Thursday, January 31, 2008

Your reputation is at the mercy of anyone with a mouth.

Baseball's "Secret Police" as Unfair Labor Practice?

The Umpires' union is upset about Major League Baseball's agressive background investigations of its members. According to ESPN, MLB began to conduct checks on umpires in the wake of the Tim Donaghy scandal in the NBA.

The union has not decided whether or not to pursue legal action. Although members have characterized the questions asked as "defamatory" (for instance, "Is umpire __ a member of the KKK?"), it doesn't seem like a tort claim would have legs. Intead, the issue would likely be whether an employer can unilaterally implement background investigations of union members. This would turn on whether a background investigation amounts to a "condition of employment" and is therefore a mandatory item of collective bargaining (an issue that we have discussed on the blog a number of times, such as here and here).

I am aware of only two cases touching on the unilateral implementation of background checks of union members. After September 11, airlines conducted background checks of various airline employees. In Aircraft Mechanics Fraternal Ass'n v. Northwest Airlines, 2002 WL 598418 (D. Minn. 2002) (unpublished opinion), a union sought to stop criminal background checks of its members, claiming that the checks were a "repudiation" of the collective bargaining agreement. The court did not address whether unilateral implementation of background checks needed to be negotiated because it found that the CBA expressly authorized Northwest to make the change: "the CBA explicitly allows Northwest to promulgate 'rules, regulations, and orders ... which are not in conflict with the provisions of [the CBA] or applicable state or federal law.'"

However, in Board of Educ. of City School Dist. of City of New York v. New York State Public Employment Relations Board, 75 N.Y.2d 550 (N.Y. 1990), the New York high court found that financial disclosure requirements and background checks of school employees were a mandatory item of collective bargaining.

How would the umpires' union fare were it to file an unfair labor practice charge based on the background checks? Is there a provision in the umpires' CBA that allows baseball to take such action? (Perhaps a "best interests of the sport" clause?).

Salary Arbitration - Most Deals Are Below the Midpoint

It has been a quiet few days on the arbitration front. Since my last posting, two $1 million deals were signed (Esteban German - Kansas City Royals and Todd Wellemeyer - St. Louis Cardinals). Wellemeyer’s deal includes $100,000 in performance bonuses.

A number of reporters have written that the midpoint is a common settlement point. My research covering the past four years placed 45% of the deals below the midpoint while 22% were actually at the midpoint. For the purposes of my analysis, I am using the base salary. In some instances, the parties agree to performance bonuses that often take the deal to the midpoint or even slightly above the midpoint. My research totals are outlined below:

Multiyear deals - 2004 (5), 2005 (8), 2006 (7), 2007 (10)
Above the midpoint - 2004 (1), 2005 (3), 2006 (8), 2007 (4)
At the midpoint - 2004 (6), 2005 (5), 2006 (9), 2007 (12)
Below the midpoint - 2004 (8), 2005 (21), 2006 (14), 2007 (22)

Totals for 2004-2007

Multiyear deals - 30 (21%)
Above the midpoint - 16 (11%)
At the midpoint - 32 (22%)
Below the midpoint - 65 (45%)
Total - 143 (99% - a result of rounding fractional percentages)

I am always appreciated in hindsight usually after getting shat upon, spat upon, and kicked to the curb.

Wednesday, January 30, 2008

Seinfeld the Greatest Sitcom Ever?

What made Seinfeld so good? What made it head and shoulders above any other comedy of the 90's putting it in the same League as Mash or The Office and Extras. Was it the fact that they touch on Issues no other Sitcom would touch, in a brilliantly beautifully written Ambiguous style.

Was it the fact that there were no sentimental moments that would touch the Heart Strings? Was it they played on People's stereotypes of the ethnic makeup of NewYork, Was it the Underrated timing of Julia Louis Dreyfus, the Physical Comedy of Michael Richards or Jerry Seinfeld himself?

IMHO, it all came down to George Costanza, played to by Perfection by Jason Alexander. George was Self centered, Neurotic, Lazy, Self Loathing, had dismal relationships with Woman, had Lying down to an art, was never successful in anything he did, thus he protayed a Male most men can identified with.

He was short, fat, Bald, Unemployed and lived with his parents for most of the series, who still treated him like a child.

When I think back of all my Favorite Seinfeld scenes, George is in all of them, The Episode when he told a coworker "Well the Jerk Store, called and they are running out of you" is probably one of my Top Five Episodes.

The very best scene with George though is from "The Soup Nazi" and it really wasn't a funny line, it just summed up his personality to a tee. There he was, lined up to get Soup, Nervous as Hell that he wouldn't be served, he asked for his soup, like a child would, he got the Soup, but then he had to question why he didn't get any bread! It was just a typical George thing to do, and summed up his personality.

Without a Doubt, George has to be one of the most beloved sitcom charcarter of all time, for the fact that he was Human.

NCAA Convention Session Videos On-Line

Anyone with an interest in the regulation of college athletics may want to check out the NCAA's web site, which now includes videos from the NCAA Convention earlier this month. There are a number of panels of potential sports law interest, including Sports Wagering and Legal, Medical and Treatment Aspects of Student-Athlete Pregnancy.

Tuesday, January 29, 2008

TF Megan (Meg) & Kingcroft Tickled Pink (Twinkle)

Meg is now a yearling and Twinkle a two year old. They are the best of friends as photo number two probably shows.
Bottom photo shows Maude, now aged 19, and in foal to Reilly (due September). She's looking pretty good I think.

Being alone without expenses beats being alone with expenses.

Fox News

The Fox News Network in the United States is either Loved or Hated, depending on your political View. Those that hate it, say "Its nothing but a mouthpiece for the GOP" and those that love it, say "Its fair and balanced unlike the Liberal Media" Fox News is Unique in one way, unlike CNN which has three different versions, one for America, one for Europe and One for the Asia/Pacific region, or BBC News that has a Feed for Europe and a Feed for the rest of the world, Fox News broadcasts its USA feed to the entire Planet.

So is it Fair and Balance? or does it lean dramatically to the right? As a NewZealander I think I can be open minded about it. First the positive, when it comes to Breaking News no one does it better, they have the money and resources to be on top of the other News Networks, they seem to get the best footage, either of people celebrating something or of a disaster.

Unfortunately for Fox, most the time, its just plain Fluff, almost Tabloid, flashing news banners, telling the viewer they must be ALERT for the next story, its also very very repetitive in the items that they have.

The Issues they cover seem to appeal more to Right Wing Voters, Securing the Border, Fighting the Terrorists, so they are IMHO trying to appeal to that demographic.

A few of there reporters are Hard Core Republicans, Sean Hannity, John Gibson and they seem to enjoy attacking the Clinton's every chance, but there is hardly any criticism of George W Bush.

My Personal take is, They should be Pro America, there are too many people on the Planet that Knock America no matter what they do, and being someone that Loves what America has done for the World, its Frustrating hearing Anti American comments all the time, I just wish Fox News was Pro America instead of JUST pro Republican.

Anybody who tells you they sleep four hours or less each night is telling a fib.

The Strange New Offering from the Clemens Team

Yesterday, in an effort to undercut suggestions that the longevity of Roger Clemens could only have been the product of steroid use, Clemens's agents released the "Roger Clemens Report." According to the New York Times:
His agents, Hendricks Sports Management, issued a 45-page statistical analysis Monday arguing that Clemens prolonged his career by making adjustment in his pitching, not by drug use.

“Clemens’s longevity was due to his ability to adjust his style of pitching as he got older, incorporating his very effective split-finger fastball to offset the decrease in the speed of his regular fastball caused by aging,” the report says.
Leaving aside the fact that it is long on assertion and short on analysis, the report is one of the strangest items to surface in connection with Roidgate 2008. It looks to me like the bulk of the report was recycled from submissions made to teams and salary arbitrators when Clemens sought to negotiate or obtain new contracts. The tables -- comparing Clemens to Randy Johnson, Curt Schilling, and other "stars" and tracking his performance over time -- are precisely the kind of thing that agents use to negotiate higher salaries for their clients.

Monday, January 28, 2008

Why is Good bad? My Question to the Media

The Media never ceases to Amaze me. Take the Entertainment Media for example, if an Artist smashes up a Hotel Room, the Media applauds it and says the Artist is living the life of a Rock star, if an artist beats up his Girlfriend/Wife in a drug induced rage, the media says "the artist needs helps in balancing his awesome music with his private life. If an artist in their mid 20's has sex with someone underaged, its celebrated and put on the Internet.

If an artist and mother of two chooses to go out and do the party rounds instead of looking after her two children, she is considered Cool and Hip. If a Rap artist shoots someone they are considered a Gangsta and someone to be admired.

Yet if an Artist does a ton of charity work during their career and have never been arrested in their life the media rips into them for being a Square or Cheesy or Nerdy.

The question of why is bad good has been answered so many times, but what about the question, Why is Good bad?

Why is it that not only famous people who have a good reputation,( eg: Garth Brooks, Celine Dion, George Strait and Tom Hanks) get a hard time in the media for doing charity work, but non famous people also?

The Kid who threw a party in Australia causing 20 thousand dollars worth of damage to his neighbours was made out to be a hero and has now been offered a 100K a year job, the Neighbours were put on TV and called party poopers despite over the years working hard to make their neighbour a nice and safe place to live?

People here in Christchurch who wanted to make the streets safe from boy racers, were ripped into by The Press for not understanding the needs of young people, but the Boyracers themselves got a Job, blogging for this so called newspaper.

So why don't the media get it? For years they having been saying Bad is Good, but now they have overstep the mark by saying , Good is Bad.

I don't have the answer why they do this, can someone tell me?

Baseball Salary Arbitration - Second Post - With a Particular Emphasis on the Houston Astros

After a little over a week since 48 players exchanged numbers with their teams, and according to my research 13 players have signed if you include the Robinson Cano deal with the Yankees. The recent discussion about a trade involving Erik Bedard puts one of the players who exchanged numbers with his team in a position of negotiating with a different general manager.

Six of the deals are multiyear contracts with 1 above the midpoint, 3 at the midpoint, and 3 below the midpoint. The multiyear deals went to Rafael Betancourt (Indians/2-years), Cano (Yankees/4-years), Michael Cuddyer (3-years), Endy Chavez (Mets/2-years), Yadier Molina (Cardinals/4-years), and Rafael Soriano (Braves/2-years). The number of multiyear deals is interesting in terms of my research back through 2004 on players and teams who exchanged numbers but settled before a hearing. In 2004, 5 of the 21 players signed multiyear deals (24%). In 2005, the numbers were 8 of 40 (20%). In 2006, it was 7 of 38 (18%). Last year, 10 of the 48 agreed to multiyear deals (21%). I am certain that the current rate of 46% will come down.

Dave Borkowski (Astros) signed for $800,000 with a performance bonus package of $50,000 based upon appearances or innings pitched. That is still below the $925,000 midpoint ($750,000/$1,100,000). Kyle Snyder settled at $835,000 with a performance package of $15,000 based upon appearances. That still puts him below the midpoint of $875,000 ($725,000/$1,025,000). Michael Wuertz of the Cubs accepted $860,000. That was just barely below the midpoint of $862,500 ($750,000/$975,000). Note that none of these final salary figures exceed $1,000,000.

Settlements at the midpoint include Chad Gaudin (Athletics) at $1,775,000 ($1,500,000/$2,050,000), Matt Guerrier at $950,000 ($750,000/$1,150,000), and Scott Proctor (Dodgers) at $1,115,000 ($930,000/$1,300,000).

The one player to exceed the midpoint is Geoff Geary of the Houston Astros at $1,125,000 ($950,000/$1,250,000). His midpoint was $1,100,000. Geary is also a newcomer to the Astros who dealt Brad Lidge and Eric Bruntlett to Philadelphia for Geary, Michael Bourn, and Mike Costanzo. Speaking of the Astros, they exchanged figures with four players: Dave Borkowski, Geoff Geary, Mark Loretta, and newly acquired Jose Valverde. The Tuesday, January 22, deal with righty Borkowski for $800,000 plus incentives is quite similar to the deal with Brandon Backe allowing both sides to skip exchanging numbers. The deal with Backe for $800,000 plus incentives was reached on January 11. Ty Wigginton was a deadline day signee. Wigginton received a $4.35 million deal plus incentives on Friday, January 18.

Hoping to force a settlement, general manager Ed Wade imposed an end-of-the-workday deadline of Wednesday, January 23, for agents Bob Garber and Bill Rego to complete negotiations with Wade on contracts for Mark Loretta (Garber) and Valverde (Rego) or proceed directly to a hearing. When the deadline passed, the Astros were committed to their first hearings since they lost to Daryl Kile in 1997. Wade’s decision to proceed in this way is a major departure from the club’s past practices. The Astros are 5-6 in their 11 hearings since 1974. The ledger for Houston including the arbitrator if I have located the information is as follows:
The Astros wins were Bill Dawley (1986 - Stephen Goldberg), Bill Doran (1987 - Raymond Goetz), Frank DiPino (1986 - Bernard Melzer), Darryl Kile (1997 - Morton Michnick), and Al Osuna (1994 - Pat Hardin).

The Astros losses were Joaquin Andujar (1980 - arbitrator information not located), Kevin Bass (1987 - Glenn Wong), Glenn Davis (1989 - Stephen Goldberg), Joe Sambito (1980 - arbitrator information not located), Denny Walling (Frederick Reel), Rick Wilkins (1996 - Morton Mitchnick).

As you can see from the list, the Astros have not been to a hearing in over a decade and never before a three-arbitrator panel.

Loretta is seeking $4.9 million and the Astros countered with $2.75 million. The midpoint is $3.825 million and the gap is $2.15 million. Last year Loretta received a base salary of $2.5 million plus a reported additional $1 million for reaching his performance bonuses. Loretta hit .287 while playing all four infield positions. The veteran of 13 big-league campaigns has over 1,500 hits in his career and a .298 lifetime batting average. He signed as a free agent last year with the Astros after the Red Sox cut him lose after the 2006 season when he made $3.25 million.

Valverde was acquired from the Arizona Diamondbacks after amassing 47 saves in 65 games last year when the Astros sent Chris Burke, Chad Qualls, and Juan Gutierrez to the D-backs in December 2007 for the first-time National League All-Star. Valverde received $2 million for that effort, and he is seeking $6.2 million from the Astros for 2008. Houston countered with an offer of $4.7 million. The midpoint is $5.45 million with a gap of $1.5 million.

TF MacKenzie - 14 Weeks

This little girl is growing up FAST! We're very proud of her, she is definitely another one out of the box! We have had just enough rain this summer to keep things ticking along and although most of the horses are grazing standing hay, summer is being kind and everyone is doing well. Deb is only on one feed a day which is much better than the three feeds and hay she was getting this time last year when we were in the grip of a drought.
Here are some photos I took when I was out doing my horsey chores this morning.

Sunday, January 27, 2008

Tribute to Harvard Law School Professor Paul Weiler

I was recently asked by Harvard Law School to write a tribute for Professor Paul Weiler, my former sports law professor who is retiring from teaching this year. I was deeply honored by the request. My tribute appears in the most recent issue of the Harvard Law Bulletin and I have excerpted it below.

Passion in His Playbook

If there’s ever a Hall of Fame for sports law, Paul Weiler is a shoo-in

Photograph of Paul Weiler

The late Will McDonough, the Boston Globe columnist, once said: “When it comes to sports law, Paul Weiler knows the answer before you ask the question.”

In fact, for many law students, attorneys and professors, Paul Weiler is indisputably the founder of American sports law and the field’s most distinguished member, having virtually invented the specialty by merging his expertise in labor law with his love of sports. As one of his former students and now a colleague in legal academia, I appreciate him more and more every day.

Weiler’s passion for his subject—and for teaching it—has inspired countless HLS students to successfully pursue careers in sports law. Since he began teaching at Harvard Law School, an astonishing number of his students have become sports law scholars, agents, litigators, mediators and other professionals engaged in what is quite possibly the most competitive specialty within the law. Their success is a testament to the man who taught them things such as the powers of the commissioner, the legal ramifications of steroid use, the nuances of Title IX, the intersection of torts and sports, and myriad other topics that define the field that has so defined him.

Just consider, for a moment, the body of written work he has produced, and how his students can so readily draw on it. Most notably, he has co-written what is probably the leading casebook on the subject, “Sports and the Law,” as well as numerous law review articles and journal publications that have established and substantiated the growing canon of sports law scholarship.

And, aware that many people who aren’t lawyers will seek instruction in the topic, Weiler has also written more popularized sports law entries. The most significant among them is the transformative book “Leveling the Playing Field: How the Law Can Make Sports Better for Fans,” which, according to The New York Times Book Review, “combines the broad knowledge of an all-seasons sports fan with the clarity of an antitrust lawyer.” Reaching both an academic and a popular audience is never easy, and yet Weiler has done it with the adroitness and grace that have distinguished his career.

Weiler has also been the leading public advocate for sports law. He has testified before the U.S. Congress and met with politicians in Canada, his home country, on a seemingly boundless range of issues. Many leaders here and abroad consider him sports law’s leading guru.

The true essence of Paul Weiler, however, cannot be captured by the long list of his professional accomplishments, contacts and honors. Instead, it rests in his heart, in his soul and in his undying warmth. Like all of his former students, I can personally attest to his profoundly deep and unqualified compassion for everyone who seeks his guidance. I will never forget, nor fail to appreciate, the enormous amount of time, energy and emotion he spent with me on a paper that I would eventually publish in a law review. There were certainly many demands on his time—demands that seemed to me to be much more important. But never once did he put those demands ahead of me. Paul Weiler just doesn’t do that. His students always come first.

It may be just a coincidence that such a friendly professor held the prestigious Henry J. Friendly Professorship of Law, but it couldn’t be more fitting. As much as I hate to disagree with the late Will McDonough, when it comes to sports law, it’s not about the questions that Paul Weiler can answer. For me, as for so many others, Paul Weiler is the answer.

Saturday, January 26, 2008

Shane Bond Your Out

Bond, Shane Bond, has decided to take the money and run, and leave the New Zealand Cricket team in the lurch. Now if your a New Zealand cricket player and your employer is only offering you around 400 thousand a year and someone else offers you more than that for 44 days work, you would be a fool not to take the other offer, right?

Well yes, in Normal situations, but this not a normal situation. You see, Shane Bond has been plagued by injuries his whole career, and year after year after year, even though he wasn't playing, the NewZealand Cricket Bosses, decided to make him a "Top 20 Contracted Player" anyway, in the hope that when he is over his injury that he will once again represent his country and take the New Zealand cricket to the top of the world again.

Mr Bond didn't see it this way, despite being happy enough to collect nearly a Million dollars over the past seven years for hardly playing a match for his country, now that he is fit, he has told New Zealand cricket to shove it, hes taking the money in a rebel competition and he will never play for his country again.

Don't get me wrong, if a player such as Fleming or Vettori went that would be fine, they have both played for their country year after year for over years and deserve to go overseas and earn the big bucks.

But Shane Bond has sat by, while the New Zealand Cricket Council has paid him for doing nothing, and now that's hes healthy hes leaving his country at a time when we need him most.

Shame on you, Mr Bond.

Psycho Paranoid Schizophrenic

If you were insane, would you know it?

If everyone was insane and you were normal, would you be the crazy person?

If you think everyone else is crazy, could it be that you are the nutcase?

What is normal?

Is there anyone in the world that is not fucked up in one way or another?

How do psycho fuckheads like Idi Amin or Pol Pot get into power? Are they nuts? Or are the people nuts for following them?

What is the difference between cocaine and prozac?

Is normal merely what the majority thinks?

Why are believers in the virgin birth of Christ considered normal while people who distrust their government are considered nutcases?

Is it paranoia to not want to be used or hurt?

Why are shrinks so miserable?

Florida Coastal Database of College Coaches Contracts

In December of 2006, I wrote a post titled, "Lawyers in Demand at University Athletic Departments?" At the 2006 Street & Smith's Intercollegiate Athletics Forum, NCAA president Myles Brand and other panelists were asked what they thought would be the most important story to follow in 2007, and they said "coaches' contracts". Brand added that "agents have the upper hand" now. In a separate interview, Brand also said the following: "Negotiations have become tougher, and there's a lot of competition for the best coaches. It might make sense for schools to have representation. They use outside counsel on other things."

As director of the Center for Law and Sports at Florida Coastal School of Law, I am pleased to announce the creation of the "Florida Coastal Database of College Coaches Contracts." The database houses detailed summaries of the pertinent provisions contained in the contract of each college coach within the "Big 6" conferences in football and the Big Ten, Big 12 and SEC conferences in men's basketball. The database contains a spreadsheet for each conference per sport, summarizing the material terms of each coach's contract at each school within the conference. Each spreadsheet contains separate tabs with specifics regarding term, base salary, bonuses, supplementary compensation, deferred compensation, guaranteed compensation, termination, liquidated damages/buyout and retirement.

We started the project in January of 2007, and it is an ongoing work in process in which we will be adding additional conferences as well as providing updates to accommodate new hires and contract extensions. I say "we" but I can't take any of the credit. This database is the culmination of the hard work of my student research assistants who are enrolled in our sports law certificate program. This project was created with two primary objectives: to provide students in the program with a valuable research and practical skills exercise, and to provide a resource for the collegiate athletic community. The spreadsheets are useful from the standpoint of providing an overview of various trends in the industry, as well as being able to compare and contrast at a glance the material terms of each coach's contract within each conference. The database will remain permanently linked on the blog under the heading, "Sports Law Resources".

TF Holden - Aged Four Years - Photo Shoot

Yeah, he needs to lose like 100kg but isn't he cute?!?!

Friday, January 25, 2008

A Catholic Perspective on Rick Majerus

Rick Garnett at Notre Dame, who blogs at the Catholic-legal-theory site Mirror of Justice, offers some thoughts on the Majerus matter.

Two points on Rick's post. First, he wonders whether the reaction from SLU or much of the sports-media world would have been different if Majerus had "appeared at a Tom Tancredo rally and complained about immigration, or at a League of the South rally and complained about Emancipation." A similar point was raised in the Comments to my earlier post here. I agree with Rick that, unfortunately, the reaction probably would have been far less supportive of Majerus, especially among the professoriate. But that reflects what I view as a common problem of lack of consistent support for the idea of people speaking out where one disagrees with the ideas expressed.

Second, Rick suggests that Archbishop Burke missed an opportunity for a more constructive response that would have engaged Majerus, and all area Catholics, in a conversation about the dignity of life and the Catholic faith. Such a response might have played better, particularly given that Majerus' support for stem-cell research grows out of his having watched a close friend die of ALS. This was a chance to talk to the faithful (whom the archbishop is charged with pastoring) about this area of Catholic thought, rather than falling back on the blunderbuss weapon of stating that someone simply is wrong (in defiance of the basic tenets of Catholicism) and calling for sanctions against the speaker. Majerus has said that he would like to meet the Archbishop and discuss these issues, which might make for an interesting conversation.

The Substance of WVU v. Rodriguez

In an interview yesterday about West Virginia's suit against Rich Rodriguez, I made two points to a reporter (prior posts here and here). First, I think the case is going to end up back in state court--the university is an arm of the state and not subject to diversity jurisdiction in federal district court, not to mention the uncertainty about where Rodriguez was living on December 27. Second, I think this controversy could have significant future effects on the relationship between coaches and schools, the mobility of coaches, and the ability of schools to protect themselves from vagabond coaches.

Today's Charleston (W. Va.) Gazette prints in full a letter Rodriguez sent earlier this month to WVU Athletic Director Ed Pastilong (this is the letter that had as a return address Rodriguez's West Virginia residence and was used by the school as evidence that he remained a West Virginia citizen). The letter seems to hint at what Rodriguez's substantive case will be in the lawsuit and it includes the following:

On Page 6 of the lawsuit (Article 17) it mentions that the University and I mutually understood and agreed on all the terms, conditions and understandings either oral and or written. It also mentioned that any further modification or amendment was effective only if made in writing and signed by both parties. This is not true - several issues were promised and discussed and were oral agreements that I thought would be upheld. Verbal promises and statements made by Mike Garrison, Craig Walker and several Board of Governor members were a factor in my agreeing to sign the second amendment. They include:

a) Mike Garrison stated that he did not believe in buyouts and that if I wanted to leave that "the buyout would be reduced to 2 million or eliminated altogether". He knew I did not want to sign it with the large buyout but assured me that as soon as he took office he would address it. I told him the four million buyout was unfair and Garrison agreed but said the Board of Governors would not change it at the time due to publicity concerns (the University leaked the term sheet information to the press in violation of the Agreement. I was also misled when I was told when I originally agreed to sign the term sheet in December that the boosters who paid my salary "insisted" that I have the four million dollar buyout clause. I have found out that this was not true.)

b) I told Garrison that I knew everyone was under pressure to get me to sign the contract (I was getting calls by Board Members, the President and the Governor.) I told him I was not comfortable signing it with the buyout clause and other issues but Garrison said it would be a personal favor for him and several Board Members and said I needed to do it to help Garrison's start as the new President.

In other words, Rodriguez is arguing that he does not owe $ 4 million; he owes at most $ 2 million or maybe nothing at all, because university officials orally agreed to waive the clause, although it remained in the agreement. Now, it was been almost 15 years since I dealt with contract law (back when I was slogging through Contracts as a 1L). But am I completely off in remembering that a basic doctrine of contract law prohibits a party from arguing in court that an oral agreement altered or overrode a contract term--that the terms of the contract control over any oral representations to the contrary, unless the contract allows for oral amendment? Can anyone educate me on this part of contract law?

Clearly, those facts could set up an issue of fraudulent inducement, either as an affirmative defense or counterclaim. But can he defeat the university's basic breach of contract claim in this way?

Agent-Author Ron Shapiro at Toledo Law on Monday

For anyone within driving distance, I'll be introducing famed Baltimore baseball agent and author Ron Shapiro on Monday, January 28 (at 11:55 am) at a public event at the University of Toledo College of Law. Known for his books and instruction on negotiation ( The Power of Nice: How to Negotiate So Everyone Wins, Especially You; Bullies, Tyrants & Impossible People: How to Beat them Without Joining Them, and Dare to Prepare: How to Win Before You Begin), Shapiro has represented the likes of Kirby Puckett, Eddie Murray, Cal Ripken, Jim Palmer, and Brooks Robinson. This promises to be a fun and informative event, which you can read more about here.

Baseball Salary Arbitration

I am pleased to have the opportunity to share with Sports Law Blog readers some of my insights and research concerning baseball salary arbitration. Going back to my time teaching a seminar on the regulation of the sports and entertainment industries at Loyola New Orleans in the 1990's, I have been interested in the arbitration process. In particular, I was interested in researching the decisions of individual arbitrators to determine their team-player record. It was oft asserted that in order to remain an arbitrator you needed to maintain a roughly 50-50 decision percentage. I have been able to locate arbitrator information back to 1984 through research in newspaper articles on Westlaw and LexisNexis. My interest in the process began to expand beyond that particular point. Over the past five years and with the help of numerous research assistants, we have researched all 3,000-plus players who have filed for arbitration since 1974. Over the next month, I hope to post comments about the 2008 process.

This year, 110 players filled for arbitration by the Tuesday, January 15 deadline. By the Friday, January 18 deadline for exchanging numbers, only 48 players remained unsigned.

One of the most intriguing stories of the this year involves the Phillies and Ryan Howard. The Phillies enjoy a 7-0 won-loss record over their players since the beginning of salary arbitration in 1994. The Rays are the only other team without a loss to a player. They have gone to 3 hearings. By the way, the Phillies unbeaten streak breaks down as follows: Willie Banks (1996), Kevin Gross (1987), Alan Knicely (1986), Jerry Koosman (1985), Travis Lee (2001), Dale Sveum (1992), and Dickie Thon (1991).

Howard requested $10 million and the Phillies countered with $7 million. The gap is $3 million with a midpoint of $8.5 million. Although Howard did not match his offensive production during his 2006 MVP season, he will substantially increase the $900,000 that he received last year. That deal was the largest for a player with less than two years of service time. Howard is eligible for arbitration as a Super 2 player. Phillies General Manager Pat Gillick and Assistant General Manager Ruben Amaro, Jr. are in discussions with Howard’s agent Casey Close. Could the result here be a long term contract?

The Phillies had six players who were arbitration-eligible this year. The only other player that they exchanged numbers with is Eric Bruntlett. Bruntlett wants $800,000 while Philadelphia offered $550,000. The midpoint is $675,000. Prior to the exchange of numbers the Phillies reached agreements with Brad Lidge ($6.35 million), Ryan Madson ($1.4 million), Chris Snelling ($450,000), and Jayson Werth ($1.7 million).

The key to motivation is not willpower and commitment but selfish pleasure in rational activity.

Thursday, January 24, 2008

More on Rick Majerus

The story, first mentioned here, of Saint Louis University Men's Basketball Coach Rick Majerus' comments at a Hillary Clinton rally supporting reproductive choice and stem-cell research, and the calls by St. Louis Archbishop Raymond Burke for university sanctions against Majerus, is becoming a national controversy. Majerus today defends himself in a very thoughtful interview with Bernie Miklasz, a sports columnist from the St. Louis Post-Dispatch, that is worth reading. He obviously has spent some time considering and forming his views and beliefs about these issues, about his right or duty to speak about them, and about what his Jesuit education (Majerus graduated from Marquette) teaches him about forming ideas and speaking out.

I am spending a very enjoyable year as a visiting faculty member at SLU's School of Law this year. So I wanted to weigh in on a couple of points.

First, the Archbishop's call for Majerus to be sanctioned makes for great rhetoric, but is not going to happen. And it has nothing to do with the control the Catholic Church does or does not wield over the university. Rather, I doubt the faculty would stand for the university sanctioning a member of the university community for engaging in political speech. If Majerus can be sanctioned, so could any untenured faculty member be sanctioned for her scholarhsip or blogging or public comments. I get the sense that SLU's president, Father Matthew Biondi (whom I never have met), recognizes this unique and important element of being a university and, in particular, being a Jesuit university, with its tradition of open thought. So while Archbishop Burke is right that the school, as a private institution, could sanction Majerus for his speech, my guess is the school, as a university, would not seriously think about it.

I remember having a conversation with a dean at a different Jesuit law school, who assured me that, being a Jesuit institution, there would be full freedom to think and write as we will. My laughing response was that any other possibility never entered my mind. In fact, I said I might be more concerned being on a public-school faculty in some states.

Second, I would highlight the following exchange:

I asked Majerus if speaking out on controversial matters is the proper thing to do for a basketball coach.

"The wisest thing probably is not to be involved in any of this," he said. "But I feel like, in my heart of hearts, that I should talk about what I believe in.

"A lot of people like the safe harbor. And perhaps my comments will hurt my recruiting efforts, or damage the relationship I have with our (basketball) supporters. I hope not. But I can't divorce what I believe from who I am."

Bravo to Majerus; great answer. But the exchange highlights a few concerns.

One, I am troubled that the question was asked because it is inconsistent with our demands elsewhere that athletes (and sports figures generally) speak out. In deciding to speak out, he ran the risk that his comments will offend some listeners and, perhaps, someone will not want to support the Billikens anymore (a point he addresses in the inteview). But to suggest that speaking out on controversial matters (since everything worth talking about is controversial) is not the "proper thing" seems hypocritical in light of our insistence that athletes should speak out and take public stands.

Two, would we ever ask a plumber or a bank teller or a doctor or a stay-at-home mother whether it was proper for her to speak out on controversial matters? If not, then how could it be for a basketball coach? Don't they all share equally the right and opportunity to take part in the public debate? Is it because of his fame, which gives his comments an audience the bank teller does not enjoy? But it would be ironic, to say, the least, if our rule was that the more power or influence one's words can have (because of the fame or wealth or power the speaker has accumulated), the less one should speak. It is fair for one to say "Majerus [or any other sports figure] doesn't know what he's talking about, he's just a baskteball coach"--although I think that response is wrong as to Majerus. But suggesting that what he said was wrong is much different from suggesting that he was wrong to say something at all.

Update: Thursday, 10:00 p.m. C.S.T.:

Great profile by Pat Forde on ESPN about Majerus as a person and why his speaking out, and sticking to his guns, is so in character for him.

Wednesday, January 23, 2008

Proposed Three-Prong Anti-Steriod Strategy for Baseball

University of Chicago economist Steven D. Levitt has a good post over on Freakonomics that discusses a plan by Aaron Zelinsky (who last week on our blog wrote a guest piece on steroids in baseball) for a three-prong anti-steroid strategy for Major League Baseball.

Here is an excerpt from Professor Levitt's post discussing Aaron's idea;
Aaron Zelinsky, a student at Yale Law School, recently proposed an interesting three-prong anti-steroid strategy for Major League Baseball:

1) An independent laboratory stores urine and blood samples for all players, and tests these blood samples 10 years, 20 years, and 30 years later using the most up-to-date technology available.

2) Player salaries are paid over a 30-year interval.

3) A player’s remaining salary would be voided entirely if a drug test ever came back positive.

I’m not sure about points 2 and 3, but there is no question that point 1 is essential to any serious attempt to combat the use of illegal performance enhancers. The state-of-the-art in performance enhancement is the best set of techniques that cannot be detected using current technology. So, by definition, the most sophisticated dopers will evade detection, unless they are unlucky or make a mistake.

For the rest of the post, click here.

Tuesday, January 22, 2008

T Bag for President 2008

I have announced my support for TBag to become President in 2008, now I personally cant vote because I'm not an American and he is a fictional person, I would still like to see him become President of the USA in 2008.

Tbag will make a great President, take a look at actions on Prison Break, he takes no crap from that Pretty Boy Michael, he wouldn't let the corporation walk over him, he knows what people he needs beside him to make it.

He wont let anyone boss him around unless he can come out a winner. Let's face it who would you rather have negotiating with Saudi Arabia to lower the oil price, Huckabee, Hillary or Tbag?

I know who would get the job done and what about talks with North Korea, and if any Hippy starts talking about global warming, well it wont just be Tbag left with one hand.

His economic policy is same as his policy on religion "God helps those, who helps themselves" (Quote from Season three) So he is for more free enterprise, which must be good for the Nation.
He will have the USA up and running.

I hope he runs as an independent, I think he can win, and we will all be better off with Tbag as the leader of the free world.

Pintado Indiana

Pintado Indiana
Pintado Indiana
Indiana and Hamish
Pintado Indiana is a crossbred mare by Pintado Desperado (sire of Mark Todd's 'come out of retirement' mount, Gandalf) who has been retired due to soundness problems and, like her sire, she is a grey pinto. She has a lovely nature and I cannot wait to see what she and Hamish can produce.

Sports Mixing With Religion and Politics: Majerus, Abortion, Basketball Arenas, and Tax Abatements

This morning at the March of Life in Washington, D.C., St. Louis Archbishop Raymond Burke criticized Majerus' support of Hillary Clinton, publicly stating that he supports stem cell research and abortion rights (Majerus was interviewed by KMOV Channel 4 in St. Louis on Saturday night). Burke's issue is that Majerus, a practicing Roman Catholic, is the head men's basketball coach at a Jesuit, Catholic University (St. Louis University), and as such, should be disciplined. Burke's comments follow:

"It's not possible to be a Catholic, and hold those positions. When you take a position in a Catholic university, you don't have to embrace everything the Catholic church teaches, but you can't make statements which call into question the identity and mission of the Catholic Church."

Jeff Fowler, spokesman for SLU, responded that Majerus made his comments based on his own personal beliefs, and not as a representative of SLU, seeming to indicate that SLU will not take any action.

Keep in mind that SLU is a Jesuit University run by the Society of Jesus (like all Loyola's, Boston College, Georgetown, etc.), separately autonomous, and legally chartered with its own Board of Trustees.

Some of you may recall that opponents of the SLU Billikens receiving public financing for the new Chaifetz Arena lost in a case that made it up to the Missouri Supreme Court (St. Louis Univ. v. Masonic Temple Ass'n of St. Louis, 220 S.W.3d 721 (Mo. 2007)).

SLU sought Tax Increment Financing (TIF) from the State to support urban renewal in blighted areas through tax abatements. The Masonic Temple Association of St. Louis sought to have the ordinances introducing these abatements declared unconstitutional in Federal court (later dismissed upon defendants' motion), thereafter, SLU sought declaratory relief in State court upholding the ordinances.

Masonic first argued that the ordinances violated Missouri's Establishment Clause as the abatements would be impermissible financial aid to a university under the control of a "religious doctrine or creed." Id. at 726. The Court (internal citations omitted) found that just because a school was affiliated with the Jesuits or the Roman Catholic Church, did not make the same a religious institution. Further, simple affiliation with a religion does not equal control by a religious creed for purposes of Missouri's establishment clause. Id. at 727. SLU has a Jesuit president, but he serves at the pleasure of a lay board, and SLU's bylaws displayed an aspiration to ideals, not an adherence to a creed. Id. at 727-28. As such, the Court found that SLU was not controlled by a religious doctrine or creed, and further added that the purpose of the funds was to redevelop a blighted area, not advance religion. Id.

And as a result...we get to see the offensive juggernaut that is the Billikens in their new digs!

Hat tip: Deirdre Shesgreen and Tom Timmerman of the St. Louis Post-Dispatch for Majerus comments and backlash.

More on WVU v. Rodriguez

Last week I talked about West Virginia University's lawsuit against former football coach Rich Rodriguez. Rodriguez removed the case to federal court based on diversity-of-citizenship jurisdiction, arguing that he became a citizen of Michigan prior to the filing of the lawsuit on December 27.

Last Friday, WVU filed a motion to remand to state court. It hit both of the points I discussed in the earlier post. First, the university is an arm of the State of West Virginia and not a citizen of West Virginia for diversity purposes. Second, Rodriguez was a West Virginia citizen on December 27. WVU points to four facts: a) Rodriguez had lived in West Virginia for a number of years prior to the lawsuit; b) Rodriguez and his family still live in their West Virginia residence (the place where Rodriguez was served with process); c) Rodriguez's children continue to attend school in West Virginia; and d) on January 10 (two weeks after the lawsuit was filed), Rodriguez sent a piece of correspondence listing his West Virginia residence as return address.

WVU also amended its complaint to add a claim for breach of contract. The first payment on the buyout clause apparently was due last Friday and was not paid.

BlackCaps Versus England

The most Important cricket series in years for New Zealand is coming up, we are playing England in 20/20 matches, One Dayers and most importantly, Test Matches. So what's going happen? It all depends on a Player who may or not be playing. Bond, Shane Bond.

In the 20/20's and One Dayers, the Blackcaps can beat any team on any day, in that form of the game, the Batsmen are King, we have the heavy hitters so even if the bowlers give up 300+ runs in the 50 over version and 200 runs in the 20/20 it might not matter because of our batting strength down the order.

The Tests are a different matter, we need 20 wickets to win a match, without Bond we wont, break it down, Martin may be good for Five in a match, Vettori four if we are lucky, Mills and Oram wont get 11 between them.

So it all comes down to Bond, without him the Blackcaps will go down 3-0.

The English wont take us seriously and that will be thier downfall if Bond Plays, they will take this series as a warm up for a more important team, not a good idea when you are facing someone that bowls 150 Kilometers per hour.

If we win, the media will credit of Course Bond and other well performing players, if we lose the series it will be bye bye Braces and maybe Vettori as captain, which will be unfair to Vettori, it seems the NZ Media cant see anyone beginning captain but Fleming, I think they forget his few years as captain when we lost everything.

Monday, January 21, 2008

A Kiwi's Take on This Years Superbowl

In 1986, a friend of the family came back to NewZealand with some videos of the NFL, to this NewZealander, it was a strange game, for people in this part of the world who like Rugby League and Rugby Union. The Game in the 80's was called Gridiron here.

Over the next few years, I kept an eye out on all the results and then in 1992, NewZealand finally caught up with the times and got Satellite TV and I could watch the games. In my visits to the States I have always tried to catch some games, for myself the only sport I get more enjoyment out of is cricket.

I have supported a few teams over the Years, The Denver Broncos, (Because of John Elway) The Arizona Cardinals (having seen a few of their games on my visits to the states) and The Pittsburgh Steelers. ( I think Bill Cowar is nuts)

So after following the game for over the past 20 years, I think i can make a prediction.

The New England Patriots will win the Superbowl, now I'm not going deep into analysis. I just have a few reasons, of course Tom Brady is the number one reason, number two they must be scared sh*tless of falling at the last hurdle and most of all, I think The Pats are like the Germany Soccer team, they are very efficient in what they do, they are not going to make mistakes, everything will be structured and every player knows their place, they run their drills better than anybody else.

So come the Superbowl, I'm sorry Giants fans, but your team is going end up being a Quiz Question on a reality TV Show, "Who did the Pats beat to go unbeaten in the 07/08 Season?

ESPN Relies (in part) on CDM Fantasy League Case to Renegotiate Licensing Fees

In today's edition of Street & Smith's SportsBusiness Journal (subscription required), John Ourand and Eric Fisher report that ESPN is renegotiating its digital rights deal with MLB Advanced Media, looking to pay a significantly lower fee after finding several pieces of the original agreement it signed in 2005 no longer cost effective ("ESPN Seeks Better MLBAM Terms"). According to the authors, ESPN is exercising an out-clause three years into the seven-year agreement worth $20 million a year that provided ESPN with numerous digital and fantasy rights.

Ourand and Fisher noted:
ESPN’s push to restructure the deal comes less than two months after MLBAM’s latest court defeat in the CDM Fantasy Sports case at the federal appeals court level. ESPN thinks the court’s decision means that it was paying a license fee for fantasy rights that others, such as CDM, were getting free. It’s unknown if others who are paying for fantasy rights, such as Yahoo!, Fox and CBS Sports, have the same opt-out rights as ESPN.
The day after the Eighth Circuit's decision was rendered, I discussed why the court's "public domain" standard is simply not a practical standard to use in balancing the First Amendment with the right of publicity. Nevertheless, this is the first instance that I am aware of in which a fantasy league operator (other than CDM) has relied on the Eighth Circuit's ruling to justify its refusal to pay a licensing fee for fantasy rights. Keep in mind that this is just one federal circuit court's opinion on the issue, and the decision adds even more confusion to right of publicity law than already existed.

An economic stimulus package is really a political stimulus package meant to placate a pissed off electorate.

There is no such thing as time management. There is only activity management.

Sunday, January 20, 2008

Attorneys for Gabbibo Respond

Last month, I blogged about an unsuccessful lawsuit brought by Western University University in an Italian court against Mediaset, an Italian company, 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, and which is depicted to the left. The short post excerpted a post by CNBC's Darren Rovell, which provided a preliminary description of why Western Kentucky lost the lawsuit.

Italian attorneys for Gabibbo's creators read my post and wrote me a letter. The letter goes into depth about the legal issues involved in the case, from the perspective, of course, of those representing Gabibbo. Below are the relevant portions of their letter, as well as the 8 images contained in the letter (the first set of four images are of Gabibbo, the second set displays images of four characters who are arguably similar to both Big Red and Gabibbo).

* * *

[On December 11, 2007, the Judge of the Court of Ravenna, division of Lugo] ruled that both the Big Red (whose relevant exploitation rights within the European territory has been licensed, on a non-exclusive base, from company CEI to company Adfra together with the rights of other 56 American universities' mascots for the lump sum of US$ 7,500!) and Gabibbo may be protected by the law on copyright with regard to and within the limits of their personal features being much different the one from the other: sport mascot the former, TV character the latter (“a very weak personality the former, a stronger one the latter”).

The esthetic forms have been accurately assessed, following a long and sophisticated investigation, recognizing relevant differences described in the decision.

From such investigation, it appeared that the graphic image of the Big Red does not show the minimum creativity required in order to protect it and that its external form recalls the graphic idea of puppets already well known in the cartoon world (Barbapapa, both morphological and conceptual identity ten year younger than the American mascot; Elmo, Gossamer, Jelly Belly, in addition to all “blobs” we deem useless to mention, without assuming any original feature.

Plagiarism has therefore been excluded, recognizing that the only element of contact between the two characters may be identified in their “external form” which, in any case, as above reported, has no “identifying feature” and is, on the contrary “repeating an already known idea”.

These are the true facts. Incredibly, the news – not yet confirmed – are circulating about a possible “appeal” against this decision. RTI, Striscia la Notizia and Gabibbo have nothing to fear from a possible appeal, as they have always been sure about the positive issue of the first grade. Of course, we do hope that after a deep reassessment of the issue ADFRA, WKU and CEI renounce to initiate again a risky and groundless lawsuit bereft of any reasons at least in fact and in law.

Stefano Longhini, barrister
Direzione Affari Legali
Reti Televisiva Italiana SpA

Saturday, January 19, 2008

Stupidity prevails when smart people remain silent and do nothing.

Ron Paul, the GOP, and the LP

I voted today in the SC GOP primary. I voted for Ron Paul. It will be the last time I vote as a Republican.

Ron Paul can't win and won't win. This has not dissuaded me from voting for him because I believe he is the best candidate the Republican Party has to offer. But the bottom line is that our government will not change until a substantial mass of the electorate changes.

The American people are idiots. We can blame the politicians and the system all we want, but the American people have gotten the government they deserve. Ultimately, the American people make the choice, and they are the ones who bear the responsibility for the bloated government we have. The American people consistently support and vote for two opposing things. They want a huge government that does everything for them, and they don't want to pay for it. But money has to come from somewhere, so the result is robbing Peter in order to pay Paul with everyone trying to be Paul and not be Peter. But we are all Peter.

This is a formula for madness, but I find that things don't change until they become a crisis. This is because reality always wins. Even fools can't remain fools forever.

The Ron Paul Revolution has been a glimmer of hope in this sea of stupidity, but I realize that this revolution is not a libertarian revolution. This struck me as a ran into one of my old customers at a Ron Paul event. I told her I was surprised to learn that she was a libertarian. She asked, "What's a libertarian?"

The Ron Paul Revolution is not a libertarian movement. There are libertarian ideas there, but it is a coalition of libertarians, paleoconservatives, people who hate taxes, and a whole bunch of crackpot conspiracy theorists. The result is a losing movement that blames the losses on conspiracy and voter fraud. When Ron Paul loses today in SC, those loonies will blame it on just such a conspiracy. This is dumb.

I am not disappointed with Ron Paul because he is losing. I am disappointed that this flurry of activity represents even less than what it appears. Libertarians are smart. These pseudolibertarians are nuts. I'm waiting for the UFO people to come out with their endorsement in order to find out what really happened at Roswell. It feels like a bad episode of The X Files.

I'm off this bandwagon now and rethinking my approach. I decided that the Libertarian Party was a waste of time and to try and make an impact in the GOP. Fuck that. What I find so surprising is that a guy like Lew Rockwell who seems to endorse anarcho-capitalism is so enamored with Ron Paul. It seems the hardcore libertarians are the most willing to sell out while the so-called weak libertarians are the ones being principled and giving tepid support to Ron Paul. Meanwhile, Ron Paul presents a very compromised view on things like immigration and Social Security.

The GOP is a joke and so are the Democrats. They are indistinguishable in their style of governance and differ only in which constituency they will cater to in order to build a base. But we are still in Iraq even with a Democrat congress. No change there. I lay this at the feet of the voters who overwhelmingly want us out of Iraq but only with a victory. Pure stupidity there.

The only true and lasting change is the hard one. It is the difficult one. It involves educating those fools who are responsible for this mess, and I mean the American people. This cannot and will not happen in either of the two major parties. I am glad Ron Paul is running and highlighting some of these issues. But when an average member of his revolution does not know anything about what Dr. Paul is talking about, this is not good. All Ron Paul has succeeded in doing is stealing a few sheep from the larger flock.

I have decided to stick with the Libertarian Party. Perhaps Ron Paul will run on the libertarian ticket as he did in 1988. But he has said he has no intention of doing that, and I take him at his word.

The LP really is the party of principle. It is the third largest party in US politics. It is a true barometer of where the American public is in its thinking. I like their goal of sticking to principle and waiting for people to come to it. It feels better to me than being a Ron Paulian in a major party that does not give a shit about what I think.

In short, I'd rather lose on principle than win on expediency. I support Paul's campaign and hope he enjoys some success. I believe the GOP is better off with him than without him. But I think the best path for me to take at this point is to support the LP in every way I can.

Gangsta Rappers from NewZealand with myspace pages

If you go on to myspace, you will a lot of young people between the ages of 14-25 from Christchurch, NewZealand, who call themselves Gangsta Rappers. Now these people aren't saying they love the Rap genre, they are saying, that they, themselves are Gangsta Rappers.

You kinda guess that they aren't because not many Gangsta Rappers have their mothers buy shirts for them from Hallenstines Department Store. Gangsta Rappers also don't talk about how they can get Giggy with their Wiggy, I don't really want to picture what that means.

But hey, according to thier myspace pages, these little white kids from NewZealand, are on to it, they use terms like Ni**a, Wigga, Cracker, Homeees, and of course they have the hand gestures down pact, thier mums must also have given them an Eminem poster for Xmas.

They have thier caps on backwards, one guy even wanted to thank his Crew.

Now anybody who has ever visited America or have associated with Real Urban Americans in the Poverty cycle, know how far from the truth these kids are. I really don't have the heart to tell them, that those sayings they are coming up with, the clothes that they are wearing or the hand gestures, were thought up buy a think tank of White Middle Age Men in Madison Avenue to sell products to kids that Don't know better, and if these guys ever came across a Real Gangsta Rapper they would probably get the snot beaten out of them being so stereotypical.

I guess what I'm saying is, nobody who has ever been part of that life for real, would go on myspace and called themselves a Gangsta. My advice to them, if you want to be come a Rapper, go to states, send demos to the labels, play club after club, but lose the myspace page. The only artist who ever started with a myspace page and ended up going multiplatinum and winning Grammys was Lee Brice, a country music artist.

Friday, January 18, 2008

Playing for the Coach or Playing for the School? A Modest Proposal

While I recognize that college sports are a corrupt and unfair sewer in many ways, I never have been on the bandwagon for radical changes such as paying players. But I would support the proposal that NPR's Frank Deford makes in this NPR commentary arguing that student-athletes should be able to transfer freely, without having to sit out a year, if the coach who recruited them leaves mid-contract to go to another school or to coach in the pros. (H/T: Civil Procedure Prof Blog, which linked to my post about the Rich Rodriguez lawsuit).

The argument against Deford's proposal--the player came to play for the school, not the coach--is verifiably false for the majority of athletes. The player is not ordinarily attracted by what the University of Florida has to offer as an institution of higher learning as compared to Florida State University or the University of Georgia. Players are lured by "the program." And that is inseparable from the player's personal feeling/rapport with the coach who recruits him. That is the person with whom is going to work closely for four years--more closely than anyone else he will encounter at the university. So you cannot really separate the coach from the school with respect to the player's choice.

And this is not without academic parallels, even for undergraduates. One of my dormmates freshman year was a music major (I think she was a cellist) who came to Northwestern specifically because of one particular faculty member. If that faculty member left, this student would have the option of transferring and might well do so. Although she chose to attend the institution of Northwestern, this prof was part of that institution; without him, this may no longer be the best place for her.

Now, the devil with Deford's proposal is in the details. For example, it is not clear why the coach leaving for another school is distinct (from the player's standpoint) from the coach being fired or the coach retiring. In all cases, the coach for whom he came to play no longer is there--and neither is a major reason he chose to attend this school. But to allow players to leave freely whenever there is a coaching change potentially creates too much instability and uncertainty for schools (schools, after all, invest resources in student-athletes in a way they do not invest them in my cello player). Of course, the option to transfer always is present and a new coach has to "sell" the inherited players. But that is easier to do if the player knows that transferring means sitting out a year.

But this is an interesting starting point.

Not Exactly Nostradamus

In December 2006, I predicted in this space that George W. Bush would be the next commissioner of baseball. Bud Selig had just signed a new contract but basically had promised to step down in 2009--right about when W would be out of his current job.

So much for accuracy. On Thursday, MLB owners extended Selig's contract another three years, until 2012. Bruce Reed at Slate says this development means Bush "just lost the job he has always wanted much more than the one he's in." Reed adds two considerations to the mix.

First, he relays a comment from 2000 by Doug Hannah, one of Bush's childhood friends, that Bush ran for president (the quotation was in a Vanity Fair article during the GOP primary) as a resume enhancer and that Bush really wanted (and still wants, perhaps?) to be commissioner.

Second, Reed suggests it is remotely possible that Selig and the owners do want Bush, but believe he would be too toxic to hire in 2009. The extra three years allows for a cooling off and makes for an easier transition.

Aaron Zelinsky's "Three Strikes for the National Labor Relations Act"

We received an excellent submission from Aaron Zelinsky, a 1L at Yale Law School, concerning the National Labor Relations Act and the steroids scandal in baseball. Without further adieu . . .

* * *

Three Strikes for the National Labor Relations Act

It’s baseball season again in Washington. Representative Henry Waxman is calling everyone from Roger Clemens to Bud Selig to testify about performance enhancing substances in Major League Baseball. For all the hype, these hearings are less likely to curb steroid use than the Nationals are to win the pennant. If Waxman is serious about combating performance enhancing substances in professional sports, he should propose modifying the National Labor Relations Act (NLRA) to allow the Commissioners of the major leagues to impose unilaterally performance enhancing substances testing. Overseers already have this power in the minor leagues and the Olympics. The pros should be no different.

Senator Mitchell’s report on performance enhancing substances in baseball suggests improvements for baseball’s testing policy. In particular, Mitchell calls for increased transparency of the testing process, independence for testing authorities, and greater frequency of unannounced testing, particularly in the off season.

The NLRA effectively blocks the adoption of Mitchell’s suggestions by making drug testing of employees a mandatory subject of collective bargaining. This means that the Players Association must agree to any change in testing. Needless to say, the foxes rarely seek stronger protection of the henhouse. In Mitchell’s words, the Players Association has historically “opposed mandatory random drug testing.”

Moreover, the policy behind the NLRA does not apply to pro sports. The general counsel of the National Labor Relations Board declared that “a drug test is designed to determine whether an employee or applicant uses drugs, irrespective of whether such usage interferes with ability to perform work.” Since, for many workers, drug use is unrelated to job performance, their unions have a legitimate interest in protecting their privacy rights. Such a rationale does not apply to baseball. Performance enhancing substances fundamentally undermine the players’ ability to perform their work; being clean is an intrinsic part of their job.

Congress should, therefore, modify the NLRA to allow the major league commissioners to impose unilaterally performance enhancing substance testing. Both the Olympics and minor leagues allow their overseers similar power. The mere presence of a union should not insulate the pros from such testing.

Modifying the NLRA is neither difficult nor unprecedented. The Omnibus Transportation Employee Testing Act of 1991 mandates that over 12 million employees in the transportation industry undergo random drug and alcohol testing.

Like workers in the transportation industry, the use of drugs in pro sports poses a public safety risk. Young athletes watch and emulate the pros. The National Institute on Drug Abuse estimates that hundreds of thousands of high school athletes currently use steroids each year. After Mark McGuire went public about his use of androstenedione, andro use in high school student increased tenfold the following year. Performance enhancing substances in pro sports pose a public health hazard that deserves congressional attention.

Some may argue that the commissioners will abuse their power to impose testing for performance enhancing substances. However, there is no evidence of abuse in the Olympics, minor leagues, or amateur sports where overseers have imposed testing unilaterally.

As any good ballplayer knows, the only important pitches are those ahead. Instead of focusing on the steroid use of the past, Representative Waxman should concentrate on the testing program of the future. Bud Selig should have the same ability to impose testing on the pros as he does in the minor leagues. David Stern should be able to test basketball players just as the IOC tests them. Congress should modify the NLRA to remove drug testing as a mandatory subject of collective bargaining and allow the commissioners to clean up their sports.

Aaron Zelinsky is a first year student at the Yale Law School. He can be reached at aaron.zelinsky[at]

This a test message from my cell.

Golf Week and the Noose: Context Matters

Dre Cummings discusses the new wrinkle in the Kelly Tilghman/Lynching controversy--the Golf Week magazine cover featuring a photograph of a noose and the headline "Caught in a Noose." Dre asks whether this "represent[s] a collosal lapse in judgment on the part of Golfweek editor Dave Seanor or is this a merely a nefarious attempt to grab attention . . ."

Let me propose a third choice: This was a legitimate and effective visual representation (after all, one picture is worth 1000 words) of the essence of a genuine public controversy that Golf Week was obligated (given its editorial focus) to cover. That noose is at the heart of the concept of lynching. Indeed, I would speculate that Kelly Tilghman forgot how central the noose is to the concept when she used the word as carelessly as she did. If we are going to have a public debate about what Tilghman did wrong in using that word (which we have had and must have, in arguing for her punishment), then the noose is and should be a part of that discussion--both verbally and visually.

As for PGA Tour Commissioner Tim Finchman's outrage, I think his agenda is revealed by a different part of the quotation in The Times, where he decries Golf Week "keep[ing] alive an incident that was heading to an appropriate conclusion." In other words, the PGA is outraged because it wants this to go away and does not want to talk about it anymore. But Golf Week (or any other magazine) has an obligation to talk about matters of public concern. And certainly, given the involvement of Al Sharpton and many others, this was a matter of public concern.

I title this post "Context Matters" because it does. A swinging noose, in one context, may reflect a true threat and should be punished. A photo of a noose in the context of a journalistic, political, or academic discussion of lynching (and thus the noose) is very different. Otherwise, I cannot include a photo of a burning cross in a historical account of the Klan or of the Supreme Court's decision in the first cross-burning case or a photo of a swastika or the entrance to Auschwitz in a story about Holocaust denial.

Update: Friday, 1:30 p.m. C.S.T.:

As Rick notes in the Comments, the magazine fired its editor today. Story here.

golfweek magazine and judgment

As the Kelly Tilghman maelstrom had begun to abate in connection with her Tiger Woods "lynch him in a back alley" blunder, Golfweek has just published the image of a noose in connection to Tilghman's ignorant commentary in this weeks edition of its magazine.

Does this represent a collosal lapse in judgment on the part of Golfweek editor Dave Seanor or is this a merely a nefarious attempt to grab attention for a weekly mag that distributes approximately 160,000 copies per, mostly to subscribers? The cover page reads: "Caught In A Noose: Tilghman Slips Up, and Golf Channel Can't Wriggle Free."

PGA Tour commissioner Tim Finchem weighed in with a statement in the New York Times decrying the imagery of a "swinging noose" as "outrageous and irresponsible." Seanor defends the cover as not intending to be “'racially provocative,' but to illustrate a noose tightening around Tilghman, the Golf Channel and golf."

Last week, vigorous debate was heard on this blog and around the country in connection with the imagery and psychology of "lynching" and "the noose" in the United States, particularly in connection with the historically racialized practice of lynching African American citizens, mostly in the South, in our nation's fairly recent past. National attention has been shined on the incident by Reverend Al Sharpton and the Golf Channel's highly publicized suspension of Tilghman resulting in both platitudes and harsh criticism. Few images in the U.S. are more insulting or racially charged than the noose.

What we Need is a Really Great Day to Make the Most of Every Moment

That was the start of the theme to an ad of McDonald's in the early 90's. Tonight's Blog was going to be about, white teenagers in Christchurch, New Zealand who have myspace pages, who for some reason call themselves Gangsta Rappers.

But I read a story today, that is quite disturbing, The Employment Relations Authority (ERA) has ordered a Blogger to stop writing about his time at McDonald's. Now I can understand, a Lawyer for Macca's suing this kid for writing whats in the secret sauce or giving details of Pay Rates.

But What right has the ERA got to tell someone, what they can write on thier own blog, he wasn't giving away company secrets, he was just telling the public about some of the conditions that may or may not applied to his store.

Lets face it, the Fast Food Industry is a Hell of a Place to work, I worked in a certain Fast Food Outlet in the early 90's, we had about two or three managers who treated people like garbage, they would tell you that you were the worst F***** worker there, at the end of a shift they would clock you out and tell you to keep working, breaks were normally a pot of Gold at the end of a rainbow that you will never get or reach.

For some reason we were told to put the recycle bags and the normal rubbish in the same compactor, and when we went to get our pay slips, on many occasions we were underpaid, I remember getting told to work on even when I had a badly burn hand or got stung by a wasp.

Although, the Owner and Store Manager were great.

Anyway back to the matter in Hand, I know the law says you cant give out privileged information even once you have left a company, but the stuff this guy was writing was common knowledge and surly the ERA has no right whatsoever to tell someone what they can write on a blog hosted on an international server?

Thursday, January 17, 2008

Randy Moss Hit With Temporary Restraining Order

Last night, I wrote a piece on concerning New England Patriots' wide receiver Randy Moss' newfound legal troubles. I hope you have a chance to check it out.

Why Do Socialists think Free Speech only applies to them?

Why do Socialists think Free Speech only applies to them? There was a protest by an extreme left wing group of Socialists here in New Zealand a few weeks ago. As usual they were protesting against the Police, they thought Police didn't have the right to Tazer violent criminals and the Police should just walk away when confronted by these losers.

Well they were marching, and screaming, "Stand up, Not Shut Up", when a member of the Public made a comment that he supports the Police use of tazers.

Well that is when the Sh*t really hit the fan. About three of these Socialists went up to the man and told him to F*ck off and screamed Free Speech to him, when ever he tried to talk, they would shout, F*ck off, "Free Speech"

Am I'm the only person who finds this strange? I found this is very much across the board with those on the extreme left. They make a big fuss if they think their voices or point of view are being silenced by the Police or Media, but if anyone has a different world view than them, they tell you to Shut Up.

I think, they need to grow up.

Wednesday, January 16, 2008

When Academic Interests Meet: Thank you, Rich Rodriguez

I got involved in this forum because of the overlap between sport and one of my primary scholarly interests--free speech. It is nice to see one time in which sport meets my other scholarly interest--civil procedure geekiness.

West Virginia last month sued former football coach Rich Rodriguez in state court in West Virginia seeking to recover on a $ 4 million buyout clause in Rodriguez's contract, after the coach left WVU to become head coach at Michigan. Today, Rodriguez removed the case to federal court; Rodriguez argues there is federal jurisdiction over the case because he was, at the time the lawsuit was filed, already a citizen of Michigan. The theory underlying diversity always has been that an out-of-stater should be able to avoid the likely local bias by proceeding in federal court, where judge and jury are deemed to be insulated by local passions. I guess that is even more true for a football coach who just jilted an entire state. As Prof. Steve Gensler said in a list serv comment, "I guess Rich Rod didn’t like the idea of facing a Monongalia County jury (or judge)."

The key is how quickly Rodriguez was able to change his citizenship. The petition alleges that in the eleven days between his hiring (December 16) and the suit (December 27), Rodriguez became a Michigan citizen because he and his wife registered to vote in Michigan, obtained Michigan drivers' licenses, set up home mailing address and telephone, and set up a business office in the new state. Pretty quick moving. But it is not clear generally how long it takes to become a citizen of a new state; can it be done in less than two weeks? There also are indications in news reports (and from sources teaching at WVU) that the Rodriguezes have not sold their house in West Virginia, that their children still are in school in West Virginia, and that Mrs. Rodriguez, at least, is spending her time in W. Va.

I already have made copies of the petition to distribute to my students.

Update: Thursday, 10:50 a.m.:

Putting aside whether Rodriguez is manipulating citizenship, an e-mailer points out two potential problems with the petition:

1) The Removal petition nowhere asserts that Rodriguez is a citizen of Michigan, only that he has changed domicile to Michigan and had "established residency in the State of Michigan at the time this lawsuit was commenced." Now the latter goes into the analysis of the former. But the statute (and the rules) look solely to whether the "Party is a citizen of ____" and that is missing. Oversight?

2) It is not clear this case is removable to federal court. The petition alleges "the Plaintiff is a resident of the State of West Virginia." But the plaintiff is the West Virginia University Board of Governors, which may, in fact, be an alter-ego of the State of West Virginia, rather than a citizen of West Virginia. State law provides that the Board "is the governing body with the mission of general supervision and control over the academic and business affairs of West Virginia
University. The West Virginia University Board of Governors (hereinafter, the "University") is a resident of the state of West Virginia."

The diversity statute only gives jurisdiction over actions "between citizens of different states" and case law since the late 19th century makes clear that a state is not considered a citizen for purposes of that provision. Given the above language about being a "resident" of the state, does that also make it a citizen for diversity purposes? Or does it remain an alter-ego of the state?