Lamar Hunt of Dallas, Texas, a sporting world legend in his own time. Hunt, as owner of the Kansas City Chiefs football team, was in the early 1960's one of the founders of the American Football League, subsequently merged with the NFL. Hunt is now chairman and sole owner of the NFL Kansas City franchise. Hunt also is a part owner of the Chicago Bulls of the National Basketball Association, and the founder of the World Championship Tennis circuit. In 1967 Hunt purchased a Dallas soccer franchise which, in 1968, became the NASL's Dallas club, called the Dallas Tornado. [An] affidavit pays eloquent and, in my judgment convincing, tribute to the past and continuing importance to the struggling NASL of Hunt's presence and participation. . . .

[T]he NFL cross-ownership ban [i]s a source of harm to the NASL sufficiently grave and immediate to satisfy Second Circuit and Clayton Act Standards. Loss of the stabilizing Hunt . . . presence[] would be injurious in itself. . . .

The issues presented are interesting, complex and to a degree novel, such as the NASL's perception of wealthy, sportsminded individuals as components of a market for which rival leagues compete. One suspects that until now Mr. Hunt had thought of himself as a competitor, and not a commodity. . . .

Defendants have submitted an exchange of letters between Lamar Hunt and Pete Rozelle. . . . The correspondence concerns Mr. Hunt's willingness and efforts to comply with the NFL policy resolutions on cross-ownership. Mr. Hunt's letters reveal his concern with being forced into divestiture at a time when there was little or no market for NASL franchises. His perceptions as to investor reaction to the sale of a "Hunt" business are instructive:

"The soccer investment of myself and my children (for which I am obviously responsible) is a Very substantial one unfortunately, at this point more than I expected. Though the picture looks infinitely brighter for the sport, it is still a long way from reaching fruition for the investors and, in fact, at present there is virtually no market for a going club especially one owned by a 'Hunt.' (We have a historically bad record for selling any business for buyers seem to feel that anything we are selling must really be a 'dog.'"
North American Soccer League v. National Football League, 505 F.Supp. 659 (S.D.N.Y. 1980), rev'd 670 F.2d 1249 (2nd Cir. 1982)
The court wrote,
We must visualize individual sports team investors such as Lamar Hunt (NASL Dallas Tornado and NFL Kansas City Chiefs), . . . as the economic equivalents of cellophane, finishes and fabrics, shoes, or protective systems.

Wednesday, December 13, 2006

Did Daisuke Matsuzaka "Overrule" Scott Boras?

The Boston Red Sox have signed Daisuke Matsuzaka, the 26-year-old Japanese pitcher whose agent, Scott Boras, had adamantly contended was worth between $15 million and $20 million a year. During the 30-day-window in which the Sox could negotiate with Matsuzaka, Boras repeatedly threatened that Matsuzaka would return to Japan unless he signed a deal worth in excess of $100 million over six years.

But to the surprise of many baseball experts, Matsuzaka has agreed to a much smaller figure--try a half. The Red Sox will pay him $52 million over six years. Sure, that's still an insane amount of money, but it seems that Boras didn't get anywhere near what he told the world he would get.

So what happened?

It's not yet clear, but I have to imagine that Matsuzaka felt that he could not return to Japan. Not only did his team, the Seibu Lions, bid him an emotional farewell in front of 36,000 fans, but they are apparently in financial troubles and really need the $51 million the Sox agreed to pay if Matsuaka signed. So perhaps returning to Japan was not a realistic option for Matsuzaka if he was not willing to absorb a serious reputational cost. And it's possible that Boras was aware of this all-along, had hoped the Red Sox and the baseball world would think otherwise, but gradually realized that the Red Sox saw through the veil.

It's also possible that Matsuzaka simply overruled Boras. Boras is known for maximizing the financial value of his clients, but he's less well regarded for placing them in situations where they thrive. Earlier this week, ESPN's Buster Olney had this revealing comment about A-Rod's contract with the Rangers:
A few months after Alex Rodriguez signed his $252 million contract with the Texas Rangers, a deal negotiated by Boras, A-Rod was quoted in a New York newspaper as saying that he had really hoped to sign with the Mets. That seemed utterly bizarre, and a little silly: A-Rod had more negotiating leverage than any player in the history of baseball and yet he wound up playing someplace other than where he wanted to play. He could've played for the Mets – maybe not for $252 million, but maybe for $200 million. The difference between his playing for the Mets or not playing for the Mets was a whole lot of numbers on bank statements.
So maybe unlike A-Rod, Matsuzaka told Boras, in essence, "I appreciate you trying to get me as much money as possible, but I'm signing with Boston, even if doing so might make you look bad or somehow tarnish your tough-guy reputation." And if Matsuzaka indeed said something like that, it would serve as an important and appropriate reminder that the client should always call the shots, even if the agent is of the highest profile and greatest influence in the sport. This is a subject that I examine in my Brooklyn Law Review article "It's Not About the Money."

Nepotism and the Andy Roddick Foundation?

American tennis star Andy Roddick, who is ranked 6th on the ATP tour, has a charitable foundation called the Andy Roddick Foundation. It focuses on raising money for programs designed to treat abused children (specifically in the Southeastern Florida and Austin Texas), as well as raising money for programs that combat childhood diseases, childhood illiteracy, and truancy. This past weekend, the Foundation raised $1.4 million at an event in Boca Raton Florida which included a poker tournament Friday at the Seminole Hard Rock Casino and a gala dinner and tennis tourney at Boca's Polo Club.

Sounds like the Foundation is successful at raising money, and lots of it.

But its management, which is comprised of volunteers and is directed by Roddick's mother, Blanche, has come under criticism in the Palm Beach Post for alleged incompetency. The basic contention is that Andy Roddick has unwittingly entrusted his charity to his mom and friends, and they don't know what they are doing:
According to former members, the organization is led by a sometimes-clueless, well-meaning volunteer board that usually yields to Roddick's my-way-or-the-highway mother, Blanche.

"They don't know what they're doing," said Brian Edwards, a Hollywood agent who resigned last year as director of celebrity development. "Blanche is extremely difficult. She and Andy are classless when it comes to dealing with celebrities. Believe me, I'm spreading the word." Edwards said incidents with celebrities over the years culminated in 2005 when two of his clients, whom he declined to name, waited six hours at a California airport for the plane to take them to Boca for the gala. He quit. "I suggested that we send them two gift baskets to apologize," Edwards said. "The total came to $733, but Andy has refused to pay. The bill still had not been paid two months ago. Real stars know. They aren't showing up because Andy and his mom have got delusions of grandeur when it comes to his star power, especially with their attitude."

The list of the personalities advertised for last weekend's event included former Dallas Cowboys star and dancing champ Emmitt Smith, former Detroit Lions star Barry Sanders, dirty celebutante Paris Hilton and New York Yankees slugger Alex Rodriguez. The names of actors Matt Damon and Russell Crowe were whispered in deep background. Who showed up: none of the above.

Those who paid up to $1,000 to play poker with big-deal celebs ended up with Paris' C-list sister, Nicky; the Dolphins' Jason Taylor; popster Mandy Moore; and tennis stars Venus and Serena Williams.

In fairness to the Foundation, the Palm Beach Post story, which perhaps revealingly does not have an author listed, is clearly one-sided against the Foundation and particularly against Blanche Roddick. I'm sure there are two sides to this story, and we only get quotes from people who have an ax to grind. Moreover, back in August, Fort Lauderdale Magazine named the Andy Roddick Foundation the best charity in South Florida. I don't know much about the award or the quality of competitors for it, but it suggests that the Foundation is doing something right.

But as a general issue, should charitable organizations of celebrities use family members to run them? I know nepotism is always a tricky subject, but perhaps it's something that celebrities want to avoid. After-all, Andy Roddick doesn't look particularly good when his foundation doesn't look good.

Then again, the following passage from Karyn R. Vanderwarren, Note: Financial Accountability in Charitable Organizations: Mandating an Audit Committee Function, 77 Chi.-Kent. L. Rev. 963, 966 (2002) might suggest otherwise, as it indicates that charitable organizations often lack the same degree of business/legal sophistication found in the for-profit world:
Charities often recruit nonprofit board members for their fundraising ability or prestige in the community rather than for their ability to lead the organization . . . [they] may lack corporate or legal expertise. Because charitable board members are generally not compensated and may lack expertise, they have little incentive to actively oversee the activities of the charitable organizations they serve.
So maybe the Andy Roddick Foundation's troubles--to extent they are accurately depicted by the media--have more to do with the nature of charitable organizations than anything else. Also, if the Foundation isn't very good, then couldn't contributors simply donate to other foundations--wouldn't the market for charitable contributions respond accordingly?

The Dark Side

Once upon a time, I had a piece of shit friend named Danny. He was a scumbag, but my opinion of him has improved considerably since that time.

Danny taught me about the Dark Side. This was his term for it not mine. I don't see anything dark about it at all. And what is the Dark Side? It is the world of sex without love. It is fucking without commitment. It is a beautiful thing.

Danny started out like a lot of guys wanting love. He married young. He got a good job. He bought a house and had a kid. Then the wife went on a drug and sex spree that cost him everything. She was doing everybody and everything. From the ashes of this disappointment, a dark lord of the Sith was born. Heh heh. . .

There really is nothing funny about this, but I like what Danny did. He fucked all his wife's friends, divorced her, and that was it. He became a mercenary. He gave up on love. For a brief period, he tried his hand at another relationship. But he got scorched again and went over to the Dark Side permanently.

This may seem scandalous, but what is the alternative? The man was not born this way. He was made this way. Then, he taught me his tricks.

Basically, the bars are full of lonely women. Your only barrier to getting laid is your level of morality. If a woman is in a bar, she is there to have sex. What other reason would she have for being there? Buy her a beer, talk a little shit, and then go back to her place. It's just that easy.

The sex will be meaningless and empty, but you'll have a good time. You haven't hurt anybody, and you can go on the next day with a smile on your face and no regrets.

People will toss up the spectre of STD's, but being monogamous is no protection. You're only as safe as your partner's honesty which is sadly lacking in today's relationships. Cheating is so rampant that over 80% of all marriages are tainted by infidelity. (Google this if you don't believe it.) The best thing to do is to use protection even if you are in a relationship. The alternative is celibacy.

So, what do I think of this scoundrel of the Dark Side? I think he is a standup guy because he isn't a hypocrite. He is honest about what he does and why he does it. He doesn't hurt anybody, and he doesn't get hurt. He accepted the rules of the game and embraced it for what it is. Why should he feel guilty? And the women love him for it.

Men are waking up to the reality. Being a swinging bachelor is where it is at. Don't believe the lies of love and family. Give in to your anger. Come to the Dark Side.

Tuesday, December 12, 2006

My Friend Tiff

I have this friend named Tiff that I absolutely adore. She hates my guts right now, but I love her to death.

I am a cynic on the topic of love and all of that. That's because I have a lifetime of getting scorched by females. I am the nice guy that always gets treated bad. I'm not looking for sympathy points here. I'm just telling you what happens to me, and why I am the way I am. Hopefully, you'll get a laugh out of it.

Tiff is a different story. She is something special to me, and though I am being a dick to her right now, she is the finest woman I have ever known. Not only has she bailed me out of all kinds of shit, but she also puts together Christmas presents for those less fortunate than her. She doesn't make any money, but she does this anyway. She would hate me publicizing this fact on my blog here, but all I can say is SORRY 'BOUT IT!!!

The woman is an absolute angel. She won't even smack me around which proves that she is a saint. You gotta love a woman like that.

But she doesn't want anything to do with me now because I have the touchy feelies for her. This is the story of my life, folks. I can always get the love of bad women but never a good woman. I must have been born under a bad sign or something.

Tiff can go on hating me, but I find it impossible to do the same to her. I'm crazy about her, and I don't care who knows it. I expect the restraining order any day now. Heh heh. . .

Lawyers in Demand at University Athletic Departments?

Last week at the Street & Smith's Intercollegiate Athletics Forum, when NCAA president Myles Brand and other panelists were asked what they thought would be the most important story to follow in the upcoming year, Brand said "Coaches' contracts," and added that "agents have the upper hand" now and schools may need outside help negotiating these deals. [Jodi Upton, USA Today, Colleges troubled by coaches' rising salaries] Brand told Upton in an interview: "Negotiations have become tougher, and there's a lot of competition for the best coaches. It might make sense for schools to have representation. They use outside counsel on other things."

I've always thought that university athletic departments would be better served by having a full-time attorney in-house to deal with not only coaches contracts, but also with compliance audits, Title IX issues, NCAA rules interpretations, the NCAA enforcement process, and the development of institutional policies and procedures that have all sorts of legal implications (i.e. drug testing, use of Myspace/Facebook, etc.), to name just a few. As a result of the increase in coaches salaries, coaches contracts, correspondingly, have become much more complex with respect to termination rights, liquidated damages (how much one party owes the other upon a breach), and mitigation of damages (whether the compensation under a future contract should reduce the damages owed by the university to the coach).

I agree with Brand when he says that agents have the upper hand in negotiating coaches contracts. One of the great benefits to having an agent when negotiating an employment contract is that the prospective employee, whether it be a player or coach, can play the "good cop, bad cop" role. In other words, the coach or player can say, "I know, but my agent is making some of these demands and I'm not a business person, which is why I hired him." An attorney working on behalf of the university might be able to level the playing field in that respect.

Also, I've always thought that the coach has more bargaining leverage than the university in the contract negotiation process. First, the coach and the university agree "in principle" that he is going to be the new head coach, and it hits the press that same day. Then, after it hits the press, the university and the agent get together over the next few days and hammer out all of the important details of the contract. During these negotiations, it seems that the coach would have a much easier time walking away from the deal than the university would, which gives the coach more leverage. The university is placed in the inviable position of having to explain to students, alumni and boosters that they lost their "prized" coach because they couldn't agree to the terms of the contract. Maybe an in-house lawyer could aid the university in that process at the outset when the agreement is reached "in principle".

As more universities hire counsel, whether in-house or outside, it creates more opportunities for lawyers who want to work in the sports industry.

Monday, December 11, 2006

David Stern Drops New Basketball Crusade

According to ESPN, NBA Commissioner David Stern will announce tomorrow that on January 1, 2007, the league will drop its new "microfiber balls" and bring back the traditional leather ball. The ball has drawn widespread rebuke from players as being uncomfortable and difficult to grasp, and Steve Nash and Jason Kidd even say that it cuts their hands. These complaints over both comfort and safety have reached legal significance, as the NBPA recently filed an unfair labor practice charge with the NLRB to have the ball replaced. That will no longer be necessary as Stern has essentially capitulated.

Skip Oliva over at the Voluntary Trade Blog has an insightful reaction to Stern's decision and the broader implications it may have on Stern and professional sports commissioners in general:
I consider this a “jump the shark” moment for Stern because the seemingly arbitrary decision to change the ball represented the zenith of Stern’s bureaucratic (and some would say autocratic) management policies. The new ball’s failure may signal at least a temporary end to Stern’s increasing centralization of power.

I’ve long complained about the existence of professional sports commissioners, arguing that even the title “commissioner” confers a quasi-governmental authority on what is nominally a business executive’s position. One problem is that commissioners have no equity stake in the organization that they are nominally CEO of—Baseball Commissioner Bud Selig being a quasi-exception, given that he owned the Milwaukee Brewers while serving as “acting commissioner”—and absent this equity, commissioners trend towards bureaucratic management. (See Ludwig Von Mises’s classic work Bureaucracy for a detailed explanation of bureaucratic management.)

Stern is Exhibit A for bureaucratic management. His policies are designed to do little more than consolidate his own power without benefiting the league or its customers. One example is the off-the-court dress code imposed on all players starting in 2005. Another is the arbitrary 19-year-old age requirement designed to keep high school graduates from playing immediately in the NBA. And then there’s the classic example of Stern silencing the NBA’s owners—his own bosses—who dare to criticize the league’s management or officiating in public. As I noted in an earlier post, if a CEO of a publicly-traded company tried to silence his critics, all hell (and the SEC) would break loose.

See also
A Revolution Against David Stern and Creeping Orwellianism? (11/21/2006)
NBA Player Autonomy: How Should We Define It? (11/28/2006)
Update on David Stern and NBA Player Autonomy (11/29/2006)

New Sports Law Scholarship

New this week:
Suzanne Wilhelm, “Is someone riding around a golf course from shot to shot really a golfer?” The Supreme Court determines the essence of the game of golf--and what the decision could mean for learning disabled students in higher education, 32 JOURNAL OF COLLEGE AND UNIVERSITY LAW 579 (2006)

Trying to Have it Both Ways (A Wasteland Reprise)

Every so often, I get involved with a chick who wants to have it both ways. This is how the scenario plays itself out. I take her out on a few dates, hang out with her, etc. She decides that she likes me but not enough to nail down any kind of commitment. I am then relegated to the status of "friend." This means I have to meet the parents, change my hair and lifestyle, be available all the time, continue with dates, etc. And do I get to go out with other women? No. In other words, I have to be a boyfriend while not having a girlfriend in the hope that maybe--MAYBE--she might like me enough to want to keep me around. In other words, I am supposed to sit on the shelf like a jar of peaches until I'm wanted.

This has happened to me three times. I suppose this is what I get for being a nice guy. I really need to quit that.

The clincher in all of this is when you decide to break it off you get the guilt trip about ending the "friendship." Chalk this up to female logic. Women love to play this game where they come off smelling like a rose while you are portrayed as the scumbag. I just have to shake my head and laugh.

So, can men and women be friends? Nope. Women love to have tons of guys as "friends." They are all jars of peaches sitting on the shelf. If your significant other has some male "friends," you better believe they will be in the sack with them at some point in the future if it hasn't already happened. "Friend" is a slippery term with women and can mean whatever they want it to mean. It's just another one of their games.

Fellahs, all I can tell you is that it pays to live like a dog. Women would rather play games with a man than get serious, so it behooves you to be a player. Men didn't invent the game. Women did. So, don't hate the player. Hate the game.

Sunday, December 10, 2006

Scott Boras and the Lack of Good Faith in Matsuzaka-Red Sox Negotiations?

Last month, Rick blogged on the posting system that enabled the Red Sox to obtain the right to exclusively negotiate with Japanese star pitcher Daisuke Matsuzaka. The Red Sox paid the Seibu Lions $51 million for a one-month window to negotiate with the 26-year-old Matsuzaka, who is under contract with the Lions. The window expires this Thursday. If no deal is reached, the Red Sox get their money back, but lose out on perhaps the best Japanese pitcher in recent memory.

And no deal may be the outcome. Matsuzaka is represented by Scott Boras and talks have gone nowhere. The Red Sox are said to be offering $8 million a year, while Boras believes that Matsuzaka's market value--in a market where free agent Jason Marquis, he of the 6.02 ERA and 14-16 record, can land a 3-year, $20 million deal with the budgetless Cubs--is worth at least $15 million and up to $20 million a year. Boras also contends that the Red Sox's $51 million posting payment to the Seibu Lions is not crucial to contract negotiations with his player, since his player isn't receiving any of that money. Boras also notes that the $51 million is not included in the luxury tax figure, and that the Sox would be able to write off some of the $51 million as a marketing cost. It is also thought that Sox would receive a less measurable, but nonetheless meaningful benefit by making in-roads in the Japanese economy and culture.

Today's Boston Herald features an anonymous Red Sox executive (Larry Lucchino?) blasting Scott Boras, even intimating that Boras is not representing the best interests of his client:
Negotiations between the Red Sox and Japanese pitcher Daisuke Matsuzaka have essentially broken down, a source familiar with the talks said late last night, adding that unless there is an abrupt change of course, Matsuzaka will not be signing with the Red Sox before Thursday’s midnight deadline.

Attempts to reach Matsuzaka’s agent, Scott Boras, were unsuccessful last night. However, the well-placed source blamed Boras for stubbornly being unable to get over the flaws in the Japanese posting system, saying that he has been unwilling to negotiate and that he has acted disinterested in even making a deal.
ESPN's Peter Gammons has more damaging commentary from the Sox, with the implication that the Sox believe Boras is not negotiating in good faith:
While Boras remains adamant in asking for close to a Jason Schmidt average annual value, Red Sox officials feel that the superagent prefers to keep Matsuzaka in Japan for two more years, then get $140 million for seven years after 2008.
So is Boras not making a good-faith effort to get Matsuzaka signed? Keep in mind, as noted by Professor Emily Houh in The Doctrine of Good Faith in Contract Law: A (Nearly) Empty Vessel?, 2005 Utah Law Review 1 (2005), the absence of "good-faith" in contract negotiations often does not have legal significance:
Section 205 of the Restatement of Contracts explicitly takes the position that it, "like the Uniform Commercial Code ... , does not deal with good faith in the formation of a contract." Thus, the common law obligation of good faith fails to reach the most troubling forms of contractual bad faith: those that occur during contract negotiation and formation.
But even if the absence of good faith is not legally meaningful, what about the practical implications of Matsuzaka returning to the Seibu Lions--the same team that gave him a farewell event in front of 36,000 fans and that presumably doesn't want to return the $51 million? Can he really go back? Hasn't that bridge already been crossed, if not burned?

Lastly, if Boras fails to reach a deal with the Sox, what might that do to his professional reputation as an agent in Japan? I suspect Matsuzaka might be his last Japanese client for some time if that were to occur.

Having said that, Boras recently placed J.D. Drew with the Sox and is also the representative of Jason Varitek, so he has enjoyed successful negotiations with Sox management, thus supplying some comfort to Sox fans with the Thursday deadline approaching (although don't remind those same fans of another of Boras' clients, some guy named Johnny Damon).

See also
* Boras Almost Steals Another One (9/1/2006)
* Mark Teixeira Blasts Boston Red Sox: Legality of Pre-Draft Negotiations between MLB Teams and Amateur Players (5/23/2006)

Saturday, December 9, 2006

Luminescent Basketball Uniforms Coming to an Arena Near You?

Tom Simonite from New Scientist Magazine has an interesting article on new basketball uniforms being developed that will indicate a player's statistics and other game information through luminescent bars:
The simple, coloured display panels are attached to each vest and connected to a small computer, about the size of an iPod, strapped to each player's body. These computers communicate wirelessly with a central control system, installed at the side of the court, which keeps track of all relevant statistics as the game goes on.

Luminescent bars running up the side of a vest indicate the points scored by each player, while lines on their shoulders show the number of fouls against them. Panels on each player's chest indicate when the game time or shot clock is running low, and panels on their back show which team is winning . . . this gives players greater confidence in their team's tactics, say the researchers involved.

"Team sports uniforms already communicate information visually," like a player's name, says Mitchell Page, who developed the system at the University of Sydney. "We wanted to augment the existing team sports uniform model to communicate more relevant information, such as a player’s stats and performance."
The uniforms--known as TeamAwear--are the creation of Mitchell Page, a University of Sydney student who "came up with the idea while playing computer sports games, which use graphics and icons to tie statistics to the virtual players and track their performance. He wondered how such on-screen graphics in sports telecasts could be made available to players and spectators at the ground."

We know the NBA is always looking for new sources of revenue, so maybe the league will find something here. And players would seemingly benefit by more easily knowing game information, such as how much time is left on the shot clock and the number of timeouts remaining. Other players, particularly those interested in their own statistics (such as one on the verge of getting a triple-double) might also find this information helpful. But I have a feeling Billy Hunter and the Players' Association would have some reservations, including those relating to workplace safety. After-all, what about the risk of electrocution or burns? But Mitchell counters these concerns on his blog when writing, "the risk of harm from electrocution is for all intents and purposes, zero" and players who have tested the uniforms "have reported no electrical shock whatsoever."

In any event, while reading this story, I couldn't help but recall that old NBA Jam videogame, where players would "heat up" both figuratively and literally:

Friday, December 8, 2006

Revenge of the Groupies, 46 years later

The type of story you don't see everyday:

An 81-year-old Texas woman named Ruby Y. Young was arrested last week on federal charges relating to letters she had sent to Hall-of-Fame Packers Quarterback Bart Starr (HT: Deadspin). According to a criminal affidavit, Young sent Starr, now 72, several letters demanding that he pay her $ 2 million or she would go to the media with reports of an "encounter" that they had in 1960.

From Deadspin, one letter reads, in part:

"And now, the time has come for you to pay -- to pay for the many injuries you caused me. ... No I am not a push-over Mr. Starr -- and no, I do not need the money -- but I intend to see that you pay for your wrong doings (sic) to me ...," said the first letter, dated Oct. 30, 2006, which an agent quoted in part in the affidavit. "How much is it worth to preserve this 'image' presented to the public these many years of who and what you are?"

"I am going to be vindicated one way or another," Young's first letter said, according to the affidavit. "You know very well that any and all tabloids, TV news casters (sic) such as ABC, CBS, NBC, would simply devour this story. ... And thereby, I would collect money from these sources. But, I first want to give you the chance to pay me back in dollars rather than exposure."

Among criminal law and free-speech theorists, the rational for the legal prohibition on extortion is something of a mystery. Think about it. Ms. Young had 4 options. She could have:

1) Gone to the press with the details of whatever Starr did to her. Nothing criminal about that. And nothing legally wrong with that if her story is true. If the story is false and she knew it was false when she said it, she might be liable for civil damages for defamation (I think Starr remains a public figure), assuming Starr decided to sue rather than letting the issue go away.

2) Sued Starr for $ 2 million based on whatever improper acts caused her injury. She might lose the suit, either because the claims lack merit and/or because the claims are 46 years old and the statute of limitations has expired (not many civil claims have 50-year limitations periods). And, if the suit is frivolous (i.e., laughably weak and totally lacking any and all merit), she might be subject to sanctions by the court, including having to pay Starr's attorney fees. On the other hand, bringing the lawsuit might have compelled Starr to settle to make the issue go away.

3) Threatened to do # 2 as a way to force a monetary settlement in advance. If done through an attorney and in a non-threatening way, such pre-suit notice and negotiation is actually favored.

4) Sent letters threatening to do # 1 unless Starr gave her what she could seek by doing # 2 (which is what she did).

All four have the same purpose and effect of giving Starr a choice between paying money or having the details of the ancient encounter publicized. But only # 4 is subject to criminal prosecution. And, as the prosecutor in the case noted, that is true regardless of the truth or falsity of Young's story.

The best theoretical arguments talk about the loss of autonomy, of free choice, that extortion inflicts on its victims. But it is an interesting dichotomy for theorists.

Thursday, December 7, 2006

Tom Brady [insert football pun here in place of the word "sues"] Yahoo

First he slammed BCS-championship-game-bound Florida. Now, Tom Brady is suing Yahoo over use of his image without permission, as reported by the Smoking Gun. The core of Brady's lawsuit, according to his complaint:
In September 2006, defendant Yahoo ran a full page color advertisement for its Fantasy Football goods and services in Sports Illustrated featuring Tom Brady's likeness, image and identity without permission or authority. . . . Defendant's unauthorized use of Tom Brady's image, likeness and identity are false and misleading and tend to falsely describe and represent that Defendant's goods and services are licensed, sponsored, endorsed or otherwise authorized by Tom Brady. . . . Defendant's unauthorized use of Tom Brady's likeness, image and identity . . . violate Plaintiff's . . . rights of publicity.
Fantasy sports providers recently earned a victory in the CBC case, as Rick noted here. However, that case involved the use of just names and statistics; here, the use of Brady's image gives the athlete a much better claim. In CBC, the court specifically emphasized that the fantasy provider was not using player images, just their names and statistics. Here, if Brady's allegations are true (i.e., Yahoo did not have a license to use his image), it would seem a fairly open and shut case. Another blunder by already struggling Yahoo?

How Would Reinstituting the Military Draft Affect Sports?

The incoming Chair of the House Ways and Means Committee, U.S. Rep. Charles (Charlie) Rangel (D-NY), has proposed that the United States renew the military draft, which has been suspended since 1973. Rangel sponsors a bill that would require military or civilian service for all American citizens ages 18 to 26. Many nations have similar laws, including Israel, South Korea, and Norway. If Rangel's bill became law, it could have sweeping effects on both college and professional sports.

But why would Rangel--a purple heart, bronze star veteran of the Korean War--support such a bill? Basically, he argues that spreading military obligations more equitably would encourage political leaders and opinion leaders to more carefully deliberate the deployment of troops into combat. After-all, of the 535 members of Congress, only 7 have children in the military who are participating or could be called to participate in the war. I'm not sure if there is similar data on the opinion-leader/think-tank types who championed the Iraq War, but I suspect a similarly small percentage did so with the prospect of personal loss. A more general analysis of the relationship between military recruitment and socio-economic status can be read here, which details how young men from poorer backgrounds are actively recruited, while those from more affluent communities receive much less attention. Rangel also has an op-ed in the New York Daily News which notes that persons of color bear a disproportionate share of protecting the country.

Rangel's proposal also goes to the absence members of Congress with military backgrounds. In fact, according to University of Maine law professor Donald Zillman, only about 30% of Congresspersons have military backgrounds, and only one in 10 of the newly-elected members of Congress served in the military. Back in 1978, about 80% of the members of the House of Representatives had military experience, and in 1985, about 75% of the members of the Senate had that experience. Times have indeed changed, and not many of the people who are entrusted with the decision to authorize wars do so with actual knowledge of what wars are like.

Of course, whatever conceptual appeal Rangel's plan may have, his bill is very unlikely to secure passage. Many influential members of his own party, including incoming chair of the Senate Armed Forces Committee, Senator Carl Levin, oppose it, and fewer than 20% of Americans are supportive. Perhaps most significantly, Rangel's plan will not be on the Democrats' agenda when they re-take control of Congress in January.

But let's say that Rangel's plan gradually gains support in 2007, eventually makes its way for a vote, passes, and President Bush signs it (or vetoes it, but his veto is overridden). Beyond many more important questions, what would happen to sports?

The specifics of the draft or compulsory service obligation would obviously prove crucial, as would the nature, extent, and duration of future American forces in Iraq (and/or other countries). But as a barometer, consider how compulsory military service in World War II substantially affected sports. In fact, 638 NFL players served during the war, as did more than 500 MLB players.

To see one specific effect, take a look at Matthew Algeo's fascinating new book Last Team Standing: How the Steelers and the Eagles - 'The Steagles' - Saved Pro Football During World War II. In it, he writes about how the Philadelphia Eagles and Pittsburgh Steelers, both having lost many players to military obligation, actually merged for the 1943 season and were called "The Steagles." They finished with a 5-4-1 record.

Much has also been written about star MLB players being drafted. Ted Williams, Joe DiMaggio, Hank Goldberg, and Bob Feller were among them. To the right we see a picture of Ted Williams--he of the 20:10 vision--being sworn into the Navy, for whom he would star as a fighter pilot (in both WWII and the Korean War). For some great background on "Wartime Baseball" be sure to check out Gary Bedingield's Baseball in Wartime website and also the Baseball during WWII website.

Another consequence of players being overseas was the rise of women's professional baseball. Between 1943 and 1954, we had the
All-American Girls' Baseball League, which according to historian James A. Percoco, is the only professional baseball league for women in American history. A similarly positive effect was a greater desire for desegregation in sports, particularly after soldiers from all racial/ethnic backgrounds fought together to defeat the Nazis.

The Vietnam War also entailed the drafting of professional athletes. For instance, Juanita Secor writes about Rocky Bleier, "who won four Superbowl rings with the Pittsburgh Steelers and drafted during the Vietnam War in the Army as an infantrymen. After his time in the war, he suffered severe leg injuries but he never lost sight of his passion for the game. He ended playing for 12 years more and was the go to guy for his team."

So what might happen to sports today with a draft? Would the legacy of Pat Tillman voluntarily giving up his NFL career and ultimately his life prove influential? Would the legacy of Muhammad Ali refusing the Vietnam War draft as a conscientious objector also prove influential? You can argue that both were courageous in their own ways, and I suspect their stories would be spotlighted should a draft be reinstituted.