Saturday, June 30, 2007

Disposable Pleasures, or How to Get Over a Stupid Bitch

As many of you know, I got dumped last week. My girlfriend waited until I was out of town to drop the fucking bomb on me. Now, it is Saturday night. I've been in the bars drinking and chatting up the chicks. I had an opportunity with a 33-year-old who was separated from her husband for the last year. The fucker had been cheating on her. She found the receipts for the hotel rooms. Depressing shit. We spent the evening sharing stories over drinks.

My story does not compare to hers. I'm drinking right now, so I'm being very confessional. Way more confessional than if I was sober. I write. That's how I deal with shit. And writers drink. I've gone from beer to hard liquor now. Fuck it.

This is how you get over getting dumped. First, you cuss the bitch out. You tell her to go fuck herself. Then, you get good and drunk. Finally, you find some other chick, and you grudgefuck the living shit out of her.

Why did I get dumped? Let's just be straight and honest on this shit. It isn't because I cheated on her or because I'm some heinous bastard. I was just the flavor of the month. I was a fling. I was the object of infatuation for some bitch that is too young and too stupid to know any better. Needless to say, I hate her fucking guts.

I realize that I am acting a bit womanly about this shit. As someone told me, I needed to "man up" and move on. Fuck that. I can be stoic about a lot of shit like getting fired or having my car stolen. But not this shit.

I fell for this chick. Like a chump. It is a miracle considering how cynical I am. I'm so fucking pissed about this shit that I don't think I care to ever have another relationship again. I've already swore off marriage. Why not swear off girlfriends? Why not stick to the one night stand?

I've never been dumped before. I said she would be the first, and I was right. I always thought I was the problem in all my failed relationships. I was always the one to pull the plug. I figured if I stuck it out it would be different this time. Instead, it was the shortest relationship I have ever been in. It would have been shorter, but the bitch waited until I was out of town to pull the trigger on me.

The alcohol and the writing are working now. I feel a bit of catharsis now as I get this shit out. I tried to make up with her. I blamed myself. But I'm not to blame. She did her last boyfriend the same way she did me. I figure she is either back with him or wanted to get with some new guy. The chick is impestuous. Whatever she feels is how she lives. This will inevitably bring her to a bad end.

I sincerely hope she finds nothing but grief and heartbreak the rest of her life. I hope her next boyfriend does her like she done me. I want her to hurt like I hurt. I didn't ask her out. She asked me out. She started with me. She insisted that I trust her and open my heart to her. She told me she was different from all the otrher bitches I had ever been with. She suckered me. I fell for her. What a fucking idiotic move that was. Then, she woke up one day, didn't "feel" the love anymore, and tossed me like garbage.

This is the way women are. They are fickle. They wonder why men can't commit. Break a promise to a woman, and they will act as if the world has just ended. Yet, they never keep their promises. They respond not to logic or a code of honor but pure volatile emotion.

I wonder what the right strategy with women is, and I think James Bond had it right. Women are disposable pleasures, and nothing more. Treat them as anything more special than say a soda straw or a condom, and they will lose all respect for you. The surest way to make a woman fall out of love with you is to love them back. Treat them like the shit that they are, and they will keep coming back for more. I know because the lady in the bar plans on going back to her cheating husband. It pays to be a scoundrel.

Women are stupid. This is the bottom line. It is in their nature to be fickle, emotional, and without honor or virtue. Therefore, I have resolved to treat women as they deserve to be treated. My error lies in trying to be a straight up guy. No more. I do not believe in commitment or fidelity. A woman is a warm wet hole and nothing more. Fuckmeat. Decry my chauvinism if you will, but they are the ones playing the role given to them. They reward the evil and punish the good. I just report the facts.

It feels damn good to get this shit out and to tell it like it is. Plus, I am really plastered right now. There is no problem in this world that alcohol can't solve. Heh heh. . .

Fuck that bitch. She expects me to quietly acccept this shit. No fucking way. I loved her. Now, I hate her. This hatred will turn to indifference. Then, she will be forgotten as the worthless bitch that she is.

Off to sleep off this intoxication. Good night and good riddance.

Liberty and Economics

Cheering speech through not cheering

Since silence and non-participation are a means of expression, there will be an interesting free-speech event in Pittsburgh tonight.

A group called Fans for Change has organized a fan walkout for tonight's game between the Pirates and Washington Nationals at Pittsburgh's PNC Park. The protest consists of a pregame rally and petition drive on Federal Street, outside the park, from 5-7, then a mass walkout at the end of the third inning (fans either will leave or stand in the concourse through the end of the fourth inning). Fans also are being encouraged to wear green t-shirts, symbolizing money. Details here and here; an interview with one of the organizers is here. (H/T: Pittsburgh Sports and Mini Ponies and, as always, Deadspin).

Oriole fans staged a a similar walkout in Baltimore last year. And Lions fans have been doing cartwheels for two years calling on the team to fire GM Matt Millen. Of course, the on-field performance of both teams suggests that this form of fan expression does not work very well.

The Pirates have responded to the walkout by ordering the Pittsburgh broadcast team on FSN Pittsburgh not to discuss or show the walkout and the network has agreed; both the FSN and Nationals telecasts will go to commercial at the end of the third. All references to the walkout have been removed from the team message boards. This raises some interesting issues about both networks' commitment to informing the public. If something plainly newsworthy, important, and related to the game occurs, what is their obligation to cover it, even if it is negative or critical of the home team (with which FSN has a contract)? Striking the balance between covering "their team" and some degree of objectivity is an ongoing tension for all local-broadcast outlets. But suppose the walkout is extremely successful (say 15,000 people out of a crowd of 22,000 walk out) and a foul ball is hit into a deserted section of the stands--will FSN show that?

And might the Pirates try to take even stronger steps to cut the protest off? For example, the team could try to break up the pre-game rally in the name of "keeping the street free and clear for foot traffic"? The Pirates and MLB talked seriously about different steps to control what pedestrians can do on Federal Street, for traffic reasons, during the 2005 All-Star Game. The Cleveland Indians got in First-Amendment trouble for breaking up an anti-Chief Wahoo protest rally on the sidewalks outside Jacobs Field in 2000.

Alternatively, the Pirates might try to keep fans in their seats or in the seating area during the targeted protest time between the third and fourth innings--the Yankees have showed how to do that. Just keep the fans in their seats during the period that they want to leave as part of their collective message; they can leave immediately after the short break between innings is over. But since they want to leave at a set time, the delay effectively blunts the intended message. Consider, by comparison, that the Oriole-fan walkout was deliberately staged at 5:08 p.m.--in honor of Brooks Robinson (No. 5) and Cal Ripken Jr. (No. 8). But if the team could delay the departure by one minute, that part of the message gets lost to some degree. I doubt the Pirates will try this, but it gets more interesting as I think about it.

I may have more to say on this after the events play out.

Update:

The Parrot
has further information on how the media is going to play it. The other local broadcast outlets ( are considering using helicopters or tower-mounted camera. But The Parrot points out that these outlets have to walk a fine line themselves. While they do not have the same type of close relationship with the team that FSN Pittsburgh has, there might be some fear of the Pirates retaliating against an outlet that covered the story that the team does not want shown. And that is unfortunate. Because whatever reason the team's own broadcaster might have to downplay the negative, these other outlets are operating as true journalism operations and unquestionably have an obligation to inform the public and to be critical of the team.

Cheating Wife

This guy finds out his wife is cheating on him with the best man from his wedding.



This is why you should never get married.

Friday, June 29, 2007

Love is Bullshit Revisited

Love is bullshit. Folks, you have no idea how much I wish that wasn't true. But it is true.

A few months ago, I met someone who started to change my mind on this. I don't know why she liked me so much. But love is fickle. She stopped loving me about as abruptly as she started. I blamed her. Then, I blamed myself. But at the end of the day, love is bullshit.

I knew it would end this way. It happened exactly as I predicted it would. She met me one day and loved me. Then, she woke up one day and didn't. It was like turning on a faucet and then turning it back off.

The mistake I made was allowing myself to have feelings for her. This is why it hurts now. I should have dumped her the moment I started caring about her. I failed to follow my own advice, and now, I am paying for it.

I will never hurt you. What a lie. Why do I fall for this shit time and time again? Why can't I wake the fuck up?

I'm not blaming myself for the end of this relationship. That's all on her. I blame myself for letting myself believe in this shit for the umpteenth time. It is my own damn fault for being a sucker in the oldest con going.

I hate women. They are disposable pleasures and nothing more. I need to join my scoundrel brethren and use them and toss them like the garbage they are. That's how women have done me. Why not pay them back in kind?

I am judged for being hostile to marriage. I am condemned for my cynicism on all things on love. But I am right. I have never ceased being right. Love is just like religion. It is the belief in things we wish were true but simply aren't.

There is no contact between love and happiness. I have never found happiness in love. Love is antithetical to happiness. Happiness is the pleasure of a rational mind pursuing purposeful activity. Love is the product of natural urges to fuck and continue the species. Love is primitive and mindless. That's why people in love are such suckers.

Naturally, I got the "friend" thing and the "I love you, but I'm not in love with you" bullshit. I already wrote about this in my post on ambiguous terminology. All of this is Lifetime Channel bullshit, so women can cleanse their guilty consciences. They come out smelling like a rose while you are slime. Fuck that. Women are the slime.

I'm not doing this love shit anymore. I am done. I've always been happier after a relationship than during it. This will be no different. This chick began by reaming my ass over being unable to commit to marriage. Then, she dumped me right about the time she changed her hairstyle. That's how long she loved me. One hairstyle which was about three months. And women wonder why I can't commit.

When you fall out of love, it hurts. It turns to hatred and then nausea. Foolishly, you will grasp at any hope of salvaging the relationship like a drunk returning to an empty wine bottle hoping for one last sip. But there is nothing there. It is over with.

I have been a fucking chump, a goddamn fool. I really let myself down with this shit. Never again. I'm not listening to these foolish bitches ever again. I root for the players and the cheating husbands and the womanizers. They treat women the way they deserve to be treated. Disagree? Women still keep lining up to get fucked over. They love and respect these slimebags and put out for them like the wanton whores that they are. As they say, don't hate the player. Hate the game.

Love is a vain and empty pursuit. Women are liars. They are all the same. This chick was going to change my mind about love. She did. She made me more cynical and bitter than I was before. She snuffed out the last glowing ember of hope that I ever had on this shit. I will always hate her.


CLYDE CALDWELL, unknown

Thoughts on Last Night's NBA Draft

Like most NBA drafts, last night's made for great television (at least until things seemed to slow down dramatically with picks beginning in the 20s). There are excellent draft recaps today by Chad Ford, Bill Simmons, Marty Burns, and Charley Rosen. Jeff Clark and Henry Abbott also ran an excellent draft chat on ESPN, and its transcript is worth checking out.

To me, the most interesting development was the Milwaukee Bucks selecting Yi Jianlian at #6, even though Yi's agent, Dan Fegan, did everything he could prior to the draft to dissuade the Bucks from taking him. And that's because, according to the Associated Press, Yi "wanted to play in a city with a strong Asian influence . . . there are about 27.5 thousand people of Asian descent living in Milwaukee, population 605,000." Yi would have been selected by the Boston Celtics at #5 , but the team decided to trade the pick for Ray Allen. So will Yi demand a trade from the Bucks? According to Sun Qun, the editor of China's top basketball newspaper Pioneers, the answer is no and he managed to take a shot at American players in explaining why:
Yi probably will not say 'No' to the Bucks. He is not American. He respects the NBA very much.
In addition, there have been several excellent pieces over the last week that touch on how the law connects to the NBA draft, including Ted Miller's column in the Seattle Post Intelligencer on how the NBA's new age eligibility rule affected Spencer Hawes and the University of Washington in last night's draft (and my thanks to Ted for his kind words of my research and of Sports Law Blog), and Oscar Robinson's column in the New York Times on how the NCAA should revisit its eligibility rules on players who declare for the NBA draft.

Tuesday, June 26, 2007

Good Intentions

This was written on Saturday, but I relented on publishing it. My girlfriend dumped me today while I was out of town like the coward she is. So, here it is.

Thursday and Friday were good days all things considered. Today is Saturday, and it has been a bad day for me.

I do not know where to begin with this. So, here's a little quotation to set the mood:

I think I'm falling in love with you, Mr. Broadway! As scary as it may seem, I will never hurt you. You just have to trust me as much as I trust you.

The first time I read those words I knew they would turn out to be untrue. Women make sweeping statements like these, and they seem so grand and well-intentioned. You want to believe them. But experience tells you it will never be like that.

Women are without virtue. Aristotle said this. It is because women are without reason which is the essential component of virtue. Women are feelings and emotions and nothing more. Their words count for nothing because they will be forgotten as soon as their mood changes. Women are never satisfied. They are needy and confused and essentially stupid. Consequently, women can never be happy. These are points that Aristotle made, so get mad at him. I'm just agreeing with the cat.

I'm hurting right now. When I start quoting the Greeks, you can rest assured that I'm going through some shit. I don't get mad over stuff. I get a little pissed then I turn to reflection. This is how I cope.

I have allowed myself to care for a woman. This was a mistake. I cared for her because I wanted to believe a lie. What was this lie? This one is different.

They are not different. All women are the same. I even know what they will say when they plunge the dagger in your heart. "I never intended to hurt you." As soon as women start talking about intentions, that's when I know they are fixing to fuck me over.

Good intentions can never cover a bad act. The reality is that no one ever intends to do the shit they do. But it just happens that way, doesn't it? I laugh when a woman tells me she never intended to hurt me as if that will somehow make it better. It doesn't.

Words mean things. Women don't get that. I get castigated for being "marriage phobic," but that is because I actually believe in marriage. I just don't believe there is a woman on this planet worth marrying. They will cheat on you, take your money, and get every drop out of you in the divorce. Then, they will justify it all by talking about their "intentions."

What women don't understand is that an intention requires forethought and follow through. You actually have to say what you mean and mean what you say. This requires integrity and honesty. Women are without either. To be honest requires a belief in objective truth and to be consistent with that truth. Women are too emotional to do this.

End.

Needless to say, folks, my girlfriend stuck it to me today just like I knew she would. Women lie. That's all they know to do. Love is bullshit. Don't ever forget this. I'll have more on this when I get back home.

David Ortiz's War on Umpires

Over on The Situationist--which was recently named Best Social Psychology Blog--Jon Hanson and I have a piece entitled "What's Eating David Ortiz?" that you may find interesting.

Our piece offers a psychological explanation for why Red Sox designated hitter David Ortiz--described by some as the greatest clutch hitter in Red Sox history--has become so acrimonious in his relationship with umpires this season, a season in which Ortiz has played well, but has lacked the flair for the dramatic that has signified his Red Sox career.

We contend that his frequent questioning of calls relates to a particular set motivated attributions that leads him to explain his less heroic performance in a way that doesn't compromise the hero disposition that he’s been enjoying but still explains his cooling bat (even though, in truth, his cooling bat better reflects the statistical flukiness and fortuitous circumstances of his past clutch hitting).

We hope you check out our piece on Ortiz. You might also like our post, "The Magic of Jonathan Papelbon's Knuckle-Knock."

Monday, June 25, 2007

Congress to Investigate Pension and Disability Treatment of Retired NFL Players

Tomorrow at 1 p.m., the House Judiciary Subcommittee on Commercial and Administrative Law will conduct a hearing on the disability benefit application system offered to retired NFL players by the NFLPA. A number of ex-players have asserted that the NFLPA has ignored the needs of former players--the very players whose labor, arguably, built the league from which current players benefit. Former Dolphins tight end Jim Mandich, for instance, has called the NFLPA "greedy [jerks] that don't care of their own."

So how much do ex-players receive in their pension? According to Andrew Abramson in an excellent article in the Palm Beach Post, former players who retired before 1993 receive on average about $250 per month for every year they played in the NFL--meaning that a retired player with four years of NFL experience earns about $1,000 a month in his pension. Granted, the number varies depending on what age a player decided to take his pension, but even the higher-end monthly stipends are much lower than pensions for other major sports.

In another excellent article on this topic, CNN Money's Chris Isidore explores the disability portion of the retirement system. He notes that while 284 players received disability payments totaling $19 million last year, that only came to a modest average of $66,000 each--"hardly sufficient for some of the players facing severe and costly medical problems."

So how does a retired player seek disability benefits? Here's how:
Six trustees, who oversee the benefits process on the NFLPA retirement board, approve disability benefits. The trustees include three former players and three team owners.

If a player is denied benefits and a court of appeals is willing to hear his case, the Groom Law Group, which wrote the NFL's collective bargaining agreement and oversees legal matters for the NFLPA's retirement plan, serves as the retirement board's attorney.

Only 284 retired players currently receive disability benefits, according to Groom Law attorney Doug Ell, and there are an estimated 9,500 retired players overall.

More than 20 players who were denied benefits by the retirement board have had their cases heard in appeals court. The Groom Law Firm was successful in preventing all but one of those players from receiving benefits.

This subject has attracted more attention in light of recent findings concerning the long-term health problems of those who play in the NFL (see Geoffrey's post, Andre Waters and Concussion Liability, and articles by Alan Schwarz in the New York Times--Expert Ties Ex-Player's Suicide to Brain Damage & Dark Days Follow Hard-Hitting Career). Perhaps more than ever, an enhanced pension and disability system is essential. Along those lines, notes committee Chairwoman Linda Sanchez, "the NFL is a billion-dollar organization built on the backs of individuals who have, in many cases, sacrificed their mobility, suffered traumatic brain injury, or worse. I called this hearing to bring together representatives of the NFL, the players union, and retired players to have an open discussion on the fairness of the system to severely disabled retired players."

Among the alternative systems that will be discussed tomorrow is whether individual franchises should carry their own disability insurance for players. But that very idea was rejected in 1993, when the NFL bargained with players that in exchange for free agency, individual teams wouldn't be responsible for disability insurance. Other ideas to be examined will include setting aside an additional 1 percent of league revenue which, according to Isidore, would more than quadruple the amount that could be paid out to in injured and disabled former players, and a $5 per ticket surcharge, which would raise even more. The NFL and NFLPA--neither of which will have their leaders, Roger Goodell and Gene Upshaw, respectively, present at tomorrow's hearing--will likely argue that the system reflects the collective bargaining desires of the respective bargaining units and that it is not one that Congress should interfere with it.

The hearing, which will be webcast at this link, features the following witness list:
  • Dennis Curran - Senior Vice President and General Counsel, National Football League
  • Douglas W. Ell - Plan Counsel to the Bert Bell/Pete Rozelle NFL Players Retirement Plan (Groom Law Group)

It should be a fascinating hearing and I look forward to watching the webcast. For additional information, please contact Jonathan Godfrey, Communications Director of the Judiciary Committee.

Update: The written testimony of the speakers is available at this link (my thanks to the anonymous commentator who provided the link in the comments section).

Stop Snitchin’

“I’m major leagues, who’s catching because I’m pitchin,’ Jose Canseco just snitchin’ because he’s finished.” - Rick Ross “Everyday I’m Hustlin’”

Jason Giambi and George Mitchell’s agreement that Giambi will testify so long as he does not have to rat out his compatriots begs the question, when is it okay to report or not to report illegal or anti-social activities to interested authorities? Social norms within and beyond sports are in conflict here. Individual freedom, privacy, and loyalty suggest that one has no duty to tell, and perhaps has low moral character for telling. Protecting others, the rule of law, openness and honesty, suggest that one should or must cooperate with those authority figures charged with rooting out and punishing untoward, illicit or illegal behavior.

Ray Lewis was charged with murder because he wouldn’t drop a dime (quarter? phone card? text message?) on his buddy who killed someone in a scuffle. Initially, he was disparaged by the media for obstructing justice. But he was soon forgiven.

Carmelo Anthony was chastised for appearing in a low-budget video shot in his hometown of Baltimore entitled, Stop Snitchin’. Like young Vito Andolini in Godfather II, you mind your business in the ghetto. The Stop Snitchin video was marketed towards hiphoppers who buy underground mixtapes and videos on street corners in innercities. You will not find it in Borders. It was not marketed to children or even most adults, only to those who already believe in the “code” in the first place. Carmelo was disparaged, but ultimately forgiven.

Now Giambi refuses to sing. I predict Jason Giambi will be treated the same way. He’ll be disparaged and quickly forgiven. We feel we must do something to honor the rule of law and openness and honesty. But not too much, because it seems obvious that fraternal loyalty is the greater principle. Consider that, years ago, Jose Canseco told us all about how prevalent steroids were in the game. He snitched, loudly and proudly. And he will never be forgiven.

Sunday, June 24, 2007

Trailer Loading the Weanlings

The Dark Emotions

It has come to my attention recently that I am a really neurotic motherfucker. I'm in Woody Allen territory. It is usually a passing phase when bad shit happens to me, but I have noticed that I am predisposed to a certain level of negative thinking. Now, I'm not going to go Tony Robbins on you because that guy is full of shit. But I do want to deal with some common negative emotions and their antidotes.

FEAR
John Maynard Keynes once famously quipped that in the long run, we're all dead. I disagree with Keynes on a lot of stuff, but he got that one absolutely right.

The certainty of death makes fear very illogical. Worrying about things will not change them. In addition, if you're wondering if shit will happen, it will. Sooner or later, your luck runs out. It is unavoidable. So, live with it.

Death does not scare me. The pain preceding death causes me a certain amount of concern. But death itself is painless. It will be like the void before we were born. You have to exist to experience something, and death is non-existence.

My great fear is being unemployed, but I've already been through that enough to know a few things. Save your money and have faith in the market. There is no end to work, so there is always a job out there. If you don't have a job, then you're not looking hard enough to get one.

My other great fear is being incarcerated. I don't go around breaking laws, but I have read enough to know that you don't have to break the law to get locked up. Sometimes, all it takes is being the wrong color in the wrong neighborhood or not knowing every jot and tittle in the reams of government regulations that exist. But that's why I work against tyranny in my life and keep a clean conscience. I know right from wrong. I don't steal or hurt other people. If they take my freedom, all I can do is be free within myself. They can lock me up, but they can never shut me up. That's why this blog exists so that I can say the things I want to say.

I have a minor fear, and that is the fear of being cheated on by a girlfriend. Odds are it will happen and probably has happened. What can I say? All you can do is be faithful and dump the unfaithful. The fact is that there are always going to be people who you love and trust who will turn around and betray you. The bottom line is that you can't find happiness in other people. You have to find happiness inside of yourself.

HATRED
We hate those who have betrayed us, but there isn't much point in it. I think anger is a proper response when people fuck us over. But to dwell on it beyond a certain point is to give in to hatred which causes more harm than the initial transgression. The best thing to do is let that shit go. I've gotten pretty good at this thing. I never enact revenge upon those who have transgressed against me. Of course, that doesn't mean they'll be getting Christmas cards from me either. Most of the time, I simply forget about it and move on.

Another form of hatred I have never understood is collective hatred. I am thinking of racism or homophobia or what have you. Of course, I must admit to hating women as a class of beings. But this collective hatred is nonsensical. The fact is that there are scumbags and saints in any group you care to name. That is because people are individuals. Ignorant people can't deal with people on an individual basis because it requires more computational power than their feeble minds can muster. So, they simply decide to hate all black people or all Mexicans or what have you because it simplifies things.

For me, the big issue is sexism. The reality is that I want to class women as a group to better understand them and perhaps have sex with them as a result. Naturally, I am frustrated which leads to anger which leads to hatred. This is not good. The bottom line is that all women are different. This is what makes them so hard to figure out.

DEPRESSION
We all get sad from time to time. I get sad when someone I love dies or when a relationship ends or what have you. We wouldn't be human if we never experienced sadness from time to time. But depression is another story altogether.

I have struggled to try and define depression. Someone once said that depression was anger without enthusiasm. There may be some truth to that, but I think depression is a belief that happiness is impossible. But if you know one happy person, then you realize that depression makes no sense. And if you've ever been happy, then you know you can be happy again.

It gets tough to hang on sometime, but so far, I have seen the dawn cut through the gloom every single time. The best advice I can give for someone going through some dark times is to stay busy. As Bear Grylls pointed out on Man Vs. Wild, it is better to make wrong decisions than to make no decisions. Keep moving. It is when you give over to despondency that you die.

There you have it for the dark emotions. I don't know if it makes you feel better reading this shit, but it definitely makes me feel better to write it.

West Virginia University College of Law Symposium on Race and Labor in 21st Century Sports Law

On October 4th and 5th, the West Virginia University College of Law will host a symposium entitled "Reversing Field: Examining Issues of Commercialization, Race and Labor in 21st Century Sports Law.” I am honored to be speaking at this event, which is spearheaded by Sports Law Blog contributor and WVU law professor andre` douglas pond cummings and also includes blog contributors Joe Rosen and Andre Smith.

The symposium's sponsors--the WVU Law Sports and Entertainment Law Society, the Office of the President of WVU, and the WVU School of Physical Education--have assembled a terrific group of academics and practitioners to debate key issues related to the intersection of race and labor law in sports: commercialization of intercollegiate athletics, race issues in collegiate and professional sports, drug testing, gender equity, and economic weapons.

Speakers include:
  • Timothy Davis, member U.S. Anti-Doping Agency, Law Professor, Wake Forest University
  • Bobby Douglas, Former Olympic Wrestler, Wrestling Coach, Iowa State
  • Suzan Shown Harjo, advocate for Native American Rights, plaintiff in Mascot Debate case
  • Floyd Keith, Executive Director, Black Coaches Association
  • Gene Orza, Chief Operating Officer, MLB Players Association
  • Joe Rosen, Sports Agent, Orpheus Sports and Entertainment
  • Kenneth Shropshire, Law Professor, University of Pennsylvania, President, Sports Lawyers Association
  • Andre Smith, Law Professor, Florida International University

It should be a terrific event and is open to the public. For additional information, please contact Stacey Evans, who is President of the WVU Sports and Entertainment Law Society.

Judges as Umpires, Redux

On Slate, Walter Dellinger (former Acting Solicitor General, con law professor, and appellate lawyer) offers his "Five-Minute Crash Course in Constitutional Law" for non-lawyers.

He gives the best rebuttal I yet have seen to the "judges should be umpires" tripe:
Senators especially like it when a nominee says a judge's role is just to be an "umpire." But broad constitutional phrases are different from sports rules, so a judge would be like an umpire only if the game—instead of having a strike zone and a set number of balls, strikes, and outs—provided instead that "each batter shall have a fair chance to hit the ball" and "each team shall have a reasonably equal opportunity to score runs." Key language of the Constitution is that broad, meaning that men and women appointed to the bench must necessarily exercise judgment. Which is, of course, why they are called judges, and not umpires.
Wish I had said it exactly that way.

DVD-Smokin' Aces


About the only good thing I can say about this flick is that Alicia Keys is smoking hot in it. Other than that, this movie fails.

Smokin' Aces crams everything into it. It has an all-star cast. It has witty dialogue. It has a lot of action, violence, sex, and gore. The plot is ambitious. The characters are out of this world. Yet, it is because of this that the movie fails.

I suspect that Smokin' Aces was an American attempt at making a movie like Snatch or Lock, Stock, and Two Smoking Barrels. But those movies fail for the same reasons. It is too much to take in.

Aristotle had a dictum that a story had to have a beginning, a middle, and an end. That may seem elementary, but that structure has proved to be the most satisfying for audiences for millennia. It is why Billy Shakespeare continues to enthrall audiences to this day.

Smokin' Aces is a caper film about a host of contract killers going after some slimebag weasel. You never get involed with the story because it moves too fast and has too many pieces in it. It's like they threw in everything but the kitchen sink. I think this can be done if you're making an epic, but you're not going to pull it off in a 2 hour timespan.

Watching Smokin' Aces is like having sex with a tranny. There is more equipment on the playing field than is necessary. I give it a thumbs down.

Friday, June 22, 2007

Associated Press Says Public Has Right to Blacked Out Names in Search Warrant

This post essentially continues the debate within the comments to Michael's excellent post yesterday regarding the disclosure of the Diamondbacks scouting report. I had to beat Howard to it.

This week, the Associated Press asked a federal judge to make public the names of baseball players a government agent said were implicated in drug use by former major league pitcher Jason Grimsley. When the affidavit signed by the government agent to obtain a search warrant on Grimsley's home was made public in June 2006, the names of the players the agent said Grimsley accused of using performance-enhancing drugs were blacked out. The AP now says it has a right to the blacked out names.

According to the AP, "Any privacy interests of individuals named in the affidavit are insufficient to overcome the public's right to access." The AP also said that if prosecutors provided the complete affidavit to baseball steroids investigator George Mitchell, "then they should not be allowed to invoke the privacy interests of third parties as a shield to prevent disclosure to others."

So let's continue the debate. Does the public have a "right" to the names of players who were blacked out by federal prosecutors? After all, the very reason the prosecutors blacked out the names to begin with was to maintain the players' confidentiality and privacy interests. Thus, the privacy interests of the players whose names were blacked out should definitely be taken into consideration. However, as Jimmy H. mentioned in the comments section to Michael's post, the public interest in steroids usage is definitely much greater than a scouting report found on a dugout floor. So the blacked out names of the players would most likely be considered "newsworthy". But there is an "entertainment" aspect working here as well. Let's face it, this would be a great sell for the AP if they could just get their hands on these names. The public loves to read about steroids in baseball. You can bet the AP wouldn't be in court this week if these players played professional football.

What I find most interesting though, is that the AP assumes it has a legal right of access to the names if prosecutors gave George Mitchell access. What law says that? So now the press can go to court and demand legal access to any information it wants whenever that information has previously been disclosed in confidence to a third party? That's a scary thought.....

Kevin Garnett Says No to Boston Celtics: Selfish or Understandable?

Yesterday afternoon, I was annoyed to hear that Minnesota Timberwolves star Kevin Garnett does not want to be traded to the Boston Celtics. In fact, he told his agent, Andy Miller, that if traded to Boston, he would exercise an opt-out in his contract next summer to become an unrestricted free agent.

"What is this guy's problem? Why doesn't he like Boston? Why wouldn't he want to play for the NBA team with the most championships? What's good enough for Larry Bird and Bill Russell isn't good enough for a guy who has never played in, let alone won, the NBA finals?"

Those were my initial reactions, albeit as a diehard and perhaps embittered Celtics fan. Although I had mixed feelings about the rumored trade of Garnett to Boston in exchange for Al Jefferson, the #5 pick, Gerald Green, and Theo Ratliff's contract, the thought of Kevin Garnett playing along side Paul Pierce had me thinking playoffs, and a return to something better than mediocrity and way better than whatever adjective can describe the current Celtics.

But then I thought about it more objectively. Why shouldn't Garnett maximize his rights under his contract? In effect, he's using the threat of an opt-out clause as a de facto no trade clause, since no team will likely give up what's needed to convince the Timberwolves to deal him unless that team can be certain that Garnett would be more than a one-year rental.

And what's wrong with that? He and his agent likely negotiated the opt-clause in part for the very situation described above: getting traded to a lousy team that plays in a cold weather locale and that may very well have management and coaching changes within the next 12 months. That doesn't sound like a particularly appealing prospect for a 31-year-old who is probably now thinking about his legacy, which will undoubtedly be judged in part by whether he wins or at least competes for an NBA title--particularly when the Phoenix Suns are also said to be interested in him.

Let's take this a step further. For all the money Garnett earns--and it's a lot, $21 million a year--his job has a serious drawback that few us have to deal with in our jobs: his employer can trade him to some place where he doesn't want to go, and to work for an employer that he doesn't want to work for. So when Garnett tries to prevent a possible trade to the Boston Celtics, he's enjoying a benefit that most of us have in our jobs, and he only enjoys that benefit because he is really good at his job; most NBA players have no such contractual rights. James Joyner on Outside the Beltway has a piece on this subject today. Here is an excerpt:
There aren’t many lines of work where you sign a contract with one company in one location and can be suddenly be shipped to another company, forced to move across the country–or even to Canada–and suffer the family disruption, tax implications, and other consequences at the whim of ownership. There have been instances where a player is traded three times in a single season.

Presumably, the argument is that players have agreed to those terms of employment as part of the collective bargaining process. Still, professional sports leagues operate as closed shops and there’s simply no way to earn a living.

. . .

[I]t’s unlikely anyone is going to feel sorry for the plight of professional athletes making multi-million dollar salaries. Still, the amateur draft, trade rules, and other limitations on player autonomy are quite unusual. Indeed, the only comparable labor situation that comes to mind is that of military personnel, especially in the days of conscription.

Fans have the expectation that players will display extraordinary loyalty to their teams, including extending taking a “home town discount” of millions of dollars when free agency (otherwise known as, “the right to work for whomever will hire you under whatever terms you can negotiate just like everyone else”) and “putting the needs of the team above personal goals.” Yet these same fans seem to have no problem with trading these players for better ones if the opportunity arises.

So should we criticize Garnett for what may seem like "selfish" behavior or should we empathize with him for what may also seem like understandable behavior?

Thursday, June 21, 2007

Supreme Court decision in TSSAA v. Brentwood Academy (Updated)

The Supreme Court of the United States today decided Tennessee Secondary Sch. Athletic Association v. Brentwood Academy, involving a First Amendment and Due Process challenges to the enforcement of a high school athletic association's anti-recruiting rule against a private school. We previously have discussed this case here, here, and here. A copy of the opinion can be downloaded here (via SCOTUSblog).

As I predicted on these pages, the Court unanimously rejected Brentwood's constitutional arguments. Justice Stevens wrote the opinion for the Court, joined by all members of the Court except Justice Thomas, except as to Part II-A of the opinion, which was joined only by Justice Souter, Ginsburg, and Breyer (see below).

I have not had a chance to read the opinion carefully yet (will do so tonight and may talk more about it). On the First Amendment issue, Justice Stevens took two approaches. The one that commanded a majority relied primarily on the fact that Brentwood voluntarily joined TSSAA and thus voluntarily agreed to abide by the anti-recruiting rule. The Court relied on precedent controlling government-employee speech, which generally gives government greater control over what its voluntary employees can say. Such rules only must be "necessary to managing an efficient and effective state-sponsored high school athletic league." The Court said it needed no empirical data to "credit TSSAA's common-sense conclusion that hard-sell tactics directed at middle school students could lead to exploitation, distort competition between high school teams, and foster an environment in which athletics are prized more highly than academics."

As for the due process claim, the Court detailed the TSSAA proceedings and found that Brentwood received all the process it was due.

There are three interesting features of the decision, notable for what they tell us about the present and future of broader constitutional doctrine:

First, Justice Thomas concurred only in the judgment, declining to join any part of Justice Stevens' opinion. Thomas argued that the Court's 2001 holding in Brentwood I, which held that the TSSAA was a state actor, was wrong and should be overruled.

Second, as noted, Justice Stevens lost his majority for Part II-A of the opinion, which Justice Kennedy, the Chief, and Justices Scalia and Alito refused to join. In that part, Stevens relied on precedent upholding limits on coercive face-to-face solicitation by attorneys and other professionals, namely Ohralik v. Ohio State Bar Assn (1978), likening personal athletic recruitment to hard-sell lawyer solicitations and arguing that both should be subject to closer regulation. That Justice Kennedy and the other three declined to join that part of the opinion suggests that some members of the Court would like to expand protection for commercial speech.

The third relates to a back-and-forth in the comments to the post about the oral arguments. There was discussion of how the speech at issue fits in the heart of the First Amendment and whether the First Amendment protects the free flow of information about Brentwood's sports teams. At the start of Part II-A (for a plurality), Stevens says the following:
The anti-recruiting rule strikes nowhere near the heart of the First Amendment. TSSAA has not banned the dissemination of truthful information relating to sports, nor has it claimed that it could.
Stevens clearly wanted to make this case about face-to-face contact and not the content of Brentwood's speech, emphasizing the "difference of constitutional dimension between rules prohibiting appeals to the public at large . . . and rules prohibiting direct, personalized communication in a coercive setting.

In other words: If Brentwood put the identical information and statements in its broadly disseminated promotional materials, it could not be subject to regulation. The fact that Justice Kennedy, et al., did not join at least that idea is a bit surprising to me.

Additional Comments and Commentary: Moved to Top

Eugene Volokh has thoughts on the decision, particularly the divide among the justices as to the applicability of Ohralik to justify a total ban on pre-enrollment communication with students. Volokh suggests that if the risk of coercion is enough to support the TSSAA rule, then a broad swath of speech--not only one-to-one, but also appeals to the public at large--could be subject to regulation, because some risk of coercion is present in much communication. Volokh also questions why Ohralik should control since the coach here communicated with the students by letter, not face-to-face. The Court has distinguished direct-mail solicitations, including targeted solicitations by attorneys, from oral solicitations. Even assuming risk of coercion or undue influence, why is the letter from a coach not more like the mail solicitation from an attorney, rather than the oral, face-to-face solicitation from an attorney?

Justice Kennedy's objection to Stevens' reliance on Ohralik reflects an effort to tie the decision more firmly to the voluntary-association rationale and to make clear that the TSSAA could not impose the recruiting ban as a free-standing rule against all schools in the state, including non-TSSAA members. Kennedy argues that Ohralik undermines the understanding that, absent Brentwood's consensual and voluntary membership in the TSSAA, the speech by the head coach was entitled to First Amendment protection. This explains why Justice Kennedy did not sign on to Steven's distinction between face-to-face solicitation and broader general dissemination. For him, the only distinction driving the case was between regulation of voluntary members of an organization and general regulation of a segment of the general public. The attorney regulation cases potentially implies that this case could apply outside the membership/contractual context to a host of face-to-face contact; Kennedy (plus three, plus Thomas) rejected that expansion.

Note the unanimity among the eight justices (put Justice Thomas to the side for now) on an underlying point: The substance of the letter--information about Brentwood's football team and the eligibility (and benefit) of committed pre-enrolled students to participate in spring practice--was generally within the ambit of the First Amendment. What took the speech in this case out of that realm was the context: a) Targeted and potentially coercive and made by a member of a voluntary organization (Stevens and three), b) made by a member of a voluntary organization (Kennedy and three).

Further Update 6/23:

Another take on the case from Tony Mauro at the First Amendment Center.

Theft or Finders Keepers? AP Reporter Publishes Scouting Report Found on Dugout Floor

Last Thursday, the Arizona Diamondbacks played the New York Yankees at Yankee Stadium for the final game of a three-game series. The Yankees won the game by a score of 7-1, sweeping the series; the teams will not play again this season.

After the game, an Associated Press reporter was walking through the Diamondbacks' visiting dugout. He found a scouting report on the floor. The scouting report was authored by someone on the Diamondbacks' staff and discussed how to pitch to various Yankees:

Alex Rodriguez: "HOT right now. ... Chases a lot of BB's w/2-strikes, both away and in dirt. CH is fine when away. ... (vs. left-handers) Hard in, soft away. Ladder FB w/2-strikes."

Derek Jeter: "Will bunt and H&R. ... Runs early. ... Struggles w/ball down/in and will chase SL away. ... Get ahead. Fairly aggressive so will need to mix pitches and locations 1st pitch."

Bobby Abreu: "HOT right now. ... Good guy to crowd once you're ahead. Hammers 1st pitch FB's away w/RISP."

Johnny Damon: "(vs. right-handers) Struggling w/soft stuff. ... (vs. left-handers) Keep honest w/FB up/in."

Key: FB-fastball; CH-changeup; SL-slider; BB's-balls; ladder-high fastballs, out of strike zone; H&R-hit-and-run.

The reporter published the scouting report in an Associated Press story that was picked up by various publications.

Should he have done so? Didn't the Diamondbacks have a reasonable expectation of privacy for their proprietary information? Or were the Diamondbacks merely irresponsible with their belongings, and thus did not enjoy any legal protection to the information?

There are different ways to examine the issue. My initial reaction was
surprise that the property of the Diamondbacks in their dugout would be considered "fair game" (for lack of a better expression) for a reporter to take and publish. This viewpoint was endorsed by the Diamondbacks when they formally complained to Major League Baseball about the "theft":
The Arizona Diamondbacks have contacted Major League Baseball about an Associated Press reporter who discovered their advance scouting report on the New York Yankees in the dugout yesterday and put its contents on the wire. "I am furious," one Diamondbacks executive said. "That is theft."
I can see why the Diamondbacks and perhaps also the Yankees might feel that a private team document accidentally located on the ground of a team dugout should not be removed from the premises or used in a publication without their permission. Under that interpretation, the taking and subsequent use of the scouting report might be construed as misappropriation, the unauthorized or improper use of a party's confidential information or intellectual property, or trespass to chattles, the intentional dispossession of another's property. Beyond tort law implications, one might even characterize the taking of the scouting report from the dugout as criminal behavior: theft is the illegal taking of another person's property without that person's consent, and if we are to believe the anonymous Diamondbacks' official above, then the team appears to believe that they have been a victim of a reporter's theft.

Continuing along this pro-team/anti-reporter interpretation, while I recognize that reporters are rewarded for breaking stories, might baseball officials equate what the reporter did to going through someone's else thrash? Of course, the more precise analogy would be going through someone else's thrash on that person's property, as according to the U.S. Supreme Court in California v. Greenwood, 486 U.S. 35 (1988), garbage placed at the curbside is public property--but you get my point. Similarly, when one walks through a department store, there is no expectation that a shirt located on the ground is thrash; if you pick up that shirt, you are still expected to buy it, and if you leave the store without doing so, you will have shoplifted.

Aside from the law, consider our expectations for those involved in this story: the Associated Press is a venerable and trusted news organization, and its reporters are presumably expected to ascribe to their organization's culture; it's not like a reporter from Star Magazine or--dare I say it--a blogger found the juicy info.

On the other hand, why should the Diamondbacks receive protection from their own carelessness? That was the reaction of Jimmy Golen, a buddy of mine who writes for the Associated Press and who also has a law degree from Yale Law School, when I asked him what he thought [note: Jimmy is not the AP reporter at question; he covers the Red Sox and Patriots, among other Boston teams]:
If I remember correctly, the issue is whether the Diamondbacks would have a reasonable expectation of privacy for proprietary information left on the floor of the visitor's dugout at Yankee Stadium, after the last game of their only visit to New York. I would argue that, unlike the digging through the trash example, they don't. It seems to me that if you are extremely careless with your secrets, you lose the protection of the law; if not, you should.

If you disagree, let me ask you if you'd feel otherwise if the scouting reports were picked up by a Yankee employee (whether cleaning staff or uniformed personnel) and leaked to the AP? Or used by the Yankees for their own, nefarious ends? What if they were leaked by a disgruntled Diamondbacks scout without authorization?

What if -- not to get too grandiose on you -- they weren't the Diamondbacks' failed plans to win in New York but the Bush Administration's failed plans to win the war in Iraq, left behind in a Pentagon bathroom where the media has access? Should the principle be different because it's "just sports"?
Those are some great points in favor of the Associated Press. To amplify one of his remarks, consider the significance of the game and series being over when the reporter found the scouting report; the Diamondbacks' occupancy and related possessory rights of the dugout presumably end at some point after the game ends. What do you think?

Daydreams, Reflection, and Action

It is fun to daydream. You can fantasize about all sorts of things. You can come up with all kinds of new ideas or wishes. The problem with all of these wishes comes when we have to fulfill them. It is then that we face the hard work of turning dreams into reality.

As Peter Drucker put it, "Plans are only good intentions unless they immediately degenerate into hard work." Our lives are filled with good intentions. In our fantasy lives, everything is perfect. There is no adversity. Everything is a success easily gained. But we know this is bullshit.

Then, there is the flip side. You put forth a lot of action. You bust your ass. You reach for the elusive prize. And once you have it in hand, you realize there really was nothing to it at all. You experience the anticlimax. Hell, it can even be a bit depressing. I discovered this when I finished college or got my first decent paying job. There really is no thrill in the conquest. Maybe others will disagree with me, but I find that winning is not nearly as much fun as just playing. If you've ever blown someone out on a competition, you will know what I am talking about.

I don't like to daydream. I just like to work. I like to create and make things and get things done. I make a lot of plans and even keep them in a black notebook along with my reading list, addresses, etc. I will never accomplish all the things I have written in that book. But I like to have options in case one plan fails I can resort to another project instead of becoming despondent.

I also don't like to spend a lot of time reflecting over what I have done. For instance, I rarely read my own blog. Most of the time, I catch mistakes and correct them, but I don't get much satisfaction from something I have already written. I'm happiest usually in the process of writing something.

I like to live in this zone of action. I like to follow the principle A.B.D.--Always Be Doing. Usually, that doing is nothing more than goofing off which is anything that doesn't involved getting paid or tending to household affairs. I just like to zone in on some project and then make it happen. When the project ends, I am a little bit sad that it is over with. So, I reload another project and start working again.

I've said this before, and I'm saying it again. Happiness is always having something to do. It isn't about money or love or any of that shit. Happiness is losing yourself in purposeful activity. If you focus on money or success or the "prize," you will find yourself utterly miserable. Usually, these things come to the people who simply do what they love doing.

Lately, I have forgotten this lesson. That is why happiness is so frustrating. We forget what it is that makes us happy, so we have to remember. There is no happiness in daydreaming or in reflection. There is only happiness in action. Always Be Doing.

Multitasking

One time, I had a job interview where the guy asked questions from a stock list asked of all applicants. One of the questions asked what would I do if I had three or four things to do and needed to be completed at the same time. I answered that I would prioritize and do the most pressing thing first and work my way to the next important, etc. This was the wrong answer.

The right answer was that I would do them all at the same time. Looking back, I realize that the right answer was also the stupid answer. But that is Corporate America for you.

I have been multitasking for a long time, and I can tell you that it doesn't work. Invariably, when I do two things at a time, I do both so badly that I usually end up doing it all over again. I have also found that if one item takes 10 minutes to do and another takes 10 minutes by combining them I end up spending 30 minutes on them total. This is not time saved. It is time wasted.

Another bad habit is talking on the cellphone while driving. I either have issues with traffic, or I barely hear the conversation. Because I wouldn't take the time to actually pull over and talk to someone, I have lost information or gotten the wrong information. Whatever time I thought I was saving I wasn't.

The bottom line is that you can only concentrate on one thing at a time. That is why it is called "concentration." It reminds me of the shitheaded exec who told his employees that there were 25 things he wanted them to focus on. Needless to say, they weren't able to focus.

Do one thing at a time, and do it well. You will improve quality and save time.

Wednesday, June 20, 2007

Two Views of Prosecutorial Misconduct

Two interesting and contrasting views on the disbarment of Durham County DA Mike Difong. Both pieces are by former New York public defenders: David Feige (now an author) and Brooks Holland (now assistant professor at Gonzaga University School of Law).

They take quite different views as to how common it is for prosecutors to withhold exculpatory evidence (deliberately or otherwise) and how uncommon it is for such prosecutors to be held accountable for abusive over-zealousness. Both are worth a look.

Robbie gets some new grass ...





Shifted Debi and Robbie to a new paddock today. As you can see, Robbie was quite pleased about that!

Will the NFL's New Whistleblower Program End the League's Concussion Headaches?

The NFL announced this week that it will implement a whistleblower program designed to deal with its ongoing concussion scandal. Under the proposed policy, the details of which still need to be worked out with the union, medical personnel pressured to clear players before those players are healthy enough to return to the gridiron, or players pressured to play, can file anonymous reports that should lead to league follow-up investigations.

Players have already expressed doubts about the likely effectiveness of this proposal. According to ESPN,
. . . a healthy dose of skepticism remains.

"I think, of all the things they're recommending [on dealing with concussions], that will be the toughest sell," said 11-year veteran tight end Ernie Conwell. "Players hate to be labeled, you know? And no one wants to be labeled a snitch or a rat -- that's for sure. So I feel like it's going to take a lot of education to make the players feel comfortable with it."
I spent a considerable amount of time last summer writing a Boston University Law Review article on corporate fraud whistleblowers (which you can download free of charge here), and one of the main conclusions I developed was that, while laudable, anonymous reporting alone does not encourage whistleblowers to report negative information about their employers. The economic, social, and psychological factors militating against whistleblowing, such as the "rat" label mentioned by Conwell, are simply too powerful. The most effective whistleblowing programs have involved financial bounties or rewards for reporting accurate information about organizational wrondoing. Obviously, the NFL is not yet prepared to take that step.

Still, this seems like progress on the concussion issue. Moreover, it may represent an increased interest on the part of leagues in developing internal reporting systems to address persistent problems. Perhaps an anonymous steroid whistleblower line will be the next step?

Tuesday, June 19, 2007

Did Vince McMahon's Fake Death Violate Security Laws?

That is a question asked by Darren Rovell on Sports Biz today, and also one that he asked me in a TV interview that will air on CNBC later today at the following times: 7:50 a.m., 11:30 a.m., and 1:55 p.m., all Eastern Standard Time Zone. I hope you get a chance to watch. The interview will first air on CNBC's morning business show Squawk Box.

McMahon, as you know, is the chairman of World Wrestling Entertainment ("WWE"), and last Monday, WWE claimed that McMahon had been killed when his limo exploded. WWE.com announced that he was presumed dead since no body was recovered, and also claimed that the FBI was investigating, but it was later learned that the event was merely a promotional stunt, like many events that occur in pro wrestling.

WWE is a publicly-traded company, and while it's stock is only down 1.8 percent since the fake death, Rovell analyzes whether investors (as opposed to fans) of WWE may have been affected by the news, particularly since McMahon is listed in the company's most recent annual report as the most important person in the organization, and thus his death would seemingly be of great consequence. Then again, according to the WWE, not one investor has contacted the company to complain. Still, Rule 10b-5, pursuant to Section 10(b) of the Securities and Exchange Act of 1934, prohibits misleading statements or omissions of material fact in connection with the purchase or sale of any security, and that includes press releases that intentionally or, according to most courts, recklessly mislead investors. Both the SEC and private citizens can enforce the requirements of 10b-5. Establishing a claim against the WWE would be difficult, but it's an interesting idea to consider.

I hope you get the chance to watch the interview.

Update: Darren Rovell has put up a transcript of his interview of former SEC regional director Ira Lee Sorkin and me, and also news that Rovell is now considered a suspect for the murder "Mr. McMahon"!

Legal Issues of Unauthorized Kobe Bryant Video

Last week, a website named "The Official Kobe Video Website" appeared. It is offering the sale of an unflattering video of Kobe Bryant, purportedly taken in late May outside a shopping center in Newport Coast, California, in which Bryant has an impromptu conversation with a small group of fans. During his conversation, Bryant disparages his employer, as well as a number of his teammates. He saves his most vitriolic remarks for Andrew Bynum, the Lakers' highly touted 19-year-old center. Bryant insists that Lakers should "f---ing ship his ass out."

As reported by Howard Beck in today's New York Times, the men responsible for the video--a few guys in their early 20s who are unwilling to identify themselves--do not believe that Bryant was aware of the video being taken. Those same men contend that someone offered to buy it from them for $100,000 in order to keep it private, but they refused, and instead intend to make it available to anyone willing to spend $1.99 to watch it, provided they receive 50,000 orders. It's unclear how many orders they have thus far received. It's also unclear if the video is all that entertaining, since other than a consistent flow of swears and some unvarnished remarks about teammates, Bryant has offered similar, albeit less explicit, commentary on his blog. Still, as ESPN's Henry Abbott writes today, the video strikes many as a distasteful attempt at "gotcha" journalism.

Could Bryant successfully sue the Kobe video guys? "Miss Gossip" over at AOL FanHouse is a student at Stanford Law School, and she addresses that issue in a post today. Here is an excerpt:
If the goal is to sell the video to a media outlet, then Kobe could sue for money damages or an injunction preventing the release of the video. As a celebrity he has a legal right in his own publicity image -- he can't stop you from showing his image on the news, but he can stop you from profiting from his image without his permission. The KVG guys told [FanHouse's] Brett that Bryant didn't know he was being filmed -- which sure sounds like he did not grant his permission for them to disseminate the video for profit.

Additionally, you have the super-legal argument that these KVG guys are just plain dumb. Why would thousands of people pay for the video when five minutes after its release they could probably see it for free on the FanHouse?
Miss Gossip is alluding to the right of publicity, which is the use of the plaintiff's name or likeness, without consent, for the defendant's commercial advantage. As Rick recently examined in regards to Drew Brees' efforts to avoid having his image used to promote his mom's congressional campaign, the right of publicity protects against commercial loss caused by appropriation of an individual's name or likeness for commercial exploitation. The right varies in strength by state, but it would be an avenue that Bryant could consider, in the highly unlikely event that he sought legal recourse. A key question would be whether the video is providing a newsworthy purpose (see Rick and Howard's debates on that subject) and to what extent Bryant's celebrity status diminishes his legal right to privacy. Also, some states, like Illinois, have passed High Tech Peeping Tom laws, whereby is it illegal to record or transmit live video images of a person without his or her permission--but the catch is that the person must be in a "private location" and Bryant was not.

Sunday, June 17, 2007

Alan Childress on Nifong's Disbarment

Alan Childress at the Legal Profession Blog offers his thoughts on the disbarment of Mike Nifong for his misconduct in the Duke lacrosse prosecutions.

Childress makes one very good point that I had not seen elsewhere and that I think I agree with: Even assuming Nifong deserved to be punished this harshly, disbarment after one hour of deliberation is, at least historically, a highly unusual and harsh punishment for even extreme cases of prosecutorial misconduct. And a possible explanation for that difference is the high-profile and politicized nature of the case. In other words, the very thing that allegedly caused Nifong to engage in misconduct arguably caused the Bar panel to punish him severely, unusually so.

Childress writes:

. . . On the other hand, there is some history in bar discipline across the nation that would suggest that similar prosecutorial misconduct goes less punished, generally. It may be the right decision, but is it also possible that the N.C. bar [maybe even understandably] is doing some of what it accuses Nifong of doing: treating a case differently than it might have otherwise because it has gone public and taken a political life of its own? Do not some of the handwringing statements quoted from the bar seem designed for public consumption, more so than the usual panel finding? My query probably overstates the reality that Nifong created much of the "life of own" of his prosecution, and made the statements in the press not as part of a regular process like issuing a bar decision. But my experience is that bar boards don't decide cases in a day (or really, a year), write such strong statements, or slam prosecutorial overreaching this efficiently or thoroughly. I think they should in many cases, but this one is just more public than most.


This is a different point that is implicit in Andre's post. Rightly or wrongly and deserved or not, Nifong is, descriptively, being treated in an unusual fashion.

Saturday, June 16, 2007

My Apology to Mike Nifong

I am not long on sympathy. I have little to no sympathy for OJ Simpson, Kobe Bryant or Pacman Jones, each of whom has suffered public and professional ($monetary$) reprobation despite not being convicted of the crimes for which they were accused. I do not quibble with those who, because of the media reports, believe wholeheartedly in their guilt.

I have a similar absence of sympathy for the Duke Lacrosse team and can’t quite come to grips with ESPN having a half hour special two days ago about them. The same media outlets wiping their tears now were the ones reporting that they had a reputation for excessive on-campus rowdiness and belligerence and that they were having a party (parties?) generously laced with alcohol, minors, and strippers. (Was Pacman invited?) The same woman to be believed when she says she did not see the other girl attacked in any way, though she could not account for her whereabouts at all times because she was, um, working, also said they had a confrontation after the boys began yelling something about a broomstick.

Somehow others invite the bad that happens upon them. They are not excused for being in the wrong place at the wrong time. Personal responsibility is the slogan of our day. But the Duke Lacrosse team gets a pass. No one had to get raped at that party for Duke to legitimately suspend that team for the year. Precisely that type of animal-housing is supposed to be the bane of college athletics, and sports generally. Beyond their guilt or innocence, why the sympathy?


Which brings me to why I have sympathy for and am apologizing to Mike Nifong. The reason he is being publicly pummeled, and in my mind the reason why he was before the North Carolina ethics board, is because he did as civil rights organizations and feminist organizations have asked white men to do since I became interested in such politics: Disregard the low-mindedness of the media which promotes the idea that status and class and race have something to do with innocence and guilt, protect women from being raped and promote their coming forward by taking them seriously even when the only witnesses are them and the alleged broomstickers.

Maybe he did so for political reasons, to retain office in a majority black district. But such an accusation is not taken seriously when alleged by any other defendant. These defendants used their wherewithal to sell it. And if it be the case, the crime he is guilty of is overzealously protecting the district he lives in from alleged rapists. What other prosecutors are publicly or professionally skewered for this? Or does it not happen elsewhere?

So I want to apologize to Mike Nifong for the absence of support he has received from the same groups who used plenty of airtime to lambaste Don Imus and HipHop for disrespecting black women. Nifong is my white man of the week because he did what groups to which I belong asked him to do, and when the chips came down we did not have your back. We dropped the ball. So when will the next prosecutor take a case where it’s his word against hers? Not soon, especially if the alleged rapists have money and connections and look good in a suit and haircut to deflect their poor reputation and all the alleged victim has is … what, 15 minutes of Oprah Winfrey’s attention?

Friday, June 15, 2007

Weanling photo shoot







OK so they're not fabulous but here are a collection of shots taken today and a brief video downloaded to YouTube.