Wednesday, January 31, 2007

progress realized?

Before the first snap from scrimmage, Super Bowl XLI will be like no other National Football League championship game in history. On the Chicago Bears sideline, Lovie Smith will pilot his team as the first African American head coach to ever lead an NFL team to the Super Bowl. Across the field will stand Smith’s mentor and friend, Tony Dungy who became the second African American head coach (by about four hours) to lead his NFL team, the Indianapolis Colts, into a Super Bowl.

Whatever barriers existed between African American head coaches and the Super Bowl prior to this season, Dungy and Smith have shattered them in their exemplary displays of leadership, fortitude and dedication. Appropriately, one of the principal stories leading up to this Super Bowl has been the fact that for the first time in the forty one years of Super Bowl play, one of the participating teams will be coached by an African American. The magnitude of this event can not be overstated.

As Dungy has repeatedly asserted when commenting on this historical achievement, both coaches brought their teams to the brink of a championship by coaching the “right way.” For Dungy and Smith, that includes fostering a familial bond of respect with the players’ in their charge and by refusing to engage in the “profanity” and “win or die” attitude displayed by many NFL head coaches. On Sunday evening, around 10:30 or 11:00 p.m. eastern time, an African American head coach will lift the Lombardi Trophy over his head triumphantly and will make history again as the first black head coach to win the title.

Perhaps lost amongst the deserved hoopla for Dungy and Smith was the relatively quiet hiring of Mike Tomlin by the Pittsburgh Steelers as their new head coach. Tomlin, the thirty four year old African American former defensive coordinator of the Minnesota Vikings becomes the first black head coach in the Pittsburgh Steelers seventy four year history. Tomlin becomes the sixth black head coach in the 2007 NFL joining Smith, Dungy, Herman Edwards of the Kansas City Chiefs, Romeo Crennel of the Cleveland Browns and Marvin Lewis of the Cincinnati Bengals. Last season seven African American head coaches stalked NFL sidelines, but the Oakland Raiders terminated Art Shell as head coach after one season and the Arizona Cardinals fired Dennis Green following three disappointing seasons.

Tomlin’s hiring is striking and noteworthy for several reasons. First, the NFL adopted a rule in 2002 under the direction of then commissioner Paul Tagliabue that required each NFL club to interview at least one minority candidate each time a head coaching vacancy became available. This rule is commonly referred to as the “Rooney Rule.” The owner of the Pittsburgh Steelers is Dan Rooney, one of the most influential owners in professional sports and it is he who masterminded the rule as a means of opening access and opportunity to African American coaches. Failure to follow the rule can result in a stiff penalty (as Matt Millen and the Detroit Lions can attest after being fined $200,000 for hiring Steve Mariucci without interviewing a single minority candidate in 2003).

In interviewing Tomlin, Rooney was following the very rule that he helped to establish. The obvious purpose of this rule was to begin to introduce the young minority coaches in the league to the primarily older, white male owners of the NFL clubs. As in any “old boy network” scenario, individuals will hire who they know, and by in large, the older white male NFL owners knew the same cadre of coaches and contacts who for so many years were primarily, if not absolutely, white. The Rooney Rule has forced NFL owners to develop lists of promising minority coaches and to have them in for day-long interviews allowing the owners to become familiar with a group of candidates they had not known previously—a type of affirmative action for NFL hiring.

When long-time Steelers coach, and beloved Pittsburgh native Bill Cowher announced his resignation, the early speculation was that Rooney would stay in-house and offer the head coaching position to one of two successful white assistant coaches on Cowher’s staff, offensive coordinator Ken Wisenhunt or offensive line coach Russ Grimm. Reports indicated that Russ Grimm would land the job with Pittsburgh, particularly after Wisenhunt was hired as head coach of the Arizona Cardinals. Yet, Rooney, in keeping with his rule, decided to interview the young, aggressive promising defensive coordinator of the Minnesota Vikings. Tomlin so impressed Rooney that he was offered the head coaching position almost immediately. Grimm left the Steelers to join Wisenhunt in Arizona.

The Tomlin hiring portends important changes taking place throughout the league. Minority candidates are becoming more routinely sought after as candidates. Bears’ defensive coordinator Ron Rivera has received several head coaching interview opportunities as has San Francisco 49ers linebacker’s coach Mike Singletary. As Marvin Lewis and Tony Dungy know, interviewing often around the league allows owners to get to know an individual. Which often leads to an opportunity.

Is the Rooney Rule responsible for this progress? Absent the Rooney Rule, would Tomlin have been contacted by Rooney for an interview? Had he not been interviewed, Tomlin would not have had the opportunity to impress Rooney with his presentation, preparation and potential. Absent the Rooney Rule would 20% of head coaches in the NFL be African American? Absent the Rooney Rule would two African American head coaches be battling on Super Sunday for the chance to again be a first?

And if this Rooney Rule appears to be working for the NFL, then what is the problem with the NCAA and head coaching jobs for African Americans in college football?

Sports and Due Process (Or More Looking Over Game Officials' Shoulders)

O.J. Mayo of Huntington (W. VA) High School, purportedly the best high-school player in the country and bound for U.S.C. next fall, played in a high-profile basketball game Tuesday night against Lakewood (CA) Artesia High School. This was one of those increasingly common made-for-TV games; this one was played at Duke's Cameron Indoor Stadium between top-ranked high school teams, neither of which is particularly close to Durham, NC. Mayo scored 19 points before fouling out in Huntington's win.

This is worth mentioning on Sports Law Blog because Mayo needed a court order to play in the game.

Mayo (along with five teammates) was ejected from a game last Friday night. Mayo received two technical fouls, the second for taunting opponents after a second-half dunk. That technical lead to an on-court scuffle between players on both teams. Video is here. After the second technical, Mayo followed the official to the scorer's table; he and the official made some body contact (how much is in dispute) and the official fell to the floor. Under West Virginia Secondary School Activities Commission (SSAC) rules, a player ejected from a game is suspended for the next two games. And a player who in protest makes contact with an official can be suspended for up to one year.

But hours before Tuesday's game, Mayo won a Temporary Restraining Order from Cabel County Circuit Judge Dan O'Hanlon, allowing him to play in the game and prohibiting SSAC from enforcing its suspension rules until a hearing on February 9 to determine what process SSAC must give Mayo before suspending him. Stories here and here.

I have not read the court's order and am working off sports media reports, which often do not accurately capture legal detail. The stories contain pithy comments from one of Mayo's lawyers about how the players "deserve an opportunity to be heard before they are denied the chance of a lifetime because of an arbitrary enforcement of a rule they did not intend to violate." And another lawyer (who also is an assistant coach) insists Mayo did not intend to make contact with the official and, if anything, it was the ref who initiated the contact. You get the idea. I am opining off less-than-complete legal information.

That said, I cannot understand how the court could issue this TRO. I do not see what process Mayo should be entitled to that would allow him to avoid at least a two game suspension.

Take the ejection and put the bumping to one side for a moment. The SSAC rule is clear and (I believe) unequivocal: If you receive two technical fouls and/or are ejected, you sit two games. The only question is whether Mayo was, in fact, ejected because he received two technicals. That fact seems undisputed and indisputable. A hearing or other process from SSAC does nothing to change that. The rule is not being arbitrarily enforced--it kicks in whenever a player is ejected, as Mayo assuredly was. And whether Mayo or the other players intended to violate this rule (the point the attorney/coach made) is an utter non-sequitur; I assume no player ever intends to get two T's or intends to get ejected from a game. Intent is irrelevant to the rule.

So if a hearing will change nothing about the two-game/ejection suspension, the TRO should not have issued. One thing a plaintiff must show in order to get a TRO is that he is "likely to succeed on the merits"--that the claims he is bringing has merit. Mayo is making a due process argument, which means he has to show that he is entitled to some process and that it would make a difference. I do not see how it makes a difference as to this rule.

Unless, of course, Mayo wants a hearing so he can argue to SSAC that it should reverse the referee's decision to give him the second technical. If so, that is an extremely dangerous and bad idea, for reasons similar to what I discuss in an earlier post. Game officials have a difficult enough job without fear that their immediate in-game decisions, such as whether to call a violation, are going to be subject to reversal from above when they call something on the wrong player (a top-5 national star) at the wrong time (on the eve of a mythical national championship game). This is an example of the type of discretionary decision that must be largely immune from review if we want refs to be able to do their jobs. The notion that Mayo has a constitutional due process right to a hearing to ask SSAC to reverse the official's in-game determination would make sports contests ungovernable. This would set a bad precedent.

Now, the potential suspension for bumping the ref is a different story. Whether a bump occurred, whether it was intentional, and whether it was "in protest" all are in dispute and all are necessary for application of the rule. Plus, whether a suspension should occur and its length are within SSAC discretion, probably depending on the severity and intent behind the contact. A hearing is necessary to resolve those factual issues, so Mayo is entitled to some process before a bumping suspension is imposed.

But that alone does not justify the TRO that allowed Mayo to play on Tuesday. It seems that Mayo should have to sit, at a minimum, two games--the Cameron game and one more--as punishment for the ejection. Anything beyond that would be punishment for the bump and he is entitled to a hearing before such additional games are added.

But there was no reason for the court to interfere now. At least no reason beyond everyone wanting to see O.J. Mayo play in that particular game.

andré douglas pond cummings and Gabe Feldman: Guest Bloggers

We are thrilled to have two distinguished scholars guest blog: andré (dré) douglas pond cummings and Gabe Feldman.

dré is an associate professor of law at West Virginia University College Law, where he teaches sports and the law, civil procedure, and other courses. He's originally from Los Angeles and is a graduate of Brigham Young University (where he was on the track team) and Howard Law School. He later practiced law in Chicago at Kirkland & Ellis, where he represented NFL players and Hollywood screenwriters and novelists. He has won numerous teaching awards and has published articles in such scholarly journals as the Harvard BlackLetter Law Review, the Nebraska Law Review, the University of Louisville’s Brandeis Law Review, and the Howard Law Journal.

Gabe is an associate professor of law at Tulane Law School, where he teaches sports and the law, antitrust, and other courses. He is a true Blue Devil, holding a B.A., M.B.A., and J.D. from Duke University. While in law school, he held legal internships with pro sports teams. He later practiced law in Washington D.C. at Williams & Connolly, where he represented a variety of sports entities, and also co-taught a sports law class at UVA Law. Gabe is the co-author of Sports Law: Cases and Materials, and will direct Tulane's sports law program with Gary Roberts becoming Dean of Indiana University School of Law in Indianapolis.

We very much look forward to posts by dré and Gabe.

Tuesday, January 30, 2007

Sports Leagues as Courts of Appeals

The NFL this week fined the Saints' Reggie Bush $ 5000 for taunting the Bears' Brian Urlacher during Bush's touchdown catch-and-run in the NFC Championship game. Bush pointed towards Urlacher (running several yards behind him) at the end of the run, then did a front somersault into the end zone.

What is interest is that Bush did not draw a taunting penalty on the play. In other words, the game officials on the field either did not see it (unlikely, because it was pretty hard to miss, especially the somersault) or did not think it was worth a flag. Given that, I wonder how appropriate it is for the NFL to assess a fine.

Compare the usual (although not absolute) practice of courts of appeals. They generally will not address issues that were not raised and considered by the trial court. And they generally will defer to certain decisions that trial judges are deemed better able to make from their on-the-ground vantage point in a case (usually involving things such as witness credibility and the like).

League-imposed fines can be seen as an additional punishment, imposed from above (on appeal, if you like) and directed towards the individual player, a supplement to the in-game punishment assessed by the game officials. Not every penalty flag warrants a player fine. But perhaps the league should stay its hand in the opposite situation. If game officials did not believe an infraction occurred at the time, the leagues should defer to that initial determination and not impose a penalty or fine after-the-fact.

Some of this gets into whether we trust game officials on the ground to get things right and whether review from above, usually with the help of video, is proper and necessary. But that gets into what I think of instant replay, which is another, much longer post.

Monday, January 29, 2007

Reductionism and NASCAR

Whenever I mention that I like NASCAR, there is always some addled brained diseased cerebrum fucktard who likes to spout off that he doesn't see the entertainment value in watching a bunch of guys drive in a circle. Now, I can see why some people don't like NASCAR, and I don't think it is a crime not to be interested in stock car racing. To each his own, I say. But to use reductionism as an argument is just pure shitheadedness. I'll apply the same logic to other endeavors:

FOOTBALL
Watching a bunch of guys slam into each other chasing after an inflated piece of leather.

BASEBALL
A bunch of guys running around in a circle and popping speed in the dugout.

BASKETBALL
A bunch of tall guys putting a ball through an iron hoop and posing for SportsCenter highlights.

TENNIS
A bunch of women (or men) chasing a yellow ball around a court and emitting orgasmic grunts.

GOLF
A bunch of guys in bad clothes hitting white balls on a lawn.

MOVIES
Flickering images of colored light on a screen.

SEX
People inseting body parts into other body parts resulting in stickiness and, in some cases, reproduction.

LIFE
A mad chase after money which is immediately spent on consumer items and/or sex and drugs.

Everything in life can be reduced and diminished in this way. I admit that I have often made the same argument about things I am not interested in. But I realize that all I have to say is that I don't like those things much the same way I don't like collard greens, Oprah Winfrey, and hairy homosexual men.

The things we like are the things that mean something to us. Tony Stewart winning a race might not mean anything to you, but it means a lot to me. I can't wait for Daytona.

The One and Only Berlusconi...


Mr. Silvio Berlusconi, the former Italian Prime-Minister, eternal President of the great AC Milan and owner of Mediaset, is perhaps better known for his less than commendable antics and over the top comments. However, he brings to international headlines a truly interesting case, at a time when the Italian Competition Authority just released its very own view on the need to collectively sell Italian Calcio's broadcasting rights. Mediaset, who reportedly paid over USD$ 65 Million for the right to broadcast Calcio's highlights, claims this summer’s match-fixing scandal in Serie A devalued its TV rights, stating a strong loss in viewer interest in Serie A as a result of the relegation of top club Juventus and heavy punishments to AC Milan, Fiorentina and Lazio.

According to Il Corriere, Mediaset cites a 15 per cent drop in pay TV rights. After one of the main title contenders was relegated and three other major clubs heavily punished with the loss of points, the League lost at least some of its magnetism. And some 40% of all football viewers are fans of the proscribed clubs. Now Mediaset is taking legal action against the Italian football league. It seeks the reduction of the total price agreed upon for the right to broadcast the best moments of Italian soccer. The claim in itself, regardless of its merit, should be welcomed for what it entails in terms of mentality and is sure to make excellent reading.

Mediaset will try to establish the devaluation by resorting to available figures: (i) ticket sales in Serie A dropped 17.5%; (ii) Paying spectators in the first 13 rounds dropped 10%; (iii) Serie A Pay TV subscriptions dropped 14.8%; and (iv) Serie B Pay TV subscriptions increased by 52%, with Juve competing is the second tier this season. This should be enough to sustain the argument of a significant change in circumstances. Basically, if (i) the circumstances that were taken into account upon the execution of the contract have been subsequently and significantly altered and both parties could not have foreseen it; if (ii) the change brings significant economic imbalance to the contract; and if (iii) the change cannot be deemed inherent to the nature of the contract and the risks it entails, then the contract can be terminated or its price (as an element of the contract) reduced accordingly. Are we to assume that something of this sort might happen when contracting in the field of sports? The assumptions the parties took into account when agreeing upon the price certainly included the likes of Juve in Serie A and Fiorentina and AC Milan vying for a Champions League spot. Those assumptions are no longer valid. And match-fixing can hardly be deemed an inherent risk of any sporting activity.

This brings us to the Mediaset’s second prospective argument: was the League negligent in its capacity as regulator of professional soccer in Italy? The regrettable state of affairs in Calcio’s backstage had been mooted for years and one gets the feeling it was just a matter of time before the bubble of corruption burst. The League will certainly argue that it is not responsible for the actions of clubs, underlining the disappointing behavior adopted by club’s managers in their undertakings towards success. While it may be tempting to let the League off, the fact remains that little had been done to prevent and punish match-fixing. And the League will find it very hard to shake-off its duty to supervise the legality of its clubs’ deals. However, Mediaset is not likely to choose the path of negligence. Mr. Berlusconi would be falling into a trap. While the claim of negligence might further reduce the price he’s paying for the highlights, it will no doubt prove very costly in terms of personal image. After all, the owner of Mediaset would be surging against the President of AC Milan: the one and only Mr. Berslusconi...

Sunday, January 28, 2007

Ears and Ali on their way home


I said good bye to dear old Ears again today. Not sure if I will see her again as she is 20 years old this year and in foal with probably her last. Her home is now in Tauranga and she and her paddock mate Ali are both in foal to Hamish and due in October. Ali decided that she really did not want to leave Hamish so stood on her hind legs and waved her front legs in the air a bit when Kay and Pete showed her the float. After she had spent some time taking the p*ss out of them, Nick and I stepped in and 'gave her the bash' (not literally of course! LOL!) and she fair leapt in within about 15 minutes. Silly girl. They apparently travelled well and arrived home safely this evening. Now we wait for the babies to arrive.

Saturday, January 27, 2007

NHL Players Approve Independent Investigation of Saskin's Hiring

On Thursday this week, a majority of the 30 NHLPA-player representatives approved an independent investigation into the hiring of executive director Ted Saskin. Back in June, 2005, the union accepted a collective bargaining agreement that ended the lockout and for the first time contained a salary cap, which ran counter to the views that former executive director Bob Goodenow expressed in negotiations with the league. Shortly thereafter on July 28 2005, Goodenow was dismissed and, that same day, Saskin was hired as executive director.

Last October, I discussed the lawsuit filed against the NHLPA by a large dissident group of players alleging that "Saskin was never properly nominated for the position by the executive board." That lawsuit was dismissed this week by a federal court in Illinois for lack of jurisdiction. The judge agreed with the NHLPA that Ontario was the proper situs for the suit. Three days later, the players approved the investigation. Mathieu Schneider, a Detroit Red Wings defenseman and interim NHLPA executive committee member, said, "The purpose of the investigation is to clear the air, produce clarity on these questions and fortify a strong unified union."

Schneider would make a good politician some day. But in all sincerity, Schneider is absolutely right. An independent investigation makes perfect sense here because there is such a large dissident group of players. The last thing the players need is dissension among themselves. Also, an investigation is more efficient and cost-effective than a long drawn out discovery process tied up in court. Furthermore, the players don't need to convince a judge or jury whether Saskin should be removed or not; the players just need to convince themselves.

There appears to be some unanswered questions about exactly what information was disclosed to the player representative executive board members regarding the salary cap and the hiring of Saskin, and whether the players were fully informed in order to make proper decisions. The investigation will probably not provide all the answers. But the results of the investigation will either strengthen or weaken the dissident players' case and lead to a speedier resolution of this dispute, which serves the best interest of all the players and Saskin as well.

Friday, January 26, 2007

On foal watch again (Maude)


Finally Maude is starting to look close so the alarm is on and she is parked in the front paddock by the bedroom. Knowing the horses this year, she will hang on for another fortnight but as she was at 342 days on Jan 20th, I REALLY hope not!!!

And I included this pic of Finn, just coz it's cute!

Introducing The Situationist

Dear Friends & Readers:

I wanted to let you know that I am the co-creator of another blog, The Situationist, which was just made live today. The other co-creator is Harvard Law School professor Jon Hanson. The Situationist is part of the Project on Law and Mind Sciences at Harvard Law School, which Jon and I are also creating, and will provide commentary by social psychologists, law professors, policy analysts, practicing attorneys, and others connected to law and mind sciences. Some prominent social psychologists have already agreed to contribute, including, for example, Philip Zimbardo, perhaps best known for his "Stanford Prison Experiment." Posts will address current events and law and policy debates, informed by what social scientists are discovering about human behavior. Our first posts include:
I'll still be blogging regularly at Sports Law Blog, but will discussing many other topics at The Situationist. The two websites are connected more than they may seem. In fact, I will be examining sports from time-to-time on The Situationist and Jon and I intend to write a book on sports from a situationist perspective. I hope you give The Situationist a look and would welcome any feedback or suggestions.

Thursday, January 25, 2007

Reilly goes for a Tiki tour

Well today we loaded him up and shut the ramp and off we went. Aside from managing to get his head under the chest bar, he was brilliant. That was my fault for not tying him up tight enough (wanted to make sure he had enough length on the rope to step back into the bar without it pulling tight). We stopped on the road, put the ramp down, opened the bar, stepped him back and re-tied him up tighter, all without incident. Gee he's good!! No photos today.

Wednesday, January 24, 2007

Reilly gets scrubbed up!





Today I decided to have a practise run plaiting Reilly up. I wasn't sure how much of a fidget bum he was going to be and figured it would be useful to know in advance how long it might take to get him ready. The good news is that he was brilliant, a star in fact and I give him an A+ for effort. The bad news is that I really cannot plait and unless someone who knows what they are doing is able to help me, I should probably save myself the embarrassment of being laughed out of the ring and excuse us from the turnout class!!

Above and below are the results of our quick photo session afterwards. He really is such a cute pony! I took 80 (yes that is EIGHTY) photos and in no less than 40 of them he had his eyes shut, LOL! We were beside ourselves trying to get him to pose for the camera as he was literally asleep on his feet. I think plaiting him up has some sort of hypnotic affect on him, bless his cottons.


Upcoming Symposium at Ripon College: Ethics in Sports

On February 1st and 2nd, the Ethical Leadership Program at Ripon College in Wisconsin is sponsoring a symposium featuring some very interesting and provocative panelists and keynote speakers, including Bud Selig and Myles Brand. Check out the program for the event.

Bush and the Democrats on Iraq

I had to work last night and did not catch the State of the Union address. I don't think I missed anything all that great.

The big issue is Iraq, and the stupidity is now on both sides of the partisan divide. We are losing in Iraq. Bush refuses to see this because he is:

a.) Stupid.

b.) Dumb.

c.) Really dumb.

The Democrats are only slightly smarter on this. Unlike Bush, they will acknowledge that we are losing in Iraq. Most of the Democrats insist upon a pullout because we are losing. But before we withdraw from Iraq, we must first win. The mind boggles.

I suppose I'll have to be the one to say it. We can't win in Iraq. Hell, we can't win in Afghanistan. This is because nation building is an exercise in futility. Candidate Bush knew this in 2000 but quickly forgot it in 2001. In order to win in these places would require a cruelty and a rein of tyranny known only to people like Saddam Hussein. Saddam brought peace to Iraq. This is what happens when you put people in wood chippers.

I don't have the answer in Iraq. No one does. But I am not arrogant enough to pretend that I do. The fact is that the USA has the ability to destroy just about any nation on earth. Conquest is not going to happen here. We don't have opponents so much as nuisances. The number one threat to American freedom comes not from al-Qaeda but from our own government with the Patriot Act, an unbridled NSA wanting to snoop on us, and the heavy tax burden adventures like Iraq are creating.

The USA needs to exit Iraq--NOW. We should never have been over there. The USA needs to mind its own business when it comes to foreign affairs. We meddle, and we pay the price. This has been proven over and over again.

But it is not in the nature of politicians to admit defeat. They believe that they have the power to change the world. It is merely a matter of tweaking the policy until they achieve the right solution. This is what Bush's "new strategy" in Iraq amounts to--a policy tweak.

Some will argue that a hasty exit from Iraq will mean that things will get worse over there, but I don't see how things can get any worse over there now. The civil war has begun. We need to get out of the way.

The only real damage here will be the tarnish on Bush's legacy. It's a real shame that more soldiers should die and more money should be wasted, so Bush can get a better reading in the history books. The fact is that if he had read the history books he wouldn't be in this shit now. All I can say is sorry 'bout it.

I predict we will still be in Iraq when Bush leaves office. It will be the next guy's (or girl's) duty to clean that shit up. History will note that Bush was stupid, and that he persisted in this stupidity until the bitter end. Somehow, this persistence is reckoned as virtue. So be it.

Tuesday, January 23, 2007

Foal photos (taken January the 20th)






Just a selection of photos taken a couple of days ago of the babies. Still no action from Maude *sigh*. Today it was another scorcher so Amy and I went down to the river for a lovely swim - It was SO refreshing!!

Tank Johnson Will Join the Bears in Miami

The Chicago Tribune just reported tonight that Terry "Tank" Johnson, defensive lineman for the SuperBowl bound Chicago Bears, has been cleared to travel to Miami with no restrictions. Tank had been under house arrest after police raided his home in the northern suburb of Gurnee, allegedly finding a number of handguns and assault rifles, for which Tank was not licensed (there are other reports that Tank was licensed in Arizona, but not in Illinois). Cook County prosecutors found this latest offense to be in violation of his probation that he received in November 2005 for an unlawful gun possession charge.

Johnson had been under house arrest, but allowed to go to work (Lake Forest for practice; Soldier Field for games), and would need special permission to leave the state, which he just received.

In other news, Johnson has not been charged in connection with the shooting death of his bodyguard/friend Willie Posey on December 16 while Johnson was with him at the River North club, Ice Bar.

As a Bears fan, I know that Tank is an essential part of the Bears D, especially in light of the losses of Mike Brown and Tommie Harris to injuries. As a lawyer, Tank seems to have complied with the conditions of his house arrest, but I hope that justice was blind here.

My main concern is that there are "no restrictions" on Tank while in Miami. Certainly there would seem to be a case here to restrict Tank to practice and the game as he is restricted while in Chicago. Any criminal lawyers with some insight here?

Beckham just one of many advances

Following up on my post of January 18, click here for a break-down of some of the reasons why the future is bright for the MLS. Beckham was just one of many significant developments.

Monday, January 22, 2007

Redneck

There is a saying that goes like this. If you try to please everybody, nobody will like it. I know how true that is.

I am a white boy from the South. I speak with a drawl. I like NASCAR, country music, pork rinds, and grits. This automatically means I am some kind of inbred hick racist Klan motherfucker. No matter what I do I am pigeonholed with this stereotype. I have tried most of my life to try and overcome the prejudice against me. But I have come to one inescapable conclusion. FUCK IT.

I don't care how I am perceived anymore. If people want to believe certain things about me, there's not much I can do about it. I just know one thing. I'm not spending the rest of my life going around apologizing for being who I am.

My boss has Charlie Daniels' "Simple Man" as the ringtone that identifies me as the caller. I should take that as a sign of something. I am college educated. I read books. I listen to NPR. I am articulate and write well. But no matter what, I will always be a redneck. There's no point in fighting it.

I refuse to be ashamed of who I am. I'm not a racist, but I get called one anyway. All I can say is sorry 'bout it. That's their ignorance not mine.

I'm back with my confederate flag, and I hope it pisses off a lot of people. I'm past the point of giving a fuck. If you don't like it, you can kiss my rebel dick.

Reilly's new bridle

Reilly's new bridle arrived in today's post so this evening I whipped out and tried it on for size. Bless him he just stood in the paddock whilst I faffed around adjusting it and plaiting his forelock (for effect) and then when I got the camera out he tried his hardest to fall asleep!!! It will do nicely I think. I am getting quite excited about the show now, Reilly's continuing super behaviour helps.

Spectators Revisited

Well, I couldn't do it. I couldn't make it through the weekend without watching football. I had to see if Manning could get the gorilla off of his back. I try not to be envious of other people, but dammit, Tom Brady's life is just a little too perfect. The fucker doesn't need another Super Bowl ring.

I like watching football and cars going around in a circle. Despite my resolution from last week to not waste my life on watching these pursuits, I've decided to quit guilt tripping myself and enjoy the things. That Patriots-Colts game was damn enjoyable. It was one of the best I've ever watched.

Andre Waters and Concussion Liability for NFL Teams

Last week, the New York Times featured a troubling story about an expert's conclusion that former NFL Player Andre Waters' suicide may have been the result, at least in part, of concussions sustained during his football career.

While I hate to sound like a league defender, I wish the information on which this story was based had come from different sources...

The expert cited in the story is Bennet Omalu. According to the Times,
The neuropathologist, Dr. Bennet Omalu of the University of Pittsburgh, [is] a leading expert in forensic pathology.
This may be a bit of an overstatement, and is clearly misleading in terms of Dr. Omalu's institutional affiliation. According to Pitt's web-site, Omalu's "University Relationship" is that of "Volunteer (with ER)." That is to say, he's not a professor or university employee, as far as I can tell. Dr. Omalu is a "Forensic Expert" for a "Medico-Legal Consulting and Autoposy Service Company" called Neo-Forenxis; according to another Pitt web site, he is an Allegheny County Coroner and a former (2000-2002) clincial fellow. Moreover, Dr. Omalu may have been predisposed to reach the conclusion he did, given his previous conclusions in similar cases. Clearly, the doc has a theory and here was a chance to push it.

The Times story also indicates that Dr. Omalu's investigation was initiated after prodding by former Harvard football player and professional wrestler Chris Nowinski, author of a book called Head Games: Football's Concussion Crisis, as well as this myspace page and this fan page.

This is not to say that Dr. Omalu's conclusions are not based on some interesting developing science linking brain injury and depression. But it looks to me like this is a quasi-professional expert witness whose credentials have been a bit over-hyped by the Times. Moreover, while Nowinski may mean well, he does have a bit of a financial interest (in selling books) that would be served by both this NYT story and allegations that a former player's suicide (already a scandalous matter) resulted from, guess what, the very thing he's writing about. It's also fair to say that the credibility of a professional wrestler is, well, not exactly unimpeachable.

In any event, should Dr. Omalu's concerns be substantiated, the legal issues posed will be intriguing. What liability, if any, would attach to a team, or a team physician, for negligence or other tortious conduct leading to suicide? At one point in time, suicide was considered to be a superseding intervening act that severed the chain of proximate causation between "wrongful act" and "unfortunate result". The modern trend, however, allows suits against those who increase the risk of suicide, fail to prevent suicide or detect suicidal tendencies where suicide was a foreseeable outcome. Typically, these defendants are manufacturers of brain-altering medication or psychologists, psychiatrists and other therapists.

But why not a team, a league, or a team physician? If new science demonstrates a connection betweend depression and mild brain trauma, a team physician (now typically labeled an "independent contractor" to insulate the team from liability) who clears the player to return to play might bear some liability exposure. As one leading scholar explains:
Medical clearance recommendations should be within the bounds of accepted or reasonable sports medicine practice and governed by the team physician's paramount obligation to protect the competitive athlete from medically unreasonable risks of harm. To avoid potential legal liability, the team physician should refuse clearance of an athlete if she believes there is a significant medical risk of harm from participation, irrespective of the team's need for the player or the player's personal motivations.
Matthew J. Mitten, Emerging Legal Issues in Sports Medicine, 76 ST. JOHN'S LAW REVIEW 5 (Winter 2002).

Is it fair to say that Waters would be barred by assumption of risk or other "limited duty" or "no duty" rules applicable in professional sports? As one psychology blogger notes,
Waters seemed to recognize the risks of his position. “Playing strong safety in the NFL, it’s either kill or be killed like ‘Survivor,’” Waters said.
For the plaintiff lawyer's perspective, check out the Brain Injury Blog. HT to Toledo psychology professor and law student John McSweeney for pointing me in this direction.

Greatest Hits

I've been reading over the blog to cull my "greatest hits." A few things stand out:

1. I'm very repetitive.

2. I'm obsessed over cigarette taxes.

3. I need to get laid.

From all of the blather, I have culled a handful of posts that I think are worth reading again, and I've put them in the sidebar for your enjoyment.

A New Dawn in F1

Formula 1 (F1) seems to have at long last found its feet in America. Not only has Indianapolis regained its place as a legendary F1 venue but Scott Speed scored a first valuable point for the Scuderia Toro Rosso - incidentally, Scott's performance may not be enough to secure him a driving seat for 2007. Meanwhile, the European Commission (Commission) has finally put an end to its investigation into the Formula One and other four-wheel motor sports. And it may change the face of the sport as we know it. In the late 90's, the Commission's attention was drawn to the regulatory and anti-trust issues regarding the governance of F1, centered on the role of the FIA.
The days of F1 as the playground of Bernie Ecclestone and the FIA may not be over just yet, but the repercussions of this long investigation represent a new dawn. We have to go back to 1994 to understand the sort of stranglehold Mr. Ecclestone had on the sport. Back then, F1 was directly run by the FIA (the sport's regulating body), FOA (which held the commercial rights to F1) and ISC (which had acquired F1's broadcasting rights for subsequent resale). The link between all three entities was Bernie Ecclestone, whether as a director, owner or founder. Throughout the whole process, the Commission's concerns revolved around four main issues:
(i) The need to guarantee that the regulating functions fall upon a body with no commercial stake in the sport, in order to avoid any conflict of interest between the ones who partake in it and the ones who lay down the rules;
(ii) The need to ensure that the agreements entered into by FIA, FOA and the teams, circuit owners and TV networks do not limit the ability of other undertakings to organize, participate and broadcast F1 events. Moreover, the Commission displayed concerns over the restrictive effects of such agreements on the inception and existence of rivaling competitions, which were not allowed to race in F1 circuits, to enter F1 teams or to be broadcast on channels that covered F1 races;
(iii) The need to ensure that FIA shares the Intellectual and Industrial Property rights arising from the competition with teams and other intervening parties; and
(iv) The need to limit exclusive broadcasting to 5 or 3 years, as opposed to the 10 years which were generally agreed upon.
While the inquiry lasted, SLEC (owned by the Ecclestone family along with three banks) became F1's major player. The Commission is now satisfied that FIA currently limits its capacity to regulatory functions which will allow the creation of potential inter and intra-brand competition between Formula One and similar races and series. Furthermore (...) broadcasters in the various countries will be invited to tender for the TV rights on the expiry of the current (and any future) contracts. (...) The parties have also reduced the length of free to air broadcasting contracts to a maximum three years (except for contracts where specific investments justify a length of up to five years).
F1, albeit a global sport, is structured in a very "European way". Utility purposes are still coupled with profitability goals, which is odd in a sport that is not seen as playing a relevant cultural or social role - if any sport should be "downplayed" as simple business, F1 is it. Is the separation of regulatory and commercial interests truly needed? Or should we just accept that the two go hand in hand? The professional leagues in America are the ultimate examples of this. There is no better motivation than the suggestion of money. But in Europe other considerations come to play with unwarranted strength. So it won't be a surprise if less and less European circuits feature in the list of F1 races in the future. It seems we are the only ones who snub the driving force behind all things in modern days...

Today was foal hoof trimming day

Today Finn had his first hoof trim and Meg had her third. Both were a little fidgety with their front feet but excellent with their backs and pretty damned good all round. Took a wee pic of Meg having her off hind rasped - she is such a poser!

Sunday, January 21, 2007

NBA Activates its "Security Forces" to Prohibit Players from Frequenting Nightclubs

According to Mitch Lawrence of the New York Daily News, the NBA has "ordered its security forces" to come up with a list of nightclubs that should be made off-limits to players:
In the wake of the Broncos' Darrent Williams' murder in Denver, and other shootings in that city involving pro athletes, the NBA this past week ordered its security forces in all 29 cities to come up with a list of clubs and other night spots that should be made off-limits to players. Once the clubs are identified, with the help of local law enforcement, the league will send a directive to teams mandating that players avoid those spots or be subject to a substantial fine.
Setting aside, for a moment, the dubious merits of this policy, it does not appear to enjoy the benefits of collective bargaining. The closest textual support it may obtain from the NBA-NPA collective bargaining agreement derives from Article VI, Section 11, which delineates "league investigations" into player behavior:
Players are required to cooperate with investigations of alleged player misconduct conducted by the NBA. Failure to so cooperate, in the absence of a reasonable apprehension of criminal prosecution, will subject the player to reasonable fines and/or suspensions imposed by the NBA.
I suppose the NBA could characterize the policy as reflecting a broader and extended league investigation into player behavior, and that such an investigation has been contemplated by the respective parties to the CBA. There are several other sections from Article VI that might also lend the NBA textual support, but none appear sufficiently relevant. And without collectively-bargained support, it, like any non-collectively-bargained working condition, would be subject to antitrust review--and as Joe Rosen and I detail in our Case Western Reserve Law Review article, antitrust law is not especially tolerant of unilaterally-imposed league prohibitions on working conditions, particularly given the existence of the labor exemption, which is premised on the belief that employees are better off negotiating together than individually, particularly when negotiating wages, hours, and working conditions. Also expect a possible objection from NBPA head Billy Hunter, who might, on behalf of the NBPA, file an unfair labor practice charge with the NLRB, particularly if this nightclub prohibition--which, according to Lawrence, will enjoy police assistance--constitutes "spying on employees."

As to the merits of the policy, I suspect it will strike most players, fans, and media as patently paternalistic, even more so than the dress code (and this is a league, after-all, featuring a commissioner who calls NBA players "these kids"). While the NBA understandably has a vested interest in seeing its players represent their teams and league in a law-abiding way--and to do so at all times--going to a night club isn't against the law (although players obviously have to be 21 or older to drink there). It's an activity that some of the players, who are grown men, like to do, just like other adults like to do.

And if the NBA's sole concern is one based on a safety analysis of players at nightclubs, then shouldn't the league also prohibit them from drinking alcohol or eating fattening foods? How about if those same players travel back home to where they grew up--some of them are from some pretty bad neighborhoods, should those neighborhoods be put off-limits, too?

Update: Skip Oliva over at the Voluntary Trade Blog checks in with a thoughtful response to this post:
Even if Stern’s idea has merit, why does it have to be imposed by the league office on all 29 teams? It’s better to leave this type of player conduct issue to the individual clubs. Stern’s centralism actually makes it more difficult for individual clubs–particularly coaches, who have far less power on most teams than star players–to maintain their own discipline. Paternalism reduces the incentive for individuals to take greater responsibility for their own actions.

McCann notes how arbitrary the nightclub prohibition is; will players also be prevented from drinking or returning home to “bad neighborhoods” in the name of protecting the league’s image? Stern will certainly grab as much authority as he can before his media allies turn on him or, more likely, the lawyers get involved.

Update 2: David Wilson over at Sports On My Mind has a substantive analysis of this topic.

Upcoming UVA Law Symposium on Sports and Entertainment Law

On Friday, February 2, the Virginia Sports and Entertainment Law Journal and Virgina Continuing Legal Education will be hosting the first ever Virginia Sports and Entertainment Law Symposium. I am excited to be a part of it, as it will feature an engaging mix of practical and theoretical topics, as well as a dynamic array of speakers. The symposium will be held at the University of Virginia School of Law in Charlottesville. Here is the schedule:

FRIDAY, FEBRUARY 2

8:00 Registration

8:30 Introductory Remarks

8:45 Breaking into Sports and Entertainment Law: A Practical Primer
A panel of experienced practitioners will discuss the strategies commonly used to competently begin representation of sports and entertainment clients. The panel will provide guidance in how to gain the substantive expertise in the economics, business models, and basic legal issues needed to engage potential clients. This panel is for beginning practitioners but can be a refresher for experienced sports and entertainment lawyers as well.
Kirk T. Schroder
Other panelists to be determined

9:45 Negotiating Sports and Entertainment Property Rights in the Digital Age
The channels of delivery for sports and entertainment content are rapidly expanding with the advent of new digital media and the convergence of traditional delivery methods. A lawyer negotiating property rights fees must assess the value of and protections for the product, as well as regulatory concerns in each instance of discrete transfer of rights. With the advent of visual or audio placement to cell phones, YouTube and similar web sites, video, iPODs, socially networking web sites, video games, satellite radio, and scores more of varied media, the lawyer/agent’s role has expanded exponentially. In this session the panel will provide an essential analysis of how to deal with the ever-changing landscape of this topic.
Moderator: Glen Robinson
Panelists: George Kliavkoff, Byron Marchant, Frank Golding, Philip Hochberg

11:00 Break

11:15 The Fundamentals of Representation in Film and Television Productions
In order to meet the demand from many new media of delivery of entertainment content, there has been a major increase in production activity throughout the world. Many states and foreign countries are actively competing to attract productions to their areas. This panel will focus on identifying the primary roles and responsibilities of the attorney in assisting his or her client — whether the client is an actor, director, writer, or studio production crew — and instructing the attorney on the basic elements of movie and television production. Topics will include a review of typical issues involved in the development, financing, production, and distribution of film and television content.
Moderator: Kirk T. Schroder
Panelists: Bennett Fidlow, Don Mandrik, Endi Piper, Michael Steger

12:30 Lunch Recess

1:30 The Fundamentals of Representation in the Music and Sound Recording Industries
Technology is far outpacing the legal and business issues in today’s music and sound recording industries. More and more people each day are receiving music and sound entertainment through a variety of innovative means of distribution to the consumer. This panel will discuss the basic elements involved in representing recording artists, musicians, and music companies, and contrast those elements with the various legal and business challenges facing the music industry as a result of certain new technologies.
Moderator: Kirk T. Schroder
Panelists: Jeff Cohen, Jamerah Dudley, Philip Goodpasture, Elva Holland

1:30 Too Young or Too Old to Play? The Legal Issues Surrounding Age Limitations in Professional Sports
Most professional sports impose age and/or educational limits on their incoming athletes. Not only do these criteria change on a regular basis, but they continue to be challenged in the courts. Constitutional, antitrust, and labor issues dominate this ongoing controversy. The members of this esteemed panel have been at the forefront of these issues, and their commentary will be candid, insightful, and of immense value in planning for the future.
Moderator: Michael McCann
Panelists: Philip Evans, J. Gordon Hylton, Rick Karcher, Kristi Schoepfer

2:45 Break

3:00 The Basics of Representing Professional Athletes
This superb panel will discuss the key elements to consider when representing professional athletes (or athletes hoping to become professional). The panel will discuss playing and marketing contract negotiations in individual and team sports, client fee arrangements, breach of contract (by the player or the team), tortious interference from other prospective lawyers or agents, labor issues, and ethical issues that face any attorney in this field.
Moderator: Kimberly Haynes
Panelists: Donald Dell, Kimberly Holland, Ryan Rodenberg, Larry Woodward

FACULTY

Jeff Cohen, Partner, Miller, White, Zelano & Branigan
Donald Dell (UVA Law, 1964), Senior Vice President, SFX Tennis; Founder of ProServ; Co-Founder, Association of Tennis Professionals; Legendary figure in sports marketing and representation
Jamerah Dudley, Co-Owner, National Artists League
Philip Evans (UVA Law, 1988), President, National Basketball Development League (NBDL)
Bennett Fidlow, Partner, Schroder Fidlow, PLC
Frank Golding (UVA Law, 1993), Assistant General Counsel, ESPN
Philip Goodpasture (UVA Law, 1985), Partner, Williams Mullen
Kimberly Haynes, Kim Haynes Law
J. Gordon Hylton (UVA Law, 1977), Professor, Marquette University Law School
Philip Hochberg, Law Offices of Philip R. Hochberg
Elva Holland (UVA Law, 1982), Video Producer and Entertainment Lawyer
Kimberly Holland, CEP, Icon Management
Rick Karcher, Professor, Florida Coastal School of Law
George Kliavkoff (UVA Law, 1988), Chief Digital Officer, NBC Universal
Don Mandrik, Associate, Arnall Golden Gregory
Byron Marchant (UVA Law, 1987), Executive Vice President and General Counsel, BET
Michael McCann (UVA Law, 2002), Professor, Mississippi College School of Law
Endi Piper (UVA Law, 1998), Director of Business and Legal Affairs, TV One, LLC
Michael Steger (UVA Law, 1993), Law Offices of Michael Steger
Glen Robinson, Professor, University of Virginia School of Law
Ryan Rodenberg, Associate General Counsel, Octagon
Kristi Schoepfer, Professor, Winthrop University
Kirk T. Schroder, Partner, Schroder Fidlow, PLC
Larry Woodward, Partner, Shuttleworth, Ruloff, Giordano & Swain

CO-DIRECTORS: Carnell L. Cherry, Robby Forbes, Kirk T. Schroder, and Sarah Wigfall

Special thanks to Robby Forbes and Jenny Luetkemeyer, Editor-in-Chief and Managing Editor, respectively, of the Virginia Sports and Entertainment Law Journal, for their excellent organization and planning of this event.

For more information on the Symposium, including prices on attending, securing lodging, and obtaining CLE credit, please lick here.

Saturday, January 20, 2007

I went Welsh Pony showing!




A few weeks ago I offered to help a friend show her mare and foal at a local Welsh show. Today was the day. What fun we had!!!! Above are a selection of photos that Nick took. The Mare (Korroway Silk and Silver) won Reserve Champ for her section and her foal, Woodrow Tempest, won her class. Welsh ponies are just too damned cute! I think next year I might just have to take Maxi down to the show - He'll have a ball showing off!!

All the photos Nick took can be seen HERE.

The babies are growing up

On Friday Nick and I went with our neighbour Jan to see Holden under saddle at the breaker's farm. It was really exciting for me as although I have seen video and photos of Hamish progeny under saddle, this was the first time I had seem one 'live'. Boy was I in for a treat!

I had been told that there was another gelding there also by Hamish and had worked out that it was Morocco/Rocky. Rocky was bred by an outside breeder who also sent her mare back to us to foal. He was born in early December 2003 and is out of a mare by Racing is Fun.

When we got to the farm I spied a very pretty grey horse in the arena with Craig (I think Craig is Gavin's working pupil). Sure enough it was Rocky so I was able to watch them both being worked!

Here are a selection of photos of the boys.







Friday, January 19, 2007

Gary Roberts named Dean of Indiana University School of Law

Congratulations to Gary Roberts, Deputy Dean of Tulane Law School and Director of the Tulane Sports Law Program, on being named Dean of Indiana University School of Law in Indianapolis. Gary, who co-authors a leading sports law case book with Harvard Law School professor Paul Weiler, has extensive experience in sports law, including serving as President of the Sports Lawyers Association from 1995 to 1997. It appears that he will continue to engage in sports law, as his new school's Executive Vice Chancellor and Dean of the Faculties, Uday Sukhatme, says, "Sports law will continue to be a focus of Roberts' scholarly work at IUPUI, and this is most appropriate given the strong sports presence in Indianapolis."

Good luck to Gary on what is undoubtedly an exciting new experience. Also good luck to Gabe Feldman, who will be guest blogging here later this month and who will now be directing Tulane's excellent Sports Law Program.

Reilly's exciting float loading adventure pt III (video)




Unfortunately the batteries went flat so this is not as good as I would have liked but he is being pretty good. No backing off footage, thanks to batteries!



Sports Over Law: Motion to Delay Trial to Accommodate Saints Fans

If you are a lawyer and a sports fan, you can certainly understand the following motion by defense counsel in Fay Thibodeaux Danos et al., v. Avondale Industries, Inc. et al., a case before a civil district court in Louisiana:
[The defendants] move to continue trial of this matter, which is currently scheduled to begin on January 22, 2007, by two days. Thus Defendants request that trial begin on January 24, 2007.

As this Court knows, the New Orleans Saints will play in the National Football Conference Championship game -- the first such game in the franchise's forty-year history -- against the Chicago Bears in Chicago, Illinois on January 21, 2007, at 2:30 p.m. In order to accommodate all fans, including the majority of the jury pool, the parties involved in this case, and the counsel involved in this case, and in order to ensure that a full jury pool appears on the first day of trial, Defendants request that the beginning of the trial be pushed back two days to January 24, 2007.

Counsel for the remaining defendants in this matter have been contacted, and none objects to this motion nor its requested relief. Numerous attempts have been made to contact Plaintiff's counsel by telephone and by e-mail, with no response from Plaintiffs' counsel.
Several attorneys at the New Orleans law firm Sher, Garner, Cahill, Richter, Klein & Hilbert, LL.C., authored the motion. Clearly, that's a firm where time devoted to sports watching (and perhaps also "celebrating" while doing so) is valued. Tough to complain about that.

Thursday, January 18, 2007

Living the Dream

I know the whole Beckham affair is "old news" by now. But what better topic is there for an European to write on an American Sports Law blog than the David Beckham $250M move from Real Madrid to the Los Angeles Galaxy? I think the issue is interesting for a number of reasons.
First and foremost, after the likes of Pelé, Beckenbauer and our very own Eusébio were lured to the NASL in the 70's, the MLS has finally made itself available to the games' truly big names. Although overexpansion is a well documented cause for the failure of the NASL, the hiring of older, high profile foreign players, has been highlighted as the defining motive for the fiasco. The effort to bring in foreign "stars" placed an excessive strain on the league's finances. And for all their stardom, these players failed to elevate the game to levels of financial sustainability in the United States. After the implementation of the Designated Player Rule last November, it was only a matter of time before something like this happened. Future prospects for the game are buoyant with increasing media coverage and greater deals being signed and a city like LA will make the business qualities of the Beckhams (Posh included) all the more attractive. At 32, Becks still has a couple of years left in him. And considering he has never played the game as well as he sells it, the Galaxy franchise is not being conned. It is actually getting excellent value for its money. As for the greater good of the League, one has to admit that with a sound college system feeding the main division, and on the basis of the consistent showings by the US National Team, the time is right for the inception of the Designated Player Rule. If the game is to be taken to the next level, Becks and Co. are just the ones to do it.
It will also be interesting to see how other MLS major stars react to Becks' arrival. On $900,000 per year, Landon Donovan, one of the most recognizable faces in the LA soccer scene, is certain to undertake a reassessment of his career. Sportsmen tend to relate their salary with their on-field performance and their potential to deliver the goods, past statistics, etc. Marketability is not nearly as rated by players as it is by managers when it comes to salary assessment. Beckham could be just as good as Pelé - which he is not - and the salary gap would still be virtually indefensible from a player's perspective. There is definite potential for the clash of egos in future editions of the League.
Finally, the spotlight once again falls upon the exceptions to salary cap mechanisms which have featured prominently in past MLB, NBA, NFL and NHL negotiations. As a matter of principle, an exception undermines the goal of competitive balance which is purportedly pursued by a salary cap system, because it allows richer clubs the chance to exert their financial domination by acquiring the services of the most talented players. However, smart management and clever allocation of central contracts and high levels of revenue sharing should control the damage potentially arising from this specific exception. On this matter, the ability to swap a designated player for draft picks could be the catalyst that perpetuates differences between high revenue and low revenue teams. Let's see if restraining Designated Players to two per team will be enough.
One final note: Europeans would do well to look at the Beckham Exception (could this be the new name for the Designated Player Rule...?). Salary Cap systems need to be flexible in order to accommodate labor and anti-trust considerations. Revenue sharing is the underlying element that facilitates cap systems in the American professional leagues. Revenue Sharing in Europe has only now started to come to life and is still incipient. The "Arnaut Report" (named after a Portuguese former Minister) insists that caps should be put in place in European Leagues, in order to curb the financial excesses of most of our clubs. Many arguments can be put forth here, but mine is one of principle: without effective revenue sharing, caps do not work and can even exacerbate the differences between high and low revenue clubs. Are we, Europeans, getting ahead of ourselves?

Sports Judge for your Fantasy Sports Disputes

Anyone who plays fantasy sports knows that "disputes" can sometimes emerge within leagues. You probably what I'm talking about. How about a dubious late-season trade that is so lopsided that it must entail some "off-field" payment, but your commissioner, for whatever reason, won't intercede? Or how about some strange scoring formulas? Or some sketchy roster modifications? Worse yet, you often have nowhere to go if your commissioner doesn't help.

Well now you have an recourse: you can hire Marc Edelman to be your sports judge. Marc, a lawyer and avid fantasy sports player, has started Sports Judge, a service designed to provide "an impartial and effective method for resolving disputes with other teams." Basically, players in dispute with one another or with their commissioner can pay $15 (or $100 for an entire season) and Marc will study the dispute and issue an opinion from the bench of the "Court of Fantasy Football."

Marc has several sample opinions posted, including Hermann's Head v. Commissioner of the Yale Football League (Index No. 00257, Sept. 1, 2006). It is truly a great read, involving a claim "seeking to prevent the Commissioner of Yale Football League from changing the league's active roster size from eight players to nine players by adding a third active running back." Following a thoughtful and well-reasoned opinion, Judge Edelman concludes:
While there are certainly virtues to maintaining a large size roster in fantasy football, it would be neither fair nor reasonable to change the league's roster size after the draft is conducted. If the Commissioner had wanted a nine-player roster, he should have suggested this change before the draft was held -- possibly before the draft order was selected. Not only does the possibility exist that the Commissioner would not have suggested this rule change had the computer granted his team a higher pick, but the possibility also exists that a team such as Hermann's Head might have drafted differently had the Commissioner's proposed rule change occurred prior to the draft. Therefore, for the aforementioned reasons, I rule in favor of Hermann's Head. The Yale Football League roster size shall remain unchanged at eight active players (and just two active running backs) for the 2006 season.
There's some more great stuff on Sports Judge.

Luís Cassiano Neves: Guest Blogger

We are thrilled to have Luís Cassiano Neves guest blog. Luís heads the Sports Law Practice Group at Miranda, Correia, Amendoeira & Associados, a Portuguese law firm based in Lisbon. He holds a law degree from Lisbon University Law School and an LL.M. in Sports Law from the Nottingham Law School. Luís also founded Lex Sportiva, a terrific blog devoted to international sports law. We look forward to his posts.