*

One of my interests in this arena is the quasi-legal nature of the rules and regulations involved in sports, sports teams and leagues, and sports management. So I wanted to comment on this week's sports/law stupidity.

Don Shula, the coach of the 1972 Miami Dolphins, the last NFL team to go undefeated, now argues that if the 2007 Patriots go undefeated (the Pats are 9-0 and far above everyone else in the league), an asterisk should be placed on their record, in light of the finding that the Patriots violated league rules in an early-season game by videotaping the opposing team's sideline to steal signals. This is the latest effort to impose an asterisk to taint and diminish what otherwise would be a record performance. Earlier this month, the man who caught the ball from Barry Bonds' record-breaking 756th career home run announced that he would brand the ball with an asterisk and donate it to the National Baseball Hall of Fame. The asterisk would suggest that Bonds' record is tainted by his alleged steroid use--steroid use that Bonds continues to deny and that Major League Baseball never has found, although other sources document his alleged use.

Can we please stop with the asterisks already?

The first alleged asterisk to denote-but-diminish a record was not, in fact, an asterisk (despite Billy Crystal's version of baseball history). In 1961, when Roger Maris hit 61 home runs to break Babe Ruth's single-season record of 60, Commissioner Ford Frick ordered that official record books would celebrate two marks--Maris for 61 in 162 games, Ruth for 60 in 154 games (Maris hit only 59 in his first 154 games). There never was never an asterisk next to Maris' record; Major League Baseball just decided to keep two records and have two official record-holders, based on the different rules (the length of season) under which the players performed and the records were set. Now this was, indeed, an attempt to diminish Maris' achievement--or more accurately to keep the immortal Ruth at the top of the record book. And it was pretty stupid, as indicated by the fact that MLB changed the books in 1991 to establish one single-season record. But there was at least some arguable logical basis for having two records, given the different rules and conditions.

Shula and the baseball people are suggesting something different: Name one record holder but put an official asterisk by his name to denote something amiss about the record, thus quasi-officially keeping the prior record holder at the top of the books. And that is even dumber than Frick's idea of two official records. If there ever is a finding that Bonds cheated, that might justify taking his name out of the record book. This is, for example, the actions of the Tour de France to strip Floyd Landis of his 2006 victory when his failed doping test was confirmed; college teams similarly are retroactively stripped of victories and championships based on findings of past cheating.

As to the Patriots, if they broke the rules to achieve a perfect season, strip them of their victories. But this does not appear appropriate in this case. There was a league finding that they broke the rules in one game and they were punished--but not with a forfeit of the game. The NFL obviously determined that their conduct did not affect the outcome of that game and did not warrant a forfeit, which would deprive them of that perfect season. Absent that, there is nothing "tainted" about the achievement, if it happens.

The record books should reflect top achievements consistent with applicable rules. . If someone achieves a record through unlawful activity, is found to have engaged in that unlawful activity, and is to be punished for that unlawful activity, such punishment can (and should) include the loss of records and titles. With an explanation, of course. Erasing players, teams, and achievements from history is itself a dangerous proposition--probably more dangerous than having "tainted" record holders.

But it is ridiculous to take this half-measure of an official asterisk, while leaving the record and record-holder in place based on a suspicion of relevant wrongdoing or, as in Shula's case, sour grapes (the '72 Dolphins are notorious for the vigor with which they guard their achievement). And it flies in the face of the normal approach of finding a violation of rules, then imposing a meaningful and relevant punishment.


(Cross-Posted on PrawfsBlawg, where I am guesting this week)

Update, Thursday, 3 p.m. C.S.T.:

A commenter at Prawfs pointed me here: Shula went on Mike & Mike and said he would not argue for an asterisk and that if the Pats run the table, they are the best team. No indication from the story as to why Shula changed his mind about this.

Posted in: