Monday, December 31, 2007

Another mare for Hamish

Here is Oringi Clyde, a 17 year old TB park hack. 'Pride' is a true sabino with four high white stockings and a blaze and white chin. She's very cute but she is in no hurry to come into season much to Hamish's frustration!

Reilly prior to going to be backed

Here is Reilly, aged three, a week away from being broken in (all going to plan!) - Only 15.1HH but nice things do come in small packages!

High Infidelity

More people cheat than don't. There are no hard and fast figures on this subject because people are prone to lie. But of the people who are willing to tell the truth, most of them report being unfaithful. 60 to 70% of married men and 50 to 60% of married women admit to cheating on their spouses. These are underreported figures. It is a dismal picture.

The reality of human nature is that human beings are not monogamous. People love to fuck, and they seem to do it as often as they can. I admit to having more than one sex partner in my life, and I am not ashamed of it. But I can also say that I have never cheated on a single one of my girlfriends. I don't even mean technical faithfulness either. I haven't even so much as kissed another woman.

I am a serial monogamist. I have tried to be a dog, but I don't have that shit in me. I have loved my girlfriends too much to hurt them in this way. I also like retaining my self-respect. I am proud of my fidelity.

I don't understand why men cheat. Women think that maybe it is simply a result of horniness and that if they keep their men satisfied they won't stray. But this isn't true at all. I find that most men simply want the thrill and the ego boost that a fling will bring. Women are trophies. I know because they brag to me about their conquests. These women think these pigs actually give a fuck about them. Yet, they describe to me in graphic detail how they have penetrated every hole the chick had.

Women cheat for emotional reasons. Like men, women want to feel special. They want to be adored, and an affair helps women to feel this way. Women want to be loved and appreciated. The result is that they are suckers who get used and abused. What these women fail to see is the contempt most men hold them in. I almost feel sorry for them except they have a tendency to walk all over the men who really love them.

All of these facts combined with my own experiences with cheating women have hardened me inside. I still love, but it is not with the same love. I am not jealous as much as paranoid. Experts will tell you to look for the signs of infidelity. They can be things like loss of intimacy, more time spent at work, unexplained charges to credit cards, etc. But sometimes loss of intimacy occurs because of stress at work. Sometimes, more time spent at work really is time spent at work. These clues can go both ways.

The significant other is usually the last one to know. That is because cheaters cover their tracks and even the cheater's friends say nothing to the S.O. because they want to stay out of the drama. I know that this is what I do. Finally, the person being cheated on often doesn't want to know, or they feel guilty for being suspicious.

I really don't know what to say about this. Basically, here are your choices. You can be a paranoid retard. You can be a complete sucker. Or, you can throw up your hands in despair and walk away from relationships altogether. Sad to say, I have been in all three of these states.

I am in a relationship now, and I feel sorry for her because I don't think she is aware of the damaged goods she has gotten. She thinks I am a great guy, but she has no idea that I keep my love in check. I adore her, but I wake up from paranoid nightmares of hurt and betrayal. The result is that she will almost certainly dump me for being such a fuckhead.

All I can say is that I have never cheated, and I never will. This commitment predates her and will continue after she is done with me. I cannot and will not inflict the hurt that has been inflicted on me. I don't use people in this way. The thought of it nauseates me.

I do not cheat because of my compassion. It is this compassion that attractes women to me, gives them the greenlight to use me, and then makes them stalk me to either expiate their guilt, gain back what they threw away, or make me into a bastard so they don't feel so bad for fucking me over.

I am an utterly fucked up person. I am still trying to pull off being neither victimizer nor victim. I feel that I am failing. At the end of the day, I love someone, and I would never hurt her. I can only hope she would never hurt me.

I know that I am in the last relationship I will ever be in no matter how it turns out. If she isn't the right one, there is no right one. And if there is a right one, I could never tell.

Gabibbo Talks Its Way to Victory over Big Red

Back in February 2004, Greg wrote about Western Kentucky University suing Mediaset, the television company run by Silvio Berlusconi, the richest man in Italy and the country's then Prime Minister, for trademark and copyright infringement, claiming that Gabibbo, the mascot for the satirical show "Striscia la Notizia" is a carbon copy of Big Red, the Western Kentucky mascot since 1979. The suit sought $250 million in damages.

Over on his excellent blog, Sports Biz, CNBC's Darren Rovell writes about Western Kentucky losing in an Italian court, in large part (apparently) because Gabibbo talks and Big Red doesn't.

Here is an excerpt from Darren's piece:
As many of you know, the legal standards vary depending on where you are, but in Italy -- at least according to a Italian judge's ruling earlier this month -- Gabibbo is similar to Big Red, but he is not Big Red. That means that Mediaset owes nothing to the Western Kentucky, ADFRA or Crossland.

I haven't had the 90-plus page ruling translated yet, but the summary I got from the plaintiffs was that the main difference is that Gabibbo talks and Big Red doesn't.

I can't let this go without saying that there's politics behind every story. Mediaset is owned by Silvio Berlusconi, Italy's richest man, former prime minister and, as sports fans have come to know him, president of A.C. Milan. Despite what they are up against, sources tell CNBC that WKU, ADFRA and Crossland Enterprises will file an appeal by Jan. 20.

For the rest of the post, click here.

New Sports Law Scholarship

New scholarship over the past several weeks:
Dana Howells, Note, Log me in to the old ballgame, 22 BERKELEY TECHNOLOGY LAW JOURNAL 477 (2007)

Kelly P. O'Neill, Note, Sioux unhappy: challenging the NCAA’s ban on Native American imagery, 42 TULSA LAW REVIEW 171 (2006)

Joel Michael Ugolini, Even a violent game has its limits: a look at the NFL’s responsibility for the behavior of its players, 39 UNIVERSITY OF TOLEDO LAW REVIEW 41 (2007)

Saturday, December 29, 2007

A Few Recent Insights Concerning Time, Money, and Energy

Anyone who knows me will tell you that I spend a lot of time talking about time, money, and energy. I call them the limiting factors because I never seem to have enough of all three. I believe that if I could ever get those three things straight in my life, a whole lot of good things would happen for me.

One of the things I have noticed is how all three are related in some way. A shortage of energy increases the time it takes to do things. A shortage of time increases the amount of money you spend such as the amount you will drop for the "convenience" of a convenience store. Or you might cut back on sleep which lowers your energy levels and also your immunity. The result is that you get sick more often.

The reality is that time, money, and energy are not limiting factors but resources. The only limitation with them is that they are finite. But if you make the correct choices with those resources, they will add to themselves and grow. I must admit that I have been making the wrong choices. Here are some things I have figured out about time, money, and energy.

The biggest torpedo to your time is the agenda of other people. It pains me to say that, but I had that epiphany while talking to my girlfriend. She is frustrated because she can't get anything done at work because people are interrupting her all day long. The result is that she is working Saturday while those people are out enjoying their weekends.

People eat time. They co-opt your time and make it theirs. They may not even realize they are doing it. But they are doing it. I am always aware of this. I don't like to waste other people's time. Time is life, so when you waste time, you are wasting life.

What defines a productive use of time is person relative. For instance, writing on this blog is a waste of time to just about anyone else except me. One of the things that pisses me off is when people ask me what I am doing before asking me to do something. The use of my time is not up for their appraisal. It is my time even if I want to spend it watching Saturday morning cartoons in my underwear and eating a peanut butter and jelly sandwich. Ask me if I would like to do something, but don't ask me what I am doing. That's my business.

It is easy to say no to fucktard coworkers, cocksucker salesmen, and utter strangers especially the ones cluthing a copy of The Watchtower in their hands. It is hard to say no to the people you love. What adds to the stress level is when multiple people you love all want you at the same time. This is why your parents end up hating the people you date and marry. "He never visits anymore since marrying that woman. . ."

You are never going to win on this shit. What is funny is how these same people never take the time out for you. They will low rate the shit out of you for not catering to their agendas, but they never take a moment to help you with your agenda except maybe to criticize you for not getting more shit done. And the reason it doesn't get done? You guessed it. Those same people who eat up your time.

You have to be selfish with your time and not feel guilty about it. That is the secret of time management. You have to feel free to turn off the cellphone or not answer your email for awhile or tell people if they want some time with you they are going to have to make the effort once in awhile to see you. What you will find to your utter amazement is how people can get along just fine without you especially when it is going to cost them something.

There are certain people you can't ignore. This is also person relative. Your list will differ from mine. You can ignore your coworkers but not your boss. You can ignore a nagging mother but never a nagging girlfriend. People learn their importance to you, and it is not always pleasant. But it is unavoidable. I'm just going to quit feeling guilty when I tell someone I don't have the time to spend with them.

The other thing I have noticed is how people who waste their time don't think anything of wasting your time. These people have nothing to do, so they want you to do nothing with them. Fucking annoying as hell. My old man would do this. He would piddle his time away in the garage. I never had a problem with this until he asked me to come help him piddle. Fuck that. I hated him for that shit. I still do.

My time is mine. I'm not letting other people steal it and waste it.

It never fails that no matter how much money I make it is never enough. I don't have any trouble paying my bills. I live within my means. Most people don't. They spend rather than save. They don't budget. They are always borrowing and conveniently forgetting to repay.

I learned a long time ago that the key to building wealth was to build savings through spending less than what you earn and investing it appropriately. This will always be true. People who are bad with money can't stand this truth. They abhor it. They ignore it to their own demise. This is because saving requires delaying gratification. It means working longer hours and doing without. It means buying cheaper goods and services and ignoring social pressures and class expectations to have more and better.

I haven't really learned anything new when it comes to money. I just know that it is the repeated small purchases that add up to big monthly expenses. I think cable TV is a great deal all things considered. I think buying cigarettes is a lousy deal. I think having a Lexus is a great deal. I think a Harley-Davidson is a waste of money. And don't get me started on boats and Jet Skis. They are all lousy deals.

It is hard to have energy when you are sleep deprived, out of shape, and sick. You are better off sleeping than skipping sleep. I've done the Zombie Dance, and it isn't more productive. It is less.

I have learned a few things about energy. You have to sleep at least 6 hours to be worth a damn. People who say they are getting by on 3 to 4 hours a night for nights on end are lying. I've tried it, and you will be shutdown by the end of the week. These people are crashing on the weekends and wiping the fuck out. I know because this is what I do.

In terms of energy, it is better to work more days than more hours. This means getting things done on the weekend instead of during the week and getting adequate rest. Skipping sleep doesn't work. It results in more errors and less getting done. But you can still work 12 hours a day and get your rest. You just can't do much of anything else.

Another insight that I have come across is caffeine doesn't work. It peps you up for a short bit, but sleep deprivation always wins. In addition, coffee and sodas all day dehydrate you which compromises your immunity. I noticed I am sick more often and longer than people who drink water regularly.

When it comes to energy, you have to take care of your body. It is unavoidable. You have to rest. You have to exercise. You have to eat right. And you have to hydrate.

I am sick and sleep deprived almost all the time. This is because I have become deficient in taking care of myself. But I am eating right which is resulting in pretty good things for me these days. I think cutting out the caffeine and getting to bed can only benefit me.

When it comes to time, money, and energy, you have to learn to accept your limits and live within them. The product of this common sense should actually result in greater productivity over the long term. We'll see what happens.

Friday, December 28, 2007

Broadcasting the Patriots - Giants Game

The saga of the right to telecast Saturday evening's game between the New England Patriots and the New York Giants ended in a strange, but satisfying conclusion. The game, to be broadcast on two terrestrial television networks, one niche cable network and even a local independent station or two, guarantees maximum exposure for a potentially history-making game. A victory by the Patriots guarantees them a perfect season at 16-0.

Not only are the fans served well, but the NFL gets slapped. After years of masterly hardball tactics in negotiating ever more lucrative broadcasting deals (to the tune of $3.7 billion annually under the present agreement), it overplayed its hand with regard to its cable service, the NFL Network. A relatively new venture, the NFL Network is available on select cable systems covering about 50 percent of the cable households. Cable operators such as Time-Warner have balked at including it in their systems because of ongoing disputes over fees and placement, meaning whether the service would be on some kind of "basic" tier or would it be an additional pay tier, like, say an HBO.

By coincidence, this game was originally going to be covered by the NFL Network, meaning that millions would not be able to see the game. When a game is on the NFL Network, the only non-subscribers that can see are those from the local markets of the particular teams, where the game can be simulcast on a local over the air station. In New York, that station was going to be WWOR-TV Channel 9.

The NFL, acting in traditional high-handed fashion, rejected any change in this arrangement until this week, when the outcry -- from fans, commentators, and members of Congress -- was such that the NFL had to back down. So he NFL decided to do something unique -- broadcast the game nationwide on two terrestrial networks: CBS and NBC. They will simulcast the game from the NFL Network, but such an action would be the first time since Super Bowl I that a joint network telecast will occur.

But the problem is not solved. WWOR in New York is angry about this arrangement and possibly, an equivalent independent station in the Boston-Manchester market is as well. WWOR plans to also simulcast the game, but there is a real question of how many fans will watch that broadcast and how much advertising loss will occur for that station.

The result: a total of three networks will cover the game: CBS, NBC and the NFL Network, coupled with one or two additional local stations.


(Postscript: I recall that at the very beginning of the 1967 Super Bowl I game, NBC had technical difficulties and was off the air for 30 seconds to one minute, driving millions of viewers to CBS. I would appreciate it if anyone can confirm the truth of this statement.

Wednesday, December 26, 2007


In 1986, Congress passed the Anti-Drug Abuse Act which, among other things, mandated sentences for offenses involving crack cocaine to be 100 times more severe than for crimes involving powdered cocaine. Many have seen this disparity in sentencing guidelines as reflecting the similar disparity in the way the law treats the poor and the not so poor. Whether true or not, crack cocaine is typically associated with urban neighborhoods while powdered cocaine is seen as the drug of choice in the Hollywood hills and townhouses of Manhattan.

What does this have to do with Sports Law?

A major impetus for the Anti-Drug Abuse Act was the death earlier that year of Len Bias, the University of Maryland basketball star and number one pick of the Boston Celtics. Bias reportedly died of a cocaine overdose.

And today, the Washington Post is reporting the tragic story of Willie Mays Aikens, the former Kansas City Royals first baseman noted for being the only player in baseball history to hit two homeruns in a game twice in the same World Series. In 1994, Aikens was sentenced to 15 years in prison for possessing 64 grams of crack cocaine, about the weight of a candy bar; to receive a similar sentence for possessing powdered cocaine, one would need to be caught with more than 6 ½ kilos or more than 14 pounds.

Aikens has become the symbol of what many see as the unequal treatment of the poor and minorities in America’s judicial system. As he told the Post, "The disparity, as far as I'm concerned, is totally wrong. This took me away from my family. My girls were 4 and 5 years old when I was sentenced. Now they're 18 and 19."

Aikens is not scheduled to be released from the federal penitentiary in Jessup, Georgia until 2012.

Tuesday, December 25, 2007

Shit on Christmas

It is Christmas Day. I have spent the last four days fighting traffic and shitheaded shoppers while waiting for countless hours in lines to pay for shit I can't afford for the people I love or who at least love me enough to buy me a gift all for the celebration of the birth of a savior I do not believe in. All I can say is, BAH, HUMBUG!

I realize that Christmas was based on a pagan festival and was merely coopted by the christian church and relabeled "Christmas." One way or another, this day was going to happen. But I still think the world would have been a better place if King Herod had succeeded in getting his hands on the infant Jesus and strangling the fucker in his manger. The Roman soldier who raped Mary should have pulled out.

Now, don't get me wrong. I love buying gifts. I love birthdays and Valentine's Day. That is because I only have to buy for one person, and the lines are not nearly as long on those days. Plus, I can buy them something substantial. As it stands, I have to budget on Christmas to make sure everybody gets a gift.

Picking gifts for people also sucks. I am easy to buy for. I like clocks, coffee cups, and books. The answer for most people is the gift card which I think is a suck ass gift, but it saves you the trouble of trying to buy something for someone. Another upside is that you can knock out all your gift buying in one shot by getting everybody a gift card to the same place. Next year, all the women on my list will get a Wal-Mart card while all the men will get a Lowe's card. Give the gift of shopping! Let other people spend your money. The gift card ensures that it won't be spent at the liquor store.

The other thing about Christmas I hate is the food. I've been eating healthy, but it never fails. You go to some social function, and there's nothing but sugar and lipids. I decline, but there's always someone who tries to push the shit on you. This is when I get pissed. Fuck your goddamn fatty ass Christmas food. I don't want it. Force it on me again, and you will be wearing it. My days of being a fat ass are coming to an end.

I just want the bullshit to end. I dread the season from Black Friday all the way to December 25th. I used to like it as a kid, but my enthusiasm for the holiday ended around the time I realized Santa wasn't real.

Shit on Christmas. Bring on the New Year.

Monday, December 24, 2007

Introducing Blog Justice

Alan Milstein and his law firm, Sherman Silverstein, Kohl, Rose & Podolsky, have started a new blog that will be of interest to many of you: Blog Justice. It will examine legal issues that intersect with social justice. While Alan is regarded by many as the nation's leading sports litigator (he has litigated on behalf of Allen Iverson, Eddy Curry, and Maurice Clarett, among other prominent athletes), he has received even more acclaim for his litigation in the areas of insurance law, products liability, bioethics and clinical trials litigation. Perhaps his most notable case was his representation of the family of Jesse Gelsinger, an 18-year-old who died during an early gene therapy study at an Ivy League university. Alan's expertise on these issues will no doubt prove illuminating when examining various legal topics.

Consider some of the first posts on Blog Justice:

Bad Blood Redux (questioning the FDA knew that a company testing the safety and efficacy of the artificial blood substitute Polyheme would draft primarily African-Americans as test subjects)

Tragic Pittman Case May Land In The High Court (discussing the tragic case of Christopher Pittman, who was 12-years-old when he shot and killed his grandparents while using the drug Zoloft)

New Jersey Repeals Death Penalty (discussing the end of the death penalty in the state of New Jersey)

There are many other great posts on Blog Justice. Be sure to check them out.

Sunday, December 23, 2007


A state judge in Baton Rouge, Louisiana granted a request to adjourn a personal injury trial scheduled to start the same day LSU plays Ohio State in the BCS national championship game. The defendant’s attorney, Stephen Babcock, requested the delay claiming he had tickets to the January 7th game at the New Orleans Superdome. In his request for adjournment, Babcock wrote: “All counsel to this matter unequivocally agree that the presence of LSU in the aforementioned contest of pigskin skill unquestionably constitutes good grounds therefore. In fact we have been unable through much imagination and hypothetical scenarios to think of a better reason.” In his papers, Babcock referred to the Buckeyes as “Slowhio . . .due to their perceived lack of speed on both sides of the ball.”

I have my own reasons for rooting against Ohio State, but this gives me one more.

More on Corporate Stupidity

Ever since my previous post on Corporate Stupidity, I have received a lot of questions concerning why such stupidity comes about in large organizations. I will now explain.

The purpose of any capitalist enterprise is to make money. A company will cease to exist if it does not ultimately turn a profit. Period. A lot of people will decry the "greed" of a company and say such stupid things as "they only care about money." Exactly. Saying a company only cares about making money is the same as saying that a bird only cares about flying. This is what companies do.

This purpose is what Aristotle would call the telos or end. Every human endeavor has some end with the ultimate end being human happiness. The end or purpose of a company is to make money. Companies do this by providing products and services to customers. Customers are people who choose to achieve their ends through the use of your products or services. Companies help customers meet their end, and customers help companies meet their end. It is mutual exploitation for mutual advantage. Both sides benefit in the exchange. If they didn't, they would not agree to the exchange. Simple economics.

In order to provide products and services to customers, companies must use employees. It may consist of one employee or several. Each employee is a company in and of themselves. They each have the same purpose which is to make money. The employer is the customer, and the employee is the "company" providing a product or service to the employer or "customer." Most of the time, this will be labor.

All of economics is comprised of these discrete units called exchanges. These exchanges occur when both parties consider them to be mutually advantageous. They cease when they no longer find them mutually advantageous.

The flip side of these exchanges is theft. These mutually beneficial exchanges become strained and even break when deception, force, and theft come into the picture. If you have ever been conned out of something, you know what I am talking about. There are always people who seek to avoid mutual advantage in economics, and we call these people criminals. This can also include companies.

In the long term, theft and deception are not winning strategies. But people and companies still attempt it to their detriment. I don't know about you folks, but I cease dealing with people I don't trust. I also try to give value for the dollar in my exchanges and play fair. This is because I want people to continue to deal with me. It is pure selfishness on my part. You have to give in order to get.

This issue of trust is why we have drug screening, background checks, credit checks, security clearances, armed guards, locks, accounting controls, etc. We want to do business with people and organizations we can trust. Without trust, there is no commerce.

Companies achieve their end of profit by trusting employees to render the products and services their customers expect. Naturally, this requires people to be in charge to verify that employees are honoring their side of the deal. Slack is an almost mystical force that is a drag on any enterprise. People would rather be paid to do nothing than do something. At some point, the relationship becomes so strained that it has to end. This is why it is called "termination." The relationship has been terminated.

As you can see from these fundamentals, the most valuable economic asset you can have is trust. Character trumps talent. People would rather do business with people and companies they trust than with companies they don't trust. This is why branding is so vitally important. I'm not likely to eat at Joe's Diner in Bumfuck, South Carolina even though it may have outstanding food. This would require a risk on my part. But I will eat at a McDonald's. That is because I trust McDonald's. This is also why McDonald's takes such great pains to ensure that you have the same experience in every store you go to all over the world.

Companies become big by consistently delivering what customers have come to expect. Quality matters less than reliability. It all comes back to trust. Trust is the most valuable commodity you can ever have. This is why things such as standards, appearance, etc. matter so much.

Companies lose sight of this important aspect of trust. Trust is a two-way street. Sometimes, companies strain relationships with customers by treating them more like criminals than customers. Microsoft and Sony are two noticeable examples of this trend. Both have made it harder for customers to enjoy their products because of their efforts to combat piracy.

Likewise, companies strain relationships with employees by treating them like criminals. Honest employees feel that they are laboring in a prison camp sometimes, and the strain becomes too much. Throw in getting jerked around, and they walk. The actual bad employees are not bothered by this since they see this as normal. Good employees don't.

The fallacy in this thinking is what I call "One Size Fits All." There are always going to be dishonest people who want to abuse the trust. But these people are a minority. By their own actions, they marginalize themselves to the fringes of society. They trash their credit, lose their jobs, get evicted, and eventually end up in prison. From there, further abuses of trust result in beatdowns, anal rape, and a sharpened toothbrush in the throat.

You do not build a lasting and profitable enterprise by being dishonest. Likewise, you do not build a lasting and profitable enterprise from being a sucker either. Lastly, you do not build a lasting and profitable enterprise by treating honest people like criminals.

So, how do you resolve this? The only answer is to treat people appropriately. You should treat employees and customers with the appropriate level of respect that they deserve. This requires judgment and insight. This requires being civil and polite. This requires giving people the benefit of the doubt. But it also requires decisive action when it is needed. In short, it requires prudence.

People who lack prudence prefer the one size fits all approach. If you refuse to trust, you can never be betrayed. But how far would you make it in the world without trust? There's a reason reclusive hillbillies make their own moonshine, have few teeth, and fuck their family members. Lack of trust makes them this way.

Corporations become like these hillbillies when they employ a one size fits all approach to things. I often wonder how companies became so big with this lowest common denominator thinking until I realized that this happens as a result of becoming big. For instance, IBM became the biggest computer company in the world by having innovative people come work for it. But along the way, they became oppressive and alienated those same types of people who had made the company. Today, Apple has a larger market cap than IBM. They got there by employing the people IBM didn't trust.

So, who do you trust? That is really the bottom line. Honesty is simply fidelity to truth. What is true is what is real. Crooks learn early on that they can deceive people by telling them what they want to hear and giving the appearance of honesty and trustworthiness. And how are they able to pull this off? ONE SIZE FITS ALL.

It has been my experience that people trust the people they like, and they distrust the people they don't like. This is a generalization since not all people are like this. But confidence men con you by gaining your CONFIDENCE. This is why they are called confidence men or con men for short.

Con men gain confidence by telling people what they want to hear as opposed to what they need to hear. A con man always tells you what he is going to do. An honest person tells you what they have done or what they are currently doing. This is because the past can be verified. The future cannot. The future must be taken on faith, and con men love faith.

Honest people tell you things you don't want to hear. This is because reality is not always pleasant. People who punish candor and honesty surround themselves with crooks and liars. This is not their intention, but it is the only logical outcome of their policies. This is why organizations become populated by sycophants, brown nosers, ass kissers, etc. Eventually, reality must prevail because it always does. When this occurs, people wish to dodge the blame for that reality, and it is either thrust on someone else or someone is sacrificed. This is why those same sycophants are adept at backstabbing, blameshifting, or stealing the credit. Their skills are primarily political.

In any organization, you will have two camps. There are those who get it done, and there are those who get out of doing it. They are the wheat and tares of Corporate America. It is a sad situation, but it is what it is. Who are the winners?

In the long run, reality wins, and those who are in fidelity with reality will win. But this requires patience and diminished expectations and all that comes with that. This is hard. But I have seen the tares get chopped down, and I have seen the wheat prosper. Reality favors consistency and persistence.

Companies can live without the tares. They cannot live without the wheat. Good management consists in identifying the wheat and the tares and cultivating one while destroying the other. No manager embraced this more than Jack Welch at GE. Jack Welch embraced merit and candor while terminating the slackers without remorse. This is the way it ought to be. Jack Welch eschewed one size fits all. He treated people appropriately. He rewarded the good and punished the bad. Jack Welch took a great company and made it greater. Did he make mistakes? Absolutely, but the good far outweighed the bad. Welch was a winner.

Welch's methods may seem harsh, but reality is harsher. Welch only beat reality to the punch. This is what made him great.

This is the question I always get. What am I supposed to do? In short, should I be an asskisser or an asset? Think about it for a minute. All I can tell people is that there is no protection in silence. I am almost certain the captain of the Titanic did not want to hear about the hole in his boat. But not telling him was not going to change a thing.

In my own life, I have found you are always better off telling the truth, being candid, showing your ass if need be, etc. I'd rather be hated now and loved later. This means telling people what they need to hear as opposed to what they want to hear.

People will tell you that candor and honesty are not winning strategies. I beg to differ. There is a political cost to honesty. You will be hated by idiots, morons, and fucktards. This is a bad thing?

I'll have more in a third installment. Stay tuned. . .

Saturday, December 22, 2007

Fantasy Baseball Implications of Mitchell Report

Over on his blog, SportsJudgeBlog, attorney Marc Edelman has an excellent look at how the Mitchell Report might impact fantasy baseball in 2008. He has five key points, here are the first two:
1. Players Named in the Mitchell Report will Likely be Underrated in '08. Many fantasy owners are going to predict a decline in the statistics of players named in the Mitchell Report. Don't be one of them. The findings in the Mitchell Report are distant in time, and they only focus on a few teams based on witness availability (Mets, Yankees, Orioles, Giants, Athletics). Therefore, the Mitchell Report is not likely to help predict the specific players that will lose their power or velocity next season.

2. Don't Trust Anybody Over 35. Before 1995, it was very rare to find a power surge or velocity increase in any player over 35. Recently, we have seen examples of both. However, most of the players experiencing a renaissance in the twilight of their careers were cited in the Mitchell Report for allegedly doping. Without assessing the merits of any individual allegation, I would move any player over age 35 down a tad my draft list. (Unless, of course, the player is a knuckleball pitcher such as 41-year old Tim Wakefield).
For the rest of Marc's piece, click here.

Friday, December 21, 2007

More on the Knicks and Fan Speech at the Garden

Stefan Fatsis of the Wall Street Journal, who does an outstanding weekly Q&A on "All Things Considered" about the business of sport, talked Friday about the Knicks recent actions to stop Garden fans from criticizing the team, the players, the coach, and anyone else fans might want to criticize. Fatsis and I spoke at length about my work and arguments about cheering speech and he gave a nice shout-out to this blog on the segment.

Paradoxically, this could be the incident to draw public attention to the protected nature of cheering speech and what should be the real limits on teams' ability to restrict fan speech. Although there is no First Amendment issue here because of the private nature of the Garden, it is receiving more attention (because it is New York, the Knicks, and the Despised Isiah Thomas) than any of the other cheering-speech incidents that I have written about previously.

Overall Thoughts on the Mitchell Report

I have a FindLaw guest column today giving my full thoughts on the Mitchell Report, helped along by some of the posts and comments on this blog in the past week.

Thursday, December 20, 2007

Quality of Evidence in the Mitchell Report

Howard and I are interviewed by Jimmy Golen of the Associated Press in an extensive piece he has written on the quality of evidence found in the Mitchell Report. Jimmy has a law degree from Yale Law School and he brings a particularly insightful perspective to legal issues involving the Mitchell Report. We hope you take a look at his piece.

Wednesday, December 19, 2007

Wynyard Nightowl

Well here she is - At last she is with us. Six weeks in foal to Coalman's Touch and just as lovely in the flesh as her photos!

When Will They Ever Learn?

Count the New York Knicks as the latest team to think it is a good idea to restrict fans from criticizing an incompetent coach, team, and organization. The New York Times reports on two recent examples. (H/T: Deadspin). Last week, a fan was moved to a new seat and issued a written warning for heckling Head Coach Isiah Thomas; the card read "You are being issued a warning that the comments, gestures and/or behaviors that you have directed at players, coaches, game officials and/or other spectators constitute excessive verbal abuse." On Monday, a fan had a "Fire Isiah sign" confiscated, pursuant to a policy that prohibits signs that block the views of other patrons.

No First Amendment problem here; the Garden is privately owned and privately financed, so the Knicks can control fan speech however they want. And at least the sign policy is content-neutral, thus likely valid even in a publicly owned arena.

But at some point won't teams figure out this is not worth it? In exchange for removing one sign that probably was not blocking anyone's view (see above), the team gets more bad publicity and it sent the fans into the streets, literally: A "Fire Isiah" rally was held on the 7th Avenue side of the Garden today, complete with an 8-foot-tall pink slip. Maybe the Knicks are so desensitized to bad publicity at this point that it does not matter.

But professional sports teams sell themselves to the community as a public good; that is the argument for obtaining public financing of stadiums and other public support. In exchange for that, teams ought to expect some criticism from fans when they run that public good into the ground.

Update: 7 p.m. C.S.T.:

ESPN story on the protest, which drew about two dozen people. You can see the 8X4 pink slip in the photo.

Using a Libel Lawsuit to Test the Mitchell Report's Credibility

Here’s a thought. Many of us here have written that a libel suit against George Mitchell, his firm, and his “informants” would have little chance of success because the players are all public figures. If the maligned players want to clear their name, it makes sense for someone to file a law suit just for the purpose of being able to cross-examine Kirk Radomski and Brian McNamee, which I would think would be ‘easy pickins.’ He could then release the deposition transcript to the media or to Sports Law Blog and we could all judge the credibility of these charges.

Tuesday, December 18, 2007

"Fundamental Fairness in Union Regulation of Sports Agents"

That's the title of my latest article published this month in Connecticut Law Review, which can be downloaded from here. By now you may be tired of my views regarding the agent biz, as well as my disdain for lack of due process generally. Well, this piece combines both, and addresses whether the agent regulations unilaterally adopted by the players associations afford agents a fundamentally fair enforcement process when the agent is accused of misconduct by the union. This issue involves a complicated interplay of multiple bodies of law that govern the unique tripartite player-union-agent relationship, including Section 9(a) of the NLRA, basic notions of due process, the laws governing private associations, contract law and the Federal Arbitration Act (FAA).

My article compares and contrasts various provisions contained in the agent regulations of all four players associations. While I certainly acknowledge the union's compelling interest in combating agent misconduct and that the union should be afforded deference to enact and interpret its own rules and regulations, I am only willing to stretch those concepts so far. In my view, there are two provisions particularly concerning from a fundamental fairness standpoint: a provision that permits the union to suspend or revoke an agent's license prior to a hearing when the union determines that "extraordinary circumstances" warrant it; and a provision that allows the union to unilaterally select the arbitrator to decide all agent appeals. My article opines that the first provision violates basic notions of due process because suspension of an agent's license not only directly and immediately impairs an individual's livelihood but can cause irreparable damage as well, and that the second provision is invalid under the FAA on grounds of both procedural and substantive unconscionability. I conclude that neither provision is essential to preserving the union's legitimate Section 9(a) interest, and should therefore give way to the agent's compelling interest in a fundamentally fair enforcement process.

If you're looking for something to read over the holidays, I hope you'll check it out.

Monday, December 17, 2007

Dimino on Punishing Steroid Users

Mike Dimino at PrawfsBlawg argues that players found to have used steroids should receive lifetime bans for threatening the integrity of the game. The post and the ensuing comments are worth a look.

Sunday, December 16, 2007

Christmas Came Early for Mitchell's Law Firm

In the prior posts, a number of you criticized the shoddy work product created by Sen. Mitchell and his law firm DLA Piper. In reading the report (aka term paper?), which was ripe with secondary sources as footnotes and with proposals for change that very so general that a reasonable person could figure them out, it made me think: how much in legal fees did Mitchell's firm earn producing this piece of work? From what I heard, there was no budgetary limits imposed by Major League Baseball over the last 20 months.

I do not know how many people -- partners, associates, paralegals, secretaries, others -- were involved in preparing the report. Does anyone know about how many were involved and what the hourly rates are at DLA Piper? I figure the fees almost certainly would be in the millions. Can anyone venture a guess?

Given such a public and in some cases damaging report, isn't there a duty to disclose how much DLA Piper was paid for their work.

In any event, I'll bet that the partners will have a very happy holiday.

Milwaukee Journal Sentinel Empirical Study of Players Named in Mitchell Report

The Milwaukee Journal Sentinel has conducted an empirical analysis of the statistical performances of the 90 players named in the Mitchell Report. The study, conducted by JS writers Ben Poston, Derrick Nunnally, Bill Glauber, and Don Walker, compared the players' first two seasons while being linked to performance-enhancers with their career averages.

Acknowledging that there may have been other casual factors (e.g., entering one's prime, hitting in a better lineup, receiving better coaching etc.), the study found that more than half of the named players experienced improved performances after being linked to roids. A full image of the chart to the left, which details the findings, can be seen here. The authors interview Gary Wadler, an internist who chairs the World Anti-Doping Agency's Prohibited List and Methods Sub-Committee, and me, for reaction.

Also, Tim Lemke of the Washington Times has an extensive piece on the prospects for a libel lawsuit, should any players be erroneously named or described in the Mitchell Report. He interviews MLBPA chief Donald Fehr, Jim Astrachan, an adjunct professor at the University of Maryland College of Law, and me.

Update: Alan Milstein discusses some interesting stories below in the comments:
Pettitte says he had two shots of HGH to see if he would heal faster, based on the recommendation of a trainer. Considering HGH was not a banned substance, how can anyone fault him for taking a drug to heal better? Don't we all do that?

Donnelly says he called Radomsky who recommended a steroid and he declined. He also said he was a marginal player who is now out of baseball and is sickened that his name has been tarnished.

David Justice, who I always thought was a class act, says the informant is lying and wonders how come there is no copy of any check he wrote when the report has copies of other checks? Good question. The answer is because there is no justice for Justice.

Mitchell and DLA Piper have done a real hatchet job here. They should be lambasted, not applauded. While a libel suit would be tough because the players are all public figures and because the law firm can say it in good faith relied on what the sources reported, the court of public opinion is a different story. Did some players take steroids or HGH? I'm sure they did. But, as a lawyer, I am more disappointed by the work product of Mitchell's team than I am of my home baseball team.

Alan Milstein

Jenkins Ruins USADA's Perfect Record

On Friday, a AAA arbitration panel in the case of United States Anti-Doping Agency v. LaTasha Jenkins ruled in favor of 2001 world track medalist LaTasha Jenkins, who had been sanctioned in 2006 for using the anabolic steroid nandralone but now has the option of resuming her effort to try for the 2008 U.S. Olympic team. The arbitration panel ruled that the results of Jenkins' positive doping test from a track meet in Belgium last year were compromised because both European labs testing her sample violated World Anti-Doping Agency rules that require the tests be run by two different technicians.

Jenkins was represented in the case by the Valpo Sports Law Clinic, which is directed by Professor Michael Straubel of the Valparaiso University School of Law. In the law school's press release, Professor Straubel stated:
This addresses a crucial issue emerging in sports law. Has the science been done well? Anti-doping enforcement relies heavily on still-developing science. The standard these labs violated is a safeguard that prevents labs from providing doctored results to mask testing process error or to intentionally harm the athlete’s standing. The burden of proof is on the laboratory to demonstrate that both the science and ethics of the test were properly managed. Assertions of propriety are partial and therefore not reliable proof.
According to USADA CEO, Travis Tygart: "USADA is not the judge. At the end of the day, independent arbitrators make a decision through an established process that's designed to protect the accused athlete's rights. They base the decision on the evidence presented."

According to the press release, USADA's overall record fell to 36-1.

PRINT-Ultramarathon Man by Dean Karnazes

Greta got me this book for my birthday after I had expressed an interest in reading it. I devoured it in two days. Ultramarathon Man is an outstanding book. I highly recommend it.

I have taken some flak here from ultrarunners, and I want to say that my opinion of their activities is unchanged. I think ultrarunning is stupid. It is a stunt not a sport. But this does not change the fact that Dean Karnazes, aka "Karno," has written an excellent book here. His tale is inspiring, and you can't help but like the guy.

People criticize Karnazes because he is a rockstar in an otherwise obscure sport. The man gets more press than bona fide champions like Scott Jurek and Pam Reed. Clearly, the man knows how to market himself, and you might be lead to believe that Karno is full of himself. But I didn't get that from the book. At points, you think Karno is bragging about his exploits, but he is also self-deprecating. Basically, he states the facts. He tells you about his strengths and his weaknesses. And he admits that a lot of the stuff he does is just plain nuts.

Karno begins the book talking about his early life, his family, and his involvement in high school running. After a falling out with his coach, Karno left running and did not return to it until he had a midlife crisis on his 30th birthday when he ran inebriated for 30 miles in his underwear and some crapped out tennis shoes. Wanting to do something beyond the corporate grind, Karno became a runner and then an ultrarunner.

I admire runners, and I aspire to become one myself. I do not admire ultrarunners. They are fools. When you read about people having renal failure in a race or having to weigh themselves at checkpoints so they don't die, you realize these events aren't a test of endurance but of sanity. I'm sorry, but I don't want to push myself into the realm of kidney failure and death. Maybe I'm a pussy, but I don't see this stuff as being healthy. It takes discipline and determination to train for and race in a marathon. The marathon is tough. An ultramarathon is just fucked up stupid.

Karno does stuff like race Badwater where he had to run the white line on the road to keep his shoes from melting or running a marathon at the South Pole where he put warmers in his shoes to keep his feet from turning into blocks of ice. I'm tempted to call these exploits horizontal mountain climbing because that is the only activity I can liken this craziness to.

I know I will catch shit from the ultranuts over this, but my criticism is based in Aristotle's Golden Mean. I think being a fat bloated couch potato is bad. Eventually, such a lifestyle leads to bad joints, diabetes, kidney failure, and blindness. But ultrarunning isn't much better. It is equally as unhealthy. Ultraunners eat garbage and push themselves to the opposite extreme resulting sometimes in kidney failure and death. Karnazes is an outstanding specimen of health and fitness, but I think we would view him very differently with brain damage, missing digits from frostbite, or spending his days on dialysis.

The people I admire are folks like my girlfriend Greta who gets up each morning and does her miles and simply wants to qualify for the Boston Marathon. I admire Karnazes for the same reasons. I admire the guy for making a change in his life and living a disciplined life. I admire people who run each day or make the proper food choices at mealtime or what have you. I admire people who want to run a fast race, but who don't push themselves into injury.

Aristotle said that excellence was not a singular act but a habit. We are what we repeatedly do. For Karnazes, glory lies in a single spectacle like running to the South Pole. But I think the real glory is living each day and every day putting in the miles rain or shine. This is what a race is about. It verifies not that you have the guts to finish an eyepopping distance, but that you had the discipline to prepare each day. A race is a test of excellence. I think Karno misses that.

Ultraunning is inherently Platonic. It denies the world. It is monastic and masochistic. Runners care for their bodies. Ultrarunners punish their bodies. Runners embrace the flesh. Ultrarunners deny it. This is why runners hate a 70 degree day on raceday while ultrarunners embrace the 120+ degree temperatures of Death Valley for the Badwater Ultramarathon.

I fall on the side of Aristotle. This is why I think ultrarunning is stupid. Basically, Plato believed in the perfect world of the Forms and the material world was just a shadow of this world of perfection. This influence lead to the world and flesh denying aspects of Roman Catholic theology and practice. This is why you have the veneration of the Virgin, the practice of celibacy, monasticism, and masochistic acts of purification involving hair shirts and self-flagellation. Ultrarunning taps into this world of Platonic dualism with an emphasis on discovering something about yourself or the world or life as you reach the outer edge of utter self-denial. Naturally, mere mortals such as myself are denied this "knowledge" because we are flesh obsessed hedonists. I'm sorry, but I think Plato, Catholicism, and ultrarunning are fucked up in their worldviews. And it is the same worldview.

My Aristotelian worldview emphasizes running as an activity that promotes health and vitality and an enjoyment of the world. It feels good to be in shape, and fitness enables you to do a lot of things you couldn't do. This is why we call it "fitness." You are fit for a certain activity. Naturally, ultrafreaks and Platonists will decry the softness of this approach, but Aristotelians are not soft. They just refuse to be stupid. And they race to put up a good time not find salvation or enligthenment or Krishna consciousness or self-discovery or what have you.

I doubt I have settled this debate, but I can tell you that Ultramarathon Man is an excellent book. Karnazes is a fascinating and very likable individual even if I think he is a bit nutty. I really enjoyed reading about him, and I'd love to meet the guy.

Saturday, December 15, 2007

Something else that is W's Fault

Jack Balkin argues that the entire steroids mess can be traced back to Bud Selig's refusal to step aside back in 1992-93 and let George W. Bush become commissioner.

Bonds and Clemens, Distinctions and Differences

I have not yet written about the Mitchell Report at length; I am working on a longer piece for FindLaw for next week (in between showing my daughter her first snowfall) and will link to that. I did want to jump in quickly on the comparisons between Barry Bonds and Roger Clemens. The two now are inextricably linked forever in baseball history--the greatest pitcher and the greatest hitter of this generation both used performance-enhancing drugs. And both experienced similar late-career resurgences and high-level performances past the age of 40--although we now have evidence that both were drug-enhanced.

Michael noted a post by Paul Butler at BlackProf arguing that the charges against Bonds should be dropped, in light of the revelations about Clemens, that this is another example of racial inequality in the way the criminal justice system handles drug crimes. And the disparity of treatment between Bonds and Clemens has been a recurring theme in the blogosphere.

I want to disagree up to a point.

I agree that we (the press, the fans, etc.) were much more suspicious of Bonds's late-career revival and body changes than Clemens's--whether for reasons of race, non-New-England-based love of Clemens, dislike of Bonds personally, or a combination of all four.

But I reject the notion that the federal government is acting in a racially biased fashion if it continues to prosecute Bonds in light of the revelations about Clemens. Bonds is not being prosecuted for using steroids. He is being prosecuted because, having (allegedly) used steroids, he was a material witness to a grand jury investigation of the producers of PEDs (BALCO) and, testifying under a grant of immunity, he lied to the grand jury about his steroid use.

This is not a distinction without a difference. If Brian McNamee (Clemens's former trainer and his purported steroids source) is prosecuted for distributing steroids, Clemens testifies and denies using steroids in the face of what we now know, and the government does not, at least, investigate Clemens for perjury and obstruction of justice--then I will agree that something might be amiss. On the other hand, if MLB punishes Bonds for using steroids and does not punish Clemens, it might suggest some racial bias. Failing either of those two situations, Clemens and Bonds are not similarly situated.

The Gospel of Hard Work

This question comes up at work a lot. Does hard work matter? Or does success belong to the lucky and to the political players?

Clearly, there are people who have become rich or powerful out of sheer luck. These are people who have won the lottery or were born into a famous or rich family or what have you. These people didn't lift a finger, but lady luck smiled on them. Then, there are those people who got to where they are not as a consequence of talent or diligence but merely because they were willing to debase themselves in some way. These are the ones who screwed the boss to get a promotion or lied or bribed or what have you to get to where they are. They are the asskissers and backstabbers of the world. Unlike the lucky, these people acted to make things happen for themselves even if those methods were morally compromised.

On the flip side, there are people who have worked extremely hard and have nothing to show for it. This is because lady luck frowned on them. Actions beyond their control worked to undo the fruits of their labor. Shit happens, and there's not a whole lot you can do about it. Like it or not, labor often goes unrewarded.

So, does hard work matter? Absolutely. Here's why.

The first thing that must be made clear is the definition of success. For most people, being successful means being rich. But this is a flawed definition. Clearly, there are people who were rich that I would not consider successful. Kurt Cobain was one such individual. The guy was rich and famous and even revered as an icon. But he blew his brains out with a shotgun. Clearly, something was wrong.

Success must be measured against the purpose of life which is to be happy. If you are happy, you are successful. If you are not happy, you are not successful. Shitheads are unable to grasp this distinction. Somewhere along the way, money became a substitute for happiness. This is understandable since money is objective. It can be counted and measured and compared. But money and happiness are not the same thing.

Now, I'm not one of those Zen Buddhist spiritual types who derides wealth and material possessions. I can tell you that money does not buy happiness, but I can also tell you that you can't be happy without money. This is why it is always better to be rich than to be poor. Money buys the material means to achieve our ends. A musician is nothing without his instrument. A scholar is nothing without his books. Tiger Woods is nothing without a set of clubs.

Giving someone like me a set of golf clubs would be a waste. I don't golf. I don't like it. Likewise, I don't care about having a big fancy boat or a Ferrari. None of these things serves as a means to some end for me. But I would love to have a Toyota Tacoma pickup truck simply because I want to haul stuff but also fit in a parking spot. If I won the lottery, I would buy this truck. I would not buy the Ferrari.

I don't spend my time comparing myself to other people or coveting what they have or envying people. This is because I measure myself against my own goals and my own happiness. This is how I am able to pull off that neat trick of being both self-deprecating and arrogant as hell at the same time. I'm a very happy person. When you are happy, you don't give a shit what other people think about you. Insults or praise are meaningless to me. Like Woody Allen, I don't need an Oscar to tell me what I already know.

Happiness comes from hard work. This is the gospel of hard work. I don't even know why they call it hard work because I never saw it as hard. When you love what you are doing, it really isn't work. Happiness is the byproduct of constructive and rational activity. When you are happy, you love what you are doing which motivates you to do it even more. This is how Tiger Woods became what he is. The guy loves to play golf. He is praised for his work ethic on the driving range and the putting green, but folks, it is no sacrifice for him. It would be a sacrifice for me because I hate golf. But that's why I don't spend 10 to 12 hours a day hitting those balls.

If you work hard, you will be happy. People who have attained something without hard work are not happy. They are miserable. It doesn't matter if they are rich or have a privileged position. They have failed at achieving life's end which is to be happy. The result is bitterness and a search for substitutes. These people buy things for the sake of other people and are desperate to convince themselves more than anyone else that they really are successful. But they aren't.

The best example I can give of this is Paris Hilton. She is the epitome of faux happiness. She was born rich with a famous last name. But she is not particularly beautiful or talented or anything. Fate rescued her from her proper place sucking dick in a trailer park and watching Jerry Springer all day. She doesn't work. She spends money, fucks, does cocaine, and whines her way out of jail. This is success?

Compare Ms. Hilton to Madonna who approaches life quite differently. Both are rich, but you get the feeling that Madonna actually deserves what she got. I don't know if Madonna is happy these days, but I know she worked hard for what she got. I also think she enjoyed every bit of it.

I like to think that hard work always results in riches, but it doesn't. But I can say that it does result in happiness. I also believe that you stand a far better chance of being rich as a result of that hard work than if you didn't work at all.

I asked a friend once if he would rather make $50,000 per year doing something he loved or $250,000 a year doing something he hated. Without hesitation, he said he'd rather do something he hated for $250,000. I thought that was rather sad and stupid. But it made sense. People wonder how so many stupid ass people got to where they are in life devoid of talent and even common sense. There is your answer. They were willing to do what the rest of us weren't. What is even dumber is envying those people. When I told my friend he could probably make $250,000 a year doing gay porn, he suddenly found the $50,000 a year job more appealling.

As for me, I'm a whore on some things and a nun on others. I'm willing to negotiate my reputation, my status, and my salary. I am not willing to negotiate my ethics or my happiness. I'd rather advance on my merits, but I also know it pays to advertise. It is a balancing act between excess and deficiency. It is ok to sell just don't sell out.

So, does hard work matter? Absolutely. It is the best way and the only way to be successful in life. Success is happiness not wealth, fame, or status. This is the gospel of hard work. Work hard, and you will be happy.

Friday, December 14, 2007

Leaving the Falcons' Nest: A Tort in the Making?

The news that Bobby Petrino left the Atlanta Falcons for the Ivory Tower at Arkansas ranks as the piece de resistance of a year of turmoil for the team. With Michael Vick gone, the team sank to a 3-10 record, and Petrino, like a rat on a sinking ship, decided to bail out -- despite a five-year $24 million contract.

To add more acrimony, team officials claimed that Petrino was negotiating with Arkansas without permission, a breach of etiquette, to say the least. According to the New York Times, Petrino's rationale for leaving was because his "family was struggling" with the team's losing season. For almost $5 million per season, that's a stress that many families can live with.

But what can the Falcons do? The NFL has no jurisdiction over Arkansas, but team owner Arthur Blank has recourse in the courts: the venerable claim of tortious interference with contract. Although minor differences may exist from state to state, the following elements must be found:

(1) The existence of a contractual relationship or beneficial business relationship between two parties.
(2) Knowledge of that relationship by a third party.
(3) Intent of the third party to induce a party to the relationship to breach the relationship.
(4) Damage to the party against whom the breach occurs. (Source: Wikipedia)

I think that a good case can be made. The key requirement is (3) and I think that may not be that difficult to prove. If Arkansas officials knew about Petrino's unhappiness and induced him to leave for the confines of Fayetteville, they exercised unethical and tortious conduct, along with bad faith. Damages -- finding a replacement, dealing with the negative effect on the team, a possible loss of fans and ratings -- may well be shown.

As quarterback Joey Harrington said: "He [Petrino] preached team and he preached family and then he quit on it. . . He lied to us." To Mr. Blank, who was quoted as being "betrayed" by this act: don't get mad, get even.

More Good Stories on the Mitchell Report

The Mitchell Report has generated a bevy of excellent news, media, and blog stories. To add to those mentioned in previous posts, check out:
  • Geoff Rapp has some terrific comments in a piece today by Tim Lemke of the Washington Times.
  • Don Walker of the Milwaukee Sentinel Journal examines the quality of evidence used to implicate players. He interviews Marquette Law Professor Matt Mitten and me for his piece.
  • George Washington University law professor Paul Butler, in a post on BlackProf entitled Free Barry Bonds, argues that "If the other players [named in the Mitchell Report], most of whom are white and Latino, do not face criminal charges, the prosecutor should drop the charges against Bonds."
  • Willamette University law professor Jeffrey Standen, in a post on Sports Law Professor entitled Mitchell Report Reactions, argues "The report names a lot of players; presumably many more are involved. At some point the law of diminishing returns kicks in and we no longer care."
  • In a press release, Duke law professor Paul Haagen and Duke cultural anthropology professor Orin Starn discuss the desire the affix blame for the steroids problem.
  • George Mason law professor Illya Somin, in a post on The Volokh Conspiracy, argues that George Mitchell did not have a conflict of interest in his role as director of the Red Sox. I argued the same on

Others' Thoughts on the Mitchell Report

I will have more to say about the Mitchell Report later. For now, let me note a few other commentators:

1) I agree with much of Alan's point that this turned out to be much strum und drang about nothing, because the Report did not really tell us anything we did not know or at least suspect, beyond specific names (although I think I have less problem with naming names than Alan did). I also thought the divide between Mitchell ("move forward") and Selig (punishment on a case-by-base basis) was notable.

2) I second Rick's shout-out (in the Comments) to the Sean Gregory piece in Time.

3) Jack Balkin comments on the defamation issues for Roger Clemens here and why constitutional rules make it impossible for Clemens to use defamation law simply to clear his name.

4) Michael Dorf suggests that the one person who came out ahead here is Barry Bonds. First, we no longer can single out Bonds as a unique cheater, because others were doing it (this is not an excuse, but it takes the uniqueness out of the mix). Second, Bonds set his records against pitchers who themselves were juicing, suggesting that the playing field was, in some sense leveled.

5) To jump and answer a question from Jimmy H in the comments to Alan's post about the "leaked" report that included some big-name current players, including Albert Pujols: Again, defamation remains on the table, subject to NBC having done something to suggest it published the leaked names with knowledge or recklessness as to the truth of those players being in the Report.

6) See Jeff Lipshaw at CoOp taking the time to correct the media on what hearsay means and why most of the evidence in the Report is not, in fact, hearsay. I was yelling at Peter Gammons and John Kruk everytime they threw that word around without having the first clue what it means.

Thursday, December 13, 2007


After all that, this is what the fuss was about? Let’s take a deep breath and consider this Report by George Mitchell which ESPN headlined “Culture Shock.” A few facts would be nice.

First, despite what Mitchell says, baseball had no policy or regulation expressly banning steroids until September 2002, did not have testing with penalties until 2004 and did not ban HGH until 2005. Should Mark McGwire, for example, be vilified for taking androstenedione, a supplement that produced testosterone, when it could have been bought at the time over the counter by anyone and, of course, did not violate MLB rules?

Second, Mitchell did not test anyone, relied mostly on the word of New York Mets clubhouse attendant Kirk Radomski and hearsay from anonymous sources, and yet accused dozens of players by name of taking or using these drugs. Can you imagine any other professional endeavor or class of individuals subjected to such treatment? It is one thing if a player tests positive under rules he knows about and quite another to accept the unsworn testimony of a clubhouse staffer no one had the opportunity to cross examine.

Third, does anyone believe any player has made it to the major leagues who would not have if he had not taken such substances or that anyone is not in the professional ranks because he chose to abstain? Would Bonds have been passed over for any of his MVP awards without Balco’s products; would ARod have hit in the playoffs if he had used them?

Fourth, while the multi-million dollar Report provided a few big names such as Clemens, Pettitte and Tejada, most of the names were fairly mediocre players no longer in baseball. What good did it do to sully the reputation and integrity of these guys? What a low class shot for Mitchell and his law firm to take at athletes who played a few years, made a few bucks, and retired. Can we survey the associates at DLA Piper and see whether they have ever taken performance enhancing drugs to stay up for an all nighter or to party into the night?

Why does the public and the media continue to impose standards and rules on professional and college athletes no one else would stand for?

The hypocrisy is deafening.

Between innings, we listen to advertisements selling drugs to help us sleep, be less depressed, concentrate in school, have better sex, and degrunge our toe nails.

Colleges make millions off the sweat and hard work of their athletes in an archaic system that makes the Confederacy look like the beacon of free enterprise, all on the overstated promise that if they improve their performance they have a good shot at making millions themselves.

And now we are to be shocked and up in arms that a small minority of professional baseball players may have used artificial means to perform better.

Media, Law, and the Mitchell Report

I have a Q/A for Sports Illustrated on the Mitchell Report. I also have a couple of TV appearances, one with Darren Rovell on CNBC's Power Lunch and the other on CNN Headline News' Glenn Beck Show (it just first aired, and airs again at 9 PM and 11PM Eastern Standard Time, I appear in the first segment). Also be sure to check out Howard's chat on

Chat on the Mitchell Report

Earlier today, I did a live chat about the Mitchell Report on

I thought blogging was an off-the-cuff style of writing.

Mitchell Report is Up

The Mitchell report is available for download from MLB's web site. Deadspin is supposedly live-blogging Senator Mitchell's press conference.

Wednesday, December 12, 2007

Patriots v. Jets: Spies Like Us?

This Sunday the 3-10 New York Jets travel to Foxboro, Massachusetts to take on the 13-0 New England Patriots in what will be the teams' first meeting since the Jets complained about the Patriots violating the NFL gameday manual by having a video assistant tape the Jets coaches and players on the sidelines in Week 1. We had several posts on that topic, including a terrific one by Geoff entitled "Sign-stealing, Trade Secrets, and Corporate Espionage." The relevant rule reads as follows:
"No video recording devices of any kind are permitted to be in use in the coaches' booth, on the field, or in the locker room during the game . . . . [all video for coaching .purposes must be shot from locations] enclosed on all sides with a roof overhead."
Although the Patriots were apparently neither the first nor only NFL team to break this rule---former Dolphins and Cowboys head coach Jimmie Johnson admitted, "I know for a fact there were various teams doing this . . .that doesn't make right, but a lot of teams are doing this"---the Pats got caught red-handed, and it led to a severe punishment from Commissioner Roger Goodell: Bill Belichick was fined $500,000, the Patriots were fined $250,000, and, of greatest value, the team's 2008 first round pick was confiscated. The Patriots rule-violation has been great fodder for Patriots haters, who now believe the Patriots "cheated" (I guess any time a rule is broken, we can call that cheating? Or is breaking a rule just breaking a rule?).

Interestingly, Tom Rock and Bob Glauber of Newsday reveal that the Patriots caught the Jets breaking the same rule last season, but instead of telling the NFL, they apparently laughed it off:
According to league sources familiar with the situation, the Jets were caught using a videotaping device during a game in Foxborough last season that resulted in the removal of a Jets employee. After Gillette Stadium officials saw him using the recorder early in the game, he was told to stop and leave the area. He had been filming from the mezzanine level between the scoreboard and a decorative lighthouse in an end zone. The camera was not confiscated by the Patriots or stadium security.

Tuesday night the Jets admitted that they did videotape the game and their employee was confronted, but said they had permission from the Patriots to film from that location.

An NFL source told Newsday the league office is unaware of the incident, and that the Patriots did not bring it up during the investigation into the Jets' charges of illegal videotaping by the Patriots in September.
It always seems the Patriots get the last laugh. Not only are they 13-0 and perhaps headed for 19-0, but courtesy of an earlier trade, they hold the rights to the San Fransisco 49ers 2008 first round pick. As it stands now, that pick will be the 2nd overall pick, meaning the Patriots could go undefeated, win the Super Bowl, and then--right before the Jets pick 3rd--draft a potential franchise player like University of Arkansas running back Darren McFadden. Now that sounds like cheating!

Tuesday, December 11, 2007

Sharpton - Chicago Olympic Bid Update: Daley retorts; Abuse Settlement Advance

The following is an update on yesterday's post on the Rev. Al Sharpton's threats to lobby the IOC to not consider Chicago in its bid to host the 2016 Olympic Games if the City does not reform its policies of dealing with accusations of police misconduct.

The Tribune reported that later on Monday, the City Council's Finance Committee sent a proposal to the full council for approval of an advance on a $19.8 million legal settlement with four alleged torture victims of former police Cmdr. Jon Burge. When told of Sharpton's demands, which include stripping the mayor of the final decision in the firing and suspension of officers accused of misconduct, and releasing the complete records of police officers who have had repeated complaints of misconduct filed against them by African-Americans, the Mayor instructed Sharpton to "get in line".

Commenting on why Sharpton did not use the same tactic against New York, which has dealt with its own abuse problems within its police force, when the Big Apple was bidding for the 2012 Games, the Mayor responded: "It's interesting, nobody opposed New York -- very, very interesting. Why all of a sudden is it opposed here?" Specifically, Sharpton was a supporter for Abner Louima, a Haitian immigrant who was arrested and brutalized by NYPD officers in a police station restroom.
UPDATE ON 12/13/07: Thanks to Peter for the notice. Today, Federal agents issued subpoenas for financial records of Sharpton's non-profit and for-profit businesses, as well as his election fund from the 2004 Presidential Election, and personal financial records of Sharpton and his wife. As many as 10 Sharpton associates are to appear before the Grand Jury in Brooklyn, NY on 12/26/07. Merry Christmas, indeed.

Anticipating the Mitchell Report

Howard Bryant has a lengthy and detailed (albeit anonymously sourced) story at about the soon-to-be-released Mitchell Report and the various problems and intrigues that have confounded the now-20-month-old investigation. The article describes, among other things, pressure from MLB and the investigative team on GMs, trainers, strength coaches, and clubhouse managers to speculate as to possible steroid users. It also contains information suggesting that the investigators were unprepared to ask more than surface questions and did not know enough about the day-to-day life of professional baseball to ask the kinds of questions that would draw out meaningful information. Finally, there is a sense of competing views of the purpose of the report: While Mitchell's team seems to want to name names and expose past wrongdoing, many of the team employees and executives interviewed were hoping for a more remedial, forward-looking report on how to get steroids out of the game going forward. See also the sidebar Q & A with Lester Munson.

Whatever it says, the Report will have a lot of people talking.

Update: 9 p.m. C.S.T.:

A good story from John Donovan at discussing what people in baseball are expecting. Donovan reports that only two active players--Jason Giambi and an unnamed player--spoke with investigators. The report also relies heavily on testimony from former Mets clubhouse attendant Kirk Radomski.

This story says that MLB received a draft of the report earlier Tuesday and release is expected on Thursday. It also reports that 60-80 current and former players are named, most off Radomski's testimony.

Michael Vick's Sentence: 23 Months in Prison, 3 Years Probation

Yesterday I did a Q/A on Michael Vick's sentence for In addition to discussing the sentence--which will last for at least 20 and a half months--I discuss the prospect of Vick's state trial, the factors that will likely be considered by the U.S. Bureau of Prisons in where it decides to incarcerate Vick, and what Vick's supervised release following his prison sentence might entail. I interviewed Tom Hutchison, the chief of staff for the U.S. Parole Commission, for the piece, and he provided some great insight. I hope you have a chance to check it out.

I also contributed some comments to Jeff Barker for his piece in the Baltimore Sun on Vick's sentence. Barker also interviews University of Richmond law professor Carl Tobias.